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196 A.2d 922 (1964) BONDY FIXTURE COMPANY, Inc., Appellant, v. Carl P. FOGEL, Appellee. No. 3374. District of Columbia Court of Appeals. Argued December 9, 1963. Decided January 24, 1964. Harvey B. Steinberg, Bethesda, Md., for appellant. George J. Hughes, Washington, D. C., with whom Harvey A. Jacobs, Washington, D. C., was on the brief, for appellee. Before HOOD, Chief Judge, and QUINN and MYERS, Associate Judges. 923 QUINN, Associate Judge. Between 1955 and 1961 an attorney-client relationship existed between appellee and appellant. During this period appellant, the client, made a personal loan of $2,000 to appellee and furnished him with certain goods and materials. When the attorney-client relationship was terminated, appellant brought suit for the unpaid loan and goods. Appellee counterclaimed for professional services rendered during the period. Trial was had by the court sitting without a jury and a finding of $672.91 was entered for appellee. This was computed by finding appellee indebted to appellant for $3,320.51, and appellant indebted to appellee for $3,993.42. The present appeal relates only to the latter finding and more particularly to seven of twelve claims for services rendered. Appellant has grouped these claims in four categories corresponding to its assignments of error.[1] In the first category appellant has placed three claims which the trial court allowed on a quantum meruit basis. Appellant contends that a retainer agreement existed between the parties which precluded a quantum meruit award. At the time of trial conflicting versions were given as to the terms of the oral understanding between the parties. Although they agreed that appellee was to receive a $50 monthly retainer for eighteen months, and thereafter a contingency fee, there was considerable disagreement as to how the retainer was to be supplemented. In a similar situation between attorney and client, we have said: " * * Where the language of the contract does not clearly disclose the intent of the parties, and evidence of surrounding circumstances has been resorted to, the question is one of fact. * * *"[2] In the case at bar, both the nature of the agreement and the conflicting testimony presented factual questions as to whether the agreement provided for supplementary compensation, and, if so, in what amount. The record contains ample evidence to support the trial court's affirmative findings and award of a reasonable fee for services rendered.[3] In the second category appellant has placed one claim for which the trial court awarded $750. Appellant contends this claim is barred because it arose at a time when appellee was employed on a contingency basis and the claim was lost. At the time of trial, however, appellant stipulated that a $250 fee was owing on this claim. Appellant's contention, therefore, made for the first time on appeal, is improper. In the third category appellant has placed three claims for which appellee was awarded fees as a forwarding attorney. Appellant contends that in each instance appellee did not participate in the forwarded cases. The record, however, reveals ample evidence upon which the trial court based each award. In the fourth category appellant placed two claims contending that the trial court erred in awarding fees in excess of an amount billed by appellee himself. Appellant's contention rests upon the interpretation of an exhibit containing a letter and enclosure sent by appellee to appellant. Appellant contends the amounts listed on the enclosure made it the equivalent of a bill; appellee argues they merely represented a compromise offer. Again, the conflict in the testimony and the interpretation of the exhibit presented factual questions for the trial court to resolve. The findings are adequately supported by the record. Affirmed. NOTES [1] Appellant has placed several of the claims in more than one category. [2] Roberts v. Veterans Cooperative Housing Ass'n, D.C.Mun.App., 88 A.2d 324, 326 (1952). [3] Compare Porter v. Trustees of Cincinnati Southern Ry., 96 Ohio 29, 117 N.E. 20, 22 (1917).	10-30-2013	[ "196 A.2d 922 (1964) BONDY FIXTURE COMPANY, Inc., Appellant, v. Carl P. FOGEL, Appellee. No. 3374. District of Columbia Court of Appeals. Argued December 9, 1963. Decided January 24, 1964. Harvey B. Steinberg, Bethesda, Md., for appellant. George J. Hughes, Washington, D. C., with whom Harvey A. Jacobs, Washington, D. C., was on the brief, for appellee. Before HOOD, Chief Judge, and QUINN and MYERS, Associate Judges. 923 QUINN, Associate Judge. Between 1955 and 1961 an attorney-client relationship existed between appellee and appellant. During this period appellant, the client, made a personal loan of $2,000 to appellee and furnished him with certain goods and materials. When the attorney-client relationship was terminated, appellant brought suit for the unpaid loan and goods.", "Appellee counterclaimed for professional services rendered during the period. Trial was had by the court sitting without a jury and a finding of $672.91 was entered for appellee. This was computed by finding appellee indebted to appellant for $3,320.51, and appellant indebted to appellee for $3,993.42. The present appeal relates only to the latter finding and more particularly to seven of twelve claims for services rendered. Appellant has grouped these claims in four categories corresponding to its assignments of error. [1] In the first category appellant has placed three claims which the trial court allowed on a quantum meruit basis. Appellant contends that a retainer agreement existed between the parties which precluded a quantum meruit award. At the time of trial conflicting versions were given as to the terms of the oral understanding between the parties. Although they agreed that appellee was to receive a $50 monthly retainer for eighteen months, and thereafter a contingency fee, there was considerable disagreement as to how the retainer was to be supplemented. In a similar situation between attorney and client, we have said: \" * * Where the language of the contract does not clearly disclose the intent of the parties, and evidence of surrounding circumstances has been resorted to, the question is one of fact.", "* * *\"[2] In the case at bar, both the nature of the agreement and the conflicting testimony presented factual questions as to whether the agreement provided for supplementary compensation, and, if so, in what amount. The record contains ample evidence to support the trial court's affirmative findings and award of a reasonable fee for services rendered. [3] In the second category appellant has placed one claim for which the trial court awarded $750. Appellant contends this claim is barred because it arose at a time when appellee was employed on a contingency basis and the claim was lost. At the time of trial, however, appellant stipulated that a $250 fee was owing on this claim. Appellant's contention, therefore, made for the first time on appeal, is improper.", "In the third category appellant has placed three claims for which appellee was awarded fees as a forwarding attorney. Appellant contends that in each instance appellee did not participate in the forwarded cases. The record, however, reveals ample evidence upon which the trial court based each award. In the fourth category appellant placed two claims contending that the trial court erred in awarding fees in excess of an amount billed by appellee himself. Appellant's contention rests upon the interpretation of an exhibit containing a letter and enclosure sent by appellee to appellant.", "Appellant contends the amounts listed on the enclosure made it the equivalent of a bill; appellee argues they merely represented a compromise offer. Again, the conflict in the testimony and the interpretation of the exhibit presented factual questions for the trial court to resolve. The findings are adequately supported by the record. Affirmed. NOTES [1] Appellant has placed several of the claims in more than one category. [2] Roberts v. Veterans Cooperative Housing Ass'n, D.C.Mun.App., 88 A.2d 324, 326 (1952). [3] Compare Porter v. Trustees of Cincinnati Southern Ry., 96 Ohio 29, 117 N.E. 20, 22 (1917)." ]	https://www.courtlistener.com/api/rest/v3/opinions/2184259/	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 LeBlang Application No. 15/430,781 Filed: 13 Feb 2017 For: METAL FRAMING SELF-LOCKING CONNECTORS : : : : DECISION ON PETITION : : This is a decision on the renewed petition under 37 CFR 1.78(c) and (e), filed August 3, 2022, to accept an unintentionally delayed claim under 35 U.S.C. 119(e) and 120 for the benefit of priority to the prior-filed applications listed in the concurrently filed application data sheet (“ADS”). The petition under 37 CFR 1.78(c) and (e) is DISMISSED. A petition for acceptance of a claim for late priority under 37 CFR 1.78(c) and 1.78(e) is only applicable to those applications in which a proper benefit claim is filed after the expiration of the period specified in 37 CFR 1.78(a)(4) and 1.78(d)(3). The petition under 37 CFR 1.78(c) and 1.78(e) must be accompanied by: (1) the reference required by 35 U.S.C. 120 and 119(e) and 37 CFR 1.78(d)(2) and 1.78(a)(3) of the prior-filed application, which must be filed in an Application Data Sheet1; (2) the petition fee set forth in § 1.17(m); and (3) a statement that the entire delay between the date the claim was due under 37 CFR 1.78(d)(3) and 1.78(a)(4) and the date the claim was filed was unintentional. The Director may require additional where there is a question whether the delay was unintentional. The renewed petition does not comply with (1) above. With respect to (1) above: The benefit chain presented in the August 3, 2022 ADS is not acceptable. As stated in the decision on petition, mailed June 29, 2022: There are two typographical errors that must be corrected. (1) On the third page of the Domestic Benefit/National Stage Information section, the penultimate entry, Prior Application No. 61/175,191 was filed on June 12, 2015, not June 2, 2015. (2) On the fourth page of the Domestic Benefit/National Stage Information section, 4th entry on the page, Prior Application No. 62/170,269 was filed on June 3, 2015, not June 13, 2015. None of the information presented in the August 3, 2022 ADS has been entered. Please carry forward the markings from the August 3, 2022 ADS to a new ADS and substitute the correct (and underlined) filing dates for the two aforementioned provisional applications for the incorrect filing dates currently listed. There should be no strike-through information in the future filed ADS. As requested in the decision on petition, mailed May 25, 2022 and the decision on petition, mailed June 29, 2022: Please underline the checked box for Statement under 37 CFR 1.55 or 1.78 for AIA (First Inventor to File) Transition Applications. If reconsideration of this petition is desired, applicant should file a renewed petition under 37 CFR 1.78(c) and (e), and an ADS (complying with the provisions 37 CFR 1.76(b)(5)) setting forth a proper, underlined benefit chain, and checking and underlining the box for Statement under 37 CFR 1.55 or 1.78 for AIA (First Inventor to File) Transition Applications. Further correspondence with respect to this matter should be delivered through one of the following mediums: By mail: Mail Stop PETITIONS Commissioner for Patents Post Office Box 1450 Alexandria, VA 22313-1450 By hand: Customer Service Window Mail Stop Petitions Randolph Building 40l Dulany Street Alexandria, VA 22314 By fax: (571) 273-8300 ATTN: Office of Petitions Registered users may file via EFS-Web. Telephone inquiries may be directed to the undersigned at (571) 272-3230. /SHIRENE W BRANTLEY/Attorney Advisor, OPET 1 37 CFR 1.78(d)(2) explicitly requires the reference to be presented in an ADS.	2022-08-25T02:06:22	[ "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 LeBlang Application No. 15/430,781 Filed: 13 Feb 2017 For: METAL FRAMING SELF-LOCKING CONNECTORS : : : : DECISION ON PETITION : : This is a decision on the renewed petition under 37 CFR 1.78(c) and (e), filed August 3, 2022, to accept an unintentionally delayed claim under 35 U.S.C. 119(e) and 120 for the benefit of priority to the prior-filed applications listed in the concurrently filed application data sheet (“ADS”). The petition under 37 CFR 1.78(c) and (e) is DISMISSED. A petition for acceptance of a claim for late priority under 37 CFR 1.78(c) and 1.78(e) is only applicable to those applications in which a proper benefit claim is filed after the expiration of the period specified in 37 CFR 1.78(a)(4) and 1.78(d)(3). The petition under 37 CFR 1.78(c) and 1.78(e) must be accompanied by: (1) the reference required by 35 U.S.C. 120 and 119(e) and 37 CFR 1.78(d)(2) and 1.78(a)(3) of the prior-filed application, which must be filed in an Application Data Sheet1; (2) the petition fee set forth in § 1.17(m); and (3) a statement that the entire delay between the date the claim was due under 37 CFR 1.78(d)(3) and 1.78(a)(4) and the date the claim was filed was unintentional. The Director may require additional where there is a question whether the delay was unintentional.", "The renewed petition does not comply with (1) above. With respect to (1) above: The benefit chain presented in the August 3, 2022 ADS is not acceptable. As stated in the decision on petition, mailed June 29, 2022: There are two typographical errors that must be corrected. (1) On the third page of the Domestic Benefit/National Stage Information section, the penultimate entry, Prior Application No. 61/175,191 was filed on June 12, 2015, not June 2, 2015. (2) On the fourth page of the Domestic Benefit/National Stage Information section, 4th entry on the page, Prior Application No. 62/170,269 was filed on June 3, 2015, not June 13, 2015. None of the information presented in the August 3, 2022 ADS has been entered. Please carry forward the markings from the August 3, 2022 ADS to a new ADS and substitute the correct (and underlined) filing dates for the two aforementioned provisional applications for the incorrect filing dates currently listed. There should be no strike-through information in the future filed ADS. As requested in the decision on petition, mailed May 25, 2022 and the decision on petition, mailed June 29, 2022: Please underline the checked box for Statement under 37 CFR 1.55 or 1.78 for AIA (First Inventor to File) Transition Applications. If reconsideration of this petition is desired, applicant should file a renewed petition under 37 CFR 1.78(c) and (e), and an ADS (complying with the provisions 37 CFR 1.76(b)(5)) setting forth a proper, underlined benefit chain, and checking and underlining the box for Statement under 37 CFR 1.55 or 1.78 for AIA (First Inventor to File) Transition Applications.", "Further correspondence with respect to this matter should be delivered through one of the following mediums: By mail: Mail Stop PETITIONS Commissioner for Patents Post Office Box 1450 Alexandria, VA 22313-1450 By hand: Customer Service Window Mail Stop Petitions Randolph Building 40l Dulany Street Alexandria, VA 22314 By fax: (571) 273-8300 ATTN: Office of Petitions Registered users may file via EFS-Web. Telephone inquiries may be directed to the undersigned at (571) 272-3230. /SHIRENE W BRANTLEY/Attorney Advisor, OPET 1 37 CFR 1.78(d)(2) explicitly requires the reference to be presented in an ADS." ]	https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-08-28.zip	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
Exhibit 99.1 [logo] Minden Bancorp, Inc. Subscription & Community Offering Stock Order Form MBL Bank Expiration Date Stock Information Center for Stock Order Forms: , , 2010 4:00 p.m., Central time (received not postmarked) ank Dr. Minden, LA 70155 (318) 371-4122 IMPORTANT: A properly completed original stock order form must be used to subscribe for common stock. Copies of this form are not required to be accepted. Please read the Stock Ownership Guide and Stock Order Form Instructions as you complete this form. (1) Number of Shares Subscription Price × 10.00 (2) Total Payment Due Minimum number of shares: 25 shares ($250) Maximum number of shares: 40,000 shares ($400,000) Maximum number of shares for associates or group: 55,000 shares ($550,000) See Instructions. $ (3) Employee/Officer/Director Information oCheck here if you are an employee, officer or director of MBL Bank or a member of such person’s immediate family living in the same household. (4) Method of Payment by Check Total Check Amount $ Enclosed is a check, bank draft or money order payable to Minden Bancorp, Inc. in the amount indicated here.Cash may be used only if delivered in person to MBL Bank’s main office. • (5) Method of Payment by Withdrawal - The undersigned authorizes withdrawal from the following account(s) at MBL Bank.There is no early withdrawal penalty for this form of payment.Individual Retirement Accounts maintained at MBL Bank cannot be used unless special transfer arrangements are made. Bank Use Account Number(s) To Withdraw $ Withdrawal Amount $ • $ • (6) Purchaser Information Subscription Offering o a. Check here if you are an Eligible Account Holder with a deposit account(s) totaling $50.00 or more on June 30, 2009. o b. Check here if you are a Supplemental Eligible Account Holder with a deposit account(s) totaling $50.00 or more on , 2010 but are not an Eligible Account Holder. o c. Check here and list accounts below if you are an Other Member with a deposit account(s) on , 2010 but are not an Eligible Account Holder or Supplemental Eligible Account Holder. Community Offering o d. Check here if you are a community member (Indicate parish of residence in #9 below). o e. Check here if you were a shareholder of Minden Bancorp, Inc. on , 2010. Account Information List below all accounts in which you had an ownership interest as of the applicable eligibility date as indicated in a, b or c above.Failure to list all your eligible accounts, or providing incorrect information, may result in the loss of part or all of your subscription rights.Use reverse side for additional space. Bank Use Account Number(s) Account Title (Name(s) on Account) (7) Form of Stock Ownership & SS# or Tax ID#: SS#/Tax ID# Æ o Individual o Joint Tenants o Tenants in Common o Fiduciary (i.e., trust, estate) o Uniform Transfers to Minors Act (Indicate SS# of Minor only) o Company/Corporation/ Partnership o IRA or other qualified plan (Both Tax ID# & SS# for IRAs) SS#/Tax ID# Æ (8) Stock Registration & Address:Name and address to appear on stock certificate. Adding the names of other persons who are not owners of your qualifying account(s) will result in the loss of your subscription rights. Name: Name Continued: Mail to- Street: City: State: Zip Code: (9) Telephone Daytime/Evening ( ) ( ) Parish of Residence (10) Associates/Acting in Concert o Check here and complete the reverse side of this form if you or any associates or persons acting in concert with you have submitted other orders for shares or are current owners of existing shares of Minden Bancorp, Inc. (11) Acknowledgement - To be effective, this stock order form must be properly completed and physically received (not postmarked) by Minden Bancorp, Inc. no later than 4:00 p.m., Central time, on , , 2010, unless extended; otherwise this stock order form and all subscription rights will be void.The undersigned agrees that after receipt by Minden Bancorp, Inc., this stock order form may not be modified, withdrawn or canceled without Minden Bancorp, Inc.’s consent and if authorization to withdraw from deposit accounts at MBL Bank has been given as payment for shares, the amount authorized for withdrawal shall not otherwise be available for withdrawal by the undersigned. Under penalty of perjury, I hereby certify that the Social Security or Tax ID Number and the information provided on this stock order form are true, correct and complete and that I am not subject to back-up withholding.It is understood that this stock order form will be accepted in accordance with, and subject to, the terms and conditions of the plan of conversion and reorganization of Minden Mutual Holding Company described in the accompanying prospectus. Federal regulations prohibit any person from transferring, or entering into any agreement, directly or indirectly, to transfer the legal or beneficial ownership of subscription rights or the underlying securities to the account of another.MBL Bank, Minden Mutual Holding Company, Minden Bancorp, Inc. and new Minden Bancorp, Inc. will pursue any and all legal and equitable remedies in the event they become aware of the transfer of subscription rights and will not honor orders known by them to involve such transfer.Under penalty of perjury, I certify that I am purchasing shares solely for my account and that there is no agreement or understanding regarding the sale or transfer of such shares, or my right to subscribe for shares. By signing below, I also acknowledge that I have read the Certification Form on the reverse side of this form. Bank Use Signature Date Signature Date Æ Æ 1 Item (6) Purchaser Account Information continued: Bank Use Account Number(s) Account Title (Name(s) on Account) Item (10) Associates/Acting In Concert continued: If you checked the box in item #10 on the reverse side of this form, list below all other orders submitted by you or your associates and list the number of shares of Minden Bancorp, Inc. currently owned by you or your associates (as defined below) or by persons acting in concert with you (also defined below). Name(s) listed on other stock order forms Number of shares ordered Name(s) of existing shareholders Number of shares owned Associate - The term “associate” of a particular person means: (1) a corporation or organization other than Minden Mutual Holding Company, Minden Bancorp, Inc. or MBL Bank or a majority-owned subsidiary of Minden Mutual Holding Company, Minden Bancorp, Inc. or MBL Bank of which a person is a director, officer or partner or is, directly or indirectly, the beneficial owner of 10% or more of any class of equity securities of such corporation or organization; (2) a trust or other estate in which a person has a substantial beneficial interest or as to which a person serves as a trustee or a fiduciary; and (3) any person who is related by blood or marriage to such person and who lives in the same home as such person or who is a director or officer of Minden Mutual Holding Company, Minden Bancorp, Inc. or MBL Bank or any of their subsidiaries. Acting in concert – The term “acting in concert” means: (1) knowing participation in a joint activity or interdependent conscious parallel action towards a common goal whether or not pursuant to an express agreement or understanding; or (2) a combination or pooling of voting or other interests in the securities of an issuer for a common purpose pursuant to any contract, understanding, relationship, agreement or other arrangement, whether written or otherwise. In general, a person who acts in concert with another party will also be deemed to be acting in concert with any person who is also acting in concert with that other party. We may presume that certain persons are acting in concert based upon various facts, among other things, joint account relationships, the fact that persons reside at the same address or the fact that such persons may have filed joint Schedules 13D or 13G with the Securities and Exchange Commission with respect to other companies. We have the sole discretion to determine if prospective purchasers are “associates” or “acting in concert”. CERTIFICATION FORM I ACKNOWLEDGE THAT THIS SECURITY IS NOT A DEPOSIT OR ACCOUNT AND IS NOT FEDERALLY INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, AND IS NOT INSURED OR GUARANTEED BY MINDEN MUTUAL HOLDING COMPANY, MINDEN BANCORP, INC., NEW MINDEN BANCORP, INC., MBL BANK, THE FEDERAL GOVERNMENT OR BY ANY GOVERNMENT AGENCY.THE ENTIRE AMOUNT OF AN INVESTOR’S PRINCIPAL IS SUBJECT TO LOSS. If anyone asserts that this security is federally insured or guaranteed, or is as safe as an insured deposit, I should call the Office of Thrift Supervision, Consumer Response Center at 1-800-842-6929. I further certify that, before purchasing the common stock, par value $0.01 per share, of new Minden Bancorp, Inc. (the “Company”), which will become the holding company for MBL Bank, I received a prospectus of the Company dated , 2010 relating to such offer of common stock.The prospectus that I received contains disclosure concerning the nature of the common stock being offered by the Company and describes in the “Risk Factors” section beginning on page , the risks involved in the investment in this common stock, including but not limited to the following: Risks Related to Our Business 1. Our Loan Portfolio Includes A Significant Amount of Loans Which Have a Higher Risk of Loss than Conforming, Single-Family Residential Mortgage Loans. 2. Our Allowance for Losses on Loans May Not Be Adequate to Cover Probable Losses. 3. Our Loans are Concentrated to Borrowers in a Limited Geographic Area. 4. Our Results of Operations Depend Significantly on Economic Conditions and Related Uncertainties. 5. Future Changes in Interest Rates Could Reduce Our Profits. 6. Any Future Federal Deposit Insurance Corporation Insurance Premiums or Special Assessments Will Adversely Impact Our Earnings. 7. The Requirement to Account for Certain Assets at Estimated Fair Value, and a Proposal to Account for Additional Financial Assets and Liabilities at Estimated Fair Value, May Adversely Affect Our Stockholders’ Equity and Results of Operations. 8. Strong Competition Within Our Market Area Could Hurt our Profits and Slow Growth. 9. Growth of Our Franchise By Acquisition or Branching May be Difficult to Achieve. We Operate in a Highly Regulated Environment and We May Be Adversely Affected By Changes in Laws and Regulations. Recently Enacted Regulatory Reform Legislation May Have a Material Impact on Our Operations. We Depend on the Services of Our Management Team. Risks Related to the Offering Additional Expenses Following the Offering from New Equity Benefit Plans Will Adversely Affect Our Net Income. Our Return on Equity May Be Low Which May Negatively Impact Our Stock Price. Minden Bancorp Will Have Broad Discretion in Allocating the Proceeds of the Offering. Our New Stock Benefit Plans Will Be Dilutive. Our Stock Price May Decline When Trading Commences. There May Be a Limited Market for Our Common Stock, Which May Adversely Affect Our Stock Price. We Intend to Remain Independent Which May Mean You Will Not Receive a Takeover Premium for Your Common Stock. Our Stock Value May Suffer from Anti-Takeover Provisions In Our Corporate Documents, Federal Regulations and Louisiana Law that May Impede Potential Takeovers that Management Opposes. (By Signing the Front of this Form the Investor is Not Waiving Any Rights Under the Federal Securities Laws, Including the Securities Act of 1933 and the Securities Exchange Act of 1934) 2 Minden Bancorp, Inc. Stock Ownership Guide Individual Include the first name, middle initial and last name of the shareholder. Avoid the use of two initials. Please omit words that do not affect ownership rights, such as “Mrs.”, “Mr.”, “Dr.”, “special account”, “single person”, etc. Joint Tenants Joint tenants with right of survivorship may be specified to identify two or more owners. When stock is held by joint tenants with right of survivorship, ownership is intended to pass automatically to the surviving joint tenant(s) upon the death of any joint tenant. All parties must agree to the transfer or sale of shares held by joint tenants. Tenants in Common Tenants in common may also be specified to identify two or more owners. When stock is held by tenants in common, upon the death of one co-tenant, ownership of the stock will be held by the surviving co-tenant(s) and by the heirs of the deceased co-tenant. All parties must agree to the transfer or sale of shares held by tenants in common. Uniform Transfers to Minors Act (“UTMA”) Stock may be held in the name of a custodian for a minor under the Uniform Transfers to Minors Act of each state.There may be only one custodian and one minor designated on a stock certificate.The standard abbreviation for Custodian is “CUST”, while the Uniform Transfers to Minors Act is “UTMA”.Standard U.S. Postal Service state abbreviations should be used to describe the appropriate state.For example, stock held by John Doe as custodian for Susan Doe under the Louisiana Uniform Transfers to Minors Act will be abbreviated John Doe, CUST Susan Doe UTMA LA (use minor’s social security number). Fiduciaries Information provided with respect to stock to be held in a fiduciary capacity must contain the following: ● The name(s) of the fiduciary. If an individual, list the first name, middle initial and last name. If a corporation, list the full corporate title (name). If an individual and a corporation, list the corporation’s title before the individual. ● The fiduciary capacity, such as administrator, executor, personal representative, conservator, trustee, committee, etc. ● A description of the document governing the fiduciary relationship, such as a trust agreement or court order. Documentation establishing a fiduciary relationship may be required to register your stock in a fiduciary capacity. ● The date of the document governing the relationship, except that the date of a trust created by a will need not be included in the description. ● The name of the maker, donor or testator and the name of the beneficiary. An example of fiduciary ownership of stock in the case of a trust is: John Doe, Trustee Under Agreement Dated 10-1-93 for Susan Doe. Stock Order Form Instructions Items 1 and 2 - Number of Shares and Total Payment Due Fill in the number of shares that you wish to purchase and the total payment due.The amount due is determined by multiplying the number of shares by the subscription price of $10.00 per share.The minimum purchase in the subscription offering is $250 (25 shares) of common stock.As more fully described in the plan of conversion and reorganization outlined in the prospectus, the maximum purchase in any category of the subscription offering is $400,000 (40,000 shares) of common stock, and the maximum purchase in the community offering (if held) by any person, is $400,000 (40,000 shares) of common stock.No person, together with associates and persons acting in concert with such person, may purchase in the aggregate more than $550,000 (55,000 shares) of common stock. Item 3 - Employee/Officer/Director Information Check this box to indicate whether you are an employee, officer or director of MBL Bank or a member of such person’s immediate family living in the same household. Item 4 - Method of Payment by Check If you pay for your stock by check, bank draft or money order, indicate the total amount in this box. Payment for shares may be made by check, bank draft or money order payable to Minden Bancorp, Inc. Payment in cash can only be made by delivering it in person to the Stock Information Center located at MBL Bank’s main office.Your funds will earn interest at MBL Bank’s passbook rate until the stock offering is completed. Item 5 - Method of Payment by Withdrawal If you pay for your stock by a withdrawal from a deposit account atMBL Bank, indicate the account number(s) and the amount of your withdrawal authorization for each account. The total amount withdrawn should equal the amount of your stock purchase. There will be no penalty assessed for early withdrawals from certificate accounts used for stock purchases. This form of payment may not be used if your account is an Individual Retirement Account. Item 6 – Purchaser Information Subscription Offering a. Check this box if you had a deposit account(s) totaling $50.00 or more on June 30, 2009 (“Eligible Account Holder”). b. Check this box if you had a deposit account(s) totaling $50.00 or more on , 2010 but are not an Eligible Account Holder (“Supplemental Eligible Account Holder”). c. Check this box if you had a deposit account(s) on , 2010 but are not an Eligible Account Holder or Supplemental Account Holder (“Other Member”). Please list all account numbers and all names on accounts you had on these dates in order to insure proper identification of your purchase rights. Note: Failure to list all your eligible accounts, or providing incorrect information, may result in the loss of part or all of your subscription rights. Community Offering d. Check this box if you are a community member (Indicate parish of residence in item 9). e. Check this box if you were a shareholder of Minden Bancorp, Inc. on , 2010 Items 7 and 8 - Form of Stock Ownership, SS# or Tax ID#, Stock Registration and Mailing Address Check the box that applies to your requested form of stock ownership and indicate your social security or tax ID number(s) in item 7. Complete the requested stock registration and mailing address in item 8. The stock transfer industry has developed a uniform system of shareholder registrations that will be used in the issuance of your common stock. If you have any questions regarding the registration of your stock, please consult your legal advisor. Stock ownership must be registered in one of the ways described above under “Stock Ownership Guide.” Adding the names of other persons who are not owners of your qualifying account(s) will result in the loss of your subscription rights. Item 9 – Telephone Number(s) and County Indicate your daytime and evening telephone number(s) and county. We may need to call you if we have any questions regarding your order or we cannot execute your order as given. Item 10 – Associates/Acting in Concert Check this box and complete the reverse side of the stock order form if you or any associates or persons acting in concert with you (as defined on the reverse side of the stock order form) have submitted other orders for shares or are currentowners of existing shares of Minden Bancorp, Inc Item 11– Acknowledgement Please review the prospectus carefully before making an investment decision. Sign and date the stock order form where indicated. Before you sign, review the stock order form, including the acknowledgement and certification. Normally, one signature is required. An additional signature is required only when payment is to be made by withdrawal from a deposit account that requires multiple signatures to withdraw funds. Your properly completed signed stock order form and payment in full (or withdrawal authorization) at the subscription price must be physically received (not postmarked) by Minden Bancorp, Inc. no later than 4:00 p.m., Central time, on , 2010 or it will become void. Delivery Instructions:You may deliver your stock order form by mail using the enclosed stock order return envelope, by hand delivery, or by overnight courier to the Minden Bancorp, Inc. Stock Information Center located at MBL Bank’s main office, ank Dr., Minden, LA 71055. If you have any remaining questions, or if you would like assistance in completing your stock order form, you may call our Stock Information Center at (318) 371-4122, Monday through Friday, between the hours of 10:00 a.m. and 4:00 p.m., Central time.Please note that the Stock Information Center will be closed from 12:00 noon day, November rd, through 12:00 noon day, November th, in observance of the Thanksgiving holiday. MBL BANK STOCK INFORMATION CENTER ank Dr., Minden, LA 71055 Stock order forms will not be accepted at any MBL Bank office other than the main office. 3		[ "Exhibit 99.1 [logo] Minden Bancorp, Inc. Subscription & Community Offering Stock Order Form MBL Bank Expiration Date Stock Information Center for Stock Order Forms: , , 2010 4:00 p.m., Central time (received not postmarked) ank Dr. Minden, LA 70155 (318) 371-4122 IMPORTANT: A properly completed original stock order form must be used to subscribe for common stock. Copies of this form are not required to be accepted. Please read the Stock Ownership Guide and Stock Order Form Instructions as you complete this form. (1) Number of Shares Subscription Price × 10.00 (2) Total Payment Due Minimum number of shares: 25 shares ($250) Maximum number of shares: 40,000 shares ($400,000) Maximum number of shares for associates or group: 55,000 shares ($550,000) See Instructions.", "$ (3) Employee/Officer/Director Information oCheck here if you are an employee, officer or director of MBL Bank or a member of such person’s immediate family living in the same household. (4) Method of Payment by Check Total Check Amount $ Enclosed is a check, bank draft or money order payable to Minden Bancorp, Inc. in the amount indicated here.Cash may be used only if delivered in person to MBL Bank’s main office. • (5) Method of Payment by Withdrawal - The undersigned authorizes withdrawal from the following account(s) at MBL Bank.There is no early withdrawal penalty for this form of payment.Individual Retirement Accounts maintained at MBL Bank cannot be used unless special transfer arrangements are made. Bank Use Account Number(s) To Withdraw $ Withdrawal Amount $ • $ • (6) Purchaser Information Subscription Offering o a.", "Check here if you are an Eligible Account Holder with a deposit account(s) totaling $50.00 or more on June 30, 2009. o b. Check here if you are a Supplemental Eligible Account Holder with a deposit account(s) totaling $50.00 or more on , 2010 but are not an Eligible Account Holder. o c. Check here and list accounts below if you are an Other Member with a deposit account(s) on , 2010 but are not an Eligible Account Holder or Supplemental Eligible Account Holder. Community Offering o d. Check here if you are a community member (Indicate parish of residence in #9 below). o e. Check here if you were a shareholder of Minden Bancorp, Inc. on , 2010. Account Information List below all accounts in which you had an ownership interest as of the applicable eligibility date as indicated in a, b or c above.Failure to list all your eligible accounts, or providing incorrect information, may result in the loss of part or all of your subscription rights.Use reverse side for additional space.", "Bank Use Account Number(s) Account Title (Name(s) on Account) (7) Form of Stock Ownership & SS# or Tax ID#: SS#/Tax ID# Æ o Individual o Joint Tenants o Tenants in Common o Fiduciary (i.e., trust, estate) o Uniform Transfers to Minors Act (Indicate SS# of Minor only) o Company/Corporation/ Partnership o IRA or other qualified plan (Both Tax ID# & SS# for IRAs) SS#/Tax ID# Æ (8) Stock Registration & Address:Name and address to appear on stock certificate. Adding the names of other persons who are not owners of your qualifying account(s) will result in the loss of your subscription rights. Name: Name Continued: Mail to- Street: City: State: Zip Code: (9) Telephone Daytime/Evening ( ) ( ) Parish of Residence (10) Associates/Acting in Concert o Check here and complete the reverse side of this form if you or any associates or persons acting in concert with you have submitted other orders for shares or are current owners of existing shares of Minden Bancorp, Inc. (11) Acknowledgement - To be effective, this stock order form must be properly completed and physically received (not postmarked) by Minden Bancorp, Inc. no later than 4:00 p.m., Central time, on , , 2010, unless extended; otherwise this stock order form and all subscription rights will be void.The undersigned agrees that after receipt by Minden Bancorp, Inc., this stock order form may not be modified, withdrawn or canceled without Minden Bancorp, Inc.’s consent and if authorization to withdraw from deposit accounts at MBL Bank has been given as payment for shares, the amount authorized for withdrawal shall not otherwise be available for withdrawal by the undersigned.", "Under penalty of perjury, I hereby certify that the Social Security or Tax ID Number and the information provided on this stock order form are true, correct and complete and that I am not subject to back-up withholding.It is understood that this stock order form will be accepted in accordance with, and subject to, the terms and conditions of the plan of conversion and reorganization of Minden Mutual Holding Company described in the accompanying prospectus. Federal regulations prohibit any person from transferring, or entering into any agreement, directly or indirectly, to transfer the legal or beneficial ownership of subscription rights or the underlying securities to the account of another.MBL Bank, Minden Mutual Holding Company, Minden Bancorp, Inc. and new Minden Bancorp, Inc. will pursue any and all legal and equitable remedies in the event they become aware of the transfer of subscription rights and will not honor orders known by them to involve such transfer.Under penalty of perjury, I certify that I am purchasing shares solely for my account and that there is no agreement or understanding regarding the sale or transfer of such shares, or my right to subscribe for shares. By signing below, I also acknowledge that I have read the Certification Form on the reverse side of this form.", "Bank Use Signature Date Signature Date Æ Æ 1 Item (6) Purchaser Account Information continued: Bank Use Account Number(s) Account Title (Name(s) on Account) Item (10) Associates/Acting In Concert continued: If you checked the box in item #10 on the reverse side of this form, list below all other orders submitted by you or your associates and list the number of shares of Minden Bancorp, Inc. currently owned by you or your associates (as defined below) or by persons acting in concert with you (also defined below). Name(s) listed on other stock order forms Number of shares ordered Name(s) of existing shareholders Number of shares owned Associate - The term “associate” of a particular person means: (1) a corporation or organization other than Minden Mutual Holding Company, Minden Bancorp, Inc. or MBL Bank or a majority-owned subsidiary of Minden Mutual Holding Company, Minden Bancorp, Inc. or MBL Bank of which a person is a director, officer or partner or is, directly or indirectly, the beneficial owner of 10% or more of any class of equity securities of such corporation or organization; (2) a trust or other estate in which a person has a substantial beneficial interest or as to which a person serves as a trustee or a fiduciary; and (3) any person who is related by blood or marriage to such person and who lives in the same home as such person or who is a director or officer of Minden Mutual Holding Company, Minden Bancorp, Inc. or MBL Bank or any of their subsidiaries.", "Acting in concert – The term “acting in concert” means: (1) knowing participation in a joint activity or interdependent conscious parallel action towards a common goal whether or not pursuant to an express agreement or understanding; or (2) a combination or pooling of voting or other interests in the securities of an issuer for a common purpose pursuant to any contract, understanding, relationship, agreement or other arrangement, whether written or otherwise. In general, a person who acts in concert with another party will also be deemed to be acting in concert with any person who is also acting in concert with that other party. We may presume that certain persons are acting in concert based upon various facts, among other things, joint account relationships, the fact that persons reside at the same address or the fact that such persons may have filed joint Schedules 13D or 13G with the Securities and Exchange Commission with respect to other companies. We have the sole discretion to determine if prospective purchasers are “associates” or “acting in concert”. CERTIFICATION FORM I ACKNOWLEDGE THAT THIS SECURITY IS NOT A DEPOSIT OR ACCOUNT AND IS NOT FEDERALLY INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, AND IS NOT INSURED OR GUARANTEED BY MINDEN MUTUAL HOLDING COMPANY, MINDEN BANCORP, INC., NEW MINDEN BANCORP, INC., MBL BANK, THE FEDERAL GOVERNMENT OR BY ANY GOVERNMENT AGENCY.THE ENTIRE AMOUNT OF AN INVESTOR’S PRINCIPAL IS SUBJECT TO LOSS. If anyone asserts that this security is federally insured or guaranteed, or is as safe as an insured deposit, I should call the Office of Thrift Supervision, Consumer Response Center at 1-800-842-6929.", "I further certify that, before purchasing the common stock, par value $0.01 per share, of new Minden Bancorp, Inc. (the “Company”), which will become the holding company for MBL Bank, I received a prospectus of the Company dated , 2010 relating to such offer of common stock.The prospectus that I received contains disclosure concerning the nature of the common stock being offered by the Company and describes in the “Risk Factors” section beginning on page , the risks involved in the investment in this common stock, including but not limited to the following: Risks Related to Our Business 1. Our Loan Portfolio Includes A Significant Amount of Loans Which Have a Higher Risk of Loss than Conforming, Single-Family Residential Mortgage Loans. 2. Our Allowance for Losses on Loans May Not Be Adequate to Cover Probable Losses. 3.", "Our Loans are Concentrated to Borrowers in a Limited Geographic Area. 4. Our Results of Operations Depend Significantly on Economic Conditions and Related Uncertainties. 5. Future Changes in Interest Rates Could Reduce Our Profits. 6. Any Future Federal Deposit Insurance Corporation Insurance Premiums or Special Assessments Will Adversely Impact Our Earnings. 7. The Requirement to Account for Certain Assets at Estimated Fair Value, and a Proposal to Account for Additional Financial Assets and Liabilities at Estimated Fair Value, May Adversely Affect Our Stockholders’ Equity and Results of Operations. 8. Strong Competition Within Our Market Area Could Hurt our Profits and Slow Growth. 9. Growth of Our Franchise By Acquisition or Branching May be Difficult to Achieve. We Operate in a Highly Regulated Environment and We May Be Adversely Affected By Changes in Laws and Regulations.", "Recently Enacted Regulatory Reform Legislation May Have a Material Impact on Our Operations. We Depend on the Services of Our Management Team. Risks Related to the Offering Additional Expenses Following the Offering from New Equity Benefit Plans Will Adversely Affect Our Net Income. Our Return on Equity May Be Low Which May Negatively Impact Our Stock Price. Minden Bancorp Will Have Broad Discretion in Allocating the Proceeds of the Offering. Our New Stock Benefit Plans Will Be Dilutive. Our Stock Price May Decline When Trading Commences. There May Be a Limited Market for Our Common Stock, Which May Adversely Affect Our Stock Price. We Intend to Remain Independent Which May Mean You Will Not Receive a Takeover Premium for Your Common Stock.", "Our Stock Value May Suffer from Anti-Takeover Provisions In Our Corporate Documents, Federal Regulations and Louisiana Law that May Impede Potential Takeovers that Management Opposes. (By Signing the Front of this Form the Investor is Not Waiving Any Rights Under the Federal Securities Laws, Including the Securities Act of 1933 and the Securities Exchange Act of 1934) 2 Minden Bancorp, Inc. Stock Ownership Guide Individual Include the first name, middle initial and last name of the shareholder. Avoid the use of two initials. Please omit words that do not affect ownership rights, such as “Mrs.”, “Mr.”, “Dr.”, “special account”, “single person”, etc. Joint Tenants Joint tenants with right of survivorship may be specified to identify two or more owners. When stock is held by joint tenants with right of survivorship, ownership is intended to pass automatically to the surviving joint tenant(s) upon the death of any joint tenant. All parties must agree to the transfer or sale of shares held by joint tenants. Tenants in Common Tenants in common may also be specified to identify two or more owners. When stock is held by tenants in common, upon the death of one co-tenant, ownership of the stock will be held by the surviving co-tenant(s) and by the heirs of the deceased co-tenant. All parties must agree to the transfer or sale of shares held by tenants in common.", "Uniform Transfers to Minors Act (“UTMA”) Stock may be held in the name of a custodian for a minor under the Uniform Transfers to Minors Act of each state.There may be only one custodian and one minor designated on a stock certificate.The standard abbreviation for Custodian is “CUST”, while the Uniform Transfers to Minors Act is “UTMA”.Standard U.S. Postal Service state abbreviations should be used to describe the appropriate state.For example, stock held by John Doe as custodian for Susan Doe under the Louisiana Uniform Transfers to Minors Act will be abbreviated John Doe, CUST Susan Doe UTMA LA (use minor’s social security number).", "Fiduciaries Information provided with respect to stock to be held in a fiduciary capacity must contain the following: ● The name(s) of the fiduciary. If an individual, list the first name, middle initial and last name. If a corporation, list the full corporate title (name). If an individual and a corporation, list the corporation’s title before the individual. ● The fiduciary capacity, such as administrator, executor, personal representative, conservator, trustee, committee, etc. ● A description of the document governing the fiduciary relationship, such as a trust agreement or court order. Documentation establishing a fiduciary relationship may be required to register your stock in a fiduciary capacity. ● The date of the document governing the relationship, except that the date of a trust created by a will need not be included in the description. ● The name of the maker, donor or testator and the name of the beneficiary. An example of fiduciary ownership of stock in the case of a trust is: John Doe, Trustee Under Agreement Dated 10-1-93 for Susan Doe. Stock Order Form Instructions Items 1 and 2 - Number of Shares and Total Payment Due Fill in the number of shares that you wish to purchase and the total payment due.The amount due is determined by multiplying the number of shares by the subscription price of $10.00 per share.The minimum purchase in the subscription offering is $250 (25 shares) of common stock.As more fully described in the plan of conversion and reorganization outlined in the prospectus, the maximum purchase in any category of the subscription offering is $400,000 (40,000 shares) of common stock, and the maximum purchase in the community offering (if held) by any person, is $400,000 (40,000 shares) of common stock.No person, together with associates and persons acting in concert with such person, may purchase in the aggregate more than $550,000 (55,000 shares) of common stock.", "Item 3 - Employee/Officer/Director Information Check this box to indicate whether you are an employee, officer or director of MBL Bank or a member of such person’s immediate family living in the same household. Item 4 - Method of Payment by Check If you pay for your stock by check, bank draft or money order, indicate the total amount in this box. Payment for shares may be made by check, bank draft or money order payable to Minden Bancorp, Inc. Payment in cash can only be made by delivering it in person to the Stock Information Center located at MBL Bank’s main office.Your funds will earn interest at MBL Bank’s passbook rate until the stock offering is completed. Item 5 - Method of Payment by Withdrawal If you pay for your stock by a withdrawal from a deposit account atMBL Bank, indicate the account number(s) and the amount of your withdrawal authorization for each account. The total amount withdrawn should equal the amount of your stock purchase. There will be no penalty assessed for early withdrawals from certificate accounts used for stock purchases.", "This form of payment may not be used if your account is an Individual Retirement Account. Item 6 – Purchaser Information Subscription Offering a. Check this box if you had a deposit account(s) totaling $50.00 or more on June 30, 2009 (“Eligible Account Holder”). b. Check this box if you had a deposit account(s) totaling $50.00 or more on , 2010 but are not an Eligible Account Holder (“Supplemental Eligible Account Holder”). c. Check this box if you had a deposit account(s) on , 2010 but are not an Eligible Account Holder or Supplemental Account Holder (“Other Member”). Please list all account numbers and all names on accounts you had on these dates in order to insure proper identification of your purchase rights. Note: Failure to list all your eligible accounts, or providing incorrect information, may result in the loss of part or all of your subscription rights. Community Offering d. Check this box if you are a community member (Indicate parish of residence in item 9).", "e. Check this box if you were a shareholder of Minden Bancorp, Inc. on , 2010 Items 7 and 8 - Form of Stock Ownership, SS# or Tax ID#, Stock Registration and Mailing Address Check the box that applies to your requested form of stock ownership and indicate your social security or tax ID number(s) in item 7. Complete the requested stock registration and mailing address in item 8. The stock transfer industry has developed a uniform system of shareholder registrations that will be used in the issuance of your common stock. If you have any questions regarding the registration of your stock, please consult your legal advisor. Stock ownership must be registered in one of the ways described above under “Stock Ownership Guide.” Adding the names of other persons who are not owners of your qualifying account(s) will result in the loss of your subscription rights. Item 9 – Telephone Number(s) and County Indicate your daytime and evening telephone number(s) and county.", "We may need to call you if we have any questions regarding your order or we cannot execute your order as given. Item 10 – Associates/Acting in Concert Check this box and complete the reverse side of the stock order form if you or any associates or persons acting in concert with you (as defined on the reverse side of the stock order form) have submitted other orders for shares or are currentowners of existing shares of Minden Bancorp, Inc Item 11– Acknowledgement Please review the prospectus carefully before making an investment decision.", "Sign and date the stock order form where indicated. Before you sign, review the stock order form, including the acknowledgement and certification. Normally, one signature is required. An additional signature is required only when payment is to be made by withdrawal from a deposit account that requires multiple signatures to withdraw funds. Your properly completed signed stock order form and payment in full (or withdrawal authorization) at the subscription price must be physically received (not postmarked) by Minden Bancorp, Inc. no later than 4:00 p.m., Central time, on , 2010 or it will become void. Delivery Instructions:You may deliver your stock order form by mail using the enclosed stock order return envelope, by hand delivery, or by overnight courier to the Minden Bancorp, Inc. Stock Information Center located at MBL Bank’s main office, ank Dr., Minden, LA 71055. If you have any remaining questions, or if you would like assistance in completing your stock order form, you may call our Stock Information Center at (318) 371-4122, Monday through Friday, between the hours of 10:00 a.m. and 4:00 p.m., Central time.Please note that the Stock Information Center will be closed from 12:00 noon day, November rd, through 12:00 noon day, November th, in observance of the Thanksgiving holiday.", "MBL BANK STOCK INFORMATION CENTER ank Dr., Minden, LA 71055 Stock order forms will not be accepted at any MBL Bank office other than the main office. 3" ]	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
Citation Nr: 0609396 Decision Date: 03/31/06 Archive Date: 04/07/06 DOCKET NO. 04-14 041 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to an initial compensable rating for history of cardiomegely with labile hypertension. ATTORNEY FOR THE BOARD John Z. Jones, Counsel INTRODUCTION The veteran served from June 12, 1982 to June 19, 1982, from August 1982 to October 1985, from November 1985 to August 1993, and from April 1994 to August 1996. This appeal to the Board of Veterans' Appeals (Board) arose from a May 2003 rating decision of the Winston-Salem, North Carolina, Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO denied service connection for bilateral hearing loss but granted service connection for history of cardiomegely with labile hypertension and assigned an initial noncompensable (i.e., 0 percent) rating. The veteran appealed for a higher rating. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (when a veteran appeals his initial rating, VA must consider whether he is entitled to a "staged" rating to compensate him for times since the effective date of his award when his disability may have been more severe than at others). The claim for a higher initial rating for the cardiomegaly with labile hypertension is being remanded to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development and consideration. FINDINGS OF FACT 1. The veteran does not have hearing loss in his right ear, much less to an extent by VA standards to be considered an actual disability for compensation purposes. 2. Competent medical evidence does not show the veteran's left ear hearing loss is causally related to any incident of his military service - including noise exposure. CONCLUSION OF LAW The veteran does not have bilateral hearing loss as a result of a disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act (VCAA) The VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5106, 5107, 5126, was signed into law on November 9, 2000. Implementing regulations were created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2005). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004) (Pelegrini II). This new "fourth element" of the notice requirement comes from the language of 38 C.F.R. § 3.159(b)(1). In Pelegrini II, the United States Court of Appeals for Veterans Claims (Court) revisited the requirements imposed upon VA by the VCAA. The Court held, among other things, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a) (West 2002), to the extent possible, must be provided to a claimant before the initial unfavorable RO decision on a claim for VA benefits. Pelegrini II, 18 Vet. App. 112, 119- 20 (2004). In this case, the veteran was provided notice of the VCAA in February 2002, prior to the initial adjudication of this claim (by rating decision in May 2003). An additional VCAA notice was sent in January 2005. The February 2002 and January 2005 VCAA letters summarized the evidence needed to substantiate the claim and VA's duty to assist. They also specified the evidence the veteran was expected to provide, including the information needed to obtain both his private and VA medical records. In this way, the VCAA letters clearly satisfy the first three "elements" of the notice requirement. In addition, the January 2005 VCAA letter advised him that "If you have any evidence in your possession that pertains to your claim, please send it to us." See the VCAA letter, dated January 31, 2005 (emphasis in original). This satisfies the fourth element of Pelegrini II. During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, Nos. 01-1917 and 02-1506, which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Dingess/Hartman, slip op. at 14. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. In the present appeal, the veteran was provided notice of what type of information and evidence was needed to substantiate his claim for service connection, but he was not provided notice of the type of evidence necessary to establish a disability rating or effective date for the disability on appeal. Despite the inadequate notice provided him on these latter two elements, the Board finds no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction (i.e., RO), the Board must consider whether the veteran has been prejudiced thereby). Here, since, for the reasons discussed below, the Board will conclude that the preponderance of the evidence is against the veteran's claim for service connection, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot. The Board finds that all relevant evidence necessary for an equitable resolution of the issue on appeal has been identified and obtained, to the extent possible. The evidence of record includes service medical records (SMRs), VA and private medical records, and the report of a VA examination. The veteran has not identified any outstanding evidence. He has been given ample opportunity to present evidence and argument in support of his claim. See 38 C.F.R. § 3.103 (2005). In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal, and for the reasons expressed above finds that the development of the claim has been consistent with the provisions of this law. Accordingly, the Board will proceed to a decision on the merits. Entitlement to service connection for bilateral hearing loss. Relevant Laws and Regulations Service connection - in general Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2005). In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (2005). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of the 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 current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection presupposes a current diagnosis of the claimed disability. See Brammer v. Derwinski, 3 Vet. App. 233, 225 (1992). Service connection - hearing loss Impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz, in ISO units, is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2005). For certain chronic conditions, including organic diseases of the nervous system such as sensorineural hearing loss, service connection may be granted on a presumptive basis if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2005). This presumption, however, is rebuttable by probative evidence to the contrary. Analysis With respect to Hickson element (1), VA audiometric testing in April 2003 revealed the veteran does not have right ear hearing loss that currently meets the threshold minimum requirements of 38 C.F.R. § 3.385 to be considered a disability according to VA standards. In fact, his hearing in this ear was considered within normal limits. It is now well-settled that in order to be considered for service connection, a claimant must first have a disability (i.e., a diagnosis confirming he has the condition alleged). In Brammer v. Derwinski, 3 Vet. App. 223 (1992), the Court noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability. See also Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists). Because there is no medical evidence showing the veteran currently has hearing loss in his right ear - much less to a sufficient extent to meet the threshold minimum requirements of § 3.385 to be considered an actual disability by VA standards, his claim for right ear hearing loss must be denied. The Board realizes that audiometric testing in March 1998 arguably shows right ear hearing loss. [It is unclear whether the decibel level for 4000 hertz in the right ear is 15 or 65.] But even if the results of that evaluation show hearing loss in this ear, this does not change the fact that the much more recent April 2003 VA examination clearly shows that hearing in this ear is now within normal limits. With regard to the left ear, however, there is evidence of left ear hearing loss shown currently. Indeed, the VA audiometric testing in April 2003 showed a mild sensorineural hearing loss in this ear. Hickson element (1) has therefore been satisfied concerning this ear. With respect to Hickson element (2), in-service disease or injury, a review of the service medical records covering the veteran's periods of service reveals no evidence of hearing loss in either ear. The record reflects that hearing loss in the left ear was initially identified in March 1998, about two years after his military service (in the reserves) ended. And as mentioned, the hearing loss in this ear was confirmed during the more recent VA examination in April 2003. There are no objective clinical indications of hearing problems involving this ear prior to March 1998. However, notwithstanding the lack of medical evidence of ear disease during service, the Board believes that injury to the ears may have occurred during service. The veteran's DD Form 214 shows he was a Tank Officer in service. This type of military occupational specialty (MOS) is consistent with exposure to noise. Hickson element (2) has therefore been satisfied. But with respect to the lone remaining Hickson element (3), medical nexus, there is no medical evidence etiologically linking the hearing loss in the veteran's left ear to his military service - including to the presumed noise exposure he experienced as a Tank Officer. Indeed, according to a January 2004 memorandum, the April 2003 VA examiner specifically determined the hearing loss in this ear is not related to the veteran's military service. This examiner believes, instead, the hearing loss in this ear "is more likely attributable to exposure related to events occurring after military service than noise or other factors encountered in military service." [As an aside, the Board notes that the VA examiner also concluded that "any current or future hearing loss, R [of the right ear], is more likely attributable to normal aging or other factors unrelated to military service as hearing changes related to noise cease after a patient is no longer subjected to noise. [The veteran's] military noise exposure, for all intents and purposes, in my opinion, ceased in 1993.] The only evidence relating the veteran's left ear hearing loss to service are statements by him, personally. But his unsubstantiated lay statements are not competent medical evidence, which is required to establish his claim. It is now well settled that, as a layman without medical training, the veteran is not qualified to render medical opinions regarding matters such as diagnoses and determinations of etiology, calling for specialized medical knowledge. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); see also 38 C.F.R. § 3.159 (a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). As discussed, the medical records do not show that high frequency (sensorineural) hearing loss in the left ear was present within one year after service - but rather, not until at least two years post service. Consequently, the presumption pertaining to sensorineural hearing loss (as an organic disease of the nervous system) is not applicable here. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2005). For these reasons, Hickson element (3) has not been met and the claim must be denied because the preponderance of the evidence is unfavorable. 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER The claim for service connection for bilateral hearing loss is denied. REMAND Entitlement to an initial compensable rating for history of cardiomegely with labile hypertension. Reasons for remand VA examination The veteran's service-connected heart condition is presently evaluated as noncompensably disabling under 38 C.F.R. § 4.104, Diagnostic Codes 7005 and 7101. Under Diagnostic Code 7005, a 10 percent evaluation requires a workload of greater than 7 metabolic equivalents (METs) but not greater than 10 METs, and results in dyspnea, fatigue, angina, dizziness, or syncope; or, continuous medication. A 30 percent evaluation requires a workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or, there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent evaluation is warranted when there is more than one episode of acute congestive heart failure in the past year; or where a workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or where there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent. The maximum 100 percent evaluation requires chronic congestive heart failure, or; where a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope; or where there is left ventricular dysfunction with an ejection fraction of less than 30 percent. On VA examination in August 2002, the examiner provided estimated METs of 12-15. The veteran was afforded another examination in April 2003; however, the examination did not provide all findings needed for rating his heart condition under this code, such as the METs. In view of this, another VA examination is warranted. In addition, the Board notes that since the last examination was performed almost three years ago, another examination is needed to evaluate the current level of severity of this condition. 38 U.S.C.A. § 5103A(d) (West 2002); See e.g. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (Court determined the Board should have ordered contemporaneous examination of the veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating). VCAA Also, as indicated, during the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, Nos. 01- 1917 and 02-1506, which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim - including the degree of disability and the effective date of an award. In the present appeal, the veteran was provided notice of what type of information and evidence was needed to substantiate his claim for an increased rating, but he was not provided notice of the type of evidence necessary to establish an effective date for this disability. As this question is involved in the present appeal, this case must be remanded for proper notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), which informs him that an effective date for the award of benefits will be assigned if an increased rating is awarded, and also includes an explanation as to the type of evidence that is needed to establish an effective date. Accordingly, this claim is REMANDED to the RO (via the AMC) for the following development and consideration: 1. Send the veteran a corrective VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), which includes an explanation of the information or evidence needed to establish an effective date for the claim on appeal, as outlined by the Court in Dingess/Hartman v. Nicholson, Nos. 01- 1917 and 02-1506 (U.S. Vet. App. Mar. 3, 2006). 2. Schedule the veteran for a VA cardiology examination to determine the current severity of his service- connected heart condition. The examiner should review the claims folder in connection with the examination for the veteran's pertinent medical history. Exercise stress testing should be conducted, and the examiner should indicate whether dyspnea, fatigue, angina, dizziness, or syncope are produced at workloads of (1) three or less METs, (2) greater than three, but less than five METs, (3) greater than five, but less than seven METs, (4) greater than seven, but less than ten METs, or (5) greater than ten METs. If a laboratory determination of METs by exercise stress testing cannot be done for medical reasons, the examiner should provide an estimate of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope. The examiner also should indicate whether the veteran's cardiac condition requires continuous medication; whether there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray; whether there is evidence of chronic congestive heart failure; whether there is evidence of acute congestive heart failure within the last year and, if so, whether there was more than one episode; and whether there is any left ventricular dysfunction and, if so, whether the ejection fraction is (1) less than 30 percent, (2) 30 to 50 percent, or (3) more than 50 percent. 3. Then readjudicate the claim for a higher rating for the cardiomegaly and labile hypertension in light of the additional evidence obtained. If a higher rating is not granted to the veteran's satisfaction, send him a supplemental statement of the case and give him time to respond to it. Thereafter, the case should be returned to the Board for further appellate review. The purpose of this REMAND is to obtain additional evidence and ensure the veteran is afforded due process of law. The Board intimates no opinion, either factual or legal, as to the ultimate disposition warranted. No action is required by the veteran until contacted. The veteran has the right to submit additional evidence and argument concerning the claim 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. 2005). ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs	03-31-2006	[ "Citation Nr: 0609396 Decision Date: 03/31/06 Archive Date: 04/07/06 DOCKET NO. 04-14 041 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to an initial compensable rating for history of cardiomegely with labile hypertension. ATTORNEY FOR THE BOARD John Z. Jones, Counsel INTRODUCTION The veteran served from June 12, 1982 to June 19, 1982, from August 1982 to October 1985, from November 1985 to August 1993, and from April 1994 to August 1996.", "This appeal to the Board of Veterans' Appeals (Board) arose from a May 2003 rating decision of the Winston-Salem, North Carolina, Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO denied service connection for bilateral hearing loss but granted service connection for history of cardiomegely with labile hypertension and assigned an initial noncompensable (i.e., 0 percent) rating. The veteran appealed for a higher rating. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (when a veteran appeals his initial rating, VA must consider whether he is entitled to a \"staged\" rating to compensate him for times since the effective date of his award when his disability may have been more severe than at others). The claim for a higher initial rating for the cardiomegaly with labile hypertension is being remanded to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development and consideration. FINDINGS OF FACT 1. The veteran does not have hearing loss in his right ear, much less to an extent by VA standards to be considered an actual disability for compensation purposes. 2.", "Competent medical evidence does not show the veteran's left ear hearing loss is causally related to any incident of his military service - including noise exposure. CONCLUSION OF LAW The veteran does not have bilateral hearing loss as a result of a disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act (VCAA) The VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5106, 5107, 5126, was signed into law on November 9, 2000. Implementing regulations were created, codified at 38 C.F.R.", "§§ 3.102, 3.156(a), 3.159 and 3.326 (2005). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. Pelegrini v. Principi, 18 Vet.", "App. 112, 120-121 (2004) (Pelegrini II). This new \"fourth element\" of the notice requirement comes from the language of 38 C.F.R. § 3.159(b)(1). In Pelegrini II, the United States Court of Appeals for Veterans Claims (Court) revisited the requirements imposed upon VA by the VCAA. The Court held, among other things, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a) (West 2002), to the extent possible, must be provided to a claimant before the initial unfavorable RO decision on a claim for VA benefits. Pelegrini II, 18 Vet. App. 112, 119- 20 (2004). In this case, the veteran was provided notice of the VCAA in February 2002, prior to the initial adjudication of this claim (by rating decision in May 2003).", "An additional VCAA notice was sent in January 2005. The February 2002 and January 2005 VCAA letters summarized the evidence needed to substantiate the claim and VA's duty to assist. They also specified the evidence the veteran was expected to provide, including the information needed to obtain both his private and VA medical records. In this way, the VCAA letters clearly satisfy the first three \"elements\" of the notice requirement. In addition, the January 2005 VCAA letter advised him that \"If you have any evidence in your possession that pertains to your claim, please send it to us.\" See the VCAA letter, dated January 31, 2005 (emphasis in original). This satisfies the fourth element of Pelegrini II. During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, Nos. 01-1917 and 02-1506, which held that the VCAA notice requirements of 38 U.S.C.A.", "§ 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application.", "Dingess/Hartman, slip op. at 14. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. In the present appeal, the veteran was provided notice of what type of information and evidence was needed to substantiate his claim for service connection, but he was not provided notice of the type of evidence necessary to establish a disability rating or effective date for the disability on appeal. Despite the inadequate notice provided him on these latter two elements, the Board finds no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction (i.e., RO), the Board must consider whether the veteran has been prejudiced thereby). Here, since, for the reasons discussed below, the Board will conclude that the preponderance of the evidence is against the veteran's claim for service connection, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot.", "The Board finds that all relevant evidence necessary for an equitable resolution of the issue on appeal has been identified and obtained, to the extent possible. The evidence of record includes service medical records (SMRs), VA and private medical records, and the report of a VA examination. The veteran has not identified any outstanding evidence. He has been given ample opportunity to present evidence and argument in support of his claim. See 38 C.F.R. § 3.103 (2005). In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal, and for the reasons expressed above finds that the development of the claim has been consistent with the provisions of this law. Accordingly, the Board will proceed to a decision on the merits.", "Entitlement to service connection for bilateral hearing loss. Relevant Laws and Regulations Service connection - in general Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2005). In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (2005). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of the 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 current disability.", "Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection presupposes a current diagnosis of the claimed disability. See Brammer v. Derwinski, 3 Vet. App. 233, 225 (1992). Service connection - hearing loss Impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, and 4000 hertz, in ISO units, is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2005). For certain chronic conditions, including organic diseases of the nervous system such as sensorineural hearing loss, service connection may be granted on a presumptive basis if the disease becomes manifest to a compensable degree within one year following separation from service.", "38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2005). This presumption, however, is rebuttable by probative evidence to the contrary. Analysis With respect to Hickson element (1), VA audiometric testing in April 2003 revealed the veteran does not have right ear hearing loss that currently meets the threshold minimum requirements of 38 C.F.R. § 3.385 to be considered a disability according to VA standards. In fact, his hearing in this ear was considered within normal limits. It is now well-settled that in order to be considered for service connection, a claimant must first have a disability (i.e., a diagnosis confirming he has the condition alleged). In Brammer v. Derwinski, 3 Vet. App. 223 (1992), the Court noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability. See also Rabideau v. Derwinski, 2 Vet.", "App. 141, 143 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists). Because there is no medical evidence showing the veteran currently has hearing loss in his right ear - much less to a sufficient extent to meet the threshold minimum requirements of § 3.385 to be considered an actual disability by VA standards, his claim for right ear hearing loss must be denied. The Board realizes that audiometric testing in March 1998 arguably shows right ear hearing loss. [It is unclear whether the decibel level for 4000 hertz in the right ear is 15 or 65.] But even if the results of that evaluation show hearing loss in this ear, this does not change the fact that the much more recent April 2003 VA examination clearly shows that hearing in this ear is now within normal limits.", "With regard to the left ear, however, there is evidence of left ear hearing loss shown currently. Indeed, the VA audiometric testing in April 2003 showed a mild sensorineural hearing loss in this ear. Hickson element (1) has therefore been satisfied concerning this ear. With respect to Hickson element (2), in-service disease or injury, a review of the service medical records covering the veteran's periods of service reveals no evidence of hearing loss in either ear. The record reflects that hearing loss in the left ear was initially identified in March 1998, about two years after his military service (in the reserves) ended. And as mentioned, the hearing loss in this ear was confirmed during the more recent VA examination in April 2003. There are no objective clinical indications of hearing problems involving this ear prior to March 1998. However, notwithstanding the lack of medical evidence of ear disease during service, the Board believes that injury to the ears may have occurred during service. The veteran's DD Form 214 shows he was a Tank Officer in service. This type of military occupational specialty (MOS) is consistent with exposure to noise. Hickson element (2) has therefore been satisfied.", "But with respect to the lone remaining Hickson element (3), medical nexus, there is no medical evidence etiologically linking the hearing loss in the veteran's left ear to his military service - including to the presumed noise exposure he experienced as a Tank Officer. Indeed, according to a January 2004 memorandum, the April 2003 VA examiner specifically determined the hearing loss in this ear is not related to the veteran's military service. This examiner believes, instead, the hearing loss in this ear \"is more likely attributable to exposure related to events occurring after military service than noise or other factors encountered in military service.\" [As an aside, the Board notes that the VA examiner also concluded that \"any current or future hearing loss, R [of the right ear], is more likely attributable to normal aging or other factors unrelated to military service as hearing changes related to noise cease after a patient is no longer subjected to noise. [The veteran's] military noise exposure, for all intents and purposes, in my opinion, ceased in 1993.]", "The only evidence relating the veteran's left ear hearing loss to service are statements by him, personally. But his unsubstantiated lay statements are not competent medical evidence, which is required to establish his claim. It is now well settled that, as a layman without medical training, the veteran is not qualified to render medical opinions regarding matters such as diagnoses and determinations of etiology, calling for specialized medical knowledge. See Espiritu v. Derwinski, 2 Vet. App.", "492, 495 (1992); see also 38 C.F.R. § 3.159 (a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). As discussed, the medical records do not show that high frequency (sensorineural) hearing loss in the left ear was present within one year after service - but rather, not until at least two years post service. Consequently, the presumption pertaining to sensorineural hearing loss (as an organic disease of the nervous system) is not applicable here. See 38 U.S.C.A.", "§§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2005). For these reasons, Hickson element (3) has not been met and the claim must be denied because the preponderance of the evidence is unfavorable. 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER The claim for service connection for bilateral hearing loss is denied. REMAND Entitlement to an initial compensable rating for history of cardiomegely with labile hypertension. Reasons for remand VA examination The veteran's service-connected heart condition is presently evaluated as noncompensably disabling under 38 C.F.R. § 4.104, Diagnostic Codes 7005 and 7101. Under Diagnostic Code 7005, a 10 percent evaluation requires a workload of greater than 7 metabolic equivalents (METs) but not greater than 10 METs, and results in dyspnea, fatigue, angina, dizziness, or syncope; or, continuous medication. A 30 percent evaluation requires a workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or, there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray.", "A 60 percent evaluation is warranted when there is more than one episode of acute congestive heart failure in the past year; or where a workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or where there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent. The maximum 100 percent evaluation requires chronic congestive heart failure, or; where a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope; or where there is left ventricular dysfunction with an ejection fraction of less than 30 percent. On VA examination in August 2002, the examiner provided estimated METs of 12-15. The veteran was afforded another examination in April 2003; however, the examination did not provide all findings needed for rating his heart condition under this code, such as the METs. In view of this, another VA examination is warranted.", "In addition, the Board notes that since the last examination was performed almost three years ago, another examination is needed to evaluate the current level of severity of this condition. 38 U.S.C.A. § 5103A(d) (West 2002); See e.g. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (Court determined the Board should have ordered contemporaneous examination of the veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating). VCAA Also, as indicated, during the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, Nos.", "01- 1917 and 02-1506, which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim - including the degree of disability and the effective date of an award. In the present appeal, the veteran was provided notice of what type of information and evidence was needed to substantiate his claim for an increased rating, but he was not provided notice of the type of evidence necessary to establish an effective date for this disability. As this question is involved in the present appeal, this case must be remanded for proper notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R.", "§ 3.159(b), which informs him that an effective date for the award of benefits will be assigned if an increased rating is awarded, and also includes an explanation as to the type of evidence that is needed to establish an effective date. Accordingly, this claim is REMANDED to the RO (via the AMC) for the following development and consideration: 1. Send the veteran a corrective VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), which includes an explanation of the information or evidence needed to establish an effective date for the claim on appeal, as outlined by the Court in Dingess/Hartman v. Nicholson, Nos.", "01- 1917 and 02-1506 (U.S. Vet. App. Mar. 3, 2006). 2. Schedule the veteran for a VA cardiology examination to determine the current severity of his service- connected heart condition. The examiner should review the claims folder in connection with the examination for the veteran's pertinent medical history. Exercise stress testing should be conducted, and the examiner should indicate whether dyspnea, fatigue, angina, dizziness, or syncope are produced at workloads of (1) three or less METs, (2) greater than three, but less than five METs, (3) greater than five, but less than seven METs, (4) greater than seven, but less than ten METs, or (5) greater than ten METs. If a laboratory determination of METs by exercise stress testing cannot be done for medical reasons, the examiner should provide an estimate of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope. The examiner also should indicate whether the veteran's cardiac condition requires continuous medication; whether there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray; whether there is evidence of chronic congestive heart failure; whether there is evidence of acute congestive heart failure within the last year and, if so, whether there was more than one episode; and whether there is any left ventricular dysfunction and, if so, whether the ejection fraction is (1) less than 30 percent, (2) 30 to 50 percent, or (3) more than 50 percent.", "3. Then readjudicate the claim for a higher rating for the cardiomegaly and labile hypertension in light of the additional evidence obtained. If a higher rating is not granted to the veteran's satisfaction, send him a supplemental statement of the case and give him time to respond to it. Thereafter, the case should be returned to the Board for further appellate review. The purpose of this REMAND is to obtain additional evidence and ensure the veteran is afforded due process of law. The Board intimates no opinion, either factual or legal, as to the ultimate disposition warranted. No action is required by the veteran until contacted. The veteran has the right to submit additional evidence and argument concerning the claim 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. 2005). ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs" ]	https://drive.google.com/drive/folders/12lAd8Os7VFeqbTKi4wcqJqODjHIn0-yQ?usp=sharing	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
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 . Status Applicant’s response filed on 02/01/2022 has been entered. Claims 1,12 and 20 have been amended. No Claim has been canceled. No New Claim has been added. Claims 1-20 are still pending in this application, with claims 1,12 and 20 being independent. Response to Arguments 1. Applicant's arguments filed on 02/01/2022 on pages 16 of applicant's remark regarding Claim 1, the applicant argues that the examiner combines intelligent adaptation controller of Aaron and the machine learning model of Fu to achieve the claimed machine learning model of the applicant. Examiner respectfully disagrees with Applicant's arguments for the following reasons: Aaron teaches a method The artificial intelligence method used by Aaron is considered as a machine learning model (Aaron Para[0120]). Examiner relies on Fu for the application performance parameter which is similar to the parameters disclosed by Aaron to further enhance the controller. Nowhere in the office action, examiner tried to combine the intelligent adaptation controller of Aaron with the machine learning model of Fu. Thus, the applicant’s arguments have been fully considered but they are not persuasive. Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to SUDESH M PATIDAR whose telephone number is (571)272-2768. The examiner can normally be reached M-F - 9:00AM-6:00PM EST. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web- If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, JEFFREY RUTKOWSKI can be reached on (571)270-1215. 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 /SUDESH M PATIDAR/Examiner, Art Unit 2415 /JEFFREY M RUTKOWSKI/Supervisory Patent Examiner, Art Unit 2415	2022-02-17T15:30:58	[ "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 . Status Applicant’s response filed on 02/01/2022 has been entered. Claims 1,12 and 20 have been amended. No Claim has been canceled. No New Claim has been added. Claims 1-20 are still pending in this application, with claims 1,12 and 20 being independent. Response to Arguments 1. Applicant's arguments filed on 02/01/2022 on pages 16 of applicant's remark regarding Claim 1, the applicant argues that the examiner combines intelligent adaptation controller of Aaron and the machine learning model of Fu to achieve the claimed machine learning model of the applicant. Examiner respectfully disagrees with Applicant's arguments for the following reasons: Aaron teaches a method The artificial intelligence method used by Aaron is considered as a machine learning model (Aaron Para[0120]). Examiner relies on Fu for the application performance parameter which is similar to the parameters disclosed by Aaron to further enhance the controller.", "Nowhere in the office action, examiner tried to combine the intelligent adaptation controller of Aaron with the machine learning model of Fu. Thus, the applicant’s arguments have been fully considered but they are not persuasive. Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to SUDESH M PATIDAR whose telephone number is (571)272-2768. The examiner can normally be reached M-F - 9:00AM-6:00PM EST. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web- If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, JEFFREY RUTKOWSKI can be reached on (571)270-1215. 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 /SUDESH M PATIDAR/Examiner, Art Unit 2415 /JEFFREY M RUTKOWSKI/Supervisory Patent Examiner, Art Unit 2415" ]	https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-02-20.zip	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
METHODS OF INERTING LITHIUM-CONTAINING BATTERIES AND ASSOCIATED CONTAINERS 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 . 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 4/6/2021 has been entered. Response to Amendment In response to communication filed 4/6/2021: Claims 1 and 11 have been amended; no new matter has been entered. Previous rejections under 35 USC 102(a)(1) and 103 have been withdrawn due to amendment. Allowable Subject Matter Claims 1-4, 6-13, and 15-20 are allowed. Reasons for Allowance The following is an examiner’s statement of reasons for allowance: Claims 1, 2, 4, 9-12, and 18 were rejected under 35 U.S.C. 102(a)(1) as being anticipated by Krause et al. (WO 2011/067697 using US 2013/0115489 as an English translation). Claims 3, 6, and 19 were rejected under 35 U.S.C. 103 as being unpatentable over Krause in view of Abu-Isa (US 2005/0170238). Claim 7 was rejected under 35 U.S.C. 103 as being unpatentable over Krause in view of Matsuo et al. (US 2013/0108909). Claim 8 was rejected under 35 U.S.C. 103 as being unpatentable over Krause in view of Abu-Isa and further in view of Narendran et al. (US 2021 2006/0244421). Claims 13 and 17 were rejected under 35 U.S.C. 103 as being unpatentable over Krause. Claim 16 was rejected under 35 U.S.C. 103 as being unpatentable over Krause in view of Groff et al. (J. Hydrology, 12, 63-70, (1978)). Claim 20 was rejected under 35 U.S.C. 103 as being unpatentable over Krause in view of Eaves et al. (US 2010/0028758). Applicant has amended independent Claim 1 (and similarly independent Claim 11) to recite “at least one orifice in direct communication with the interior space” and “wherein the at least one orifice is configured to place the inerting gas in direct contact with the lithium-containing devices within the outer casings.” In contrast, Krause teaches that “heat is supplied and removed through the comparatively small forward flow 7 and return flow 8.” Krause, paragraph [0063] (emphasis added). In addition, as shown in Fig. 1 of Krause, forward flow 7 and return flow 8 are part of the heat exchanger 6a and are in communication with the body of the heat exchanger 6a rather than the interior space of the housing 2. As such, Krause fails to teach, suggest, or otherwise disclose “at least one orifice in direct communication with the interior space” and “at least one orifice [that] is configured to place the inerting gas in direct contact with the lithium-containing devices within the outer casings,” as As such, the Applicant has overcome the prior art of record and rejections under 35 USC 102(a)(1) and 103 have been withdrawn and claims 1-4, 6-13, and 15-20 are now in condition for allowance. 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 DANIEL S GATEWOOD whose telephone number is (571)270-7958. The examiner can normally be reached on M-F 9-5:30. 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 If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Ula Ruddock can be reached on 571-272-1481. 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. Daniel S. Gatewood, Ph.D. Primary Examiner Art Unit 1729 /DANIEL S GATEWOOD, Ph. D/Primary Examiner, Art Unit 1729	2021-04-16T09:40:22	[ "METHODS OF INERTING LITHIUM-CONTAINING BATTERIES AND ASSOCIATED CONTAINERS 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 . 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 4/6/2021 has been entered.", "Response to Amendment In response to communication filed 4/6/2021: Claims 1 and 11 have been amended; no new matter has been entered. Previous rejections under 35 USC 102(a)(1) and 103 have been withdrawn due to amendment. Allowable Subject Matter Claims 1-4, 6-13, and 15-20 are allowed. Reasons for Allowance The following is an examiner’s statement of reasons for allowance: Claims 1, 2, 4, 9-12, and 18 were rejected under 35 U.S.C. 102(a)(1) as being anticipated by Krause et al. (WO 2011/067697 using US 2013/0115489 as an English translation).", "Claims 3, 6, and 19 were rejected under 35 U.S.C. 103 as being unpatentable over Krause in view of Abu-Isa (US 2005/0170238). Claim 7 was rejected under 35 U.S.C. 103 as being unpatentable over Krause in view of Matsuo et al. (US 2013/0108909). Claim 8 was rejected under 35 U.S.C. 103 as being unpatentable over Krause in view of Abu-Isa and further in view of Narendran et al.", "(US 2021 2006/0244421). Claims 13 and 17 were rejected under 35 U.S.C. 103 as being unpatentable over Krause. Claim 16 was rejected under 35 U.S.C. 103 as being unpatentable over Krause in view of Groff et al. (J. Hydrology, 12, 63-70, (1978)). Claim 20 was rejected under 35 U.S.C. 103 as being unpatentable over Krause in view of Eaves et al. (US 2010/0028758). Applicant has amended independent Claim 1 (and similarly independent Claim 11) to recite “at least one orifice in direct communication with the interior space” and “wherein the at least one orifice is configured to place the inerting gas in direct contact with the lithium-containing devices within the outer casings.” In contrast, Krause teaches that “heat is supplied and removed through the comparatively small forward flow 7 and return flow 8.” Krause, paragraph [0063] (emphasis added). In addition, as shown in Fig.", "1 of Krause, forward flow 7 and return flow 8 are part of the heat exchanger 6a and are in communication with the body of the heat exchanger 6a rather than the interior space of the housing 2. As such, Krause fails to teach, suggest, or otherwise disclose “at least one orifice in direct communication with the interior space” and “at least one orifice [that] is configured to place the inerting gas in direct contact with the lithium-containing devices within the outer casings,” as As such, the Applicant has overcome the prior art of record and rejections under 35 USC 102(a)(1) and 103 have been withdrawn and claims 1-4, 6-13, and 15-20 are now in condition for allowance. 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 DANIEL S GATEWOOD whose telephone number is (571)270-7958. The examiner can normally be reached on M-F 9-5:30. 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 If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Ula Ruddock can be reached on 571-272-1481. 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.", "Daniel S. Gatewood, Ph.D. Primary Examiner Art Unit 1729 /DANIEL S GATEWOOD, Ph. D/Primary Examiner, Art Unit 1729" ]	https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-04-25.zip	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
ON PETITION FOR REHEARING May 26, 1941. Rehearing denied. *Page 422	07-05-2016	[ "ON PETITION FOR REHEARING May 26, 1941. Rehearing denied. *Page 422" ]	https://www.courtlistener.com/api/rest/v3/opinions/3548801/	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
Case: 1:18-cv-05369 Document #: 128 Filed: 05/06/20 Page 1 of 1 PageID #:3423 UNITED STATES DISTRICT COURT FOR THE Northern District of Illinois − CM/ECF LIVE, Ver 6.3.2 Eastern Division Ubiquiti Networks, Inc. Plaintiff, v. Case No.: 1:18−cv−05369 Honorable Gary Feinerman Cambium Networks, Inc., et al. Defendant. NOTIFICATION OF DOCKET ENTRY This docket entry was made by the Clerk on Wednesday, May 6, 2020: MINUTE entry before the Honorable Gary Feinerman:Pursuant to Paragraph 3 of Third Amended General Order 20−0012, the 5/12/2020 status hearing [118] is stricken and re−set for 6/10/2020 9:00 a.m. If any party would like that the hearing to be held in May 2020, the party should file a motion under Paragraph 3 of the Third Amended General Order. If any party wishes to present any other procedural issue or question to the court, the party should send an email to the Courtroom Deputy (Jackie_Deanes@ilnd.uscourts.gov) and the proposed order email box (Proposed_Order_Feinerman@ilnd.uscourts.gov), with a copy to all other counsel, and the court will respond as soon as practicable. If any party wishes to extend, shorten, or revoke in a particular case an extension granted by Paragraph 2 of the Third Amended General Order or any prior iteration of General Order 20−0012, the party should file a motion on the case docket pursuant to Paragraph 2.c of the Third Amended General Order, and shall indicate in the motion whether the relief sought is agreed or opposed. Parties may file non−emergency motions on the case docket as they see fit. Emergency relief in any case, or emergency relief from the Third Amended General Order, shall be sought in the manner set forth in Paragraphs 7−8 of the Third Amended General Order.Mailed notice.(jlj, ) ATTENTION: This notice is being sent pursuant to Rule 77(d) of the Federal Rules of Civil Procedure or Rule 49(c) of the Federal Rules of Criminal Procedure. It was generated by CM/ECF, the automated docketing system used to maintain the civil and criminal dockets of this District. If a minute order or other document is enclosed, please refer to it for additional information. For scheduled events, motion practices, recent opinions and other information, visit our web site at www.ilnd.uscourts.gov.	2020-05-06	[ "Case: 1:18-cv-05369 Document #: 128 Filed: 05/06/20 Page 1 of 1 PageID #:3423 UNITED STATES DISTRICT COURT FOR THE Northern District of Illinois − CM/ECF LIVE, Ver 6.3.2 Eastern Division Ubiquiti Networks, Inc. Plaintiff, v. Case No. : 1:18−cv−05369 Honorable Gary Feinerman Cambium Networks, Inc., et al. Defendant. NOTIFICATION OF DOCKET ENTRY This docket entry was made by the Clerk on Wednesday, May 6, 2020: MINUTE entry before the Honorable Gary Feinerman:Pursuant to Paragraph 3 of Third Amended General Order 20−0012, the 5/12/2020 status hearing [118] is stricken and re−set for 6/10/2020 9:00 a.m. If any party would like that the hearing to be held in May 2020, the party should file a motion under Paragraph 3 of the Third Amended General Order. If any party wishes to present any other procedural issue or question to the court, the party should send an email to the Courtroom Deputy (Jackie_Deanes@ilnd.uscourts.gov) and the proposed order email box (Proposed_Order_Feinerman@ilnd.uscourts.gov), with a copy to all other counsel, and the court will respond as soon as practicable. If any party wishes to extend, shorten, or revoke in a particular case an extension granted by Paragraph 2 of the Third Amended General Order or any prior iteration of General Order 20−0012, the party should file a motion on the case docket pursuant to Paragraph 2.c of the Third Amended General Order, and shall indicate in the motion whether the relief sought is agreed or opposed.", "Parties may file non−emergency motions on the case docket as they see fit. Emergency relief in any case, or emergency relief from the Third Amended General Order, shall be sought in the manner set forth in Paragraphs 7−8 of the Third Amended General Order.Mailed notice. (jlj, ) ATTENTION: This notice is being sent pursuant to Rule 77(d) of the Federal Rules of Civil Procedure or Rule 49(c) of the Federal Rules of Criminal Procedure. It was generated by CM/ECF, the automated docketing system used to maintain the civil and criminal dockets of this District. If a minute order or other document is enclosed, please refer to it for additional information. For scheduled events, motion practices, recent opinions and other information, visit our web site at www.ilnd.uscourts.gov." ]	https://www.courtlistener.com/api/rest/v3/recap-documents/133924083/	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
MEMORANDUM OPINION Nos. 04-11-00348-CR & 04-11-00349-CR Norman Gary PICKENS, Appellant v. The STATE of Texas, Appellee From the 227th Judicial District Court, Bexar County, Texas Trial Court No. 2009CR2384 Honorable Philip A. Kazen, Jr., Judge Presiding PER CURIAM Sitting: Rebecca Simmons, Justice Steven C. Hilbig, Justice Marialyn Barnard, Justice Delivered and Filed: August 3, 2011 DISMISSED In each of the trial court’s certifications in these appeals, the certification states that the case is “plea-bargain case, and the defendant has NO right of appeal.” We must dismiss an appeal “if a certification that shows the defendant has a right of appeal has not been made part of the record.” TEX. R. APP. P. 25.2(d); Dears v. State, 154 S.W.3d 610, 613 (Tex. Crim. App. 2005). 04-11-00348-CR & 04-11-00349-CR In each case, Appellant’s counsel has filed written notice with this court that counsel has reviewed the record and “can find no right of appeal for Appellant.” We construe this notice as an indication that appellant will not seek to file an amended trial court certification showing that appellant has the right of appeal. See TEX. R. APP. P. 25.2(d); 37.1; see also Daniels v. State, 110 S.W.3d 174, 177 (Tex. App.—San Antonio 2003, no pet.). In light of the records presented, we agree with Appellant’s counsel that Rule 25.2(d) requires this court to dismiss these appeals. Accordingly, these appeals are dismissed. PER CURIAM DO NOT PUBLISH -2-	10-16-2015	[ "MEMORANDUM OPINION Nos. 04-11-00348-CR & 04-11-00349-CR Norman Gary PICKENS, Appellant v. The STATE of Texas, Appellee From the 227th Judicial District Court, Bexar County, Texas Trial Court No. 2009CR2384 Honorable Philip A. Kazen, Jr., Judge Presiding PER CURIAM Sitting: Rebecca Simmons, Justice Steven C. Hilbig, Justice Marialyn Barnard, Justice Delivered and Filed: August 3, 2011 DISMISSED In each of the trial court’s certifications in these appeals, the certification states that the case is “plea-bargain case, and the defendant has NO right of appeal.” We must dismiss an appeal “if a certification that shows the defendant has a right of appeal has not been made part of the record.” TEX. R. APP. P. 25.2(d); Dears v. State, 154 S.W.3d 610, 613 (Tex. Crim. App. 2005). 04-11-00348-CR & 04-11-00349-CR In each case, Appellant’s counsel has filed written notice with this court that counsel has reviewed the record and “can find no right of appeal for Appellant.” We construe this notice as an indication that appellant will not seek to file an amended trial court certification showing that appellant has the right of appeal.", "See TEX. R. APP. P. 25.2(d); 37.1; see also Daniels v. State, 110 S.W.3d 174, 177 (Tex. App.—San Antonio 2003, no pet.). In light of the records presented, we agree with Appellant’s counsel that Rule 25.2(d) requires this court to dismiss these appeals. Accordingly, these appeals are dismissed. PER CURIAM DO NOT PUBLISH -2-" ]	https://www.courtlistener.com/api/rest/v3/opinions/3127626/	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
OPINION ELLIS, District Judge: This appeal calls upon this court to decide whether a federal court has jurisdiction under section 301 of the Labor Management Relations Act (the “LMRA”), 29 U.S.C. § 185, to entertain a claim of tor-tious interference with a collective bargaining agreement in which defendants are non-signatories of that agreement. Appellant, the International Union, United Mine Workers of America (the “Union”), appeals from the district court’s dismissal of its action, pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim upon which relief could be granted. 759 F.Supp. 1204. The district court based its ruling on a finding that it lacked jurisdiction under section 301 because none of the defendants were parties to the relevant 896collective bargaining agreement. The district court also dismissed a pendent state law claim, ruling that the cause of action was preempted by section 301 of the LMRA. We affirm. I. In reviewing a district court’s dismissal of a case pursuant to Federal Rule of Civil Procedure 12(b)(6), we accept the truth of the facts as alleged in the plaintiffs complaint. See, e.g., Goldstar (Panama) S.A v. United States, 967 F.2d 965 (4th Cir.1992). Those facts are as follows: For several years prior to 1987, the Union represented coal miners employed by five contract mining companies in the Greasy Creek area of Tazewell County, Virginia. These companies operated pursuant to contract mining agreements they had negotiated with certain subsidiaries of The Pittston Company, including Jewell Ridge Coal Corporation (“Jewell Ridge”). Each company was also a party to a collective bargaining agreement with the Union — most recently, the National Bituminous Coal Wage Agreement of 1984 (the “1984 NBCWA”). In November 1986, defendant Covenant Coal Company (“Covenant”) entered into a sublease with Jewell Ridge, thereby acquiring the coal production rights on the Greasy Creek properties. Despite their knowledge of the collective bargaining agreements between the contract mining operators and the Union, Covenant and the other defendants, individual directors and officers of Covenant,1 required the mining operators to repudiate their union contracts and then resume operations on a non-union basis, disguising their identities by changing their corporate names. On May 25, 1990, the Union filed suit against Covenant in federal district court in the Western District of Virginia. The Union’s complaint alleged a federal cause of action, under § 301 of the LMRA, for tor-tious interference with the collective bargaining agreement between the Union and the mining operators. The complaint also alleged a pendent state claim, under the law of Virginia, for tortious interference with the contract. The district court granted Covenant’s motion for dismissal of the case, ruling that section 301 of the LMRA did not confer federal jurisdiction for tort claims against non-signatories of a collective bargaining agreement. The court also ruled that the Union’s state claim was preempted by section 301. The Union appeals both rulings. II. Section 301 of the LMRA provides in relevant part: Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties.... 29 U.S.C. § 185. In Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957), the Supreme Court held that Congress intended this provision to be more than jurisdictional in nature, and instead, that the provision authorized the federal courts to fashion a body of common law related to the enforcement of collective bargaining agreements. In reaching this conclusion, the Court noted that:- some [situations] will lack express statutory sanction but will be solved by looking at the policy of the legislation and fashioning a remedy that will effectuate that policy. The range of judicial inventiveness will be determined by the nature of the problem. Id. at 457, 77 S.Ct. at 918. In the present case, the Union invites us to utilize our “judicial inventiveness” to authorize a federal cause of action, emanating from section 301, for tortious interference with a collective bargaining agreement. We de897cline to do so. Like the district court, we find that our inventiveness in this area must ultimately be constrained by the plain language of the statute. The question of whether section 301 of the LMRA confers federal jurisdiction to hear claims against non-signatories of a collective bargaining agreement for tortious interference with that agreement has occasioned a split in the circuits. The majority of courts to address the issue have refused to construe section 301 in such a way as to allow this type of action. See, e.g., United Food and Commercial Workers Union, Local No. 1564 v. Quality Plus Stores, Inc., 961 F.2d 904 (10th Cir.1992); Service, Hospital, Nursing Home & Public Employees Union, Local No. 47 v. Community Property Services, Inc., 755 F.2d 499 (6th Cir.), cert. denied, 474 U.S. 850, 106 S.Ct. 147, 88 L.Ed.2d 122 (1985); Carpenters Local Union No. 1846 v. Pratt-Famsworth, Inc., 690 F.2d 489 (5th Cir.1982); cert. denied, 464 U.S. 932, 104 S.Ct. 335, 78 L.Ed.2d 305 (1983); Loss v. Blankenship, 673 F.2d 942 (7th Cir.1982); Bowers v. Ulpiano Casal, Inc., 393 F.2d 421 (1st Cir.1968); Aacon Contracting Co., Inc. v. Ass’n of Catholic Trade Unionists, 276 F.2d 958 (2d Cir.1960), aff'g and adopting 178 F.Supp. 129 (E.D.N.Y.1959). Two circuits, however, have authorized tortious interference claims against non-signatories. See Painting & Decorating Contractors Ass’n v. Painters & Decorators Joint Committee, 707 F.2d 1067, 1070-71, n. 2 (9th Cir.1983), cert. denied, 466 U.S. 927, 104 S.Ct. 1709, 80 L.Ed.2d 182 (1984); Wilkes-Barre Publishing Co. v. Newspaper Guild of Wilkes-Barre, Local 120, 647 F.2d 372 (3d Cir.1981), cert. denied, 454 U.S. 1143, 102 S.Ct. 1003, 71 L.Ed.2d 295 (1982).2 We find the majority position to be the more persuasive. Our analysis begins, as always, with the plain language of the provision. Section 301 authorizes "[sjuits for violation of contracts between an employer and a labor organization_” 29 U.S.C. § 185 (emphasis added). Applying the most natural interpretation of this language, we find that a suit against a non-signatory of a contract cannot be considered a suit for violation of the contract. As the court below reasoned, “It is axiomatic that only a party to a contract can violate that contract. A contract governs only the conduct of the parties who have agreed to its terms.” 759 F.Supp. at 1208. Accord, Pratt-Famsworth, 690 F.2d at 500-502. The Union’s complaint does not at any point allege that Covenant itself violated the terms of a collective bargaining agreement to which it was a party. As a result, we find that the Union’s claim does not fall within the scope of section 301 of the LMRA.3 In support of the contrary position, that section 301 authorizes tortious interference claims against non-signatories, the Third Circuit, in Wilkes-Barre, noted that tor-tious interference claims often require a court to interpret a collective bargaining agreement to determine whether there has been a breach of the agreement. The court argued that federal jurisdiction must be inferred in such situations to avoid inconsistent state court interpretations of collective bargaining agreements. 647 F.2d at 380 (“It is the need for national uniformity in determining the scope of obligation agreed to in labor contracts that determines whether a federal standard is appli898cable, and which determines, incidentally, that there is concurrent state and federal subject matter jurisdiction.”). With all due respect, we believe this argument puts the cart before the horse. While uniform interpretation of collective bargaining agreements is an important consideration in cases where the federal courts have expressly granted jurisdictional authority, nowhere in the statutory scheme did Congress display an intent to make such concerns determinative of the scope of federal jurisdiction. We decline to allow generalized notions of the benefits of uniform federal interpretation of labor contracts to override the explicit statutory language of section 301 that limits federal jurisdiction to “suits for violation of [labor] contracts.” 29 U.S.C. § 185. Neither do we accept the Union’s argument that the Supreme Court’s opinion in Smith v. Evening News Association, 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962), compels adherence to the minority position. In Smith, the Court ruled there was proper jurisdiction under section 301 for an employee’s action for damages against his employer, despite the fact that the employee’s union, and not the employee himself, was party to the collective bargaining agreement. However, the Smith opinion cannot be read, as the Union urges, as a blanket holding that a party’s status as signatory or non-signatory of a collective bargaining agreement is irrelevant to the jurisdictional analysis under section 301. Rather, the Supreme Court based its holding in Smith on the fact that “individual claims ... are to a large degree inevitably intertwined with union interests.” Id. at 200, 83 S.Ct. at 270. The Court found that foreclosing jurisdiction under section 301 to individual employees “would stultify” the Congressional policy, which relies on individual claims as “the heart of the grievance and arbitration” process. Id.; see also Wooddell v. International Brotherhood of Electrical Workers, Local 71, — U.S. -, -, 112 S.Ct. 494, 499-500, 116 L.Ed.2d 419 (1991) (interpreting Smith to find jurisdiction, under section 301, for individual union member to sue local union for violation of union’s constitution and bylaws). The reasons advanced by the Smith court for construing section 301 to provide jurisdiction for the claims of individual workers carry no weight with regard to allowing claims against non-signatory defendants for tortious interference with a labor contract. Unlike the employees in Smith, non-signatory defendants have no representation in the collective bargaining process and receive no benefit from the ensuing contract. See Wooddell, — U.S. at -, 112 S.Ct. at 500 (explaining the result in Smith on the grounds that union members are “the beneficiaries of provisions of collective bargaining agreements”). Simply put, the rationale supporting non-signatory plaintiffs in Smith does not support allowing suit against the non-signatory defendants in the present case. The Smith decision must be read as a limited exception, applicable only to employees of a signatory union, to the more general rule that section 301 litigants must be parties to the relevant bargaining agreement. Although this court has not previously addressed the precise issue presented here, the prior precedent of this circuit clearly foreshadows our holding in this case. In Sine v. Local No. 992, Int’l Brotherhood of Teamsters, 730 F.2d 964 (4th Cir.1984), two union members brought suit under section 301 against their local union and the international union of which the local was a member, alleging that they had been improperly represented. This court affirmed the district court’s dismissal of the suit against the international union, on the ground that the local union, rather than the international union, was party to the collective bargaining agreement. In reaching our decision we stated, “Section 301 provides a cause of action for breach of a bargaining agreement. Consequently, suit may be brought only against the parties to the contract.” Id. at 966. While the statement in Sine was made in the context of a duty of fair representation dispute rather than a tortious interference with contract claim, we believe that the principle enunciated in Sine applies with equal force in the 899present case. Because Covenant was not a party to any agreement with the Union, it cannot be sued under the jurisdiction established by section 301. See also Fox v. Mitchell Transport Inc., 506 F.Supp. 1346, 1349 (D.Md.), aff'd mem. 671 F.2d 498 (4th Cir.1981).4 III. The district court also dismissed the Union’s pendent claim, under Virginia state law, for tortious interference with contract, ruling that the action was preempted by section 301. The law is clear that “an application of state law is preempted by § 301 ... only if such application requires the interpretation of a collective-bargaining agreement.” Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 413, 108 S.Ct. 1877, 1885, 100 L.Ed.2d 410 (1988); see also McCormick v. AT & T Technologies, Inc., 934 F.2d 531, 534-35 (4th Cir.1991) (en banc). Conducting this inquiry involves examining the separate elements of the state law cause of action to determine whether resolution of any element requires interpretation of the collective bargaining agreement. McCormick, 934 F.2d at 531. The Virginia cause of action for tortious interference with contract requires four elements: (1) the existence of a valid contractual relationship or business expectancy; (2) knowledge of the relationship or expectancy on the part of the interferor; (3) intentional interference inducing or causing the breach or termination of the relationship or expectancy; and (4) resultant damage to the party whose relationship or expectancy has been disrupted. Century 21 v. Elder, 239 Va. 637, 641, 391 S.E.2d 296 (1990) (citing Chaves v. Johnson, 230 Va. 112, 335 S.E.2d 97 (1985)). Clearly, the third element of this cause of action, requiring a breach or termination of the contractual relationship, necessitates interpretation of the agreement. Only by interpreting a contract can a court determine whether the contract has been breached. Because the Union’s state cause of action would require a court to interpret the collective bargaining agreements between the Union and the mining companies to determine whether Covenant’s actions had caused a breach of those agreements, the Union’s state claim must be found to be preempted by section 301 of the LMRA.5 We are cognizant of the apparent paradox, inherent in our decision of this case, holding that section 301 of the LMRA bars a federal cause of action for tortious interference with contract, yet simultaneously preempts the identical state law cause of action. This result is not as harsh as it would initially appear, however, because the Union is not left without a remedy. First, the Union remains free to bring suit directly against the mining companies for breach of the bargaining agreements. Second, and more closely analogous to the present action, the Union retains the right to proceed against Covenant by means of an unfair labor practice charge before the *900National Labor Relations Board.6 Because an adequate forum exists for resolution of the Union’s claims, we discern no injustice in the finding that section 301 of the LMRA serves both to bar a federal cause of action for tortious interference with a collective bargaining agreement against a non-signatory of that agreement, and to preempt a similar cause of action premised on state law. For the foregoing reasons, the order of the district court is hereby AFFIRMED. . One defendant, Bernard Simmons, was neither an officer or director of Covenant, but was the father of one of the directors and the brother of three other directors. For the sake of clarity, hereinafter all defendants will be referred to collectively as "Covenant.” . The law of the Eleventh Circuit on this topic is unclear. An earlier case apparently condoning tortious interference claims against non-signatories, Local 472, United Ass’n of Journeymen & Apprentices v. Georgia Power Co., 684 F.2d 721 (11th Cir.1982), has subsequently been contradicted by decisions of that court, without reference to that opinion. See, e.g., Xaros v. U.S. Fidelity & Guarantee Co., 820 F.2d 1176, 1181 (11th Cir.1987) ("a Section 301 suit may be brought for violation of a labor contract only against those who are parties to the contract in issue”); Laborers Local 938 Joint Health & Welfare Trust Fund v. B.R. Starnes Co., 827 F.2d 1454 (11th Cir.1987) (same). . The parties have each advanced interpretations of the legislative history of section 301 in support of their respective positions. We have considered these arguments and the legislative materials and have determined that nothing in the legislative history speaks with sufficient clarity to influence our interpretation of the plain language of the statute. . The majority of district courts within this circuit that have addressed this issue have reached the same conclusion we reach in the present case, albeit not in the context of a tortious interference claim. See, e.g., Allied Mechanical Contractors, Inc. v. Industrial Relations Council, 685 F.Supp. 552, 565 (W.D.N.C.1988) ("Only parties to the collective bargaining agreement can be brought into suits premised upon Section 301 of the LMRA.”); Fabian v. Freight Drivers & Helpers Local No. 557, 448 F.Supp. 835, 838 (D.Md.1978) ("It is axiomatic ... that a § 301 suit may be brought only against those who are parties to the contract in issue.”). One district court has found that § 301 properly encompasses tortious interference claims. See International Union, UMWA v. Eastover Mining Co., 623 F.Supp. 1141 (W.D.Va.1985). For the reasons outlined above, we reject this holding as inconsistent with the language of § 301. . There is no merit to the Union’s argument that the district court was obligated to dismiss the pendent claim without prejudice as a result of the dismissal of the federal claim. While nonprejudicial dismissal would have been permissible under the authority of United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), it was not compelled. See, e.g., Washington v. Union Carbide Corp., 870 F.2d 957, 959-60 (4th Cir.1989) (court had jurisdiction of pendent state claim, after dismissal of sole federal claim, to determine potential preemption under § 301 of the LMRA). . In fact, subsequent to the briefing in this case, an administrative law judge of the National Labor Relations Board issued a decision in Simmons Bros. Coal Corp., et al. and United Mine Workers of America, District 28, 1991 NLRB LEXIS 1284 (October 9, 1991). The NLRB decision required certain of the Respondents in those proceedings, including all of the defendants in the present action, inter alia, to (1) "make employees whole for any losses sustained by them as a result of Respondents’ failure to pay them wages and fringe benefits provided for and set forth in the 1984 NBCWA;" (2) "cease and desist from ... [flailing and refusing to pay contractually required wages to employees, and failing to remit, on behalf of its employees the contractually required payments to the UMW health and welfare and pension trust funds;" and (3) "cease and desist from ... [flailing to recognize and bargain collectively in good faith [with the Union.]” Id., slip op. at 56-57. In short, with the exception of punitive damages, the Union has now won in another forum the entire measure of relief it sought in the present action.	11-27-2022	[ "OPINION ELLIS, District Judge: This appeal calls upon this court to decide whether a federal court has jurisdiction under section 301 of the Labor Management Relations Act (the “LMRA”), 29 U.S.C. § 185, to entertain a claim of tor-tious interference with a collective bargaining agreement in which defendants are non-signatories of that agreement. Appellant, the International Union, United Mine Workers of America (the “Union”), appeals from the district court’s dismissal of its action, pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim upon which relief could be granted. 759 F.Supp. 1204. The district court based its ruling on a finding that it lacked jurisdiction under section 301 because none of the defendants were parties to the relevant 896collective bargaining agreement. The district court also dismissed a pendent state law claim, ruling that the cause of action was preempted by section 301 of the LMRA. We affirm.", "I. In reviewing a district court’s dismissal of a case pursuant to Federal Rule of Civil Procedure 12(b)(6), we accept the truth of the facts as alleged in the plaintiffs complaint. See, e.g., Goldstar (Panama) S.A v. United States, 967 F.2d 965 (4th Cir.1992). Those facts are as follows: For several years prior to 1987, the Union represented coal miners employed by five contract mining companies in the Greasy Creek area of Tazewell County, Virginia. These companies operated pursuant to contract mining agreements they had negotiated with certain subsidiaries of The Pittston Company, including Jewell Ridge Coal Corporation (“Jewell Ridge”). Each company was also a party to a collective bargaining agreement with the Union — most recently, the National Bituminous Coal Wage Agreement of 1984 (the “1984 NBCWA”). In November 1986, defendant Covenant Coal Company (“Covenant”) entered into a sublease with Jewell Ridge, thereby acquiring the coal production rights on the Greasy Creek properties.", "Despite their knowledge of the collective bargaining agreements between the contract mining operators and the Union, Covenant and the other defendants, individual directors and officers of Covenant,1 required the mining operators to repudiate their union contracts and then resume operations on a non-union basis, disguising their identities by changing their corporate names. On May 25, 1990, the Union filed suit against Covenant in federal district court in the Western District of Virginia. The Union’s complaint alleged a federal cause of action, under § 301 of the LMRA, for tor-tious interference with the collective bargaining agreement between the Union and the mining operators.", "The complaint also alleged a pendent state claim, under the law of Virginia, for tortious interference with the contract. The district court granted Covenant’s motion for dismissal of the case, ruling that section 301 of the LMRA did not confer federal jurisdiction for tort claims against non-signatories of a collective bargaining agreement. The court also ruled that the Union’s state claim was preempted by section 301. The Union appeals both rulings. II. Section 301 of the LMRA provides in relevant part: Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties.... 29 U.S.C. § 185.", "In Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957), the Supreme Court held that Congress intended this provision to be more than jurisdictional in nature, and instead, that the provision authorized the federal courts to fashion a body of common law related to the enforcement of collective bargaining agreements. In reaching this conclusion, the Court noted that:- some [situations] will lack express statutory sanction but will be solved by looking at the policy of the legislation and fashioning a remedy that will effectuate that policy. The range of judicial inventiveness will be determined by the nature of the problem. Id. at 457, 77 S.Ct. at 918. In the present case, the Union invites us to utilize our “judicial inventiveness” to authorize a federal cause of action, emanating from section 301, for tortious interference with a collective bargaining agreement. We de897cline to do so.", "Like the district court, we find that our inventiveness in this area must ultimately be constrained by the plain language of the statute. The question of whether section 301 of the LMRA confers federal jurisdiction to hear claims against non-signatories of a collective bargaining agreement for tortious interference with that agreement has occasioned a split in the circuits. The majority of courts to address the issue have refused to construe section 301 in such a way as to allow this type of action. See, e.g., United Food and Commercial Workers Union, Local No. 1564 v. Quality Plus Stores, Inc., 961 F.2d 904 (10th Cir.1992); Service, Hospital, Nursing Home & Public Employees Union, Local No. 47 v. Community Property Services, Inc., 755 F.2d 499 (6th Cir. ), cert. denied, 474 U.S. 850, 106 S.Ct. 147, 88 L.Ed.2d 122 (1985); Carpenters Local Union No. 1846 v. Pratt-Famsworth, Inc., 690 F.2d 489 (5th Cir.1982); cert.", "denied, 464 U.S. 932, 104 S.Ct. 335, 78 L.Ed.2d 305 (1983); Loss v. Blankenship, 673 F.2d 942 (7th Cir.1982); Bowers v. Ulpiano Casal, Inc., 393 F.2d 421 (1st Cir.1968); Aacon Contracting Co., Inc. v. Ass’n of Catholic Trade Unionists, 276 F.2d 958 (2d Cir.1960), aff'g and adopting 178 F.Supp. 129 (E.D.N.Y.1959). Two circuits, however, have authorized tortious interference claims against non-signatories. See Painting & Decorating Contractors Ass’n v. Painters & Decorators Joint Committee, 707 F.2d 1067, 1070-71, n. 2 (9th Cir.1983), cert. denied, 466 U.S. 927, 104 S.Ct. 1709, 80 L.Ed.2d 182 (1984); Wilkes-Barre Publishing Co. v. Newspaper Guild of Wilkes-Barre, Local 120, 647 F.2d 372 (3d Cir.1981), cert. denied, 454 U.S. 1143, 102 S.Ct. 1003, 71 L.Ed.2d 295 (1982).2 We find the majority position to be the more persuasive. Our analysis begins, as always, with the plain language of the provision. Section 301 authorizes \"[sjuits for violation of contracts between an employer and a labor organization_” 29 U.S.C.", "§ 185 (emphasis added). Applying the most natural interpretation of this language, we find that a suit against a non-signatory of a contract cannot be considered a suit for violation of the contract. As the court below reasoned, “It is axiomatic that only a party to a contract can violate that contract. A contract governs only the conduct of the parties who have agreed to its terms.” 759 F.Supp. at 1208. Accord, Pratt-Famsworth, 690 F.2d at 500-502. The Union’s complaint does not at any point allege that Covenant itself violated the terms of a collective bargaining agreement to which it was a party. As a result, we find that the Union’s claim does not fall within the scope of section 301 of the LMRA.3 In support of the contrary position, that section 301 authorizes tortious interference claims against non-signatories, the Third Circuit, in Wilkes-Barre, noted that tor-tious interference claims often require a court to interpret a collective bargaining agreement to determine whether there has been a breach of the agreement.", "The court argued that federal jurisdiction must be inferred in such situations to avoid inconsistent state court interpretations of collective bargaining agreements. 647 F.2d at 380 (“It is the need for national uniformity in determining the scope of obligation agreed to in labor contracts that determines whether a federal standard is appli898cable, and which determines, incidentally, that there is concurrent state and federal subject matter jurisdiction.”). With all due respect, we believe this argument puts the cart before the horse. While uniform interpretation of collective bargaining agreements is an important consideration in cases where the federal courts have expressly granted jurisdictional authority, nowhere in the statutory scheme did Congress display an intent to make such concerns determinative of the scope of federal jurisdiction. We decline to allow generalized notions of the benefits of uniform federal interpretation of labor contracts to override the explicit statutory language of section 301 that limits federal jurisdiction to “suits for violation of [labor] contracts.” 29 U.S.C.", "§ 185. Neither do we accept the Union’s argument that the Supreme Court’s opinion in Smith v. Evening News Association, 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962), compels adherence to the minority position. In Smith, the Court ruled there was proper jurisdiction under section 301 for an employee’s action for damages against his employer, despite the fact that the employee’s union, and not the employee himself, was party to the collective bargaining agreement. However, the Smith opinion cannot be read, as the Union urges, as a blanket holding that a party’s status as signatory or non-signatory of a collective bargaining agreement is irrelevant to the jurisdictional analysis under section 301. Rather, the Supreme Court based its holding in Smith on the fact that “individual claims ... are to a large degree inevitably intertwined with union interests.” Id. at 200, 83 S.Ct. at 270.", "The Court found that foreclosing jurisdiction under section 301 to individual employees “would stultify” the Congressional policy, which relies on individual claims as “the heart of the grievance and arbitration” process. Id. ; see also Wooddell v. International Brotherhood of Electrical Workers, Local 71, — U.S. -, -, 112 S.Ct. 494, 499-500, 116 L.Ed.2d 419 (1991) (interpreting Smith to find jurisdiction, under section 301, for individual union member to sue local union for violation of union’s constitution and bylaws). The reasons advanced by the Smith court for construing section 301 to provide jurisdiction for the claims of individual workers carry no weight with regard to allowing claims against non-signatory defendants for tortious interference with a labor contract. Unlike the employees in Smith, non-signatory defendants have no representation in the collective bargaining process and receive no benefit from the ensuing contract. See Wooddell, — U.S. at -, 112 S.Ct. at 500 (explaining the result in Smith on the grounds that union members are “the beneficiaries of provisions of collective bargaining agreements”). Simply put, the rationale supporting non-signatory plaintiffs in Smith does not support allowing suit against the non-signatory defendants in the present case. The Smith decision must be read as a limited exception, applicable only to employees of a signatory union, to the more general rule that section 301 litigants must be parties to the relevant bargaining agreement.", "Although this court has not previously addressed the precise issue presented here, the prior precedent of this circuit clearly foreshadows our holding in this case. In Sine v. Local No. 992, Int’l Brotherhood of Teamsters, 730 F.2d 964 (4th Cir.1984), two union members brought suit under section 301 against their local union and the international union of which the local was a member, alleging that they had been improperly represented. This court affirmed the district court’s dismissal of the suit against the international union, on the ground that the local union, rather than the international union, was party to the collective bargaining agreement. In reaching our decision we stated, “Section 301 provides a cause of action for breach of a bargaining agreement. Consequently, suit may be brought only against the parties to the contract.” Id. at 966. While the statement in Sine was made in the context of a duty of fair representation dispute rather than a tortious interference with contract claim, we believe that the principle enunciated in Sine applies with equal force in the 899present case.", "Because Covenant was not a party to any agreement with the Union, it cannot be sued under the jurisdiction established by section 301. See also Fox v. Mitchell Transport Inc., 506 F.Supp. 1346, 1349 (D.Md. ), aff'd mem. 671 F.2d 498 (4th Cir.1981).4 III. The district court also dismissed the Union’s pendent claim, under Virginia state law, for tortious interference with contract, ruling that the action was preempted by section 301. The law is clear that “an application of state law is preempted by § 301 ... only if such application requires the interpretation of a collective-bargaining agreement.” Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 413, 108 S.Ct. 1877, 1885, 100 L.Ed.2d 410 (1988); see also McCormick v. AT & T Technologies, Inc., 934 F.2d 531, 534-35 (4th Cir.1991) (en banc).", "Conducting this inquiry involves examining the separate elements of the state law cause of action to determine whether resolution of any element requires interpretation of the collective bargaining agreement. McCormick, 934 F.2d at 531. The Virginia cause of action for tortious interference with contract requires four elements: (1) the existence of a valid contractual relationship or business expectancy; (2) knowledge of the relationship or expectancy on the part of the interferor; (3) intentional interference inducing or causing the breach or termination of the relationship or expectancy; and (4) resultant damage to the party whose relationship or expectancy has been disrupted. Century 21 v. Elder, 239 Va. 637, 641, 391 S.E.2d 296 (1990) (citing Chaves v. Johnson, 230 Va. 112, 335 S.E.2d 97 (1985)). Clearly, the third element of this cause of action, requiring a breach or termination of the contractual relationship, necessitates interpretation of the agreement. Only by interpreting a contract can a court determine whether the contract has been breached. Because the Union’s state cause of action would require a court to interpret the collective bargaining agreements between the Union and the mining companies to determine whether Covenant’s actions had caused a breach of those agreements, the Union’s state claim must be found to be preempted by section 301 of the LMRA.5 We are cognizant of the apparent paradox, inherent in our decision of this case, holding that section 301 of the LMRA bars a federal cause of action for tortious interference with contract, yet simultaneously preempts the identical state law cause of action.", "This result is not as harsh as it would initially appear, however, because the Union is not left without a remedy. First, the Union remains free to bring suit directly against the mining companies for breach of the bargaining agreements. Second, and more closely analogous to the present action, the Union retains the right to proceed against Covenant by means of an unfair labor practice charge before the *900National Labor Relations Board.6 Because an adequate forum exists for resolution of the Union’s claims, we discern no injustice in the finding that section 301 of the LMRA serves both to bar a federal cause of action for tortious interference with a collective bargaining agreement against a non-signatory of that agreement, and to preempt a similar cause of action premised on state law.", "For the foregoing reasons, the order of the district court is hereby AFFIRMED. . One defendant, Bernard Simmons, was neither an officer or director of Covenant, but was the father of one of the directors and the brother of three other directors. For the sake of clarity, hereinafter all defendants will be referred to collectively as \"Covenant.” . The law of the Eleventh Circuit on this topic is unclear. An earlier case apparently condoning tortious interference claims against non-signatories, Local 472, United Ass’n of Journeymen & Apprentices v. Georgia Power Co., 684 F.2d 721 (11th Cir.1982), has subsequently been contradicted by decisions of that court, without reference to that opinion. See, e.g., Xaros v. U.S. Fidelity & Guarantee Co., 820 F.2d 1176, 1181 (11th Cir.1987) (\"a Section 301 suit may be brought for violation of a labor contract only against those who are parties to the contract in issue”); Laborers Local 938 Joint Health & Welfare Trust Fund v. B.R. Starnes Co., 827 F.2d 1454 (11th Cir.1987) (same). . The parties have each advanced interpretations of the legislative history of section 301 in support of their respective positions. We have considered these arguments and the legislative materials and have determined that nothing in the legislative history speaks with sufficient clarity to influence our interpretation of the plain language of the statute.", ". The majority of district courts within this circuit that have addressed this issue have reached the same conclusion we reach in the present case, albeit not in the context of a tortious interference claim. See, e.g., Allied Mechanical Contractors, Inc. v. Industrial Relations Council, 685 F.Supp. 552, 565 (W.D.N.C.1988) (\"Only parties to the collective bargaining agreement can be brought into suits premised upon Section 301 of the LMRA.”); Fabian v. Freight Drivers & Helpers Local No. 557, 448 F.Supp. 835, 838 (D.Md.1978) (\"It is axiomatic ... that a § 301 suit may be brought only against those who are parties to the contract in issue.”).", "One district court has found that § 301 properly encompasses tortious interference claims. See International Union, UMWA v. Eastover Mining Co., 623 F.Supp. 1141 (W.D.Va.1985). For the reasons outlined above, we reject this holding as inconsistent with the language of § 301. . There is no merit to the Union’s argument that the district court was obligated to dismiss the pendent claim without prejudice as a result of the dismissal of the federal claim. While nonprejudicial dismissal would have been permissible under the authority of United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct.", "1130, 16 L.Ed.2d 218 (1966), it was not compelled. See, e.g., Washington v. Union Carbide Corp., 870 F.2d 957, 959-60 (4th Cir.1989) (court had jurisdiction of pendent state claim, after dismissal of sole federal claim, to determine potential preemption under § 301 of the LMRA). . In fact, subsequent to the briefing in this case, an administrative law judge of the National Labor Relations Board issued a decision in Simmons Bros. Coal Corp., et al. and United Mine Workers of America, District 28, 1991 NLRB LEXIS 1284 (October 9, 1991). The NLRB decision required certain of the Respondents in those proceedings, including all of the defendants in the present action, inter alia, to (1) \"make employees whole for any losses sustained by them as a result of Respondents’ failure to pay them wages and fringe benefits provided for and set forth in the 1984 NBCWA;\" (2) \"cease and desist from ... [flailing and refusing to pay contractually required wages to employees, and failing to remit, on behalf of its employees the contractually required payments to the UMW health and welfare and pension trust funds;\" and (3) \"cease and desist from ... [flailing to recognize and bargain collectively in good faith [with the Union.", "]” Id., slip op. at 56-57. In short, with the exception of punitive damages, the Union has now won in another forum the entire measure of relief it sought in the present action." ]	https://www.courtlistener.com/api/rest/v3/opinions/9005700/	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
Opinion Per Curiam: The six judges who heard this appeal being equally divided, the order of the court below is affirmed. Hoffman, J., took no part in the consideration or decision of this case.	02-18-2022	[ "Opinion Per Curiam: The six judges who heard this appeal being equally divided, the order of the court below is affirmed. Hoffman, J., took no part in the consideration or decision of this case." ]	https://www.courtlistener.com/api/rest/v3/opinions/6290141/	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
**************************************************** The ‘‘officially released’’ date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the ‘‘officially released’’ date appearing in the opinion. In no event will any such motions be accepted before the ‘‘officially released’’ date. All opinions are subject to modification and technical correction prior to official publication in the Connecti- cut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Con- necticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be repro- duced and distributed without the express written per- mission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. **************************************************** DAVID GIANNONI ET AL. v. COMMISSIONER OF TRANSPORTATION (SC 19522) Rogers, C. J., and Palmer, Zarella, Eveleigh, Espinosa and Robinson, Js. Argued December 11, 2015—officially released August 9, 2016 Ronald D. Williams, Jr., for the appellant (defendant). Joseph P. Sargent, for the appellees (plaintiffs). Opinion ROBINSON, J. The plaintiffs, David Giannoni and Michelle Giannoni, brought this highway defect action pursuant to General Statutes § 13a-1441 on behalf of their child, Nicholas Giannoni (Nicholas), who was injured when he fell into a stream culvert while riding his bicycle on the sidewalk along a state highway, which ended at a private driveway and lawn shortly before the culvert. The defendant, the Commissioner of Trans- portation (commissioner), appeals from the trial court’s denial of his motion to dismiss the plaintiffs’ complaint for lack of subject matter jurisdiction on the ground of sovereign immunity.2 The commissioner argues that the trial court improperly concluded that the plaintiffs’ complaint and the evidence in this case support a cause of action, and associated waiver of the state’s sovereign immunity, under § 13a-144 because: (1) Nicholas was not a ‘‘traveler’’ on the state highway when he fell into the culvert; and (2) the culvert does not constitute a ‘‘highway defect’’ under § 13a-144. We disagree and, accordingly, affirm the judgment of the trial court. The record reveals the following undisputed facts and procedural history.3 On October 22, 2011, at approx- imately 7 p.m., Nicholas was riding his bicycle along Route 113 in Stratford (town), a highway maintained by the Department of Transportation (department), toward a friend’s house.4 After stopping at a conve- nience store on Route 113 to purchase food, he pro- ceeded northeast on Route 113. Because the convenience store was located on the southbound side of the road, and Nicholas intended to turn left onto Cutspring Road in a few hundred feet, he rode northeast against traffic on the southbound side of the road. After several minutes, Nicholas moved to the side- walk adjacent to Route 113 on the left side because ‘‘[t]he headlights were hitting [his] eyes’’ and ‘‘the cars were going pretty fast . . . .’’ This particular sidewalk ended after forty yards at a private driveway and lawn, and led directly to a stream culvert that collects and removes water from under Route 113. When the side- walk ended, Nicholas inadvertently rode his bicycle across the private driveway, over the small patch of grass, and into the culvert, injuring himself. The culvert is located approximately nine feet from the paved shoulder of the road, within the state right- of-way.5 The department maintains the culvert, which is six inches deep and constructed of cement retaining walls.6 At the time of the accident, the culvert was covered with overgrown weeds and brush. Three wooden posts warned travelers approaching from the roadway of the existence of the culvert, but no posts, signs, or barriers warned travelers approaching from the sidewalk of the culvert. Nicholas testified that he did not see the posts because they were facing another direction, the sun had set, and the headlights from oncoming traffic continued to hit his eyes. There were no street lights in the area that could have illuminated the culvert, and no crosswalk in the intersection ahead. Nicholas also testified that he had never ridden his bicycle in the area before. The plaintiffs brought the present highway defect action on behalf of Nicholas. The commissioner moved to dismiss the complaint on the ground of sovereign immunity, arguing that the plaintiffs’ claim falls outside the purview of § 13a-144. The trial court denied the commissioner’s motion, stating that ‘‘the evidence indi- cates the accident happened on the state . . . right-of- way and not a sidewalk or a lawn’’ and that ‘‘certain issues will have to be determined by the trier of fact.’’ This appeal followed. See footnote 2 of this opinion. On appeal, the commissioner renews his contention that the plaintiffs have failed to allege a cognizable highway defect claim under § 13a-144. Specifically, the commissioner claims that: (1) Nicholas was not a trav- eler on Route 113 when he fell into the culvert, but rather, a traveler on the sidewalk; and (2) the culvert does not constitute a highway defect under § 13a-144 because it is not located in an area intended for pub- lic travel.7 Before turning to the commissioner’s specific claims on appeal, we set forth certain background principles and the standard of review. ‘‘It is the established law of our state that the state is immune from suit unless the state, by appropriate legislation, consents to be sued.’’ Baker v. Ives, 162 Conn. 295, 298, 294 A.2d 290 (1972). ‘‘The legislature waived the state’s sovereign immunity from suit in certain prescribed instances by the enactment of § 13a-144.’’ Id. The statute ‘‘imposes the duty to keep the state highways in repair upon the . . . commissioner’’; (internal quotation marks omit- ted) Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 501, 876 A.2d 1148 (2005); and authorizes civil actions against the state for injuries caused by ‘‘the neglect or default of the state . . . by means of any defective highway . . . .’’ General Statutes § 13a-144; see footnote 1 of this opinion. ‘‘There being no right of action against the sovereign state at common law, the plaintiff[s] must prevail, if at all, under § 13a-144.’’ Baker v. Ives, supra, 298. ‘‘[T]he doctrine of sovereign immunity implicates [a court’s] subject matter jurisdiction and is therefore a basis for granting a motion to dismiss.’’ Amore v. Fran- kel, 228 Conn. 358, 364, 636 A.2d 786 (1994). ‘‘A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.’’ (Internal quotation marks omitted.) Kozlowski v. Commissioner of Trans- portation, supra, 274 Conn. 501. In ruling on a motion to dismiss for lack of subject matter jurisdiction, the trial court ‘‘must consider the allegations of the com- plaint in their most favorable light . . . including those facts necessarily implied from the allegations . . . .’’ (Internal quotation marks omitted.) Id. A trial court considering a motion to dismiss may, however, ‘‘encounter different situations, depending on the status of the record in the case.’’ Conboy v. State, 292 Conn. 642, 650, 974 A.2d 669 (2009). ‘‘[I]f the complaint is supplemented by undisputed facts . . . the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint. . . . Rather, those allegations are tem- pered by the light shed on them by the [supplementary undisputed facts].’’ (Citations omitted; emphasis omit- ted; internal quotation marks omitted.) Id., 651–52. Con- versely, ‘‘where a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an evidentiary hearing to establish jurisdic- tional facts. . . . Likewise, if the question of jurisdic- tion is intertwined with the merits of the case, a court cannot resolve the jurisdictional question without a hearing to evaluate those merits. . . . An evidentiary hearing is necessary because a court cannot make a critical factual [jurisdictional] finding based on memo- randa and documents submitted by the parties.’’ (Cita- tions omitted; footnotes omitted; internal quotation marks omitted.) Id., 652–54. The trial court ‘‘may [also] in its discretion choose to postpone resolution of the jurisdictional question until the parties complete further discovery or, if necessary, a full trial on the merits has occurred.’’ Id., 653 n.16. We review a trial court’s denial of a motion to dismiss on the ground of sovereign immunity, based on an appli- cation of § 13a-144, de novo. See, e.g., Serrano v. Burns, 248 Conn. 419, 425, 727 A.2d 1276 (1999). ‘‘[W]hether a highway is defective may involve issues of fact, but whether the facts alleged would, if true, amount to a highway defect according to the statute is a question of law’’ over which we exercise plenary review. (Internal quotation marks omitted.) McIntosh v. Sullivan, 274 Conn. 262, 268, 875 A.2d 459 (2005); see Serrano v. Burns, supra, 425. ‘‘In undertaking this review, we are mindful of the well established notion that, in determin- ing whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.’’ (Internal quotation marks omitted.) Conboy v. State, supra, 292 Conn. 650. I We first consider whether the complaint and the evi- dence in the record support a conclusion that Nicholas remained a traveler over the state highway when he moved to the sidewalk along Route 113. The commis- sioner claims that, as a matter of law, Nicholas was not a traveler on Route 113 because he was, instead, a traveler on the sidewalk. In response, the plaintiffs argue that a jury could find that Nicholas retained his status as a traveler over Route 113 when he moved to the sidewalk, because his travel over the sidewalk was incidental to and for a purpose connected with his travel over Route 113. We agree with the plaintiffs, and con- clude that the trial court properly denied the motion to dismiss on this ground because the record in this case would support a finding that Nicholas retained his status as a traveler on Route 113. ‘‘It is settled law that the statutory right of action is given only to a traveler on the road or sidewalk alleged to be defective.’’ Tuckel v. Argraves, 148 Conn. 355, 358, 170 A.2d 895 (1961). ‘‘A person must be on the highway for some legitimate purpose connected with travel thereon in order to obtain the protection of the statute.’’ Hay v. Hill, 137 Conn. 285, 289–90, 76 A.2d 924 (1950); see also Anderson v. Argraves, 20 Conn. Supp. 138, 143, 127 A.2d 620 (1956) (statute ‘‘provides no right of recovery to an abutting landowner for damages from a defective highway . . . [it] is designed to pro- tect travelers only’’ [internal quotation marks omitted]), aff’d, 146 Conn. 316, 150 A.2d 295 (1959). A person may, under some circumstances, traverse areas adjacent to the conventionally traveled highway while maintaining his status as a traveler entitled to bring an action under § 13a-144. For example, this court has held that a traveler on the highway may include a person traveling on the shoulder of the road; Griffith v. Berlin, 130 Conn. 84, 87, 32 A.2d 56 (1943); grassy areas abutting the road; Ferreira v. Pringle, 255 Conn. 330, 343–44, 766 A.2d 400 (2001); Baker v. Ives, supra, 162 Conn. 299–302; Hay v. Hill, supra, 137 Conn. 289–90; and even the parking lot of a rest area along the highway. Serrano v. Burns, supra, 248 Conn. 429. Travel over such areas may fall within the purview of § 13a-144 when it is ‘‘incidental’’ to travel over the highway; (inter- nal quotation marks omitted) Ferreira v. Pringle, supra, 344; and for a ‘‘purpose connected with travel thereon . . . .’’ (Internal quotation marks omitted.) Id., 342; see also O’Neil v. New Haven, 80 Conn. 154, 156–57, 67 A. 487 (1907). Indeed, travel over such areas may be necessary to meet certain ‘‘exigencies of travel’’ over the highway. Hay v. Hill, supra, 290. ‘‘[A] plaintiff is not obliged to remain seated in a vehicle proceeding on the highway. Reasonable latitude is allowed to meet the exigencies of travel.’’ Id. ‘‘[T]he question is one of degree and fact. Within reasonable limits it is for the jury.’’ Id.; see also Bellman v. West Hartford, 96 Conn. App. 387, 394, 900 A.2d 82 (2006). For example, in Ferreira v. Pringle, supra, 255 Conn. 352, we concluded that a bus passenger disembarking from a bus onto a grassy area adjacent to the highway retained his status as a traveler over the highway because ‘‘bus travel necessarily dictates that passengers disembark on the side of the road in connection with the use of the bus and for purposes of public travel.’’ Because the bus passenger did not leave the highway ‘‘for a purpose other than traveling over the highway,’’ his claim fell within the ambit of General Statutes § 13a- 149, the municipal highway defect statute.8 Id., 351; see also id., 351–55 (affirming dismissal of claim because plaintiff did not invoke statute). Similarly, in Serrano v. Burns, supra, 248 Conn. 429, this court, in reversing dismissal of an action, held that a jury reasonably could find that a pedestrian who had slipped on ice in the parking lot of a rest area along the highway was still a traveler on the highway when she fell, because her use of the rest area was ‘‘so closely related to [her] travel upon the highway . . . .’’ Id. In Hay v. Hill, supra, 137 Conn. 286–90, this court held that a motor vehicle passenger remained a traveler over the highway when she exited a vehicle, which had pulled over on the highway, walked across some shrubs and weeds next to the highway, and then fell into an unguarded culvert eight to twelve feet from the road. By contrast, when a person ‘‘voluntarily depart[s] from the traveled way, and turn[s] aside from [their] journey for a purpose in no way connected with [their] passage over the highway,’’ that person loses their sta- tus as a traveler over the highway. O’Neil v. New Haven, supra, 80 Conn. 156. For example, in O’Neil, this court held that a cart driver was not a traveler over the high- way when he left the traveled portion of the highway to use platform scales owned and operated by a private party. Id., 155–57. With respect to the driver’s apparent intention to return to the highway, this court stated: ‘‘The fact that he had but shortly before been using the street for travel, and intended to soon resume his passage over it, made him no more a traveler thereon than he would have been had his digression for an independent purpose been of longer duration . . . .’’ Id., 156–57. The salient question in the present case is, therefore, whether Nicholas, as a bicyclist, retained his status as a traveler on the highway when he moved from the shoulder of the road to the sidewalk along Route 113. On the facts of this case, we conclude that the record could support a finding that Nicholas was a traveler over the highway when he fell into the culvert, because his travel over the sidewalk was ‘‘incidental’’ to; (inter- nal quotation marks omitted) Ferreira v. Pringle, supra, 255 Conn 344; and for a ‘‘purpose connected with’’ his travel over Route 113.9 (Internal quotation marks omit- ted.) Id., 342; see also O’Neil v. New Haven, supra, 80 Conn. 156. A jury could reasonably find that Nicholas temporarily moved to the sidewalk to meet an ‘‘exi- genc[y] of travel’’ over Route 113. Hay v. Hill, supra, 137 Conn. 290. Nicholas testified that he moved to the sidewalk to avoid the fast moving, oncoming cars on the highway.10 He stated that, ‘‘[t]he headlights were hitting my eyes . . . [a]nd . . . the cars were going pretty fast, so I just thought it would be safer . . . to go on the sidewalk.’’ We have previously recognized that ‘‘modern traffic’’ may constitute an exigency requiring a traveler to depart from the traveled portion of the highway.11 (Internal quotation marks omitted.) Ferreira v. Pringle, supra, 347; see also Rusch v. Cox, 10 Conn. Supp. 521, 526 (1942) (noting that highway includes shoulder of road and concluding that ‘‘the layout [of the highway] was such as almost to amount to a trap for those, who in the night season, might drive upon the shoulder for emergency use or in the exercise of unusual caution, due to the exigency of modern traf- fic’’), aff’d, 130 Conn. 26, 31 A.2d 457 (1943). Thus, a finder of fact could determine that the ‘‘[r]easonable latitude’’ afforded to travelers on the highway may extend to a thirteen year old bicyclist moving from the shoulder of the road to the sidewalk, at night, while preparing to make a left turn. Hay v. Hill, supra, 290. A jury might also reasonably find that Nicholas left the highway altogether when he moved to the sidewalk and, consequently, lost his status as a traveler over the highway. This determination, however, is one for the fact finder. We simply hold that we cannot conclude, as a matter of law, that Nicholas ‘‘voluntarily departed from the traveled way, and turned aside from his jour- ney for a purpose in no way connected with his passage over the highway’’ at this juncture.12 (Emphasis added.) O’Neil v. New Haven, supra, 156. Rather, Nicholas’ travel over the sidewalk, driveway, and small patch of lawn reasonably could be found to be ‘‘so closely related’’ to his travel over the highway, that he retained the protections of § 13a-144 while on the sidewalk.13 Serrano v. Burns, supra, 248 Conn. 429. Relying heavily on Tuckel v. Argraves, supra, 148 Conn. 355, the commissioner and the dissent argue, however, that, as a matter of law, Nicholas was a trav- eler on the sidewalk, and not the highway, when he fell into the culvert, and thus, his travel over the driveway and small patch of grass was incidental to and for a purpose connected with his travel over the sidewalk. It is undisputed that Nicholas was traveling over the sidewalk immediately before he fell into the culvert. This fact alone, however, does not preclude a jury from finding that his travel over the sidewalk, driveway, and small patch of grass, was incidental to and for a purpose connected with his travel over Route 113. On these facts, the two are not mutually exclusive. Bicyclists may utilize the shoulders of the road or the sidewalks along a road when attempting to travel over a highway, unless prohibited by a city or town ordinance. See Gen- eral Statutes (Rev. to 2011) § 14-286 (a).14 The commis- sioner points to no ordinance of the town prohibiting bicycling on the sidewalk, and our independent research has revealed none. See Stratford Code of Ordi- nances, c. 186 (streets and sidewalks); Stratford Code of Ordinances, c. 203 (vehicles and traffic). Thus, bicy- clists in the town may be classified as travelers over the sidewalk or highway at different points throughout their journey, and whether they retain their status as a traveler over the highway when they move to the side- walk is a ‘‘question . . . of degree and fact’’ for the jury. Hay v. Hill, supra, 137 Conn. 291. Here, because Nicholas began his journey on the shoulders of the highway and moved to the sidewalk out of safety con- cerns, we cannot say, as a matter of law, that Nicholas did not retain his status as a traveler over the highway when he moved to the sidewalk and fell into the cul- vert.15 Accordingly, the trial court properly denied the commissioner’s motion to dismiss on this ground.16 II We next consider the commissioner’s claim that the trial court improperly denied his motion to dismiss because the plaintiffs failed to allege sufficient facts from which a jury could find that the culvert constitutes a highway defect actionable under § 13a-144. The plain- tiffs alleged in their complaint that the culvert is defec- tive because the commissioner failed to erect a ‘‘fence, rail, or a barrier’’ near the sidewalk to warn pedestrians and bicyclists approaching from the sidewalk of the existence of the culvert, to provide ‘‘reasonable light- ing’’ near the culvert, and/or to ‘‘reasonably maintain the area,’’ which was ‘‘overgrown with grass, foliage and . . . brush’’ that concealed the existence of the culvert. The commissioner claims, however, that the culvert cannot constitute a highway defect as a matter of law because it is in an area unintended for public travel. In response, the plaintiffs argue that because the sidewalk led directly to the culvert, and bicyclists were invited and expected to utilize the sidewalk in connec- tion with their travel over Route 113, a jury could find that the state reasonably should have expected bicy- clists to traverse the culvert area, albeit by accident. Thus, the plaintiffs assert that the state should have maintained the culvert in a manner such that bicyclists and pedestrians approaching the culvert from the side- walk would be alerted to its existence. We agree with the plaintiffs, and conclude that the record in this case could support a finding that the culvert was a highway defect under § 13a-144, because it may be an area in which the state reasonably should have expected bicy- clists and pedestrians to travel.17 ‘‘[A] highway defect is [a]ny object in, upon, or near the traveled path, which would necessarily obstruct or hinder one in the use of the road for the purpose of traveling thereon, or which, from its nature and posi- tion, would be likely to produce that result . . . .’’ (Internal quotation marks omitted.) Kozlowski v. Com- missioner of Transportation, supra, 274 Conn. 502– 503. ‘‘[T]he defect need not be a part of the roadbed itself,’’ however, ‘‘objects which have no necessary con- nection with the roadbed or public travel, which expose a person to danger, not as a traveler, but independent of the highway, do not ordinarily render the road defec- tive.’’ Comba v. Ridgefield, 177 Conn. 268, 270, 413 A.2d 859 (1979). The defective condition must also exist in an area intended for public travel, or in an area that the public is invited or reasonably expected to traverse. See Koz- lowski v. Commissioner of Transportation, supra, 274 Conn. 504–505; Chazen v. New Britain, 148 Conn. 349, 353, 170 A.2d 891 (1961). ‘‘[If] the state either invites or reasonably should expect the public to use a particu- lar area that is not directly in the roadway but that is a necessary incident to travel on the roadway, a defective condition therein may give rise to a cognizable action under the statute.’’ Kozlowski v. Commissioner of Transportation, supra, 504–505. The fact that the defec- tive condition is in an area where members of the public are ‘‘likely, and in fact encouraged, to use is an important consideration.’’ Baker v. Ives, supra, 162 Conn. 301–302. ‘‘Whether a condition in a highway constitutes a defect must be determined in each case on its own particular circumstances.’’ Chazen v. New Britain, supra, 148 Conn. 353. ‘‘[The state] is not bound to make the roads absolutely safe for travel. . . . Rather, the test is whether . . . the state has exercised reasonable care to make and keep such roads in a reasonably safe condition for the reasonably prudent traveler.’’ (Internal quotation marks omitted.) Kozlowski v. Commissioner of Transportation, supra, 274 Conn. 503. ‘‘To define in general terms the precise limits of the duty of [the commissioner] in these cases is not an easy matter . . . .’’ (Internal quotation marks omitted.) McIntosh v. Sullivan, supra, 274 Conn. 273. ‘‘Generally, the question . . . is one of fact, depending on a great variety of circumstances, and this court will find error only when the conclusion is one which could not be reasonably reached by the trier.’’ Chazen v. New Britain, supra, 353. As noted previously, this court has recognized that defective conditions in areas unintended for public travel, in the strict sense, may nonetheless qualify as highway defects if the state reasonably should have expected the public to traverse the area in connection with their travel over the highway.18 See Kozlowski v. Commissioner of Transportation, supra, 274 Conn. 504–505. For example, in Hay v. Hill, supra, 137 Conn. 286–91, this court held that an unguarded culvert eight to twelve feet from the road could constitute a highway defect, when the passenger of a motor vehicle exited the vehicle, walked across some shrubs and weeds adja- cent to the highway, and fell into the culvert. Likewise, in Baker v. Ives, supra, 162 Conn. 300–301, this court concluded that a grassy area between a parking space and sidewalk along a highway that had accumulated snow and ice could constitute a highway defect, when a motorist that had parked her car slipped and fell in the area, thirty-two feet from the road, while attempting to reach the sidewalk. The court stated in Baker that, ‘‘[t]his is not a situation where the [motorist] crossed an area not intended for pedestrian travel . . . the pub- lic in general were encouraged to use this area for parking and it was reasonably to be expected that after parking her car the [motorist] would cross the . . . area to reach the sidewalk.’’ (Citation omitted.) Id., 301. We similarly concluded in Ferreira v. Pringle, supra, 255 Conn. 334, 352, that the stub of a signpost embedded in the grass along a highway seven feet from the road could constitute a highway defect, when a passenger disembarking from a bus stepped on the signpost and injured himself. We reasoned that ‘‘it is clear . . . that the defective condition was in an area where bus pas- sengers were likely, and in fact encouraged, to disem- bark . . . .’’ (Citation omitted.) Id., 350; see also Serrano v. Burns, supra, 248 Conn. 429 (icy parking lot of rest area along highway could constitute highway defect because state invited motorists to use rest area, and there was ‘‘no significant difference’’ between area ‘‘adjacent to the traveled portion of a highway’’ and area ‘‘away from the traveled portion of the highway’’ that state invited public to use). Conversely, defective conditions in areas where the public was neither invited nor reasonably expected to traverse cannot, as a matter of law, constitute a highway defect. For instance, we held in Kozlowski v. Commis- sioner of Transportation, supra, 274 Conn. 502–504, that a catch basin with a faulty cover, located in a grass area adjacent to the highway, could not, as a matter of law, constitute a highway defect. We reasoned that ‘‘while the catch basin is near the roadway . . . it is in an area unintended for automobile or pedestrian travel.’’ Id., 504. We further reasoned that ‘‘it is clear that the public is neither invited nor expected to traverse the catch basin area.’’ Id., 505. Similarly, in Chazen v. New Britain, supra, 148 Conn. 353, this court held that an unguarded ditch five feet from the roadway could not constitute a highway defect, when a motorist fell into the ditch after parking his vehicle and crossing a patch of unmowed grass to reach a public park, rather than utilize the ‘‘traveled way’’ to the park. The court noted that ‘‘[i]n taking the route he did, [the motorist] chose to cross an area which was not intended for pedestrian travel.’’ Id., 352. The court further explained that: ‘‘When our residential streets are laid out, it is common practice to provide space for purposes other than those of ordi- nary travel. . . . The general proposition that the pub- lic is entitled to the free use of any part of a public street must be accepted with the qualification that certain portions of the street may, for the benefit and conve- nience of the public, be devoted to purposes other than travel. . . . Since it is not intended that there shall be travel on such areas, travelers who leave the way provided for them and attempt to cross such areas may not assume that the areas are free from danger or unusual conditions . . . .’’19 Id., 353–54. We conclude that the trial court properly denied the commissioner’s motion to dismiss because a jury rea- sonably could find that the state reasonably should have expected the public to traverse the culvert area, which would render the culvert a highway defect actionable under § 13a-144.20 A jury could reach this conclusion because: (1) the sidewalk led directly to the culvert; (2) the sidewalk is an area intended for public travel; and (3) bicyclists were invited and reasonably expected to utilize the sidewalk, when necessary, in connection with their travel over Route 113. See Kozlowski v. Com- missioner of Transportation, supra, 274 Conn. 504– 505. The culvert, at nine feet from the road, is nearly identical to that considered in Hay, which was eight to twelve feet from the road. See Hay v. Hill, supra, 137 Conn. 281–88. Additionally, members of the public were ‘‘likely, and in fact encouraged’’ to use the side- walk when traveling on Route 113—albeit by the town, rather than the state—as in Baker and Ferreira. See Ferreira v. Pringle, supra, 255 Conn. 350; Baker v. Ives, supra, 162 Conn. 299; see also Rivers v. New Britain, 288 Conn. 1, 22 n.18, 950 A.2d 1247 (2008) (‘‘[w]hen a municipality places a sidewalk next to a road, it invites pedestrians to use the sidewalk’’). Pedestrians were actually required to use the sidewalk; see General Stat- utes § 14-300c (a); Bellman v. West Hartford, supra, 96 Conn. App. 394 (duty under highway defect statute ‘‘extends to pedestrian travel as well as to vehicular traffic’’ [internal quotation marks omitted]); and bicy- clists could utilize the sidewalk as a ‘‘necessary inci- dent’’ to their travel over Route 113. Kozlowski v. Commissioner of Transportation, supra, 504. More importantly, because the sidewalk led directly to the culvert, a jury reasonably could find that this unique fact brings the plaintiffs’ claim within the pur- view of § 13a-144. See, e.g., Bartlett v. Metropolitan District Commission, 125 Conn. App. 149, 161, 7 A.3d 414 (2010) (storm drain maintained by municipal authority, located on sidewalk maintained by city, could constitute highway defect under § 13a-149; ‘‘[s]ince the cover of the storm drain was located on a sidewalk, it was reasonable to anticipate that the public would encounter it in the ordinary course of travel’’), cert. denied, 300 Conn. 913, 13 A.3d 1101 (2011). Thus, a jury reasonably could conclude that without posts facing the sidewalk, adequate lighting in the area, and sufficient maintenance of the brush that concealed the culvert, those using the sidewalk—bicyclists in particular— might attempt to continue their journey by crossing the driveway and grass, and inadvertently fall into the culvert without realizing that the sidewalk had ended, especially at night.21 See Hay v. Hill, supra, 137 Conn. 289 (The jury could have reasonably concluded that the state ‘‘should have corrected the defect or protected [the culvert] by a railing or both. . . . It was a question of fact.’’). This element is missing from Kozlowski and Chazen, and we find those cases distinguishable on that basis. Unlike in Kozlowski, a jury might reasonably find that bicyclists could have been expected to accidentally traverse the culvert area due to the positioning of the sidewalk and culvert. See Kozlowski v. Commissioner of Transportation, supra, 274 Conn. 504. Additionally, unlike the motorist in Chazen, a jury reasonably might find that Nicholas did not purposely ‘‘leave the way provided for [him],’’ and instead, fell into the culvert while attempting to recommence his travel over the state highway.22 Chazen v. New Britain, supra, 148 Conn. 353. The commissioner argues that, as a matter of law, a jury cannot find that the state reasonably should have expected the public to traverse the culvert area because the sidewalk ended at a private driveway and small patch of lawn shortly before the culvert. He claims that, because the driveway and lawn are on private property, members of the public were neither invited nor expected to traverse those areas and, thus, the state could not reasonably have expected members of the public to fall into the culvert. We disagree. ‘‘The term sidewalk is meant to apply to those areas that the public uses for travel.’’ (Internal quotation marks omitted.) Bellman v. West Hartford, supra, 96 Conn. App. 395. ‘‘The essential feature of a public use is that it is not confined to privileged individuals or groups whose fit- ness or eligibility is gauged by some predetermined criteria, but is open to the indefinite public. It is the indefiniteness or unrestricted quality of potential users that gives a use its public character.’’ (Internal quotation marks omitted.) Cuozzo v. Orange, 147 Conn. App. 148, 158, 82 A.3d 647 (2013), aff’d, 315 Conn. 606, 109 A.3d 903 (2015). As such, this court has not necessarily found it dispositive that a plaintiff briefly crossed private prop- erty while attempting to travel over a public way. See, e.g., Sedita v. Steinberg, 105 Conn. 1, 5–8, 134 A. 243 (1926) (jury in tort case could find that pedestrian was in ‘‘lawful use of the public highway, with the legal status of a traveler’’ when he walked on private property between buildings and curb, because space was ‘‘entirely open, and apparently open for the use of all travelers who might choose to avail themselves of it . . . and not marked off from, the sidewalk proper’’); Crogan v. Schiele, 53 Conn. 186, 197–98, 1 A. 899 (1885) (pedestrian did not necessarily cease to use highway as traveler when she stepped into unguarded opening on private property between building and sidewalk, concluding ‘‘[t]here was nothing to mark the exact line of separation between the sidewalk and the [private] lot,’’ and, thus, ‘‘[t]he entire space [from the street] to the [building] was apparently a public sidewalk: it does not appear [the pedestrian] knew anything to the con- trary . . . the [landowner] had thrown open to the pub- lic and made part of the public domain that part of his property covered by th[e] extended sidewalk’’).23 Rather, when it is unclear whether an area is ‘‘open to the public,’’ we have generally left the question to the finder of fact. Pramuka v. Cromwell, 160 Conn. App. 863, 878, 127 A.3d 320 (2015); see also id. (whether parking lot and driveways on property of public school ‘‘are open to the public or contain sufficient restrictions that would limit their public availability cannot be deter- mined on the basis of the record . . . and, in fact, may be questions more appropriately answered by a jury’’), cert. denied, 320 Conn. 908, 128 A.3d 952 (2015); Bell- man v. West Hartford, supra, 395 (court should have held evidentiary hearing to determine whether driveway of community center was ‘‘open [to] the public and . . . actually used by the public’’; issue was ‘‘question for the fact finder’’); see also Klein v. Norwalk, 305 Fed. Appx. 745, 747–48 (2d Cir. 2009) (drainage grate in municipal parking lot could constitute highway defect under § 13a-149 because pedestrians were expected and reasonably anticipated to traverse area, which was open to public, actually used by public, and incident to travel on surrounding roadways and sidewalks).24 In the present case, the sidewalk crosses at least two private driveways before the driveway leading to the culvert. Although these driveways create a temporary break in the sidewalk, the sidewalk evidently continues immediately beyond them. It may not appear to a pedes- trian or bicyclist that he or she must revert to the shoul- der of the road upon encountering these driveways, rather than simply cross the driveways and continue on the path of the sidewalk. Put differently, the presence of the driveway immediately before the culvert may not have indicated to a bicyclist or pedestrian that the sidewalk was ending. The small patch of lawn also does not appear significant enough to alert a bicyclist or pedestrian to this fact, at least in time for them to return to the road and avoid falling into the culvert.25 Indeed, Nicholas testified at his deposition that he did not real- ize the sidewalk was ending when he fell into the culvert.26 See Bartlett v. Metropolitan District Commis- sion, supra, 125 Conn. App. 161 (‘‘the term public travel refers to the normal or reasonably anticipated uses that the public makes of a highway in the ordinary course of travel’’ [internal quotation marks omitted]). More- over, all of these features—the sidewalk, part of the driveway, and the small patch of lawn—are located within the state right-of-way line. A jury might therefore conclude that the state should have reasonably expected that pedestrians or bicyclists—especially bicyclists at night—would accidentally cross the drive- way and small patch of grass and, before realizing that the sidewalk had ended, fall into the culvert.27 Nicholas did just that, and the plaintiffs have, therefore, estab- lished a cognizable highway defect claim under § 13a- 144. Accordingly, we conclude that the trial court prop- erly denied the commissioner’s motion to dismiss. The judgment is affirmed. In this opinion ROGERS, C. J., and PALMER, ZARELLA and EVELEIGH, Js., concurred. 1 General Statutes § 13a-144 provides in relevant part: ‘‘Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the Commissioner of Transportation to keep in repair . . . may bring a civil action to recover damages sustained thereby against the commissioner . . . .’’ 2 The commissioner appealed from the denial of his motion to dismiss to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1. ‘‘Despite the general rule that interlocutory rulings are not immediately appealable, the denial of a motion to dismiss based on a colorable claim of sovereign immunity is an appealable final judgment.’’ Cummings v. Dept. of Transpor- tation, 313 Conn. 197, 199 n.3, 96 A.3d 552 (2014). 3 The commissioner appears to concede that these facts are undisputed. 4 Several of Nicholas’ friends were riding their bicycles along with him. Nicholas led the group when he moved to the sidewalk. 5 The state right-of-way line extends just beyond the sidewalk. Thus, the sidewalk, culvert, and part of the driveway and lawn are all within the state right-of-way. 6 At oral argument before this court, the commissioner appeared to chal- lenge the department’s responsibility for maintaining the culvert, for the first time in this case. We decline to consider this claim because it ‘‘is well settled that claims on appeal . . . cannot be raised for the first time at oral argument before the reviewing court.’’ (Internal quotation marks omitted.) Kramer v. Petisi, 285 Conn. 674, 686 n.10, 940 A.2d 800 (2008). 7 ‘‘To prove a breach of statutory duty under [§ 13a-144], the plaintiff must prove by a preponderance of the evidence: (1) that the highway was defective as claimed; (2) that the [commissioner] actually knew of the particular defect or that, in the exercise of [his] supervision of highways in the city, [he] should have known of that defect; (3) that the [commissioner], having actual or constructive knowledge of this defect, failed to remedy it having had a reasonable time, under all the circumstances, to do so; and (4) that the defect must have been the sole proximate cause of the injuries and damages claimed, which means that the plaintiff must prove freedom from contributory negligence.’’ (Internal quotation marks omitted.) Stotler v. Dept. of Transportation, 142 Conn. App. 826, 835, 70 A.3d 114 (2013), aff’d, 313 Conn. 158, 96 A.3d 527 (2014). 8 For defective conditions in sidewalks, local roads, and bridges main- tained by municipalities, one may assert a highway defect claim under § 13a- 149. Section 13a-149 imposes a duty on municipalities equivalent to the duty imposed on the state by § 13a-144. ‘‘There is no substantial difference in the duties imposed by [§§ 13a-144 and 13a-149] . . . .’’ Comba v. Ridgefield, 177 Conn. 268, 269–70, 413 A.2d 859 (1979). As such, case law arising under § 13a-149 is instructive with respect to claims brought against the state pursuant to § 13a-144. See, e.g., McIntosh v. Sullivan, supra, 274 Conn. 266 n.4. 9 Although the facts are undisputed for purposes of the commissioner’s appeal from the denial of his motion to dismiss, the state’s ultimate liability under § 13a-144 nevertheless turns on the fact finder’s determination with respect to whether Nicholas’ travel on the sidewalk fell within the ‘‘[r]eason- able latitude’’ afforded to travelers on the highway, or whether he had ‘‘forfeited [his] rights’’ under § 13a-144. Hay v. Hill, supra, 137 Conn. 290; see Serrano v. Burns, supra, 248 Conn. 429. 10 In making this determination, we respectfully disagree with the dissent’s focus on the fact that Nicholas was riding his bicycle against traffic ‘‘in a manner contrary to established highway rules and regulations,’’ which, according to the dissent, resulted in a ‘‘self-created’’ exigency. The commis- sioner does not contend that it was improper for Nicholas to ride ‘‘against traffic’’ before moving to the sidewalk, or otherwise argue that this fact affects our analysis of whether Nicholas may be considered a traveler on the highway. 11 It is unclear from the record how ‘‘heavy’’ the traffic was on Route 113, or whether that traffic volume continued after Nicholas moved to the sidewalk. 12 Nicholas did not state in his deposition whether he planned to return to the roadway. Photographs in the record reveal that Nicholas could have continued over a grassy area toward Cutspring Road when the sidewalk ended, had he not fallen into the culvert, or returned to the shoulder of Route 113 before turning left. We respectfully disagree with the dissent’s contention that ‘‘Nicholas’ exact trajectory upon departing Route 113 is ultimately irrelevant.’’ This evidence is for the fact finder to weigh in determining whether Nicholas ‘‘turned aside from his journey for a purpose in no way connected with his passage over the highway,’’ and whether exigent circumstances were present. O’Neil v. New Haven, supra, 80 Conn. 156. It is for this precise reason that the issue is more appropriate for consideration at trial. See Conboy v. State, supra, 292 Conn. 654 (issue of sovereign immunity could not be resolved on motion to dismiss because state’s argument ‘‘turned on [the] particular resolution of [a] factual dispute’’ requiring ‘‘a full trial on the merits of the action’’). 13 The dissent’s suggestion that exigent circumstances were not present because Nicholas ‘‘voluntarily left Route 113 due to the heavy traffic’’ directly conflicts with this court’s recognition that modern traffic may constitute an exigency requiring a traveler to depart from the immediate roadway. See Ferreira v. Pringle, supra, 255 Conn. 347; Minacci v. Logudice, 126 Conn. 345, 348, 11 A.2d 354 (1940); see also Rusch v. Cox, supra, 10 Conn. Supp. 526. As such, a fact finder could reasonably conclude that exigent circumstances forced Nicholas to depart from the roadway, thus rendering him a traveler on the highway for the purposes of § 13a-144. Again, we make no judgment as to the likeliness of this finding, and simply hold that a ‘‘critical factual dispute’’ prevents us from resolving the question of the trial court’s jurisdic- tion at this juncture. Conboy v. State, supra, 292 Conn. 652. 14 General Statutes (Rev. to 2011) § 14-286 (a) provides in relevant part: ‘‘Each person operating a bicycle upon and along a sidewalk or across any roadway upon and along a crosswalk shall yield the right-of-way to any pedestrian . . . . No person shall operate a bicycle upon or along a sidewalk or across a roadway upon and along a crosswalk if such operation is prohib- ited by any ordinance of any city, town or borough . . . .’’ See also General Statutes § 14-286a (b) (‘‘[e]very person operating a bicycle solely by hand or foot power upon and along any sidewalk . . . shall be granted all of the rights and shall be subject to all of the duties applicable to pedestrians walking in such areas’’). 15 We also note that the question of whether Nicholas could also have been deemed to be a traveler on the sidewalk when he fell into the culvert is irrelevant to our analysis. The plaintiffs do not allege a defect in the sidewalk, although they could have framed the alleged defect in this manner in an effort to invoke § 13a-149. See also footnote 8 of this opinion. Rather, the plaintiffs distinctly alleged a defect in the highway actionable against the state under § 13a-144. Thus, the relevant question is whether Nicholas was a traveler over the highway when he fell into the culvert. See Tuckel v. Argraves, supra, 148 Conn. 358. 16 The dissent’s concern that our holding will ‘‘ ‘eviscerate’ ’’ the state’s sovereign immunity and ‘‘greatly increase the scope of its liability’’ under § 13a-144 is greatly exaggerated for at least three important reasons. First, not all bicyclists traveling on the sidewalk may conceivably be classified as travelers on the highway. If, for instance, a bicyclist never travels in the shoulder of the roadway itself, a jury may not be able to find that he or she was ever a traveler on the highway. Second, even if all bicyclists traveling on the sidewalk are characterized as travelers on the highway, the state will not be liable for most injuries that result from this situation. Municipali- ties, rather than the state, are generally responsible for maintaining most sidewalks, even those adjacent to state highways. See, e.g., Hornyak v. Fairfield, 135 Conn. 619, 621, 67 A.2d 562 (1949); Moleske v. MacDonald, 109 Conn. 336, 339, 146 A. 820 (1929); see General Statutes § 13a-144 (state only responsible for defects in sidewalks which commissioner has ‘‘duty . . . to keep in repair’’); see also Cartwright v. Frankel, Superior Court, judicial district of Windham, Docket No. CV-94-0048749-S (March 19, 1996) (16 Conn. L. Rptr. 322) (bicyclist could not maintain action against commis- sioner for defective condition in sidewalk abutting state highway because, as matter of law, commissioner ‘‘had no duty to maintain or repair the sidewalk’’). Third, our holding is limited to the unique facts of this case, wherein a municipal sidewalk leads directly to a hidden unguarded culvert maintained by the state. Thus, our conclusion that factual issues need to be resolved by a fact finder to determine whether the state enjoys sovereign immunity in this case will not, as the dissent suggests, ‘‘invit[e] a plethora of highway defect claims brought by plaintiffs whose injuries have only dubious connections to actual state highway defects.’’ 17 Although the facts are undisputed for purposes of this appeal from the denial of the motion to dismiss, the state’s liability nevertheless depends on a fact finder’s ultimate determination with respect to whether the state reasonably should have expected the public to traverse the culvert area. See McIntosh v. Sullivan, supra, 274 Conn. 296 (Katz, J., dissenting) (‘‘[t]o the extent that there is a question in the present case as to whether the connection to the roadbed is sufficient . . . that is a question for the trier of fact’’); Serrano v. Burns, supra, 248 Conn. 426 (‘‘ ‘[w]hether there is a defect in such proximity to the highway so as to be considered ‘‘in, upon, or near the traveled path’’ of the highway must be determined on a case- by-case basis after a proper analysis of its own particular circumstances, and is generally a question of fact for the jury, which will not be disturbed by this court unless the conclusion is one which could not be reasonably reached by the trier’ ’’). 18 We note that the commissioner does not argue that the culvert does not ‘‘ ‘obstruct or hinder’ ’’ travel over the sidewalk—and, incidentally, the highway—simply because the sidewalk ends before the culvert. Kozlowski v. Commissioner of Transportation, supra, 274 Conn. 502–503. Accordingly, we focus on the commissioner’s claim that the culvert is in an area unin- tended for public travel, and the state should not have reasonably expected members of the public to encounter it, because they would have to cross a private driveway and lawn to reach it. See Horrigan v. Washington, 144 Conn. App. 536, 545–46, 72 A.3d 1265 (jury reasonably concluded that storm drain in grassy area more than three feet from paved portion of road was not highway defect under § 13a-149; drain was in area ‘‘expected to be used by travelers, but not in a position so as to necessarily obstruct or hinder the common use of the road,’’ contrasted with obstructions such as ‘‘a pothole or an exposed culvert in the paved portion’’ of the road [internal quotation marks omitted]), cert. denied, 310 Conn. 939, 83 A.3d 344 (2013). 19 In light of Hay, we respectfully disagree with the dissent’s contention that Kozlowski and Chazen provide ‘‘clear guidance’’ on this issue. See Kozlowski v. Commissioner of Transportation, supra, 274 Conn. 502–504; Chazen v. New Britain, supra, 148 Conn. 353–54; Hay v. Hill, supra, 137 Conn. 287. Moreover, despite the dissent’s contention to the contrary, we believe that Hay bears more than ‘‘some similarity’’ to the present case. In both Hay and the present case, the defect at issue was an unguarded culvert between eight to twelve feet from the road covered in shrubbery. Hay v. Hill, supra, 286–87. Thus, we look more aptly to Hay in making our determination, despite the dissent’s characterization of Kozlowski as ‘‘most instructive.’’ See Kozlowski v. Commissioner of Transportation, supra, 499. We further disagree with the dissent’s bases for distinguishing Hay. The dissent first notes that the culvert in Hay was unmarked, ‘‘despite the state’s practice at that time of placing posts on the road side of culverts,’’ and that, in the present case, the culvert had posts facing the road. However, the plaintiff in Hay approached the culvert from the road and, thus, the existence or absence of posts facing the road was at issue. Hay v. Hill, supra, 137 Conn. 286–87. Here, because Nicholas approached the culvert from the sidewalk, the issue in this case with respect to liability is whether posts or other warnings facing the sidewalk were necessary. As such, the lack of posts facing the road in Hay is an insufficient basis for distinguishing that case. Likewise, we fail to see how the fact that Hay involved a challenge to a jury verdict—as opposed to a motion to dismiss on the ground of sovereign immunity—affects our analysis. The ultimate issue—whether a jury could reasonably find that the hidden unguarded culvert constitutes a highway defect—is the same. See Conboy v. State, supra, 292 Conn. 654. 20 As a preliminary matter, we note that it is undisputed that the culvert is located within the state right-of-way line. See Serrano v. Burns, supra, 248 Conn. 427 n.7 (‘‘[w]hether the place of injury is within the state right- of-way line is the threshold inquiry in determining the state’s liability, if any, under § 13a-144’’); see also Ferreira v. Pringle, supra, 255 Conn. 350. The culvert itself is also maintained by the state and is part of the state highway system. But see footnote 6 of this opinion. 21 We note that a police report completed on the night of the accident states that the owner of one of the residences near the culvert had informed town engineers about ‘‘the overgrown brush surrounding the . . . culvert as well as . . . [the] lack of guard rails on either side of it’’ two weeks before the accident. 22 Although the dissent criticizes us for ‘‘[b]ypassing the well settled requirement that waivers of sovereign immunity should be strictly construed in favor of the state,’’ we question whether the dissent has given sufficient consideration to the principles that: (1) when ruling on a motion to dismiss, the trial court ‘‘must consider the allegations of the complaint in their most favorable light’’; (internal quotation marks omitted) Kozlowski v. Commis- sioner of Transportation, supra, 274 Conn. 501; (2) ‘‘in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdic- tion should be indulged’’; (internal quotation marks omitted) Conboy v. State, supra, 292 Conn. 650; (3) travelers are afforded ‘‘reasonable latitude . . . to meet the exigencies of travel’’; Hay v. Hill, supra, 137 Conn. 290; and (4) ‘‘[w]hether there is a defect in such proximity to the highway so as to be considered in, upon, or near the traveled path of the highway must be determined on a case-by-case basis after a proper analysis of its own particular circumstances, and is generally a question of fact for the jury . . . .’’ (Internal quotation marks omitted.) Baker v. Ives, supra, 162 Conn. 300. In prioritizing the principle that waivers of sovereign immunity should be strictly construed in favor of the state, the dissent’s reliance on Stotler v. Dept. of Transportation, 313 Conn. 158, 187–88, 96 A.3d 527 (2014), is misplaced. That principle did not govern the result in Stotler. Stotler involved an alleged defect in the design of a highway, and this court therefore empha- sized, in concluding that the plaintiff’s claim was barred by sovereign immu- nity, that it did not fall within the ‘‘narrow exception in [Hoyt v. Danbury, 69 Conn. 341, 37 A. 1051 (1897)] to the general rule precluding liability for design defects.’’ (Emphasis added.) Stotler v. Dept. of Transportation, supra, 313 Conn. 174. Moreover, this court recognized in Stotler that, under the plaintiff’s theory of liability, based simply on the highway’s ‘‘steep downhill grade’’ and lack of safety measures, ‘‘virtually every design defect claim pertaining directly to the layout of the road would be actionable . . . . We simply cannot construe the defective highway statute in a manner that would eviscerate the general rule precluding liability for design defect claims under Hoyt and its progeny.’’ (Citations omitted; emphasis added; footnote omitted; internal quotation marks omitted.) Id., 182. The present case, by contrast, does not involve a design defect, but rather, a hidden unguarded culvert maintained by the state at the end of a municipal sidewalk. As explained previously; see footnote 16 of this opinion; our holding that genu- ine issues of material fact exist as to the state’s sovereign immunity in this unique case will not result in ‘‘virtually every’’ highway defect claim being actionable. Stotler v. Dept. of Transportation, supra, 313 Conn. 182. 23 See also Giarnese v. Litchfield, Superior Court, judicial district of Litch- field, Docket No. CV-12-6006890-S (May 6, 2013) (56 Conn. L. Rptr. 97, 98) (motorcyclist’s claim actionable under § 13a-149 because, although accident occurred on private property, road appeared to be extension of public road on which motorcyclist was traveling; motorists were ‘‘likely to mistake entry to [private] property as a continuation of a public street’’); Dawson v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV-08- 5016831-S (October 26, 2009) (denying city’s motion for summary judgment on § 13a-149 claim because issue of fact existed as to whether walkway was public sidewalk or private walkway, despite fact that walkway was on private property and installed by private developer). 24 Cf. Cuozzo v. Orange, supra, 147 Conn. App. 164 (pothole in driveway of shopping center could not constitute highway defect under § 13a-149 because driveway led to private retail stores and was not in public area that ‘‘one may reasonably anticipate is open to all . . . a myriad of restrictions of use may limit travel to certain persons, certain types of use or certain types of vehicles . . . nothing in the record . . . suggests that the driveway was open for the unrestricted use of all public travelers generally’’); Read v. Plymouth, 110 Conn. App. 657, 665–66, 955 A.2d 1255 (pedestrian’s claim failed under § 13a-149 when he fell into dumpster at town waste station because access to station was restricted to residents, and thus, not generally open to public; station was restricted to permit holding residents, open during limited hours, and guarded by locked gate during off-hours), cert. denied, 289 Conn. 955, 961 A.2d 421 (2008). 25 Contrary to the dissent’s assertions, a jury could reasonably conclude that Nicholas’ ride over the driveway and small patch of lawn was not a conscious choice and intentional forgoing of his opportunity to return to Route 113, but rather, an inadvertent mistake, especially since it was dark. We do not ‘‘speculatively suggest,’’ as the dissent asserts, that this interpreta- tion of Nicholas’ ride is the correct one; we simply use it to demonstrate that there are issues of fact that need to be decided by a fact finder in order to determine whether the state enjoys sovereign immunity from the plaintiffs’ claim. 26 Nicholas stated: ‘‘I was riding and I felt the sidewalk end. . . . I felt grass, and then I went into the ditch . . . .’’ 27 In sum, the record has not been sufficiently developed for us to deter- mine, as a matter of law, that Nicholas was not a traveler on the highway when he fell into the culvert, or that the culvert is not a highway defect. ‘‘[W]here a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss . . . .’’ (Internal quotation marks omitted.) Stotler v. Dept. of Transportation, supra, 313 Conn. 187. Rather, an evidentiary hearing may be necessary to determine these ‘‘critical factual dispute[s]’’; Conboy v. State, supra, 292 Conn. 652; or the trial court may ‘‘in its discretion choose to postpone resolution of the jurisdictional question until the parties complete further discovery or, if necessary, a full trial on the merits has occurred.’’ Id., 654 n.16. Thus, ‘‘we conclude that, at this stage of the proceedings, an unresolved factual dispute exists that renders consideration of the state’s legal argument premature.’’ Id., 645.	08-03-2016	[ "**************************************************** The ‘‘officially released’’ date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the ‘‘officially released’’ date appearing in the opinion. In no event will any such motions be accepted before the ‘‘officially released’’ date. All opinions are subject to modification and technical correction prior to official publication in the Connecti- cut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Con- necticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be repro- duced and distributed without the express written per- mission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. **************************************************** DAVID GIANNONI ET AL.", "v. COMMISSIONER OF TRANSPORTATION (SC 19522) Rogers, C. J., and Palmer, Zarella, Eveleigh, Espinosa and Robinson, Js. Argued December 11, 2015—officially released August 9, 2016 Ronald D. Williams, Jr., for the appellant (defendant). Joseph P. Sargent, for the appellees (plaintiffs). Opinion ROBINSON, J. The plaintiffs, David Giannoni and Michelle Giannoni, brought this highway defect action pursuant to General Statutes § 13a-1441 on behalf of their child, Nicholas Giannoni (Nicholas), who was injured when he fell into a stream culvert while riding his bicycle on the sidewalk along a state highway, which ended at a private driveway and lawn shortly before the culvert.", "The defendant, the Commissioner of Trans- portation (commissioner), appeals from the trial court’s denial of his motion to dismiss the plaintiffs’ complaint for lack of subject matter jurisdiction on the ground of sovereign immunity.2 The commissioner argues that the trial court improperly concluded that the plaintiffs’ complaint and the evidence in this case support a cause of action, and associated waiver of the state’s sovereign immunity, under § 13a-144 because: (1) Nicholas was not a ‘‘traveler’’ on the state highway when he fell into the culvert; and (2) the culvert does not constitute a ‘‘highway defect’’ under § 13a-144. We disagree and, accordingly, affirm the judgment of the trial court. The record reveals the following undisputed facts and procedural history.3 On October 22, 2011, at approx- imately 7 p.m., Nicholas was riding his bicycle along Route 113 in Stratford (town), a highway maintained by the Department of Transportation (department), toward a friend’s house.4 After stopping at a conve- nience store on Route 113 to purchase food, he pro- ceeded northeast on Route 113.", "Because the convenience store was located on the southbound side of the road, and Nicholas intended to turn left onto Cutspring Road in a few hundred feet, he rode northeast against traffic on the southbound side of the road. After several minutes, Nicholas moved to the side- walk adjacent to Route 113 on the left side because ‘‘[t]he headlights were hitting [his] eyes’’ and ‘‘the cars were going pretty fast . . . .’’ This particular sidewalk ended after forty yards at a private driveway and lawn, and led directly to a stream culvert that collects and removes water from under Route 113. When the side- walk ended, Nicholas inadvertently rode his bicycle across the private driveway, over the small patch of grass, and into the culvert, injuring himself. The culvert is located approximately nine feet from the paved shoulder of the road, within the state right- of-way.5 The department maintains the culvert, which is six inches deep and constructed of cement retaining walls.6 At the time of the accident, the culvert was covered with overgrown weeds and brush. Three wooden posts warned travelers approaching from the roadway of the existence of the culvert, but no posts, signs, or barriers warned travelers approaching from the sidewalk of the culvert.", "Nicholas testified that he did not see the posts because they were facing another direction, the sun had set, and the headlights from oncoming traffic continued to hit his eyes. There were no street lights in the area that could have illuminated the culvert, and no crosswalk in the intersection ahead. Nicholas also testified that he had never ridden his bicycle in the area before. The plaintiffs brought the present highway defect action on behalf of Nicholas. The commissioner moved to dismiss the complaint on the ground of sovereign immunity, arguing that the plaintiffs’ claim falls outside the purview of § 13a-144. The trial court denied the commissioner’s motion, stating that ‘‘the evidence indi- cates the accident happened on the state .", ". . right-of- way and not a sidewalk or a lawn’’ and that ‘‘certain issues will have to be determined by the trier of fact.’’ This appeal followed. See footnote 2 of this opinion. On appeal, the commissioner renews his contention that the plaintiffs have failed to allege a cognizable highway defect claim under § 13a-144. Specifically, the commissioner claims that: (1) Nicholas was not a trav- eler on Route 113 when he fell into the culvert, but rather, a traveler on the sidewalk; and (2) the culvert does not constitute a highway defect under § 13a-144 because it is not located in an area intended for pub- lic travel.7 Before turning to the commissioner’s specific claims on appeal, we set forth certain background principles and the standard of review. ‘‘It is the established law of our state that the state is immune from suit unless the state, by appropriate legislation, consents to be sued.’’ Baker v. Ives, 162 Conn. 295, 298, 294 A.2d 290 (1972).", "‘‘The legislature waived the state’s sovereign immunity from suit in certain prescribed instances by the enactment of § 13a-144.’’ Id. The statute ‘‘imposes the duty to keep the state highways in repair upon the . . . commissioner’’; (internal quotation marks omit- ted) Kozlowski v. Commissioner of Transportation, 274 Conn. 497, 501, 876 A.2d 1148 (2005); and authorizes civil actions against the state for injuries caused by ‘‘the neglect or default of the state . . . by means of any defective highway . . . .’’ General Statutes § 13a-144; see footnote 1 of this opinion. ‘‘There being no right of action against the sovereign state at common law, the plaintiff[s] must prevail, if at all, under § 13a-144.’’ Baker v. Ives, supra, 298. ‘‘[T]he doctrine of sovereign immunity implicates [a court’s] subject matter jurisdiction and is therefore a basis for granting a motion to dismiss.’’ Amore v. Fran- kel, 228 Conn. 358, 364, 636 A.2d 786 (1994).", "‘‘A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.’’ (Internal quotation marks omitted.) Kozlowski v. Commissioner of Trans- portation, supra, 274 Conn. 501. In ruling on a motion to dismiss for lack of subject matter jurisdiction, the trial court ‘‘must consider the allegations of the com- plaint in their most favorable light . . . including those facts necessarily implied from the allegations . . . .’’ (Internal quotation marks omitted.) Id. A trial court considering a motion to dismiss may, however, ‘‘encounter different situations, depending on the status of the record in the case.’’ Conboy v. State, 292 Conn. 642, 650, 974 A.2d 669 (2009). ‘‘[I]f the complaint is supplemented by undisputed facts . . .", "the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint. . . . Rather, those allegations are tem- pered by the light shed on them by the [supplementary undisputed facts].’’ (Citations omitted; emphasis omit- ted; internal quotation marks omitted.) Id., 651–52. Con- versely, ‘‘where a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss in the absence of an evidentiary hearing to establish jurisdic- tional facts. . . .", "Likewise, if the question of jurisdic- tion is intertwined with the merits of the case, a court cannot resolve the jurisdictional question without a hearing to evaluate those merits. . . . An evidentiary hearing is necessary because a court cannot make a critical factual [jurisdictional] finding based on memo- randa and documents submitted by the parties.’’ (Cita- tions omitted; footnotes omitted; internal quotation marks omitted.) Id., 652–54. The trial court ‘‘may [also] in its discretion choose to postpone resolution of the jurisdictional question until the parties complete further discovery or, if necessary, a full trial on the merits has occurred.’’ Id., 653 n.16.", "We review a trial court’s denial of a motion to dismiss on the ground of sovereign immunity, based on an appli- cation of § 13a-144, de novo. See, e.g., Serrano v. Burns, 248 Conn. 419, 425, 727 A.2d 1276 (1999). ‘‘[W]hether a highway is defective may involve issues of fact, but whether the facts alleged would, if true, amount to a highway defect according to the statute is a question of law’’ over which we exercise plenary review. (Internal quotation marks omitted.) McIntosh v. Sullivan, 274 Conn. 262, 268, 875 A.2d 459 (2005); see Serrano v. Burns, supra, 425. ‘‘In undertaking this review, we are mindful of the well established notion that, in determin- ing whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.’’ (Internal quotation marks omitted.) Conboy v. State, supra, 292 Conn. 650.", "I We first consider whether the complaint and the evi- dence in the record support a conclusion that Nicholas remained a traveler over the state highway when he moved to the sidewalk along Route 113. The commis- sioner claims that, as a matter of law, Nicholas was not a traveler on Route 113 because he was, instead, a traveler on the sidewalk. In response, the plaintiffs argue that a jury could find that Nicholas retained his status as a traveler over Route 113 when he moved to the sidewalk, because his travel over the sidewalk was incidental to and for a purpose connected with his travel over Route 113. We agree with the plaintiffs, and con- clude that the trial court properly denied the motion to dismiss on this ground because the record in this case would support a finding that Nicholas retained his status as a traveler on Route 113. ‘‘It is settled law that the statutory right of action is given only to a traveler on the road or sidewalk alleged to be defective.’’ Tuckel v. Argraves, 148 Conn. 355, 358, 170 A.2d 895 (1961). ‘‘A person must be on the highway for some legitimate purpose connected with travel thereon in order to obtain the protection of the statute.’’ Hay v. Hill, 137 Conn. 285, 289–90, 76 A.2d 924 (1950); see also Anderson v. Argraves, 20 Conn. Supp.", "138, 143, 127 A.2d 620 (1956) (statute ‘‘provides no right of recovery to an abutting landowner for damages from a defective highway . . . [it] is designed to pro- tect travelers only’’ [internal quotation marks omitted]), aff’d, 146 Conn. 316, 150 A.2d 295 (1959). A person may, under some circumstances, traverse areas adjacent to the conventionally traveled highway while maintaining his status as a traveler entitled to bring an action under § 13a-144. For example, this court has held that a traveler on the highway may include a person traveling on the shoulder of the road; Griffith v. Berlin, 130 Conn. 84, 87, 32 A.2d 56 (1943); grassy areas abutting the road; Ferreira v. Pringle, 255 Conn. 330, 343–44, 766 A.2d 400 (2001); Baker v. Ives, supra, 162 Conn. 299–302; Hay v. Hill, supra, 137 Conn. 289–90; and even the parking lot of a rest area along the highway. Serrano v. Burns, supra, 248 Conn. 429. Travel over such areas may fall within the purview of § 13a-144 when it is ‘‘incidental’’ to travel over the highway; (inter- nal quotation marks omitted) Ferreira v. Pringle, supra, 344; and for a ‘‘purpose connected with travel thereon .", ". . .’’ (Internal quotation marks omitted.) Id., 342; see also O’Neil v. New Haven, 80 Conn. 154, 156–57, 67 A. 487 (1907). Indeed, travel over such areas may be necessary to meet certain ‘‘exigencies of travel’’ over the highway. Hay v. Hill, supra, 290. ‘‘[A] plaintiff is not obliged to remain seated in a vehicle proceeding on the highway. Reasonable latitude is allowed to meet the exigencies of travel.’’ Id. ‘‘[T]he question is one of degree and fact. Within reasonable limits it is for the jury.’’ Id. ; see also Bellman v. West Hartford, 96 Conn. App. 387, 394, 900 A.2d 82 (2006).", "For example, in Ferreira v. Pringle, supra, 255 Conn. 352, we concluded that a bus passenger disembarking from a bus onto a grassy area adjacent to the highway retained his status as a traveler over the highway because ‘‘bus travel necessarily dictates that passengers disembark on the side of the road in connection with the use of the bus and for purposes of public travel.’’ Because the bus passenger did not leave the highway ‘‘for a purpose other than traveling over the highway,’’ his claim fell within the ambit of General Statutes § 13a- 149, the municipal highway defect statute.8 Id., 351; see also id., 351–55 (affirming dismissal of claim because plaintiff did not invoke statute). Similarly, in Serrano v. Burns, supra, 248 Conn. 429, this court, in reversing dismissal of an action, held that a jury reasonably could find that a pedestrian who had slipped on ice in the parking lot of a rest area along the highway was still a traveler on the highway when she fell, because her use of the rest area was ‘‘so closely related to [her] travel upon the highway . .", ". .’’ Id. In Hay v. Hill, supra, 137 Conn. 286–90, this court held that a motor vehicle passenger remained a traveler over the highway when she exited a vehicle, which had pulled over on the highway, walked across some shrubs and weeds next to the highway, and then fell into an unguarded culvert eight to twelve feet from the road. By contrast, when a person ‘‘voluntarily depart[s] from the traveled way, and turn[s] aside from [their] journey for a purpose in no way connected with [their] passage over the highway,’’ that person loses their sta- tus as a traveler over the highway. O’Neil v. New Haven, supra, 80 Conn. 156. For example, in O’Neil, this court held that a cart driver was not a traveler over the high- way when he left the traveled portion of the highway to use platform scales owned and operated by a private party. Id., 155–57. With respect to the driver’s apparent intention to return to the highway, this court stated: ‘‘The fact that he had but shortly before been using the street for travel, and intended to soon resume his passage over it, made him no more a traveler thereon than he would have been had his digression for an independent purpose been of longer duration .", ". . .’’ Id., 156–57. The salient question in the present case is, therefore, whether Nicholas, as a bicyclist, retained his status as a traveler on the highway when he moved from the shoulder of the road to the sidewalk along Route 113. On the facts of this case, we conclude that the record could support a finding that Nicholas was a traveler over the highway when he fell into the culvert, because his travel over the sidewalk was ‘‘incidental’’ to; (inter- nal quotation marks omitted) Ferreira v. Pringle, supra, 255 Conn 344; and for a ‘‘purpose connected with’’ his travel over Route 113.9 (Internal quotation marks omit- ted.) Id., 342; see also O’Neil v. New Haven, supra, 80 Conn. 156. A jury could reasonably find that Nicholas temporarily moved to the sidewalk to meet an ‘‘exi- genc[y] of travel’’ over Route 113.", "Hay v. Hill, supra, 137 Conn. 290. Nicholas testified that he moved to the sidewalk to avoid the fast moving, oncoming cars on the highway.10 He stated that, ‘‘[t]he headlights were hitting my eyes . . . [a]nd . . . the cars were going pretty fast, so I just thought it would be safer . . . to go on the sidewalk.’’ We have previously recognized that ‘‘modern traffic’’ may constitute an exigency requiring a traveler to depart from the traveled portion of the highway.11 (Internal quotation marks omitted.) Ferreira v. Pringle, supra, 347; see also Rusch v. Cox, 10 Conn. Supp. 521, 526 (1942) (noting that highway includes shoulder of road and concluding that ‘‘the layout [of the highway] was such as almost to amount to a trap for those, who in the night season, might drive upon the shoulder for emergency use or in the exercise of unusual caution, due to the exigency of modern traf- fic’’), aff’d, 130 Conn. 26, 31 A.2d 457 (1943).", "Thus, a finder of fact could determine that the ‘‘[r]easonable latitude’’ afforded to travelers on the highway may extend to a thirteen year old bicyclist moving from the shoulder of the road to the sidewalk, at night, while preparing to make a left turn. Hay v. Hill, supra, 290. A jury might also reasonably find that Nicholas left the highway altogether when he moved to the sidewalk and, consequently, lost his status as a traveler over the highway.", "This determination, however, is one for the fact finder. We simply hold that we cannot conclude, as a matter of law, that Nicholas ‘‘voluntarily departed from the traveled way, and turned aside from his jour- ney for a purpose in no way connected with his passage over the highway’’ at this juncture.12 (Emphasis added.) O’Neil v. New Haven, supra, 156. Rather, Nicholas’ travel over the sidewalk, driveway, and small patch of lawn reasonably could be found to be ‘‘so closely related’’ to his travel over the highway, that he retained the protections of § 13a-144 while on the sidewalk.13 Serrano v. Burns, supra, 248 Conn. 429. Relying heavily on Tuckel v. Argraves, supra, 148 Conn. 355, the commissioner and the dissent argue, however, that, as a matter of law, Nicholas was a trav- eler on the sidewalk, and not the highway, when he fell into the culvert, and thus, his travel over the driveway and small patch of grass was incidental to and for a purpose connected with his travel over the sidewalk. It is undisputed that Nicholas was traveling over the sidewalk immediately before he fell into the culvert.", "This fact alone, however, does not preclude a jury from finding that his travel over the sidewalk, driveway, and small patch of grass, was incidental to and for a purpose connected with his travel over Route 113. On these facts, the two are not mutually exclusive. Bicyclists may utilize the shoulders of the road or the sidewalks along a road when attempting to travel over a highway, unless prohibited by a city or town ordinance. See Gen- eral Statutes (Rev.", "to 2011) § 14-286 (a).14 The commis- sioner points to no ordinance of the town prohibiting bicycling on the sidewalk, and our independent research has revealed none. See Stratford Code of Ordi- nances, c. 186 (streets and sidewalks); Stratford Code of Ordinances, c. 203 (vehicles and traffic). Thus, bicy- clists in the town may be classified as travelers over the sidewalk or highway at different points throughout their journey, and whether they retain their status as a traveler over the highway when they move to the side- walk is a ‘‘question . . .", "of degree and fact’’ for the jury. Hay v. Hill, supra, 137 Conn. 291. Here, because Nicholas began his journey on the shoulders of the highway and moved to the sidewalk out of safety con- cerns, we cannot say, as a matter of law, that Nicholas did not retain his status as a traveler over the highway when he moved to the sidewalk and fell into the cul- vert.15 Accordingly, the trial court properly denied the commissioner’s motion to dismiss on this ground.16 II We next consider the commissioner’s claim that the trial court improperly denied his motion to dismiss because the plaintiffs failed to allege sufficient facts from which a jury could find that the culvert constitutes a highway defect actionable under § 13a-144.", "The plain- tiffs alleged in their complaint that the culvert is defec- tive because the commissioner failed to erect a ‘‘fence, rail, or a barrier’’ near the sidewalk to warn pedestrians and bicyclists approaching from the sidewalk of the existence of the culvert, to provide ‘‘reasonable light- ing’’ near the culvert, and/or to ‘‘reasonably maintain the area,’’ which was ‘‘overgrown with grass, foliage and . . . brush’’ that concealed the existence of the culvert. The commissioner claims, however, that the culvert cannot constitute a highway defect as a matter of law because it is in an area unintended for public travel. In response, the plaintiffs argue that because the sidewalk led directly to the culvert, and bicyclists were invited and expected to utilize the sidewalk in connec- tion with their travel over Route 113, a jury could find that the state reasonably should have expected bicy- clists to traverse the culvert area, albeit by accident.", "Thus, the plaintiffs assert that the state should have maintained the culvert in a manner such that bicyclists and pedestrians approaching the culvert from the side- walk would be alerted to its existence. We agree with the plaintiffs, and conclude that the record in this case could support a finding that the culvert was a highway defect under § 13a-144, because it may be an area in which the state reasonably should have expected bicy- clists and pedestrians to travel.17 ‘‘[A] highway defect is [a]ny object in, upon, or near the traveled path, which would necessarily obstruct or hinder one in the use of the road for the purpose of traveling thereon, or which, from its nature and posi- tion, would be likely to produce that result . . .", ".’’ (Internal quotation marks omitted.) Kozlowski v. Com- missioner of Transportation, supra, 274 Conn. 502– 503. ‘‘[T]he defect need not be a part of the roadbed itself,’’ however, ‘‘objects which have no necessary con- nection with the roadbed or public travel, which expose a person to danger, not as a traveler, but independent of the highway, do not ordinarily render the road defec- tive.’’ Comba v. Ridgefield, 177 Conn. 268, 270, 413 A.2d 859 (1979). The defective condition must also exist in an area intended for public travel, or in an area that the public is invited or reasonably expected to traverse. See Koz- lowski v. Commissioner of Transportation, supra, 274 Conn. 504–505; Chazen v. New Britain, 148 Conn. 349, 353, 170 A.2d 891 (1961). ‘‘[If] the state either invites or reasonably should expect the public to use a particu- lar area that is not directly in the roadway but that is a necessary incident to travel on the roadway, a defective condition therein may give rise to a cognizable action under the statute.’’ Kozlowski v. Commissioner of Transportation, supra, 504–505.", "The fact that the defec- tive condition is in an area where members of the public are ‘‘likely, and in fact encouraged, to use is an important consideration.’’ Baker v. Ives, supra, 162 Conn. 301–302. ‘‘Whether a condition in a highway constitutes a defect must be determined in each case on its own particular circumstances.’’ Chazen v. New Britain, supra, 148 Conn. 353. ‘‘[The state] is not bound to make the roads absolutely safe for travel. . . . Rather, the test is whether . . . the state has exercised reasonable care to make and keep such roads in a reasonably safe condition for the reasonably prudent traveler.’’ (Internal quotation marks omitted.) Kozlowski v. Commissioner of Transportation, supra, 274 Conn. 503. ‘‘To define in general terms the precise limits of the duty of [the commissioner] in these cases is not an easy matter .", ". . .’’ (Internal quotation marks omitted.) McIntosh v. Sullivan, supra, 274 Conn. 273. ‘‘Generally, the question . . . is one of fact, depending on a great variety of circumstances, and this court will find error only when the conclusion is one which could not be reasonably reached by the trier.’’ Chazen v. New Britain, supra, 353. As noted previously, this court has recognized that defective conditions in areas unintended for public travel, in the strict sense, may nonetheless qualify as highway defects if the state reasonably should have expected the public to traverse the area in connection with their travel over the highway.18 See Kozlowski v. Commissioner of Transportation, supra, 274 Conn. 504–505. For example, in Hay v. Hill, supra, 137 Conn. 286–91, this court held that an unguarded culvert eight to twelve feet from the road could constitute a highway defect, when the passenger of a motor vehicle exited the vehicle, walked across some shrubs and weeds adja- cent to the highway, and fell into the culvert.", "Likewise, in Baker v. Ives, supra, 162 Conn. 300–301, this court concluded that a grassy area between a parking space and sidewalk along a highway that had accumulated snow and ice could constitute a highway defect, when a motorist that had parked her car slipped and fell in the area, thirty-two feet from the road, while attempting to reach the sidewalk. The court stated in Baker that, ‘‘[t]his is not a situation where the [motorist] crossed an area not intended for pedestrian travel . . . the pub- lic in general were encouraged to use this area for parking and it was reasonably to be expected that after parking her car the [motorist] would cross the .", ". . area to reach the sidewalk.’’ (Citation omitted.) Id., 301. We similarly concluded in Ferreira v. Pringle, supra, 255 Conn. 334, 352, that the stub of a signpost embedded in the grass along a highway seven feet from the road could constitute a highway defect, when a passenger disembarking from a bus stepped on the signpost and injured himself. We reasoned that ‘‘it is clear .", ". . that the defective condition was in an area where bus pas- sengers were likely, and in fact encouraged, to disem- bark . . . .’’ (Citation omitted.) Id., 350; see also Serrano v. Burns, supra, 248 Conn. 429 (icy parking lot of rest area along highway could constitute highway defect because state invited motorists to use rest area, and there was ‘‘no significant difference’’ between area ‘‘adjacent to the traveled portion of a highway’’ and area ‘‘away from the traveled portion of the highway’’ that state invited public to use). Conversely, defective conditions in areas where the public was neither invited nor reasonably expected to traverse cannot, as a matter of law, constitute a highway defect.", "For instance, we held in Kozlowski v. Commis- sioner of Transportation, supra, 274 Conn. 502–504, that a catch basin with a faulty cover, located in a grass area adjacent to the highway, could not, as a matter of law, constitute a highway defect. We reasoned that ‘‘while the catch basin is near the roadway . . . it is in an area unintended for automobile or pedestrian travel.’’ Id., 504. We further reasoned that ‘‘it is clear that the public is neither invited nor expected to traverse the catch basin area.’’ Id., 505. Similarly, in Chazen v. New Britain, supra, 148 Conn. 353, this court held that an unguarded ditch five feet from the roadway could not constitute a highway defect, when a motorist fell into the ditch after parking his vehicle and crossing a patch of unmowed grass to reach a public park, rather than utilize the ‘‘traveled way’’ to the park. The court noted that ‘‘[i]n taking the route he did, [the motorist] chose to cross an area which was not intended for pedestrian travel.’’ Id., 352. The court further explained that: ‘‘When our residential streets are laid out, it is common practice to provide space for purposes other than those of ordi- nary travel.", ". . . The general proposition that the pub- lic is entitled to the free use of any part of a public street must be accepted with the qualification that certain portions of the street may, for the benefit and conve- nience of the public, be devoted to purposes other than travel. . . . Since it is not intended that there shall be travel on such areas, travelers who leave the way provided for them and attempt to cross such areas may not assume that the areas are free from danger or unusual conditions . . . .’’19 Id., 353–54.", "We conclude that the trial court properly denied the commissioner’s motion to dismiss because a jury rea- sonably could find that the state reasonably should have expected the public to traverse the culvert area, which would render the culvert a highway defect actionable under § 13a-144.20 A jury could reach this conclusion because: (1) the sidewalk led directly to the culvert; (2) the sidewalk is an area intended for public travel; and (3) bicyclists were invited and reasonably expected to utilize the sidewalk, when necessary, in connection with their travel over Route 113. See Kozlowski v. Com- missioner of Transportation, supra, 274 Conn. 504– 505. The culvert, at nine feet from the road, is nearly identical to that considered in Hay, which was eight to twelve feet from the road. See Hay v. Hill, supra, 137 Conn. 281–88. Additionally, members of the public were ‘‘likely, and in fact encouraged’’ to use the side- walk when traveling on Route 113—albeit by the town, rather than the state—as in Baker and Ferreira.", "See Ferreira v. Pringle, supra, 255 Conn. 350; Baker v. Ives, supra, 162 Conn. 299; see also Rivers v. New Britain, 288 Conn. 1, 22 n.18, 950 A.2d 1247 (2008) (‘‘[w]hen a municipality places a sidewalk next to a road, it invites pedestrians to use the sidewalk’’). Pedestrians were actually required to use the sidewalk; see General Stat- utes § 14-300c (a); Bellman v. West Hartford, supra, 96 Conn. App. 394 (duty under highway defect statute ‘‘extends to pedestrian travel as well as to vehicular traffic’’ [internal quotation marks omitted]); and bicy- clists could utilize the sidewalk as a ‘‘necessary inci- dent’’ to their travel over Route 113. Kozlowski v. Commissioner of Transportation, supra, 504.", "More importantly, because the sidewalk led directly to the culvert, a jury reasonably could find that this unique fact brings the plaintiffs’ claim within the pur- view of § 13a-144. See, e.g., Bartlett v. Metropolitan District Commission, 125 Conn. App. 149, 161, 7 A.3d 414 (2010) (storm drain maintained by municipal authority, located on sidewalk maintained by city, could constitute highway defect under § 13a-149; ‘‘[s]ince the cover of the storm drain was located on a sidewalk, it was reasonable to anticipate that the public would encounter it in the ordinary course of travel’’), cert. denied, 300 Conn. 913, 13 A.3d 1101 (2011). Thus, a jury reasonably could conclude that without posts facing the sidewalk, adequate lighting in the area, and sufficient maintenance of the brush that concealed the culvert, those using the sidewalk—bicyclists in particular— might attempt to continue their journey by crossing the driveway and grass, and inadvertently fall into the culvert without realizing that the sidewalk had ended, especially at night.21 See Hay v. Hill, supra, 137 Conn. 289 (The jury could have reasonably concluded that the state ‘‘should have corrected the defect or protected [the culvert] by a railing or both.", ". . . It was a question of fact.’’). This element is missing from Kozlowski and Chazen, and we find those cases distinguishable on that basis. Unlike in Kozlowski, a jury might reasonably find that bicyclists could have been expected to accidentally traverse the culvert area due to the positioning of the sidewalk and culvert. See Kozlowski v. Commissioner of Transportation, supra, 274 Conn. 504. Additionally, unlike the motorist in Chazen, a jury reasonably might find that Nicholas did not purposely ‘‘leave the way provided for [him],’’ and instead, fell into the culvert while attempting to recommence his travel over the state highway.22 Chazen v. New Britain, supra, 148 Conn. 353. The commissioner argues that, as a matter of law, a jury cannot find that the state reasonably should have expected the public to traverse the culvert area because the sidewalk ended at a private driveway and small patch of lawn shortly before the culvert. He claims that, because the driveway and lawn are on private property, members of the public were neither invited nor expected to traverse those areas and, thus, the state could not reasonably have expected members of the public to fall into the culvert.", "We disagree. ‘‘The term sidewalk is meant to apply to those areas that the public uses for travel.’’ (Internal quotation marks omitted.) Bellman v. West Hartford, supra, 96 Conn. App. 395. ‘‘The essential feature of a public use is that it is not confined to privileged individuals or groups whose fit- ness or eligibility is gauged by some predetermined criteria, but is open to the indefinite public. It is the indefiniteness or unrestricted quality of potential users that gives a use its public character.’’ (Internal quotation marks omitted.) Cuozzo v. Orange, 147 Conn. App. 148, 158, 82 A.3d 647 (2013), aff’d, 315 Conn. 606, 109 A.3d 903 (2015). As such, this court has not necessarily found it dispositive that a plaintiff briefly crossed private prop- erty while attempting to travel over a public way. See, e.g., Sedita v. Steinberg, 105 Conn. 1, 5–8, 134 A. 243 (1926) (jury in tort case could find that pedestrian was in ‘‘lawful use of the public highway, with the legal status of a traveler’’ when he walked on private property between buildings and curb, because space was ‘‘entirely open, and apparently open for the use of all travelers who might choose to avail themselves of it . .", ". and not marked off from, the sidewalk proper’’); Crogan v. Schiele, 53 Conn. 186, 197–98, 1 A. 899 (1885) (pedestrian did not necessarily cease to use highway as traveler when she stepped into unguarded opening on private property between building and sidewalk, concluding ‘‘[t]here was nothing to mark the exact line of separation between the sidewalk and the [private] lot,’’ and, thus, ‘‘[t]he entire space [from the street] to the [building] was apparently a public sidewalk: it does not appear [the pedestrian] knew anything to the con- trary . . . the [landowner] had thrown open to the pub- lic and made part of the public domain that part of his property covered by th[e] extended sidewalk’’).23 Rather, when it is unclear whether an area is ‘‘open to the public,’’ we have generally left the question to the finder of fact. Pramuka v. Cromwell, 160 Conn. App.", "863, 878, 127 A.3d 320 (2015); see also id. (whether parking lot and driveways on property of public school ‘‘are open to the public or contain sufficient restrictions that would limit their public availability cannot be deter- mined on the basis of the record . . . and, in fact, may be questions more appropriately answered by a jury’’), cert. denied, 320 Conn. 908, 128 A.3d 952 (2015); Bell- man v. West Hartford, supra, 395 (court should have held evidentiary hearing to determine whether driveway of community center was ‘‘open [to] the public and . . . actually used by the public’’; issue was ‘‘question for the fact finder’’); see also Klein v. Norwalk, 305 Fed. Appx. 745, 747–48 (2d Cir.", "2009) (drainage grate in municipal parking lot could constitute highway defect under § 13a-149 because pedestrians were expected and reasonably anticipated to traverse area, which was open to public, actually used by public, and incident to travel on surrounding roadways and sidewalks).24 In the present case, the sidewalk crosses at least two private driveways before the driveway leading to the culvert. Although these driveways create a temporary break in the sidewalk, the sidewalk evidently continues immediately beyond them. It may not appear to a pedes- trian or bicyclist that he or she must revert to the shoul- der of the road upon encountering these driveways, rather than simply cross the driveways and continue on the path of the sidewalk. Put differently, the presence of the driveway immediately before the culvert may not have indicated to a bicyclist or pedestrian that the sidewalk was ending.", "The small patch of lawn also does not appear significant enough to alert a bicyclist or pedestrian to this fact, at least in time for them to return to the road and avoid falling into the culvert.25 Indeed, Nicholas testified at his deposition that he did not real- ize the sidewalk was ending when he fell into the culvert.26 See Bartlett v. Metropolitan District Commis- sion, supra, 125 Conn. App. 161 (‘‘the term public travel refers to the normal or reasonably anticipated uses that the public makes of a highway in the ordinary course of travel’’ [internal quotation marks omitted]). More- over, all of these features—the sidewalk, part of the driveway, and the small patch of lawn—are located within the state right-of-way line. A jury might therefore conclude that the state should have reasonably expected that pedestrians or bicyclists—especially bicyclists at night—would accidentally cross the drive- way and small patch of grass and, before realizing that the sidewalk had ended, fall into the culvert.27 Nicholas did just that, and the plaintiffs have, therefore, estab- lished a cognizable highway defect claim under § 13a- 144. Accordingly, we conclude that the trial court prop- erly denied the commissioner’s motion to dismiss. The judgment is affirmed.", "In this opinion ROGERS, C. J., and PALMER, ZARELLA and EVELEIGH, Js., concurred. 1 General Statutes § 13a-144 provides in relevant part: ‘‘Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the Commissioner of Transportation to keep in repair . . . may bring a civil action to recover damages sustained thereby against the commissioner . . . .’’ 2 The commissioner appealed from the denial of his motion to dismiss to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1. ‘‘Despite the general rule that interlocutory rulings are not immediately appealable, the denial of a motion to dismiss based on a colorable claim of sovereign immunity is an appealable final judgment.’’ Cummings v. Dept.", "of Transpor- tation, 313 Conn. 197, 199 n.3, 96 A.3d 552 (2014). 3 The commissioner appears to concede that these facts are undisputed. 4 Several of Nicholas’ friends were riding their bicycles along with him. Nicholas led the group when he moved to the sidewalk. 5 The state right-of-way line extends just beyond the sidewalk. Thus, the sidewalk, culvert, and part of the driveway and lawn are all within the state right-of-way. 6 At oral argument before this court, the commissioner appeared to chal- lenge the department’s responsibility for maintaining the culvert, for the first time in this case.", "We decline to consider this claim because it ‘‘is well settled that claims on appeal . . . cannot be raised for the first time at oral argument before the reviewing court.’’ (Internal quotation marks omitted.) Kramer v. Petisi, 285 Conn. 674, 686 n.10, 940 A.2d 800 (2008). 7 ‘‘To prove a breach of statutory duty under [§ 13a-144], the plaintiff must prove by a preponderance of the evidence: (1) that the highway was defective as claimed; (2) that the [commissioner] actually knew of the particular defect or that, in the exercise of [his] supervision of highways in the city, [he] should have known of that defect; (3) that the [commissioner], having actual or constructive knowledge of this defect, failed to remedy it having had a reasonable time, under all the circumstances, to do so; and (4) that the defect must have been the sole proximate cause of the injuries and damages claimed, which means that the plaintiff must prove freedom from contributory negligence.’’ (Internal quotation marks omitted.) Stotler v. Dept. of Transportation, 142 Conn. App.", "826, 835, 70 A.3d 114 (2013), aff’d, 313 Conn. 158, 96 A.3d 527 (2014). 8 For defective conditions in sidewalks, local roads, and bridges main- tained by municipalities, one may assert a highway defect claim under § 13a- 149. Section 13a-149 imposes a duty on municipalities equivalent to the duty imposed on the state by § 13a-144. ‘‘There is no substantial difference in the duties imposed by [§§ 13a-144 and 13a-149] .", ". . .’’ Comba v. Ridgefield, 177 Conn. 268, 269–70, 413 A.2d 859 (1979). As such, case law arising under § 13a-149 is instructive with respect to claims brought against the state pursuant to § 13a-144. See, e.g., McIntosh v. Sullivan, supra, 274 Conn. 266 n.4. 9 Although the facts are undisputed for purposes of the commissioner’s appeal from the denial of his motion to dismiss, the state’s ultimate liability under § 13a-144 nevertheless turns on the fact finder’s determination with respect to whether Nicholas’ travel on the sidewalk fell within the ‘‘[r]eason- able latitude’’ afforded to travelers on the highway, or whether he had ‘‘forfeited [his] rights’’ under § 13a-144. Hay v. Hill, supra, 137 Conn. 290; see Serrano v. Burns, supra, 248 Conn. 429.", "10 In making this determination, we respectfully disagree with the dissent’s focus on the fact that Nicholas was riding his bicycle against traffic ‘‘in a manner contrary to established highway rules and regulations,’’ which, according to the dissent, resulted in a ‘‘self-created’’ exigency. The commis- sioner does not contend that it was improper for Nicholas to ride ‘‘against traffic’’ before moving to the sidewalk, or otherwise argue that this fact affects our analysis of whether Nicholas may be considered a traveler on the highway. 11 It is unclear from the record how ‘‘heavy’’ the traffic was on Route 113, or whether that traffic volume continued after Nicholas moved to the sidewalk.", "12 Nicholas did not state in his deposition whether he planned to return to the roadway. Photographs in the record reveal that Nicholas could have continued over a grassy area toward Cutspring Road when the sidewalk ended, had he not fallen into the culvert, or returned to the shoulder of Route 113 before turning left. We respectfully disagree with the dissent’s contention that ‘‘Nicholas’ exact trajectory upon departing Route 113 is ultimately irrelevant.’’ This evidence is for the fact finder to weigh in determining whether Nicholas ‘‘turned aside from his journey for a purpose in no way connected with his passage over the highway,’’ and whether exigent circumstances were present. O’Neil v. New Haven, supra, 80 Conn. 156. It is for this precise reason that the issue is more appropriate for consideration at trial.", "See Conboy v. State, supra, 292 Conn. 654 (issue of sovereign immunity could not be resolved on motion to dismiss because state’s argument ‘‘turned on [the] particular resolution of [a] factual dispute’’ requiring ‘‘a full trial on the merits of the action’’). 13 The dissent’s suggestion that exigent circumstances were not present because Nicholas ‘‘voluntarily left Route 113 due to the heavy traffic’’ directly conflicts with this court’s recognition that modern traffic may constitute an exigency requiring a traveler to depart from the immediate roadway. See Ferreira v. Pringle, supra, 255 Conn. 347; Minacci v. Logudice, 126 Conn. 345, 348, 11 A.2d 354 (1940); see also Rusch v. Cox, supra, 10 Conn. Supp. 526.", "As such, a fact finder could reasonably conclude that exigent circumstances forced Nicholas to depart from the roadway, thus rendering him a traveler on the highway for the purposes of § 13a-144. Again, we make no judgment as to the likeliness of this finding, and simply hold that a ‘‘critical factual dispute’’ prevents us from resolving the question of the trial court’s jurisdic- tion at this juncture.", "Conboy v. State, supra, 292 Conn. 652. 14 General Statutes (Rev. to 2011) § 14-286 (a) provides in relevant part: ‘‘Each person operating a bicycle upon and along a sidewalk or across any roadway upon and along a crosswalk shall yield the right-of-way to any pedestrian . . . . No person shall operate a bicycle upon or along a sidewalk or across a roadway upon and along a crosswalk if such operation is prohib- ited by any ordinance of any city, town or borough . . . .’’ See also General Statutes § 14-286a (b) (‘‘[e]very person operating a bicycle solely by hand or foot power upon and along any sidewalk . . .", "shall be granted all of the rights and shall be subject to all of the duties applicable to pedestrians walking in such areas’’). 15 We also note that the question of whether Nicholas could also have been deemed to be a traveler on the sidewalk when he fell into the culvert is irrelevant to our analysis. The plaintiffs do not allege a defect in the sidewalk, although they could have framed the alleged defect in this manner in an effort to invoke § 13a-149. See also footnote 8 of this opinion.", "Rather, the plaintiffs distinctly alleged a defect in the highway actionable against the state under § 13a-144. Thus, the relevant question is whether Nicholas was a traveler over the highway when he fell into the culvert. See Tuckel v. Argraves, supra, 148 Conn. 358. 16 The dissent’s concern that our holding will ‘‘ ‘eviscerate’ ’’ the state’s sovereign immunity and ‘‘greatly increase the scope of its liability’’ under § 13a-144 is greatly exaggerated for at least three important reasons. First, not all bicyclists traveling on the sidewalk may conceivably be classified as travelers on the highway. If, for instance, a bicyclist never travels in the shoulder of the roadway itself, a jury may not be able to find that he or she was ever a traveler on the highway. Second, even if all bicyclists traveling on the sidewalk are characterized as travelers on the highway, the state will not be liable for most injuries that result from this situation. Municipali- ties, rather than the state, are generally responsible for maintaining most sidewalks, even those adjacent to state highways. See, e.g., Hornyak v. Fairfield, 135 Conn. 619, 621, 67 A.2d 562 (1949); Moleske v. MacDonald, 109 Conn. 336, 339, 146 A.", "820 (1929); see General Statutes § 13a-144 (state only responsible for defects in sidewalks which commissioner has ‘‘duty . . . to keep in repair’’); see also Cartwright v. Frankel, Superior Court, judicial district of Windham, Docket No. CV-94-0048749-S (March 19, 1996) (16 Conn. L. Rptr. 322) (bicyclist could not maintain action against commis- sioner for defective condition in sidewalk abutting state highway because, as matter of law, commissioner ‘‘had no duty to maintain or repair the sidewalk’’). Third, our holding is limited to the unique facts of this case, wherein a municipal sidewalk leads directly to a hidden unguarded culvert maintained by the state. Thus, our conclusion that factual issues need to be resolved by a fact finder to determine whether the state enjoys sovereign immunity in this case will not, as the dissent suggests, ‘‘invit[e] a plethora of highway defect claims brought by plaintiffs whose injuries have only dubious connections to actual state highway defects.’’ 17 Although the facts are undisputed for purposes of this appeal from the denial of the motion to dismiss, the state’s liability nevertheless depends on a fact finder’s ultimate determination with respect to whether the state reasonably should have expected the public to traverse the culvert area.", "See McIntosh v. Sullivan, supra, 274 Conn. 296 (Katz, J., dissenting) (‘‘[t]o the extent that there is a question in the present case as to whether the connection to the roadbed is sufficient . . . that is a question for the trier of fact’’); Serrano v. Burns, supra, 248 Conn. 426 (‘‘ ‘[w]hether there is a defect in such proximity to the highway so as to be considered ‘‘in, upon, or near the traveled path’’ of the highway must be determined on a case- by-case basis after a proper analysis of its own particular circumstances, and is generally a question of fact for the jury, which will not be disturbed by this court unless the conclusion is one which could not be reasonably reached by the trier’ ’’).", "18 We note that the commissioner does not argue that the culvert does not ‘‘ ‘obstruct or hinder’ ’’ travel over the sidewalk—and, incidentally, the highway—simply because the sidewalk ends before the culvert. Kozlowski v. Commissioner of Transportation, supra, 274 Conn. 502–503. Accordingly, we focus on the commissioner’s claim that the culvert is in an area unin- tended for public travel, and the state should not have reasonably expected members of the public to encounter it, because they would have to cross a private driveway and lawn to reach it. See Horrigan v. Washington, 144 Conn. App. 536, 545–46, 72 A.3d 1265 (jury reasonably concluded that storm drain in grassy area more than three feet from paved portion of road was not highway defect under § 13a-149; drain was in area ‘‘expected to be used by travelers, but not in a position so as to necessarily obstruct or hinder the common use of the road,’’ contrasted with obstructions such as ‘‘a pothole or an exposed culvert in the paved portion’’ of the road [internal quotation marks omitted]), cert.", "denied, 310 Conn. 939, 83 A.3d 344 (2013). 19 In light of Hay, we respectfully disagree with the dissent’s contention that Kozlowski and Chazen provide ‘‘clear guidance’’ on this issue. See Kozlowski v. Commissioner of Transportation, supra, 274 Conn. 502–504; Chazen v. New Britain, supra, 148 Conn. 353–54; Hay v. Hill, supra, 137 Conn. 287. Moreover, despite the dissent’s contention to the contrary, we believe that Hay bears more than ‘‘some similarity’’ to the present case. In both Hay and the present case, the defect at issue was an unguarded culvert between eight to twelve feet from the road covered in shrubbery. Hay v. Hill, supra, 286–87. Thus, we look more aptly to Hay in making our determination, despite the dissent’s characterization of Kozlowski as ‘‘most instructive.’’ See Kozlowski v. Commissioner of Transportation, supra, 499.", "We further disagree with the dissent’s bases for distinguishing Hay. The dissent first notes that the culvert in Hay was unmarked, ‘‘despite the state’s practice at that time of placing posts on the road side of culverts,’’ and that, in the present case, the culvert had posts facing the road. However, the plaintiff in Hay approached the culvert from the road and, thus, the existence or absence of posts facing the road was at issue. Hay v. Hill, supra, 137 Conn. 286–87. Here, because Nicholas approached the culvert from the sidewalk, the issue in this case with respect to liability is whether posts or other warnings facing the sidewalk were necessary. As such, the lack of posts facing the road in Hay is an insufficient basis for distinguishing that case. Likewise, we fail to see how the fact that Hay involved a challenge to a jury verdict—as opposed to a motion to dismiss on the ground of sovereign immunity—affects our analysis.", "The ultimate issue—whether a jury could reasonably find that the hidden unguarded culvert constitutes a highway defect—is the same. See Conboy v. State, supra, 292 Conn. 654. 20 As a preliminary matter, we note that it is undisputed that the culvert is located within the state right-of-way line. See Serrano v. Burns, supra, 248 Conn. 427 n.7 (‘‘[w]hether the place of injury is within the state right- of-way line is the threshold inquiry in determining the state’s liability, if any, under § 13a-144’’); see also Ferreira v. Pringle, supra, 255 Conn. 350. The culvert itself is also maintained by the state and is part of the state highway system. But see footnote 6 of this opinion. 21 We note that a police report completed on the night of the accident states that the owner of one of the residences near the culvert had informed town engineers about ‘‘the overgrown brush surrounding the . . .", "culvert as well as . . . [the] lack of guard rails on either side of it’’ two weeks before the accident. 22 Although the dissent criticizes us for ‘‘[b]ypassing the well settled requirement that waivers of sovereign immunity should be strictly construed in favor of the state,’’ we question whether the dissent has given sufficient consideration to the principles that: (1) when ruling on a motion to dismiss, the trial court ‘‘must consider the allegations of the complaint in their most favorable light’’; (internal quotation marks omitted) Kozlowski v. Commis- sioner of Transportation, supra, 274 Conn. 501; (2) ‘‘in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdic- tion should be indulged’’; (internal quotation marks omitted) Conboy v. State, supra, 292 Conn. 650; (3) travelers are afforded ‘‘reasonable latitude . . . to meet the exigencies of travel’’; Hay v. Hill, supra, 137 Conn. 290; and (4) ‘‘[w]hether there is a defect in such proximity to the highway so as to be considered in, upon, or near the traveled path of the highway must be determined on a case-by-case basis after a proper analysis of its own particular circumstances, and is generally a question of fact for the jury . .", ". .’’ (Internal quotation marks omitted.) Baker v. Ives, supra, 162 Conn. 300. In prioritizing the principle that waivers of sovereign immunity should be strictly construed in favor of the state, the dissent’s reliance on Stotler v. Dept. of Transportation, 313 Conn. 158, 187–88, 96 A.3d 527 (2014), is misplaced. That principle did not govern the result in Stotler. Stotler involved an alleged defect in the design of a highway, and this court therefore empha- sized, in concluding that the plaintiff’s claim was barred by sovereign immu- nity, that it did not fall within the ‘‘narrow exception in [Hoyt v. Danbury, 69 Conn. 341, 37 A. 1051 (1897)] to the general rule precluding liability for design defects.’’ (Emphasis added.) Stotler v. Dept.", "of Transportation, supra, 313 Conn. 174. Moreover, this court recognized in Stotler that, under the plaintiff’s theory of liability, based simply on the highway’s ‘‘steep downhill grade’’ and lack of safety measures, ‘‘virtually every design defect claim pertaining directly to the layout of the road would be actionable . . . . We simply cannot construe the defective highway statute in a manner that would eviscerate the general rule precluding liability for design defect claims under Hoyt and its progeny.’’ (Citations omitted; emphasis added; footnote omitted; internal quotation marks omitted.) Id., 182. The present case, by contrast, does not involve a design defect, but rather, a hidden unguarded culvert maintained by the state at the end of a municipal sidewalk. As explained previously; see footnote 16 of this opinion; our holding that genu- ine issues of material fact exist as to the state’s sovereign immunity in this unique case will not result in ‘‘virtually every’’ highway defect claim being actionable. Stotler v. Dept.", "of Transportation, supra, 313 Conn. 182. 23 See also Giarnese v. Litchfield, Superior Court, judicial district of Litch- field, Docket No. CV-12-6006890-S (May 6, 2013) (56 Conn. L. Rptr. 97, 98) (motorcyclist’s claim actionable under § 13a-149 because, although accident occurred on private property, road appeared to be extension of public road on which motorcyclist was traveling; motorists were ‘‘likely to mistake entry to [private] property as a continuation of a public street’’); Dawson v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV-08- 5016831-S (October 26, 2009) (denying city’s motion for summary judgment on § 13a-149 claim because issue of fact existed as to whether walkway was public sidewalk or private walkway, despite fact that walkway was on private property and installed by private developer). 24 Cf. Cuozzo v. Orange, supra, 147 Conn. App.", "164 (pothole in driveway of shopping center could not constitute highway defect under § 13a-149 because driveway led to private retail stores and was not in public area that ‘‘one may reasonably anticipate is open to all . . . a myriad of restrictions of use may limit travel to certain persons, certain types of use or certain types of vehicles . . . nothing in the record . . . suggests that the driveway was open for the unrestricted use of all public travelers generally’’); Read v. Plymouth, 110 Conn. App. 657, 665–66, 955 A.2d 1255 (pedestrian’s claim failed under § 13a-149 when he fell into dumpster at town waste station because access to station was restricted to residents, and thus, not generally open to public; station was restricted to permit holding residents, open during limited hours, and guarded by locked gate during off-hours), cert. denied, 289 Conn. 955, 961 A.2d 421 (2008). 25 Contrary to the dissent’s assertions, a jury could reasonably conclude that Nicholas’ ride over the driveway and small patch of lawn was not a conscious choice and intentional forgoing of his opportunity to return to Route 113, but rather, an inadvertent mistake, especially since it was dark. We do not ‘‘speculatively suggest,’’ as the dissent asserts, that this interpreta- tion of Nicholas’ ride is the correct one; we simply use it to demonstrate that there are issues of fact that need to be decided by a fact finder in order to determine whether the state enjoys sovereign immunity from the plaintiffs’ claim.", "26 Nicholas stated: ‘‘I was riding and I felt the sidewalk end. . . . I felt grass, and then I went into the ditch . . . .’’ 27 In sum, the record has not been sufficiently developed for us to deter- mine, as a matter of law, that Nicholas was not a traveler on the highway when he fell into the culvert, or that the culvert is not a highway defect.", "‘‘[W]here a jurisdictional determination is dependent on the resolution of a critical factual dispute, it cannot be decided on a motion to dismiss . . . .’’ (Internal quotation marks omitted.) Stotler v. Dept. of Transportation, supra, 313 Conn. 187. Rather, an evidentiary hearing may be necessary to determine these ‘‘critical factual dispute[s]’’; Conboy v. State, supra, 292 Conn. 652; or the trial court may ‘‘in its discretion choose to postpone resolution of the jurisdictional question until the parties complete further discovery or, if necessary, a full trial on the merits has occurred.’’ Id., 654 n.16. Thus, ‘‘we conclude that, at this stage of the proceedings, an unresolved factual dispute exists that renders consideration of the state’s legal argument premature.’’ Id., 645." ]	https://www.courtlistener.com/api/rest/v3/opinions/4021334/	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
Douglas T. Tabachnik, Esq. LAW OFFICES OF DOUGLAS T. TABACHNIK, P.C. 63 West Main Street, Suite C Freehold, NJ 07728 Tel: 732-780-2760 Fax: 732-780-2761 dtabachnik@dttlaw.com Counsel for Lone Pine Associates, LLC UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK (WHITE PLAINS) Chapter 7 Case No. 17-22218 (RDD) In re: RS Old Mill, LLC Debtor. NOTICE OF APPEARANCE PLEASE TAKE NOTICE that the undersigned appears for Lone Pine Associates, LLC, as Assignee of Enbee TRST Holdings LLC, pursuant to the Federal Rules of Bankruptcy Procedure 2002, 7005, 9007 and 9010, and demands that all notices given or required to be given in this case and all papers served in this case be given to and served upon the undersigned to the party at the address listed below: Douglas T. Tabachnik, Esq. Law Offices of Douglas T. Tabachnik, P.C. 63 West Main Street, Suite C Freehold, NJ 07728 Tel: 732-780-2760 Fax: 732-780-2761 dtabachnik@dttlaw.com PLEASE TAKE FURTHER NOTICE, that the foregoing demand includes not only notices and papers referred to in the rules specified above but also includes, without limitation, orders and notice of any application, motion, petition, pleading, request, complaint or demand, whether formal or informal, whether written or oral, and whether transmitted or conveyed by mail delivery, telephone, electronic means or otherwise, which affects the Debtor or the property of the Debtor, or the administration of the Debtor’s bankruptcy case. PLEASE TAKE FURTHER NOTICE that neither this Request for Service of Papers nor any subsequent appearance, pleading, claim or suit is intended or shall be deemed to waive Lone Pine Associates, LLC rights under the U.S. Constitution and applicable law, including (i) the right to have final orders entered only after de novo review by a federal district court judge; (ii) right to trial by jury in any proceeding or controversy so triable; (iii) right to have the reference withdrawn by the United States District Court in any matter subject to mandatory or discretionary withdrawal; or (iv) any and all other rights, claims, actions, defenses, setoffs or recoupments to which Lone Pine Associates, LLC is or may be entitled under agreements, in law, or in equity, all of which rights, claims, actions, defenses, setoffs and recoupments expressly are hereby reserved. Dated: August 8, 2019 LAW OFFICES OF DOUGLAS T. TABACHNIK, P.C. By: /s/Douglas T. Tabachnik Douglas T. Tabachnik 63 West Main Street, Suite C Freehold, NJ 07728 Tel: 732-780-2760 Fax: 732-780-2761 dtabachnik@dttlaw.com Counsel to Lone Pine Associates, LLC 2	2019-08-08	[ "Douglas T. Tabachnik, Esq. LAW OFFICES OF DOUGLAS T. TABACHNIK, P.C. 63 West Main Street, Suite C Freehold, NJ 07728 Tel: 732-780-2760 Fax: 732-780-2761 dtabachnik@dttlaw.com Counsel for Lone Pine Associates, LLC UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK (WHITE PLAINS) Chapter 7 Case No. 17-22218 (RDD) In re: RS Old Mill, LLC Debtor. NOTICE OF APPEARANCE PLEASE TAKE NOTICE that the undersigned appears for Lone Pine Associates, LLC, as Assignee of Enbee TRST Holdings LLC, pursuant to the Federal Rules of Bankruptcy Procedure 2002, 7005, 9007 and 9010, and demands that all notices given or required to be given in this case and all papers served in this case be given to and served upon the undersigned to the party at the address listed below: Douglas T. Tabachnik, Esq. Law Offices of Douglas T. Tabachnik, P.C. 63 West Main Street, Suite C Freehold, NJ 07728 Tel: 732-780-2760 Fax: 732-780-2761 dtabachnik@dttlaw.com PLEASE TAKE FURTHER NOTICE, that the foregoing demand includes not only notices and papers referred to in the rules specified above but also includes, without limitation, orders and notice of any application, motion, petition, pleading, request, complaint or demand, whether formal or informal, whether written or oral, and whether transmitted or conveyed by mail delivery, telephone, electronic means or otherwise, which affects the Debtor or the property of the Debtor, or the administration of the Debtor’s bankruptcy case.", "PLEASE TAKE FURTHER NOTICE that neither this Request for Service of Papers nor any subsequent appearance, pleading, claim or suit is intended or shall be deemed to waive Lone Pine Associates, LLC rights under the U.S. Constitution and applicable law, including (i) the right to have final orders entered only after de novo review by a federal district court judge; (ii) right to trial by jury in any proceeding or controversy so triable; (iii) right to have the reference withdrawn by the United States District Court in any matter subject to mandatory or discretionary withdrawal; or (iv) any and all other rights, claims, actions, defenses, setoffs or recoupments to which Lone Pine Associates, LLC is or may be entitled under agreements, in law, or in equity, all of which rights, claims, actions, defenses, setoffs and recoupments expressly are hereby reserved. Dated: August 8, 2019 LAW OFFICES OF DOUGLAS T. TABACHNIK, P.C. By: /s/Douglas T. Tabachnik Douglas T. Tabachnik 63 West Main Street, Suite C Freehold, NJ 07728 Tel: 732-780-2760 Fax: 732-780-2761 dtabachnik@dttlaw.com Counsel to Lone Pine Associates, LLC 2" ]	https://www.courtlistener.com/api/rest/v3/recap-documents/102165129/	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
442 So.2d 121 (1983) Debra Kay PRICE v. Michael Lynn PRICE. Civ. 3884. Court of Civil Appeals of Alabama. December 14, 1983. 122 W. Cameron Parsons, Ray, Oliver, Ward & Parsons, Tuscaloosa, for appellant. No brief for appellee. HOLMES, Judge. The wife brought contempt proceedings against the husband for failure to pay required child support and periodic alimony. The trial court found the husband in contempt and modified the child support and alimony provisions. The wife appeals, contending the trial court was without authority to modify the alimony and child support provisions because the husband did not petition for modification and because the issue was not tried by the implied or express consent of the parties. We agree and reverse. We do not deem it necessary nor prudent to set out in detail the facts of the instant appeal. The following is sufficient. The parties were divorced in May of 1982. An agreement of the parties was incorporated into the divorce decree. By this agreement the husband agreed to pay $200 biweekly as child support and $50 biweekly as alimony. In April of 1983, the instant contempt proceedings were filed by the wife. It was alleged the husband owed $900 in alimony and $3,200 in child support. At trial, the husband admitted that he owed $3,600 in child support and $900 in alimony. The trial court entered an order of contempt for these amounts. The trial court then ex mero motu and over objection modified the alimony and child support provisions. Additionally, the trial court entered an order allowing the husband to claim the two children as dependents for income tax purposes. Specifically, the trial court suspended the payment of alimony until 1986 at which time the husband would pay $25 per week. Child support payments were modified to the sum of $50 per week. Certain other adjustments were ordered. We do not deem it necessary to unduly lengthen nor belabor the issue at hand. We find the following in Carden v. Penney, 362 So.2d 266, 268-69 (Ala.Civ.App. 1978), to be appropriate and dispositive: "Under the provisions of Rule 54(c) of the Alabama Rules of Civil Procedure it is the duty of the court to grant relief to which a party is entitled irrespective of the request for relief contained in the pleadings. Penney v. Carden, [356 So.2d 1188 (Ala.1978)]. See 6 Moore's Federal Practice § 54.62 (1976). However, Rule 54(c) does not sanction the granting of relief not requested in the pleadings where it appears that a party's failure to ask for particular relief has substantially prejudiced the opposing party. Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975); Rental Development Corporation of America v. Lavery, 304 F.2d 839 (9th Cir.1962); Penney v. Carden, supra. Moreover, if the relief granted pursuant to Rule 54(c) is not justified by the proof or is justified by proof which the opposing party has not had an opportunity to challenge, the relief granted should not be sustained on appeal. See 10 Wright & Miller Federal Practice and Procedure § 2662 (1973). Accordingly, logic dictates that in those situations where an opposing party has no 123 notice, by pleadings or otherwise, regarding the claim upon which relief is granted by means of Rule 54(c) and is thereby denied an opportunity to have challenged or defended against such a claim, the opposing party has suffered substantial prejudice and the judgment granting relief must be reversed. See United States v. Hardy, 368 F.2d 191 (10th Cir. 1966). Indeed, such a rule is fundamental to the essentials of due process and fair play. Sylvan Beach, Inc. v. Koch, 140 F.2d 852 (8th Cir.1944)." In this instance the wife, a nonresident, filed a contempt proceeding. The husband filed no petition to modify nor made any oral request for modification. The husband appeared pro se. The wife, a nonresident, appeared by counsel. The following transpired at the contempt hearing: "[WIFE'S COUNSEL:] We object to the court modifying the alimony and the child support payments as there's been no showing of substantial change in circumstances and there having been no petition for modification filed by Mr. Price. "THE COURT: All right, sir. I understand counsel's objection and I am also sensitive to the fact that Mr. Price is pro se and I know and recognize the equities in the case are such that were he to have an attorney, his attorney would have a modification. The Court is doing it ex mero motu out of a sense of trying to protect Mr. Price's rights; vis-a-vis, his being pro se versus Mrs. Price being represented by you, Mr. Parsons." Under the above circumstances, due process and fair play require reversal. See Carden v. Penney, 362 So.2d 266 (Ala.Civ. App.1978). The wife has requested an attorney's fee for representation on appeal. A fee of $350 is hereby awarded. REVERSED AND REMANDED FOR ENTRY OF A JUDGMENT NOT INCONSISTENT WITH THE ABOVE. WRIGHT, P.J., and BRADLEY, J., concur.	10-30-2013	[ "442 So.2d 121 (1983) Debra Kay PRICE v. Michael Lynn PRICE. Civ. 3884. Court of Civil Appeals of Alabama. December 14, 1983. 122 W. Cameron Parsons, Ray, Oliver, Ward & Parsons, Tuscaloosa, for appellant. No brief for appellee. HOLMES, Judge. The wife brought contempt proceedings against the husband for failure to pay required child support and periodic alimony. The trial court found the husband in contempt and modified the child support and alimony provisions. The wife appeals, contending the trial court was without authority to modify the alimony and child support provisions because the husband did not petition for modification and because the issue was not tried by the implied or express consent of the parties.", "We agree and reverse. We do not deem it necessary nor prudent to set out in detail the facts of the instant appeal. The following is sufficient. The parties were divorced in May of 1982. An agreement of the parties was incorporated into the divorce decree. By this agreement the husband agreed to pay $200 biweekly as child support and $50 biweekly as alimony. In April of 1983, the instant contempt proceedings were filed by the wife. It was alleged the husband owed $900 in alimony and $3,200 in child support. At trial, the husband admitted that he owed $3,600 in child support and $900 in alimony. The trial court entered an order of contempt for these amounts. The trial court then ex mero motu and over objection modified the alimony and child support provisions.", "Additionally, the trial court entered an order allowing the husband to claim the two children as dependents for income tax purposes. Specifically, the trial court suspended the payment of alimony until 1986 at which time the husband would pay $25 per week. Child support payments were modified to the sum of $50 per week. Certain other adjustments were ordered. We do not deem it necessary to unduly lengthen nor belabor the issue at hand. We find the following in Carden v. Penney, 362 So.2d 266, 268-69 (Ala.Civ.App. 1978), to be appropriate and dispositive: \"Under the provisions of Rule 54(c) of the Alabama Rules of Civil Procedure it is the duty of the court to grant relief to which a party is entitled irrespective of the request for relief contained in the pleadings. Penney v. Carden, [356 So.2d 1188 (Ala.1978)]. See 6 Moore's Federal Practice § 54.62 (1976). However, Rule 54(c) does not sanction the granting of relief not requested in the pleadings where it appears that a party's failure to ask for particular relief has substantially prejudiced the opposing party.", "Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975); Rental Development Corporation of America v. Lavery, 304 F.2d 839 (9th Cir.1962); Penney v. Carden, supra. Moreover, if the relief granted pursuant to Rule 54(c) is not justified by the proof or is justified by proof which the opposing party has not had an opportunity to challenge, the relief granted should not be sustained on appeal. See 10 Wright & Miller Federal Practice and Procedure § 2662 (1973). Accordingly, logic dictates that in those situations where an opposing party has no 123 notice, by pleadings or otherwise, regarding the claim upon which relief is granted by means of Rule 54(c) and is thereby denied an opportunity to have challenged or defended against such a claim, the opposing party has suffered substantial prejudice and the judgment granting relief must be reversed. See United States v. Hardy, 368 F.2d 191 (10th Cir.", "1966). Indeed, such a rule is fundamental to the essentials of due process and fair play. Sylvan Beach, Inc. v. Koch, 140 F.2d 852 (8th Cir.1944).\" In this instance the wife, a nonresident, filed a contempt proceeding. The husband filed no petition to modify nor made any oral request for modification. The husband appeared pro se. The wife, a nonresident, appeared by counsel. The following transpired at the contempt hearing: \"[WIFE'S COUNSEL:] We object to the court modifying the alimony and the child support payments as there's been no showing of substantial change in circumstances and there having been no petition for modification filed by Mr. Price. \"THE COURT: All right, sir. I understand counsel's objection and I am also sensitive to the fact that Mr. Price is pro se and I know and recognize the equities in the case are such that were he to have an attorney, his attorney would have a modification. The Court is doing it ex mero motu out of a sense of trying to protect Mr. Price's rights; vis-a-vis, his being pro se versus Mrs. Price being represented by you, Mr.", "Parsons.\" Under the above circumstances, due process and fair play require reversal. See Carden v. Penney, 362 So.2d 266 (Ala.Civ. App.1978). The wife has requested an attorney's fee for representation on appeal. A fee of $350 is hereby awarded. REVERSED AND REMANDED FOR ENTRY OF A JUDGMENT NOT INCONSISTENT WITH THE ABOVE. WRIGHT, P.J., and BRADLEY, J., concur." ]	https://www.courtlistener.com/api/rest/v3/opinions/1108206/	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
Per Curiam. Dismissed for want of jurisdiction upon the authority of § 237 of the Judicial Code, as amended by the Act of September 6, 1916, c. 448, 39 Stat. 726.	09-09-2022	[ "Per Curiam. Dismissed for want of jurisdiction upon the authority of § 237 of the Judicial Code, as amended by the Act of September 6, 1916, c. 448, 39 Stat. 726." ]	https://www.courtlistener.com/api/rest/v3/opinions/8143755/	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
645 S.E.2d 602 (2007) JONES v. The STATE. No. A07A0227. Court of Appeals of Georgia. April 16, 2007. 603 James W. Bradley, Jonesoboro, for appellant. Jewel C. Scott, District Attorney, Melvin Abercrombie, Assistant District Attorney, for appellee. MIKELL, Judge. After a jury trial, Bill Joseph Jones was found guilty and sentenced to life imprisonment (with the possibility of parole) plus five years for his convictions on the following counts: rape (life); kidnapping with bodily injury (life); two counts of aggravated assault (twenty years per count); hijacking a motor vehicle (twenty years); armed robbery (twenty years); two counts of aggravated sodomy (twenty years per count); aggravated stalking (ten years); false imprisonment 604 (ten years); battery (twelve months); one count of theft by taking (ten years); two additional counts of theft by taking (twelve months per count); all to run concurrently. In addition, Jones was sentenced to five years per count for his convictions on four counts of possession of a firearm in the commission of a felony, these sentences to run concurrently with each other but consecutively to the other terms of imprisonment. On appeal, Jones challenges the sentences imposed by the trial court. We conclude that the trial court erred in failing to merge certain charges for sentencing purposes. As appellant has enumerated no other errors, we affirm all other aspects of the judgment. Viewed in the light most favorable to support the jury's verdict, the record shows that, on December 19, 2005, Jones broke into the home of the victim, who had formerly been his girlfriend, and, when she later returned, he seized her from behind and put a large knife to her neck, causing her to scream so loudly that a neighbor heard her. At the time of the incident, a family violence protective order, obtained some months earlier by the victim, was outstanding against Jones. Telling her, "I will stab your eye out if you move," he made her disrobe and crawl on her knees up the stairs to her bedroom. He told her that he intended to rape her, steal her car, and flee to Mexico. He searched for and found her gun; threatening her with it, he forced her to engage in oral sex with him; he raped her anally, then vaginally; and he beat her in the face with his hands and fists, inflicting visible injuries upon her. At this point, Jeff Cooper,[1] the victim's neighbor, became concerned for her safety and rang the doorbell. Jones prevented her from answering the door; instead, he made her speak to Cooper through the upstairs window. After Cooper left, Jones forced the victim onto her knees and cut off her long hair. He grabbed a bag which he had filled with items belonging to her, including a laptop computer and a camcorder, and forced the victim to accompany him outside, where Cooper, who had already summoned the police, accosted Jones and urged him to release her. Jones replied, "[T]his has nothing to do with you, I've got a gun." He ordered the victim into her car, drove it around the corner, and abandoned it when he heard approaching police sirens. He forced the victim to accompany him on foot until they finally reached a Chevron service station with an automatic teller machine (ATM), near the intersection of Highway 138 and Interstate 85. There Jones forced the victim at gunpoint to withdraw approximately $400 in cash and hand it over to him, whereupon he fled, leaving her at the service station. Jones argues, in his sole enumeration of error, that several of the offenses of which he was found guilty should have been merged by the trial court for purposes of sentencing. "The key question in determining whether offenses have merged is whether the different offenses are proven with the same set of facts."[2] "We review this legal issue de novo."[3] 1. Jones first argues that the two aggravated assault counts (OCGA § 16-5-21(a)) should merge. This argument is without merit. One aggravated assault count was for aggravated assault with a knife (Count 4 of the indictment); the other was for aggravated assault with a gun (Count 5). The evidence shows that Jones first grabbed the victim and threatened her with a knife. At this point, the crime of aggravated assault with a knife was complete. Only after he had taken her upstairs to her bedroom did he threaten her with the gun. At that point, he committed aggravated assault with a gun. "Accordingly, the underlying facts used to prove each offense are different and the evidence showed that one crime was complete before the other occurred."[4] 605 2. Jones argues that Count 7, hijacking a motor vehicle (OCGA § 16-5-44.1(b)), should merge with Count 8, armed robbery (OCGA § 16-8-41(a)). Under the facts of this case, however, these two offenses were committed separately, not only as to time, but also as to place. Jones hijacked the victim's car in her driveway, when he obtained it in the victim's presence, by force, while in possession of a firearm. Later, he committed armed robbery when he took the victim's money at gunpoint at the ATM. Thus, the evidence used to prove each crime is different, and the record shows that one crime was complete before the other took place.[5] Moreover, the hijacking statute specifically provides that motor vehicle hijacking "shall be considered a separate offense and shall not merge with any other offense."[6] 3. Jones asserts that Count 12, false imprisonment (OCGA § 16-5-41(a)), should have been merged into Count 10, kidnapping with bodily injury (OCGA § 16-5-40). The record shows, however, that Jones forced the victim upstairs where he sexually abused her and beat her up. At that point, the evidence necessary for the jury to find Jones guilty of kidnapping ("the asportation of the victim [somewhere] she did not wish to go"[7]) with bodily injury was complete.[8] False imprisonment occurred later, when Jones forced the victim to remain with him in her bedroom and bathroom while he cut her hair against her will.[9] 4. Jones contends that Count 6, battery (OCGA § 16-5-23.1(a)), is factually included in Count 10, kidnapping with bodily injury. Count 6 charges Jones with battery because he "did intentionally cause visible bodily harm to [the victim] by striking her several times with his fist causing brusing [sic] to her forehead." The only allegation of bodily injury in connection with the kidnapping count is that Jones "did hold [the victim] against her will, said act resulting in . . . bruising on her head." Thus, the evidence required to convict Jones of battery was the only evidence showing the bodily injury described in the kidnapping charge. "If, in establishing the commission of a crime, the State relies entirely upon the same evidence used to establish a separate crime charged in the same indictment, as a matter of law the former charge is included in the latter charge."[10] The offense of battery was included in, and should have been merged with, the offense of kidnapping with bodily injury. Therefore, we vacate the sentence imposed under Count 6 and remand the case for resentencing, with directions to merge Count 6 into Count 10. 5. Jones contends that his convictions for theft by taking (OCGA § 16-8-2) under Counts 18, 19, and 20 should all have been merged into his conviction for armed robbery (Count 8). Under the same analysis used in Division 1 above, however, these are separate offenses because each is established by proof of different facts:[11] the theft-by-taking 606 convictions were based on Jones's taking the victim's handgun, laptop computer, and camcorder from her home, whereas the armed robbery conviction was based on Jones's later taking cash from the victim at gunpoint at the ATM, some distance away. 6. We find merit, however, in Jones's argument that the theft-by-taking counts (Counts 18, 19, and 20) should have been merged into each other. Where one victim is robbed of multiple items in a single transaction, only one robbery is committed;[12] thus, the facts in this case support only one conviction for theft by taking, and the trial court erred in failing to merge Counts 19 and 20 into Count 18. Thus, we vacate the sentences imposed under Counts 19 and 20 and direct the trial court to merge Counts 19 and 20 into Count 18 for resentencing. 7. Jones also challenges the sentences imposed for violation of OCGA § 16-11-106(b) under Count 13 (possession of a handgun during the commission of aggravated assault), Count 14 (possession of a handgun during the commission of kidnapping), and Count 15 (possession of a handgun during the commission of hijacking a motor vehicle). Jones apparently argues that these convictions should be merged into his conviction under Count 9 (possession of a handgun during the commission of rape), the sentence for which he has not challenged in this appeal. Where there is a single victim, the defendant may be convicted once, but only once, under each of the five subsections of OCGA XX-XX-XXX(b).[13] Thus, as to Counts 9 and 15, we conclude that no merger occurs because Count 15 is based on section (b)(3) of the statute, whereas Count 9 is based on section (b)(1). Because Counts 9, 13, and 14 are all based on section (b)(1), however, Counts 13 and 14 should have been merged into Count 9. Accordingly, we vacate Jones's sentences under Counts 13 and 14 and direct the trial court to merge Counts 13 and 14 into Count 9 for resentencing on remand. 8. In summary, we vacate the sentence imposed under Count 6 (battery) and direct the trial court to merge Count 6 into Count 10 (kidnapping), in accordance with Division 4 above; we vacate the sentences imposed under Counts 19 and 20 (theft by taking) and direct the trial court to merge Counts 19 and 20 into Count 18, in accordance with Division 6 above; we vacate the sentences imposed under Counts 13 and 14 (possession of a weapon during the commission of a felony) and direct the trial court to merge Counts 13 and 14 into Count 9, in accordance with Division 7 above; and we remand to the trial court for resentencing on the surviving counts. Appellant having enumerated no other errors, we affirm the judgment in all other respects. Judgment affirmed; sentence vacated in part and case remanded for resentencing. JOHNSON, P.J., and PHIPPS, J., concur. NOTES [1] The witness is also known as Enero Cooper. [2] (Citations omitted.) Jones v. State, 279 Ga. 854, 857(3), 622 S.E.2d 1 (2005). See also OCGA § 16-1-6(1). [3] (Citation and footnote omitted.) Cutter v. State, 275 Ga.App. 888, 889(1), 622 S.E.2d 96 (2005). [4] (Citation and punctuation omitted.) Chatfield v. State, 279 Ga.App. 32, 36(2), 630 S.E.2d 178 (2006) (no merger where aggravated assault with gun preceded aggravated assault with knife). [5] See id. [6] OCGA § 16-5-44.1(d). See also Boykin v. State, 264 Ga.App. 836, 842(6), 592 S.E.2d 426 (2003) (armed robbery did not merge with hijacking a motor vehicle). [7] Johnson v. State, 195 Ga.App. 723, 724(2), 394 S.E.2d 586 (1990). [8] See Owens v. State, 271 Ga.App. 365, 367-368(2), 609 S.E.2d 670 (2005) (first, defendant committed false imprisonment by holding victim at gunpoint; kidnapping occurred immediately after, when defendant forced victim from store proper to store's back office); OCGA § 16-5-40(a) ("[a] person commits the offense of kidnapping when he abducts . . . any person without lawful authority . . . and holds such person against his will"). [9] See Johnson, supra (kidnapping victim by car did not merge with false imprisonment occurring when defendant held victim in car against her will). [10] (Citation and punctuation omitted.) Guillen v. State, 258 Ga.App. 465, 471(6), 574 S.E.2d 598 (2002) (aggravated battery by stabbing merged into kidnapping with bodily injury as a matter of law where proof of stabbing was only evidence showing bodily injury described in kidnapping charge). [11] See Clay v. State, 209 Ga.App. 266, 269(3), 433 S.E.2d 377 (1993) (no merger of aggravated assault and armed robbery where "victim testified to several different, although sequential, acts performed by [defendant] against her person") (footnote omitted). [12] See Bland v. State, 264 Ga. 610, 612(4), 449 S.E.2d 116 (1994) (taking of multiple items from one victim in single transaction supports only one conviction of armed robbery); accord Phanamixay v. State, 260 Ga.App. 177, 180(3), 581 S.E.2d 286 (2003). Compare Jones, supra at 857-858(3), 622 S.E.2d 1. [13] See State v. Marlowe, 277 Ga. 383, 386(2)(c), 589 S.E.2d 69 (2003); accord Bell v. State, 278 Ga. 69, 73(7), 597 S.E.2d 350 (2004) (conviction for possession of knife during commission of murder merged with conviction for possession of knife during commission of kidnapping with bodily injury); OCGA § 16-11-106(b) ("Any person who shall have on or within arm's reach of his . . . person a firearm . . . during the commission of . . . (1) [a]ny crime against or involving the person of another; [or] (3) [a] theft . . . of a vehicle; . . . and which crime is a felony, commits a felony").	10-30-2013	[ "645 S.E.2d 602 (2007) JONES v. The STATE. No. A07A0227. Court of Appeals of Georgia. April 16, 2007. 603 James W. Bradley, Jonesoboro, for appellant. Jewel C. Scott, District Attorney, Melvin Abercrombie, Assistant District Attorney, for appellee. MIKELL, Judge. After a jury trial, Bill Joseph Jones was found guilty and sentenced to life imprisonment (with the possibility of parole) plus five years for his convictions on the following counts: rape (life); kidnapping with bodily injury (life); two counts of aggravated assault (twenty years per count); hijacking a motor vehicle (twenty years); armed robbery (twenty years); two counts of aggravated sodomy (twenty years per count); aggravated stalking (ten years); false imprisonment 604 (ten years); battery (twelve months); one count of theft by taking (ten years); two additional counts of theft by taking (twelve months per count); all to run concurrently.", "In addition, Jones was sentenced to five years per count for his convictions on four counts of possession of a firearm in the commission of a felony, these sentences to run concurrently with each other but consecutively to the other terms of imprisonment. On appeal, Jones challenges the sentences imposed by the trial court. We conclude that the trial court erred in failing to merge certain charges for sentencing purposes. As appellant has enumerated no other errors, we affirm all other aspects of the judgment. Viewed in the light most favorable to support the jury's verdict, the record shows that, on December 19, 2005, Jones broke into the home of the victim, who had formerly been his girlfriend, and, when she later returned, he seized her from behind and put a large knife to her neck, causing her to scream so loudly that a neighbor heard her. At the time of the incident, a family violence protective order, obtained some months earlier by the victim, was outstanding against Jones.", "Telling her, \"I will stab your eye out if you move,\" he made her disrobe and crawl on her knees up the stairs to her bedroom. He told her that he intended to rape her, steal her car, and flee to Mexico. He searched for and found her gun; threatening her with it, he forced her to engage in oral sex with him; he raped her anally, then vaginally; and he beat her in the face with his hands and fists, inflicting visible injuries upon her. At this point, Jeff Cooper,[1] the victim's neighbor, became concerned for her safety and rang the doorbell. Jones prevented her from answering the door; instead, he made her speak to Cooper through the upstairs window.", "After Cooper left, Jones forced the victim onto her knees and cut off her long hair. He grabbed a bag which he had filled with items belonging to her, including a laptop computer and a camcorder, and forced the victim to accompany him outside, where Cooper, who had already summoned the police, accosted Jones and urged him to release her. Jones replied, \"[T]his has nothing to do with you, I've got a gun.\" He ordered the victim into her car, drove it around the corner, and abandoned it when he heard approaching police sirens. He forced the victim to accompany him on foot until they finally reached a Chevron service station with an automatic teller machine (ATM), near the intersection of Highway 138 and Interstate 85. There Jones forced the victim at gunpoint to withdraw approximately $400 in cash and hand it over to him, whereupon he fled, leaving her at the service station.", "Jones argues, in his sole enumeration of error, that several of the offenses of which he was found guilty should have been merged by the trial court for purposes of sentencing. \"The key question in determining whether offenses have merged is whether the different offenses are proven with the same set of facts. \"[2] \"We review this legal issue de novo. \"[3] 1. Jones first argues that the two aggravated assault counts (OCGA § 16-5-21(a)) should merge. This argument is without merit. One aggravated assault count was for aggravated assault with a knife (Count 4 of the indictment); the other was for aggravated assault with a gun (Count 5). The evidence shows that Jones first grabbed the victim and threatened her with a knife.", "At this point, the crime of aggravated assault with a knife was complete. Only after he had taken her upstairs to her bedroom did he threaten her with the gun. At that point, he committed aggravated assault with a gun. \"Accordingly, the underlying facts used to prove each offense are different and the evidence showed that one crime was complete before the other occurred. \"[4] 605 2.", "Jones argues that Count 7, hijacking a motor vehicle (OCGA § 16-5-44.1(b)), should merge with Count 8, armed robbery (OCGA § 16-8-41(a)). Under the facts of this case, however, these two offenses were committed separately, not only as to time, but also as to place. Jones hijacked the victim's car in her driveway, when he obtained it in the victim's presence, by force, while in possession of a firearm. Later, he committed armed robbery when he took the victim's money at gunpoint at the ATM. Thus, the evidence used to prove each crime is different, and the record shows that one crime was complete before the other took place. [5] Moreover, the hijacking statute specifically provides that motor vehicle hijacking \"shall be considered a separate offense and shall not merge with any other offense.", "\"[6] 3. Jones asserts that Count 12, false imprisonment (OCGA § 16-5-41(a)), should have been merged into Count 10, kidnapping with bodily injury (OCGA § 16-5-40). The record shows, however, that Jones forced the victim upstairs where he sexually abused her and beat her up. At that point, the evidence necessary for the jury to find Jones guilty of kidnapping (\"the asportation of the victim [somewhere] she did not wish to go\"[7]) with bodily injury was complete. [8] False imprisonment occurred later, when Jones forced the victim to remain with him in her bedroom and bathroom while he cut her hair against her will. [9] 4. Jones contends that Count 6, battery (OCGA § 16-5-23.1(a)), is factually included in Count 10, kidnapping with bodily injury.", "Count 6 charges Jones with battery because he \"did intentionally cause visible bodily harm to [the victim] by striking her several times with his fist causing brusing [sic] to her forehead.\" The only allegation of bodily injury in connection with the kidnapping count is that Jones \"did hold [the victim] against her will, said act resulting in . . . bruising on her head.\" Thus, the evidence required to convict Jones of battery was the only evidence showing the bodily injury described in the kidnapping charge. \"If, in establishing the commission of a crime, the State relies entirely upon the same evidence used to establish a separate crime charged in the same indictment, as a matter of law the former charge is included in the latter charge. \"[10] The offense of battery was included in, and should have been merged with, the offense of kidnapping with bodily injury. Therefore, we vacate the sentence imposed under Count 6 and remand the case for resentencing, with directions to merge Count 6 into Count 10.", "5. Jones contends that his convictions for theft by taking (OCGA § 16-8-2) under Counts 18, 19, and 20 should all have been merged into his conviction for armed robbery (Count 8). Under the same analysis used in Division 1 above, however, these are separate offenses because each is established by proof of different facts:[11] the theft-by-taking 606 convictions were based on Jones's taking the victim's handgun, laptop computer, and camcorder from her home, whereas the armed robbery conviction was based on Jones's later taking cash from the victim at gunpoint at the ATM, some distance away. 6. We find merit, however, in Jones's argument that the theft-by-taking counts (Counts 18, 19, and 20) should have been merged into each other. Where one victim is robbed of multiple items in a single transaction, only one robbery is committed;[12] thus, the facts in this case support only one conviction for theft by taking, and the trial court erred in failing to merge Counts 19 and 20 into Count 18.", "Thus, we vacate the sentences imposed under Counts 19 and 20 and direct the trial court to merge Counts 19 and 20 into Count 18 for resentencing. 7. Jones also challenges the sentences imposed for violation of OCGA § 16-11-106(b) under Count 13 (possession of a handgun during the commission of aggravated assault), Count 14 (possession of a handgun during the commission of kidnapping), and Count 15 (possession of a handgun during the commission of hijacking a motor vehicle). Jones apparently argues that these convictions should be merged into his conviction under Count 9 (possession of a handgun during the commission of rape), the sentence for which he has not challenged in this appeal. Where there is a single victim, the defendant may be convicted once, but only once, under each of the five subsections of OCGA XX-XX-XXX(b).", "[13] Thus, as to Counts 9 and 15, we conclude that no merger occurs because Count 15 is based on section (b)(3) of the statute, whereas Count 9 is based on section (b)(1). Because Counts 9, 13, and 14 are all based on section (b)(1), however, Counts 13 and 14 should have been merged into Count 9. Accordingly, we vacate Jones's sentences under Counts 13 and 14 and direct the trial court to merge Counts 13 and 14 into Count 9 for resentencing on remand. 8. In summary, we vacate the sentence imposed under Count 6 (battery) and direct the trial court to merge Count 6 into Count 10 (kidnapping), in accordance with Division 4 above; we vacate the sentences imposed under Counts 19 and 20 (theft by taking) and direct the trial court to merge Counts 19 and 20 into Count 18, in accordance with Division 6 above; we vacate the sentences imposed under Counts 13 and 14 (possession of a weapon during the commission of a felony) and direct the trial court to merge Counts 13 and 14 into Count 9, in accordance with Division 7 above; and we remand to the trial court for resentencing on the surviving counts. Appellant having enumerated no other errors, we affirm the judgment in all other respects. Judgment affirmed; sentence vacated in part and case remanded for resentencing.", "JOHNSON, P.J., and PHIPPS, J., concur. NOTES [1] The witness is also known as Enero Cooper. [2] (Citations omitted.) Jones v. State, 279 Ga. 854, 857(3), 622 S.E.2d 1 (2005). See also OCGA § 16-1-6(1). [3] (Citation and footnote omitted.) Cutter v. State, 275 Ga.App. 888, 889(1), 622 S.E.2d 96 (2005). [4] (Citation and punctuation omitted.) Chatfield v. State, 279 Ga.App. 32, 36(2), 630 S.E.2d 178 (2006) (no merger where aggravated assault with gun preceded aggravated assault with knife). [5] See id. [6] OCGA § 16-5-44.1(d). See also Boykin v. State, 264 Ga.App. 836, 842(6), 592 S.E.2d 426 (2003) (armed robbery did not merge with hijacking a motor vehicle). [7] Johnson v. State, 195 Ga.App. 723, 724(2), 394 S.E.2d 586 (1990). [8] See Owens v. State, 271 Ga.App. 365, 367-368(2), 609 S.E.2d 670 (2005) (first, defendant committed false imprisonment by holding victim at gunpoint; kidnapping occurred immediately after, when defendant forced victim from store proper to store's back office); OCGA § 16-5-40(a) (\"[a] person commits the offense of kidnapping when he abducts . .", ". any person without lawful authority . . . and holds such person against his will\"). [9] See Johnson, supra (kidnapping victim by car did not merge with false imprisonment occurring when defendant held victim in car against her will). [10] (Citation and punctuation omitted.) Guillen v. State, 258 Ga.App. 465, 471(6), 574 S.E.2d 598 (2002) (aggravated battery by stabbing merged into kidnapping with bodily injury as a matter of law where proof of stabbing was only evidence showing bodily injury described in kidnapping charge). [11] See Clay v. State, 209 Ga.App. 266, 269(3), 433 S.E.2d 377 (1993) (no merger of aggravated assault and armed robbery where \"victim testified to several different, although sequential, acts performed by [defendant] against her person\") (footnote omitted).", "[12] See Bland v. State, 264 Ga. 610, 612(4), 449 S.E.2d 116 (1994) (taking of multiple items from one victim in single transaction supports only one conviction of armed robbery); accord Phanamixay v. State, 260 Ga.App. 177, 180(3), 581 S.E.2d 286 (2003). Compare Jones, supra at 857-858(3), 622 S.E.2d 1. [13] See State v. Marlowe, 277 Ga. 383, 386(2)(c), 589 S.E.2d 69 (2003); accord Bell v. State, 278 Ga. 69, 73(7), 597 S.E.2d 350 (2004) (conviction for possession of knife during commission of murder merged with conviction for possession of knife during commission of kidnapping with bodily injury); OCGA § 16-11-106(b) (\"Any person who shall have on or within arm's reach of his . . . person a firearm . . . during the commission of . . .", "(1) [a]ny crime against or involving the person of another; [or] (3) [a] theft . . . of a vehicle; . . . and which crime is a felony, commits a felony\")." ]	https://www.courtlistener.com/api/rest/v3/opinions/1269231/	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20 Page 1 of 45 Exhibit 1 Case 1:20-mc-00199-JGK-OTW 102 Document 66-1 Filed 09/17/20 Page 2 of 45 FoskettvMcKeown (HL(E)) [2001] 1 AC House of Lords A Foskett v McKeown and others 1999 March 15,16,17, 22; Lord Browne-Wilkinson, Lord Steyn, 2000 May 18 Lord Hoffmann, Lord Hope of Craighead and Lord Millett fi Trusts — Trustee — Breach of trust — Trustee fraudulently using trust moneys to pay premiums on policy of life insurance — Policy held for benefit of innocent volunteers — Whether trust moneys traceable into policy proceeds — Whether trust beneficiaries entitled to share of proceeds In 1988 a number of purchasers entrusted a total of £2-6m t o M and an associate for a property development scheme in Portugal on terms that within two years the developed plots would be conveyed to the purchasers or their money repaid with interest. The scheme was never carried out. M, in breach of trust, used some £20,440 of the purchasers' money to pay two annual premiums for 1989 and 1990 on a whole life insurance policy effected in 1986. There was a dispute as to the extent to which he used trust moneys to pay the premium for 1988. The policy provided that, in consideration of the first premium and of the further premiums payable under the policy, a specified death benefit was to be paid on M's death, namely whichever u was greater of £ i m a n d the aggregate value of units notionally allocated to the policy. The policy provided for those units to be allocated on receipt of each premium, and that units were to be cancelled each year in order to meet the cost of the life cover for that year. The surrender value of the policy was the aggregate value of the uncancelled units from time to time. In 1989 M divested himself of any beneficial interest in the policy, appointing it to be held principally for the benefit of his three children, the third to fifth defendants. In 1991 M committed suicide, whereupon the insurers paid to the trustees of the policy, the first and second defendants, £ i m , as F the death benefit due under it. In 1994 the purchasers obtained a declaration that the land in Portugal and the shares in the company which was to develop it were held in trust for the purchasers. They also obtained £600,000 under a compromise with the bank from whose accounts the money had been misappropriated. The purchasers then brought an action claiming the proceeds of the policy. The judge held that they could recover 5 3-46% of the proceeds as representing the extent to which their money had contributed to the investment value of the policy at the date of M's death. The F Court of Appeal held, allowing an appeal by the third to fifth defendants, that the use of the purchasers' money to pay the premiums could not give them an equitable interest in the death benefit nor could it give them a share in the proceeds of the policy proportionate to the premiums paid with their money and that they were limited to a restitutionary charge over the proceeds of the policy to the extent that their money could be traced into the premiums with interest thereon. On appeal by the purchasers and cross-appeal by the third to fifth defendants— C Held, (1) dismissing the cross-appeal, that the remedy claimed by the purchasers was a proprietary remedy, and the compensation obtained by them in earlier proceedings could not deprive them of their proprietary interest in their own money; that, since the policy proceeds were paid in consideration of the receipt of all the premiums payable under the policy, the purchasers were able to follow their money into the policy when the premiums were paid and from there into the hands of the trustees when the death benefit was paid to them, so as to obtain reimbursement from /-/ the policy proceeds of the amount of the premiums paid with their money with interest (post, pp 108C-D, 112.B, 113E-F, 115E-G, 117G-118C, 119E-H, 145D-E). (2) Allowing the appeal (Lord Steyn and Lord Hope of Craighead dissenting), that, where a trustee wrongfully used trust money to provide part of the cost of acquiring an asset, the beneficiary was entitled, at his option, either to claim a Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20 Page 3 of 45 103 [2001] 1 AC FoskettvMcKeown (HL(E)) A proportionate share of the asset or to enforce a lien upon it to secure his personal claim against the trustee for the amount of the misapplied money; that it was immaterial whether the trustee mixed the trust money with his own in a single fund before using it to acquire the asset, or made separate payments, either simultaneously or sequentially, out of the differently owned funds to acquire a single asset; that volunteers deriving title otherwise than for value could be in no better position than the wrongdoer notwithstanding their innocence of any wrongdoing; and that, 8 accordingly, since the purchasers could trace trust money through the premiums into the policy money, and since the beneficiaries of the policy were volunteers and had not themselves contributed to the premiums, the purchasers were entitled to a share in the policy proceeds proportionate to the premiums paid out of the trust money (post, pp I O 8 D , 109H-110E, I T B - E , 115E-G, H - I I 6 B , C - D , 127F-H, 129B-C, 129H-130C, 131G-132G, 134C-E, 139F-140A, 141A-C, 145D-E). Dictum of Sir George Jessel MR in In re Hallett's Estate; Knatchbull v Hallett C (1880) 13 ChD 696, 709, CAdisapproved. Decision of the Court of Appeal [1998] Ch 265; [1998] 2 WLR 298; [1997] 3 All ER 392 varied. The following cases are referred to in the opinions of their Lordships: Baxter House Inc v Rosen (1967) 278 NYSid442 D'Avigdor-Goldsmid v Inland Revenue Comrs [1953] AC 347; [1953] 2 WLR 372; D [1953] 1 All ER 403, HL(E) Diplock, In re; Diplock v Wintle [1948] Ch 465; [1948] 2 All ER 318, CA Edinburgh Corpn v Lord Advocate (1879) 4 App Cas 823, HL(Sc) Edinburgh, Magistrates ofv McLaren (1881) 8 R 140, HL(Sc) El Ajou v Dollar Land Holdings pic [1993] 3 All ER717 Falcke v Scottish Imperial Insurance Co (1886) 34 Ch D 234, CA Frith v Cartland{z86s) 2 H 8c M 417 £ Hallett's Estate, In re; Knatchbull v Hallett (1880) 13 Ch D 696, CA Holmes v Gilman (1893) 138 NY 369 Jones v De Marchant (1916) 28 DLR 561 Jones (F C) & Sons (Trustee of the Property of) v Jones [1997] Ch 159; [1996] 3 WLR 703; [1996] 4 All ER 721, CA Leslie, In re; Leslie v French ( 1 8 8 3 ) 2 3 ^ 0 5 5 2 Lohman v General American Life Insurance Co (1973) 478 F2d 719 F Lupton v White (1808) 15 Ves 43 2 Primeau v Granfield (1911) 184 F480 Sandeman & Sons v Tyzack and Branfoot Steamship Co Ltd [19131 AC 680, HL(Sc) Scott vScott (1963) 109 CLR 649 Shalerv Trowbridge (1877) 28 NJEq 595 Sinclair v Brougham [1914] AC 398, HL(E) Thum v Wolstenholme (1900) 61 P 537 Tilley's Will Trusts, In re [1967] Ch 1179; [1967] 2 WLR 1533; [1967] 2 All ER 303 Truelsch v Northwestern Mutual Life Insurance Co (1925) 202 NW 352 Vorlander vKeyes (1924) 1 F2d 67 The following additional case was cited in argument: Halifax Building Society v Thomas [1996] Ch 217; [1996] 2 WLR 63; [1995] 4 All ER673,CA H APPEAL from the Court of Appeal This was an appeal by the plaintiff, Paul Foskett, acting on his own behalf and on behalf of 2.19 other potential purchasers of plots of land at M o u n t Eden, Algarve, Portugal, and a cross-appeal by the third to fifth defendants, Daragh Timothy Murphy, Jason John M u r p h y and Louise Mary M u r p h y Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20 Page 4 of 45 104 FoskettvMcKeown(HL(E)) [2001] 1 AC (the children of Timothy Mary Murphy, deceased, and the principal A beneficiaries under a policy of life insurance effected by him), from a decision of the Court of Appeal (Sir Richard Scott V-C and Hobhouse LJ; Morritt LJ dissenting) on 21 May 1997 allowing an appeal by the third to fifth defendants from a decision of Laddie J on 12 July 1996 on a summons for summary judgment under RSC Ord 14, awarding the plaintiff 53-46% of the death benefit paid to the first and second defendants, Jean Elizabeth McKeown and Michael John Nelson. On 18 December 1997 the House of Lords (Lord Lloyd of Berwick, Lord Nolan and Lord Clyde) granted the plaintiff leave to appeal. On 21 May 1998 the House of Lords (Lord Browne-Wilkinson, Lord Hope of Craighead and Lord Hutton) granted the third to fifth defendants leave to cross-appeal. The facts are stated in the opinions of their Lordships. Richard Mawrey QC and Adrian Cooper for the plaintiffs. M held the money on express trust for the purchasers and held the insurance policy on trust for a class which excluded himself. The two trust funds were mixed. Where a trustee of two separate trusts (A and B) employs the assets of trust A to contribute towards the assets of trust B, the beneficiaries of trust A have a proprietary claim against the assets of trust B. They can elect to recover the amount of the wrongful contribution, with interest, or to take a share of the D assets of trust B proportionate to the contribution from trust A: see Edinburgh Corpn v Lord Advocate (1:879) 4 App Cas 823. Although this case was analysed in terms of tracing, it is in fact the application of a more general equitable principle of fairness in judging between competing innocent claimants to the same fund. The identity of the competing claimants is irrelevant since tracing is independent of any state of knowledge or notice of the wrongful application of trust funds. A "guilty" beneficiary, as M was when he was an actual or potential beneficiary of the policy, is neither essential nor relevant to the tracing of misappropriated moneys into their proceeds. The misuse by M of the purchasers' moneys to pay the premiums on the policy gave the purchasers a proprietary right against the proceeds sufficient to enable them to recover the premiums paid plus interest, whether that right F was regarded as giving rise to a tracing claim or to an equitable lien or charge. Whether the purchasers can go further and assert a proprietary claim to a pro rata proportion of the proceeds of the policy depends on the answer to the question whether, where a "whole life" policy of life insurance requires the payment of annual premiums, those premiums are to be treated as contributing rateably to the acquisition of the policy and its eventual c proceeds, thus creating a proportionate equitable interest for the beneficiary of the trust or the tracing claim, or simply as maintaining in existence an asset which has been acquired bu the granting of the policy and the payment of the first premium. Clearly, where the asset is acquired by a single payment and transferred into the name of one or more persons then anyone else who wishes to assert a proprietary right to the asset must show that he provided some or all of that single payment. If however the acquisition of the asset involves the making of payments over a period of time it might be unrealistic to have regard only to the the transaction whereby title came to be vested in the acquirer. The obvious example is property purchased on mortgage where outright title is normally acquired by the mortgagor with money provided by the Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20105Page 5 of 45 [2001] 1 AC FoskettvMcKeown(HL(E)) A mortgagee, but a third party who subsequently pays a mortgage instalment at the express or implied request of the mortgagor might obtain a proprietary interest even though those instalments did not directly contribute to the actual acquisition of title. Therefore the distinction between contribution to acquisition at or prior to the time of acquisition, and contribution to the asset thereafter, is not always sustainable. It is better to have regard to the nature of the asset and to apply general equitable principles to ascertain whether contributions give rise to an equitable entitlement. The true nature of a whole life policy is that it is an asset acquired by payment of all the premiums and not an asset acquired by payment of the first premium alone and merely maintained by the payment of subsequent premiums. Where an asset is purchased in circumstances giving rise to a C trust, the beneficiary under the trust can elect to recover the amount of the purchase money or to claim a proportionate interest in the value of the asset: see In re Diplock; Diplock v Wintle [1948] Ch 465 and In re Tilley's Will Trusts [196-/] Ch 1179. Where a wrongdoer holds the legal title to property which is subject to a claim based on constructive trust or the equitable right to trace, the Q wrongdoer cannot defeat the claim by executing a declaration of trust in favour of a third party. It would match the layman's approach to what is just if the proceeds of the policy were split between the purchasers and the children. Roger Kaye QC and Clare Stanley for the defendants. The policy moneys are not the true product of a relevant mixed fund. This is not a case of unjust ^ enrichment but of vindication of property rights. The purchasers have no property rights to vindicate. The purchasers elected to take the plots in specie, the very property for which their deposit moneys were earmarked. Therefore the purchasers cannot establish that they retained any equitable interest in the deposit moneys. They have no proprietary base from which they can trace. Thus, they can make no proprietary claim to the policy moneys. Besides, the F purchasers obtained compensation from Lloyds Bank Pic for breach of trust in relation to dealings with the relevant account. They thus made a binding election preventing them from pursuing any claim to the policy moneys. Alternatively, if the purchasers can establish a proprietary claim, they nevertheless cannot trace into the policy moneys because the moneys used to pay the 1989 and 1990 premiums cannot be identified as being represented Q by the policy moneys since the policy was acquired prior to the payment of the premiums, and one cannot trace into an asset already acquired. Those premiums were not made in exchange for anything since they did not increase the value of the policy or policy moneys. The same sum would have been paid out on M's death whether or not those premiums had been paid. If the asset has disappeared then it cannot be traced. It cannot be traced into a product which has been acquired with other-source moneys. The law hitherto has been that you cannot trace into an improvement or into an asset already acquired. Tracing is forward-looking and is all about identifying proprietary rights, not about identifying value in the asset claimed. [Reference was made to In re Diplock; Diplock v Wintle [1948] Ch 465; In re Leslie; Leslie v French (1883) 23 ChD 552; D'Avigdor-Goldsmid v Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20 Page 6 of 45 106 FoskettvMcKeown (HL(E)) [2001] 1 AC Lord Browne-Wilkinson Inland Revenue Comrs [1953] AC 347 and Halifax Building Society v A Thomas [1996] Ch 217.] If the purchasers cannot trace into the policy or policy moneys, they are not entitled to the policy moneys on the basis of a resulting or constructive trust. If it is accepted that the 1989 and 1990 premiums did not contribute to the acquisition of the policy or policy moneys, then no resulting trust can have arisen. In any event, the policy had already been settled on the children by that time. A resulting trust cannot vary vested interests. Neither is this a case where the institutional constructive trust can arise: the children owed no fiduciary duties and have not acted unconscionably. If the 1989 and 1990 premiums can be traced, the remedy is a lien for the amount of the premiums, not a hitherto unknown type of constructive trust. It is neither against conscience nor inequitable that the children should keep the money since they are innocent of any wrongdoing. They acquired c their property interest before the fraud commenced and prior to the time the money was subtracted from the purchasers. The first premiums were paid before the fraud commenced. Justice is well served by restoring to the purchasers their premiums. Mawrey QC replied. Their Lordships took time for consideration. 18 May 2000. LORD BROWNE-WILKINSON My Lords, there are many cases in which the court has to decide which of two innocent parties is to suffer from the activities of a fraudster. This case, unusually, raises the converse question: which of two innocent parties is to benefit from the activities of the fraudster. In my judgment, in the context of this case the two E types of case fall to be decided on exactly the same principles, viz, by determining who enjoys the ownership of the property in which the loss or the unexpected benefit is reflected. On 6 November 1986, Mr Murphy effected a whole-life policy ("the policy") with Barclays Life Assurance Co Ltd ("the insurers") in the sum of £ i m at an annual premium of £10,220. The policy (which was issued on 27 January 1987) provided that on the death of Mr Murphy a specified death benefit became payable, such benefit being the greater of (1) the sum assured (£im) and (2) the aggregate value of units notionally allocated under the terms of the policy to the policy at their bid price on the day of the receipt by the insurers of a written notice of death. The policy stated that "in consideration of the first premium already paid and of the further premiums payable and subject to the conditions of this policy the company will on the c death of the life assured pay to the policy holder or his successors in title ('the policy holder') the benefits specified". Although primarily a whole-life policy assuring the sum assured of £ i m , the policy had an additional feature, viz, a notional investment content which served three purposes. First, it determined the surrender value of the policy. Second, it determined the alternative calculation of the death benefit if the value of the notionally allocated units exceeded the sum assured of £im. Third, the investment element was used to pay for the cost of life cover after the payment of the second premium in November 1987. By condition 4 of the policy, units were notionally allocated to the policy upon receipt of the second and all subsequent premiums. By condition 6 of the policy, upon Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20 Page 7 of 45 107 [2001 ] 1 AC Foskett v McKeown (HL(E)) Lord Browne-Wilkinson A receipt of each premium resulting in the notional allocation of units under condition 4, the insurers cancelled sufficient units to meet the cost of life cover for the next year. Condition 10 provided for conversion of the policy into a paid-up policy: units would thereafter continue to be cancelled under condition 6 so long as there were units available for that purpose. As soon as there were no units available, no death benefit or surrender value was to be available under the policy. Sir Richard Scott V-C [1998] Ch 265, 275, summarised the position as follows: "if a premium is not paid, then (provided at least two years' premiums have been paid) the policy is converted into a paid-up policy and units that have been allocated to the policy are applied annually in meeting the cost of life insurance until all the allocated units have been used up. Only at that point will the policy lapse." Five premiums were paid, in November 1986, 1987, 1988, 1989 and 1990. The 1986 and 1987 premiums were paid by Mr Murphy out of his own resources. The 1989 and 1990 premiums were paid out of moneys misappropriated by Mr Murphy from the plaintiffs. The source of the 1988 premium is disputed: unconditional leave to defend on issues relating to this premium has been granted. The policy was directed to be held on trusts. On 15 March 1989 the policy was irrevocably appointed to be held in trust for Mr Murphy absolutely. On 16 March 1989 he settled the policy on trust for his wife and his mother but subject to a power for him to appoint to members of a class which included his wife, his mother and his children but which excluded Mr Murphy himself. By a deed of appointment dated 1 December 1989 E Mr Murphy appointed the policy and all moneys payable thereunder upon trust (in the events which happened) as to one-tenth for Mrs Bridget Murphy and as to nine-tenths for his three children equally. I turn then to consider the source of the moneys which constituted the fourth and fifth premiums. In 1988 Mr Murphy, together with an associate of his, Mr Deasy, acquired control of an English company which itself owned and controlled a Portuguese company. Those two companies between them marketed plots of land forming part of a site in the Algarve in Portugal to be developed and sold by them to purchasers. Each prospective purchaser entered into a contract with one of the companies for the purchase of his plot. The contract required each purchaser to pay the purchase price to Mr Deasy, to be held by him upon the trusts of a trust deed ("the purchasers trust deed") under which the purchasers' money was to be held in C a separate bank account until either the plot of land was transferred to him or a period of two years had expired, whichever first happened. If after two years the plot had not been transferred to the purchaser the money was to be repaid with interest. Some 220 prospective purchasers entered into transactions to acquire plots on the building estate and paid some £2,645,000 to Mr Deasy to be held by him on the terms of the purchasers trust deed. However, the land in Portugal was never developed. When the time came for the money to be refunded to the purchasers it was found that it had been dissipated and that £20,440 of those funds had been used to pay the fourth and fifth premiums due under the policy. Mr Murphy committed suicide on 9 March 1991. On 6 June 1991 the insurers paid £1,000,580-04 to the two surviving trustees of the policy. Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20 Page 8 of 45 108 FoskettvMcKeown (HL(E)) [2001] 1 AC Lord Browne-Wilkinson Mrs Murphy has been paid her one-tenth share. The dispute, for the rest, A lies between Mr Murphy's three children (as beneficiaries under the policy trust) and the purchasers of the plots in Portugal, from whose money £20,440 has been applied in breach of the trusts of the purchasers trust deed in paying the fourth and fifth premiums. The purchasers allege that, at a minimum, 40% of the premiums on the policy have been paid out of their moneys and that having traced their moneys through the policy into the policy moneys, they are entitled to 40% of the policy moneys. On the other side, the children contend that the purchasers are not entitled to any interest at all or at most only to the return of the sum misappropriated to pay the premiums, viz, £20,440 plus interest. The Court of Appeal [1998] Ch 265 by a majority (Sir Richard Scott V-C and Hobhouse LJ; Morritt LJ dissenting) held that the purchasers were entitled to be repaid the amount of the fourth and fifth premiums together with interest but were not entitled to a pro rata C share of the policy proceeds. The purchasers appeal to your Lordships claiming that the policy moneys are held in trust for the children and themselves pro rata according to their respective contributions to the premiums paid out of the purchasers' moneys on the one hand and Mr Murphy personally on the other, i e, they claim that a minimum of 40% (being two out of the five premiums) is held in trust for the purchasers. The children, on the other hand, seek to uphold the decision of the majority of the Court of Appeal and, by cross-appeal, go further so as to claim that the purchasers are entitled to no rights in the policy moneys. As to the cross-appeal, I have read in draft the speech of my noble and learned friend, Lord Hope of Craighead. For the reasons which he gives I would dismiss the cross-appeal. As to the appeal, at the conclusion of the hearing I considered that the f majority of the Court of Appeal were correct and would have dismissed the appeal. However, having read the draft speech of Lord Millett I have changed my mind and for the reasons which he gives I would allow the appeal. But, as we are differing from the majority of the Court of Appeal I will say a word or two about the substance of the case and then deal with one minor matter on which I do not agree with my noble and learned friend, Lord Millett. The crucial factor in this case is to appreciate that the purchasers are claiming a proprietary interest in the policy moneys and that such proprietary interest is not dependent on any discretion vested in the court. Nor is the purchasers' claim based on unjust enrichment. It is based on the assertion by the purchasers of their equitable proprietary interest in identified property. The first step is to identify the interest of the purchasers: it is their absolute c equitable interest in the moneys originally held by Mr Deasy on the express trusts of the purchasers trust deed. This case does not involve any question of resulting or constructive trusts. The only trusts at issue are the express trusts of the purchasers trust deed. Under those express trusts the purchasers were entitled to equitable interests in the original moneys paid to Mr Deasy by the purchasers. Like any other equitable proprietary interest, those equitable proprietary interests under the purchasers trust deed which originally existed in the moneys paid to Mr Deasy now exist in any other property which, in law, now represents the original trust assets. Those equitable interests under the purchasers trust deed are also enforceable against whoever for the time being holds those assets other than someone who is a bona fide purchaser for Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20 Page 9 of 45 109 [2001] 1 AC Foskettv McKeown (HL(E)) Lord Browne-Wilkinson A value of the legal interest without notice or a person who claims through such a purchaser. No question of a bona fide purchaser arises in the present case: the children are mere volunteers under the policy trust. Therefore the critical question is whether the assets now subject to the express trusts of the purchasers trust deed comprise any part of the policy moneys, a question which depends on the rules of tracing. If, as a result of tracing, it can be said that certain of the policy moneys are what now represent part of the assets subject to the trusts of the purchasers trust deed, then as a matter of English property law the purchasers have an absolute interest in such moneys. There is no discretion vested in the court. There is no room for any consideration whether, in the circumstances of this particular case, it is in a moral sense "equitable" for the purchasers to be so entitled. The rules establishing equitable proprietary interests and their enforceability against certain parties C have been developed over the centuries and are an integral part of the property law of England. It is a fundamental error to think that, because certain property rights are equitable rather than legal, such rights are in some way discretionary. This case does not depend on whether it is fair, just and reasonable to give the purchasers an interest as a result of which the court in its discretion provides a remedy. It is a case of hard-nosed property rights. Can then the sums improperly used from the purchaser's moneys be traced into the policy moneys? Tracing is a process whereby assets are identified. I do not now want to enter into the dispute whether the legal and equitable rules of tracing are the same or differ. The question does not arise in this case. The question of tracing which does arise is whether the rules of tracing are those regulating tracing through a mixed fund or those regulating the position when moneys of one person have been innocently expended on E the property of another. In the former case (mixing of funds) it is established law that the mixed fund belongs proportionately to those whose moneys were mixed. In the latter case it is equally clear that money expended on maintaining or improving the property of another normally gives rise, at the most, to a proprietary lien to recover the moneys so expended. In certain cases the rules of tracing in such a case may give rise to no proprietary interest at all if to give such interest would be unfair: see In re Diplock; Diplock v Wintle [1948] Ch 465, 548. Both Sir Richard Scott V-C and Hobhouse LJ considered that the payment of a premium on someone else's policy was more akin to an improvement to land than to the mixing of separate trust moneys in one account. Hobhouse LJ was additionally influenced by the fact that the payment of the fourth and fifth premiums out of the purchasers' moneys C conferred no benefit on the children: the policy was theirs and, since the first two premiums had already been paid, the policy would not have lapsed even if the fourth and fifth premiums had not been paid. Cases where the money of one person has been expended on improving or maintaining the physical property of another raise special problems. The property left at the end of the day is incapable of being physically divided into its separate constituent assets, i e the land and the money spent on it. Nor can the rules for tracing moneys through a mixed fund apply: the essence of tracing through a mixed fund is the ability to re-divide the mixed fund into its constituent parts pro rata according to the value of the contributions made to it. The question which arises in this case is whether, for tracing purposes, the payments of the fourth and fifth premiums on a Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20 Page 10 of 45 110 FoskettvMcKeown (HL(E)) [2001] 1 AC Lord Browne-Wilkinson policy which, up to that date, had been the sole property of the children for A tracing purposes fall to be treated as analogous to the expenditure of cash on the physical property of another or as analogous to the mixture of moneys in a bank account. If the former analogy is to be preferred, the maximum amount recoverable by the purchasers will be the amount of the fourth and fifth premiums plus interest: if the latter analogy is preferred the children and the other purchasers will share the policy moneys pro rata. The speech of my noble and learned friend, Lord Millett, demonstrates why the analogy with moneys mixed in an account is the correct one. Where a trustee in breach of trust mixes money in his own bank account with trust moneys, the moneys in the account belong to the trustee personally and to the beneficiaries under the trust rateably according to the amounts respectively provided. On a proper analysis, there are "no moneys in the account" in the sense of physical cash. Immediately before the improper C mixture, the trustee had a chose in action being his right against the bank to demand a payment of the credit balance on his account. Immediately after the mixture, the trustee had the same chose in action (i e the right of action against the bank) but its value reflected in part the amount of the beneficiaries' moneys wrongly paid in. There is no doubt that in such a case of moneys mixed in a bank account the credit balance on the account belongs to the trustee and the beneficiaries rateably according to their respective contributions. So in the present case. Immediately before the payment of the fourth premium, the trust property held in trust for the children was a chose in action, i e the bundle of rights enforceable under the policy against the insurers. The trustee, by paying the fourth premium out of the moneys subject to the purchasers trust deed, wrongly mixed the value of the E premium with the value of the policy. Thereafter, the trustee for the children held the same chose in action (i e the policy) but it reflected the value of both contributions. The case, therefore, is wholly analogous to that where moneys are mixed in a bank account. It follows that, in my judgment, both the policy and the policy moneys belong to the children and the trust fund subject to the purchasers trust deed rateably according to their respective contributions to the premiums paid. The contrary view appears to be based primarily on the ground that to give the purchasers a rateable share of the policy moneys is not to reverse an unjust enrichment but to give the purchasers a wholly unwarranted windfall. I do not myself quibble at the description of it being "a windfall" on the facts of this case. But this windfall is enjoyed because of the rights which the purchasers enjoy under the law of property. A man under whose land oil is C discovered enjoys a very valuable windfall but no one suggests that he, as owner of the property, is not entitled to the windfall which goes with his property right. We are not dealing with a claim in unjust enrichment. Moreover the argument based on windfall can be, and is, much over- stated. It is said that the fourth and fifth premiums paid out of the purchasers' moneys did not increase the value of the policy in any way: the first and second premiums were, by themselves, sufficient under the unusual terms of the policy to pay all the premiums falling due without any assistance from the fourth and fifth premiums: even if the fourth and fifth premiums had not been paid the policy would have been in force at the time of Mr Murphy's death. Therefore, it is asked, what value has been derived Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20 Page 11 of 45 Ill [200111 AC FoskettvMcKeown(HL(E)) Lord Browne-Wilkinson A from the fourth and fifth premiums which can justify giving the purchasers a pro rata share. In my judgment this argument does not reflect the true position. It is true that, in the events which have happened, the fourth and fifth premiums were not required to keep the policy on foot until the death of Mr Murphy. But at the times the fourth and fifth premiums were paid (which must be the dates at which the beneficial interests in the policy were established) it was wholly uncertain what the future would bring. What if Mr Murphy had not died when he did? Say he had survived for another five years? The premiums paid in the fourth and fifth years would in those events have been directly responsible for keeping the policy in force until his death since the first and second premiums would long since have been exhausted in keeping the policy on foot. In those circumstances, would it be said that the purchasers were entitled to 100% of the policy moneys? In my judgment, the Q beneficial ownership of the policy, and therefore the policy moneys, cannot depend upon how events turn out. The rights of the parties in the policy, one way or another, were fixed when the relevant premiums were paid when the future was unknown. For these reasons and the much fuller reasons given by Lord Millett, I would allow the appeal and declare that the policy moneys were held in trust for the children and the purchasers in proportion to the contributions D which they respectively made to the five premiums paid. There is one small point on which my noble and learned friends, Lord Millett and Lord Hoffmann, disagree, namely, whether the pro rata division should take account of the notional allocation of units to the policy and to the fact that contributions were made at different times, i e when the various premiums were paid. I agree that, for the reasons given by Lord Hoffmann, it is not necessary to complicate the calculation of the pro rata shares by taking account of these factors and would therefore simply divide the policy moneys pro rata according to the contributions made to the payment of the premiums. LORD STEYN My Lords, this is a dispute between two groups of innocent parties about the rights to a death benefit of about £im paid by insurers pursuant to a whole life policy. The first group are individuals who p contracted between June 1989 and January 1991 to purchase plots of land in Portugal which were intended to be developed as an estate with villas and a golf and country club. Mr Timothy Murphy was the dominant figure behind the development project. He obtained over £z-6m from the purchasers. With effect from November 1987 he took out a whole life policy at an annual premium of £10,zoo. The policy had an investment content, which served various purposes. It determined the surrender value of the policy. It C determined the alternative calculation of the death benefit if the value of notionally allocated units exceeded the sum assured (ie £:rm). The investment element was to be used to pay for the cost of life cover after the payment of the second premium. Mr Murphy used his own money to pay the premiums for 1986 and 1987. The value of the units allocated to the policy after the payment of the 1987 premium was more than enough to pay H for the life element in the next three years. Mr Murphy in fact paid the premium for 1988. It is still unclear where he got the money from. But he undoubtedly paid the premiums for 1989 and 1990 with money stolen from the purchasers. On 9 March 1991 Mr Murphy committed suicide. On 6 June 1991 the insurers paid a sum of about £im as a death benefit under the policy. The children are express beneficiaries of the trusts of the policy. Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20 Page 12 of 45 112 FoskettvMcKeown (HL(E)) [2001] 1 AC Lord Steyn The purchasers claimed a proportionate part of the policy moneys. The A issue concerns the respective rights of the purchasers and the children to the policy moneys. By a majority the Court of Appeal [1998] Ch 265 reversed the trial judge's decision in favour of the purchasers and decided that the purchasers are only entitled to recover the money stolen from them and used to pay the 1989 and 1990 premiums together with interest. On appeal to the House of Lords the primary case of the purchasers was that they are entitled to share in the policy moneys in the same proportion as the amount of the premiums paid out of the purchasers' moneys bear to the total amount of the premiums paid ie a two-fifths share. I will explain my reasons for concluding that the purchasers have no rights to the policy moneys. There is, however, an anterior point. On the appeal to the House of Lords counsel for the children argued that by resorting to other remedies the purchasers made a binding election which preclude them from advancing their present claim. C In my view there was in truth no inconsistency between the remedies to which the purchasers resorted. The purchasers put forward a proprietary claim. They allege that they are equitable co-owners in the policy moneys: specifically their claim is that they are entitled to 40% and the children to 60% of the policy moneys. The purchasers point out that they can trace the stolen money (£20,440) through various bank accounts into payments in respect of the 1989 and 1990 premiums. Given that a total of five premiums were paid the purchasers assert that they are entitled to equitable proprietary rights to 40% of the sum assured. The purchasers argued that the proceeds of the policy were purchased out of a common fund to which the purchasers and the children contributed and that on equitable principles the purchasers are entitled to a proportionate part of the proceeds. Counsel for the purchasers observed in E his printed case that it is not an area of the law where the House is constrained by previous authority. Accordingly, he argued, wider considerations of policy must be taken into account. There are four considerations which materially affect my approach to the claim of the purchasers. First the relative moral claims of the purchasers and the children must be considered. The purchasers emphasise that their claim is the result of the deliberate wrongdoing of Mr Murphy. This is a point in favour of the purchasers. Moreover the case for the children is not assisted by the fact that Mr Murphy sought to make provision for his family. The legal question would be the same if the beneficiary under the express trust was a business associate of Mr Murphy. On the other hand, it is an important fact that the children were wholly unaware of any wrongdoing by their father. Secondly, it is clear that in the event the premiums paid in 1989 c and 1990 added nothing of value to the policy. The policy was established and the children acquired vested interests (subject to defeasance) before Mr Murphy pursuant to the rights acquired by the children before 1989. The entitlement of the children was not in any way improved by payment of the 1989 and 1990 premiums. Thirdly, the purchasers have no claim in unjust enrichment in a substantive sense against the children because the payment of the 1989 and 1990 premiums conferred no additional benefit on the children. They were not enriched by the payment of those premiums: they merely received their shares of the sum assured in accordance with their pre-existing entitlement. The fourth point is that the children, as wholly innocent parties, can cogently say that, if they had become aware that Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20113 Page 13 of 45 [2001 ] 1 AC Foskett v McKeown (HL(E)) Lord Steyn A Mr Murphy planned to use trust money to pay the fourth and fifth premiums, they would have insisted that he did not so pay those premiums, with the result that they would still have received the same death benefit. (The relevance of such a factor is helpfully explained by Professor Hayton, "Equity's Identification Rules", Chapter i in Birks, Laundering and Tracing (E995)>PP 11-12. and Charles Mitchell, "Tracing Trust Funds Into Insurance Proceeds" [1997] LMCLQ 465,472.) In arguing the merits of the proprietary claim counsel for the purchasers from time to time invoked "the rules of tracing". By that expression he was placing reliance on a corpus of supposed rules of law, divided into common law and equitable rules. In truth tracing is a process of identifying assets: it belongs to the realm of evidence. It tells us nothing about legal or equitable rights to the assets traced. In a crystalline analysis Professor Birks ("The C Necessity of a Unitary Law of Tracing", essay in Making Commercial Law, Essays in Honour of Roy Goode (1997), pp 239-258) explained, at p 257, that there is a unified regime for tracing and that "it allows tracing to be cleanly separated from the business of asserting rights in or in relation to assets successfully traced". Applying this reasoning Professor Birks concludes, a t p 258: Q "that the modern law is equipped with various means of coping with the evidential difficulties which a tracing exercise is bound to encounter. The process of identification thus ceases to be either legal or equitable and becomes, as is fitting, genuinely neutral as to the rights exigible in respect of the assets into which the value in question is traced. The tracing exercise once successfully completed, it can then be asked what rights, if any, the plaintiff can, on his particular facts, assert. It is at that point that £ it become relevant to recall that on some facts those rights will be personal, on others proprietary, on some legal, and on others equitable." I regard this explanation as correct. It is consistent with orthodox principle. It clarifies the correct approach to so-called tracing claims. It explains what tracing is about without providing answers to controversies about legal or equitable rights to assets so traced. F There is no difficulty in tracing the stolen moneys. Moreover, it is self- evident that there must be a right to recover the moneys stolen and used for the payment of the 1989 and 1990 premiums. Equity's method of achieving the necessary result is to impose a lien or charge over the stolen money. The formal assertion to the contrary on behalf of the children, which is the subject of a cross-appeal, is without substance. The question is whether r the purchasers have equitable proprietary rights to the sum assured which was paid in terms of the policy. This brings me back to the distinctive feature of the case, namely that the fourth and fifth premiums did not contribute or add to the sum received by the children. Sir Richard Scott V-C observed [1998] Ch 265, 282: "If a trustee used trust money to improve or maintain his house, the beneficiaries would, in my view, be entitled to a charge on the house to recover their money. But unless it appeared that the improvements had increased the value of the house there would be no basis for a claim to a pro rata share in the house and no reason for the imposition of a constructive trust. There would, in such a case, be no benefit acquired by the use of the trust money for which the trustee would be accountable. 1 AC 200T—5 Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20 Page 14 of 45 114 Foskettv McKeown (HL(E)) [2001] 1 AC Lord Steyn Similar reasoning applies, in my opinion, in the present case . . . They did A not, in my opinion, become entitled to a pro rata share in the policy either via a constructive trust route or via a resulting trust route." On this point Hobhouse LJ, at p 291E-F, apparently took a similar view. I am in respectful agreement with this reasoning of the majority on this aspect. Sir Richard Scott V-C and Hobhouse LJ further concluded that the misapplied trust funds were not used to acquire the policy, or the death e benefit of £im nor any share in either. On appeal to the House counsel for the purchasers while not formally conceding anything observed that the improvement argument is "a wholly unrealistic argument". He argued that the proceeds of the policy were purchased out of a common fund to which both the purchasers and the children had contributed. This was the primary issue on the appeal to the House. c The argument of the purchasers is supported by the carefully reasoned dissenting judgment of Morritt LJ He relied on the analogies of the cases where (1) an asset is bought with a mixed fund composed of trust money and the trustees own money, and is then passed to an innocent volunteer, and (2) a trustee mixes money from one trust with that of another, and uses the mixed fund to purchase an asset. Morritt LJ, at pp 302-304, pointed to longstanding authorities to the effect that in such situations beneficiaries Q may be entitled to a pro rata share of the purchased asset. But it is clear that this reasoning of Morritt LJ is critically dependent on the relative closeness of the two analogies. On balance I have been persuaded that the analogies cited by Morritt LJ, and strongly relied on by counsel for the purchasers, are not helpful in the circumstances of the present case. There is in principle no difficulty about allowing a proprietary claim in respect of the proceeds of an insurance policy. If in the circumstances of the E present case the stolen moneys had been wholly or partly causative of the production of the death benefit received by the children there would have been no obstacle to admitting such a proprietary claim. But those are not the material facts of the case. I am not influenced by hindsight. The fact is that the rights of the children had crystallised by 1989 before any money was stolen and used to pay the 1989 and 1990 premiums. Indeed F Morritt LJ expressly accepts, at p 302F, that "in the event, the policy moneys would have been the same if the later premiums had not been paid". Counsel for the purchasers accepted that as a matter of primary fact this was a correct statement. But he argued that there was nevertheless a causal link between the premiums paid with stolen moneys and the death benefit. I cannot accept this argument. It would be artificial to say that all five premiums produced the policy moneys. The purchasers' money did not "buy" any part C of the death benefit. On the contrary, the stolen moneys were not causally relevant to any benefit received by the children. The 1989 and 1990 premiums did not contribute to a mixed fund in which the purchasers have an equitable interest entitling them to a rateable division. It would be an innovation to create a proprietary remedy in respect of an asset (the death benefit) which had already been acquired at the date of the use of the stolen moneys. Far from assisting the case of the purchasers the impact of wider considerations of policy in truth tend to undermine the case of the purchasers. One needs to consider the implication of a holding in favour of the purchasers in other cases. Suppose Mr Murphy had surrendered the policy before going bankrupt. Assume Mr Murphy had partly used his own Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20 Page 15 of 45 115 [2001] 1 AC FoskettvMcKeown (HL(E)) Lord Steyn A money and partly used money stolen from the purchasers to pay premiums. The hypothesis is that the stolen money did not in any way increase the surrender value of the policy. Justice does not support the creation to the prejudice of trade creditors of a new proprietary right in the surrender value of the policy: compare Roy Goode, "Proprietary Restitutionary Claims", essay in Restitution: Past, Present and Future (ed Cornish), pp 63 et seq. For these reasons I differ from the analysis of Morritt LJ and reject the argument of the purchasers. There is one final matter of significance. In a critical final passage in his judgment Morritt LJ observed, atp 303: "In my view . . . common justice requires that the purchasers should have the right to participate in that which has followed from the use of their money together with the other moneys, taking their share out of that c joint and common stock." The purchasers do not assert that they suffered any loss. They cannot assert that the children would be unjustly enriched if the purchasers' claim fails. In these circumstances my perception of the justice of the case is different from that of Morritt LJ If justice demanded the recognition of such a proprietary right to the policy moneys, I would have been prepared to D embark on such a development. Given that the moneys stolen from the purchasers did not contribute or add to what the children received, in accordance with their rights established before the theft by Mr Murphy, the proprietary claim of the purchasers is not in my view underpinned by any considerations of fairness or justice. And, if this view is correct, there is no justification for creating by analogy with cases on equitable interests in mixed funds a new proprietary right to the policy moneys in the special circumstances of the present case. My Lords, for these reasons, as well as the reasons given by Lord Hope of Craighead, I would dismiss both the appeal by the purchasers (the appellants) and the cross-appeal by the children (the cross-appellants). LORD HOFFMANN My Lords, I have had the advantage of reading in F draft the speech of my noble and learned friend, Lord Millett. I agree with him that this is a straightforward case of mixed substitution (what the Roman lawyers, if they had had an economy which required tracing through bank accounts, would have called confusio). I agree with his conclusion that Mr Murphy's children, claiming through him, and the trust beneficiaries whose money he used, are entitled to share in the proceeds of the insurance policy in proportion to the value which they respectively contributed to the C policy. This is not based upon unjust enrichment except in the most trivial sense of that expression. It is, as my noble and learned friend says, a vindication of proprietary right. The only point on which I differ from my noble and learned friend is the calculation of the proportions. The policy was a complicated chose in action which contained formulae for the calculation of different amounts which would become payable on different contingencies. One such formula (which, in the event, was irrelevant to the calculation of the amount payable) was by reference to notional units in a notional fund of notional investments. My noble and learned friend considers that these units should be treated as if they were real and that they formed separate property which some part of each premium had been used to buy. In my opinion, that Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20 Page 16 of 45 116 FoskettvMcKeown (HL(E)) [2001] 1 AC Lord Hoffmann overcomplicates the matter. The units were merely part of the formula for A calculating what would be payable. They cannot be regarded as separate property or even some kind of internal currency. It would not in my view have mattered whether the formula for calculating the amount payable had been by reference to the movements of the heavenly bodies. The policy was a single chose in action under which some amount would fall due for payment in consideration of the premiums which had been paid. Immediately before Mr Murphy's suicide, it was owned by the children and the beneficiaries in proportion to the value of their contributions to that consideration. The fact that the contingency which made the money payable was the death of Mr Murphy cannot affect the proprietary interests in the chose in action and therefore in its proceeds: see D'Avigdor-Goldsmid v Inland Revenue Comrs [1953] AC 347. In the case of contributions which are made at different times to the Q consideration for a single item of property such as the chose in action in this case, I can see an argument for saying that the value of earlier payments is greater than that of later payments. A pound today is worth more than the promise of a pound in a year's time. So there may be a case for applying some discount according to the date of payment. But no such argument was advanced in this case and I do not think that your Lordships should impose it D upon the parties. I therefore agree with Morritt LJ that the fund should be held simply in proportion to the contributions which the parties made to the five premiums. LORD HOPE OF CRAIGHEAD My Lords, this is a competition between two groups of persons who claim to be entitled to participate in the same fund. The fund consists of the death benefit paid by the insurers under a policy of life assurance to the trustees of the policy following the death of the life assured, Timothy Murphy, by suicide. The amount of the death benefit was f i m , to which a small sum was added as interest from the date of the death until payment. At the date of death the policy was held in trust for the children of the life assured and for his mother, who is also now deceased. The mother's share of the sum paid under the policy was distributed to her before her death. The trustees have made certain payments from the balance p of that sum for the maintenance of the children. The remainder has been retained and invested by them, and it is that sum which forms the amount now in dispute. The third, fourth and fifth respondents, who are the children of the life assured, claim to be entitled to payment of the whole of that amount as the remaining beneficiaries under the trusts of the policy. There would have been no answer to the claim by the children had it not been for the fact that the last two of five annual premiums (and possibly a C portion of the previous year's premium—the facts have yet to be established by evidence) were paid by the life assured out of money which, dishonestly and in breach of trust, he had misappropriated. The facts have been set out fully by my noble and learned friend, Lord Browne-Wilkinson, and I do not need to repeat them here. It is sufficient to say that it is not disputed that these premiums were paid from money which had been deposited with the life assured and his business associate Mr Deasy by the purchasers of plots of land in Portugal. This money was to be held in trust on their behalf upon the trusts of a trust deed pending the carrying out by a company controlled by the life assured of a scheme for the development of the land. In the event the company did not carry out the development and the purchasers' money was Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20 Page 17 of 45 117 [2001] 1 AC Foskettv McKeown (HL(E)) Lord Hope of Craighead A misappropriated from the bank accounts into which it had been deposited. The purchasers' claim is to a share of the proceeds of the life insurance policy, on the ground that the rights under the policy had been paid for in part with money which was taken from them without their agreement and in breach of trust to pay the premiums. In the Court of Appeal [1998] Ch 265 it was held by a majority (Sir Richard Scott V-C and Hobhouse LJ; Motrin LJ dissenting) that the purchasers were not entitled to participate in the proceeds of the policy except to the extent of such of their money, with interest thereon, as could be traced into the premiums. Morritt LJ would have granted a declaration to the effect that the proceeds were to be shared between the children and the purchasers. He held that they should be distributed between them in the same proportions as the life assured's own money and that which he took C from the purchasers bore to the total amount paid to the insurers by way of premium during the lifetime of the policy. The purchasers have appealed against that judgment on the broad ground that common justice requires that the children should share the proceeds with them commensurately with the premiums which were paid by the life assured from his own money and the purchasers' money respectively. The children have cross-appealed on two grounds. The first is that the purchasers, having elected to take the benefit of other remedies, are precluded from pursuing any claim against the proceeds of the policy. The second is that the purchasers cannot trace their money into any part of the proceeds, because the right to payment of the sum of £im paid by the insurers as death benefit had already been acquired before the purchasers' money was used to pay the premiums. I shall deal first with the children's cross-appeal. Mr Kaye for the children £ based his argument on election upon the purchasers' receipt of compensation for the breach of trust in other proceedings brought on their behalf. The appellant obtained a declaration in 1994 that the shares in the company and the land in Portugal which was to be developed by it were held in trust for the purchasers. He also obtained for them £600,000 under a compromise in 1997 with Lloyds Bank, with whom the purchasers' money had been deposited and from whose bank accounts it had been misappropriated to pay the 1990 premium. Mr Kaye submitted that, as the purchasers had elected to recover their plots of land in specie and had received monetary compensation in satisfaction of their claims for the misappropriation of the deposit moneys, they were barred by that election from pursuing any claim against the proceeds of the policy. He maintained that the purchasers, by pursuing these remedies, had obtained all that they C had bargained for when they paid their money to the developers. They no longer had any proprietary base from which they could trace, and they had already been fully compensated as they were now in a position to complete the development. As the entire original purpose of the deposits had been fulfilled, they had lost nothing. They were in no need of any further relief by way of any proprietary or equitable remedy. In my opinion the claims which were made against the developers and the bank and the claim now made against the proceeds of the policy are two wholly unrelated remedies. The purchasers were not put to any election when they were seeking to recover from the developers and the bank what they lost when, in breach of trust, their money was misappropriated. Had the claim which they are now making been one by way of damages, the relief Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20 Page 18 of 45 118 FoskettvMcKeown(HL(E)) [2001] 1 AC Lord Hope of Craighead which they have already obtained in the other proceedings would have been A taken into account in this action in the assessment of their loss. That would not have been because they were to be held to any election, but by applying the rule that a party who is entitled to damages cannot recover twice over for the same loss. But in this action they are claiming a share of the proceeds of the policy on the ground that the money which was taken from them can be traced into the proceeds. The amount, if any, to which they are entitled as a result of the tracing exercise does not require any adjustment on account of the compensation obtained by pursuing other remedies. This is because the remedy which they are now seeking to pursue is a proprietary one, not an award of damages. The purpose of the remedy is to enable them to vindicate their claim to their own money. The compensation which they have obtained from elsewhere may have a bearing on their claim to a proportionate share of the proceeds. But it cannot deprive them of their C proprietary interest in their own money. For these reasons I would reject this argument. Mr Kaye then said in support of the cross-appeal that, if his argument on election were to be rejected, the purchasers were nevertheless unable to trace into any part of the policy moneys. He submitted that the majority of the Court of Appeal were wrong to hold that the purchasers were entitled to repayment of such amounts of their money as could be shown to have been expended by the life assured on the payment of the premiums. This was because the purchasers could not show that there was any proprietary or causal link between their money and the asset which they claimed, which was the death benefit paid under the policy. A contingent right to the payment of that sum was acquired at the outset when the first premium was paid by the life assured out of his own money. The purchasers' money did E not add anything of value to what had already been acquired on payment of that premium. The sum payable on the death remained the same, and the rights under the policy were not made more valuable in any other respect by the payment of the additional premiums. I do not think that there is any substance in this argument. One possible answer to it is that given by Sir Richard Scott V-C [1998] Ch 265, 277C-D, who said that the statements of principle by Fry LJ in In re Leslie; Leslie v French (1883) 23 ChD 552, 560 supported the right of the purchasers to trace their money into the proceeds of the policy. On his analysis the life assured, as a trustee of the policy, was prima facie entitled to an indemnity out of the trust property in respect of the payments made by him to keep the policy on foot, and the purchasers can by subrogation pursue that remedy. I am, with great respect, not wholly convinced by this line of reasoning. It c seems to me that the circumstances of this case are too far removed from those which Fry LJ had in mind when he said a lien might be created upon the moneys secured by a policy belonging to someone else by the payment of the premiums. He referred, in his description of the circumstances, to the right of trustees to an indemnity out of the trust property for money which they had expended in its preservation, and to the subrogation to this right of a person who at their request had advanced money for its preservation to the trustees. In this case the life assured was a trustee of the policy, but he was also the person who had effected the policy and had set up the trust. When he paid the premiums, he did so not as a trustee—not because the person who was primarily responsible for their payment had failed to pay and it was Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20 Page 19 of 45 119 [2001 ] 1 AC Foskett v McKeown (HL(E)) Lord Hope of Craighead A necessary to take steps to preserve the trust—but because he was the person primarily responsible for their payment. The trust was one which he himself had created. He was making a further contribution towards the property which, according to his own declaration, was to be held in trust for the beneficiaries. In that situation it is hard to see on what ground the trustees of the policy could be said to be under any obligation to refund to him the amount of his expenditure. The general rule is that a man who makes a payment to maintain or improve another person's property, intentionally and not in response to any request that he should do so, is not entitled to any lien or charge on that property for such payment: Falcke v Scottish Imperial Insurance Co (1886) 34 ChD 234, 241, per Cotton LJ A further difficulty about the subrogation argument is that it cannot be said that it was at the purchasers' request that the life assured used their money to pay the C premiums. On the other hand I consider that there is no difficulty, on the facts of this case, as to the purchasers' right on other grounds to reimbursement of the money which was taken from them by the life assured. Mr Kaye's argument was that the purchasers could not trace their money into the proceeds of the policy because no causative link could be established between the proceeds which had been paid out by way of death benefit and the relevant premiums. In my opinion the answer to this point is to be found in the terms of the policy. It states that "in consideration of the payment of the first premium already made and of the further premiums payable and subject to the conditions of this policy" the insurer was, on the death of the life assured, to pay to the policy holder the benefits specified. The purchasers' claim that they have a right to a proportionate share of the proceeds raises more £ complex issues, for the resolution of which it will be necessary to look more closely at the terms of the policy. But their right to the reimbursement of their own money seems to me to depend simply upon it being possible to follow that money from the accounts where it was deposited into the policy when the premiums were paid, and from the policy into the hands of the trustees when the insurers paid to them the sum of £im by way of death benefit. On the agreed facts it is plain that the purchasers can trace their money through the premiums which were paid with it into the policy. When the insurers paid out the agreed sum by way of death benefit, the sum which they paid to the trustees of the policy was paid in consideration of the receipt by them of all the premiums. As Smith, The Law of Tracing (1997), p 235, has explained, the policy proceeds are the product of a mixed substitution where C the value being traced into a policy of life assurance has provided a part of the premiums. In my opinion that is enough to entitle the purchasers, if they cannot obtain more, at least to obtain reimbursement of their own money with interest from the proceeds of the policy. There can be no doubt as to where the equities lie on the question of their right to recover from the proceeds the equivalent in value of that which they lost when their money was misappropriated. I would dismiss the cross-appeal. There remains however the principal issue in this appeal, which is whether the purchasers can go further and establish that they are entitled to a much larger sum representing a proportionate share of the proceeds calculated by reference to the amount of their money which was used to pay the premiums. The purchasers' argument was presented by Mr Mawrey on Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20 Page 20 of 45 120 FoskettvMcKeown(HL(E)) [2001] 1 AC Lord Hope of Craighead two grounds. The first was that they were entitled as a result of the tracing A exercise to a proprietary right of part ownership in the proceeds which, on the application of common justice, enabled them to claim a share of them proportionate to the contribution which their money had made to the total sum paid to the insurers by way of premium. The second, which was developed briefly in the alternative and, I thought, very much by way of a subsidiary argument, was that the law of unjust enrichment would provide them with a remedy. It seems to me that two quite separate questions arise in regard to the first of these two arguments. The first question is simply one of evidence. This is whether, if the purchasers can show that their money was used to pay any of the premiums, they can trace their money into the proceeds obtained by the trustees from the insurers in virtue of their rights under the policy. The second question is more difficult, and I think that it is the crucial question in c this case. As I understand the question, it is whether it is equitable, in all the circumstances, that the purchasers should recover from the trustees a share of the proceeds calculated by reference to the contribution which their money made to the total amount paid to the insurers by way of premium. I believe that I have already said almost all that needs to be said on the first question. It is agreed that the purchasers' money was used to pay the last two premiums. Whether their money was also used to pay a part of the 1988 premium, and if so, how much of it was so used will require to be resolved by evidence. But at least to the extent of the last two premiums the purchasers can trace their money into the policy. The terms of the policy provide a sufficient basis for tracing their money one step further. They show that this money can be followed into the proceeds received by the trustees of the policy by way of death benefit. It is clearly stated in the policy document f that the benefits specified are to be made in consideration of the payment to the insurer of all the premiums. This is enough to show that the tracing exercise does not end with the receipt of the premiums by the insurers. They can say that they gave value for the premiums when they paid over to the trustees the sum to which they were entitled by way of death benefit. Nothing is left with the insurers, because they have given value for all that they received. That value now resides in the proceeds received by the trustees. But the result of the tracing exercise cannot solve the remaining question, which relates to the extent of the purchasers' entitlement. It is the fact that this is a case of mixed substitution which creates the difficulty. If the purchasers' money had been used to pay all the premiums there would have been no mixture of value with that contributed by others. Their claim would C have been to the whole of the proceeds of the policy. As it is, there are competing claims on the same fund. In the absence of any other basis for division in principle or on authority—and no other basis has been suggested—it must be divided between the competitors in such proportions as can be shown to be equitable. In my opinion the answer to the question as to what is equitable does not depend solely on the terms of the policy. The equities affecting each party must be examined. They must be balanced against each other. The conduct of the parties so far as this may be relevant, and the consequences to them of allowing and rejecting the purchasers' claim, must be analysed and weighed up. It may be helpful to refer to what would be done in other situations by way of analogy. But it seems to me that Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20 Page 21 of 45 121 [2001 ] 1 AC Foskett v McKeown (HL(E)) Lord Hope of Craighead A in the end a judgment requires to be made as to what is fair, just and reasonable. My noble and learned friend, Lord Hoffmann, states that this is a straightforward case of mixed substitution, which the Roman lawyers (if they had an economy which required tracing through bank accounts) would have called confusio. I confess that I have great difficulty in following this observation, as the relevant texts seem to me to indicate that they would have found the case far from straightforward and that it is quite uncertain what they would have made of it. The discussion by the Roman jurists of the problems of ownership that arise where things which originally belonged to different people have been inextricably mixed with or attached to each other took place in an entirely different context. They were concerned exclusively with the ownership of C corporeal property: with liquids like wine or solid things like heaps of corn, to which without any clear distinction in their use of terminology they applied what have come to be recognised as the doctrines of confusio and commixtio (Institutes of Justinian, II.I.27 and 28), and with the application of the principle accessorium principale sequitur to corporeal property according to the type of property involved—accession by moveables to land, by moveables to moveables, by land to land and accession by the produce of land or the offspring of animals. I would have understood the application of the Roman law to our case if we had been dealing with the ownership of a collection of coins of gold or silver which had been melted down into liquids and transformed into another corporeal object such as a bracelet or a statue. That would indeed have been a problem familiar to Gaius and Justinian, which they would have recognised as being capable of being solved by the £ application of the doctrine of confusio. But here we are dealing with a problem about the rights of ownership in incorporeal property. The taking of possession, usually by delivery, was the means by which a person acquired ownership of corporeal property. The doctrines of commixtio and confusio were resorted to in order to resolve problems created by the mixing together, or attaching to each other, of corporeal things owned by two or more people. Sandeman & Sons v Tyzack and Branfoot Steamship Co Ltd [1913] AC 680, in which Lord Moulton described the doctrines of English law which are applicable to cases where goods belonging to different owners have become mixed so as to be incapable of either being distinguished or separated, was also a case about what the Roman jurists would have classified as corporeal moveables—bales of jute in the hold of a cargo vessel which were unmarked and could not be C identified as belonging to any particular consignment. But incorporeal property, such as the rights acquired under an insurance policy upon payment of the premiums, is incapable either of possession or of delivery in the sense of these expressions as understood in Roman law. Problems relating to rights arising out of payments made by the insurers under the policy would have belonged in Roman law to the law of obligations, and it is likely that the remedy would have been found in the application of an appropriate condictio. This is an entirely different chapter from that relating to the possession and ownership of things which are corporeal. I think that, even if they had felt able to apply the doctrine of confusio to our case, it is far from clear that the Roman jurists would have reached a unanimous view as to the result. It is worth noting that even in the well Case 1:20-mc-00199-JGK-OTW 122 Document 66-1 Filed 09/17/20 Page 22 of 45 FoskettvMcKeown(HUE)) [2001] 1 AC Lord Hope of Craighead known case of the picture painted by Apelles on someone else's board or A panel differing views were expressed: see Stair, The Institutions of the Law of Scotland (1693), vol 1, II. 1.39. Paulus thought that the picture followed the ownership of the board as an accessory thereto (Digest, 6.1.23.3), while Caius regarded the board as accessory to the picture (Digest, 41.1.9.2). Justinian's view, following Caius, was that the board was accessory to the picture, as the picture was more precious (Institutes of Justinian, II.I.34). Stair expresses some surprise at this conclusion, because Justinian had previously declared that ownership of precious stones attached to cloth, although of greater value than cloth, was carried with the cloth. These differences of view are typical of the disputes between the Roman jurists which are to be found in the Digest. In these circumstances I see no escape from the approach which I propose to follow, which is to examine the evidence about the rights which, in the C events which happened, were acquired under the policy. I turn first to the terms of the policy. In return for the payment of each premium the insured acquired a chose in action against the insurers which comprised the bundle of rights in terms of the policy which resulted from the payment of that premium. What those rights comprised from time to time must depend on the facts. If the life assured had not committed suicide at the age of 45, the policy might have remained on foot for many years. It was a contract of life assurance in which the sum assured on death was £ i m . There was a unit-linked investment content in each premium. The value of the units allocated by the insurers on receipt of each premium might in time have exceeded that sum. That would have increased the total amount payable on the death. But in the event the policy was not kept up for long enough for this to occur. The unit-linked investment content did not in fact E make any contribution to the amount which was paid to the trustees of the policy. The effect of the payment of the first premium was to confer a right on the trustees of the policy as against the insurers to the payment of £im on the death of the life assured. The effect of the payment of the four remaining premiums up to the date of the life assured's suicide was to reduce the amount which the insured had to provide to meet this liability out by reinsurance or of its own funds. But they had no effect on the right of the trustees to the payment of the sum assured under the terms of the policy, as they did not increase the amount payable on the death. I do not think that the purchasers can demonstrate on these facts that they have a proprietary right to a proportionate share of the proceeds. They cannot show that their money contributed to any extent to, or increased the value of, the amount paid to the trustees of the policy. A substantially C greater sum was paid out by the insurers as death benefit than the total of the sums which they received by way of premium. A profit was made on the investment. But the terms of the policy show that the amount which produced this profit had been fixed from the outset when the first premium was paid. It was attributable to the rights obtained by the life assured when he paid the first premium from his own money. No part of that sum was attributable to value of the money taken from the purchasers to pay the additional premiums. The next question is whether the equities affecting each party can assist the purchasers. The dispute is between two groups of persons, both of whom are innocent of the breach of trust which led to the purchasers' money Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20123Page 23 of 45 [2001] 1 AC FoskettvMcKeown (HL(E)) Lord Hope of Craighead A being misappropriated. On the one hand there are the purchasers, who made a relatively modest but wholly involuntary contribution to the upkeep of the policy. On the other there are the children, who are the beneficiaries of the trusts of the policy but who made no contribution at all to its upkeep. Mr Mawrey submitted that a solution to precisely the same problem had been found in Edinburgh Corpn v Lord Advocate (1879) 4 AppCas 823 g where competing claims to a mixed fund had been resolved by the application of equitable principles. Central to his argument was the proposition that the asset of which the purchasers had been the part- purchasers was the policy itself, not the amount of the death benefit. They were to be seen as the involuntary purchasers of a share in the entire bundle of contractual rights under the policy. The proceeds of the policy were the product of those contractual rights. The terms of the policy made it clear c that all benefits which were payable under it were to be made in consideration of the payment to the insurers of all the premiums. It followed that, as it was the product of the premiums towards the payment of which they had contributed, the amount of the death benefit was a mixed fund in which they were entitled to participate. He relied also, by way of analogy, on the observations of Ungoed-Thomas J in In re Tilley's Will Trusts [1967] D Ch 1179, 11.89 a s t o t n e rights of the beneficiary to participate in any profit which resulted where a trustee mixed trust money with his own money and then used it to purchase other property: see also Scott v Scott (1963) 109 CLR649. I am unable to agree with this approach to the facts of this case. In Edinburgh Corpn v Lord Advocate 4 AppCas 823 the property in question was clearly a mixed fund, all the assets of which had contributed to the increase in the value of the funds held by the trustees. The facts of the case and the prolonged litigation which resulted from it are somewhat complicated: for a full account, see Magistrates of Edinburgh v McLaren (1881) 8 R 140. The essential point was that funds contributed by a benefactor of a hospital for particular trust purposes had for more than 170 years been held, administered and applied as part of the general funds of the F hospital. The Court of Session had been directed by an earlier decision of the House of Lords in the same case to ascertain how much of the funds which had been managed in this way belonged to the hospital. In terms of its interlocutor of 2.0 July 1875 the Court of Session held that the benefactor's funds had been immixed with the funds of the hospital from an early period down to that date, and that they must therefore be held to have participated Q proportionately with the hospital's funds and property in the increase of value of the aggregate funds and property of the hospital during that period. Steps were then taken to ascertain and fix the amount of the whole of the aggregate funds and what the amount of the benefactor's funds was in proportion to the present value of the aggregate. When this had been done the case was appealed again to the House of Lords on the question, among others, whether it was right to treat the two funds as having been inextricably mixed up. The decision of the Court of Session was upheld on this point, for reasons which I do not need to examine in detail as they have no direct bearing on the issues raised in this appeal. As Lord Blackburn put it, at p 835, the Court of Session solved the difficulty Case 1:20-mc-00199-JGK-OTW 124 Document 66-1 Filed 09/17/20 Page 24 of 45 FoskettvMcKeown(HL(E)) [2001] 1 AC Lord Hope of Craighead "in a way perfectly consistent with justice and good sense, and not A inconsistent with any technical rule of law, and no other solution has been suggested which would be so satisfactory." But the main relevance of the case for the purposes of the purchasers' argument lies in the following observation, which he made at p 833: "No other way was suggested at the bar in which the fund, if the two fi were inextricably mixed up, could be apportioned except that of taking the proportion which the two funds bore to each other, and dividing the mixed fund in that proportion; and I cannot myself see any other way." I would have had no difficulty in reaching the same conclusion had I been persuaded that, on the facts, this was truly a case of two funds which had been inextricably mixed up, each of which had contributed to the profit in c the hands of the trustees. But it seems to me that it is on this point that the analogy with that case, and with the example of a lottery ticket purchased with money from two different sources which was also mentioned in argument, breaks down. It is no doubt true to say that the policy consisted of a bundle of rights against the insurers in consideration of the payment of all the premiums. But these rights have now been realised. We can see what has been paid out and why it was paid. We know that we are dealing with an amount paid to the trustees of the policy as death benefit in consequence of the life assured's suicide. In terms of the policy the right to payment of that amount of death benefit was purchased when the life assured paid the first premium. The insurers' right to decline payment in the event of the death of the life assured by suicide was lost after 12 months, when he kept the policy on foot by the payment of the second premium. Nothing that happened f after that date affected in any way the right of the trustees of the policy to be paid the sum of £im when the life assured took his own life. The policy was kept on foot by the payment of the further premiums over the next three years. These premiums reduced the cost to the insurers of covering their liability under the policy in the event of the insured's death. But they made no difference to the rights which were exercisable against the insurers by the trustees of the policy or to the rights of the children as beneficiaries against the trustees. The situation here is quite different from that where the disputed sum is the product of an investment which was made with funds which have already been immixed. In the case of the lottery ticket which is purchased by A partly from his own funds and partly from funds of which B was the involuntary contributor, the funds are mixed together at the time when the c ticket is purchased. It is easy to see that any prize won by that lottery ticket must be treated as the product of that mixed fund. In the case of the funds administered as an aggregate fund by the hospital, the funds from each of the two sources had been mixed together from an early date before the various transactions were entered into which increased the amount of the aggregate. It was consistent with justice and common sense to regard the whole of the increase as attributable in proportionate shares to the money taken from the two sources. But in this case the right to obtain payment of the whole amount of the death benefit of £im had already been purchased from the insurers before they received payment of the premiums which were funded by the money misappropriated from the purchasers. Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20125Page 25 of 45 [2001] 1 AC Foskettv McKeown (HL(E)) Lord Hope of Craighead A Of the other analogies which were suggested in the course of the argument to illustrate the extent of the equitable remedy, the closest to the circumstances of this case seemed to me to be those relating to the expenditure by a trustee of money held on trust on the improvement of his own property such as his dwelling house. This was the analogy discussed by Sir Richard Scott V-C and by Hobhouse LJ [1998] Ch 265, 282 and 289- „ 290. There is no doubt that an equitable right will be available to the beneficiaries to have back the money which was misappropriated for his own benefit by the trustee. But that right does not extend to giving them an equitable right to a pro rata share in the value of the house. If the value of the property is increased by the improvements which were paid for in whole or in part out of the money which the trustee misappropriated, he must account to the trust for the value of the improvements. This is by the C application of the principle that a trustee must not be allowed to profit from his own breach of trust. But unless it can be demonstrated that he has obtained a profit as a result of the expenditure, his liability is to pay back the money which he has misapplied. In the present case the purchasers are, in my opinion, unable to demonstrate that the value of the entitlement of the trustees of the policy to D death benefit was increased to any extent at all as a result of the use of their money to keep the policy on foot, as the entitlement had already been fixed before their money was misappropriated. In these circumstances the equities lie with the children and not with the purchasers. I do not need to attach any weight to the fact that the purchasers have already been compensated by the successful pursuit of other remedies. Even without that fact I would hold that it is fair, just and reasonable that the children should be allowed to receive the whole of the sum now in the hands of the trustees after the purchasers have been reimbursed, with interest, for the amount of their money which was used to pay the premiums. There remains the question which Mr Mawrey raised in his alternative argument, which is whether the purchasers have a remedy in unjust enrichment. Normally, where this question is raised, there are only two F parties—the plaintiff is the person at whose expense the defendant is said to have been enriched and the defendant is the person who is said to have been enriched at the expense of the plaintiff. This case is an example of third party enrichment. The enrichment of the children is said to have resulted from a transaction with the insurers by the life assured, who had enriched himself by subtracting money from the purchasers. It is clear that the life Q assured was unjustly enriched when, in breach of trust and without their knowledge, he took the money from the purchasers. He transferred his enrichment to the insurers when he used that money to pay premiums. But the insurers can say in answer to a claim of unjust enrichment against them that they changed their position when, in ignorance of the breach of trust, they paid the sum assured to the trustees of the policy. Can the purchasers take their remedy against the children, who are entitled as beneficiaries under the trust of the policy to payment of the sum now in the hands of the trustees? And, if they can, does their remedy in unjust enrichment extend to a proportionate share of the proceeds of the policy, which far exceeds the amount of their involuntary expenditure when the life assured took from them the money which he used to make payment of the premiums? Case 1:20-mc-00199-JGK-OTW 126 Document 66-1 Filed 09/17/20 Page 26 of 45 FoskettvMcKeown (HL(E)) [2001] 1 AC Lord Hope of Craighead These questions were not fully explored in the course of the argument, but A I think that it is not necessary to do more than to make a few basic points in order to show why I consider that the purchasers cannot obtain what they want by invoking this remedy. If it could be shown that the children had consciously participated in the life assured's wrongdoing and that, having done so, they had profited from his subtraction from the purchasers of the money used to pay the premiums, the answer would be that the law will not allow them to retain that benefit. A remedy would lie against them in unjust enrichment for the amount unjustly subtracted from the purchasers and for any profit attributable to that amount. But in this case it is common ground that the children are innocent of any wrongdoing. They are innocent third parties to the unjust transactions between the life assured and the purchasers. In my opinion the law of unjust enrichment should not make them worse off as a result of those transactions than they would have been if Q those transactions had not happened. The aim of the law is to correct an enrichment which is unjust, but the remedy can only be taken against a defendant who has been enriched. The undisputed facts of this case show that the children were no better off following payment of the premiums which were paid with the money subtracted from the purchasers than they would have been if those premiums had not been paid. This is because, for the reasons explained by D Hobhouse LJ [1998] Ch z6$, 286D-F, the insurers would have been entitled to have recourse to the premiums already paid to keep up the policy and because the premiums paid from the purchasers' money did not, in the events which happened, affect the amount of the sum payable in the event of the insured's death. The argument for a claim against them in unjust enrichment fails on causation. The children were not enriched by the payment of these premiums. On the contrary, they would be worse off if they were to be required to share the proceeds of the policy with the purchasers. It is as well that the purchasers' remedy in respect of the premiums and interest does not depend upon unjust enrichment, otherwise they would have had to have been denied a remedy in respect of that part of their claim also. In these circumstances I cannot see any grounds for holding that the F purchasers are entitled to participate in the amount of the death benefit except to the extent necessary for them to recover the premiums, with interest, which were paid from their money which had been misappropriated. So I would dismiss both the appeal and the cross-appeal. LORD MILLETT My Lords, this is a textbook example of tracing through mixed substitutions. At the beginning of the story the plaintiffs were C beneficially entitled under an express trust to a sum standing in the name of Mr Murphy in a bank account. From there the money moved into and out of various bank accounts where in breach of trust it was inextricably mixed by Mr Murphy with his own money. After each transaction was completed the plaintiffs' money formed an indistinguishable part of the balance standing to Mr Murphy's credit in his bank account. The amount of that balance represented a debt due from the bank to Mr Murphy, that is to say a chose in action. At the penultimate stage the plaintiffs' money was represented by an indistinguishable part of a different chose in action, viz, the debt prospectively and contingently due from an insurance company to its policyholders, being the trustees of a settlement made by Mr Murphy for the Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20 127Page 27 of 45 [2001 ] 1 AC Foskett v McKeown (HL(E)) Lord Millett A benefit of his children. At the present and final stage it forms an indistinguishable part of the balance standing to the credit of the respondent trustees in their bank account. Tracing and following The process of ascertaining what happened to the plaintiffs' money e involves both tracing and following. These are both exercises in locating assets which are or may be taken to represent an asset belonging to the plaintiffs and to which they assert ownership. The processes of following and tracing are, however, distinct. Following is the process of following the same asset as it moves from hand to hand. Tracing is the process of identifying a new asset as the substitute for the old. Where one asset is exchanged for another, a claimant can elect whether to follow the original C asset into the hands of the new owner or to trace its value into the new asset in the hands of the same owner. In practice his choice is often dictated by the circumstances. In the present case the plaintiffs do not seek to follow the money any further once it reached the bank or insurance company, since its identity was lost in the hands of the recipient (which in any case obtained an unassailable title as a bona fide purchaser for value without notice of the plaintiffs' beneficial interest). Instead the plaintiffs have chosen at each stage to trace the money into its proceeds, viz, the debt presently due from the bank to the account holder or the debt prospectively and contingently due from the insurance company to the policy holders. Having completed this exercise, the plaintiffs claim a continuing beneficial interest in the insurance money. Since this represents the product of Mr Murphy's own money as well as theirs, which Mr Murphy mingled E indistinguishably in a single chose in action, they claim a beneficial interest in a proportionate part of the money only. The transmission of a claimant's property rights from one asset to its traceable proceeds is part of our law of property, not of the law of unjust enrichment. There is no "unjust factor" to justify restitution (unless "want of title" be one, which makes the point). The claimant succeeds if at all by virtue of his own title, not to reverse unjust enrichment. Property rights are determined by fixed rules and settled principles. They are not discretionary. They do not depend upon ideas of what is "fair, just and reasonable". Such concepts, which in reality mask decisions of legal policy, have no place in the law of property. A beneficiary of a trust is entitled to a continuing beneficial interest not merely in the trust property but in its traceable proceeds also, and his interest binds every one who takes the property or its traceable proceeds except a Q bona fide purchaser for value without notice. In the present case the plaintiffs' beneficial interest plainly bound Mr Murphy, a trustee who wrongfully mixed the trust money with his own and whose every dealing with the money (including the payment of the premiums) was in breach of trust. It similarly binds his successors, the trustees of the children's settlement, who claim no beneficial interest of their own, and Mr Murphy's children, who are volunteers. They gave no value for what they received and H derive their interest from Mr Murphy by way of gift. Tracing We speak of money at the bank, and of money passing into and out of a bank account. But of course the account holder has no money at the bank. Case 1:20-mc-00199-JGK-OTW 128 Document 66-1 Filed 09/17/20 Page 28 of 45 FoskettvMcKeown (HL(E)) [2001] 1 AC Lord Millett Money paid into a bank account belongs legally and beneficially to the bank A and not to the account holder. The bank gives value for it, and it is accordingly not usually possible to make the money itself the subject of an adverse claim. Instead a claimant normally sues the account holder rather than the bank and lays claim to the proceeds of the money in his hands. These consist of the debt or part of the debt due to him from the bank. We speak of tracing money into and out of the account, but there is no money in the account. There is merely a single debt of an amount equal to the final balance standing to the credit of the account holder. No money passes from paying bank to receiving bank or through the clearing system (where the money flows may be in the opposite direction). There is simply a series of debits and credits which are causally and transactionally linked. We also speak of tracing one asset into another, but this too is inaccurate. The original asset still exists in the hands of the new owner, or it may have C become untraceable. The claimant claims the new asset because it was acquired in whole or in part with the original asset. What he traces, therefore, is not the physical asset itself but the value inherent in it. Tracing is thus neither a claim nor a remedy. It is merely the process by which a claimant demonstrates what has happened to his property, identifies its proceeds and the persons who have handled or received them, and justifies his claim that the proceeds can properly be regarded as representing his property. Tracing is also distinct from claiming. It identifies the traceable proceeds of the claimant's property. It enables the claimant to substitute the traceable proceeds for the original asset as the subject matter of his claim. But it does not affect or establish his claim. That will depend on a number of factors including the nature of his interest in the original asset. He will normally be able to maintain the same claim to the substituted E asset as he could have maintained to the original asset. If he held only a security interest in the original asset, he cannot claim more than a security interest in its proceeds. But his claim may also be exposed to potential defences as a result of intervening transactions. Even if the plaintiffs could demonstrate what the bank had done with their money, for example, and could thus identify its traceable proceeds in the hands of the bank, any claim by them to assert ownership of those proceeds would be defeated by the bona fide purchaser defence. The successful completion of a tracing exercise may be preliminary to a personal claim (as in El Ajou v Dollar Land Holdings pic [1993] 3 All ER 717) or a proprietary one, to the enforcement of a legal right (as in Trustees of the Property of F C Jones & Sons v Jones [1997] Ch 159) or an equitable one. Given its nature, there is nothing inherently legal or equitable about the c tracing exercise. There is thus no sense in maintaining different rules for tracing at law and in equity. One set of tracing rules is enough. The existence of two has never formed part of the law in the United States: see Scott on Trusts, 4th ed (1989), section 515, at pp 605-609. There is certainly no logical justification for allowing any distinction between them to produce capricious results in cases of mixed substitutions by insisting on the existence of a fiduciary relationship as a precondition for applying equity's tracing rules. The existence of such a relationship may be relevant to the nature of the claim which the plaintiff can maintain, whether personal or proprietary, but that is a different matter. I agree with the passages which my noble and learned friend, Lord Steyn, has cited from Professor Birks's Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20129Page 29 of 45 [2001 ] 1 AC Foskett v McKeown (HL(E)) Lord Millett A essay "The Necessity of a Unitary Law of Tracing", and with Dr Lionel Smith's exposition in his comprehensive monograph The Law of Tracing (1997): see particularly pp 120-130, 277-279 and 342-347. This is not, however, the occasion to explore these matters further, for the present is a straightforward case of a trustee who wrongfully misappropriated trust money, mixed it with his own, and used it to pay for an asset for the benefit of his children. Even on the traditional approach, the equitable tracing rules are available to the plaintiffs. There are only two complicating factors. The first is that the wrongdoer used their money to pay premiums on an equity-linked policy of life assurance on his own life. The nature of the policy should make no difference in principle, though it may complicate the accounting. The second is that he had previously settled the policy for the benefit of his children. This should also make no C difference. The claimant's rights cannot depend on whether the wrongdoer gave the policy to his children during his lifetime or left the proceeds to them by his will; or if during his lifetime whether he did so before or after he had recourse to the claimant's money to pay the premiums. The order of events does not affect the fact that the children are not contributors but volunteers who have received the gift of an asset paid for in part with misappropriated trust moneys. D The cause of action As I have already pointed out, the plaintiffs seek to vindicate their property rights, not to reverse unjust enrichment. The correct classification of the plaintiffs' cause of action may appear to be academic, but it has important consequences. The two causes of action have different E requirements and may attract different defences. A plaintiff who brings an action in unjust enrichment must show that the defendant has been enriched at the plaintiff's expense, for he cannot have been unjustly enriched if he has not been enriched at all. But the plaintiff is not concerned to show that the defendant is in receipt of property belonging beneficially to the plaintiff or its traceable proceeds. The fact that the beneficial ownership of the property has passed to the defendant provides no defence; indeed, it is usually the very fact which founds the claim. Conversely, a plaintiff who brings an action like the present must show that the defendant is in receipt of property which belongs beneficially to him or its traceable proceeds, but he need not show that the defendant has been enriched by its receipt. He may, for example, have paid full value for the property, but he is still required to disgorge it if he received it with notice of Q the plaintiff's interest. Furthermore, a claim in unjust enrichment is subject to a change of position defence, which usually operates by reducing or extinguishing the element of enrichment. An action like the present is subject to the bona fide purchaser for value defence, which operates to clear the defendant's title. The tracing rules u The insurance policy in the present case is a very sophisticated financial instrument. Tracing into the rights conferred by such an instrument raises a number of important issues. It is therefore desirable to set out the basic principles before turning to deal with the particular problems to which policies of life assurance give rise. Case 1:20-mc-00199-JGK-OTW 130 Document 66-1 Filed 09/17/20 Page 30 of 45 FoskettvMcKeown(HL(E)) [2001] 1 AC Lord Millett The simplest case is where a trustee wrongfully misappropriates trust A property and uses it exclusively to acquire other property for his own benefit. In such a case the beneficiary is entitled at his option either to assert his beneficial ownership of the proceeds or to bring a personal claim against the trustee for breach of trust and enforce an equitable lien or charge on the proceeds to secure restoration of the trust fund. He will normally exercise the option in the way most advantageous to himself. If the traceable proceeds have increased in value and are worth more than the original asset, he will assert his beneficial ownership and obtain the profit for himself. There is nothing unfair in this. The trustee cannot be permitted to keep any profit resulting from his misappropriation for himself, and his donees cannot obtain a better title than their donor. If the traceable proceeds are worth less than the original asset, it does not usually matter how the beneficiary exercises his option. He will take the whole of the proceeds on either basis, Q This is why it is not possible to identify the basis on which the claim succeeded in some of the cases. Both remedies are proprietary and depend on successfully tracing the trust property into its proceeds. A beneficiary's claim against a trustee for breach of trust is a personal claim. It does not entitle him to priority over the trustee's general creditors unless he can trace the trust property into its D product and establish a proprietary interest in the proceeds. If the beneficiary is unable to trace the trust property into its proceeds, he still has a personal claim against the trustee, but his claim will be unsecured. The beneficiary's proprietary claims to the trust property or its traceable proceeds can be maintained against the wrongdoer and anyone who derives title from him except a bona fide purchaser for value without notice of the breach of trust. The same rules apply even where there have been numerous E successive transactions, so long as the tracing exercise is successful and no bona fide purchaser for value without notice has intervened. A more complicated case is where there is a mixed substitution. This occurs where the trust money represents only part of the cost of acquiring the new asset. As James Barr Ames pointed out in "Following Misappropriated Property into its Product" (1906) 19 HarvLRev 511, consistency requires that, if a trustee buys property partly with his own F money and partly with trust money, the beneficiary should have the option of taking a proportionate part of the new property or a lien upon it, as may be most for his advantage. In principle it should not matter (and it has never previously been suggested that it does) whether the trustee mixes the trust money with his own and buys the new asset with the mixed fund or makes separate payments of the purchase price (whether simultaneously or c sequentially) out of the different funds. In every case the value formerly inherent in the trust property has become located within the value inherent in the new asset. The rule, and its rationale, were stated by Samuel Williston in "The Right to Follow Trust Property when Confused with other Property" (1888) z HarvLRev 28, 29: "If the trust fund is traceable as having furnished in part the money with which a certain investment was made, and the proportion it formed of the whole money so invested is known or ascertainable, the cestui que trust should be allowed to regard the acts of the trustee as done for his benefit, in the same way that he would be allowed to if all the money so Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20131Page 31 of 45 [2001 ] 1 AC Foskett v McKeown (HL(E)) Lord Millett A invested had been his; that is, he should be entitled in equity to an undivided share of the property which the trust money contributed to purchase—such a proportion of the whole as the trust money bore to the whole money invested. The reason in the one case as in the other is that the trustee cannot be allowed to make a profit from the use of the trust money, and if the property which he wrongfully purchased were held subject only to a lien for the amount invested, any appreciation in value would go to the trustee." If this correctly states the underlying basis of the rule (as I believe it does), then it is impossible to distinguish between the case where mixing precedes the investment and the case where it arises on and in consequence of the investment. It is also impossible to distinguish between the case where the investment is retained by the trustee and the case where it is given away to a gratuitous donee. The donee cannot obtain a better title than his donor, and a donor who is a trustee cannot be allowed to profit from his trust. In In re Hallett's Estate; Knatchbull v Hallett (1880) 13 ChD 696, 709 Sir George Jessel MR acknowledged that where an asset was acquired exclusively with trust money, the beneficiary could either assert equitable ownership of the asset or enforce a lien or charge over it to recover the trust Q money. But he appeared to suggest that in the case of a mixed substitution the beneficiary is confined to a lien. Any authority that this dictum might otherwise have is weakened by the fact that Sir George Jessel MR gave no reason for the existence of any such rule, and none is readily apparent. The dictum was plainly obiter, for the fund was deficient and the plaintiff was only claiming a lien. It has usually been cited only to be explained away: see for example In re Tilley's Will Trusts [1967] Ch 1179, 1186, per Ungoed- £ Thomas J; Burrows, The Law of Restitution (1993), p 368. It was rejected by the High Court of Australia in Scott v Scott (1963) 109 CLR 649: see the passage at pp 661-662 cited by Morritt LJ below [1998] Ch 265, 300-30:1:. It has not been adopted in the United States: see the American Law Institute, Restatement of the Law, Trusts, 2d (1959) at section 202(h). In Frimeau v Granfield (1911) 184 F 480, 482 Learned Hand J expressed himself in p forthright terms: "On principle there can be no excuse for such a rule." In my view the time has come to state unequivocally that English law has no such rule. It conflicts with the rule that a trustee must not benefit from his trust. I agree with Burrows that the beneficiary's right to elect to have a proportionate share of a mixed substitution necessarily follows once one accepts, as English law does, (i) that a claimant can trace in equity into a mixed fund and (ii) that he can trace unmixed money into its proceeds and C assert ownership of the proceeds. Accordingly, I would state the basic rule as follows. Where a trustee wrongfully uses trust money to provide part of the cost of acquiring an asset, the beneficiary is entitled at his option either to claim a proportionate share of the asset or to enforce a lien upon it to secure his personal claim against the trustee for the amount of the misapplied money. It does not matter whether the trustee mixed the trust money with his own in a single fund before using it to acquire the asset, or made separate payments (whether simultaneously or sequentially) out of the differently owned funds to acquire a single asset. Two observations are necessary at this point. First, there is a mixed substitution (with the results already described) whenever the claimant's Case 1:20-mc-00199-JGK-OTW 132 Document 66-1 Filed 09/17/20 Page 32 of 45 FoskettvMcKeown(HL(E)) [2001] 1 AC Lord Millett property has contributed in part only towards the acquisition of the new A asset. It is not necessary for the claimant to show in addition that his property has contributed to any increase in the value of the new asset. This is because, as I have already pointed out, this branch of the law is concerned with vindicating rights of property and not with reversing unjust enrichment. Secondly, the beneficiary's right to claim a lien is available only against a wrongdoer and those deriving title under him otherwise than for value. It is not available against competing contributors who are innocent of any wrongdoing. The tracing rules are not the result of any presumption or principle peculiar to equity. They correspond to the common law rules for following into physical mixtures (though the consequences may not be identical). Common to both is the principle that the interests of the wrongdoer who was responsible for the mixing and those who derive title under him otherwise than for value are subordinated to those of innocent C contributors. As against the wrongdoer and his successors, the beneficiary is entitled to locate his contribution in any part of the mixture and to subordinate their claims to share in the mixture until his own contribution has been satisfied. This has the effect of giving the beneficiary a lien for his contribution if the mixture is deficient. Innocent contributors, however, must be treated equally inter se. Where the beneficiary's claim is in competition with the claims of other innocent contributors, there is no basis upon which any of the claims can be subordinated to any of the others. Where the fund is deficient, the beneficiary is not entitled to enforce a lien for his contributions; all must share rateably in the fund. The primary rule in regard to a mixed fund, therefore, is that gains and losses are borne by the contributors rateably. The beneficiary's right to elect E instead to enforce a lien to obtain repayment is an exception to the primary rule, exercisable where the fund is deficient and the claim is made against the wrongdoer and those claiming through him. It is not necessary to consider whether there are any circumstances in which the beneficiary is confined to a lien in cases where the fund is more than sufficient to repay the contributions of all parties. It is sufficient to say that he is not so confined in a case like the present. It is not enough that those defending the claim are innocent of any wrongdoing if they are not themselves contributors but, like the trustees and Mr Murphy's children in the present case, are volunteers who derive title under the wrongdoer otherwise than for value. On ordinary principles such persons are in no better position than the wrongdoer, and are liable to suffer the same subordination of their interests to those of the claimant as the wrongdoer would have been. They certainly cannot do better than the C claimant by confining him to a lien and keeping any profit for themselves. Similar principles apply to following into physical mixtures: see Lupton v White (:i:8o8) 15 Ves 432; and Sandeman & Sons v Tyzack and Branfoot Steamship Co Ltd [1913] AC 680, 695 where Lord Moulton said: "If the mixing has arisen from the fault of 'B,' 'A' can claim the goods." There are relatively few cases which deal with the position of the innocent recipient from the wrongdoer, but Jones v De Marchant (1916) 28 DLR 561 may be cited as an example. A husband wrongfully used 18 beaver skins belonging to his wife and used them, together with four skins of his own, to have a fur coat made up which he then gave to his mistress. Unsurprisingly the wife was held entitled to recover the coat. The mistress knew nothing of the true Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20133Page 33 of 45 [2001 ] 1 AC Foskett v McKeown (HL(E)) Lord Millett A ownership of the skins, but her innocence was held to be immaterial. She was a gratuitous donee and could stand in no better position than the husband. The coat was a new asset manufactured from the skins and not merely the product of intermingling them. The problem could not be solved by a sale of the coat in order to reduce the disputed property to a divisible fund, since (as we shall see) the realisation of an asset does not affect its fi ownership. It would hardly have been appropriate to require the two ladies to share the coat between them. Accordingly it was an all or nothing case in which the ownership of the coat must be assigned to one or other of the parties. The determinative factor was that the mixing was the act of the wrongdoer through whom the mistress acquired the coat otherwise than for value. The rule in equity is to the same effect, as Sir William Page Wood V-C C observed in Frith v Cartland(i86$) z H & M 417, 420: "if a man mixes trust funds with his own, the whole will be treated as the trust property, except so far as he may be able to distinguish what is his own". This does not, in my opinion, exclude a pro rata division where this is appropriate, as in the case of money and other fungibles like grain, oil or wine. But it is to be observed that a pro rata division is the best that the wrongdoer and his donees can D hope for. If a pro rata division is excluded, the beneficiary takes the whole; there is no question of confining him to a lien. Jones v De Marchant 28 DLR 561 is a useful illustration of the principles shared by the common law and equity alike that an innocent recipient who receives misappropriated property by way of gift obtains no better title than his donor, and that if a proportionate sharing is inappropriate the wrongdoer and those who derive title under him take nothing. Insurance policies In the case of an ordinary whole life policy the insurance company undertakes to pay a stated sum on the death of the assured in return for fixed annual premiums payable throughout his life. Such a policy is an entire contract, not a contract for a year with a right of renewal. It is not a series of F single premium policies for one year term assurance. It is not like an indemnity policy where each premium buys cover for a year after which the policyholder must renew or the cover expires. The fact that the policy will lapse if the premiums are not paid makes no difference. The amounts of the annual premiums and of the sum assured are fixed in advance at the outset and assume the payment of annual premiums throughout the term of the C policy. The relationship between them is based on the life expectancy of the assured and the rates of interest available on long term government securities at the inception of the policy. In the present case the benefits specified in the policy are expressed to be payable "in consideration of the payment of the first premium already made and of the further premiums payable". The premiums are stated to be "£10,220 payable at annual intervals from 6 November 1985 throughout the lifetime of the life assured". It is beyond argument that the death benefit of £im. paid on Mr Murphy's death was paid in consideration for all the premiums which had been paid before that date, including those paid with the plaintiffs' money, and not just some of them. Part of that sum, therefore, represented the traceable proceeds of the plaintiffs' money. Case 1:20-mc-00199-JGK-OTW 134 Document 66-1 Filed 09/17/20 Page 34 of 45 FoskettvMcKeown(HL(E)) [2001] 1 AC Lord Millett It is, however, of critical importance in the present case to appreciate that A the plaintiffs do not trace the premiums directly into the insurance money. They trace them first into the policy and thence into the proceeds of the policy. It is essential not to elide the two steps. In this context, of course, the word "policy" does not mean the contract of insurance. You do not trace the payment of a premium into the insurance contract any more than you trace a payment into a bank account into the banking contract. The word "policy" is here used to describe the bundle of rights to which the policyholder is entitled in return for the premiums. These rights, which may be very complex, together constitute a chose in action, viz, the right to payment of a debt payable on a future event and contingent upon the continued payment of further premiums until the happening of the event. That chose in action represents the traceable proceeds of the premiums; its current value fluctuates from time to time. When the policy matures, the C insurance money represents the traceable proceeds of the policy and hence indirectly of the premiums. It follows that, if a claimant can show that premiums were paid with his money, he can claim a proportionate share of the policy. His interest arises by reason of and immediately upon the payment of the premiums, and the extent of his share is ascertainable at once. He does not have to wait until the policy matures in order to claim his property. His share in the policy and its proceeds may increase or decrease as further premiums are paid; but it is not affected by the realisation of the policy. His share remains the same whether the policy is sold or surrendered or held until maturity; these are merely different methods of realising the policy. They may affect the amount of the proceeds received on realisation but they cannot affect the extent of his share in the proceeds. In principle the plaintiffs are entitled to the f insurance money which was paid on Mr Murphy's death in the same shares and proportions as they were entitled in the policy immediately before his death. Since the manner in which an asset is realised does not affect its ownership, and since it cannot matter whether the claimant discovers what has happened before or after it is realised, the question of ownership can be answered by ascertaining the shares in which it is owned immediately before it is realised. Where A misappropriates B's money and uses it to buy a winning ticket in the lottery, B is entitled to the winnings. Since A is a wrongdoer, it is irrelevant that he could have used his own money if in fact he used B's. This may seem to give B an undeserved windfall, but the result is not unjust. Had B discovered the fraud before the draw, he could have decided whether to keep the ticket or demand his money back. He alone has C the right to decide whether to gamble with his own money. If A keeps him in ignorance until after the draw, he suffers the consequence. He cannot deprive B of his right to choose what to do with his own money; but he can give him an informed choice. The application of these principles ought not to depend on the nature of the chose in action. They should apply to a policy of life assurance as they apply to a bank account or a lottery ticket. It has not been suggested in argument that they do not apply to a policy of life assurance. This question has not been discussed in the English authorities, but it has been considered in the United States. In a Note (1925) 35 YLJ 2.20-227 Professor Palmer doubted the claimant's right to share in the proceeds of a life policy, and Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20 135Page 35 of 45 [2001] 1 AC FoskettvMcKeown(HL(E)) Lord Milieu A suggested that he should be confined to a lien for his contributions. Professor Palmer accepted, as the majority of the Court of Appeal in the present case did not, that the claimant can trace from the premiums into the policy and that the proceeds of the policy are the product of all the premiums. His doubts were not based on any technical considerations but on questions of social policy. They have not been shared by the American courts. These have generally allowed the claimant a share in the proceeds proportionate to his contributions even though the share in the proceeds is greater than the amount of his money used in paying the premiums: see for example Shaler v Trowbridge (1877) 28 NJEq 595; Holmes v Gilman (1893) 138 NY 369; Vorlander v Keyes (192.4) 1 Fzd 67; Truelsch v Northwestern Mutual Life Insurance Co. (192.5) 202 NW 352; Baxter House v Rosen (1967) 278 NY2d 442; Lohman v General American Life Insurance Co C (1973) 478 F2d 719. This accords with Ames's and Williston's opinions in the articles to which I have referred. The question is discussed at length in Scott on Trusts, 4th ed, pp 574-584, section 508.4. Professor Scott concludes that there is no substance in the doubts expressed by Palmer. He points out that the strongest argument in favour of limiting the beneficiary's claim to a lien is that otherwise he obtains a windfall. But in cases where the wrongdoer has misappropriated the claimant's money and used it to acquire other forms of property which have greatly increased in value the courts have consistently refused to limit the claimant to an equitable lien. In any case, the windfall argument is suspect. As Professor Scott points out, a life policy is an aleatory contract. Whether or not the sum assured exceeds the premiums is a matter of chance. Viewed from the perspective of the insurer, the contract is a commercial one; so the E chances are weighted against the assured. But the outcome in any individual case is unpredictable at the time the premiums are paid. The unspoken assumption in the argument that a life policy should be treated differently from other choses in action seems to be that, by dying earlier than expected, the assured provides a contribution of indeterminate but presumably substantial value. But the assumption is false. A life policy is not an indemnity policy, in which the rights against the insurer are acquired by virtue of the payment of the premiums and the diminution of the value of an asset. In the case of a life policy the sum assured is paid in return for the premiums and nothing else. The death of the assured is merely the occasion on which the insurance money is payable. The ownership of the policy does not depend on whether this occurs sooner or later, or on whether the bargain proves to be a good one. It cannot be made to await the event. C The windfall argument has little to commend it in the present case. The plaintiffs were kept in ignorance of the fact that premiums had been paid with their money until after Mr Murphy's death. Had they discovered what had happened before Mr Murphy died, they would have intervened. They might or might not have elected to take an interest in the policy rather than enforce a lien for the return of the premiums paid with their money, but they would certainly have wanted immediate payment. This would have entailed the surrender of the policy. At the date of his death Mr Murphy was only 45 and a non-smoker. He had a life expectancy of many years, and neither he nor the trustees had the means to keep up the premiums. The plaintiffs would hardly have been prepared to wait for years to recover their money, paying the premiums in the meantime. It is true that, under the terms of the Case 1:20-mc-00199-JGK-OTW 136 Document 66-1 Filed 09/17/20 Page 36 of 45 FoskettvMcKeown(HL(E)) [2001] 1 AC Lord Millett policy, life cover could if necessary be maintained for a few years more at the A expense of the investment element of the policy (which also provided its surrender value). But it is in the highest degree unlikely that the plaintiffs would have been willing to gamble on the remote possibility of Mr Murphy's dying before the policy's surrender value was exhausted. If he did not they would recover nothing. They would obviously have chosen to enforce their lien to recover the premiums or have sought a declaration that the trustees held the policy for Mr Murphy's children and themselves as tenants in common in the appropriate shares. In either case the trustees would have had no alternative but to surrender the policy. In practice the trustees were able to obtain the death benefit by maintaining the policy until Mr Murphy's death only because the plaintiffs were kept in ignorance of the fact that premiums had been paid with their money and so were unable to intervene. C The reasoning of the Court of Appeal The majority of the Court of Appeal (Sir Richard Scott V-C and Hobhouse LJ) held that the plaintiffs could trace their money into the premiums but not into the policy, and were accordingly not entitled to a proportionate share in the proceeds. They did so, however, for different and, in my view, inconsistent reasons which cannot both be correct and D which only coincidentally led to the same result in the present case. Sir Richard Scott V-C considered that Mr Murphy's children acquired vested interests in the policy at its inception. They had a vested interest (subject to defeasance) in the death benefit at the outset and before any of the plaintiffs' money was used to pay the premiums. The use of the plaintiffs' money gave the plaintiffs a lien on the proceeds of the policy for the return of the premiums paid with their money, but could not have the effect of E divesting the children of their existing interest. The children owned the policy; the plaintiffs' money was merely used to maintain it. The position was analogous to that where trust money was used to maintain or improve property of a third party. Sir Richard Scott V-C treated the policy as an ordinary policy of life assurance. It is not clear whether he thought that the children obtained a F vested interest in the policy because Mr Murphy took the policy out or because he paid the first premium, but I cannot accept either proposition. Mr Murphy was the original contracting party, but he obtained nothing of value until he paid the first premium. The chose in action represented by the policy is the product of the premiums, not of the contract. The trustee took out the policy in all the recorded cases. In some of them he paid all the premiums with trust money. In such cases the beneficiary was held to be C entitled to the whole of the proceeds of the policy. In other cases the trustee paid some of the premiums with his own money and some with trust money. In those cases the parties were held entitled to the proceeds of the policy rateably in proportion to their contributions. It has never been suggested that the beneficiary is confined to his lien for repayment of the premiums because the policy was taken out by the trustee. The ownership of the policy does not depend on the identity of the party who took out the policy. It depends on the identity of the party or parties whose money was used to pay the premiums. So Sir Richard Scott V-C's analysis can only be maintained if it is based on the fact that Mr Murphy paid the first few premiums out of his own money Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20 137Page 37 of 45 [2001 ] 1 AC Foskett v McKeown (HL(E)) Lord Millett A before he began to make use of the trust money. Professor Scott records only one case in which it has been held that in such a case the claimant is confined to a lien on the ground that the later premiums were not made in acquiring the interest under the policy but merely in preserving or improving it: see Thum v Wolstenbolme (1900) 61 P 537. The case is expressly disapproved in Scott on Trusts, pp 616-617, where it is said that the decision cannot be supported, and that the claimant should be entitled to a proportionate share of the proceeds, regardless of the question whether some of the premiums were paid wholly with the claimant's money and others wholly with the wrongdoer's money and regardless of the order of the payments, or whether the premiums were paid out of a mingled fund containing the money of both. In my opinion there is no reason to differentiate between the first premium or premiums and later premiums. Such a distinction is not based C on any principle. Why should the policy belong to the party who paid the first premium, without which there would have been no policy, rather than to the party who paid the last premium, without which it would normally have lapsed? Moreover, any such distinction would lead to the most capricious results. If only four annual premiums are paid, why should it matter whether A paid the first two premiums and B the second two, or B paid the first two and A the second two, or they each paid half of each of the four premiums? Why should the children obtain the whole of the sum assured if Mr Murphy used his own money before he began to use the plaintiffs' money, and only a return of the premiums if Mr Murphy happened to use the plaintiffs' money first? Why should the proceeds of the policy be attributed to the first premium when the policy itself is expressed to be in consideration of all the premiums? There is no analogy with the case £ where trust money is used to maintain or improve property of a third party. The nearest analogy is with an instalment purchase. Hobhouse LJ adopted a different approach. He concentrated on the detailed terms of the policy, and in particular on the fact that in the event the payment of the fourth and fifth premiums with the plaintiffs' money made no difference to the amount of the death benefit. Once the third premium had been paid, there was sufficient surrender value in the policy, built up by the use of Mr Murphy's own money, to keep the policy on foot for the next few years, and as it happened Mr Murphy's death occurred during those few years. But this was adventitious and unpredictable at the time the premiums were paid. The argument is based on causation and as I have explained is a category mistake derived from the law of unjust enrichment. It is an example of the same fallacy that gives rise to the idea that the proceeds of an C ordinary life policy belong to the party who paid the last premium without which the policy would have lapsed. But the question is one of attribution not causation. The question is not whether the same death benefit would have been payable if the last premium or last few premiums had not been paid. It is whether the death benefit is attributable to all the premiums or only to some of them. The answer is that death benefit is attributable to all of them because it represents the proceeds of realising the policy, and the policy in turn represents the product of all the premiums. In any case, Hobhouse LJ's analysis of the terms of the policy does not go far enough. It is not correct that the last two premiums contributed nothing to the sum payable on Mr Murphy's death but merely reduced the cost to the insurers of providing it. Life cover was provided in return for a series of Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20 Page 38 of 45 138 FoskettvMcKeown(HL(E)) [2001] 1 AC Lord Millett internal premiums paid for by the cancellation of units previously allocated A to the policy. Units were allocated to the policy in return for the annual premiums. Prior to their cancellation the cancelled units formed part of a mixed fund of units which was the product of all the premiums paid by Mr Murphy, including those paid with the plaintiffs' money. On ordinary principles, the plaintiffs can trace the last two premiums into and out of the mixed fund and into the internal premiums used to provide the death benefit. It is true that the last two premiums were not needed to provide the death benefit in the sense that in the events which happened the same amount would have been payable even if those premiums had not been paid. In other words, with the benefit of hindsight it can be seen that Mr Murphy made a bad investment when he paid the last two premiums. It is, therefore, superficially attractive to say that the plaintiffs' money contributed nothing of value. But the argument proves too much, for if the plaintiffs cannot trace C their money into the proceeds of the policy, they should have no proprietary remedy at all, not even a lien for the return of their money. But the fact is that Mr Murphy, who could not foresee the future, did choose to pay the last two premiums, and to pay them with the plaintiffs' money; and they were applied by the insurer towards the payment of the internal premiums needed to fund the death benefit. It should not avail his donees that he need not have paid the premiums, and that if he had not then (in the events which happened) the insurers would have provided the same death benefit and funded it differently. In the case of an ordinary life policy which lapses if the premiums are not paid, Sir Richard Scott V-C's approach gives the death benefit to the party whose money was used to pay the first premium, and Hobhouse LJ's approach gives it to the party whose money was used to pay the last E premium. In the case of a policy like the present, Hobhouse LJ's approach also produces unacceptable and capricious results. The claimant must wait to see whether the life assured lives long enough to exhaust the amount of the policy's surrender value as at the date immediately before the claimant's money was first used. If the life assured dies the day before it would have been exhausted, the claimant is confined to his lien to recover the premiums; if he dies the day after, then the claimant's premiums were needed to maintain the life cover. In the latter case he takes at least a proportionate share of the proceeds or, if the argument is pressed to its logical conclusion, the whole of the proceeds subject to a lien in favour of the trustees of the children's settlement. This simply cannot be right. Hobhouse LJ's approach is also open to objection on purely practical grounds. It must, I think, be unworkable if there is an eccentric pattern of c payment; or if there is a fall in the value of the units at a critical moment. Like Sir Richard Scott V-C's approach, it prompts the question: why should the order of payments matter? It is true that the premiums paid with the plaintiff's money did not in the event increase the amount payable on Mr Murphy's death, but they increased the surrender value of the policy and postponed the date at which it would lapse if no further premiums were paid. Why should it be necessary to identify the premium the payment of which (in the events which happened) prevented the policy from lapsing? Above all, this approach makes it impossible for the ownership of the policy to be determined until the policy matures or is realised. This too cannot be right. Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20 Page 39 of 45 139 [2001] 1 AC FoskettvMcKeown (HL(E)) Lord Milieu A The trustees argued that such considerations are beside the point. It is not necessary, they submitted, to consider what the plaintiffs' rights would have been if the policy had been surrendered, or if Mr Murphy had lived longer. It is sufficient to take account of what actually happened. I do not agree. A principled approach must yield a coherent solution in all eventualities. The ownership of the policy must be ascertainable at every moment from inception to maturity; it cannot be made to await events. In my view the only way to achieve this is to hold firm to the principle that the manner in which an asset is converted into money does not affect its ownership. The parties' respective rights to the proceeds of the policy depend on their rights to the policy immediately before it was realised on Mr Murphy's death, and this depends on the shares in which they contributed to the premiums and nothing else. They do not depend on the date at which or the manner in C which the chose in action was realised. Of course, Mr Murphy's early death greatly increased the value of the policy and made the bargain a good one. But the idea that the parties' entitlements to the policy and its proceeds are altered by the death of the life assured is contrary to principle and to the decision of your Lordships' House in D'Avigdor-Goldsmid v Inland Revenue Comrs [1953] AC 347. That case establishes that no fresh beneficial interest in a policy of life assurance accrues or arises on the death of the life assured. The sum assured belongs to the person or persons who were beneficial owners of the policy immediately before the death. In the course of argument it was submitted that if the children, who were innocent of any wrongdoing themselves, had been aware that their father was using stolen funds to pay the premiums, they could have insisted that the premiums should not be paid, and in the events which happened would still £ have received the same death benefit. But the fact is that Mr Murphy concealed his wrongdoing from both parties. The proper response is to treat them both alike, that is to say rateably. It is morally offensive as well as contrary to principle to subordinate the claims of the victims of a fraud to those of the objects of the fraudster's bounty on the ground that he concealed his wrongdoing from both of them. The submission is not (as has been suggested) supported by Professor David Hayton's article "Equity's Identification Rules" in Laundering and Tracing (1995), edited by Peter Birks, at pp 11-12.. Professor Hayton is dealing with the very different case of the party who decides to purchase an asset and has the means to pay for it, but who happens to use trust money which he has received innocently, not knowing it to belong to a third party and believing himself to be entitled to it. In such a case his decision to use the C trust money rather than his own is independent of the breach of trust; it is a matter of pure chance. This is a problem about tracing, not claiming, and has nothing to do with mixtures, as Professor Hayton's article itself makes clear. It is a difficult problem on the solution to which academic writers are not agreed. But it does not arise in the present case. It was Mr Murphy's decision to use the plaintiffs' money to pay the later premiums. The children are merely passive recipients of an asset acquired in part by the use of misappropriated trust money. They are innocent of any personal wrongdoing, but they are not contributors. They are volunteers who derive their interest from the wrongdoer otherwise than for value and are in no better position than he would have been if he had retained the policy for the benefit of his estate. It is not, with respect to those who think otherwise, a Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20 Page 40 of 45 140 FoskettvMcKeown (HL(E)) [2001] 1 AC Lord Millett case where there are competing claimants to a fund who are both innocent A victims of a fraud and where the equities are equal. But if it were such a case, the parties would share rateably, which is all that the plaintiffs claim. I should now deal with the finding of all the members of the Court of Appeal that the plaintiffs were entitled to enforce a lien on the proceeds of the policy to secure repayment of the premiums paid with their money. This is inconsistent with the decision of the majority that the plaintiffs were not entitled to trace the premiums into the policy. An equitable lien is a proprietary interest by way of security. It is enforceable against the trust property and its traceable proceeds. The finding of the majority that the plaintiffs had no proprietary interest in the policy or its proceeds should have been fatal to their claim to a lien. The Court of Appeal held that the plaintiffs were entitled by way of subrogation to Mr Murphy's lien to be repaid the premiums. He was, they c thought, entitled to the trustee's ordinary lien to indemnify him for expenditure laid out in the preservation of the trust property: see In re Leslie 23 ChD 560. Had Mr Murphy used his own money, they said, it would have been treated as a gift to his children; but the fact that he used stolen funds rebutted any presumption of advancement. With all due respect, I do not agree that Mr Murphy had any lien to which D the plaintiffs can be subrogated. He was one of the trustees of his children's settlement, but he did not pay any of the premiums in that capacity. He settled a life policy on his children but without the funds to enable the trustees to pay the premiums. He obviously intended to add further property to the settlement by paying the premiums. When he paid the premiums with his own money he did so as settlor, not as trustee. He must be taken to have paid the later premiums in the same capacity as he paid the earlier ones. I do £ not for my own part see how his intention to make further advancements into the settlement can be rebutted by showing that he was not using his own money; as between himself and his children the source of the funds is immaterial. He could not demand repayment from the trustees by saying: "I used stolen money; now that I have been found out you must pay me back so that I can repay the money." Moreover, even if the presumption of F advancement were rebutted, there would be no resulting trust. Mr Murphy was either (as I would hold) a father using stolen money to make further gifts to his children or a stranger paying a premium on another's policy without request: see Falcke v Scottish Imperial Insurance Co 34 Ch D 234. But perhaps the strongest ground for rejecting the argument is that it makes the plaintiffs' rights depend on the circumstance that Mr Murphy happened to be one of the trustees of his children's settlement. That is Q adventitious. If he had not been a trustee then, on the reasoning of the majority of the Court of Appeal, the plaintiffs would have had no proprietary remedy at all, and would be left with a worthless personal claim against Mr Murphy's estate. The plaintiffs' rights cannot turn on such chances as this. H The relevant proportions Accordingly, I agree with Morritt LJ in the Court of Appeal that, on well established principles, the parties are entitled to the proceeds of the policy in the proportions in which those proceeds represent their respective contributions. It should not, however, be too readily assumed that this Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20 Page 41 of 45 141 [2001] 1 AC Foskett v McKeown (HL(E)) Lord M i l i e u A means in the proportions in which the insurance premiums were paid with their money. These represent the cost of the contributions, not necessarily their value. A mixed fund, like a physical mixture, is divisible between the parties who contributed to it rateably in proportion to the value of their respective contributions, and this must be ascertained at the time they are added to the mixture. Where the mixed fund consists of sterling or a sterling account or where both parties make their contributions to the mixture at the same time, there is no difference between the cost of the contributions and their sterling value. But where there is a physical mixture or the mixture consists of an account maintained in other units of account and the parties make their contributions at different times, it is essential to value the contributions of both parties at the same time. If this is not done, the resulting proportions C will not reflect a comparison of like with like. The appropriate time for valuing the parties' respective contributions is when successive contributions are added to the mixture. This is certainly what happens with physical mixtures. If 20 gallons of A's oil are mixed with 40 gallons of B's oil to produce a uniform mixture of 60 gallons, A and B are entitled to share in the mixture in the proportions of 1 to z. It makes no difference if A's oil, being purchased later, cost £2 a gallon and B's oil cost only £1 a gallon, so that they each paid out £40. This is because the mixture is divisible between the parties rateably in proportion to the value of their respective contributions and not in proportion to their respective cost. B's contribution to the mixture was made when A's oil was added to his, and both parties' contributions should be valued at that date. Should a further 20 gallons of A's oil be added to the mixture to produce a £ uniform mixture of 80 gallons at a time when the oil was worth £3 a gallon, the oil would be divisible equally between them. (A's further 20 gallons are worth £3 a gallon—but so are the 60 gallons belonging to both of them to which they have been added.) It is not of course necessary to go through the laborious task of valuing every successive contribution separately in sterling. It is simpler to take the account by measuring the contributions in gallons rather than sterling. This is merely a short cut which produces the same result. In my opinion the same principle operates whenever the mixture consists of fungibles, whether these be physical assets like oil, grain or wine or intangibles like money in an account. Take the case where a trustee misappropriates trust money in a sterling bank account and pays it into his personal dollar account which also contains funds of his own. The dollars C are, of course, merely units of account; the account holder has no proprietary interest in them. But no one, I think, would doubt that the beneficiary could claim the dollar value of the contributions made with trust money. Most people would explain this by saying that it is because the account is kept in dollars. But the correct explanation is that it is because the contributions are made in dollars. In order to allocate the fund between the parties rateably in proportion to the value of their respective contributions, it is necessary to identify the point at which the trust money becomes mixed with the trustee's own money. This does not occur when the trustee pays in a sterling cheque drawn on the trust account. At that stage the trust money is still identifiable. It occurs when the bank credits the dollar equivalent of the sterling cheque to the trustee's personal account. Those Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20 Page 42 of 45 142 FoskettvMcKeown(HL(E)) [2001] 1 AC Lord Millett dollars represent the contribution made by the trust. The sterling value of A the trust's contribution must be valued at that time; and it follows that the trustee's contributions, which were also made in dollars, must be valued at the same time. Otherwise one or other party will suffer the injustice of having his contributions undervalued. Calculating the plaintiffs' share B I finally come to the difficult question: how should the parties' contributions, and therefore their respective shares in the proceeds, be calculated in the case of a unit-linked policy of the present kind? This makes it necessary to examine the terms of the policy in some detail. All the reported cases have been concerned with ordinary policies of life assurance. In all the cases the insurance moneys have been shared between c the parties in the proportions in which their money has been used to pay the premiums irrespective of the dates on which the premiums were paid. This favours the party who paid the later premiums at the expense of the party who paid the earlier ones. There is therefore a case for adding interest to the premiums in order to produce a fair result. This cannot be justified by the need to compensate the parties for the loss of the use of their money over different periods. It is not merely that this branch of the law is concerned r, with vindicating property rights and not with compensation for wrongdoing. It is that ex hypothesi the money has not been lost but used to produce the insurance money. But I think that taking account of interest can be justified nonetheless. The policy and its proceeds are not the product of the uninvested premiums alone. If they were, the sum assured would be very much smaller than it is. They are the product of the premiums invested at compound interest. It does not matter, of course, what the insurance E company actually does with the money. What matters is how the sum assured is calculated, because this shows what it represents. In practice it represents the sum which would be produced by the premiums over the term of the expected life of the assured together with compound interest at the rate available at the inception of the policy on long term government securities. But the question has not been the subject of argument before us, f and having regard to the mechanics of the present policy the calculations may not be worth doing. I agree therefore with my noble and learned friend Lord Hoffmann that there is no need to explore this aspect further. Unit-linked policies, however, are very different. These policies have become popular in recent years, and are commonly employed for personal pension plans taken out by the self-employed. Under such a policy the premiums are applied by the insurance company in the acquisition of C accumulation units in a designated fund usually managed by the insurance company. The bid and offer prices of the units are published daily in the financial press. The value of the units can go down as well as up, but since they carry the reinvested income their value can be expected to increase substantially over the medium and long term. The policy is essentially a savings medium, and (subject to tax legislation) can be surrendered at any time. On surrender the policyholder is entitled to the value of the units allocated to the policy. Early policies provided that on death the policyholder was entitled merely to the return of his premiums with interest, but more modern policies provide for payment of the value of the units in this event also. Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20 Page 43 of 45 143 [2001] 1 AC FoskettvMcKeown (HL(E)) Lord Millett A Where money belonging to different parties is used to pay the premiums under a policy of this kind, it cannot be right to divide the proceeds of the policy crudely according to the number of premiums paid by each of them. The only sensible way of apportioning the proceeds of such a policy is by reference to the number of units allocated to the policy in return for each premium. This is readily ascertainable, since policyholders are normally issued with an annual statement showing the number of units held before receipt of the latest premium, the number allocated in respect of the premium, and the total number currently held. But in any case these numbers can easily be calculated from published material. This would obviously be the right method to adopt if the policyholder acquired a proprietary interest in the units. These would fall to be dealt with in the same way as grain, oil or wine. There would of course still be a mixed C substitution, since after the mixture neither party's contributions can be identified. Neither can recover his own property, but only a proportion of the whole. Unlike Roman law, the common law applied the same principles whenever there is no means of identifying the specific assets owned by either party. In the United States they have been applied to logs, pork, turkeys, sheep and straw hats: see Smith, The Law of Tracing, at p 70. In fact unit- linked policies normally provide that the policyholder has no proprietary interest in the units allocated to the policy. They are merely units of account. The absence of a proprietary interest in the units would be highly material in the event of the insolvency of the insurance company. But it should have no effect on the method of calculating the shares in which competing claimants are entitled to the proceeds of the policy. This depends upon the proportions in which they contributed to the acquisition of the policy, and the question E is: in what units of account should the parties' respective contributions be measured? Should they be measured in sterling, this being the currency in which the premiums were paid? Or should they be measured by accumulation units, if this was the unit of account into which the premiums were converted before the admixture took place? Principle, and the cases on physical mixtures, indicate that the second is the correct approach. A unit linked policy of the kind I have described is simply a savings account. The account is kept in units. The mixing occurs when the insurance company, having received a premium in sterling, allocates units to the account of the insured where they are at once indistinguishably mixed with the units previously allocated. The contribution made by each of the parties consists of the units, not merely of their sterling equivalent. The proceeds of a unit- linked policy should in my opinion be apportioned rateably between the C parties in proportion to the value of their respective contributions measured in units, not in sterling. The policy in the present case is only a variant of the unit-linked policy of the kind I have described. It is also primarily a savings medium but it offers an additional element of life assurance. This protects the assured against the risk of death before the value of the units allocated to the policy reaches a predetermined amount. On receipt of each premium, the insurance company allocates accumulation units in the designated fund to the policy ("the investment element"), and immediately thereafter cancels sufficient of the units to provide "the insurance element". This is in effect an internal premium retained by the insurance company to provide the life cover. The amount of the internal premium is calculated each year by a complicated Case 1:20-mc-00199-JGK-OTW 144 Document 66-1 Filed 09/17/20 Page 44 of 45 FoskettvMcKeown(HL(E)) [2001] 1 AC Lord Millett formula. The important feature of the formula for present purposes is that A the internal premium is not calculated by reference to the sum assured of £im. but by reference to the difference between the current value of the units allocated to the policy and the sum assured. As the value of the units increases, therefore, the amount of the internal premium should reduce. When their value is equal to or greater than the sum assured, no further internal premiums are payable. Thenceforth the policy is exactly like the kind of unit-linked policy described above. The policyholder is entitled to the investment element, i e the value of the accumulated units, on death as well as on surrender. If the policyholder dies at a time when the investment element is less than the sum assured, then he receives the sum assured. This is paid as a single sum, but it has two components with different sources. One is the investment element, which represents the value of the accumulated units at c the date of death. The other is the insurance element, which is merely a balancing sum. It will be very large in the early years of the policy and will eventually reduce to nothing. It is the product of the internal premiums and is derived from the cancelled units. The internal premiums, however, though derived from the cancelled units, were credited to the account in sterling. The proceeds of the internal premiums, therefore, should be apportioned between the parties pro rata in the proportions in which those premiums were provided in sterling. In my opinion the correct method of apportioning the sum assured between the parties is to deal separately with its two components. The investment element (which amounted to £39,347 at the date of death in the present case) should be divided between the parties by reference to the value at maturity of the units allocated in respect of each premium and not £ cancelled. The balance of the sum assured should be divided between the parties rateably in the proportions in which they contributed to the internal premiums. This is not to treat the allocated units as a real investment separate from the life cover when it was not. Nor is it to treat the method by which the benefits payable under the policy is calculated as determinative or even relevant. It is to recognise the true nature of the policy, and to give effect to the fact that the sum assured had two components, to one of which the parties made their contributions in units and to the other of which they made their contributions in the sterling proceeds of realised units. These calculations require the policyholder's account to be redrawn as two accounts, one for each party. The number of units allocated to the policy on the receipt of each premium should be credited to the account of the party whose money was used to pay the premium. The number of units c so allocated should be readily ascertainable from the records of the insurance company, but if not it can easily be worked out. The number of units which were cancelled to provide the internal premium should then be ascertained in similar fashion and debited to the appropriate account. In the case of the earlier premiums paid with Mr Murphy's own money this will be the trustees' account. In the case of the later premiums paid with the plaintiffs' money, the cancelled units should not be debited wholly to the plaintiffs' account, but rateably to the two accounts. The amount of the internal premiums should then be credited to the two accounts in the same proportions as those in which the cancelled units were debited to provide them. Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20145 Page 45 of 45 [2001] 1 AC FoskettvMcKeown(HL(E)) Lord Millett A This approach is substantially more favourable to the children than a crude allocation by reference to the premiums. By taking account of the value of the units, it automatically weights the earlier premiums which should have bought more units than the later ones. And it gives effect to the fact that, under the terms of the policy, both parties contributed to the later internal premiums which produced the greater part of the death benefit. It is, of course, always open to the parties in any case to dispense with complex calculations and agree upon a simpler method of apportionment. But in my opinion the court ought not to do so without the parties' consent. If it does, anomalies and inconsistencies will inevitably follow. Take the present case. The method of apportionment, with greatly differing results, ought not to depend upon whether the value of the units at the date of death is slightly more or slightly less than the sum assured. Yet once their value Q exceeds the amount of the sum assured, the policy becomes an ordinary unit- linked pension policy without an insurance element. If the sum assured is divided crudely in proportion to the premiums in the present case, their consistency requires that the same method be adopted for pension policies, which is surely wrong. If it is adopted for pension policies, then it is difficult to see how foreign currency assets can be treated differently, which is certainly wrong. There is an enormous variety of financial instruments. For D present purposes they form a seamless web. Cutting corners in the interest of simplicity is tempting, but in my opinion the temptation ought to be resisted. Conclusion Accordingly I would allow the appeal. In my opinion the insurance money ought to be divided between the parties in the proportions I have £ indicated. But I am alone in adopting this approach, and as the question was not argued before us I am content that your Lordships should declare that the money should be divided between the parties in proportions in which they contributed to the premiums. For the reasons given by my noble and learned friend, Lord Hope of Craighead, with which I agree, I would dismiss the children's cross-appeal. F Appeal allowed. Cross-appeal dismissed. Declaration that plaintiffs entitled to share in fund in accordance with proportion of premiums paid out of their money. Cause remitted to Chancery Division. No order for costs in High Court. Plaintiffs' costs in Court of Appeal and House of Lords to be paid out of legal aid fund. Solicitors: Kidd Rapinet; Fitzgerald-Harts, Boroughbridge. H SH i AC 2.001—6	2020-09-17	[ "Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20 Page 1 of 45 Exhibit 1 Case 1:20-mc-00199-JGK-OTW 102 Document 66-1 Filed 09/17/20 Page 2 of 45 FoskettvMcKeown (HL(E)) [2001] 1 AC House of Lords A Foskett v McKeown and others 1999 March 15,16,17, 22; Lord Browne-Wilkinson, Lord Steyn, 2000 May 18 Lord Hoffmann, Lord Hope of Craighead and Lord Millett fi Trusts — Trustee — Breach of trust — Trustee fraudulently using trust moneys to pay premiums on policy of life insurance — Policy held for benefit of innocent volunteers — Whether trust moneys traceable into policy proceeds — Whether trust beneficiaries entitled to share of proceeds In 1988 a number of purchasers entrusted a total of £2-6m t o M and an associate for a property development scheme in Portugal on terms that within two years the developed plots would be conveyed to the purchasers or their money repaid with interest. The scheme was never carried out. M, in breach of trust, used some £20,440 of the purchasers' money to pay two annual premiums for 1989 and 1990 on a whole life insurance policy effected in 1986.", "There was a dispute as to the extent to which he used trust moneys to pay the premium for 1988. The policy provided that, in consideration of the first premium and of the further premiums payable under the policy, a specified death benefit was to be paid on M's death, namely whichever u was greater of £ i m a n d the aggregate value of units notionally allocated to the policy. The policy provided for those units to be allocated on receipt of each premium, and that units were to be cancelled each year in order to meet the cost of the life cover for that year. The surrender value of the policy was the aggregate value of the uncancelled units from time to time. In 1989 M divested himself of any beneficial interest in the policy, appointing it to be held principally for the benefit of his three children, the third to fifth defendants.", "In 1991 M committed suicide, whereupon the insurers paid to the trustees of the policy, the first and second defendants, £ i m , as F the death benefit due under it. In 1994 the purchasers obtained a declaration that the land in Portugal and the shares in the company which was to develop it were held in trust for the purchasers. They also obtained £600,000 under a compromise with the bank from whose accounts the money had been misappropriated. The purchasers then brought an action claiming the proceeds of the policy.", "The judge held that they could recover 5 3-46% of the proceeds as representing the extent to which their money had contributed to the investment value of the policy at the date of M's death. The F Court of Appeal held, allowing an appeal by the third to fifth defendants, that the use of the purchasers' money to pay the premiums could not give them an equitable interest in the death benefit nor could it give them a share in the proceeds of the policy proportionate to the premiums paid with their money and that they were limited to a restitutionary charge over the proceeds of the policy to the extent that their money could be traced into the premiums with interest thereon. On appeal by the purchasers and cross-appeal by the third to fifth defendants— C Held, (1) dismissing the cross-appeal, that the remedy claimed by the purchasers was a proprietary remedy, and the compensation obtained by them in earlier proceedings could not deprive them of their proprietary interest in their own money; that, since the policy proceeds were paid in consideration of the receipt of all the premiums payable under the policy, the purchasers were able to follow their money into the policy when the premiums were paid and from there into the hands of the trustees when the death benefit was paid to them, so as to obtain reimbursement from /-/ the policy proceeds of the amount of the premiums paid with their money with interest (post, pp 108C-D, 112.B, 113E-F, 115E-G, 117G-118C, 119E-H, 145D-E).", "(2) Allowing the appeal (Lord Steyn and Lord Hope of Craighead dissenting), that, where a trustee wrongfully used trust money to provide part of the cost of acquiring an asset, the beneficiary was entitled, at his option, either to claim a Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20 Page 3 of 45 103 [2001] 1 AC FoskettvMcKeown (HL(E)) A proportionate share of the asset or to enforce a lien upon it to secure his personal claim against the trustee for the amount of the misapplied money; that it was immaterial whether the trustee mixed the trust money with his own in a single fund before using it to acquire the asset, or made separate payments, either simultaneously or sequentially, out of the differently owned funds to acquire a single asset; that volunteers deriving title otherwise than for value could be in no better position than the wrongdoer notwithstanding their innocence of any wrongdoing; and that, 8 accordingly, since the purchasers could trace trust money through the premiums into the policy money, and since the beneficiaries of the policy were volunteers and had not themselves contributed to the premiums, the purchasers were entitled to a share in the policy proceeds proportionate to the premiums paid out of the trust money (post, pp I O 8 D , 109H-110E, I T B - E , 115E-G, H - I I 6 B , C - D , 127F-H, 129B-C, 129H-130C, 131G-132G, 134C-E, 139F-140A, 141A-C, 145D-E). Dictum of Sir George Jessel MR in In re Hallett's Estate; Knatchbull v Hallett C (1880) 13 ChD 696, 709, CAdisapproved.", "Decision of the Court of Appeal [1998] Ch 265; [1998] 2 WLR 298; [1997] 3 All ER 392 varied.", "The following cases are referred to in the opinions of their Lordships: Baxter House Inc v Rosen (1967) 278 NYSid442 D'Avigdor-Goldsmid v Inland Revenue Comrs [1953] AC 347; [1953] 2 WLR 372; D [1953] 1 All ER 403, HL(E) Diplock, In re; Diplock v Wintle [1948] Ch 465; [1948] 2 All ER 318, CA Edinburgh Corpn v Lord Advocate (1879) 4 App Cas 823, HL(Sc) Edinburgh, Magistrates ofv McLaren (1881) 8 R 140, HL(Sc) El Ajou v Dollar Land Holdings pic [1993] 3 All ER717 Falcke v Scottish Imperial Insurance Co (1886) 34 Ch D 234, CA Frith v Cartland{z86s) 2 H 8c M 417 £ Hallett's Estate, In re; Knatchbull v Hallett (1880) 13 Ch D 696, CA Holmes v Gilman (1893) 138 NY 369 Jones v De Marchant (1916) 28 DLR 561 Jones (F C) & Sons (Trustee of the Property of) v Jones [1997] Ch 159; [1996] 3 WLR 703; [1996] 4 All ER 721, CA Leslie, In re; Leslie v French ( 1 8 8 3 ) 2 3 ^ 0 5 5 2 Lohman v General American Life Insurance Co (1973) 478 F2d 719 F Lupton v White (1808) 15 Ves 43 2 Primeau v Granfield (1911) 184 F480 Sandeman & Sons v Tyzack and Branfoot Steamship Co Ltd [19131 AC 680, HL(Sc) Scott vScott (1963) 109 CLR 649 Shalerv Trowbridge (1877) 28 NJEq 595 Sinclair v Brougham [1914] AC 398, HL(E) Thum v Wolstenholme (1900) 61 P 537 Tilley's Will Trusts, In re [1967] Ch 1179; [1967] 2 WLR 1533; [1967] 2 All ER 303 Truelsch v Northwestern Mutual Life Insurance Co (1925) 202 NW 352 Vorlander vKeyes (1924) 1 F2d 67 The following additional case was cited in argument: Halifax Building Society v Thomas [1996] Ch 217; [1996] 2 WLR 63; [1995] 4 All ER673,CA H APPEAL from the Court of Appeal This was an appeal by the plaintiff, Paul Foskett, acting on his own behalf and on behalf of 2.19 other potential purchasers of plots of land at M o u n t Eden, Algarve, Portugal, and a cross-appeal by the third to fifth defendants, Daragh Timothy Murphy, Jason John M u r p h y and Louise Mary M u r p h y Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20 Page 4 of 45 104 FoskettvMcKeown(HL(E)) [2001] 1 AC (the children of Timothy Mary Murphy, deceased, and the principal A beneficiaries under a policy of life insurance effected by him), from a decision of the Court of Appeal (Sir Richard Scott V-C and Hobhouse LJ; Morritt LJ dissenting) on 21 May 1997 allowing an appeal by the third to fifth defendants from a decision of Laddie J on 12 July 1996 on a summons for summary judgment under RSC Ord 14, awarding the plaintiff 53-46% of the death benefit paid to the first and second defendants, Jean Elizabeth McKeown and Michael John Nelson.", "On 18 December 1997 the House of Lords (Lord Lloyd of Berwick, Lord Nolan and Lord Clyde) granted the plaintiff leave to appeal. On 21 May 1998 the House of Lords (Lord Browne-Wilkinson, Lord Hope of Craighead and Lord Hutton) granted the third to fifth defendants leave to cross-appeal. The facts are stated in the opinions of their Lordships. Richard Mawrey QC and Adrian Cooper for the plaintiffs. M held the money on express trust for the purchasers and held the insurance policy on trust for a class which excluded himself. The two trust funds were mixed. Where a trustee of two separate trusts (A and B) employs the assets of trust A to contribute towards the assets of trust B, the beneficiaries of trust A have a proprietary claim against the assets of trust B. They can elect to recover the amount of the wrongful contribution, with interest, or to take a share of the D assets of trust B proportionate to the contribution from trust A: see Edinburgh Corpn v Lord Advocate (1:879) 4 App Cas 823. Although this case was analysed in terms of tracing, it is in fact the application of a more general equitable principle of fairness in judging between competing innocent claimants to the same fund. The identity of the competing claimants is irrelevant since tracing is independent of any state of knowledge or notice of the wrongful application of trust funds.", "A \"guilty\" beneficiary, as M was when he was an actual or potential beneficiary of the policy, is neither essential nor relevant to the tracing of misappropriated moneys into their proceeds. The misuse by M of the purchasers' moneys to pay the premiums on the policy gave the purchasers a proprietary right against the proceeds sufficient to enable them to recover the premiums paid plus interest, whether that right F was regarded as giving rise to a tracing claim or to an equitable lien or charge. Whether the purchasers can go further and assert a proprietary claim to a pro rata proportion of the proceeds of the policy depends on the answer to the question whether, where a \"whole life\" policy of life insurance requires the payment of annual premiums, those premiums are to be treated as contributing rateably to the acquisition of the policy and its eventual c proceeds, thus creating a proportionate equitable interest for the beneficiary of the trust or the tracing claim, or simply as maintaining in existence an asset which has been acquired bu the granting of the policy and the payment of the first premium.", "Clearly, where the asset is acquired by a single payment and transferred into the name of one or more persons then anyone else who wishes to assert a proprietary right to the asset must show that he provided some or all of that single payment. If however the acquisition of the asset involves the making of payments over a period of time it might be unrealistic to have regard only to the the transaction whereby title came to be vested in the acquirer. The obvious example is property purchased on mortgage where outright title is normally acquired by the mortgagor with money provided by the Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20105Page 5 of 45 [2001] 1 AC FoskettvMcKeown(HL(E)) A mortgagee, but a third party who subsequently pays a mortgage instalment at the express or implied request of the mortgagor might obtain a proprietary interest even though those instalments did not directly contribute to the actual acquisition of title.", "Therefore the distinction between contribution to acquisition at or prior to the time of acquisition, and contribution to the asset thereafter, is not always sustainable. It is better to have regard to the nature of the asset and to apply general equitable principles to ascertain whether contributions give rise to an equitable entitlement. The true nature of a whole life policy is that it is an asset acquired by payment of all the premiums and not an asset acquired by payment of the first premium alone and merely maintained by the payment of subsequent premiums. Where an asset is purchased in circumstances giving rise to a C trust, the beneficiary under the trust can elect to recover the amount of the purchase money or to claim a proportionate interest in the value of the asset: see In re Diplock; Diplock v Wintle [1948] Ch 465 and In re Tilley's Will Trusts [196-/] Ch 1179. Where a wrongdoer holds the legal title to property which is subject to a claim based on constructive trust or the equitable right to trace, the Q wrongdoer cannot defeat the claim by executing a declaration of trust in favour of a third party.", "It would match the layman's approach to what is just if the proceeds of the policy were split between the purchasers and the children. Roger Kaye QC and Clare Stanley for the defendants. The policy moneys are not the true product of a relevant mixed fund. This is not a case of unjust ^ enrichment but of vindication of property rights. The purchasers have no property rights to vindicate. The purchasers elected to take the plots in specie, the very property for which their deposit moneys were earmarked. Therefore the purchasers cannot establish that they retained any equitable interest in the deposit moneys. They have no proprietary base from which they can trace. Thus, they can make no proprietary claim to the policy moneys.", "Besides, the F purchasers obtained compensation from Lloyds Bank Pic for breach of trust in relation to dealings with the relevant account. They thus made a binding election preventing them from pursuing any claim to the policy moneys. Alternatively, if the purchasers can establish a proprietary claim, they nevertheless cannot trace into the policy moneys because the moneys used to pay the 1989 and 1990 premiums cannot be identified as being represented Q by the policy moneys since the policy was acquired prior to the payment of the premiums, and one cannot trace into an asset already acquired.", "Those premiums were not made in exchange for anything since they did not increase the value of the policy or policy moneys. The same sum would have been paid out on M's death whether or not those premiums had been paid. If the asset has disappeared then it cannot be traced. It cannot be traced into a product which has been acquired with other-source moneys. The law hitherto has been that you cannot trace into an improvement or into an asset already acquired. Tracing is forward-looking and is all about identifying proprietary rights, not about identifying value in the asset claimed. [Reference was made to In re Diplock; Diplock v Wintle [1948] Ch 465; In re Leslie; Leslie v French (1883) 23 ChD 552; D'Avigdor-Goldsmid v Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20 Page 6 of 45 106 FoskettvMcKeown (HL(E)) [2001] 1 AC Lord Browne-Wilkinson Inland Revenue Comrs [1953] AC 347 and Halifax Building Society v A Thomas [1996] Ch 217.]", "If the purchasers cannot trace into the policy or policy moneys, they are not entitled to the policy moneys on the basis of a resulting or constructive trust. If it is accepted that the 1989 and 1990 premiums did not contribute to the acquisition of the policy or policy moneys, then no resulting trust can have arisen. In any event, the policy had already been settled on the children by that time. A resulting trust cannot vary vested interests.", "Neither is this a case where the institutional constructive trust can arise: the children owed no fiduciary duties and have not acted unconscionably. If the 1989 and 1990 premiums can be traced, the remedy is a lien for the amount of the premiums, not a hitherto unknown type of constructive trust. It is neither against conscience nor inequitable that the children should keep the money since they are innocent of any wrongdoing. They acquired c their property interest before the fraud commenced and prior to the time the money was subtracted from the purchasers. The first premiums were paid before the fraud commenced. Justice is well served by restoring to the purchasers their premiums. Mawrey QC replied. Their Lordships took time for consideration. 18 May 2000.", "LORD BROWNE-WILKINSON My Lords, there are many cases in which the court has to decide which of two innocent parties is to suffer from the activities of a fraudster. This case, unusually, raises the converse question: which of two innocent parties is to benefit from the activities of the fraudster. In my judgment, in the context of this case the two E types of case fall to be decided on exactly the same principles, viz, by determining who enjoys the ownership of the property in which the loss or the unexpected benefit is reflected. On 6 November 1986, Mr Murphy effected a whole-life policy (\"the policy\") with Barclays Life Assurance Co Ltd (\"the insurers\") in the sum of £ i m at an annual premium of £10,220.", "The policy (which was issued on 27 January 1987) provided that on the death of Mr Murphy a specified death benefit became payable, such benefit being the greater of (1) the sum assured (£im) and (2) the aggregate value of units notionally allocated under the terms of the policy to the policy at their bid price on the day of the receipt by the insurers of a written notice of death. The policy stated that \"in consideration of the first premium already paid and of the further premiums payable and subject to the conditions of this policy the company will on the c death of the life assured pay to the policy holder or his successors in title ('the policy holder') the benefits specified\". Although primarily a whole-life policy assuring the sum assured of £ i m , the policy had an additional feature, viz, a notional investment content which served three purposes. First, it determined the surrender value of the policy. Second, it determined the alternative calculation of the death benefit if the value of the notionally allocated units exceeded the sum assured of £im. Third, the investment element was used to pay for the cost of life cover after the payment of the second premium in November 1987.", "By condition 4 of the policy, units were notionally allocated to the policy upon receipt of the second and all subsequent premiums. By condition 6 of the policy, upon Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20 Page 7 of 45 107 [2001 ] 1 AC Foskett v McKeown (HL(E)) Lord Browne-Wilkinson A receipt of each premium resulting in the notional allocation of units under condition 4, the insurers cancelled sufficient units to meet the cost of life cover for the next year. Condition 10 provided for conversion of the policy into a paid-up policy: units would thereafter continue to be cancelled under condition 6 so long as there were units available for that purpose. As soon as there were no units available, no death benefit or surrender value was to be available under the policy. Sir Richard Scott V-C [1998] Ch 265, 275, summarised the position as follows: \"if a premium is not paid, then (provided at least two years' premiums have been paid) the policy is converted into a paid-up policy and units that have been allocated to the policy are applied annually in meeting the cost of life insurance until all the allocated units have been used up.", "Only at that point will the policy lapse.\" Five premiums were paid, in November 1986, 1987, 1988, 1989 and 1990. The 1986 and 1987 premiums were paid by Mr Murphy out of his own resources. The 1989 and 1990 premiums were paid out of moneys misappropriated by Mr Murphy from the plaintiffs. The source of the 1988 premium is disputed: unconditional leave to defend on issues relating to this premium has been granted.", "The policy was directed to be held on trusts. On 15 March 1989 the policy was irrevocably appointed to be held in trust for Mr Murphy absolutely. On 16 March 1989 he settled the policy on trust for his wife and his mother but subject to a power for him to appoint to members of a class which included his wife, his mother and his children but which excluded Mr Murphy himself. By a deed of appointment dated 1 December 1989 E Mr Murphy appointed the policy and all moneys payable thereunder upon trust (in the events which happened) as to one-tenth for Mrs Bridget Murphy and as to nine-tenths for his three children equally. I turn then to consider the source of the moneys which constituted the fourth and fifth premiums. In 1988 Mr Murphy, together with an associate of his, Mr Deasy, acquired control of an English company which itself owned and controlled a Portuguese company. Those two companies between them marketed plots of land forming part of a site in the Algarve in Portugal to be developed and sold by them to purchasers. Each prospective purchaser entered into a contract with one of the companies for the purchase of his plot. The contract required each purchaser to pay the purchase price to Mr Deasy, to be held by him upon the trusts of a trust deed (\"the purchasers trust deed\") under which the purchasers' money was to be held in C a separate bank account until either the plot of land was transferred to him or a period of two years had expired, whichever first happened.", "If after two years the plot had not been transferred to the purchaser the money was to be repaid with interest. Some 220 prospective purchasers entered into transactions to acquire plots on the building estate and paid some £2,645,000 to Mr Deasy to be held by him on the terms of the purchasers trust deed. However, the land in Portugal was never developed. When the time came for the money to be refunded to the purchasers it was found that it had been dissipated and that £20,440 of those funds had been used to pay the fourth and fifth premiums due under the policy. Mr Murphy committed suicide on 9 March 1991. On 6 June 1991 the insurers paid £1,000,580-04 to the two surviving trustees of the policy.", "Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20 Page 8 of 45 108 FoskettvMcKeown (HL(E)) [2001] 1 AC Lord Browne-Wilkinson Mrs Murphy has been paid her one-tenth share. The dispute, for the rest, A lies between Mr Murphy's three children (as beneficiaries under the policy trust) and the purchasers of the plots in Portugal, from whose money £20,440 has been applied in breach of the trusts of the purchasers trust deed in paying the fourth and fifth premiums. The purchasers allege that, at a minimum, 40% of the premiums on the policy have been paid out of their moneys and that having traced their moneys through the policy into the policy moneys, they are entitled to 40% of the policy moneys. On the other side, the children contend that the purchasers are not entitled to any interest at all or at most only to the return of the sum misappropriated to pay the premiums, viz, £20,440 plus interest. The Court of Appeal [1998] Ch 265 by a majority (Sir Richard Scott V-C and Hobhouse LJ; Morritt LJ dissenting) held that the purchasers were entitled to be repaid the amount of the fourth and fifth premiums together with interest but were not entitled to a pro rata C share of the policy proceeds. The purchasers appeal to your Lordships claiming that the policy moneys are held in trust for the children and themselves pro rata according to their respective contributions to the premiums paid out of the purchasers' moneys on the one hand and Mr Murphy personally on the other, i e, they claim that a minimum of 40% (being two out of the five premiums) is held in trust for the purchasers. The children, on the other hand, seek to uphold the decision of the majority of the Court of Appeal and, by cross-appeal, go further so as to claim that the purchasers are entitled to no rights in the policy moneys.", "As to the cross-appeal, I have read in draft the speech of my noble and learned friend, Lord Hope of Craighead. For the reasons which he gives I would dismiss the cross-appeal. As to the appeal, at the conclusion of the hearing I considered that the f majority of the Court of Appeal were correct and would have dismissed the appeal. However, having read the draft speech of Lord Millett I have changed my mind and for the reasons which he gives I would allow the appeal. But, as we are differing from the majority of the Court of Appeal I will say a word or two about the substance of the case and then deal with one minor matter on which I do not agree with my noble and learned friend, Lord Millett. The crucial factor in this case is to appreciate that the purchasers are claiming a proprietary interest in the policy moneys and that such proprietary interest is not dependent on any discretion vested in the court. Nor is the purchasers' claim based on unjust enrichment. It is based on the assertion by the purchasers of their equitable proprietary interest in identified property.", "The first step is to identify the interest of the purchasers: it is their absolute c equitable interest in the moneys originally held by Mr Deasy on the express trusts of the purchasers trust deed. This case does not involve any question of resulting or constructive trusts. The only trusts at issue are the express trusts of the purchasers trust deed. Under those express trusts the purchasers were entitled to equitable interests in the original moneys paid to Mr Deasy by the purchasers. Like any other equitable proprietary interest, those equitable proprietary interests under the purchasers trust deed which originally existed in the moneys paid to Mr Deasy now exist in any other property which, in law, now represents the original trust assets. Those equitable interests under the purchasers trust deed are also enforceable against whoever for the time being holds those assets other than someone who is a bona fide purchaser for Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20 Page 9 of 45 109 [2001] 1 AC Foskettv McKeown (HL(E)) Lord Browne-Wilkinson A value of the legal interest without notice or a person who claims through such a purchaser.", "No question of a bona fide purchaser arises in the present case: the children are mere volunteers under the policy trust. Therefore the critical question is whether the assets now subject to the express trusts of the purchasers trust deed comprise any part of the policy moneys, a question which depends on the rules of tracing. If, as a result of tracing, it can be said that certain of the policy moneys are what now represent part of the assets subject to the trusts of the purchasers trust deed, then as a matter of English property law the purchasers have an absolute interest in such moneys. There is no discretion vested in the court. There is no room for any consideration whether, in the circumstances of this particular case, it is in a moral sense \"equitable\" for the purchasers to be so entitled.", "The rules establishing equitable proprietary interests and their enforceability against certain parties C have been developed over the centuries and are an integral part of the property law of England. It is a fundamental error to think that, because certain property rights are equitable rather than legal, such rights are in some way discretionary. This case does not depend on whether it is fair, just and reasonable to give the purchasers an interest as a result of which the court in its discretion provides a remedy.", "It is a case of hard-nosed property rights. Can then the sums improperly used from the purchaser's moneys be traced into the policy moneys? Tracing is a process whereby assets are identified. I do not now want to enter into the dispute whether the legal and equitable rules of tracing are the same or differ. The question does not arise in this case. The question of tracing which does arise is whether the rules of tracing are those regulating tracing through a mixed fund or those regulating the position when moneys of one person have been innocently expended on E the property of another. In the former case (mixing of funds) it is established law that the mixed fund belongs proportionately to those whose moneys were mixed. In the latter case it is equally clear that money expended on maintaining or improving the property of another normally gives rise, at the most, to a proprietary lien to recover the moneys so expended. In certain cases the rules of tracing in such a case may give rise to no proprietary interest at all if to give such interest would be unfair: see In re Diplock; Diplock v Wintle [1948] Ch 465, 548. Both Sir Richard Scott V-C and Hobhouse LJ considered that the payment of a premium on someone else's policy was more akin to an improvement to land than to the mixing of separate trust moneys in one account.", "Hobhouse LJ was additionally influenced by the fact that the payment of the fourth and fifth premiums out of the purchasers' moneys C conferred no benefit on the children: the policy was theirs and, since the first two premiums had already been paid, the policy would not have lapsed even if the fourth and fifth premiums had not been paid. Cases where the money of one person has been expended on improving or maintaining the physical property of another raise special problems.", "The property left at the end of the day is incapable of being physically divided into its separate constituent assets, i e the land and the money spent on it. Nor can the rules for tracing moneys through a mixed fund apply: the essence of tracing through a mixed fund is the ability to re-divide the mixed fund into its constituent parts pro rata according to the value of the contributions made to it. The question which arises in this case is whether, for tracing purposes, the payments of the fourth and fifth premiums on a Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20 Page 10 of 45 110 FoskettvMcKeown (HL(E)) [2001] 1 AC Lord Browne-Wilkinson policy which, up to that date, had been the sole property of the children for A tracing purposes fall to be treated as analogous to the expenditure of cash on the physical property of another or as analogous to the mixture of moneys in a bank account. If the former analogy is to be preferred, the maximum amount recoverable by the purchasers will be the amount of the fourth and fifth premiums plus interest: if the latter analogy is preferred the children and the other purchasers will share the policy moneys pro rata.", "The speech of my noble and learned friend, Lord Millett, demonstrates why the analogy with moneys mixed in an account is the correct one. Where a trustee in breach of trust mixes money in his own bank account with trust moneys, the moneys in the account belong to the trustee personally and to the beneficiaries under the trust rateably according to the amounts respectively provided. On a proper analysis, there are \"no moneys in the account\" in the sense of physical cash. Immediately before the improper C mixture, the trustee had a chose in action being his right against the bank to demand a payment of the credit balance on his account. Immediately after the mixture, the trustee had the same chose in action (i e the right of action against the bank) but its value reflected in part the amount of the beneficiaries' moneys wrongly paid in. There is no doubt that in such a case of moneys mixed in a bank account the credit balance on the account belongs to the trustee and the beneficiaries rateably according to their respective contributions. So in the present case. Immediately before the payment of the fourth premium, the trust property held in trust for the children was a chose in action, i e the bundle of rights enforceable under the policy against the insurers.", "The trustee, by paying the fourth premium out of the moneys subject to the purchasers trust deed, wrongly mixed the value of the E premium with the value of the policy. Thereafter, the trustee for the children held the same chose in action (i e the policy) but it reflected the value of both contributions. The case, therefore, is wholly analogous to that where moneys are mixed in a bank account. It follows that, in my judgment, both the policy and the policy moneys belong to the children and the trust fund subject to the purchasers trust deed rateably according to their respective contributions to the premiums paid. The contrary view appears to be based primarily on the ground that to give the purchasers a rateable share of the policy moneys is not to reverse an unjust enrichment but to give the purchasers a wholly unwarranted windfall. I do not myself quibble at the description of it being \"a windfall\" on the facts of this case.", "But this windfall is enjoyed because of the rights which the purchasers enjoy under the law of property. A man under whose land oil is C discovered enjoys a very valuable windfall but no one suggests that he, as owner of the property, is not entitled to the windfall which goes with his property right. We are not dealing with a claim in unjust enrichment. Moreover the argument based on windfall can be, and is, much over- stated. It is said that the fourth and fifth premiums paid out of the purchasers' moneys did not increase the value of the policy in any way: the first and second premiums were, by themselves, sufficient under the unusual terms of the policy to pay all the premiums falling due without any assistance from the fourth and fifth premiums: even if the fourth and fifth premiums had not been paid the policy would have been in force at the time of Mr Murphy's death. Therefore, it is asked, what value has been derived Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20 Page 11 of 45 Ill [200111 AC FoskettvMcKeown(HL(E)) Lord Browne-Wilkinson A from the fourth and fifth premiums which can justify giving the purchasers a pro rata share.", "In my judgment this argument does not reflect the true position. It is true that, in the events which have happened, the fourth and fifth premiums were not required to keep the policy on foot until the death of Mr Murphy. But at the times the fourth and fifth premiums were paid (which must be the dates at which the beneficial interests in the policy were established) it was wholly uncertain what the future would bring. What if Mr Murphy had not died when he did? Say he had survived for another five years? The premiums paid in the fourth and fifth years would in those events have been directly responsible for keeping the policy in force until his death since the first and second premiums would long since have been exhausted in keeping the policy on foot.", "In those circumstances, would it be said that the purchasers were entitled to 100% of the policy moneys? In my judgment, the Q beneficial ownership of the policy, and therefore the policy moneys, cannot depend upon how events turn out. The rights of the parties in the policy, one way or another, were fixed when the relevant premiums were paid when the future was unknown. For these reasons and the much fuller reasons given by Lord Millett, I would allow the appeal and declare that the policy moneys were held in trust for the children and the purchasers in proportion to the contributions D which they respectively made to the five premiums paid. There is one small point on which my noble and learned friends, Lord Millett and Lord Hoffmann, disagree, namely, whether the pro rata division should take account of the notional allocation of units to the policy and to the fact that contributions were made at different times, i e when the various premiums were paid. I agree that, for the reasons given by Lord Hoffmann, it is not necessary to complicate the calculation of the pro rata shares by taking account of these factors and would therefore simply divide the policy moneys pro rata according to the contributions made to the payment of the premiums.", "LORD STEYN My Lords, this is a dispute between two groups of innocent parties about the rights to a death benefit of about £im paid by insurers pursuant to a whole life policy. The first group are individuals who p contracted between June 1989 and January 1991 to purchase plots of land in Portugal which were intended to be developed as an estate with villas and a golf and country club. Mr Timothy Murphy was the dominant figure behind the development project. He obtained over £z-6m from the purchasers. With effect from November 1987 he took out a whole life policy at an annual premium of £10,zoo. The policy had an investment content, which served various purposes. It determined the surrender value of the policy.", "It C determined the alternative calculation of the death benefit if the value of notionally allocated units exceeded the sum assured (ie £:rm). The investment element was to be used to pay for the cost of life cover after the payment of the second premium. Mr Murphy used his own money to pay the premiums for 1986 and 1987. The value of the units allocated to the policy after the payment of the 1987 premium was more than enough to pay H for the life element in the next three years. Mr Murphy in fact paid the premium for 1988. It is still unclear where he got the money from. But he undoubtedly paid the premiums for 1989 and 1990 with money stolen from the purchasers. On 9 March 1991 Mr Murphy committed suicide.", "On 6 June 1991 the insurers paid a sum of about £im as a death benefit under the policy. The children are express beneficiaries of the trusts of the policy. Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20 Page 12 of 45 112 FoskettvMcKeown (HL(E)) [2001] 1 AC Lord Steyn The purchasers claimed a proportionate part of the policy moneys. The A issue concerns the respective rights of the purchasers and the children to the policy moneys. By a majority the Court of Appeal [1998] Ch 265 reversed the trial judge's decision in favour of the purchasers and decided that the purchasers are only entitled to recover the money stolen from them and used to pay the 1989 and 1990 premiums together with interest.", "On appeal to the House of Lords the primary case of the purchasers was that they are entitled to share in the policy moneys in the same proportion as the amount of the premiums paid out of the purchasers' moneys bear to the total amount of the premiums paid ie a two-fifths share. I will explain my reasons for concluding that the purchasers have no rights to the policy moneys. There is, however, an anterior point. On the appeal to the House of Lords counsel for the children argued that by resorting to other remedies the purchasers made a binding election which preclude them from advancing their present claim. C In my view there was in truth no inconsistency between the remedies to which the purchasers resorted. The purchasers put forward a proprietary claim. They allege that they are equitable co-owners in the policy moneys: specifically their claim is that they are entitled to 40% and the children to 60% of the policy moneys.", "The purchasers point out that they can trace the stolen money (£20,440) through various bank accounts into payments in respect of the 1989 and 1990 premiums. Given that a total of five premiums were paid the purchasers assert that they are entitled to equitable proprietary rights to 40% of the sum assured. The purchasers argued that the proceeds of the policy were purchased out of a common fund to which the purchasers and the children contributed and that on equitable principles the purchasers are entitled to a proportionate part of the proceeds. Counsel for the purchasers observed in E his printed case that it is not an area of the law where the House is constrained by previous authority. Accordingly, he argued, wider considerations of policy must be taken into account.", "There are four considerations which materially affect my approach to the claim of the purchasers. First the relative moral claims of the purchasers and the children must be considered. The purchasers emphasise that their claim is the result of the deliberate wrongdoing of Mr Murphy. This is a point in favour of the purchasers. Moreover the case for the children is not assisted by the fact that Mr Murphy sought to make provision for his family. The legal question would be the same if the beneficiary under the express trust was a business associate of Mr Murphy.", "On the other hand, it is an important fact that the children were wholly unaware of any wrongdoing by their father. Secondly, it is clear that in the event the premiums paid in 1989 c and 1990 added nothing of value to the policy. The policy was established and the children acquired vested interests (subject to defeasance) before Mr Murphy pursuant to the rights acquired by the children before 1989. The entitlement of the children was not in any way improved by payment of the 1989 and 1990 premiums. Thirdly, the purchasers have no claim in unjust enrichment in a substantive sense against the children because the payment of the 1989 and 1990 premiums conferred no additional benefit on the children. They were not enriched by the payment of those premiums: they merely received their shares of the sum assured in accordance with their pre-existing entitlement. The fourth point is that the children, as wholly innocent parties, can cogently say that, if they had become aware that Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20113 Page 13 of 45 [2001 ] 1 AC Foskett v McKeown (HL(E)) Lord Steyn A Mr Murphy planned to use trust money to pay the fourth and fifth premiums, they would have insisted that he did not so pay those premiums, with the result that they would still have received the same death benefit.", "(The relevance of such a factor is helpfully explained by Professor Hayton, \"Equity's Identification Rules\", Chapter i in Birks, Laundering and Tracing (E995)>PP 11-12. and Charles Mitchell, \"Tracing Trust Funds Into Insurance Proceeds\" [1997] LMCLQ 465,472.) In arguing the merits of the proprietary claim counsel for the purchasers from time to time invoked \"the rules of tracing\". By that expression he was placing reliance on a corpus of supposed rules of law, divided into common law and equitable rules. In truth tracing is a process of identifying assets: it belongs to the realm of evidence.", "It tells us nothing about legal or equitable rights to the assets traced. In a crystalline analysis Professor Birks (\"The C Necessity of a Unitary Law of Tracing\", essay in Making Commercial Law, Essays in Honour of Roy Goode (1997), pp 239-258) explained, at p 257, that there is a unified regime for tracing and that \"it allows tracing to be cleanly separated from the business of asserting rights in or in relation to assets successfully traced\". Applying this reasoning Professor Birks concludes, a t p 258: Q \"that the modern law is equipped with various means of coping with the evidential difficulties which a tracing exercise is bound to encounter.", "The process of identification thus ceases to be either legal or equitable and becomes, as is fitting, genuinely neutral as to the rights exigible in respect of the assets into which the value in question is traced. The tracing exercise once successfully completed, it can then be asked what rights, if any, the plaintiff can, on his particular facts, assert. It is at that point that £ it become relevant to recall that on some facts those rights will be personal, on others proprietary, on some legal, and on others equitable.\" I regard this explanation as correct. It is consistent with orthodox principle. It clarifies the correct approach to so-called tracing claims.", "It explains what tracing is about without providing answers to controversies about legal or equitable rights to assets so traced. F There is no difficulty in tracing the stolen moneys. Moreover, it is self- evident that there must be a right to recover the moneys stolen and used for the payment of the 1989 and 1990 premiums. Equity's method of achieving the necessary result is to impose a lien or charge over the stolen money. The formal assertion to the contrary on behalf of the children, which is the subject of a cross-appeal, is without substance. The question is whether r the purchasers have equitable proprietary rights to the sum assured which was paid in terms of the policy. This brings me back to the distinctive feature of the case, namely that the fourth and fifth premiums did not contribute or add to the sum received by the children.", "Sir Richard Scott V-C observed [1998] Ch 265, 282: \"If a trustee used trust money to improve or maintain his house, the beneficiaries would, in my view, be entitled to a charge on the house to recover their money. But unless it appeared that the improvements had increased the value of the house there would be no basis for a claim to a pro rata share in the house and no reason for the imposition of a constructive trust. There would, in such a case, be no benefit acquired by the use of the trust money for which the trustee would be accountable. 1 AC 200T—5 Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20 Page 14 of 45 114 Foskettv McKeown (HL(E)) [2001] 1 AC Lord Steyn Similar reasoning applies, in my opinion, in the present case . .", ". They did A not, in my opinion, become entitled to a pro rata share in the policy either via a constructive trust route or via a resulting trust route.\" On this point Hobhouse LJ, at p 291E-F, apparently took a similar view. I am in respectful agreement with this reasoning of the majority on this aspect. Sir Richard Scott V-C and Hobhouse LJ further concluded that the misapplied trust funds were not used to acquire the policy, or the death e benefit of £im nor any share in either. On appeal to the House counsel for the purchasers while not formally conceding anything observed that the improvement argument is \"a wholly unrealistic argument\". He argued that the proceeds of the policy were purchased out of a common fund to which both the purchasers and the children had contributed. This was the primary issue on the appeal to the House.", "c The argument of the purchasers is supported by the carefully reasoned dissenting judgment of Morritt LJ He relied on the analogies of the cases where (1) an asset is bought with a mixed fund composed of trust money and the trustees own money, and is then passed to an innocent volunteer, and (2) a trustee mixes money from one trust with that of another, and uses the mixed fund to purchase an asset. Morritt LJ, at pp 302-304, pointed to longstanding authorities to the effect that in such situations beneficiaries Q may be entitled to a pro rata share of the purchased asset. But it is clear that this reasoning of Morritt LJ is critically dependent on the relative closeness of the two analogies. On balance I have been persuaded that the analogies cited by Morritt LJ, and strongly relied on by counsel for the purchasers, are not helpful in the circumstances of the present case.", "There is in principle no difficulty about allowing a proprietary claim in respect of the proceeds of an insurance policy. If in the circumstances of the E present case the stolen moneys had been wholly or partly causative of the production of the death benefit received by the children there would have been no obstacle to admitting such a proprietary claim. But those are not the material facts of the case. I am not influenced by hindsight. The fact is that the rights of the children had crystallised by 1989 before any money was stolen and used to pay the 1989 and 1990 premiums.", "Indeed F Morritt LJ expressly accepts, at p 302F, that \"in the event, the policy moneys would have been the same if the later premiums had not been paid\". Counsel for the purchasers accepted that as a matter of primary fact this was a correct statement. But he argued that there was nevertheless a causal link between the premiums paid with stolen moneys and the death benefit. I cannot accept this argument. It would be artificial to say that all five premiums produced the policy moneys. The purchasers' money did not \"buy\" any part C of the death benefit.", "On the contrary, the stolen moneys were not causally relevant to any benefit received by the children. The 1989 and 1990 premiums did not contribute to a mixed fund in which the purchasers have an equitable interest entitling them to a rateable division. It would be an innovation to create a proprietary remedy in respect of an asset (the death benefit) which had already been acquired at the date of the use of the stolen moneys. Far from assisting the case of the purchasers the impact of wider considerations of policy in truth tend to undermine the case of the purchasers. One needs to consider the implication of a holding in favour of the purchasers in other cases.", "Suppose Mr Murphy had surrendered the policy before going bankrupt. Assume Mr Murphy had partly used his own Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20 Page 15 of 45 115 [2001] 1 AC FoskettvMcKeown (HL(E)) Lord Steyn A money and partly used money stolen from the purchasers to pay premiums. The hypothesis is that the stolen money did not in any way increase the surrender value of the policy. Justice does not support the creation to the prejudice of trade creditors of a new proprietary right in the surrender value of the policy: compare Roy Goode, \"Proprietary Restitutionary Claims\", essay in Restitution: Past, Present and Future (ed Cornish), pp 63 et seq. For these reasons I differ from the analysis of Morritt LJ and reject the argument of the purchasers. There is one final matter of significance. In a critical final passage in his judgment Morritt LJ observed, atp 303: \"In my view . . .", "common justice requires that the purchasers should have the right to participate in that which has followed from the use of their money together with the other moneys, taking their share out of that c joint and common stock.\" The purchasers do not assert that they suffered any loss. They cannot assert that the children would be unjustly enriched if the purchasers' claim fails.", "In these circumstances my perception of the justice of the case is different from that of Morritt LJ If justice demanded the recognition of such a proprietary right to the policy moneys, I would have been prepared to D embark on such a development. Given that the moneys stolen from the purchasers did not contribute or add to what the children received, in accordance with their rights established before the theft by Mr Murphy, the proprietary claim of the purchasers is not in my view underpinned by any considerations of fairness or justice. And, if this view is correct, there is no justification for creating by analogy with cases on equitable interests in mixed funds a new proprietary right to the policy moneys in the special circumstances of the present case. My Lords, for these reasons, as well as the reasons given by Lord Hope of Craighead, I would dismiss both the appeal by the purchasers (the appellants) and the cross-appeal by the children (the cross-appellants). LORD HOFFMANN My Lords, I have had the advantage of reading in F draft the speech of my noble and learned friend, Lord Millett.", "I agree with him that this is a straightforward case of mixed substitution (what the Roman lawyers, if they had had an economy which required tracing through bank accounts, would have called confusio). I agree with his conclusion that Mr Murphy's children, claiming through him, and the trust beneficiaries whose money he used, are entitled to share in the proceeds of the insurance policy in proportion to the value which they respectively contributed to the C policy. This is not based upon unjust enrichment except in the most trivial sense of that expression. It is, as my noble and learned friend says, a vindication of proprietary right.", "The only point on which I differ from my noble and learned friend is the calculation of the proportions. The policy was a complicated chose in action which contained formulae for the calculation of different amounts which would become payable on different contingencies. One such formula (which, in the event, was irrelevant to the calculation of the amount payable) was by reference to notional units in a notional fund of notional investments. My noble and learned friend considers that these units should be treated as if they were real and that they formed separate property which some part of each premium had been used to buy. In my opinion, that Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20 Page 16 of 45 116 FoskettvMcKeown (HL(E)) [2001] 1 AC Lord Hoffmann overcomplicates the matter. The units were merely part of the formula for A calculating what would be payable.", "They cannot be regarded as separate property or even some kind of internal currency. It would not in my view have mattered whether the formula for calculating the amount payable had been by reference to the movements of the heavenly bodies. The policy was a single chose in action under which some amount would fall due for payment in consideration of the premiums which had been paid. Immediately before Mr Murphy's suicide, it was owned by the children and the beneficiaries in proportion to the value of their contributions to that consideration. The fact that the contingency which made the money payable was the death of Mr Murphy cannot affect the proprietary interests in the chose in action and therefore in its proceeds: see D'Avigdor-Goldsmid v Inland Revenue Comrs [1953] AC 347. In the case of contributions which are made at different times to the Q consideration for a single item of property such as the chose in action in this case, I can see an argument for saying that the value of earlier payments is greater than that of later payments.", "A pound today is worth more than the promise of a pound in a year's time. So there may be a case for applying some discount according to the date of payment. But no such argument was advanced in this case and I do not think that your Lordships should impose it D upon the parties. I therefore agree with Morritt LJ that the fund should be held simply in proportion to the contributions which the parties made to the five premiums. LORD HOPE OF CRAIGHEAD My Lords, this is a competition between two groups of persons who claim to be entitled to participate in the same fund.", "The fund consists of the death benefit paid by the insurers under a policy of life assurance to the trustees of the policy following the death of the life assured, Timothy Murphy, by suicide. The amount of the death benefit was f i m , to which a small sum was added as interest from the date of the death until payment. At the date of death the policy was held in trust for the children of the life assured and for his mother, who is also now deceased. The mother's share of the sum paid under the policy was distributed to her before her death. The trustees have made certain payments from the balance p of that sum for the maintenance of the children. The remainder has been retained and invested by them, and it is that sum which forms the amount now in dispute.", "The third, fourth and fifth respondents, who are the children of the life assured, claim to be entitled to payment of the whole of that amount as the remaining beneficiaries under the trusts of the policy. There would have been no answer to the claim by the children had it not been for the fact that the last two of five annual premiums (and possibly a C portion of the previous year's premium—the facts have yet to be established by evidence) were paid by the life assured out of money which, dishonestly and in breach of trust, he had misappropriated.", "The facts have been set out fully by my noble and learned friend, Lord Browne-Wilkinson, and I do not need to repeat them here. It is sufficient to say that it is not disputed that these premiums were paid from money which had been deposited with the life assured and his business associate Mr Deasy by the purchasers of plots of land in Portugal. This money was to be held in trust on their behalf upon the trusts of a trust deed pending the carrying out by a company controlled by the life assured of a scheme for the development of the land. In the event the company did not carry out the development and the purchasers' money was Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20 Page 17 of 45 117 [2001] 1 AC Foskettv McKeown (HL(E)) Lord Hope of Craighead A misappropriated from the bank accounts into which it had been deposited.", "The purchasers' claim is to a share of the proceeds of the life insurance policy, on the ground that the rights under the policy had been paid for in part with money which was taken from them without their agreement and in breach of trust to pay the premiums. In the Court of Appeal [1998] Ch 265 it was held by a majority (Sir Richard Scott V-C and Hobhouse LJ; Motrin LJ dissenting) that the purchasers were not entitled to participate in the proceeds of the policy except to the extent of such of their money, with interest thereon, as could be traced into the premiums. Morritt LJ would have granted a declaration to the effect that the proceeds were to be shared between the children and the purchasers.", "He held that they should be distributed between them in the same proportions as the life assured's own money and that which he took C from the purchasers bore to the total amount paid to the insurers by way of premium during the lifetime of the policy. The purchasers have appealed against that judgment on the broad ground that common justice requires that the children should share the proceeds with them commensurately with the premiums which were paid by the life assured from his own money and the purchasers' money respectively. The children have cross-appealed on two grounds. The first is that the purchasers, having elected to take the benefit of other remedies, are precluded from pursuing any claim against the proceeds of the policy. The second is that the purchasers cannot trace their money into any part of the proceeds, because the right to payment of the sum of £im paid by the insurers as death benefit had already been acquired before the purchasers' money was used to pay the premiums. I shall deal first with the children's cross-appeal.", "Mr Kaye for the children £ based his argument on election upon the purchasers' receipt of compensation for the breach of trust in other proceedings brought on their behalf. The appellant obtained a declaration in 1994 that the shares in the company and the land in Portugal which was to be developed by it were held in trust for the purchasers. He also obtained for them £600,000 under a compromise in 1997 with Lloyds Bank, with whom the purchasers' money had been deposited and from whose bank accounts it had been misappropriated to pay the 1990 premium. Mr Kaye submitted that, as the purchasers had elected to recover their plots of land in specie and had received monetary compensation in satisfaction of their claims for the misappropriation of the deposit moneys, they were barred by that election from pursuing any claim against the proceeds of the policy. He maintained that the purchasers, by pursuing these remedies, had obtained all that they C had bargained for when they paid their money to the developers. They no longer had any proprietary base from which they could trace, and they had already been fully compensated as they were now in a position to complete the development.", "As the entire original purpose of the deposits had been fulfilled, they had lost nothing. They were in no need of any further relief by way of any proprietary or equitable remedy. In my opinion the claims which were made against the developers and the bank and the claim now made against the proceeds of the policy are two wholly unrelated remedies. The purchasers were not put to any election when they were seeking to recover from the developers and the bank what they lost when, in breach of trust, their money was misappropriated. Had the claim which they are now making been one by way of damages, the relief Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20 Page 18 of 45 118 FoskettvMcKeown(HL(E)) [2001] 1 AC Lord Hope of Craighead which they have already obtained in the other proceedings would have been A taken into account in this action in the assessment of their loss. That would not have been because they were to be held to any election, but by applying the rule that a party who is entitled to damages cannot recover twice over for the same loss. But in this action they are claiming a share of the proceeds of the policy on the ground that the money which was taken from them can be traced into the proceeds. The amount, if any, to which they are entitled as a result of the tracing exercise does not require any adjustment on account of the compensation obtained by pursuing other remedies.", "This is because the remedy which they are now seeking to pursue is a proprietary one, not an award of damages. The purpose of the remedy is to enable them to vindicate their claim to their own money. The compensation which they have obtained from elsewhere may have a bearing on their claim to a proportionate share of the proceeds. But it cannot deprive them of their C proprietary interest in their own money. For these reasons I would reject this argument. Mr Kaye then said in support of the cross-appeal that, if his argument on election were to be rejected, the purchasers were nevertheless unable to trace into any part of the policy moneys. He submitted that the majority of the Court of Appeal were wrong to hold that the purchasers were entitled to repayment of such amounts of their money as could be shown to have been expended by the life assured on the payment of the premiums. This was because the purchasers could not show that there was any proprietary or causal link between their money and the asset which they claimed, which was the death benefit paid under the policy. A contingent right to the payment of that sum was acquired at the outset when the first premium was paid by the life assured out of his own money.", "The purchasers' money did E not add anything of value to what had already been acquired on payment of that premium. The sum payable on the death remained the same, and the rights under the policy were not made more valuable in any other respect by the payment of the additional premiums. I do not think that there is any substance in this argument. One possible answer to it is that given by Sir Richard Scott V-C [1998] Ch 265, 277C-D, who said that the statements of principle by Fry LJ in In re Leslie; Leslie v French (1883) 23 ChD 552, 560 supported the right of the purchasers to trace their money into the proceeds of the policy. On his analysis the life assured, as a trustee of the policy, was prima facie entitled to an indemnity out of the trust property in respect of the payments made by him to keep the policy on foot, and the purchasers can by subrogation pursue that remedy.", "I am, with great respect, not wholly convinced by this line of reasoning. It c seems to me that the circumstances of this case are too far removed from those which Fry LJ had in mind when he said a lien might be created upon the moneys secured by a policy belonging to someone else by the payment of the premiums. He referred, in his description of the circumstances, to the right of trustees to an indemnity out of the trust property for money which they had expended in its preservation, and to the subrogation to this right of a person who at their request had advanced money for its preservation to the trustees. In this case the life assured was a trustee of the policy, but he was also the person who had effected the policy and had set up the trust. When he paid the premiums, he did so not as a trustee—not because the person who was primarily responsible for their payment had failed to pay and it was Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20 Page 19 of 45 119 [2001 ] 1 AC Foskett v McKeown (HL(E)) Lord Hope of Craighead A necessary to take steps to preserve the trust—but because he was the person primarily responsible for their payment.", "The trust was one which he himself had created. He was making a further contribution towards the property which, according to his own declaration, was to be held in trust for the beneficiaries. In that situation it is hard to see on what ground the trustees of the policy could be said to be under any obligation to refund to him the amount of his expenditure. The general rule is that a man who makes a payment to maintain or improve another person's property, intentionally and not in response to any request that he should do so, is not entitled to any lien or charge on that property for such payment: Falcke v Scottish Imperial Insurance Co (1886) 34 ChD 234, 241, per Cotton LJ A further difficulty about the subrogation argument is that it cannot be said that it was at the purchasers' request that the life assured used their money to pay the C premiums.", "On the other hand I consider that there is no difficulty, on the facts of this case, as to the purchasers' right on other grounds to reimbursement of the money which was taken from them by the life assured. Mr Kaye's argument was that the purchasers could not trace their money into the proceeds of the policy because no causative link could be established between the proceeds which had been paid out by way of death benefit and the relevant premiums. In my opinion the answer to this point is to be found in the terms of the policy.", "It states that \"in consideration of the payment of the first premium already made and of the further premiums payable and subject to the conditions of this policy\" the insurer was, on the death of the life assured, to pay to the policy holder the benefits specified. The purchasers' claim that they have a right to a proportionate share of the proceeds raises more £ complex issues, for the resolution of which it will be necessary to look more closely at the terms of the policy. But their right to the reimbursement of their own money seems to me to depend simply upon it being possible to follow that money from the accounts where it was deposited into the policy when the premiums were paid, and from the policy into the hands of the trustees when the insurers paid to them the sum of £im by way of death benefit.", "On the agreed facts it is plain that the purchasers can trace their money through the premiums which were paid with it into the policy. When the insurers paid out the agreed sum by way of death benefit, the sum which they paid to the trustees of the policy was paid in consideration of the receipt by them of all the premiums. As Smith, The Law of Tracing (1997), p 235, has explained, the policy proceeds are the product of a mixed substitution where C the value being traced into a policy of life assurance has provided a part of the premiums. In my opinion that is enough to entitle the purchasers, if they cannot obtain more, at least to obtain reimbursement of their own money with interest from the proceeds of the policy. There can be no doubt as to where the equities lie on the question of their right to recover from the proceeds the equivalent in value of that which they lost when their money was misappropriated.", "I would dismiss the cross-appeal. There remains however the principal issue in this appeal, which is whether the purchasers can go further and establish that they are entitled to a much larger sum representing a proportionate share of the proceeds calculated by reference to the amount of their money which was used to pay the premiums. The purchasers' argument was presented by Mr Mawrey on Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20 Page 20 of 45 120 FoskettvMcKeown(HL(E)) [2001] 1 AC Lord Hope of Craighead two grounds. The first was that they were entitled as a result of the tracing A exercise to a proprietary right of part ownership in the proceeds which, on the application of common justice, enabled them to claim a share of them proportionate to the contribution which their money had made to the total sum paid to the insurers by way of premium. The second, which was developed briefly in the alternative and, I thought, very much by way of a subsidiary argument, was that the law of unjust enrichment would provide them with a remedy. It seems to me that two quite separate questions arise in regard to the first of these two arguments.", "The first question is simply one of evidence. This is whether, if the purchasers can show that their money was used to pay any of the premiums, they can trace their money into the proceeds obtained by the trustees from the insurers in virtue of their rights under the policy. The second question is more difficult, and I think that it is the crucial question in c this case. As I understand the question, it is whether it is equitable, in all the circumstances, that the purchasers should recover from the trustees a share of the proceeds calculated by reference to the contribution which their money made to the total amount paid to the insurers by way of premium.", "I believe that I have already said almost all that needs to be said on the first question. It is agreed that the purchasers' money was used to pay the last two premiums. Whether their money was also used to pay a part of the 1988 premium, and if so, how much of it was so used will require to be resolved by evidence. But at least to the extent of the last two premiums the purchasers can trace their money into the policy. The terms of the policy provide a sufficient basis for tracing their money one step further. They show that this money can be followed into the proceeds received by the trustees of the policy by way of death benefit. It is clearly stated in the policy document f that the benefits specified are to be made in consideration of the payment to the insurer of all the premiums. This is enough to show that the tracing exercise does not end with the receipt of the premiums by the insurers.", "They can say that they gave value for the premiums when they paid over to the trustees the sum to which they were entitled by way of death benefit. Nothing is left with the insurers, because they have given value for all that they received. That value now resides in the proceeds received by the trustees. But the result of the tracing exercise cannot solve the remaining question, which relates to the extent of the purchasers' entitlement. It is the fact that this is a case of mixed substitution which creates the difficulty. If the purchasers' money had been used to pay all the premiums there would have been no mixture of value with that contributed by others.", "Their claim would C have been to the whole of the proceeds of the policy. As it is, there are competing claims on the same fund. In the absence of any other basis for division in principle or on authority—and no other basis has been suggested—it must be divided between the competitors in such proportions as can be shown to be equitable. In my opinion the answer to the question as to what is equitable does not depend solely on the terms of the policy. The equities affecting each party must be examined. They must be balanced against each other. The conduct of the parties so far as this may be relevant, and the consequences to them of allowing and rejecting the purchasers' claim, must be analysed and weighed up. It may be helpful to refer to what would be done in other situations by way of analogy. But it seems to me that Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20 Page 21 of 45 121 [2001 ] 1 AC Foskett v McKeown (HL(E)) Lord Hope of Craighead A in the end a judgment requires to be made as to what is fair, just and reasonable.", "My noble and learned friend, Lord Hoffmann, states that this is a straightforward case of mixed substitution, which the Roman lawyers (if they had an economy which required tracing through bank accounts) would have called confusio. I confess that I have great difficulty in following this observation, as the relevant texts seem to me to indicate that they would have found the case far from straightforward and that it is quite uncertain what they would have made of it. The discussion by the Roman jurists of the problems of ownership that arise where things which originally belonged to different people have been inextricably mixed with or attached to each other took place in an entirely different context. They were concerned exclusively with the ownership of C corporeal property: with liquids like wine or solid things like heaps of corn, to which without any clear distinction in their use of terminology they applied what have come to be recognised as the doctrines of confusio and commixtio (Institutes of Justinian, II.I.27 and 28), and with the application of the principle accessorium principale sequitur to corporeal property according to the type of property involved—accession by moveables to land, by moveables to moveables, by land to land and accession by the produce of land or the offspring of animals.", "I would have understood the application of the Roman law to our case if we had been dealing with the ownership of a collection of coins of gold or silver which had been melted down into liquids and transformed into another corporeal object such as a bracelet or a statue. That would indeed have been a problem familiar to Gaius and Justinian, which they would have recognised as being capable of being solved by the £ application of the doctrine of confusio. But here we are dealing with a problem about the rights of ownership in incorporeal property. The taking of possession, usually by delivery, was the means by which a person acquired ownership of corporeal property. The doctrines of commixtio and confusio were resorted to in order to resolve problems created by the mixing together, or attaching to each other, of corporeal things owned by two or more people. Sandeman & Sons v Tyzack and Branfoot Steamship Co Ltd [1913] AC 680, in which Lord Moulton described the doctrines of English law which are applicable to cases where goods belonging to different owners have become mixed so as to be incapable of either being distinguished or separated, was also a case about what the Roman jurists would have classified as corporeal moveables—bales of jute in the hold of a cargo vessel which were unmarked and could not be C identified as belonging to any particular consignment.", "But incorporeal property, such as the rights acquired under an insurance policy upon payment of the premiums, is incapable either of possession or of delivery in the sense of these expressions as understood in Roman law. Problems relating to rights arising out of payments made by the insurers under the policy would have belonged in Roman law to the law of obligations, and it is likely that the remedy would have been found in the application of an appropriate condictio.", "This is an entirely different chapter from that relating to the possession and ownership of things which are corporeal. I think that, even if they had felt able to apply the doctrine of confusio to our case, it is far from clear that the Roman jurists would have reached a unanimous view as to the result. It is worth noting that even in the well Case 1:20-mc-00199-JGK-OTW 122 Document 66-1 Filed 09/17/20 Page 22 of 45 FoskettvMcKeown(HUE)) [2001] 1 AC Lord Hope of Craighead known case of the picture painted by Apelles on someone else's board or A panel differing views were expressed: see Stair, The Institutions of the Law of Scotland (1693), vol 1, II.", "1.39. Paulus thought that the picture followed the ownership of the board as an accessory thereto (Digest, 6.1.23.3), while Caius regarded the board as accessory to the picture (Digest, 41.1.9.2). Justinian's view, following Caius, was that the board was accessory to the picture, as the picture was more precious (Institutes of Justinian, II.I.34). Stair expresses some surprise at this conclusion, because Justinian had previously declared that ownership of precious stones attached to cloth, although of greater value than cloth, was carried with the cloth.", "These differences of view are typical of the disputes between the Roman jurists which are to be found in the Digest. In these circumstances I see no escape from the approach which I propose to follow, which is to examine the evidence about the rights which, in the C events which happened, were acquired under the policy. I turn first to the terms of the policy. In return for the payment of each premium the insured acquired a chose in action against the insurers which comprised the bundle of rights in terms of the policy which resulted from the payment of that premium. What those rights comprised from time to time must depend on the facts. If the life assured had not committed suicide at the age of 45, the policy might have remained on foot for many years.", "It was a contract of life assurance in which the sum assured on death was £ i m . There was a unit-linked investment content in each premium. The value of the units allocated by the insurers on receipt of each premium might in time have exceeded that sum. That would have increased the total amount payable on the death. But in the event the policy was not kept up for long enough for this to occur. The unit-linked investment content did not in fact E make any contribution to the amount which was paid to the trustees of the policy. The effect of the payment of the first premium was to confer a right on the trustees of the policy as against the insurers to the payment of £im on the death of the life assured. The effect of the payment of the four remaining premiums up to the date of the life assured's suicide was to reduce the amount which the insured had to provide to meet this liability out by reinsurance or of its own funds.", "But they had no effect on the right of the trustees to the payment of the sum assured under the terms of the policy, as they did not increase the amount payable on the death. I do not think that the purchasers can demonstrate on these facts that they have a proprietary right to a proportionate share of the proceeds. They cannot show that their money contributed to any extent to, or increased the value of, the amount paid to the trustees of the policy. A substantially C greater sum was paid out by the insurers as death benefit than the total of the sums which they received by way of premium. A profit was made on the investment. But the terms of the policy show that the amount which produced this profit had been fixed from the outset when the first premium was paid.", "It was attributable to the rights obtained by the life assured when he paid the first premium from his own money. No part of that sum was attributable to value of the money taken from the purchasers to pay the additional premiums. The next question is whether the equities affecting each party can assist the purchasers. The dispute is between two groups of persons, both of whom are innocent of the breach of trust which led to the purchasers' money Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20123Page 23 of 45 [2001] 1 AC FoskettvMcKeown (HL(E)) Lord Hope of Craighead A being misappropriated. On the one hand there are the purchasers, who made a relatively modest but wholly involuntary contribution to the upkeep of the policy. On the other there are the children, who are the beneficiaries of the trusts of the policy but who made no contribution at all to its upkeep.", "Mr Mawrey submitted that a solution to precisely the same problem had been found in Edinburgh Corpn v Lord Advocate (1879) 4 AppCas 823 g where competing claims to a mixed fund had been resolved by the application of equitable principles. Central to his argument was the proposition that the asset of which the purchasers had been the part- purchasers was the policy itself, not the amount of the death benefit. They were to be seen as the involuntary purchasers of a share in the entire bundle of contractual rights under the policy. The proceeds of the policy were the product of those contractual rights. The terms of the policy made it clear c that all benefits which were payable under it were to be made in consideration of the payment to the insurers of all the premiums.", "It followed that, as it was the product of the premiums towards the payment of which they had contributed, the amount of the death benefit was a mixed fund in which they were entitled to participate. He relied also, by way of analogy, on the observations of Ungoed-Thomas J in In re Tilley's Will Trusts [1967] D Ch 1179, 11.89 a s t o t n e rights of the beneficiary to participate in any profit which resulted where a trustee mixed trust money with his own money and then used it to purchase other property: see also Scott v Scott (1963) 109 CLR649. I am unable to agree with this approach to the facts of this case. In Edinburgh Corpn v Lord Advocate 4 AppCas 823 the property in question was clearly a mixed fund, all the assets of which had contributed to the increase in the value of the funds held by the trustees. The facts of the case and the prolonged litigation which resulted from it are somewhat complicated: for a full account, see Magistrates of Edinburgh v McLaren (1881) 8 R 140. The essential point was that funds contributed by a benefactor of a hospital for particular trust purposes had for more than 170 years been held, administered and applied as part of the general funds of the F hospital.", "The Court of Session had been directed by an earlier decision of the House of Lords in the same case to ascertain how much of the funds which had been managed in this way belonged to the hospital. In terms of its interlocutor of 2.0 July 1875 the Court of Session held that the benefactor's funds had been immixed with the funds of the hospital from an early period down to that date, and that they must therefore be held to have participated Q proportionately with the hospital's funds and property in the increase of value of the aggregate funds and property of the hospital during that period. Steps were then taken to ascertain and fix the amount of the whole of the aggregate funds and what the amount of the benefactor's funds was in proportion to the present value of the aggregate.", "When this had been done the case was appealed again to the House of Lords on the question, among others, whether it was right to treat the two funds as having been inextricably mixed up. The decision of the Court of Session was upheld on this point, for reasons which I do not need to examine in detail as they have no direct bearing on the issues raised in this appeal. As Lord Blackburn put it, at p 835, the Court of Session solved the difficulty Case 1:20-mc-00199-JGK-OTW 124 Document 66-1 Filed 09/17/20 Page 24 of 45 FoskettvMcKeown(HL(E)) [2001] 1 AC Lord Hope of Craighead \"in a way perfectly consistent with justice and good sense, and not A inconsistent with any technical rule of law, and no other solution has been suggested which would be so satisfactory.\"", "But the main relevance of the case for the purposes of the purchasers' argument lies in the following observation, which he made at p 833: \"No other way was suggested at the bar in which the fund, if the two fi were inextricably mixed up, could be apportioned except that of taking the proportion which the two funds bore to each other, and dividing the mixed fund in that proportion; and I cannot myself see any other way.\" I would have had no difficulty in reaching the same conclusion had I been persuaded that, on the facts, this was truly a case of two funds which had been inextricably mixed up, each of which had contributed to the profit in c the hands of the trustees. But it seems to me that it is on this point that the analogy with that case, and with the example of a lottery ticket purchased with money from two different sources which was also mentioned in argument, breaks down. It is no doubt true to say that the policy consisted of a bundle of rights against the insurers in consideration of the payment of all the premiums. But these rights have now been realised.", "We can see what has been paid out and why it was paid. We know that we are dealing with an amount paid to the trustees of the policy as death benefit in consequence of the life assured's suicide. In terms of the policy the right to payment of that amount of death benefit was purchased when the life assured paid the first premium. The insurers' right to decline payment in the event of the death of the life assured by suicide was lost after 12 months, when he kept the policy on foot by the payment of the second premium. Nothing that happened f after that date affected in any way the right of the trustees of the policy to be paid the sum of £im when the life assured took his own life. The policy was kept on foot by the payment of the further premiums over the next three years. These premiums reduced the cost to the insurers of covering their liability under the policy in the event of the insured's death. But they made no difference to the rights which were exercisable against the insurers by the trustees of the policy or to the rights of the children as beneficiaries against the trustees.", "The situation here is quite different from that where the disputed sum is the product of an investment which was made with funds which have already been immixed. In the case of the lottery ticket which is purchased by A partly from his own funds and partly from funds of which B was the involuntary contributor, the funds are mixed together at the time when the c ticket is purchased. It is easy to see that any prize won by that lottery ticket must be treated as the product of that mixed fund. In the case of the funds administered as an aggregate fund by the hospital, the funds from each of the two sources had been mixed together from an early date before the various transactions were entered into which increased the amount of the aggregate. It was consistent with justice and common sense to regard the whole of the increase as attributable in proportionate shares to the money taken from the two sources. But in this case the right to obtain payment of the whole amount of the death benefit of £im had already been purchased from the insurers before they received payment of the premiums which were funded by the money misappropriated from the purchasers.", "Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20125Page 25 of 45 [2001] 1 AC Foskettv McKeown (HL(E)) Lord Hope of Craighead A Of the other analogies which were suggested in the course of the argument to illustrate the extent of the equitable remedy, the closest to the circumstances of this case seemed to me to be those relating to the expenditure by a trustee of money held on trust on the improvement of his own property such as his dwelling house. This was the analogy discussed by Sir Richard Scott V-C and by Hobhouse LJ [1998] Ch 265, 282 and 289- „ 290. There is no doubt that an equitable right will be available to the beneficiaries to have back the money which was misappropriated for his own benefit by the trustee. But that right does not extend to giving them an equitable right to a pro rata share in the value of the house.", "If the value of the property is increased by the improvements which were paid for in whole or in part out of the money which the trustee misappropriated, he must account to the trust for the value of the improvements. This is by the C application of the principle that a trustee must not be allowed to profit from his own breach of trust. But unless it can be demonstrated that he has obtained a profit as a result of the expenditure, his liability is to pay back the money which he has misapplied. In the present case the purchasers are, in my opinion, unable to demonstrate that the value of the entitlement of the trustees of the policy to D death benefit was increased to any extent at all as a result of the use of their money to keep the policy on foot, as the entitlement had already been fixed before their money was misappropriated. In these circumstances the equities lie with the children and not with the purchasers. I do not need to attach any weight to the fact that the purchasers have already been compensated by the successful pursuit of other remedies. Even without that fact I would hold that it is fair, just and reasonable that the children should be allowed to receive the whole of the sum now in the hands of the trustees after the purchasers have been reimbursed, with interest, for the amount of their money which was used to pay the premiums.", "There remains the question which Mr Mawrey raised in his alternative argument, which is whether the purchasers have a remedy in unjust enrichment. Normally, where this question is raised, there are only two F parties—the plaintiff is the person at whose expense the defendant is said to have been enriched and the defendant is the person who is said to have been enriched at the expense of the plaintiff. This case is an example of third party enrichment. The enrichment of the children is said to have resulted from a transaction with the insurers by the life assured, who had enriched himself by subtracting money from the purchasers. It is clear that the life Q assured was unjustly enriched when, in breach of trust and without their knowledge, he took the money from the purchasers. He transferred his enrichment to the insurers when he used that money to pay premiums.", "But the insurers can say in answer to a claim of unjust enrichment against them that they changed their position when, in ignorance of the breach of trust, they paid the sum assured to the trustees of the policy. Can the purchasers take their remedy against the children, who are entitled as beneficiaries under the trust of the policy to payment of the sum now in the hands of the trustees? And, if they can, does their remedy in unjust enrichment extend to a proportionate share of the proceeds of the policy, which far exceeds the amount of their involuntary expenditure when the life assured took from them the money which he used to make payment of the premiums? Case 1:20-mc-00199-JGK-OTW 126 Document 66-1 Filed 09/17/20 Page 26 of 45 FoskettvMcKeown (HL(E)) [2001] 1 AC Lord Hope of Craighead These questions were not fully explored in the course of the argument, but A I think that it is not necessary to do more than to make a few basic points in order to show why I consider that the purchasers cannot obtain what they want by invoking this remedy.", "If it could be shown that the children had consciously participated in the life assured's wrongdoing and that, having done so, they had profited from his subtraction from the purchasers of the money used to pay the premiums, the answer would be that the law will not allow them to retain that benefit. A remedy would lie against them in unjust enrichment for the amount unjustly subtracted from the purchasers and for any profit attributable to that amount. But in this case it is common ground that the children are innocent of any wrongdoing. They are innocent third parties to the unjust transactions between the life assured and the purchasers. In my opinion the law of unjust enrichment should not make them worse off as a result of those transactions than they would have been if Q those transactions had not happened. The aim of the law is to correct an enrichment which is unjust, but the remedy can only be taken against a defendant who has been enriched. The undisputed facts of this case show that the children were no better off following payment of the premiums which were paid with the money subtracted from the purchasers than they would have been if those premiums had not been paid. This is because, for the reasons explained by D Hobhouse LJ [1998] Ch z6$, 286D-F, the insurers would have been entitled to have recourse to the premiums already paid to keep up the policy and because the premiums paid from the purchasers' money did not, in the events which happened, affect the amount of the sum payable in the event of the insured's death.", "The argument for a claim against them in unjust enrichment fails on causation. The children were not enriched by the payment of these premiums. On the contrary, they would be worse off if they were to be required to share the proceeds of the policy with the purchasers. It is as well that the purchasers' remedy in respect of the premiums and interest does not depend upon unjust enrichment, otherwise they would have had to have been denied a remedy in respect of that part of their claim also. In these circumstances I cannot see any grounds for holding that the F purchasers are entitled to participate in the amount of the death benefit except to the extent necessary for them to recover the premiums, with interest, which were paid from their money which had been misappropriated.", "So I would dismiss both the appeal and the cross-appeal. LORD MILLETT My Lords, this is a textbook example of tracing through mixed substitutions. At the beginning of the story the plaintiffs were C beneficially entitled under an express trust to a sum standing in the name of Mr Murphy in a bank account. From there the money moved into and out of various bank accounts where in breach of trust it was inextricably mixed by Mr Murphy with his own money. After each transaction was completed the plaintiffs' money formed an indistinguishable part of the balance standing to Mr Murphy's credit in his bank account. The amount of that balance represented a debt due from the bank to Mr Murphy, that is to say a chose in action. At the penultimate stage the plaintiffs' money was represented by an indistinguishable part of a different chose in action, viz, the debt prospectively and contingently due from an insurance company to its policyholders, being the trustees of a settlement made by Mr Murphy for the Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20 127Page 27 of 45 [2001 ] 1 AC Foskett v McKeown (HL(E)) Lord Millett A benefit of his children.", "At the present and final stage it forms an indistinguishable part of the balance standing to the credit of the respondent trustees in their bank account. Tracing and following The process of ascertaining what happened to the plaintiffs' money e involves both tracing and following. These are both exercises in locating assets which are or may be taken to represent an asset belonging to the plaintiffs and to which they assert ownership. The processes of following and tracing are, however, distinct. Following is the process of following the same asset as it moves from hand to hand. Tracing is the process of identifying a new asset as the substitute for the old. Where one asset is exchanged for another, a claimant can elect whether to follow the original C asset into the hands of the new owner or to trace its value into the new asset in the hands of the same owner. In practice his choice is often dictated by the circumstances. In the present case the plaintiffs do not seek to follow the money any further once it reached the bank or insurance company, since its identity was lost in the hands of the recipient (which in any case obtained an unassailable title as a bona fide purchaser for value without notice of the plaintiffs' beneficial interest).", "Instead the plaintiffs have chosen at each stage to trace the money into its proceeds, viz, the debt presently due from the bank to the account holder or the debt prospectively and contingently due from the insurance company to the policy holders. Having completed this exercise, the plaintiffs claim a continuing beneficial interest in the insurance money. Since this represents the product of Mr Murphy's own money as well as theirs, which Mr Murphy mingled E indistinguishably in a single chose in action, they claim a beneficial interest in a proportionate part of the money only. The transmission of a claimant's property rights from one asset to its traceable proceeds is part of our law of property, not of the law of unjust enrichment. There is no \"unjust factor\" to justify restitution (unless \"want of title\" be one, which makes the point).", "The claimant succeeds if at all by virtue of his own title, not to reverse unjust enrichment. Property rights are determined by fixed rules and settled principles. They are not discretionary. They do not depend upon ideas of what is \"fair, just and reasonable\". Such concepts, which in reality mask decisions of legal policy, have no place in the law of property. A beneficiary of a trust is entitled to a continuing beneficial interest not merely in the trust property but in its traceable proceeds also, and his interest binds every one who takes the property or its traceable proceeds except a Q bona fide purchaser for value without notice.", "In the present case the plaintiffs' beneficial interest plainly bound Mr Murphy, a trustee who wrongfully mixed the trust money with his own and whose every dealing with the money (including the payment of the premiums) was in breach of trust. It similarly binds his successors, the trustees of the children's settlement, who claim no beneficial interest of their own, and Mr Murphy's children, who are volunteers. They gave no value for what they received and H derive their interest from Mr Murphy by way of gift. Tracing We speak of money at the bank, and of money passing into and out of a bank account. But of course the account holder has no money at the bank. Case 1:20-mc-00199-JGK-OTW 128 Document 66-1 Filed 09/17/20 Page 28 of 45 FoskettvMcKeown (HL(E)) [2001] 1 AC Lord Millett Money paid into a bank account belongs legally and beneficially to the bank A and not to the account holder.", "The bank gives value for it, and it is accordingly not usually possible to make the money itself the subject of an adverse claim. Instead a claimant normally sues the account holder rather than the bank and lays claim to the proceeds of the money in his hands. These consist of the debt or part of the debt due to him from the bank. We speak of tracing money into and out of the account, but there is no money in the account. There is merely a single debt of an amount equal to the final balance standing to the credit of the account holder. No money passes from paying bank to receiving bank or through the clearing system (where the money flows may be in the opposite direction). There is simply a series of debits and credits which are causally and transactionally linked. We also speak of tracing one asset into another, but this too is inaccurate.", "The original asset still exists in the hands of the new owner, or it may have C become untraceable. The claimant claims the new asset because it was acquired in whole or in part with the original asset. What he traces, therefore, is not the physical asset itself but the value inherent in it. Tracing is thus neither a claim nor a remedy. It is merely the process by which a claimant demonstrates what has happened to his property, identifies its proceeds and the persons who have handled or received them, and justifies his claim that the proceeds can properly be regarded as representing his property. Tracing is also distinct from claiming. It identifies the traceable proceeds of the claimant's property.", "It enables the claimant to substitute the traceable proceeds for the original asset as the subject matter of his claim. But it does not affect or establish his claim. That will depend on a number of factors including the nature of his interest in the original asset. He will normally be able to maintain the same claim to the substituted E asset as he could have maintained to the original asset. If he held only a security interest in the original asset, he cannot claim more than a security interest in its proceeds. But his claim may also be exposed to potential defences as a result of intervening transactions. Even if the plaintiffs could demonstrate what the bank had done with their money, for example, and could thus identify its traceable proceeds in the hands of the bank, any claim by them to assert ownership of those proceeds would be defeated by the bona fide purchaser defence.", "The successful completion of a tracing exercise may be preliminary to a personal claim (as in El Ajou v Dollar Land Holdings pic [1993] 3 All ER 717) or a proprietary one, to the enforcement of a legal right (as in Trustees of the Property of F C Jones & Sons v Jones [1997] Ch 159) or an equitable one. Given its nature, there is nothing inherently legal or equitable about the c tracing exercise. There is thus no sense in maintaining different rules for tracing at law and in equity. One set of tracing rules is enough. The existence of two has never formed part of the law in the United States: see Scott on Trusts, 4th ed (1989), section 515, at pp 605-609. There is certainly no logical justification for allowing any distinction between them to produce capricious results in cases of mixed substitutions by insisting on the existence of a fiduciary relationship as a precondition for applying equity's tracing rules.", "The existence of such a relationship may be relevant to the nature of the claim which the plaintiff can maintain, whether personal or proprietary, but that is a different matter. I agree with the passages which my noble and learned friend, Lord Steyn, has cited from Professor Birks's Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20129Page 29 of 45 [2001 ] 1 AC Foskett v McKeown (HL(E)) Lord Millett A essay \"The Necessity of a Unitary Law of Tracing\", and with Dr Lionel Smith's exposition in his comprehensive monograph The Law of Tracing (1997): see particularly pp 120-130, 277-279 and 342-347.", "This is not, however, the occasion to explore these matters further, for the present is a straightforward case of a trustee who wrongfully misappropriated trust money, mixed it with his own, and used it to pay for an asset for the benefit of his children. Even on the traditional approach, the equitable tracing rules are available to the plaintiffs. There are only two complicating factors. The first is that the wrongdoer used their money to pay premiums on an equity-linked policy of life assurance on his own life. The nature of the policy should make no difference in principle, though it may complicate the accounting.", "The second is that he had previously settled the policy for the benefit of his children. This should also make no C difference. The claimant's rights cannot depend on whether the wrongdoer gave the policy to his children during his lifetime or left the proceeds to them by his will; or if during his lifetime whether he did so before or after he had recourse to the claimant's money to pay the premiums. The order of events does not affect the fact that the children are not contributors but volunteers who have received the gift of an asset paid for in part with misappropriated trust moneys. D The cause of action As I have already pointed out, the plaintiffs seek to vindicate their property rights, not to reverse unjust enrichment.", "The correct classification of the plaintiffs' cause of action may appear to be academic, but it has important consequences. The two causes of action have different E requirements and may attract different defences. A plaintiff who brings an action in unjust enrichment must show that the defendant has been enriched at the plaintiff's expense, for he cannot have been unjustly enriched if he has not been enriched at all. But the plaintiff is not concerned to show that the defendant is in receipt of property belonging beneficially to the plaintiff or its traceable proceeds. The fact that the beneficial ownership of the property has passed to the defendant provides no defence; indeed, it is usually the very fact which founds the claim. Conversely, a plaintiff who brings an action like the present must show that the defendant is in receipt of property which belongs beneficially to him or its traceable proceeds, but he need not show that the defendant has been enriched by its receipt.", "He may, for example, have paid full value for the property, but he is still required to disgorge it if he received it with notice of Q the plaintiff's interest. Furthermore, a claim in unjust enrichment is subject to a change of position defence, which usually operates by reducing or extinguishing the element of enrichment. An action like the present is subject to the bona fide purchaser for value defence, which operates to clear the defendant's title. The tracing rules u The insurance policy in the present case is a very sophisticated financial instrument. Tracing into the rights conferred by such an instrument raises a number of important issues. It is therefore desirable to set out the basic principles before turning to deal with the particular problems to which policies of life assurance give rise. Case 1:20-mc-00199-JGK-OTW 130 Document 66-1 Filed 09/17/20 Page 30 of 45 FoskettvMcKeown(HL(E)) [2001] 1 AC Lord Millett The simplest case is where a trustee wrongfully misappropriates trust A property and uses it exclusively to acquire other property for his own benefit. In such a case the beneficiary is entitled at his option either to assert his beneficial ownership of the proceeds or to bring a personal claim against the trustee for breach of trust and enforce an equitable lien or charge on the proceeds to secure restoration of the trust fund.", "He will normally exercise the option in the way most advantageous to himself. If the traceable proceeds have increased in value and are worth more than the original asset, he will assert his beneficial ownership and obtain the profit for himself. There is nothing unfair in this. The trustee cannot be permitted to keep any profit resulting from his misappropriation for himself, and his donees cannot obtain a better title than their donor. If the traceable proceeds are worth less than the original asset, it does not usually matter how the beneficiary exercises his option. He will take the whole of the proceeds on either basis, Q This is why it is not possible to identify the basis on which the claim succeeded in some of the cases. Both remedies are proprietary and depend on successfully tracing the trust property into its proceeds. A beneficiary's claim against a trustee for breach of trust is a personal claim. It does not entitle him to priority over the trustee's general creditors unless he can trace the trust property into its D product and establish a proprietary interest in the proceeds. If the beneficiary is unable to trace the trust property into its proceeds, he still has a personal claim against the trustee, but his claim will be unsecured. The beneficiary's proprietary claims to the trust property or its traceable proceeds can be maintained against the wrongdoer and anyone who derives title from him except a bona fide purchaser for value without notice of the breach of trust. The same rules apply even where there have been numerous E successive transactions, so long as the tracing exercise is successful and no bona fide purchaser for value without notice has intervened.", "A more complicated case is where there is a mixed substitution. This occurs where the trust money represents only part of the cost of acquiring the new asset. As James Barr Ames pointed out in \"Following Misappropriated Property into its Product\" (1906) 19 HarvLRev 511, consistency requires that, if a trustee buys property partly with his own F money and partly with trust money, the beneficiary should have the option of taking a proportionate part of the new property or a lien upon it, as may be most for his advantage. In principle it should not matter (and it has never previously been suggested that it does) whether the trustee mixes the trust money with his own and buys the new asset with the mixed fund or makes separate payments of the purchase price (whether simultaneously or c sequentially) out of the different funds.", "In every case the value formerly inherent in the trust property has become located within the value inherent in the new asset. The rule, and its rationale, were stated by Samuel Williston in \"The Right to Follow Trust Property when Confused with other Property\" (1888) z HarvLRev 28, 29: \"If the trust fund is traceable as having furnished in part the money with which a certain investment was made, and the proportion it formed of the whole money so invested is known or ascertainable, the cestui que trust should be allowed to regard the acts of the trustee as done for his benefit, in the same way that he would be allowed to if all the money so Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20131Page 31 of 45 [2001 ] 1 AC Foskett v McKeown (HL(E)) Lord Millett A invested had been his; that is, he should be entitled in equity to an undivided share of the property which the trust money contributed to purchase—such a proportion of the whole as the trust money bore to the whole money invested. The reason in the one case as in the other is that the trustee cannot be allowed to make a profit from the use of the trust money, and if the property which he wrongfully purchased were held subject only to a lien for the amount invested, any appreciation in value would go to the trustee.\"", "If this correctly states the underlying basis of the rule (as I believe it does), then it is impossible to distinguish between the case where mixing precedes the investment and the case where it arises on and in consequence of the investment. It is also impossible to distinguish between the case where the investment is retained by the trustee and the case where it is given away to a gratuitous donee. The donee cannot obtain a better title than his donor, and a donor who is a trustee cannot be allowed to profit from his trust. In In re Hallett's Estate; Knatchbull v Hallett (1880) 13 ChD 696, 709 Sir George Jessel MR acknowledged that where an asset was acquired exclusively with trust money, the beneficiary could either assert equitable ownership of the asset or enforce a lien or charge over it to recover the trust Q money. But he appeared to suggest that in the case of a mixed substitution the beneficiary is confined to a lien.", "Any authority that this dictum might otherwise have is weakened by the fact that Sir George Jessel MR gave no reason for the existence of any such rule, and none is readily apparent. The dictum was plainly obiter, for the fund was deficient and the plaintiff was only claiming a lien. It has usually been cited only to be explained away: see for example In re Tilley's Will Trusts [1967] Ch 1179, 1186, per Ungoed- £ Thomas J; Burrows, The Law of Restitution (1993), p 368. It was rejected by the High Court of Australia in Scott v Scott (1963) 109 CLR 649: see the passage at pp 661-662 cited by Morritt LJ below [1998] Ch 265, 300-30:1:. It has not been adopted in the United States: see the American Law Institute, Restatement of the Law, Trusts, 2d (1959) at section 202(h). In Frimeau v Granfield (1911) 184 F 480, 482 Learned Hand J expressed himself in p forthright terms: \"On principle there can be no excuse for such a rule.\"", "In my view the time has come to state unequivocally that English law has no such rule. It conflicts with the rule that a trustee must not benefit from his trust. I agree with Burrows that the beneficiary's right to elect to have a proportionate share of a mixed substitution necessarily follows once one accepts, as English law does, (i) that a claimant can trace in equity into a mixed fund and (ii) that he can trace unmixed money into its proceeds and C assert ownership of the proceeds. Accordingly, I would state the basic rule as follows. Where a trustee wrongfully uses trust money to provide part of the cost of acquiring an asset, the beneficiary is entitled at his option either to claim a proportionate share of the asset or to enforce a lien upon it to secure his personal claim against the trustee for the amount of the misapplied money. It does not matter whether the trustee mixed the trust money with his own in a single fund before using it to acquire the asset, or made separate payments (whether simultaneously or sequentially) out of the differently owned funds to acquire a single asset. Two observations are necessary at this point. First, there is a mixed substitution (with the results already described) whenever the claimant's Case 1:20-mc-00199-JGK-OTW 132 Document 66-1 Filed 09/17/20 Page 32 of 45 FoskettvMcKeown(HL(E)) [2001] 1 AC Lord Millett property has contributed in part only towards the acquisition of the new A asset. It is not necessary for the claimant to show in addition that his property has contributed to any increase in the value of the new asset.", "This is because, as I have already pointed out, this branch of the law is concerned with vindicating rights of property and not with reversing unjust enrichment. Secondly, the beneficiary's right to claim a lien is available only against a wrongdoer and those deriving title under him otherwise than for value. It is not available against competing contributors who are innocent of any wrongdoing. The tracing rules are not the result of any presumption or principle peculiar to equity. They correspond to the common law rules for following into physical mixtures (though the consequences may not be identical). Common to both is the principle that the interests of the wrongdoer who was responsible for the mixing and those who derive title under him otherwise than for value are subordinated to those of innocent C contributors.", "As against the wrongdoer and his successors, the beneficiary is entitled to locate his contribution in any part of the mixture and to subordinate their claims to share in the mixture until his own contribution has been satisfied. This has the effect of giving the beneficiary a lien for his contribution if the mixture is deficient. Innocent contributors, however, must be treated equally inter se. Where the beneficiary's claim is in competition with the claims of other innocent contributors, there is no basis upon which any of the claims can be subordinated to any of the others. Where the fund is deficient, the beneficiary is not entitled to enforce a lien for his contributions; all must share rateably in the fund.", "The primary rule in regard to a mixed fund, therefore, is that gains and losses are borne by the contributors rateably. The beneficiary's right to elect E instead to enforce a lien to obtain repayment is an exception to the primary rule, exercisable where the fund is deficient and the claim is made against the wrongdoer and those claiming through him. It is not necessary to consider whether there are any circumstances in which the beneficiary is confined to a lien in cases where the fund is more than sufficient to repay the contributions of all parties. It is sufficient to say that he is not so confined in a case like the present. It is not enough that those defending the claim are innocent of any wrongdoing if they are not themselves contributors but, like the trustees and Mr Murphy's children in the present case, are volunteers who derive title under the wrongdoer otherwise than for value. On ordinary principles such persons are in no better position than the wrongdoer, and are liable to suffer the same subordination of their interests to those of the claimant as the wrongdoer would have been. They certainly cannot do better than the C claimant by confining him to a lien and keeping any profit for themselves.", "Similar principles apply to following into physical mixtures: see Lupton v White (:i:8o8) 15 Ves 432; and Sandeman & Sons v Tyzack and Branfoot Steamship Co Ltd [1913] AC 680, 695 where Lord Moulton said: \"If the mixing has arisen from the fault of 'B,' 'A' can claim the goods.\" There are relatively few cases which deal with the position of the innocent recipient from the wrongdoer, but Jones v De Marchant (1916) 28 DLR 561 may be cited as an example. A husband wrongfully used 18 beaver skins belonging to his wife and used them, together with four skins of his own, to have a fur coat made up which he then gave to his mistress.", "Unsurprisingly the wife was held entitled to recover the coat. The mistress knew nothing of the true Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20133Page 33 of 45 [2001 ] 1 AC Foskett v McKeown (HL(E)) Lord Millett A ownership of the skins, but her innocence was held to be immaterial. She was a gratuitous donee and could stand in no better position than the husband. The coat was a new asset manufactured from the skins and not merely the product of intermingling them. The problem could not be solved by a sale of the coat in order to reduce the disputed property to a divisible fund, since (as we shall see) the realisation of an asset does not affect its fi ownership. It would hardly have been appropriate to require the two ladies to share the coat between them. Accordingly it was an all or nothing case in which the ownership of the coat must be assigned to one or other of the parties.", "The determinative factor was that the mixing was the act of the wrongdoer through whom the mistress acquired the coat otherwise than for value. The rule in equity is to the same effect, as Sir William Page Wood V-C C observed in Frith v Cartland(i86$) z H & M 417, 420: \"if a man mixes trust funds with his own, the whole will be treated as the trust property, except so far as he may be able to distinguish what is his own\". This does not, in my opinion, exclude a pro rata division where this is appropriate, as in the case of money and other fungibles like grain, oil or wine. But it is to be observed that a pro rata division is the best that the wrongdoer and his donees can D hope for. If a pro rata division is excluded, the beneficiary takes the whole; there is no question of confining him to a lien.", "Jones v De Marchant 28 DLR 561 is a useful illustration of the principles shared by the common law and equity alike that an innocent recipient who receives misappropriated property by way of gift obtains no better title than his donor, and that if a proportionate sharing is inappropriate the wrongdoer and those who derive title under him take nothing. Insurance policies In the case of an ordinary whole life policy the insurance company undertakes to pay a stated sum on the death of the assured in return for fixed annual premiums payable throughout his life. Such a policy is an entire contract, not a contract for a year with a right of renewal. It is not a series of F single premium policies for one year term assurance. It is not like an indemnity policy where each premium buys cover for a year after which the policyholder must renew or the cover expires.", "The fact that the policy will lapse if the premiums are not paid makes no difference. The amounts of the annual premiums and of the sum assured are fixed in advance at the outset and assume the payment of annual premiums throughout the term of the C policy. The relationship between them is based on the life expectancy of the assured and the rates of interest available on long term government securities at the inception of the policy. In the present case the benefits specified in the policy are expressed to be payable \"in consideration of the payment of the first premium already made and of the further premiums payable\". The premiums are stated to be \"£10,220 payable at annual intervals from 6 November 1985 throughout the lifetime of the life assured\".", "It is beyond argument that the death benefit of £im. paid on Mr Murphy's death was paid in consideration for all the premiums which had been paid before that date, including those paid with the plaintiffs' money, and not just some of them. Part of that sum, therefore, represented the traceable proceeds of the plaintiffs' money. Case 1:20-mc-00199-JGK-OTW 134 Document 66-1 Filed 09/17/20 Page 34 of 45 FoskettvMcKeown(HL(E)) [2001] 1 AC Lord Millett It is, however, of critical importance in the present case to appreciate that A the plaintiffs do not trace the premiums directly into the insurance money. They trace them first into the policy and thence into the proceeds of the policy.", "It is essential not to elide the two steps. In this context, of course, the word \"policy\" does not mean the contract of insurance. You do not trace the payment of a premium into the insurance contract any more than you trace a payment into a bank account into the banking contract. The word \"policy\" is here used to describe the bundle of rights to which the policyholder is entitled in return for the premiums. These rights, which may be very complex, together constitute a chose in action, viz, the right to payment of a debt payable on a future event and contingent upon the continued payment of further premiums until the happening of the event. That chose in action represents the traceable proceeds of the premiums; its current value fluctuates from time to time. When the policy matures, the C insurance money represents the traceable proceeds of the policy and hence indirectly of the premiums. It follows that, if a claimant can show that premiums were paid with his money, he can claim a proportionate share of the policy.", "His interest arises by reason of and immediately upon the payment of the premiums, and the extent of his share is ascertainable at once. He does not have to wait until the policy matures in order to claim his property. His share in the policy and its proceeds may increase or decrease as further premiums are paid; but it is not affected by the realisation of the policy. His share remains the same whether the policy is sold or surrendered or held until maturity; these are merely different methods of realising the policy. They may affect the amount of the proceeds received on realisation but they cannot affect the extent of his share in the proceeds. In principle the plaintiffs are entitled to the f insurance money which was paid on Mr Murphy's death in the same shares and proportions as they were entitled in the policy immediately before his death. Since the manner in which an asset is realised does not affect its ownership, and since it cannot matter whether the claimant discovers what has happened before or after it is realised, the question of ownership can be answered by ascertaining the shares in which it is owned immediately before it is realised.", "Where A misappropriates B's money and uses it to buy a winning ticket in the lottery, B is entitled to the winnings. Since A is a wrongdoer, it is irrelevant that he could have used his own money if in fact he used B's. This may seem to give B an undeserved windfall, but the result is not unjust. Had B discovered the fraud before the draw, he could have decided whether to keep the ticket or demand his money back.", "He alone has C the right to decide whether to gamble with his own money. If A keeps him in ignorance until after the draw, he suffers the consequence. He cannot deprive B of his right to choose what to do with his own money; but he can give him an informed choice. The application of these principles ought not to depend on the nature of the chose in action. They should apply to a policy of life assurance as they apply to a bank account or a lottery ticket.", "It has not been suggested in argument that they do not apply to a policy of life assurance. This question has not been discussed in the English authorities, but it has been considered in the United States. In a Note (1925) 35 YLJ 2.20-227 Professor Palmer doubted the claimant's right to share in the proceeds of a life policy, and Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20 135Page 35 of 45 [2001] 1 AC FoskettvMcKeown(HL(E)) Lord Milieu A suggested that he should be confined to a lien for his contributions. Professor Palmer accepted, as the majority of the Court of Appeal in the present case did not, that the claimant can trace from the premiums into the policy and that the proceeds of the policy are the product of all the premiums.", "His doubts were not based on any technical considerations but on questions of social policy. They have not been shared by the American courts. These have generally allowed the claimant a share in the proceeds proportionate to his contributions even though the share in the proceeds is greater than the amount of his money used in paying the premiums: see for example Shaler v Trowbridge (1877) 28 NJEq 595; Holmes v Gilman (1893) 138 NY 369; Vorlander v Keyes (192.4) 1 Fzd 67; Truelsch v Northwestern Mutual Life Insurance Co. (192.5) 202 NW 352; Baxter House v Rosen (1967) 278 NY2d 442; Lohman v General American Life Insurance Co C (1973) 478 F2d 719. This accords with Ames's and Williston's opinions in the articles to which I have referred. The question is discussed at length in Scott on Trusts, 4th ed, pp 574-584, section 508.4. Professor Scott concludes that there is no substance in the doubts expressed by Palmer.", "He points out that the strongest argument in favour of limiting the beneficiary's claim to a lien is that otherwise he obtains a windfall. But in cases where the wrongdoer has misappropriated the claimant's money and used it to acquire other forms of property which have greatly increased in value the courts have consistently refused to limit the claimant to an equitable lien. In any case, the windfall argument is suspect. As Professor Scott points out, a life policy is an aleatory contract. Whether or not the sum assured exceeds the premiums is a matter of chance. Viewed from the perspective of the insurer, the contract is a commercial one; so the E chances are weighted against the assured. But the outcome in any individual case is unpredictable at the time the premiums are paid. The unspoken assumption in the argument that a life policy should be treated differently from other choses in action seems to be that, by dying earlier than expected, the assured provides a contribution of indeterminate but presumably substantial value. But the assumption is false. A life policy is not an indemnity policy, in which the rights against the insurer are acquired by virtue of the payment of the premiums and the diminution of the value of an asset.", "In the case of a life policy the sum assured is paid in return for the premiums and nothing else. The death of the assured is merely the occasion on which the insurance money is payable. The ownership of the policy does not depend on whether this occurs sooner or later, or on whether the bargain proves to be a good one. It cannot be made to await the event. C The windfall argument has little to commend it in the present case. The plaintiffs were kept in ignorance of the fact that premiums had been paid with their money until after Mr Murphy's death. Had they discovered what had happened before Mr Murphy died, they would have intervened. They might or might not have elected to take an interest in the policy rather than enforce a lien for the return of the premiums paid with their money, but they would certainly have wanted immediate payment. This would have entailed the surrender of the policy.", "At the date of his death Mr Murphy was only 45 and a non-smoker. He had a life expectancy of many years, and neither he nor the trustees had the means to keep up the premiums. The plaintiffs would hardly have been prepared to wait for years to recover their money, paying the premiums in the meantime. It is true that, under the terms of the Case 1:20-mc-00199-JGK-OTW 136 Document 66-1 Filed 09/17/20 Page 36 of 45 FoskettvMcKeown(HL(E)) [2001] 1 AC Lord Millett policy, life cover could if necessary be maintained for a few years more at the A expense of the investment element of the policy (which also provided its surrender value). But it is in the highest degree unlikely that the plaintiffs would have been willing to gamble on the remote possibility of Mr Murphy's dying before the policy's surrender value was exhausted. If he did not they would recover nothing.", "They would obviously have chosen to enforce their lien to recover the premiums or have sought a declaration that the trustees held the policy for Mr Murphy's children and themselves as tenants in common in the appropriate shares. In either case the trustees would have had no alternative but to surrender the policy. In practice the trustees were able to obtain the death benefit by maintaining the policy until Mr Murphy's death only because the plaintiffs were kept in ignorance of the fact that premiums had been paid with their money and so were unable to intervene.", "C The reasoning of the Court of Appeal The majority of the Court of Appeal (Sir Richard Scott V-C and Hobhouse LJ) held that the plaintiffs could trace their money into the premiums but not into the policy, and were accordingly not entitled to a proportionate share in the proceeds. They did so, however, for different and, in my view, inconsistent reasons which cannot both be correct and D which only coincidentally led to the same result in the present case. Sir Richard Scott V-C considered that Mr Murphy's children acquired vested interests in the policy at its inception. They had a vested interest (subject to defeasance) in the death benefit at the outset and before any of the plaintiffs' money was used to pay the premiums. The use of the plaintiffs' money gave the plaintiffs a lien on the proceeds of the policy for the return of the premiums paid with their money, but could not have the effect of E divesting the children of their existing interest. The children owned the policy; the plaintiffs' money was merely used to maintain it.", "The position was analogous to that where trust money was used to maintain or improve property of a third party. Sir Richard Scott V-C treated the policy as an ordinary policy of life assurance. It is not clear whether he thought that the children obtained a F vested interest in the policy because Mr Murphy took the policy out or because he paid the first premium, but I cannot accept either proposition. Mr Murphy was the original contracting party, but he obtained nothing of value until he paid the first premium. The chose in action represented by the policy is the product of the premiums, not of the contract. The trustee took out the policy in all the recorded cases.", "In some of them he paid all the premiums with trust money. In such cases the beneficiary was held to be C entitled to the whole of the proceeds of the policy. In other cases the trustee paid some of the premiums with his own money and some with trust money. In those cases the parties were held entitled to the proceeds of the policy rateably in proportion to their contributions. It has never been suggested that the beneficiary is confined to his lien for repayment of the premiums because the policy was taken out by the trustee. The ownership of the policy does not depend on the identity of the party who took out the policy. It depends on the identity of the party or parties whose money was used to pay the premiums. So Sir Richard Scott V-C's analysis can only be maintained if it is based on the fact that Mr Murphy paid the first few premiums out of his own money Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20 137Page 37 of 45 [2001 ] 1 AC Foskett v McKeown (HL(E)) Lord Millett A before he began to make use of the trust money. Professor Scott records only one case in which it has been held that in such a case the claimant is confined to a lien on the ground that the later premiums were not made in acquiring the interest under the policy but merely in preserving or improving it: see Thum v Wolstenbolme (1900) 61 P 537.", "The case is expressly disapproved in Scott on Trusts, pp 616-617, where it is said that the decision cannot be supported, and that the claimant should be entitled to a proportionate share of the proceeds, regardless of the question whether some of the premiums were paid wholly with the claimant's money and others wholly with the wrongdoer's money and regardless of the order of the payments, or whether the premiums were paid out of a mingled fund containing the money of both. In my opinion there is no reason to differentiate between the first premium or premiums and later premiums. Such a distinction is not based C on any principle. Why should the policy belong to the party who paid the first premium, without which there would have been no policy, rather than to the party who paid the last premium, without which it would normally have lapsed? Moreover, any such distinction would lead to the most capricious results. If only four annual premiums are paid, why should it matter whether A paid the first two premiums and B the second two, or B paid the first two and A the second two, or they each paid half of each of the four premiums? Why should the children obtain the whole of the sum assured if Mr Murphy used his own money before he began to use the plaintiffs' money, and only a return of the premiums if Mr Murphy happened to use the plaintiffs' money first?", "Why should the proceeds of the policy be attributed to the first premium when the policy itself is expressed to be in consideration of all the premiums? There is no analogy with the case £ where trust money is used to maintain or improve property of a third party. The nearest analogy is with an instalment purchase. Hobhouse LJ adopted a different approach. He concentrated on the detailed terms of the policy, and in particular on the fact that in the event the payment of the fourth and fifth premiums with the plaintiffs' money made no difference to the amount of the death benefit. Once the third premium had been paid, there was sufficient surrender value in the policy, built up by the use of Mr Murphy's own money, to keep the policy on foot for the next few years, and as it happened Mr Murphy's death occurred during those few years. But this was adventitious and unpredictable at the time the premiums were paid. The argument is based on causation and as I have explained is a category mistake derived from the law of unjust enrichment. It is an example of the same fallacy that gives rise to the idea that the proceeds of an C ordinary life policy belong to the party who paid the last premium without which the policy would have lapsed. But the question is one of attribution not causation.", "The question is not whether the same death benefit would have been payable if the last premium or last few premiums had not been paid. It is whether the death benefit is attributable to all the premiums or only to some of them. The answer is that death benefit is attributable to all of them because it represents the proceeds of realising the policy, and the policy in turn represents the product of all the premiums. In any case, Hobhouse LJ's analysis of the terms of the policy does not go far enough.", "It is not correct that the last two premiums contributed nothing to the sum payable on Mr Murphy's death but merely reduced the cost to the insurers of providing it. Life cover was provided in return for a series of Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20 Page 38 of 45 138 FoskettvMcKeown(HL(E)) [2001] 1 AC Lord Millett internal premiums paid for by the cancellation of units previously allocated A to the policy. Units were allocated to the policy in return for the annual premiums. Prior to their cancellation the cancelled units formed part of a mixed fund of units which was the product of all the premiums paid by Mr Murphy, including those paid with the plaintiffs' money. On ordinary principles, the plaintiffs can trace the last two premiums into and out of the mixed fund and into the internal premiums used to provide the death benefit. It is true that the last two premiums were not needed to provide the death benefit in the sense that in the events which happened the same amount would have been payable even if those premiums had not been paid.", "In other words, with the benefit of hindsight it can be seen that Mr Murphy made a bad investment when he paid the last two premiums. It is, therefore, superficially attractive to say that the plaintiffs' money contributed nothing of value. But the argument proves too much, for if the plaintiffs cannot trace C their money into the proceeds of the policy, they should have no proprietary remedy at all, not even a lien for the return of their money. But the fact is that Mr Murphy, who could not foresee the future, did choose to pay the last two premiums, and to pay them with the plaintiffs' money; and they were applied by the insurer towards the payment of the internal premiums needed to fund the death benefit. It should not avail his donees that he need not have paid the premiums, and that if he had not then (in the events which happened) the insurers would have provided the same death benefit and funded it differently. In the case of an ordinary life policy which lapses if the premiums are not paid, Sir Richard Scott V-C's approach gives the death benefit to the party whose money was used to pay the first premium, and Hobhouse LJ's approach gives it to the party whose money was used to pay the last E premium.", "In the case of a policy like the present, Hobhouse LJ's approach also produces unacceptable and capricious results. The claimant must wait to see whether the life assured lives long enough to exhaust the amount of the policy's surrender value as at the date immediately before the claimant's money was first used. If the life assured dies the day before it would have been exhausted, the claimant is confined to his lien to recover the premiums; if he dies the day after, then the claimant's premiums were needed to maintain the life cover. In the latter case he takes at least a proportionate share of the proceeds or, if the argument is pressed to its logical conclusion, the whole of the proceeds subject to a lien in favour of the trustees of the children's settlement.", "This simply cannot be right. Hobhouse LJ's approach is also open to objection on purely practical grounds. It must, I think, be unworkable if there is an eccentric pattern of c payment; or if there is a fall in the value of the units at a critical moment. Like Sir Richard Scott V-C's approach, it prompts the question: why should the order of payments matter? It is true that the premiums paid with the plaintiff's money did not in the event increase the amount payable on Mr Murphy's death, but they increased the surrender value of the policy and postponed the date at which it would lapse if no further premiums were paid. Why should it be necessary to identify the premium the payment of which (in the events which happened) prevented the policy from lapsing?", "Above all, this approach makes it impossible for the ownership of the policy to be determined until the policy matures or is realised. This too cannot be right. Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20 Page 39 of 45 139 [2001] 1 AC FoskettvMcKeown (HL(E)) Lord Milieu A The trustees argued that such considerations are beside the point. It is not necessary, they submitted, to consider what the plaintiffs' rights would have been if the policy had been surrendered, or if Mr Murphy had lived longer. It is sufficient to take account of what actually happened. I do not agree. A principled approach must yield a coherent solution in all eventualities. The ownership of the policy must be ascertainable at every moment from inception to maturity; it cannot be made to await events.", "In my view the only way to achieve this is to hold firm to the principle that the manner in which an asset is converted into money does not affect its ownership. The parties' respective rights to the proceeds of the policy depend on their rights to the policy immediately before it was realised on Mr Murphy's death, and this depends on the shares in which they contributed to the premiums and nothing else. They do not depend on the date at which or the manner in C which the chose in action was realised. Of course, Mr Murphy's early death greatly increased the value of the policy and made the bargain a good one. But the idea that the parties' entitlements to the policy and its proceeds are altered by the death of the life assured is contrary to principle and to the decision of your Lordships' House in D'Avigdor-Goldsmid v Inland Revenue Comrs [1953] AC 347.", "That case establishes that no fresh beneficial interest in a policy of life assurance accrues or arises on the death of the life assured. The sum assured belongs to the person or persons who were beneficial owners of the policy immediately before the death. In the course of argument it was submitted that if the children, who were innocent of any wrongdoing themselves, had been aware that their father was using stolen funds to pay the premiums, they could have insisted that the premiums should not be paid, and in the events which happened would still £ have received the same death benefit. But the fact is that Mr Murphy concealed his wrongdoing from both parties. The proper response is to treat them both alike, that is to say rateably. It is morally offensive as well as contrary to principle to subordinate the claims of the victims of a fraud to those of the objects of the fraudster's bounty on the ground that he concealed his wrongdoing from both of them.", "The submission is not (as has been suggested) supported by Professor David Hayton's article \"Equity's Identification Rules\" in Laundering and Tracing (1995), edited by Peter Birks, at pp 11-12.. Professor Hayton is dealing with the very different case of the party who decides to purchase an asset and has the means to pay for it, but who happens to use trust money which he has received innocently, not knowing it to belong to a third party and believing himself to be entitled to it. In such a case his decision to use the C trust money rather than his own is independent of the breach of trust; it is a matter of pure chance. This is a problem about tracing, not claiming, and has nothing to do with mixtures, as Professor Hayton's article itself makes clear. It is a difficult problem on the solution to which academic writers are not agreed. But it does not arise in the present case. It was Mr Murphy's decision to use the plaintiffs' money to pay the later premiums. The children are merely passive recipients of an asset acquired in part by the use of misappropriated trust money. They are innocent of any personal wrongdoing, but they are not contributors.", "They are volunteers who derive their interest from the wrongdoer otherwise than for value and are in no better position than he would have been if he had retained the policy for the benefit of his estate. It is not, with respect to those who think otherwise, a Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20 Page 40 of 45 140 FoskettvMcKeown (HL(E)) [2001] 1 AC Lord Millett case where there are competing claimants to a fund who are both innocent A victims of a fraud and where the equities are equal. But if it were such a case, the parties would share rateably, which is all that the plaintiffs claim.", "I should now deal with the finding of all the members of the Court of Appeal that the plaintiffs were entitled to enforce a lien on the proceeds of the policy to secure repayment of the premiums paid with their money. This is inconsistent with the decision of the majority that the plaintiffs were not entitled to trace the premiums into the policy. An equitable lien is a proprietary interest by way of security. It is enforceable against the trust property and its traceable proceeds. The finding of the majority that the plaintiffs had no proprietary interest in the policy or its proceeds should have been fatal to their claim to a lien.", "The Court of Appeal held that the plaintiffs were entitled by way of subrogation to Mr Murphy's lien to be repaid the premiums. He was, they c thought, entitled to the trustee's ordinary lien to indemnify him for expenditure laid out in the preservation of the trust property: see In re Leslie 23 ChD 560. Had Mr Murphy used his own money, they said, it would have been treated as a gift to his children; but the fact that he used stolen funds rebutted any presumption of advancement. With all due respect, I do not agree that Mr Murphy had any lien to which D the plaintiffs can be subrogated. He was one of the trustees of his children's settlement, but he did not pay any of the premiums in that capacity. He settled a life policy on his children but without the funds to enable the trustees to pay the premiums.", "He obviously intended to add further property to the settlement by paying the premiums. When he paid the premiums with his own money he did so as settlor, not as trustee. He must be taken to have paid the later premiums in the same capacity as he paid the earlier ones. I do £ not for my own part see how his intention to make further advancements into the settlement can be rebutted by showing that he was not using his own money; as between himself and his children the source of the funds is immaterial. He could not demand repayment from the trustees by saying: \"I used stolen money; now that I have been found out you must pay me back so that I can repay the money.\" Moreover, even if the presumption of F advancement were rebutted, there would be no resulting trust. Mr Murphy was either (as I would hold) a father using stolen money to make further gifts to his children or a stranger paying a premium on another's policy without request: see Falcke v Scottish Imperial Insurance Co 34 Ch D 234.", "But perhaps the strongest ground for rejecting the argument is that it makes the plaintiffs' rights depend on the circumstance that Mr Murphy happened to be one of the trustees of his children's settlement. That is Q adventitious. If he had not been a trustee then, on the reasoning of the majority of the Court of Appeal, the plaintiffs would have had no proprietary remedy at all, and would be left with a worthless personal claim against Mr Murphy's estate. The plaintiffs' rights cannot turn on such chances as this. H The relevant proportions Accordingly, I agree with Morritt LJ in the Court of Appeal that, on well established principles, the parties are entitled to the proceeds of the policy in the proportions in which those proceeds represent their respective contributions. It should not, however, be too readily assumed that this Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20 Page 41 of 45 141 [2001] 1 AC Foskett v McKeown (HL(E)) Lord M i l i e u A means in the proportions in which the insurance premiums were paid with their money.", "These represent the cost of the contributions, not necessarily their value. A mixed fund, like a physical mixture, is divisible between the parties who contributed to it rateably in proportion to the value of their respective contributions, and this must be ascertained at the time they are added to the mixture. Where the mixed fund consists of sterling or a sterling account or where both parties make their contributions to the mixture at the same time, there is no difference between the cost of the contributions and their sterling value. But where there is a physical mixture or the mixture consists of an account maintained in other units of account and the parties make their contributions at different times, it is essential to value the contributions of both parties at the same time.", "If this is not done, the resulting proportions C will not reflect a comparison of like with like. The appropriate time for valuing the parties' respective contributions is when successive contributions are added to the mixture. This is certainly what happens with physical mixtures. If 20 gallons of A's oil are mixed with 40 gallons of B's oil to produce a uniform mixture of 60 gallons, A and B are entitled to share in the mixture in the proportions of 1 to z. It makes no difference if A's oil, being purchased later, cost £2 a gallon and B's oil cost only £1 a gallon, so that they each paid out £40.", "This is because the mixture is divisible between the parties rateably in proportion to the value of their respective contributions and not in proportion to their respective cost. B's contribution to the mixture was made when A's oil was added to his, and both parties' contributions should be valued at that date. Should a further 20 gallons of A's oil be added to the mixture to produce a £ uniform mixture of 80 gallons at a time when the oil was worth £3 a gallon, the oil would be divisible equally between them. (A's further 20 gallons are worth £3 a gallon—but so are the 60 gallons belonging to both of them to which they have been added.)", "It is not of course necessary to go through the laborious task of valuing every successive contribution separately in sterling. It is simpler to take the account by measuring the contributions in gallons rather than sterling. This is merely a short cut which produces the same result. In my opinion the same principle operates whenever the mixture consists of fungibles, whether these be physical assets like oil, grain or wine or intangibles like money in an account. Take the case where a trustee misappropriates trust money in a sterling bank account and pays it into his personal dollar account which also contains funds of his own.", "The dollars C are, of course, merely units of account; the account holder has no proprietary interest in them. But no one, I think, would doubt that the beneficiary could claim the dollar value of the contributions made with trust money. Most people would explain this by saying that it is because the account is kept in dollars. But the correct explanation is that it is because the contributions are made in dollars. In order to allocate the fund between the parties rateably in proportion to the value of their respective contributions, it is necessary to identify the point at which the trust money becomes mixed with the trustee's own money. This does not occur when the trustee pays in a sterling cheque drawn on the trust account. At that stage the trust money is still identifiable. It occurs when the bank credits the dollar equivalent of the sterling cheque to the trustee's personal account.", "Those Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20 Page 42 of 45 142 FoskettvMcKeown(HL(E)) [2001] 1 AC Lord Millett dollars represent the contribution made by the trust. The sterling value of A the trust's contribution must be valued at that time; and it follows that the trustee's contributions, which were also made in dollars, must be valued at the same time. Otherwise one or other party will suffer the injustice of having his contributions undervalued. Calculating the plaintiffs' share B I finally come to the difficult question: how should the parties' contributions, and therefore their respective shares in the proceeds, be calculated in the case of a unit-linked policy of the present kind? This makes it necessary to examine the terms of the policy in some detail.", "All the reported cases have been concerned with ordinary policies of life assurance. In all the cases the insurance moneys have been shared between c the parties in the proportions in which their money has been used to pay the premiums irrespective of the dates on which the premiums were paid. This favours the party who paid the later premiums at the expense of the party who paid the earlier ones. There is therefore a case for adding interest to the premiums in order to produce a fair result. This cannot be justified by the need to compensate the parties for the loss of the use of their money over different periods. It is not merely that this branch of the law is concerned r, with vindicating property rights and not with compensation for wrongdoing. It is that ex hypothesi the money has not been lost but used to produce the insurance money.", "But I think that taking account of interest can be justified nonetheless. The policy and its proceeds are not the product of the uninvested premiums alone. If they were, the sum assured would be very much smaller than it is. They are the product of the premiums invested at compound interest. It does not matter, of course, what the insurance E company actually does with the money. What matters is how the sum assured is calculated, because this shows what it represents. In practice it represents the sum which would be produced by the premiums over the term of the expected life of the assured together with compound interest at the rate available at the inception of the policy on long term government securities. But the question has not been the subject of argument before us, f and having regard to the mechanics of the present policy the calculations may not be worth doing.", "I agree therefore with my noble and learned friend Lord Hoffmann that there is no need to explore this aspect further. Unit-linked policies, however, are very different. These policies have become popular in recent years, and are commonly employed for personal pension plans taken out by the self-employed. Under such a policy the premiums are applied by the insurance company in the acquisition of C accumulation units in a designated fund usually managed by the insurance company. The bid and offer prices of the units are published daily in the financial press.", "The value of the units can go down as well as up, but since they carry the reinvested income their value can be expected to increase substantially over the medium and long term. The policy is essentially a savings medium, and (subject to tax legislation) can be surrendered at any time. On surrender the policyholder is entitled to the value of the units allocated to the policy. Early policies provided that on death the policyholder was entitled merely to the return of his premiums with interest, but more modern policies provide for payment of the value of the units in this event also. Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20 Page 43 of 45 143 [2001] 1 AC FoskettvMcKeown (HL(E)) Lord Millett A Where money belonging to different parties is used to pay the premiums under a policy of this kind, it cannot be right to divide the proceeds of the policy crudely according to the number of premiums paid by each of them. The only sensible way of apportioning the proceeds of such a policy is by reference to the number of units allocated to the policy in return for each premium.", "This is readily ascertainable, since policyholders are normally issued with an annual statement showing the number of units held before receipt of the latest premium, the number allocated in respect of the premium, and the total number currently held. But in any case these numbers can easily be calculated from published material. This would obviously be the right method to adopt if the policyholder acquired a proprietary interest in the units. These would fall to be dealt with in the same way as grain, oil or wine. There would of course still be a mixed C substitution, since after the mixture neither party's contributions can be identified.", "Neither can recover his own property, but only a proportion of the whole. Unlike Roman law, the common law applied the same principles whenever there is no means of identifying the specific assets owned by either party. In the United States they have been applied to logs, pork, turkeys, sheep and straw hats: see Smith, The Law of Tracing, at p 70. In fact unit- linked policies normally provide that the policyholder has no proprietary interest in the units allocated to the policy. They are merely units of account.", "The absence of a proprietary interest in the units would be highly material in the event of the insolvency of the insurance company. But it should have no effect on the method of calculating the shares in which competing claimants are entitled to the proceeds of the policy. This depends upon the proportions in which they contributed to the acquisition of the policy, and the question E is: in what units of account should the parties' respective contributions be measured? Should they be measured in sterling, this being the currency in which the premiums were paid? Or should they be measured by accumulation units, if this was the unit of account into which the premiums were converted before the admixture took place? Principle, and the cases on physical mixtures, indicate that the second is the correct approach. A unit linked policy of the kind I have described is simply a savings account.", "The account is kept in units. The mixing occurs when the insurance company, having received a premium in sterling, allocates units to the account of the insured where they are at once indistinguishably mixed with the units previously allocated. The contribution made by each of the parties consists of the units, not merely of their sterling equivalent. The proceeds of a unit- linked policy should in my opinion be apportioned rateably between the C parties in proportion to the value of their respective contributions measured in units, not in sterling.", "The policy in the present case is only a variant of the unit-linked policy of the kind I have described. It is also primarily a savings medium but it offers an additional element of life assurance. This protects the assured against the risk of death before the value of the units allocated to the policy reaches a predetermined amount. On receipt of each premium, the insurance company allocates accumulation units in the designated fund to the policy (\"the investment element\"), and immediately thereafter cancels sufficient of the units to provide \"the insurance element\". This is in effect an internal premium retained by the insurance company to provide the life cover. The amount of the internal premium is calculated each year by a complicated Case 1:20-mc-00199-JGK-OTW 144 Document 66-1 Filed 09/17/20 Page 44 of 45 FoskettvMcKeown(HL(E)) [2001] 1 AC Lord Millett formula.", "The important feature of the formula for present purposes is that A the internal premium is not calculated by reference to the sum assured of £im. but by reference to the difference between the current value of the units allocated to the policy and the sum assured. As the value of the units increases, therefore, the amount of the internal premium should reduce.", "When their value is equal to or greater than the sum assured, no further internal premiums are payable. Thenceforth the policy is exactly like the kind of unit-linked policy described above. The policyholder is entitled to the investment element, i e the value of the accumulated units, on death as well as on surrender. If the policyholder dies at a time when the investment element is less than the sum assured, then he receives the sum assured. This is paid as a single sum, but it has two components with different sources. One is the investment element, which represents the value of the accumulated units at c the date of death.", "The other is the insurance element, which is merely a balancing sum. It will be very large in the early years of the policy and will eventually reduce to nothing. It is the product of the internal premiums and is derived from the cancelled units. The internal premiums, however, though derived from the cancelled units, were credited to the account in sterling. The proceeds of the internal premiums, therefore, should be apportioned between the parties pro rata in the proportions in which those premiums were provided in sterling. In my opinion the correct method of apportioning the sum assured between the parties is to deal separately with its two components. The investment element (which amounted to £39,347 at the date of death in the present case) should be divided between the parties by reference to the value at maturity of the units allocated in respect of each premium and not £ cancelled. The balance of the sum assured should be divided between the parties rateably in the proportions in which they contributed to the internal premiums. This is not to treat the allocated units as a real investment separate from the life cover when it was not.", "Nor is it to treat the method by which the benefits payable under the policy is calculated as determinative or even relevant. It is to recognise the true nature of the policy, and to give effect to the fact that the sum assured had two components, to one of which the parties made their contributions in units and to the other of which they made their contributions in the sterling proceeds of realised units. These calculations require the policyholder's account to be redrawn as two accounts, one for each party. The number of units allocated to the policy on the receipt of each premium should be credited to the account of the party whose money was used to pay the premium. The number of units c so allocated should be readily ascertainable from the records of the insurance company, but if not it can easily be worked out. The number of units which were cancelled to provide the internal premium should then be ascertained in similar fashion and debited to the appropriate account.", "In the case of the earlier premiums paid with Mr Murphy's own money this will be the trustees' account. In the case of the later premiums paid with the plaintiffs' money, the cancelled units should not be debited wholly to the plaintiffs' account, but rateably to the two accounts. The amount of the internal premiums should then be credited to the two accounts in the same proportions as those in which the cancelled units were debited to provide them. Case 1:20-mc-00199-JGK-OTW Document 66-1 Filed 09/17/20145 Page 45 of 45 [2001] 1 AC FoskettvMcKeown(HL(E)) Lord Millett A This approach is substantially more favourable to the children than a crude allocation by reference to the premiums.", "By taking account of the value of the units, it automatically weights the earlier premiums which should have bought more units than the later ones. And it gives effect to the fact that, under the terms of the policy, both parties contributed to the later internal premiums which produced the greater part of the death benefit. It is, of course, always open to the parties in any case to dispense with complex calculations and agree upon a simpler method of apportionment. But in my opinion the court ought not to do so without the parties' consent. If it does, anomalies and inconsistencies will inevitably follow. Take the present case. The method of apportionment, with greatly differing results, ought not to depend upon whether the value of the units at the date of death is slightly more or slightly less than the sum assured.", "Yet once their value Q exceeds the amount of the sum assured, the policy becomes an ordinary unit- linked pension policy without an insurance element. If the sum assured is divided crudely in proportion to the premiums in the present case, their consistency requires that the same method be adopted for pension policies, which is surely wrong. If it is adopted for pension policies, then it is difficult to see how foreign currency assets can be treated differently, which is certainly wrong.", "There is an enormous variety of financial instruments. For D present purposes they form a seamless web. Cutting corners in the interest of simplicity is tempting, but in my opinion the temptation ought to be resisted. Conclusion Accordingly I would allow the appeal. In my opinion the insurance money ought to be divided between the parties in the proportions I have £ indicated. But I am alone in adopting this approach, and as the question was not argued before us I am content that your Lordships should declare that the money should be divided between the parties in proportions in which they contributed to the premiums. For the reasons given by my noble and learned friend, Lord Hope of Craighead, with which I agree, I would dismiss the children's cross-appeal. F Appeal allowed. Cross-appeal dismissed. Declaration that plaintiffs entitled to share in fund in accordance with proportion of premiums paid out of their money.", "Cause remitted to Chancery Division. No order for costs in High Court. Plaintiffs' costs in Court of Appeal and House of Lords to be paid out of legal aid fund. Solicitors: Kidd Rapinet; Fitzgerald-Harts, Boroughbridge. H SH i AC 2.001—6" ]	https://www.courtlistener.com/api/rest/v3/recap-documents/147834337/	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
745 N.W.2d 783 (2008) PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gene T. FAVORS, Jr. Defendant-Appellant. Docket No. 134835. COA No. 275048. Supreme Court of Michigan. March 24, 2008. On order of the Court, the application for leave to appeal the May 21, 2007 order of the Court of Appeals is considered, and it is DENIED, because the defendant has *784 failed to meet the burden of establishing entitlement to relief under MCR 6.508(D).	03-01-2013	[ "745 N.W.2d 783 (2008) PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gene T. FAVORS, Jr. Defendant-Appellant. Docket No. 134835. COA No. 275048. Supreme Court of Michigan. March 24, 2008. On order of the Court, the application for leave to appeal the May 21, 2007 order of the Court of Appeals is considered, and it is DENIED, because the defendant has *784 failed to meet the burden of establishing entitlement to relief under MCR 6.508(D)." ]	https://www.courtlistener.com/api/rest/v3/opinions/840054/	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
Case 1:16-cv-10766-PBS Document 253 Filed 01/03/19 Page 1 of 3 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS JUDITH GODINEZ, Individually and Civil Action No. 1:16-cv-10766 (PBS) on Behalf of All Others Similarly Situated, Plaintiffs, v. ALERE INC., et al., Defendants. JOINT STATUS REPORT Pursuant to the Court’s September 4, 2018 Order (ECF No. 247), which granted the parties’ Joint Motion to Stay Proceedings (ECF No. 246), and further pursuant to the Parties’ November 29, 2018 Joint Status Report (ECF No. 252), the parties hereby report to the Court regarding the status of their efforts to finalize the settlement papers. Since filing their last Joint Status Report, the parties have made significant further progress toward finalizing the settlement papers, are actively engaged in cooperative and productive telephonic and e-mail discussions, and have exchanged further revised drafts of a stipulation of settlement, notice of settlement, short form notice of settlement, proposed order preliminarily approving the settlement, and proposed judgment. The parties are aiming to finalize the settlement documents by January 14, 2019, but in any event no later than January 31, 2019. After the parties enter a definitive stipulation of settlement, Lead Plaintiffs will promptly move for preliminary approval of the settlement and certification of a class for settlement purposes only. Case 1:16-cv-10766-PBS Document 253 Filed 01/03/19 Page 2 of 3 Dated: January 3, 2019 Respectfully submitted, /s/ Adam M. Stewart Adam M. Stewart (BBO#661090) astewart@shulaw.com Edward F. Haber (BBO#215620) ehaber@shulaw.com SHAPIRO HABER & URMY LLP Seaport East Two Seaport Lane Boston, MA 02210 (617) 439-3939 Plaintiffs’ Liaison Counsel ABRAHAM, FRUCHTER & TWERSKY, LLP Jeffrey S. Abraham (admitted pro hac vice) jabraham@aftlaw.com Lawrence D. Levit (admitted pro hac vice) llevit@aftlaw.com Todd Kammerman (admitted pro hac vice) tkammerman@aftlaw.com One Penn Plaza, Suite 2805 New York, New York 10119 (212) 279-5050 (212) 279-3655 (fax) ENTWISTLE & CAPPUCCI LLP Vincent R. Cappucci (admitted pro hac vice) vcappucci@entwistle-law.com Brendan J. Brodeur (BBO#675353) bbrodeur@entwistle-law.com Andrew M. Sher (admitted pro hac vice) asher@entwistle-law.com 299 Park Avenue, 20th Floor New York, NY 10171 Telephone: (212) 894-7200 Fax: (212) 894-7272 Plaintiffs’ Co-Lead Counsel 2 Case 1:16-cv-10766-PBS Document 253 Filed 01/03/19 Page 3 of 3 /s/ Deborah S. Birnbach Deborah S. Birnbach (BBO # 628243) Katherine McKenney (BBO # 660621) GOODWIN PROCTER LLP 100 Northern Avenue Boston, MA 02210 Tel.: 617.570.1000 Fax: 617.523.1231 dbirnbach@goodwinprocter.com kmckenney@goodwinprocter.com PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP Richard A. Rosen (admitted pro hac vice) 1285 Avenue of the Americas New York, NY 10019 Tel: (212) 373-3000 Fax: (212) 757-3990 rrosen@paulweiss.com Jane B. O’Brien (admitted pro hac vice) 2001 K Street, NW Washington, DC 20006-1047 Tel: (202) 223-7300 Fax: (202) 223-7420 jobrien@paulweiss.com Attorneys for Defendants Alere Inc., Namal Nawana and James F. Hinrichs CERTIFICATE OF SERVICE I hereby certify that this document, filed through the ECF system, will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (“NEF”) on this January 3, 2019. /s/ Adam M. Stewart Adam M. Stewart 3	2019-01-03	[ "Case 1:16-cv-10766-PBS Document 253 Filed 01/03/19 Page 1 of 3 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS JUDITH GODINEZ, Individually and Civil Action No. 1:16-cv-10766 (PBS) on Behalf of All Others Similarly Situated, Plaintiffs, v. ALERE INC., et al., Defendants. JOINT STATUS REPORT Pursuant to the Court’s September 4, 2018 Order (ECF No. 247), which granted the parties’ Joint Motion to Stay Proceedings (ECF No.", "246), and further pursuant to the Parties’ November 29, 2018 Joint Status Report (ECF No. 252), the parties hereby report to the Court regarding the status of their efforts to finalize the settlement papers. Since filing their last Joint Status Report, the parties have made significant further progress toward finalizing the settlement papers, are actively engaged in cooperative and productive telephonic and e-mail discussions, and have exchanged further revised drafts of a stipulation of settlement, notice of settlement, short form notice of settlement, proposed order preliminarily approving the settlement, and proposed judgment. The parties are aiming to finalize the settlement documents by January 14, 2019, but in any event no later than January 31, 2019. After the parties enter a definitive stipulation of settlement, Lead Plaintiffs will promptly move for preliminary approval of the settlement and certification of a class for settlement purposes only. Case 1:16-cv-10766-PBS Document 253 Filed 01/03/19 Page 2 of 3 Dated: January 3, 2019 Respectfully submitted, /s/ Adam M. Stewart Adam M. Stewart (BBO#661090) astewart@shulaw.com Edward F. Haber (BBO#215620) ehaber@shulaw.com SHAPIRO HABER & URMY LLP Seaport East Two Seaport Lane Boston, MA 02210 (617) 439-3939 Plaintiffs’ Liaison Counsel ABRAHAM, FRUCHTER & TWERSKY, LLP Jeffrey S. Abraham (admitted pro hac vice) jabraham@aftlaw.com Lawrence D. Levit (admitted pro hac vice) llevit@aftlaw.com Todd Kammerman (admitted pro hac vice) tkammerman@aftlaw.com One Penn Plaza, Suite 2805 New York, New York 10119 (212) 279-5050 (212) 279-3655 (fax) ENTWISTLE & CAPPUCCI LLP Vincent R. Cappucci (admitted pro hac vice) vcappucci@entwistle-law.com Brendan J. Brodeur (BBO#675353) bbrodeur@entwistle-law.com Andrew M. Sher (admitted pro hac vice) asher@entwistle-law.com 299 Park Avenue, 20th Floor New York, NY 10171 Telephone: (212) 894-7200 Fax: (212) 894-7272 Plaintiffs’ Co-Lead Counsel 2 Case 1:16-cv-10766-PBS Document 253 Filed 01/03/19 Page 3 of 3 /s/ Deborah S. Birnbach Deborah S. Birnbach (BBO # 628243) Katherine McKenney (BBO # 660621) GOODWIN PROCTER LLP 100 Northern Avenue Boston, MA 02210 Tel.", ": 617.570.1000 Fax: 617.523.1231 dbirnbach@goodwinprocter.com kmckenney@goodwinprocter.com PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP Richard A. Rosen (admitted pro hac vice) 1285 Avenue of the Americas New York, NY 10019 Tel: (212) 373-3000 Fax: (212) 757-3990 rrosen@paulweiss.com Jane B. O’Brien (admitted pro hac vice) 2001 K Street, NW Washington, DC 20006-1047 Tel: (202) 223-7300 Fax: (202) 223-7420 jobrien@paulweiss.com Attorneys for Defendants Alere Inc., Namal Nawana and James F. Hinrichs CERTIFICATE OF SERVICE I hereby certify that this document, filed through the ECF system, will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (“NEF”) on this January 3, 2019. /s/ Adam M. Stewart Adam M. Stewart 3" ]	https://www.courtlistener.com/api/rest/v3/recap-documents/94434086/	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
Case 2:20-cv-01652-AMM Document 1 Filed 10/21/20 Page 1 of 17 FILED 2020 Oct-21 PM 04:31 U.S. DISTRICT COURT N.D. OF ALABAMA IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION TERESA LARSEN, on behalf of ) herself and all others similarly ) situated, ) ) Plaintiff, ) ) v. ) No. ) APPLE, INC., ) ) Defendant. ) STATEWIDE CLASS ACTION COMPLAINT Plaintiff Teresa Larsen, on behalf of herself and others similarly situated, brings this action against defendant Apple, Inc., to recover money lost to illegal gambling pursuant to Section 8-1-150 of the Code of Alabama, 1975. See also Ala. Code §§ 13A-12-20 et seq. Apple promotes, enables, and profits from games downloaded from its App Store and played by numerous Alabama residents that constitute illegal gambling under the statutory law and the strong public policy of the state of Alabama. Plaintiff seeks to represent a class pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure. PARTIES, JURISDICTION, AND VENUE 1. Plaintiff Teresa Larsen is an adult resident citizen of the state of Alabama, residing in Shelby County, Alabama. Case 2:20-cv-01652-AMM Document 1 Filed 10/21/20 Page 2 of 17 2. Defendant Apple, Inc. is a corporation organized and existing under the laws of the state of California, with its principal place of business in Cupertino, California. Apple does business by agent in this state, district, and division. 3. This is a class action brought by Alabama citizens against a California company. The amount in controversy exceeds $5 million, exclusive of interest and costs. Subject matter jurisdiction exists pursuant to the Class Action Fairness Act of 2005, 28 U.S.C. § 1332(d). 4. Venue is proper under 28 U.S.C. § 1391(b)(2), because this is a “judicial district in which a substantial part of the events or omissions giving rise to the claim occurred.” FACTUAL BACKGROUND 5. Apple is the most valuable company in the world, with a market capitalization exceeding $2 trillion as of mid-2020. It is by far the world’s biggest technology company, now roughly double the size of both Microsoft Corporation and Alphabet Inc., the parent company of Google, respectively. Gone are the days when Steve Jobs’s little company began its quixotic quest to take market share away from Microsoft’s dominance of the computer software market with its introduction of the upstart MacIntosh personal computer. Applications for personal computers, both desktops and laptops, are now a relatively small part of the software market. 2 Case 2:20-cv-01652-AMM Document 1 Filed 10/21/20 Page 3 of 17 Mobile devices are now the name of the game and Apple undisputedly dominates that lucrative market. 6. Apple’s operating system for the iPhone smartphone and the iPad tablet, known as the iOS, is a rigidly controlled closed system that has the ability to run numerous applications, or apps, available exclusively through Apple’s App Store. Apple takes up to 30% of all revenue generated by app sales in the App Store and in-app purchases made on apps obtained through the App Store.1 Millions of software developers make applications for the Apple iOS. In order to sell apps in the App Store, developers must submit their programs to Apple, which then decides whether the app may be included in the App Store and thus downloaded to iOS devices. 7. Many apps, including those that are the subject of this lawsuit, are initially free to download but contain in-app purchases that a customer can choose to purchase inside the app. Apple provides the payment interface for all such purchases and, as noted, takes a hefty percentage of the money for itself. A 30% processing fee is many times the charge that other payment processors outside the Apple ecosystem, such as Western Union, charge for processing such payments. 1 Apple takes 30% of all initial app purchases and in-app purchases made during the first year after the customer downloads the app. After that, the percentage drops to 15%. 3 Case 2:20-cv-01652-AMM Document 1 Filed 10/21/20 Page 4 of 17 8. The money charged for in-app purchases is paid to Apple. An Apple customer is required to provide a method of payment, usually a credit or debit card, for all purchases made in the App Store, including in-app purchases. Apple then has a contractual obligation to the software developers to remit a portion of the money Apple receives from the purchases, typically 70%, to the developers. This contractual arrangement is between Apple and the developers who sell products in the App Store. As between plaintiff and the class members and Apple, however, all in-app and other purchases involve the payment of money to Apple, not the developers. 9. This case concerns Apple’s profiting from illegal gambling machine games that it sells in its App Store. Apple and its chief mobile device software competitor, Google, both allow customers to purchase games that are no more or no less than casino-style slot machines, casino style table games, and other common gambling games. 10. There are numerous such gambling games that Apple makes available in the App Store, and there is very little variation on how they work. When a customer downloads the game and opens it for the first time, the customer has a set number of free starting “coins,” for example, 100,000 or 1,000,000, to play the slots. The games themselves work precisely like a casino slot machine or other games in Las Vegas. In addition to slots, customers can play blackjack, roulette, poker, keno, 4 Case 2:20-cv-01652-AMM Document 1 Filed 10/21/20 Page 5 of 17 bingo, and other card and gambling games. A loss results in a loss of “coins,” but the customer has the chance to win more coins. Eventually a customer runs out of coins, and is prompted to use real money to buy more coins for the opportunity to keep playing the game. Hundreds of these games exist. The following table contains the 200 most popular games. 1 Slotomania™ Vegas Casino Slots 101 Lucky Play Casino Slots Games 2 Jackpot Party - Casino Slots 102 Vegas Downtown Slots & Words 3 DoubleDown™- Casino Slots Game 103 Slots-Fortune 777 Classic Slot Playtika Santa Monica, LLCBingo Blitz™ - Bingo 4 Games 104 Gambino Slots Wheel of Fortune 5 Cashman Casino Las Vegas Slots 105 mychoice casino jackpot slots 6 Cash Frenzy™ - Slots Casino 106 FoxwoodsONLINE 7 World Series of Poker - WSOP 107 Gold Fortune Casino 8 Heart of Vegas Slots-Casino 108 GSN Grand Casino: Slots Games 9 POP! Slots ™ Live Vegas Casino 109 Take5 Casino - Slot Machines 10 House of Fun™ - Casino Slots 110 Bid Wars: Pawn Empire 11 Lightning Link Slots-Casino 111 Slots Master-Vegas Casino Game 12 Big Fish Casino: Slots & Games 112 Slots of Vegas 13 DoubleU Casino: Vegas Slots 113 Slingo Arcade - Bingo & Slots 14 Huuuge Casino Slots Vegas 777 114 PokerStars Play – Texas Holdem 15 VEGAS Slots – Casino Slots 115 Blazing 7s Casino: Slots Games 16 Caesars® Casino: Vegas Slots 116 Mystic Slots: Fun Casino Games 17 Jackpot Magic Slots™ & Casino 117 Lucky City™ - 3D Slot Machine 18 Lotsa Slots: Casino SLOTS 118 Governor of Poker 3 - Friends 19 Hit it Rich! Lucky Vegas Slot 119 Casino Roulette: Roulettist 20 my KONAMI - Real Vegas Slots 120 Seminole Social Casino 21 Bingo Party! Lucky Bingo Games 121 Blackjack⋅ 22 Zynga Poker - Texas Holdem 122 Tap Poker Social 23 Wizard of Oz: Casino Slots 123 Slots-Heart of Diamonds Casino 24 Quick Hit Slots - Casino Games 124 Triple Win Slots-Vegas Casino 25 Jackpot Mania™ - DAFU Casino 125 Texas Holdem - Scatter Poker 26 Game of Thrones Slots Casino 126 MONOPOLY Bingo! 27 Gold Fish Casino Slots Games 127 San Manuel Slots 28 Cash Tornado Slots - Casino 128 Wheel of Fortune Slots 29 Scatter Slots - Vegas Casino 129 Ultimate Slots: Casino Slots 30 Billionaire Casino Slots 777 130 Lucky Slots: Vegas Casino 5 Case 2:20-cv-01652-AMM Document 1 Filed 10/21/20 Page 6 of 17 31 Double Win Slots Casino Game 131 Stardust Casino™ Slots - Vegas 32 Texas Hold'em Poker: Pokerist 132 Slots of Vegas - Slot Machine 33 Bingo Journey - Classic Bingo 133 Xtreme Slots 34 Bingo Bash: Online Bingo Games 134 Video Poker Deluxe Casino 35 Bingo Story Live Bingo Games 135 Win Vegas Slots Casino: Nascar 36 Willy Wonka Slots Vegas Casino 136 Bid Wars: Storage Auctions 37 Poker Face - Live Texas Holdem 137 Coin Trip 38 Classic Casino Slots Games 138 Royal Slot Machine Games 39 GSN Casino: Slot Machine Games 139 World Poker Tour - PlayWPT 40 Bingo Pop - Bingo Games 140 Absolute Bingo! Play Fun Games 41 88 Fortunes Slots Casino Games 141 Bingo Holiday - BINGO Games 42 MONOPOLY Slots - Casino Games 142 Vegas Slots - Slot Machines! 43 Vegas Live Slots Casino 143 Solitaire 44 Ignite Classic Slots 144 Video Poker Games 45 Hot Shot Casino - Slots Games 145 Slots™ 46 Wynn Slots - Las Vegas Casino 146 Sanh Rong - Game danh bai 47 Wild Classic Slots™ Casino 147 Slot Bonanza- 777 Vegas casino 48 Slots - Classic Vegas Casino 148 HighRoller Vegas: Casino Slots 49 Slot Machines 777 - Slots Era 149 Video Poker by Ruby Seven 50 Club Vegas Slots: Casino 777 150 Slots Craze: Casino Games 2020 51 Blackjack 21: Blackjackist 151 VIP Poker - Texas Holdem 52 Tycoon Casino™ - Vegas Slots 152 Cash Dozer: Lucky Coin Pusher 53 Double Hit Casino: Vegas Slots 153 VIP Deluxe Slot Machine Games 54 Bingo Showdown -> Bingo Live! 154 Vegas Slots: Deluxe Casino 55 Rock N' Cash Casino Slots 155 Casino Frenzy-Fantastic Slots 56 Winning Slots Las Vegas Casino 156 Video Poker - Classic Games 57 Cash Mania - Casino Slots 157 Epic Diamond Slots: Casino Fun 58 Slots GoldenHoYeah-Casino Slot 158 Ellen's Road to Riches Slots 59 Huge Win! Classic Slots Game 159 Empire City Casino Slots 60 Slots DoubleDown Fort Knox 160 Diamond Sky: Slots & Lottery 61 Casino Games - Infinity Slots 161 Poker Night in America 62 Backgammon - Lord of the Board 162 Slots - Pharaoh's Way 63 Double Rich！Vegas Casino Slots 163 HOLD'EM OR FOLD'EM 64 Pokerrrr 2- Holdem, OFC, Omaha 164 Slingo Adventure 65 Poker Heat: Texas Holdem Poker 165 Dragon King Fishing Online 66 Golden Casino - Vegas Slots 166 Baba Wild Slots - Vegas Casino 67 Blackjack 21 - HOB 167 Royal Slots:Slot Machine Games 68 High 5 Casino: Home of Slots 168 Praia Bingo - Bingo Games 69 Show Me Vegas Slots Casino App 169 Bingo Infinity 70 Texas Poker: Pokerist Pro 170 Vegas Craps by Pokerist 71 Texas Holdem Poker 171 Real Casino Slots 72 Billion Cash Slots-Casino Game 172 Bonus of Vegas Slots Casino 73 Multi-Strike Poker™ 173 Hit 7 Casino : Vegas Slots 6 Case 2:20-cv-01652-AMM Document 1 Filed 10/21/20 Page 7 of 17 74 Vegas Slots - 7Heart Casino 174 Real Slots \| Best Bet Casino™ 75 DoubleDown Classic Slots 175 Fantasy Springs Slots \| Casino 76 Coin Dozer 176 Live Play Bingo 77 Mega Hit Poker: Texas Holdem 177 Blackjack 78 Hard Rock Social Casino 178 Teen Patti by Octro 79 Bingo！ 179 SpinToWin Slots & Sweepstakes 80 Viva Slots Vegas Slot Machines 180 Teen Patti Gold, Poker & Rummy 81 Bingo Frenzy: BINGO Cooking! 181 Texas Poker 82 Slots Casino - Jackpot Mania 182 Hard Rock Blackjack & Casino 83 Slots Casino: Vegas Slot Games 183 Vegas Nights Slots 84 Slots Games: Hot Vegas Casino 184 Lucky North Casino\|Slot Games 85 Magic Vegas Casino 185 Bingo!™ 86 Vegas Casino Slots - Mega Win 186 HD Poker: Texas Holdem 87 SLOTS - Black Diamond Casino 187 Cashmania Slots: Slot Games 88 Backgammon Live™ Board Game 188 Blackjack 21-World Tournament 89 The Walking Dead Casino Slots 189 Blackjack 21: Live Casino game 90 Jackpotjoy Slots: Vegas Casino 190 Super Jackpot Slots Casino 91 Old Vegas Classic Slots Casino 191 Keno 4 Multi Card 92 FaFaFa™ Gold Slots Casino 192 Binion's Casino 93 Lucky Time Slots™ Vegas Casino 193 Lottery Scratchers 94 Video Poker Classic - 39 Games 194 Fishing Casino - Ocean King 95 Stars Casino Slots 195 Bingo PartyLand: BINGO! & Spin 96 Clubillion™: casino slots game 196 GamePoint Bingo 97 Lucky Lottery Scratchers 197 American Scratchers Lottery 98 Bingo Drive: Play & Win Online 198 Ever Rich Slots 99 Abradoodle Bingo: Fun Bingo! 199 Keno Bonus Play 100 Cash Fever Slots™-Vegas Casino 200 Spider Solitaire: Card Game 11. Plaintiff Larsen downloaded and played two of these casino-style gambling games. Ms. Larsen downloaded Jackpot Party and Goldfish Casino Slots from the Apple App Store prior to January 2019. During that month, she began purchasing coins through the app so she could continue to play for a chance to win free coins that would enable her to enjoy the game(s) for a longer period of time. In the six months prior to the filing of this complaint, she paid $258.63 to Apple for the privilege of continuing to play the illegal gambling games. 7 Case 2:20-cv-01652-AMM Document 1 Filed 10/21/20 Page 8 of 17 12. A customer such as plaintiff does not have the ability to collect actual cash as a result of “winning” games, but he does have the ability to win and therefore acquire more playing time. Alabama’s gambling statutes make clear that paying money in a game for a chance to win more playing time constitutes illegal gambling under Alabama law. Section 13A-12-20(11) of the Alabama Code defines a “thing of value” for purposes of the state gambling laws as: Any money or property, any token, object or article exchangeable for money or property or any form of credit or promise directly or indirectly contemplating transfer of money or property or of any interest therein, or involving extension of a service entertainment or a privilege of playing at a game or scheme without charge. A game where a patron pays money for the chance to win more playing time without charge violates Alabama law. 13. Apple is not some minor or incidental participant in these illegal gambling games. It is the principal promoter and facilitator of the illegal activity. Apple maintains dictatorial control over what apps can be downloaded from the App Store, and the payment method to purchase in-app items. As the maker of the Fortnite game alleged in a recent antitrust injunction lawsuit against Apple: Apple also imposes unreasonable restraints and unlawfully maintains a total monopoly in the iOS In-App Payment Processing Market. Among the oppressive terms that app developers have to accept, Apple coerces all app developers who wish to use its App Store—the only means with which to distribute apps to iOS users—to use exclusively Apple’s own payment processing platform for all in-app purchases of in-app content. 8 Case 2:20-cv-01652-AMM Document 1 Filed 10/21/20 Page 9 of 17 Complaint for Injunctive Relief, Epic Games v. Apple, Inc., in the United States District Court for the Northern District of California, August 13, 2020 ¶ 10 (copy attached). As noted, Apple uses its unfettered control over apps played on iOS to extract a hefty 30% tax on all purchases made to buy apps or in-app content such as “coins” to gamble with. 14. Apple has the ability, which it has employed on other apps, to geo- restrict games so that they can only be played in certain states. In fact, with cash-out gambling games it regularly restricts those game so that they can only be played in states where that type of gambling is legal. Apple has also restricted gambling games such as the ones made the basis of this lawsuit so that minors cannot download or play them. It has the ability with existing technology it currently uses to prevent the games at issue here from being played in this state. 15. Apple’s App Store is not just a venue to buy iOS apps. It is a promotional tool. Apple heavily promotes apps, such as the illegal gambling games that form the basis of this complaint, that promise to bring in revenue. Revenue from the App Store is the reason Apple is the most valuable company on the planet. 16. Thus, Apple enables, permits, promotes, and profits from illegal gambling. 9 Case 2:20-cv-01652-AMM Document 1 Filed 10/21/20 Page 10 of 17 ALABAMA LEGAL FRAMEWORK 17. Alabama has a strong public policy against gambling in this state. The state’s strong public policy against gambling includes a statutory right of persons who spend money on gambling to recover their money. 18. The Alabama criminal laws pertaining to gambling are codified at Sections 13A-12-20 through 13A-12-92 of the Code of Alabama, 1975. Section 13A-12-22(a) states “A person commits the crime of promoting gambling if he knowingly advances or profits from unlawful gambling activity otherwise than as a player.” Section 13A-12-23 adds: “A person commits the crime of conspiracy to promote gambling if he conspires to advance. or profit from gambling activity otherwise than as a player.” Gambling, in turn, is defined as follows: “A person engages in gambling if he stakes or risks something of value upon the outcome of a contest of chance or a future contingent event not under his control or influence, upon an agreement or understanding that he or someone else will receive something of value in the event of a certain outcome.” Ala. Code § 13A-12-20(4). 19. As already noted, “something of value” is not limited under Alabama law to the situation where one gambles in the hopes of winning actual cash money. Rather, “something of value” specifically includes “extension of a service entertainment or a privilege of playing at a game or scheme without charge.” As a matter of law, paying money to get “coins” one bets hoping to win more “coins” so 10 Case 2:20-cv-01652-AMM Document 1 Filed 10/21/20 Page 11 of 17 as to gain the “privilege of playing at a game or scheme without charge” is gambling a thing of value under Alabama law. 20. As to the prohibition of “promoting” gambling in Section 13A-12- 22(a), the statute states that a person “advances gambling activity if he or she “engages in conduct that materially aids any form of gambling activity.” By promoting, receiving the proceeds, approving and profiting from the illegal gambling games, Apple “materially aids” illegal gambling proceeds. Since Apple directly promoted gambling, it is also guilty of conspiring to promote gambling under Section 13A-12-23. 21. Alabama provides a statutory civil cause of action to recover money paid and lost due to gambling. Section 8-1-150(a) of the Code of Alabama provides: All contracts founded in whole or in part on a gambling consideration are void. Any person who has paid any money or delivered any thing of value lost upon any game or wager may recover such money, thing, or its value by an action commenced within six months from the time of such payment or delivery. CLASS ALLEGATIONS 22. Plaintiff seeks to certify and represent a class pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure. The class sought to be certified is: All Alabama residents who downloaded, played, and paid money for additional coins within games from the Apple App Store that featured slots, roulette, blackjack, poker, keno, craps, and other kinds of casino- style gambling games, bingo, or simulations thereof, where the player had a chance to win coins or other means to play for additional periods of time, during a period commencing six months before the filing of 11 Case 2:20-cv-01652-AMM Document 1 Filed 10/21/20 Page 12 of 17 this complaint and continuing to a date to be set by the Court following certification. All employees of the Court, and plaintiff’s counsel and their families are excluded. 23. This class action satisfies the numerosity requirement of Rule 23(a)(1) because joinder of all members of the plaintiff class is impracticable. There are thousands of Alabama residents who are members of the class. 24. It also satisfies the commonality requirement of Rule 23(a)(2) because there are central questions of fact and law that are common to the class. Such common questions include, at a minimum, (a) whether these virtually identical gambling games sold through the App Store violate Alabama’s prohibition of illegal gambling; (b) whether gambling for additional play-time is a thing of value under Alabama law; (c) whether Apple promoted gambling through its participation in the sale of in-app purchases through the App Store; (d) whether Apple participated in a conspiracy to promote gambling; and (e) whether plaintiff and the class members are entitled to recover their money pursuant to Section 8-1-150 of the Code of Alabama. 25. The proposed class satisfies the typicality requirement of Rule 23(a)(3) because the named plaintiff’s claims are typical of the claims of the class members. Both plaintiff and the class members lost money in an effort to win additional play- time on these illegal gambling games. 12 Case 2:20-cv-01652-AMM Document 1 Filed 10/21/20 Page 13 of 17 26. The named plaintiff will fairly and adequately represent the interests of the class pursuant to Rule 23(a)(4). Plaintiff has no interests that conflict with the interests of the class. Furthermore, plaintiff has retained competent and experienced counsel with decades of experience litigating class cases. 27. Plaintiff seeks certification of a class pursuant to Rule 23(b)(3), which allows class treatment of a claim where: (3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include: (A) the class members' interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action. 28. The common questions of law and fact in this case vastly predominate over any individual issues affecting only individual class members. The only individual issue presented by these class members is the exact amount of money damages to which each class member is entitled. Such damages issues are routinely held not to predominate over common questions in cases like this. Indeed, the 13 Case 2:20-cv-01652-AMM Document 1 Filed 10/21/20 Page 14 of 17 individual damages issues will be quickly and accurately determined by examining Apple’s own records. 29. Class treatment is by far superior to individual litigation as a fair and efficient way to adjudicate this controversy. Given the relatively small individual amounts at issue, it unlikely whether there would be any adjudication at all without use of the class device. No individual class member would rationally commence and prosecute a lawsuit where the individual amount in controversy likely would not exceed the filing fees. 30. For this reason, none of the class members have any interest in controlling the prosecution of separate actions. 31. Likewise, to our knowledge, no class member has already commenced an action concerning this controversy. 32. It would much more desirable to concentrate this case in one action rather than allow the prosecution of individual actions because, as noted, such individual actions would likely never be filed because there would be no motivation for any individual class member to file an individual suit. 33. We foresee no particular difficulties in managing this case as a class action because 100% of the necessary information to compensate the individual class members is contained in Apple’s own records concerning purchases made through the App Store. 14 Case 2:20-cv-01652-AMM Document 1 Filed 10/21/20 Page 15 of 17 CAUSE OF ACTION 33. Plaintiff, on her own behalf and on behalf of those similarly situated, seek recovery of all sums paid through in-app purchases in these games made through Apple’s App Store pursuant to Section 8-1-150(a) of the Coode of Alabama, 1975. PRAYER FOR RELIEF WHEREFORE, the premises considered, plaintiff asks the Court to: 1. Take jurisdiction of this cause; 2. Following discovery, certify this case as a class action pursuant to Rule 23(b)(3); 3. Appoint the undersigned as Class Counsel and the named plaintiff as class representative; 4. Enter a final judgment against Apple awarding plaintiff and the class members a refund of all money paid through the illegal gambling games described herein; 5. Award Class Counsel reasonable attorneys’ fees and expenses to be paid out of the judgment in favor of the class; 6. Award the named plaintiff a reasonable sum of money for her services in this case on behalf of the class, also to be paid out of the judgment in favor of the class; 15 Case 2:20-cv-01652-AMM Document 1 Filed 10/21/20 Page 16 of 17 7. Award interest and costs; and 8. Award any other relief to which the Court finds plaintiff and the class are entitled. Respectfully submitted this 21st day of October, 2020 /s/ John E. Norris John E. Norris (NOR041) Attorney for Plaintiff OF COUNSEL: D. Frank Davis (DAV009) John E. Norris (NOR041) Wesley W. Barnett (BAR141) Dargan M. Ware (WAR089) DAVIS & NORRIS, LLP 2154 Highland Avenue South Birmingham, Alabama 35205 Telephone: 205.930.9900 Facsimile: 205.930.9989 fdavis@davisnorris.com jnorris@davisnorris.com wbarnett@davisnorris.com dware@davisnorris.com 16 Case 2:20-cv-01652-AMM Document 1 Filed 10/21/20 Page 17 of 17 17	2020-10-21	[ "Case 2:20-cv-01652-AMM Document 1 Filed 10/21/20 Page 1 of 17 FILED 2020 Oct-21 PM 04:31 U.S. DISTRICT COURT N.D. OF ALABAMA IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION TERESA LARSEN, on behalf of ) herself and all others similarly ) situated, ) ) Plaintiff, ) ) v. ) No. ) APPLE, INC., ) ) Defendant. ) STATEWIDE CLASS ACTION COMPLAINT Plaintiff Teresa Larsen, on behalf of herself and others similarly situated, brings this action against defendant Apple, Inc., to recover money lost to illegal gambling pursuant to Section 8-1-150 of the Code of Alabama, 1975. See also Ala. Code §§ 13A-12-20 et seq. Apple promotes, enables, and profits from games downloaded from its App Store and played by numerous Alabama residents that constitute illegal gambling under the statutory law and the strong public policy of the state of Alabama. Plaintiff seeks to represent a class pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure. PARTIES, JURISDICTION, AND VENUE 1. Plaintiff Teresa Larsen is an adult resident citizen of the state of Alabama, residing in Shelby County, Alabama.", "Case 2:20-cv-01652-AMM Document 1 Filed 10/21/20 Page 2 of 17 2. Defendant Apple, Inc. is a corporation organized and existing under the laws of the state of California, with its principal place of business in Cupertino, California. Apple does business by agent in this state, district, and division. 3. This is a class action brought by Alabama citizens against a California company. The amount in controversy exceeds $5 million, exclusive of interest and costs. Subject matter jurisdiction exists pursuant to the Class Action Fairness Act of 2005, 28 U.S.C.", "§ 1332(d). 4. Venue is proper under 28 U.S.C. § 1391(b)(2), because this is a “judicial district in which a substantial part of the events or omissions giving rise to the claim occurred.” FACTUAL BACKGROUND 5. Apple is the most valuable company in the world, with a market capitalization exceeding $2 trillion as of mid-2020. It is by far the world’s biggest technology company, now roughly double the size of both Microsoft Corporation and Alphabet Inc., the parent company of Google, respectively. Gone are the days when Steve Jobs’s little company began its quixotic quest to take market share away from Microsoft’s dominance of the computer software market with its introduction of the upstart MacIntosh personal computer. Applications for personal computers, both desktops and laptops, are now a relatively small part of the software market. 2 Case 2:20-cv-01652-AMM Document 1 Filed 10/21/20 Page 3 of 17 Mobile devices are now the name of the game and Apple undisputedly dominates that lucrative market.", "6. Apple’s operating system for the iPhone smartphone and the iPad tablet, known as the iOS, is a rigidly controlled closed system that has the ability to run numerous applications, or apps, available exclusively through Apple’s App Store. Apple takes up to 30% of all revenue generated by app sales in the App Store and in-app purchases made on apps obtained through the App Store.1 Millions of software developers make applications for the Apple iOS. In order to sell apps in the App Store, developers must submit their programs to Apple, which then decides whether the app may be included in the App Store and thus downloaded to iOS devices.", "7. Many apps, including those that are the subject of this lawsuit, are initially free to download but contain in-app purchases that a customer can choose to purchase inside the app. Apple provides the payment interface for all such purchases and, as noted, takes a hefty percentage of the money for itself. A 30% processing fee is many times the charge that other payment processors outside the Apple ecosystem, such as Western Union, charge for processing such payments. 1 Apple takes 30% of all initial app purchases and in-app purchases made during the first year after the customer downloads the app.", "After that, the percentage drops to 15%. 3 Case 2:20-cv-01652-AMM Document 1 Filed 10/21/20 Page 4 of 17 8. The money charged for in-app purchases is paid to Apple. An Apple customer is required to provide a method of payment, usually a credit or debit card, for all purchases made in the App Store, including in-app purchases. Apple then has a contractual obligation to the software developers to remit a portion of the money Apple receives from the purchases, typically 70%, to the developers. This contractual arrangement is between Apple and the developers who sell products in the App Store. As between plaintiff and the class members and Apple, however, all in-app and other purchases involve the payment of money to Apple, not the developers. 9. This case concerns Apple’s profiting from illegal gambling machine games that it sells in its App Store. Apple and its chief mobile device software competitor, Google, both allow customers to purchase games that are no more or no less than casino-style slot machines, casino style table games, and other common gambling games. 10.", "There are numerous such gambling games that Apple makes available in the App Store, and there is very little variation on how they work. When a customer downloads the game and opens it for the first time, the customer has a set number of free starting “coins,” for example, 100,000 or 1,000,000, to play the slots. The games themselves work precisely like a casino slot machine or other games in Las Vegas. In addition to slots, customers can play blackjack, roulette, poker, keno, 4 Case 2:20-cv-01652-AMM Document 1 Filed 10/21/20 Page 5 of 17 bingo, and other card and gambling games. A loss results in a loss of “coins,” but the customer has the chance to win more coins. Eventually a customer runs out of coins, and is prompted to use real money to buy more coins for the opportunity to keep playing the game.", "Hundreds of these games exist. The following table contains the 200 most popular games. 1 Slotomania™ Vegas Casino Slots 101 Lucky Play Casino Slots Games 2 Jackpot Party - Casino Slots 102 Vegas Downtown Slots & Words 3 DoubleDown™- Casino Slots Game 103 Slots-Fortune 777 Classic Slot Playtika Santa Monica, LLCBingo Blitz™ - Bingo 4 Games 104 Gambino Slots Wheel of Fortune 5 Cashman Casino Las Vegas Slots 105 mychoice casino jackpot slots 6 Cash Frenzy™ - Slots Casino 106 FoxwoodsONLINE 7 World Series of Poker - WSOP 107 Gold Fortune Casino 8 Heart of Vegas Slots-Casino 108 GSN Grand Casino: Slots Games 9 POP! Slots ™ Live Vegas Casino 109 Take5 Casino - Slot Machines 10 House of Fun™ - Casino Slots 110 Bid Wars: Pawn Empire 11 Lightning Link Slots-Casino 111 Slots Master-Vegas Casino Game 12 Big Fish Casino: Slots & Games 112 Slots of Vegas 13 DoubleU Casino: Vegas Slots 113 Slingo Arcade - Bingo & Slots 14 Huuuge Casino Slots Vegas 777 114 PokerStars Play – Texas Holdem 15 VEGAS Slots – Casino Slots 115 Blazing 7s Casino: Slots Games 16 Caesars® Casino: Vegas Slots 116 Mystic Slots: Fun Casino Games 17 Jackpot Magic Slots™ & Casino 117 Lucky City™ - 3D Slot Machine 18 Lotsa Slots: Casino SLOTS 118 Governor of Poker 3 - Friends 19 Hit it Rich!", "Lucky Vegas Slot 119 Casino Roulette: Roulettist 20 my KONAMI - Real Vegas Slots 120 Seminole Social Casino 21 Bingo Party! Lucky Bingo Games 121 Blackjack⋅ 22 Zynga Poker - Texas Holdem 122 Tap Poker Social 23 Wizard of Oz: Casino Slots 123 Slots-Heart of Diamonds Casino 24 Quick Hit Slots - Casino Games 124 Triple Win Slots-Vegas Casino 25 Jackpot Mania™ - DAFU Casino 125 Texas Holdem - Scatter Poker 26 Game of Thrones Slots Casino 126 MONOPOLY Bingo! 27 Gold Fish Casino Slots Games 127 San Manuel Slots 28 Cash Tornado Slots - Casino 128 Wheel of Fortune Slots 29 Scatter Slots - Vegas Casino 129 Ultimate Slots: Casino Slots 30 Billionaire Casino Slots 777 130 Lucky Slots: Vegas Casino 5 Case 2:20-cv-01652-AMM Document 1 Filed 10/21/20 Page 6 of 17 31 Double Win Slots Casino Game 131 Stardust Casino™ Slots - Vegas 32 Texas Hold'em Poker: Pokerist 132 Slots of Vegas - Slot Machine 33 Bingo Journey - Classic Bingo 133 Xtreme Slots 34 Bingo Bash: Online Bingo Games 134 Video Poker Deluxe Casino 35 Bingo Story Live Bingo Games 135 Win Vegas Slots Casino: Nascar 36 Willy Wonka Slots Vegas Casino 136 Bid Wars: Storage Auctions 37 Poker Face - Live Texas Holdem 137 Coin Trip 38 Classic Casino Slots Games 138 Royal Slot Machine Games 39 GSN Casino: Slot Machine Games 139 World Poker Tour - PlayWPT 40 Bingo Pop - Bingo Games 140 Absolute Bingo! Play Fun Games 41 88 Fortunes Slots Casino Games 141 Bingo Holiday - BINGO Games 42 MONOPOLY Slots - Casino Games 142 Vegas Slots - Slot Machines!", "43 Vegas Live Slots Casino 143 Solitaire 44 Ignite Classic Slots 144 Video Poker Games 45 Hot Shot Casino - Slots Games 145 Slots™ 46 Wynn Slots - Las Vegas Casino 146 Sanh Rong - Game danh bai 47 Wild Classic Slots™ Casino 147 Slot Bonanza- 777 Vegas casino 48 Slots - Classic Vegas Casino 148 HighRoller Vegas: Casino Slots 49 Slot Machines 777 - Slots Era 149 Video Poker by Ruby Seven 50 Club Vegas Slots: Casino 777 150 Slots Craze: Casino Games 2020 51 Blackjack 21: Blackjackist 151 VIP Poker - Texas Holdem 52 Tycoon Casino™ - Vegas Slots 152 Cash Dozer: Lucky Coin Pusher 53 Double Hit Casino: Vegas Slots 153 VIP Deluxe Slot Machine Games 54 Bingo Showdown -> Bingo Live! 154 Vegas Slots: Deluxe Casino 55 Rock N' Cash Casino Slots 155 Casino Frenzy-Fantastic Slots 56 Winning Slots Las Vegas Casino 156 Video Poker - Classic Games 57 Cash Mania - Casino Slots 157 Epic Diamond Slots: Casino Fun 58 Slots GoldenHoYeah-Casino Slot 158 Ellen's Road to Riches Slots 59 Huge Win!", "Classic Slots Game 159 Empire City Casino Slots 60 Slots DoubleDown Fort Knox 160 Diamond Sky: Slots & Lottery 61 Casino Games - Infinity Slots 161 Poker Night in America 62 Backgammon - Lord of the Board 162 Slots - Pharaoh's Way 63 Double Rich！Vegas Casino Slots 163 HOLD'EM OR FOLD'EM 64 Pokerrrr 2- Holdem, OFC, Omaha 164 Slingo Adventure 65 Poker Heat: Texas Holdem Poker 165 Dragon King Fishing Online 66 Golden Casino - Vegas Slots 166 Baba Wild Slots - Vegas Casino 67 Blackjack 21 - HOB 167 Royal Slots:Slot Machine Games 68 High 5 Casino: Home of Slots 168 Praia Bingo - Bingo Games 69 Show Me Vegas Slots Casino App 169 Bingo Infinity 70 Texas Poker: Pokerist Pro 170 Vegas Craps by Pokerist 71 Texas Holdem Poker 171 Real Casino Slots 72 Billion Cash Slots-Casino Game 172 Bonus of Vegas Slots Casino 73 Multi-Strike Poker™ 173 Hit 7 Casino : Vegas Slots 6 Case 2:20-cv-01652-AMM Document 1 Filed 10/21/20 Page 7 of 17 74 Vegas Slots - 7Heart Casino 174 Real Slots \| Best Bet Casino™ 75 DoubleDown Classic Slots 175 Fantasy Springs Slots \| Casino 76 Coin Dozer 176 Live Play Bingo 77 Mega Hit Poker: Texas Holdem 177 Blackjack 78 Hard Rock Social Casino 178 Teen Patti by Octro 79 Bingo！ 179 SpinToWin Slots & Sweepstakes 80 Viva Slots Vegas Slot Machines 180 Teen Patti Gold, Poker & Rummy 81 Bingo Frenzy: BINGO Cooking! 181 Texas Poker 82 Slots Casino - Jackpot Mania 182 Hard Rock Blackjack & Casino 83 Slots Casino: Vegas Slot Games 183 Vegas Nights Slots 84 Slots Games: Hot Vegas Casino 184 Lucky North Casino\|Slot Games 85 Magic Vegas Casino 185 Bingo!™ 86 Vegas Casino Slots - Mega Win 186 HD Poker: Texas Holdem 87 SLOTS - Black Diamond Casino 187 Cashmania Slots: Slot Games 88 Backgammon Live™ Board Game 188 Blackjack 21-World Tournament 89 The Walking Dead Casino Slots 189 Blackjack 21: Live Casino game 90 Jackpotjoy Slots: Vegas Casino 190 Super Jackpot Slots Casino 91 Old Vegas Classic Slots Casino 191 Keno 4 Multi Card 92 FaFaFa™ Gold Slots Casino 192 Binion's Casino 93 Lucky Time Slots™ Vegas Casino 193 Lottery Scratchers 94 Video Poker Classic - 39 Games 194 Fishing Casino - Ocean King 95 Stars Casino Slots 195 Bingo PartyLand: BINGO!", "& Spin 96 Clubillion™: casino slots game 196 GamePoint Bingo 97 Lucky Lottery Scratchers 197 American Scratchers Lottery 98 Bingo Drive: Play & Win Online 198 Ever Rich Slots 99 Abradoodle Bingo: Fun Bingo! 199 Keno Bonus Play 100 Cash Fever Slots™-Vegas Casino 200 Spider Solitaire: Card Game 11. Plaintiff Larsen downloaded and played two of these casino-style gambling games.", "Ms. Larsen downloaded Jackpot Party and Goldfish Casino Slots from the Apple App Store prior to January 2019. During that month, she began purchasing coins through the app so she could continue to play for a chance to win free coins that would enable her to enjoy the game(s) for a longer period of time. In the six months prior to the filing of this complaint, she paid $258.63 to Apple for the privilege of continuing to play the illegal gambling games. 7 Case 2:20-cv-01652-AMM Document 1 Filed 10/21/20 Page 8 of 17 12.", "A customer such as plaintiff does not have the ability to collect actual cash as a result of “winning” games, but he does have the ability to win and therefore acquire more playing time. Alabama’s gambling statutes make clear that paying money in a game for a chance to win more playing time constitutes illegal gambling under Alabama law. Section 13A-12-20(11) of the Alabama Code defines a “thing of value” for purposes of the state gambling laws as: Any money or property, any token, object or article exchangeable for money or property or any form of credit or promise directly or indirectly contemplating transfer of money or property or of any interest therein, or involving extension of a service entertainment or a privilege of playing at a game or scheme without charge. A game where a patron pays money for the chance to win more playing time without charge violates Alabama law. 13. Apple is not some minor or incidental participant in these illegal gambling games. It is the principal promoter and facilitator of the illegal activity. Apple maintains dictatorial control over what apps can be downloaded from the App Store, and the payment method to purchase in-app items.", "As the maker of the Fortnite game alleged in a recent antitrust injunction lawsuit against Apple: Apple also imposes unreasonable restraints and unlawfully maintains a total monopoly in the iOS In-App Payment Processing Market. Among the oppressive terms that app developers have to accept, Apple coerces all app developers who wish to use its App Store—the only means with which to distribute apps to iOS users—to use exclusively Apple’s own payment processing platform for all in-app purchases of in-app content. 8 Case 2:20-cv-01652-AMM Document 1 Filed 10/21/20 Page 9 of 17 Complaint for Injunctive Relief, Epic Games v. Apple, Inc., in the United States District Court for the Northern District of California, August 13, 2020 ¶ 10 (copy attached). As noted, Apple uses its unfettered control over apps played on iOS to extract a hefty 30% tax on all purchases made to buy apps or in-app content such as “coins” to gamble with. 14.", "Apple has the ability, which it has employed on other apps, to geo- restrict games so that they can only be played in certain states. In fact, with cash-out gambling games it regularly restricts those game so that they can only be played in states where that type of gambling is legal. Apple has also restricted gambling games such as the ones made the basis of this lawsuit so that minors cannot download or play them. It has the ability with existing technology it currently uses to prevent the games at issue here from being played in this state. 15. Apple’s App Store is not just a venue to buy iOS apps. It is a promotional tool. Apple heavily promotes apps, such as the illegal gambling games that form the basis of this complaint, that promise to bring in revenue. Revenue from the App Store is the reason Apple is the most valuable company on the planet.", "16. Thus, Apple enables, permits, promotes, and profits from illegal gambling. 9 Case 2:20-cv-01652-AMM Document 1 Filed 10/21/20 Page 10 of 17 ALABAMA LEGAL FRAMEWORK 17. Alabama has a strong public policy against gambling in this state. The state’s strong public policy against gambling includes a statutory right of persons who spend money on gambling to recover their money. 18. The Alabama criminal laws pertaining to gambling are codified at Sections 13A-12-20 through 13A-12-92 of the Code of Alabama, 1975. Section 13A-12-22(a) states “A person commits the crime of promoting gambling if he knowingly advances or profits from unlawful gambling activity otherwise than as a player.” Section 13A-12-23 adds: “A person commits the crime of conspiracy to promote gambling if he conspires to advance.", "or profit from gambling activity otherwise than as a player.” Gambling, in turn, is defined as follows: “A person engages in gambling if he stakes or risks something of value upon the outcome of a contest of chance or a future contingent event not under his control or influence, upon an agreement or understanding that he or someone else will receive something of value in the event of a certain outcome.” Ala. Code § 13A-12-20(4). 19. As already noted, “something of value” is not limited under Alabama law to the situation where one gambles in the hopes of winning actual cash money. Rather, “something of value” specifically includes “extension of a service entertainment or a privilege of playing at a game or scheme without charge.” As a matter of law, paying money to get “coins” one bets hoping to win more “coins” so 10 Case 2:20-cv-01652-AMM Document 1 Filed 10/21/20 Page 11 of 17 as to gain the “privilege of playing at a game or scheme without charge” is gambling a thing of value under Alabama law. 20.", "As to the prohibition of “promoting” gambling in Section 13A-12- 22(a), the statute states that a person “advances gambling activity if he or she “engages in conduct that materially aids any form of gambling activity.” By promoting, receiving the proceeds, approving and profiting from the illegal gambling games, Apple “materially aids” illegal gambling proceeds. Since Apple directly promoted gambling, it is also guilty of conspiring to promote gambling under Section 13A-12-23. 21. Alabama provides a statutory civil cause of action to recover money paid and lost due to gambling. Section 8-1-150(a) of the Code of Alabama provides: All contracts founded in whole or in part on a gambling consideration are void. Any person who has paid any money or delivered any thing of value lost upon any game or wager may recover such money, thing, or its value by an action commenced within six months from the time of such payment or delivery.", "CLASS ALLEGATIONS 22. Plaintiff seeks to certify and represent a class pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure. The class sought to be certified is: All Alabama residents who downloaded, played, and paid money for additional coins within games from the Apple App Store that featured slots, roulette, blackjack, poker, keno, craps, and other kinds of casino- style gambling games, bingo, or simulations thereof, where the player had a chance to win coins or other means to play for additional periods of time, during a period commencing six months before the filing of 11 Case 2:20-cv-01652-AMM Document 1 Filed 10/21/20 Page 12 of 17 this complaint and continuing to a date to be set by the Court following certification. All employees of the Court, and plaintiff’s counsel and their families are excluded.", "23. This class action satisfies the numerosity requirement of Rule 23(a)(1) because joinder of all members of the plaintiff class is impracticable. There are thousands of Alabama residents who are members of the class. 24. It also satisfies the commonality requirement of Rule 23(a)(2) because there are central questions of fact and law that are common to the class. Such common questions include, at a minimum, (a) whether these virtually identical gambling games sold through the App Store violate Alabama’s prohibition of illegal gambling; (b) whether gambling for additional play-time is a thing of value under Alabama law; (c) whether Apple promoted gambling through its participation in the sale of in-app purchases through the App Store; (d) whether Apple participated in a conspiracy to promote gambling; and (e) whether plaintiff and the class members are entitled to recover their money pursuant to Section 8-1-150 of the Code of Alabama. 25. The proposed class satisfies the typicality requirement of Rule 23(a)(3) because the named plaintiff’s claims are typical of the claims of the class members.", "Both plaintiff and the class members lost money in an effort to win additional play- time on these illegal gambling games. 12 Case 2:20-cv-01652-AMM Document 1 Filed 10/21/20 Page 13 of 17 26. The named plaintiff will fairly and adequately represent the interests of the class pursuant to Rule 23(a)(4). Plaintiff has no interests that conflict with the interests of the class. Furthermore, plaintiff has retained competent and experienced counsel with decades of experience litigating class cases. 27. Plaintiff seeks certification of a class pursuant to Rule 23(b)(3), which allows class treatment of a claim where: (3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.", "The matters pertinent to these findings include: (A) the class members' interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action. 28. The common questions of law and fact in this case vastly predominate over any individual issues affecting only individual class members. The only individual issue presented by these class members is the exact amount of money damages to which each class member is entitled.", "Such damages issues are routinely held not to predominate over common questions in cases like this. Indeed, the 13 Case 2:20-cv-01652-AMM Document 1 Filed 10/21/20 Page 14 of 17 individual damages issues will be quickly and accurately determined by examining Apple’s own records. 29. Class treatment is by far superior to individual litigation as a fair and efficient way to adjudicate this controversy. Given the relatively small individual amounts at issue, it unlikely whether there would be any adjudication at all without use of the class device.", "No individual class member would rationally commence and prosecute a lawsuit where the individual amount in controversy likely would not exceed the filing fees. 30. For this reason, none of the class members have any interest in controlling the prosecution of separate actions. 31. Likewise, to our knowledge, no class member has already commenced an action concerning this controversy. 32. It would much more desirable to concentrate this case in one action rather than allow the prosecution of individual actions because, as noted, such individual actions would likely never be filed because there would be no motivation for any individual class member to file an individual suit. 33. We foresee no particular difficulties in managing this case as a class action because 100% of the necessary information to compensate the individual class members is contained in Apple’s own records concerning purchases made through the App Store.", "14 Case 2:20-cv-01652-AMM Document 1 Filed 10/21/20 Page 15 of 17 CAUSE OF ACTION 33. Plaintiff, on her own behalf and on behalf of those similarly situated, seek recovery of all sums paid through in-app purchases in these games made through Apple’s App Store pursuant to Section 8-1-150(a) of the Coode of Alabama, 1975. PRAYER FOR RELIEF WHEREFORE, the premises considered, plaintiff asks the Court to: 1. Take jurisdiction of this cause; 2. Following discovery, certify this case as a class action pursuant to Rule 23(b)(3); 3. Appoint the undersigned as Class Counsel and the named plaintiff as class representative; 4. Enter a final judgment against Apple awarding plaintiff and the class members a refund of all money paid through the illegal gambling games described herein; 5.", "Award Class Counsel reasonable attorneys’ fees and expenses to be paid out of the judgment in favor of the class; 6. Award the named plaintiff a reasonable sum of money for her services in this case on behalf of the class, also to be paid out of the judgment in favor of the class; 15 Case 2:20-cv-01652-AMM Document 1 Filed 10/21/20 Page 16 of 17 7. Award interest and costs; and 8. Award any other relief to which the Court finds plaintiff and the class are entitled. Respectfully submitted this 21st day of October, 2020 /s/ John E. Norris John E. Norris (NOR041) Attorney for Plaintiff OF COUNSEL: D. Frank Davis (DAV009) John E. Norris (NOR041) Wesley W. Barnett (BAR141) Dargan M. Ware (WAR089) DAVIS & NORRIS, LLP 2154 Highland Avenue South Birmingham, Alabama 35205 Telephone: 205.930.9900 Facsimile: 205.930.9989 fdavis@davisnorris.com jnorris@davisnorris.com wbarnett@davisnorris.com dware@davisnorris.com 16 Case 2:20-cv-01652-AMM Document 1 Filed 10/21/20 Page 17 of 17 17" ]	https://www.courtlistener.com/api/rest/v3/recap-documents/149675132/	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
No Foreign Priority Applicants have not made a claim for foreign priority under 35 U.S.C. 119 (a)-(d) of (f). Accordingly, the previous acknowledgment (Office Action of July 16, 2021) of a claim for foreign priority and that the certified copy had been filed in parent Application No. 15/556,690 was an error. The examiner regrets and apologizes for any confusion this may have caused Applicants. Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to Ana L Woodward whose telephone number is (571)272-1082. The examiner can normally be reached M-F 8am-5pm. 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, Angela Brown-Pettigrew can be reached on 571-272-2817. 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. /ANA L. WOODWARD/Primary Examiner, Art Unit 1765	2022-02-17T15:30:58	[ "No Foreign Priority Applicants have not made a claim for foreign priority under 35 U.S.C. 119 (a)-(d) of (f). Accordingly, the previous acknowledgment (Office Action of July 16, 2021) of a claim for foreign priority and that the certified copy had been filed in parent Application No. 15/556,690 was an error. The examiner regrets and apologizes for any confusion this may have caused Applicants. Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to Ana L Woodward whose telephone number is (571)272-1082. The examiner can normally be reached M-F 8am-5pm. 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, Angela Brown-Pettigrew can be reached on 571-272-2817. 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. /ANA L. WOODWARD/Primary Examiner, Art Unit 1765" ]	https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-02-20.zip	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
Citation Nr: 0929691 Decision Date: 08/07/09 Archive Date: 08/14/09 DOCKET NO. 00-19 188 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to an effective date earlier than June 9, 1999, for service connection for recurrent subluxation of the right knee. 2. Entitlement to an effective date earlier than June 9, 1999, for service connection for chronic right knee strain with early degenerative joint disease. 3. Entitlement to an effective date earlier than June 9, 1999, for service connection for recurrent subluxation of the left knee. 4. Entitlement to an effective date earlier than June 9, 1999, for service connection for left knee strain with early degenerative arthritis and patellofemoral syndrome. 5. Entitlement to an initial rating greater than 30 percent for recurrent subluxation of the right knee. 6. Entitlement to an initial rating greater than 30 percent for recurrent subluxation of the left knee. 7. Entitlement to an initial rating greater than 10 percent for chronic right knee strain with early degenerative joint disease. 8. Entitlement to an initial rating greater than 10 percent for left knee strain with early degenerative arthritis and patellofemoral syndrome. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD W. R. Harryman, Counsel INTRODUCTION The Veteran served on active duty from January 1974 to August 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2001 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Following an October 2003 remand, the Board denied the Veteran's claims in an August 2005 decision. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court), and, in September 2006, the Veteran, through his representative, and the Secretary of Veterans Appeals (Secretary) filed a Joint Motion to partially vacate and remand the Board's decision. That motion was granted in a September 2006 Court Order. In the August 2005 decision, the Board also granted a separate 10 percent evaluation for a left knee disorder on the basis of extension limited to 10 degrees. In the Joint Motion, however, the Veteran's representative and the Secretary emphasized that that determination was not among the matters addressed in their appeal, and it will not be further considered in this Board action. The Board remanded the case in March 2007 for further procedural and evidentiary development. That development has been completed and the case is again before the Board for final appellate consideration. FINDINGS OF FACT 1. The greater weight of the evidence shows that the Veteran first filed a claim for service connection for his bilateral knee disabilities on June 9, 1999. 2. Recurrent subluxation of the Veteran's right knee has produced severe impairment throughout the appeal period. 3. The demonstrated impairment due to recurrent subluxation of the Veteran's right knee does not present an exceptional or unusual disability picture such that the schedular evaluations are inadequate. 4. Recurrent subluxation of the Veteran's left knee has produced severe impairment throughout the appeal period. 5. Impairment due to recurrent subluxation of the Veteran's left knee does not present an exceptional or unusual disability picture such that the schedular evaluations are inadequate. 6. The greater weight of the evidence shows that flexion of the right knee has been limited to no less than 90 degrees at any time during the appeal period, even considering limitation due to pain. 7. The greater weight of the evidence shows that flexion of the left knee has been limited to no less than 80 degrees at any time during the appeal period, even considering limitation due to pain. 8. No examiner has reported any additional functional limitation due to pain, weakness, fatigability, or incoordination on repeated use of either of the Veteran's knees. 9. Impairment due to limitation of flexion of the Veteran's right knee does not present an exceptional or unusual disability picture such that the schedular evaluations are inadequate. 10. Impairment due to limitation of flexion of the Veteran's left knee does not present an exceptional or unusual disability picture such that the schedular evaluations are inadequate. 11. The Veteran's reports of the degree of increased limitation of flexion of his knees during flares are not credible. CONCLUSIONS OF LAW 1. The criteria are not met for an effective date earlier than June 9, 1999, for service connection for recurrent subluxation of the right knee. 38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. § 3.400 (2008). 2. The criteria are not met for an effective date earlier than June 9, 1999, for service connection for chronic right knee strain with early degenerative joint disease. 38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. § 3.400 (2008). 3. The criteria are not met for an effective date earlier than June 9, 1999, for service connection for recurrent subluxation of the left knee. 38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. § 3.400 (2008). 4. The criteria are not met for an effective date earlier than June 9, 1999, for service connection for chronic left knee strain with early degenerative joint disease. 38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. § 3.400 (2008). 5. The criteria are not met for an initial rating greater than 30 percent for recurrent subluxation of the right knee. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, and 4.71a, Code 5257 (2008). 6. The criteria are not met for an initial rating greater than 30 percent for recurrent subluxation of the left knee. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, and 4.71a, Code 5257 (2008). 7. The criteria are not met for an initial rating greater than 10 percent for chronic right knee strain with early degenerative joint disease. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, and 4.71a, Code 5260 (2008). 8. The criteria are not met for an initial rating greater than 10 percent for left knee strain with early degenerative arthritis and patellofemoral syndrome. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, and 4.71a, Code 5260 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Analysis Earlier effective dates The Veteran contends that an effective date prior to June 9, 1999, is warranted for the grant of service connection for each of his bilateral knee disabilities. The law provides that the effective date for an award of service connection shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2). The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r) (2008). "Claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication indicating intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a) (2008). The Veteran asserts in his testimony and written statements that the proper effective date should be prior to June 9, 1999. He testified before the undersigned Judge that he originally applied for VA compensation for his knees in September 1979 in Coral Gables, Florida. He stated that VA told him that he was missing in action, that VA had no records of him, and that he should correct this problem with the Department of Defense. The Veteran further asserted that the last four digits of his Social Security number listed by VA were incorrect and this was why VA did not have him listed as a veteran. He testified that VA requested verification of his DD Form 214 at that time and that he also applied, and was accepted for, educational benefits from VA. In support of his claim, the Veteran submitted two written statements from laypersons H.G. and the Veteran's ex-wife. Both indicated that the Veteran filed for VA claims in 1979. The Veteran's ex-wife further noted that he again contacted VA about receiving compensation in 1984. Upon review, there is no written communication in the record between the Veteran and VA demonstrating in any way that he applied for compensation benefits for his knees prior to June 9, 1999. All the records received by VA pertaining to the Veteran's bilateral knee problems were received on or after June 9, 1999, the date he filed his claim for service connection. The Joint Motion noted that the Veteran's claims file was "rebuilt" in 1999 and contained no records or information prior to receipt of his June 1999 claim for VA disability compensation benefits. It was also noted that the Veteran testified at his Board hearing that he had applied for and had been granted VA education benefits in 1979. The Joint Motion indicated that VA had not complied with its duty to assist the Veteran by attempting to locate or account for his VA education benefits file or electronic record of any such prior claims. In May 2007, the RO issued a Memorandum stating that all efforts to locate the Veteran's Education File and all information regarding education benefits had been exhausted, and that any further attempt to obtain such records was futile. Accordingly, no education file or education benefits records for the Veteran are available. Significantly, however, in his VA Application for Compensation form, received June 9, 1999, the Veteran specifically checked "none" when asked if he had previously filed a claim for any benefit with VA. The assertions made by the Veteran, and the supporting lay statements to the effect that he applied for VA compensation benefits prior to June 9, 1999, are contradicted by his own original application for compensation received June 9, 1999. The Board gives great weight to that fact. Considering all of the above evidence, the Board finds that the preponderance of that evidence weighs against a finding that the Veteran submitted a claim for service connection for a knee disability at any time prior to June 9, 1999. The lack of written evidence of any application for VA compensation benefits prior to June 9, 1999, coupled with the Veteran's own statements made in the June 9, 1999, VA Application for Compensation form, outweigh his later statements and the lay statements on his behalf. Accordingly, the Board finds that the Veteran did not file, or indicate an intent to file, a claim for service connection for his knee disabilities prior to June 9, 1999. Because no claim for service connection was received prior to June 9, 1999, applicable law mandates that the effective date for the award of service connection for each of the Veteran's four separately rated knee disabilities cannot be earlier than June 9, 1999. See 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. Therefore, because the RO has assigned June 9, 1999, as the effective date for the award of service connection for each of the Veteran's knees disabilities, the claims for an earlier effective date must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the current appeal. 38 U.S.C.A. 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1991); Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Greater ratings Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Arthritis is rated on the basis of the extent of limitation of motion it causes. Codes 5003 and 5010. Limitation of flexion of the leg to 60 degrees warrants a 0 percent evaluation. A 10 percent rating requires that flexion be limited to 45 degrees. A 20 percent evaluation requires that flexion be limited to 30 degrees. A 30 percent evaluation requires that flexion be limited to 15 degrees. Code 5260. Other impairment of the knee, with recurrent subluxation or lateral instability, warrants a 20 percent rating if the impairment is moderate and a 10 percent evaluation if the impairment is slight. Code 5257. In evaluating the Veteran's claims, the Board must consider whether a higher disability evaluation is warranted on the basis of functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40, 4.45, and 4.59; see DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. A part that becomes painful on use must be regarded as seriously disabled. Regarding the joints, factors to be evaluated include more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 38 C.F.R. § 4.45(f). The intent of the schedule is to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Upon review, private medical records show that the Veteran had right knee surgery in 1983 and was diagnosed with degenerative joint disease of both knees in December 1995 and again in March 1997. The examiner in March 1997 indicated that the Veteran was complaining of severe continuous pain in both knees. On examination in March 1997, there was marked tenderness of both patellae and marked medial joint line tenderness, with mild effusions. Range of motion of both knees was described as "good." The Veteran received a steroid injection into each knee. A VA examination report dated in April 2000 indicated that the Veteran had prior knee surgery, most recently right knee surgery in 1983 to remove or shave part of his patella. Range of motion testing of the right knee showed flexion to 110 degrees with mild discomfort. An X-ray report dated in April 2000 noted normal knees. At the time of a VA compensation examination in February 2001, the Veteran reported complaints of left knee pain along the medial joint line, and frequent complaints of stiffness and popping, especially increased during physical activities such as walking up and down stairs or prolonged standing or sitting. He also reported occasional swelling, although no swelling was noted on examination. On range of motion testing of the left knee, the Veteran was able to voluntarily flex the knee to 120 degrees, at which point he complained of discomfort along the medial joint line. The Veteran reported a 30 percent reduction in range of flexion during a flare-up, which he stated occurred 3 times a week. For the right knee, the Veteran reported discomfort with prolonged standing and sitting. He also indicated that his right and left knee conditions were equally severe and both caused a degree of daily discomfort. Range of motion of the right knee showed flexion to 115 degrees. The Veteran indicated a 30 percent reduction in range of flexion during a flare-up. MRIs of both knees in June 2001 showed a minute amount of effusion and moderate thinning of the tibial cartilage consistent with early degenerative joint disease. The next range of motion testing in the record is from an August 2004 VA examination report. The examiner indicated that the Veteran complained of pain in both of his knees at about the same level, and that the pain was constant. He reported that he had flare-ups with wet weather and estimated a change in range of movement with flare-up to 25 percent. The examiner reported that the Veteran performed range of motion testing while leaning on two chairs and while expressing a lot of discomfort and pain during the testing. Flexion of the left knee was possible to 80 degrees and to 90 degrees for the right knee. The examiner noted crepitation during range of movement testing. The examiner explicitly wrote that there was no additional range of motion loss due to pain, fatigue, weakness, or lack of endurance following repetitive use. The Veteran was seen in the VA orthopedic clinic in September 2004 complaining of pain in both knees. He indicated that his knees ached all the time, worse toward the end of the day. He stated that he had to wear knee braces to get about. On examination, there was no effusion in either knee, but the examiner noted that the Veteran was very tender about both patellae. There was a positive apprehension sign bilaterally, as well as a tendency to subluxate both patellae on both flexion and extension. But there was no instability or positive anterior or posterior drawer. The examiner stated that tracking problems were the main problem with the Veteran's knees. Another VA orthopedic compensation examination was conducted in November 2007. The Veteran indicated that he had chronic bilateral knee pain that he rated 8 to 10 on a scale of 0-10. He stated he would take naproxen once a day and oxycodone at least twice a day for his symptoms. He reported that he would have flare-ups of increased pain in his knees with temperature or weather changes. Further, his range of motion would change from 15 percent to zero percent - in other words, during a flare-up he would be unable to move his knees. He also indicated that his knees tended to lock up at times. The Veteran stated that he would wear braces on his knees when he could get them on under his pants, although he was not wearing them on the day of the examination; he did not use a cane. He indicated that sometimes he could go up and down steps; he could not run and could not stand more than 10 minutes at a time or walk 50 feet without having to stop and rest. He could not squat and could rarely kneel. Repetitive use of his knees in a warm temperature, as in a pool, seemed to help his symptoms. Examination of the right knee showed no swelling or redness. There was tenderness to palpation over the medial joint line. The examiner noted that the Veteran would have frequent spasms and would jerk his knees. No instability of the right knee was detected; there was moderate crepitus. Flexion of the right knee produced pain at 95 degrees, but he was able to flex it further to 105 degrees. Three repetitions produced no additional loss of range of motion. Examination of the left knee produced similar results: flexion produced pain at 85 degrees, with further flexion possible to 115 degrees. Again, repetitive movement produced no additional loss of range of motion due to pain, fatigue, weakness, or incoordination. The examiner commented that the Veteran's symptoms were out of proportion to the noted physical findings. Finally, one more VA compensation examination was conducted in February 2009, in particular to obtain a medical opinion as to whether the Veteran would experience effective ankylosis of his knees during flare-ups. The Veteran reported having bilateral knee pain that he described as throbbing and regularly 6/10 on the pain scale. He also reported occasional thigh and calf muscle spasms and swelling of his knees. He indicated he could walk 250 feet or stand for two hours before having to rest, although taking just two steps on an incline produced additional pain. The Veteran stated he wore braces on his knees approximately two days a week, and sometimes used a cane or walker. He reported that he took tramadol daily for discomfort. He also indicated that he would have flares approximately three times a week, caused by the weather becoming too cold, standing too long, climbing more than two stairs at a time, or squatting. The Veteran noted that the flares would be improved by heat alternating with cold, using an electric blanket, and taking tramadol and oxycodone with Tylenol, as well as lying on a bed. The flares would reportedly last approximately three hours, with 10/10 pain. In addition, he would have muscle spasms and subjective weakness in the knee areas with the flares. Further, with the flares, he would not be able to flex his knees beyond 20 degrees, with severe pain. The Veteran stated that, if that happened away from his house, he would have to call his wife or friends to carry him home and place him in bed. The examiner noted that he walked to the examination room without any cane or assistive device or braces, and had a good pace to his walk, although he did favor his right leg "extremely slightly." On examination, the right knee appeared normal, without effusion. The patellar area was slightly tender on lateral movement. The joint line was nontender and there was no laxity. Flexion was accomplished to 100 degrees, with pain beginning at 90 degrees. There was some movement of the patella laterally, which also caused some discomfort. There was mild crepitance on range of motion of the patella. There was no additional weakness, fatigability, incoordination, additional restriction of motion, or functional impairment against resistance three times. Examination of the left knee showed normal appearance. There was no tenderness to palpation and no laxity. Flexion was possible to 115 degrees, with "light tenderness" beginning at 90 degrees. There was no additional weakness, fatigability, incoordination, additional restriction of motion, or functional impairment against resistance three times. The Veteran indicated that the discomfort he experienced in his knees during testing was glove-like around the patellae. The examiner reported that no ankylosis was found in either knee. He also noted that the Veteran did not have a flare during the examination, so no evaluation during a flare could be performed. Finally, the examiner commented that he did not observe any inappropriate behavior and the Veteran's symptoms did not appear out of proportion to the physical findings. VA clinic records dated from September 2004 through May 2008 and the records of several private hospitalizations in 2007 are silent for any knee complaints or pertinent clinical findings regarding the Veteran's knees. Evaluating the knee disabilities based on subluxation first, the Board observes that no examiner prior to the September 2004 examination had reported any subluxation. That examiner noted that the right patella "tends to deviate a bit laterally," and that tracking problems were the Veteran's main problems with his knees. Significantly, no subsequent examiner has reported any such subluxation or tracking problems. As set forth above, a 30 percent rating is to be assigned for severe impairment due to subluxation or lateral instability. Further, a 30 percent rating is the maximum allowed under Code 5257. Moreover, a 30 percent rating has been in effect for subluxation of each knee throughout the appeal period. Therefore, no higher schedular rating may be assigned on that basis. However, the regulations also provide for assignment of an extraschedular rating in cases where the record shows that a disability has caused marked interference with employment beyond that contemplated by the rating schedule, necessitated frequent periods of hospitalization, or otherwise rendered impractical the application of the regular schedular standards utilized to evaluate the severity of the disability. 38 C.F.R. § 3.321(b)(1). The record shows that the Veteran has been determined to be totally disabled by the Social Security Administration (SSA). An SSA Administrative Law Judge (ALJ) found in April 2001 that the Veteran continued to be totally disabled due to the effects of left eye blindness, chronic obstructive pulmonary disease, chronic asthma, hypertension, rheumatoid arthritis, chronic headaches, degenerative disc disease with radicular low back pain, cervical spine pain, and bilateral knee pain. While the ALJ did not state the relative degree of impairment due to each of the above disabilities, the treatment records indicate that, at least prior to the ALJ's decision, the Veteran's blindness and back disabilities were more troublesome to him than his other disabilities. In light of the scant medical evidence of significant subluxation in either knee, even considering the statement by the September 2004 examiner that tracking problems were the main problem with the Veteran's knees, the Board finds that none of the above factors for an extraschedular evaluation are shown and that the requirements for referral of the case for evaluation under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Therefore, an initial rating greater than 30 percent for recurrent subluxation of each knee must be denied. Turning next to the ratings based on limitation of flexion, the Board observes that no examiner has reported range of motion findings for flexion of either knee, even considering the point at which flexion is limited by pain, that meet the criteria for a 10 percent rating. However, a 10 percent rating has been in effect for each knee throughout the appeal period, apparently on the basis of the demonstrated painful motion, Nevertheless, the Joint Motion noted that the Board's August 2005 decision did not adequately discuss the possibility of the assignment of higher ratings based on additional impairment during flare-ups of symptoms in each knee. As set forth above, a 20 percent rating would require limitation of flexion to 30 degrees, whereas a 30 percent rating requires limitation of flexion to 15 degrees. A higher rating may be assigned for demonstrated ankylosis of the knee joint. Initially, the Board notes that no examiner has reported ankylosis in either knee, and the February 2009 VA examiner specifically indicated that no ankylosis was found. Further, no examiner has observed the Veteran during a flare-up, so the degree of limitation of flexion during such episodes has not been recorded by any examiner. Moreover, no examiner has reported any additional functional limitation due to pain, weakness, fatigability, or incoordination on repeated use. During the February 2001 VA compensation examination, the Veteran reported that he experienced a 30 percent reduction in range of motion during a flare-up. However, the examiner recorded 115-120 degrees of painless motion in each knee. So, a further 30 percent reduction during flares would result in limitation of flexion to no more than 80 degrees, far less limitation than the criteria for a 20 percent rating. In August 2004, the Veteran reported a 25 percent reduction in range of motion of his knees during flares. That examiner recorded 90 degrees of flexion for the right knee and 80 degrees of flexion for the left knee. A 25 percent further reduction during flares, as reported by the Veteran, would result in limitation of flexion to no more than 60 degrees, still far less than the criteria for a 20 percent rating. The November 2007 examiner recorded 95 degrees of flexion of the right knee before pain began and 85 degrees of painless flexion of the left knee. The Veteran reported to that examiner, however, that range of motion of his knees would change from 15 percent to zero percent during flares. But the examiner indicated that, he found the Veteran's reported symptoms to be out of proportion to the physical findings. The Board accords the examiner's opinion in this regard great weight. This finding calls into question the Veteran's credibility as to the reported severity of the degree of impairment he experienced during flare-ups. The Board observes that the VA examiner in February 2009 stated that the Veteran's symptoms did not appear to be out of proportion to the physical findings, which showed painless flexion to 90 degrees in each knee. While the Veteran reported to that examiner that he could not flex his knees beyond 20 degrees due to severe pain during flares, the examiner expressed no opinion regarding the actual additional impairment during a flare, since he did not examine the Veteran during a flare. It would seem reasonable to expect that, if the Veteran experienced incapacitating flares of pain in both of his knees multiple times a week, as he has reported, he would have complained about that pain to at least one examiner during the past five years. But the treatment records are devoid of complaints regarding the Veteran's knees since 2004. Therefore, the Board finds that his reports of the degree of increased limitation of flexion during flares are not credible. Accordingly, because the record contains no objective observation of the degree of increased impairment the Veteran may experience during flares, an increased rating cannot be assigned on this basis. Therefore, the Board finds that the criteria for a schedular rating greater than 10 percent based on limitation of flexion have not been met at any time during the appeal period. Further, as discussed above regarding ratings on the basis of subluxation, the record does not reflect that the Veteran's service-connected knee disabilities have caused marked interference with employment beyond that contemplated by the schedule for rating disabilities, necessitated frequent periods of hospitalization, or otherwise rendered impractical the application of the regular schedular standards utilized to evaluate the severity of the disability. In the absence of such factors, the requirements for referral of the case for evaluation for an extraschedular evaluation under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable in the current appeal. 38 U.S.C.A. 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1991); Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Therefore, the Board concludes that the criteria are not met for initial ratings greater than 10 percent for strain with early degenerative arthritis and patellofemoral syndrome in each knee. II. Duties to notify and to assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2008); 38 C.F.R. § 3.159(b) (2008); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. In the present case, VA satisfied its duty to notify by means of a July 2004 letter from the agency of original jurisdiction (AOJ) to the appellant. The letter informed the appellant of what evidence was required to substantiate his claims, and of his and VA's respective duties for obtaining evidence. The Board acknowledges that the required notice was not provided before the initial adverse decision in this case in March 2000. Although the appellant has the right to content- complying notice and proper subsequent VA process, he has received that notice. The error in not providing the required notice prior to the adverse decision was cured by the July 2004 letter, and so is harmless. Moreover, the appellant has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices, including at two hearing. Also, in May 2007, the RO notified the Veteran of the information and evidence necessary to establish the downstream elements of a rating and the effective date for a rating, as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity, including at two hearing, to participate effectively in the processing of his claim and appeal. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal. For an increased-compensation claim, § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Further, if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant's demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation - e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores, at 43-44. In an April 2008 letter, the RO provided the Veteran with specific notice concerning what needed to be shown to support higher disability evaluations in compliance with Vazquez- Flores, prior to supplemental statements of the case in June and September 2008 and in March 2009. The law also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c), (d) (2007). This "duty to assist" ordinarily contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody. In this case, the Board finds that the duty to assist has been fulfilled. During the course of this appeal, the Veteran has been afforded VA compensation examinations, and VA and private treatment records covering the entire period of the appeal have been received. No further development action is necessary. ORDER An effective date earlier than June 9, 1999, for service connection for recurrent subluxation of the right knee is denied. An effective date earlier than June 9, 1999, for service connection for chronic right knee strain with early degenerative joint disease is denied. An effective date earlier than June 9, 1999, for service connection for recurrent subluxation of the left knee is denied. An effective date earlier than June 9, 1999, for service connection for left knee strain with early degenerative arthritis and patellofemoral syndrome is denied. An initial rating greater than 30 percent for recurrent subluxation of the right knee is denied. An initial rating greater than 30 percent for recurrent subluxation of the left knee is denied. An initial rating greater than 10 percent for chronic right knee strain with early degenerative joint disease is denied. An initial rating greater than 10 percent for left knee strain with early degenerative arthritis and patellofemoral syndrome is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs	08-07-2009	[ "Citation Nr: 0929691 Decision Date: 08/07/09 Archive Date: 08/14/09 DOCKET NO. 00-19 188 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to an effective date earlier than June 9, 1999, for service connection for recurrent subluxation of the right knee. 2. Entitlement to an effective date earlier than June 9, 1999, for service connection for chronic right knee strain with early degenerative joint disease. 3. Entitlement to an effective date earlier than June 9, 1999, for service connection for recurrent subluxation of the left knee. 4. Entitlement to an effective date earlier than June 9, 1999, for service connection for left knee strain with early degenerative arthritis and patellofemoral syndrome. 5.", "Entitlement to an initial rating greater than 30 percent for recurrent subluxation of the right knee. 6. Entitlement to an initial rating greater than 30 percent for recurrent subluxation of the left knee. 7. Entitlement to an initial rating greater than 10 percent for chronic right knee strain with early degenerative joint disease. 8. Entitlement to an initial rating greater than 10 percent for left knee strain with early degenerative arthritis and patellofemoral syndrome. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD W. R. Harryman, Counsel INTRODUCTION The Veteran served on active duty from January 1974 to August 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2001 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Following an October 2003 remand, the Board denied the Veteran's claims in an August 2005 decision.", "The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court), and, in September 2006, the Veteran, through his representative, and the Secretary of Veterans Appeals (Secretary) filed a Joint Motion to partially vacate and remand the Board's decision. That motion was granted in a September 2006 Court Order. In the August 2005 decision, the Board also granted a separate 10 percent evaluation for a left knee disorder on the basis of extension limited to 10 degrees. In the Joint Motion, however, the Veteran's representative and the Secretary emphasized that that determination was not among the matters addressed in their appeal, and it will not be further considered in this Board action. The Board remanded the case in March 2007 for further procedural and evidentiary development. That development has been completed and the case is again before the Board for final appellate consideration.", "FINDINGS OF FACT 1. The greater weight of the evidence shows that the Veteran first filed a claim for service connection for his bilateral knee disabilities on June 9, 1999. 2. Recurrent subluxation of the Veteran's right knee has produced severe impairment throughout the appeal period. 3. The demonstrated impairment due to recurrent subluxation of the Veteran's right knee does not present an exceptional or unusual disability picture such that the schedular evaluations are inadequate. 4. Recurrent subluxation of the Veteran's left knee has produced severe impairment throughout the appeal period.", "5. Impairment due to recurrent subluxation of the Veteran's left knee does not present an exceptional or unusual disability picture such that the schedular evaluations are inadequate. 6. The greater weight of the evidence shows that flexion of the right knee has been limited to no less than 90 degrees at any time during the appeal period, even considering limitation due to pain. 7. The greater weight of the evidence shows that flexion of the left knee has been limited to no less than 80 degrees at any time during the appeal period, even considering limitation due to pain.", "8. No examiner has reported any additional functional limitation due to pain, weakness, fatigability, or incoordination on repeated use of either of the Veteran's knees. 9. Impairment due to limitation of flexion of the Veteran's right knee does not present an exceptional or unusual disability picture such that the schedular evaluations are inadequate. 10. Impairment due to limitation of flexion of the Veteran's left knee does not present an exceptional or unusual disability picture such that the schedular evaluations are inadequate. 11. The Veteran's reports of the degree of increased limitation of flexion of his knees during flares are not credible.", "CONCLUSIONS OF LAW 1. The criteria are not met for an effective date earlier than June 9, 1999, for service connection for recurrent subluxation of the right knee. 38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. § 3.400 (2008). 2. The criteria are not met for an effective date earlier than June 9, 1999, for service connection for chronic right knee strain with early degenerative joint disease.", "38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. § 3.400 (2008). 3. The criteria are not met for an effective date earlier than June 9, 1999, for service connection for recurrent subluxation of the left knee. 38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. § 3.400 (2008). 4. The criteria are not met for an effective date earlier than June 9, 1999, for service connection for chronic left knee strain with early degenerative joint disease. 38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. § 3.400 (2008). 5. The criteria are not met for an initial rating greater than 30 percent for recurrent subluxation of the right knee.", "38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, and 4.71a, Code 5257 (2008). 6. The criteria are not met for an initial rating greater than 30 percent for recurrent subluxation of the left knee. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, and 4.71a, Code 5257 (2008). 7. The criteria are not met for an initial rating greater than 10 percent for chronic right knee strain with early degenerative joint disease. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, and 4.71a, Code 5260 (2008). 8. The criteria are not met for an initial rating greater than 10 percent for left knee strain with early degenerative arthritis and patellofemoral syndrome.", "38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, and 4.71a, Code 5260 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Analysis Earlier effective dates The Veteran contends that an effective date prior to June 9, 1999, is warranted for the grant of service connection for each of his bilateral knee disabilities. The law provides that the effective date for an award of service connection shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2). The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r) (2008). \"Claim\" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet.", "App. 196, 199 (1992). Any communication indicating intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a) (2008). The Veteran asserts in his testimony and written statements that the proper effective date should be prior to June 9, 1999. He testified before the undersigned Judge that he originally applied for VA compensation for his knees in September 1979 in Coral Gables, Florida. He stated that VA told him that he was missing in action, that VA had no records of him, and that he should correct this problem with the Department of Defense. The Veteran further asserted that the last four digits of his Social Security number listed by VA were incorrect and this was why VA did not have him listed as a veteran.", "He testified that VA requested verification of his DD Form 214 at that time and that he also applied, and was accepted for, educational benefits from VA. In support of his claim, the Veteran submitted two written statements from laypersons H.G. and the Veteran's ex-wife. Both indicated that the Veteran filed for VA claims in 1979. The Veteran's ex-wife further noted that he again contacted VA about receiving compensation in 1984. Upon review, there is no written communication in the record between the Veteran and VA demonstrating in any way that he applied for compensation benefits for his knees prior to June 9, 1999.", "All the records received by VA pertaining to the Veteran's bilateral knee problems were received on or after June 9, 1999, the date he filed his claim for service connection. The Joint Motion noted that the Veteran's claims file was \"rebuilt\" in 1999 and contained no records or information prior to receipt of his June 1999 claim for VA disability compensation benefits. It was also noted that the Veteran testified at his Board hearing that he had applied for and had been granted VA education benefits in 1979. The Joint Motion indicated that VA had not complied with its duty to assist the Veteran by attempting to locate or account for his VA education benefits file or electronic record of any such prior claims.", "In May 2007, the RO issued a Memorandum stating that all efforts to locate the Veteran's Education File and all information regarding education benefits had been exhausted, and that any further attempt to obtain such records was futile. Accordingly, no education file or education benefits records for the Veteran are available. Significantly, however, in his VA Application for Compensation form, received June 9, 1999, the Veteran specifically checked \"none\" when asked if he had previously filed a claim for any benefit with VA.", "The assertions made by the Veteran, and the supporting lay statements to the effect that he applied for VA compensation benefits prior to June 9, 1999, are contradicted by his own original application for compensation received June 9, 1999. The Board gives great weight to that fact. Considering all of the above evidence, the Board finds that the preponderance of that evidence weighs against a finding that the Veteran submitted a claim for service connection for a knee disability at any time prior to June 9, 1999. The lack of written evidence of any application for VA compensation benefits prior to June 9, 1999, coupled with the Veteran's own statements made in the June 9, 1999, VA Application for Compensation form, outweigh his later statements and the lay statements on his behalf. Accordingly, the Board finds that the Veteran did not file, or indicate an intent to file, a claim for service connection for his knee disabilities prior to June 9, 1999. Because no claim for service connection was received prior to June 9, 1999, applicable law mandates that the effective date for the award of service connection for each of the Veteran's four separately rated knee disabilities cannot be earlier than June 9, 1999.", "See 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. Therefore, because the RO has assigned June 9, 1999, as the effective date for the award of service connection for each of the Veteran's knees disabilities, the claims for an earlier effective date must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the current appeal. 38 U.S.C.A. 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1991); Alemany v. Brown, 9 Vet. App. 518, 519 (1996).", "Greater ratings Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App.", "589, 594 (1991). However, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Arthritis is rated on the basis of the extent of limitation of motion it causes. Codes 5003 and 5010.", "Limitation of flexion of the leg to 60 degrees warrants a 0 percent evaluation. A 10 percent rating requires that flexion be limited to 45 degrees. A 20 percent evaluation requires that flexion be limited to 30 degrees. A 30 percent evaluation requires that flexion be limited to 15 degrees. Code 5260. Other impairment of the knee, with recurrent subluxation or lateral instability, warrants a 20 percent rating if the impairment is moderate and a 10 percent evaluation if the impairment is slight. Code 5257. In evaluating the Veteran's claims, the Board must consider whether a higher disability evaluation is warranted on the basis of functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40, 4.45, and 4.59; see DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain.", "38 C.F.R. § 4.40. A part that becomes painful on use must be regarded as seriously disabled. Regarding the joints, factors to be evaluated include more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 38 C.F.R. § 4.45(f). The intent of the schedule is to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Upon review, private medical records show that the Veteran had right knee surgery in 1983 and was diagnosed with degenerative joint disease of both knees in December 1995 and again in March 1997. The examiner in March 1997 indicated that the Veteran was complaining of severe continuous pain in both knees. On examination in March 1997, there was marked tenderness of both patellae and marked medial joint line tenderness, with mild effusions.", "Range of motion of both knees was described as \"good.\" The Veteran received a steroid injection into each knee. A VA examination report dated in April 2000 indicated that the Veteran had prior knee surgery, most recently right knee surgery in 1983 to remove or shave part of his patella. Range of motion testing of the right knee showed flexion to 110 degrees with mild discomfort. An X-ray report dated in April 2000 noted normal knees. At the time of a VA compensation examination in February 2001, the Veteran reported complaints of left knee pain along the medial joint line, and frequent complaints of stiffness and popping, especially increased during physical activities such as walking up and down stairs or prolonged standing or sitting.", "He also reported occasional swelling, although no swelling was noted on examination. On range of motion testing of the left knee, the Veteran was able to voluntarily flex the knee to 120 degrees, at which point he complained of discomfort along the medial joint line. The Veteran reported a 30 percent reduction in range of flexion during a flare-up, which he stated occurred 3 times a week. For the right knee, the Veteran reported discomfort with prolonged standing and sitting. He also indicated that his right and left knee conditions were equally severe and both caused a degree of daily discomfort.", "Range of motion of the right knee showed flexion to 115 degrees. The Veteran indicated a 30 percent reduction in range of flexion during a flare-up. MRIs of both knees in June 2001 showed a minute amount of effusion and moderate thinning of the tibial cartilage consistent with early degenerative joint disease. The next range of motion testing in the record is from an August 2004 VA examination report. The examiner indicated that the Veteran complained of pain in both of his knees at about the same level, and that the pain was constant. He reported that he had flare-ups with wet weather and estimated a change in range of movement with flare-up to 25 percent. The examiner reported that the Veteran performed range of motion testing while leaning on two chairs and while expressing a lot of discomfort and pain during the testing. Flexion of the left knee was possible to 80 degrees and to 90 degrees for the right knee.", "The examiner noted crepitation during range of movement testing. The examiner explicitly wrote that there was no additional range of motion loss due to pain, fatigue, weakness, or lack of endurance following repetitive use. The Veteran was seen in the VA orthopedic clinic in September 2004 complaining of pain in both knees. He indicated that his knees ached all the time, worse toward the end of the day. He stated that he had to wear knee braces to get about. On examination, there was no effusion in either knee, but the examiner noted that the Veteran was very tender about both patellae. There was a positive apprehension sign bilaterally, as well as a tendency to subluxate both patellae on both flexion and extension. But there was no instability or positive anterior or posterior drawer. The examiner stated that tracking problems were the main problem with the Veteran's knees. Another VA orthopedic compensation examination was conducted in November 2007. The Veteran indicated that he had chronic bilateral knee pain that he rated 8 to 10 on a scale of 0-10.", "He stated he would take naproxen once a day and oxycodone at least twice a day for his symptoms. He reported that he would have flare-ups of increased pain in his knees with temperature or weather changes. Further, his range of motion would change from 15 percent to zero percent - in other words, during a flare-up he would be unable to move his knees. He also indicated that his knees tended to lock up at times. The Veteran stated that he would wear braces on his knees when he could get them on under his pants, although he was not wearing them on the day of the examination; he did not use a cane.", "He indicated that sometimes he could go up and down steps; he could not run and could not stand more than 10 minutes at a time or walk 50 feet without having to stop and rest. He could not squat and could rarely kneel. Repetitive use of his knees in a warm temperature, as in a pool, seemed to help his symptoms. Examination of the right knee showed no swelling or redness.", "There was tenderness to palpation over the medial joint line. The examiner noted that the Veteran would have frequent spasms and would jerk his knees. No instability of the right knee was detected; there was moderate crepitus. Flexion of the right knee produced pain at 95 degrees, but he was able to flex it further to 105 degrees. Three repetitions produced no additional loss of range of motion. Examination of the left knee produced similar results: flexion produced pain at 85 degrees, with further flexion possible to 115 degrees. Again, repetitive movement produced no additional loss of range of motion due to pain, fatigue, weakness, or incoordination. The examiner commented that the Veteran's symptoms were out of proportion to the noted physical findings. Finally, one more VA compensation examination was conducted in February 2009, in particular to obtain a medical opinion as to whether the Veteran would experience effective ankylosis of his knees during flare-ups. The Veteran reported having bilateral knee pain that he described as throbbing and regularly 6/10 on the pain scale. He also reported occasional thigh and calf muscle spasms and swelling of his knees. He indicated he could walk 250 feet or stand for two hours before having to rest, although taking just two steps on an incline produced additional pain. The Veteran stated he wore braces on his knees approximately two days a week, and sometimes used a cane or walker.", "He reported that he took tramadol daily for discomfort. He also indicated that he would have flares approximately three times a week, caused by the weather becoming too cold, standing too long, climbing more than two stairs at a time, or squatting. The Veteran noted that the flares would be improved by heat alternating with cold, using an electric blanket, and taking tramadol and oxycodone with Tylenol, as well as lying on a bed. The flares would reportedly last approximately three hours, with 10/10 pain. In addition, he would have muscle spasms and subjective weakness in the knee areas with the flares. Further, with the flares, he would not be able to flex his knees beyond 20 degrees, with severe pain. The Veteran stated that, if that happened away from his house, he would have to call his wife or friends to carry him home and place him in bed.", "The examiner noted that he walked to the examination room without any cane or assistive device or braces, and had a good pace to his walk, although he did favor his right leg \"extremely slightly.\" On examination, the right knee appeared normal, without effusion. The patellar area was slightly tender on lateral movement. The joint line was nontender and there was no laxity. Flexion was accomplished to 100 degrees, with pain beginning at 90 degrees. There was some movement of the patella laterally, which also caused some discomfort. There was mild crepitance on range of motion of the patella. There was no additional weakness, fatigability, incoordination, additional restriction of motion, or functional impairment against resistance three times. Examination of the left knee showed normal appearance. There was no tenderness to palpation and no laxity.", "Flexion was possible to 115 degrees, with \"light tenderness\" beginning at 90 degrees. There was no additional weakness, fatigability, incoordination, additional restriction of motion, or functional impairment against resistance three times. The Veteran indicated that the discomfort he experienced in his knees during testing was glove-like around the patellae. The examiner reported that no ankylosis was found in either knee. He also noted that the Veteran did not have a flare during the examination, so no evaluation during a flare could be performed. Finally, the examiner commented that he did not observe any inappropriate behavior and the Veteran's symptoms did not appear out of proportion to the physical findings. VA clinic records dated from September 2004 through May 2008 and the records of several private hospitalizations in 2007 are silent for any knee complaints or pertinent clinical findings regarding the Veteran's knees. Evaluating the knee disabilities based on subluxation first, the Board observes that no examiner prior to the September 2004 examination had reported any subluxation. That examiner noted that the right patella \"tends to deviate a bit laterally,\" and that tracking problems were the Veteran's main problems with his knees.", "Significantly, no subsequent examiner has reported any such subluxation or tracking problems. As set forth above, a 30 percent rating is to be assigned for severe impairment due to subluxation or lateral instability. Further, a 30 percent rating is the maximum allowed under Code 5257. Moreover, a 30 percent rating has been in effect for subluxation of each knee throughout the appeal period. Therefore, no higher schedular rating may be assigned on that basis. However, the regulations also provide for assignment of an extraschedular rating in cases where the record shows that a disability has caused marked interference with employment beyond that contemplated by the rating schedule, necessitated frequent periods of hospitalization, or otherwise rendered impractical the application of the regular schedular standards utilized to evaluate the severity of the disability. 38 C.F.R. § 3.321(b)(1). The record shows that the Veteran has been determined to be totally disabled by the Social Security Administration (SSA). An SSA Administrative Law Judge (ALJ) found in April 2001 that the Veteran continued to be totally disabled due to the effects of left eye blindness, chronic obstructive pulmonary disease, chronic asthma, hypertension, rheumatoid arthritis, chronic headaches, degenerative disc disease with radicular low back pain, cervical spine pain, and bilateral knee pain. While the ALJ did not state the relative degree of impairment due to each of the above disabilities, the treatment records indicate that, at least prior to the ALJ's decision, the Veteran's blindness and back disabilities were more troublesome to him than his other disabilities. In light of the scant medical evidence of significant subluxation in either knee, even considering the statement by the September 2004 examiner that tracking problems were the main problem with the Veteran's knees, the Board finds that none of the above factors for an extraschedular evaluation are shown and that the requirements for referral of the case for evaluation under the provisions of 38 C.F.R.", "§ 3.321(b)(1) have not been met. Therefore, an initial rating greater than 30 percent for recurrent subluxation of each knee must be denied. Turning next to the ratings based on limitation of flexion, the Board observes that no examiner has reported range of motion findings for flexion of either knee, even considering the point at which flexion is limited by pain, that meet the criteria for a 10 percent rating. However, a 10 percent rating has been in effect for each knee throughout the appeal period, apparently on the basis of the demonstrated painful motion, Nevertheless, the Joint Motion noted that the Board's August 2005 decision did not adequately discuss the possibility of the assignment of higher ratings based on additional impairment during flare-ups of symptoms in each knee. As set forth above, a 20 percent rating would require limitation of flexion to 30 degrees, whereas a 30 percent rating requires limitation of flexion to 15 degrees. A higher rating may be assigned for demonstrated ankylosis of the knee joint.", "Initially, the Board notes that no examiner has reported ankylosis in either knee, and the February 2009 VA examiner specifically indicated that no ankylosis was found. Further, no examiner has observed the Veteran during a flare-up, so the degree of limitation of flexion during such episodes has not been recorded by any examiner. Moreover, no examiner has reported any additional functional limitation due to pain, weakness, fatigability, or incoordination on repeated use. During the February 2001 VA compensation examination, the Veteran reported that he experienced a 30 percent reduction in range of motion during a flare-up.", "However, the examiner recorded 115-120 degrees of painless motion in each knee. So, a further 30 percent reduction during flares would result in limitation of flexion to no more than 80 degrees, far less limitation than the criteria for a 20 percent rating. In August 2004, the Veteran reported a 25 percent reduction in range of motion of his knees during flares. That examiner recorded 90 degrees of flexion for the right knee and 80 degrees of flexion for the left knee. A 25 percent further reduction during flares, as reported by the Veteran, would result in limitation of flexion to no more than 60 degrees, still far less than the criteria for a 20 percent rating. The November 2007 examiner recorded 95 degrees of flexion of the right knee before pain began and 85 degrees of painless flexion of the left knee. The Veteran reported to that examiner, however, that range of motion of his knees would change from 15 percent to zero percent during flares. But the examiner indicated that, he found the Veteran's reported symptoms to be out of proportion to the physical findings. The Board accords the examiner's opinion in this regard great weight.", "This finding calls into question the Veteran's credibility as to the reported severity of the degree of impairment he experienced during flare-ups. The Board observes that the VA examiner in February 2009 stated that the Veteran's symptoms did not appear to be out of proportion to the physical findings, which showed painless flexion to 90 degrees in each knee. While the Veteran reported to that examiner that he could not flex his knees beyond 20 degrees due to severe pain during flares, the examiner expressed no opinion regarding the actual additional impairment during a flare, since he did not examine the Veteran during a flare. It would seem reasonable to expect that, if the Veteran experienced incapacitating flares of pain in both of his knees multiple times a week, as he has reported, he would have complained about that pain to at least one examiner during the past five years.", "But the treatment records are devoid of complaints regarding the Veteran's knees since 2004. Therefore, the Board finds that his reports of the degree of increased limitation of flexion during flares are not credible. Accordingly, because the record contains no objective observation of the degree of increased impairment the Veteran may experience during flares, an increased rating cannot be assigned on this basis. Therefore, the Board finds that the criteria for a schedular rating greater than 10 percent based on limitation of flexion have not been met at any time during the appeal period. Further, as discussed above regarding ratings on the basis of subluxation, the record does not reflect that the Veteran's service-connected knee disabilities have caused marked interference with employment beyond that contemplated by the schedule for rating disabilities, necessitated frequent periods of hospitalization, or otherwise rendered impractical the application of the regular schedular standards utilized to evaluate the severity of the disability. In the absence of such factors, the requirements for referral of the case for evaluation for an extraschedular evaluation under the provisions of 38 C.F.R.", "§ 3.321(b)(1) have not been met. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable in the current appeal. 38 U.S.C.A. 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1991); Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Therefore, the Board concludes that the criteria are not met for initial ratings greater than 10 percent for strain with early degenerative arthritis and patellofemoral syndrome in each knee. II. Duties to notify and to assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.", "38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2008); 38 C.F.R. § 3.159(b) (2008); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. In the present case, VA satisfied its duty to notify by means of a July 2004 letter from the agency of original jurisdiction (AOJ) to the appellant. The letter informed the appellant of what evidence was required to substantiate his claims, and of his and VA's respective duties for obtaining evidence. The Board acknowledges that the required notice was not provided before the initial adverse decision in this case in March 2000. Although the appellant has the right to content- complying notice and proper subsequent VA process, he has received that notice.", "The error in not providing the required notice prior to the adverse decision was cured by the July 2004 letter, and so is harmless. Moreover, the appellant has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices, including at two hearing. Also, in May 2007, the RO notified the Veteran of the information and evidence necessary to establish the downstream elements of a rating and the effective date for a rating, as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity, including at two hearing, to participate effectively in the processing of his claim and appeal. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal.", "For an increased-compensation claim, § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Further, if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant's demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant.", "Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation - e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores, at 43-44.", "In an April 2008 letter, the RO provided the Veteran with specific notice concerning what needed to be shown to support higher disability evaluations in compliance with Vazquez- Flores, prior to supplemental statements of the case in June and September 2008 and in March 2009. The law also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c), (d) (2007). This \"duty to assist\" ordinarily contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody. In this case, the Board finds that the duty to assist has been fulfilled. During the course of this appeal, the Veteran has been afforded VA compensation examinations, and VA and private treatment records covering the entire period of the appeal have been received. No further development action is necessary. ORDER An effective date earlier than June 9, 1999, for service connection for recurrent subluxation of the right knee is denied.", "An effective date earlier than June 9, 1999, for service connection for chronic right knee strain with early degenerative joint disease is denied. An effective date earlier than June 9, 1999, for service connection for recurrent subluxation of the left knee is denied. An effective date earlier than June 9, 1999, for service connection for left knee strain with early degenerative arthritis and patellofemoral syndrome is denied.", "An initial rating greater than 30 percent for recurrent subluxation of the right knee is denied. An initial rating greater than 30 percent for recurrent subluxation of the left knee is denied. An initial rating greater than 10 percent for chronic right knee strain with early degenerative joint disease is denied. An initial rating greater than 10 percent for left knee strain with early degenerative arthritis and patellofemoral syndrome is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs" ]	https://drive.google.com/drive/folders/12lAd8Os7VFeqbTKi4wcqJqODjHIn0-yQ?usp=sharing	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
EXAMINER’S COMMENT Allowable Subject Matter Claims 1, 7, and 8 are allowed. The following is an examiner's statement of reasons for allowance: Claims 1, 7, and 8 when considered as a whole, are allowable over the prior art of record. Specifically, the prior art of record, taken individually or in combination, does not clearly teach or suggest the combination of the following features: “a professional user virtual camera video creation unit configured to create a virtual camera video by one or more professional users accustomed to the setting of the viewpoint of the virtual camera; an automatic virtual camera video creation unit configured to create a virtual camera video for which a position of the virtual camera is automatically set by a computer; and a transmission unit configured to transmit the virtual camera video created by the one or more professional users and the virtual camera video for which the position of the virtual camera is automatically set by the computer to the user terminal, wherein the determination unit makes a two-stage determination, in a first stage, when the accepting unit accepts that a viewpoint setting image is opened a first predetermined number of times or more within a predetermined time, the determination unit determines that the user needs assistance in setting the viewpoint, when the determination unit determines that the user needs the assistance in the setting the viewpoint, the switching unit switches the user terminal so as to display a professional user selection screen thereon, when the user selects one professional user from the professional user selection screen, the switching unit switches the user terminal of the user so as to display a video of the selected professional user thereon, and when the user does not select any professional user from the selection screen, the switching unit switches the user terminal of the user so as to display an overhead view video thereon, and urges the user to re-set the viewpoint” as recited in claim 1 and similarly in claims 7 and 8. 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 LOI H TRAN whose telephone number is (571)270-5645. The examiner can normally be reached 8:00AM-5:00PM PST FIRST FRIDAY OF BIWEEK OFF. 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, THAI TRAN can be reached on 571-272-7382. 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.	2022-02-01T15:24:29	[ "EXAMINER’S COMMENT Allowable Subject Matter Claims 1, 7, and 8 are allowed. The following is an examiner's statement of reasons for allowance: Claims 1, 7, and 8 when considered as a whole, are allowable over the prior art of record. Specifically, the prior art of record, taken individually or in combination, does not clearly teach or suggest the combination of the following features: “a professional user virtual camera video creation unit configured to create a virtual camera video by one or more professional users accustomed to the setting of the viewpoint of the virtual camera; an automatic virtual camera video creation unit configured to create a virtual camera video for which a position of the virtual camera is automatically set by a computer; and a transmission unit configured to transmit the virtual camera video created by the one or more professional users and the virtual camera video for which the position of the virtual camera is automatically set by the computer to the user terminal, wherein the determination unit makes a two-stage determination, in a first stage, when the accepting unit accepts that a viewpoint setting image is opened a first predetermined number of times or more within a predetermined time, the determination unit determines that the user needs assistance in setting the viewpoint, when the determination unit determines that the user needs the assistance in the setting the viewpoint, the switching unit switches the user terminal so as to display a professional user selection screen thereon, when the user selects one professional user from the professional user selection screen, the switching unit switches the user terminal of the user so as to display a video of the selected professional user thereon, and when the user does not select any professional user from the selection screen, the switching unit switches the user terminal of the user so as to display an overhead view video thereon, and urges the user to re-set the viewpoint” as recited in claim 1 and similarly in claims 7 and 8.", "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 LOI H TRAN whose telephone number is (571)270-5645. The examiner can normally be reached 8:00AM-5:00PM PST FIRST FRIDAY OF BIWEEK OFF. 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, THAI TRAN can be reached on 571-272-7382. 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." ]	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
Exhibit 10.1 Confidential Subject to FRE 408 THIS RESTRUCTURING SUPPORT AGREEMENT IS NOT AN OFFER WITH RESPECT TO ANY SECURITIES OR A SOLICITATION OF VOTES WITH RESPECT TO A CHAPTER 11 PLAN OF REORGANIZATION. ANY SUCH OFFER OR SOLICITATION WILL COMPLY WITH ALL APPLICABLE SECURITIES LAWS AND/OR, AS APPLICABLE, PROVISIONS OF THE BANKRUPTCY CODE. RESTRUCTURING SUPPORT AGREEMENT by and among STONE ENERGY CORPORATION AND ITS SUBSIDIARIES PARTY HERETO and THE UNDERSIGNED CREDITOR PARTIES dated as of October 20, 2016 -------------------------------------------------------------------------------- This Restructuring Support Agreement (together with the exhibits and schedules attached hereto, which include, without limitation, the Term Sheet (as defined below), as each may be amended, restated, supplemented, or otherwise modified from time to time in accordance with the terms hereof, this “Agreement”), dated as of October 20, 2016, is entered into by and among: (i) Stone Energy Corporation (“Stone”), Stone Energy Holding, L.L.C. (“Stone Holdings”) and Stone Energy Offshore, L.L.C. (“Stone Offshore” and, together with Stone and Stone Holdings, each a “Stone Party” and collectively, the “Stone Parties”); and (ii) the holders of notes (the “Noteholders”) issued pursuant to: (a) the Indenture dated as of March 6, 2012 (as amended, restated, modified, supplemented or replaced from time to time, the “Convertible Indenture”) among Stone, as issuer, Stone Offshore, as subsidiary guarantor, and The Bank of New York Mellon Trust Company, N.A., as trustee and (b) the Second Supplemental Indenture dated as of November 8, 2012 to Senior Indenture dated as of January 26, 2010 (as amended, restated, modified, supplemented or replaced from time to time, the “Senior Indenture” and, together with the Convertible Indenture, the “Indentures”) among Stone, as issuer, Stone Offshore, as subsidiary guarantor, and The Bank of New York Mellon Trust Company, N.A., as trustee (in such capacity, under each of the Indentures, together with any successor thereto under either or both Indentures, the “Indenture Trustee”), that hold claims against the Stone Parties arising on account of the Indentures and the notes issued thereunder, the “Notes Claims”), in each case, and that are signatories hereto (collectively, with any Noteholder that may become a party hereto in accordance with Sections 13 and 34 of this Agreement, the “Consenting Noteholders”). This Agreement collectively refers to the Stone Parties and the Consenting Noteholders as the “Parties” and each individually as a “Party.” Unless otherwise noted, capitalized terms used but not defined herein have the meanings ascribed to them at a later point in this Agreement or in the Term Sheet (as defined herein). RECITALS WHEREAS, the financial institutions party to the Fourth Amended and Restated Credit Agreement dated as of June 24, 2014 (as amended, restated, modified, supplemented or replaced from time to time, the “Credit Agreement”) among Stone, as borrower, such financial institutions, as lenders (the “Banks”), Bank of America, N.A., as administrative agent (in such capacity, the “Bank Agent”) and issuing bank, Wells Fargo Bank, National Association, Natixis, The Bank of Nova Scotia, Capital One, N.A., and Toronto Dominion (New York) LLC, as co-syndication agents, Regions Bank and U.S. Bank, National Association, as co-documentation agents, and Merrill Lynch, Pierce, Fenner & Smith Incorporated, as sole Lead Arranger and Bookrunner, hold claims against the Stone Parties arising on account of the Credit Agreement (each, a “Bank Claim”) in an aggregate principal amount of approximately $341,500,000 (together, the “Bank Claims”); WHEREAS, as of the date of this Agreement, the Noteholders hold Notes Claims against the Stone Parties in aggregate principal amount of approximately $1,075,000,000; WHEREAS, the Stone Parties will seek to restructure the Bank Claims, the Notes Claims and certain of their other obligations, to cancel the existing equity interests of Stone and to consummate the transactions in accordance with, and subject to the terms and conditions of, the Appalachia PSA (as defined below) and to recapitalize in accordance with the terms provided in the restructuring term sheet attached hereto as Exhibit A (the “Term Sheet”) and incorporated herein pursuant to Section 3 of this Agreement through jointly-administered voluntary cases commenced by the Stone Parties (the “Chapter 11 Cases”) under chapter 11 of title 11 of the United States Code, 11 U.S.C. §§ 101–1532 (as amended, the “Bankruptcy Code”), in a United States Bankruptcy Court (the “Bankruptcy Court”) located in a venue agreed upon by Stone and the Required Consenting 2 -------------------------------------------------------------------------------- Noteholders (defined below) pursuant to a pre-packaged1 plan of reorganization (as may be amended, restated, supplemented, or otherwise modified from time to time in accordance with this Agreement, the “Plan”) (the “Restructuring Transactions”). WHEREAS, each of the Parties has reviewed, or has had the opportunity to review, the Term Sheet and this Agreement with the assistance of legal and financial advisors of its own choosing; and WHEREAS, subject to the commitments of the Stone Parties set forth in this Agreement regarding the Restructuring Transactions, each Consenting Noteholder desires to support and vote to accept the Restructuring Transactions, and the Stone Parties desire to obtain the commitment of the Consenting Noteholders to support and vote to accept the Restructuring Transactions, in each case subject to the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the promises, mutual covenants, and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each of the Parties, intending to be legally bound, hereby agrees as follows: AGREEMENT 1. RSA Effective Date. This Agreement shall become effective, and the obligations contained herein shall become binding upon the Parties, upon the first date (such date, the “RSA Effective Date”) that each of the following conditions shall have been satisfied: (a) each Stone Party and Consenting Noteholders holding, in the aggregate, at least 66-2/3% of the outstanding aggregate principal amount of all Notes Claims have duly executed and delivered signatures pages to this Agreement, and (b) the Stone Parties shall have entered into a purchase and sale agreement for the sale of the Appalachian Assets (as defined in the Term Sheet) with TH Exploration III, LLC (“Buyer”) for a cash purchase price of at least $350 million (the “Appalachia PSA”) subject to adjustment in accordance with the Appalachia PSA. 2. Form of Restructuring Transactions. The Stone Parties shall, as soon as practicable but subject to the satisfaction or waiver of the conditions precedent contained in the Definitive Documentation, effectuate the Restructuring Transactions through confirmation and consummation of the Plan and the execution and delivery of the Definitive Documentation, in each case on terms and conditions consistent with the Term Sheet, in the Chapter 11 Cases. 3. Exhibits and Schedules Incorporated by Reference. Each of the exhibits and schedules attached hereto (including, without limitation, the Term Sheet) and each of the schedules to such exhibits (collectively, the “Exhibits and Schedules”) is expressly incorporated herein and made a part of this Agreement, and all references to this Agreement shall include the Exhibits and Schedules. In the event of any inconsistency between this Agreement (without reference to the Exhibits and Schedules) and the Exhibits and Schedules, this Agreement (without reference to the 1 Subject to resolution of management/employment issues. 3 -------------------------------------------------------------------------------- Exhibits and Schedules) shall govern and control to the extent of such inconsistency except that, in the event of any inconsistency between this Agreement and the Term Sheet, the Term Sheet shall govern and control. 4. Definitive Documentation. (a) The definitive documents and agreements governing the Restructuring Transactions (collectively, the “Definitive Documentation”) shall include: (i) the Stone Parties’ Disclosure Statement with respect to the Plan setting forth the terms and conditions of the Restructuring Transactions (together with all exhibits there to, the “Disclosure Statement”) and any Credit Agreement amendment, intercreditor agreement, indenture, notes, equityholder agreements or other agreements required to memorialize the Restructuring Transactions (the Disclosure Statement together with any other solicitation materials with respect to the Plan, collectively, the “Solicitation Materials”); (ii) the Plan, including any plan supplement documents (including, without limitation, the identity of the officers and directors of the reorganized Stone Parties, any Credit Agreement amendment, intercreditor agreement, indenture, notes, the governance documents for the reorganized Stone Parties, and any equityholders’ agreements with respect to the reorganized Stone Parties), the order of the Bankruptcy Court approving the Disclosure Statement (the “Disclosure Statement Order”), the order of the Bankruptcy Court confirming the Plan (the “Confirmation Order”), an order of the Bankruptcy Court authorizing the assumption of this Agreement (the “RSA Assumption Order”), the Assumption and Procedures Order (as defined in the Appalachia PSA) in regard to the transactions contemplated in the Appalachia PSA (the “Assumption and Procedures Order”), the bidding procedures (if any) approved by the Bankruptcy Court in respect of the Appalachian Assets (whether pursuant to the Assumption and Procedures Order or other order of the Bankruptcy Court) (the “Bidding Procedures”), the order of the Bankruptcy Court approving the Appalachia PSA and the transactions contemplated thereby (the “Appalachia Sale Order”), the motions seeking approval of each of the foregoing, the Critical Vendor Motion, the Cash Collateral Motion, the Royalty Motion and the Shipper’s Motion; and (iii) any document or filing identified in the Term Sheet as being subject to approval or consent rights under Section 4(b) of this Agreement. (b) The Definitive Documentation identified in Section 4(a) of this Agreement will, after the RSA Effective Date, remain subject to negotiation and shall, upon completion, contain terms, conditions, representations, warranties, and covenants consistent with the terms of this Agreement (including the Term 4 -------------------------------------------------------------------------------- Sheet) in all respects, and shall otherwise be in form and substance reasonably satisfactory to the Stone Parties, on the one hand, and the Required Consenting Noteholders2, on the other hand; provided, however, that (i) the form, terms and provisions of the constitutional, organizational and other documents of the Stone Parties setting forth the rights of stockholders or noteholders after the Consummation Date, including, but not limited to, any charters, bylaws, operating agreements, indentures, warrants, stockholders’ or unitholders’ agreements, registration rights agreements, management incentive plan, or other similar agreements, motions, pleadings or orders to be entered into or filed in connection with the Restructuring Transactions, shall, in each case, be consistent with the Term Sheet and otherwise satisfactory to the Required Consenting Noteholders in their sole discretion and (ii) the Disclosure Statement, the Disclosure Statement Order, the Assumption and Procedures Order, the Bidding Procedures (if any), the Motion for approval of the Assumption and Procedures Order, the Appalachia Sale Order; the Motion for Approval of the Appalachia Sale Order, the Motion for Approval of the Disclosure Statement and Solicitation Procedures, the Plan, the Confirmation Order, Motion to Approve RSA, RSA Assumption Order, Critical Vendor Motion, Cash Collateral Motion, Royalty Motion, and Shipper’s Motion shall, in each case, be satisfactory to the Required Consenting Noteholders and the Stone Parties. (c) The Stone Parties shall provide to the Noteholder Committee’s legal counsel drafts of all motions or applications, including proposed orders, and other documents that the Stone Parties intend to file with the Bankruptcy Court not less than three (3) Business Days before the date when the Stone Parties intend to file any such motion, application or document, including for the avoidance of doubt, all first day motions and orders; provided, however, that in the event that three (3) Business Days’ notice is impossible or impracticable under the circumstances, the Stone Parties shall provide draft copies of any motions, applications, including proposed orders and any other documents the Stone Parties intend to file with the Bankruptcy Court to the Noteholder Committee’s legal counsel within one (1) Business Day, or as soon as otherwise practicable, before the date when the Stone Parties intend to file any such motion, application or document. The Stone Parties shall notify the Noteholder Committee’s legal counsel telephonically or by electronic mail to advise them of the documents to be filed and the facts that make the provision of advance copies not less than three (3) Business Days before submission impossible or impracticable. 2 “Required Consenting Noteholders” shall mean, subject to Section 28, the Consenting Noteholders, holding at least a majority of the principal amount outstanding of all Notes Claims held by the Consenting Noteholders, provided that, such Consenting Noteholders holding the majority in principal amount shall include at least three (3) separate Consenting Noteholders (for purposes of this definition, each institution holding Notes Claims shall be taken together with each of its controlled affiliate’s and subsidiary’s Notes Claims holdings and they shall together in the aggregate constitute a single Consenting Noteholder). 5 -------------------------------------------------------------------------------- 5. Mutual Agreement of the Parties to Support the Restructuring Transactions. Each of the Parties to this Agreement agrees, severally and not jointly, from the RSA Effective Date until the occurrence of a Termination Date (as defined in Section 12 of this Agreement) applicable to such Party, to: (a) use commercially reasonable best efforts to support and cooperate with the other Parties to this Agreement and use reasonable best efforts to take or cause to be taken all actions reasonably necessary to consummate the Restructuring Transactions on the terms and subject to the conditions set forth in the Term Sheet and this Agreement; and (b) negotiate in good faith any terms of the Definitive Documentation that are subject to negotiation as of the RSA Effective Date. 6. Commitment of Consenting Noteholders. Each Consenting Noteholder agrees, severally and not jointly, from the RSA Effective Date until the occurrence of a Termination Date (as defined in Section 12 of this Agreement) applicable to such Consenting Noteholder, so long as it remains the legal owner, beneficial owner and/or investment advisor or manager of or with power and/or authority to bind any Notes (provided that, any transfer of Notes is made in accordance with Section 13 herein), to: (a) tender for exchange all Notes beneficially owned by such Consenting Noteholder or for which it is the nominee, investment manager, or advisor for beneficial holders thereof pursuant to the Disclosure Statement and in accordance with the applicable procedures set forth therein, in each case as specified by such Consenting Noteholder next to its name on Annex A; (b) (i) subject to receipt of the Disclosure Statement, vote all of its Notes Claims against, or interests in, as applicable, the Stone Parties now or hereafter owned by such Consenting Noteholder (or which such Consenting Noteholder now or hereafter has voting control over) to accept the Plan in accordance with the applicable procedures set forth in the Disclosure Statement and the Solicitation Materials that meet the requirements of applicable law, including sections 1125 and 1126 of the Bankruptcy Code; (ii) timely return a duly-executed ballot in connection therewith; and (iii) not “opt out” of or object to any releases or exculpation provided under the Plan (and, to the extent required by such ballot, affirmatively “opt in” to such releases and exculpation); (c) not withdraw, amend, change, or revoke (or seek to withdraw, amend, change, or revoke) its tender, consent, or vote with respect to the Plan; provided, however, that the tender, consent, or votes of the Consenting Noteholders shall be immediately revoked and deemed void ab initio upon the occurrence of the Termination Date; (d) not (i) object to, delay, impede, or take any other action (including to instruct or direct the Indenture Trustee) to interfere with the prompt consummation of the Restructuring Transactions or the Definitive Documentation (including the entry by the Bankruptcy Court of an order approving the Disclosure Statement and the Confirmation Order, if applicable); (ii) propose, file, support, or vote for any restructuring, workout, reorganization, liquidation, or chapter 11 plan or other Alternative Transaction (as defined below) for any of the Stone Parties, other than the Restructuring Transactions and the Plan; or (iii) encourage or support any other person or entity to do any of the foregoing; 6 -------------------------------------------------------------------------------- (e) support and not object to or take any other action (including to instruct or direct the Indenture Trustee) that would, or would be reasonably expected to, interfere with the prompt consummation of the transactions contemplated in the Appalachia PSA (including the entry by the Bankruptcy Court of the Assumption and Procedures Order and the Appalachia Sale Order); (f) not take any other action, including, without limitation, initiating or joining in any legal proceeding, that is materially inconsistent with its obligations under this Agreement, that could unreasonably hinder, delay, or prevent the timely consummation of the Restructuring Transactions and the confirmation and consummation of the Plan and entry of the Confirmation Order; and (g) during the Interim Period (as defined in the Appalachia PSA) no Consenting Noteholder shall, directly or indirectly (including through the financial advisor or legal counsel thereto), solicit any offer or inquiry from any Person concerning such Person’s direct or indirect acquisition of the assets subject to the Appalachia PSA. Notwithstanding the foregoing, nothing in this Agreement, and neither a vote to accept the Plan by any Consenting Noteholder, nor the acceptance of the Plan by any Consenting Noteholder shall: (w) be construed to limit consent and approval rights provided in this Agreement and the Definitive Documentation; (x) be construed to prohibit any Consenting Noteholder from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, or exercising rights or remedies specifically reserved herein; (y) be construed to prohibit any Consenting Noteholder from appearing as a party-in-interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not inconsistent with this Agreement and are not for the purpose of hindering, delaying, or preventing the consummation of the transactions contemplated in, subject to the terms and conditions of, the Appalachia PSA and consummation of the Restructuring Transactions; or (z) impair or waive the rights of any Consenting Noteholder to assert or raise any objection expressly permitted under this Agreement in connection with any hearing in the Bankruptcy Court, including, without limitation, any hearing on confirmation of the Plan. For the avoidance of doubt and notwithstanding the foregoing, nothing in this Agreement shall or shall be deemed to limit the rights of the Stone Parties set forth in the Appalachia PSA (including sections 7.04(b), 7.16(b) and 11.01(h), but subject to section 3.02(e), thereof) to conduct a marketing and auction process for the assets subject to the Appalachia PSA if required by the Bankruptcy Court, terminate the Appalachia PSA and select an Alternative Bid (as defined in the Appalachia PSA, an “Alternative Bid”), and the obligations of the Consenting Noteholders pursuant to this Agreement in respect of the Appalachia PSA and the transactions contemplated therein are expressly subject to the right of the Consenting Noteholders to consider any unsolicited offer or inquiry presented to a Consenting Noteholder or the Stone Parties, engage in discussions with the party submitting such unsolicited offer or inquiry and the Stone Parties in respect thereof (including by furnishing confidential information with respect to the assets subject to the Appalachia PSA or permitting access to such assets or the books and records of the Stone Parties) and, if such unsolicited offer or inquiry is determined in good faith by the Required Consenting Noteholders, after seeking the advice of outside legal counsel, to be superior to the transactions contemplated in the Appalachia PSA for the purpose of maximizing the value of the 7 -------------------------------------------------------------------------------- assets of the Stone Parties, seek an order or directive from the Bankruptcy Court requiring the Stone Parties to conduct a further marketing process and/or a competitive auction for the assets subject to the Appalachia PSA, and, if the result of such marketing and/or auction process is a higher or otherwise better offer as compared to the Appalachia PSA (including as the same may have been proposed to be modified by the Buyer with respect thereto) in the determination of the Required Consenting Noteholders, to support approval of such higher or otherwise better offer by the Bankruptcy Court and termination of the Appalachia PSA by the Stone Parties pursuant to section 11.01(h) thereof. The Consenting Noteholders, on the one hand, and the Stone Parties, on the other hand, as the case may be, shall promptly, and no later than three (3) Business Days following receipt of an unsolicited offer or inquiry with respect to the assets subject to the Appalachia PSA, notify legal counsel to the other and, in the case of the Consenting Noteholders, Buyer (as defined in the Appalachia PSA) of the receipt and material terms of such offer or inquiry. 7. Commitment of the Stone Parties. Each of the Stone Parties agrees, from the RSA Effective Date until the occurrence of a Termination Date, to: (a) use reasonable best efforts to implement the Restructuring Transactions in accordance with the applicable milestones set forth in Schedule 1 hereto (collectively, the “Milestones”), which Milestones may only be extended in accordance with Section 28 of this Agreement; (b) not undertake any action that is inconsistent with this Agreement, or which could unreasonably hinder, delay or prevent the timely consummation of the Restructuring Transactions and the Definitive Documentation, including, without limitation, filing any motion to reject this Agreement in the Bankruptcy Court; (c) support and take all actions as are reasonably necessary and appropriate to obtain any and all required regulatory and/or third-party approvals to consummate the Restructuring Transactions; (d) file, within two (2) calendar days after the date the Chapter 11 Cases are commenced by filing bankruptcy petitions with the Bankruptcy Court (such date, the “Petition Date”), a motion seeking to assume this Agreement; (e) timely pay all fees and expenses as set forth in Section 15 of this Agreement; (f) timely file a formal objection to any motion filed with the Bankruptcy Court by a third party seeking the entry of an order (i) directing the appointment of a trustee or examiner (with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code), (ii) converting the Chapter 11 Cases to cases under chapter 7 of the Bankruptcy Code, or (iii) dismissing the Chapter 11 Cases; (g) timely file a formal objection to any motion filed with the Bankruptcy Court by a third party seeking the entry of an order modifying or terminating the Stone Parties’ exclusive right to file and/or solicit acceptances of a plan of reorganization, as applicable; 8 -------------------------------------------------------------------------------- (h) subject to the next paragraph, not seek, solicit, or support any dissolution, winding up, liquidation, reorganization, assignment for the benefit of creditors, merger, transaction, consolidation, business combination, joint venture, partnership, sale of assets (other than the sale of the Appalachian Assets), any debt or equity financing or re-financing, or restructuring of the Stone Parties (including, for the avoidance of doubt, a transaction premised on an asset sale under section 363 of the Bankruptcy Code other than the sale of the Appalachian Assets), other than the Plan and Restructuring Transactions, and to not cause or allow any of their agents or representatives to solicit any agreements relating to an Alternative Transaction (as defined below); (i) notwithstanding anything to the contrary herein, use reasonable best efforts to exercise their rights under Section 2.17(b) of the Credit Agreement to the extent necessary to implement the modifications to the Credit Agreement referenced in Section 2(a)(ii) and as set forth in the Term Sheet; (j) (i) not take an action or fail to act in such a manner as would be reasonably likely to result in a breach or failure of any of the conditions to closing set forth in the Appalachia PSA; (ii) use reasonable best efforts to cure any breach of the terms and conditions of the Appalachia PSA by any of the Stone Parties signatory thereto that would be reasonably likely to result in a breach or failure of the conditions to closing set forth therein; (iii) not terminate the Appalachia PSA or reduce, amend or modify the purchase price set forth therein to an amount in cash less than $350 million (other than as a result of adjustments provided for therein); and (iv) otherwise use reasonable best efforts to satisfy its obligations under the Appalachia PSA and consummate the transactions with Buyer contemplated thereby, subject to the last sentence of Section 6 of this Agreement; and (k) through the Closing Date (as defined in the Appalachia PSA) (i) upon the written request of the Consenting Noteholders, provide in writing to the Consenting Noteholders a then current good faith estimate of the Stone Parties, together with such documentation as reasonably requested by the Consenting Noteholders in support of such estimate, of the purchase price under the Appalachia PSA after giving effect to any reductions that would be taken into account by the Consenting Noteholders in determining the “net purchase price” as determined in accordance with Section 8(n) and (ii) promptly notify the Consenting Noteholders in writing of any change, event, circumstance, development, condition, occurrence or effect which the Stone Parties become aware of that would reasonably be expected to result in a failure of any of the conditions to closing set forth in the Appalachia PSA or in any reduction in the “net purchase price,” as determined in accordance with Section 8(n). To the extent the notice is in respect of a potential adjustment to “net purchase price,” such notice shall include the amount of the resulting reduction along with such documentation as reasonably requested by the Consenting Noteholder in support of such amount. 9 -------------------------------------------------------------------------------- Notwithstanding anything to the contrary herein, the Stone Parties shall be entitled, at any time prior to the entry by the Bankruptcy Court of the Confirmation Order, to accept or pursue (but not to solicit or initiate of its own accord): (i) a competing plan of reorganization or other financial and/or corporate restructuring of the Stone Parties; (ii) the issuance, sale or other disposition of any equity or debt interests, or any material assets, of the Stone Parties; or (iii) a merger, consolidation, business combination, liquidation, recapitalization, any debt or equity financing or refinancing, or similar transaction involving the Stone Parties (each, an “Alternative Transaction”), in each case to the extent the Board of Directors of Stone determines, after seeking the advice of outside legal counsel, in good faith, and consistent with their fiduciary duties, that such Alternative Transaction best maximizes value for the Stone Parties and their stakeholders, and provided that the Stone Parties shall have first exercised their right in accordance with Section 9(b) of this Agreement to declare a Company Termination Event prior to the date on which the Stone Parties enter into a definitive agreement in respect of such an Alternative Transaction or make a public announcement regarding their intention to do so. The Stone Parties shall give the legal counsel to the Consenting Noteholders not less than three (3) Business Days’ prior written notice before the termination of this Agreement in accordance with Section 9(b) of this Agreement. At all times prior to the date on which the Stone Parties enter into a definitive agreement in respect of such an Alternative Transaction or make a public announcement regarding their intention to do so, the Stone Parties shall (x) provide a copy of any written offer or proposal (and notice of any oral offer or proposal) for such Alternative Transaction within three (3) Business Days3 of the Stone Parties’ or their advisors’ receipt of such offer or proposal received to the legal counsel to and the financial advisors to the Consenting Noteholders and (y) provide such information to the advisors to the Consenting Noteholders regarding such discussions (including copies of any materials provided to such parties hereunder) as necessary to keep the Consenting Noteholders contemporaneously informed as to the status and substance of such discussions. 8. Consenting Noteholder Termination Events. The Required Consenting Noteholders shall have the right, but not the obligation, upon written notice to the other Parties, to terminate the obligations of the Consenting Noteholders under this Agreement upon the occurrence of any of the following events (each, a “Consenting Noteholder Termination Event”), unless waived, in writing, by the Required Consenting Noteholders on a prospective or retroactive basis: (a) the failure of the Stone Parties to meet any Milestone; (b) the termination of the Appalachia PSA or any reduction, amendment or modification of the purchase price set forth therein to an amount in cash less than $350 million (other than as a result of adjustments in the purchase price as provided for in the Appalachia PSA), other than termination of the Appalachia PSA by the Stone Parties signatory thereto pursuant to section 11.01(h) thereof for the purpose of selecting an Alternative Bid acceptable to the Required Consenting Noteholders; (c) the Bankruptcy Court enters an order converting one or more of the Chapter 11 Cases to a case under chapter 7 of the Bankruptcy Code or dismissing any of the Chapter 11 Cases; 3 “Business Day” means any day, other than a Saturday, Sunday, or legal holiday, in each case, in New York, New York. 10 -------------------------------------------------------------------------------- (d) the Bankruptcy Court enters an order appointing a trustee, receiver, or examiner with expanded powers beyond those set forth in section 1106(a)(3) and (4) of the Bankruptcy Code in one or more of the Chapter 11 Cases; (e) the Definitive Documentation does not conform to the Term Sheet without the prior written consent of the Required Consenting Noteholders or otherwise is not acceptable to the Required Consenting Noteholders; (f) any Stone Party files with the Bankruptcy Court any motion or application seeking authority to sell any material assets that is not contemplated in the Term Sheet without the prior written consent of the Required Consenting Noteholders; (g) any Stone Party materially breaches its obligations under this Agreement, which breach is not cured within five (5) Business Days after the giving of written notice of such breach, or files, publicly announces, or informs the Consenting Noteholders of its intention to file a chapter 11 plan that contains terms and conditions that: (i) do not provide the Consenting Noteholders with the economic recovery set forth on the Term Sheet or (ii) are not otherwise consistent with this Agreement and the Term Sheet; provided, however, that no Consenting Noteholder may seek to terminate this Agreement based upon a material breach or any failure of any material condition in this Agreement primarily caused by such Consenting Noteholder in breach of this Agreement; (h) a material breach by any Stone Party of any representation, warranty, or covenant of such Stone Party set forth in this Agreement that (to the extent curable) remains uncured for a period of five (5) Business Days after written notice and a description of such breach is provided to the Stone Parties; provided, however, that the Required Consenting Noteholders may not seek to terminate this Agreement based upon a breach of this Agreement by a Stone Party primarily caused by the Required Consenting Noteholders in breach of this Agreement; (i) either (i) any Stone Party files with the Bankruptcy Court a motion, application, or adversary proceeding (or any Stone Party supports any such motion, application, or adversary proceeding filed or commenced by any third party) (A) challenging the validity, enforceability, or priority of, or seeking avoidance or subordination of, the Notes Claims or (B) asserting any other cause of action against the Consenting Noteholders or (ii) the Bankruptcy Court enters an order providing relief against any Consenting Noteholder with respect to any of the foregoing causes of action or proceedings filed by any Stone Party; (j) if the Bankruptcy Court or other governmental authority with jurisdiction shall have issued any order, injunction, or other decree or taken any other action, in each case, which has become final and non-appealable and which restrains, enjoins, or otherwise prohibits the implementation of the Restructuring Transactions or the effect of which would render the Plan incapable of consummation on the terms set forth in this Agreement and the Term Sheet; 11 -------------------------------------------------------------------------------- (k) any Stone Party terminates its obligations under and in accordance with this Agreement; (l) if the Stone Parties execute or file with the Bankruptcy Court any Definitive Documentation that is inconsistent with the requirements set forth in Section 4(b) of this Agreement; (m) if the Bankruptcy Court enters an order in the Chapter 11 Cases terminating any of the Stone Parties’ exclusive right to file a plan or plans of reorganization pursuant to section 1121 of the Bankruptcy Code; or (n) if the net purchase price, calculated by the Required Consenting Noteholders in their sole discretion in accordance with this Section 8(n) is less than $335.0 million. The net purchase price as used in this Section 8(n) shall be calculated by reducing the purchase price by (i) any purchase price adjustments (excluding adjustments related to interim operations between the Effective Time of the Appalachia PSA and the Closing Date (each as defined in the Appalachia PSA)) and (ii) any escrowed amounts, holdbacks or other similar deferred payments under the Appalachia PSA. Absent a finding of manifest error, the calculation of net purchase price by the Required Consenting Noteholders shall be final and binding on the parties with respect to this Section 8(n). The Stone Parties shall provide such assistance in good faith as reasonably requested by the Consenting Noteholders in the calculation of the net purchase price used in this Section 8(n). 9. The Stone Parties’ Termination Events. The Stone Parties shall have the right, but not the obligation, upon written notice to the Consenting Noteholders, to terminate their obligations (jointly) under this Agreement upon the occurrence of any of the following events (each a “Company Termination Event,” and together with the Consenting Noteholder Termination Events, the “Termination Events”), unless waived, in writing, by the Stone Parties on a prospective or retroactive basis: (a) a breach by a Consenting Noteholder of any representation, warranty, or covenant of such Consenting Noteholder set forth in this Agreement that would reasonably be expected to have a material adverse impact on the timely consummation of the Restructuring Transactions that (to the extent curable) remains uncured for a period of five (5) Business Days after written notice and a description of such breach is provided to the Consenting Noteholders; provided, however, that the Stone Parties may not seek to terminate this Agreement based upon a breach of this Agreement by a Consenting Noteholder arising primarily out of the Stone Parties’ own actions in breach of this Agreement; and provided, further, that so long as non-breaching Consenting Noteholders party hereto continue to hold at least 66-2/3% of the outstanding Notes Claims, such termination shall be effective only with respect to such breaching Consenting Noteholders; 12 -------------------------------------------------------------------------------- (b) subject to the prior notice required in the last paragraph of Section 7, if the Board of Directors of Stone desires to terminate this Agreement pursuant to the exercise of its fiduciary duties, after seeking the advice of outside legal counsel, to accept an Alternative Transaction, or make a public announcement regarding their intention to do so, as contemplated in the last paragraph of Section 7 of this Agreement; or (c) if the Bankruptcy Court or other governmental authority with jurisdiction shall have issued any order, injunction, or other decree or taken any other action, in each case, which has become final and non-appealable and which restrains, enjoins, or otherwise prohibits the implementation of the Restructuring Transactions. 10. Individual Termination. Any Consenting Noteholder may terminate this Agreement as to itself only, upon written notice to the other Parties, in the event that: (a) such Consenting Noteholder has transferred all (but not less than all) of its Notes Claims in accordance with Section 13 of this Agreement (such termination shall be effective on the date on which such Consenting Noteholder has effected such transfer, satisfied the requirements of Section 13 and provided the written notice required above in this Section 10); or (b) this Agreement is amended without its consent in such a way as to alter any of the material terms hereof in a manner that is disproportionately adverse to such Consenting Noteholder as compared to similarly situated Consenting Noteholders, by giving ten (10) Business Days’ written notice to the Stone Parties and the other Consenting Noteholders; provided, that such written notice shall be given by the applicable Consenting Noteholder within five (5) Business Days of such amendment, filing, or execution. 11. Mutual Termination; Automatic Termination. Notwithstanding anything in this Agreement to the contrary, this Agreement shall terminate automatically and all of the obligations of the Parties hereunder shall be of no further force or effect in the event that: (i) the Restructuring Transactions are consummated in accordance with this Agreement and the Term Sheet; (ii) the Restructuring Transactions are not consummated in accordance with this Agreement and the Term Sheet by the one-hundredth (100th) calendar day after the Petition Date, as such date may be extended in writing from time to time by the mutual agreement of the Stone Parties and the Required Consenting Noteholders; or (iii) the Stone Parties and the Required Consenting Noteholders mutually agree to such termination in writing. 12. Effect of Termination. The earliest date on which termination of this Agreement as to a Party is effective in accordance with Sections 8, 9, 10, or 11 of this Agreement shall be referred to, with respect to such Party, as a “Termination Date.” Upon the occurrence of a Termination Date, all Parties’ obligations under this Agreement shall be terminated effective immediately, and all Parties hereto shall be released from all commitments, undertakings, agreements, and obligations; provided, however, that each of the following shall survive any such termination: (a) any claim for breach of this Agreement that occurs prior to such Termination Date, and all rights and remedies with respect to such claims shall not be prejudiced in any way; (b) the Stone Parties’ obligations in Section 15 of this Agreement accrued up to and including such Termination Date; and (c) Sections 12, 15, 18, 19, 22, 23, 25, 27, 29, 31, 31, and 37 of this Agreement. The automatic stay applicable under section 362 of the Bankruptcy Code shall not prohibit a Party from taking any action necessary to effectuate the termination of this Agreement pursuant to and in accordance with the terms hereof. 13 -------------------------------------------------------------------------------- 13. Transfers of Claims and Interests. (a) No Consenting Noteholder shall (i) sell, transfer, assign, pledge, grant a participation interest in, or otherwise dispose of, directly or indirectly, any of its right, title, or interest in respect of any of such Consenting Noteholder’s claims against any Stone Party, as applicable, in whole or in part, or (ii) deposit any of such Consenting Noteholder’s claims against any Stone Party, as applicable, into a voting trust, or grant any proxies, or enter into a voting agreement with respect to any such claims or interests (the actions described in Clauses (i) and (ii) are collectively referred to herein as a “Transfer” and the Consenting Noteholder making such Transfer is referred to herein as the “Transferor”), unless such Transfer is to another Consenting Noteholder or any other entity (a “Transferee”) that first agrees in writing to be bound by the terms of this Agreement by executing and delivering to the Stone Parties a Transferee Joinder substantially in the form attached hereto as Exhibit B (the “Transferee Joinder”). With respect to claims against or interests in a Stone Party held by the relevant Transferee upon consummation of a Transfer in accordance herewith, such Transferee is deemed to make all of the representations, warranties, and covenants of a Consenting Noteholder, set forth in this Agreement as of the date of such Transfer. Upon compliance with the foregoing, the Transferor shall be deemed to relinquish its rights (and be released from its obligations, except for any claim for breach of this Agreement that occurs prior to such Transfer and any remedies with respect to such claim) under this Agreement to the extent of such transferred rights and obligations. Any Transfer made in violation of this Section 13 shall be deemed null and void ab initio and of no force or effect, regardless of any prior notice provided to the Stone Parties and/or any Consenting Noteholder, and shall not create any obligation or liability of any Stone Party or any other Consenting Noteholder to the purported transferee. (b) Notwithstanding anything to the contrary herein, (i) the foregoing Clause (a) of this Section 13 shall not preclude any Consenting Noteholder from transferring Notes Claims to affiliates of such Consenting Noteholder (each, a “Creditor Affiliate”), which Creditor Affiliate shall be automatically bound by this Agreement upon the transfer of such Notes Claims, and (ii) a Qualified Marketmaker4 that acquires any of the Notes Claims with the purpose and intent of acting as a Qualified Marketmaker for such Notes Claims shall not be required to execute and deliver to counsel a Transferee Joinder or otherwise agree to be bound by the terms and conditions set forth in this Agreement if such Qualified Marketmaker transfers such Notes Claims (by purchase, sale, assignment, participation, or otherwise) to a Consenting Noteholder or a Transferee (including, for the avoidance of doubt, the requirement that such Transferee execute a Transferee Joinder). 4 As used herein, the term “Qualified Marketmaker” means an entity that (a) holds itself out to the public or the applicable private markets as standing ready in the ordinary course of business to purchase from customers and sell to customers claims against the Stone Parties (or enter with customers into long and short positions in claims against the Stone Parties), in its capacity as a dealer or market maker in claims against the Stone Parties and (b) is, in fact, regularly in the business of making a market in claims against issuers or borrowers (including debt securities or other debt). 14 -------------------------------------------------------------------------------- 14. Further Acquisition of Claims or Interests. Except as expressly set forth in Section 13 of this Agreement, nothing in this Agreement shall be construed as precluding any Consenting Noteholder from acquiring additional claims against or interests in any Stone Parties; provided, however, that any such claims or interests shall automatically be subject to the terms and conditions of this Agreement. Upon any such further acquisition by a Consenting Noteholder, such Consenting Noteholder shall promptly notify in writing the Stone Parties and legal counsel to the Noteholder Committee (as defined below). 15. Fees and Expenses. Subject to Section 12 of this Agreement the Stone Parties shall pay or reimburse all reasonable and documented fees and out-of-pocket expenses (regardless of whether such fees and expenses were incurred before or after the Petition Date and in each case, in accordance with (and when due under) any applicable engagement letter or fee reimbursement letter with the Stone Parties) of: (a) Akin Gump Strauss Hauer & Feld LLP and one local law firm, as legal counsel to an ad hoc committee of Noteholders (the “Noteholder Committee”) and (b) Intrepid Financial Partners, L.L.C., as the financial advisor retained on behalf of the Noteholder Committee; provided, however, that all outstanding invoices of the Noteholder Committee’s professionals and advisors shall be paid in full immediately prior to the Petition Date.5 16. Consents and Acknowledgments. Each Party irrevocably acknowledges and agrees that this Agreement is not and shall not be deemed to be a solicitation for consents to the Plan. The acceptance of the Plan by each of the Consenting Noteholders will not be solicited until such Parties have received the Disclosure Statement and related ballots in accordance with applicable law, and will be subject to sections 1125, 1126, and 1127 of the Bankruptcy Code. This Agreement does not constitute, and shall not be deemed to constitute, an offer for the purchase, sale, exchange, hypothecation, or other transfer of securities for purposes of the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, or any other federal, state, or provincial law or regulation. 17. Representations and Warranties. (a) Each Consenting Noteholder hereby represents and warrants on a several and not joint basis, for itself and not for any other person or entity, that the following statements are true, correct, and complete, to the best of its actual knowledge, as of the RSA Effective Date: (i) it has the requisite organizational power and authority to enter into this Agreement and to carry out the transactions contemplated by, and perform its respective obligations under, this Agreement; (ii) the execution and delivery of this Agreement and the performance of its obligations hereunder have been duly authorized by all necessary corporate or other organizational action on its part; (iii) the execution, delivery, and performance by it of this Agreement does not violate any provision of law, rule, or regulation applicable to it or any of its affiliates, or its certificate of incorporation, or bylaws, or other organizational documents, or those of any of its affiliates; 5 Subject to (i) the receipt by Akin Gump of a prepetition advance payment sufficient to bring the aggregate amount on account up to $500,000, and (ii) the receipt by Intrepid of a prepetition advance payment in the amount of $250,000. 15 -------------------------------------------------------------------------------- (iv) the execution and delivery by it of this Agreement does not require any registration or filing with, the consent or approval of, notice to, or any other action with any federal, state, or other governmental authority or regulatory body, other than, for the avoidance of doubt, the actions with governmental authorities or regulatory bodies required in connection with implementation of the Restructuring Transactions; (v) subject to the provisions of sections 1125 and 1126 of the Bankruptcy Code, this Agreement is the legally valid and binding obligation of it, enforceable against it in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium, or other similar laws relating to or limiting creditors’ rights generally, or by equitable principles relating to enforceability; (vi) it has sufficient knowledge and experience to evaluate properly the terms and conditions of this Agreement and the Term Sheet, and has been afforded the opportunity to discuss the Plan and other information concerning the Stone Parties with the Stone Parties’ representatives, and to consult with its legal and financial advisors with respect to its investment decision to execute this Agreement, and it has made its own analysis and decision to enter into this Agreement and otherwise investigated this matter to its full satisfaction; (vii) it (A) either (1) is the sole owner of the claims and interests identified next to its name on Annex A attached hereto and in the amounts set forth therein, or (2) has all necessary investment or voting discretion with respect to the claims and interests identified next to its name on Annex A attached hereto, and has the power and authority to bind the owner(s) of such claims and interests to the terms of this Agreement; (B) is entitled (for its own accounts or for the accounts of such other owners) to all of the rights and economic benefits of such claims and interests; and (C) does not directly or indirectly own or control any claims against or interests in any Stone Party other than as identified next to its name on Annex A attached hereto (which annex, for the avoidance of doubt, shall not be publically disclosed or filed); and (viii) other than pursuant to this Agreement, the claims and interests identified on Annex A free and clear of any pledge, lien, security interest, charge, claim, equity, option, proxy, voting restriction, right of first refusal, or other limitation on disposition or encumbrance of any kind, that would adversely affect in any material way such Consenting Noteholder’s performance of its obligations contained in this Agreement at the time such obligations are required to be performed. (b) Each Stone Party hereby represents and warrants on a joint and several basis (and not any other person or entity other than the Stone Parties) that the following statements are true, correct, and complete as of the RSA Effective Date: (i) it has the requisite corporate or other organizational power and authority to enter into this Agreement and to carry out the transactions contemplated by, and perform its respective obligations under, this Agreement; 16 -------------------------------------------------------------------------------- (ii) the execution and delivery of this Agreement and the performance of its obligations hereunder have been duly authorized by all necessary corporate or other organizational action on its part; (iii) the execution and delivery by it of this Agreement does not (A) violate its certificates of incorporation, or bylaws, or other organizational documents, or those of any of its affiliates, or (B) result in a breach of, or constitute (with due notice or lapse of time or both) a default (other than, for the avoidance of doubt, a breach or default that would be triggered as a result of the Chapter 11 Cases or any Stone Party’s undertaking to implement the Restructuring Transactions through the Chapter 11 Cases) under any material contractual obligation to which it or any of its affiliates is a party; (iv) the execution and delivery by it of this Agreement does not require any registration or filing with, the consent or approval of, notice to, or any other action with any federal, state, or other governmental authority or regulatory body, other than, for the avoidance of doubt, the actions with governmental authorities or regulatory bodies required in connection with implementation of the Restructuring Transactions; (v) subject to the provisions of sections 1125 and 1126 of the Bankruptcy Code, this Agreement is the legally valid and binding obligation of it, enforceable against it in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium, or other similar laws relating to or limiting creditors’ rights generally, or by equitable principles relating to enforceability; (vi) it has sufficient knowledge and experience to evaluate properly the terms and conditions of this Agreement and the Term Sheet, and has been afforded the opportunity to consult with its legal and financial advisors with respect to its decision to execute this Agreement, and it has made its own analysis and decision to enter into this Agreement and otherwise investigated this matter to its full satisfaction; (vii) Stone has filed or furnished, as applicable, all forms, filings, registrations, submissions, statements, certifications, reports, and documents required to be filed or furnished by it with the U.S. 17 -------------------------------------------------------------------------------- Securities and Exchange Commission (the “SEC”) under the U.S. Securities Exchange Act of 1934, as amended, or the U.S. Securities Act of 1933, as amended (collectively, “SEC Filings”), since December 31, 2014 (the SEC Filings since December 31, 2014 and through the RSA Effective Date, including any amendments thereto, the “Company Reports”). As of their respective dates (or, if amended prior to the date hereof, as of the date of such amendment), each of the Company Reports, as amended, complied in all material respects with the applicable requirements of the Exchange Act and the Securities Act, and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (or, if amended prior to the date hereof, as of the date of such amendment), the Company Reports did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading; and (viii) the Stone Parties’ consolidated financial statements (including, in each case, any notes thereto) contained in the Company Reports were prepared: (i) in accordance with generally accepted accounting principles in the United States of America (“GAAP”) applied on a historically consistent basis throughout the periods indicated (except as may be indicated in the notes thereto or, in the case of interim consolidated financial statements, where information and footnotes contained in such financial statements are not required under the rules of the SEC to be in compliance with GAAP) and (ii) in compliance, as of their respective dates of filing with the SEC, in all material respects with applicable accounting requirements and with the published rules and regulations of the SEC with respect thereto, and in each case, such consolidated financial statements fairly presented, in all material respects, the consolidated financial position, results of operations, changes in stockholder’s equity and cash flows of the Stone Parties, as applicable, and its consolidated subsidiaries as of the respective dates thereof and for the respective periods covered thereby (subject, in the case of unaudited statements, to normal year-end adjustments). 18. Survival of Agreement. Each of the Parties acknowledges and agrees that this Agreement is being executed in connection with negotiations concerning a financial restructuring of the Stone Parties and in contemplation of chapter 11 filings by the Stone Parties, and the exercise of the rights granted in this Agreement after the commencement of the Chapter 11 Cases shall not be a violation of the automatic stay provisions of section 362 of the Bankruptcy Code. 19. Settlement. This Agreement and the Restructuring Transactions are part of a proposed settlement of matters that could otherwise be the subject of litigation among the Parties. Nothing herein shall be deemed an admission of any kind. Pursuant to Federal Rule of Evidence 408, any applicable state rules of evidence and any other applicable law, foreign or domestic, this Agreement, the exhibits attached hereto, the Plan, and all negotiations relating thereto shall not be admissible into evidence in any proceeding other than a proceeding to enforce the terms of this Agreement or the exhibits attached hereto (as applicable). 18 -------------------------------------------------------------------------------- 20. Relationship Among Parties. Notwithstanding anything herein to the contrary, the duties and obligations of the Consenting Noteholders under this Agreement shall be several, not joint. No Party shall have any responsibility by virtue of this Agreement for any trading by any other entity, and it is hereby expressly acknowledged by the Consenting Noteholders, on the one hand, and the Stone Parties, on the other hand, that they are in privity with each other and that no Consenting Noteholder is in privity with any other Consenting Noteholder in connection with this Agreement or any of the transactions contemplated hereby. The Consenting Noteholders represent and warrant that as of the date hereof and for so long as this Agreement remains in effect, the Consenting Noteholders have no agreement, arrangement, or understanding with respect to acting together for the purpose of acquiring, holding, voting, or disposing of any equity securities of the Stone Parties. No prior history, pattern, or practice of sharing confidences among or between the Parties shall in any way affect or negate this Agreement, and each Consenting Noteholder shall be entitled to independently protect and enforce its rights, including, without limitation, the rights arising out of this Agreement, and it shall not be necessary for any other Consenting Noteholder to be joined as an additional party in any proceeding for such purpose. Nothing contained in this Agreement, and no action taken by any Consenting Noteholder pursuant hereto is intended to constitute the Consenting Noteholders as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that any Consenting Noteholder is in any way acting in concert or as a member of a “group” with any other Consenting Noteholder or Consenting Noteholders within the meaning of Rule 13d-5 under the Securities Exchange Act of 1934, as amended. 21. Specific Performance. It is understood and agreed by the Parties that money damages may be an insufficient remedy for any breach of this Agreement by any Party and each non-breaching Party shall be entitled to seek specific performance and injunctive or other equitable relief as a remedy of any such breach of this Agreement, including, without limitation, an order of the Bankruptcy Court or other court of competent jurisdiction requiring any Party to comply promptly with any of its obligations hereunder. 22. Governing Law and Consent to Jurisdiction and Venue. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to such state’s choice of law provisions which would require or permit the application of the law of any other jurisdiction. By its execution and delivery of this Agreement, each Party irrevocably and unconditionally agrees for itself that any legal action, suit, or proceeding against it with respect to any matter arising under or arising out of or in connection with this Agreement or for recognition or enforcement of any judgment rendered in any such action, suit, or proceeding shall be brought in the federal or state courts located in the City of Wilmington, in New Castle County and in the State of Delaware, and each of their respective appellate courts, and by executing and delivering this Agreement, each of the Parties irrevocably accepts and submits itself to the exclusive jurisdiction of such court, generally and unconditionally, with respect to any such action, suit, or proceeding. Notwithstanding the foregoing consent to Delaware jurisdiction, upon the commencement of any Chapter 11 Cases and until the effective date of the Plan, each Party agrees that the Bankruptcy Court shall have exclusive jurisdiction of all matters arising out of or in connection with this Agreement. By executing and delivering this Agreement, and upon commencement of the Chapter 11 Cases, each of the Parties irrevocably and unconditionally submits to the personal jurisdiction of the Bankruptcy Court solely for purposes of any action, suit, proceeding, or other contested matter arising out of or relating to this Agreement, or for recognition or enforcement of any judgment rendered or order entered in any such action, suit, proceeding, or other contested matter. 19 -------------------------------------------------------------------------------- 23. WAIVER OF RIGHT TO TRIAL BY JURY. EACH OF THE PARTIES WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY ACTION, PROCEEDING, COUNTERCLAIM, OR DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, BETWEEN ANY OF THE PARTIES ARISING OUT OF, CONNECTED WITH, RELATING TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN ANY OF THEM IN CONNECTION WITH THIS AGREEMENT. INSTEAD, ANY DISPUTES RESOLVED IN COURT SHALL BE RESOLVED IN A BENCH TRIAL WITHOUT A JURY. 24. Successors and Assigns. Except as otherwise provided in this Agreement and subject to Section 13 of this Agreement, neither this Agreement nor any of the rights or obligations hereunder may be assigned by any Party hereto, without the prior written consent of the other Parties hereto, and then only to a person or entity that has agreed to be bound by the provisions of this Agreement. This Agreement is intended to and shall bind and inure to the benefit of each of the Parties and each of their respective permitted successors, assigns, heirs, executors, administrators, and representatives. 25. No Third-Party Beneficiaries. Unless expressly stated herein, this Agreement shall be solely for the benefit of the Parties and no other person or entity shall be a third-party beneficiary of this Agreement. 26. Notices. All notices (including, without limitation, any notice of termination or breach) and other communications from any Party hereunder shall be in writing and shall be deemed to have been duly given if personally delivered by courier service or messenger; registered, certified or overnight mail; e-mail, or facsimile to the other Parties at the applicable addresses below, or such other addresses as may be furnished hereafter by notice in writing. Any notice of termination or breach shall be delivered to all other Parties. (a) If to any Stone Party: Stone Energy Corporation 625 East Kaliste Saloom Rd. Lafayette, LA 70508 Attn: Lisa S. Jaubert and Kenneth H. Beer Phone: (337) 521-2278 Fax: (337) 521-9916 E-mail: JaubertLS@StoneEnergy.com; and BeerKH@StoneEnergy.com. 20 -------------------------------------------------------------------------------- with a copy to: Latham & Watkins LLP 330 North Wabash Avenue, Suite 2800 Chicago, IL 60611 Attn: David S. Heller; Josef S. Athanas, Caroline A. Reckler, and Matthew L. Warren Phone: (312) 876-7700 Fax: (312) 993-9767 E-mail: david.heller@lw.com, josef.athanas@lw.com, caroline.reckler@lw.com, and matthew.warren@lw.com -and- Andrews Kurth LLP 600 Travis, Suite 4200 Houston, TX 77002 Attn: Robin Russell Phone: (713) 220-4086 Fax: (713) 238.7192 E-mail: rrussell@andrewskurth.com (b) If to any Consenting Noteholder: To the notice address provided on Annex A. with a copy to: Akin Gump Strauss Hauer & Feld LLP One Bryan Park Bank of America Tower New York, NY 10036-6745 Attn: Michael S. Stamer, Meredith Lahaie, and Stephen B. Kuhn. Phone: (212) 872-1000 Fax: (212) 872-1002 E-mail: mstamer@akingump.com, mlahaie@akingump.com, and skuhn@akingump.com. 27. Entire Agreement. This Agreement (and the exhibits and schedules attached hereto) constitutes the entire agreement of the Parties with respect to the transactions contemplated herein, and supersedes all prior negotiations, discussions, promises, representations, warranties, agreements, and understandings, whether written or oral, between or among the Parties with respect thereto; provided, however, that, for the avoidance of doubt, any confidentiality agreement executed by any Consenting Noteholder shall survive this Agreement and shall continue to be in full force and effect in accordance with its terms; provided, further, that the Parties intend to enter into the Definitive Documentation after the date hereof to consummate the Restructuring Transactions. 21 -------------------------------------------------------------------------------- 28. Amendments. Except as otherwise provided herein, this Agreement may not be modified, amended, or supplemented, and no term or provision hereof or thereof waived, without the prior written consent of the Stone Parties and the Required Consenting Noteholders, provided that, the written consent of each Consenting Noteholder and the Stone Parties shall be required for any amendments, amendments and restatements, modifications, or other changes to the defined term “Required Consenting Noteholders,” Section 10 and this Section 28 and provided, further, that any amendments, amendments and restatements, modifications, or other changes to the Term Sheet shall require the prior written consent of Consenting Noteholders, holding at least two-thirds of the principal amount outstanding of all Notes Claims held by the Consenting Noteholders provided that, such Consenting Noteholders holding at least two-thirds of the principal amount shall include at least two (2) separate Consenting Noteholders (for purposes of this provision, each institution holding Notes Claims shall be taken together with each of its controlled affiliate’s and subsidiary’s Notes Claims holdings and they shall together in the aggregate constitute a single Consenting Noteholder). 29. Reservation of Rights. (a) Except as expressly provided in this Agreement, nothing herein is intended to, or does, in any manner waive, limit, impair, or restrict the ability of any Party to protect and preserve its rights, remedies, and interests, including without limitation, its claims against any of the other Parties. (b) Without limiting Clause (a) of this Section 29 in any way, if the Restructuring Transactions are not consummated in the manner and on the timeline set forth in this Agreement, or if this Agreement is terminated for any reason in accordance with its terms, nothing shall be construed herein as a waiver by any Party of any or all of such Party’s rights, remedies, claims, and defenses and the Parties expressly reserve any and all of their respective rights, remedies, claims, and defenses, subject to Section 19 of this Agreement. This Agreement, the Plan, and any related document shall in no event be construed as or be deemed to be evidence of an admission or concession on the part of any Party of any claim or fault or liability or damages whatsoever. Each of the Parties denies any and all wrongdoing or liability of any kind and does not concede any infirmity in the claims or defenses which it has asserted or could assert. 30. Counterparts. This Agreement may be executed in one or more counterparts, each of which, when so executed, shall constitute the same instrument, and the counterparts may be delivered by facsimile transmission or by electronic mail in portable document format (.pdf). 31. Public Disclosure. This Agreement, as well as its terms, its existence, and the existence of the negotiation of its terms are expressly subject to any existing confidentiality agreements executed by and among any of the Parties as of the date hereof; provided, however, that, after the Petition Date, the Parties may disclose the existence of, or the terms of, this Agreement or any other material term of the Restructuring Transactions contemplated herein without the express written consent of the other Parties. For the avoidance of doubt and notwithstanding the generality of the foregoing, under no circumstances may any Party make any public disclosure of any kind that would disclose either: (i) the holdings of any Consenting Noteholder (including Annex A, which shall not be publicly disclosed or filed) or (ii) the identity of any Consenting Noteholder without the prior written consent of such Consenting Noteholder or the order of a Bankruptcy Court or other court with competent jurisdiction. 22 -------------------------------------------------------------------------------- 32. Creditors’ Committee. Notwithstanding anything herein to the contrary, if any Consenting Noteholder is appointed to, and serves on an official committee of creditors in the Chapter 11 Cases, the terms of this Agreement shall not be construed so as to limit such Consenting Noteholder’s exercise of its fiduciary duties arising from its service on such committee; provided, however, that service as a member of a committee shall not relieve such Consenting Noteholder of its obligations to affirmatively support the Restructuring Transactions on the terms and conditions set forth in this Agreement and the Term Sheet and the transactions with Buyer on the terms and .conditions set forth in this Agreement and the Appalachia PSA. 33. Severability. If any portion of this Agreement shall be held to be invalid, unenforceable, void or voidable, or violative of applicable law, the remaining portions of this Agreement insofar as they may practicably be performed shall remain in full force and effect and binding on the Parties. 34. Additional Parties. Without in any way limiting the provisions hereof, additional Noteholders may become Parties by executing and delivering to the other Parties a duly executed counterpart hereof. Such additional Parties shall become Consenting Noteholders under this Agreement in accordance with the terms of this Agreement. 35. Time Periods. If any time period or other deadline provided in this Agreement expires on a day that is not a Business Day, then such time period or other deadline, as applicable, shall be deemed extended to the next succeeding Business Day. 36. Headings. The section headings of this Agreement are for convenience of reference only and shall not, for any purpose, be deemed a part of this Agreement. 37. Interpretation. This Agreement is the product of negotiations among the Parties, and the enforcement or interpretation hereof, is to be interpreted in a neutral manner, and any presumption with regard to interpretation for or against any Party by reason of that Party having drafted or caused to be drafted this Agreement or any portion hereof, shall not be effective in regard to the interpretation hereof. For purposes of this Agreement, unless otherwise specified: (a) each term, whether stated in the singular or the plural, shall include both the singular and the plural, and pronouns stated in the masculine, feminine, or neuter gender shall include the masculine, feminine, and the neuter gender; (b) all references herein to “Articles,” “Sections,” and “Exhibits” are references to Articles, Sections, and Exhibits of this Agreement; and (c) the words “herein,” “hereof,” “hereunder,” and “hereto,” refer to this Agreement in its entirety rather than to a particular portion of this Agreement. The phrase “reasonable best efforts” or words or phrases of similar import as used herein shall not be deemed to require any party to enforce or exhaust their appellate rights in any court of competent jurisdiction, including, without limitation, the Bankruptcy Court. 38. Remedies Cumulative; No Waiver. All rights, powers, and remedies provided under this Agreement or otherwise available in respect hereof at law or in equity shall be cumulative and not alternative, and the exercise of any right, power, or remedy thereof by any Party shall not preclude the simultaneous or later exercise of any other such right, power, or remedy by such Party. The failure of any Party hereto to exercise any right, power, or remedy provided under this Agreement or otherwise available in respect hereof at law or in equity, or to insist upon strict 23 -------------------------------------------------------------------------------- compliance by any other Party hereto with its obligations hereunder, and any custom or practice of the parties at variance with the terms hereof, shall not constitute a waiver by such Party of its right to exercise any such or other right, power, or remedy or to demand such strict compliance. [Signatures and exhibits follow.] 24 -------------------------------------------------------------------------------- IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth above. STONE ENERGY CORPORATION, a Delaware corporation By: /s/ Kenneth H. Beer Kenneth H. Beer, Executive Vice President and Chief Financial Officer STONE ENERGY OFFSHORE, L.L.C., a Delaware limited liability company, by Stone Energy Corporation, its sole member By: /s/ Kenneth H. Beer Kenneth H. Beer, Executive Vice President and Chief Financial Officer STONE ENERGY HOLDING, L.L.C., a Delaware limited liability company, by Stone Energy Corporation, it sole member By: /s/ Kenneth H. Beer Kenneth H. Beer, Executive Vice President and Chief Financial Officer [Signature Page to Restructuring Support Agreement – Consenting Noteholder] -------------------------------------------------------------------------------- Schedule 1 Milestones (a) the Stone Parties shall commence the solicitation in respect of the Plan, no later than November 3, 2016; (b) the Stone Parties shall commence the Chapter 11 Cases by filing bankruptcy petitions with the Bankruptcy Court no later than December 9, 2016 (such filing date, the “Petition Date”); (c) within two (2) calendar days after the Petition Date, the Stone Parties shall file with the Bankruptcy Court: (i) a motion seeking to assume this Agreement (the “RSA Assumption Motion”), (ii) the Plan and Disclosure Statement, and (iii) a motion (the “Disclosure Statement and Solicitation Motion”) seeking, among other things: (A) approval of the Disclosure Statement; (B) approval of procedures for soliciting, receiving, and tabulating votes on the Plan and for filing objections to the Plan; and (C) to schedule the hearing to consider confirmation of the Plan (the “Confirmation Hearing”); (d) no later than thirty (30) calendar days from the Petition Date, the Bankruptcy Court shall have entered an order authorizing the assumption of this Agreement (the “RSA Assumption Order”); (e) no later than seventy-five (75) calendar days after the Plan and Disclosure Statement are filed, the Bankruptcy Court shall have entered the Confirmation Order; (f) no later than fifteen (15) calendar days after entry of the Confirmation Order by the Bankruptcy Court, the Stone Parties shall consummate the transactions contemplated by the Plan (the date of such consummation, the “Plan Effective Date”); and (g) no later than the Plan Effective Date, the Stone Parties shall have received at least $350 million from the sale of the Appalachian Assets (as defined in the Term Sheet) subject to adjustment in accordance with the Appalachia PSA. Schedule 1 -------------------------------------------------------------------------------- Exhibit A to the Restructuring Support Agreement Term Sheet [See Attached] -------------------------------------------------------------------------------- STONE ENERGY CORPORATION RESTRUCTURING TERM SHEET October 20, 2016 THIS TERM SHEET IS NOT AN OFFER WITH RESPECT TO ANY SECURITIES OR A SOLICITATION OF ACCEPTANCE OR REJECTION OF A CHAPTER 11 PLAN OF REORGANIZATION PURSUANT TO THE BANKRUPTCY CODE. ANY SUCH OFFER OR SOLICITATION WILL BE MADE ONLY IN COMPLIANCE WITH ALL APPLICABLE SECURITIES LAWS AND, IF APPLICABLE, PROVISIONS OF THE BANKRUPTCY CODE. THIS TERM SHEET IS BEING PROVIDED IN FURTHERANCE OF SETTLEMENT DISCUSSIONS AND IS ENTITLED TO PROTECTION PURSUANT TO RULE 408 OF THE FEDERAL RULES OF EVIDENCE AND ANY SIMILAR FEDERAL OR STATE RULE OF EVIDENCE. THE TRANSACTIONS DESCRIBED IN THIS TERM SHEET ARE SUBJECT IN ALL RESPECTS TO, AMONG OTHER THINGS, EXECUTION AND DELIVERY OF DEFINITIVE DOCUMENTATION AND SATISFACTION OR WAIVER OF THE CONDITIONS PRECEDENT SET FORTH THEREIN. NOTHING IN THIS TERM SHEET SHALL CONSTITUTE OR BE CONSTRUED AS AN ADMISSION OF ANY FACT OR LIABILITY, A STIPULATION OR A WAIVER, AND EACH STATEMENT CONTAINED HEREIN IS MADE WITHOUT PREJUDICE, WITH A FULL RESERVATION OF ALL RIGHTS, REMEDIES, CLAIMS AND DEFENSES OF THE LENDERS, THE COMPANY, AND ANY CREDITOR PARTY. THIS TERM SHEET DOES NOT INCLUDE A DESCRIPTION OF ALL OF THE TERMS, CONDITIONS, AND OTHER PROVISIONS THAT ARE TO BE CONTAINED IN THE DEFINITIVE DOCUMENTATION, WHICH REMAIN SUBJECT TO DISCUSSION, NEGOTIATION AND EXECUTION. SUMMARY OF PRINCIPAL TERMS OF PROPOSED RESTRUCTURING TRANSACTIONS This term sheet (the “Term Sheet”) sets forth certain key terms of a proposed restructuring transaction (the “Transaction”) with respect to the existing debt and other obligations of Stone Energy Corporation (“Stone”), Stone Energy Offshore, L.L.C. (“Stone Offshore”) and Stone Energy Holdings, L.L.C. (each a “Stone Party” and collectively, the “Stone Parties” or the “Company”). This Term Sheet is the “Term Sheet” referenced as Exhibit A in that certain Restructuring Support Agreement, dated as of October 20, 2016 (as the same may be amended, modified or supplemented, the “Support Agreement”), by and among the Stone Parties and the Consenting Noteholders party thereto. Capitalized terms used but not otherwise defined in this Term Sheet shall have the meanings given to such terms in the Support Agreement. This Term Sheet Page 28 -------------------------------------------------------------------------------- supersedes any proposed summary of terms or conditions regarding the subject matter hereof and dated prior to the date hereof. Subject to the Support Agreement, the Transaction will be implemented through pre-packaged6 Chapter 11 Cases pursuant to the Plan. TREATMENT OF CLAIMS AND INTERESTS The below summarizes the treatment to be received on or as soon as practicable after the Consummation Date (as defined below) by holders of claims against, and interests in, the Company pursuant to the Transaction. Administrative, Priority, and Tax Claims Allowed administrative, priority, and tax claims will be satisfied in full, in cash, or otherwise receive treatment consistent with the provisions of section 1129(a)(9) of the Bankruptcy Code. Bank Claims Each holder of an allowed Bank Claim shall receive (a) (i) if the class of Bank Claims votes to accept the Plan, on a pro rata basis, commitments under an amended Credit Agreement with the terms set forth on Exhibit 1(a) hereto or (ii) if the class of Bank Claims does not vote to accept the Plan (or is deemed to reject the Plan), a term loan with the terms set forth on Exhibit 1(b) hereto or (b) such other treatment as is acceptable to the Company and the Required Consenting Noteholders and consistent with the Bankruptcy Code, including, but not limited to, section 1129(b) of the Bankruptcy Code. Other Secured Claims Secured claims (other than Bank Claims) shall be unaltered and paid in full in the ordinary course of business to the extent such claims are undisputed. 6 Subject to resolution of management/employment issues. Page 29 -------------------------------------------------------------------------------- Notes Claims Each holder of an allowed Notes Claim shall receive its pro rata share of (a) $150 million of the net cash proceeds from the sale of the Appalachian Assets plus 85% of the net cash proceeds from the sale of the Appalachian Assets in excess of $350 million, if any, (b) 95% of the common stock in reorganized Stone (the “New Equity Interests”), subject to dilution by the Warrants, the Management Incentive Plan (each as defined below) and subsequent issuances of common stock (including securities or instruments convertible into common stock) by Stone from time to time after the Consummation Date, as set forth herein, and (c) $225 million of 7.5% notes due 2022 secured by a second-priority security interest on all assets securing the obligations owing to the holders of Bank Claims, with the terms set forth on Exhibit 2 hereto (the “New Notes”). General Unsecured Claims Unsecured claims other than Notes Claims shall be unaltered and paid in full in the ordinary course of business to the extent such claims are undisputed. Intercompany Claims Intercompany claims shall be reinstated, compromised, or cancelled, at the election of the Company and the Required Consenting Noteholders such that intercompany claims are treated in a tax-efficient manner. Equity Interests All existing common stock and other equity interests and rights in Stone shall be extinguished as of the Consummation Date. If the class of Bank Claims votes in favor of the Plan or if the Bankruptcy Court holds that the Plan may be confirmed notwithstanding that the class of Bank Claims votes against the Plan (or is deemed to reject the Plan) pursuant to 1129 (b) of the Bankruptcy Code, then each holder of existing common stock in Stone shall receive its pro rata share of 5% of the New Equity Interests and warrants on terms and conditions consistent with the term sheet attached hereto as Exhibit 3 (the “Warrants”), which New Equity Interests shall be subject to dilution by the Warrants and the Management Incentive Plan and subsequent issuances of common stock (including securities or instruments convertible into common stock) by Stone from time to time after the Consummation Date. Page 30 -------------------------------------------------------------------------------- OTHER TERMS OF THE TRANSACTION Sale of Appalachian Assets Prior to or simultaneously with the Consummation Date, the Company shall have sold substantially all of its assets located in the Marcellus and Utica shales in Appalachia (the “Appalachian Assets”) for at least $350 million subject to adjustments as provided for in the purchase and sale agreement. Corporate Governance The terms and conditions of the new corporate governance documents of the reorganized Company (including the bylaws and certificates of incorporation or similar documents, among other governance documents) shall be acceptable to the Required Consenting Noteholders in their sole discretion. The Parties expect that the reorganized Company following the Consummation Date will continue as a public reporting company under applicable U.S. securities laws and, consequently, the terms and conditions of the new corporate governance documents of the reorganized Company will be appropriate for such a public reporting company. The New Equity Interests issued to the Noteholders may, if so determined by the Required Consenting Noteholders (including if the Company will not be a public reporting company immediately following the Consummation Date), be subject to a stockholders agreement (the “New Stockholders Agreement”) containing terms and conditions that are appropriate for a private company and otherwise are acceptable to the Required Consenting Noteholders in their sole discretion. Such New Stockholders Agreement (if any) would govern the composition of the board or other governing body of reorganized Stone (the “New Board”) and will include customary approval rights for major stockholders and customary minority protections, including, but not limited to, transfer restrictions for the New Equity Interests issued to the Noteholders (solely for the purpose of assuring the Company would not be forced to become a public reporting company prior to such time as may be determined by the New Board), tag-along rights, drag-along rights, preemptive rights, information rights, and other customary protections for transactions of this type. Page 31 -------------------------------------------------------------------------------- Board of Directors The New Board shall initially consist of seven (7) directors selected by the Required Consenting Noteholders, one of whom will be the chief executive officer of Stone; provided, however, that the Required Consenting Noteholders shall interview any existing Board member who wishes to continue as a member of the New Board. Management Incentive Plan On the Consummation Date, reorganized Stone shall adopt a management incentive plan (the “Management Incentive Plan”) which shall provide for the grant of up to 10% of the New Equity Interests (or warrants or options to purchase New Equity Interests or other equity-linked interests) on a fully diluted basis to certain members of management. The form, allocation and any limitations on the Management Incentive Plan shall be determined by the New Board (or a committee thereof). Releases & Exculpation The amended Credit Agreement, the indenture for the New Notes, the Plan, and the Confirmation Order will contain customary mutual releases and other exculpatory provisions in favor of the Company, the Consenting Noteholders, the Indenture Trustee, the holders of existing common stock in Stone that provide a release, and each of their respective current and former affiliates, subsidiaries, members, professionals, advisors, employees, directors, and officers, in their respective capacities as such; provided, however, that if the class of Bank Claims votes to accept the Plan, the holders of Bank Claims and the administrative agent under the Credit Agreement will also be subject to the foregoing releases and exculpatory provisions. Such release and exculpation shall include, without limitation, any and all claims, obligations, rights, suits, damages, causes of action, remedies, and liabilities whatsoever, whether known or unknown, foreseen or unforeseen, existing or hereinafter arising, in law, equity, or otherwise, including any derivative claims and avoidance actions, of the Company, whether known or unknown, foreseen or unforeseen, existing or hereinafter arising, in law, equity, or otherwise, that the Company would have been legally entitled to assert in its own right (whether individually or collectively), or on behalf of the holder of any claim or equity interest (whether individually or collectively) or other entity, based in whole or in part upon any act or omission, transaction, or other occurrence or circumstances existing or taking place at any time prior to or on the Consummation Date arising from or related in any way in whole or in part to the Company, the Credit Agreement, the Indentures, the Chapter 11 Cases, the purchase, sale, or rescission of the purchase or sale of any Page 32 -------------------------------------------------------------------------------- security of the Company, the subject matter of, or the transactions or events giving rise to, any claim or equity interest that is affected by the Transaction or treated in the Plan, or the negotiation, formulation, or preparation of the Definitive Documentation or related agreements, instruments, or other documents, in each case other than claims, actions, or liabilities arising out of or relating to any act or omission that constitutes willful misconduct, actual fraud, or gross negligence as determined by final order of a court of competent jurisdiction. To the maximum extent permitted by applicable law, any such releases shall bind all parties who affirmatively agree or vote to accept the Plan, those parties who abstain from voting on the Plan if they fail to opt-out of the releases, and those parties that vote to reject the Plan unless they opt-out of the releases. Injunction & Discharge The Plan and Confirmation Order will contain customary injunction and discharge provisions. Cancellation of Instruments, Certificates, and Other Documents On the Consummation Date and immediately prior to or concurrent with the distributions contemplated in this Term Sheet, except to the extent otherwise provided herein or in the Definitive Documentation, all instruments, certificates, and other documents evidencing debt of or equity interests in Stone and its subsidiaries shall be cancelled, and the obligations of Stone and its subsidiaries thereunder, or in any way related thereto, shall be discharged. Employee Compensation and Benefit Programs The employment agreements and severance policies, and all employment, compensation and benefit plans, policies, and programs of the Company applicable to any of its employees and retirees, including, without limitation, all workers’ compensation programs, savings plans, retirement plans, deferred compensation plans, SERP plans, healthcare plans, disability plans, severance benefit plans, incentive plans, life and accidental death and dismemberment insurance plans listed on Schedule A attached hereto that are approved by, and with such additions, deletions, and modifications as may be required by, the Required Consenting Noteholders (collectively, the “Specified Employee Plans”), shall be maintained, continued in full force and effect and assumed by the Company (and assigned to the reorganized Stone Parties, if necessary) pursuant to section 365(a) of the Bankruptcy Code, either by a separate motion filed with the Bankruptcy Court or pursuant to the terms of the Plan. All claims arising from the Specified Employee Plans shall be Page 33 -------------------------------------------------------------------------------- treated in accordance with the Bankruptcy Code. Any plans, programs or arrangements that are not Specified Employee Plans relating to employees, compensation, or employee benefits shall be terminated or rejected, as appropriate. Tax Issues The Transaction shall, subject to the terms and conditions of the Support Agreement, be structured to achieve a tax-efficient structure, in a manner acceptable to the Company and the Required Consenting Noteholders. Exemption Under Section 1145 of the Bankruptcy Code The Plan and Confirmation Order shall provide that the issuance of any securities thereunder, including the New Notes, the New Equity Interests and the Warrants, will be exempt from securities laws in accordance with section 1145 of the Bankruptcy Code and such New Notes, New Equity Interests and Warrants shall be, following the Consummation Date, freely transferable by the respective holders thereof to the furthest extent permissible pursuant to section 1145 and applicable securities law and regulations (other than with respect to any such holders that are affiliates of the reorganized Company). Registration Rights The Company shall enter into a registration rights agreement with any party that receives 5% or more of the New Equity Interests. The registration rights agreement shall contain customary terms and conditions, including provisions with respect to demand rights, piggyback rights and blackout periods and shall be acceptable to the Consenting Noteholders in their sole discretion. SEC Reporting The Company shall continue as a public reporting company under applicable U.S. securities laws and shall continue to file annual, quarterly and current reports in accordance with the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder. Stock Exchange The Company shall use commercially reasonable efforts to list the New Equity Interests for trading on the New York Stock Exchange, The NASDAQ Global Market, the NASDAQ Global Select Market or any other national securities exchange reasonably acceptable to the Stone Parties and the Required Consenting Noteholders with such listing to be effective on the Consummation Date. Page 34 -------------------------------------------------------------------------------- D&O Liability Insurance Policies with Runoff Endorsements, and Indemnification Prior to the Petition Date, the Company shall purchase runoff endorsements to the Company’s existing Directors’ and Officers’ liability insurance policies (collectively, “D&O Liability Insurance Policies”) set forth on Schedule B hereto, extending coverage for current or former directors, managers, and officers of the Stone Parties for a six-year period after the Consummation Date for covered liabilities arising from activities occurring prior to the Consummation Date (collectively, “Runoff Endorsements”). The Company shall purchase new D&O Liability Insurance Policies for directors, managers, and officers of reorganized Stone and its subsidiaries from and after the Consummation Date on terms and conditions acceptable to the Required Consenting Noteholders. The Company shall assume (and assign to the reorganized entities if necessary), pursuant to section 365(a) of the Bankruptcy Code, either by a separate motion filed with the Bankruptcy Court or pursuant to the terms of the Plan, (a) the existing D&O Liability Insurance Policies with Runoff Endorsements, and (b) all indemnification provisions in existence as of the date of the Support Agreement, including, but not limited to, those set forth on Schedule B hereto that, solely in respect of any indemnification agreements and other indemnification obligations (but not the existing D&O Liability Insurance Policies with Runoff Endorsements) are approved by, and with such additions, deletions, and modifications to such indemnification agreements and obligations as may be required by, the Required Consenting Noteholders to make such indemnification agreements and obligations consistent with current market practice to the reasonable satisfaction of the Required Consenting Noteholders, for directors, managers and officers of the Company (whether in by-laws, certificate of formation or incorporation, board resolutions, employment contracts, or otherwise), such indemnification provisions, the “Indemnification Provisions”; provided, however, that no such Indemnification Provisions shall be deleted from Schedule B unless such deletion is agreed to by both the Required Consenting Noteholders and the Stone Parties. All claims arising from the existing D&O Liability Insurance Policies with Runoff Endorsements and such Indemnification Provisions shall be unaltered by the Transaction. Notice Procedures The Company shall provide written notice and publication notice of the bar date, if applicable, and the hearing to consider confirmation of the Plan to holders of claims in a manner acceptable to the Required Consenting Noteholders. Page 35 -------------------------------------------------------------------------------- Consummation Date The date on which the Transaction shall be fully consummated in accordance with the terms and conditions of the Definitive Documentation, which shall be the effective date of the Plan (the “Consummation Date”). Page 36 -------------------------------------------------------------------------------- Conditions to the Consummation Date The Consummation Date shall be subject to the following conditions precedent, some of which may be waived in writing by agreement of the Company and the Required Consenting Noteholders, subject to the consent rights provided for in the Support Agreement: (i) the Company shall have sold the Appalachian Assets for a purchase price of at least $350 million subject to adjustments as provided for in the purchase and sale agreement; (ii) the Definitive Documentation (as applicable) shall be in form and substance consistent with this Term Sheet and the Support Agreement and be otherwise approved consistent with the terms of section 4(b) of the Support Agreement; (iii) the Bankruptcy Court shall have entered an order confirming the Plan in form and substance consistent with this Term Sheet and the Support Agreement and such order shall otherwise be approved consistent with the terms of section 4(b) of the Support Agreement, and such order shall not have been stayed, modified or vacated; (iv) all of the schedules, documents, supplements, and exhibits to the Plan and Disclosure Statement shall be in form and substance consistent with this Term Sheet and the Support Agreement and such documents shall otherwise be approved consistent with the terms of section 4(b) of the Support Agreement; (v) the Support Agreement shall be in full force and effect and shall have been assumed by the Company pursuant to an order of the Bankruptcy Court satisfactory to the Required Consenting Noteholders; (vi) all governmental approvals and consents that are legally required for the consummation of the Transaction shall have been obtained, not be subject to unfulfilled conditions and be in full force and effect, and all applicable waiting periods under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, shall have expired; (vii) each of the contracts listed on Exhibit 4 hereto shall have been renegotiated on terms acceptable to the Required Consenting Noteholders; and (viii) the Company shall have resolved issues related to the provision of additional collateral to BOEM on terms acceptable to the Required Consenting Noteholders. Page 37 -------------------------------------------------------------------------------- Fees and Expenses of the Noteholder Committee The Stone Parties shall pay or reimburse all reasonable and documented fees and out-of-pocket expenses (regardless of whether such fees and expenses were incurred before or after the Petition Date, and in each case, in accordance with (and when due under) any applicable engagement letter or fee reimbursement letter with the Stone Parties) of: (a) Akin Gump Strauss Hauer & Feld LLP and one local law firm, as counsel to the Noteholder Committee, and (b) Intrepid Partners, L.L.C., as the financial advisor retained by the Noteholder Committee; provided, however, that all outstanding invoices of the Noteholder Committee’s professionals and advisors shall be paid in full immediately prior to the Petition Date. Page 38 -------------------------------------------------------------------------------- Exhibit 1(a) Treatment of Bank Claims if the class of Bank Claims votes to accept the Plan • Each holder of Bank Claims shall receive its respective pro rata share of any cash to be paid to holders of allowed Bank Claims pursuant to the Plan. • 4-year RBL exit facility, on terms substantially consistent with the pre-petition RBL facility, except: • Borrowing base reduced from $360 million to not less than $235 million on the Effective Date until the first borrowing base redetermination date • Borrowing base holiday with first redetermination to be in April 2018 • $75 million held in a restricted account to satisfy future P&A liabilities not included in the reserve report, provided that P&A liabilities not included in reserve report are paid from the restricted account • 100bps increase in the Applicable Margin (i.e., L + 2.50% - 3.50%) • Leverage covenant to be reset at levels to be agreed (consistent with the Company’s projections + reasonable cushion) • Mortgage requirement increased to 95% pro forma for the sale of Appalachia • Requirement of 25-50% of production hedged for a rolling 2-year period • Other terms to be agreed between the lenders, Required Consenting Noteholders and the Company -------------------------------------------------------------------------------- Exhibit 1(b) Treatment of Bank Claims if the class of Bank Claims does not vote to accept (or is deemed to reject) the Plan • $342 million exit term loan (reflecting the outstanding amount of Bank Claims outstanding on the Effective Date) • 5-year maturity from the Effective Date • Interest rate of T+2.00% • Exit term loan to be a first-lien senior secured obligation and guaranteed by Stone Energy Offshore, LLC (the existing guarantor) • Exit term loan to be repaid at any time at par at the election of the borrower • Not subject to a borrowing base • Financial Maintenance Covenant: First-lien asset coverage at a level TBD Page 40 -------------------------------------------------------------------------------- Exhibit 2 Terms of New Notes • Interest rate of 7.5% per annum, 3.75% payable in cash and 3.75% payable in cash or PIK at the election of the Company. • Maturity of May 31, 2022. • Investments in joint ventures and acquisitions by the Company and its subsidiaries shall be permitted on terms acceptable to the Required Consenting Noteholders. • Redemption/Make Whole: The Company may redeem the New Notes at any time, subject to paying the following make whole amounts: • If the Company prepays the New Notes prior to the third anniversary of issuance, the prepayment amount shall be at par, plus accrued interest, plus a make whole payment equal to the spread over a comparable treasury note plus 50 basis points. • If the Company prepays the New Notes after the third anniversary, but prior to the fifth anniversary, of issuance, the prepayment amount shall be at 105.625% of par, plus accrued interest. • If the Company prepays the New Notes on or after the fifth anniversary of issuance, the prepayment amount shall be at par plus accrued interest. • Amendment, modification, and waiver under the indenture for the New Notes shall require the consent of a majority of the principal amount outstanding of all New Notes other than provisions that require unanimous consent to amend pursuant to the Trust Indenture Act and/or other applicable law. Page 41 -------------------------------------------------------------------------------- Exhibit 3 Warrant Term Sheet Shares Represented 15% of the New Equity Interests, subject to dilution on account of the Management Incentive Plan and future issuances of common stock by Stone from time to time after the Consummation Date. Strike Price Strike price equal to a total equity value of reorganized Stone that implies a 100% recovery of outstanding principal to holders of the Notes Claims plus accrued interest through the Consummation Date. Maturity Four (4) years from the Consummation Date. Other Terms The agreement governing the Warrants shall contain terms and conditions, including, without limitation, basic anti-dilution protection (against stock splits, stock dividends and similar events) customary for transactions of this type and otherwise acceptable to the Company and the Required Consenting Noteholders. Page 42 -------------------------------------------------------------------------------- Exhibit 4 Contracts to Be Renegotiated NONE Page 43 -------------------------------------------------------------------------------- Schedule A7 Specified Employee Plans 1. Stone Energy Corporation Executive Change of Control and Severance Plan 2. Stone Energy Corporation Employee Change of Control Severance Plan 3. Severance Pay Policy (Non-Executive Employees) 4. Letter Agreement dated December 2, 2008 between Stone Energy Corporation and David H. Welch 5. Letter Agreement dated May 19, 2005 between Stone Energy Corporation and Kenneth H. Beer 6. Letter Agreement dated August 10, 2016 by and between Stone Energy Corporation and Richard L Toothman Jr. 7. Stone Energy Corporation Amended and Restated Revised Annual Incentive Compensation Plan 8. Stone Energy Corporation 2016 Performance Incentive Compensation Plan 9. Stone Energy Corporation 2009 Amended and Restated Stock Incentive Plan (As Amended and Restated December 17, 2015), as amended Employee Benefit Plans 1. Stone Energy Corporation Employee Benefit Plan (Medical) 2. Stone Energy Corporation Dental Plan 3. Stone Energy Corporation Vision Service Plan 4. Stone Energy Corporation Group Basic Life & AD&D and Dependent Life Insurance Plan 5. Stone Energy Corporation Long Term Disability Insurance Plan 6. Stone Energy Corporation Voluntary Group AD&D Insurance Plan 7. Stone Energy Corporation Voluntary Group Critical Illness Insurance Plan 8. Stone Energy Corporation Medical Flexible Spending Account & Dependent Care Flexible Spending Account 9. Stone Energy Corporation 401(k) Profit Sharing Plan 10. Stone Energy Corporation Deferred Compensation Plan 11. Workers Compensation and Employers Liability Insurance Policy (American Zurich Insurance Company) Miscellaneous Benefits 1. Executive physicals at Lafayette General 2. Safety Incentive Program 3. Health club subsidy 4. Discretionary 401(k) Employer Match 5. Payout of field ETO (maximum 84 hours per employee – 61 field employees) 7 Subject to the completion of due diligence and additions and/or deletions to the foregoing list of plans and other agreements and amendments thereto acceptable to the Required Consenting Noteholders. For the avoidance of doubt, the Required Consenting Noteholders have not agreed to the foregoing list of plans and other agreements and, therefore, such list remains subject to change. Page 44 -------------------------------------------------------------------------------- Schedule B Directors & Officers Liability Insurance Policies and Indemnification Provisions D&O Liability Insurance Policies 1. Directors & Officers and Corporate Liability Insurance Policy by and between Stone Energy Corporation and Allied World Insurance Company; policy number 0309-5636 effective May 1, 2015 to May 1, 2017. 2. Excess Edge policy, following Item 1 above, by and between Stone Energy Corporation and National Union Fire Insurance Company of Pittsburgh, PA; policy number 01-274-27-25 effective May 1, 2015 to May 1, 2017. 3. Excess Policy, following Item 1-2 above, by and between Stone Energy Corporation and XL Specialty Insurance Company; policy number ELU138853-15 effective May 1, 2015 to May 1, 2017. 4. Excess Insurance Policy, following Item 1-3 above, by and between Stone Energy Corporation and Continental Casualty Company; policy number 425137486 effective May 1, 2015 to May 1, 2017. 5. Management Liability and Professional Liability Follow Form Excess, following Item 1-4 above, by and between Stone Energy Corporation and Liberty International Underwriters; policy number DO3CH217344-215 effective May 1, 2015 to May 1, 2017. 6. Zurich Executive Universal Select Insurance Policy (A-Side Directors & Officers Liability Insurance Policy with Advancement of Defense Costs), following Item 1-5 above, by and between Stone Energy Corporation and Zurich American Insurance Company; policy number DOC 5889339 10 effective May 1, 2015 to May 1, 2017. 7. Follow Form Excess Management Liability Insurance Policy, following Item 1-6 above, by and between Stone Energy Corporation and Endurance American Insurance Company; policy number ADX10006950200 effective May 1, 2015 to May 1, 2017. Indemnification Agreements8 1. Indemnification Agreement between Stone Energy Corporation and Kenneth H. Beer, dated as of March 23, 2009 2. Indemnification Agreement between Stone Energy Corporation and B.J. Duplantis, dated as of March 23, 2009 3. Indemnification Agreement between Stone Energy Corporation and Florence M. Ziegler, dated as of March 23, 2009 4. Indemnification Agreement between Stone Energy Corporation and Donald E. Powell, dated as of March 23, 2009 5. Indemnification Agreement between Stone Energy Corporation and George R. Christmas, dated as of March 23, 2009 6. Indemnification Agreement between Stone Energy Corporation and Kay G. Priestly, dated as of March 23, 2009 7. Indemnification Agreement between Stone Energy Corporation and Richard A. Pattarozzi, dated as of March 23, 2009 8. Indemnification Agreement between Stone Energy Corporation and Peter D. Kinnear, dated as of March 23, 2009 9. Indemnification Agreement between Stone Energy Corporation and David H. Welch, dated as of March 23, 2009 10. Indemnification Agreement between Stone Energy Corporation and Eldon J. Louviere, dated as of March 23, 2009 11. Indemnification Agreement between Stone Energy Corporation and Richard L. Toothman, Jr., dated as of February 1, 2011 12. Indemnification Agreement between Stone Energy Corporation and Keith A. Seilhan, dated as of February 1, 2013 13. Indemnification Agreement between Stone Energy Corporation and Lisa S. Jaubert, dated as of May 23, 2013 14. Indemnification Agreement between Stone Energy Corporation and David T. Lawrence, dated as of October 9, 2013 15. Indemnification Agreement between Stone Energy Corporation and Karl D. Meche, dated as of December 11, 2014 16. Indemnification Agreement between Stone Energy Corporation and Craig Castille, dated as of December 17, 2014 17. Indemnification Agreement between Stone Energy Corporation and David Kennedy, dated as of December 17, 2014 18. Indemnification Agreement between Stone Energy Corporation and Michael Deville, dated as of December 17, 2014 19. Indemnification Agreement between Stone Energy Corporation and Tom Messonnier, dated as of May 21, 2015 20. Indemnification Agreement between Stone Energy Corporation and John J. Leonard, dated as of December 30, 2013 21. Indemnification Agreement between Stone Energy Corporation and Phyllis Taylor, dated as of January 20, 2012. Corporate Organizational Documents Containing Indemnification Provisions Amended and Restated Bylaws of Stone Energy Corporation, a Delaware corporation, dated as of May 15, 2008 (as amended, December 19, 2013) 8 Subject to the completion of due diligence and additions and/or deletions to the foregoing list of agreements and amendments thereto acceptable to the Required Consenting Noteholders. For the avoidance of doubt, the Required Consenting Noteholders have not agreed to the foregoing list of agreements and, therefore, such list remains subject to change. Page 45 -------------------------------------------------------------------------------- Exhibit B to the Restructuring Support Agreement Form of Transferee Joinder [See Attached] -------------------------------------------------------------------------------- Form of Transferee Joinder This joinder (this “Joinder”) to the Restructuring Support Agreement (the “Agreement”), dated as of [ , 20 ], by and among: (i) Stone Energy Corporation and each of the other Stone Parties thereto and (ii) the Consenting Noteholders, is executed and delivered by [ ] (the “Joining Party”). Each capitalized term used herein but not otherwise defined shall have the meaning ascribed to such term in the Agreement. 1. Agreement to be Bound. The Joining Party hereby agrees to be bound by all of the terms of the Agreement, a copy of which is attached to this Joinder as Annex 1 (as the same has been or may be hereafter amended, restated, or otherwise modified from time to time in accordance with the provisions thereof). The Joining Party shall hereafter be deemed to be a Party for all purposes under the Agreement and one or more of the entities comprising the Consenting Noteholders. 2. Representations and Warranties. The Joining Party hereby represents and warrants to each other Party to the Agreement that, as of the date hereof, such Joining Party (a) is the legal or beneficial holder of, and has all necessary authority (including authority to bind any other legal or beneficial holder) with respect to, the claims next to its name on Annex 2 (which annex shall not be publically disclosed or filed), and (b) makes, as of the date hereof, the representations and warranties set forth in Section 17 of the Agreement to each other Party. 3. Governing Law. This Joinder shall be governed by and construed in accordance with the internal laws of the State of [Delaware], without regard to any conflicts of law provisions which would require or permit the application of the law of any other jurisdiction. 4. Notice. All notices and other communications given or made pursuant to the Agreement shall be sent to the Joining Party at the address next to its name on Annex 2 (which annex shall not be publically disclosed or filed): ***** 1 -------------------------------------------------------------------------------- IN WITNESS WHEREOF, the Joining Party has caused this Joinder to be executed as of the date first written above. [JOINING PARTY] By: Name: Title: [Annex - A]		[ "Exhibit 10.1 Confidential Subject to FRE 408 THIS RESTRUCTURING SUPPORT AGREEMENT IS NOT AN OFFER WITH RESPECT TO ANY SECURITIES OR A SOLICITATION OF VOTES WITH RESPECT TO A CHAPTER 11 PLAN OF REORGANIZATION. ANY SUCH OFFER OR SOLICITATION WILL COMPLY WITH ALL APPLICABLE SECURITIES LAWS AND/OR, AS APPLICABLE, PROVISIONS OF THE BANKRUPTCY CODE. RESTRUCTURING SUPPORT AGREEMENT by and among STONE ENERGY CORPORATION AND ITS SUBSIDIARIES PARTY HERETO and THE UNDERSIGNED CREDITOR PARTIES dated as of October 20, 2016 -------------------------------------------------------------------------------- This Restructuring Support Agreement (together with the exhibits and schedules attached hereto, which include, without limitation, the Term Sheet (as defined below), as each may be amended, restated, supplemented, or otherwise modified from time to time in accordance with the terms hereof, this “Agreement”), dated as of October 20, 2016, is entered into by and among: (i) Stone Energy Corporation (“Stone”), Stone Energy Holding, L.L.C. (“Stone Holdings”) and Stone Energy Offshore, L.L.C.", "(“Stone Offshore” and, together with Stone and Stone Holdings, each a “Stone Party” and collectively, the “Stone Parties”); and (ii) the holders of notes (the “Noteholders”) issued pursuant to: (a) the Indenture dated as of March 6, 2012 (as amended, restated, modified, supplemented or replaced from time to time, the “Convertible Indenture”) among Stone, as issuer, Stone Offshore, as subsidiary guarantor, and The Bank of New York Mellon Trust Company, N.A., as trustee and (b) the Second Supplemental Indenture dated as of November 8, 2012 to Senior Indenture dated as of January 26, 2010 (as amended, restated, modified, supplemented or replaced from time to time, the “Senior Indenture” and, together with the Convertible Indenture, the “Indentures”) among Stone, as issuer, Stone Offshore, as subsidiary guarantor, and The Bank of New York Mellon Trust Company, N.A., as trustee (in such capacity, under each of the Indentures, together with any successor thereto under either or both Indentures, the “Indenture Trustee”), that hold claims against the Stone Parties arising on account of the Indentures and the notes issued thereunder, the “Notes Claims”), in each case, and that are signatories hereto (collectively, with any Noteholder that may become a party hereto in accordance with Sections 13 and 34 of this Agreement, the “Consenting Noteholders”). This Agreement collectively refers to the Stone Parties and the Consenting Noteholders as the “Parties” and each individually as a “Party.” Unless otherwise noted, capitalized terms used but not defined herein have the meanings ascribed to them at a later point in this Agreement or in the Term Sheet (as defined herein).", "RECITALS WHEREAS, the financial institutions party to the Fourth Amended and Restated Credit Agreement dated as of June 24, 2014 (as amended, restated, modified, supplemented or replaced from time to time, the “Credit Agreement”) among Stone, as borrower, such financial institutions, as lenders (the “Banks”), Bank of America, N.A., as administrative agent (in such capacity, the “Bank Agent”) and issuing bank, Wells Fargo Bank, National Association, Natixis, The Bank of Nova Scotia, Capital One, N.A., and Toronto Dominion (New York) LLC, as co-syndication agents, Regions Bank and U.S. Bank, National Association, as co-documentation agents, and Merrill Lynch, Pierce, Fenner & Smith Incorporated, as sole Lead Arranger and Bookrunner, hold claims against the Stone Parties arising on account of the Credit Agreement (each, a “Bank Claim”) in an aggregate principal amount of approximately $341,500,000 (together, the “Bank Claims”); WHEREAS, as of the date of this Agreement, the Noteholders hold Notes Claims against the Stone Parties in aggregate principal amount of approximately $1,075,000,000; WHEREAS, the Stone Parties will seek to restructure the Bank Claims, the Notes Claims and certain of their other obligations, to cancel the existing equity interests of Stone and to consummate the transactions in accordance with, and subject to the terms and conditions of, the Appalachia PSA (as defined below) and to recapitalize in accordance with the terms provided in the restructuring term sheet attached hereto as Exhibit A (the “Term Sheet”) and incorporated herein pursuant to Section 3 of this Agreement through jointly-administered voluntary cases commenced by the Stone Parties (the “Chapter 11 Cases”) under chapter 11 of title 11 of the United States Code, 11 U.S.C. §§ 101–1532 (as amended, the “Bankruptcy Code”), in a United States Bankruptcy Court (the “Bankruptcy Court”) located in a venue agreed upon by Stone and the Required Consenting 2 -------------------------------------------------------------------------------- Noteholders (defined below) pursuant to a pre-packaged1 plan of reorganization (as may be amended, restated, supplemented, or otherwise modified from time to time in accordance with this Agreement, the “Plan”) (the “Restructuring Transactions”).", "WHEREAS, each of the Parties has reviewed, or has had the opportunity to review, the Term Sheet and this Agreement with the assistance of legal and financial advisors of its own choosing; and WHEREAS, subject to the commitments of the Stone Parties set forth in this Agreement regarding the Restructuring Transactions, each Consenting Noteholder desires to support and vote to accept the Restructuring Transactions, and the Stone Parties desire to obtain the commitment of the Consenting Noteholders to support and vote to accept the Restructuring Transactions, in each case subject to the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the promises, mutual covenants, and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each of the Parties, intending to be legally bound, hereby agrees as follows: AGREEMENT 1. RSA Effective Date. This Agreement shall become effective, and the obligations contained herein shall become binding upon the Parties, upon the first date (such date, the “RSA Effective Date”) that each of the following conditions shall have been satisfied: (a) each Stone Party and Consenting Noteholders holding, in the aggregate, at least 66-2/3% of the outstanding aggregate principal amount of all Notes Claims have duly executed and delivered signatures pages to this Agreement, and (b) the Stone Parties shall have entered into a purchase and sale agreement for the sale of the Appalachian Assets (as defined in the Term Sheet) with TH Exploration III, LLC (“Buyer”) for a cash purchase price of at least $350 million (the “Appalachia PSA”) subject to adjustment in accordance with the Appalachia PSA.", "2. Form of Restructuring Transactions. The Stone Parties shall, as soon as practicable but subject to the satisfaction or waiver of the conditions precedent contained in the Definitive Documentation, effectuate the Restructuring Transactions through confirmation and consummation of the Plan and the execution and delivery of the Definitive Documentation, in each case on terms and conditions consistent with the Term Sheet, in the Chapter 11 Cases. 3.", "Exhibits and Schedules Incorporated by Reference. Each of the exhibits and schedules attached hereto (including, without limitation, the Term Sheet) and each of the schedules to such exhibits (collectively, the “Exhibits and Schedules”) is expressly incorporated herein and made a part of this Agreement, and all references to this Agreement shall include the Exhibits and Schedules. In the event of any inconsistency between this Agreement (without reference to the Exhibits and Schedules) and the Exhibits and Schedules, this Agreement (without reference to the 1 Subject to resolution of management/employment issues. 3 -------------------------------------------------------------------------------- Exhibits and Schedules) shall govern and control to the extent of such inconsistency except that, in the event of any inconsistency between this Agreement and the Term Sheet, the Term Sheet shall govern and control. 4.", "Definitive Documentation. (a) The definitive documents and agreements governing the Restructuring Transactions (collectively, the “Definitive Documentation”) shall include: (i) the Stone Parties’ Disclosure Statement with respect to the Plan setting forth the terms and conditions of the Restructuring Transactions (together with all exhibits there to, the “Disclosure Statement”) and any Credit Agreement amendment, intercreditor agreement, indenture, notes, equityholder agreements or other agreements required to memorialize the Restructuring Transactions (the Disclosure Statement together with any other solicitation materials with respect to the Plan, collectively, the “Solicitation Materials”); (ii) the Plan, including any plan supplement documents (including, without limitation, the identity of the officers and directors of the reorganized Stone Parties, any Credit Agreement amendment, intercreditor agreement, indenture, notes, the governance documents for the reorganized Stone Parties, and any equityholders’ agreements with respect to the reorganized Stone Parties), the order of the Bankruptcy Court approving the Disclosure Statement (the “Disclosure Statement Order”), the order of the Bankruptcy Court confirming the Plan (the “Confirmation Order”), an order of the Bankruptcy Court authorizing the assumption of this Agreement (the “RSA Assumption Order”), the Assumption and Procedures Order (as defined in the Appalachia PSA) in regard to the transactions contemplated in the Appalachia PSA (the “Assumption and Procedures Order”), the bidding procedures (if any) approved by the Bankruptcy Court in respect of the Appalachian Assets (whether pursuant to the Assumption and Procedures Order or other order of the Bankruptcy Court) (the “Bidding Procedures”), the order of the Bankruptcy Court approving the Appalachia PSA and the transactions contemplated thereby (the “Appalachia Sale Order”), the motions seeking approval of each of the foregoing, the Critical Vendor Motion, the Cash Collateral Motion, the Royalty Motion and the Shipper’s Motion; and (iii) any document or filing identified in the Term Sheet as being subject to approval or consent rights under Section 4(b) of this Agreement.", "(b) The Definitive Documentation identified in Section 4(a) of this Agreement will, after the RSA Effective Date, remain subject to negotiation and shall, upon completion, contain terms, conditions, representations, warranties, and covenants consistent with the terms of this Agreement (including the Term 4 -------------------------------------------------------------------------------- Sheet) in all respects, and shall otherwise be in form and substance reasonably satisfactory to the Stone Parties, on the one hand, and the Required Consenting Noteholders2, on the other hand; provided, however, that (i) the form, terms and provisions of the constitutional, organizational and other documents of the Stone Parties setting forth the rights of stockholders or noteholders after the Consummation Date, including, but not limited to, any charters, bylaws, operating agreements, indentures, warrants, stockholders’ or unitholders’ agreements, registration rights agreements, management incentive plan, or other similar agreements, motions, pleadings or orders to be entered into or filed in connection with the Restructuring Transactions, shall, in each case, be consistent with the Term Sheet and otherwise satisfactory to the Required Consenting Noteholders in their sole discretion and (ii) the Disclosure Statement, the Disclosure Statement Order, the Assumption and Procedures Order, the Bidding Procedures (if any), the Motion for approval of the Assumption and Procedures Order, the Appalachia Sale Order; the Motion for Approval of the Appalachia Sale Order, the Motion for Approval of the Disclosure Statement and Solicitation Procedures, the Plan, the Confirmation Order, Motion to Approve RSA, RSA Assumption Order, Critical Vendor Motion, Cash Collateral Motion, Royalty Motion, and Shipper’s Motion shall, in each case, be satisfactory to the Required Consenting Noteholders and the Stone Parties.", "(c) The Stone Parties shall provide to the Noteholder Committee’s legal counsel drafts of all motions or applications, including proposed orders, and other documents that the Stone Parties intend to file with the Bankruptcy Court not less than three (3) Business Days before the date when the Stone Parties intend to file any such motion, application or document, including for the avoidance of doubt, all first day motions and orders; provided, however, that in the event that three (3) Business Days’ notice is impossible or impracticable under the circumstances, the Stone Parties shall provide draft copies of any motions, applications, including proposed orders and any other documents the Stone Parties intend to file with the Bankruptcy Court to the Noteholder Committee’s legal counsel within one (1) Business Day, or as soon as otherwise practicable, before the date when the Stone Parties intend to file any such motion, application or document.", "The Stone Parties shall notify the Noteholder Committee’s legal counsel telephonically or by electronic mail to advise them of the documents to be filed and the facts that make the provision of advance copies not less than three (3) Business Days before submission impossible or impracticable. 2 “Required Consenting Noteholders” shall mean, subject to Section 28, the Consenting Noteholders, holding at least a majority of the principal amount outstanding of all Notes Claims held by the Consenting Noteholders, provided that, such Consenting Noteholders holding the majority in principal amount shall include at least three (3) separate Consenting Noteholders (for purposes of this definition, each institution holding Notes Claims shall be taken together with each of its controlled affiliate’s and subsidiary’s Notes Claims holdings and they shall together in the aggregate constitute a single Consenting Noteholder). 5 -------------------------------------------------------------------------------- 5. Mutual Agreement of the Parties to Support the Restructuring Transactions. Each of the Parties to this Agreement agrees, severally and not jointly, from the RSA Effective Date until the occurrence of a Termination Date (as defined in Section 12 of this Agreement) applicable to such Party, to: (a) use commercially reasonable best efforts to support and cooperate with the other Parties to this Agreement and use reasonable best efforts to take or cause to be taken all actions reasonably necessary to consummate the Restructuring Transactions on the terms and subject to the conditions set forth in the Term Sheet and this Agreement; and (b) negotiate in good faith any terms of the Definitive Documentation that are subject to negotiation as of the RSA Effective Date.", "6. Commitment of Consenting Noteholders.", "Each Consenting Noteholder agrees, severally and not jointly, from the RSA Effective Date until the occurrence of a Termination Date (as defined in Section 12 of this Agreement) applicable to such Consenting Noteholder, so long as it remains the legal owner, beneficial owner and/or investment advisor or manager of or with power and/or authority to bind any Notes (provided that, any transfer of Notes is made in accordance with Section 13 herein), to: (a) tender for exchange all Notes beneficially owned by such Consenting Noteholder or for which it is the nominee, investment manager, or advisor for beneficial holders thereof pursuant to the Disclosure Statement and in accordance with the applicable procedures set forth therein, in each case as specified by such Consenting Noteholder next to its name on Annex A; (b) (i) subject to receipt of the Disclosure Statement, vote all of its Notes Claims against, or interests in, as applicable, the Stone Parties now or hereafter owned by such Consenting Noteholder (or which such Consenting Noteholder now or hereafter has voting control over) to accept the Plan in accordance with the applicable procedures set forth in the Disclosure Statement and the Solicitation Materials that meet the requirements of applicable law, including sections 1125 and 1126 of the Bankruptcy Code; (ii) timely return a duly-executed ballot in connection therewith; and (iii) not “opt out” of or object to any releases or exculpation provided under the Plan (and, to the extent required by such ballot, affirmatively “opt in” to such releases and exculpation); (c) not withdraw, amend, change, or revoke (or seek to withdraw, amend, change, or revoke) its tender, consent, or vote with respect to the Plan; provided, however, that the tender, consent, or votes of the Consenting Noteholders shall be immediately revoked and deemed void ab initio upon the occurrence of the Termination Date; (d) not (i) object to, delay, impede, or take any other action (including to instruct or direct the Indenture Trustee) to interfere with the prompt consummation of the Restructuring Transactions or the Definitive Documentation (including the entry by the Bankruptcy Court of an order approving the Disclosure Statement and the Confirmation Order, if applicable); (ii) propose, file, support, or vote for any restructuring, workout, reorganization, liquidation, or chapter 11 plan or other Alternative Transaction (as defined below) for any of the Stone Parties, other than the Restructuring Transactions and the Plan; or (iii) encourage or support any other person or entity to do any of the foregoing; 6 -------------------------------------------------------------------------------- (e) support and not object to or take any other action (including to instruct or direct the Indenture Trustee) that would, or would be reasonably expected to, interfere with the prompt consummation of the transactions contemplated in the Appalachia PSA (including the entry by the Bankruptcy Court of the Assumption and Procedures Order and the Appalachia Sale Order); (f) not take any other action, including, without limitation, initiating or joining in any legal proceeding, that is materially inconsistent with its obligations under this Agreement, that could unreasonably hinder, delay, or prevent the timely consummation of the Restructuring Transactions and the confirmation and consummation of the Plan and entry of the Confirmation Order; and (g) during the Interim Period (as defined in the Appalachia PSA) no Consenting Noteholder shall, directly or indirectly (including through the financial advisor or legal counsel thereto), solicit any offer or inquiry from any Person concerning such Person’s direct or indirect acquisition of the assets subject to the Appalachia PSA.", "Notwithstanding the foregoing, nothing in this Agreement, and neither a vote to accept the Plan by any Consenting Noteholder, nor the acceptance of the Plan by any Consenting Noteholder shall: (w) be construed to limit consent and approval rights provided in this Agreement and the Definitive Documentation; (x) be construed to prohibit any Consenting Noteholder from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement, or exercising rights or remedies specifically reserved herein; (y) be construed to prohibit any Consenting Noteholder from appearing as a party-in-interest in any matter to be adjudicated in the Chapter 11 Cases, so long as such appearance and the positions advocated in connection therewith are not inconsistent with this Agreement and are not for the purpose of hindering, delaying, or preventing the consummation of the transactions contemplated in, subject to the terms and conditions of, the Appalachia PSA and consummation of the Restructuring Transactions; or (z) impair or waive the rights of any Consenting Noteholder to assert or raise any objection expressly permitted under this Agreement in connection with any hearing in the Bankruptcy Court, including, without limitation, any hearing on confirmation of the Plan.", "For the avoidance of doubt and notwithstanding the foregoing, nothing in this Agreement shall or shall be deemed to limit the rights of the Stone Parties set forth in the Appalachia PSA (including sections 7.04(b), 7.16(b) and 11.01(h), but subject to section 3.02(e), thereof) to conduct a marketing and auction process for the assets subject to the Appalachia PSA if required by the Bankruptcy Court, terminate the Appalachia PSA and select an Alternative Bid (as defined in the Appalachia PSA, an “Alternative Bid”), and the obligations of the Consenting Noteholders pursuant to this Agreement in respect of the Appalachia PSA and the transactions contemplated therein are expressly subject to the right of the Consenting Noteholders to consider any unsolicited offer or inquiry presented to a Consenting Noteholder or the Stone Parties, engage in discussions with the party submitting such unsolicited offer or inquiry and the Stone Parties in respect thereof (including by furnishing confidential information with respect to the assets subject to the Appalachia PSA or permitting access to such assets or the books and records of the Stone Parties) and, if such unsolicited offer or inquiry is determined in good faith by the Required Consenting Noteholders, after seeking the advice of outside legal counsel, to be superior to the transactions contemplated in the Appalachia PSA for the purpose of maximizing the value of the 7 -------------------------------------------------------------------------------- assets of the Stone Parties, seek an order or directive from the Bankruptcy Court requiring the Stone Parties to conduct a further marketing process and/or a competitive auction for the assets subject to the Appalachia PSA, and, if the result of such marketing and/or auction process is a higher or otherwise better offer as compared to the Appalachia PSA (including as the same may have been proposed to be modified by the Buyer with respect thereto) in the determination of the Required Consenting Noteholders, to support approval of such higher or otherwise better offer by the Bankruptcy Court and termination of the Appalachia PSA by the Stone Parties pursuant to section 11.01(h) thereof.", "The Consenting Noteholders, on the one hand, and the Stone Parties, on the other hand, as the case may be, shall promptly, and no later than three (3) Business Days following receipt of an unsolicited offer or inquiry with respect to the assets subject to the Appalachia PSA, notify legal counsel to the other and, in the case of the Consenting Noteholders, Buyer (as defined in the Appalachia PSA) of the receipt and material terms of such offer or inquiry. 7. Commitment of the Stone Parties.", "Each of the Stone Parties agrees, from the RSA Effective Date until the occurrence of a Termination Date, to: (a) use reasonable best efforts to implement the Restructuring Transactions in accordance with the applicable milestones set forth in Schedule 1 hereto (collectively, the “Milestones”), which Milestones may only be extended in accordance with Section 28 of this Agreement; (b) not undertake any action that is inconsistent with this Agreement, or which could unreasonably hinder, delay or prevent the timely consummation of the Restructuring Transactions and the Definitive Documentation, including, without limitation, filing any motion to reject this Agreement in the Bankruptcy Court; (c) support and take all actions as are reasonably necessary and appropriate to obtain any and all required regulatory and/or third-party approvals to consummate the Restructuring Transactions; (d) file, within two (2) calendar days after the date the Chapter 11 Cases are commenced by filing bankruptcy petitions with the Bankruptcy Court (such date, the “Petition Date”), a motion seeking to assume this Agreement; (e) timely pay all fees and expenses as set forth in Section 15 of this Agreement; (f) timely file a formal objection to any motion filed with the Bankruptcy Court by a third party seeking the entry of an order (i) directing the appointment of a trustee or examiner (with expanded powers beyond those set forth in sections 1106(a)(3) and (4) of the Bankruptcy Code), (ii) converting the Chapter 11 Cases to cases under chapter 7 of the Bankruptcy Code, or (iii) dismissing the Chapter 11 Cases; (g) timely file a formal objection to any motion filed with the Bankruptcy Court by a third party seeking the entry of an order modifying or terminating the Stone Parties’ exclusive right to file and/or solicit acceptances of a plan of reorganization, as applicable; 8 -------------------------------------------------------------------------------- (h) subject to the next paragraph, not seek, solicit, or support any dissolution, winding up, liquidation, reorganization, assignment for the benefit of creditors, merger, transaction, consolidation, business combination, joint venture, partnership, sale of assets (other than the sale of the Appalachian Assets), any debt or equity financing or re-financing, or restructuring of the Stone Parties (including, for the avoidance of doubt, a transaction premised on an asset sale under section 363 of the Bankruptcy Code other than the sale of the Appalachian Assets), other than the Plan and Restructuring Transactions, and to not cause or allow any of their agents or representatives to solicit any agreements relating to an Alternative Transaction (as defined below); (i) notwithstanding anything to the contrary herein, use reasonable best efforts to exercise their rights under Section 2.17(b) of the Credit Agreement to the extent necessary to implement the modifications to the Credit Agreement referenced in Section 2(a)(ii) and as set forth in the Term Sheet; (j) (i) not take an action or fail to act in such a manner as would be reasonably likely to result in a breach or failure of any of the conditions to closing set forth in the Appalachia PSA; (ii) use reasonable best efforts to cure any breach of the terms and conditions of the Appalachia PSA by any of the Stone Parties signatory thereto that would be reasonably likely to result in a breach or failure of the conditions to closing set forth therein; (iii) not terminate the Appalachia PSA or reduce, amend or modify the purchase price set forth therein to an amount in cash less than $350 million (other than as a result of adjustments provided for therein); and (iv) otherwise use reasonable best efforts to satisfy its obligations under the Appalachia PSA and consummate the transactions with Buyer contemplated thereby, subject to the last sentence of Section 6 of this Agreement; and (k) through the Closing Date (as defined in the Appalachia PSA) (i) upon the written request of the Consenting Noteholders, provide in writing to the Consenting Noteholders a then current good faith estimate of the Stone Parties, together with such documentation as reasonably requested by the Consenting Noteholders in support of such estimate, of the purchase price under the Appalachia PSA after giving effect to any reductions that would be taken into account by the Consenting Noteholders in determining the “net purchase price” as determined in accordance with Section 8(n) and (ii) promptly notify the Consenting Noteholders in writing of any change, event, circumstance, development, condition, occurrence or effect which the Stone Parties become aware of that would reasonably be expected to result in a failure of any of the conditions to closing set forth in the Appalachia PSA or in any reduction in the “net purchase price,” as determined in accordance with Section 8(n).", "To the extent the notice is in respect of a potential adjustment to “net purchase price,” such notice shall include the amount of the resulting reduction along with such documentation as reasonably requested by the Consenting Noteholder in support of such amount. 9 -------------------------------------------------------------------------------- Notwithstanding anything to the contrary herein, the Stone Parties shall be entitled, at any time prior to the entry by the Bankruptcy Court of the Confirmation Order, to accept or pursue (but not to solicit or initiate of its own accord): (i) a competing plan of reorganization or other financial and/or corporate restructuring of the Stone Parties; (ii) the issuance, sale or other disposition of any equity or debt interests, or any material assets, of the Stone Parties; or (iii) a merger, consolidation, business combination, liquidation, recapitalization, any debt or equity financing or refinancing, or similar transaction involving the Stone Parties (each, an “Alternative Transaction”), in each case to the extent the Board of Directors of Stone determines, after seeking the advice of outside legal counsel, in good faith, and consistent with their fiduciary duties, that such Alternative Transaction best maximizes value for the Stone Parties and their stakeholders, and provided that the Stone Parties shall have first exercised their right in accordance with Section 9(b) of this Agreement to declare a Company Termination Event prior to the date on which the Stone Parties enter into a definitive agreement in respect of such an Alternative Transaction or make a public announcement regarding their intention to do so.", "The Stone Parties shall give the legal counsel to the Consenting Noteholders not less than three (3) Business Days’ prior written notice before the termination of this Agreement in accordance with Section 9(b) of this Agreement. At all times prior to the date on which the Stone Parties enter into a definitive agreement in respect of such an Alternative Transaction or make a public announcement regarding their intention to do so, the Stone Parties shall (x) provide a copy of any written offer or proposal (and notice of any oral offer or proposal) for such Alternative Transaction within three (3) Business Days3 of the Stone Parties’ or their advisors’ receipt of such offer or proposal received to the legal counsel to and the financial advisors to the Consenting Noteholders and (y) provide such information to the advisors to the Consenting Noteholders regarding such discussions (including copies of any materials provided to such parties hereunder) as necessary to keep the Consenting Noteholders contemporaneously informed as to the status and substance of such discussions.", "8. Consenting Noteholder Termination Events. The Required Consenting Noteholders shall have the right, but not the obligation, upon written notice to the other Parties, to terminate the obligations of the Consenting Noteholders under this Agreement upon the occurrence of any of the following events (each, a “Consenting Noteholder Termination Event”), unless waived, in writing, by the Required Consenting Noteholders on a prospective or retroactive basis: (a) the failure of the Stone Parties to meet any Milestone; (b) the termination of the Appalachia PSA or any reduction, amendment or modification of the purchase price set forth therein to an amount in cash less than $350 million (other than as a result of adjustments in the purchase price as provided for in the Appalachia PSA), other than termination of the Appalachia PSA by the Stone Parties signatory thereto pursuant to section 11.01(h) thereof for the purpose of selecting an Alternative Bid acceptable to the Required Consenting Noteholders; (c) the Bankruptcy Court enters an order converting one or more of the Chapter 11 Cases to a case under chapter 7 of the Bankruptcy Code or dismissing any of the Chapter 11 Cases; 3 “Business Day” means any day, other than a Saturday, Sunday, or legal holiday, in each case, in New York, New York.", "10 -------------------------------------------------------------------------------- (d) the Bankruptcy Court enters an order appointing a trustee, receiver, or examiner with expanded powers beyond those set forth in section 1106(a)(3) and (4) of the Bankruptcy Code in one or more of the Chapter 11 Cases; (e) the Definitive Documentation does not conform to the Term Sheet without the prior written consent of the Required Consenting Noteholders or otherwise is not acceptable to the Required Consenting Noteholders; (f) any Stone Party files with the Bankruptcy Court any motion or application seeking authority to sell any material assets that is not contemplated in the Term Sheet without the prior written consent of the Required Consenting Noteholders; (g) any Stone Party materially breaches its obligations under this Agreement, which breach is not cured within five (5) Business Days after the giving of written notice of such breach, or files, publicly announces, or informs the Consenting Noteholders of its intention to file a chapter 11 plan that contains terms and conditions that: (i) do not provide the Consenting Noteholders with the economic recovery set forth on the Term Sheet or (ii) are not otherwise consistent with this Agreement and the Term Sheet; provided, however, that no Consenting Noteholder may seek to terminate this Agreement based upon a material breach or any failure of any material condition in this Agreement primarily caused by such Consenting Noteholder in breach of this Agreement; (h) a material breach by any Stone Party of any representation, warranty, or covenant of such Stone Party set forth in this Agreement that (to the extent curable) remains uncured for a period of five (5) Business Days after written notice and a description of such breach is provided to the Stone Parties; provided, however, that the Required Consenting Noteholders may not seek to terminate this Agreement based upon a breach of this Agreement by a Stone Party primarily caused by the Required Consenting Noteholders in breach of this Agreement; (i) either (i) any Stone Party files with the Bankruptcy Court a motion, application, or adversary proceeding (or any Stone Party supports any such motion, application, or adversary proceeding filed or commenced by any third party) (A) challenging the validity, enforceability, or priority of, or seeking avoidance or subordination of, the Notes Claims or (B) asserting any other cause of action against the Consenting Noteholders or (ii) the Bankruptcy Court enters an order providing relief against any Consenting Noteholder with respect to any of the foregoing causes of action or proceedings filed by any Stone Party; (j) if the Bankruptcy Court or other governmental authority with jurisdiction shall have issued any order, injunction, or other decree or taken any other action, in each case, which has become final and non-appealable and which restrains, enjoins, or otherwise prohibits the implementation of the Restructuring Transactions or the effect of which would render the Plan incapable of consummation on the terms set forth in this Agreement and the Term Sheet; 11 -------------------------------------------------------------------------------- (k) any Stone Party terminates its obligations under and in accordance with this Agreement; (l) if the Stone Parties execute or file with the Bankruptcy Court any Definitive Documentation that is inconsistent with the requirements set forth in Section 4(b) of this Agreement; (m) if the Bankruptcy Court enters an order in the Chapter 11 Cases terminating any of the Stone Parties’ exclusive right to file a plan or plans of reorganization pursuant to section 1121 of the Bankruptcy Code; or (n) if the net purchase price, calculated by the Required Consenting Noteholders in their sole discretion in accordance with this Section 8(n) is less than $335.0 million.", "The net purchase price as used in this Section 8(n) shall be calculated by reducing the purchase price by (i) any purchase price adjustments (excluding adjustments related to interim operations between the Effective Time of the Appalachia PSA and the Closing Date (each as defined in the Appalachia PSA)) and (ii) any escrowed amounts, holdbacks or other similar deferred payments under the Appalachia PSA. Absent a finding of manifest error, the calculation of net purchase price by the Required Consenting Noteholders shall be final and binding on the parties with respect to this Section 8(n). The Stone Parties shall provide such assistance in good faith as reasonably requested by the Consenting Noteholders in the calculation of the net purchase price used in this Section 8(n). 9. The Stone Parties’ Termination Events.", "The Stone Parties shall have the right, but not the obligation, upon written notice to the Consenting Noteholders, to terminate their obligations (jointly) under this Agreement upon the occurrence of any of the following events (each a “Company Termination Event,” and together with the Consenting Noteholder Termination Events, the “Termination Events”), unless waived, in writing, by the Stone Parties on a prospective or retroactive basis: (a) a breach by a Consenting Noteholder of any representation, warranty, or covenant of such Consenting Noteholder set forth in this Agreement that would reasonably be expected to have a material adverse impact on the timely consummation of the Restructuring Transactions that (to the extent curable) remains uncured for a period of five (5) Business Days after written notice and a description of such breach is provided to the Consenting Noteholders; provided, however, that the Stone Parties may not seek to terminate this Agreement based upon a breach of this Agreement by a Consenting Noteholder arising primarily out of the Stone Parties’ own actions in breach of this Agreement; and provided, further, that so long as non-breaching Consenting Noteholders party hereto continue to hold at least 66-2/3% of the outstanding Notes Claims, such termination shall be effective only with respect to such breaching Consenting Noteholders; 12 -------------------------------------------------------------------------------- (b) subject to the prior notice required in the last paragraph of Section 7, if the Board of Directors of Stone desires to terminate this Agreement pursuant to the exercise of its fiduciary duties, after seeking the advice of outside legal counsel, to accept an Alternative Transaction, or make a public announcement regarding their intention to do so, as contemplated in the last paragraph of Section 7 of this Agreement; or (c) if the Bankruptcy Court or other governmental authority with jurisdiction shall have issued any order, injunction, or other decree or taken any other action, in each case, which has become final and non-appealable and which restrains, enjoins, or otherwise prohibits the implementation of the Restructuring Transactions.", "10. Individual Termination. Any Consenting Noteholder may terminate this Agreement as to itself only, upon written notice to the other Parties, in the event that: (a) such Consenting Noteholder has transferred all (but not less than all) of its Notes Claims in accordance with Section 13 of this Agreement (such termination shall be effective on the date on which such Consenting Noteholder has effected such transfer, satisfied the requirements of Section 13 and provided the written notice required above in this Section 10); or (b) this Agreement is amended without its consent in such a way as to alter any of the material terms hereof in a manner that is disproportionately adverse to such Consenting Noteholder as compared to similarly situated Consenting Noteholders, by giving ten (10) Business Days’ written notice to the Stone Parties and the other Consenting Noteholders; provided, that such written notice shall be given by the applicable Consenting Noteholder within five (5) Business Days of such amendment, filing, or execution. 11. Mutual Termination; Automatic Termination.", "Notwithstanding anything in this Agreement to the contrary, this Agreement shall terminate automatically and all of the obligations of the Parties hereunder shall be of no further force or effect in the event that: (i) the Restructuring Transactions are consummated in accordance with this Agreement and the Term Sheet; (ii) the Restructuring Transactions are not consummated in accordance with this Agreement and the Term Sheet by the one-hundredth (100th) calendar day after the Petition Date, as such date may be extended in writing from time to time by the mutual agreement of the Stone Parties and the Required Consenting Noteholders; or (iii) the Stone Parties and the Required Consenting Noteholders mutually agree to such termination in writing. 12. Effect of Termination. The earliest date on which termination of this Agreement as to a Party is effective in accordance with Sections 8, 9, 10, or 11 of this Agreement shall be referred to, with respect to such Party, as a “Termination Date.” Upon the occurrence of a Termination Date, all Parties’ obligations under this Agreement shall be terminated effective immediately, and all Parties hereto shall be released from all commitments, undertakings, agreements, and obligations; provided, however, that each of the following shall survive any such termination: (a) any claim for breach of this Agreement that occurs prior to such Termination Date, and all rights and remedies with respect to such claims shall not be prejudiced in any way; (b) the Stone Parties’ obligations in Section 15 of this Agreement accrued up to and including such Termination Date; and (c) Sections 12, 15, 18, 19, 22, 23, 25, 27, 29, 31, 31, and 37 of this Agreement.", "The automatic stay applicable under section 362 of the Bankruptcy Code shall not prohibit a Party from taking any action necessary to effectuate the termination of this Agreement pursuant to and in accordance with the terms hereof. 13 -------------------------------------------------------------------------------- 13. Transfers of Claims and Interests. (a) No Consenting Noteholder shall (i) sell, transfer, assign, pledge, grant a participation interest in, or otherwise dispose of, directly or indirectly, any of its right, title, or interest in respect of any of such Consenting Noteholder’s claims against any Stone Party, as applicable, in whole or in part, or (ii) deposit any of such Consenting Noteholder’s claims against any Stone Party, as applicable, into a voting trust, or grant any proxies, or enter into a voting agreement with respect to any such claims or interests (the actions described in Clauses (i) and (ii) are collectively referred to herein as a “Transfer” and the Consenting Noteholder making such Transfer is referred to herein as the “Transferor”), unless such Transfer is to another Consenting Noteholder or any other entity (a “Transferee”) that first agrees in writing to be bound by the terms of this Agreement by executing and delivering to the Stone Parties a Transferee Joinder substantially in the form attached hereto as Exhibit B (the “Transferee Joinder”).", "With respect to claims against or interests in a Stone Party held by the relevant Transferee upon consummation of a Transfer in accordance herewith, such Transferee is deemed to make all of the representations, warranties, and covenants of a Consenting Noteholder, set forth in this Agreement as of the date of such Transfer. Upon compliance with the foregoing, the Transferor shall be deemed to relinquish its rights (and be released from its obligations, except for any claim for breach of this Agreement that occurs prior to such Transfer and any remedies with respect to such claim) under this Agreement to the extent of such transferred rights and obligations. Any Transfer made in violation of this Section 13 shall be deemed null and void ab initio and of no force or effect, regardless of any prior notice provided to the Stone Parties and/or any Consenting Noteholder, and shall not create any obligation or liability of any Stone Party or any other Consenting Noteholder to the purported transferee.", "(b) Notwithstanding anything to the contrary herein, (i) the foregoing Clause (a) of this Section 13 shall not preclude any Consenting Noteholder from transferring Notes Claims to affiliates of such Consenting Noteholder (each, a “Creditor Affiliate”), which Creditor Affiliate shall be automatically bound by this Agreement upon the transfer of such Notes Claims, and (ii) a Qualified Marketmaker4 that acquires any of the Notes Claims with the purpose and intent of acting as a Qualified Marketmaker for such Notes Claims shall not be required to execute and deliver to counsel a Transferee Joinder or otherwise agree to be bound by the terms and conditions set forth in this Agreement if such Qualified Marketmaker transfers such Notes Claims (by purchase, sale, assignment, participation, or otherwise) to a Consenting Noteholder or a Transferee (including, for the avoidance of doubt, the requirement that such Transferee execute a Transferee Joinder).", "4 As used herein, the term “Qualified Marketmaker” means an entity that (a) holds itself out to the public or the applicable private markets as standing ready in the ordinary course of business to purchase from customers and sell to customers claims against the Stone Parties (or enter with customers into long and short positions in claims against the Stone Parties), in its capacity as a dealer or market maker in claims against the Stone Parties and (b) is, in fact, regularly in the business of making a market in claims against issuers or borrowers (including debt securities or other debt). 14 -------------------------------------------------------------------------------- 14. Further Acquisition of Claims or Interests. Except as expressly set forth in Section 13 of this Agreement, nothing in this Agreement shall be construed as precluding any Consenting Noteholder from acquiring additional claims against or interests in any Stone Parties; provided, however, that any such claims or interests shall automatically be subject to the terms and conditions of this Agreement.", "Upon any such further acquisition by a Consenting Noteholder, such Consenting Noteholder shall promptly notify in writing the Stone Parties and legal counsel to the Noteholder Committee (as defined below). 15. Fees and Expenses. Subject to Section 12 of this Agreement the Stone Parties shall pay or reimburse all reasonable and documented fees and out-of-pocket expenses (regardless of whether such fees and expenses were incurred before or after the Petition Date and in each case, in accordance with (and when due under) any applicable engagement letter or fee reimbursement letter with the Stone Parties) of: (a) Akin Gump Strauss Hauer & Feld LLP and one local law firm, as legal counsel to an ad hoc committee of Noteholders (the “Noteholder Committee”) and (b) Intrepid Financial Partners, L.L.C., as the financial advisor retained on behalf of the Noteholder Committee; provided, however, that all outstanding invoices of the Noteholder Committee’s professionals and advisors shall be paid in full immediately prior to the Petition Date.5 16. Consents and Acknowledgments.", "Each Party irrevocably acknowledges and agrees that this Agreement is not and shall not be deemed to be a solicitation for consents to the Plan. The acceptance of the Plan by each of the Consenting Noteholders will not be solicited until such Parties have received the Disclosure Statement and related ballots in accordance with applicable law, and will be subject to sections 1125, 1126, and 1127 of the Bankruptcy Code. This Agreement does not constitute, and shall not be deemed to constitute, an offer for the purchase, sale, exchange, hypothecation, or other transfer of securities for purposes of the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, or any other federal, state, or provincial law or regulation. 17. Representations and Warranties. (a) Each Consenting Noteholder hereby represents and warrants on a several and not joint basis, for itself and not for any other person or entity, that the following statements are true, correct, and complete, to the best of its actual knowledge, as of the RSA Effective Date: (i) it has the requisite organizational power and authority to enter into this Agreement and to carry out the transactions contemplated by, and perform its respective obligations under, this Agreement; (ii) the execution and delivery of this Agreement and the performance of its obligations hereunder have been duly authorized by all necessary corporate or other organizational action on its part; (iii) the execution, delivery, and performance by it of this Agreement does not violate any provision of law, rule, or regulation applicable to it or any of its affiliates, or its certificate of incorporation, or bylaws, or other organizational documents, or those of any of its affiliates; 5 Subject to (i) the receipt by Akin Gump of a prepetition advance payment sufficient to bring the aggregate amount on account up to $500,000, and (ii) the receipt by Intrepid of a prepetition advance payment in the amount of $250,000.", "15 -------------------------------------------------------------------------------- (iv) the execution and delivery by it of this Agreement does not require any registration or filing with, the consent or approval of, notice to, or any other action with any federal, state, or other governmental authority or regulatory body, other than, for the avoidance of doubt, the actions with governmental authorities or regulatory bodies required in connection with implementation of the Restructuring Transactions; (v) subject to the provisions of sections 1125 and 1126 of the Bankruptcy Code, this Agreement is the legally valid and binding obligation of it, enforceable against it in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium, or other similar laws relating to or limiting creditors’ rights generally, or by equitable principles relating to enforceability; (vi) it has sufficient knowledge and experience to evaluate properly the terms and conditions of this Agreement and the Term Sheet, and has been afforded the opportunity to discuss the Plan and other information concerning the Stone Parties with the Stone Parties’ representatives, and to consult with its legal and financial advisors with respect to its investment decision to execute this Agreement, and it has made its own analysis and decision to enter into this Agreement and otherwise investigated this matter to its full satisfaction; (vii) it (A) either (1) is the sole owner of the claims and interests identified next to its name on Annex A attached hereto and in the amounts set forth therein, or (2) has all necessary investment or voting discretion with respect to the claims and interests identified next to its name on Annex A attached hereto, and has the power and authority to bind the owner(s) of such claims and interests to the terms of this Agreement; (B) is entitled (for its own accounts or for the accounts of such other owners) to all of the rights and economic benefits of such claims and interests; and (C) does not directly or indirectly own or control any claims against or interests in any Stone Party other than as identified next to its name on Annex A attached hereto (which annex, for the avoidance of doubt, shall not be publically disclosed or filed); and (viii) other than pursuant to this Agreement, the claims and interests identified on Annex A free and clear of any pledge, lien, security interest, charge, claim, equity, option, proxy, voting restriction, right of first refusal, or other limitation on disposition or encumbrance of any kind, that would adversely affect in any material way such Consenting Noteholder’s performance of its obligations contained in this Agreement at the time such obligations are required to be performed.", "(b) Each Stone Party hereby represents and warrants on a joint and several basis (and not any other person or entity other than the Stone Parties) that the following statements are true, correct, and complete as of the RSA Effective Date: (i) it has the requisite corporate or other organizational power and authority to enter into this Agreement and to carry out the transactions contemplated by, and perform its respective obligations under, this Agreement; 16 -------------------------------------------------------------------------------- (ii) the execution and delivery of this Agreement and the performance of its obligations hereunder have been duly authorized by all necessary corporate or other organizational action on its part; (iii) the execution and delivery by it of this Agreement does not (A) violate its certificates of incorporation, or bylaws, or other organizational documents, or those of any of its affiliates, or (B) result in a breach of, or constitute (with due notice or lapse of time or both) a default (other than, for the avoidance of doubt, a breach or default that would be triggered as a result of the Chapter 11 Cases or any Stone Party’s undertaking to implement the Restructuring Transactions through the Chapter 11 Cases) under any material contractual obligation to which it or any of its affiliates is a party; (iv) the execution and delivery by it of this Agreement does not require any registration or filing with, the consent or approval of, notice to, or any other action with any federal, state, or other governmental authority or regulatory body, other than, for the avoidance of doubt, the actions with governmental authorities or regulatory bodies required in connection with implementation of the Restructuring Transactions; (v) subject to the provisions of sections 1125 and 1126 of the Bankruptcy Code, this Agreement is the legally valid and binding obligation of it, enforceable against it in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium, or other similar laws relating to or limiting creditors’ rights generally, or by equitable principles relating to enforceability; (vi) it has sufficient knowledge and experience to evaluate properly the terms and conditions of this Agreement and the Term Sheet, and has been afforded the opportunity to consult with its legal and financial advisors with respect to its decision to execute this Agreement, and it has made its own analysis and decision to enter into this Agreement and otherwise investigated this matter to its full satisfaction; (vii) Stone has filed or furnished, as applicable, all forms, filings, registrations, submissions, statements, certifications, reports, and documents required to be filed or furnished by it with the U.S. 17 -------------------------------------------------------------------------------- Securities and Exchange Commission (the “SEC”) under the U.S. Securities Exchange Act of 1934, as amended, or the U.S. Securities Act of 1933, as amended (collectively, “SEC Filings”), since December 31, 2014 (the SEC Filings since December 31, 2014 and through the RSA Effective Date, including any amendments thereto, the “Company Reports”).", "As of their respective dates (or, if amended prior to the date hereof, as of the date of such amendment), each of the Company Reports, as amended, complied in all material respects with the applicable requirements of the Exchange Act and the Securities Act, and any rules and regulations promulgated thereunder applicable to the Company Reports. As of their respective dates (or, if amended prior to the date hereof, as of the date of such amendment), the Company Reports did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances in which they were made, not misleading; and (viii) the Stone Parties’ consolidated financial statements (including, in each case, any notes thereto) contained in the Company Reports were prepared: (i) in accordance with generally accepted accounting principles in the United States of America (“GAAP”) applied on a historically consistent basis throughout the periods indicated (except as may be indicated in the notes thereto or, in the case of interim consolidated financial statements, where information and footnotes contained in such financial statements are not required under the rules of the SEC to be in compliance with GAAP) and (ii) in compliance, as of their respective dates of filing with the SEC, in all material respects with applicable accounting requirements and with the published rules and regulations of the SEC with respect thereto, and in each case, such consolidated financial statements fairly presented, in all material respects, the consolidated financial position, results of operations, changes in stockholder’s equity and cash flows of the Stone Parties, as applicable, and its consolidated subsidiaries as of the respective dates thereof and for the respective periods covered thereby (subject, in the case of unaudited statements, to normal year-end adjustments).", "18. Survival of Agreement. Each of the Parties acknowledges and agrees that this Agreement is being executed in connection with negotiations concerning a financial restructuring of the Stone Parties and in contemplation of chapter 11 filings by the Stone Parties, and the exercise of the rights granted in this Agreement after the commencement of the Chapter 11 Cases shall not be a violation of the automatic stay provisions of section 362 of the Bankruptcy Code. 19. Settlement. This Agreement and the Restructuring Transactions are part of a proposed settlement of matters that could otherwise be the subject of litigation among the Parties. Nothing herein shall be deemed an admission of any kind. Pursuant to Federal Rule of Evidence 408, any applicable state rules of evidence and any other applicable law, foreign or domestic, this Agreement, the exhibits attached hereto, the Plan, and all negotiations relating thereto shall not be admissible into evidence in any proceeding other than a proceeding to enforce the terms of this Agreement or the exhibits attached hereto (as applicable).", "18 -------------------------------------------------------------------------------- 20. Relationship Among Parties. Notwithstanding anything herein to the contrary, the duties and obligations of the Consenting Noteholders under this Agreement shall be several, not joint. No Party shall have any responsibility by virtue of this Agreement for any trading by any other entity, and it is hereby expressly acknowledged by the Consenting Noteholders, on the one hand, and the Stone Parties, on the other hand, that they are in privity with each other and that no Consenting Noteholder is in privity with any other Consenting Noteholder in connection with this Agreement or any of the transactions contemplated hereby. The Consenting Noteholders represent and warrant that as of the date hereof and for so long as this Agreement remains in effect, the Consenting Noteholders have no agreement, arrangement, or understanding with respect to acting together for the purpose of acquiring, holding, voting, or disposing of any equity securities of the Stone Parties.", "No prior history, pattern, or practice of sharing confidences among or between the Parties shall in any way affect or negate this Agreement, and each Consenting Noteholder shall be entitled to independently protect and enforce its rights, including, without limitation, the rights arising out of this Agreement, and it shall not be necessary for any other Consenting Noteholder to be joined as an additional party in any proceeding for such purpose. Nothing contained in this Agreement, and no action taken by any Consenting Noteholder pursuant hereto is intended to constitute the Consenting Noteholders as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that any Consenting Noteholder is in any way acting in concert or as a member of a “group” with any other Consenting Noteholder or Consenting Noteholders within the meaning of Rule 13d-5 under the Securities Exchange Act of 1934, as amended. 21. Specific Performance. It is understood and agreed by the Parties that money damages may be an insufficient remedy for any breach of this Agreement by any Party and each non-breaching Party shall be entitled to seek specific performance and injunctive or other equitable relief as a remedy of any such breach of this Agreement, including, without limitation, an order of the Bankruptcy Court or other court of competent jurisdiction requiring any Party to comply promptly with any of its obligations hereunder. 22.", "Governing Law and Consent to Jurisdiction and Venue. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to such state’s choice of law provisions which would require or permit the application of the law of any other jurisdiction. By its execution and delivery of this Agreement, each Party irrevocably and unconditionally agrees for itself that any legal action, suit, or proceeding against it with respect to any matter arising under or arising out of or in connection with this Agreement or for recognition or enforcement of any judgment rendered in any such action, suit, or proceeding shall be brought in the federal or state courts located in the City of Wilmington, in New Castle County and in the State of Delaware, and each of their respective appellate courts, and by executing and delivering this Agreement, each of the Parties irrevocably accepts and submits itself to the exclusive jurisdiction of such court, generally and unconditionally, with respect to any such action, suit, or proceeding. Notwithstanding the foregoing consent to Delaware jurisdiction, upon the commencement of any Chapter 11 Cases and until the effective date of the Plan, each Party agrees that the Bankruptcy Court shall have exclusive jurisdiction of all matters arising out of or in connection with this Agreement. By executing and delivering this Agreement, and upon commencement of the Chapter 11 Cases, each of the Parties irrevocably and unconditionally submits to the personal jurisdiction of the Bankruptcy Court solely for purposes of any action, suit, proceeding, or other contested matter arising out of or relating to this Agreement, or for recognition or enforcement of any judgment rendered or order entered in any such action, suit, proceeding, or other contested matter.", "19 -------------------------------------------------------------------------------- 23. WAIVER OF RIGHT TO TRIAL BY JURY. EACH OF THE PARTIES WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY ACTION, PROCEEDING, COUNTERCLAIM, OR DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, BETWEEN ANY OF THE PARTIES ARISING OUT OF, CONNECTED WITH, RELATING TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN ANY OF THEM IN CONNECTION WITH THIS AGREEMENT. INSTEAD, ANY DISPUTES RESOLVED IN COURT SHALL BE RESOLVED IN A BENCH TRIAL WITHOUT A JURY. 24. Successors and Assigns. Except as otherwise provided in this Agreement and subject to Section 13 of this Agreement, neither this Agreement nor any of the rights or obligations hereunder may be assigned by any Party hereto, without the prior written consent of the other Parties hereto, and then only to a person or entity that has agreed to be bound by the provisions of this Agreement. This Agreement is intended to and shall bind and inure to the benefit of each of the Parties and each of their respective permitted successors, assigns, heirs, executors, administrators, and representatives. 25. No Third-Party Beneficiaries. Unless expressly stated herein, this Agreement shall be solely for the benefit of the Parties and no other person or entity shall be a third-party beneficiary of this Agreement. 26.", "Notices. All notices (including, without limitation, any notice of termination or breach) and other communications from any Party hereunder shall be in writing and shall be deemed to have been duly given if personally delivered by courier service or messenger; registered, certified or overnight mail; e-mail, or facsimile to the other Parties at the applicable addresses below, or such other addresses as may be furnished hereafter by notice in writing. Any notice of termination or breach shall be delivered to all other Parties. (a) If to any Stone Party: Stone Energy Corporation 625 East Kaliste Saloom Rd. Lafayette, LA 70508 Attn: Lisa S. Jaubert and Kenneth H. Beer Phone: (337) 521-2278 Fax: (337) 521-9916 E-mail: JaubertLS@StoneEnergy.com; and BeerKH@StoneEnergy.com.", "20 -------------------------------------------------------------------------------- with a copy to: Latham & Watkins LLP 330 North Wabash Avenue, Suite 2800 Chicago, IL 60611 Attn: David S. Heller; Josef S. Athanas, Caroline A. Reckler, and Matthew L. Warren Phone: (312) 876-7700 Fax: (312) 993-9767 E-mail: david.heller@lw.com, josef.athanas@lw.com, caroline.reckler@lw.com, and matthew.warren@lw.com -and- Andrews Kurth LLP 600 Travis, Suite 4200 Houston, TX 77002 Attn: Robin Russell Phone: (713) 220-4086 Fax: (713) 238.7192 E-mail: rrussell@andrewskurth.com (b) If to any Consenting Noteholder: To the notice address provided on Annex A. with a copy to: Akin Gump Strauss Hauer & Feld LLP One Bryan Park Bank of America Tower New York, NY 10036-6745 Attn: Michael S. Stamer, Meredith Lahaie, and Stephen B. Kuhn.", "Phone: (212) 872-1000 Fax: (212) 872-1002 E-mail: mstamer@akingump.com, mlahaie@akingump.com, and skuhn@akingump.com. 27. Entire Agreement. This Agreement (and the exhibits and schedules attached hereto) constitutes the entire agreement of the Parties with respect to the transactions contemplated herein, and supersedes all prior negotiations, discussions, promises, representations, warranties, agreements, and understandings, whether written or oral, between or among the Parties with respect thereto; provided, however, that, for the avoidance of doubt, any confidentiality agreement executed by any Consenting Noteholder shall survive this Agreement and shall continue to be in full force and effect in accordance with its terms; provided, further, that the Parties intend to enter into the Definitive Documentation after the date hereof to consummate the Restructuring Transactions. 21 -------------------------------------------------------------------------------- 28. Amendments. Except as otherwise provided herein, this Agreement may not be modified, amended, or supplemented, and no term or provision hereof or thereof waived, without the prior written consent of the Stone Parties and the Required Consenting Noteholders, provided that, the written consent of each Consenting Noteholder and the Stone Parties shall be required for any amendments, amendments and restatements, modifications, or other changes to the defined term “Required Consenting Noteholders,” Section 10 and this Section 28 and provided, further, that any amendments, amendments and restatements, modifications, or other changes to the Term Sheet shall require the prior written consent of Consenting Noteholders, holding at least two-thirds of the principal amount outstanding of all Notes Claims held by the Consenting Noteholders provided that, such Consenting Noteholders holding at least two-thirds of the principal amount shall include at least two (2) separate Consenting Noteholders (for purposes of this provision, each institution holding Notes Claims shall be taken together with each of its controlled affiliate’s and subsidiary’s Notes Claims holdings and they shall together in the aggregate constitute a single Consenting Noteholder).", "29. Reservation of Rights. (a) Except as expressly provided in this Agreement, nothing herein is intended to, or does, in any manner waive, limit, impair, or restrict the ability of any Party to protect and preserve its rights, remedies, and interests, including without limitation, its claims against any of the other Parties. (b) Without limiting Clause (a) of this Section 29 in any way, if the Restructuring Transactions are not consummated in the manner and on the timeline set forth in this Agreement, or if this Agreement is terminated for any reason in accordance with its terms, nothing shall be construed herein as a waiver by any Party of any or all of such Party’s rights, remedies, claims, and defenses and the Parties expressly reserve any and all of their respective rights, remedies, claims, and defenses, subject to Section 19 of this Agreement.", "This Agreement, the Plan, and any related document shall in no event be construed as or be deemed to be evidence of an admission or concession on the part of any Party of any claim or fault or liability or damages whatsoever. Each of the Parties denies any and all wrongdoing or liability of any kind and does not concede any infirmity in the claims or defenses which it has asserted or could assert. 30. Counterparts. This Agreement may be executed in one or more counterparts, each of which, when so executed, shall constitute the same instrument, and the counterparts may be delivered by facsimile transmission or by electronic mail in portable document format (.pdf). 31.", "Public Disclosure. This Agreement, as well as its terms, its existence, and the existence of the negotiation of its terms are expressly subject to any existing confidentiality agreements executed by and among any of the Parties as of the date hereof; provided, however, that, after the Petition Date, the Parties may disclose the existence of, or the terms of, this Agreement or any other material term of the Restructuring Transactions contemplated herein without the express written consent of the other Parties.", "For the avoidance of doubt and notwithstanding the generality of the foregoing, under no circumstances may any Party make any public disclosure of any kind that would disclose either: (i) the holdings of any Consenting Noteholder (including Annex A, which shall not be publicly disclosed or filed) or (ii) the identity of any Consenting Noteholder without the prior written consent of such Consenting Noteholder or the order of a Bankruptcy Court or other court with competent jurisdiction. 22 -------------------------------------------------------------------------------- 32. Creditors’ Committee. Notwithstanding anything herein to the contrary, if any Consenting Noteholder is appointed to, and serves on an official committee of creditors in the Chapter 11 Cases, the terms of this Agreement shall not be construed so as to limit such Consenting Noteholder’s exercise of its fiduciary duties arising from its service on such committee; provided, however, that service as a member of a committee shall not relieve such Consenting Noteholder of its obligations to affirmatively support the Restructuring Transactions on the terms and conditions set forth in this Agreement and the Term Sheet and the transactions with Buyer on the terms and .conditions set forth in this Agreement and the Appalachia PSA. 33. Severability.", "If any portion of this Agreement shall be held to be invalid, unenforceable, void or voidable, or violative of applicable law, the remaining portions of this Agreement insofar as they may practicably be performed shall remain in full force and effect and binding on the Parties. 34. Additional Parties. Without in any way limiting the provisions hereof, additional Noteholders may become Parties by executing and delivering to the other Parties a duly executed counterpart hereof.", "Such additional Parties shall become Consenting Noteholders under this Agreement in accordance with the terms of this Agreement. 35. Time Periods. If any time period or other deadline provided in this Agreement expires on a day that is not a Business Day, then such time period or other deadline, as applicable, shall be deemed extended to the next succeeding Business Day. 36. Headings. The section headings of this Agreement are for convenience of reference only and shall not, for any purpose, be deemed a part of this Agreement.", "37. Interpretation. This Agreement is the product of negotiations among the Parties, and the enforcement or interpretation hereof, is to be interpreted in a neutral manner, and any presumption with regard to interpretation for or against any Party by reason of that Party having drafted or caused to be drafted this Agreement or any portion hereof, shall not be effective in regard to the interpretation hereof. For purposes of this Agreement, unless otherwise specified: (a) each term, whether stated in the singular or the plural, shall include both the singular and the plural, and pronouns stated in the masculine, feminine, or neuter gender shall include the masculine, feminine, and the neuter gender; (b) all references herein to “Articles,” “Sections,” and “Exhibits” are references to Articles, Sections, and Exhibits of this Agreement; and (c) the words “herein,” “hereof,” “hereunder,” and “hereto,” refer to this Agreement in its entirety rather than to a particular portion of this Agreement. The phrase “reasonable best efforts” or words or phrases of similar import as used herein shall not be deemed to require any party to enforce or exhaust their appellate rights in any court of competent jurisdiction, including, without limitation, the Bankruptcy Court.", "38. Remedies Cumulative; No Waiver. All rights, powers, and remedies provided under this Agreement or otherwise available in respect hereof at law or in equity shall be cumulative and not alternative, and the exercise of any right, power, or remedy thereof by any Party shall not preclude the simultaneous or later exercise of any other such right, power, or remedy by such Party. The failure of any Party hereto to exercise any right, power, or remedy provided under this Agreement or otherwise available in respect hereof at law or in equity, or to insist upon strict 23 -------------------------------------------------------------------------------- compliance by any other Party hereto with its obligations hereunder, and any custom or practice of the parties at variance with the terms hereof, shall not constitute a waiver by such Party of its right to exercise any such or other right, power, or remedy or to demand such strict compliance.", "[Signatures and exhibits follow.] 24 -------------------------------------------------------------------------------- IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth above. STONE ENERGY CORPORATION, a Delaware corporation By: /s/ Kenneth H. Beer Kenneth H. Beer, Executive Vice President and Chief Financial Officer STONE ENERGY OFFSHORE, L.L.C., a Delaware limited liability company, by Stone Energy Corporation, its sole member By: /s/ Kenneth H. Beer Kenneth H. Beer, Executive Vice President and Chief Financial Officer STONE ENERGY HOLDING, L.L.C., a Delaware limited liability company, by Stone Energy Corporation, it sole member By: /s/ Kenneth H. Beer Kenneth H. Beer, Executive Vice President and Chief Financial Officer [Signature Page to Restructuring Support Agreement – Consenting Noteholder] -------------------------------------------------------------------------------- Schedule 1 Milestones (a) the Stone Parties shall commence the solicitation in respect of the Plan, no later than November 3, 2016; (b) the Stone Parties shall commence the Chapter 11 Cases by filing bankruptcy petitions with the Bankruptcy Court no later than December 9, 2016 (such filing date, the “Petition Date”); (c) within two (2) calendar days after the Petition Date, the Stone Parties shall file with the Bankruptcy Court: (i) a motion seeking to assume this Agreement (the “RSA Assumption Motion”), (ii) the Plan and Disclosure Statement, and (iii) a motion (the “Disclosure Statement and Solicitation Motion”) seeking, among other things: (A) approval of the Disclosure Statement; (B) approval of procedures for soliciting, receiving, and tabulating votes on the Plan and for filing objections to the Plan; and (C) to schedule the hearing to consider confirmation of the Plan (the “Confirmation Hearing”); (d) no later than thirty (30) calendar days from the Petition Date, the Bankruptcy Court shall have entered an order authorizing the assumption of this Agreement (the “RSA Assumption Order”); (e) no later than seventy-five (75) calendar days after the Plan and Disclosure Statement are filed, the Bankruptcy Court shall have entered the Confirmation Order; (f) no later than fifteen (15) calendar days after entry of the Confirmation Order by the Bankruptcy Court, the Stone Parties shall consummate the transactions contemplated by the Plan (the date of such consummation, the “Plan Effective Date”); and (g) no later than the Plan Effective Date, the Stone Parties shall have received at least $350 million from the sale of the Appalachian Assets (as defined in the Term Sheet) subject to adjustment in accordance with the Appalachia PSA.", "Schedule 1 -------------------------------------------------------------------------------- Exhibit A to the Restructuring Support Agreement Term Sheet [See Attached] -------------------------------------------------------------------------------- STONE ENERGY CORPORATION RESTRUCTURING TERM SHEET October 20, 2016 THIS TERM SHEET IS NOT AN OFFER WITH RESPECT TO ANY SECURITIES OR A SOLICITATION OF ACCEPTANCE OR REJECTION OF A CHAPTER 11 PLAN OF REORGANIZATION PURSUANT TO THE BANKRUPTCY CODE. ANY SUCH OFFER OR SOLICITATION WILL BE MADE ONLY IN COMPLIANCE WITH ALL APPLICABLE SECURITIES LAWS AND, IF APPLICABLE, PROVISIONS OF THE BANKRUPTCY CODE. THIS TERM SHEET IS BEING PROVIDED IN FURTHERANCE OF SETTLEMENT DISCUSSIONS AND IS ENTITLED TO PROTECTION PURSUANT TO RULE 408 OF THE FEDERAL RULES OF EVIDENCE AND ANY SIMILAR FEDERAL OR STATE RULE OF EVIDENCE. THE TRANSACTIONS DESCRIBED IN THIS TERM SHEET ARE SUBJECT IN ALL RESPECTS TO, AMONG OTHER THINGS, EXECUTION AND DELIVERY OF DEFINITIVE DOCUMENTATION AND SATISFACTION OR WAIVER OF THE CONDITIONS PRECEDENT SET FORTH THEREIN.", "NOTHING IN THIS TERM SHEET SHALL CONSTITUTE OR BE CONSTRUED AS AN ADMISSION OF ANY FACT OR LIABILITY, A STIPULATION OR A WAIVER, AND EACH STATEMENT CONTAINED HEREIN IS MADE WITHOUT PREJUDICE, WITH A FULL RESERVATION OF ALL RIGHTS, REMEDIES, CLAIMS AND DEFENSES OF THE LENDERS, THE COMPANY, AND ANY CREDITOR PARTY. THIS TERM SHEET DOES NOT INCLUDE A DESCRIPTION OF ALL OF THE TERMS, CONDITIONS, AND OTHER PROVISIONS THAT ARE TO BE CONTAINED IN THE DEFINITIVE DOCUMENTATION, WHICH REMAIN SUBJECT TO DISCUSSION, NEGOTIATION AND EXECUTION. SUMMARY OF PRINCIPAL TERMS OF PROPOSED RESTRUCTURING TRANSACTIONS This term sheet (the “Term Sheet”) sets forth certain key terms of a proposed restructuring transaction (the “Transaction”) with respect to the existing debt and other obligations of Stone Energy Corporation (“Stone”), Stone Energy Offshore, L.L.C. (“Stone Offshore”) and Stone Energy Holdings, L.L.C.", "(each a “Stone Party” and collectively, the “Stone Parties” or the “Company”). This Term Sheet is the “Term Sheet” referenced as Exhibit A in that certain Restructuring Support Agreement, dated as of October 20, 2016 (as the same may be amended, modified or supplemented, the “Support Agreement”), by and among the Stone Parties and the Consenting Noteholders party thereto. Capitalized terms used but not otherwise defined in this Term Sheet shall have the meanings given to such terms in the Support Agreement. This Term Sheet Page 28 -------------------------------------------------------------------------------- supersedes any proposed summary of terms or conditions regarding the subject matter hereof and dated prior to the date hereof.", "Subject to the Support Agreement, the Transaction will be implemented through pre-packaged6 Chapter 11 Cases pursuant to the Plan. TREATMENT OF CLAIMS AND INTERESTS The below summarizes the treatment to be received on or as soon as practicable after the Consummation Date (as defined below) by holders of claims against, and interests in, the Company pursuant to the Transaction. Administrative, Priority, and Tax Claims Allowed administrative, priority, and tax claims will be satisfied in full, in cash, or otherwise receive treatment consistent with the provisions of section 1129(a)(9) of the Bankruptcy Code.", "Bank Claims Each holder of an allowed Bank Claim shall receive (a) (i) if the class of Bank Claims votes to accept the Plan, on a pro rata basis, commitments under an amended Credit Agreement with the terms set forth on Exhibit 1(a) hereto or (ii) if the class of Bank Claims does not vote to accept the Plan (or is deemed to reject the Plan), a term loan with the terms set forth on Exhibit 1(b) hereto or (b) such other treatment as is acceptable to the Company and the Required Consenting Noteholders and consistent with the Bankruptcy Code, including, but not limited to, section 1129(b) of the Bankruptcy Code. Other Secured Claims Secured claims (other than Bank Claims) shall be unaltered and paid in full in the ordinary course of business to the extent such claims are undisputed. 6 Subject to resolution of management/employment issues.", "Page 29 -------------------------------------------------------------------------------- Notes Claims Each holder of an allowed Notes Claim shall receive its pro rata share of (a) $150 million of the net cash proceeds from the sale of the Appalachian Assets plus 85% of the net cash proceeds from the sale of the Appalachian Assets in excess of $350 million, if any, (b) 95% of the common stock in reorganized Stone (the “New Equity Interests”), subject to dilution by the Warrants, the Management Incentive Plan (each as defined below) and subsequent issuances of common stock (including securities or instruments convertible into common stock) by Stone from time to time after the Consummation Date, as set forth herein, and (c) $225 million of 7.5% notes due 2022 secured by a second-priority security interest on all assets securing the obligations owing to the holders of Bank Claims, with the terms set forth on Exhibit 2 hereto (the “New Notes”).", "General Unsecured Claims Unsecured claims other than Notes Claims shall be unaltered and paid in full in the ordinary course of business to the extent such claims are undisputed. Intercompany Claims Intercompany claims shall be reinstated, compromised, or cancelled, at the election of the Company and the Required Consenting Noteholders such that intercompany claims are treated in a tax-efficient manner. Equity Interests All existing common stock and other equity interests and rights in Stone shall be extinguished as of the Consummation Date. If the class of Bank Claims votes in favor of the Plan or if the Bankruptcy Court holds that the Plan may be confirmed notwithstanding that the class of Bank Claims votes against the Plan (or is deemed to reject the Plan) pursuant to 1129 (b) of the Bankruptcy Code, then each holder of existing common stock in Stone shall receive its pro rata share of 5% of the New Equity Interests and warrants on terms and conditions consistent with the term sheet attached hereto as Exhibit 3 (the “Warrants”), which New Equity Interests shall be subject to dilution by the Warrants and the Management Incentive Plan and subsequent issuances of common stock (including securities or instruments convertible into common stock) by Stone from time to time after the Consummation Date.", "Page 30 -------------------------------------------------------------------------------- OTHER TERMS OF THE TRANSACTION Sale of Appalachian Assets Prior to or simultaneously with the Consummation Date, the Company shall have sold substantially all of its assets located in the Marcellus and Utica shales in Appalachia (the “Appalachian Assets”) for at least $350 million subject to adjustments as provided for in the purchase and sale agreement. Corporate Governance The terms and conditions of the new corporate governance documents of the reorganized Company (including the bylaws and certificates of incorporation or similar documents, among other governance documents) shall be acceptable to the Required Consenting Noteholders in their sole discretion. The Parties expect that the reorganized Company following the Consummation Date will continue as a public reporting company under applicable U.S. securities laws and, consequently, the terms and conditions of the new corporate governance documents of the reorganized Company will be appropriate for such a public reporting company. The New Equity Interests issued to the Noteholders may, if so determined by the Required Consenting Noteholders (including if the Company will not be a public reporting company immediately following the Consummation Date), be subject to a stockholders agreement (the “New Stockholders Agreement”) containing terms and conditions that are appropriate for a private company and otherwise are acceptable to the Required Consenting Noteholders in their sole discretion. Such New Stockholders Agreement (if any) would govern the composition of the board or other governing body of reorganized Stone (the “New Board”) and will include customary approval rights for major stockholders and customary minority protections, including, but not limited to, transfer restrictions for the New Equity Interests issued to the Noteholders (solely for the purpose of assuring the Company would not be forced to become a public reporting company prior to such time as may be determined by the New Board), tag-along rights, drag-along rights, preemptive rights, information rights, and other customary protections for transactions of this type.", "Page 31 -------------------------------------------------------------------------------- Board of Directors The New Board shall initially consist of seven (7) directors selected by the Required Consenting Noteholders, one of whom will be the chief executive officer of Stone; provided, however, that the Required Consenting Noteholders shall interview any existing Board member who wishes to continue as a member of the New Board. Management Incentive Plan On the Consummation Date, reorganized Stone shall adopt a management incentive plan (the “Management Incentive Plan”) which shall provide for the grant of up to 10% of the New Equity Interests (or warrants or options to purchase New Equity Interests or other equity-linked interests) on a fully diluted basis to certain members of management. The form, allocation and any limitations on the Management Incentive Plan shall be determined by the New Board (or a committee thereof).", "Releases & Exculpation The amended Credit Agreement, the indenture for the New Notes, the Plan, and the Confirmation Order will contain customary mutual releases and other exculpatory provisions in favor of the Company, the Consenting Noteholders, the Indenture Trustee, the holders of existing common stock in Stone that provide a release, and each of their respective current and former affiliates, subsidiaries, members, professionals, advisors, employees, directors, and officers, in their respective capacities as such; provided, however, that if the class of Bank Claims votes to accept the Plan, the holders of Bank Claims and the administrative agent under the Credit Agreement will also be subject to the foregoing releases and exculpatory provisions. Such release and exculpation shall include, without limitation, any and all claims, obligations, rights, suits, damages, causes of action, remedies, and liabilities whatsoever, whether known or unknown, foreseen or unforeseen, existing or hereinafter arising, in law, equity, or otherwise, including any derivative claims and avoidance actions, of the Company, whether known or unknown, foreseen or unforeseen, existing or hereinafter arising, in law, equity, or otherwise, that the Company would have been legally entitled to assert in its own right (whether individually or collectively), or on behalf of the holder of any claim or equity interest (whether individually or collectively) or other entity, based in whole or in part upon any act or omission, transaction, or other occurrence or circumstances existing or taking place at any time prior to or on the Consummation Date arising from or related in any way in whole or in part to the Company, the Credit Agreement, the Indentures, the Chapter 11 Cases, the purchase, sale, or rescission of the purchase or sale of any Page 32 -------------------------------------------------------------------------------- security of the Company, the subject matter of, or the transactions or events giving rise to, any claim or equity interest that is affected by the Transaction or treated in the Plan, or the negotiation, formulation, or preparation of the Definitive Documentation or related agreements, instruments, or other documents, in each case other than claims, actions, or liabilities arising out of or relating to any act or omission that constitutes willful misconduct, actual fraud, or gross negligence as determined by final order of a court of competent jurisdiction.", "To the maximum extent permitted by applicable law, any such releases shall bind all parties who affirmatively agree or vote to accept the Plan, those parties who abstain from voting on the Plan if they fail to opt-out of the releases, and those parties that vote to reject the Plan unless they opt-out of the releases. Injunction & Discharge The Plan and Confirmation Order will contain customary injunction and discharge provisions. Cancellation of Instruments, Certificates, and Other Documents On the Consummation Date and immediately prior to or concurrent with the distributions contemplated in this Term Sheet, except to the extent otherwise provided herein or in the Definitive Documentation, all instruments, certificates, and other documents evidencing debt of or equity interests in Stone and its subsidiaries shall be cancelled, and the obligations of Stone and its subsidiaries thereunder, or in any way related thereto, shall be discharged. Employee Compensation and Benefit Programs The employment agreements and severance policies, and all employment, compensation and benefit plans, policies, and programs of the Company applicable to any of its employees and retirees, including, without limitation, all workers’ compensation programs, savings plans, retirement plans, deferred compensation plans, SERP plans, healthcare plans, disability plans, severance benefit plans, incentive plans, life and accidental death and dismemberment insurance plans listed on Schedule A attached hereto that are approved by, and with such additions, deletions, and modifications as may be required by, the Required Consenting Noteholders (collectively, the “Specified Employee Plans”), shall be maintained, continued in full force and effect and assumed by the Company (and assigned to the reorganized Stone Parties, if necessary) pursuant to section 365(a) of the Bankruptcy Code, either by a separate motion filed with the Bankruptcy Court or pursuant to the terms of the Plan.", "All claims arising from the Specified Employee Plans shall be Page 33 -------------------------------------------------------------------------------- treated in accordance with the Bankruptcy Code. Any plans, programs or arrangements that are not Specified Employee Plans relating to employees, compensation, or employee benefits shall be terminated or rejected, as appropriate. Tax Issues The Transaction shall, subject to the terms and conditions of the Support Agreement, be structured to achieve a tax-efficient structure, in a manner acceptable to the Company and the Required Consenting Noteholders. Exemption Under Section 1145 of the Bankruptcy Code The Plan and Confirmation Order shall provide that the issuance of any securities thereunder, including the New Notes, the New Equity Interests and the Warrants, will be exempt from securities laws in accordance with section 1145 of the Bankruptcy Code and such New Notes, New Equity Interests and Warrants shall be, following the Consummation Date, freely transferable by the respective holders thereof to the furthest extent permissible pursuant to section 1145 and applicable securities law and regulations (other than with respect to any such holders that are affiliates of the reorganized Company). Registration Rights The Company shall enter into a registration rights agreement with any party that receives 5% or more of the New Equity Interests. The registration rights agreement shall contain customary terms and conditions, including provisions with respect to demand rights, piggyback rights and blackout periods and shall be acceptable to the Consenting Noteholders in their sole discretion.", "SEC Reporting The Company shall continue as a public reporting company under applicable U.S. securities laws and shall continue to file annual, quarterly and current reports in accordance with the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder. Stock Exchange The Company shall use commercially reasonable efforts to list the New Equity Interests for trading on the New York Stock Exchange, The NASDAQ Global Market, the NASDAQ Global Select Market or any other national securities exchange reasonably acceptable to the Stone Parties and the Required Consenting Noteholders with such listing to be effective on the Consummation Date. Page 34 -------------------------------------------------------------------------------- D&O Liability Insurance Policies with Runoff Endorsements, and Indemnification Prior to the Petition Date, the Company shall purchase runoff endorsements to the Company’s existing Directors’ and Officers’ liability insurance policies (collectively, “D&O Liability Insurance Policies”) set forth on Schedule B hereto, extending coverage for current or former directors, managers, and officers of the Stone Parties for a six-year period after the Consummation Date for covered liabilities arising from activities occurring prior to the Consummation Date (collectively, “Runoff Endorsements”). The Company shall purchase new D&O Liability Insurance Policies for directors, managers, and officers of reorganized Stone and its subsidiaries from and after the Consummation Date on terms and conditions acceptable to the Required Consenting Noteholders.", "The Company shall assume (and assign to the reorganized entities if necessary), pursuant to section 365(a) of the Bankruptcy Code, either by a separate motion filed with the Bankruptcy Court or pursuant to the terms of the Plan, (a) the existing D&O Liability Insurance Policies with Runoff Endorsements, and (b) all indemnification provisions in existence as of the date of the Support Agreement, including, but not limited to, those set forth on Schedule B hereto that, solely in respect of any indemnification agreements and other indemnification obligations (but not the existing D&O Liability Insurance Policies with Runoff Endorsements) are approved by, and with such additions, deletions, and modifications to such indemnification agreements and obligations as may be required by, the Required Consenting Noteholders to make such indemnification agreements and obligations consistent with current market practice to the reasonable satisfaction of the Required Consenting Noteholders, for directors, managers and officers of the Company (whether in by-laws, certificate of formation or incorporation, board resolutions, employment contracts, or otherwise), such indemnification provisions, the “Indemnification Provisions”; provided, however, that no such Indemnification Provisions shall be deleted from Schedule B unless such deletion is agreed to by both the Required Consenting Noteholders and the Stone Parties. All claims arising from the existing D&O Liability Insurance Policies with Runoff Endorsements and such Indemnification Provisions shall be unaltered by the Transaction.", "Notice Procedures The Company shall provide written notice and publication notice of the bar date, if applicable, and the hearing to consider confirmation of the Plan to holders of claims in a manner acceptable to the Required Consenting Noteholders. Page 35 -------------------------------------------------------------------------------- Consummation Date The date on which the Transaction shall be fully consummated in accordance with the terms and conditions of the Definitive Documentation, which shall be the effective date of the Plan (the “Consummation Date”).", "Page 36 -------------------------------------------------------------------------------- Conditions to the Consummation Date The Consummation Date shall be subject to the following conditions precedent, some of which may be waived in writing by agreement of the Company and the Required Consenting Noteholders, subject to the consent rights provided for in the Support Agreement: (i) the Company shall have sold the Appalachian Assets for a purchase price of at least $350 million subject to adjustments as provided for in the purchase and sale agreement; (ii) the Definitive Documentation (as applicable) shall be in form and substance consistent with this Term Sheet and the Support Agreement and be otherwise approved consistent with the terms of section 4(b) of the Support Agreement; (iii) the Bankruptcy Court shall have entered an order confirming the Plan in form and substance consistent with this Term Sheet and the Support Agreement and such order shall otherwise be approved consistent with the terms of section 4(b) of the Support Agreement, and such order shall not have been stayed, modified or vacated; (iv) all of the schedules, documents, supplements, and exhibits to the Plan and Disclosure Statement shall be in form and substance consistent with this Term Sheet and the Support Agreement and such documents shall otherwise be approved consistent with the terms of section 4(b) of the Support Agreement; (v) the Support Agreement shall be in full force and effect and shall have been assumed by the Company pursuant to an order of the Bankruptcy Court satisfactory to the Required Consenting Noteholders; (vi) all governmental approvals and consents that are legally required for the consummation of the Transaction shall have been obtained, not be subject to unfulfilled conditions and be in full force and effect, and all applicable waiting periods under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, shall have expired; (vii) each of the contracts listed on Exhibit 4 hereto shall have been renegotiated on terms acceptable to the Required Consenting Noteholders; and (viii) the Company shall have resolved issues related to the provision of additional collateral to BOEM on terms acceptable to the Required Consenting Noteholders.", "Page 37 -------------------------------------------------------------------------------- Fees and Expenses of the Noteholder Committee The Stone Parties shall pay or reimburse all reasonable and documented fees and out-of-pocket expenses (regardless of whether such fees and expenses were incurred before or after the Petition Date, and in each case, in accordance with (and when due under) any applicable engagement letter or fee reimbursement letter with the Stone Parties) of: (a) Akin Gump Strauss Hauer & Feld LLP and one local law firm, as counsel to the Noteholder Committee, and (b) Intrepid Partners, L.L.C., as the financial advisor retained by the Noteholder Committee; provided, however, that all outstanding invoices of the Noteholder Committee’s professionals and advisors shall be paid in full immediately prior to the Petition Date. Page 38 -------------------------------------------------------------------------------- Exhibit 1(a) Treatment of Bank Claims if the class of Bank Claims votes to accept the Plan • Each holder of Bank Claims shall receive its respective pro rata share of any cash to be paid to holders of allowed Bank Claims pursuant to the Plan.", "• 4-year RBL exit facility, on terms substantially consistent with the pre-petition RBL facility, except: • Borrowing base reduced from $360 million to not less than $235 million on the Effective Date until the first borrowing base redetermination date • Borrowing base holiday with first redetermination to be in April 2018 • $75 million held in a restricted account to satisfy future P&A liabilities not included in the reserve report, provided that P&A liabilities not included in reserve report are paid from the restricted account • 100bps increase in the Applicable Margin (i.e., L + 2.50% - 3.50%) • Leverage covenant to be reset at levels to be agreed (consistent with the Company’s projections + reasonable cushion) • Mortgage requirement increased to 95% pro forma for the sale of Appalachia • Requirement of 25-50% of production hedged for a rolling 2-year period • Other terms to be agreed between the lenders, Required Consenting Noteholders and the Company -------------------------------------------------------------------------------- Exhibit 1(b) Treatment of Bank Claims if the class of Bank Claims does not vote to accept (or is deemed to reject) the Plan • $342 million exit term loan (reflecting the outstanding amount of Bank Claims outstanding on the Effective Date) • 5-year maturity from the Effective Date • Interest rate of T+2.00% • Exit term loan to be a first-lien senior secured obligation and guaranteed by Stone Energy Offshore, LLC (the existing guarantor) • Exit term loan to be repaid at any time at par at the election of the borrower • Not subject to a borrowing base • Financial Maintenance Covenant: First-lien asset coverage at a level TBD Page 40 -------------------------------------------------------------------------------- Exhibit 2 Terms of New Notes • Interest rate of 7.5% per annum, 3.75% payable in cash and 3.75% payable in cash or PIK at the election of the Company. • Maturity of May 31, 2022.", "• Investments in joint ventures and acquisitions by the Company and its subsidiaries shall be permitted on terms acceptable to the Required Consenting Noteholders. • Redemption/Make Whole: The Company may redeem the New Notes at any time, subject to paying the following make whole amounts: • If the Company prepays the New Notes prior to the third anniversary of issuance, the prepayment amount shall be at par, plus accrued interest, plus a make whole payment equal to the spread over a comparable treasury note plus 50 basis points. • If the Company prepays the New Notes after the third anniversary, but prior to the fifth anniversary, of issuance, the prepayment amount shall be at 105.625% of par, plus accrued interest.", "• If the Company prepays the New Notes on or after the fifth anniversary of issuance, the prepayment amount shall be at par plus accrued interest. • Amendment, modification, and waiver under the indenture for the New Notes shall require the consent of a majority of the principal amount outstanding of all New Notes other than provisions that require unanimous consent to amend pursuant to the Trust Indenture Act and/or other applicable law. Page 41 -------------------------------------------------------------------------------- Exhibit 3 Warrant Term Sheet Shares Represented 15% of the New Equity Interests, subject to dilution on account of the Management Incentive Plan and future issuances of common stock by Stone from time to time after the Consummation Date.", "Strike Price Strike price equal to a total equity value of reorganized Stone that implies a 100% recovery of outstanding principal to holders of the Notes Claims plus accrued interest through the Consummation Date. Maturity Four (4) years from the Consummation Date. Other Terms The agreement governing the Warrants shall contain terms and conditions, including, without limitation, basic anti-dilution protection (against stock splits, stock dividends and similar events) customary for transactions of this type and otherwise acceptable to the Company and the Required Consenting Noteholders. Page 42 -------------------------------------------------------------------------------- Exhibit 4 Contracts to Be Renegotiated NONE Page 43 -------------------------------------------------------------------------------- Schedule A7 Specified Employee Plans 1. Stone Energy Corporation Executive Change of Control and Severance Plan 2. Stone Energy Corporation Employee Change of Control Severance Plan 3. Severance Pay Policy (Non-Executive Employees) 4.", "Letter Agreement dated December 2, 2008 between Stone Energy Corporation and David H. Welch 5. Letter Agreement dated May 19, 2005 between Stone Energy Corporation and Kenneth H. Beer 6. Letter Agreement dated August 10, 2016 by and between Stone Energy Corporation and Richard L Toothman Jr. 7. Stone Energy Corporation Amended and Restated Revised Annual Incentive Compensation Plan 8. Stone Energy Corporation 2016 Performance Incentive Compensation Plan 9. Stone Energy Corporation 2009 Amended and Restated Stock Incentive Plan (As Amended and Restated December 17, 2015), as amended Employee Benefit Plans 1.", "Stone Energy Corporation Employee Benefit Plan (Medical) 2. Stone Energy Corporation Dental Plan 3. Stone Energy Corporation Vision Service Plan 4. Stone Energy Corporation Group Basic Life & AD&D and Dependent Life Insurance Plan 5. Stone Energy Corporation Long Term Disability Insurance Plan 6. Stone Energy Corporation Voluntary Group AD&D Insurance Plan 7. Stone Energy Corporation Voluntary Group Critical Illness Insurance Plan 8. Stone Energy Corporation Medical Flexible Spending Account & Dependent Care Flexible Spending Account 9. Stone Energy Corporation 401(k) Profit Sharing Plan 10. Stone Energy Corporation Deferred Compensation Plan 11. Workers Compensation and Employers Liability Insurance Policy (American Zurich Insurance Company) Miscellaneous Benefits 1.", "Executive physicals at Lafayette General 2. Safety Incentive Program 3. Health club subsidy 4. Discretionary 401(k) Employer Match 5. Payout of field ETO (maximum 84 hours per employee – 61 field employees) 7 Subject to the completion of due diligence and additions and/or deletions to the foregoing list of plans and other agreements and amendments thereto acceptable to the Required Consenting Noteholders. For the avoidance of doubt, the Required Consenting Noteholders have not agreed to the foregoing list of plans and other agreements and, therefore, such list remains subject to change. Page 44 -------------------------------------------------------------------------------- Schedule B Directors & Officers Liability Insurance Policies and Indemnification Provisions D&O Liability Insurance Policies 1. Directors & Officers and Corporate Liability Insurance Policy by and between Stone Energy Corporation and Allied World Insurance Company; policy number 0309-5636 effective May 1, 2015 to May 1, 2017. 2.", "Excess Edge policy, following Item 1 above, by and between Stone Energy Corporation and National Union Fire Insurance Company of Pittsburgh, PA; policy number 01-274-27-25 effective May 1, 2015 to May 1, 2017. 3. Excess Policy, following Item 1-2 above, by and between Stone Energy Corporation and XL Specialty Insurance Company; policy number ELU138853-15 effective May 1, 2015 to May 1, 2017. 4. Excess Insurance Policy, following Item 1-3 above, by and between Stone Energy Corporation and Continental Casualty Company; policy number 425137486 effective May 1, 2015 to May 1, 2017. 5.", "Management Liability and Professional Liability Follow Form Excess, following Item 1-4 above, by and between Stone Energy Corporation and Liberty International Underwriters; policy number DO3CH217344-215 effective May 1, 2015 to May 1, 2017. 6. Zurich Executive Universal Select Insurance Policy (A-Side Directors & Officers Liability Insurance Policy with Advancement of Defense Costs), following Item 1-5 above, by and between Stone Energy Corporation and Zurich American Insurance Company; policy number DOC 5889339 10 effective May 1, 2015 to May 1, 2017. 7. Follow Form Excess Management Liability Insurance Policy, following Item 1-6 above, by and between Stone Energy Corporation and Endurance American Insurance Company; policy number ADX10006950200 effective May 1, 2015 to May 1, 2017. Indemnification Agreements8 1. Indemnification Agreement between Stone Energy Corporation and Kenneth H. Beer, dated as of March 23, 2009 2. Indemnification Agreement between Stone Energy Corporation and B.J.", "Duplantis, dated as of March 23, 2009 3. Indemnification Agreement between Stone Energy Corporation and Florence M. Ziegler, dated as of March 23, 2009 4. Indemnification Agreement between Stone Energy Corporation and Donald E. Powell, dated as of March 23, 2009 5. Indemnification Agreement between Stone Energy Corporation and George R. Christmas, dated as of March 23, 2009 6. Indemnification Agreement between Stone Energy Corporation and Kay G. Priestly, dated as of March 23, 2009 7. Indemnification Agreement between Stone Energy Corporation and Richard A. Pattarozzi, dated as of March 23, 2009 8. Indemnification Agreement between Stone Energy Corporation and Peter D. Kinnear, dated as of March 23, 2009 9. Indemnification Agreement between Stone Energy Corporation and David H. Welch, dated as of March 23, 2009 10.", "Indemnification Agreement between Stone Energy Corporation and Eldon J. Louviere, dated as of March 23, 2009 11. Indemnification Agreement between Stone Energy Corporation and Richard L. Toothman, Jr., dated as of February 1, 2011 12. Indemnification Agreement between Stone Energy Corporation and Keith A. Seilhan, dated as of February 1, 2013 13. Indemnification Agreement between Stone Energy Corporation and Lisa S. Jaubert, dated as of May 23, 2013 14. Indemnification Agreement between Stone Energy Corporation and David T. Lawrence, dated as of October 9, 2013 15. Indemnification Agreement between Stone Energy Corporation and Karl D. Meche, dated as of December 11, 2014 16. Indemnification Agreement between Stone Energy Corporation and Craig Castille, dated as of December 17, 2014 17. Indemnification Agreement between Stone Energy Corporation and David Kennedy, dated as of December 17, 2014 18. Indemnification Agreement between Stone Energy Corporation and Michael Deville, dated as of December 17, 2014 19.", "Indemnification Agreement between Stone Energy Corporation and Tom Messonnier, dated as of May 21, 2015 20. Indemnification Agreement between Stone Energy Corporation and John J. Leonard, dated as of December 30, 2013 21. Indemnification Agreement between Stone Energy Corporation and Phyllis Taylor, dated as of January 20, 2012. Corporate Organizational Documents Containing Indemnification Provisions Amended and Restated Bylaws of Stone Energy Corporation, a Delaware corporation, dated as of May 15, 2008 (as amended, December 19, 2013) 8 Subject to the completion of due diligence and additions and/or deletions to the foregoing list of agreements and amendments thereto acceptable to the Required Consenting Noteholders. For the avoidance of doubt, the Required Consenting Noteholders have not agreed to the foregoing list of agreements and, therefore, such list remains subject to change.", "Page 45 -------------------------------------------------------------------------------- Exhibit B to the Restructuring Support Agreement Form of Transferee Joinder [See Attached] -------------------------------------------------------------------------------- Form of Transferee Joinder This joinder (this “Joinder”) to the Restructuring Support Agreement (the “Agreement”), dated as of [ , 20 ], by and among: (i) Stone Energy Corporation and each of the other Stone Parties thereto and (ii) the Consenting Noteholders, is executed and delivered by [ ] (the “Joining Party”). Each capitalized term used herein but not otherwise defined shall have the meaning ascribed to such term in the Agreement. 1. Agreement to be Bound. The Joining Party hereby agrees to be bound by all of the terms of the Agreement, a copy of which is attached to this Joinder as Annex 1 (as the same has been or may be hereafter amended, restated, or otherwise modified from time to time in accordance with the provisions thereof).", "The Joining Party shall hereafter be deemed to be a Party for all purposes under the Agreement and one or more of the entities comprising the Consenting Noteholders. 2. Representations and Warranties. The Joining Party hereby represents and warrants to each other Party to the Agreement that, as of the date hereof, such Joining Party (a) is the legal or beneficial holder of, and has all necessary authority (including authority to bind any other legal or beneficial holder) with respect to, the claims next to its name on Annex 2 (which annex shall not be publically disclosed or filed), and (b) makes, as of the date hereof, the representations and warranties set forth in Section 17 of the Agreement to each other Party. 3. Governing Law. This Joinder shall be governed by and construed in accordance with the internal laws of the State of [Delaware], without regard to any conflicts of law provisions which would require or permit the application of the law of any other jurisdiction. 4. Notice.", "All notices and other communications given or made pursuant to the Agreement shall be sent to the Joining Party at the address next to its name on Annex 2 (which annex shall not be publically disclosed or filed): ***** 1 -------------------------------------------------------------------------------- IN WITNESS WHEREOF, the Joining Party has caused this Joinder to be executed as of the date first written above. [JOINING PARTY] By: Name: Title: [Annex - A]" ]	https://github.com/TheAtticusProject/cuad	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
113 HRES 238 IH: Expressing the sense of the House of Representatives regarding United States efforts to promote Israeli–Palestinian peace. U.S. House of Representatives 2013-05-23 text/xml EN Pursuant to Title 17 Section 105 of the United States Code, this file is not subject to copyright protection and is in the public domain. IV 113th CONGRESS 1st Session H. RES. 238 IN THE HOUSE OF REPRESENTATIVES May 23, 2013 Ms. Lee of California (for herself, Mr. Johnson of Georgia, Mr. Grijalva, Mr. George Miller of California, and Mr. Conyers) submitted the following resolution; which was referred to the Committee on Foreign Affairs RESOLUTION Expressing the sense of the House of Representatives regarding United States efforts to promote Israeli–Palestinian peace. Whereas United States support for a two-state solution to the Israeli–Palestinian conflict is based on the recognition that this solution can both best serve Israel’s security and permanence as a Jewish homeland while helping the Palestinian people achieve a future of independence and national self-determination; Whereas a true and lasting two-state solution is essential to the resolution of Israeli–Arab disputes and to the achievement of long-term peace and stability in the broader Middle East; Whereas a true and lasting two-state solution is in the national security interests of the United States and to ensure the safety and security of Israel; Whereas a true and lasting two-state solution will only be established through resolution of outstanding issues between Israel and the recognized leadership of the Palestinian people; Whereas successive United States Presidents and successive United States Congresses have recognized that promoting Israeli–Palestinian and Israeli–Arab peace is an integral element of the United States commitment to Israel’s security and its survival, as well as to the stability of the entire Middle East region; Whereas successive United States administrations, led by Presidents from both parties, have invested substantial diplomatic resources in support of peace efforts, including under— (1)President Ronald Reagan, the 1982 Reagan Plan for Middle East Peace; (2)President George H.W. Bush, the 1991 Madrid Peace Conference; (3)President Bill Clinton, the 1993 Oslo Accords, the 1995 Wye River Memorandum, the 2000 Camp David Summit, and the 2000 Clinton Parameters; (4)President George W. Bush, the 2001 Sharm El-Sheikh Fact-Finding Committee Report, also known as the Mitchell Report, the 2003 Roadmap for Peace in the Middle East, the 2005 Agreement on Movement and Access, and the 2007 Annapolis Conference; and (5)under President Barack Obama, the 2009 appointment of Senator George Mitchell as the United States Special Envoy for Middle East peace, and the efforts since then to restart Israeli–Palestinian peace talks; Whereas Hamas does not recognize Israel’s right to exist, continues to launch rocket and missile attacks against Israel, has not disavowed violence, and does not recognize or abide by existing binding agreements; Whereas the State of Israel is subject to existential threats from those seeking to deny the deep historical, cultural, and spiritual connection of the Jewish people to their homeland; Whereas on March 21, 2013, while speaking in both Ramallah and Jerusalem, President Obama stated that the Palestinian people deserve “an end to occupation and the daily indignities that come with it.”; Whereas President Obama added, “It is not right to prevent Palestinians from farming their lands; to restrict a student’s ability to move around the West Bank; or to displace Palestinian families from their home. Neither occupation nor expulsion is the answer. Just as Israelis built a state in their homeland, Palestinians have a right to be a free people in their own land.”; Whereas successive United States administrations have opposed Israeli settlements in the occupied territories, recognizing them to be a political and security liability for Israel and an impediment to efforts to achieve a negotiated resolution to the Israeli–Palestinian conflict, among other reasons; and Whereas the United States goal of helping to secure Israel’s security and safety as a democratic homeland for the Jewish people well into the future is best served through achievement of an agreement between Israel and the Palestinians to resolve their conflict: Now, therefore, be it That the House of Representatives— (1)reaffirms its commitment to supporting United States actions that promote peace between Israel and the Palestinians and are designed to ensure the safety and security of Israel and its people; (2)reaffirms its support for previous agreements reached between Israel and the Palestinians and adopted by third parties that recognize Israel’s right to exist and promote a Palestinian state to meet the legitimate aspirations of the Palestinian people for self-determination within their own nation; (3)commends the Obama administration and its predecessors for their resolute commitment to Israel’s survival and security and for their efforts to demonstrate this commitment through the promotion of Israeli–Palestinian negotiations to achieve a resolution of their conflict and the establishment of a long-term peace in the region; (4)calls on Hamas to recognize Israel’s right to exist, denounce violence, abide by existing agreements, and to prevent rocket and missile attacks against Israel; (5)calls upon states, international organizations, and individuals to oppose efforts to deny the deep historical, cultural, and spiritual connection of the Jewish people to Israel; (6)calls upon Arab and Muslim-majority states to build upon efforts such as the Arab Peace Initiative, combat anti-Israel extremism, and otherwise work towards full normalization of state-to-state relations with the State of Israel; (7)calls on the Israeli Government to cease support for and to prevent further settlement expansion in the Occupied Territories; (8)commends the Obama administration for supporting Israel’s Iron Dome Missile Defense System to help intercept rocket attacks and prevent them from devastating civilian populations in Israel; (9)calls on Israel and Hamas to uphold the existing ceasefire agreement and exercise strong caution so as to avoid an escalation that would only lead to further violence, destruction, and loss of life; (10)applauds President Obama’s recent efforts at the beginning of his second term to initiate a new, diplomatic effort with the mandate for negotiations to achieve a peace agreement between Israel and the Palestinian people and urges continued robust efforts towards a peaceful resolution; and (11)calls on President Obama to establish an achievable timeline for negotiations backed by a strong international coalition of stakeholders including The Quartet to provide assurance to the negotiating parties that their agreement will be enduring and enforceable.	05-23-2013	[ "113 HRES 238 IH: Expressing the sense of the House of Representatives regarding United States efforts to promote Israeli–Palestinian peace. U.S. House of Representatives 2013-05-23 text/xml EN Pursuant to Title 17 Section 105 of the United States Code, this file is not subject to copyright protection and is in the public domain. IV 113th CONGRESS 1st Session H. RES. 238 IN THE HOUSE OF REPRESENTATIVES May 23, 2013 Ms. Lee of California (for herself, Mr. Johnson of Georgia, Mr. Grijalva, Mr. George Miller of California, and Mr. Conyers) submitted the following resolution; which was referred to the Committee on Foreign Affairs RESOLUTION Expressing the sense of the House of Representatives regarding United States efforts to promote Israeli–Palestinian peace. Whereas United States support for a two-state solution to the Israeli–Palestinian conflict is based on the recognition that this solution can both best serve Israel’s security and permanence as a Jewish homeland while helping the Palestinian people achieve a future of independence and national self-determination; Whereas a true and lasting two-state solution is essential to the resolution of Israeli–Arab disputes and to the achievement of long-term peace and stability in the broader Middle East; Whereas a true and lasting two-state solution is in the national security interests of the United States and to ensure the safety and security of Israel; Whereas a true and lasting two-state solution will only be established through resolution of outstanding issues between Israel and the recognized leadership of the Palestinian people; Whereas successive United States Presidents and successive United States Congresses have recognized that promoting Israeli–Palestinian and Israeli–Arab peace is an integral element of the United States commitment to Israel’s security and its survival, as well as to the stability of the entire Middle East region; Whereas successive United States administrations, led by Presidents from both parties, have invested substantial diplomatic resources in support of peace efforts, including under— (1)President Ronald Reagan, the 1982 Reagan Plan for Middle East Peace; (2)President George H.W.", "Bush, the 1991 Madrid Peace Conference; (3)President Bill Clinton, the 1993 Oslo Accords, the 1995 Wye River Memorandum, the 2000 Camp David Summit, and the 2000 Clinton Parameters; (4)President George W. Bush, the 2001 Sharm El-Sheikh Fact-Finding Committee Report, also known as the Mitchell Report, the 2003 Roadmap for Peace in the Middle East, the 2005 Agreement on Movement and Access, and the 2007 Annapolis Conference; and (5)under President Barack Obama, the 2009 appointment of Senator George Mitchell as the United States Special Envoy for Middle East peace, and the efforts since then to restart Israeli–Palestinian peace talks; Whereas Hamas does not recognize Israel’s right to exist, continues to launch rocket and missile attacks against Israel, has not disavowed violence, and does not recognize or abide by existing binding agreements; Whereas the State of Israel is subject to existential threats from those seeking to deny the deep historical, cultural, and spiritual connection of the Jewish people to their homeland; Whereas on March 21, 2013, while speaking in both Ramallah and Jerusalem, President Obama stated that the Palestinian people deserve “an end to occupation and the daily indignities that come with it.”; Whereas President Obama added, “It is not right to prevent Palestinians from farming their lands; to restrict a student’s ability to move around the West Bank; or to displace Palestinian families from their home.", "Neither occupation nor expulsion is the answer.", "Just as Israelis built a state in their homeland, Palestinians have a right to be a free people in their own land.”; Whereas successive United States administrations have opposed Israeli settlements in the occupied territories, recognizing them to be a political and security liability for Israel and an impediment to efforts to achieve a negotiated resolution to the Israeli–Palestinian conflict, among other reasons; and Whereas the United States goal of helping to secure Israel’s security and safety as a democratic homeland for the Jewish people well into the future is best served through achievement of an agreement between Israel and the Palestinians to resolve their conflict: Now, therefore, be it That the House of Representatives— (1)reaffirms its commitment to supporting United States actions that promote peace between Israel and the Palestinians and are designed to ensure the safety and security of Israel and its people; (2)reaffirms its support for previous agreements reached between Israel and the Palestinians and adopted by third parties that recognize Israel’s right to exist and promote a Palestinian state to meet the legitimate aspirations of the Palestinian people for self-determination within their own nation; (3)commends the Obama administration and its predecessors for their resolute commitment to Israel’s survival and security and for their efforts to demonstrate this commitment through the promotion of Israeli–Palestinian negotiations to achieve a resolution of their conflict and the establishment of a long-term peace in the region; (4)calls on Hamas to recognize Israel’s right to exist, denounce violence, abide by existing agreements, and to prevent rocket and missile attacks against Israel; (5)calls upon states, international organizations, and individuals to oppose efforts to deny the deep historical, cultural, and spiritual connection of the Jewish people to Israel; (6)calls upon Arab and Muslim-majority states to build upon efforts such as the Arab Peace Initiative, combat anti-Israel extremism, and otherwise work towards full normalization of state-to-state relations with the State of Israel; (7)calls on the Israeli Government to cease support for and to prevent further settlement expansion in the Occupied Territories; (8)commends the Obama administration for supporting Israel’s Iron Dome Missile Defense System to help intercept rocket attacks and prevent them from devastating civilian populations in Israel; (9)calls on Israel and Hamas to uphold the existing ceasefire agreement and exercise strong caution so as to avoid an escalation that would only lead to further violence, destruction, and loss of life; (10)applauds President Obama’s recent efforts at the beginning of his second term to initiate a new, diplomatic effort with the mandate for negotiations to achieve a peace agreement between Israel and the Palestinian people and urges continued robust efforts towards a peaceful resolution; and (11)calls on President Obama to establish an achievable timeline for negotiations backed by a strong international coalition of stakeholders including The Quartet to provide assurance to the negotiating parties that their agreement will be enduring and enforceable." ]	https://www.govinfo.gov/content/pkg/BILLS-113hres238ih/xml/BILLS-113hres238ih.xml	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
Citation Nr: 0638417 Decision Date: 12/11/06 Archive Date: 12/19/06 DOCKET NO. 04-43 434 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an initial rating greater than 30 percent for a bipolar disorder with psychotic episodes. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD S. M. Marcus, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from November 1965 to January 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, where the RO awarded the veteran service connection for a bipolar disorder and assigned the disability a 30 percent initial rating, effective February 11, 1999, the date of her original claim for service connection. The veteran had requested a hearing on her December 2004 substantive appeal, but later withdrew the request in a January 2005 statement. The veteran's appeal had previously encompassed entitlement to service connection for post-traumatic stress disorder (PTSD) and personality disorders. After service connection was granted for bipolar disorder, the veteran's representative indicated in March 2004 that the veteran wished to withdraw her appeal for service connection for PTSD and personality disorder. These issues are, therefore, no longer before the Board. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096, in part, requires the VA to adequately identify the evidence necessary to substantiate the claim, the evidence presently of record, and the veteran's and VA's respective responsibilities in development of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). During the pendency of this appeal, recent litigation further redefined the VA's duty-to-assist and notification obligations under the VCAA. Most significantly, the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) held that the VCAA requires notification to include an explanation as to the information or evidence needed to establish a disability rating and effective date for the claim on appeal. Here, the veteran was sent VCAA letters in July 2002 and February 2003 for the claim of entitlement to service connection for a psychiatric disability, to include bipolar disorder. Neither of those letters, however, specifically addressed the laws and regulations pertaining to increased rating claims. Since appealing her initial disability rating, by an October 2003 rating decision, she was never sent a specific letter providing notice of the VCAA, as it applies to her claim for an increased initial rating for her psychiatric disability. Given the nature of the claim on appeal and in light of Dingess/Hartman, 19 Vet. App. 473, the RO should send a corrective VCAA letter. The veteran claims her psychiatric condition, diagnosed as bipolar disorder, is worse than currently evaluated. The veteran was last afforded a psychiatric examination in October 2003, over three years ago, and that examination was focused on her claim of entitlement to service connection for post-traumatic stress disorder, not specifically on the severity of her bipolar disorder. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2005). A new examination for the veteran's bipolar disorder is indicated because the medical evidence may not accurately reflect the current severity of the veteran's conditions. Moreover, the medical evidence shows that the veteran has several non-service-connected psychiatric and personality disorders, most significantly post-traumatic stress disorder (PTSD). When it is not possible to separate the effects of the service-connected condition from a non-service-connected condition, 38 C.F.R. § 3.102 requires that reasonable doubt be resolved in the claimant's favor, thus attributing such signs and symptoms to the service-connected disability. Mittleider v. West, 11 Vet. App. 181 (1998). A VA examination is necessary to determine which psychiatric symptoms can be medically attributable to the veteran's service-connected bipolar disorder and which symptoms are medically attributable to any non-service connected condition. See 38 C.F.R. § 3.159(c) (2006). Accordingly, the case is REMANDED for the following action: 1. The RO should send a corrective VCAA letter ensuring that all the duty-to-notify requirements of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096, have been fulfilled. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In particular, the RO should send the veteran and her representative a letter advising them specifically of the laws and regulations pertaining to claims for entitlement to an initial increased rating for her bipolar disorder. 2. Obtain the veteran's medical records for her condition on appeal from the VA medical system in Fayetteville, Missouri and Mount Vernon, Missouri from February 2005 to the present. All efforts to obtain VA records should be fully documented, and the VA facility must provide a negative response if records are not available. 3. After the above records are obtained, to the extent available, schedule the veteran for a psychiatric examination for her bipolar disorder. Provide the claims file to the examiner for review. The examiner should ascertain the current severity of the condition, including providing a GAF score. The examiner must conduct all necessary tests to ascertain the current severity of the veteran's condition. The examiner should include in the report a determination as to which symptoms are medically attributable to the veteran's service-connected bipolar disorder and which symptoms are medically attributable to non-service connected psychiatric and personality disorders present, to include PTSD. If the examiner cannot medically attribute any symptoms to either the veteran's service-connected disability or to other non-service connected conditions with any degree of medical certainty, that should be so indicated. The examiner should also, to the extent possible, apportion the GAF score, indicating the severity of the social and occupational impairment due to the bipolar disorder as opposed to the other psychiatric and personality disorders present. The claims folder must be reviewed by the examiner and the examiner should provide a complete rationale for any opinion given without resorting to speculation, resolving any conflicting medical opinions rendered. 4. The RO should then readjudicate the veteran's claim. If the claim remains denied, issue a supplemental statement of the case (SSOC) to the veteran and her representative, and they should be given an opportunity to respond, before the case is returned to the Board. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the veteran until further notice. However, the Board takes this opportunity to advise the veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of her claim. Her cooperation in VA's efforts to develop her claim, including reporting for any scheduled VA examination, is both critical and appreciated. The veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. The 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. _________________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2006).	12-11-2006	[ "Citation Nr: 0638417 Decision Date: 12/11/06 Archive Date: 12/19/06 DOCKET NO. 04-43 434 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an initial rating greater than 30 percent for a bipolar disorder with psychotic episodes. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD S. M. Marcus, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from November 1965 to January 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, where the RO awarded the veteran service connection for a bipolar disorder and assigned the disability a 30 percent initial rating, effective February 11, 1999, the date of her original claim for service connection.", "The veteran had requested a hearing on her December 2004 substantive appeal, but later withdrew the request in a January 2005 statement. The veteran's appeal had previously encompassed entitlement to service connection for post-traumatic stress disorder (PTSD) and personality disorders. After service connection was granted for bipolar disorder, the veteran's representative indicated in March 2004 that the veteran wished to withdraw her appeal for service connection for PTSD and personality disorder. These issues are, therefore, no longer before the Board. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096, in part, requires the VA to adequately identify the evidence necessary to substantiate the claim, the evidence presently of record, and the veteran's and VA's respective responsibilities in development of evidence.", "See Quartuccio v. Principi, 16 Vet. App. 183 (2002). During the pendency of this appeal, recent litigation further redefined the VA's duty-to-assist and notification obligations under the VCAA. Most significantly, the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) held that the VCAA requires notification to include an explanation as to the information or evidence needed to establish a disability rating and effective date for the claim on appeal. Here, the veteran was sent VCAA letters in July 2002 and February 2003 for the claim of entitlement to service connection for a psychiatric disability, to include bipolar disorder. Neither of those letters, however, specifically addressed the laws and regulations pertaining to increased rating claims. Since appealing her initial disability rating, by an October 2003 rating decision, she was never sent a specific letter providing notice of the VCAA, as it applies to her claim for an increased initial rating for her psychiatric disability. Given the nature of the claim on appeal and in light of Dingess/Hartman, 19 Vet. App.", "473, the RO should send a corrective VCAA letter. The veteran claims her psychiatric condition, diagnosed as bipolar disorder, is worse than currently evaluated. The veteran was last afforded a psychiatric examination in October 2003, over three years ago, and that examination was focused on her claim of entitlement to service connection for post-traumatic stress disorder, not specifically on the severity of her bipolar disorder. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran.", "Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2005). A new examination for the veteran's bipolar disorder is indicated because the medical evidence may not accurately reflect the current severity of the veteran's conditions.", "Moreover, the medical evidence shows that the veteran has several non-service-connected psychiatric and personality disorders, most significantly post-traumatic stress disorder (PTSD). When it is not possible to separate the effects of the service-connected condition from a non-service-connected condition, 38 C.F.R. § 3.102 requires that reasonable doubt be resolved in the claimant's favor, thus attributing such signs and symptoms to the service-connected disability. Mittleider v. West, 11 Vet. App. 181 (1998). A VA examination is necessary to determine which psychiatric symptoms can be medically attributable to the veteran's service-connected bipolar disorder and which symptoms are medically attributable to any non-service connected condition. See 38 C.F.R. § 3.159(c) (2006). Accordingly, the case is REMANDED for the following action: 1. The RO should send a corrective VCAA letter ensuring that all the duty-to-notify requirements of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096, have been fulfilled.", "See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In particular, the RO should send the veteran and her representative a letter advising them specifically of the laws and regulations pertaining to claims for entitlement to an initial increased rating for her bipolar disorder. 2. Obtain the veteran's medical records for her condition on appeal from the VA medical system in Fayetteville, Missouri and Mount Vernon, Missouri from February 2005 to the present. All efforts to obtain VA records should be fully documented, and the VA facility must provide a negative response if records are not available. 3. After the above records are obtained, to the extent available, schedule the veteran for a psychiatric examination for her bipolar disorder.", "Provide the claims file to the examiner for review. The examiner should ascertain the current severity of the condition, including providing a GAF score. The examiner must conduct all necessary tests to ascertain the current severity of the veteran's condition. The examiner should include in the report a determination as to which symptoms are medically attributable to the veteran's service-connected bipolar disorder and which symptoms are medically attributable to non-service connected psychiatric and personality disorders present, to include PTSD. If the examiner cannot medically attribute any symptoms to either the veteran's service-connected disability or to other non-service connected conditions with any degree of medical certainty, that should be so indicated. The examiner should also, to the extent possible, apportion the GAF score, indicating the severity of the social and occupational impairment due to the bipolar disorder as opposed to the other psychiatric and personality disorders present.", "The claims folder must be reviewed by the examiner and the examiner should provide a complete rationale for any opinion given without resorting to speculation, resolving any conflicting medical opinions rendered. 4. The RO should then readjudicate the veteran's claim. If the claim remains denied, issue a supplemental statement of the case (SSOC) to the veteran and her representative, and they should be given an opportunity to respond, before the case is returned to the Board. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the veteran until further notice. However, the Board takes this opportunity to advise the veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of her claim.", "Her cooperation in VA's efforts to develop her claim, including reporting for any scheduled VA examination, is both critical and appreciated. The veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. The 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. _________________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2006)." ]	https://drive.google.com/drive/folders/12lAd8Os7VFeqbTKi4wcqJqODjHIn0-yQ?usp=sharing	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
Motion to dismiss appeal granted, by default, without costs. Present — Foster, P. J., Coon, Gibson, Herlihy and Reynolds, JJ.	01-12-2022	[ "Motion to dismiss appeal granted, by default, without costs. Present — Foster, P. J., Coon, Gibson, Herlihy and Reynolds, JJ." ]	https://www.courtlistener.com/api/rest/v3/opinions/5704215/	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Demakos, J.), rendered May 17, 1993, convicting him of criminal sale of a controlled substance in the third degree (four counts), criminal possession of a controlled substance in the third degree, and criminal possession of a controlled *733substance in the fifth degree, after a nonjury trial, and imposing sentence. Ordered that the judgment is affirmed. The main witness for the prosecution was a police officer who testified that he had observed the defendant sell several vials of what was believed to be cocaine to four different buyers. Other police witnesses testified as to the apprehension of the four buyers, and as to the seizure from them of the vials of cocaine which had been just sold to them. Contrary to the defendant’s contention, the evidence was both legally and factually sufficient to support the verdict reached by the trial court (see generally, People v Ward, 191 AD2d 661; People v Johnson, 152 AD2d 598; People v Ayala, 149 AD2d 518). Lawrence, J. P., Ritter, Friedmann and Krausman, JJ., concur.	01-13-2022	[ "—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Demakos, J. ), rendered May 17, 1993, convicting him of criminal sale of a controlled substance in the third degree (four counts), criminal possession of a controlled substance in the third degree, and criminal possession of a controlled *733substance in the fifth degree, after a nonjury trial, and imposing sentence. Ordered that the judgment is affirmed. The main witness for the prosecution was a police officer who testified that he had observed the defendant sell several vials of what was believed to be cocaine to four different buyers. Other police witnesses testified as to the apprehension of the four buyers, and as to the seizure from them of the vials of cocaine which had been just sold to them.", "Contrary to the defendant’s contention, the evidence was both legally and factually sufficient to support the verdict reached by the trial court (see generally, People v Ward, 191 AD2d 661; People v Johnson, 152 AD2d 598; People v Ayala, 149 AD2d 518). Lawrence, J. P., Ritter, Friedmann and Krausman, JJ., concur." ]	https://www.courtlistener.com/api/rest/v3/opinions/5986283/	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 Response to Amendment The amendment filed 5/25/2021 has been entered. Claims 1-4 and 7-22 remain pending in the application. Response to Arguments Applicant’s arguments, see pages 8-11, filed 5/25/2021, with respect to the rejections of claims 1-4 and 7-22 under 35 U.S.C. 103, have been fully considered and are persuasive. Allowable Subject Matter Claims 1-4 and 7-22 are allowed. The following is an examiner’s statement of reasons for allowance: Regarding independent claims 1 and 21, the prior art of record, specifically the prior art Madankan discloses a method of reconstruction of an MR thermal image that includes an optimized method of k-space sampling in order to optimally detect samples of k-space that are information rich. The prior art Mitchell teaches sampling a domain using a new method of variable radii poisson-disk sampling. Additional prior art Kiefer discloses increasing sampling along a ray in regions where the opacity or transparency difference along a ray exceeds a threshold. However, none of the prior art cited alone or in combination provides motivation to teach perform ray-casting processing on the volumetric data set to obtain a heterogeneity map; determine positions of a set of non-periodic sampling points using the heterogeneity map; generate from the volumetric data set a set of sampled data values based on the determined positions of the non-periodic sampling points; and generate an image data set by performing an aggregation process to generate a set of image data points from the set of sampled data values, wherein the heterogeneity map comprises a representation of a value of a heterogeneity’ metric as a function of position, and the ray-casting process comprises: casting a plurality of rays into the volumetric data set, and for each of a plurality of ray sampling points along each of the rays, identifying a respective region in which the ray sampling point is located and determining a respective value of a ray-region heterogeneity metric for the region in which the ray sampling point is located in the context of independent claims 1 and 21. 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 DIANE M WILLS whose telephone number is (571)272-5583. The examiner can normally be reached on Mondays through Fridays from 9am to 6pm Eastern time. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Mark Zimmerman, can be reached at telephone number 571-272-7653. The fax 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://portal.uspto.gov/external/portal. Should you have questions about access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). 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. /DIANE M WILLS/ Primary Examiner, Art Unit 2619	2021-06-28T15:02:28	[ "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 Response to Amendment The amendment filed 5/25/2021 has been entered. Claims 1-4 and 7-22 remain pending in the application. Response to Arguments Applicant’s arguments, see pages 8-11, filed 5/25/2021, with respect to the rejections of claims 1-4 and 7-22 under 35 U.S.C. 103, have been fully considered and are persuasive. Allowable Subject Matter Claims 1-4 and 7-22 are allowed. The following is an examiner’s statement of reasons for allowance: Regarding independent claims 1 and 21, the prior art of record, specifically the prior art Madankan discloses a method of reconstruction of an MR thermal image that includes an optimized method of k-space sampling in order to optimally detect samples of k-space that are information rich. The prior art Mitchell teaches sampling a domain using a new method of variable radii poisson-disk sampling. Additional prior art Kiefer discloses increasing sampling along a ray in regions where the opacity or transparency difference along a ray exceeds a threshold. However, none of the prior art cited alone or in combination provides motivation to teach perform ray-casting processing on the volumetric data set to obtain a heterogeneity map; determine positions of a set of non-periodic sampling points using the heterogeneity map; generate from the volumetric data set a set of sampled data values based on the determined positions of the non-periodic sampling points; and generate an image data set by performing an aggregation process to generate a set of image data points from the set of sampled data values, wherein the heterogeneity map comprises a representation of a value of a heterogeneity’ metric as a function of position, and the ray-casting process comprises: casting a plurality of rays into the volumetric data set, and for each of a plurality of ray sampling points along each of the rays, identifying a respective region in which the ray sampling point is located and determining a respective value of a ray-region heterogeneity metric for the region in which the ray sampling point is located in the context of independent claims 1 and 21.", "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 DIANE M WILLS whose telephone number is (571)272-5583. The examiner can normally be reached on Mondays through Fridays from 9am to 6pm Eastern time. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Mark Zimmerman, can be reached at telephone number 571-272-7653. The fax 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://portal.uspto.gov/external/portal. Should you have questions about access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). 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. /DIANE M WILLS/ Primary Examiner, Art Unit 2619" ]	https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-07-04.zip	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
179 So. 2d 499 (1965) Horace Billy SORRELL, Plaintiff and Appellant, v. ALLSTATE INSURANCE COMPANY et al., Defendant and Appellee. No. 1516. Court of Appeal of Louisiana, Third Circuit. October 27, 1965. Rehearing Denied November 17, 1965. Writ Refused January 17, 1966. Guillory, Guillory & Guillory, by Isom J. Guillory, Jr., Eunice, for plaintiff-appellant. Stockwell, St. Dizier, Sievert & Viccellio, by Robert W. Clements, and Oliver P. Stockwell, Lake Charles, for defendant-appellee. Before FRUGE, HOOD and CULPEPPER, JJ. 500 CULPEPPER, Judge. This case and Carnes v. Allstate Insurance Company et al., La.App., 179 So. 2d 502 were consolidated for purposes of trial and appeal. Plaintiffs were struck, while walking across the highway, by an automobile driven by Fred W. Scarborough, and insured by Allstate Insurance Company. From an adverse judgment on the merits, plaintiffs appeal. The issue is whether plaintiffs are entitled to recover under the doctrine of last clear chance. The accident occurred on January 19, 1961 at about 6:40 in the morning. It was cold, dark and drizzling rain. The scene is in Lake Charles on East Broad street, a four-lane portion of U.S. Highway 90, running east and west and separated in the middle by a small raised neutral ground, about a foot or a foot and a half in width. On the north side of the highway is a cemetery with many large trees and on the south side is the Yellowjacket Cafe and Truck Stop. There are no street intersections or pedestrian crosswalks at the scene. Plaintiffs are two young men who had met in New Orleans several days previously and mutually agreed to hitchhike to California to find work. Their last host driver let them out on the north side of the highway next to the cemetery. They decided to go across the highway to the Yellowjacket Cafe to get a cup of coffee and warm themselves. Plaintiffs testified they did not run, but walked at a brisk pace, and the last thing either one of them remembers is starting across the north side of the highway. They do not remember anything that occurred as, or just after, they reached the neutral ground. Mr. Scarborough, who delivers newspapers on this route every morning and is thoroughly familiar with the area, was driving east in the inside east-bound lane of Broad street, at a speed of 30 to 35 MPH. The speed limit at this point is 35 MPH. He testified his lights were on dim; he could see about 150 feet ahead; it was raining and his windshield wipers were on; and he knew the cemetery was on his left and didn't expect a pedestrian to come from that direction. He suddenly saw the plaintiffs stepping in front of him about 10 feet away and immediately applied his brakes but was unable to avoid striking them. The point of impact was about 6 feet south of the neutral ground. Scarborough's automobile stopped on the wet asphalt about 99 feet past the point of impact. Other relevant facts are that plaintiffs were wearing dark clothes, and there was very little, if any, light where the accident occurred. A street light was approximately 200 feet away on the south side of Broad street. There were lights over the gasoline pumps in front of the Yellowjacket Cafe & Truck Stop, but these pumps were about 65 feet south of the street. The investigating officer testified these lights did not illuminate the area where plaintiffs were struck. Our jurisprudence is now established that in order to apply the humanitarian doctrine of last clear chance, plaintiff must prove clearly 3 elements exist: (1) Plaintiff must be in a position of peril of which he is unaware, or from which he is unable to extricate himself; (2) the plaintiff must show that defendant actually discovered, or should have discovered, the plaintiff's peril; (3) at the time that defendant actually discovered or should have discovered plaintiff's peril, defendant must have a reasonable opportunity to avoid the accident. Breaux v. Meyers, 132 So. 2d 77 (La.App. 3rd Cir. 1961); Jones v. Dozier, 160 So. 2d 395 (La.App. 1st Cir. 1964); Maryland Casualty Company v. Allstate Insurance Company, 96 So. 2d 340 (La.App. 2d Cir. 1957); Jackson v. Cook, 189 La. 860, 181 So. 195. The short answer to the present case is that the doctrine of last clear chance does not apply because the second and third 501 elements listed above do not exist. Mr. Scarborough did not actually see the plaintiffs until they stepped into his lane of traffic only 10 feet away and it was then too late to avoid the accident. Under all of the circumstances, we don't think he should have seen them any sooner. On this point, the evidence fully supports the following finding of fact by the trial judge: "The undisputed facts set out above do not justify a definite conclusion that the driver was negligent in the operation of the automobile. Scarbraugh was proceeding at a normal rate of speed under these circumstances. This is a four lane through highway, with no traffic signals and no pedestrian cross walks at this point. The plaintiffs were dressed in dark clothing, crossing this unlighted street on a rainy night. The defendant was watching the street conditions ahead and when plaintiffs appeared in his view, it was physically impossible to avoid the accident. This Court concludes that Scarbraugh used the care required by law under these particular circumstances." The principal argument of able counsel for plaintiffs is that Scarborough should have seen Sorrell and Carnes, as they walked across the west-bound traffic lane, and should have realized, in time to avoid the accident, that they were going to walk on across the neutral ground directly into Scarborough's path. This argument falls because its major premise is false, i. e., as we have already held above, Scarborough did not see, nor should he have seen the plaintiffs as they walked across the westbound traffic lanes. A further answer to plaintiffs' argument is that even if Scarborough had seen plaintiffs walking across the westbound lanes toward the neutral ground, he had a right to assume they would not step across the neutral ground into Scarborough's path. The jurisprudence is established that when a motorist sees a mature, adult pedestrian, apparently in full possession of his faculties, in a position of safety, the motorist can assume that such a pedestrian will not leave this position of safety and step out directly into the motorist's path; and the motorist can rely on this presumption until some unusual action on the part of the pedestrian to indicate to the driver that the pedestrian is going to step into the path of the automobile. Jones v. Dozier, 160 So. 2d 395 (La.App. 1st Cir. 1964); Newton v. Pacillo, La.App., 111 So. 2d 895; Accardo v. Grain Dealers Mutual Insurance Company, La.App., 151 So. 2d 116. Thus, in the present case, even if Scarborough had seen plaintiffs as they walked across the west-bound lanes of traffic, he would have seen two adult men, apparently in full possession of all of their faculties, walking in a normal manner, and could have assumed that they would at least stop at the neutral ground and not walk directly into Scarborough's path. The evidence does not show that plaintiffs were running or that they were acting in any unusual way which would have caused Scarborough to reasonably realize they were not going to stop at the neutral ground. Actually, the evidence does not show whether plaintiffs stopped at the neutral ground. It may be that they did, in which event, Scarborough could certainly have assumed they would stay there. In a supplemental brief counsel for plaintiffs cites Biggs, v. Verbois, 151 So. 2d 172 (La.App. 1st Cir. 1963) where an 11 year old girl on a bicycle rode through a stop sign at an intersection and went 26 feet past the stop sign into the path of defendant's automobile. It was broad daylight and the court held defendant should have seen the child as she entered the intersection and should have realized at that time the child probably was not going to yield the right of way. The many distinctions between the Biggs case and the present matter are obvious. Most important is that the plaintiff in the *502 Biggs case was an 11 year old girl and she was riding a bicycle, which could not be easily stopped. There was a strong dissent but the majority felt the defendant should have seen this little girl and should have realized she was not going to stop her bicycle in time for defendant to avoid the accident. In the present case, we have 2 grown men who were walking in a normal manner and no indication whatever that they were going to leave their position of safety and recklessly step directly into the path of the oncoming automobile. For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the plaintiffs appellants. Affirmed. On Application for Rehearing. En Banc. Rehearing denied.	10-30-2013	[ "179 So. 2d 499 (1965) Horace Billy SORRELL, Plaintiff and Appellant, v. ALLSTATE INSURANCE COMPANY et al., Defendant and Appellee. No. 1516. Court of Appeal of Louisiana, Third Circuit. October 27, 1965. Rehearing Denied November 17, 1965. Writ Refused January 17, 1966. Guillory, Guillory & Guillory, by Isom J. Guillory, Jr., Eunice, for plaintiff-appellant. Stockwell, St. Dizier, Sievert & Viccellio, by Robert W. Clements, and Oliver P. Stockwell, Lake Charles, for defendant-appellee. Before FRUGE, HOOD and CULPEPPER, JJ. 500 CULPEPPER, Judge. This case and Carnes v. Allstate Insurance Company et al., La.App., 179 So. 2d 502 were consolidated for purposes of trial and appeal. Plaintiffs were struck, while walking across the highway, by an automobile driven by Fred W. Scarborough, and insured by Allstate Insurance Company.", "From an adverse judgment on the merits, plaintiffs appeal. The issue is whether plaintiffs are entitled to recover under the doctrine of last clear chance. The accident occurred on January 19, 1961 at about 6:40 in the morning. It was cold, dark and drizzling rain. The scene is in Lake Charles on East Broad street, a four-lane portion of U.S. Highway 90, running east and west and separated in the middle by a small raised neutral ground, about a foot or a foot and a half in width. On the north side of the highway is a cemetery with many large trees and on the south side is the Yellowjacket Cafe and Truck Stop.", "There are no street intersections or pedestrian crosswalks at the scene. Plaintiffs are two young men who had met in New Orleans several days previously and mutually agreed to hitchhike to California to find work. Their last host driver let them out on the north side of the highway next to the cemetery. They decided to go across the highway to the Yellowjacket Cafe to get a cup of coffee and warm themselves. Plaintiffs testified they did not run, but walked at a brisk pace, and the last thing either one of them remembers is starting across the north side of the highway.", "They do not remember anything that occurred as, or just after, they reached the neutral ground. Mr. Scarborough, who delivers newspapers on this route every morning and is thoroughly familiar with the area, was driving east in the inside east-bound lane of Broad street, at a speed of 30 to 35 MPH. The speed limit at this point is 35 MPH. He testified his lights were on dim; he could see about 150 feet ahead; it was raining and his windshield wipers were on; and he knew the cemetery was on his left and didn't expect a pedestrian to come from that direction. He suddenly saw the plaintiffs stepping in front of him about 10 feet away and immediately applied his brakes but was unable to avoid striking them. The point of impact was about 6 feet south of the neutral ground. Scarborough's automobile stopped on the wet asphalt about 99 feet past the point of impact. Other relevant facts are that plaintiffs were wearing dark clothes, and there was very little, if any, light where the accident occurred.", "A street light was approximately 200 feet away on the south side of Broad street. There were lights over the gasoline pumps in front of the Yellowjacket Cafe & Truck Stop, but these pumps were about 65 feet south of the street. The investigating officer testified these lights did not illuminate the area where plaintiffs were struck. Our jurisprudence is now established that in order to apply the humanitarian doctrine of last clear chance, plaintiff must prove clearly 3 elements exist: (1) Plaintiff must be in a position of peril of which he is unaware, or from which he is unable to extricate himself; (2) the plaintiff must show that defendant actually discovered, or should have discovered, the plaintiff's peril; (3) at the time that defendant actually discovered or should have discovered plaintiff's peril, defendant must have a reasonable opportunity to avoid the accident. Breaux v. Meyers, 132 So. 2d 77 (La.App.", "3rd Cir. 1961); Jones v. Dozier, 160 So. 2d 395 (La.App. 1st Cir. 1964); Maryland Casualty Company v. Allstate Insurance Company, 96 So. 2d 340 (La.App. 2d Cir. 1957); Jackson v. Cook, 189 La. 860, 181 So. 195. The short answer to the present case is that the doctrine of last clear chance does not apply because the second and third 501 elements listed above do not exist.", "Mr. Scarborough did not actually see the plaintiffs until they stepped into his lane of traffic only 10 feet away and it was then too late to avoid the accident. Under all of the circumstances, we don't think he should have seen them any sooner. On this point, the evidence fully supports the following finding of fact by the trial judge: \"The undisputed facts set out above do not justify a definite conclusion that the driver was negligent in the operation of the automobile. Scarbraugh was proceeding at a normal rate of speed under these circumstances. This is a four lane through highway, with no traffic signals and no pedestrian cross walks at this point. The plaintiffs were dressed in dark clothing, crossing this unlighted street on a rainy night. The defendant was watching the street conditions ahead and when plaintiffs appeared in his view, it was physically impossible to avoid the accident.", "This Court concludes that Scarbraugh used the care required by law under these particular circumstances.\" The principal argument of able counsel for plaintiffs is that Scarborough should have seen Sorrell and Carnes, as they walked across the west-bound traffic lane, and should have realized, in time to avoid the accident, that they were going to walk on across the neutral ground directly into Scarborough's path. This argument falls because its major premise is false, i. e., as we have already held above, Scarborough did not see, nor should he have seen the plaintiffs as they walked across the westbound traffic lanes. A further answer to plaintiffs' argument is that even if Scarborough had seen plaintiffs walking across the westbound lanes toward the neutral ground, he had a right to assume they would not step across the neutral ground into Scarborough's path. The jurisprudence is established that when a motorist sees a mature, adult pedestrian, apparently in full possession of his faculties, in a position of safety, the motorist can assume that such a pedestrian will not leave this position of safety and step out directly into the motorist's path; and the motorist can rely on this presumption until some unusual action on the part of the pedestrian to indicate to the driver that the pedestrian is going to step into the path of the automobile.", "Jones v. Dozier, 160 So. 2d 395 (La.App. 1st Cir. 1964); Newton v. Pacillo, La.App., 111 So. 2d 895; Accardo v. Grain Dealers Mutual Insurance Company, La.App., 151 So. 2d 116. Thus, in the present case, even if Scarborough had seen plaintiffs as they walked across the west-bound lanes of traffic, he would have seen two adult men, apparently in full possession of all of their faculties, walking in a normal manner, and could have assumed that they would at least stop at the neutral ground and not walk directly into Scarborough's path. The evidence does not show that plaintiffs were running or that they were acting in any unusual way which would have caused Scarborough to reasonably realize they were not going to stop at the neutral ground. Actually, the evidence does not show whether plaintiffs stopped at the neutral ground. It may be that they did, in which event, Scarborough could certainly have assumed they would stay there. In a supplemental brief counsel for plaintiffs cites Biggs, v. Verbois, 151 So. 2d 172 (La.App.", "1st Cir. 1963) where an 11 year old girl on a bicycle rode through a stop sign at an intersection and went 26 feet past the stop sign into the path of defendant's automobile. It was broad daylight and the court held defendant should have seen the child as she entered the intersection and should have realized at that time the child probably was not going to yield the right of way. The many distinctions between the Biggs case and the present matter are obvious. Most important is that the plaintiff in the *502 Biggs case was an 11 year old girl and she was riding a bicycle, which could not be easily stopped. There was a strong dissent but the majority felt the defendant should have seen this little girl and should have realized she was not going to stop her bicycle in time for defendant to avoid the accident. In the present case, we have 2 grown men who were walking in a normal manner and no indication whatever that they were going to leave their position of safety and recklessly step directly into the path of the oncoming automobile. For the reasons assigned, the judgment appealed is affirmed.", "All costs of this appeal are assessed against the plaintiffs appellants. Affirmed. On Application for Rehearing. En Banc. Rehearing denied." ]	https://www.courtlistener.com/api/rest/v3/opinions/1629203/	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
OPINION SMITH, Chief Judge. This case is before the court on defendant’s motion to dismiss for lack of subject matter jurisdiction pursuant to RCFC 12(b)(1) and for failure to state a claim upon which relief may be granted pursuant to RCFC 12(b)(4). For the reasons set forth below, the defendant’s motion to dismiss for lack of subject matter jurisdiction is hereby granted. FACTS On November 28, 1988, the United States Marshals Service lawfully seized the property known as “La Puesta del Sol,” a restaurant located in Puerto Rico. On January 26, 1989, the Marshals Service leased the property to plaintiff, Mr. Willie Bernard Colon, for a period of one year with a provision allowing either party to extend the lease for one additional year by mutual consent. On March 16, 1990, the parties entered .into an agreement extending the lease on a month to month basis. At the time, Mr. Colon was attempting to purchase the property from the Marshals Service. The agreement stated in relevant part that: Due to the fact that the United States is selling “The Property” and “Lessee” is taking all necessary steps to buy it, and taking into account the fact that “Lessee” has been operating its business on said “Property” for the last twelve months, therefore: A. The parties agree to modify the duration of the original contract on a month to month basis, until the perfection of the sale. This modification is made in order to expeditate [sic] the Sale of the Property. On January 11, 1991, the Marshals Service announced its decision to accept Mr. Rodrigo Rodriguez’s offer, as representative of a corporation, to purchase the property. The Marshals Service notified Mr. Colon of the sale on February 6, and informed him that they were terminating the month to month tenancy. Mr. Colon was required to vacate the property by April 1. On February 28, 1991, the deed was filed conveying the property from the United States to a corporation represented by Mr. Rodriguez. On March 6,1992, Mr. Colon wrote a letter to the contracting officer, complaining that the sale to the corporation had not been perfected. He asked that the property be returned and the contract restored, with the United States refunding all damages suffered by him and his family. He stated that if he did not hear from the contracting officer within 5 days of receipt of the letter, he would pursue legal remedies. The contracting officer did not reply. Subsequently, on September 24, 1992, Mr. Colon filed a claim against the United States pursuant to the Federal Tort Claims Act seeking damages for lost future profits, loss of professional reputation, and mental anguish. The United States denied Mr. Colon’s administrative tort claim, finding that (1) the action sounded in contract, not in tort and (2) the Marshals Service uncovered no evidence of wrongful acts by government personnel. Mr. Colon and his wife then filed the present action in the United States Court of 340Federal Claims. The complaint alleged that the government breached the lease agreement by terminating the lease “under the false premise that it had perfected the sale of the subject property to a third party.” Plaintiffs also asserted that “[i]t was expressly agreed that plaintiffs’ month to month tenancy could only be terminated by plaintiffs’ purchase of the property.” Therefore, plaintiffs contend that the sale of the property to a third party constituted a breach of the lease agreement. Plaintiffs sought $6 million dollars in damages for loss of income, lost capital investment based on reliance on the contract, damages to professional reputation and goodwill, and other consequential damages. Defendant moved to dismiss the original complaint on two grounds. First, defendant alleges that plaintiffs have failed to meet the requirements of the Contract Disputes Act (CDA) because plaintiffs did not file a valid claim with the contracting officer and failed to certify damages. Second, defendant alleges that plaintiffs’ claim sounds in tort, not in contract. During oral argument on defendant’s motion to dismiss, the court noted certain fundamental problems with the merits of plaintiffs’ complaint. Most importantly, the court was unclear as to what provision or provisions of the contract plaintiffs were alleging defendant had breached. As a result of these problems, the court stayed determination of the defendant’s motion to dismiss and allowed plaintiffs to amend their complaint to address the court’s concerns. The court ordered plaintiffs to specify with particularity in the amended complaint what provisions of the contract defendant had breached. Plaintiffs filed an amended complaint1 and defendant subsequently filed a renewed motion to dismiss the amended complaint. DISCUSSION I. JURISDICTION Before this court reaches the merits of the dispute, it must first determine whether it has subject matter jurisdiction. Defendant has challenged the court’s jurisdiction on two separate grounds. First, defendant alleges that plaintiffs have not met the procedural requirements of the CDA. Specifically, defendant alleges that plaintiffs failed to file a “claim” with the contracting officer and that plaintiffs never certified their damages. Second, defendant alleges that plaintiffs’ claim sounds in tort, not contract. These jurisdictional issues will be discussed in turn. When reaching a decision on a motion to dismiss for lack of subject matter jurisdiction, the court must accept the allegations made by the plaintiffs as true and must draw all reasonable inferences in plaintiffs’ favor. Henke v. United States, 60 F.3d 795, 797 (Fed.Cir.1995) (citing Scheuer v. Rhodes, 416 U.S. 232, 236-7, 94 S.Ct. 1683, 1686-87, 40 L.Ed.2d 90 (1974)). However, “conclusory allegations unsupported by any factual assertions will not withstand a motion to dismiss.” Blaze Construction, Inc. v. United States, 27 Fed.Cl. 646, 650 (1993) (quoting Briscoe v. LaHue, 663 F.2d 713, 723 (7th Cir.1981)). A. The Contract Disputes Act The CDA vests this court with jurisdiction to hear cases involving “any express or implied contract ... entered into by an executive agency for ... the procurement of property, other than real property in being.” 41 U.S.C. § 602(a)(1) (1994). As defendant notes, the CDA requirements apply to lease agreement disputes. See Forman v. United States, 767 F.2d 875, 878-9 (Fed.Cir.1985); Hamza v. United States, 31 Fed.Cl. 315, 320 (1994). For this court to have jurisdiction over a claim pursuant to the CDA, the contractor must have submitted a valid claim in writing to the contracting officer, seeking a final decision on the claim. 41 U.S.C. §§ 605, 609 (1994). Although the CDA does not expressly define what constitutes a “valid claim,” the Federal Acquisition Regulations (FAR), which implement the CDA, define a claim as: 341a written demand or written assertion ... seeking, as a matter of right, the payment of money in a sum certain, ... or other relief arising under or relating to the contract. A request for payment that is not in dispute when submitted is not a claim under the Act. 48 C.F.R. § 38.201 (1991); see also Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1573 (Fed. Cir.1995) (evaluating the sufficiency of a claim under the FAR). In addition to filing a valid claim, where a contractor submits a claim for a sum of money in excess of $50,-000, the claim must be certified as accurate and made in good faith. 41 U.S.C. § 605(c) (1988); 48 C.F.R. § 33.201 (1991).2 Defendant seeks to dismiss the complaint on the grounds that plaintiffs failed to meet two requirements of the CDA: (1) plaintiffs never submitted a valid claim, and (2) plaintiffs never certified the claim. 1. Submission of a Valid Claim In order to be considered a valid claim for purposes of the CDA the claim must contain details sufficient to enable the contracting officer to adequately consider what is being claimed and the grounds for the claim. Contract Cleaning Maintenance, Inc. v. United States, 811 F.2d 586, 592 (Fed.Cir.1987). A contractor must also state in the claim a “sum certain” that is in dispute. The sum need not necessarily be explicitly stated in the claim. For example, a contractor can meet this requirement if the amount claimed can easily be determined from other submissions to the contracting officer. Mendenhall v. United States, 20 Cl.Ct. 78, 83-4 (1990) (finding that claim for return of all money paid to government under contract was sufficiently certain). In order for a claim to be proper under the CDA it must also communicate a desire for a final decision from the contracting officer. Transamerica Ins. Corp., Inc. v. United States, 973 F.2d 1572, 1576 (Fed.Cir. 1992); see also Mingus Constructors, Inc. v. United States, 812 F.2d 1387 (Fed.Cir.1987). The claim need not contain “magic words” because “the intent of the ‘claim’ governs.” Transamerica, 973 F.2d at 1578. The request for a final decision may be implicit or explicit. See Hamza, 31 Fed.Cl. at 322; see also Transamerica, 973 F.2d at 1576. The contractor, however, must submit adequate notice of the basis and amount of the claim. Contract Cleaning, 811 F.2d at 592. In support of its argument that plaintiffs failed to file a valid claim, defendant alleges: (1) that plaintiffs failed to submit any demand for damages expressed in a sum certain to the contracting officer; (2) that plaintiffs never identified any specific damages resulting from the alleged breach of contract; and (3) that plaintiffs never expressed any desire for a contracting officer’s final decision. Both parties agree, and the court concurs, that the March 6th letter from Mr. Colon to the contracting officer alone was insufficient to constitute a valid claim for purposes of the CDA In the letter to the contracting officer, plaintiffs demanded return of the property because they claimed the government had breached the lease extension agreement. The letter contained no specific allegations of resulting losses and no claim for any specific amount of money. Although the property does have a value that could be estimated, plaintiffs also sought damages for injury to their family’s reputation and failed to certify the damages. For these reasons, the letter itself does not constitute a valid claim. Plaintiffs argue that although the letter of March 6th may not have been sufficient in and of itself to constitute a claim, Mr. Colon also filed an administrative tort claim that asked for a specific amount of money. Based on the March 6th letter and the administrative tort claim submission, plaintiffs argue they have met the procedural requirements of the CDA Although the administrative tort claim did contain a sum certain ($6 million dollars), defendant argues that even if the court were 342to look at both the March 6th letter and the tort claim, the contracting officer would still not have a sufficient basis for reaching a final decision. The damages sought in the tort claim, defendant argues, were for tort injuries, and not for damages allegedly incurred through breach of contract. The court recognizes that it should look at the totality of the correspondence when determining the validity of a claim. “Several documents as a whole may constitute a valid claim.” Hamza, 31 Fed.Cl. at 321 (citing Contract Cleaning, 811 F.2d at 592). However, the March 6th letter and the subsequent administrative tort claim, read together, simply cannot be considered a valid claim for purposes of the CDA. The CDA valid claim requirement is designed to give the contracting officer enough information to fairly evaluate the claim in order to reach a final decision. Here, the contracting officer could not possibly evaluate the claim. The March 6th letter alleges an unspecified contract breach resulting in unspecified contract damages, while the administrative tort claim provides neither a basis nor an amount upon which a contract claim could be premised. It is theoretically possible that an administrative tort claim could have a breakdown of claimed damages and that some of these damages could in reality be contract-based. A contracting officer may then be in a position to fairly evaluate the claim using information provided in the administrative tort claim. This did not happen here. Instead, Mr. Colon submitted an administrative tort claim which on its face could not provide any guidance to the contracting officer in fairly evaluating the contract claim. This is not sufficient to be considered a valid claim for purposes of the CDA2 3 2. Certification As noted above, the CDA required the contractor to certify a contract claim in excess of $50,000. 41 U.S.C. § 605(c) (1988). Since plaintiffs seek over $50,000, they must-meet the certification requirement. Defendant alleges that plaintiffs failed to certify their claims. Plaintiffs argue that the purpose of this requirement is to discourage the filing of fraudulent claims and that the requirement was met by signing and submitting the administrative tort claim. Above the signature, the tort claim stated: I certify that the amount of the claim covers only damages and injuries caused by the accident above ... The amount requested in the administrative tort claim was, at least in major part, for tort damages. Pursuant to the CDA, the con- , tractor must certify that the amount requested accurately reflects the contract adjustment for which the contractor believes the government is liable. 41 U.S.C. § 605(c)(1) (1994). The amount requested in the tort claim cannot accurately reflect the amount of damages based solely on the contract since it is based on theories of negligence and misrepresentation. Therefore, the certification in the tort claim cannot meet the requirements of the CDA. This court recognizes that it may allow contractors to amend minor defects in certification. 41 U.S.C. § 605(c)(6) (1994). As'the Hamza court noted, Congress sought to “allow contractors to cure ‘technically defective’ certifications — defective as a result of innocent mistake — in order ‘to avoid repetition of the entire administrative claims process and waste of judicial ... resources.’ ” Hamza, 31 Fed.Cl. at 323 (quoting H.Rep. No. 102-1006, 102d Cong., 2d Sess. 28, reprinted in 1992 U.S.C.CA.N. 3921, 3937). However, because plaintiffs’ claim fails to meet the requirement that a “valid claim” be submitted, as discussed above, the court need not resolve whether plaintiffs’ certification is only technically defective. B. Tort v. Contract Defendant also argues that this court lacks jurisdiction to hear plaintiffs’ claim because it sounds in tort rather than contract. The Tucker Act specifically ex-343eludes from this court’s jurisdiction claims sounding in tort. See 28 U.S.C. § 1491(a)(1) (1994). This includes cases involving negligent misrepresentation, wrongful inducement, or the careless performance of a duty allegedly owed. See Aetna Casualty & Surety Co. v. United States, 228 Ct.Cl. 146, 164, 655 F.2d 1047 (1981) (citing Somali Dev. Bank v. United States, 205 Ct.Cl. 741, 749, 508 F.2d 817 (1974)); see also United States v. Neustadt, 366 U.S. 696, 81 S.Ct. 1294, 6 L.Ed.2d 614 (1961). In the instant case, defendant argues that neither the complaint nor the amended complaint identified a specific contractual provision that defendant allegedly violated. Since plaintiffs failed to allege a breach of the written contact, defendant argues, plaintiffs’ complaint is based on claims of misrepresentation and thus should be dismissed. In support of its argument, defendant points to the fact that plaintiffs made the same allegations in their tort claim. Plaintiffs contend that their claim does involve a contract dispute. They allege that defendant breached two provisions of the lease agreement. First, they argue that defendant breached the lease extension agreement when it sold the property to a third party. Second, plaintiffs claim that defendant breached the lease agreement when it unilaterally terminated the lease on February 6, 1991, prior to perfection of the sale. The court is certainly mindful that the mere labeling of a claim as one sounding in contract does not make it a contract claim. “The fact that plaintiffs do not label their claim as one sounding in tort is irrelevant.” Adams v. United States, 20 Cl.Ct. 132, 135 (1990). An otherwise tort-based claim is not suddenly converted into a contract based claim by calling it a breach of contract. Rather, the court has a duty to determine whether an alleged contract claim actually sounds in tort. See Morris v. United States, 33 Fed.Cl. 733, 742 (1995); Dakota Tribal Industries v. United States, 34 Fed.Cl. 295, 297 (1995). If is sounds in tort exclusively, this court is without jurisdiction to entertain the claim. In this case, however, plaintiffs’ amended complaint is premised on specific provisions of the contract. The fact that plaintiffs filed an administrative tort claim, and that they asserted other tort-based theories before other forums, is irrelevant to whether this complaint is premised upon the contract between Mr. Colon and the Marshals Service. Plaintiffs have pointed to specific provisions in the contract that they claim the government breached. It appears, then, that the real issue is whether plaintiffs’ allegations — that the government has breached express provisions of its contract with Mr. Colon — are meritorious. Defendant’s argument then really is whether plaintiffs have failed to state a claim upon which relief can be granted. II. THE MERITS Even were the court to have subject matter jurisdiction to entertain this claim, the court is convinced that plaintiffs’ complaint, as pled, fails to state a claim upon which relief can be granted, because the lease agreement on its face does not grant to plaintiffs an option or right of first refusal to purchase the property. Plaintiffs point to two specific breaches of the terms of the extension agreement. First, plaintiffs allege that defendant breached the lease agreement by selling the property to a third party. In support of this argument, plaintiffs rely on use of the term “the Sale of the Property” in the lease agreement, (emphasis added). They argue that the parties specifically did not refer to “a sale” because both parties had agreed that the purchaser would be the plaintiffs. If defendant had a right to sell to a third party, the contract would have used the word “a.” Plaintiffs also point to language in the contract recognizing that Mr. Colon was “taking all necessary steps to buy [the subject property].” Based on this language, plaintiffs argue that defendant agreed that it could only terminate the month to month tenancy by selling the property to plaintiffs. Although plaintiffs concede that the court may find other reasonable interpretations of the contract terms, they argue that they should be allowed to clarify any ambiguities in the contract terms by reference to extrinsic evidence. *344Second, plaintiffs argue that the lease was to continue until “the perfection of the sale” of the property. Under Puerto Rican law, the deed must be filed with the appropriate government agency in order to perfect the sale. Since neither party in this case had evidence showing that Mr. Rodriguez filed the appropriate documents, plaintiffs argue that the sale has not been perfected. Therefore, plaintiffs argue, the sale was never technically perfected and defendant breached the contract when they wrongfully terminated the lease. On its face, the lease agreement’s clear and unambiguous wording did not require defendant to sell the property to plaintiffs. The extension agreement contained no option or right of first refusal protecting plaintiffs’ right to purchase the property. The actual wording of the lease extension agreement makes no mention of a requirement limiting defendant’s right to sell the property to a party other than the plaintiffs. The lease states in relevant part: The parties agree to modify the duration of the original contract on a month to month basis, until the perfection of the sale. This modification is made in order to expeditate [sic] the Sale of the Property. Contract interpretation is a question of law to be decided by the court. Flathead Joint Brd. of Control v. United States, 30 Fed.Cl. 287, 294 (1993); see also P.J. Maffei Bldg. Wrecking Corp. v. United States, 732 F.2d 913, 916 (Fed.Cir.1984). Reading the plain language of the contract, the court fails to see any express or implied agreement between the parties that would require defendant to sell the property only to plaintiff. The extension agreement simply extends the prior lease and modifies it to apply month to month. Nowhere does it state or reasonably imply that plaintiff has a right to purchase the property. Plaintiffs’ focus on the word “the” as an indication of ambiguity is unpersuasive when read in the context of the full lease agreement. As defendant notes, if it intended to sell the property only to plaintiffs, it would have had no need for a month to month tenancy. Plaintiffs would have possession of the property and could terminate the lease upon sale. Defendant, however, needed a month to month tenancy in order to improve the marketability of the property because defendant would have had difficulty selling property to a third party that was subject to a long-term lease. Plaintiffs may have expressed an intention to purchase the property. The lease extension agreement, however, contained no purchase contract,, option, right of first refusal or other provisions protecting plaintiffs’ right to purchase the property. Plaintiffs’ intention alone does not translate into a right to purchase. Therefore, based on a plain reading of the lease, defendant could not have breached the contract by selling to a third party. Plaintiffs’ “perfection” argument also lacks merit. It may be true that the property’s new owner has failed to file the deed with the appropriate authorities in Puerto Rico. The defendant however, has given up control and possession of the property and has received full value for the sale. The new owner is currently occupying and using the property. The sale has been completed and defendant has done all in its power to complete perfection of the sale. The filing of the deed by the new owner is purely a ministerial action and should not prohibit the defendant from terminating the lease and proceeding with the sale. The filing of the deed seems to be a minor defect that should not give plaintiffs the right to remain in possession of the property. Therefore, the fact that the purchaser paid for, took possession of and is currently using the property satisfies the perfection requirement, assuming this provision was even meant to confer rights upon the plaintiffs. No amount of additional discovery would alter this conclusion. CONCLUSION For the reasons discussed above, defendant’s motion to dismiss for lack of subject matter jurisdiction is granted. IT IS SO ORDERED. . In the amended complaint, plaintiffs seek $3’ million dollars in damages, half the amount pled in the original complaint. . The statutory amount has recently been raised from $50,000 to $100,000. 41 U.S.C. § 605(c) (1994). . The court need not reach defendant’s argument that neither the March'6th letter nor the administrative tort claim requested a final decision from the contracting officer as required under the CDA.	07-20-2022	[ "OPINION SMITH, Chief Judge. This case is before the court on defendant’s motion to dismiss for lack of subject matter jurisdiction pursuant to RCFC 12(b)(1) and for failure to state a claim upon which relief may be granted pursuant to RCFC 12(b)(4). For the reasons set forth below, the defendant’s motion to dismiss for lack of subject matter jurisdiction is hereby granted. FACTS On November 28, 1988, the United States Marshals Service lawfully seized the property known as “La Puesta del Sol,” a restaurant located in Puerto Rico. On January 26, 1989, the Marshals Service leased the property to plaintiff, Mr. Willie Bernard Colon, for a period of one year with a provision allowing either party to extend the lease for one additional year by mutual consent. On March 16, 1990, the parties entered .into an agreement extending the lease on a month to month basis. At the time, Mr. Colon was attempting to purchase the property from the Marshals Service. The agreement stated in relevant part that: Due to the fact that the United States is selling “The Property” and “Lessee” is taking all necessary steps to buy it, and taking into account the fact that “Lessee” has been operating its business on said “Property” for the last twelve months, therefore: A. The parties agree to modify the duration of the original contract on a month to month basis, until the perfection of the sale.", "This modification is made in order to expeditate [sic] the Sale of the Property. On January 11, 1991, the Marshals Service announced its decision to accept Mr. Rodrigo Rodriguez’s offer, as representative of a corporation, to purchase the property. The Marshals Service notified Mr. Colon of the sale on February 6, and informed him that they were terminating the month to month tenancy. Mr. Colon was required to vacate the property by April 1. On February 28, 1991, the deed was filed conveying the property from the United States to a corporation represented by Mr. Rodriguez. On March 6,1992, Mr. Colon wrote a letter to the contracting officer, complaining that the sale to the corporation had not been perfected. He asked that the property be returned and the contract restored, with the United States refunding all damages suffered by him and his family.", "He stated that if he did not hear from the contracting officer within 5 days of receipt of the letter, he would pursue legal remedies. The contracting officer did not reply. Subsequently, on September 24, 1992, Mr. Colon filed a claim against the United States pursuant to the Federal Tort Claims Act seeking damages for lost future profits, loss of professional reputation, and mental anguish. The United States denied Mr. Colon’s administrative tort claim, finding that (1) the action sounded in contract, not in tort and (2) the Marshals Service uncovered no evidence of wrongful acts by government personnel. Mr. Colon and his wife then filed the present action in the United States Court of 340Federal Claims.", "The complaint alleged that the government breached the lease agreement by terminating the lease “under the false premise that it had perfected the sale of the subject property to a third party.” Plaintiffs also asserted that “[i]t was expressly agreed that plaintiffs’ month to month tenancy could only be terminated by plaintiffs’ purchase of the property.” Therefore, plaintiffs contend that the sale of the property to a third party constituted a breach of the lease agreement. Plaintiffs sought $6 million dollars in damages for loss of income, lost capital investment based on reliance on the contract, damages to professional reputation and goodwill, and other consequential damages.", "Defendant moved to dismiss the original complaint on two grounds. First, defendant alleges that plaintiffs have failed to meet the requirements of the Contract Disputes Act (CDA) because plaintiffs did not file a valid claim with the contracting officer and failed to certify damages. Second, defendant alleges that plaintiffs’ claim sounds in tort, not in contract. During oral argument on defendant’s motion to dismiss, the court noted certain fundamental problems with the merits of plaintiffs’ complaint. Most importantly, the court was unclear as to what provision or provisions of the contract plaintiffs were alleging defendant had breached. As a result of these problems, the court stayed determination of the defendant’s motion to dismiss and allowed plaintiffs to amend their complaint to address the court’s concerns.", "The court ordered plaintiffs to specify with particularity in the amended complaint what provisions of the contract defendant had breached. Plaintiffs filed an amended complaint1 and defendant subsequently filed a renewed motion to dismiss the amended complaint. DISCUSSION I. JURISDICTION Before this court reaches the merits of the dispute, it must first determine whether it has subject matter jurisdiction. Defendant has challenged the court’s jurisdiction on two separate grounds. First, defendant alleges that plaintiffs have not met the procedural requirements of the CDA.", "Specifically, defendant alleges that plaintiffs failed to file a “claim” with the contracting officer and that plaintiffs never certified their damages. Second, defendant alleges that plaintiffs’ claim sounds in tort, not contract. These jurisdictional issues will be discussed in turn. When reaching a decision on a motion to dismiss for lack of subject matter jurisdiction, the court must accept the allegations made by the plaintiffs as true and must draw all reasonable inferences in plaintiffs’ favor. Henke v. United States, 60 F.3d 795, 797 (Fed.Cir.1995) (citing Scheuer v. Rhodes, 416 U.S. 232, 236-7, 94 S.Ct.", "1683, 1686-87, 40 L.Ed.2d 90 (1974)). However, “conclusory allegations unsupported by any factual assertions will not withstand a motion to dismiss.” Blaze Construction, Inc. v. United States, 27 Fed.Cl. 646, 650 (1993) (quoting Briscoe v. LaHue, 663 F.2d 713, 723 (7th Cir.1981)). A. The Contract Disputes Act The CDA vests this court with jurisdiction to hear cases involving “any express or implied contract ... entered into by an executive agency for ... the procurement of property, other than real property in being.” 41 U.S.C.", "§ 602(a)(1) (1994). As defendant notes, the CDA requirements apply to lease agreement disputes. See Forman v. United States, 767 F.2d 875, 878-9 (Fed.Cir.1985); Hamza v. United States, 31 Fed.Cl. 315, 320 (1994). For this court to have jurisdiction over a claim pursuant to the CDA, the contractor must have submitted a valid claim in writing to the contracting officer, seeking a final decision on the claim. 41 U.S.C. §§ 605, 609 (1994). Although the CDA does not expressly define what constitutes a “valid claim,” the Federal Acquisition Regulations (FAR), which implement the CDA, define a claim as: 341a written demand or written assertion ... seeking, as a matter of right, the payment of money in a sum certain, ... or other relief arising under or relating to the contract. A request for payment that is not in dispute when submitted is not a claim under the Act. 48 C.F.R. § 38.201 (1991); see also Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1573 (Fed.", "Cir.1995) (evaluating the sufficiency of a claim under the FAR). In addition to filing a valid claim, where a contractor submits a claim for a sum of money in excess of $50,-000, the claim must be certified as accurate and made in good faith. 41 U.S.C. § 605(c) (1988); 48 C.F.R. § 33.201 (1991).2 Defendant seeks to dismiss the complaint on the grounds that plaintiffs failed to meet two requirements of the CDA: (1) plaintiffs never submitted a valid claim, and (2) plaintiffs never certified the claim. 1. Submission of a Valid Claim In order to be considered a valid claim for purposes of the CDA the claim must contain details sufficient to enable the contracting officer to adequately consider what is being claimed and the grounds for the claim. Contract Cleaning Maintenance, Inc. v. United States, 811 F.2d 586, 592 (Fed.Cir.1987).", "A contractor must also state in the claim a “sum certain” that is in dispute. The sum need not necessarily be explicitly stated in the claim. For example, a contractor can meet this requirement if the amount claimed can easily be determined from other submissions to the contracting officer. Mendenhall v. United States, 20 Cl.Ct. 78, 83-4 (1990) (finding that claim for return of all money paid to government under contract was sufficiently certain). In order for a claim to be proper under the CDA it must also communicate a desire for a final decision from the contracting officer. Transamerica Ins. Corp., Inc. v. United States, 973 F.2d 1572, 1576 (Fed.Cir.", "1992); see also Mingus Constructors, Inc. v. United States, 812 F.2d 1387 (Fed.Cir.1987). The claim need not contain “magic words” because “the intent of the ‘claim’ governs.” Transamerica, 973 F.2d at 1578. The request for a final decision may be implicit or explicit. See Hamza, 31 Fed.Cl. at 322; see also Transamerica, 973 F.2d at 1576. The contractor, however, must submit adequate notice of the basis and amount of the claim. Contract Cleaning, 811 F.2d at 592.", "In support of its argument that plaintiffs failed to file a valid claim, defendant alleges: (1) that plaintiffs failed to submit any demand for damages expressed in a sum certain to the contracting officer; (2) that plaintiffs never identified any specific damages resulting from the alleged breach of contract; and (3) that plaintiffs never expressed any desire for a contracting officer’s final decision. Both parties agree, and the court concurs, that the March 6th letter from Mr. Colon to the contracting officer alone was insufficient to constitute a valid claim for purposes of the CDA In the letter to the contracting officer, plaintiffs demanded return of the property because they claimed the government had breached the lease extension agreement. The letter contained no specific allegations of resulting losses and no claim for any specific amount of money. Although the property does have a value that could be estimated, plaintiffs also sought damages for injury to their family’s reputation and failed to certify the damages. For these reasons, the letter itself does not constitute a valid claim.", "Plaintiffs argue that although the letter of March 6th may not have been sufficient in and of itself to constitute a claim, Mr. Colon also filed an administrative tort claim that asked for a specific amount of money. Based on the March 6th letter and the administrative tort claim submission, plaintiffs argue they have met the procedural requirements of the CDA Although the administrative tort claim did contain a sum certain ($6 million dollars), defendant argues that even if the court were 342to look at both the March 6th letter and the tort claim, the contracting officer would still not have a sufficient basis for reaching a final decision. The damages sought in the tort claim, defendant argues, were for tort injuries, and not for damages allegedly incurred through breach of contract.", "The court recognizes that it should look at the totality of the correspondence when determining the validity of a claim. “Several documents as a whole may constitute a valid claim.” Hamza, 31 Fed.Cl. at 321 (citing Contract Cleaning, 811 F.2d at 592). However, the March 6th letter and the subsequent administrative tort claim, read together, simply cannot be considered a valid claim for purposes of the CDA. The CDA valid claim requirement is designed to give the contracting officer enough information to fairly evaluate the claim in order to reach a final decision. Here, the contracting officer could not possibly evaluate the claim.", "The March 6th letter alleges an unspecified contract breach resulting in unspecified contract damages, while the administrative tort claim provides neither a basis nor an amount upon which a contract claim could be premised. It is theoretically possible that an administrative tort claim could have a breakdown of claimed damages and that some of these damages could in reality be contract-based. A contracting officer may then be in a position to fairly evaluate the claim using information provided in the administrative tort claim. This did not happen here. Instead, Mr. Colon submitted an administrative tort claim which on its face could not provide any guidance to the contracting officer in fairly evaluating the contract claim.", "This is not sufficient to be considered a valid claim for purposes of the CDA2 3 2. Certification As noted above, the CDA required the contractor to certify a contract claim in excess of $50,000. 41 U.S.C. § 605(c) (1988). Since plaintiffs seek over $50,000, they must-meet the certification requirement. Defendant alleges that plaintiffs failed to certify their claims. Plaintiffs argue that the purpose of this requirement is to discourage the filing of fraudulent claims and that the requirement was met by signing and submitting the administrative tort claim. Above the signature, the tort claim stated: I certify that the amount of the claim covers only damages and injuries caused by the accident above ... The amount requested in the administrative tort claim was, at least in major part, for tort damages. Pursuant to the CDA, the con- , tractor must certify that the amount requested accurately reflects the contract adjustment for which the contractor believes the government is liable. 41 U.S.C.", "§ 605(c)(1) (1994). The amount requested in the tort claim cannot accurately reflect the amount of damages based solely on the contract since it is based on theories of negligence and misrepresentation. Therefore, the certification in the tort claim cannot meet the requirements of the CDA. This court recognizes that it may allow contractors to amend minor defects in certification. 41 U.S.C. § 605(c)(6) (1994). As'the Hamza court noted, Congress sought to “allow contractors to cure ‘technically defective’ certifications — defective as a result of innocent mistake — in order ‘to avoid repetition of the entire administrative claims process and waste of judicial ... resources.’ ” Hamza, 31 Fed.Cl. at 323 (quoting H.Rep.", "No. 102-1006, 102d Cong., 2d Sess. 28, reprinted in 1992 U.S.C.CA.N. 3921, 3937). However, because plaintiffs’ claim fails to meet the requirement that a “valid claim” be submitted, as discussed above, the court need not resolve whether plaintiffs’ certification is only technically defective. B. Tort v. Contract Defendant also argues that this court lacks jurisdiction to hear plaintiffs’ claim because it sounds in tort rather than contract. The Tucker Act specifically ex-343eludes from this court’s jurisdiction claims sounding in tort. See 28 U.S.C. § 1491(a)(1) (1994). This includes cases involving negligent misrepresentation, wrongful inducement, or the careless performance of a duty allegedly owed. See Aetna Casualty & Surety Co. v. United States, 228 Ct.Cl. 146, 164, 655 F.2d 1047 (1981) (citing Somali Dev. Bank v. United States, 205 Ct.Cl. 741, 749, 508 F.2d 817 (1974)); see also United States v. Neustadt, 366 U.S. 696, 81 S.Ct. 1294, 6 L.Ed.2d 614 (1961). In the instant case, defendant argues that neither the complaint nor the amended complaint identified a specific contractual provision that defendant allegedly violated.", "Since plaintiffs failed to allege a breach of the written contact, defendant argues, plaintiffs’ complaint is based on claims of misrepresentation and thus should be dismissed. In support of its argument, defendant points to the fact that plaintiffs made the same allegations in their tort claim. Plaintiffs contend that their claim does involve a contract dispute. They allege that defendant breached two provisions of the lease agreement. First, they argue that defendant breached the lease extension agreement when it sold the property to a third party. Second, plaintiffs claim that defendant breached the lease agreement when it unilaterally terminated the lease on February 6, 1991, prior to perfection of the sale.", "The court is certainly mindful that the mere labeling of a claim as one sounding in contract does not make it a contract claim. “The fact that plaintiffs do not label their claim as one sounding in tort is irrelevant.” Adams v. United States, 20 Cl.Ct. 132, 135 (1990). An otherwise tort-based claim is not suddenly converted into a contract based claim by calling it a breach of contract.", "Rather, the court has a duty to determine whether an alleged contract claim actually sounds in tort. See Morris v. United States, 33 Fed.Cl. 733, 742 (1995); Dakota Tribal Industries v. United States, 34 Fed.Cl. 295, 297 (1995). If is sounds in tort exclusively, this court is without jurisdiction to entertain the claim. In this case, however, plaintiffs’ amended complaint is premised on specific provisions of the contract. The fact that plaintiffs filed an administrative tort claim, and that they asserted other tort-based theories before other forums, is irrelevant to whether this complaint is premised upon the contract between Mr. Colon and the Marshals Service. Plaintiffs have pointed to specific provisions in the contract that they claim the government breached. It appears, then, that the real issue is whether plaintiffs’ allegations — that the government has breached express provisions of its contract with Mr. Colon — are meritorious. Defendant’s argument then really is whether plaintiffs have failed to state a claim upon which relief can be granted. II. THE MERITS Even were the court to have subject matter jurisdiction to entertain this claim, the court is convinced that plaintiffs’ complaint, as pled, fails to state a claim upon which relief can be granted, because the lease agreement on its face does not grant to plaintiffs an option or right of first refusal to purchase the property. Plaintiffs point to two specific breaches of the terms of the extension agreement.", "First, plaintiffs allege that defendant breached the lease agreement by selling the property to a third party. In support of this argument, plaintiffs rely on use of the term “the Sale of the Property” in the lease agreement, (emphasis added). They argue that the parties specifically did not refer to “a sale” because both parties had agreed that the purchaser would be the plaintiffs. If defendant had a right to sell to a third party, the contract would have used the word “a.” Plaintiffs also point to language in the contract recognizing that Mr. Colon was “taking all necessary steps to buy [the subject property].” Based on this language, plaintiffs argue that defendant agreed that it could only terminate the month to month tenancy by selling the property to plaintiffs. Although plaintiffs concede that the court may find other reasonable interpretations of the contract terms, they argue that they should be allowed to clarify any ambiguities in the contract terms by reference to extrinsic evidence.", "*344Second, plaintiffs argue that the lease was to continue until “the perfection of the sale” of the property. Under Puerto Rican law, the deed must be filed with the appropriate government agency in order to perfect the sale. Since neither party in this case had evidence showing that Mr. Rodriguez filed the appropriate documents, plaintiffs argue that the sale has not been perfected. Therefore, plaintiffs argue, the sale was never technically perfected and defendant breached the contract when they wrongfully terminated the lease. On its face, the lease agreement’s clear and unambiguous wording did not require defendant to sell the property to plaintiffs. The extension agreement contained no option or right of first refusal protecting plaintiffs’ right to purchase the property. The actual wording of the lease extension agreement makes no mention of a requirement limiting defendant’s right to sell the property to a party other than the plaintiffs.", "The lease states in relevant part: The parties agree to modify the duration of the original contract on a month to month basis, until the perfection of the sale. This modification is made in order to expeditate [sic] the Sale of the Property. Contract interpretation is a question of law to be decided by the court. Flathead Joint Brd. of Control v. United States, 30 Fed.Cl. 287, 294 (1993); see also P.J. Maffei Bldg. Wrecking Corp. v. United States, 732 F.2d 913, 916 (Fed.Cir.1984). Reading the plain language of the contract, the court fails to see any express or implied agreement between the parties that would require defendant to sell the property only to plaintiff.", "The extension agreement simply extends the prior lease and modifies it to apply month to month. Nowhere does it state or reasonably imply that plaintiff has a right to purchase the property. Plaintiffs’ focus on the word “the” as an indication of ambiguity is unpersuasive when read in the context of the full lease agreement. As defendant notes, if it intended to sell the property only to plaintiffs, it would have had no need for a month to month tenancy. Plaintiffs would have possession of the property and could terminate the lease upon sale. Defendant, however, needed a month to month tenancy in order to improve the marketability of the property because defendant would have had difficulty selling property to a third party that was subject to a long-term lease. Plaintiffs may have expressed an intention to purchase the property. The lease extension agreement, however, contained no purchase contract,, option, right of first refusal or other provisions protecting plaintiffs’ right to purchase the property. Plaintiffs’ intention alone does not translate into a right to purchase.", "Therefore, based on a plain reading of the lease, defendant could not have breached the contract by selling to a third party. Plaintiffs’ “perfection” argument also lacks merit. It may be true that the property’s new owner has failed to file the deed with the appropriate authorities in Puerto Rico. The defendant however, has given up control and possession of the property and has received full value for the sale. The new owner is currently occupying and using the property. The sale has been completed and defendant has done all in its power to complete perfection of the sale. The filing of the deed by the new owner is purely a ministerial action and should not prohibit the defendant from terminating the lease and proceeding with the sale. The filing of the deed seems to be a minor defect that should not give plaintiffs the right to remain in possession of the property.", "Therefore, the fact that the purchaser paid for, took possession of and is currently using the property satisfies the perfection requirement, assuming this provision was even meant to confer rights upon the plaintiffs. No amount of additional discovery would alter this conclusion. CONCLUSION For the reasons discussed above, defendant’s motion to dismiss for lack of subject matter jurisdiction is granted. IT IS SO ORDERED. . In the amended complaint, plaintiffs seek $3’ million dollars in damages, half the amount pled in the original complaint. . The statutory amount has recently been raised from $50,000 to $100,000. 41 U.S.C. § 605(c) (1994). . The court need not reach defendant’s argument that neither the March'6th letter nor the administrative tort claim requested a final decision from the contracting officer as required under the CDA." ]	https://www.courtlistener.com/api/rest/v3/opinions/6645845/	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
Title: To James Madison from William Lee, 6 October 1802 From: Lee, William To: Madison, James Sir Bordeaux Octr 6th 1802. The enclosed is a copy of my respects under date of the 26th Ulto. since which I have been favored by Mr. Berjevin principal Commissary of Marine for this Department with an arreté of the Consuls a copy of which I have the honor to enclose. I took the liberty to mention to you in my letter of July 22d. that notwithstanding the circular which the Secretary of the Treasury addressed in July 1801 to the Collectors and Naval Officers respecting bills of health many vessels left the United States without them and in consequence of this neglect were subject to a ruinous quarantine. It now appears as if some further Steps were necessary on the part of government to prevent our shipping from experiencing this inconvenience. Accompanying this you have a file of the moniteur and Journal de Commerce. With much respect I am Sir Your humble. Servt. William Lee The preceding is the full transcription of a document that was previously abstracted in The Papers of James Madison, Secretary of State series. The original abstract contains additional annotation and source information. Go to the original abstract	10-06-1802	[ "Title: To James Madison from William Lee, 6 October 1802 From: Lee, William To: Madison, James Sir Bordeaux Octr 6th 1802. The enclosed is a copy of my respects under date of the 26th Ulto. since which I have been favored by Mr. Berjevin principal Commissary of Marine for this Department with an arreté of the Consuls a copy of which I have the honor to enclose.", "I took the liberty to mention to you in my letter of July 22d. that notwithstanding the circular which the Secretary of the Treasury addressed in July 1801 to the Collectors and Naval Officers respecting bills of health many vessels left the United States without them and in consequence of this neglect were subject to a ruinous quarantine. It now appears as if some further Steps were necessary on the part of government to prevent our shipping from experiencing this inconvenience. Accompanying this you have a file of the moniteur and Journal de Commerce. With much respect I am Sir Your humble. Servt. William Lee The preceding is the full transcription of a document that was previously abstracted in The Papers of James Madison, Secretary of State series. The original abstract contains additional annotation and source information.", "Go to the original abstract" ]	https://founders.archives.gov/API/docdata/Madison/02-91-02-0510	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
974 F. Supp. 1198 (1997) UNITED STATES of America, Plaintiff, v. Larry D. HALL, Defendant. No. 94-20036. United States District Court, C.D. Illinois, Peoria Division. August 13, 1997. 1199 Richard H. Parsons, Federal Public Defender, Peoria, IL, Craig H. DeArmond, Kurth & DeArmond, Danville, IL, for Larry D. Hall. Lawrence S. Beaumont, Asst. U.S. Atty., Urbana, IL, for U.S. ORDER McDADE, District Judge. Before the Court is the Government's Motion to Preclude Dr. Ofshe's Testimony at Trial [Doc. # 164]. Dr. Richard Ofshe is a social psychologist operating in the field of coercive police interrogation techniques and the phenomenon of false or coerced confessions. He is prepared to testify that experts in his field agree that false confessions exist, that individuals can be coerced into giving false confessions, and that there exist identifiable coercive police interrogation techniques which are likely to produce false confessions. At Defendant's first trial, the district court rejected Dr. Ofshe's proffered testimony under Fed.R.Evid. 702. However, in United States v. Hall, 93 F.3d 1337, 1344-45 (7th Cir.1996), the Seventh Circuit vacated Defendant's conviction and remanded the case to this Court to correct the prior court's "failure to conduct a full Daubert inquiry, applying the correct legal standards under Rule 702." Pursuant to this directive, the Court held an extensive Rule 104(a) hearing to determine the admissibility of Dr. Ofshe's expert testimony. The Government postulates that Defendant must show a scientific basis for Dr. Ofshe's expert opinion because it is based upon "scientific [] knowledge" under Rule 702. Conversely, Defendant contends that Dr. Ofshe's expert testimony is derived from a body of "specialized knowledge" under Rule 702 whose validity should not be analyzed under the Daubert standard. This case raises a rather perplexing question: to what extent, if any, does Daubert apply to "soft" sciences such as social psychology? Scientific v. Specialized Knowledge In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 581, 113 S. Ct. 2786, 2791, 125 L. Ed. 2d 469 (1993), the Supreme Court determined the proper standard "for admitting expert scientific testimony in a federal trial." The Court rejected the Frye 1200 "general acceptance" test for the more liberal standard embodied in Fed.R.Evid. 702 that the expert need only testify to "(1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue." Daubert, 509 U.S. at 592, 113 S. Ct. at 2796. The Court stated that in order to "qualify as `scientific knowledge,' an inference or assertion must be derived by the scientific method." Id. at 590, 113 S. Ct. at 2795. The Court noted four nonexhaustive factors that would bear on this inquiry: falsifiability, peer review, rate of error and general acceptance. Id. at 593-94, 113 S. Ct. at 2796-97. Rule 702, however, speaks not only of "scientific" knowledge but also of "technical, or other specialized knowledge" as alternative bases for an expert's opinion. The Court in Daubert was careful to point out that its discussion did not reach "technical" or "specialized" knowledge under the Rule. Id. at 590 n. 8, 113 S. Ct. at 2795 n. 8. Chief Justice Rehnquist's partial dissent noted the problem: Does all of this dicta [regarding the four factors] apply to an expert seeking to testify on the basis of "technical or other specialized knowledge" the other types of expert knowledge to which Rule 702 applies or are the "general observations" limited only to "scientific knowledge"? What is the difference between scientific knowledge and technical knowledge; does Rule 702 actually contemplate that the phrase "scientific, technical, or other specialized knowledge" be broken down into numerous subspecies of expertise, or did its authors simply pick general descriptive language covering the sort of expert testimony which courts have customarily received? Id. at 600, 113 S. Ct. at 2800 (Rehnquist, J., concurring in part and dissenting in part). Fortunately, four years have passed since the Daubert decision and there is both academic literature and case authority to guide the Court. Two conflicting views have been espoused. The first argues that Rule 702's reference to "technical, or other specialized knowledge" does not give courts or litigants an opportunity to circumvent the strict requirements of the scientific method as espoused in Daubert. Rather, "Rule 702 contemplates a fluid analysis, with a preference for scientific knowledge when it is or should be available." David L. Faigman, The Evidentiary Status of Social Science Under Daubert: Is It "Scientific," "Technical," Or "Other" Knowledge?, 1 Psychol. Pub. Pol'y & L. 960, 979 (1995). Under this view, the Daubert test should be applied to all three types of knowledge specified in Rule 702. Id. at 964. The reference to "technical, or other specialized knowledge" merely "relaxes the requirement for a scientific demonstration when a less rigorous, less time-consuming, and less expensive alternative would provide sufficiently accurate information." Thus, for example, a mechanic can testify about his practical knowledge of carburetors without requiring his conclusions to be deduced from the scientific method. Id. at 964. However, the fact that a topic may be too complex for experimental analysis does not justify relaxing the standards of Rule 702 and ignoring Daubert. Id. at 963-64, 979. The second, and in the Court's opinion, the better view, is that testimony which is simply not amenable to the scientific method should not be subjected to the strictures of Daubert and instead can pass as "specialized knowledge." See Jennifer Laser, Inconsistent Gatekeeping in Federal Courts: Application of Daubert v. Merrell Dow Pharmaceuticals, Inc. to Nonscientific Expert Testimony, 30 Loy. L.A. L.Rev. 1379 (1997); Teresa S. Renaker, Evidentiary Legerdemain: Deciding When Daubert Should Apply to Social Science Evidence, 84 Cal. L.Rev. 1657 (1996); Edward J. Imwinkelried, The Next Step After Daubert: Developing a Similarly Epistemological Approach to Ensuring the Reliability of Nonscientific Expert Testimony, 15 Cardozo L.Rev. 2271 (1994). These commentators distinguish between those experts who practice Newtonian science, which utilizes the experimental method to validate or disprove hypotheses, and those who acquire their knowledge by formal instruction, experience or observation. The Court in Daubert dealt expressly with Newtonian experimental science when it articulated such considerations as whether the hypothesis is testable (falsifiability), whether it in fact had been tested (peer review), and whether there was a known error rate. 1201 Daubert, 509 U.S. at 593-94, 113 S. Ct. at 2796-97. These concerns have little or no application to nonscientific expert evidence. The Sixth Circuit has noted that application of these factors to nonscientific evidence would "turn Daubert, a case intended to relax the admissibility requirements for expert scientific evidence, on its head." United States v. Jones, 107 F.3d 1147, 1157-58 (6th Cir.), cert. denied, ___ U.S. ___, 117 S. Ct. 2527, 138 L. Ed. 2d 1027 (1997). One way to distinguish between "hard" scientific testimony and "other specialized knowledge" is to look to the purpose for which the evidence is being introduced. If the testimony posits an explanatory theory to draw a conclusion or determine causation in a particular case, this would normally require experimental verification, the focal point of Newtonian science. Conversely, if the testimony involves a simple correlational study between different factors or events, without attempting to determine causation, there is no need for experimental verification and it can be classified as specialized knowledge. See Nations v. State, 944 S.W.2d 795, 800-01 (Tex.Ct.App.-Austin 1997); Renaker, Evidentiary Legerdemain, 84 Cal. L.Rev. at 1686-91. Another distinguishing factor is whether such knowledge can be derived from experience or training as opposed to controlled experimentation. The analogy in Berry v. City of Detroit, 25 F.3d 1342, 1349-50 (6th Cir.1994), is particularly apt: The distinction between scientific and nonscientific expert testimony is a critical one. By way of illustration, if one wanted to explain to a jury how a bumblebee is able to fly, an aeronautical engineer might be a helpful witness. Since flight principles have some universality, the expert could apply general principles to the case of the bumblebee. Conceivably, even if he had never seen a bumblebee, he still would be qualified to testify, as long as he was familiar with its component parts. On the other hand, if one wanted to prove that bumblebees always take off into the wind, a beekeeper with no scientific training at all would be an acceptable expert witness if a proper foundation were laid for his conclusions. The foundation would not relate. to his formal training, but to his firsthand observations. In other words, the beekeeper does not know any more about flight principles than the jurors, but he has seen a lot more bumblebees than they have. See also Faigman, The Evidentiary Status of Social Science, 1 Psychol. Pub. Pol'y & L. at 964. While these distinctions may in time prove to be overly simplistic, they are a sufficient starting point for the Court's analysis here. A number of courts have recognized these distinctions and have refused to apply the four factors specified in Daubert to expert testimony which is not easily subjected to the experimental method of the "hard" sciences. See, e.g., Jones, 107 F.3d at 1157-58 (handwriting analysis); Tyus v. Urban Search Mgmt., 102 F.3d 256, 263-64 (7th Cir.1996), cert. denied, ___ U.S. ___, 117 S. Ct. 2409, 138 L. Ed. 2d 175 (U.S.1997) (impact of advertisements upon viewers of different races); Roback v. V.I.P. Transp. Inc., 90 F.3d 1207, 1215-16 (7th Cir.1996) (measurement of truck performance taken by expert's self-designed equipment); United States v. Williams, 81 F.3d 1434, 1441-42 (7th Cir. 1996) (translation of gang code); United States v. Sinclair, 74 F.3d 753, 757 (7th Cir.1996) (legal expert); United States v. Velasquez, 64 F.3d 844, 850 (3d Cir.1995) (applying Daubert to handwriting analysis only as "an exercise in caution"); Iacobelli Constr., Inc. v. County of Monroe, 32 F.3d 19, 25 (2d Cir.1994) (geotechnical and underground construction experts); Waitek v. Dalkon Shield Claimants Trust, 934 F. Supp. 1068, 1087 n. 10 (N.D.Iowa 1996) (medical testimony about problems with contraceptive device), aff'd, 114 F.3d 117 (8th Cir.1997) (per curiam); United States v. Starzecpyzel, 880 F. Supp. 1027, 1039-41 (S.D.N.Y. 1995) (handwriting analysis); Nations, 944 S.W.2d at 800-01 (eyewitness identifications).[1] 1202 This is not to say, however, that Daubert is wholly inapplicable to non-Newtonian scientific testimony. Indeed, the Seventh Circuit has expressly held that "the Daubert frame-work is appropriate for all kinds of expert testimony." Tyus, 102 F.3d at 263; American Int'l Adjustment Co. v. Galvin, 86 F.3d 1455, 1465 (7th Cir.1996) (Posner, J., dissenting). Thus, for instance, the Seventh Circuit has applied Daubert to a psychologist's testimony on the impact of advertisements upon viewers of different races, Tyus, 102 F.3d at 263-64, an expert on measuring truck performance, Roback, 90 F.3d at 1215, a cardiologist's testimony about the nicotine patch causing a patient's heart attack, Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 318-19 (7th Cir.), cert. denied, ___ U.S. ___, 117 S. Ct. 73, 136 L. Ed. 2d 33 (1996), and an accountant's testimony about generally accepted auditing standards. Frymire-Brinati v. KPMG Peat Marwick, 2 F.3d 183, 186-87 (7th Cir.1993).[2] However, Daubert is only applicable to these cases in the general sense that all expert testimony must be subjected to the strictures of Rule 702 "to be sure that the person possesses genuine expertise in a field and that her court testimony `adheres to the same standards for intellectual rigor that are demanded in [her] professional work.'" Tyus, 102 F.3d at 263 quoting Braun v. Lorillard Inc., 84 F.3d 230, 234 (7th Cir.), cert. denied, ___ U.S. ___, 117 S. Ct. 480, 136 L. Ed. 2d 375 (1996). Thus, the measure of intellectual rigor will vary by the field of expertise and by the way in which such expertise can be demonstrated. Id. To sum up, the four factors laid out in Daubert must be applied when an expert bases his testimony on scientific hypotheses which are capable of being refuted by controlled experimentation. However, these factors may be applied in differing degrees when it comes to non-Newtonian science or "other specialized knowledge." Fed.R.Evid. 702. The only thing that remains constant for all forms of expert testimony is that there must be some degree of reliability of the expert and the methods by which he has arrived at his conclusions. This criterion for admissibility derives from Rule 702 itself as well as the implications of the Daubert opinion. Jones, 107 F.3d at 1156. Application of Daubert to the Social Sciences At this broad level of generality, Daubert's framework applies to the social sciences. Tyus, 102 F.3d at 263. Yet, the question remains, how reliable must social science evidence be before it is admissible as "specialized knowledge" under Rule 702? Moreover, even if the body of specialized knowledge is reliable, what qualifies this particular expert to testify about it? Id.; Hall, 93 F.3d at 1342-43. To answer the first question, the Court must look to the particular field of social science at issue and determine the reliability of the methods by which scientists[3] in that field make their findings. Many social scientists rely primarily on real-world experience rather than experimentation to arrive at their conclusions.[4] Imwinkelried, The Next Step After Daubert, 15 Cardozo L.Rev. at 2289. Such experiences might be personal or vicarious. Id. However, certain quantitative and qualitative requirements must be placed upon those experiences before they can rise to the level of reliable specialized knowledge. There must be a threshold number of experiences from which the expert's knowledge is drawn. Id. at 2290-92. In addition, those experiences must be sufficiently similar in nature to form a valid basis for comparison. Id. at 2292-94. 1203 The primary method for analyzing and comparing real-world experiences is systematic observation and analysis. Like the bumblebee analogy set forth in Berry, 25 F.3d at 1349-50, social scientists testify from a practical standpoint about the human behavior they observe. Unlike the beekeeper however, social scientists write scholarly articles about their observations which are subjected to peer review by others in their profession. This process of sharing one's findings with peers and having it critiqued by them may eventually lead to a common body of knowledge worthy of being called a "science," albeit not a "hard" science. such as physics. In any field of social science, an expert should have to testify, at a minimum, to the longevity of that particular field, the amount of literature written about the subject, the methods of peer review among its scholarly journals, the quantity of observational or other studies conducted in that field, the comparative similarity of observations obtained, the reasons why those studies are deemed valid and reliable, and the general consensus or debate as to what the raw data means. In addition, the particular expert who wishes to testify must establish that he is sufficiently familiar with the topics mentioned above to render an informed opinion about them. It would also be helpful, but not necessary, to show that the proposed expert personally contributed to the field about which he is testifying, either through personal observation or by publication of an article, book or treatise on the subject. Admittedly, this list is not exhaustive, but it is a starting point. Hopefully, the federal courts will be able to develop a more accurate understanding of how social science data should be analyzed under Rule 702. Until that time comes, the Court will have to satisfy itself with the general factors noted above to make an informed judgment about the reliability of the social science testimony being offered. Admissibility of False Confession Expert Testimony Dr. Ofshe has been proffered by Defendant as an expert on false confessions and the factors which allow them to occur. He has a doctoral degree in social psychological from Stanford University and has taught psychological research methods at the University of California at Berkeley. He has received a number of prestigious honors in his field. He also serves on the editorial boards of numerous publications dealing with sociology and social psychology and has engaged in peer reviews of such articles. In addition, he has served as a consultant on the issue of influence in interrogations for federal and state law enforcement agencies across the country. Throughout his 35-year academic career, Dr. Ofshe has researched the subject of influence and decision-making. For the past 25 years, he has focused on extreme forms of influence, such as coercion, and for the past 10 years, he has dealt specifically with the use of coercion in police interrogations. He has also written numerous articles on these topics and presented papers at the meetings of various scientific associations. He has personally evaluated at least 126 separate interrogations and has testified about the subject of influence in interrogation at least 68 times in state and federal courts throughout the country. At the Rule 104(a) hearing, Dr. Ofshe testified at length about the development of the study of false confessions within the field of social psychology. He testified that social psychology is a hybrid between sociology and psychology, with some influence drawn from modern economic theory. The use of coercive techniques in interrogation is an established topic within the field of social psychology and draws on principles of rational decision making, perception and interpersonal influence. As an example of how vast the studies of this particular topic have been, Dr. Ofshe cited to Professor Gisli H. Gudjonsson's textbook entitled, "The Psychology of Interrogations, Confessions and Testimony" (Def.Ex. # 7) which references between 900 and 1,000 separate articles on the subject. Defendant also introduced into evidence over thirty separate articles and formal presentations about false confessions. According to Dr. Ofshe, the study of false confessions generally involves the systematic observation of real-world interrogations. This is a method generally accepted as reliable by the community of social psychologists 1204 in this field. The researcher initially obtains documented cases in which an innocent person has confessed to the crime. For instance, the researcher may look at cases in which another person subsequently confesses and is convicted of the crime or in which it is revealed, through DNA evidence or otherwise, that the defendant could not have committed the crime. Dr. Ofshe hypothesizes, and his peers appear to agree, that the major analytical method for determining the existence of a false confession is the post-admission narrative statement. In this technique, the confessor is asked about the details of the crime about which he has just confessed. If he relates facts that only the murderer would know, he must be guilty. If he relates facts inconsistent with the evidence at the crime scene, he is probably confessing falsely. Once it is established through a post-admission narrative statement that a false confession has occurred, the researcher then analyzes the interrogation process, either by reviewing it on audio or videotape or by having the parties recall the details of the interrogation. Documented factors are systematically analyzed to see whether they correlate with the existence of a false confession. Dr. Ofshe testified that no one factor or combination of factors could guarantee a false confession but that some factors might heighten the likelihood of one. While a number of factors were present in both true and false confession cases, a major distinguishing factor for false confessions is the interrogator's continued use of coercion either through false accusations or false promises of leniency. The idea is that a guilty person will more likely "crack" under the pressure or make a rational decision to choose the more lenient option sooner than an innocent person would. In analyzing this type of data, some researchers have utilized statistical correlational techniques whereby they divide individuals by their personality traits or by their intelligence and then demonstrate the probability of those subjects complying with the interrogator. This is not an experimental method because the researcher does not manipulate the variables. Rather, it involves the use of observation and systematic analysis of persons with different traits. Dr. Ofshe also testified that low-level laboratory experimentation has been conducted in this field. However, he admits that these experiments alone are not sufficiently reliable to support his findings. Even Professor Saul M. Kassin, who conducted many of these experiments, points out that various factors may have skewed the results, such as the use of college students as subjects (Govt. Ex. # 2, at 249-50) and the nature of the acts involved (Def. Ex. # 19, at 127). Professor Kassin even goes so far as to admit that "the current empirical foundation may be too meager to support recommendations for reform or qualify as a subject of `scientific knowledge' according to the criteria recently articulated by the U.S. Supreme Court" in Daubert. (Govt. Ex. # 1, at 231). Dr. Ofshe explained that the reason no laboratory studies could be conducted in real life situations is that it would be unethical. He stated that "people think of experiments as the be all and end all of science ... That is simply not the case. And the entire social science enterprise is based on the use of a variety of different methods, that's so fundamental, and.. I'm simply saying that ... given the problems that arise in doing particularly social science research, we cannot do the things to people that we can even do to animals." He concluded that "observation in the organization of reliable, of regular phenomenon is fundamental to the whole social science enterprise." Dr. Ofshe testified that the studies based upon observational data are subjected to a process of peer review within the social psychologist community. Authors generally respond to the criticisms of their peers before actually publishing the paper. He further testified that there is no dispute in the scientific community that false confessions do exist and that studying things such as coercion and the post-admission narrative statement is the proper method of analyzing whether and why they occur. The Government's witness, Dr. Frank Horvath, who has a doctoral degree in criminal justice and criminology, claims that there is no scientific basis for the use of the post-admission narrative statement as a method by which to determine the falsity of a confession. 1205 However, it is only common sense that a person who does not give accurate information about the crime may in fact not be guilty of that crime. While such a person may simply be withholding evidence or purposely giving false details, this risk does not destroy the validity of the original hypothesis that more likely than not, the person is innocent. The Court does not require a separate scientific basis for the use of post-admission narrative statements, which is only a technique by which social psychologists in this field gather their data. Dr. Ofshe discussed his reluctance to state an ultimate opinion in the courtroom as to whether a false confession has actually occurred in any particular case. He would rather indicate to the jury the possibility of such a confession given the factors which have been systematically correlated to the existence of a false confession. Such restraint in the area of causation increases the reliability of Dr. Ofshe's testimony. In light of this testimony, the Court finds that Dr. Ofshe is qualified as an expert in the field of coercive police interrogation techniques which may lead to false confessions. The Court further finds that the science of social psychology, and specifically the field involving the use of coercion in interrogations, is sufficiently developed in its methods to constitute a reliable body of specialized knowledge under Rule 702. While Dr. Ofshe and his peers utilize observational, as opposed to experimental, techniques, this is wholly acceptable in the established field of social psychology.[5] The Court cautions Defendant, however, that it will hold Dr. Ofshe to his word that he will only testify to the correlation between false confessions and the various factors espoused by him. Thus, he can testify that false confessions do exist, that they are associated with the use of certain police interrogation techniques, and that certain of those techniques were used in Hall's interrogation in this case. Dr. Ofshe cannot explicitly testify about matters of causation, specifically, whether the interrogation methods used in this case caused Hall to falsely confess. Without experimental verification, such testimony would be speculative and prejudicial. Dr. Ofshe will simply provide the framework which the jury can use to arrive at its own conclusions. Just as important, Dr. Ofshe cannot testify about the specifics of the post-admission narrative statement in this case. Such an endeavor would require Dr. Ofshe to assess the inconsistencies between Hall's statements to the police and the evidence presented at trial. Dr. Ofshe has no more expertise to perform this task than any juror. It is beyond Dr. Ofshe's knowledge as a social psychologist to assess the weight of the evidence and the credibility of witnesses. Of course, Dr. Ofshe can speak of the post-admission narrative statement as a technique by which social psychologists screen out true from false confessions in order to form systematic observations about them. He may even hypothesize to the jury that the post-admission narrative statement is a valid method by which to test the truth or falsity of a confession. However, he cannot go so far as to analyze Hall's post-admission narrative statement in this manner. That task is for the jury alone. One final limitation, and one which the Court does not believe is in dispute, is that Dr. Ofshe cannot testify to Hall's psychological or psychiatric impairments or the effect of these impairments upon his likelihood of confessing falsely. Dr. Ofshe is not a clinical psychologist nor a psychiatrist and has no expertise in this area. Helpful to the Trier of Fact In addition to requiring that the proposed expert be knowledgeable about the particular matter at issue and that his methods be reliable, Rule 702 also requires that his testimony "will assist the trier of fact to understand the evidence or to determine a fact in issue." Fed.R.Evid. 702. The Seventh Circuit has indicated that social scientists in particular may be able to show that commonly accepted explanations for behavior are, 1206 when studied more closely, inaccurate. Tyus, 102 F.3d at 263; Hall, 93 F.3d at 1345. Dr. Ofshe testified that a common misperception among the public is that once a person confesses to his guilt, he must be guilty. Dr. Ofshe's expert testimony challenges this perception based on systematic observation of data to which the jury is not privy. If Defendant presents admissible testimony to show that the police used coercive interrogation techniques in his case, this would make Dr. Ofshe's expert testimony helpful to the trier of fact. The problem is that Hall's account of the interrogation was given to his lawyer without having him swear under oath to the truth of that testimony. Moreover, Hall's testimony was not subject to cross-examination by the Government. Thus, the interview is not presently admissible. Unless Defendant can introduce some admissible testimony regarding the manner in which the interrogation occurred, such as testifying on the stand, the jury will not hear any evidence of coercive interrogation techniques and Dr. Ofshe's testimony would be rendered irrelevant. Even if admissible evidence of coercive interrogation techniques are introduced, the Court reminds Defendant that Dr. Ofshe cannot testify about the significance of the post-admission narrative statement in Hall's case. Far from assisting the jury, such testimony would unduly usurp the jury's role as the trier of fact and cloak his factual determinations in the guise of expert testimony. Such testimony would simply be too prejudicial under Fed.R.Evid. 403 and will not be allowed. CONCLUSION IT IS THEREFORE ORDERED that the Government's Motion to Preclude Dr. Ofshe's Testimony at Trial [Doc. # 164] is DENIED except to the extent discussed in this Order. NOTES [1] But see Deimer v. Cincinnati Sub-Zero Prods., Inc., 58 F.3d 341, 344-45 (7th Cir.1995) (applying Daubert to proposed negligence causation expert); O'Conner v. Commonwealth Edison Co., 13 F.3d 1090, 1105-07 (7th Cir.1994) (applying Daubert to physician's testimony that patient's cataracts were caused by radiation). [2] In Williams, 81 F.3d at 1441-42, and Sinclair, 74 F.3d at 757-58, the Seventh Circuit rejected the application of Daubert altogether. This seeming inconsistency may be explained by the fact that the proffered experts in those cases relied entirely upon their personal experience and training and did not purport to be practicing any sort of systematic analysis. Williams involved an expert in gang language and Sinclair involved a legal expert. [3] The Court uses the terms "scientist" and "science" in the non-Newtonian sense here, for these words cannot be so narrowly confined. [4] One major reason for this is the ethical implications of experimenting on human beings. Another is the inherent complexity of isolating human behavioral characteristics in the laboratory setting. [5] Another factor which adds some credibility to Dr. Ofshe's testimony is that he has written various articles debunking the repressed memory phenomenon as unsupported by sufficient scientific evidence. This is in sharp contrast to his testimony about the reliability of false confession evidence.	10-30-2013	[ "974 F. Supp. 1198 (1997) UNITED STATES of America, Plaintiff, v. Larry D. HALL, Defendant. No. 94-20036. United States District Court, C.D. Illinois, Peoria Division. August 13, 1997. 1199 Richard H. Parsons, Federal Public Defender, Peoria, IL, Craig H. DeArmond, Kurth & DeArmond, Danville, IL, for Larry D. Hall. Lawrence S. Beaumont, Asst. U.S. Atty., Urbana, IL, for U.S. ORDER McDADE, District Judge. Before the Court is the Government's Motion to Preclude Dr. Ofshe's Testimony at Trial [Doc. # 164]. Dr. Richard Ofshe is a social psychologist operating in the field of coercive police interrogation techniques and the phenomenon of false or coerced confessions. He is prepared to testify that experts in his field agree that false confessions exist, that individuals can be coerced into giving false confessions, and that there exist identifiable coercive police interrogation techniques which are likely to produce false confessions. At Defendant's first trial, the district court rejected Dr. Ofshe's proffered testimony under Fed.R.Evid. 702.", "However, in United States v. Hall, 93 F.3d 1337, 1344-45 (7th Cir.1996), the Seventh Circuit vacated Defendant's conviction and remanded the case to this Court to correct the prior court's \"failure to conduct a full Daubert inquiry, applying the correct legal standards under Rule 702.\" Pursuant to this directive, the Court held an extensive Rule 104(a) hearing to determine the admissibility of Dr. Ofshe's expert testimony. The Government postulates that Defendant must show a scientific basis for Dr. Ofshe's expert opinion because it is based upon \"scientific [] knowledge\" under Rule 702. Conversely, Defendant contends that Dr. Ofshe's expert testimony is derived from a body of \"specialized knowledge\" under Rule 702 whose validity should not be analyzed under the Daubert standard. This case raises a rather perplexing question: to what extent, if any, does Daubert apply to \"soft\" sciences such as social psychology? Scientific v. Specialized Knowledge In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 581, 113 S. Ct. 2786, 2791, 125 L. Ed. 2d 469 (1993), the Supreme Court determined the proper standard \"for admitting expert scientific testimony in a federal trial.\" The Court rejected the Frye 1200 \"general acceptance\" test for the more liberal standard embodied in Fed.R.Evid. 702 that the expert need only testify to \"(1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue.\"", "Daubert, 509 U.S. at 592, 113 S. Ct. at 2796. The Court stated that in order to \"qualify as `scientific knowledge,' an inference or assertion must be derived by the scientific method.\" Id. at 590, 113 S. Ct. at 2795. The Court noted four nonexhaustive factors that would bear on this inquiry: falsifiability, peer review, rate of error and general acceptance. Id. at 593-94, 113 S. Ct. at 2796-97. Rule 702, however, speaks not only of \"scientific\" knowledge but also of \"technical, or other specialized knowledge\" as alternative bases for an expert's opinion.", "The Court in Daubert was careful to point out that its discussion did not reach \"technical\" or \"specialized\" knowledge under the Rule. Id. at 590 n. 8, 113 S. Ct. at 2795 n. 8. Chief Justice Rehnquist's partial dissent noted the problem: Does all of this dicta [regarding the four factors] apply to an expert seeking to testify on the basis of \"technical or other specialized knowledge\" the other types of expert knowledge to which Rule 702 applies or are the \"general observations\" limited only to \"scientific knowledge\"? What is the difference between scientific knowledge and technical knowledge; does Rule 702 actually contemplate that the phrase \"scientific, technical, or other specialized knowledge\" be broken down into numerous subspecies of expertise, or did its authors simply pick general descriptive language covering the sort of expert testimony which courts have customarily received?", "Id. at 600, 113 S. Ct. at 2800 (Rehnquist, J., concurring in part and dissenting in part). Fortunately, four years have passed since the Daubert decision and there is both academic literature and case authority to guide the Court. Two conflicting views have been espoused. The first argues that Rule 702's reference to \"technical, or other specialized knowledge\" does not give courts or litigants an opportunity to circumvent the strict requirements of the scientific method as espoused in Daubert. Rather, \"Rule 702 contemplates a fluid analysis, with a preference for scientific knowledge when it is or should be available.\" David L. Faigman, The Evidentiary Status of Social Science Under Daubert: Is It \"Scientific,\" \"Technical,\" Or \"Other\" Knowledge?, 1 Psychol. Pub.", "Pol'y & L. 960, 979 (1995). Under this view, the Daubert test should be applied to all three types of knowledge specified in Rule 702. Id. at 964. The reference to \"technical, or other specialized knowledge\" merely \"relaxes the requirement for a scientific demonstration when a less rigorous, less time-consuming, and less expensive alternative would provide sufficiently accurate information.\" Thus, for example, a mechanic can testify about his practical knowledge of carburetors without requiring his conclusions to be deduced from the scientific method. Id. at 964. However, the fact that a topic may be too complex for experimental analysis does not justify relaxing the standards of Rule 702 and ignoring Daubert. Id. at 963-64, 979. The second, and in the Court's opinion, the better view, is that testimony which is simply not amenable to the scientific method should not be subjected to the strictures of Daubert and instead can pass as \"specialized knowledge.\" See Jennifer Laser, Inconsistent Gatekeeping in Federal Courts: Application of Daubert v. Merrell Dow Pharmaceuticals, Inc. to Nonscientific Expert Testimony, 30 Loy.", "L.A. L.Rev. 1379 (1997); Teresa S. Renaker, Evidentiary Legerdemain: Deciding When Daubert Should Apply to Social Science Evidence, 84 Cal. L.Rev. 1657 (1996); Edward J. Imwinkelried, The Next Step After Daubert: Developing a Similarly Epistemological Approach to Ensuring the Reliability of Nonscientific Expert Testimony, 15 Cardozo L.Rev. 2271 (1994). These commentators distinguish between those experts who practice Newtonian science, which utilizes the experimental method to validate or disprove hypotheses, and those who acquire their knowledge by formal instruction, experience or observation. The Court in Daubert dealt expressly with Newtonian experimental science when it articulated such considerations as whether the hypothesis is testable (falsifiability), whether it in fact had been tested (peer review), and whether there was a known error rate.", "1201 Daubert, 509 U.S. at 593-94, 113 S. Ct. at 2796-97. These concerns have little or no application to nonscientific expert evidence. The Sixth Circuit has noted that application of these factors to nonscientific evidence would \"turn Daubert, a case intended to relax the admissibility requirements for expert scientific evidence, on its head.\" United States v. Jones, 107 F.3d 1147, 1157-58 (6th Cir. ), cert. denied, ___ U.S. ___, 117 S. Ct. 2527, 138 L. Ed. 2d 1027 (1997). One way to distinguish between \"hard\" scientific testimony and \"other specialized knowledge\" is to look to the purpose for which the evidence is being introduced. If the testimony posits an explanatory theory to draw a conclusion or determine causation in a particular case, this would normally require experimental verification, the focal point of Newtonian science. Conversely, if the testimony involves a simple correlational study between different factors or events, without attempting to determine causation, there is no need for experimental verification and it can be classified as specialized knowledge.", "See Nations v. State, 944 S.W.2d 795, 800-01 (Tex.Ct.App.-Austin 1997); Renaker, Evidentiary Legerdemain, 84 Cal. L.Rev. at 1686-91. Another distinguishing factor is whether such knowledge can be derived from experience or training as opposed to controlled experimentation. The analogy in Berry v. City of Detroit, 25 F.3d 1342, 1349-50 (6th Cir.1994), is particularly apt: The distinction between scientific and nonscientific expert testimony is a critical one. By way of illustration, if one wanted to explain to a jury how a bumblebee is able to fly, an aeronautical engineer might be a helpful witness. Since flight principles have some universality, the expert could apply general principles to the case of the bumblebee. Conceivably, even if he had never seen a bumblebee, he still would be qualified to testify, as long as he was familiar with its component parts. On the other hand, if one wanted to prove that bumblebees always take off into the wind, a beekeeper with no scientific training at all would be an acceptable expert witness if a proper foundation were laid for his conclusions.", "The foundation would not relate. to his formal training, but to his firsthand observations. In other words, the beekeeper does not know any more about flight principles than the jurors, but he has seen a lot more bumblebees than they have. See also Faigman, The Evidentiary Status of Social Science, 1 Psychol. Pub. Pol'y & L. at 964. While these distinctions may in time prove to be overly simplistic, they are a sufficient starting point for the Court's analysis here. A number of courts have recognized these distinctions and have refused to apply the four factors specified in Daubert to expert testimony which is not easily subjected to the experimental method of the \"hard\" sciences. See, e.g., Jones, 107 F.3d at 1157-58 (handwriting analysis); Tyus v. Urban Search Mgmt., 102 F.3d 256, 263-64 (7th Cir.1996), cert.", "denied, ___ U.S. ___, 117 S. Ct. 2409, 138 L. Ed. 2d 175 (U.S.1997) (impact of advertisements upon viewers of different races); Roback v. V.I.P. Transp. Inc., 90 F.3d 1207, 1215-16 (7th Cir.1996) (measurement of truck performance taken by expert's self-designed equipment); United States v. Williams, 81 F.3d 1434, 1441-42 (7th Cir. 1996) (translation of gang code); United States v. Sinclair, 74 F.3d 753, 757 (7th Cir.1996) (legal expert); United States v. Velasquez, 64 F.3d 844, 850 (3d Cir.1995) (applying Daubert to handwriting analysis only as \"an exercise in caution\"); Iacobelli Constr., Inc. v. County of Monroe, 32 F.3d 19, 25 (2d Cir.1994) (geotechnical and underground construction experts); Waitek v. Dalkon Shield Claimants Trust, 934 F. Supp. 1068, 1087 n. 10 (N.D.Iowa 1996) (medical testimony about problems with contraceptive device), aff'd, 114 F.3d 117 (8th Cir.1997) (per curiam); United States v. Starzecpyzel, 880 F. Supp. 1027, 1039-41 (S.D.N.Y. 1995) (handwriting analysis); Nations, 944 S.W.2d at 800-01 (eyewitness identifications).", "[1] 1202 This is not to say, however, that Daubert is wholly inapplicable to non-Newtonian scientific testimony. Indeed, the Seventh Circuit has expressly held that \"the Daubert frame-work is appropriate for all kinds of expert testimony.\" Tyus, 102 F.3d at 263; American Int'l Adjustment Co. v. Galvin, 86 F.3d 1455, 1465 (7th Cir.1996) (Posner, J., dissenting). Thus, for instance, the Seventh Circuit has applied Daubert to a psychologist's testimony on the impact of advertisements upon viewers of different races, Tyus, 102 F.3d at 263-64, an expert on measuring truck performance, Roback, 90 F.3d at 1215, a cardiologist's testimony about the nicotine patch causing a patient's heart attack, Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 318-19 (7th Cir. ), cert. denied, ___ U.S. ___, 117 S. Ct. 73, 136 L. Ed. 2d 33 (1996), and an accountant's testimony about generally accepted auditing standards. Frymire-Brinati v. KPMG Peat Marwick, 2 F.3d 183, 186-87 (7th Cir.1993). [2] However, Daubert is only applicable to these cases in the general sense that all expert testimony must be subjected to the strictures of Rule 702 \"to be sure that the person possesses genuine expertise in a field and that her court testimony `adheres to the same standards for intellectual rigor that are demanded in [her] professional work.'\" Tyus, 102 F.3d at 263 quoting Braun v. Lorillard Inc., 84 F.3d 230, 234 (7th Cir. ), cert.", "denied, ___ U.S. ___, 117 S. Ct. 480, 136 L. Ed. 2d 375 (1996). Thus, the measure of intellectual rigor will vary by the field of expertise and by the way in which such expertise can be demonstrated. Id. To sum up, the four factors laid out in Daubert must be applied when an expert bases his testimony on scientific hypotheses which are capable of being refuted by controlled experimentation. However, these factors may be applied in differing degrees when it comes to non-Newtonian science or \"other specialized knowledge.\" Fed.R.Evid. 702. The only thing that remains constant for all forms of expert testimony is that there must be some degree of reliability of the expert and the methods by which he has arrived at his conclusions. This criterion for admissibility derives from Rule 702 itself as well as the implications of the Daubert opinion.", "Jones, 107 F.3d at 1156. Application of Daubert to the Social Sciences At this broad level of generality, Daubert's framework applies to the social sciences. Tyus, 102 F.3d at 263. Yet, the question remains, how reliable must social science evidence be before it is admissible as \"specialized knowledge\" under Rule 702? Moreover, even if the body of specialized knowledge is reliable, what qualifies this particular expert to testify about it? Id. ; Hall, 93 F.3d at 1342-43. To answer the first question, the Court must look to the particular field of social science at issue and determine the reliability of the methods by which scientists[3] in that field make their findings. Many social scientists rely primarily on real-world experience rather than experimentation to arrive at their conclusions.", "[4] Imwinkelried, The Next Step After Daubert, 15 Cardozo L.Rev. at 2289. Such experiences might be personal or vicarious. Id. However, certain quantitative and qualitative requirements must be placed upon those experiences before they can rise to the level of reliable specialized knowledge. There must be a threshold number of experiences from which the expert's knowledge is drawn. Id. at 2290-92. In addition, those experiences must be sufficiently similar in nature to form a valid basis for comparison.", "Id. at 2292-94. 1203 The primary method for analyzing and comparing real-world experiences is systematic observation and analysis. Like the bumblebee analogy set forth in Berry, 25 F.3d at 1349-50, social scientists testify from a practical standpoint about the human behavior they observe. Unlike the beekeeper however, social scientists write scholarly articles about their observations which are subjected to peer review by others in their profession. This process of sharing one's findings with peers and having it critiqued by them may eventually lead to a common body of knowledge worthy of being called a \"science,\" albeit not a \"hard\" science. such as physics. In any field of social science, an expert should have to testify, at a minimum, to the longevity of that particular field, the amount of literature written about the subject, the methods of peer review among its scholarly journals, the quantity of observational or other studies conducted in that field, the comparative similarity of observations obtained, the reasons why those studies are deemed valid and reliable, and the general consensus or debate as to what the raw data means. In addition, the particular expert who wishes to testify must establish that he is sufficiently familiar with the topics mentioned above to render an informed opinion about them. It would also be helpful, but not necessary, to show that the proposed expert personally contributed to the field about which he is testifying, either through personal observation or by publication of an article, book or treatise on the subject.", "Admittedly, this list is not exhaustive, but it is a starting point. Hopefully, the federal courts will be able to develop a more accurate understanding of how social science data should be analyzed under Rule 702. Until that time comes, the Court will have to satisfy itself with the general factors noted above to make an informed judgment about the reliability of the social science testimony being offered. Admissibility of False Confession Expert Testimony Dr. Ofshe has been proffered by Defendant as an expert on false confessions and the factors which allow them to occur. He has a doctoral degree in social psychological from Stanford University and has taught psychological research methods at the University of California at Berkeley. He has received a number of prestigious honors in his field. He also serves on the editorial boards of numerous publications dealing with sociology and social psychology and has engaged in peer reviews of such articles. In addition, he has served as a consultant on the issue of influence in interrogations for federal and state law enforcement agencies across the country. Throughout his 35-year academic career, Dr. Ofshe has researched the subject of influence and decision-making.", "For the past 25 years, he has focused on extreme forms of influence, such as coercion, and for the past 10 years, he has dealt specifically with the use of coercion in police interrogations. He has also written numerous articles on these topics and presented papers at the meetings of various scientific associations. He has personally evaluated at least 126 separate interrogations and has testified about the subject of influence in interrogation at least 68 times in state and federal courts throughout the country. At the Rule 104(a) hearing, Dr. Ofshe testified at length about the development of the study of false confessions within the field of social psychology.", "He testified that social psychology is a hybrid between sociology and psychology, with some influence drawn from modern economic theory. The use of coercive techniques in interrogation is an established topic within the field of social psychology and draws on principles of rational decision making, perception and interpersonal influence. As an example of how vast the studies of this particular topic have been, Dr. Ofshe cited to Professor Gisli H. Gudjonsson's textbook entitled, \"The Psychology of Interrogations, Confessions and Testimony\" (Def.Ex. # 7) which references between 900 and 1,000 separate articles on the subject. Defendant also introduced into evidence over thirty separate articles and formal presentations about false confessions. According to Dr. Ofshe, the study of false confessions generally involves the systematic observation of real-world interrogations. This is a method generally accepted as reliable by the community of social psychologists 1204 in this field. The researcher initially obtains documented cases in which an innocent person has confessed to the crime. For instance, the researcher may look at cases in which another person subsequently confesses and is convicted of the crime or in which it is revealed, through DNA evidence or otherwise, that the defendant could not have committed the crime. Dr. Ofshe hypothesizes, and his peers appear to agree, that the major analytical method for determining the existence of a false confession is the post-admission narrative statement.", "In this technique, the confessor is asked about the details of the crime about which he has just confessed. If he relates facts that only the murderer would know, he must be guilty. If he relates facts inconsistent with the evidence at the crime scene, he is probably confessing falsely. Once it is established through a post-admission narrative statement that a false confession has occurred, the researcher then analyzes the interrogation process, either by reviewing it on audio or videotape or by having the parties recall the details of the interrogation. Documented factors are systematically analyzed to see whether they correlate with the existence of a false confession. Dr. Ofshe testified that no one factor or combination of factors could guarantee a false confession but that some factors might heighten the likelihood of one.", "While a number of factors were present in both true and false confession cases, a major distinguishing factor for false confessions is the interrogator's continued use of coercion either through false accusations or false promises of leniency. The idea is that a guilty person will more likely \"crack\" under the pressure or make a rational decision to choose the more lenient option sooner than an innocent person would. In analyzing this type of data, some researchers have utilized statistical correlational techniques whereby they divide individuals by their personality traits or by their intelligence and then demonstrate the probability of those subjects complying with the interrogator. This is not an experimental method because the researcher does not manipulate the variables.", "Rather, it involves the use of observation and systematic analysis of persons with different traits. Dr. Ofshe also testified that low-level laboratory experimentation has been conducted in this field. However, he admits that these experiments alone are not sufficiently reliable to support his findings. Even Professor Saul M. Kassin, who conducted many of these experiments, points out that various factors may have skewed the results, such as the use of college students as subjects (Govt. Ex. # 2, at 249-50) and the nature of the acts involved (Def. Ex.", "# 19, at 127). Professor Kassin even goes so far as to admit that \"the current empirical foundation may be too meager to support recommendations for reform or qualify as a subject of `scientific knowledge' according to the criteria recently articulated by the U.S. Supreme Court\" in Daubert. (Govt. Ex. # 1, at 231). Dr. Ofshe explained that the reason no laboratory studies could be conducted in real life situations is that it would be unethical. He stated that \"people think of experiments as the be all and end all of science ... That is simply not the case.", "And the entire social science enterprise is based on the use of a variety of different methods, that's so fundamental, and.. I'm simply saying that ... given the problems that arise in doing particularly social science research, we cannot do the things to people that we can even do to animals.\" He concluded that \"observation in the organization of reliable, of regular phenomenon is fundamental to the whole social science enterprise.\" Dr. Ofshe testified that the studies based upon observational data are subjected to a process of peer review within the social psychologist community. Authors generally respond to the criticisms of their peers before actually publishing the paper. He further testified that there is no dispute in the scientific community that false confessions do exist and that studying things such as coercion and the post-admission narrative statement is the proper method of analyzing whether and why they occur. The Government's witness, Dr. Frank Horvath, who has a doctoral degree in criminal justice and criminology, claims that there is no scientific basis for the use of the post-admission narrative statement as a method by which to determine the falsity of a confession.", "1205 However, it is only common sense that a person who does not give accurate information about the crime may in fact not be guilty of that crime. While such a person may simply be withholding evidence or purposely giving false details, this risk does not destroy the validity of the original hypothesis that more likely than not, the person is innocent. The Court does not require a separate scientific basis for the use of post-admission narrative statements, which is only a technique by which social psychologists in this field gather their data. Dr. Ofshe discussed his reluctance to state an ultimate opinion in the courtroom as to whether a false confession has actually occurred in any particular case.", "He would rather indicate to the jury the possibility of such a confession given the factors which have been systematically correlated to the existence of a false confession. Such restraint in the area of causation increases the reliability of Dr. Ofshe's testimony. In light of this testimony, the Court finds that Dr. Ofshe is qualified as an expert in the field of coercive police interrogation techniques which may lead to false confessions. The Court further finds that the science of social psychology, and specifically the field involving the use of coercion in interrogations, is sufficiently developed in its methods to constitute a reliable body of specialized knowledge under Rule 702.", "While Dr. Ofshe and his peers utilize observational, as opposed to experimental, techniques, this is wholly acceptable in the established field of social psychology. [5] The Court cautions Defendant, however, that it will hold Dr. Ofshe to his word that he will only testify to the correlation between false confessions and the various factors espoused by him. Thus, he can testify that false confessions do exist, that they are associated with the use of certain police interrogation techniques, and that certain of those techniques were used in Hall's interrogation in this case. Dr. Ofshe cannot explicitly testify about matters of causation, specifically, whether the interrogation methods used in this case caused Hall to falsely confess.", "Without experimental verification, such testimony would be speculative and prejudicial. Dr. Ofshe will simply provide the framework which the jury can use to arrive at its own conclusions. Just as important, Dr. Ofshe cannot testify about the specifics of the post-admission narrative statement in this case. Such an endeavor would require Dr. Ofshe to assess the inconsistencies between Hall's statements to the police and the evidence presented at trial. Dr. Ofshe has no more expertise to perform this task than any juror. It is beyond Dr. Ofshe's knowledge as a social psychologist to assess the weight of the evidence and the credibility of witnesses. Of course, Dr. Ofshe can speak of the post-admission narrative statement as a technique by which social psychologists screen out true from false confessions in order to form systematic observations about them. He may even hypothesize to the jury that the post-admission narrative statement is a valid method by which to test the truth or falsity of a confession.", "However, he cannot go so far as to analyze Hall's post-admission narrative statement in this manner. That task is for the jury alone. One final limitation, and one which the Court does not believe is in dispute, is that Dr. Ofshe cannot testify to Hall's psychological or psychiatric impairments or the effect of these impairments upon his likelihood of confessing falsely. Dr. Ofshe is not a clinical psychologist nor a psychiatrist and has no expertise in this area.", "Helpful to the Trier of Fact In addition to requiring that the proposed expert be knowledgeable about the particular matter at issue and that his methods be reliable, Rule 702 also requires that his testimony \"will assist the trier of fact to understand the evidence or to determine a fact in issue.\" Fed.R.Evid. 702. The Seventh Circuit has indicated that social scientists in particular may be able to show that commonly accepted explanations for behavior are, 1206 when studied more closely, inaccurate. Tyus, 102 F.3d at 263; Hall, 93 F.3d at 1345. Dr. Ofshe testified that a common misperception among the public is that once a person confesses to his guilt, he must be guilty. Dr. Ofshe's expert testimony challenges this perception based on systematic observation of data to which the jury is not privy. If Defendant presents admissible testimony to show that the police used coercive interrogation techniques in his case, this would make Dr. Ofshe's expert testimony helpful to the trier of fact.", "The problem is that Hall's account of the interrogation was given to his lawyer without having him swear under oath to the truth of that testimony. Moreover, Hall's testimony was not subject to cross-examination by the Government. Thus, the interview is not presently admissible. Unless Defendant can introduce some admissible testimony regarding the manner in which the interrogation occurred, such as testifying on the stand, the jury will not hear any evidence of coercive interrogation techniques and Dr. Ofshe's testimony would be rendered irrelevant. Even if admissible evidence of coercive interrogation techniques are introduced, the Court reminds Defendant that Dr. Ofshe cannot testify about the significance of the post-admission narrative statement in Hall's case. Far from assisting the jury, such testimony would unduly usurp the jury's role as the trier of fact and cloak his factual determinations in the guise of expert testimony. Such testimony would simply be too prejudicial under Fed.R.Evid.", "403 and will not be allowed. CONCLUSION IT IS THEREFORE ORDERED that the Government's Motion to Preclude Dr. Ofshe's Testimony at Trial [Doc. # 164] is DENIED except to the extent discussed in this Order. NOTES [1] But see Deimer v. Cincinnati Sub-Zero Prods., Inc., 58 F.3d 341, 344-45 (7th Cir.1995) (applying Daubert to proposed negligence causation expert); O'Conner v. Commonwealth Edison Co., 13 F.3d 1090, 1105-07 (7th Cir.1994) (applying Daubert to physician's testimony that patient's cataracts were caused by radiation). [2] In Williams, 81 F.3d at 1441-42, and Sinclair, 74 F.3d at 757-58, the Seventh Circuit rejected the application of Daubert altogether.", "This seeming inconsistency may be explained by the fact that the proffered experts in those cases relied entirely upon their personal experience and training and did not purport to be practicing any sort of systematic analysis. Williams involved an expert in gang language and Sinclair involved a legal expert. [3] The Court uses the terms \"scientist\" and \"science\" in the non-Newtonian sense here, for these words cannot be so narrowly confined. [4] One major reason for this is the ethical implications of experimenting on human beings. Another is the inherent complexity of isolating human behavioral characteristics in the laboratory setting. [5] Another factor which adds some credibility to Dr. Ofshe's testimony is that he has written various articles debunking the repressed memory phenomenon as unsupported by sufficient scientific evidence. This is in sharp contrast to his testimony about the reliability of false confession evidence." ]	https://www.courtlistener.com/api/rest/v3/opinions/1451228/	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 . 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 25 July 2022 has been entered. Status of Claims This action is in reply to the amendment and response filed on 25 July 2022. Claims 1-2, 5, 11, 13, 16, and 20 have been amended and are hereby entered. Claim 3 has been cancelled Claims 1-2, and 4-22 are currently pending and have been examined. Response to Arguments and Amendments Claim Objections Claims 5 and 16 were objected to for informalities. Applicant’s amendments to claims 5 and 16 have overcome the claim objectiosn. Accordingly, the objection to claims 5 and 16 has been hereby withdrawn. Claim Rejections - 35 USC § 112 Claims 1-22 were rejected under 35 USC § 112(a) as failing to comply with the written description requirement. Applicant’s arguments, see page 6, filed 25 July 2022, with respect to the 35 USC § 112(a) have been fully considered and are persuasive. Accordingly, the rejection of claims 1-22 under 35 USC § 112(a) has been withdrawn. Claims 1-22 were rejected under 35 USC § 112(b). Applicant's arguments, see page 6-7 and filed 25 July 2022 have been fully considered and are persuasive. Accordingly, the rejection of claims 1-22 under 35 USC § 112(b) has been withdrawn. Claim Rejections - 35 USC § 102 and 103 Applicant's arguments filed 25 July 2022 have been fully considered but they are not persuasive. Applicant argues that Sant teaches “a data stream of a plurality of waypoint definitions”. The Examiner agrees, but also notes that Sant teaches that waypoints can be uploaded at any rate and any number of them “though in some embodiments some limitations may be imposed by buffer size or other memory constraints” and “Because the mission generator and mission follower operated independently (e.g. asynchronously…) and are not affected by the rate at which the waypoints are received.” See Sant ¶¶ 51 and 52. While not explicitly argued, the examiner notes that a new grounds of rejection has been applied to claims in view of the amendment (though the reference was previously cited and relied upon for the same feature). The examiner relies upon Mong to teach wherein the first navigation computing device is configured to schedule on a best-effort schedule (see rejection below). Applicant also argues that Sant teaches that the commands may be calculated at a regular frequency. The examiner agrees, and relies upon this recitation only to read on the limitation that “the steering commands are generated at a periodic rate”. The Applicant does not provide a specific argument with respect to claim 20, however, a new grounds of rejection has been applied to these claims as well which addresses the newly added limitations. Priority Applicant’s claim for the benefit of a prior-filed application under 35 U.S.C. 119(e) or under 35 U.S.C. 120, 121, 365(c), or 386(c) is acknowledged. Applicant has not complied with one or more conditions for receiving the benefit of an earlier filing date under 35 U.S.C. 119(e) as follows: The later-filed application must be an application for a patent for an invention which is also disclosed in the prior application (the parent or original nonprovisional application or provisional application). The disclosure of the invention in the parent application and in the later-filed application must be sufficient to comply with the requirements of 35 U.S.C. 112(a) or the first paragraph of pre-AIA 35 U.S.C. 112, except for the best mode requirement. See Transco Products, Inc. v. Performance Contracting, Inc., 38 F.3d 551, 32 USPQ2d 1077 (Fed. Cir. 1994). The disclosure of the prior-filed application, Application No. 62/731698, fails to provide adequate support or enablement in the manner provided by 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph for one or more claims of this application. The provisional application does not disclose a First-In-First-Out queue (as claimed in at least claims 7-9). The provisional application does not disclose a time partitioned operating system (as claimed at least in claim 18, 19). Further, while the provisional application discloses that the first computing device may be a non-real time computer. The provisional does not disclose that the first navigation computing device is configured to generate the geo-location waypoints for a path in a non-real time domain (as generally claimed by claim 1, 13, and 20, and their dependent claims). Accordingly, claims 1-22 are not entitled to the benefit of the prior application. Claim Interpretation Claim 1 and claim 13 recite “the first navigation computing device is configured to generate the time series of geo-location waypoints on a best-effort schedule controlled by buffering protocol communications indicating a current capacity of the input buffer”. The instant application does not provide support for generating the time series of geo-location waypoints on a best-effort schedule controlled by buffer protocol communications indicating a current capacity of the input buffer. Particularly, the examiner notes that claim 20, contradicts claims 1 and 13, in reciting that the waypoints are pushed (e.g. transmitted) on a best effort schedule. Further, the first navigation device is described as transmitting the time series of geo-location waypoints by buffering protocol (see for example ¶23 “If input queue 105 in steering computer 103 is full, or steering computer 103 is busy, smart device 106 will hold-off transmitting additional waypoints 114 and wait before querying steering computer 103 again. This buffering protocol allows use of a low-cost shallow buffer depth for waypoint queue 105 in steering computer 103.”). Finally, the examiner notes that the instant application does not further describe what is considered a “best-effort schedule” and the term only appears once in the specification (see ¶ 28). Therefore, the examiner believes that the Applicant intended the term to be an art-recognized terminology, and interpreted accordingly. The associated art-recognized meaning is related to transmittal of data, not the generation of data. Accordingly, the examiner will interpret the term “generate” as used in claim 1, line 9 and claim 13, line 8 to be “transmit”. 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 1-2, and 4-19 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. Claim 1 and claim 13 recite “the first navigation computing device is configured to generate the time series of geo-location waypoints on a best-effort schedule controlled by buffering protocol communications indicating a current capacity of the input buffer”. The instant application does not provide support for generating the time series of geo-location waypoints on a best-effort schedule controlled by buffer protocol communications indicating a current capacity of the input buffer. Particularly, the examiner notes that claim 20, contradicts claims 1 and 13, in reciting that the waypoints are pushed (e.g. transmitted) on a best effort schedule. Further, the first navigation device is described as transmitting the time series of geo-location waypoints by buffering protocol (see for example ¶23 “If input queue 105 in steering computer 103 is full, or steering computer 103 is busy, smart device 106 will hold-off transmitting additional waypoints 114 and wait before querying steering computer 103 again. This buffering protocol allows use of a low-cost shallow buffer depth for waypoint queue 105 in steering computer 103.”). Finally, the examiner notes that the instant application does not further describe what is considered a “best-effort schedule” and the term only appears once in the specification (see ¶ 28). Therefore, the examiner believes that the Applicant intended the term to be an art-recognized terminology, and interpreted accordingly. The associated art-recognized meaning is related to transmittal of data, not the generation of data. The examiner respectfully requests that Applicant provide support for this amendment and any subsequently provided amendment. Claims 2-12 and 14-19 depend from claim 1, and 13, respectively, and are similarly rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, based on their dependency. 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, 4-8, 13, 15, 16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Sant et al. (US PG Pub. 2019/0332105, hereinafter "Sant") in view of Mong et al. (Pub. No.: US 2018/01237039 A1, hereinafter “Mong”). With respect to claim 1, Sant discloses a system comprising: a first navigation computing device (see at least Sant Fig. 1, client device 110) configured to, in a non-real time domain (see at least Sant, Fig. 5A, WP buffer 416), generate a time series (see at least Sant Fig. 5A and 5B, WP1, WP1, WP2, WP3, WP4, shown received and executed sequentially and ¶46, “FIGS. 5A and 5B illustrate a sequence diagram of communication”) of geo-location waypoints for a path (see at least Sant ¶ 40; “As shown, in some embodiments, waypoints may be received from client device 110 via a remote control 111 and communication system 120A, 120B”). and a second steering computing device (see at least Sant Fig. 1, FC 114 or alternatively, in some embodiments FC114 and Onboard computing device 112, See ¶38 “In some embodiments, the application processor 202, flight controller 114, and onboard computing device 112 can be implemented as separate devices (e.g., separate processors on separate circuit boards). Alternatively, one or more of the application processor 202, flight controller 114, and onboard computing device can be implemented as a single device, such as an SoC.”) including an input buffer (see at least Sant Fig. 1 WP Buffer 416 and/or Trajectory Buffer 420) wherein the second computing device is configured to, in a real time domain, generate steering commands for steering a vehicle (see at least Sant Fig. 1, movable object 104, ¶¶ 23, 24 “Although the movable object 104 is described generally as an aircraft, this is not intended to be limiting, and any suitable type of movable object can be used… The movement mechanisms 116 can include one or more of rotors, propellers, blades, engines, motors, wheels, axles, magnets, nozzles, animals, or human beings.”) based on the geo-location waypoints in the input buffer (see at least Sant ¶ 32 “Flight controller 114 provides high speed, real time control of the movement mechanisms 116.”). wherein the steering commands are generated at a period rate (see at least Sant ¶ 33 “In some embodiments, these commands may be calculated at a regular frequency (e.g., 50Hz)”) Flight controller 114 provides high speed, real time control of the movement mechanisms 116.”), and the first navigation computing device is configured to transmit the time series of geo-location waypoints by buffering protocol communications indicating a current capacity of the input buffer (see at least Sant Figure 5A which shows feedback 516 that mission is complete (and subsequently further waypoints being transmitted). The examiner notes that the feedback that a mission is complete impacts the current capacity of the input buffer (e.g. one less item in the buffer), and thus, corresponds to Applicant’s recitation communications indicating a current capacity of the input buffer see also the accompanying paragraphs ¶¶ 51 and 52 “feedback 516 can be returned to the client device, the feedback may include current position, mission progress. etc.” and further discusses that waypoints can be uploaded at any rate and any number of them “though in some embodiments some limitations may be imposed by buffer size or other memory constraints” and “Because the mission generator and mission follower operated independently (e.g. asynchronously…) and are not affected by the rate at which the waypoints are received. The examiner notes that while the communication in Sant is not described explicitly a “buffering protocol communication”, the instant application has not defined a “buffering protocol communication” beyond the discussion of buffering protocol in ¶23, and indicates that buffering protocol includes holding off transmitting additional waypoints. Accordingly, the description of Sant aligns with the Applicants discussion of buffering protocol.). Sant does not explicitly teach wherein the first navigation computing device is configured to schedule on a best-effort schedule. However, this feature is taught by Mong (see at least Mong ¶106 As described above, the time sensitive communications may be communications with devices that need to be completed in a short period of time (e.g., within a designated period of time, such as thirty milliseconds) to ensure that the vehicle is safely controlled, while best effort and/or rate constrained communications may not need to be completed within such short periods of time. ¶316. Some signals are classified as time-critical traffic while other signals are classified as best effort traffic. The time-critical traffic can be data signals that need or are required to be communicated at or within designated periods of time to ensure the safe operation of a powered system, such as a rail vehicle (e.g., a locomotive), a mining vehicle (or other off-highway vehicle), a marine vessel, or the like. The best effort traffic includes data signals that are not required to ensure the safe operation of the powered system, but that are communicated for other purposes (e.g., monitoring operation of components of the powered system). Therefore, it would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify the invention of Sant with the aforementioned features of Mong to allow for efficient schedule of communication allowing time sensitive communications for safety to be transmitted in a timely manner (see at least Mong ¶9 “Additionally, some scheduling systems generate schedules that assume fixed communication paths through the TSN. This can result in inefficient and/or ineffective schedules for communications. As a result, some time sensitive communications may not reach addressed recipients (e.g., readers) in time and/or an unnecessarily reduced amount of bandwidth may be available for use by non-time sensitive communications, such as rate constrained communications and “best effort” communications.) With respect to claim 2, the combination of Sant and Mong teach wherein the first navigation computing device is configure to run path planning software on the best-effort schedule (see at least Mong ¶106 As described above, the time sensitive communications may be communications with devices that need to be completed in a short period of time (e.g., within a designated period of time, such as thirty milliseconds) to ensure that the vehicle is safely controlled, while best effort and/or rate constrained communications may not need to be completed within such short periods of time. ¶316. Some signals are classified as time-critical traffic while other signals are classified as best effort traffic. The time-critical traffic can be data signals that need or are required to be communicated at or within designated periods of time to ensure the safe operation of a powered system, such as a rail vehicle (e.g., a locomotive), a mining vehicle (or other off-highway vehicle), a marine vessel, or the like. The best effort traffic includes data signals that are not required to ensure the safe operation of the powered system, but that are communicated for other purposes (e.g., monitoring operation of components of the powered system). With respect to claim 4, the combination of Sant and Mong teach the system of claim 1, wherein the first navigation computing device operates on a handheld smart device and the second steering computing device operates on a dedicated vehicle steering control system coupled to a steering actuator that steers the vehicle based on the steering commands (see at least Sant, ¶21 “As shown in FIG. 1, the client device 110 can be a portable personal computing device, a smart phone, a remote control, a wearable computer, virtual reality/augmented reality system, and/or a personal computer” and ¶ 25 “In some embodiments, the movement mechanisms 116 can enable the movable object 104 to take off vertically from a surface or land vertically on a surface without requiring any horizontal movement of the movable object 104 … One or more of the movement mechanisms 104 may be controlled independently of the other movement mechanisms, for example by application 102. Alternatively, the movement mechanisms 116 can be configured to be controlled simultaneously. For example, the movable object 104 can have multiple horizontally oriented rotors that can provide lift and/or thrust to the movable object. The multiple horizontally oriented rotors can be actuated to provide vertical takeoff, vertical landing, and hovering capabilities to the movable object 104. In some embodiments, one or more of the horizontally oriented rotors may spin in a clockwise direction, while one or more of the horizontally rotors may spin in a counterclockwise direction… As discussed further herein, a controller, such as flight controller 114, can send movement commands to the movement mechanisms 116 to control the movement of movable object 104. These movement commands may be based on and/or derived from instructions received from client device 110, onboard computing device 112, or other entity.”). With respect to claim 5, the combination of Sant and Mong teach the system of claim 1, wherein where first navigation computing device transmits the geo-location waypoints to the input buffer over a wireless network (see at least Sant ¶22 “In accordance with various embodiments of the present invention, the communication link 106 can be (part of) a network, which is based on various wireless technologies, such as the WiFi, Bluetooth, 3G/4G, and other radio frequency technologies.”). With respect to claim 6, the combination of Sant and Mong teach the system of claim 1, wherein the first navigation computing device transmits the geo-location waypoints in batches to the input buffer in the second steering computing device (see at least Sant ¶¶ 41 and 47 “The waypoints may be configured individually or in batches.” “The waypoints may be transferred one at a time, or in a batch event, or in multiple batches optionally separated by intervals. For missions when all waypoints are not known in advance, definitions for future waypoints may be received by the onboard data manager from a client device while current waypoints are being executed by the onboard data manager and the movable object (e.g., waypoint streaming)”). With respect to claim 7, the combination of Sant and Mong teach the system of claim 1, wherein the second steering computing device uses the input buffer as a First-In-First-Out queue for processing the geo-location waypoints (See at least Sant ¶52 “As shown in FIG. 5A, additional waypoints 3-N may be streamed at 522-432 and added to waypoint buffer 416. As shown in FIG. 5B, and as discussed above, mission generator 406 may then begin generating movement commands to navigate the movable object from waypoint 1 to waypoint 3, waypoint 3 to waypoint 4, and waypoint 4 to waypoint N. As the trajectory data is generated 533, 535, 537, the trajectory data can be streamed 534, 536, 538 to mission follower 408 and added to trajectory buffer 420.”) With respect to claim 8, the combination of Sant and Mong teach the system of claim 7, wherein the second steering computing device is configured to send status messages to the first navigation computing device indicating when the First-In-First-Out queue is ready to accept additional geo- location waypoints (See at least Sant ¶51 and Fig 5A “Feedback 516 can be returned to the client device, the feedback may include current position, mission progress, etc. Once the movable object is determined to have reached a waypoint, or within a configurable distance of the waypoint, the action defined in the waypoint definition can be performed 518. Action feedback 520 may then be returned to client 110. The action feedback may indicate whether the action has been successfully completed and/or may include action data, such as images or video data. In some embodiments, when an action is performed, a callback function may be executed to a user OS package where a custom action is defined.”). With respect to claim 13, Sant discloses a method for steering a vehicle, comprising: using a first program (see at least Sant Fig. 1, client device 110) to, in a non-real time domain (see at least Sant, Fig. 5A, WP buffer 416), generate a time series of future geo-location waypoints for a selected vehicle path (see at least Sant Fig. 5A and 5B, WP1, WP1, WP2, WP3, WP4, shown received and executed sequentially and ¶46, “FIGS. 5A and 5B illustrate a sequence diagram of communication”) and transmitting the geo-location waypoints over a communication channel to an asynchronous buffer (see at least Sant ¶ 40; “As shown, in some embodiments, waypoints may be received from client device 110 via a remote control 111 and communication system 120A, 120B”)); and using a second program to (see at least Sant ¶38 and ¶93, “application processor”, “performed in, using, or with the assistance of…software...” and Fig. 1, FC 114 or alternatively, in some embodiments FC114 and Onboard computing device 112, See ¶38 “In some embodiments, the application processor 202, flight controller 114, and onboard computing device 112 can be implemented as separate devices (e.g., separate processors on separate circuit boards). Alternatively, one or more of the application processor 202, flight controller 114, and onboard computing device can be implemented as a single device, such as an SoC.”), in a real time domain, generate steering commands for steering the vehicle (see at least Sant Fig. 1, movable object 104, ¶¶ 23, 24 “Although the movable object 104 is described generally as an aircraft, this is not intended to be limiting, and any suitable type of movable object can be used… The movement mechanisms 116 can include one or more of rotors, propellers, blades, engines, motors, wheels, axles, magnets, nozzles, animals, or human beings.”) based on the geo-location waypoints in the asynchronous buffer (see at least Sant ¶ “Flight controller 114 provides high speed, real time control of the movement mechanisms 116.”). wherein the steering commands are generated at a period rate (see at least Sant ¶ 33 “In some embodiments, these commands may be calculated at a regular frequency (e.g., 50Hz)”) Flight controller 114 provides high speed, real time control of the movement mechanisms 116.”), and the first navigation computing device is configured to transmit the time series of geo-location waypoints by buffering protocol communications indicating a current capacity of the input buffer (see at least Sant Figure 5A which shows feedback 516 that mission is complete (and subsequently further waypoints being transmitted). The examiner notes that the feedback that a mission is complete impacts the current capacity of the input buffer (e.g. one less item in the buffer), and thus, corresponds to Applicant’s recitation communications indicating a current capacity of the input buffer see also the accompanying paragraphs ¶¶ 51 and 52 “feedback 516 can be returned to the client device, the feedback may include current position, mission progress. etc.” and further discusses that waypoints can be uploaded at any rate and any number of them “though in some embodiments some limitations may be imposed by buffer size or other memory constraints” and “Because the mission generator and mission follower operated independently (e.g. asynchronously…) and are not affected by the rate at which the waypoints are received. The examiner notes that while the communication in Sant is not described explicitly a “buffering protocol communication”, the instant application has not defined a “buffering protocol communication” beyond the discussion of buffering protocol in ¶23, and indicates that buffering protocol includes holding off transmitting additional waypoints. Accordingly, the description of Sant aligns with the Applicants discussion of buffering protocol.). The examiner notes that Sant discloses that the client, flight controller, and onboard computing device can be performed with software (see at least Sant ¶38 and ¶93, “application processor”, “performed in, using, or with the assistance of…software...”). Sant does not explicitly teach wherein the first navigation computing device is configured to schedule on a best-effort schedule. However, this feature is taught by Mong (see at least Mong ¶106 As described above, the time sensitive communications may be communications with devices that need to be completed in a short period of time (e.g., within a designated period of time, such as thirty milliseconds) to ensure that the vehicle is safely controlled, while best effort and/or rate constrained communications may not need to be completed within such short periods of time. ¶316. Some signals are classified as time-critical traffic while other signals are classified as best effort traffic. The time-critical traffic can be data signals that need or are required to be communicated at or within designated periods of time to ensure the safe operation of a powered system, such as a rail vehicle (e.g., a locomotive), a mining vehicle (or other off-highway vehicle), a marine vessel, or the like. The best effort traffic includes data signals that are not required to ensure the safe operation of the powered system, but that are communicated for other purposes (e.g., monitoring operation of components of the powered system). Therefore, it would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify the invention of Sant with the aforementioned features of Mong to allow for efficient schedule of communication allowing time sensitive communications for safety to be transmitted in a timely manner (see at least Mong ¶9 “Additionally, some scheduling systems generate schedules that assume fixed communication paths through the TSN. This can result in inefficient and/or ineffective schedules for communications. As a result, some time sensitive communications may not reach addressed recipients (e.g., readers) in time and/or an unnecessarily reduced amount of bandwidth may be available for use by non-time sensitive communications, such as rate constrained communications and “best effort” communications.) With respect to claim 15, the combination of Sant and Mong teach the method of claim 13, wherein a first computing device runs the first program to generate the geo-location waypoints and a second computing device runs the second program to generate the steering commands asynchronously from the generation of the geo-location waypoints (See at least Sant see at least Sant Fig. 1, client device 110 and Fig. 1, FC 114). With respect to claim 16, the combination of Sant and Mong teach the method of claim 15, including wirelessly transmitting the geo-location waypoints over the communication channel (see at least Sant Figure 1, communication link 106) from the first computing device (see at least Sant Figure 1, client device 110) to the asynchronous buffer (see at least Sant Fig. 5A WP Buffer 416) operating with the second computing device (Fig. 1, FC 114 or alternatively, in some embodiments FC114 and Onboard computing device 112). Claim 9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Sant and Mong in view of Anderson et al. (Pub. No.: US 2020/0062365 A1, hereinafter “Anderson”). With respect to claim 9, Sant and Mong discloses the system of claim 7, but do not explicitly disclose wherein the first navigation computing device includes an output buffer for storing the geo-location waypoints. Anderson discloses wherein the first navigation computing device is configured to operate the output buffer as a First-In-First-Out queue first buffering the geo-location waypoints and then transmitting the buffered geo-location waypoints to the second steering computing device (...the peripheral input device send a command to start a route, and provides the first point for control. The electronic controller begins navigation to this point using the go-to function, and broadcasts to the peripheral input device the control point, and the queued point, which is established on the first run as the same as the control point. The application running on the peripheral input device reads the control and queued points, and when they are detected as being equal, will send the next point, setting it up in the queue. See at least: p. [0209]). Therefore, it would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify the combination of Sant and Moby with the aforementioned features of Anderson because FIFO is a well-known queueing process that is easily implemented and has little overhead. Claim(s) 10-12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Sant and Mong in view of Tuukkanen (Pub. No.: US 2016/0380914 A1). With respect to claim 10, the combination of Sant and Mong teach the system of claim 1, including disclosing that the buffer may be reaching capacity (see at least Sant ¶52), but fails to explicitly teach wherein the second steering computing device is configured to send a first message to the first navigation computing device indicating the input buffer is approaching capacity for storing the geo-location waypoints, wherein the first message causes the first navigation computing device to stop sending additional geo-location waypoints until receiving a second continue transmitting message from the second steering computing device (See at least Tuukkanen ¶52 and 87 “the system 100 may cause a transfer of one or more items from the at least one processing queue at the at least one device to the another processing queue at the at least one embedded system as the at least one embedded system processes and removes one or other items from the another processing queue” and “In step 305, the RAM 125 may cause, at least in part, a transmission of one or more service information updates from or by the at least one device to the at least one embedded system following the transfer. In one embodiment, the RAM 125 may cause a transmission of numerous updates from the at least one device to the at least one embedded system. These updates may be based on the processing capability, memory, and/or connection status for the devices. In one scenario, the RAM 125 may determine the various services or alerts the at least one device may provide to the embedded system and, as such, the updates may include the availability/capability of one or more services.”). Therefore, it would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify the invention of combination of Sant and Mong to perform the aforementioned functions as taught by Tuukkanen in order to maximize the utilization of the queueing capability of the second steering computing device. With respect to claim 11, the combination of Sant and Mong teach the system of claim 1, but fails to explicitly teach the following features. However, these features are taught by Tuukkanen: wherein the second steering computing device is configured to send a message to the first navigation computing device indicating a current capacity of the input buffer, wherein the first navigation computing device decides to send additional geo-location waypoints to the second steering computing device based on the current capacity of the input buffer (See at least Tuukkanen ¶52 and 87 “the system 100 may cause a transfer of one or more items from the at least one processing queue at the at least one device to the another processing queue at the at least one embedded system as the at least one embedded system processes and removes one or other items from the another processing queue” and “In step 305, the RAM 125 may cause, at least in part, a transmission of one or more service information updates from or by the at least one device to the at least one embedded system following the transfer. In one embodiment, the RAM 125 may cause a transmission of numerous updates from the at least one device to the at least one embedded system. These updates may be based on the processing capability, memory, and/or connection status for the devices. In one scenario, the RAM 125 may determine the various services or alerts the at least one device may provide to the embedded system and, as such, the updates may include the availability/capability of one or more services.”). Therefore, it would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify the invention of the combination of Sant and Mong to perform the aforementioned functions as taught by Tuukkanen in order to maximize the utilization of the queueing capability of the second steering computing device. With respect to claim 12, the combination of Sant and Mong teach the system of claim 1, but fails to explicitly teach wherein the first navigation computing device is configured to encode the geo-location waypoints transmitted to the second steering computing device to reduce transmission errors. However, this feature is taught by Tuukkanen (See at least Tuukkanen ¶ 112 “Examples of ASICs include graphics accelerator cards for generating images for display 914, cryptographic boards for encrypting and decrypting messages sent over a network, speech recognition, and interfaces to special external devices, such as robotic arms and medical scanning equipment that repeatedly perform some complex sequence of operations that are more efficiently implemented in hardware”) Therefore, it would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify the invention of the combination of Sant and Mong to perform the aforementioned function as taught by Tuukkanen in order to increase the accuracy of the wireless transmissions. Claim(s) 14, 17-19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Sant and Mong in view of Ditty et al. Pub. No.: US 2019/0258251 A1, hereinafter “Ditty”). With respect to claims 14, 17-19, the combination of Sant and Mong teach the method of claim 13, but fails to explicitly teach the following features. However, these features are taught by Ditty: wherein the first and second program run on separate processor cores in a same physical central processing unit; wherein the first and second program run on a same processing device controlled by a time partitioned operating system; or wherein the first and second program run on a same processing device and an operating system running on the processing device asynchronously generates the target waypoints with the first program and the steering commands with the second program. (See at least Ditty, ¶356 and ¶359 “The architecture can also be virtualized so that portion(s) of the computing structure and/or associated software most important to safety are isolated from one another and other portions of the computing structure and/or associated software. For example, communications code execution can be isolated and partitioned from other functions by executing it in a separate virtual machine. Virtualization can be beneficial to provide safe consolidation and partitioning of different programs onto the same computation resources even in contexts where an ASIL-D certified real-time operating system(s) (RTOS) designed with safety in mind is being used. Additionally, to increase security, a limited or no trust model may provide that peers never trust each other, parents do not trust children, and children have limited trust in parents, and an audit trail may provide accountability for authorized actions.” “As one non- limiting illustrative example, there may be one, two, or any N-number of virtual machine(s) 4002(0), . .. 4002(N). Platform 4000 provides isolation between the different virtual machines 4002. One or more applications run as guests in each host virtual machine 4002. Virtual machines 4002(0), ... 4002(N) can execute on any number of virtual CPUs such as VCPUO 4004(0), 4004(1),4004(2), ... 4004(9), .. . 4004(K). The virtual CPUs 4004 may run on the same or different hardware CPU cores.” ). Therefore, it would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify the invention of the combination of Sant and Mong with the aforementioned computing configurations taught by Ditty because it is well known in the art to distribute computing tasks for increased security, increased redundancy, or any other number of benefits. Claims 20-22 is/are rejected under 35 U.S.C. 103 as being unpatentable over Sant and Mong in view of Anderson et al. (Pub. No.: US 2020/0062365 A1, hereinafter “Anderson”). With respect to claim 20, the combination of Sant and Mong teach a method for operating a vehicle, comprising: using a path planner to, in a non-real time domain, generate waypoints for steering the vehicle (see at least Sant Fig. 1, client device 110, and ¶ 40; “As shown, in some embodiments, waypoints may be received from client device 110 via a remote control 111 and communication system 120A, 120B”).; store the waypoints in a queue (see at least Sant Fig. 5A, WP buffer 416, WP1, WP1, WP2, WP3, WP4,); using a steering controller to generate steering commands for steering the vehicle based on the waypoints in the queue (see at least Sant Fig. 1, movable object 104, ¶¶ 23, 24 “Although the movable object 104 is described generally as an aircraft, this is not intended to be limiting, and any suitable type of movable object can be used… The movement mechanisms 116 can include one or more of rotors, propellers, blades, engines, motors, wheels, axles, magnets, nozzles, animals, or human beings.”) ¶ 32 “Flight controller 114 provides high speed, real time control of the movement mechanisms 116.”); transmitting additional batches of waypoints to the queue based on the available space in the queue (see at least Sant ¶ 52 As shown in FIG. 5A, additional waypoints 3-N may be streamed at 522-432 and added to waypoint buffer 416. As shown in FIG. 5B, and as discussed above, mission generator 406 may then begin generating movement commands to navigate the movable object from waypoint 1 to waypoint 3, waypoint 3 to waypoint 4, and waypoint 4 to waypoint N.); and using the steering controller to generate additional steering commands for steering the vehicle based on the additional batches of waypoints in the queue (see at least Sant ¶ 52 As shown in FIG. 5A, additional waypoints 3-N may be streamed at 522-432 and added to waypoint buffer 416. As shown in FIG. 5B, and as discussed above, mission generator 406 may then begin generating movement commands to navigate the movable object from waypoint 1 to waypoint 3, waypoint 3 to waypoint 4, and waypoint 4 to waypoint N.) wherein the steering commands are generated at a periodic rate (see at least Sant ¶ 33 “In some embodiments, these commands may be calculated at a regular frequency (e.g., 50Hz)”) Flight controller 114 provides high speed, real time control of the movement mechanisms 116.”), and the path planner is configured to push the waypoints into the queue by buffering protocol communications indicating a current capacity of the queue (see at least Sant Figure 5A which shows feedback 516 that mission is complete (and subsequently further waypoints being transmitted). The feedback that a mission is complete impacts the current capacity of the input buffer (e.g. on less item in the buffer), and thus, corresponds to Applicant’s recitation communications indicating a current capacity of the input buffer see also the accompanying paragraphs ¶¶ 51 and 52 “feedback 516 can be returned to the client device, the feedback may include current position, mission progress. etc.” and further discusses that waypoints can be uploaded at any rate and any number of them “though in some embodiments some limitations may be imposed by buffer size or other memory constraints” and “Because the mission generator and mission follower operated independently (e.g. asynchronously…) and are not affected by the rate at which the waypoints are received. The examiner notes that while the communication in Sant is not described explicitly a “buffering protocol communication”, the instant application has not defined a “buffering protocol communication” beyond the discussion of buffering protocol in ¶23, and indicates that buffering protocol includes holding off transmitting additional waypoints. Accordingly, the description of Sant aligns with the Applicants discussion of buffering protocol.). Sant discloses that feedback is provided based on the mission progress, and whether the object has reached a waypoint and sending subsequent waypoints in response (See at least Sant ¶51 and Fig 5A “Feedback 516 can be returned to the client device, the feedback may include current position, mission progress, etc. Once the movable object is determined to have reached a waypoint, or within a configurable distance of the waypoint, the action defined in the waypoint definition can be performed 518. Action feedback 520 may then be returned to client 110. The action feedback may indicate whether the action has been successfully completed and/or may include action data, such as images or video data. In some embodiments, when an action is performed, a callback function may be executed to a user OS package where a custom action is defined.”). Further Sant discloses that there is a limitation of buffer size (see at least Sant ¶52 As discussed, the user can upload waypoints at any rate, and any number of them (though in some embodiments, some limitations may be imposed by buffer size or other memory constraints). However, Sant does not explicitly disclose repeatedly checking for available space in the queue and sending queries about the available space Anderson discloses checking for available space in the queue and sending queries about the available space and further discloses buffering protocol communications indicating a current capacity of the queue (see at least Anderson ¶209 “Electronic controller begins navigation to this point using the go-to-function, and broadcasts to the peripheral input device the control point, and the queued point…The application running on the peripheral input device reads the control and queued points, and when they are detected as being equal, will send the next point, setting it up in the queue…When approaching a point, the controller will change to go-to mode” and Once the point is reached…the controller switches modes to go-from…This process then repeats for all points in the route. At the end of the route, the control system would stop navigation”.) Therefore, it would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify Sant with the teaching of Anderson to send a query regarding available space until navigation is completed to ensure a sufficient buffer of waypoints to have continuous navigation without interruption, but also to ensure that the queue does not reach the limit as taught by Sant. The combination of Sant and Anderson does not explicitly teach wherein the waypoints are pushed into the queue on a best-effort schedule. However, this feature is taught by Mong (see at least Mong ¶106 As described above, the time sensitive communications may be communications with devices that need to be completed in a short period of time (e.g., within a designated period of time, such as thirty milliseconds) to ensure that the vehicle is safely controlled, while best effort and/or rate constrained communications may not need to be completed within such short periods of time. ¶316. Some signals are classified as time-critical traffic while other signals are classified as best effort traffic. The time-critical traffic can be data signals that need or are required to be communicated at or within designated periods of time to ensure the safe operation of a powered system, such as a rail vehicle (e.g., a locomotive), a mining vehicle (or another off-highway vehicle), a marine vessel, or the like. The best effort traffic includes data signals that are not required to ensure the safe operation of the powered system, but that are communicated for other purposes (e.g., monitoring operation of components of the powered system). Therefore, it would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify the invention of the combined Sant and Anderson with the aforementioned features of Mong to allow for efficient schedule of communication allowing time sensitive communications for safety to be transmitted in a timely manner (see at least Mong ¶9 “Additionally, some scheduling systems generate schedules that assume fixed communication paths through the TSN. This can result in inefficient and/or ineffective schedules for communications. As a result, some time sensitive communications may not reach addressed recipients (e.g., readers) in time and/or an unnecessarily reduced amount of bandwidth may be available for use by non-time sensitive communications, such as rate constrained communications and “best effort” communications.) With respect to claim 21, the combined Sant, Anderson, and Mong disclose the method of claim 20, further comprising: operating the path planner with a first computing device; and operating the steering controller with a second computing device that operates asynchronously from the first computing device (see at least Sant ¶ 40; “As shown, in some embodiments, waypoints may be received from client device 110 via a remote control 111 and communication system 120A, 120B” and Fig. 5A and 5B, WP1, WP1, WP2, WP3, WP4, shown received and executed sequentially and ¶46, “FIGS. 5A and 5B illustrate a sequence diagram of communication” ) With respect to claim 22, the combined Sant, Anderson, and Mong the method of claim 21, wherein the first computing device operates in a hand held smart device and the second computing device operates on a dedicated steering computer installed on the vehicle (see at least Sant, ¶21 “As shown in FIG. 1, the client device 110 can be a portable personal computing device, a smart phone, a remote control, a wearable computer, virtual reality/augmented reality system, and/or a personal computer”). Conclusion The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Hayakawa et al. (US PG Pub. 2007/0242684) discusses best effort transmission of data which transmits data based on the buffer having sufficient capacity (see ¶0168). Any inquiry concerning this communication or earlier communications from the examiner should be directed to JENNIFER M. ANDA whose telephone number is (571)272-5042. The examiner can normally be reached Monday-Friday 8:30 am-5pm 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, Aniss Chad can be reached on (571)270-3832. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. /J.M.A./Examiner, Art Unit 3662 /ANISS CHAD/Supervisory Patent Examiner, Art Unit 3662	2022-09-01T10:55:59	[ "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 . 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 25 July 2022 has been entered. Status of Claims This action is in reply to the amendment and response filed on 25 July 2022. Claims 1-2, 5, 11, 13, 16, and 20 have been amended and are hereby entered. Claim 3 has been cancelled Claims 1-2, and 4-22 are currently pending and have been examined. Response to Arguments and Amendments Claim Objections Claims 5 and 16 were objected to for informalities. Applicant’s amendments to claims 5 and 16 have overcome the claim objectiosn. Accordingly, the objection to claims 5 and 16 has been hereby withdrawn.", "Claim Rejections - 35 USC § 112 Claims 1-22 were rejected under 35 USC § 112(a) as failing to comply with the written description requirement. Applicant’s arguments, see page 6, filed 25 July 2022, with respect to the 35 USC § 112(a) have been fully considered and are persuasive. Accordingly, the rejection of claims 1-22 under 35 USC § 112(a) has been withdrawn. Claims 1-22 were rejected under 35 USC § 112(b). Applicant's arguments, see page 6-7 and filed 25 July 2022 have been fully considered and are persuasive. Accordingly, the rejection of claims 1-22 under 35 USC § 112(b) has been withdrawn. Claim Rejections - 35 USC § 102 and 103 Applicant's arguments filed 25 July 2022 have been fully considered but they are not persuasive. Applicant argues that Sant teaches “a data stream of a plurality of waypoint definitions”. The Examiner agrees, but also notes that Sant teaches that waypoints can be uploaded at any rate and any number of them “though in some embodiments some limitations may be imposed by buffer size or other memory constraints” and “Because the mission generator and mission follower operated independently (e.g.", "asynchronously…) and are not affected by the rate at which the waypoints are received.” See Sant ¶¶ 51 and 52. While not explicitly argued, the examiner notes that a new grounds of rejection has been applied to claims in view of the amendment (though the reference was previously cited and relied upon for the same feature). The examiner relies upon Mong to teach wherein the first navigation computing device is configured to schedule on a best-effort schedule (see rejection below). Applicant also argues that Sant teaches that the commands may be calculated at a regular frequency. The examiner agrees, and relies upon this recitation only to read on the limitation that “the steering commands are generated at a periodic rate”.", "The Applicant does not provide a specific argument with respect to claim 20, however, a new grounds of rejection has been applied to these claims as well which addresses the newly added limitations. Priority Applicant’s claim for the benefit of a prior-filed application under 35 U.S.C. 119(e) or under 35 U.S.C. 120, 121, 365(c), or 386(c) is acknowledged. Applicant has not complied with one or more conditions for receiving the benefit of an earlier filing date under 35 U.S.C. 119(e) as follows: The later-filed application must be an application for a patent for an invention which is also disclosed in the prior application (the parent or original nonprovisional application or provisional application). The disclosure of the invention in the parent application and in the later-filed application must be sufficient to comply with the requirements of 35 U.S.C. 112(a) or the first paragraph of pre-AIA 35 U.S.C. 112, except for the best mode requirement.", "See Transco Products, Inc. v. Performance Contracting, Inc., 38 F.3d 551, 32 USPQ2d 1077 (Fed. Cir. 1994). The disclosure of the prior-filed application, Application No. 62/731698, fails to provide adequate support or enablement in the manner provided by 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph for one or more claims of this application. The provisional application does not disclose a First-In-First-Out queue (as claimed in at least claims 7-9). The provisional application does not disclose a time partitioned operating system (as claimed at least in claim 18, 19). Further, while the provisional application discloses that the first computing device may be a non-real time computer.", "The provisional does not disclose that the first navigation computing device is configured to generate the geo-location waypoints for a path in a non-real time domain (as generally claimed by claim 1, 13, and 20, and their dependent claims). Accordingly, claims 1-22 are not entitled to the benefit of the prior application. Claim Interpretation Claim 1 and claim 13 recite “the first navigation computing device is configured to generate the time series of geo-location waypoints on a best-effort schedule controlled by buffering protocol communications indicating a current capacity of the input buffer”. The instant application does not provide support for generating the time series of geo-location waypoints on a best-effort schedule controlled by buffer protocol communications indicating a current capacity of the input buffer.", "Particularly, the examiner notes that claim 20, contradicts claims 1 and 13, in reciting that the waypoints are pushed (e.g. transmitted) on a best effort schedule. Further, the first navigation device is described as transmitting the time series of geo-location waypoints by buffering protocol (see for example ¶23 “If input queue 105 in steering computer 103 is full, or steering computer 103 is busy, smart device 106 will hold-off transmitting additional waypoints 114 and wait before querying steering computer 103 again. This buffering protocol allows use of a low-cost shallow buffer depth for waypoint queue 105 in steering computer 103.”). Finally, the examiner notes that the instant application does not further describe what is considered a “best-effort schedule” and the term only appears once in the specification (see ¶ 28). Therefore, the examiner believes that the Applicant intended the term to be an art-recognized terminology, and interpreted accordingly.", "The associated art-recognized meaning is related to transmittal of data, not the generation of data. Accordingly, the examiner will interpret the term “generate” as used in claim 1, line 9 and claim 13, line 8 to be “transmit”. 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 1-2, and 4-19 are rejected under 35 U.S.C.", "112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. Claim 1 and claim 13 recite “the first navigation computing device is configured to generate the time series of geo-location waypoints on a best-effort schedule controlled by buffering protocol communications indicating a current capacity of the input buffer”. The instant application does not provide support for generating the time series of geo-location waypoints on a best-effort schedule controlled by buffer protocol communications indicating a current capacity of the input buffer. Particularly, the examiner notes that claim 20, contradicts claims 1 and 13, in reciting that the waypoints are pushed (e.g.", "transmitted) on a best effort schedule. Further, the first navigation device is described as transmitting the time series of geo-location waypoints by buffering protocol (see for example ¶23 “If input queue 105 in steering computer 103 is full, or steering computer 103 is busy, smart device 106 will hold-off transmitting additional waypoints 114 and wait before querying steering computer 103 again. This buffering protocol allows use of a low-cost shallow buffer depth for waypoint queue 105 in steering computer 103.”). Finally, the examiner notes that the instant application does not further describe what is considered a “best-effort schedule” and the term only appears once in the specification (see ¶ 28). Therefore, the examiner believes that the Applicant intended the term to be an art-recognized terminology, and interpreted accordingly. The associated art-recognized meaning is related to transmittal of data, not the generation of data. The examiner respectfully requests that Applicant provide support for this amendment and any subsequently provided amendment. Claims 2-12 and 14-19 depend from claim 1, and 13, respectively, and are similarly rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, based on their dependency. 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, 4-8, 13, 15, 16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Sant et al. (US PG Pub. 2019/0332105, hereinafter \"Sant\") in view of Mong et al.", "(Pub. No. : US 2018/01237039 A1, hereinafter “Mong”). With respect to claim 1, Sant discloses a system comprising: a first navigation computing device (see at least Sant Fig. 1, client device 110) configured to, in a non-real time domain (see at least Sant, Fig. 5A, WP buffer 416), generate a time series (see at least Sant Fig. 5A and 5B, WP1, WP1, WP2, WP3, WP4, shown received and executed sequentially and ¶46, “FIGS. 5A and 5B illustrate a sequence diagram of communication”) of geo-location waypoints for a path (see at least Sant ¶ 40; “As shown, in some embodiments, waypoints may be received from client device 110 via a remote control 111 and communication system 120A, 120B”). and a second steering computing device (see at least Sant Fig. 1, FC 114 or alternatively, in some embodiments FC114 and Onboard computing device 112, See ¶38 “In some embodiments, the application processor 202, flight controller 114, and onboard computing device 112 can be implemented as separate devices (e.g., separate processors on separate circuit boards).", "Alternatively, one or more of the application processor 202, flight controller 114, and onboard computing device can be implemented as a single device, such as an SoC.”) including an input buffer (see at least Sant Fig. 1 WP Buffer 416 and/or Trajectory Buffer 420) wherein the second computing device is configured to, in a real time domain, generate steering commands for steering a vehicle (see at least Sant Fig. 1, movable object 104, ¶¶ 23, 24 “Although the movable object 104 is described generally as an aircraft, this is not intended to be limiting, and any suitable type of movable object can be used… The movement mechanisms 116 can include one or more of rotors, propellers, blades, engines, motors, wheels, axles, magnets, nozzles, animals, or human beings.”) based on the geo-location waypoints in the input buffer (see at least Sant ¶ 32 “Flight controller 114 provides high speed, real time control of the movement mechanisms 116.”). wherein the steering commands are generated at a period rate (see at least Sant ¶ 33 “In some embodiments, these commands may be calculated at a regular frequency (e.g., 50Hz)”) Flight controller 114 provides high speed, real time control of the movement mechanisms 116.”), and the first navigation computing device is configured to transmit the time series of geo-location waypoints by buffering protocol communications indicating a current capacity of the input buffer (see at least Sant Figure 5A which shows feedback 516 that mission is complete (and subsequently further waypoints being transmitted). The examiner notes that the feedback that a mission is complete impacts the current capacity of the input buffer (e.g.", "one less item in the buffer), and thus, corresponds to Applicant’s recitation communications indicating a current capacity of the input buffer see also the accompanying paragraphs ¶¶ 51 and 52 “feedback 516 can be returned to the client device, the feedback may include current position, mission progress. etc.” and further discusses that waypoints can be uploaded at any rate and any number of them “though in some embodiments some limitations may be imposed by buffer size or other memory constraints” and “Because the mission generator and mission follower operated independently (e.g. asynchronously…) and are not affected by the rate at which the waypoints are received. The examiner notes that while the communication in Sant is not described explicitly a “buffering protocol communication”, the instant application has not defined a “buffering protocol communication” beyond the discussion of buffering protocol in ¶23, and indicates that buffering protocol includes holding off transmitting additional waypoints.", "Accordingly, the description of Sant aligns with the Applicants discussion of buffering protocol.). Sant does not explicitly teach wherein the first navigation computing device is configured to schedule on a best-effort schedule. However, this feature is taught by Mong (see at least Mong ¶106 As described above, the time sensitive communications may be communications with devices that need to be completed in a short period of time (e.g., within a designated period of time, such as thirty milliseconds) to ensure that the vehicle is safely controlled, while best effort and/or rate constrained communications may not need to be completed within such short periods of time. ¶316.", "Some signals are classified as time-critical traffic while other signals are classified as best effort traffic. The time-critical traffic can be data signals that need or are required to be communicated at or within designated periods of time to ensure the safe operation of a powered system, such as a rail vehicle (e.g., a locomotive), a mining vehicle (or other off-highway vehicle), a marine vessel, or the like. The best effort traffic includes data signals that are not required to ensure the safe operation of the powered system, but that are communicated for other purposes (e.g., monitoring operation of components of the powered system). Therefore, it would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify the invention of Sant with the aforementioned features of Mong to allow for efficient schedule of communication allowing time sensitive communications for safety to be transmitted in a timely manner (see at least Mong ¶9 “Additionally, some scheduling systems generate schedules that assume fixed communication paths through the TSN.", "This can result in inefficient and/or ineffective schedules for communications. As a result, some time sensitive communications may not reach addressed recipients (e.g., readers) in time and/or an unnecessarily reduced amount of bandwidth may be available for use by non-time sensitive communications, such as rate constrained communications and “best effort” communications.) With respect to claim 2, the combination of Sant and Mong teach wherein the first navigation computing device is configure to run path planning software on the best-effort schedule (see at least Mong ¶106 As described above, the time sensitive communications may be communications with devices that need to be completed in a short period of time (e.g., within a designated period of time, such as thirty milliseconds) to ensure that the vehicle is safely controlled, while best effort and/or rate constrained communications may not need to be completed within such short periods of time. ¶316. Some signals are classified as time-critical traffic while other signals are classified as best effort traffic. The time-critical traffic can be data signals that need or are required to be communicated at or within designated periods of time to ensure the safe operation of a powered system, such as a rail vehicle (e.g., a locomotive), a mining vehicle (or other off-highway vehicle), a marine vessel, or the like.", "The best effort traffic includes data signals that are not required to ensure the safe operation of the powered system, but that are communicated for other purposes (e.g., monitoring operation of components of the powered system). With respect to claim 4, the combination of Sant and Mong teach the system of claim 1, wherein the first navigation computing device operates on a handheld smart device and the second steering computing device operates on a dedicated vehicle steering control system coupled to a steering actuator that steers the vehicle based on the steering commands (see at least Sant, ¶21 “As shown in FIG. 1, the client device 110 can be a portable personal computing device, a smart phone, a remote control, a wearable computer, virtual reality/augmented reality system, and/or a personal computer” and ¶ 25 “In some embodiments, the movement mechanisms 116 can enable the movable object 104 to take off vertically from a surface or land vertically on a surface without requiring any horizontal movement of the movable object 104 … One or more of the movement mechanisms 104 may be controlled independently of the other movement mechanisms, for example by application 102.", "Alternatively, the movement mechanisms 116 can be configured to be controlled simultaneously. For example, the movable object 104 can have multiple horizontally oriented rotors that can provide lift and/or thrust to the movable object. The multiple horizontally oriented rotors can be actuated to provide vertical takeoff, vertical landing, and hovering capabilities to the movable object 104. In some embodiments, one or more of the horizontally oriented rotors may spin in a clockwise direction, while one or more of the horizontally rotors may spin in a counterclockwise direction… As discussed further herein, a controller, such as flight controller 114, can send movement commands to the movement mechanisms 116 to control the movement of movable object 104. These movement commands may be based on and/or derived from instructions received from client device 110, onboard computing device 112, or other entity.”).", "With respect to claim 5, the combination of Sant and Mong teach the system of claim 1, wherein where first navigation computing device transmits the geo-location waypoints to the input buffer over a wireless network (see at least Sant ¶22 “In accordance with various embodiments of the present invention, the communication link 106 can be (part of) a network, which is based on various wireless technologies, such as the WiFi, Bluetooth, 3G/4G, and other radio frequency technologies.”). With respect to claim 6, the combination of Sant and Mong teach the system of claim 1, wherein the first navigation computing device transmits the geo-location waypoints in batches to the input buffer in the second steering computing device (see at least Sant ¶¶ 41 and 47 “The waypoints may be configured individually or in batches.” “The waypoints may be transferred one at a time, or in a batch event, or in multiple batches optionally separated by intervals. For missions when all waypoints are not known in advance, definitions for future waypoints may be received by the onboard data manager from a client device while current waypoints are being executed by the onboard data manager and the movable object (e.g., waypoint streaming)”).", "With respect to claim 7, the combination of Sant and Mong teach the system of claim 1, wherein the second steering computing device uses the input buffer as a First-In-First-Out queue for processing the geo-location waypoints (See at least Sant ¶52 “As shown in FIG. 5A, additional waypoints 3-N may be streamed at 522-432 and added to waypoint buffer 416. As shown in FIG. 5B, and as discussed above, mission generator 406 may then begin generating movement commands to navigate the movable object from waypoint 1 to waypoint 3, waypoint 3 to waypoint 4, and waypoint 4 to waypoint N. As the trajectory data is generated 533, 535, 537, the trajectory data can be streamed 534, 536, 538 to mission follower 408 and added to trajectory buffer 420.”) With respect to claim 8, the combination of Sant and Mong teach the system of claim 7, wherein the second steering computing device is configured to send status messages to the first navigation computing device indicating when the First-In-First-Out queue is ready to accept additional geo- location waypoints (See at least Sant ¶51 and Fig 5A “Feedback 516 can be returned to the client device, the feedback may include current position, mission progress, etc.", "Once the movable object is determined to have reached a waypoint, or within a configurable distance of the waypoint, the action defined in the waypoint definition can be performed 518. Action feedback 520 may then be returned to client 110. The action feedback may indicate whether the action has been successfully completed and/or may include action data, such as images or video data. In some embodiments, when an action is performed, a callback function may be executed to a user OS package where a custom action is defined.”). With respect to claim 13, Sant discloses a method for steering a vehicle, comprising: using a first program (see at least Sant Fig. 1, client device 110) to, in a non-real time domain (see at least Sant, Fig. 5A, WP buffer 416), generate a time series of future geo-location waypoints for a selected vehicle path (see at least Sant Fig. 5A and 5B, WP1, WP1, WP2, WP3, WP4, shown received and executed sequentially and ¶46, “FIGS. 5A and 5B illustrate a sequence diagram of communication”) and transmitting the geo-location waypoints over a communication channel to an asynchronous buffer (see at least Sant ¶ 40; “As shown, in some embodiments, waypoints may be received from client device 110 via a remote control 111 and communication system 120A, 120B”)); and using a second program to (see at least Sant ¶38 and ¶93, “application processor”, “performed in, using, or with the assistance of…software...” and Fig. 1, FC 114 or alternatively, in some embodiments FC114 and Onboard computing device 112, See ¶38 “In some embodiments, the application processor 202, flight controller 114, and onboard computing device 112 can be implemented as separate devices (e.g., separate processors on separate circuit boards).", "Alternatively, one or more of the application processor 202, flight controller 114, and onboard computing device can be implemented as a single device, such as an SoC.”), in a real time domain, generate steering commands for steering the vehicle (see at least Sant Fig. 1, movable object 104, ¶¶ 23, 24 “Although the movable object 104 is described generally as an aircraft, this is not intended to be limiting, and any suitable type of movable object can be used… The movement mechanisms 116 can include one or more of rotors, propellers, blades, engines, motors, wheels, axles, magnets, nozzles, animals, or human beings.”) based on the geo-location waypoints in the asynchronous buffer (see at least Sant ¶ “Flight controller 114 provides high speed, real time control of the movement mechanisms 116.”). wherein the steering commands are generated at a period rate (see at least Sant ¶ 33 “In some embodiments, these commands may be calculated at a regular frequency (e.g., 50Hz)”) Flight controller 114 provides high speed, real time control of the movement mechanisms 116.”), and the first navigation computing device is configured to transmit the time series of geo-location waypoints by buffering protocol communications indicating a current capacity of the input buffer (see at least Sant Figure 5A which shows feedback 516 that mission is complete (and subsequently further waypoints being transmitted).", "The examiner notes that the feedback that a mission is complete impacts the current capacity of the input buffer (e.g. one less item in the buffer), and thus, corresponds to Applicant’s recitation communications indicating a current capacity of the input buffer see also the accompanying paragraphs ¶¶ 51 and 52 “feedback 516 can be returned to the client device, the feedback may include current position, mission progress. etc.” and further discusses that waypoints can be uploaded at any rate and any number of them “though in some embodiments some limitations may be imposed by buffer size or other memory constraints” and “Because the mission generator and mission follower operated independently (e.g.", "asynchronously…) and are not affected by the rate at which the waypoints are received. The examiner notes that while the communication in Sant is not described explicitly a “buffering protocol communication”, the instant application has not defined a “buffering protocol communication” beyond the discussion of buffering protocol in ¶23, and indicates that buffering protocol includes holding off transmitting additional waypoints. Accordingly, the description of Sant aligns with the Applicants discussion of buffering protocol.). The examiner notes that Sant discloses that the client, flight controller, and onboard computing device can be performed with software (see at least Sant ¶38 and ¶93, “application processor”, “performed in, using, or with the assistance of…software...”). Sant does not explicitly teach wherein the first navigation computing device is configured to schedule on a best-effort schedule. However, this feature is taught by Mong (see at least Mong ¶106 As described above, the time sensitive communications may be communications with devices that need to be completed in a short period of time (e.g., within a designated period of time, such as thirty milliseconds) to ensure that the vehicle is safely controlled, while best effort and/or rate constrained communications may not need to be completed within such short periods of time.", "¶316. Some signals are classified as time-critical traffic while other signals are classified as best effort traffic. The time-critical traffic can be data signals that need or are required to be communicated at or within designated periods of time to ensure the safe operation of a powered system, such as a rail vehicle (e.g., a locomotive), a mining vehicle (or other off-highway vehicle), a marine vessel, or the like. The best effort traffic includes data signals that are not required to ensure the safe operation of the powered system, but that are communicated for other purposes (e.g., monitoring operation of components of the powered system). Therefore, it would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify the invention of Sant with the aforementioned features of Mong to allow for efficient schedule of communication allowing time sensitive communications for safety to be transmitted in a timely manner (see at least Mong ¶9 “Additionally, some scheduling systems generate schedules that assume fixed communication paths through the TSN. This can result in inefficient and/or ineffective schedules for communications. As a result, some time sensitive communications may not reach addressed recipients (e.g., readers) in time and/or an unnecessarily reduced amount of bandwidth may be available for use by non-time sensitive communications, such as rate constrained communications and “best effort” communications.) With respect to claim 15, the combination of Sant and Mong teach the method of claim 13, wherein a first computing device runs the first program to generate the geo-location waypoints and a second computing device runs the second program to generate the steering commands asynchronously from the generation of the geo-location waypoints (See at least Sant see at least Sant Fig.", "1, client device 110 and Fig. 1, FC 114). With respect to claim 16, the combination of Sant and Mong teach the method of claim 15, including wirelessly transmitting the geo-location waypoints over the communication channel (see at least Sant Figure 1, communication link 106) from the first computing device (see at least Sant Figure 1, client device 110) to the asynchronous buffer (see at least Sant Fig. 5A WP Buffer 416) operating with the second computing device (Fig. 1, FC 114 or alternatively, in some embodiments FC114 and Onboard computing device 112). Claim 9 is/are rejected under 35 U.S.C.", "103 as being unpatentable over Sant and Mong in view of Anderson et al. (Pub. No. : US 2020/0062365 A1, hereinafter “Anderson”). With respect to claim 9, Sant and Mong discloses the system of claim 7, but do not explicitly disclose wherein the first navigation computing device includes an output buffer for storing the geo-location waypoints. Anderson discloses wherein the first navigation computing device is configured to operate the output buffer as a First-In-First-Out queue first buffering the geo-location waypoints and then transmitting the buffered geo-location waypoints to the second steering computing device (...the peripheral input device send a command to start a route, and provides the first point for control. The electronic controller begins navigation to this point using the go-to function, and broadcasts to the peripheral input device the control point, and the queued point, which is established on the first run as the same as the control point. The application running on the peripheral input device reads the control and queued points, and when they are detected as being equal, will send the next point, setting it up in the queue.", "See at least: p. [0209]). Therefore, it would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify the combination of Sant and Moby with the aforementioned features of Anderson because FIFO is a well-known queueing process that is easily implemented and has little overhead. Claim(s) 10-12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Sant and Mong in view of Tuukkanen (Pub. No. : US 2016/0380914 A1). With respect to claim 10, the combination of Sant and Mong teach the system of claim 1, including disclosing that the buffer may be reaching capacity (see at least Sant ¶52), but fails to explicitly teach wherein the second steering computing device is configured to send a first message to the first navigation computing device indicating the input buffer is approaching capacity for storing the geo-location waypoints, wherein the first message causes the first navigation computing device to stop sending additional geo-location waypoints until receiving a second continue transmitting message from the second steering computing device (See at least Tuukkanen ¶52 and 87 “the system 100 may cause a transfer of one or more items from the at least one processing queue at the at least one device to the another processing queue at the at least one embedded system as the at least one embedded system processes and removes one or other items from the another processing queue” and “In step 305, the RAM 125 may cause, at least in part, a transmission of one or more service information updates from or by the at least one device to the at least one embedded system following the transfer.", "In one embodiment, the RAM 125 may cause a transmission of numerous updates from the at least one device to the at least one embedded system. These updates may be based on the processing capability, memory, and/or connection status for the devices. In one scenario, the RAM 125 may determine the various services or alerts the at least one device may provide to the embedded system and, as such, the updates may include the availability/capability of one or more services.”). Therefore, it would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify the invention of combination of Sant and Mong to perform the aforementioned functions as taught by Tuukkanen in order to maximize the utilization of the queueing capability of the second steering computing device.", "With respect to claim 11, the combination of Sant and Mong teach the system of claim 1, but fails to explicitly teach the following features. However, these features are taught by Tuukkanen: wherein the second steering computing device is configured to send a message to the first navigation computing device indicating a current capacity of the input buffer, wherein the first navigation computing device decides to send additional geo-location waypoints to the second steering computing device based on the current capacity of the input buffer (See at least Tuukkanen ¶52 and 87 “the system 100 may cause a transfer of one or more items from the at least one processing queue at the at least one device to the another processing queue at the at least one embedded system as the at least one embedded system processes and removes one or other items from the another processing queue” and “In step 305, the RAM 125 may cause, at least in part, a transmission of one or more service information updates from or by the at least one device to the at least one embedded system following the transfer. In one embodiment, the RAM 125 may cause a transmission of numerous updates from the at least one device to the at least one embedded system.", "These updates may be based on the processing capability, memory, and/or connection status for the devices. In one scenario, the RAM 125 may determine the various services or alerts the at least one device may provide to the embedded system and, as such, the updates may include the availability/capability of one or more services.”). Therefore, it would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify the invention of the combination of Sant and Mong to perform the aforementioned functions as taught by Tuukkanen in order to maximize the utilization of the queueing capability of the second steering computing device. With respect to claim 12, the combination of Sant and Mong teach the system of claim 1, but fails to explicitly teach wherein the first navigation computing device is configured to encode the geo-location waypoints transmitted to the second steering computing device to reduce transmission errors.", "However, this feature is taught by Tuukkanen (See at least Tuukkanen ¶ 112 “Examples of ASICs include graphics accelerator cards for generating images for display 914, cryptographic boards for encrypting and decrypting messages sent over a network, speech recognition, and interfaces to special external devices, such as robotic arms and medical scanning equipment that repeatedly perform some complex sequence of operations that are more efficiently implemented in hardware”) Therefore, it would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify the invention of the combination of Sant and Mong to perform the aforementioned function as taught by Tuukkanen in order to increase the accuracy of the wireless transmissions. Claim(s) 14, 17-19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Sant and Mong in view of Ditty et al. Pub. No. : US 2019/0258251 A1, hereinafter “Ditty”). With respect to claims 14, 17-19, the combination of Sant and Mong teach the method of claim 13, but fails to explicitly teach the following features. However, these features are taught by Ditty: wherein the first and second program run on separate processor cores in a same physical central processing unit; wherein the first and second program run on a same processing device controlled by a time partitioned operating system; or wherein the first and second program run on a same processing device and an operating system running on the processing device asynchronously generates the target waypoints with the first program and the steering commands with the second program. (See at least Ditty, ¶356 and ¶359 “The architecture can also be virtualized so that portion(s) of the computing structure and/or associated software most important to safety are isolated from one another and other portions of the computing structure and/or associated software.", "For example, communications code execution can be isolated and partitioned from other functions by executing it in a separate virtual machine. Virtualization can be beneficial to provide safe consolidation and partitioning of different programs onto the same computation resources even in contexts where an ASIL-D certified real-time operating system(s) (RTOS) designed with safety in mind is being used. Additionally, to increase security, a limited or no trust model may provide that peers never trust each other, parents do not trust children, and children have limited trust in parents, and an audit trail may provide accountability for authorized actions.” “As one non- limiting illustrative example, there may be one, two, or any N-number of virtual machine(s) 4002(0), . .. 4002(N). Platform 4000 provides isolation between the different virtual machines 4002.", "One or more applications run as guests in each host virtual machine 4002. Virtual machines 4002(0), ... 4002(N) can execute on any number of virtual CPUs such as VCPUO 4004(0), 4004(1),4004(2), ... 4004(9), .. . 4004(K). The virtual CPUs 4004 may run on the same or different hardware CPU cores.” ). Therefore, it would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify the invention of the combination of Sant and Mong with the aforementioned computing configurations taught by Ditty because it is well known in the art to distribute computing tasks for increased security, increased redundancy, or any other number of benefits. Claims 20-22 is/are rejected under 35 U.S.C. 103 as being unpatentable over Sant and Mong in view of Anderson et al.", "(Pub. No. : US 2020/0062365 A1, hereinafter “Anderson”). With respect to claim 20, the combination of Sant and Mong teach a method for operating a vehicle, comprising: using a path planner to, in a non-real time domain, generate waypoints for steering the vehicle (see at least Sant Fig. 1, client device 110, and ¶ 40; “As shown, in some embodiments, waypoints may be received from client device 110 via a remote control 111 and communication system 120A, 120B”). ; store the waypoints in a queue (see at least Sant Fig.", "5A, WP buffer 416, WP1, WP1, WP2, WP3, WP4,); using a steering controller to generate steering commands for steering the vehicle based on the waypoints in the queue (see at least Sant Fig. 1, movable object 104, ¶¶ 23, 24 “Although the movable object 104 is described generally as an aircraft, this is not intended to be limiting, and any suitable type of movable object can be used… The movement mechanisms 116 can include one or more of rotors, propellers, blades, engines, motors, wheels, axles, magnets, nozzles, animals, or human beings.”) ¶ 32 “Flight controller 114 provides high speed, real time control of the movement mechanisms 116.”); transmitting additional batches of waypoints to the queue based on the available space in the queue (see at least Sant ¶ 52 As shown in FIG.", "5A, additional waypoints 3-N may be streamed at 522-432 and added to waypoint buffer 416. As shown in FIG. 5B, and as discussed above, mission generator 406 may then begin generating movement commands to navigate the movable object from waypoint 1 to waypoint 3, waypoint 3 to waypoint 4, and waypoint 4 to waypoint N.); and using the steering controller to generate additional steering commands for steering the vehicle based on the additional batches of waypoints in the queue (see at least Sant ¶ 52 As shown in FIG.", "5A, additional waypoints 3-N may be streamed at 522-432 and added to waypoint buffer 416. As shown in FIG. 5B, and as discussed above, mission generator 406 may then begin generating movement commands to navigate the movable object from waypoint 1 to waypoint 3, waypoint 3 to waypoint 4, and waypoint 4 to waypoint N.) wherein the steering commands are generated at a periodic rate (see at least Sant ¶ 33 “In some embodiments, these commands may be calculated at a regular frequency (e.g., 50Hz)”) Flight controller 114 provides high speed, real time control of the movement mechanisms 116.”), and the path planner is configured to push the waypoints into the queue by buffering protocol communications indicating a current capacity of the queue (see at least Sant Figure 5A which shows feedback 516 that mission is complete (and subsequently further waypoints being transmitted).", "The feedback that a mission is complete impacts the current capacity of the input buffer (e.g. on less item in the buffer), and thus, corresponds to Applicant’s recitation communications indicating a current capacity of the input buffer see also the accompanying paragraphs ¶¶ 51 and 52 “feedback 516 can be returned to the client device, the feedback may include current position, mission progress. etc.” and further discusses that waypoints can be uploaded at any rate and any number of them “though in some embodiments some limitations may be imposed by buffer size or other memory constraints” and “Because the mission generator and mission follower operated independently (e.g. asynchronously…) and are not affected by the rate at which the waypoints are received. The examiner notes that while the communication in Sant is not described explicitly a “buffering protocol communication”, the instant application has not defined a “buffering protocol communication” beyond the discussion of buffering protocol in ¶23, and indicates that buffering protocol includes holding off transmitting additional waypoints. Accordingly, the description of Sant aligns with the Applicants discussion of buffering protocol.).", "Sant discloses that feedback is provided based on the mission progress, and whether the object has reached a waypoint and sending subsequent waypoints in response (See at least Sant ¶51 and Fig 5A “Feedback 516 can be returned to the client device, the feedback may include current position, mission progress, etc. Once the movable object is determined to have reached a waypoint, or within a configurable distance of the waypoint, the action defined in the waypoint definition can be performed 518. Action feedback 520 may then be returned to client 110. The action feedback may indicate whether the action has been successfully completed and/or may include action data, such as images or video data. In some embodiments, when an action is performed, a callback function may be executed to a user OS package where a custom action is defined.”).", "Further Sant discloses that there is a limitation of buffer size (see at least Sant ¶52 As discussed, the user can upload waypoints at any rate, and any number of them (though in some embodiments, some limitations may be imposed by buffer size or other memory constraints). However, Sant does not explicitly disclose repeatedly checking for available space in the queue and sending queries about the available space Anderson discloses checking for available space in the queue and sending queries about the available space and further discloses buffering protocol communications indicating a current capacity of the queue (see at least Anderson ¶209 “Electronic controller begins navigation to this point using the go-to-function, and broadcasts to the peripheral input device the control point, and the queued point…The application running on the peripheral input device reads the control and queued points, and when they are detected as being equal, will send the next point, setting it up in the queue…When approaching a point, the controller will change to go-to mode” and Once the point is reached…the controller switches modes to go-from…This process then repeats for all points in the route. At the end of the route, the control system would stop navigation”.)", "Therefore, it would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify Sant with the teaching of Anderson to send a query regarding available space until navigation is completed to ensure a sufficient buffer of waypoints to have continuous navigation without interruption, but also to ensure that the queue does not reach the limit as taught by Sant. The combination of Sant and Anderson does not explicitly teach wherein the waypoints are pushed into the queue on a best-effort schedule. However, this feature is taught by Mong (see at least Mong ¶106 As described above, the time sensitive communications may be communications with devices that need to be completed in a short period of time (e.g., within a designated period of time, such as thirty milliseconds) to ensure that the vehicle is safely controlled, while best effort and/or rate constrained communications may not need to be completed within such short periods of time.", "¶316. Some signals are classified as time-critical traffic while other signals are classified as best effort traffic. The time-critical traffic can be data signals that need or are required to be communicated at or within designated periods of time to ensure the safe operation of a powered system, such as a rail vehicle (e.g., a locomotive), a mining vehicle (or another off-highway vehicle), a marine vessel, or the like. The best effort traffic includes data signals that are not required to ensure the safe operation of the powered system, but that are communicated for other purposes (e.g., monitoring operation of components of the powered system). Therefore, it would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify the invention of the combined Sant and Anderson with the aforementioned features of Mong to allow for efficient schedule of communication allowing time sensitive communications for safety to be transmitted in a timely manner (see at least Mong ¶9 “Additionally, some scheduling systems generate schedules that assume fixed communication paths through the TSN. This can result in inefficient and/or ineffective schedules for communications. As a result, some time sensitive communications may not reach addressed recipients (e.g., readers) in time and/or an unnecessarily reduced amount of bandwidth may be available for use by non-time sensitive communications, such as rate constrained communications and “best effort” communications.) With respect to claim 21, the combined Sant, Anderson, and Mong disclose the method of claim 20, further comprising: operating the path planner with a first computing device; and operating the steering controller with a second computing device that operates asynchronously from the first computing device (see at least Sant ¶ 40; “As shown, in some embodiments, waypoints may be received from client device 110 via a remote control 111 and communication system 120A, 120B” and Fig.", "5A and 5B, WP1, WP1, WP2, WP3, WP4, shown received and executed sequentially and ¶46, “FIGS. 5A and 5B illustrate a sequence diagram of communication” ) With respect to claim 22, the combined Sant, Anderson, and Mong the method of claim 21, wherein the first computing device operates in a hand held smart device and the second computing device operates on a dedicated steering computer installed on the vehicle (see at least Sant, ¶21 “As shown in FIG. 1, the client device 110 can be a portable personal computing device, a smart phone, a remote control, a wearable computer, virtual reality/augmented reality system, and/or a personal computer”). Conclusion The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Hayakawa et al. (US PG Pub.", "2007/0242684) discusses best effort transmission of data which transmits data based on the buffer having sufficient capacity (see ¶0168). Any inquiry concerning this communication or earlier communications from the examiner should be directed to JENNIFER M. ANDA whose telephone number is (571)272-5042. The examiner can normally be reached Monday-Friday 8:30 am-5pm 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, Aniss Chad can be reached on (571)270-3832. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users.", "To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. /J.M.A./Examiner, Art Unit 3662 /ANISS CHAD/Supervisory Patent Examiner, Art Unit 3662" ]	https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-09-04.zip	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
MR. JUSTICE KELLEY delivered the opinion of the Court. The defendant-appellant, Joseph Dick Spinuzzi, was charged with keeping a gaming room in violation of C.R.S. 1963, 40-10-7 and with keeping a gaming table in violation of C.R.S. 1963, 40-10-8. He was tried and convicted on both counts by a jury.1 Spinuzzi seeks reversal here on three grounds, i.e., (1) insufficiency of the evidence, (2) an erroneous instruction, and (3) the inadmissibility of a conversation between the defendant and a police officer which occurred subsequent to the filing of the charges. Our review of the record leads us to conclude that defendant’s allegations of error are without merit, and that the judgments of conviction must be sustained. 414The evidence discloses the following facts bearing directly on the two charges. Spinuzzi rented a small house located at 2514 Santa Fe Drive, Pueblo County. Photographs of the interior of the house, together with the testimony of police officers, show the house contained a dice or crap table, two felt covered card tables, and several chairs and stools. There were neither wall hangings nor floor covering. The windows in the house had been boarded up, painted or otherwise covered. The kitchen was equipped with a stove, refrigerator and a cupboard. On the stove was a coffee pot and a can of coffee. There was more coffee in the cupboard. The refrigerator was filled with cans of beer and soft drinks. The cupboard was filled with seven cartons of cigarettes plus 71 packages of assorted brands of cigarettes, boxes of cigars, 23 decks of playing cards, a box of poker chips, a money bag and a fruit can containing $34 in United States paper currency and $4.50 in coins. Four dice and a dice cup were also seized within the house. As observed by Mr. Justice Burke in Paulino v. People, 113 Colo. 180, 155 P.2d 609 (1945), “The foregoing presents no picture of a possible farmer’s residence, a shop, a hospital, a library, or any conceivable establishment save a gambling house.” In addition, the evidence connecting appellant with the gambling operation showed that Spinuzzi had had the utilities connected and that he paid the rent. All of these payments were made in cash. Additionally, the house had been under surveillance for five months prior to the execution of a search warrant. Spinuzzi, as well as other known gamblers, were seen entering and leaving the house through the rear door many times during this period. At the time of the raid, 15 known gamblers were arrested in the house. Prior to the entry, the police officers looked through a peep hole in the front door and saw several of Spinuzzi’s co-defendants shooting dice at the dice table. When the officers knocked on the door, announced that they were police officers and demanded entrance, the individuals 415standing around the dice table were observed picking up money from the table and stuffing it in their pockets. As the result of the searches made incident to the several arrests, currency in varying amounts up to $941 was seized from the several co-defendants. I. From the foregoing evidence the jury was warranted in concluding that Spinuzzi was keeping the building “to be used or occupied for gambling” and that he “knowingly permitted] the same to be used or occupied for gambling” in violation of C.R.S. 1963, 40-10-7. Wolfe v. People, 90 Colo. 102, 6 P.2d 927 (1931). The same evidence supports the conviction for violation of C.R.S. 1963, 40-10-8, which makes it a misdemeanor for any person to “. . . keep or exhibit any gaming table, establishment, device or apparatus to win or gain money or other property, or shall aid, assist or permit others to do the same, ...” The evidence connecting the defendant in this case to gambling activities is stronger than it was in Wolfe, where the defendant was convicted of violations of the same two statutes. II. The defendant summarized his second argument thusly: “Instruction No. 9 was an abstract and misleading statement of the law, and it obscured the necessary element of knowledge, and was therefore erroneous.” At the conclusion of the evidence when the court and counsel were settling the instructions, there was no specific objection to Instruction No. 9 by defendant’s counsel. There was, however, a general objection to all instructions on the ground that the case should not be submitted to the jury at all; that the defendant’s motion for judgment of acquittal, because of the insufficiency of the evidence, should have been granted. In his motion for new trial the defendant alleged error “in the giving of Instruction No. 9 since said instruction was otherwise covered by other instructions.” From our review of all instructions, we are satisfied that there was no “plain error” in the giving of the instruction 416which the defendant challenges for the first time on appeal. Crim. P. 52(b). This being true, we see no need to discuss the several arguments advanced by the defendant in view of Crim. P. 30, which, so far as material, states: “. . . All instructions shall be submitted to the parties, who shall make all objections thereto before they are given to the jury. Only the grounds so specified shall be. considered on motion for new trial or on review. . . .” (Emphasis added.) See Morehead v. People, 167 Colo. 287, 447 P.2d 215 (1968); Roybal v. People, 166 Colo. 541, 444 P.2d 875 (1968). III. The last assignment of error is grounded on the admission of a conversation between a police officer and the defendant at 2514 Santa Fe Drive approximately one week after the raid which resulted in the charges. It is not clear from the record whether the charges had been filed at the time of the brief encounter out of which the conversation arose. For the purpose of our discussion, we will assume that the information had been filed prior to the conversation. The witness and other police officers went to the property to determine whether it was still being used for gambling activities necessitating further surveillance. When the officers arrived, Spinuzzi was standing by the rear door to the house. The witness approached the defendant and the following conversation occurred: “I asked him what he was doing and he stated he was looking at the door. I then asked him what for and his answer was ‘so it will be harder for you bastards to get in next time.’ ” The defendant contends that the statement was obtained in violation of his Fifth and Sixth Amendment rights, citing Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). The defendant, however, did not regard the error as sufficiently grievous to assign it as error in his motion for new trial. Ordinarily we would not consider it for that reason alone. But, because of the constitutional dimensions of the issue, we will look to the merits of the argument. 417In Massiah, after the defendant was indicted, had retained a lawyer, and had been released on bail, a federal agent succeeded by surreptitious means in listening to incriminating statements elicited from him. The statements were made to a co-defendant, supposedly in private, but by pre-arrangement between the agent and the co-defendant, the agent was able to electronically monitor the conversation. The United States Supreme Court held that this deliberate (though surreptitious) post-indictment interrogation should have been conducted in the presence of the defendant’s retained counsel. Defendant’s reliance on Massiah is misplaced. There was nothing surreptitious in the instant circumstances. The officers were not seeking evidence of the crimes charged, but were attempting to determine whether the house was still being used for gambling purposes. Their meeting the defendant there was coincidental. Nor was there police interrogation here. The officers were not asking questions designed to connect him with the offenses with which he was charged. The defendant’s statement was a voluntary off-hand remark. This confrontation was not, in any sense of the term, a critical stage in the criminal proceedings pending against the defendant where he must be afforded the presence of counsel. See Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). The judgment is affirmed. MR. JUSTICE DAY and MR. JUSTICE ERICKSON do not participate. Defendant was tried together with fifteen other persons who were charged with gambling offenses growing out of the operative facts of this case. All were convicted.	09-07-2022	[ "MR. JUSTICE KELLEY delivered the opinion of the Court. The defendant-appellant, Joseph Dick Spinuzzi, was charged with keeping a gaming room in violation of C.R.S. 1963, 40-10-7 and with keeping a gaming table in violation of C.R.S. 1963, 40-10-8. He was tried and convicted on both counts by a jury.1 Spinuzzi seeks reversal here on three grounds, i.e., (1) insufficiency of the evidence, (2) an erroneous instruction, and (3) the inadmissibility of a conversation between the defendant and a police officer which occurred subsequent to the filing of the charges. Our review of the record leads us to conclude that defendant’s allegations of error are without merit, and that the judgments of conviction must be sustained. 414The evidence discloses the following facts bearing directly on the two charges. Spinuzzi rented a small house located at 2514 Santa Fe Drive, Pueblo County.", "Photographs of the interior of the house, together with the testimony of police officers, show the house contained a dice or crap table, two felt covered card tables, and several chairs and stools. There were neither wall hangings nor floor covering. The windows in the house had been boarded up, painted or otherwise covered. The kitchen was equipped with a stove, refrigerator and a cupboard. On the stove was a coffee pot and a can of coffee. There was more coffee in the cupboard. The refrigerator was filled with cans of beer and soft drinks. The cupboard was filled with seven cartons of cigarettes plus 71 packages of assorted brands of cigarettes, boxes of cigars, 23 decks of playing cards, a box of poker chips, a money bag and a fruit can containing $34 in United States paper currency and $4.50 in coins.", "Four dice and a dice cup were also seized within the house. As observed by Mr. Justice Burke in Paulino v. People, 113 Colo. 180, 155 P.2d 609 (1945), “The foregoing presents no picture of a possible farmer’s residence, a shop, a hospital, a library, or any conceivable establishment save a gambling house.” In addition, the evidence connecting appellant with the gambling operation showed that Spinuzzi had had the utilities connected and that he paid the rent. All of these payments were made in cash. Additionally, the house had been under surveillance for five months prior to the execution of a search warrant. Spinuzzi, as well as other known gamblers, were seen entering and leaving the house through the rear door many times during this period. At the time of the raid, 15 known gamblers were arrested in the house. Prior to the entry, the police officers looked through a peep hole in the front door and saw several of Spinuzzi’s co-defendants shooting dice at the dice table. When the officers knocked on the door, announced that they were police officers and demanded entrance, the individuals 415standing around the dice table were observed picking up money from the table and stuffing it in their pockets.", "As the result of the searches made incident to the several arrests, currency in varying amounts up to $941 was seized from the several co-defendants. I. From the foregoing evidence the jury was warranted in concluding that Spinuzzi was keeping the building “to be used or occupied for gambling” and that he “knowingly permitted] the same to be used or occupied for gambling” in violation of C.R.S. 1963, 40-10-7. Wolfe v. People, 90 Colo. 102, 6 P.2d 927 (1931). The same evidence supports the conviction for violation of C.R.S. 1963, 40-10-8, which makes it a misdemeanor for any person to “. .", ". keep or exhibit any gaming table, establishment, device or apparatus to win or gain money or other property, or shall aid, assist or permit others to do the same, ...” The evidence connecting the defendant in this case to gambling activities is stronger than it was in Wolfe, where the defendant was convicted of violations of the same two statutes. II. The defendant summarized his second argument thusly: “Instruction No. 9 was an abstract and misleading statement of the law, and it obscured the necessary element of knowledge, and was therefore erroneous.” At the conclusion of the evidence when the court and counsel were settling the instructions, there was no specific objection to Instruction No. 9 by defendant’s counsel. There was, however, a general objection to all instructions on the ground that the case should not be submitted to the jury at all; that the defendant’s motion for judgment of acquittal, because of the insufficiency of the evidence, should have been granted.", "In his motion for new trial the defendant alleged error “in the giving of Instruction No. 9 since said instruction was otherwise covered by other instructions.” From our review of all instructions, we are satisfied that there was no “plain error” in the giving of the instruction 416which the defendant challenges for the first time on appeal. Crim. P. 52(b). This being true, we see no need to discuss the several arguments advanced by the defendant in view of Crim. P. 30, which, so far as material, states: “.", ". . All instructions shall be submitted to the parties, who shall make all objections thereto before they are given to the jury. Only the grounds so specified shall be. considered on motion for new trial or on review. . . .” (Emphasis added.) See Morehead v. People, 167 Colo. 287, 447 P.2d 215 (1968); Roybal v. People, 166 Colo. 541, 444 P.2d 875 (1968). III. The last assignment of error is grounded on the admission of a conversation between a police officer and the defendant at 2514 Santa Fe Drive approximately one week after the raid which resulted in the charges.", "It is not clear from the record whether the charges had been filed at the time of the brief encounter out of which the conversation arose. For the purpose of our discussion, we will assume that the information had been filed prior to the conversation. The witness and other police officers went to the property to determine whether it was still being used for gambling activities necessitating further surveillance. When the officers arrived, Spinuzzi was standing by the rear door to the house. The witness approached the defendant and the following conversation occurred: “I asked him what he was doing and he stated he was looking at the door.", "I then asked him what for and his answer was ‘so it will be harder for you bastards to get in next time.’ ” The defendant contends that the statement was obtained in violation of his Fifth and Sixth Amendment rights, citing Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). The defendant, however, did not regard the error as sufficiently grievous to assign it as error in his motion for new trial. Ordinarily we would not consider it for that reason alone. But, because of the constitutional dimensions of the issue, we will look to the merits of the argument. 417In Massiah, after the defendant was indicted, had retained a lawyer, and had been released on bail, a federal agent succeeded by surreptitious means in listening to incriminating statements elicited from him.", "The statements were made to a co-defendant, supposedly in private, but by pre-arrangement between the agent and the co-defendant, the agent was able to electronically monitor the conversation. The United States Supreme Court held that this deliberate (though surreptitious) post-indictment interrogation should have been conducted in the presence of the defendant’s retained counsel. Defendant’s reliance on Massiah is misplaced. There was nothing surreptitious in the instant circumstances. The officers were not seeking evidence of the crimes charged, but were attempting to determine whether the house was still being used for gambling purposes. Their meeting the defendant there was coincidental. Nor was there police interrogation here. The officers were not asking questions designed to connect him with the offenses with which he was charged. The defendant’s statement was a voluntary off-hand remark.", "This confrontation was not, in any sense of the term, a critical stage in the criminal proceedings pending against the defendant where he must be afforded the presence of counsel. See Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). The judgment is affirmed.", "MR. JUSTICE DAY and MR. JUSTICE ERICKSON do not participate. Defendant was tried together with fifteen other persons who were charged with gambling offenses growing out of the operative facts of this case. All were convicted." ]	https://www.courtlistener.com/api/rest/v3/opinions/7831308/	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK UNITED STATES OF AMERICA S4 19 Cr. 144 (AKH) v. VICTOR MONES CORO, Defendant. EXHIBITS 11 TO 17 IN SUPPORT OF REPLY SENTENCING MEMORANDUM OF DEFENDANT VICTOR MONES CORO CHRISTINE H. CHUNG PLLC Christine H. Chung 14 Murray Street, #236 New York, New York 10007 (917) 685-0423 PERRY GUHA LLP Samidh Guha George M. Barchini 35 East 62nd Street New York, New York 10065 (917) 674-5383 Attorneys for Victor Mones Coro	2021-03-11	[ "UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK UNITED STATES OF AMERICA S4 19 Cr. 144 (AKH) v. VICTOR MONES CORO, Defendant. EXHIBITS 11 TO 17 IN SUPPORT OF REPLY SENTENCING MEMORANDUM OF DEFENDANT VICTOR MONES CORO CHRISTINE H. CHUNG PLLC Christine H. Chung 14 Murray Street, #236 New York, New York 10007 (917) 685-0423 PERRY GUHA LLP Samidh Guha George M. Barchini 35 East 62nd Street New York, New York 10065 (917) 674-5383 Attorneys for Victor Mones Coro" ]	https://www.courtlistener.com/api/rest/v3/recap-documents/163661146/	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
Sup. Jud. Ct. Mass. Certiorari denied.	11-27-2022	[ "Sup. Jud. Ct. Mass. Certiorari denied." ]	https://www.courtlistener.com/api/rest/v3/opinions/9060070/	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
SHAWN A. HILL, ) ) Appellant, ) ) vs. ) ) No. SD32994 ) BARRY COUNTY, MISSOURI, ) FILED: June 24, 2014 ) Respondent. ) APPEAL FROM THE CIRCUIT COURT OF NEWTON COUNTY Honorable Kevin L. Selby, Judge REVERSED AND REMANDED Plaintiff1 slipped on ice in a parking lot, fell, broke a leg, and sued. As an affirmative defense, Defendant alleged that any ice or snow on the parking lot “accumulated naturally and was a condition general to the community at the time of the incident alleged in the Petition, by reason of which Plaintiff is not entitled to recover.” Eventually, Defendant sought and obtained summary judgment on the same basis. 1We refer to the parties as they were in the trial court, appellant Hill as “Plaintiff” and respondent Barry County as “Defendant.” 1 We reverse and remand. Defendant did not establish that ice and snow “was a general condition in the community” as alleged. Rather, the developed record “is susceptible to more than one inference, precluding summary judgment.” Loth v. Union Pacific R.R. Co., 354 S.W.3d 635, 642 (Mo.App. 2011). Legal Background Massachusetts Rule / General Condition “Under Missouri law, there is no duty to remove snow or ice that accumulates naturally and is a condition general to the community.” Richey v. DP Properties, 252 S.W.3d 249, 251 (Mo.App.2008). Our courts have adhered for decades to this “natural accumulation” or “Massachusetts” rule. See Alexander v. American Lodging, Inc., 786 S.W.2d 599, 601 (Mo.App. 1990), and cases cited therein. “Naturalness” of snow or ice differs from “generality,” and the latter is key. Michael J. Polelle, Is the Natural Accumulation Rule All Wet?, 26 LOY. U. CHI. L.J. 631, 650 (1995). “‘It is the generality of a situation resulting from natural causes that gives rise to the rule. Without that generality there would be no reason for the rule.’” Id. (quoting Graham v. City of Chicago, 178 N.E. 911, 913 (Ill. 1931)). Similar concerns led to Missouri’s adoption of the rule in Woodley v. Bush, 272 S.W.2d 833 (Mo.App. 1954),2 “for where the condition is one general to the community it creates a natural hazard to everyone who ventures out at such time. The condition is brought about by no one and no one’s efforts can appreciably lessen the danger present.” Id. at 835. 2Maschoff v. Koedding, 439 S.W.2d 234, 237 (Mo.App. 1969), attributes Missouri’s adoption of the Massachusetts rule to Woodley. 2 As applied to the state of facts before us, the alley through which the plaintiff walked was just as icy as the premises upon which she lived, so that when she was on her way to and from work she was at all times subject to the danger of slipping. Had there been a clear walk to the alley it would have afforded her sure footing but for a very few feet and left her confronted with an icy road for the rest of her way. Thus any effort of the landlord would in fact only diminish the natural hazard to a very negligible degree. Id. By way of contrast, Missouri cases which note the rule but find it factually inapplicable for lack of a “general condition” include: • Carden v. Lester E. Cox Medical Center, 519 S.W.2d 338 (Mo.App. 1975). Official weather records showed four inches of snow on the ground, but there was trial testimony “that streets in the City of Springfield were free and clear of snow and ice on the day plaintiff fell. The jury by its verdict found that a general condition of snow and ice did not exist in the City of Springfield.” Id. at 340. • Gudorp v. City of St. Louis, 372 S.W.2d 483 (Mo.App. 1963). The plaintiff fell on an icy sidewalk, but other sidewalks in the vicinity and elsewhere in the city “were clear except for some snow in the curbing. Under the factual situation here prevailing, we cannot hold that the ice on the sidewalk where plaintiff fell was a part of a general condition prevailing throughout the City.” Id. at 486.3 • Evans v. Sears, Roebuck & Co., 104 S.W.2d 1035, 1037, 1039-40 (Mo.App. 1937) (affirming verdict for customer who fell at icy store entrance; evidence indicated that sidewalks and other entrances were free of ice and snow). Whether such a condition is “general” to the community is a fact question for a jury to decide under proper instructions. Turcol v. Shoney’s Enterprises, 640 S.W.2d 503, 508 (Mo.App. 1982). 3Nonetheless, the judgment was reversed for another reason, being a failure to show the City’s constructive notice of this condition. Gudorp, 372 S.W.2d at 487-88. 3 Summary Judgment Erroneous In seeking summary judgment, Defendant argued – but did not proffer as an uncontroverted fact – that ice and snow “was a general condition in the community.” The summary judgment record includes evidence that parts of the parking lot were clear on the accident date, while “[l]ocal businesses were clear, other places were snowy and icy.” Viewing the record and reasonable inferences favorably to Plaintiff, Loth, 354 S.W.3d at 642, does not establish that ice and snow “was a condition general to the community.” On this record, that is a jury issue. Turcol, 640 S.W.2d at 508. Plaintiff’s other arguments need not be reached. We reverse the judgment and remand the case for further proceedings. DANIEL E. SCOTT, J. – OPINION AUTHOR NANCY STEFFEN RAHMEYER, P.J. – CONCURS WILLIAM W. FRANCIS, JR., C.J. – CONCURS 4	06-24-2014	[ "SHAWN A. HILL, ) ) Appellant, ) ) vs. ) ) No. SD32994 ) BARRY COUNTY, MISSOURI, ) FILED: June 24, 2014 ) Respondent. ) APPEAL FROM THE CIRCUIT COURT OF NEWTON COUNTY Honorable Kevin L. Selby, Judge REVERSED AND REMANDED Plaintiff1 slipped on ice in a parking lot, fell, broke a leg, and sued. As an affirmative defense, Defendant alleged that any ice or snow on the parking lot “accumulated naturally and was a condition general to the community at the time of the incident alleged in the Petition, by reason of which Plaintiff is not entitled to recover.” Eventually, Defendant sought and obtained summary judgment on the same basis. 1We refer to the parties as they were in the trial court, appellant Hill as “Plaintiff” and respondent Barry County as “Defendant.” 1 We reverse and remand.", "Defendant did not establish that ice and snow “was a general condition in the community” as alleged. Rather, the developed record “is susceptible to more than one inference, precluding summary judgment.” Loth v. Union Pacific R.R. Co., 354 S.W.3d 635, 642 (Mo.App. 2011). Legal Background Massachusetts Rule / General Condition “Under Missouri law, there is no duty to remove snow or ice that accumulates naturally and is a condition general to the community.” Richey v. DP Properties, 252 S.W.3d 249, 251 (Mo.App.2008). Our courts have adhered for decades to this “natural accumulation” or “Massachusetts” rule. See Alexander v. American Lodging, Inc., 786 S.W.2d 599, 601 (Mo.App.", "1990), and cases cited therein. “Naturalness” of snow or ice differs from “generality,” and the latter is key. Michael J. Polelle, Is the Natural Accumulation Rule All Wet?, 26 LOY. U. CHI. L.J. 631, 650 (1995). “‘It is the generality of a situation resulting from natural causes that gives rise to the rule. Without that generality there would be no reason for the rule.’” Id. (quoting Graham v. City of Chicago, 178 N.E. 911, 913 (Ill. 1931)). Similar concerns led to Missouri’s adoption of the rule in Woodley v. Bush, 272 S.W.2d 833 (Mo.App. 1954),2 “for where the condition is one general to the community it creates a natural hazard to everyone who ventures out at such time. The condition is brought about by no one and no one’s efforts can appreciably lessen the danger present.” Id. at 835.", "2Maschoff v. Koedding, 439 S.W.2d 234, 237 (Mo.App. 1969), attributes Missouri’s adoption of the Massachusetts rule to Woodley. 2 As applied to the state of facts before us, the alley through which the plaintiff walked was just as icy as the premises upon which she lived, so that when she was on her way to and from work she was at all times subject to the danger of slipping. Had there been a clear walk to the alley it would have afforded her sure footing but for a very few feet and left her confronted with an icy road for the rest of her way. Thus any effort of the landlord would in fact only diminish the natural hazard to a very negligible degree. Id.", "By way of contrast, Missouri cases which note the rule but find it factually inapplicable for lack of a “general condition” include: • Carden v. Lester E. Cox Medical Center, 519 S.W.2d 338 (Mo.App. 1975). Official weather records showed four inches of snow on the ground, but there was trial testimony “that streets in the City of Springfield were free and clear of snow and ice on the day plaintiff fell. The jury by its verdict found that a general condition of snow and ice did not exist in the City of Springfield.” Id. at 340. • Gudorp v. City of St. Louis, 372 S.W.2d 483 (Mo.App. 1963). The plaintiff fell on an icy sidewalk, but other sidewalks in the vicinity and elsewhere in the city “were clear except for some snow in the curbing. Under the factual situation here prevailing, we cannot hold that the ice on the sidewalk where plaintiff fell was a part of a general condition prevailing throughout the City.” Id. at 486.3 • Evans v. Sears, Roebuck & Co., 104 S.W.2d 1035, 1037, 1039-40 (Mo.App. 1937) (affirming verdict for customer who fell at icy store entrance; evidence indicated that sidewalks and other entrances were free of ice and snow).", "Whether such a condition is “general” to the community is a fact question for a jury to decide under proper instructions. Turcol v. Shoney’s Enterprises, 640 S.W.2d 503, 508 (Mo.App. 1982). 3Nonetheless, the judgment was reversed for another reason, being a failure to show the City’s constructive notice of this condition. Gudorp, 372 S.W.2d at 487-88. 3 Summary Judgment Erroneous In seeking summary judgment, Defendant argued – but did not proffer as an uncontroverted fact – that ice and snow “was a general condition in the community.” The summary judgment record includes evidence that parts of the parking lot were clear on the accident date, while “[l]ocal businesses were clear, other places were snowy and icy.” Viewing the record and reasonable inferences favorably to Plaintiff, Loth, 354 S.W.3d at 642, does not establish that ice and snow “was a condition general to the community.” On this record, that is a jury issue.", "Turcol, 640 S.W.2d at 508. Plaintiff’s other arguments need not be reached. We reverse the judgment and remand the case for further proceedings. DANIEL E. SCOTT, J. – OPINION AUTHOR NANCY STEFFEN RAHMEYER, P.J. – CONCURS WILLIAM W. FRANCIS, JR., C.J. – CONCURS 4" ]	https://www.courtlistener.com/api/rest/v3/opinions/2680341/	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 is in response to application 16/864,660 filed on 5/1/2020 in which claims 1-20 are presented for examination. Status of Claims Claims 1-20 are allowed, of which claims 1, 7, and 14 are in independent form. Reasons for Allowance The following is an Examiner’s statement of reasons for allowance: Claims 1-20 are allowed. The Applicant’s filed TD on April 14, 2022 has been accepted. Thus, the record is cleared and claims 1-20 are hereby 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 TRUONG V VO whose telephone number is (571)272-1796. The examiner can normally be reached on 7am-5pm M-Thr. 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, Tamara Kyle can be reached on (571) 272-4241. 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. /TRUONG V VO/Primary Examiner, Art Unit 2156 6/4/2022	2022-06-18T22:33:49	[ "DETAILED ACTION Notice of Pre-AIA or AIA Status The present application is being examined under the pre-AIA first to invent provisions. This is in response to application 16/864,660 filed on 5/1/2020 in which claims 1-20 are presented for examination. Status of Claims Claims 1-20 are allowed, of which claims 1, 7, and 14 are in independent form. Reasons for Allowance The following is an Examiner’s statement of reasons for allowance: Claims 1-20 are allowed. The Applicant’s filed TD on April 14, 2022 has been accepted. Thus, the record is cleared and claims 1-20 are hereby 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 TRUONG V VO whose telephone number is (571)272-1796. The examiner can normally be reached on 7am-5pm M-Thr. 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, Tamara Kyle can be reached on (571) 272-4241. 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. /TRUONG V VO/Primary Examiner, Art Unit 2156 6/4/2022" ]	https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-06-19.zip	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
Mr. Justice Shepard delivered the opinion of the Court: This is an interference proceeding between opposing claimants of the invention of a new process for treating refractory ores, which is defined in the following issue as declared: 1. “The process which consists in effecting a mixture containing the ore, sulfur, and a haloid of an alkaline or alkaline-earth metal, the relative proportions of the materials being substantially those quantitatively requisite to produce, when heated in the presence of oxygen, a haloid of the metal or metals to be extracted from the ore and a sulfate of the alkaline or alkaline-221earth metal; roasting the mixture with free access of air, and agitation, at a temperature sufficient to effect the reaction mentioned; and volatilizing and recovering the metal values as haloids or oxyhaloids.” 2. “The process which consists in preparing a charge containing the ore, sulfur, and a ehlorid of an alkaline or alkaline-earth metal, the relative proportions of the materials being substantially those quantitatively requisite to produce, when heated in the presence of oxygen, a ehlorid of the metal or metals to be extracted from the ore, and a sulfate of the alkaline or alkaline-earth metals; roasting the charge with free access of air and with agitation, at a temperature sufficient to effect the reaction mentioned; and volatilizing and recovering the metal values as chlorids or oxychlorids.” The application of the appellees, Edwin C. Pohle and Stuart Croasdale, was filed January 23, 1900, and that of the appellant, Robert McKnight, on December 3, 1900. On the latter, therefore, was cast tire burden of establishing priority, upon Avhich has been superimposed that raised by the successive, adverse decisions of the three tribunals of the Patent Office. The question raised is one of fact only, and after a fair review and careful consideration of the evidence offered on behalf of McKnight, those tribunals have concurred in the Anew that it lacks the necessary weight to carry his claim of invention back of the earlier filing date of his opponents. Concurring in that view, and approving generally the grounds upon which it has been maintained in the decisions approved, we regard it as unnecessary to do more than briefly state the grounds of our concurrence. By reason of the state of the art, the invention, as finally declared patentable, is a narroAV one; and proof of successful invention must embrace all the elements of the specific process as recited in the issue. McKnight had the general idea of volatilizing, and thereby recovering the metal values of refractory sulfid ores through fusing or roasting them in combination with common salt. What was necessary for him to prove then, was the conception of the 222further necessary steps, namely, roasting the mixture with free access of air, and agitation at a temperature sufficient to effect the desired reaction. McKnight, himself, testified, and introduced evidence of others in an attempt to show that he had conceived every step of the process and had actually reduced it to practice in Colorado in 1896 and 1897, and in New Jersey in 1899. McKnight’s own testimony in regard to his early experiments is vague and unsatisfactory, especially when contrasted with the carefully-recorded statements of his opponents showing the orderly steps of their- progress from conception to complete invention through experimentation. The corroborating evidence introduced is weak because it comes from witnesses insufficiently skilled, if skilled at all in the particulars involved, who testified from memory only, long after the occurrences of which they spoke — some of them from five to six years after. Nothing more is shown with reasonable certainty than that McKnight had a volatilizing process carried on by fusing the mixture in a closed receptacle, without the free access of air and the agitation made necessary by the issue. Moreover, the weight of all this evidence is serionsly impaired by the fact that on January 12, 1900, McKnight filed an application for a patent for a volatilizing process with generic claims. Of this application, it was correctly said by the Commissioner: “As originally filed, the specification disclosed, and the drawing illustrated, a closed cylinder in which the material is to be placed for the purpose of heating the same. There is no mention whatever of heating in the presence of air, or of the agitation of the mixture during the heating.” As late as November, 1900, McKnight, with his then attorney, Collet, called upon one Gibbs, who was interested in the rival application, and had a talk concerning the possibility of joining interests. Neither party then had any information of the specific process of the other. Collet stated that McKnight’s application had been allowed, and gave Gibbs a copy of the claim allowed as follows: “Claim 1. The art of reducing gold' from refractory ores 223which consists in treating the pulverized ore and a haloid salt in a substantially closed receptacle until a halogen compound of gold is produced. We volatilize and then draw off and collect the halogen compound of gold.” Within a day or two, McKnight- and Collet came to Gibbs’s office in Philadelphia, and there discussed the matter with him, Croasdale, and Hawkins — the latter having an interest also. The Pohle and Croasdale application had been previously allowed for patent. McKnight’s had not been. Supposing that both applications had been allowed, and assuming consequently that there could be no interference between their claims, the Pohle and Croasdale specification and allowed claims were shown to Collet, who made notes, and admits that he memorized the claims. The evidence relating to the discussion of the processes during this meeting shows, we think, that McKnight did not then claim that his process included the free access of air to the interior of the fusing-cylinder. Collet could only explain his statements respecting the closed cylinder and experiments therewith, by saying that what he said, — “while not literally a misstatement, was so in spirit because it was intended to deceive.” It was not until after this interview and the acquisition of definite knowledge of the process of the other parties, that McKnight amended his pending application, the allowance of which had been untruly claimed, putting in specific claims for the free access of air, etc. Before that, however, he filed the present application, December 3, 1900, as stated by counsel in the brief on his behalf, — “for the purpose of securing an immediate declaration of interference with Pohle and Croasdale’s application.” Counsel admit in their brief that the failure of McKnight to refer to the use of air, or agitation of the mixture in his first application “raises a certain presumption that he had not then used the same;” but contend, at the same time, that it has been “fairly overcome by the testimony in behalf of McKnight.” We cannot accede to this view of that testimony. On the contrary, we agree wtih the Commissioner whose conclusion is summed up as follows: 224“In view of these circumstances, the testimony presented on behalf of McKnight as to his invention before January, 1900, is to be carefully scrutinized. It is significant, to say the least, that he did not disclose the invention in his application of January,. 1900, if he was then in possession of the same. This omission, coupled with the fact that he failed to disclose the same until it was admittedly disclosed to him by agents of another inventor, is almost sufficient of itself to warrant the conclusion that McKnight never independently invented the invention of the issue.” We regard it as unnecessary to consider the evidence of McKnight’s operations with the apparatus.removed by him to Philadelphia, as it all had relations to conditions prevailing long after the date when he acquired the knowledge of the Pohle and Croasdale process. The last contention of counsel, submitted in the addendum to their brief, is that the decisions in the Patent Office are due to error in — “treating the invention as if it consisted in the "exact determination’ of the proportions, temperature, and amount of oxygen necessary to produce the required result, when no specific proportions, degrees of heat, or amount of air are mentioned in the statement of the issues.” What was said in those decisions in regard to these matters had reference, we think, to the facts disclosed in the specifications of the parties and the evidence showing the series of experiments that had been carried on by Pohle and Croasdale in order to demonstrate the efficiency and commercial value of the process. The substantial grounds of decision are those that have been before stated. There is no error in the decision of the Commissioner, and his award of priority to the appellees must be affirmed. It is so ordered; and the clerk will certify this decision to the Commissioner as the law provides. Affirmed.	07-25-2022	[ "Mr. Justice Shepard delivered the opinion of the Court: This is an interference proceeding between opposing claimants of the invention of a new process for treating refractory ores, which is defined in the following issue as declared: 1. “The process which consists in effecting a mixture containing the ore, sulfur, and a haloid of an alkaline or alkaline-earth metal, the relative proportions of the materials being substantially those quantitatively requisite to produce, when heated in the presence of oxygen, a haloid of the metal or metals to be extracted from the ore and a sulfate of the alkaline or alkaline-221earth metal; roasting the mixture with free access of air, and agitation, at a temperature sufficient to effect the reaction mentioned; and volatilizing and recovering the metal values as haloids or oxyhaloids.” 2. “The process which consists in preparing a charge containing the ore, sulfur, and a ehlorid of an alkaline or alkaline-earth metal, the relative proportions of the materials being substantially those quantitatively requisite to produce, when heated in the presence of oxygen, a ehlorid of the metal or metals to be extracted from the ore, and a sulfate of the alkaline or alkaline-earth metals; roasting the charge with free access of air and with agitation, at a temperature sufficient to effect the reaction mentioned; and volatilizing and recovering the metal values as chlorids or oxychlorids.” The application of the appellees, Edwin C. Pohle and Stuart Croasdale, was filed January 23, 1900, and that of the appellant, Robert McKnight, on December 3, 1900.", "On the latter, therefore, was cast tire burden of establishing priority, upon Avhich has been superimposed that raised by the successive, adverse decisions of the three tribunals of the Patent Office. The question raised is one of fact only, and after a fair review and careful consideration of the evidence offered on behalf of McKnight, those tribunals have concurred in the Anew that it lacks the necessary weight to carry his claim of invention back of the earlier filing date of his opponents. Concurring in that view, and approving generally the grounds upon which it has been maintained in the decisions approved, we regard it as unnecessary to do more than briefly state the grounds of our concurrence. By reason of the state of the art, the invention, as finally declared patentable, is a narroAV one; and proof of successful invention must embrace all the elements of the specific process as recited in the issue. McKnight had the general idea of volatilizing, and thereby recovering the metal values of refractory sulfid ores through fusing or roasting them in combination with common salt. What was necessary for him to prove then, was the conception of the 222further necessary steps, namely, roasting the mixture with free access of air, and agitation at a temperature sufficient to effect the desired reaction. McKnight, himself, testified, and introduced evidence of others in an attempt to show that he had conceived every step of the process and had actually reduced it to practice in Colorado in 1896 and 1897, and in New Jersey in 1899.", "McKnight’s own testimony in regard to his early experiments is vague and unsatisfactory, especially when contrasted with the carefully-recorded statements of his opponents showing the orderly steps of their- progress from conception to complete invention through experimentation. The corroborating evidence introduced is weak because it comes from witnesses insufficiently skilled, if skilled at all in the particulars involved, who testified from memory only, long after the occurrences of which they spoke — some of them from five to six years after. Nothing more is shown with reasonable certainty than that McKnight had a volatilizing process carried on by fusing the mixture in a closed receptacle, without the free access of air and the agitation made necessary by the issue.", "Moreover, the weight of all this evidence is serionsly impaired by the fact that on January 12, 1900, McKnight filed an application for a patent for a volatilizing process with generic claims. Of this application, it was correctly said by the Commissioner: “As originally filed, the specification disclosed, and the drawing illustrated, a closed cylinder in which the material is to be placed for the purpose of heating the same. There is no mention whatever of heating in the presence of air, or of the agitation of the mixture during the heating.” As late as November, 1900, McKnight, with his then attorney, Collet, called upon one Gibbs, who was interested in the rival application, and had a talk concerning the possibility of joining interests.", "Neither party then had any information of the specific process of the other. Collet stated that McKnight’s application had been allowed, and gave Gibbs a copy of the claim allowed as follows: “Claim 1. The art of reducing gold' from refractory ores 223which consists in treating the pulverized ore and a haloid salt in a substantially closed receptacle until a halogen compound of gold is produced. We volatilize and then draw off and collect the halogen compound of gold.” Within a day or two, McKnight- and Collet came to Gibbs’s office in Philadelphia, and there discussed the matter with him, Croasdale, and Hawkins — the latter having an interest also. The Pohle and Croasdale application had been previously allowed for patent. McKnight’s had not been.", "Supposing that both applications had been allowed, and assuming consequently that there could be no interference between their claims, the Pohle and Croasdale specification and allowed claims were shown to Collet, who made notes, and admits that he memorized the claims. The evidence relating to the discussion of the processes during this meeting shows, we think, that McKnight did not then claim that his process included the free access of air to the interior of the fusing-cylinder. Collet could only explain his statements respecting the closed cylinder and experiments therewith, by saying that what he said, — “while not literally a misstatement, was so in spirit because it was intended to deceive.” It was not until after this interview and the acquisition of definite knowledge of the process of the other parties, that McKnight amended his pending application, the allowance of which had been untruly claimed, putting in specific claims for the free access of air, etc. Before that, however, he filed the present application, December 3, 1900, as stated by counsel in the brief on his behalf, — “for the purpose of securing an immediate declaration of interference with Pohle and Croasdale’s application.” Counsel admit in their brief that the failure of McKnight to refer to the use of air, or agitation of the mixture in his first application “raises a certain presumption that he had not then used the same;” but contend, at the same time, that it has been “fairly overcome by the testimony in behalf of McKnight.” We cannot accede to this view of that testimony.", "On the contrary, we agree wtih the Commissioner whose conclusion is summed up as follows: 224“In view of these circumstances, the testimony presented on behalf of McKnight as to his invention before January, 1900, is to be carefully scrutinized. It is significant, to say the least, that he did not disclose the invention in his application of January,. 1900, if he was then in possession of the same. This omission, coupled with the fact that he failed to disclose the same until it was admittedly disclosed to him by agents of another inventor, is almost sufficient of itself to warrant the conclusion that McKnight never independently invented the invention of the issue.” We regard it as unnecessary to consider the evidence of McKnight’s operations with the apparatus.removed by him to Philadelphia, as it all had relations to conditions prevailing long after the date when he acquired the knowledge of the Pohle and Croasdale process.", "The last contention of counsel, submitted in the addendum to their brief, is that the decisions in the Patent Office are due to error in — “treating the invention as if it consisted in the \"exact determination’ of the proportions, temperature, and amount of oxygen necessary to produce the required result, when no specific proportions, degrees of heat, or amount of air are mentioned in the statement of the issues.” What was said in those decisions in regard to these matters had reference, we think, to the facts disclosed in the specifications of the parties and the evidence showing the series of experiments that had been carried on by Pohle and Croasdale in order to demonstrate the efficiency and commercial value of the process. The substantial grounds of decision are those that have been before stated. There is no error in the decision of the Commissioner, and his award of priority to the appellees must be affirmed. It is so ordered; and the clerk will certify this decision to the Commissioner as the law provides. Affirmed." ]	https://www.courtlistener.com/api/rest/v3/opinions/7276556/	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
Sup. Ct. Ark. Certiorari denied.	11-28-2022	[ "Sup. Ct. Ark. Certiorari denied." ]	https://www.courtlistener.com/api/rest/v3/opinions/9136461/	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------------------------------x RAYMON DASH, Plaintiff, -v- No. 20 CV 3894-LTS-SDA CITY OF NEW YORK et al., Defendants. -------------------------------------------------------x ORDER ADOPTING REPORT & RECOMMENDATION The Court has reviewed Magistrate Judge Aaron’s May 17, 2021, Report and Recommendation (the “Report”) (docket entry no. 54) which recommends that the Court dismiss this case without prejudice for failure to prosecute. No objections to the Report have been received. In reviewing a report and recommendation, a district court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate [judge].” 28 U.S.C.A. § 636(b)(1)(C) (LexisNexis 2017). “In a case such as this one, where no timely objection has been made, a district court need only satisfy itself that there is no clear error on the face of the record.” Johnson v. New York University School of Education, No. 00 Civ. 8117, at *1, 2003 WL 21433443 (S.D.N.Y. June 16, 2003). The Court has reviewed carefully Magistrate Judge Aaron’s thorough and well- reasoned Report and Recommendation and finds no clear error. The Court therefore adopts the Report in its entirety for the reasons stated therein. Accordingly, this matter is dismissed without DASH - R&R ADOPT ORD.DOCX VERSION JUNE 3, 2021 1 prejudice for failure to prosecute. This Order resolves docket entry nos. 29, 39, 44, 47, and 48. The Clerk of Court is requested to enter judgment accordingly. SO ORDERED. Dated: New York, New York June 3, 2021 /s/ Laura Taylor Swain LAURA TAYLOR SWAIN Chief United States District Judge DASH - R&R ADOPT ORD.DOCX VERSION JUNE 3, 2021 2	2021-06-03	[ "UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------------------------------x RAYMON DASH, Plaintiff, -v- No. 20 CV 3894-LTS-SDA CITY OF NEW YORK et al., Defendants. -------------------------------------------------------x ORDER ADOPTING REPORT & RECOMMENDATION The Court has reviewed Magistrate Judge Aaron’s May 17, 2021, Report and Recommendation (the “Report”) (docket entry no. 54) which recommends that the Court dismiss this case without prejudice for failure to prosecute. No objections to the Report have been received. In reviewing a report and recommendation, a district court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate [judge].” 28 U.S.C.A. § 636(b)(1)(C) (LexisNexis 2017). “In a case such as this one, where no timely objection has been made, a district court need only satisfy itself that there is no clear error on the face of the record.” Johnson v. New York University School of Education, No.", "00 Civ. 8117, at *1, 2003 WL 21433443 (S.D.N.Y. June 16, 2003). The Court has reviewed carefully Magistrate Judge Aaron’s thorough and well- reasoned Report and Recommendation and finds no clear error. The Court therefore adopts the Report in its entirety for the reasons stated therein. Accordingly, this matter is dismissed without DASH - R&R ADOPT ORD.DOCX VERSION JUNE 3, 2021 1 prejudice for failure to prosecute. This Order resolves docket entry nos. 29, 39, 44, 47, and 48. The Clerk of Court is requested to enter judgment accordingly. SO ORDERED. Dated: New York, New York June 3, 2021 /s/ Laura Taylor Swain LAURA TAYLOR SWAIN Chief United States District Judge DASH - R&R ADOPT ORD.DOCX VERSION JUNE 3, 2021 2" ]	https://www.courtlistener.com/api/rest/v3/recap-documents/171479224/	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
Dunbae, J. The complaint alleges that the defendant, King county, maintains, among other roads and highways, a road and highway passing along through the town of Falls City and along a river bank, which road has been in existence for many years previous to the SOth day of November, 1907, the date of the accident which is the subject of this suit; that previous to said day, it had at all times been maintained in a safe condition for the traveling public for teams, etc.; that the plaintiff was familiar with said road as it had existed 491for years previous to said day; that on said day the highway had become dangerous to life and limb of travelers, in that through the center of the highway and road a large washout occurred which the defendant permitted to exist; that said washout was to a depth of from eight to twelve feet across the entire width of the road, as it passed over the principal street of Falls City and as it bordered or skirted the river bank; that said washout had occurred several days previous to the 30th day of November, 1907, and that the condition of the road was well known to the authorities, etc.; that on the 30th day of November, 1907, and'in the nighttime of said day, while the defendant carelessly and negligently maintained and permitted to exist said ditch, which constituted a death trap and man trap, without railings or warning signals of danger, plaintiff with other persons in a wagon, driven by horses, driving over said highway, not knowing the condition of the road, approached said road, passing over the said road from the north and west, and passed over the bridge spanning the Snoqualmie river; that immediately after passing over said bridge, he turned on to the right and passed down the highway running through the town of Falls City; that the night was dark, and there were no railings or barriers to prevent one from driving into said ditch, and that owing to the darkness of the night and the absence of railings or barriers, the team stepped off said bridge and highway, causing the accident complained of. It seems that there was a barrier crossing that portion of the street next to the sidewalk. As we understand it, the street or roadway was on the south side of the Snoqualmie river, and all the buildings were on the south side of the street. The defendant answered, denying negligence on its part, and alleging contributory negligence on the part of plaintiff in driving around the barriers which it had erected over a portion of the road, and proceeding to travel on that portion of the road outside of the barrier. The case was tried to a jury, and verdict was rendered in favor of plaintiff for the sum of $5,510. 492There is a sharp conflict in the testimony as to whether the barrier which had been erected by the authorities reached across the full width of the road, or whether the place at which the plaintiff was driving at the time of the accident was a part of the highway, or whether it was north of the highway; and that is, in fact, the main question in the case. The assignments of error on this appeal are that the court erred, (1) in denying defendant’s motion to take the case from the jury at the close of plaintiff’s evidence; (2) in overruling defendant’s motion for a nonsuit; (S) error in admission of testimony; (4) error in giving and refusing to give instructions to the jury; (5) in denying defendant’s motion for judgment notwithstanding the verdict; (6) and (T) in overruling defendant’s motion for a new trial and entering judgment in favor of plaintiff. It is contended by the appellant that there is no substantial testimony to the effect that the respondent was on the highway at the time the accident occurred. It is also contended that it is immaterial whether or not respondent was on the highway when he drove into the washout, as the court took that question from the jury by giving the following instruction : “Should you further find that the Avagon went into said ditch beyond and outside of the road line, but that the place Avhere it went in was not marked off from the county road and was theretofore and then used as a part of the county road, and that its general condition was a smooth surface and a continuance of the county road and that the place where the injury occurred was close to the line of the county road, and that persons using ordinary care would be liable to drive off of the road and into the land adjoining, if you find these things, then I instruct you that it makes no difference whether the accident occurred on the roadway proper or near it;” because, as is said by the appellant, this eliminates from the consideration of the jury the question of whether the respondent was actually on the roadbed at the time the accident occurred. It is claimed that this instruction is in vio493lation of the law, and many authorities are cited to sustain that contention. Among others, appellant quotes from Elliott on Roads and Streets (2d ed.), § 621, where it is said: “The general rule appears to be that the duty to keep in repair extends only to the ‘traveled path’ or portion of the way in actual use, provided it is wide enough to be safe. Necessity and expediency, without anything more, would probably justify such a rule in the case of country roads.” The cases cited by that author to sustain the text, and those cited by the appellant, we have examined, and it appears to us that neither the text cited nor the authorities referred to are in point. It is, no doubt, true that the general rule is that the duty of the county or the city is only to keep in repair that portion of the way in actual use, provided it is wide enough to be safe. But there is an element in the instruction here that is not discussed or decided in the cases cited by appellant, and we have been unable to find any authority in text books or cases where it is held that, where a county uses and keeps in repair a certain territory as a road for travel, and has invited the public to use it as a road, it can escape liability for not mending or guarding the danger suddenly created across the highway, simply because the pitfall or danger was not within the limits of the road to which the county held the legal title. That is exactly the proposition involved in this instruction; for it will be noted that the court incorporated the qualification that the location outside of the road line was theretofore and then used as a part of the county road. This doctrine is based, it seems to us, on simple justice and fair play, on the theory that the county ought to be estopped from denying responsibility where it had issued an invitation to the public to travel on the location adjacent to a county road as a part of the road, and where the road was in such position topographically as to mislead the public, there being no defined boundary between the road and that territory which the public had been invited to travel upon as a part of the road. This doctrine of 494liability under such circumstances was announced by this court in Prather v. Spokane, 29 Wash. 549, 70 Pac. 55, 92 Am. St. 923, 59 L. R. A. 346, where it was held that, where a city, although not required so to do, constructed a bicycle path, it would be held responsible for the maintenance in a reasonably safe manner, the court saying: “It is first argued by the appellant that the city was not required to construct these bicycle paths ; that it was optional with the city to do so or not, as it chose; and that, therefore, the liability arising from the mandatory duty is not imposed upon the appellant. Conceding this to be the rule, it does not apply in this case, because it is alleged that the path was constructed. The city having exercised its option to construct the path, the same rules must apply to the method and care in the construction and maintenance as applies where there is a duty imposed by law, viz., to so construct and maintain the path or street or walk that the same may be reasonably safe for the ordinary use for which it was intended citing many cases to sustain the text. Appellant refers the court to 15 Am. & Eng. Ency. Law (2d ed.), p. 455 (cited in appellant’s brief as p. 451), where it is said: “It is well settled that a municipality is under no obligation to fence its road or to put up barriers simply to prevent travelers so straying from the highway, and that, consequently, if a traveler so strays on to adjoining property and there meets with an accident at some distance from the highway, the municipality is not liable, though the barrier would have prevented such straying.” The author continued, however, in the next paragraph to say: “If there is a dangerous place, however, such as a declivity or excavation, so close to the highway or to the traveled part thereof as to render the latter unsafe for travelers in the absence of a railing or barrier, the want of such railing or barrier constitutes a defect in the highway itself, for injuries from which the municipality is liable. But the danger which requires a barrier must be of an unusual character, 495such as a bridge, declivity, excavation, steep bank, or deep water, and a space adjoining a road or street may be left without a barrier though it be rough and entirely unsuitable for travel.” The text falls squarely within the facts in this case, the testimony showing that the excavation or washout into which the plaintiff fell was very dangerous and in very close proximity to the street, conceding that it was not in the street, and of such an unusual character that it should have been barred from travel to the unsuspecting and unnotified. The same authority says that the question of proximity is to be considered with reference to whether the highway was traveled or worked, rather than as laid out. It was held in Willey v. Ellsworth, 64 Me. 57, that ways may be established by proof of public user or by a laying out by the constituted authorities; that the limits of the way are determined by user or by location; that however a way is shown to exist, it is one with limits defined by user or location. In Moran v. Inhabitants of Palmer, 162 Mass. 196, 38 N. E. 442, it was held that an instruction, to the effect that the side of the street, although never actually wrought as a sidewalk, when used and permitted and intended by the town to be used by persons on foot was a part of the traveled highway, was correct, and that a side of a street may be in such form and so used with the knowledge and acquiescence of the town as to be a portion of the traveled part of the way which the town is bound to keep in repair, even though no work has been done upon it to fit it for the use of pedestrians; citing Lowe v. Clinton, 136 Mass. 24, and Aston v. Newton, 134 Mass. 507, 45 Am. Rep. 347. In Wakeham v. St. Clair, 91 Mich. 15, 51 N. W. 696, where in an action against a town for personal injuries occasioned by a defective highway, the evidence showed that it was along the bank of a river; that to protect the highway, the town had constructed a breakwater by laying a line of 496logs parallel with the river, and piling transversely thereon slabs to the height of the highway; that the space between the slabs and the bank had been filled in with earth, which extended half way over the slabs; that the roadbed was narrow ; that at a certain point in the highway there had been a mad hole for some time; that there were two dangerous holes at the edge of the slabs, a few feet from the side of the mud hole; and that the town authorities knew of the condition of the road, and had placed a danger signal in the first hole, but left the second unguarded; it was held that, if the second hole was so near the way intended for travel that persons would be likely to get into it in seeking to avoid the mud hole, the town was guilty of negligence in allowing it to remain there for an unreasonable length of time. It will be seen that the circumstances and principles of the case were exactly on a par with the case at bar, where a portion of the street had been barricaded and the other portion, which was immediately adjacent to it, had been left without a guard. In Aston v. Newton, supra, it was held that if, between the sidewalk of a street in a city and that portion of the street wrought for a carriage, there is a grassed space, over which a footpath has been worn by use by persons having occasion to enter another street abutting on this street but not crossing it, or to come in the opposite direction, the city is hable to a person injured by a defect in such path, if the path was known to and recognized by the city as a part of the wrought line of travel, in the absence of any path or other provision made by the city for crossing the street at or near the locality in question, or of any barrier or other warning to indicate that the path as actually used was unsafe or unsuitable. To the same effect is Watson v. Proprietors of Lisbon Bridge, 14 Me. 201, 31 Am. Dec. 49, and Saltmarsh v. Bow, 56 N. H. 428, where it was held that, if a town suffers the traveled part of a highway to become widened, so as to hold out to the traveler that the whole width is equally suitable for the public travel, it is answerable for damages grow497ing out of defects in the part so widened; and, in fact, we think this is almost the universal authority when the cases cited are properly analyzed. It is the claim of the respondent, and there is sufficient testimony to support that contention, if the jury believed it, that all the land between the sidewalk on the south part of the street and the telephone poles on the river bank, had been recognized and used as the public road, and that work had been done on all parts of it; so that, in the absence of error in the instructions, the determination of the questions of fact by the jury is conclusive. It is also contended that the court erred in giving the following instruction: “It is the duty of the county, such as the county of King, to maintain its public highways and roads in a reasonably safe condition for public travel. That duty must be exercised by the officials of the county having charge of the public highways, and failure to exercise that duty and failure to maintain its highways in a reasonably safe condition for public travel, such as might be reasonably expected by those who travel over these highways, would constitute negligence on the part of the county.” It is contended that this instruction makes the county an insurer of those who travel upon the highway, and that there is a difference between using reasonable diligence in maintaining a highway in a reasonably safe condition for public travel, and maintaining its public highways in a reasonably safe condition for public travel. But the instruction of the court on this particular proposition, when viewed as a whole, is not prejudicial, for after giving that part of the instruction complained of, the court proceeded: “The county officers are not required under the law to anticipate unforeseen or unusual occurrences, such as an unusual flood or freshet, and such occurrences in the law are considered to be the acts of God, which county officers are not required to guard against. So the first thing for you to determine in this case is whether or not this washout that 498occurred in the street was one which ordinary prudence would have anticipated and guarded against. If ordinary human prudence and caution would not have anticipated and guarded against it, then it was not negligence on the part of the county that the washout really occurred. Under vnese circumstances, it would be considered an act of God, so that for the washout itself, the county would not be responsible. If, however, it was such an occurrence that human prudence would ordinarily foresee and ordinarily in the exercise of reasonable care would anticipate and guard against, then it would not come under the class of occurrences known as the act of God, and it would be negligence on the part of the county not to have guarded against it or prevented it.” So that the duty of the county after all was gauged by ordinary human prudence and caution, and the county was not, under such an instruction, made an insurer of the safety of those who travel along its highways. The instruction as a whole was clear and explicit, and covered every point involved in the controversy. We are unable to discover that the court committed error in giving or refusing instructions, or in the admission or rejection of testimony. While the amount of the verdict in this case from one standpoint seems to be large, yet from the legitimate testimony presenbed in the case, we are not.able to say that it is the duty of this court to interfere with the verdict of the jury in that regard. The judgment will be affirmed. Rudkin, C. J., Mount, Crow, and Parker, JJ., concur.	08-12-2021	[ "Dunbae, J. The complaint alleges that the defendant, King county, maintains, among other roads and highways, a road and highway passing along through the town of Falls City and along a river bank, which road has been in existence for many years previous to the SOth day of November, 1907, the date of the accident which is the subject of this suit; that previous to said day, it had at all times been maintained in a safe condition for the traveling public for teams, etc.", "; that the plaintiff was familiar with said road as it had existed 491for years previous to said day; that on said day the highway had become dangerous to life and limb of travelers, in that through the center of the highway and road a large washout occurred which the defendant permitted to exist; that said washout was to a depth of from eight to twelve feet across the entire width of the road, as it passed over the principal street of Falls City and as it bordered or skirted the river bank; that said washout had occurred several days previous to the 30th day of November, 1907, and that the condition of the road was well known to the authorities, etc. ; that on the 30th day of November, 1907, and'in the nighttime of said day, while the defendant carelessly and negligently maintained and permitted to exist said ditch, which constituted a death trap and man trap, without railings or warning signals of danger, plaintiff with other persons in a wagon, driven by horses, driving over said highway, not knowing the condition of the road, approached said road, passing over the said road from the north and west, and passed over the bridge spanning the Snoqualmie river; that immediately after passing over said bridge, he turned on to the right and passed down the highway running through the town of Falls City; that the night was dark, and there were no railings or barriers to prevent one from driving into said ditch, and that owing to the darkness of the night and the absence of railings or barriers, the team stepped off said bridge and highway, causing the accident complained of.", "It seems that there was a barrier crossing that portion of the street next to the sidewalk. As we understand it, the street or roadway was on the south side of the Snoqualmie river, and all the buildings were on the south side of the street. The defendant answered, denying negligence on its part, and alleging contributory negligence on the part of plaintiff in driving around the barriers which it had erected over a portion of the road, and proceeding to travel on that portion of the road outside of the barrier. The case was tried to a jury, and verdict was rendered in favor of plaintiff for the sum of $5,510. 492There is a sharp conflict in the testimony as to whether the barrier which had been erected by the authorities reached across the full width of the road, or whether the place at which the plaintiff was driving at the time of the accident was a part of the highway, or whether it was north of the highway; and that is, in fact, the main question in the case. The assignments of error on this appeal are that the court erred, (1) in denying defendant’s motion to take the case from the jury at the close of plaintiff’s evidence; (2) in overruling defendant’s motion for a nonsuit; (S) error in admission of testimony; (4) error in giving and refusing to give instructions to the jury; (5) in denying defendant’s motion for judgment notwithstanding the verdict; (6) and (T) in overruling defendant’s motion for a new trial and entering judgment in favor of plaintiff.", "It is contended by the appellant that there is no substantial testimony to the effect that the respondent was on the highway at the time the accident occurred. It is also contended that it is immaterial whether or not respondent was on the highway when he drove into the washout, as the court took that question from the jury by giving the following instruction : “Should you further find that the Avagon went into said ditch beyond and outside of the road line, but that the place Avhere it went in was not marked off from the county road and was theretofore and then used as a part of the county road, and that its general condition was a smooth surface and a continuance of the county road and that the place where the injury occurred was close to the line of the county road, and that persons using ordinary care would be liable to drive off of the road and into the land adjoining, if you find these things, then I instruct you that it makes no difference whether the accident occurred on the roadway proper or near it;” because, as is said by the appellant, this eliminates from the consideration of the jury the question of whether the respondent was actually on the roadbed at the time the accident occurred.", "It is claimed that this instruction is in vio493lation of the law, and many authorities are cited to sustain that contention. Among others, appellant quotes from Elliott on Roads and Streets (2d ed. ), § 621, where it is said: “The general rule appears to be that the duty to keep in repair extends only to the ‘traveled path’ or portion of the way in actual use, provided it is wide enough to be safe. Necessity and expediency, without anything more, would probably justify such a rule in the case of country roads.” The cases cited by that author to sustain the text, and those cited by the appellant, we have examined, and it appears to us that neither the text cited nor the authorities referred to are in point. It is, no doubt, true that the general rule is that the duty of the county or the city is only to keep in repair that portion of the way in actual use, provided it is wide enough to be safe.", "But there is an element in the instruction here that is not discussed or decided in the cases cited by appellant, and we have been unable to find any authority in text books or cases where it is held that, where a county uses and keeps in repair a certain territory as a road for travel, and has invited the public to use it as a road, it can escape liability for not mending or guarding the danger suddenly created across the highway, simply because the pitfall or danger was not within the limits of the road to which the county held the legal title. That is exactly the proposition involved in this instruction; for it will be noted that the court incorporated the qualification that the location outside of the road line was theretofore and then used as a part of the county road.", "This doctrine is based, it seems to us, on simple justice and fair play, on the theory that the county ought to be estopped from denying responsibility where it had issued an invitation to the public to travel on the location adjacent to a county road as a part of the road, and where the road was in such position topographically as to mislead the public, there being no defined boundary between the road and that territory which the public had been invited to travel upon as a part of the road. This doctrine of 494liability under such circumstances was announced by this court in Prather v. Spokane, 29 Wash. 549, 70 Pac.", "55, 92 Am. St. 923, 59 L. R. A. 346, where it was held that, where a city, although not required so to do, constructed a bicycle path, it would be held responsible for the maintenance in a reasonably safe manner, the court saying: “It is first argued by the appellant that the city was not required to construct these bicycle paths ; that it was optional with the city to do so or not, as it chose; and that, therefore, the liability arising from the mandatory duty is not imposed upon the appellant. Conceding this to be the rule, it does not apply in this case, because it is alleged that the path was constructed. The city having exercised its option to construct the path, the same rules must apply to the method and care in the construction and maintenance as applies where there is a duty imposed by law, viz., to so construct and maintain the path or street or walk that the same may be reasonably safe for the ordinary use for which it was intended citing many cases to sustain the text.", "Appellant refers the court to 15 Am. & Eng. Ency. Law (2d ed. ), p. 455 (cited in appellant’s brief as p. 451), where it is said: “It is well settled that a municipality is under no obligation to fence its road or to put up barriers simply to prevent travelers so straying from the highway, and that, consequently, if a traveler so strays on to adjoining property and there meets with an accident at some distance from the highway, the municipality is not liable, though the barrier would have prevented such straying.” The author continued, however, in the next paragraph to say: “If there is a dangerous place, however, such as a declivity or excavation, so close to the highway or to the traveled part thereof as to render the latter unsafe for travelers in the absence of a railing or barrier, the want of such railing or barrier constitutes a defect in the highway itself, for injuries from which the municipality is liable. But the danger which requires a barrier must be of an unusual character, 495such as a bridge, declivity, excavation, steep bank, or deep water, and a space adjoining a road or street may be left without a barrier though it be rough and entirely unsuitable for travel.” The text falls squarely within the facts in this case, the testimony showing that the excavation or washout into which the plaintiff fell was very dangerous and in very close proximity to the street, conceding that it was not in the street, and of such an unusual character that it should have been barred from travel to the unsuspecting and unnotified.", "The same authority says that the question of proximity is to be considered with reference to whether the highway was traveled or worked, rather than as laid out. It was held in Willey v. Ellsworth, 64 Me. 57, that ways may be established by proof of public user or by a laying out by the constituted authorities; that the limits of the way are determined by user or by location; that however a way is shown to exist, it is one with limits defined by user or location. In Moran v. Inhabitants of Palmer, 162 Mass.", "196, 38 N. E. 442, it was held that an instruction, to the effect that the side of the street, although never actually wrought as a sidewalk, when used and permitted and intended by the town to be used by persons on foot was a part of the traveled highway, was correct, and that a side of a street may be in such form and so used with the knowledge and acquiescence of the town as to be a portion of the traveled part of the way which the town is bound to keep in repair, even though no work has been done upon it to fit it for the use of pedestrians; citing Lowe v. Clinton, 136 Mass. 24, and Aston v. Newton, 134 Mass. 507, 45 Am.", "Rep. 347. In Wakeham v. St. Clair, 91 Mich. 15, 51 N. W. 696, where in an action against a town for personal injuries occasioned by a defective highway, the evidence showed that it was along the bank of a river; that to protect the highway, the town had constructed a breakwater by laying a line of 496logs parallel with the river, and piling transversely thereon slabs to the height of the highway; that the space between the slabs and the bank had been filled in with earth, which extended half way over the slabs; that the roadbed was narrow ; that at a certain point in the highway there had been a mad hole for some time; that there were two dangerous holes at the edge of the slabs, a few feet from the side of the mud hole; and that the town authorities knew of the condition of the road, and had placed a danger signal in the first hole, but left the second unguarded; it was held that, if the second hole was so near the way intended for travel that persons would be likely to get into it in seeking to avoid the mud hole, the town was guilty of negligence in allowing it to remain there for an unreasonable length of time.", "It will be seen that the circumstances and principles of the case were exactly on a par with the case at bar, where a portion of the street had been barricaded and the other portion, which was immediately adjacent to it, had been left without a guard. In Aston v. Newton, supra, it was held that if, between the sidewalk of a street in a city and that portion of the street wrought for a carriage, there is a grassed space, over which a footpath has been worn by use by persons having occasion to enter another street abutting on this street but not crossing it, or to come in the opposite direction, the city is hable to a person injured by a defect in such path, if the path was known to and recognized by the city as a part of the wrought line of travel, in the absence of any path or other provision made by the city for crossing the street at or near the locality in question, or of any barrier or other warning to indicate that the path as actually used was unsafe or unsuitable.", "To the same effect is Watson v. Proprietors of Lisbon Bridge, 14 Me. 201, 31 Am. Dec. 49, and Saltmarsh v. Bow, 56 N. H. 428, where it was held that, if a town suffers the traveled part of a highway to become widened, so as to hold out to the traveler that the whole width is equally suitable for the public travel, it is answerable for damages grow497ing out of defects in the part so widened; and, in fact, we think this is almost the universal authority when the cases cited are properly analyzed. It is the claim of the respondent, and there is sufficient testimony to support that contention, if the jury believed it, that all the land between the sidewalk on the south part of the street and the telephone poles on the river bank, had been recognized and used as the public road, and that work had been done on all parts of it; so that, in the absence of error in the instructions, the determination of the questions of fact by the jury is conclusive. It is also contended that the court erred in giving the following instruction: “It is the duty of the county, such as the county of King, to maintain its public highways and roads in a reasonably safe condition for public travel.", "That duty must be exercised by the officials of the county having charge of the public highways, and failure to exercise that duty and failure to maintain its highways in a reasonably safe condition for public travel, such as might be reasonably expected by those who travel over these highways, would constitute negligence on the part of the county.” It is contended that this instruction makes the county an insurer of those who travel upon the highway, and that there is a difference between using reasonable diligence in maintaining a highway in a reasonably safe condition for public travel, and maintaining its public highways in a reasonably safe condition for public travel.", "But the instruction of the court on this particular proposition, when viewed as a whole, is not prejudicial, for after giving that part of the instruction complained of, the court proceeded: “The county officers are not required under the law to anticipate unforeseen or unusual occurrences, such as an unusual flood or freshet, and such occurrences in the law are considered to be the acts of God, which county officers are not required to guard against. So the first thing for you to determine in this case is whether or not this washout that 498occurred in the street was one which ordinary prudence would have anticipated and guarded against. If ordinary human prudence and caution would not have anticipated and guarded against it, then it was not negligence on the part of the county that the washout really occurred. Under vnese circumstances, it would be considered an act of God, so that for the washout itself, the county would not be responsible. If, however, it was such an occurrence that human prudence would ordinarily foresee and ordinarily in the exercise of reasonable care would anticipate and guard against, then it would not come under the class of occurrences known as the act of God, and it would be negligence on the part of the county not to have guarded against it or prevented it.” So that the duty of the county after all was gauged by ordinary human prudence and caution, and the county was not, under such an instruction, made an insurer of the safety of those who travel along its highways.", "The instruction as a whole was clear and explicit, and covered every point involved in the controversy. We are unable to discover that the court committed error in giving or refusing instructions, or in the admission or rejection of testimony. While the amount of the verdict in this case from one standpoint seems to be large, yet from the legitimate testimony presenbed in the case, we are not.able to say that it is the duty of this court to interfere with the verdict of the jury in that regard. The judgment will be affirmed.", "Rudkin, C. J., Mount, Crow, and Parker, JJ., concur." ]	https://www.courtlistener.com/api/rest/v3/opinions/4729239/	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
Exhibit 23.1 CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM We consent to the incorporation by reference in this Registration Statement on Form S-8 of United Community Banks, Inc. and subsidiaries of our report dated March 13, 2012 related to our audits of the consolidated financial statements and internal control over financial reporting, which appears in the Annual Report on Form 10-K of United Community Banks, Inc. and subsidiaries for the year ended December 31, 2011. Our report dated March 13, 2012, on the effectiveness of internal control over financial reporting as of December 31, 2011, expressed an opinion that United Community Banks, Inc. and subsidiaries had not maintained effective internal control over financial reporting as of December 31, 2011, based on criteria established in Internal Control — Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission. /s/ PORTER KEADLE MOORE, LLC Atlanta, Georgia September 7, 2012		[ "Exhibit 23.1 CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM We consent to the incorporation by reference in this Registration Statement on Form S-8 of United Community Banks, Inc. and subsidiaries of our report dated March 13, 2012 related to our audits of the consolidated financial statements and internal control over financial reporting, which appears in the Annual Report on Form 10-K of United Community Banks, Inc. and subsidiaries for the year ended December 31, 2011. Our report dated March 13, 2012, on the effectiveness of internal control over financial reporting as of December 31, 2011, expressed an opinion that United Community Banks, Inc. and subsidiaries had not maintained effective internal control over financial reporting as of December 31, 2011, based on criteria established in Internal Control — Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission. /s/ PORTER KEADLE MOORE, LLC Atlanta, Georgia September 7, 2012" ]	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
EXHIBIT A Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 1 of 45 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NORTH CAROLINA BOBBY JO ROSINBAUM and ROBERT WILLIAM MORGAN, JR., individually and on behalf of all similarly situated individuals, Civ. A. No. 7:16-cv-00233-FL Plaintiffs, CLASS AND COLLECTIVE ACTION v. SETTLEMENT AGREEMENT AND RELEASE FLOWERS FOODS, INC., and FRANKLIN BAKING CO., LLC, Defendants. Subject to the approval of the Court and pursuant to Rule 23 of the Federal Rules of Civil Procedure and § 216(b) of the Fair Labor Standards Act (“FLSA”), this Class and Collective Action Settlement Agreement and Release (“Settlement Agreement”), including the attached Exhibits, is entered into between: (a) Named Plaintiffs Bobby Jo Rosinbaum and Robert William Morgan, Jr. (collectively referred to as “Class Representatives,” “Plaintiffs,” or “Named Plaintiffs”), on behalf of themselves and any business entities through which they operated, and on behalf of each of the Settlement Class Members; and (b) Flowers Foods, Inc. (“Flowers Foods”) and Franklin Baking Co., LLC. (“Franklin”) (collectively, “Defendants”).1 As provided below, the Parties hereby stipulate and agree that, in consideration of the promises and covenants set forth in this Settlement Agreement and upon the Settlement Effective Date, this Action shall be settled and compromised upon the terms and conditions set forth in this Settlement Agreement and will be dismissed with prejudice. This Settlement Agreement is intended by the Parties to fully and finally compromise, resolve, discharge, release, and settle the Released Claims and to dismiss this Action 1 Capitalized terms used herein are defined in Section 3 below. Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 2 of 45 with prejudice, subject to the Court’s approval and to the terms and conditions set forth below, and without any admission or concession as to the merits of any claim or defense by any of the Parties. NOW, THEREFORE, this Settlement Agreement is entered into by and among the Parties, by and through their respective counsel and representatives, and the Parties agree that upon the Settlement Effective Date: (1) the Action shall be settled and compromised as between the Parties, and (2) the Proposed Final Approval Order and Judgment, in a form to be submitted by the Parties in connection with final approval, shall be entered dismissing the Action with prejudice releasing all Released Claims, against all Releasees on all on the following terms and conditions: Page 2 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 3 of 45 Table of Contents Table of Contents .................................................................................................................... 3 Table of Exhibits ..................................................................................................................... 4 Definitions............................................................................................................................... 5 Jurisdiction ............................................................................................................................ 15 Statement of No Admission .................................................................................................. 16 Claims of the Plaintiffs and Benefits of Settlement .............................................................. 17 Non-Monetary Relief and Other Options for Distributors .................................................... 17 Waiver, Release and Dismissal ............................................................................................. 19 Required Events and Cooperation by the Parties .................................................................. 21 Settlement Administration ................................................................................................. 23 Notice to the Settlement Class, Objection, and Exclusion Rights ..................................... 28 Payment from the Settlement Fund.................................................................................... 33 Settlement Fund Allocation ............................................................................................... 33 Attorneys’ Fees and Costs ................................................................................................. 36 Miscellaneous Provisions................................................................................................... 36 Named Plaintiffs’ Certifications ........................................................................................ 41 Page 3 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 4 of 45 Table of Exhibits Exhibit 1: Arbitration Agreement Packet .................................................................................5, 18 Exhibit 2A: Notice to Current Distributors Who Are Rule 23 Class Members Only (Excludes FLSA Collective Members) .....................................................................................6, 28, 29 Exhibit 2B: Notice to Former Distributors Who Are Rule 23 Class Members Only (Excludes FLSA Collective Members) ................................................................................................6, 28, 29 Exhibit 3A: Notice to Current Distributors Who Are FLSA Collective Members And Who Also Have a Rule 23 Class Claim ..........................................................................................7, 28 Exhibit 3B: Notice to Former Distributors Who Are FLSA Collective Members And Who Also Have a Rule 23 Class Claim ....................................................................................7, 28, 29 Exhibit 4A: Notice to Current Distributors Who Are FLSA Collective Members Only...........7, 28 Exhibit 4B: Notice to Former Distributors Who Are FLSA Collective Members Only (Who Are Not Also Rule 23 Class Members) ................................................................................7, 28 Exhibit 5: Reminder Notice ......................................................................................................7, 29 Exhibit 6: Proposed Preliminary Approval Order ...................................................................11, 21 Exhibit 7: Non-Monetary Relief and Other Options for Distributor .............................................17 Exhibit 8: Distributor Review Panel .............................................................................................17 Exhibit 9: Distributor Advocate Position .......................................................................................17 Exhibit 10: Buy Back Option Election Form .................................................................................18 Page 4 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 5 of 45 Definitions Action: means the above-captioned lawsuit: Bobby Jo Rosinbaum, Robert William Morgan, Jr, individually and on behalf of all other similarly situated individuals v. Flowers Foods, Inc. and Franklin Baking Co., LLC, Case No. 7:16-cv-233, pending in the United States District Court for the Eastern District of North Carolina. Agreement or Settlement Agreement: means this Settlement Agreement, including all Exhibits attached hereto. Amendment and Arbitration Agreement: means the form approved by Class Counsel and Defendants, a copy of which is included in the arbitration agreement packet attached hereto as Exhibit 1, which will be presented to all current distributor Class and FLSA Collective Members by the Settlement Administrator during the Notice Period. Such current distributors shall have the option to “Accept” this Amendment and Arbitration Agreement and receive an additional $3,500 from the Settlement Fund, or “Not Accept” this option and forfeit this payment, as more specifically discussed in Section 7.4 below. The deadline to return the “Accept” form and the signed Amendment and Arbitration Agreement to the Settlement Administrator shall be the end of the Notice Period. Only current distributor Settlement Class Members, as defined below, are eligible to sign the Amendment and receive this additional payment. Attorneys’ Fees and Costs: means such funds as may be awarded by the Court to Class Counsel to compensate them for their fees, costs, and expenses in connection therewith, as described more fully below. Upon approval of the Court, and within the specified period after the Effective Date, the Settlement Administrator will pay Class Counsels’ Attorneys’ Fees and Costs directly from the Settlement Fund. Page 5 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 6 of 45 Buy Back Option: means the repurchase option extended to current Settlement Class Members as described in Section 7.5 below. To elect this option, the Buy Back Election Form must be returned to the Settlement Administrator by the end of the Notice Period. Class Counsel :means Shawn J. Wanta of Baillon Thome Jozwiak & Wanta LLP; Susan Ellingstad of Lockridge Grindal Nauen, PLLP; and J. Gordon Rudd of Zimmerman Reed LLP. Class Member: means any individual who operated under a Distributor Agreement with Franklin during a Covered Period, who operated in the state of North Carolina, and who did not sign a new Distributor Agreement or Amendment containing the Arbitration Agreement with a class action waiver.2 Class Representatives, Plaintiffs, or Named Plaintiffs: Bobby Jo Rosinbaum and Robert William Morgan, Jr. Class Settlement Notice or Settlement Notice:means the form of notices attached as: (i) Exhibit 2A, to be disseminated to current distributor Class Members who are not Named Plaintiffs or FLSA Collective Members, informing them about the terms of the Settlement Agreement, including their rights to participate in the Settlement Agreement; to exclude themselves or to object to the same; to appear at the Fairness Hearing; to “Accept” and sign the Amendment and Arbitration Agreement or “Not Accept” the Amendment and Arbitration Agreement; and whether or not to exercise the Buy Back Option; (ii) Exhibit 2B, to be disseminated to former distributor Class Members who are not Named Plaintiffs or FLSA Collective Members, informing them about the terms of the Settlement Agreement, including their rights to participate in the Settlement Agreement; to exclude themselves or to object to the same; 2 The only exceptions shall be for Michael David Vandall and Tony Wilkes, who are FLSA Collective Members who signed the Amendment and who the Parties agreed shall be eligible to participate in this settlement. Page 6 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 7 of 45 and to appear at the Fairness Hearing; (iii) Exhibit 3A, to be disseminated to current distributor FLSA Collective Members who are also Class Members but are not Named Plaintiffs, informing them about the terms of this Settlement Agreement, including their right to withdraw and exclude themselves from the Settlement entirely; how to object; their option to “Accept” and sign the Amendment and Arbitration Agreement or “Not Accept” the Amendment and Arbitration Agreement, and whether or not to exercise the Buy Back Option; and (iv) Exhibit 3B, to distributed to former distributor FLSA Collective members who are also Class Members but are not Named Plaintiffs informing them of terms of this Settlement Agreement, their right to withdraw and exclude themselves from the Settlement; and how to object; (v) Exhibit 4A, to be distributed to current distributors who are FLSA Collective Members only (and not Named Plaintiffs or Class Members), informing them of the terms of the Settlement Agreement, their right to withdraw; how to object; the option to “Accept” and sign the Amendment and Arbitration Agreement or “Not Accept” the Amendment and Arbitration Agreement, and whether or not to exercise the Buy Back Option; and (vi) Exhibit 4B, to be distributed to former distributors who are FLSA Collective Members (and not Named Plaintiffs or Class Members) informing them of the terms of the Settlement Agreement and their right to withdraw; and how to object.; A “Reminder Notice” in the form of Exhibit 5 will be sent to any current distributor Class Member or FLSA Collective Member who has not submitted a signed Amendment and Arbitration Agreement within the first 45 days of the Notice Period. Court: means the United States District Court for the Eastern District of North Carolina. Covered Period: means: Page 7 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 8 of 45 For FLSA claims, from the date each FLSA Collective Member filed their consent to join the FLSA portion of the lawsuit through May 21, 2019; For North Carolina claims, from December 1, 2013 through May 21, 2019; While the Covered Period encompasses the time frames outlined above, such Covered Period will be calculated on an individual basis using the dates during which each individual was a distributor and any other relevant information. While the Covered Period ends on May 21, 2019, as set forth in Section 3.24 below, the Released Claims shall extend up to an including December 31, 2019. Defendants: mean the Defendants in this lawsuit, Flowers Foods, Inc. and Franklin Baking Co., LLC Defense Counsel: means Benjamin R. Holland, Maggie Hanrahan, and Kevin Hishta of Ogletree, Deakins, Nash, Smoak & Stewart, P.C. Effective Date or Settlement Effective Date: shall be the first day after the first date on which all of the following have occurred: Plaintiffs and Defendants’ duly authorized representatives have executed this Agreement; The Court has preliminarily approved this settlement; Reasonable notice has been sent to Class Members and FLSA Collective Members as set forth herein; The Court has held a Fairness Hearing under Rule 23(e), has entered an order granting final approval of the settlement that is the same in all material respects as that set forth in this Agreement, has entered final Page 8 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 9 of 45 judgment, has awarded Named Plaintiffs any Service Awards, and has awarded Class Counsel their reasonable Attorneys’ Fees and Costs; and Only if there are written objections filed before the Fairness Hearing and those objections are not later withdrawn, the last of the following events to occur: 3.14.5.1. If no appeal is filed, then the date on which the time to appeal the Final Approval Order and Judgment has expired with no appeal or any other judicial review having been taken or sought; or 3.14.5.2. If an appeal of the Final Approval Order and Judgment has been timely filed or other judicial review was taken or sought, the date that Order is finally affirmed by an appellate court with no possibility of subsequent appeal or other judicial review or the date the appeals or any other judicial review are finally dismissed with no possibility of subsequent appeal or other judicial review. It is the intention of the Parties that the settlement shall not become effective until the Court’s Final Approval Order and Judgment has become completely final and until there is no timely recourse by an appellant or objector who seeks to contest the settlement. Exclusion Date: means the date, to be set by the Court, by which an Exclusion Request must be submitted to the Settlement Administrator for a Class Member, including a Class Member who is an FLSA Collective Member (but not a Named Plaintiff) to be excluded from the Settlement Class. Exclusion Request: means the written communication that must be submitted to the Settlement Administrator and postmarked on or before the Exclusion Date by a Class Member, including a Class Member who is an FLSA Collective Member (but not a Named Plaintiff) and Page 9 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 10 of 45 who wishes to be excluded from the Settlement Class. Class Members, including FLSA Collective Members who are also Class Members (but not Named Plaintiffs), who make an Exclusion Request are excluded from the litigation and not just the settlement. Fairness Hearing: means the hearing to be conducted by the Court about its determination of the fairness, adequacy, and reasonableness of the Settlement Agreement in accordance with Rule 23(e) and the FLSA. Final Approval Order and Judgment or Final Approval: means the final order to be entered by the Court that grants final approval of the settlement and enters judgment dismissing this Action with prejudice and that: (i) conforms to this Settlement Agreement, (ii) approves the settlement and the Settlement Agreement as fair, adequate, and reasonable, (iii) confirms the certification of the Settlement Class for purposes of the settlement only, and (iv) issues such other determinations as the Court or the Parties deem necessary and appropriate in order to approve the settlement and implement the Settlement Agreement. FLSA Collective Members: means those 89 individuals, in addition to the Named Plaintiffs, who under § 216(b) of the FLSA, filed in this Action signed, timely, and valid opt-in consent-to-join forms and whose participation and claims have not since been dismissed or withdrawn, specifically and only the following: Christopher Aldrich, Richard Barbour, Prentice Barden, Michael Barefoot, Ronnie Barnes, Robert Bennett, Jr., Phillip Boseman, Curtis Brown, Daniel Brunst, Timothy Bryant, Phil Campbell, Pleasant Carr, David Clark, Donnie Clemons, Gregory A. Collier, Roland Collins, Bryan Coniglio, Ryan Damron, Melvin Darden, Anthony Domer, Markus Dowless, Sean Doyle, George Duncan, Daniel Easter, Donald Edwards, Mark Fairweather, Taj Franklin, James Gibson, Richard Godley, Freddy Grainger, Shakeem Griffin, Timothy Hall, Arne Hansen, William Hardison, Steven Hickman, Maurice Orlando Hinton, Page 10 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 11 of 45 Christopher Howard, Bruce Hughes, Jr., Mohammad Idries, Brandon Jernigan, Jack Johnston, Richard Johnston, Eric Jones-Hill, Royce Joyner, Kevin Justice, Michael Kaminski, Thomas Keith, Michael Kelly, Brandon LeSech, James Leach, Jr., Michael Little, Kenneth Locklear, Richard McCauley, Jr., Christopher McLaughlin, David McLaughlin, William Joseph McNabb, Jr., Daniel Moore, Mark Moran, Chadwick Moseley, David Nairn, Jr., Thomas Parker, James Partin, John Pate, Jr., Kevin Pate, Michael Phillips, Paul Pilgreen, Todd Porter, Tim Ressigue, Michael Rincon, Jeffrey Roberts, Scott Rouse, James Rudder, III, Anthony Scott, Steve Shaw, Michael Shea, Jon Shingledecker, Milton Singletary, Charles Kevin Smith, Robert Smith, Jr., Jimmy Stevens, John Stevenson, Jr., Jerome Stiles, David Thomason, Timmy Vines, Raymond West, David Williams, Kelly Williams, Tony Wilkes and Michael David Vandall. Notice Program: means the plan approved by the Court for disseminating the Settlement Notices as set forth herein. Objection Date: means the date, to be set by the Court, by which objections to the Settlement must be submitted by Class Members or any additional FLSA Collective Members who are not Named Plaintiffs. Party or Parties: means the Named Plaintiffs and/or Defendants. Preliminary Approval: means the order to be entered by the Court, substantially in the form of Exhibit 6, that: (a) preliminarily approves this Settlement Agreement; (b) sets the date of the Fairness Hearing; (c) appoints the Plaintiffs’ Counsel as Class Counsel for the Settlement Class Members; (d) approves the forms of Settlement Notice and the Notice Program; Page 11 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 12 of 45 (e) sets the date that Settlement Notices should issue; (f) sets the end of the Notice Period; (g) sets the Exclusion Date and the Withdrawal Date; and (h) sets the deadline for filing objections to the settlement. Released Claims: mean any and all claims, demands, causes of action, rights to relief, fees and liabilities of any kind, whether known or unknown, either that were asserted in or could have been asserted in this Action, that the Settlement Class Members have or may have against any of the Releasees (as defined below), from the beginning of time through December 31, 2019, including, but not limited to, all claims under common law contract, tort, or other law, as well as all claims under federal, state, local, or foreign laws, including but not limited to all claims arising under North Carolina, South Carolina, or other applicable state’s Wage and Labor Laws; North Carolina, South Carolina, or other applicable state’s common law; North Carolina, South Carolina, or other applicable state’s administrative law; or North Carolina, South Carolina, or other applicable state’s statutory law that are derivative of, or in any way related to, any wage and hour, overtime, benefits or other claims based on the Settlement Class Members’ alleged misclassification as independent contractors; any other claim allegedly arising from the Settlement Class Members’ alleged misclassification as independent contractor while performing services under a Distributor Agreement with Franklin or any predecessor entity; and any penalty, interest, taxes or additional damages or costs which arise from or relate to the claims described above under applicable federal, state or local laws, statutes, or regulations. Released Claims shall not include any FLSA claims of any Settlement Class Members who are not also Named Plaintiffs or FLSA Collective Members. For Named Plaintiffs and for FLSA Collective Members who do not Page 12 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 13 of 45 withdraw and exclude themselves, Released Claims shall include any and all FLSA claims in addition to all claims set forth in this Section above. Releasees: means Flowers Foods, Franklin, and any and all current and former parents, subsidiaries, related companies or entities, partnerships, joint ventures, or other affiliates, and, with respect to each of them, all of their predecessors and successors, benefits plans and programs, insurers, contractors, subcontractors, successors, and assigns, and, with respect to each such entity, any and all of its past, present, and future employees, trustees, officers, directors, stockholders, owners, representatives, assigns, attorneys, administrators, fiduciaries, agents, insurers, trustees, and any other persons acting by, though, under, or in concert with any of these persons or entities and their successors and assigns. Settlement Administrator: means Atticus Administration, 1250 Northland Drive, Suite 240, Mendota Heights, MN 55120. Settlement Class or Settlement Class Member: means any Class Member who receives the Settlement Notice and who does not submit a valid Exclusion Request pursuant to the terms of this Agreement, Named Plaintiffs, any FLSA Collective Members who are also Class Members (but not Named Plaintiffs) who do not withdraw by the Withdrawal Date and who do not also submit a valid Exclusion Request; and any distributors who are FLSA Collective Members only who do not contact Class Counsel to withdraw by the Withdrawal Date. Settlement Fund or Common Fund: means a qualified settlement fund established under Internal Revenue Code § 468B and Treasury Regulation § 1.468B-1, to be funded by Defendants in the amount of $8.3 million dollars, which includes Attorneys’ Fees and Costs (except for costs associated with notice and settlement administration, which shall be paid separately by Defendants), Service Awards, and any payments to current distributor Class and Page 13 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 14 of 45 FLSA Collective Members who accept, sign and return to the Settlement Administrator within the Notice Period the Amendment and Arbitration Agreement, established at a United States bank jointly selected by Defendants and the Settlement Administrator. This qualified Settlement Fund shall be non-reversionary except for the money allocated to the claims of those distributors who are: (1) Class Members only (and are not also FLSA Collective Members or Named Plaintiffs)who file a valid Exclusion Request by the Exclusion Date; (2) FLSA Collective Members who are also Class Members (but not Named Plaintiffs) who filed a valid Exclusion Request and contact Class Counsel to withdraw from the Action by the Withdrawal Date; and (3) FLSA Collective Members only (and not also Class Members or Named Plaintiffs) who contact Class Counsel to withdraw from the Action by the withdrawal date. Allocation of monies to all such individuals shall revert to Defendants. The Settlement Administrator shall pay all monies payable to the Settlement Class Members (including Service Awards and consideration for timely, executed Amendment and Arbitration Agreements from current distributor Settlement Class Members) and Attorneys’ Fees and Costs to Class Counsel under this Settlement Agreement from the Settlement Fund. Settlement Notice Period or Notice Period: means the Period Set by the Court for Class Members to Review the Settlement Notice, determine whether they want to participate or exclude themselves or object, as applicable; and, for Current Distributor Class or FLSA Collective Members, to determine whether they want to “Accept” the Amendment and Arbitration Agreement in exchange for an additional $3,500 or “Not Accept” and forfeit such payment, or elect the Buy Back Option. Service Award: means the $10,000 payment to each Named Plaintiff to be paid from the Settlement Fund to compensate them for their efforts on behalf of the Settlement Class and FLSA Collective Members. Page 14 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 15 of 45 Withdrawal Date: means the date to be set by the Court by which an FLSA Collective Member, including FLSA Collective Members who are also Class Members, must contact Class Counsel to withdraw from the Action. Jurisdiction The Court has jurisdiction over the Parties and the subject matter of this Action, which includes both federal and state-law claims. Additionally, the Court has supplemental jurisdiction over the state-law claims. If the Settlement Agreement is fully and finally approved, the Court will dismiss the Action with prejudice. In the event there is a dispute concerning the enforcement of the terms of this Settlement Agreement, the Parties consent to the jurisdiction of the Court with respect to any such dispute. Prior to taking any such dispute to the Court, the Parties agree to confer in good faith in an attempt to resolve any such dispute. The Parties stipulate that, for settlement purposes only, the Settlement Class satisfies the requirements of Rule 23 of the Federal Rules of Civil Procedure and Section 216(b) of the FLSA, and therefore approval of this Settlement Agreement is appropriate. In so stipulating, Defendants do not waive or abandon any arguments they may have that decertification of the FLSA collective action is proper or that certification of the Rule 23 class is improper. Defendants’ consent to certification for settlement purposes only is in no way an admission that Rule 23 or Section 216(b) certification would be proper absent a settlement. Failure to obtain the Preliminary or final approval of this Settlement Agreement in the same or substantially similar formats proposed to the Court, including, but not limited to, the non-monetary relief specified herein and any failure as a result of any appeal of the Court’s Final Page 15 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 16 of 45 Approval Order and Judgment, will cause this Settlement Agreement to be void and unenforceable and to have no further force and effect. In the event this Settlement Agreement becomes void or unenforceable, any monies in the Settlement Fund shall remain the property of and shall be returned to Defendants, the Parties' litigation positions shall revert to the status quo ante prior to the execution of this Settlement Agreement, and the Parties will not be deemed to have waived, limited, or affected in any way any of their claims, defenses, or objections in the Action, including arguments for or against class certification or decertification. Statement of No Admission Defendants deny liability upon any claim or cause of action presented or alleged or that could have been presented or alleged in the Action, and Defendants deny that the Settlement Class is entitled to relief of any kind in this Action. This Settlement Agreement does not constitute an admission by Defendants as to the merits, validity, or accuracy of the allegations or claims made against them in the Action and may not be construed as or deemed an admission of liability, culpability, negligence, willfulness, or wrongdoing on the part of Defendants. Nothing in this Settlement Agreement is intended by the Parties or may be used by anyone for any purpose inconsistent with this Settlement Agreement, or may be introduced in any way as evidence, to show or establish any misconduct, or improper practices, plans, or policies, or any violation of any federal, state, or local law, statute, ordinance, regulation, rule, or executive order, or any obligation or duty at law or in equity. Notwithstanding the foregoing, this Settlement Agreement may be used in any proceeding in this Court that has as its purpose the enforcement of the Settlement Agreement. Page 16 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 17 of 45 Claims of the Plaintiffs and Benefits of Settlement Plaintiffs believe that the claims asserted in the Action have merit and that the evidence developed through extensive written and deposition discovery supports their claims. However, Plaintiffs and Class Counsel recognize and acknowledge the expense, complexities, and length of continued proceedings necessary to prosecute the Action through trial and through appeals, along with the uncertain nature of certain damages and affirmative defenses. Plaintiffs and Class Counsel have considered the uncertain outcome and the risk of this Action, especially the multi-party, collective, and class action components of this Action, as well as the difficulties, delays, and risks of collection inherent in litigation. Plaintiffs and Class Counsel believe that the Settlement Agreement confers substantial benefits upon Plaintiffs and the Settlement Class Members and is fair, reasonable, adequate, and in the best interests of Plaintiffs and the Settlement Class Members. Non-Monetary Relief and Other Options for Distributors Defendants will implement certain changes and modifications to the independent distributor model at Franklin in accordance with Exhibit 7. The terms are the product of extensive and arms-length negotiations between the Parties and their counsel, which were facilitated by a mediator experienced in independent distributor/delivery business models and which confer substantial benefits on Settlement Class Members to which they would not otherwise be entitled absent this Settlement Agreement. Defendants will establish a Distributor Review Panel for Franklin distributors that will operate in accordance with Exhibit 8. Defendants will establish the position of Distributor Advocate for distributors with Franklin, as explained more fully in Exhibit 9, which will operate in accordance with the Page 17 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 18 of 45 International Ombudsman Association’s Standards of Practice and Code of Ethics where operationally feasible (e.g., Defendants will not maintain confidentiality as suggested by the International Ombudsman Association because the distributor’s identity must be shared with management in order to understand the context and each party’s business interests). Settlement Class Members who are current Franklin distributors will be offered the opportunity and be eligible to “Accept” or “Not Accept” an Amendment to the Distributor Agreement with an accompanying Arbitration Agreement and class action waiver. The Amendment will modify or eliminate certain provisions in the Distributor Agreement that are inconsistent with the Arbitration Agreement. The Settlement Administrator will present each current distributor with the Amendment and the Arbitration Agreement during the Notice Period. The Settlement Administrator will also present an agreed-upon summary of the Amendment and Arbitration Agreement at that time. These documents are contained in the arbitration agreement packet (Exhibit 1). Distributors who “Accept” and concurrently sign the Amendment with the accompanying Arbitration Agreement and return these signed documents to the Settlement Administrator by the end of the Notice Period shall receive an additional $3,500 from the Settlement Fund as consideration for accepting such Amendment. Distributors who do not accept the Amendment will forfeit such $3,500 payment, and such payments shall revert to the Settlement Fund to be reallocated among all Settlement Class Members. Defendants will agree to buy back the territories of any interested Settlement Class Member who is a current distributor at ten (10) times weekly branded sales calculated over a 52- week average, provided that the Settlement Class Member returns to the Settlement Administrator during the Notice Period the Buy Back Election Form (Exhibit 10). The Settlement Administrator will, in turn, notify Defendants. For those Settlement Class Members who exercise this option, the Page 18 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 19 of 45 timing of the sale will be at Franklin’s reasonable discretion depending on Franklin’s business needs and/or the ability to service the territory. Such buy backs are also contingent upon those Settlement Class Members who have exercised this option continuing to comply with all of their obligations under the Distributor Agreement. Such buy backs are subject to the following: For the first five (5) territories designated by Settlement Class Members who exercise this option, the time period shall not exceed sixty (60) days from the Settlement Effective Date. For the next fifteen (15) territories designated by Settlement Class Members who exercise this option, the time period shall not exceed one hundred twenty (120) days from the Settlement Effective Date. In the event Settlement Class Members express interest in selling greater than twenty (20) territories, the time period shall not exceed one hundred eighty (180) days from the Settlement Effective Date. For purposes of determining the designation date, the date of receipt by the Settlement Administrator shall control. Waiver, Release and Dismissal Upon the Settlement Effective Date, all Settlement Class Members will be bound by the terms and conditions of this Settlement Agreement. Upon the Settlement Effective Date, each Settlement Class Member, on behalf of themselves and their respective agents, representatives, executors, estates, heirs, administrators, attorneys, insurers, successors and assigns shall be deemed to have forever released and discharged the Releasees from any and all Released Claims, shall covenant not to sue the Releasees with Page 19 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 20 of 45 respect to any Released Claims, and will be permanently and forever barred from suing or otherwise asserting any Released Claim against any of the Releasees. In exchange for this release of claims by the Settlement Class, Defendants will pay the sum of $8.3 million into the Settlement Fund within ten business days after the Settlement Effective Date of this Action. At their discretion, Defendants may pay this amount into the Settlement Fund earlier. Notwithstanding any other provision of this Settlement Agreement, nothing in this Settlement Agreement is intended to restrict any Settlement Class Member from contacting, assisting, or cooperating with any government agency; provided, however, that no Settlement Class Member shall seek or accept damages, reinstatement, or similar personal relief as to any Released Claim. Named Plaintiffs represent and warrant that they have not sold, assigned, pledged, or otherwise transferred any Released Claims. It is agreed that because the Settlement Class Members are so numerous, it is impossible or impractical to have each Settlement Class Member execute this Settlement Agreement. The Settlement Notice will advise all Settlement Class Members of the binding nature of the release, and Named Plaintiffs’ signing of this Settlement Agreement, when approved by the Court and such approval has become final, fully effectuates the above releases on behalf of the remaining Settlement Class Members. The checks issued to all Settlement Class Members shall also have appropriate agreed-upon release language on the back of each check. Named Plaintiffs shall also separately sign a General Release of Claims. The Parties agree to seek an order dismissing the Action with prejudice and such other and additional orders upon the Final Approval Order and Judgment. Page 20 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 21 of 45 Required Events and Cooperation by the Parties As soon as reasonably practicable after execution of the Settlement Agreement, the Parties shall submit the Settlement Agreement, including all Exhibits, to the Court for its Preliminary Approval and shall jointly move the Court for entry of an order, substantially in the form of Exhibit 6, which by its terms shall: Determine preliminarily that this Settlement Agreement and the terms set forth herein fall within the range of reasonableness meriting possible Final Approval and dissemination of Settlement Notices as set forth herein, and direct that, within ten days of filing for Preliminary Approval, Defendants shall provide notice of this proposed Settlement in compliance with the Class Action Fairness Act of 2005 (“CAFA”); Schedule the Fairness Hearing to: (i) determine finally whether Settlement Class satisfies the applicable requirements of Rule 23 and should be finally certified for settlement purposes only; (ii) review objections, if any, regarding the Settlement Agreement; (iii) consider the fairness, reasonableness, and adequacy of the Settlement Agreement and its terms; (iv) consider Class Counsel’s application for an award of attorneys’ fees and reimbursement of expenses; (v) determine the validity of any Exclusion Requests and exclude from the Class those persons who are eligible to exclude themselves under the terms set forth herein and who validly and timely exclude themselves by the Exclusion Date; and (vi) consider whether the Court shall issue the Final Approval Order and Judgment, approving the settlement and dismissing the Action with prejudice. Set a briefing schedule for: (i) a joint motion for final approval; (ii) Class Counsel’s motion for attorneys’ fees; and (iii) Named Plaintiffs’ motion for Service Awards; Approve the proposed Settlement Notices and Notice Program; Page 21 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 22 of 45 Direct the Settlement Administrator to cause the Settlement Notice to be disseminated in the manner set forth in the Notice Program on or before the Settlement Notice Deadline; Determine that the Settlement Notices and the Notice Program: (i) meet the requirements of Rule 23(c)(3) and due process; (ii) are the best practicable notice under the circumstances; (iii) are reasonably calculated, under the circumstances, to apprise applicable Class Members of the pendency of the Action, their right to object to the proposed Settlement, exclude themselves from the settlement, or participate within the timeframe provided herein; and (iv) are reasonable and constitute due, adequate, and sufficient notice to all those entitled to receive notice. Require each Class Member who is not also an FLSA Collective Member or a Named Plaintiff who wishes to exclude himself or herself from the Settlement to submit a timely and valid written Exclusion Request, on or before the Exclusion Date, to the Settlement Administrator; Require each FLSA Collective Member who is also a Class Member (but not a Named Plaintiff) who wishes to exclude himself or herself from the Settlement to submit a timely and valid written Exclusion Request on or before the Exclusion Date to the Settlement Administrator and contact Class Counsel to withdraw from the Action by the Withdrawal Date; Require each FLSA Collective Member (who is not also a Class Member or Named Plaintiff) who does not wish to participate in the Settlement to contact Class Counsel to withdraw from the Action by the Withdrawal Date; Order that all Settlement Class Members will be bound by all proceedings, orders, and judgments in this Action; Page 22 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 23 of 45 Require any Settlement Class Member who is not a Named Plaintiff and who wishes to object to the fairness, reasonableness or adequacy of the Settlement Agreement, to the award of Attorneys’ Fees and Expenses, or to the Service Awards, to submit to the Court, Class Counsel, and Defense Counsel by the Objection Date a statement of his or her objection; and Establish the following: 9.1.12.1. The date and time of the Fairness Hearing, which the Parties agree shall not be on a date or time that is less than 100 days after Preliminary Approval of the Settlement Agreement, or 90 days after notice is sent to the appropriate officials under CAFA, whichever is later; 9.1.12.2. The date by which the Settlement Notices shall issue; 9.1.12.3. The date by which any Exclusion Request, objections, withdrawal request, and the signed Amendments and Arbitration Agreements from current distributor Settlement Class Members who elect this option are due. The Parties represent and acknowledge that each intends to implement the Settlement Agreement. The Parties shall, in good faith, cooperate and assist with and undertake all reasonable actions and steps to accomplish all required events on the schedule set by the Court, and shall use their best efforts to implement all terms and conditions of the Settlement Agreement. Settlement Administration Subject to approval by the Court, the Settlement Administrator shall be responsible for mailing the Settlement Notices; receiving and logging arbitration election forms and fully executed Amendments and attached Arbitration Agreements, Buy Back Election Forms, and Exclusion Requests; researching and updating addresses through skip-traces and similar means; answering questions from Settlement Class Members; reporting on the status of the claims Page 23 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 24 of 45 administration to counsel for the Parties; sending the notices required by CAFA within the appropriate time period; preparing a declaration regarding its due diligence in the claims administration process; providing the Parties with data regarding the arbitration election forms, accompanying Amendments and Arbitration Agreements, Buy Back Election Forms, and Exclusion Requests; distributing settlement checks; reporting and paying, as necessary, applicable taxes on settlement payments; and doing such other things as the Parties may direct. Within seven (7) days after the Court’s Preliminary Approval, Defendants will provide to the Settlement Administrator a database listing of the names, last known addresses, dates contracted by Franklin as distributors during a Covered Period, and social security numbers or dates of birth of the Named Plaintiffs, FLSA Collective Members, and Class Members. The Settlement Administrator will perform the following functions in accordance with the terms of this Settlement Agreement, the Preliminary Approval Order, and the Final Approval Order and Judgment: Provide for the Settlement Notices (with the Fairness Hearing dates) to be sent by mail to all applicable Class and FLSA Collective Members that can be identified through a reasonable effort; Provide to Defense Counsel and Class Counsel, 14 days after the first mailing of the Settlement Notices and then updated every 14 days thereafter: (i) a list of the names and addresses of all Class Members or FLSA Collective Members whose Settlement Notices have been returned to the Settlement Administrator as undeliverable along with a report indicating steps taken by the Settlement Administrator to locate updated address information for such Class Members and FLSA Collective Members and to resend the Settlement Notices, and/or whose Settlement Notices have been forwarded to an updated address by the United States Postal Service; Page 24 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 25 of 45 (ii) a separate list of the names and addresses of all Settlement Class Members who are not Named Plaintiffs who have submitted documents indicating that they wish to object to the settlement; (iii) a separate list of the names and addresses of all Settlement Class Members who are not Named Plaintiffs who have submitted documents indicating that they wish to challenge the payment calculations along with copies of all such documents; (iv) a separate list of the names of current distributor Settlement Class Members who have elected to “Accept” the Amendment and Arbitration Agreement and have submitted executed versions of both documents to the Settlement Administrator by the end of the Notice Period; and (v) a separate list of current distributor Settlement Class Members who have submitted the Buy Back Election Form. Process challenges to the payment calculations and process objections to the Settlement in accordance with this Settlement Agreement; Mail settlement payments to Settlement Class Members, as ordered by the Court in the Proposed Final Approval Order, in accordance with this Settlement Agreement; Mail payments of $3,500 from the Settlement Fund for each current distributor Settlement Class Member who elects to Accept the Amendment and Arbitration Agreement and submitted executed copies of both the Amendment and Arbitration Agreement back to the Settlement Administrator by the end of the Notice Period; Mail payment(s) for Attorneys’ Fees and Costs to Class Counsel, as ordered by the Court in the Final Approval Order, in accordance with the Settlement Agreement; Mail Service Awards to Named Plaintiffs, as ordered by the Court in the Final Approval Order; Page 25 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 26 of 45 Establish, designate, and maintain a Settlement Fund for the Lawsuit as a “qualified settlement fund” under Internal Revenue Code § 468B and Treasury Regulation § 1.468B-1; Maintain the assets of the Settlement Fund in a non-interest-bearing escrow account segregated from the assets of Defendants and any person related to Defendants; Obtain employer identification numbers for the Settlement Fund pursuant to Treasury Regulation § 1.468B-2(k)(4); Prepare and file federal income tax returns for the Settlement Fund, as well as any other tax filings the Class Settlement Fund must make under federal, state, or local law; Prepare, file, and issue all necessary tax reporting forms for the Settlement Fund, including Form W-2 Statutory Employees and IRS Forms 1099 regarding the distribution of payments to the Settlement Class Members, Class Counsel, and Named Plaintiffs as set forth herein; Provide Defendants with copies of all tax reporting and filings made for the Settlement Fund, including copies of the checks and the Form W-2 Statutory Employees and IRS Forms 1099 issued to Settlement Class Members and Named Plaintiffs, and any other documentation to show that the tax reporting and filings were timely transmitted to the claimants and the applicable taxing authorities; Pay any additional tax liabilities (including penalties and interest) that arise from the establishment and administration of the Settlement Fund solely from the assets of the Settlement Fund without any recourse against Defendants for additional monies; Page 26 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 27 of 45 Liquidate any remaining assets of the Settlement Fund after all payments to the Settlement Class Members, Class Counsel, and Named Plaintiffs have been made and all tax obligations have been satisfied, and distribute all unclaimed funds to the designated cy pres beneficiar(ies); and Notify the Parties that the Settlement Fund will be terminated unless the Parties contact the Settlement Administrator within ten business days. The Parties will be jointly responsible for providing the Settlement Administrator with the necessary information to facilitate notice and claims administration (including, but not necessarily limited to, the full legal name, last known address, and dates of contract of each Named Plaintiff, FLSA Collective Member, and/or Class Member). In the event a Settlement Class Member disputes the accuracy of information upon which settlement payments are calculated, the Parties agree that Defendants’ business records will be conclusive as to the dates a Settlement Class Member was a distributor. Class Counsel will calculate settlement payments to each Settlement Class Member under this Settlement Agreement using the formula more specifically described and set forth in this agreement and provide this information to the Settlement Administrator for purposes of processing the settlement checks. Defendants acknowledge that they are responsible for ensuring that notice is mailed to the appropriate entities pursuant to CAFA and agree to work diligently with the Settlement Administrator, who will be responsible for actually sending the required notices, to ensure this notice is sent timely and in the manner prescribed by law. Defendants will pay the costs of notice and administration of the settlement, which will be paid separately and in addition to funding the Settlement Fund. Page 27 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 28 of 45 Notice to the Settlement Class, Objection, and Exclusion Rights Within two weeks of the date the Court grants Preliminary Approval of the Settlement, as the Court may direct, the Parties shall cause the Settlement Notices to be disseminated pursuant to the Notice Program, in a manner that comports with constitutional due process and the requirements of Rule 23, as set forth below: The Settlement Administrator shall cause the Settlement Notice in the form of Exhibit 2A to be sent to current distributor Class Members who are not Named Plaintiffs or FLSA Collective Members; The Settlement Administrator shall cause the Settlement Notice in the form of Exhibit 2B to be sent to former distributor Class Members who are not Named Plaintiffs or FLSA Collective Members; The Settlement Administrator shall cause the Settlement Notice in the form of Exhibit 3A to be sent to current distributor FLSA Collective Members who are also Class Members but are not Named Plaintiffs. The Settlement Administrator shall cause the Settlement Notice in the form of Exhibit 3B to be sent to former distributor FLSA Collective Members who are also Class Members but not Named Plaintiffs. The Settlement Administrator shall cause the Settlement Notice in the form of Exhibit 4A to be sent to current distributors who are FLSA Collective Members only (and not also Class Members or Named Plaintiffs); The Settlement Administrator shall cause the Settlement Notice in the form of Exhibit 4B to be sent to former distributors who are FLSA Collective Members only (and not also Class Members or Named Plaintiffs); Page 28 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 29 of 45 The Parties agree that all Class Members and FLSA Collective Members who are also Class Members but are not Named Plaintiffs and who receive Settlement Notices in the forms of Exhibit 2A, 2B, 3A or 3B shall have a period of sixty (60) days to file any Exclusion Request or objection. The Parties agree that all FLSA Collective Members, including those who are and who are not Class Members, shall have a period of sixty (60) days to contact Class Counsel and withdraw from the Action should they wish to not participate in the settlement. The Parties agree that current distributor Class Members and FLSA Collective Members shall have a period of sixty (60) days to submit their election accepting the Amendment with Arbitration Agreement and fully executed copies of each to the Settlement Administrator. Current distributor Class Members and FLSA Collective Members shall also have a period of sixty (60) days to submit the Buy Back Election Form. The Parties agree that the Settlement Administrator shall also send a Reminder Notice in the form attached as Exhibit 5 to any current distributor Class Member or FLSA Collective Member who has not submitted the signed Amendment and attached Arbitration Agreement within the first 45-days of the Notice Period reminding them of the upcoming deadline for this option. Claims administration expenses and notice expenses shall be paid directly by Defendants and not from the Settlement Fund. The Settlement Notices attached in the form of Exhibits 2A, 2B, 3A and 3B shall comply with the requirements of Rule 23 and shall: contain a short, plain statement of the background of the Action and the proposed Settlement; Page 29 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 30 of 45 describe the proposed Settlement relief as set forth in this Settlement Agreement, including the requests of Class Counsel for Attorneys’ Fees and Costs and Service Awards as described in this Settlement Agreement; inform Class Members that, if they do not exclude themselves from the Settlement, they may be eligible to receive relief; describe the procedures for participating in the Settlement and advising recipients of this Notice of their rights, including their right to exclude themselves from the settlement, or object to the Settlement; explain the scope of the Release, and the impact of the proposed Settlement Agreement on any existing litigation, arbitration or other proceeding; state that any relief to Class Members under the Settlement Agreement is contingent on the Court’s Final Approval of the proposed Settlement Agreement; explain that Counsel for the Parties may not advise on the tax consequences of participating or not participating in the Settlement; explain the procedures for opting out of the Settlement and specify that so- called “mass” or “class” opt-outs shall not be allowed; and provide that any objection to the Settlement Agreement and any papers submitted in support of said objection will be considered only if the Settlement Class Member has submitted timely notice of his or her intention to do so, with the grounds for the objection, and has served copies of such papers he or she proposes to submit at the Fairness Hearing on Class Counsel and Defense Counsel on or before the Objection Date, as specified in the Settlement Notice. Any Settlement Class Member who is not a Named Plaintiff and who intends to object to any aspect of the settlement, including the requested Attorneys’ Fees and Costs, or Service Page 30 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 31 of 45 Award, must do so on or before the Objection Date. To object, the applicable Settlement Class Member must file a written objection with the Court on or before the Objection Date and serve it via first-class mail on Class Counsel and Defense Counsel and include: the name, address, telephone number, and email address of the Person objecting and, if represented by counsel, of his/her counsel. An objecting Settlement Class Member must state, specifically and in writing, all objections and the basis for any such objections and must state whether he/she intends to appear at the Fairness Hearing, either with or without counsel. Any Settlement Class Member who fails to file and timely submit and serve a written objection in accordance with this Agreement shall not be permitted to object to the approval of the Settlement Agreement at the Fairness Hearing. The Parties may take discovery on an expedited basis regarding the objection from the objector and related third parties. Prior to the Fairness Hearing, the Parties shall provide to the Court documentation that the Settlement Notices were provided in accordance with the Notice Program. A Class Member, including an FLSA Collective Member who is also a Class Member but who is not a Named Plaintiff, who wishes to file an Exclusion Request must do so on or before the Exclusion Date. To exclude himself or herself, the applicable Class Member must complete and send to the Settlement Administrator an Exclusion Request as set forth herein that is post-marked no later than the Exclusion Date. The Exclusion Request must be personally signed by the applicable Class Member requesting exclusion; contain the Class Member’s full name, address, and phone number; and contain a statement that indicates a desire to be excluded from the Settlement Class. So-called “mass” or “class” exclusions on behalf of multiple individuals or groups shall not be allowed. Page 31 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 32 of 45 An FLSA Collective Member, including an FLSA Collective Members who is also a Class Member but not a Named Plaintiff, who does not want to participate in the settlement must contact Class Counsel and notify them that they want to withdraw by the Withdrawal Date. FLSA Collective Members who are also Class Members (but not Named Plaintiffs) must file both a valid Exclusion Request by the Exclusion Date as discussed in 11.10 above and contact Class Counsel to withdraw by the Withdrawal Date as discussed herein to exclude themselves from the settlement. Except for those Class Members and applicable FLSA Collective Members who are also Class Members who timely and properly file an Exclusion Request, as applicable, and all FLSA Collective Members who submit notice of intent to withdraw to Class Counsel by the Withdrawal Date, all other Class Members, including those who do not respond to the Notice, will be deemed to be Settlement Class Members for all purposes under the Settlement Agreement, and upon the Settlement Effective Date, will be bound by its terms and conditions and the release of claims described therein and will be bound by the judgment dismissing this Action on the merits. Any Class Member, including any FLSA Collective Member who is also a Class Member, who is not also a Named Plaintiff who properly files an Exclusion Request excluding him/herself from the Settlement shall: (a) not be bound by any orders or judgments entered in the Action relating to the settlement, including but not limited to the Release of Claims; (b) not be entitled to relief under, or be affected by, the Settlement Agreement; (c) not gain any rights by the Settlement Agreement; or (d) not be entitled to object to any aspect of the Settlement.. For any Class Member who files an Exclusion Request, the statute of limitations for the Class Member’s claims will begin to run again upon the Settlement Effective Date. The statute of limitations will similarly begin to run for any FLSA Collective Member who withdraws from the lawsuit as well Page 32 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 33 of 45 as any FLSA Collective Member/Class Member who both withdraws from the lawsuit and files an Exclusion Request. Payment from the Settlement Fund All settlement payments made to Settlement Class Members under this Settlement Agreement shall be considered non-employee compensation. For tax reporting purposes, except as provided in 12..3 below, Defendants, or as applicable the Settlement Administrator, shall report all settlement payments made to Settlement Class Members as non-employee compensation to the Settlement Class Members receiving settlement payments. For any Settlement Class Members whose distributorships are incorporated on the Settlement Effective Date, no reporting for tax purposes of the settlement payments is required. Settlement Class Members will be responsible for reporting such amounts on their tax returns and paying all applicable taxes on such amounts. Settlement Class Members agree to indemnify and hold Defendants and the Settlement Administrator harmless from any and all liability that may result from, or arise in connection with their failure to file and pay such taxes on any amounts received pursuant to this settlement. No Settlement Funds shall be disbursed from the Settlement Fund until the Settlement Effective Date. In the event the Action is not finally dismissed or is vacated or reversed on appeal, all Settlement Funds shall be immediately returned to Defendants. Settlement Fund Allocation No Settlement Class Member will be required to submit a claim form to receive a share of the Settlement Fund. The Parties agree to allocate the settlement fund as follows: Page 33 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 34 of 45 Step 1: For class members who had more than one territory at some point during the class period, select the territory with the highest gross sales and discard sales data from the smaller route(s). Step 2: Calculate FLSA overtime shares by multiplying the number of weeks each opt-in plaintiff worked during the two-year statute of limitations period by 55 hours, then divide that opt- in plaintiff’s gross sales by that product. If the quotient is less than $1,000, round up to $1,000. Step 3: Calculate each class member’s North Carolina wage deduction damages by adding the dollar amount of class member’s warehouse fee, administrative fee, shrink, and stale payments during the applicable statute of limitations. Step 4: Reduce the common fund by the amount of attorneys fees, costs, and service awards approved by the Court. Reduce the difference by the sum of all FLSA damages calculated in step 2 and the sum of all arbitration agreement payments. Step 5: Apportion the remaining money on a pro rata basis for each class member for wage deduction damages. Step 6: Verify results. The sum of all class member shares, arbitration payments, attorneys fees and costs, and service awards must equal $8,300,000.00. Settlement Class Members who operate multiple territories shall collect monies allocated to alleged overtime on only one territory, which will be the territory that has the highest total damages during the recovery period as determined by Plaintiffs’ proffered damages expert; The $3,500 payment for each current distributor Class or FLSA Collective Member who elects to “Not Accept” the Amendment and accompanying Arbitration Agreement with class action waiver shall be returned to the Settlement Fund for re-allocation among Settlement Class Members. Any Class Member who has submitted or submits an incomplete or incorrect form will be permitted to re-submit one within 14 days of the sending of notice to that Class Member of a defect by the Claims Administrator. Class Counsel will be kept apprised of the volume and nature of defective forms and allowed to communicate with Class Members as they deem appropriate to cure deficiencies. Page 34 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 35 of 45 Checks will be negotiable for 180 days. Ninety (90) days after mailing, the Settlement Administrator will review the Settlement Fund account for uncashed checks and attempt to contact each Settlement Class Member who has not cashed her or his check to remind them of the negotiable period. If the Settlement Class Member requests a new check, the Settlement Administrator will void the original check and reissue a check negotiable for forty-five (45) days. Checks that are not cashed within the negotiable period will not result in unclaimed property under state-law. Rather, in the event there are unclaimed funds, they shall be paid to an agreed-upon cy pres beneficiary. The parties will recommend to the Court that remaining funds be divided and sent equally to the North Carolina State Bar for the provision of civil legal services for indigents and to the Indigent Person’s Attorney Fund. The Named Plaintiffs may petition the Court for approval of Service Awards in the amount of $10,000 per Named Plaintiff in recognition of their time and efforts in serving the Class and FLSA Collective Action by helping Class Counsel formulate claims and assisting in the Action and settlement process. Defendants will not object to the Named Plaintiffs’ petition for Service Awards. These Service Awards are separate from and in addition to the shares of the Settlement Fund that the Named Plaintiffs may be eligible to receive as Settlement Class Members, although the payments will be made from the Settlement Fund. As a condition of receiving such Service Awards, Named Plaintiffs agree that they may not exclude themselves from this settlement and agree to sign a general release of all claims. Final approval of the Agreement is not contingent upon the Court granting the requested Attorneys’ Fees and Costs and Service Awards in full. Except as otherwise noted, the allocations described in 13.2 and 13.3 will be performed solely by Class Counsel and is subject to Court approval. Page 35 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 36 of 45 Defendants and Defense Counsel will cooperate with Class Counsel to provide information from Defendants’ records for purposes of locating persons in the Class and in determining the values to be used in calculating each Settlement Class Member’s share of the Settlement Fund. Attorneys’ Fees and Costs Class Counsel agrees to make an application to the Court for an award of Attorneys’ Fees and Expenses in this Action. Defendants agree not to oppose such application. Class Counsel will apply for fees of no more than one-third of the common fund plus expense reimbursement of their actual litigation costs. If awarded by the Court, the Settlement Administrator shall pay Class Counsel directly within twenty business days of the Settlement Effective Date. Miscellaneous Provisions The Parties agree to take all steps as may be reasonably necessary to secure approval of the Settlement Agreement, to the extent not inconsistent with its terms, and will not take any action adverse to each other in obtaining Court approval, and, if necessary, appellate approval of the Settlement Agreement in all respects. This Settlement Agreement, and any payments made pursuant to it, including payments made pursuant to the claim procedures set forth herein, will have no effect on the eligibility or calculation of benefits of current or former distributors of Franklin not covered by this Settlement Agreement. The signatories hereto hereby represent that they are fully authorized to enter this Settlement Agreement and bind the Parties hereto to the terms and conditions hereof. The Parties agree to fully cooperate with each other to accomplish the terms of this Settlement Agreement, including, but not limited to, execution of such documents and to take such Page 36 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 37 of 45 other action as may reasonably be necessary to implement the terms of this Settlement Agreement. The Parties to this Settlement Agreement shall use their best efforts, including all efforts contemplated by this Settlement Agreement and any other efforts that may become necessary by order of the Court, or otherwise, to implement this Settlement Agreement and the terms and conditions set forth herein. Class Counsel will use their best efforts for, will cooperate with Defense Counsel on, and will exercise good faith in obtaining the most participation possible in the settlement. As soon as practicable after execution of this Settlement Agreement, Class Counsel shall, with the assistance and cooperation of Defendants and Defense Counsel, take all necessary steps to secure the Court’s final approval of this Settlement Agreement. The Parties agree to a stay of all proceedings in this Action, except such proceedings as may be necessary to complete and implement the Settlement Agreement, pending Final Court Approval of the Settlement Agreement. This Settlement Agreement shall be interpreted and enforced under federal law and under the laws of the State of North Carolina without regard to its conflicts of law provisions. Defendants will not communicate with Settlement Class Members about the Arbitration Agreement or the settlement, except to direct questions to Class Counsel or the Settlement Administrator. Upon stipulation or with Court approval, the Parties may alter the above dates or time periods. The Parties may also make other non-substantive revisions to the Settlement Notice, Reminder Notice, or other documents as necessary. All the Parties acknowledge that they have been represented by competent, experienced counsel throughout all arms-length negotiations which preceded the execution of this Page 37 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 38 of 45 Settlement Agreement and that this Settlement Agreement is made with advice of counsel who have jointly prepared this Settlement Agreement. Any claim concerning enforcement of the Settlement Agreement, or the subject matter hereof, will be resolved solely and exclusively by the United States District Court for the Eastern District of North Carolina, and the Parties hereby consent to the personal jurisdiction of the Court over them solely in connection therewith. The terms of this Settlement Agreement are confidential until it is filed in the Court. Even after the Settlement Agreement is filed with the Court, the Parties agree to keep the amounts paid to each individual Settlement Class Member confidential. This includes not publicizing or disclosing the specific monetary amounts each individual is to receive under this settlement, either directly or indirectly, that is, through agents, attorneys, or any other person or entity, either in specific or as to general existence or content, to any media, including on the internet and social media including, but not limited to Facebook, Twitter, MySpace, personal blogs and websites, the public generally, or any individual or entity. Notwithstanding the above, counsel for any party may take actions to implement this Settlement Agreement, including publicly filing it with the Court and issuing Court-approved Notice. Further, notwithstanding the foregoing, Settlement Class Members and Class Counsel may also disclose information concerning this Settlement Agreement to their respective immediate families, counsel, and tax advisors who have first agreed to keep said information confidential and to not disclose it to others, and Class Counsel may disclose information to courts in connection with declarations supporting adequacy as class counsel. The foregoing shall not prohibit or restrict such disclosure as is required by law or as may be necessary for the prosecution of claims relating to the performance or enforcement of this Settlement Agreement and shall not prohibit or restrict Settlement Class Members or Class Counsel from Page 38 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 39 of 45 responding to any inquiry about this Settlement Agreement or Action or its underlying facts and circumstances by any governmental agency, or any regulatory organization. To the extent permitted by law, with respect to any such disclosure pursuant to the foregoing sentence, each Settlement Class Members and Class Counsel shall provide Defendants with as much notice as possible of any request to make any above-described disclosure, and will use best efforts to ensure that if such disclosure occurs it will occur in a manner designed to maintain the confidentiality of this Settlement Agreement to the fullest extent possible. Finally, notwithstanding the foregoing, Defendants may disclose the specific financial terms of this Agreement for legal, accounting, and legitimate business purposes, in accordance with their usual business practice, and otherwise as required by law. The Parties to this Settlement Agreement participated jointly in its negotiation and preparation. Accordingly, it is agreed that no rule of construction will apply against any Party or in favor of any Party, and any uncertainty or ambiguity will not be interpreted against one Party and in favor of the other. The terms and conditions of this Settlement Agreement constitute the exclusive and final understanding and expression of all agreements between the Parties with respect to the resolution of the Action. The Named Plaintiffs, on their own behalf and on behalf of the Settlement Class they represent, and Defendants accept entry of this Agreement based solely on its terms, and not in reliance upon any representations or promises other than those contained in this Settlement Agreement. This Settlement Agreement may be modified only by writing and signed by the original Plaintiffs and by a duly authorized representative of Defendants and approved by the Court. Page 39 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 40 of 45 This Settlement Agreement and the attachments hereto contain the entire agreement between the Parties relating to the Settlement Agreement and transaction contemplated hereby, and all prior or contemporaneous agreements, understandings, representations, and statements, whether oral or written and whether by a party or a party’s legal counsel, are merged in this Settlement Agreement. No rights may be waived except in writing. Notwithstanding the foregoing, however, nothing in this Settlement Agreement shall otherwise affect or alter the rights and obligations of the Parties or Settlement Class Members, as set forth in their Distributor Agreements. This Settlement Agreement may be executed in one or more actual or electronically reproduced counterparts, all of which will be considered one and the same instrument and all of which will be considered duplicate originals. In the event one or more of the provisions contained in this Settlement Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect the same shall not affect any other provision of this Settlement Agreement but this Settlement Agreement shall be construed as if such invalid, illegal, or unenforceable provisions had never been contained herein. This Settlement Agreement shall be binding upon the Parties and their respective heirs, trustees, executors, administrators, successors, and assigns. In the event of conflict between this Settlement Agreement and any other document prepared pursuant to the settlement, the terms of the Settlement Agreement supersede and control. Captions in this Settlement Agreement are for convenience and do not in any way define, limit, extend, or describe the scope of this Agreement or any provision in it. Page 40 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 41 of 45 Unless otherwise stated herein, any notice to the Parties required or provided for under this Settlement Agreement will be in writing and may be sent by electronic mail, hand delivery, or U.S. mail, postage prepaid, as follows: If to Class Counsel If to Defense Counsel Shawn J. Wanta, Esq. Kevin P. Hishta, Esq. BAILLON THOME JOZWIAK & WANTA LLP OGLETREE, DEAKINS, NASH, SMOAK 100 South Fifth Street, Suite 1200 & STEWART, P.C. Minneapolis, MN 55402 191 Peachtree Street N.E., Suite 4800 Atlanta, GA 30303 Named Plaintiffs’ Certifications The Named Plaintiffs hereby certify that: a) They have signed this Settlement Agreement voluntarily and knowingly in exchange for the consideration described herein, which Named Plaintiffs acknowledge is adequate and satisfactory and beyond that to which Named Plaintiffs are otherwise entitled; b) They have been advised by Class Counsel and have consulted with Class Counsel before signing this Settlement Agreement; and c) They have been given adequate time to review and consider this Settlement Agreement and to discuss it with Class Counsel; Neither Defendants nor any of the Releasees have made any representations to Named Plaintiffs concerning the terms or effects of this Settlement Agreement other than those contained herein. Page 41 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 42 of 45 IN WITNESS WHEREOF, the Parties hereto have caused this Settlement Agreement to be executed. 05 / 08 / 2020 Dated: Plaintiff Robert William Morgan, Jr. Dated: Plaintiff Bobby Jo Rosinbaum Dated: Defendant Flowers Foods, Inc. By: Its: Dated: Defendant Franklin Baking Co., LLC By: Its: Page 42 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 43 of 45 Document Ref: 6AJHA-FFKZC-UCFOC-SSEJF Page 42 of 122 IN WITNESS WHEREOF, the Parties hereto have caused this Settlement Agreement to be executed. Dated: Plaintiff Robert William Morgan, Jr. 05 / 08 / 2020 Dated: Plaintiff Bobby Jo Rosinbaum Dated: Defendant Flowers Foods, Inc. By: Its: Dated: Defendant Franklin Baking Co., LLC By: Its: Page 42 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 44 of 45 Document Ref: M7HES-DHGMW-PZWGJ-EDO8K Page 42 of 122 DocuSign Envelope ID: 78C43749-D8C9-42EB-8CD9-E575921E5BD5 IN WITNESS WHEREOF, the Parties hereto have caused this Settlement Agreement to be executed. Dated: Plaintiff Robert William Morgan, Jr. Dated: Plaintiff Bobby Jo Rosinbaum 05/08/2020 \| 10:54:08 AM EDT Dated: Defendant Flowers Foods, Inc. By: Its: Chief Legal Counsel 05/08/2020 \| 10:54:08 AM EDT Dated: Defendant Franklin Baking Co., LLC By: Its: Assistant Secretary Page 42 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 45 of 45	2020-05-12	[ "EXHIBIT A Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 1 of 45 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NORTH CAROLINA BOBBY JO ROSINBAUM and ROBERT WILLIAM MORGAN, JR., individually and on behalf of all similarly situated individuals, Civ. A. No. 7:16-cv-00233-FL Plaintiffs, CLASS AND COLLECTIVE ACTION v. SETTLEMENT AGREEMENT AND RELEASE FLOWERS FOODS, INC., and FRANKLIN BAKING CO., LLC, Defendants. Subject to the approval of the Court and pursuant to Rule 23 of the Federal Rules of Civil Procedure and § 216(b) of the Fair Labor Standards Act (“FLSA”), this Class and Collective Action Settlement Agreement and Release (“Settlement Agreement”), including the attached Exhibits, is entered into between: (a) Named Plaintiffs Bobby Jo Rosinbaum and Robert William Morgan, Jr. (collectively referred to as “Class Representatives,” “Plaintiffs,” or “Named Plaintiffs”), on behalf of themselves and any business entities through which they operated, and on behalf of each of the Settlement Class Members; and (b) Flowers Foods, Inc. (“Flowers Foods”) and Franklin Baking Co., LLC. (“Franklin”) (collectively, “Defendants”).1 As provided below, the Parties hereby stipulate and agree that, in consideration of the promises and covenants set forth in this Settlement Agreement and upon the Settlement Effective Date, this Action shall be settled and compromised upon the terms and conditions set forth in this Settlement Agreement and will be dismissed with prejudice.", "This Settlement Agreement is intended by the Parties to fully and finally compromise, resolve, discharge, release, and settle the Released Claims and to dismiss this Action 1 Capitalized terms used herein are defined in Section 3 below. Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 2 of 45 with prejudice, subject to the Court’s approval and to the terms and conditions set forth below, and without any admission or concession as to the merits of any claim or defense by any of the Parties.", "NOW, THEREFORE, this Settlement Agreement is entered into by and among the Parties, by and through their respective counsel and representatives, and the Parties agree that upon the Settlement Effective Date: (1) the Action shall be settled and compromised as between the Parties, and (2) the Proposed Final Approval Order and Judgment, in a form to be submitted by the Parties in connection with final approval, shall be entered dismissing the Action with prejudice releasing all Released Claims, against all Releasees on all on the following terms and conditions: Page 2 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 3 of 45 Table of Contents Table of Contents .................................................................................................................... 3 Table of Exhibits ..................................................................................................................... 4 Definitions............................................................................................................................... 5 Jurisdiction ............................................................................................................................ 15 Statement of No Admission .................................................................................................. 16 Claims of the Plaintiffs and Benefits of Settlement .............................................................. 17 Non-Monetary Relief and Other Options for Distributors .................................................... 17 Waiver, Release and Dismissal ............................................................................................. 19 Required Events and Cooperation by the Parties .................................................................. 21 Settlement Administration ................................................................................................. 23 Notice to the Settlement Class, Objection, and Exclusion Rights ..................................... 28 Payment from the Settlement Fund.................................................................................... 33 Settlement Fund Allocation ............................................................................................... 33 Attorneys’ Fees and Costs ................................................................................................. 36 Miscellaneous Provisions................................................................................................... 36 Named Plaintiffs’ Certifications ........................................................................................ 41 Page 3 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 4 of 45 Table of Exhibits Exhibit 1: Arbitration Agreement Packet .................................................................................5, 18 Exhibit 2A: Notice to Current Distributors Who Are Rule 23 Class Members Only (Excludes FLSA Collective Members) .....................................................................................6, 28, 29 Exhibit 2B: Notice to Former Distributors Who Are Rule 23 Class Members Only (Excludes FLSA Collective Members) ................................................................................................6, 28, 29 Exhibit 3A: Notice to Current Distributors Who Are FLSA Collective Members And Who Also Have a Rule 23 Class Claim ..........................................................................................7, 28 Exhibit 3B: Notice to Former Distributors Who Are FLSA Collective Members And Who Also Have a Rule 23 Class Claim ....................................................................................7, 28, 29 Exhibit 4A: Notice to Current Distributors Who Are FLSA Collective Members Only...........7, 28 Exhibit 4B: Notice to Former Distributors Who Are FLSA Collective Members Only (Who Are Not Also Rule 23 Class Members) ................................................................................7, 28 Exhibit 5: Reminder Notice ......................................................................................................7, 29 Exhibit 6: Proposed Preliminary Approval Order ...................................................................11, 21 Exhibit 7: Non-Monetary Relief and Other Options for Distributor .............................................17 Exhibit 8: Distributor Review Panel .............................................................................................17 Exhibit 9: Distributor Advocate Position .......................................................................................17 Exhibit 10: Buy Back Option Election Form .................................................................................18 Page 4 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 5 of 45 Definitions Action: means the above-captioned lawsuit: Bobby Jo Rosinbaum, Robert William Morgan, Jr, individually and on behalf of all other similarly situated individuals v. Flowers Foods, Inc. and Franklin Baking Co., LLC, Case No.", "7:16-cv-233, pending in the United States District Court for the Eastern District of North Carolina. Agreement or Settlement Agreement: means this Settlement Agreement, including all Exhibits attached hereto. Amendment and Arbitration Agreement: means the form approved by Class Counsel and Defendants, a copy of which is included in the arbitration agreement packet attached hereto as Exhibit 1, which will be presented to all current distributor Class and FLSA Collective Members by the Settlement Administrator during the Notice Period. Such current distributors shall have the option to “Accept” this Amendment and Arbitration Agreement and receive an additional $3,500 from the Settlement Fund, or “Not Accept” this option and forfeit this payment, as more specifically discussed in Section 7.4 below. The deadline to return the “Accept” form and the signed Amendment and Arbitration Agreement to the Settlement Administrator shall be the end of the Notice Period. Only current distributor Settlement Class Members, as defined below, are eligible to sign the Amendment and receive this additional payment. Attorneys’ Fees and Costs: means such funds as may be awarded by the Court to Class Counsel to compensate them for their fees, costs, and expenses in connection therewith, as described more fully below.", "Upon approval of the Court, and within the specified period after the Effective Date, the Settlement Administrator will pay Class Counsels’ Attorneys’ Fees and Costs directly from the Settlement Fund. Page 5 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 6 of 45 Buy Back Option: means the repurchase option extended to current Settlement Class Members as described in Section 7.5 below. To elect this option, the Buy Back Election Form must be returned to the Settlement Administrator by the end of the Notice Period.", "Class Counsel :means Shawn J. Wanta of Baillon Thome Jozwiak & Wanta LLP; Susan Ellingstad of Lockridge Grindal Nauen, PLLP; and J. Gordon Rudd of Zimmerman Reed LLP. Class Member: means any individual who operated under a Distributor Agreement with Franklin during a Covered Period, who operated in the state of North Carolina, and who did not sign a new Distributor Agreement or Amendment containing the Arbitration Agreement with a class action waiver.2 Class Representatives, Plaintiffs, or Named Plaintiffs: Bobby Jo Rosinbaum and Robert William Morgan, Jr. Class Settlement Notice or Settlement Notice:means the form of notices attached as: (i) Exhibit 2A, to be disseminated to current distributor Class Members who are not Named Plaintiffs or FLSA Collective Members, informing them about the terms of the Settlement Agreement, including their rights to participate in the Settlement Agreement; to exclude themselves or to object to the same; to appear at the Fairness Hearing; to “Accept” and sign the Amendment and Arbitration Agreement or “Not Accept” the Amendment and Arbitration Agreement; and whether or not to exercise the Buy Back Option; (ii) Exhibit 2B, to be disseminated to former distributor Class Members who are not Named Plaintiffs or FLSA Collective Members, informing them about the terms of the Settlement Agreement, including their rights to participate in the Settlement Agreement; to exclude themselves or to object to the same; 2 The only exceptions shall be for Michael David Vandall and Tony Wilkes, who are FLSA Collective Members who signed the Amendment and who the Parties agreed shall be eligible to participate in this settlement.", "Page 6 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 7 of 45 and to appear at the Fairness Hearing; (iii) Exhibit 3A, to be disseminated to current distributor FLSA Collective Members who are also Class Members but are not Named Plaintiffs, informing them about the terms of this Settlement Agreement, including their right to withdraw and exclude themselves from the Settlement entirely; how to object; their option to “Accept” and sign the Amendment and Arbitration Agreement or “Not Accept” the Amendment and Arbitration Agreement, and whether or not to exercise the Buy Back Option; and (iv) Exhibit 3B, to distributed to former distributor FLSA Collective members who are also Class Members but are not Named Plaintiffs informing them of terms of this Settlement Agreement, their right to withdraw and exclude themselves from the Settlement; and how to object; (v) Exhibit 4A, to be distributed to current distributors who are FLSA Collective Members only (and not Named Plaintiffs or Class Members), informing them of the terms of the Settlement Agreement, their right to withdraw; how to object; the option to “Accept” and sign the Amendment and Arbitration Agreement or “Not Accept” the Amendment and Arbitration Agreement, and whether or not to exercise the Buy Back Option; and (vi) Exhibit 4B, to be distributed to former distributors who are FLSA Collective Members (and not Named Plaintiffs or Class Members) informing them of the terms of the Settlement Agreement and their right to withdraw; and how to object.", "; A “Reminder Notice” in the form of Exhibit 5 will be sent to any current distributor Class Member or FLSA Collective Member who has not submitted a signed Amendment and Arbitration Agreement within the first 45 days of the Notice Period. Court: means the United States District Court for the Eastern District of North Carolina. Covered Period: means: Page 7 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 8 of 45 For FLSA claims, from the date each FLSA Collective Member filed their consent to join the FLSA portion of the lawsuit through May 21, 2019; For North Carolina claims, from December 1, 2013 through May 21, 2019; While the Covered Period encompasses the time frames outlined above, such Covered Period will be calculated on an individual basis using the dates during which each individual was a distributor and any other relevant information.", "While the Covered Period ends on May 21, 2019, as set forth in Section 3.24 below, the Released Claims shall extend up to an including December 31, 2019. Defendants: mean the Defendants in this lawsuit, Flowers Foods, Inc. and Franklin Baking Co., LLC Defense Counsel: means Benjamin R. Holland, Maggie Hanrahan, and Kevin Hishta of Ogletree, Deakins, Nash, Smoak & Stewart, P.C. Effective Date or Settlement Effective Date: shall be the first day after the first date on which all of the following have occurred: Plaintiffs and Defendants’ duly authorized representatives have executed this Agreement; The Court has preliminarily approved this settlement; Reasonable notice has been sent to Class Members and FLSA Collective Members as set forth herein; The Court has held a Fairness Hearing under Rule 23(e), has entered an order granting final approval of the settlement that is the same in all material respects as that set forth in this Agreement, has entered final Page 8 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 9 of 45 judgment, has awarded Named Plaintiffs any Service Awards, and has awarded Class Counsel their reasonable Attorneys’ Fees and Costs; and Only if there are written objections filed before the Fairness Hearing and those objections are not later withdrawn, the last of the following events to occur: 3.14.5.1.", "If no appeal is filed, then the date on which the time to appeal the Final Approval Order and Judgment has expired with no appeal or any other judicial review having been taken or sought; or 3.14.5.2. If an appeal of the Final Approval Order and Judgment has been timely filed or other judicial review was taken or sought, the date that Order is finally affirmed by an appellate court with no possibility of subsequent appeal or other judicial review or the date the appeals or any other judicial review are finally dismissed with no possibility of subsequent appeal or other judicial review.", "It is the intention of the Parties that the settlement shall not become effective until the Court’s Final Approval Order and Judgment has become completely final and until there is no timely recourse by an appellant or objector who seeks to contest the settlement. Exclusion Date: means the date, to be set by the Court, by which an Exclusion Request must be submitted to the Settlement Administrator for a Class Member, including a Class Member who is an FLSA Collective Member (but not a Named Plaintiff) to be excluded from the Settlement Class. Exclusion Request: means the written communication that must be submitted to the Settlement Administrator and postmarked on or before the Exclusion Date by a Class Member, including a Class Member who is an FLSA Collective Member (but not a Named Plaintiff) and Page 9 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 10 of 45 who wishes to be excluded from the Settlement Class. Class Members, including FLSA Collective Members who are also Class Members (but not Named Plaintiffs), who make an Exclusion Request are excluded from the litigation and not just the settlement.", "Fairness Hearing: means the hearing to be conducted by the Court about its determination of the fairness, adequacy, and reasonableness of the Settlement Agreement in accordance with Rule 23(e) and the FLSA. Final Approval Order and Judgment or Final Approval: means the final order to be entered by the Court that grants final approval of the settlement and enters judgment dismissing this Action with prejudice and that: (i) conforms to this Settlement Agreement, (ii) approves the settlement and the Settlement Agreement as fair, adequate, and reasonable, (iii) confirms the certification of the Settlement Class for purposes of the settlement only, and (iv) issues such other determinations as the Court or the Parties deem necessary and appropriate in order to approve the settlement and implement the Settlement Agreement.", "FLSA Collective Members: means those 89 individuals, in addition to the Named Plaintiffs, who under § 216(b) of the FLSA, filed in this Action signed, timely, and valid opt-in consent-to-join forms and whose participation and claims have not since been dismissed or withdrawn, specifically and only the following: Christopher Aldrich, Richard Barbour, Prentice Barden, Michael Barefoot, Ronnie Barnes, Robert Bennett, Jr., Phillip Boseman, Curtis Brown, Daniel Brunst, Timothy Bryant, Phil Campbell, Pleasant Carr, David Clark, Donnie Clemons, Gregory A. Collier, Roland Collins, Bryan Coniglio, Ryan Damron, Melvin Darden, Anthony Domer, Markus Dowless, Sean Doyle, George Duncan, Daniel Easter, Donald Edwards, Mark Fairweather, Taj Franklin, James Gibson, Richard Godley, Freddy Grainger, Shakeem Griffin, Timothy Hall, Arne Hansen, William Hardison, Steven Hickman, Maurice Orlando Hinton, Page 10 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 11 of 45 Christopher Howard, Bruce Hughes, Jr., Mohammad Idries, Brandon Jernigan, Jack Johnston, Richard Johnston, Eric Jones-Hill, Royce Joyner, Kevin Justice, Michael Kaminski, Thomas Keith, Michael Kelly, Brandon LeSech, James Leach, Jr., Michael Little, Kenneth Locklear, Richard McCauley, Jr., Christopher McLaughlin, David McLaughlin, William Joseph McNabb, Jr., Daniel Moore, Mark Moran, Chadwick Moseley, David Nairn, Jr., Thomas Parker, James Partin, John Pate, Jr., Kevin Pate, Michael Phillips, Paul Pilgreen, Todd Porter, Tim Ressigue, Michael Rincon, Jeffrey Roberts, Scott Rouse, James Rudder, III, Anthony Scott, Steve Shaw, Michael Shea, Jon Shingledecker, Milton Singletary, Charles Kevin Smith, Robert Smith, Jr., Jimmy Stevens, John Stevenson, Jr., Jerome Stiles, David Thomason, Timmy Vines, Raymond West, David Williams, Kelly Williams, Tony Wilkes and Michael David Vandall.", "Notice Program: means the plan approved by the Court for disseminating the Settlement Notices as set forth herein. Objection Date: means the date, to be set by the Court, by which objections to the Settlement must be submitted by Class Members or any additional FLSA Collective Members who are not Named Plaintiffs. Party or Parties: means the Named Plaintiffs and/or Defendants. Preliminary Approval: means the order to be entered by the Court, substantially in the form of Exhibit 6, that: (a) preliminarily approves this Settlement Agreement; (b) sets the date of the Fairness Hearing; (c) appoints the Plaintiffs’ Counsel as Class Counsel for the Settlement Class Members; (d) approves the forms of Settlement Notice and the Notice Program; Page 11 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 12 of 45 (e) sets the date that Settlement Notices should issue; (f) sets the end of the Notice Period; (g) sets the Exclusion Date and the Withdrawal Date; and (h) sets the deadline for filing objections to the settlement. Released Claims: mean any and all claims, demands, causes of action, rights to relief, fees and liabilities of any kind, whether known or unknown, either that were asserted in or could have been asserted in this Action, that the Settlement Class Members have or may have against any of the Releasees (as defined below), from the beginning of time through December 31, 2019, including, but not limited to, all claims under common law contract, tort, or other law, as well as all claims under federal, state, local, or foreign laws, including but not limited to all claims arising under North Carolina, South Carolina, or other applicable state’s Wage and Labor Laws; North Carolina, South Carolina, or other applicable state’s common law; North Carolina, South Carolina, or other applicable state’s administrative law; or North Carolina, South Carolina, or other applicable state’s statutory law that are derivative of, or in any way related to, any wage and hour, overtime, benefits or other claims based on the Settlement Class Members’ alleged misclassification as independent contractors; any other claim allegedly arising from the Settlement Class Members’ alleged misclassification as independent contractor while performing services under a Distributor Agreement with Franklin or any predecessor entity; and any penalty, interest, taxes or additional damages or costs which arise from or relate to the claims described above under applicable federal, state or local laws, statutes, or regulations.", "Released Claims shall not include any FLSA claims of any Settlement Class Members who are not also Named Plaintiffs or FLSA Collective Members. For Named Plaintiffs and for FLSA Collective Members who do not Page 12 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 13 of 45 withdraw and exclude themselves, Released Claims shall include any and all FLSA claims in addition to all claims set forth in this Section above. Releasees: means Flowers Foods, Franklin, and any and all current and former parents, subsidiaries, related companies or entities, partnerships, joint ventures, or other affiliates, and, with respect to each of them, all of their predecessors and successors, benefits plans and programs, insurers, contractors, subcontractors, successors, and assigns, and, with respect to each such entity, any and all of its past, present, and future employees, trustees, officers, directors, stockholders, owners, representatives, assigns, attorneys, administrators, fiduciaries, agents, insurers, trustees, and any other persons acting by, though, under, or in concert with any of these persons or entities and their successors and assigns. Settlement Administrator: means Atticus Administration, 1250 Northland Drive, Suite 240, Mendota Heights, MN 55120.", "Settlement Class or Settlement Class Member: means any Class Member who receives the Settlement Notice and who does not submit a valid Exclusion Request pursuant to the terms of this Agreement, Named Plaintiffs, any FLSA Collective Members who are also Class Members (but not Named Plaintiffs) who do not withdraw by the Withdrawal Date and who do not also submit a valid Exclusion Request; and any distributors who are FLSA Collective Members only who do not contact Class Counsel to withdraw by the Withdrawal Date. Settlement Fund or Common Fund: means a qualified settlement fund established under Internal Revenue Code § 468B and Treasury Regulation § 1.468B-1, to be funded by Defendants in the amount of $8.3 million dollars, which includes Attorneys’ Fees and Costs (except for costs associated with notice and settlement administration, which shall be paid separately by Defendants), Service Awards, and any payments to current distributor Class and Page 13 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 14 of 45 FLSA Collective Members who accept, sign and return to the Settlement Administrator within the Notice Period the Amendment and Arbitration Agreement, established at a United States bank jointly selected by Defendants and the Settlement Administrator.", "This qualified Settlement Fund shall be non-reversionary except for the money allocated to the claims of those distributors who are: (1) Class Members only (and are not also FLSA Collective Members or Named Plaintiffs)who file a valid Exclusion Request by the Exclusion Date; (2) FLSA Collective Members who are also Class Members (but not Named Plaintiffs) who filed a valid Exclusion Request and contact Class Counsel to withdraw from the Action by the Withdrawal Date; and (3) FLSA Collective Members only (and not also Class Members or Named Plaintiffs) who contact Class Counsel to withdraw from the Action by the withdrawal date.", "Allocation of monies to all such individuals shall revert to Defendants. The Settlement Administrator shall pay all monies payable to the Settlement Class Members (including Service Awards and consideration for timely, executed Amendment and Arbitration Agreements from current distributor Settlement Class Members) and Attorneys’ Fees and Costs to Class Counsel under this Settlement Agreement from the Settlement Fund. Settlement Notice Period or Notice Period: means the Period Set by the Court for Class Members to Review the Settlement Notice, determine whether they want to participate or exclude themselves or object, as applicable; and, for Current Distributor Class or FLSA Collective Members, to determine whether they want to “Accept” the Amendment and Arbitration Agreement in exchange for an additional $3,500 or “Not Accept” and forfeit such payment, or elect the Buy Back Option. Service Award: means the $10,000 payment to each Named Plaintiff to be paid from the Settlement Fund to compensate them for their efforts on behalf of the Settlement Class and FLSA Collective Members. Page 14 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 15 of 45 Withdrawal Date: means the date to be set by the Court by which an FLSA Collective Member, including FLSA Collective Members who are also Class Members, must contact Class Counsel to withdraw from the Action.", "Jurisdiction The Court has jurisdiction over the Parties and the subject matter of this Action, which includes both federal and state-law claims. Additionally, the Court has supplemental jurisdiction over the state-law claims. If the Settlement Agreement is fully and finally approved, the Court will dismiss the Action with prejudice. In the event there is a dispute concerning the enforcement of the terms of this Settlement Agreement, the Parties consent to the jurisdiction of the Court with respect to any such dispute. Prior to taking any such dispute to the Court, the Parties agree to confer in good faith in an attempt to resolve any such dispute. The Parties stipulate that, for settlement purposes only, the Settlement Class satisfies the requirements of Rule 23 of the Federal Rules of Civil Procedure and Section 216(b) of the FLSA, and therefore approval of this Settlement Agreement is appropriate. In so stipulating, Defendants do not waive or abandon any arguments they may have that decertification of the FLSA collective action is proper or that certification of the Rule 23 class is improper.", "Defendants’ consent to certification for settlement purposes only is in no way an admission that Rule 23 or Section 216(b) certification would be proper absent a settlement. Failure to obtain the Preliminary or final approval of this Settlement Agreement in the same or substantially similar formats proposed to the Court, including, but not limited to, the non-monetary relief specified herein and any failure as a result of any appeal of the Court’s Final Page 15 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 16 of 45 Approval Order and Judgment, will cause this Settlement Agreement to be void and unenforceable and to have no further force and effect. In the event this Settlement Agreement becomes void or unenforceable, any monies in the Settlement Fund shall remain the property of and shall be returned to Defendants, the Parties' litigation positions shall revert to the status quo ante prior to the execution of this Settlement Agreement, and the Parties will not be deemed to have waived, limited, or affected in any way any of their claims, defenses, or objections in the Action, including arguments for or against class certification or decertification.", "Statement of No Admission Defendants deny liability upon any claim or cause of action presented or alleged or that could have been presented or alleged in the Action, and Defendants deny that the Settlement Class is entitled to relief of any kind in this Action. This Settlement Agreement does not constitute an admission by Defendants as to the merits, validity, or accuracy of the allegations or claims made against them in the Action and may not be construed as or deemed an admission of liability, culpability, negligence, willfulness, or wrongdoing on the part of Defendants.", "Nothing in this Settlement Agreement is intended by the Parties or may be used by anyone for any purpose inconsistent with this Settlement Agreement, or may be introduced in any way as evidence, to show or establish any misconduct, or improper practices, plans, or policies, or any violation of any federal, state, or local law, statute, ordinance, regulation, rule, or executive order, or any obligation or duty at law or in equity. Notwithstanding the foregoing, this Settlement Agreement may be used in any proceeding in this Court that has as its purpose the enforcement of the Settlement Agreement. Page 16 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 17 of 45 Claims of the Plaintiffs and Benefits of Settlement Plaintiffs believe that the claims asserted in the Action have merit and that the evidence developed through extensive written and deposition discovery supports their claims.", "However, Plaintiffs and Class Counsel recognize and acknowledge the expense, complexities, and length of continued proceedings necessary to prosecute the Action through trial and through appeals, along with the uncertain nature of certain damages and affirmative defenses. Plaintiffs and Class Counsel have considered the uncertain outcome and the risk of this Action, especially the multi-party, collective, and class action components of this Action, as well as the difficulties, delays, and risks of collection inherent in litigation. Plaintiffs and Class Counsel believe that the Settlement Agreement confers substantial benefits upon Plaintiffs and the Settlement Class Members and is fair, reasonable, adequate, and in the best interests of Plaintiffs and the Settlement Class Members. Non-Monetary Relief and Other Options for Distributors Defendants will implement certain changes and modifications to the independent distributor model at Franklin in accordance with Exhibit 7. The terms are the product of extensive and arms-length negotiations between the Parties and their counsel, which were facilitated by a mediator experienced in independent distributor/delivery business models and which confer substantial benefits on Settlement Class Members to which they would not otherwise be entitled absent this Settlement Agreement.", "Defendants will establish a Distributor Review Panel for Franklin distributors that will operate in accordance with Exhibit 8. Defendants will establish the position of Distributor Advocate for distributors with Franklin, as explained more fully in Exhibit 9, which will operate in accordance with the Page 17 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 18 of 45 International Ombudsman Association’s Standards of Practice and Code of Ethics where operationally feasible (e.g., Defendants will not maintain confidentiality as suggested by the International Ombudsman Association because the distributor’s identity must be shared with management in order to understand the context and each party’s business interests). Settlement Class Members who are current Franklin distributors will be offered the opportunity and be eligible to “Accept” or “Not Accept” an Amendment to the Distributor Agreement with an accompanying Arbitration Agreement and class action waiver.", "The Amendment will modify or eliminate certain provisions in the Distributor Agreement that are inconsistent with the Arbitration Agreement. The Settlement Administrator will present each current distributor with the Amendment and the Arbitration Agreement during the Notice Period. The Settlement Administrator will also present an agreed-upon summary of the Amendment and Arbitration Agreement at that time. These documents are contained in the arbitration agreement packet (Exhibit 1). Distributors who “Accept” and concurrently sign the Amendment with the accompanying Arbitration Agreement and return these signed documents to the Settlement Administrator by the end of the Notice Period shall receive an additional $3,500 from the Settlement Fund as consideration for accepting such Amendment. Distributors who do not accept the Amendment will forfeit such $3,500 payment, and such payments shall revert to the Settlement Fund to be reallocated among all Settlement Class Members. Defendants will agree to buy back the territories of any interested Settlement Class Member who is a current distributor at ten (10) times weekly branded sales calculated over a 52- week average, provided that the Settlement Class Member returns to the Settlement Administrator during the Notice Period the Buy Back Election Form (Exhibit 10). The Settlement Administrator will, in turn, notify Defendants. For those Settlement Class Members who exercise this option, the Page 18 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 19 of 45 timing of the sale will be at Franklin’s reasonable discretion depending on Franklin’s business needs and/or the ability to service the territory.", "Such buy backs are also contingent upon those Settlement Class Members who have exercised this option continuing to comply with all of their obligations under the Distributor Agreement. Such buy backs are subject to the following: For the first five (5) territories designated by Settlement Class Members who exercise this option, the time period shall not exceed sixty (60) days from the Settlement Effective Date. For the next fifteen (15) territories designated by Settlement Class Members who exercise this option, the time period shall not exceed one hundred twenty (120) days from the Settlement Effective Date.", "In the event Settlement Class Members express interest in selling greater than twenty (20) territories, the time period shall not exceed one hundred eighty (180) days from the Settlement Effective Date. For purposes of determining the designation date, the date of receipt by the Settlement Administrator shall control. Waiver, Release and Dismissal Upon the Settlement Effective Date, all Settlement Class Members will be bound by the terms and conditions of this Settlement Agreement. Upon the Settlement Effective Date, each Settlement Class Member, on behalf of themselves and their respective agents, representatives, executors, estates, heirs, administrators, attorneys, insurers, successors and assigns shall be deemed to have forever released and discharged the Releasees from any and all Released Claims, shall covenant not to sue the Releasees with Page 19 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 20 of 45 respect to any Released Claims, and will be permanently and forever barred from suing or otherwise asserting any Released Claim against any of the Releasees. In exchange for this release of claims by the Settlement Class, Defendants will pay the sum of $8.3 million into the Settlement Fund within ten business days after the Settlement Effective Date of this Action. At their discretion, Defendants may pay this amount into the Settlement Fund earlier. Notwithstanding any other provision of this Settlement Agreement, nothing in this Settlement Agreement is intended to restrict any Settlement Class Member from contacting, assisting, or cooperating with any government agency; provided, however, that no Settlement Class Member shall seek or accept damages, reinstatement, or similar personal relief as to any Released Claim.", "Named Plaintiffs represent and warrant that they have not sold, assigned, pledged, or otherwise transferred any Released Claims. It is agreed that because the Settlement Class Members are so numerous, it is impossible or impractical to have each Settlement Class Member execute this Settlement Agreement. The Settlement Notice will advise all Settlement Class Members of the binding nature of the release, and Named Plaintiffs’ signing of this Settlement Agreement, when approved by the Court and such approval has become final, fully effectuates the above releases on behalf of the remaining Settlement Class Members.", "The checks issued to all Settlement Class Members shall also have appropriate agreed-upon release language on the back of each check. Named Plaintiffs shall also separately sign a General Release of Claims. The Parties agree to seek an order dismissing the Action with prejudice and such other and additional orders upon the Final Approval Order and Judgment. Page 20 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 21 of 45 Required Events and Cooperation by the Parties As soon as reasonably practicable after execution of the Settlement Agreement, the Parties shall submit the Settlement Agreement, including all Exhibits, to the Court for its Preliminary Approval and shall jointly move the Court for entry of an order, substantially in the form of Exhibit 6, which by its terms shall: Determine preliminarily that this Settlement Agreement and the terms set forth herein fall within the range of reasonableness meriting possible Final Approval and dissemination of Settlement Notices as set forth herein, and direct that, within ten days of filing for Preliminary Approval, Defendants shall provide notice of this proposed Settlement in compliance with the Class Action Fairness Act of 2005 (“CAFA”); Schedule the Fairness Hearing to: (i) determine finally whether Settlement Class satisfies the applicable requirements of Rule 23 and should be finally certified for settlement purposes only; (ii) review objections, if any, regarding the Settlement Agreement; (iii) consider the fairness, reasonableness, and adequacy of the Settlement Agreement and its terms; (iv) consider Class Counsel’s application for an award of attorneys’ fees and reimbursement of expenses; (v) determine the validity of any Exclusion Requests and exclude from the Class those persons who are eligible to exclude themselves under the terms set forth herein and who validly and timely exclude themselves by the Exclusion Date; and (vi) consider whether the Court shall issue the Final Approval Order and Judgment, approving the settlement and dismissing the Action with prejudice.", "Set a briefing schedule for: (i) a joint motion for final approval; (ii) Class Counsel’s motion for attorneys’ fees; and (iii) Named Plaintiffs’ motion for Service Awards; Approve the proposed Settlement Notices and Notice Program; Page 21 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 22 of 45 Direct the Settlement Administrator to cause the Settlement Notice to be disseminated in the manner set forth in the Notice Program on or before the Settlement Notice Deadline; Determine that the Settlement Notices and the Notice Program: (i) meet the requirements of Rule 23(c)(3) and due process; (ii) are the best practicable notice under the circumstances; (iii) are reasonably calculated, under the circumstances, to apprise applicable Class Members of the pendency of the Action, their right to object to the proposed Settlement, exclude themselves from the settlement, or participate within the timeframe provided herein; and (iv) are reasonable and constitute due, adequate, and sufficient notice to all those entitled to receive notice. Require each Class Member who is not also an FLSA Collective Member or a Named Plaintiff who wishes to exclude himself or herself from the Settlement to submit a timely and valid written Exclusion Request, on or before the Exclusion Date, to the Settlement Administrator; Require each FLSA Collective Member who is also a Class Member (but not a Named Plaintiff) who wishes to exclude himself or herself from the Settlement to submit a timely and valid written Exclusion Request on or before the Exclusion Date to the Settlement Administrator and contact Class Counsel to withdraw from the Action by the Withdrawal Date; Require each FLSA Collective Member (who is not also a Class Member or Named Plaintiff) who does not wish to participate in the Settlement to contact Class Counsel to withdraw from the Action by the Withdrawal Date; Order that all Settlement Class Members will be bound by all proceedings, orders, and judgments in this Action; Page 22 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 23 of 45 Require any Settlement Class Member who is not a Named Plaintiff and who wishes to object to the fairness, reasonableness or adequacy of the Settlement Agreement, to the award of Attorneys’ Fees and Expenses, or to the Service Awards, to submit to the Court, Class Counsel, and Defense Counsel by the Objection Date a statement of his or her objection; and Establish the following: 9.1.12.1.", "The date and time of the Fairness Hearing, which the Parties agree shall not be on a date or time that is less than 100 days after Preliminary Approval of the Settlement Agreement, or 90 days after notice is sent to the appropriate officials under CAFA, whichever is later; 9.1.12.2. The date by which the Settlement Notices shall issue; 9.1.12.3. The date by which any Exclusion Request, objections, withdrawal request, and the signed Amendments and Arbitration Agreements from current distributor Settlement Class Members who elect this option are due. The Parties represent and acknowledge that each intends to implement the Settlement Agreement. The Parties shall, in good faith, cooperate and assist with and undertake all reasonable actions and steps to accomplish all required events on the schedule set by the Court, and shall use their best efforts to implement all terms and conditions of the Settlement Agreement.", "Settlement Administration Subject to approval by the Court, the Settlement Administrator shall be responsible for mailing the Settlement Notices; receiving and logging arbitration election forms and fully executed Amendments and attached Arbitration Agreements, Buy Back Election Forms, and Exclusion Requests; researching and updating addresses through skip-traces and similar means; answering questions from Settlement Class Members; reporting on the status of the claims Page 23 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 24 of 45 administration to counsel for the Parties; sending the notices required by CAFA within the appropriate time period; preparing a declaration regarding its due diligence in the claims administration process; providing the Parties with data regarding the arbitration election forms, accompanying Amendments and Arbitration Agreements, Buy Back Election Forms, and Exclusion Requests; distributing settlement checks; reporting and paying, as necessary, applicable taxes on settlement payments; and doing such other things as the Parties may direct. Within seven (7) days after the Court’s Preliminary Approval, Defendants will provide to the Settlement Administrator a database listing of the names, last known addresses, dates contracted by Franklin as distributors during a Covered Period, and social security numbers or dates of birth of the Named Plaintiffs, FLSA Collective Members, and Class Members.", "The Settlement Administrator will perform the following functions in accordance with the terms of this Settlement Agreement, the Preliminary Approval Order, and the Final Approval Order and Judgment: Provide for the Settlement Notices (with the Fairness Hearing dates) to be sent by mail to all applicable Class and FLSA Collective Members that can be identified through a reasonable effort; Provide to Defense Counsel and Class Counsel, 14 days after the first mailing of the Settlement Notices and then updated every 14 days thereafter: (i) a list of the names and addresses of all Class Members or FLSA Collective Members whose Settlement Notices have been returned to the Settlement Administrator as undeliverable along with a report indicating steps taken by the Settlement Administrator to locate updated address information for such Class Members and FLSA Collective Members and to resend the Settlement Notices, and/or whose Settlement Notices have been forwarded to an updated address by the United States Postal Service; Page 24 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 25 of 45 (ii) a separate list of the names and addresses of all Settlement Class Members who are not Named Plaintiffs who have submitted documents indicating that they wish to object to the settlement; (iii) a separate list of the names and addresses of all Settlement Class Members who are not Named Plaintiffs who have submitted documents indicating that they wish to challenge the payment calculations along with copies of all such documents; (iv) a separate list of the names of current distributor Settlement Class Members who have elected to “Accept” the Amendment and Arbitration Agreement and have submitted executed versions of both documents to the Settlement Administrator by the end of the Notice Period; and (v) a separate list of current distributor Settlement Class Members who have submitted the Buy Back Election Form.", "Process challenges to the payment calculations and process objections to the Settlement in accordance with this Settlement Agreement; Mail settlement payments to Settlement Class Members, as ordered by the Court in the Proposed Final Approval Order, in accordance with this Settlement Agreement; Mail payments of $3,500 from the Settlement Fund for each current distributor Settlement Class Member who elects to Accept the Amendment and Arbitration Agreement and submitted executed copies of both the Amendment and Arbitration Agreement back to the Settlement Administrator by the end of the Notice Period; Mail payment(s) for Attorneys’ Fees and Costs to Class Counsel, as ordered by the Court in the Final Approval Order, in accordance with the Settlement Agreement; Mail Service Awards to Named Plaintiffs, as ordered by the Court in the Final Approval Order; Page 25 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 26 of 45 Establish, designate, and maintain a Settlement Fund for the Lawsuit as a “qualified settlement fund” under Internal Revenue Code § 468B and Treasury Regulation § 1.468B-1; Maintain the assets of the Settlement Fund in a non-interest-bearing escrow account segregated from the assets of Defendants and any person related to Defendants; Obtain employer identification numbers for the Settlement Fund pursuant to Treasury Regulation § 1.468B-2(k)(4); Prepare and file federal income tax returns for the Settlement Fund, as well as any other tax filings the Class Settlement Fund must make under federal, state, or local law; Prepare, file, and issue all necessary tax reporting forms for the Settlement Fund, including Form W-2 Statutory Employees and IRS Forms 1099 regarding the distribution of payments to the Settlement Class Members, Class Counsel, and Named Plaintiffs as set forth herein; Provide Defendants with copies of all tax reporting and filings made for the Settlement Fund, including copies of the checks and the Form W-2 Statutory Employees and IRS Forms 1099 issued to Settlement Class Members and Named Plaintiffs, and any other documentation to show that the tax reporting and filings were timely transmitted to the claimants and the applicable taxing authorities; Pay any additional tax liabilities (including penalties and interest) that arise from the establishment and administration of the Settlement Fund solely from the assets of the Settlement Fund without any recourse against Defendants for additional monies; Page 26 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 27 of 45 Liquidate any remaining assets of the Settlement Fund after all payments to the Settlement Class Members, Class Counsel, and Named Plaintiffs have been made and all tax obligations have been satisfied, and distribute all unclaimed funds to the designated cy pres beneficiar(ies); and Notify the Parties that the Settlement Fund will be terminated unless the Parties contact the Settlement Administrator within ten business days.", "The Parties will be jointly responsible for providing the Settlement Administrator with the necessary information to facilitate notice and claims administration (including, but not necessarily limited to, the full legal name, last known address, and dates of contract of each Named Plaintiff, FLSA Collective Member, and/or Class Member). In the event a Settlement Class Member disputes the accuracy of information upon which settlement payments are calculated, the Parties agree that Defendants’ business records will be conclusive as to the dates a Settlement Class Member was a distributor. Class Counsel will calculate settlement payments to each Settlement Class Member under this Settlement Agreement using the formula more specifically described and set forth in this agreement and provide this information to the Settlement Administrator for purposes of processing the settlement checks. Defendants acknowledge that they are responsible for ensuring that notice is mailed to the appropriate entities pursuant to CAFA and agree to work diligently with the Settlement Administrator, who will be responsible for actually sending the required notices, to ensure this notice is sent timely and in the manner prescribed by law.", "Defendants will pay the costs of notice and administration of the settlement, which will be paid separately and in addition to funding the Settlement Fund. Page 27 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 28 of 45 Notice to the Settlement Class, Objection, and Exclusion Rights Within two weeks of the date the Court grants Preliminary Approval of the Settlement, as the Court may direct, the Parties shall cause the Settlement Notices to be disseminated pursuant to the Notice Program, in a manner that comports with constitutional due process and the requirements of Rule 23, as set forth below: The Settlement Administrator shall cause the Settlement Notice in the form of Exhibit 2A to be sent to current distributor Class Members who are not Named Plaintiffs or FLSA Collective Members; The Settlement Administrator shall cause the Settlement Notice in the form of Exhibit 2B to be sent to former distributor Class Members who are not Named Plaintiffs or FLSA Collective Members; The Settlement Administrator shall cause the Settlement Notice in the form of Exhibit 3A to be sent to current distributor FLSA Collective Members who are also Class Members but are not Named Plaintiffs.", "The Settlement Administrator shall cause the Settlement Notice in the form of Exhibit 3B to be sent to former distributor FLSA Collective Members who are also Class Members but not Named Plaintiffs. The Settlement Administrator shall cause the Settlement Notice in the form of Exhibit 4A to be sent to current distributors who are FLSA Collective Members only (and not also Class Members or Named Plaintiffs); The Settlement Administrator shall cause the Settlement Notice in the form of Exhibit 4B to be sent to former distributors who are FLSA Collective Members only (and not also Class Members or Named Plaintiffs); Page 28 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 29 of 45 The Parties agree that all Class Members and FLSA Collective Members who are also Class Members but are not Named Plaintiffs and who receive Settlement Notices in the forms of Exhibit 2A, 2B, 3A or 3B shall have a period of sixty (60) days to file any Exclusion Request or objection.", "The Parties agree that all FLSA Collective Members, including those who are and who are not Class Members, shall have a period of sixty (60) days to contact Class Counsel and withdraw from the Action should they wish to not participate in the settlement. The Parties agree that current distributor Class Members and FLSA Collective Members shall have a period of sixty (60) days to submit their election accepting the Amendment with Arbitration Agreement and fully executed copies of each to the Settlement Administrator. Current distributor Class Members and FLSA Collective Members shall also have a period of sixty (60) days to submit the Buy Back Election Form. The Parties agree that the Settlement Administrator shall also send a Reminder Notice in the form attached as Exhibit 5 to any current distributor Class Member or FLSA Collective Member who has not submitted the signed Amendment and attached Arbitration Agreement within the first 45-days of the Notice Period reminding them of the upcoming deadline for this option. Claims administration expenses and notice expenses shall be paid directly by Defendants and not from the Settlement Fund.", "The Settlement Notices attached in the form of Exhibits 2A, 2B, 3A and 3B shall comply with the requirements of Rule 23 and shall: contain a short, plain statement of the background of the Action and the proposed Settlement; Page 29 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 30 of 45 describe the proposed Settlement relief as set forth in this Settlement Agreement, including the requests of Class Counsel for Attorneys’ Fees and Costs and Service Awards as described in this Settlement Agreement; inform Class Members that, if they do not exclude themselves from the Settlement, they may be eligible to receive relief; describe the procedures for participating in the Settlement and advising recipients of this Notice of their rights, including their right to exclude themselves from the settlement, or object to the Settlement; explain the scope of the Release, and the impact of the proposed Settlement Agreement on any existing litigation, arbitration or other proceeding; state that any relief to Class Members under the Settlement Agreement is contingent on the Court’s Final Approval of the proposed Settlement Agreement; explain that Counsel for the Parties may not advise on the tax consequences of participating or not participating in the Settlement; explain the procedures for opting out of the Settlement and specify that so- called “mass” or “class” opt-outs shall not be allowed; and provide that any objection to the Settlement Agreement and any papers submitted in support of said objection will be considered only if the Settlement Class Member has submitted timely notice of his or her intention to do so, with the grounds for the objection, and has served copies of such papers he or she proposes to submit at the Fairness Hearing on Class Counsel and Defense Counsel on or before the Objection Date, as specified in the Settlement Notice.", "Any Settlement Class Member who is not a Named Plaintiff and who intends to object to any aspect of the settlement, including the requested Attorneys’ Fees and Costs, or Service Page 30 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 31 of 45 Award, must do so on or before the Objection Date. To object, the applicable Settlement Class Member must file a written objection with the Court on or before the Objection Date and serve it via first-class mail on Class Counsel and Defense Counsel and include: the name, address, telephone number, and email address of the Person objecting and, if represented by counsel, of his/her counsel.", "An objecting Settlement Class Member must state, specifically and in writing, all objections and the basis for any such objections and must state whether he/she intends to appear at the Fairness Hearing, either with or without counsel. Any Settlement Class Member who fails to file and timely submit and serve a written objection in accordance with this Agreement shall not be permitted to object to the approval of the Settlement Agreement at the Fairness Hearing. The Parties may take discovery on an expedited basis regarding the objection from the objector and related third parties. Prior to the Fairness Hearing, the Parties shall provide to the Court documentation that the Settlement Notices were provided in accordance with the Notice Program. A Class Member, including an FLSA Collective Member who is also a Class Member but who is not a Named Plaintiff, who wishes to file an Exclusion Request must do so on or before the Exclusion Date.", "To exclude himself or herself, the applicable Class Member must complete and send to the Settlement Administrator an Exclusion Request as set forth herein that is post-marked no later than the Exclusion Date. The Exclusion Request must be personally signed by the applicable Class Member requesting exclusion; contain the Class Member’s full name, address, and phone number; and contain a statement that indicates a desire to be excluded from the Settlement Class. So-called “mass” or “class” exclusions on behalf of multiple individuals or groups shall not be allowed. Page 31 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 32 of 45 An FLSA Collective Member, including an FLSA Collective Members who is also a Class Member but not a Named Plaintiff, who does not want to participate in the settlement must contact Class Counsel and notify them that they want to withdraw by the Withdrawal Date. FLSA Collective Members who are also Class Members (but not Named Plaintiffs) must file both a valid Exclusion Request by the Exclusion Date as discussed in 11.10 above and contact Class Counsel to withdraw by the Withdrawal Date as discussed herein to exclude themselves from the settlement. Except for those Class Members and applicable FLSA Collective Members who are also Class Members who timely and properly file an Exclusion Request, as applicable, and all FLSA Collective Members who submit notice of intent to withdraw to Class Counsel by the Withdrawal Date, all other Class Members, including those who do not respond to the Notice, will be deemed to be Settlement Class Members for all purposes under the Settlement Agreement, and upon the Settlement Effective Date, will be bound by its terms and conditions and the release of claims described therein and will be bound by the judgment dismissing this Action on the merits.", "Any Class Member, including any FLSA Collective Member who is also a Class Member, who is not also a Named Plaintiff who properly files an Exclusion Request excluding him/herself from the Settlement shall: (a) not be bound by any orders or judgments entered in the Action relating to the settlement, including but not limited to the Release of Claims; (b) not be entitled to relief under, or be affected by, the Settlement Agreement; (c) not gain any rights by the Settlement Agreement; or (d) not be entitled to object to any aspect of the Settlement.. For any Class Member who files an Exclusion Request, the statute of limitations for the Class Member’s claims will begin to run again upon the Settlement Effective Date. The statute of limitations will similarly begin to run for any FLSA Collective Member who withdraws from the lawsuit as well Page 32 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 33 of 45 as any FLSA Collective Member/Class Member who both withdraws from the lawsuit and files an Exclusion Request.", "Payment from the Settlement Fund All settlement payments made to Settlement Class Members under this Settlement Agreement shall be considered non-employee compensation. For tax reporting purposes, except as provided in 12..3 below, Defendants, or as applicable the Settlement Administrator, shall report all settlement payments made to Settlement Class Members as non-employee compensation to the Settlement Class Members receiving settlement payments. For any Settlement Class Members whose distributorships are incorporated on the Settlement Effective Date, no reporting for tax purposes of the settlement payments is required.", "Settlement Class Members will be responsible for reporting such amounts on their tax returns and paying all applicable taxes on such amounts. Settlement Class Members agree to indemnify and hold Defendants and the Settlement Administrator harmless from any and all liability that may result from, or arise in connection with their failure to file and pay such taxes on any amounts received pursuant to this settlement. No Settlement Funds shall be disbursed from the Settlement Fund until the Settlement Effective Date. In the event the Action is not finally dismissed or is vacated or reversed on appeal, all Settlement Funds shall be immediately returned to Defendants.", "Settlement Fund Allocation No Settlement Class Member will be required to submit a claim form to receive a share of the Settlement Fund. The Parties agree to allocate the settlement fund as follows: Page 33 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 34 of 45 Step 1: For class members who had more than one territory at some point during the class period, select the territory with the highest gross sales and discard sales data from the smaller route(s). Step 2: Calculate FLSA overtime shares by multiplying the number of weeks each opt-in plaintiff worked during the two-year statute of limitations period by 55 hours, then divide that opt- in plaintiff’s gross sales by that product. If the quotient is less than $1,000, round up to $1,000. Step 3: Calculate each class member’s North Carolina wage deduction damages by adding the dollar amount of class member’s warehouse fee, administrative fee, shrink, and stale payments during the applicable statute of limitations.", "Step 4: Reduce the common fund by the amount of attorneys fees, costs, and service awards approved by the Court. Reduce the difference by the sum of all FLSA damages calculated in step 2 and the sum of all arbitration agreement payments. Step 5: Apportion the remaining money on a pro rata basis for each class member for wage deduction damages. Step 6: Verify results. The sum of all class member shares, arbitration payments, attorneys fees and costs, and service awards must equal $8,300,000.00.", "Settlement Class Members who operate multiple territories shall collect monies allocated to alleged overtime on only one territory, which will be the territory that has the highest total damages during the recovery period as determined by Plaintiffs’ proffered damages expert; The $3,500 payment for each current distributor Class or FLSA Collective Member who elects to “Not Accept” the Amendment and accompanying Arbitration Agreement with class action waiver shall be returned to the Settlement Fund for re-allocation among Settlement Class Members. Any Class Member who has submitted or submits an incomplete or incorrect form will be permitted to re-submit one within 14 days of the sending of notice to that Class Member of a defect by the Claims Administrator. Class Counsel will be kept apprised of the volume and nature of defective forms and allowed to communicate with Class Members as they deem appropriate to cure deficiencies. Page 34 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 35 of 45 Checks will be negotiable for 180 days.", "Ninety (90) days after mailing, the Settlement Administrator will review the Settlement Fund account for uncashed checks and attempt to contact each Settlement Class Member who has not cashed her or his check to remind them of the negotiable period. If the Settlement Class Member requests a new check, the Settlement Administrator will void the original check and reissue a check negotiable for forty-five (45) days. Checks that are not cashed within the negotiable period will not result in unclaimed property under state-law. Rather, in the event there are unclaimed funds, they shall be paid to an agreed-upon cy pres beneficiary. The parties will recommend to the Court that remaining funds be divided and sent equally to the North Carolina State Bar for the provision of civil legal services for indigents and to the Indigent Person’s Attorney Fund.", "The Named Plaintiffs may petition the Court for approval of Service Awards in the amount of $10,000 per Named Plaintiff in recognition of their time and efforts in serving the Class and FLSA Collective Action by helping Class Counsel formulate claims and assisting in the Action and settlement process. Defendants will not object to the Named Plaintiffs’ petition for Service Awards. These Service Awards are separate from and in addition to the shares of the Settlement Fund that the Named Plaintiffs may be eligible to receive as Settlement Class Members, although the payments will be made from the Settlement Fund. As a condition of receiving such Service Awards, Named Plaintiffs agree that they may not exclude themselves from this settlement and agree to sign a general release of all claims. Final approval of the Agreement is not contingent upon the Court granting the requested Attorneys’ Fees and Costs and Service Awards in full. Except as otherwise noted, the allocations described in 13.2 and 13.3 will be performed solely by Class Counsel and is subject to Court approval.", "Page 35 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 36 of 45 Defendants and Defense Counsel will cooperate with Class Counsel to provide information from Defendants’ records for purposes of locating persons in the Class and in determining the values to be used in calculating each Settlement Class Member’s share of the Settlement Fund. Attorneys’ Fees and Costs Class Counsel agrees to make an application to the Court for an award of Attorneys’ Fees and Expenses in this Action. Defendants agree not to oppose such application.", "Class Counsel will apply for fees of no more than one-third of the common fund plus expense reimbursement of their actual litigation costs. If awarded by the Court, the Settlement Administrator shall pay Class Counsel directly within twenty business days of the Settlement Effective Date. Miscellaneous Provisions The Parties agree to take all steps as may be reasonably necessary to secure approval of the Settlement Agreement, to the extent not inconsistent with its terms, and will not take any action adverse to each other in obtaining Court approval, and, if necessary, appellate approval of the Settlement Agreement in all respects. This Settlement Agreement, and any payments made pursuant to it, including payments made pursuant to the claim procedures set forth herein, will have no effect on the eligibility or calculation of benefits of current or former distributors of Franklin not covered by this Settlement Agreement. The signatories hereto hereby represent that they are fully authorized to enter this Settlement Agreement and bind the Parties hereto to the terms and conditions hereof. The Parties agree to fully cooperate with each other to accomplish the terms of this Settlement Agreement, including, but not limited to, execution of such documents and to take such Page 36 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 37 of 45 other action as may reasonably be necessary to implement the terms of this Settlement Agreement. The Parties to this Settlement Agreement shall use their best efforts, including all efforts contemplated by this Settlement Agreement and any other efforts that may become necessary by order of the Court, or otherwise, to implement this Settlement Agreement and the terms and conditions set forth herein.", "Class Counsel will use their best efforts for, will cooperate with Defense Counsel on, and will exercise good faith in obtaining the most participation possible in the settlement. As soon as practicable after execution of this Settlement Agreement, Class Counsel shall, with the assistance and cooperation of Defendants and Defense Counsel, take all necessary steps to secure the Court’s final approval of this Settlement Agreement. The Parties agree to a stay of all proceedings in this Action, except such proceedings as may be necessary to complete and implement the Settlement Agreement, pending Final Court Approval of the Settlement Agreement. This Settlement Agreement shall be interpreted and enforced under federal law and under the laws of the State of North Carolina without regard to its conflicts of law provisions. Defendants will not communicate with Settlement Class Members about the Arbitration Agreement or the settlement, except to direct questions to Class Counsel or the Settlement Administrator.", "Upon stipulation or with Court approval, the Parties may alter the above dates or time periods. The Parties may also make other non-substantive revisions to the Settlement Notice, Reminder Notice, or other documents as necessary. All the Parties acknowledge that they have been represented by competent, experienced counsel throughout all arms-length negotiations which preceded the execution of this Page 37 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 38 of 45 Settlement Agreement and that this Settlement Agreement is made with advice of counsel who have jointly prepared this Settlement Agreement. Any claim concerning enforcement of the Settlement Agreement, or the subject matter hereof, will be resolved solely and exclusively by the United States District Court for the Eastern District of North Carolina, and the Parties hereby consent to the personal jurisdiction of the Court over them solely in connection therewith. The terms of this Settlement Agreement are confidential until it is filed in the Court.", "Even after the Settlement Agreement is filed with the Court, the Parties agree to keep the amounts paid to each individual Settlement Class Member confidential. This includes not publicizing or disclosing the specific monetary amounts each individual is to receive under this settlement, either directly or indirectly, that is, through agents, attorneys, or any other person or entity, either in specific or as to general existence or content, to any media, including on the internet and social media including, but not limited to Facebook, Twitter, MySpace, personal blogs and websites, the public generally, or any individual or entity.", "Notwithstanding the above, counsel for any party may take actions to implement this Settlement Agreement, including publicly filing it with the Court and issuing Court-approved Notice. Further, notwithstanding the foregoing, Settlement Class Members and Class Counsel may also disclose information concerning this Settlement Agreement to their respective immediate families, counsel, and tax advisors who have first agreed to keep said information confidential and to not disclose it to others, and Class Counsel may disclose information to courts in connection with declarations supporting adequacy as class counsel. The foregoing shall not prohibit or restrict such disclosure as is required by law or as may be necessary for the prosecution of claims relating to the performance or enforcement of this Settlement Agreement and shall not prohibit or restrict Settlement Class Members or Class Counsel from Page 38 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 39 of 45 responding to any inquiry about this Settlement Agreement or Action or its underlying facts and circumstances by any governmental agency, or any regulatory organization. To the extent permitted by law, with respect to any such disclosure pursuant to the foregoing sentence, each Settlement Class Members and Class Counsel shall provide Defendants with as much notice as possible of any request to make any above-described disclosure, and will use best efforts to ensure that if such disclosure occurs it will occur in a manner designed to maintain the confidentiality of this Settlement Agreement to the fullest extent possible.", "Finally, notwithstanding the foregoing, Defendants may disclose the specific financial terms of this Agreement for legal, accounting, and legitimate business purposes, in accordance with their usual business practice, and otherwise as required by law. The Parties to this Settlement Agreement participated jointly in its negotiation and preparation. Accordingly, it is agreed that no rule of construction will apply against any Party or in favor of any Party, and any uncertainty or ambiguity will not be interpreted against one Party and in favor of the other. The terms and conditions of this Settlement Agreement constitute the exclusive and final understanding and expression of all agreements between the Parties with respect to the resolution of the Action. The Named Plaintiffs, on their own behalf and on behalf of the Settlement Class they represent, and Defendants accept entry of this Agreement based solely on its terms, and not in reliance upon any representations or promises other than those contained in this Settlement Agreement.", "This Settlement Agreement may be modified only by writing and signed by the original Plaintiffs and by a duly authorized representative of Defendants and approved by the Court. Page 39 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 40 of 45 This Settlement Agreement and the attachments hereto contain the entire agreement between the Parties relating to the Settlement Agreement and transaction contemplated hereby, and all prior or contemporaneous agreements, understandings, representations, and statements, whether oral or written and whether by a party or a party’s legal counsel, are merged in this Settlement Agreement. No rights may be waived except in writing. Notwithstanding the foregoing, however, nothing in this Settlement Agreement shall otherwise affect or alter the rights and obligations of the Parties or Settlement Class Members, as set forth in their Distributor Agreements. This Settlement Agreement may be executed in one or more actual or electronically reproduced counterparts, all of which will be considered one and the same instrument and all of which will be considered duplicate originals.", "In the event one or more of the provisions contained in this Settlement Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect the same shall not affect any other provision of this Settlement Agreement but this Settlement Agreement shall be construed as if such invalid, illegal, or unenforceable provisions had never been contained herein. This Settlement Agreement shall be binding upon the Parties and their respective heirs, trustees, executors, administrators, successors, and assigns. In the event of conflict between this Settlement Agreement and any other document prepared pursuant to the settlement, the terms of the Settlement Agreement supersede and control. Captions in this Settlement Agreement are for convenience and do not in any way define, limit, extend, or describe the scope of this Agreement or any provision in it. Page 40 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 41 of 45 Unless otherwise stated herein, any notice to the Parties required or provided for under this Settlement Agreement will be in writing and may be sent by electronic mail, hand delivery, or U.S. mail, postage prepaid, as follows: If to Class Counsel If to Defense Counsel Shawn J. Wanta, Esq.", "Kevin P. Hishta, Esq. BAILLON THOME JOZWIAK & WANTA LLP OGLETREE, DEAKINS, NASH, SMOAK 100 South Fifth Street, Suite 1200 & STEWART, P.C. Minneapolis, MN 55402 191 Peachtree Street N.E., Suite 4800 Atlanta, GA 30303 Named Plaintiffs’ Certifications The Named Plaintiffs hereby certify that: a) They have signed this Settlement Agreement voluntarily and knowingly in exchange for the consideration described herein, which Named Plaintiffs acknowledge is adequate and satisfactory and beyond that to which Named Plaintiffs are otherwise entitled; b) They have been advised by Class Counsel and have consulted with Class Counsel before signing this Settlement Agreement; and c) They have been given adequate time to review and consider this Settlement Agreement and to discuss it with Class Counsel; Neither Defendants nor any of the Releasees have made any representations to Named Plaintiffs concerning the terms or effects of this Settlement Agreement other than those contained herein. Page 41 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 42 of 45 IN WITNESS WHEREOF, the Parties hereto have caused this Settlement Agreement to be executed.", "05 / 08 / 2020 Dated: Plaintiff Robert William Morgan, Jr. Dated: Plaintiff Bobby Jo Rosinbaum Dated: Defendant Flowers Foods, Inc. By: Its: Dated: Defendant Franklin Baking Co., LLC By: Its: Page 42 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 43 of 45 Document Ref: 6AJHA-FFKZC-UCFOC-SSEJF Page 42 of 122 IN WITNESS WHEREOF, the Parties hereto have caused this Settlement Agreement to be executed. Dated: Plaintiff Robert William Morgan, Jr. 05 / 08 / 2020 Dated: Plaintiff Bobby Jo Rosinbaum Dated: Defendant Flowers Foods, Inc. By: Its: Dated: Defendant Franklin Baking Co., LLC By: Its: Page 42 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 44 of 45 Document Ref: M7HES-DHGMW-PZWGJ-EDO8K Page 42 of 122 DocuSign Envelope ID: 78C43749-D8C9-42EB-8CD9-E575921E5BD5 IN WITNESS WHEREOF, the Parties hereto have caused this Settlement Agreement to be executed. Dated: Plaintiff Robert William Morgan, Jr.", "Dated: Plaintiff Bobby Jo Rosinbaum 05/08/2020 \| 10:54:08 AM EDT Dated: Defendant Flowers Foods, Inc. By: Its: Chief Legal Counsel 05/08/2020 \| 10:54:08 AM EDT Dated: Defendant Franklin Baking Co., LLC By: Its: Assistant Secretary Page 42 of 42 Case 7:16-cv-00233-FL Document 384-1 Filed 05/12/20 Page 45 of 45" ]	https://www.courtlistener.com/api/rest/v3/recap-documents/133346316/	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
In re Rogers, Larry; applying for writ of certiorari and/or review; to the Court of Appeal, First Circuit, Nos. KW-85-1491, KW-86-0013; Parish of East Baton Rouge, 19th Judicial District Court, Div. “A”, No. 11-82-284. Denied.	07-29-2022	[ "In re Rogers, Larry; applying for writ of certiorari and/or review; to the Court of Appeal, First Circuit, Nos. KW-85-1491, KW-86-0013; Parish of East Baton Rouge, 19th Judicial District Court, Div. “A”, No. 11-82-284. Denied." ]	https://www.courtlistener.com/api/rest/v3/opinions/7552430/	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2013 ME 58 Docket: Aro-12-411 Submitted On Briefs: May 30, 2013 Decided: June 18, 2013 Panel: SAUFLEY, C.J., and ALEXANDER, SILVER, GORMAN, and JABAR, JJ. IN RE J.R. Jr. JABAR, J. [¶1] The parents of J.R. Jr. appeal the decision of the District Court (Houlton, O’Mara, J.) terminating their parental rights. The mother challenges the court’s finding regarding the best interest of the child. The father argues that the court erred in finding that he was unfit and abused its discretion in denying his motion to recuse and his attorney’s motion to withdraw. Finding no error or abuse of discretion, we affirm. I. BACKGROUND [¶2] J.R. Jr. was born on April 4, 2011, and entered the custody of the Department of Health and Human Services the following day, after the court granted a preliminary child protection order. J.R. Jr.’s eleven-month-old sister and the mother’s two children from a previous relationship, ages eight and twelve, had 2 been in the Department’s custody since May 26, 2010.1 The parents have been engaged in an intermittent, chaotic, dysfunctional, and violent relationship. Both parents struggle with substance abuse, and, at the time of his birth, J.R. Jr. displayed symptoms of drug withdrawals. J.R. Jr. and his sister were placed with the father’s sister. [¶3] Both parents agreed to reunification plans requiring them to engage in substance abuse and mental health treatment, submit to random drug tests, and correct their chaotic lifestyle. In addition, the father was required to engage in anger management and a batterers’ intervention program, and the mother was required to attend individual counseling to address domestic violence, her mental health issues, and the emotional needs of her children. A jeopardy hearing was held on June 22, 2011, at which the mother agreed to an order finding that J.R. Jr. was in circumstances of jeopardy while in her care due to the threat of neglect and emotional maltreatment. The father did not appear at the hearing, and the court issued a jeopardy order as to him in his absence. [¶4] After the jeopardy orders were issued, the mother failed drug screenings, the father failed to appear at a drug screening, and, while in custody at 1 The parents agreed to a voluntary termination of their parental rights as to J.R. Jr.’s older sister in December 2011. The mother’s parental rights to her other children were terminated after a contested hearing in June 2012. 3 the Aroostook County Jail, the father was found to be in possession of pills for which he did not have a prescription. [¶5] Throughout the proceedings, the mother continued her dysfunctional relationship with the father. She failed to recognize how her actions affected J.R. Jr. and his need for permanency and failed to consistently participate in services required by the reunification plan. She attended self-referred substance-abuse counseling but left an intake interview with a Department-approved substance and mental health counselor after only twenty minutes. [¶6] The father was diagnosed with intermittent explosive disorder, antisocial personality disorder, and conduct disorder, and, after confrontations with staff members, he was terminated from a court-ordered batterers’ intervention program. While the case was pending, the father was convicted of multiple crimes and incarcerated on three separate occasions for periods ranging from three days to over four months.2 During several supervised visits with his children, the father would engage in abusive and intimidating behavior toward Department caseworkers, prompting the Department to post two supervisors for each visit. 2 The four-month period of incarceration stemmed from an incident in which the father broke down the door to the mother’s apartment after the mother had locked him out. 4 [¶7] Although the father made some progress with regard to his mental health and anger issues, he refused to accept responsibility for conduct that resulted in J.R. Jr. being placed in foster care and blamed others for his problems. [¶8] The court found that the father did not have housing, but lives in his van or with friends; the father admitted that he is not presently a suitable placement for J.R. Jr. because he would need to do “a lot more” to be a satisfactory parent. [¶9] On April 10, 2012, the Department filed a petition to terminate parental rights alleging that both parents (1) were unwilling or unable to protect J.R. Jr. from jeopardy and those circumstances were unlikely to change within a time reasonably calculated to meet his needs; (2) were unwilling or unable to take responsibility for J.R. Jr. within a time reasonably calculated to meet his needs; and (3) failed to make a good faith effort to reunify with the child. See 22 M.R.S. § 4055(1)(B)(2)(b)(i)-(ii), (iv) (2012). [¶10] On June 14, June 15, and July 9, 2012, the court held a hearing on the petition to terminate parental rights. On June 14, after the parents arrived forty minutes late, the father moved for the trial judge to recuse, arguing that the judge was biased given the number of times the father had appeared before him. Immediately after the court denied the motion to recuse, the father left the courtroom, later claiming that he was sick and required medical attention. The 5 mother indicated that she would not be able to go forward with the hearing on that day. The court continued the hearing until the following morning. [¶11] After a full day of testimony on June 15, the matter was continued until July 9. On July 3, the attorney for the father moved to withdraw, arguing that the attorney-client relationship was irretrievably broken after the father filed a bar complaint against the attorney. Prior to resuming the hearing on July 9, the court asked the father about the basis for the motion. The father indicated that he filed the bar complaint because he felt that the attorney was being “defiant” and was not representing his best interests. Determining that the bar complaint was meritless and employed for delay, the court denied the motion to withdraw. [¶12] The court concluded the hearing on July 9. The court found that neither parent had ameliorated the concerns that initiated these proceedings nor had they directed the court to a date by which they might be able to address those concerns. Furthermore, the court found that both parents are unable or unwilling to protect the child from jeopardy or take responsibility for the child within a time reasonably calculated to meet the child’s needs, and both parents failed to make a good faith effort to rehabilitate and reunify with the child. The parents spent the majority of their efforts—both in services and at the hearing on the petition to terminate—arguing that the father’s sister was not a suitable placement for J.R. Jr. 6 [¶13] With regard to the best interest of the child, the court found that J.R. Jr. had been in the care of the father’s sister for his entire life and is in need of permanency. The record before the court demonstrated that with his aunt, the child was happy and healthy, the Department had no plan to relocate him, and the foster parents were willing to adopt him. Thus, the court found that remaining with the foster family was in the best interest of the child. [¶14] The court entered an order terminating the parental rights of both parents on July 13, 2012. The parents filed a motion for additional findings of fact, which the court granted in part on July 31. Both parents timely appealed. II. DISCUSSION [¶15] Although the father challenges the court’s finding of unfitness, there is ample evidence in the record supporting all three bases of unfitness. See In re Marcus S., 2007 ME 24, ¶ 6, 916 A.2d 225 (“Evidence is sufficient to affirm an order terminating parental rights when a review of the entire record demonstrates that the trial court rationally could have found clear and convincing evidence in that record to support the necessary factual findings as to the bases for termination.” (quotation marks omitted)). Furthermore, the father testified at the termination hearing that he is not presently a suitable placement for J.R. Jr. See In re Higera N., 2010 ME 77, ¶¶ 29-32, 2 A.3d 265; In re Doris G., 2006 ME 142, ¶¶ 16-17, 912 A.2d 572 (holding that the Department’s failure to comply with the 7 rehabilitation and reunification plan does not “preclude findings of parental unfitness”). Similarly, the mother’s challenge to the court’s findings regarding the best interest of the child is without merit because the court’s findings are supported by clear and convincing evidence in the record and the court did not abuse its discretion in making that determination. See In re Jacob B., 2008 ME 168, ¶¶ 14, 17-19, 959 A.2d 734 (noting that “[m]any factors can combine to support a best interest determination”); In re Marcus S., 2007 ME 24, ¶ 6, 916 A.2d 225. Therefore, we decline to discuss further the parents’ contentions regarding the court’s factual findings. We will, however, address the court’s denial of (A) the father’s motion seeking the recusal of the trial judge and (B) the father’s attorney’s motion to withdraw. A. Motion to Recuse [¶16] We have previously recognized, and again highlight here, “the sensitivity with which a motion for recusal must be treated by a judge.” In re Michael M., 2000 ME 204, ¶ 14, 761 A.2d 865. We review such decisions for an abuse of discretion. Id. ¶ 9. [¶17] “A judge need not disqualify if the judge can act with complete impartiality and no reasonable grounds exist to question the judge’s ability to act in such a manner.” DeCambra v. Carson, 2008 ME 127, ¶ 8, 953 A.2d 1163 (quotation marks omitted). “Generally, knowledge gained in a prior proceeding is 8 not a sufficient ground to recuse a judge in a subsequent matter.” State v. Rameau, 685 A.2d 761, 763 (Me. 1996). Judges must exercise their discretion by balancing steadfast compliance with Canon 3(E)(2) of the Maine Code of Judicial Conduct with the demands of a burdened court system that operates in rural areas, often requiring judges to preside over the same litigants in multiple contexts.3 C.f. In re Michael M., 2000 ME 204, ¶¶ 14-15, 761 A.2d 865. [¶18] The father argued that it would be impossible for the judge to be impartial because the father had been before the judge as a litigant on prior occasions. Although the judge indicated that he had presided over matters in which the father had been involved, including criminal and civil cases, he determined that nothing would prevent him from “rendering a fair judgment.” See Rameau, 685 A.2d at 763. This was not an abuse of discretion. See id. at 762. As we stated in In re Michael M., Judges must ascertain whether they, in fact, come within any of the categories requiring disqualification in the Code of Judicial Conduct and whether there is any other basis upon which their impartiality may reasonably be questioned. At the same time judges must not allow litigants to utilize the process of a recusal motion to delay or thwart 3 Canon 3(E)(2)(a) of the Maine Code of Judicial Conduct provides: A judge may disqualify himself or herself on the judge’s own initiative without stating the grounds of disqualification, and shall disqualify himself or herself on a motion for recusal made by a party, in any proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where: (a) the judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding. 9 the judicial proceedings where there is no reasonable basis for the motion and it is obvious on its face that it was intended to halt or delay the litigation. A judge is as much obliged not to recuse himself when it is not called for as he is obliged to when it is. 2000 ME 204, ¶ 14, 761 A.2d 865 (citation and quotation marks omitted). Here, the court listened to the objections set forth by the father,4 articulated the reasons why he, as the trial judge, did not feel it necessary to recuse himself, and appropriately denied the motion to recuse. See State v. Murphy, 2010 ME 140, ¶¶ 17-19, 10 A.3d 697 (“Despite [the defendant’s] provocations and claims that the judge should have recused because of [the defendant’s] filing actions against the judge and criticism of the judge, the court appropriately maintained the proceedings to their completion. Recusal is discretionary and, as we have observed, judges should avoid recusal in situations when parties engage in actions seeking to cause recusal.”). B. Motion to Withdraw [¶19] Maine Rule of Civil Procedure 88 dictates that if a party in a civil proceeding is entitled to court appointed counsel, any subsequent motion to withdraw is governed by Maine Rule of Criminal Procedure 44B. Pursuant to Rule 44B, unless the withdrawing counsel provides his or her client with notices of withdrawal and appearance of appropriate substitute counsel, “counsel may 4 After the motion to recuse was denied, the father abruptly left the courtroom and later told the court that he was going to file a bar complaint against the judge because the motion to recuse was denied. 10 withdraw from the case only by leave of court.” M.R. Crim. P. 44B. We review for an abuse of discretion a trial court’s decision regarding a motion for withdrawal of counsel. State v. Dunbar, 2008 ME 182, ¶ 5, 960 A.2d 1173. “In evaluating whether the trial court’s denial of a request for leave to withdraw constituted an abuse of discretion, we must consider the adequacy of the court’s inquiry into the defendant’s complaint.” State v. Goodine, 587 A.2d 228, 230 (Me. 1991). “A court need not tolerate unwarranted delays, and, if . . . the [defendant’s] attempted exercise of choice [of counsel] is deemed dilatory or otherwise subversive of orderly . . . process, the court may compel a defendant to go to trial even if he is not entirely satisfied with his designated attorney.” See State v. Ayers, 464 A.2d 963, 966 (Me. 1983). [¶20] Here, after the father filed a bar grievance against the attorney, the attorney moved to withdraw in the middle of trial. The court engaged in a thorough inquiry into the bases for the motion to withdraw and the father’s bar grievance, ultimately determining that the bar grievance was without merit and filed for the purpose of delaying the hearing. The court determined that the attorney’s representation had been zealous and appropriate. Therefore, given the adequacy of the inquiry, we hold that the court did not abuse its discretion in denying the motion to withdraw. See id. 11 The entry is: Judgment affirmed. On the briefs: Matthew A. Hunter, Esq., Presque Isle, for appellant mother Pamela S. Holmes, Esq., Holmes Legal Group, LLC, Wells, for appellant father Janet T. Mills, Attorney General, and Nora Sosnoff, Asst. Atty. Gen., Office of the Attorney General, Augusta, for appellee Department of Health and Human Services Houlton District Court docket number PC-2011-1 FOR CLERK REFERENCE ONLY	06-23-2014	[ "MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2013 ME 58 Docket: Aro-12-411 Submitted On Briefs: May 30, 2013 Decided: June 18, 2013 Panel: SAUFLEY, C.J., and ALEXANDER, SILVER, GORMAN, and JABAR, JJ. IN RE J.R. Jr. JABAR, J. [¶1] The parents of J.R. Jr. appeal the decision of the District Court (Houlton, O’Mara, J.) terminating their parental rights. The mother challenges the court’s finding regarding the best interest of the child. The father argues that the court erred in finding that he was unfit and abused its discretion in denying his motion to recuse and his attorney’s motion to withdraw. Finding no error or abuse of discretion, we affirm. I. BACKGROUND [¶2] J.R. Jr. was born on April 4, 2011, and entered the custody of the Department of Health and Human Services the following day, after the court granted a preliminary child protection order. J.R. Jr.’s eleven-month-old sister and the mother’s two children from a previous relationship, ages eight and twelve, had 2 been in the Department’s custody since May 26, 2010.1 The parents have been engaged in an intermittent, chaotic, dysfunctional, and violent relationship. Both parents struggle with substance abuse, and, at the time of his birth, J.R. Jr. displayed symptoms of drug withdrawals. J.R. Jr. and his sister were placed with the father’s sister.", "[¶3] Both parents agreed to reunification plans requiring them to engage in substance abuse and mental health treatment, submit to random drug tests, and correct their chaotic lifestyle. In addition, the father was required to engage in anger management and a batterers’ intervention program, and the mother was required to attend individual counseling to address domestic violence, her mental health issues, and the emotional needs of her children. A jeopardy hearing was held on June 22, 2011, at which the mother agreed to an order finding that J.R. Jr. was in circumstances of jeopardy while in her care due to the threat of neglect and emotional maltreatment. The father did not appear at the hearing, and the court issued a jeopardy order as to him in his absence. [¶4] After the jeopardy orders were issued, the mother failed drug screenings, the father failed to appear at a drug screening, and, while in custody at 1 The parents agreed to a voluntary termination of their parental rights as to J.R. Jr.’s older sister in December 2011.", "The mother’s parental rights to her other children were terminated after a contested hearing in June 2012. 3 the Aroostook County Jail, the father was found to be in possession of pills for which he did not have a prescription. [¶5] Throughout the proceedings, the mother continued her dysfunctional relationship with the father. She failed to recognize how her actions affected J.R. Jr. and his need for permanency and failed to consistently participate in services required by the reunification plan. She attended self-referred substance-abuse counseling but left an intake interview with a Department-approved substance and mental health counselor after only twenty minutes. [¶6] The father was diagnosed with intermittent explosive disorder, antisocial personality disorder, and conduct disorder, and, after confrontations with staff members, he was terminated from a court-ordered batterers’ intervention program. While the case was pending, the father was convicted of multiple crimes and incarcerated on three separate occasions for periods ranging from three days to over four months.2 During several supervised visits with his children, the father would engage in abusive and intimidating behavior toward Department caseworkers, prompting the Department to post two supervisors for each visit. 2 The four-month period of incarceration stemmed from an incident in which the father broke down the door to the mother’s apartment after the mother had locked him out. 4 [¶7] Although the father made some progress with regard to his mental health and anger issues, he refused to accept responsibility for conduct that resulted in J.R. Jr. being placed in foster care and blamed others for his problems.", "[¶8] The court found that the father did not have housing, but lives in his van or with friends; the father admitted that he is not presently a suitable placement for J.R. Jr. because he would need to do “a lot more” to be a satisfactory parent. [¶9] On April 10, 2012, the Department filed a petition to terminate parental rights alleging that both parents (1) were unwilling or unable to protect J.R. Jr. from jeopardy and those circumstances were unlikely to change within a time reasonably calculated to meet his needs; (2) were unwilling or unable to take responsibility for J.R. Jr. within a time reasonably calculated to meet his needs; and (3) failed to make a good faith effort to reunify with the child. See 22 M.R.S. § 4055(1)(B)(2)(b)(i)-(ii), (iv) (2012).", "[¶10] On June 14, June 15, and July 9, 2012, the court held a hearing on the petition to terminate parental rights. On June 14, after the parents arrived forty minutes late, the father moved for the trial judge to recuse, arguing that the judge was biased given the number of times the father had appeared before him. Immediately after the court denied the motion to recuse, the father left the courtroom, later claiming that he was sick and required medical attention. The 5 mother indicated that she would not be able to go forward with the hearing on that day.", "The court continued the hearing until the following morning. [¶11] After a full day of testimony on June 15, the matter was continued until July 9. On July 3, the attorney for the father moved to withdraw, arguing that the attorney-client relationship was irretrievably broken after the father filed a bar complaint against the attorney. Prior to resuming the hearing on July 9, the court asked the father about the basis for the motion. The father indicated that he filed the bar complaint because he felt that the attorney was being “defiant” and was not representing his best interests. Determining that the bar complaint was meritless and employed for delay, the court denied the motion to withdraw. [¶12] The court concluded the hearing on July 9. The court found that neither parent had ameliorated the concerns that initiated these proceedings nor had they directed the court to a date by which they might be able to address those concerns.", "Furthermore, the court found that both parents are unable or unwilling to protect the child from jeopardy or take responsibility for the child within a time reasonably calculated to meet the child’s needs, and both parents failed to make a good faith effort to rehabilitate and reunify with the child. The parents spent the majority of their efforts—both in services and at the hearing on the petition to terminate—arguing that the father’s sister was not a suitable placement for J.R. Jr. 6 [¶13] With regard to the best interest of the child, the court found that J.R. Jr. had been in the care of the father’s sister for his entire life and is in need of permanency.", "The record before the court demonstrated that with his aunt, the child was happy and healthy, the Department had no plan to relocate him, and the foster parents were willing to adopt him. Thus, the court found that remaining with the foster family was in the best interest of the child. [¶14] The court entered an order terminating the parental rights of both parents on July 13, 2012. The parents filed a motion for additional findings of fact, which the court granted in part on July 31. Both parents timely appealed. II. DISCUSSION [¶15] Although the father challenges the court’s finding of unfitness, there is ample evidence in the record supporting all three bases of unfitness. See In re Marcus S., 2007 ME 24, ¶ 6, 916 A.2d 225 (“Evidence is sufficient to affirm an order terminating parental rights when a review of the entire record demonstrates that the trial court rationally could have found clear and convincing evidence in that record to support the necessary factual findings as to the bases for termination.” (quotation marks omitted)). Furthermore, the father testified at the termination hearing that he is not presently a suitable placement for J.R. Jr. See In re Higera N., 2010 ME 77, ¶¶ 29-32, 2 A.3d 265; In re Doris G., 2006 ME 142, ¶¶ 16-17, 912 A.2d 572 (holding that the Department’s failure to comply with the 7 rehabilitation and reunification plan does not “preclude findings of parental unfitness”).", "Similarly, the mother’s challenge to the court’s findings regarding the best interest of the child is without merit because the court’s findings are supported by clear and convincing evidence in the record and the court did not abuse its discretion in making that determination. See In re Jacob B., 2008 ME 168, ¶¶ 14, 17-19, 959 A.2d 734 (noting that “[m]any factors can combine to support a best interest determination”); In re Marcus S., 2007 ME 24, ¶ 6, 916 A.2d 225. Therefore, we decline to discuss further the parents’ contentions regarding the court’s factual findings. We will, however, address the court’s denial of (A) the father’s motion seeking the recusal of the trial judge and (B) the father’s attorney’s motion to withdraw. A. Motion to Recuse [¶16] We have previously recognized, and again highlight here, “the sensitivity with which a motion for recusal must be treated by a judge.” In re Michael M., 2000 ME 204, ¶ 14, 761 A.2d 865.", "We review such decisions for an abuse of discretion. Id. ¶ 9. [¶17] “A judge need not disqualify if the judge can act with complete impartiality and no reasonable grounds exist to question the judge’s ability to act in such a manner.” DeCambra v. Carson, 2008 ME 127, ¶ 8, 953 A.2d 1163 (quotation marks omitted). “Generally, knowledge gained in a prior proceeding is 8 not a sufficient ground to recuse a judge in a subsequent matter.” State v. Rameau, 685 A.2d 761, 763 (Me. 1996). Judges must exercise their discretion by balancing steadfast compliance with Canon 3(E)(2) of the Maine Code of Judicial Conduct with the demands of a burdened court system that operates in rural areas, often requiring judges to preside over the same litigants in multiple contexts.3 C.f.", "In re Michael M., 2000 ME 204, ¶¶ 14-15, 761 A.2d 865. [¶18] The father argued that it would be impossible for the judge to be impartial because the father had been before the judge as a litigant on prior occasions. Although the judge indicated that he had presided over matters in which the father had been involved, including criminal and civil cases, he determined that nothing would prevent him from “rendering a fair judgment.” See Rameau, 685 A.2d at 763. This was not an abuse of discretion. See id. at 762. As we stated in In re Michael M., Judges must ascertain whether they, in fact, come within any of the categories requiring disqualification in the Code of Judicial Conduct and whether there is any other basis upon which their impartiality may reasonably be questioned. At the same time judges must not allow litigants to utilize the process of a recusal motion to delay or thwart 3 Canon 3(E)(2)(a) of the Maine Code of Judicial Conduct provides: A judge may disqualify himself or herself on the judge’s own initiative without stating the grounds of disqualification, and shall disqualify himself or herself on a motion for recusal made by a party, in any proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where: (a) the judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding.", "9 the judicial proceedings where there is no reasonable basis for the motion and it is obvious on its face that it was intended to halt or delay the litigation. A judge is as much obliged not to recuse himself when it is not called for as he is obliged to when it is. 2000 ME 204, ¶ 14, 761 A.2d 865 (citation and quotation marks omitted). Here, the court listened to the objections set forth by the father,4 articulated the reasons why he, as the trial judge, did not feel it necessary to recuse himself, and appropriately denied the motion to recuse. See State v. Murphy, 2010 ME 140, ¶¶ 17-19, 10 A.3d 697 (“Despite [the defendant’s] provocations and claims that the judge should have recused because of [the defendant’s] filing actions against the judge and criticism of the judge, the court appropriately maintained the proceedings to their completion.", "Recusal is discretionary and, as we have observed, judges should avoid recusal in situations when parties engage in actions seeking to cause recusal.”). B. Motion to Withdraw [¶19] Maine Rule of Civil Procedure 88 dictates that if a party in a civil proceeding is entitled to court appointed counsel, any subsequent motion to withdraw is governed by Maine Rule of Criminal Procedure 44B. Pursuant to Rule 44B, unless the withdrawing counsel provides his or her client with notices of withdrawal and appearance of appropriate substitute counsel, “counsel may 4 After the motion to recuse was denied, the father abruptly left the courtroom and later told the court that he was going to file a bar complaint against the judge because the motion to recuse was denied. 10 withdraw from the case only by leave of court.” M.R. Crim.", "P. 44B. We review for an abuse of discretion a trial court’s decision regarding a motion for withdrawal of counsel. State v. Dunbar, 2008 ME 182, ¶ 5, 960 A.2d 1173. “In evaluating whether the trial court’s denial of a request for leave to withdraw constituted an abuse of discretion, we must consider the adequacy of the court’s inquiry into the defendant’s complaint.” State v. Goodine, 587 A.2d 228, 230 (Me. 1991). “A court need not tolerate unwarranted delays, and, if . . . the [defendant’s] attempted exercise of choice [of counsel] is deemed dilatory or otherwise subversive of orderly . . . process, the court may compel a defendant to go to trial even if he is not entirely satisfied with his designated attorney.” See State v. Ayers, 464 A.2d 963, 966 (Me. 1983). [¶20] Here, after the father filed a bar grievance against the attorney, the attorney moved to withdraw in the middle of trial. The court engaged in a thorough inquiry into the bases for the motion to withdraw and the father’s bar grievance, ultimately determining that the bar grievance was without merit and filed for the purpose of delaying the hearing. The court determined that the attorney’s representation had been zealous and appropriate.", "Therefore, given the adequacy of the inquiry, we hold that the court did not abuse its discretion in denying the motion to withdraw. See id. 11 The entry is: Judgment affirmed. On the briefs: Matthew A. Hunter, Esq., Presque Isle, for appellant mother Pamela S. Holmes, Esq., Holmes Legal Group, LLC, Wells, for appellant father Janet T. Mills, Attorney General, and Nora Sosnoff, Asst. Atty. Gen., Office of the Attorney General, Augusta, for appellee Department of Health and Human Services Houlton District Court docket number PC-2011-1 FOR CLERK REFERENCE ONLY" ]	https://www.courtlistener.com/api/rest/v3/opinions/2680000/	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
C. A. 4th Cir. Certiorari denied.	11-27-2022	[ "C. A. 4th Cir. Certiorari denied." ]	https://www.courtlistener.com/api/rest/v3/opinions/9004164/	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 Claim Rejections - 35 USC § 112 The following is a quotation of 35 U.S.C. 112(b): (b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention. The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph: The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention. Claim 50 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. Claim 50 recites the limitation "on the titration schedule" in line 8. There is insufficient antecedent basis for this limitation in the claim. 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 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 1-5, 9, 12 and 28 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Libbus et al (US 2013/0053924). Regarding claims 1 and 28, Libbus et al disclose a medical device comprising an electronics module 816. The module has a controller 824 configured to provide a first set of stimulation parameters, and a pulse generator comprising circuit 822 configured to generate neural stimulation based on the first set of stimulation parameters. Lead body 827 includes a conductor material connected to the electronics module 816. Stimulation electrodes 828 are connected to the conductor material and are configured to deliver the neural stimulation generated by the pulse generator to a nerve or artery/nerve plexus. Sensor 829 comprises recording electrodes connected to the conductor material to monitor a response to the neural stimulation that includes electrical impulses traveling through the nerve or artery/nerve plexus. The sensor 829 sends information regarding the electrical impulses to the controller via the conductive material. The sensor 829 comprises one or more sensors connected to the conductor material to Sensor 829 sends the blood-based parameters to the controller via the conductive material. A neural stimulation test routine is adapted to assess neural stimulation efficacy for electrode subsets of a plurality of electrodes to identify a desired electrode subset for use in delivering a neural stimulation therapy to elicit a desired response. See paragraph [0047]. The controller 824 modifies the first set of stimulation parameters based on the blood-based parameters to create a second set of stimulation parameters. In the embodiment illustrated in FIG. 13A, a first electrode configuration 1351 is used to deliver neural stimulation by generating an electrical signal from electrode A to electrode B. In this embodiment, if an efficacy of the first electrode configuration is lower than a threshold, the system switches to a second electrode configuration 1352 to deliver neural stimulation by generating an electrical signal from electrode C to electrode D. See paragraph [0053]. The pulse generator generates modified neural stimulation using electrode C to electrode D based on the second set of stimulation parameters, and the stimulation electrodes are further configured to deliver the modified neural stimulation to the nerve or artery/nerve plexus. Regarding claim 2, the stimulation parameters include electrode configuration. Regarding claim 3, the blood-based parameters include blood pressure. Regarding claim 4, the one or more sensors include a blood pressure sensor. Regarding claim 5, the blood flow sensor limitations being a Doppler sensor configured to measure blood velocity or an impedance sensor configured to detect changes in electrical impedance of blood do not limit the blood pressure sensor considered for claim 4. Regarding claim 12, the modifying includes modifying the first set of stimulation parameters based on the blood-based parameters and the information regarding the electrical impulses to create the second set of stimulation parameters. 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, 3, 5 and 7 are rejected under 35 U.S.C. 103 as being unpatentable over Libbus et al (US 2013/0053924) in view of Pitsillides (US 2009/0012375). Pitsillides teach interfacing a physiological sensor that has high impedance such as a piezoresistive blood pressure sensor to an implant via a connector. See paragraph [0011] in Pitsillides. One of ordinary skill in the art would have found it obvious to combine the teaching of Pitsillides with the blood pressure sensor in sensor 829 because the interfacing in Pitsillides is for a similar purpose of measuring blood pressure in an implantable device. In addition, the skilled artisan would have been motivated to use the teaching of Pitsillides with the sensor in sensor 829 because the relatively narrow passage for the interface benefits from using a small piezoresistive blood pressure sensor as taught by Pitsillides to provide minimum discomfort to the patient. Allowable Subject Matter Claims 13, 20-26, 42 and 49 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. Claim 50 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims. Conclusion The examiner can normally be reached on regular business days. 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, Niketa Patel can be reached on (571) 272-4156. 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. /George Manuel/ Primary Examiner Art Unit: 3792 3/10/2021	2021-03-29T06:35:11	[ "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 Claim Rejections - 35 USC § 112 The following is a quotation of 35 U.S.C. 112(b): (b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention. The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph: The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention. Claim 50 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. Claim 50 recites the limitation \"on the titration schedule\" in line 8. There is insufficient antecedent basis for this limitation in the claim. 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 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 1-5, 9, 12 and 28 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Libbus et al (US 2013/0053924). Regarding claims 1 and 28, Libbus et al disclose a medical device comprising an electronics module 816.", "The module has a controller 824 configured to provide a first set of stimulation parameters, and a pulse generator comprising circuit 822 configured to generate neural stimulation based on the first set of stimulation parameters. Lead body 827 includes a conductor material connected to the electronics module 816. Stimulation electrodes 828 are connected to the conductor material and are configured to deliver the neural stimulation generated by the pulse generator to a nerve or artery/nerve plexus. Sensor 829 comprises recording electrodes connected to the conductor material to monitor a response to the neural stimulation that includes electrical impulses traveling through the nerve or artery/nerve plexus. The sensor 829 sends information regarding the electrical impulses to the controller via the conductive material. The sensor 829 comprises one or more sensors connected to the conductor material to Sensor 829 sends the blood-based parameters to the controller via the conductive material. A neural stimulation test routine is adapted to assess neural stimulation efficacy for electrode subsets of a plurality of electrodes to identify a desired electrode subset for use in delivering a neural stimulation therapy to elicit a desired response. See paragraph [0047]. The controller 824 modifies the first set of stimulation parameters based on the blood-based parameters to create a second set of stimulation parameters.", "In the embodiment illustrated in FIG. 13A, a first electrode configuration 1351 is used to deliver neural stimulation by generating an electrical signal from electrode A to electrode B. In this embodiment, if an efficacy of the first electrode configuration is lower than a threshold, the system switches to a second electrode configuration 1352 to deliver neural stimulation by generating an electrical signal from electrode C to electrode D. See paragraph [0053]. The pulse generator generates modified neural stimulation using electrode C to electrode D based on the second set of stimulation parameters, and the stimulation electrodes are further configured to deliver the modified neural stimulation to the nerve or artery/nerve plexus. Regarding claim 2, the stimulation parameters include electrode configuration. Regarding claim 3, the blood-based parameters include blood pressure.", "Regarding claim 4, the one or more sensors include a blood pressure sensor. Regarding claim 5, the blood flow sensor limitations being a Doppler sensor configured to measure blood velocity or an impedance sensor configured to detect changes in electrical impedance of blood do not limit the blood pressure sensor considered for claim 4. Regarding claim 12, the modifying includes modifying the first set of stimulation parameters based on the blood-based parameters and the information regarding the electrical impulses to create the second set of stimulation parameters. 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, 3, 5 and 7 are rejected under 35 U.S.C. 103 as being unpatentable over Libbus et al (US 2013/0053924) in view of Pitsillides (US 2009/0012375). Pitsillides teach interfacing a physiological sensor that has high impedance such as a piezoresistive blood pressure sensor to an implant via a connector. See paragraph [0011] in Pitsillides. One of ordinary skill in the art would have found it obvious to combine the teaching of Pitsillides with the blood pressure sensor in sensor 829 because the interfacing in Pitsillides is for a similar purpose of measuring blood pressure in an implantable device. In addition, the skilled artisan would have been motivated to use the teaching of Pitsillides with the sensor in sensor 829 because the relatively narrow passage for the interface benefits from using a small piezoresistive blood pressure sensor as taught by Pitsillides to provide minimum discomfort to the patient. Allowable Subject Matter Claims 13, 20-26, 42 and 49 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.", "Claim 50 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims. Conclusion The examiner can normally be reached on regular business days. 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, Niketa Patel can be reached on (571) 272-4156. 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.", "/George Manuel/ Primary Examiner Art Unit: 3792 3/10/2021" ]	https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-03-21.zip	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
Sheppard, Mullin, Richter & Hampton LLP 30 Rockefeller Plaza New York, New York 10112-0015 212.653.8700 main 212.653.8701 fax www.sheppardmullin.com 212.634.3043 direct jstoler@sheppardmullin.com March 17, 2020 VIA ECF USDC SDNY DOCUMENT The Hon. Mary Kay Vyskocil ELECTRONICALLY FILED United States District Court DOC #: Southern District of New York DATE FILED: 3/18/2020 Daniel Patrick Moynihan United States Courthouse 500 Pearl St. New York, NY 10007-1312 Re: Don Newton v. Jen N.Y., Inc. et al., Case No. 1:19-cv-07986-CM Dear Judge Vyskocil: We represent Defendants Jen N.Y., Inc. d/b/a Fare Buzz (“Fare Buzz” or the “Company”), Fareportal, Inc. (“Fareportal”), and Arnold Walter (collectively, “Defendants”). We write to request a brief adjournment of the parties’ initial conference before the Court because the parties will not have completed their mandatory mediation session before the initial conference date. On November 4, 2019, this matter was automatically referred to mediation pursuant to the Court’s Second Amended Standing Administrative Order. By Order dated December 19, 2019, Chief Judge McMahon scheduled an initial conference in this matter for January 17, 2020 at 11:00 a.m. On January 15, 2020, Chief Judge McMahon granted the parties’ letter motion to adjourn the initial conference pending mediation and set a new conference date for February 21, 2020 at 10:00 a.m. The parties’ mediation session was initially scheduled for January 15, 2020, and was then rescheduled for February 12, 2020. This matter was reassigned to Your Honor on February 5, 2020. By Scheduling Order dated February 10, 2020, Your Honor adjourned the initial conference for February 21, 2020 to March 24, 2020 at 11:30 a.m. At the February 12, 2020 mediation session, the parties’ agreed to schedule a second mediation session for March 18, 2020. Due to the current and developing events related to the COVID-19 outbreak, however, the parties agreed to adjourn the March 18, 2020 mediation session and are working with their clients and the mediator to reschedule that session, on a remote basis if necessary. In light of the foregoing, Defendants respectfully request that the Court adjourn the March 24, 2020 initial conference pending the outcome of the parties’ mediation. Defendants have made one previous request for adjournments in this matter, no other dates will be affected by this request, and Plaintiff consents to this request. The parties will provide a report to the Court within five (5) days after all mediation efforts have concluded informing the Court that the mediation was successful or, alternatively, requesting that the Court reschedule an initial conference on another date that is convenient for the Court. The Honorable Sarah Netburn March 17, 2020 Page 2 Thank you for the Court’s attention to this matter. Respectfully submitted, /s/ Jonathan Stoler Jonathan Stoler for SHEPPARD, MULLIN, RICHTER & HAMPTON LLP SMRH:4828-9064-0823.1 cc: All Counsel of Record 3/18/2020	2020-03-18	[ "Sheppard, Mullin, Richter & Hampton LLP 30 Rockefeller Plaza New York, New York 10112-0015 212.653.8700 main 212.653.8701 fax www.sheppardmullin.com 212.634.3043 direct jstoler@sheppardmullin.com March 17, 2020 VIA ECF USDC SDNY DOCUMENT The Hon. Mary Kay Vyskocil ELECTRONICALLY FILED United States District Court DOC #: Southern District of New York DATE FILED: 3/18/2020 Daniel Patrick Moynihan United States Courthouse 500 Pearl St. New York, NY 10007-1312 Re: Don Newton v. Jen N.Y., Inc. et al., Case No. 1:19-cv-07986-CM Dear Judge Vyskocil: We represent Defendants Jen N.Y., Inc. d/b/a Fare Buzz (“Fare Buzz” or the “Company”), Fareportal, Inc. (“Fareportal”), and Arnold Walter (collectively, “Defendants”). We write to request a brief adjournment of the parties’ initial conference before the Court because the parties will not have completed their mandatory mediation session before the initial conference date. On November 4, 2019, this matter was automatically referred to mediation pursuant to the Court’s Second Amended Standing Administrative Order. By Order dated December 19, 2019, Chief Judge McMahon scheduled an initial conference in this matter for January 17, 2020 at 11:00 a.m. On January 15, 2020, Chief Judge McMahon granted the parties’ letter motion to adjourn the initial conference pending mediation and set a new conference date for February 21, 2020 at 10:00 a.m.", "The parties’ mediation session was initially scheduled for January 15, 2020, and was then rescheduled for February 12, 2020. This matter was reassigned to Your Honor on February 5, 2020. By Scheduling Order dated February 10, 2020, Your Honor adjourned the initial conference for February 21, 2020 to March 24, 2020 at 11:30 a.m. At the February 12, 2020 mediation session, the parties’ agreed to schedule a second mediation session for March 18, 2020.", "Due to the current and developing events related to the COVID-19 outbreak, however, the parties agreed to adjourn the March 18, 2020 mediation session and are working with their clients and the mediator to reschedule that session, on a remote basis if necessary. In light of the foregoing, Defendants respectfully request that the Court adjourn the March 24, 2020 initial conference pending the outcome of the parties’ mediation. Defendants have made one previous request for adjournments in this matter, no other dates will be affected by this request, and Plaintiff consents to this request. The parties will provide a report to the Court within five (5) days after all mediation efforts have concluded informing the Court that the mediation was successful or, alternatively, requesting that the Court reschedule an initial conference on another date that is convenient for the Court. The Honorable Sarah Netburn March 17, 2020 Page 2 Thank you for the Court’s attention to this matter.", "Respectfully submitted, /s/ Jonathan Stoler Jonathan Stoler for SHEPPARD, MULLIN, RICHTER & HAMPTON LLP SMRH:4828-9064-0823.1 cc: All Counsel of Record 3/18/2020" ]	https://www.courtlistener.com/api/rest/v3/recap-documents/127843728/	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
Motion of petitioner for leave to proceed in forma pauperis denied, and petition for writ of certiorari to the Superior Court of Georgia, Fulton County, dismissed. See Rule 39.8.	10-24-2022	[ "Motion of petitioner for leave to proceed in forma pauperis denied, and petition for writ of certiorari to the Superior Court of Georgia, Fulton County, dismissed. See Rule 39.8." ]	https://www.courtlistener.com/api/rest/v3/opinions/8384591/	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
Van Brunt, P. J. This action was brought against the defendants, as co-partners, to recover for building materials furnished and supplied by the-plaintiffs. The defendant Zeller made default in pleading, and the defendant Minrath interposed a general denial. The firm of Benner & Zeller, consisting of George H. Benner, a real-estate broker, now deceased, and Lorenz Zeller, had been engaged in business as copartners, and had had divers business transactions with the defendant Minrath prior to the one brought in question-in this action. In the spring of 1886, Mr. Zeller, Mr, Benner, and Mr. Minrath had certain conversations about the purchase of two houses on Second, avenue, between Fourth and Fifth streets, and Minrath was asked how much he would advance towards the purchase. He replied that he could get his-aunt, Mrs. Eimer, to advance some $4,000 or $5,000, and that he had some-money; and thereupon they stated to him how much money they would contribute, namely, $3,000. Minrath asked how much profit he would be entitled to eventually if he contributed a certain amount, and how much he would be likely to be required to pay in case the lots were built upon; and Benner told him he thought $8,000 or $9,000, and that he would allow him 10 per cent, of the profits. The houses were bought for $33,500. A first mortgage was obtained, of $24,000. Mrs. Eimer advanced $4,500, for which they gave her a mortgage; and Minrath, for searching fees, disbursements, etc., took a mortgage for $2,300, and the balance of the purchase money was advanced in cash by Benner & Zeller. Benner & Zeller made a contract for the erection of two five-story flats upon these premises. As they went on, Minrath advanced, from time to time, money, until the summer of 1886, when Zeller told Minrath that he could not possibly carry on the business unless he got other moneys; and Mr. Minrath finally said he would advance more money, but he wanted a greater percentage of the profits, which was allowed. Zeller states that lie thinks Minrath asked him how much more he wanted, and that he gave him a general outline, and that before the permanent loan was secured he must have further money, and would allow him 20 or 22 per cent. The title to the property was taken in the names of Benner & Zeller, and the contracts for the buildings were made in their names. On the 6th of April, 1886, Benner & Zeller gave to Minrath the following writing: “In consideration of his procuring mortgages on 71 and 73 Second Ave., and enabling us to close the purchase of said property, we agree to pay to Ferdinand B. Minrath a sum equivalent to 5 per cent, of the net profits realized by us on said purchase, and the buildings to be erected thereon.” Minrath was consulted as to the character of the building, and he also saw the plans of the building. The architect testified that he met him three or four different times in the office of Benner & Zeller, and that he saw him at the building. In October, Minrath procured a large mortgage of $44,000, the proceeds of which were used in paying off the existing mortgages and liens on the property; and a part, the balance, was paid over to Benner & Zeller for the purpose of satisfying material-men. Minrath kept a large portion of this money for the purpose of the,, payment of his own claims. Minrath was accustomed to advance 818the moneys for the purpose of paying the men working upon the buildings, and for the materials supplied to the buildings. On the 30th of October the property was transferred by Benner & Zeller to Minrath. This appears, however, to have been done because Benner was very sick, and was in such a condition that he could not leave the house, and the title was placed in Minrath’s name so that no complications might arise in case of Benner’s death. The purpose was not to tie up the sale of the property. This title was in Minrath’s name until February, 1887, and during this time the plaintiff furnished the materials sued for in this action. At the time of the transfer, in October, there were $57,800 of mortgages on the buildings,—one of $44,000; one of $9,300, held by Minrath; and one of $4,500, held by Mrs. Eimer, the aunt of Minrath. After these advances had been made, Zeller asked Minrath to transfer the property to his (Zeller’s) sister, which he complied with; and his sister gave Minrath a mortgage for the moneys which were due him, subject to the $44,000 mortgage. The mortgage was dated the 21st of February, 1887, and was for $20,700, which covered more than the advances. Upon these facts it was claimed by the plaintiffs that Minrath became a joint owner with Benner & Zeller in this enterprise, and consequently was liable to them for the balance due to them for the materials furnished to these buildings. Upon the trial the court dismissed the complaint, to which an exception was taken. This exception is now brought up on this motion for a new trial. The plaintiffs claim that the defendant Minrath is shown to be a partner because of the contribution of capital as such in the joint adventure, and participation in and division of profits as such, as distinguished from compensation for money loaned, and that Minrath was by Benner & Zeller appointed their joint agent, and was thereby authorized to enter into and make contracts in furtherance of the common object, which, coupled with a division of the profits, made him a partner; that active participation in and direction of the affairs of the adventure, authorization of obligations, and payment thereof, by one party, who was to receive a share of the profits as such, and the holding and owning of the legal title, and directing the employment and purchase of materials to carry out the adventure so as to make profits for division, made him a partner. If the evidence bore out these claims, undoubtedly Minratft was a partner. But there are certain elements which are wanting, and which bring this case within the principles laid down in those cases in which, where a party advances money, or incurs obligations,"or performs services in behalf of the firm, and is to receive as compensation therefor a percentage of the profits, he is not necessarily a partner. In such cases there is no ownership in the results of the common enterprise; there is only an obligation upon the part of the firm to pay as a debt the compensation agreed upon for the money loaned, or the services rendered. In the case at bar it is claimed that the advances made by Minrath were a contribution of capital as such to the joint adventure, and that he participated. It is undoubtedly true that Minrath made advances for the purpose of aiding Benner & Zeller in the carrying out of their building enterprise. But this is by no means to be considered as a contribution of capital in a joint enterprise. Benner & Zeller were to have the use of his money, and they were to pay him a certain percentage of the profits as a compensation therefor; and that is all that was done between Benner & Zeller and Minrath in respect to these advances. He had no interest or ownership whatever in the capital of the enterprise. This brings the case directly within the rules laid down in Cassidy v. Hall, 97 N. Y. 159, where the defendants were to advance moneys to the firm in which they were alleged to be partners, were to fill its orders, or, in other words, manufacture its goods for it, collect its bills, and then retain 10 per cent., in addition to interest, for all the money which they advanced. The case at bar is precisely analogous in these respects to the case cited. It is further urged upon the part of the plaintiffs that Minrath became a 819partner because he was the agent of Benner & Zeller, authorized to make contracts in furtherance of their common object, which, coupled with the interest in the profits, would create a partnership. We have searched the record in vain to find any evidence to support this proposition. Neither has any evidence to this effect been pointed out to us upon the points of the appellants. There is no evidence whatever that Minrath employed anybody, that he had any authority to make contracts, or that he was the agent of Benner & Zeller for any purpose whatever. Benner & Zeller employed the architect, made the contracts in their own names, and carried on the business in their own names. Minrath, it is true, made inquiries, and examined the work, from time to time, to see how it was progressing, and saw the plans before they were adopted. But this is entirely consistent with the idea that he was only looking after the security he was to receive for the advances he was to make. There was no active participation in or direction of the affairs of the adventure. Neither was there any authorization of obligations or payments as such by Minrath on behalf of the adventure. He advanced money to pay for materials, and the pay of workmen, it is true; but that in no respect made him a partner, any more than did the manufacturing of the goods, and receiving pay therefor, in the case of Cassidy v. Hall, supra. It is also claimed that the holding of the legal title by Minrath made him a partner. It is clear, from the evidence, that the sole purpose was to prevent complications in case of the death of Benner. He was sick. If he had died, it would have been impossible to have carried out this enterprise with the title in his name, and as a consequence it was .transferred temporarily to Minrath, in order that in case of death the enterprise might be carried on without the complications which would necessarily arise from the intervention of the heirs of Benner as part owners of this property; and when Minrath was asked to transfer the property to the sister of Zeller it was done, mortgages being given back to secure him for the advances and compensation to which he was entitled. Although the materials sued for happen to have been furnished during the period Minrath held the title, there is no evidence that the plaintiffs knew this-fact, or that they extended any credits on account thereof. We have examined with care the facts set out in this case, and those appearing in the case of Cassidy v. Hall; and we can find no principle which, in view of the exposition of the law as contained in that case, would make Minrath a partner, and liable for the debts of this enterprise. The court say that it is well settled that when a party is only interested in the profits of a business as á means of compensation for services rendered, or for money advanced, he is not a partner; and attention is called to the case of Richardson v. Hughitt, 76 N. Y. 55, in which it was held that a person who has no interest in the business of a firm, or in the capital invested, save that he is to receive a share of the profits as compensation for services, or for money loaned, for the benefit of the business, is not a partner, and cannot be held as such by a creditor of the firm. In that case, advances were to be made upon personal property to be manufactured and delivered, for which, when sold, the defendant was to receive one-fourth of the profits, and his advances, with interest at 5£- per cent. It seems to us that we may well say of Cassidy v. Hall, as was there said of the cases under discussion, that it is “conclusive upon the question considered, and none of the decisions in this state are adverse to the doctrine which is therein laid down. We do not deem it necessary, in view of the fact that the law upon the question discussed is well settled in this court, to examine the English authorities bearing upon this subject.” But it is urged that this case does not apply, because in that case no advance by way of loan could be called for unless the defendants approved of the order, so that they were the sole judges of the extent to which they could be called upon to advance moneys, and that the court of appeals held that this was the controlling element of the case, as well as in the case of *820Curry v. Fowler, 87 N. Y. 33, and it is said that in the case at bar there was no such limitation. We have examined this case in vain to find anything which required Minrath to advance.any moneys beyond that which his own judgment approved. In Gassidy v. Hall the agreement was to advance moneys upon orders approved,—no amount fixed. In the case of Minrath, he was under no obligation to make any advances unless he approved of the same. It is true that the counsel for the plaintiffs claims that at the last interview, when the former arrangements were abandoned, Minrath was called upon, and agreed toad vanee ail money to pay for labor and materials to complete the undertaking, and that, without any limitation of amount, he assented, upon being promised an increased profit. But the case contains no such evidence. There is no evidence that he agreed to advance all moneys to pay for labor and mate- ■ rials to complete the undertaking. The evidence to which reference is made is as follows: “I urged upon Mr. Minrath the need of some more money, and Mr. Minrath said he was very short, and could hardly give me any more money, and I urged upon him the necessity of paying the men, and paying for materials, and finally he concluded to give further moneys; and I don’t know whether I stated to him that I would give him, or he asked me, an increase, but I know I allowed him an increase of profit again. At the interview there was no particular amount stated that Mr. Minrath was to contribute or advance.” In view of this testimony, it is difficult to see how it can be claimed, that Minrath agreed to advance all moneys to pay for laborers and materials to complete the building. Upon the contrary, it was entirely optional with him whether he would advance $1,000 or $5,000; and it was only such advances as he might approve that he was called upon to make, precisely as in Cassidy v. Hall, above cited. Our attention is called to the case of Hackett v. Stanley, 22 N. E. Rep. 745, (decided in the court of appeals in October, 1889,) where a party was held to-become a partner, and, it is claimed, under circumstances similar to those in the case at bar. An examination of that case shows that the decision turned upon the fact that it was clearly to be implied from the contract that the alleged partner should render active service as a principal in the prosecution of the business, and furnish further financial aid therefor, if it became necessary, and he deemed it advisable to do so. By the contract, the right to share in the profits would not cease upon the payment of the original loan, and did not depend upon the value of the services rendered, or money advanced, or either of them, alone, but was to continue as long as the business was carried on. It further appeared from the terms of the contract that each party should bear any loss incurred in proportion to the advances made by them, respectively. With these features in the contract, the court held that a partnership-existed between these parties. The business referred to in that case was a. continuing business, and the parties were to divide the yearly net profits of' the business, and such arrangement was to continue until the termination of the business itself. These features are entirely distinct from those which appear in the case at bar. Mr. Minrath was to advance the money to enable Benner & Zeller to carry out their enterprise, and he was to get, as a compensation for his services in procuring certain loans by which they hoped to carry the business to a successful termination, a certain share of the profits. As already -stated, he had no voice in the management of the business. He was-not to render his personal services as a principal in the enterprise. 27either did he have any supervision over the conduct of the business, as in the case-of Hackett v. Stanley. We are of opinion, therefore, that the case cited in no way either limits or extends any principle established in Cassidy v. Hall, and that the defendant Minrath cannot be held as a partner. The exceptions-should be overruled, and judgment ordered, upon the dismissal of the complaint, for the defendant, with costs. All concur.	01-10-2022	[ "Van Brunt, P. J. This action was brought against the defendants, as co-partners, to recover for building materials furnished and supplied by the-plaintiffs. The defendant Zeller made default in pleading, and the defendant Minrath interposed a general denial. The firm of Benner & Zeller, consisting of George H. Benner, a real-estate broker, now deceased, and Lorenz Zeller, had been engaged in business as copartners, and had had divers business transactions with the defendant Minrath prior to the one brought in question-in this action. In the spring of 1886, Mr. Zeller, Mr, Benner, and Mr. Minrath had certain conversations about the purchase of two houses on Second, avenue, between Fourth and Fifth streets, and Minrath was asked how much he would advance towards the purchase. He replied that he could get his-aunt, Mrs. Eimer, to advance some $4,000 or $5,000, and that he had some-money; and thereupon they stated to him how much money they would contribute, namely, $3,000.", "Minrath asked how much profit he would be entitled to eventually if he contributed a certain amount, and how much he would be likely to be required to pay in case the lots were built upon; and Benner told him he thought $8,000 or $9,000, and that he would allow him 10 per cent, of the profits. The houses were bought for $33,500. A first mortgage was obtained, of $24,000. Mrs. Eimer advanced $4,500, for which they gave her a mortgage; and Minrath, for searching fees, disbursements, etc., took a mortgage for $2,300, and the balance of the purchase money was advanced in cash by Benner & Zeller. Benner & Zeller made a contract for the erection of two five-story flats upon these premises. As they went on, Minrath advanced, from time to time, money, until the summer of 1886, when Zeller told Minrath that he could not possibly carry on the business unless he got other moneys; and Mr. Minrath finally said he would advance more money, but he wanted a greater percentage of the profits, which was allowed. Zeller states that lie thinks Minrath asked him how much more he wanted, and that he gave him a general outline, and that before the permanent loan was secured he must have further money, and would allow him 20 or 22 per cent.", "The title to the property was taken in the names of Benner & Zeller, and the contracts for the buildings were made in their names. On the 6th of April, 1886, Benner & Zeller gave to Minrath the following writing: “In consideration of his procuring mortgages on 71 and 73 Second Ave., and enabling us to close the purchase of said property, we agree to pay to Ferdinand B. Minrath a sum equivalent to 5 per cent, of the net profits realized by us on said purchase, and the buildings to be erected thereon.” Minrath was consulted as to the character of the building, and he also saw the plans of the building. The architect testified that he met him three or four different times in the office of Benner & Zeller, and that he saw him at the building.", "In October, Minrath procured a large mortgage of $44,000, the proceeds of which were used in paying off the existing mortgages and liens on the property; and a part, the balance, was paid over to Benner & Zeller for the purpose of satisfying material-men. Minrath kept a large portion of this money for the purpose of the,, payment of his own claims. Minrath was accustomed to advance 818the moneys for the purpose of paying the men working upon the buildings, and for the materials supplied to the buildings. On the 30th of October the property was transferred by Benner & Zeller to Minrath. This appears, however, to have been done because Benner was very sick, and was in such a condition that he could not leave the house, and the title was placed in Minrath’s name so that no complications might arise in case of Benner’s death. The purpose was not to tie up the sale of the property. This title was in Minrath’s name until February, 1887, and during this time the plaintiff furnished the materials sued for in this action.", "At the time of the transfer, in October, there were $57,800 of mortgages on the buildings,—one of $44,000; one of $9,300, held by Minrath; and one of $4,500, held by Mrs. Eimer, the aunt of Minrath. After these advances had been made, Zeller asked Minrath to transfer the property to his (Zeller’s) sister, which he complied with; and his sister gave Minrath a mortgage for the moneys which were due him, subject to the $44,000 mortgage.", "The mortgage was dated the 21st of February, 1887, and was for $20,700, which covered more than the advances. Upon these facts it was claimed by the plaintiffs that Minrath became a joint owner with Benner & Zeller in this enterprise, and consequently was liable to them for the balance due to them for the materials furnished to these buildings. Upon the trial the court dismissed the complaint, to which an exception was taken. This exception is now brought up on this motion for a new trial. The plaintiffs claim that the defendant Minrath is shown to be a partner because of the contribution of capital as such in the joint adventure, and participation in and division of profits as such, as distinguished from compensation for money loaned, and that Minrath was by Benner & Zeller appointed their joint agent, and was thereby authorized to enter into and make contracts in furtherance of the common object, which, coupled with a division of the profits, made him a partner; that active participation in and direction of the affairs of the adventure, authorization of obligations, and payment thereof, by one party, who was to receive a share of the profits as such, and the holding and owning of the legal title, and directing the employment and purchase of materials to carry out the adventure so as to make profits for division, made him a partner.", "If the evidence bore out these claims, undoubtedly Minratft was a partner. But there are certain elements which are wanting, and which bring this case within the principles laid down in those cases in which, where a party advances money, or incurs obligations,\"or performs services in behalf of the firm, and is to receive as compensation therefor a percentage of the profits, he is not necessarily a partner. In such cases there is no ownership in the results of the common enterprise; there is only an obligation upon the part of the firm to pay as a debt the compensation agreed upon for the money loaned, or the services rendered. In the case at bar it is claimed that the advances made by Minrath were a contribution of capital as such to the joint adventure, and that he participated.", "It is undoubtedly true that Minrath made advances for the purpose of aiding Benner & Zeller in the carrying out of their building enterprise. But this is by no means to be considered as a contribution of capital in a joint enterprise. Benner & Zeller were to have the use of his money, and they were to pay him a certain percentage of the profits as a compensation therefor; and that is all that was done between Benner & Zeller and Minrath in respect to these advances. He had no interest or ownership whatever in the capital of the enterprise. This brings the case directly within the rules laid down in Cassidy v. Hall, 97 N. Y. 159, where the defendants were to advance moneys to the firm in which they were alleged to be partners, were to fill its orders, or, in other words, manufacture its goods for it, collect its bills, and then retain 10 per cent., in addition to interest, for all the money which they advanced.", "The case at bar is precisely analogous in these respects to the case cited. It is further urged upon the part of the plaintiffs that Minrath became a 819partner because he was the agent of Benner & Zeller, authorized to make contracts in furtherance of their common object, which, coupled with the interest in the profits, would create a partnership. We have searched the record in vain to find any evidence to support this proposition. Neither has any evidence to this effect been pointed out to us upon the points of the appellants. There is no evidence whatever that Minrath employed anybody, that he had any authority to make contracts, or that he was the agent of Benner & Zeller for any purpose whatever. Benner & Zeller employed the architect, made the contracts in their own names, and carried on the business in their own names. Minrath, it is true, made inquiries, and examined the work, from time to time, to see how it was progressing, and saw the plans before they were adopted. But this is entirely consistent with the idea that he was only looking after the security he was to receive for the advances he was to make.", "There was no active participation in or direction of the affairs of the adventure. Neither was there any authorization of obligations or payments as such by Minrath on behalf of the adventure. He advanced money to pay for materials, and the pay of workmen, it is true; but that in no respect made him a partner, any more than did the manufacturing of the goods, and receiving pay therefor, in the case of Cassidy v. Hall, supra. It is also claimed that the holding of the legal title by Minrath made him a partner. It is clear, from the evidence, that the sole purpose was to prevent complications in case of the death of Benner.", "He was sick. If he had died, it would have been impossible to have carried out this enterprise with the title in his name, and as a consequence it was .transferred temporarily to Minrath, in order that in case of death the enterprise might be carried on without the complications which would necessarily arise from the intervention of the heirs of Benner as part owners of this property; and when Minrath was asked to transfer the property to the sister of Zeller it was done, mortgages being given back to secure him for the advances and compensation to which he was entitled. Although the materials sued for happen to have been furnished during the period Minrath held the title, there is no evidence that the plaintiffs knew this-fact, or that they extended any credits on account thereof. We have examined with care the facts set out in this case, and those appearing in the case of Cassidy v. Hall; and we can find no principle which, in view of the exposition of the law as contained in that case, would make Minrath a partner, and liable for the debts of this enterprise.", "The court say that it is well settled that when a party is only interested in the profits of a business as á means of compensation for services rendered, or for money advanced, he is not a partner; and attention is called to the case of Richardson v. Hughitt, 76 N. Y. 55, in which it was held that a person who has no interest in the business of a firm, or in the capital invested, save that he is to receive a share of the profits as compensation for services, or for money loaned, for the benefit of the business, is not a partner, and cannot be held as such by a creditor of the firm.", "In that case, advances were to be made upon personal property to be manufactured and delivered, for which, when sold, the defendant was to receive one-fourth of the profits, and his advances, with interest at 5£- per cent. It seems to us that we may well say of Cassidy v. Hall, as was there said of the cases under discussion, that it is “conclusive upon the question considered, and none of the decisions in this state are adverse to the doctrine which is therein laid down. We do not deem it necessary, in view of the fact that the law upon the question discussed is well settled in this court, to examine the English authorities bearing upon this subject.” But it is urged that this case does not apply, because in that case no advance by way of loan could be called for unless the defendants approved of the order, so that they were the sole judges of the extent to which they could be called upon to advance moneys, and that the court of appeals held that this was the controlling element of the case, as well as in the case of *820Curry v. Fowler, 87 N. Y. 33, and it is said that in the case at bar there was no such limitation.", "We have examined this case in vain to find anything which required Minrath to advance.any moneys beyond that which his own judgment approved. In Gassidy v. Hall the agreement was to advance moneys upon orders approved,—no amount fixed. In the case of Minrath, he was under no obligation to make any advances unless he approved of the same. It is true that the counsel for the plaintiffs claims that at the last interview, when the former arrangements were abandoned, Minrath was called upon, and agreed toad vanee ail money to pay for labor and materials to complete the undertaking, and that, without any limitation of amount, he assented, upon being promised an increased profit. But the case contains no such evidence. There is no evidence that he agreed to advance all moneys to pay for labor and mate- ■ rials to complete the undertaking. The evidence to which reference is made is as follows: “I urged upon Mr. Minrath the need of some more money, and Mr. Minrath said he was very short, and could hardly give me any more money, and I urged upon him the necessity of paying the men, and paying for materials, and finally he concluded to give further moneys; and I don’t know whether I stated to him that I would give him, or he asked me, an increase, but I know I allowed him an increase of profit again.", "At the interview there was no particular amount stated that Mr. Minrath was to contribute or advance.” In view of this testimony, it is difficult to see how it can be claimed, that Minrath agreed to advance all moneys to pay for laborers and materials to complete the building. Upon the contrary, it was entirely optional with him whether he would advance $1,000 or $5,000; and it was only such advances as he might approve that he was called upon to make, precisely as in Cassidy v. Hall, above cited. Our attention is called to the case of Hackett v. Stanley, 22 N. E. Rep. 745, (decided in the court of appeals in October, 1889,) where a party was held to-become a partner, and, it is claimed, under circumstances similar to those in the case at bar. An examination of that case shows that the decision turned upon the fact that it was clearly to be implied from the contract that the alleged partner should render active service as a principal in the prosecution of the business, and furnish further financial aid therefor, if it became necessary, and he deemed it advisable to do so.", "By the contract, the right to share in the profits would not cease upon the payment of the original loan, and did not depend upon the value of the services rendered, or money advanced, or either of them, alone, but was to continue as long as the business was carried on. It further appeared from the terms of the contract that each party should bear any loss incurred in proportion to the advances made by them, respectively. With these features in the contract, the court held that a partnership-existed between these parties. The business referred to in that case was a. continuing business, and the parties were to divide the yearly net profits of' the business, and such arrangement was to continue until the termination of the business itself. These features are entirely distinct from those which appear in the case at bar. Mr. Minrath was to advance the money to enable Benner & Zeller to carry out their enterprise, and he was to get, as a compensation for his services in procuring certain loans by which they hoped to carry the business to a successful termination, a certain share of the profits.", "As already -stated, he had no voice in the management of the business. He was-not to render his personal services as a principal in the enterprise. 27either did he have any supervision over the conduct of the business, as in the case-of Hackett v. Stanley. We are of opinion, therefore, that the case cited in no way either limits or extends any principle established in Cassidy v. Hall, and that the defendant Minrath cannot be held as a partner. The exceptions-should be overruled, and judgment ordered, upon the dismissal of the complaint, for the defendant, with costs. All concur." ]	https://www.courtlistener.com/api/rest/v3/opinions/5498026/	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
Judgment of conviction affirmed; no opinion. Concur: WERNER, MILLER, CARDOZO and SEABURY, JJ. Dissenting: WILLARD BARTLETT, Ch. J., COLLIN and CUDDEBACK, JJ.	07-06-2016	[ "Judgment of conviction affirmed; no opinion. Concur: WERNER, MILLER, CARDOZO and SEABURY, JJ. Dissenting: WILLARD BARTLETT, Ch. J., COLLIN and CUDDEBACK, JJ." ]	https://www.courtlistener.com/api/rest/v3/opinions/3618589/	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
The opinion of the court was delivered by Mr. Justice Pope. The complaint in this action is as follows: “The complaint of the above named plaintiff respectfully shows to this court: I. That the defendant, the Georgia, Carolina & Northern Railway Company, is, and was at the time hereinafter stated, a body politic and corporate under the laws of this State, and is competent to sue and be sued in the courts of this State. II. That on or about August 15,1890, the plaintiff was the owner and lawfully possessed of one hundred and five railroad cross ties at or near the right of way of defendant at Mountville, South Carolina. III. That said cross-ties were reasonably worth the sum of twenty five cents a piece, aggregating in value the sum of twenty-six dollars and twenty-five cents. IV. That on or about August 15,1890, the defendant unlawfully took possession of the said cross ties, the property of the plaintiff, and converted them to its own use, to the plaintiff’s damage twenty-six dollars and twenty-five cents. Wherefore the plaintiff demands judgment against the defendant for the sum of twenty-six dollars and twenty-five cents, and for the costs of this action.” At the September term, 1891, of the Court of Common Pleas for Laurens County, before Judge Hudson, on the complaint being read, the defendant interposed an oral demurrer, and moved the court to dismiss the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The Circuit Judge overruled the demurrer and dismissed the motion. The order therefor was dated 30th September, 1891. From this order of the Circuit Judge, the defendant has appealed to this court, asking its reversal upon the following ground : “That defendant excepts to and appeals from the order or ruling of his honor, J. H. Hudson, overruling defendant’s motion to dismiss plaintiff’s 309complaint herein, for that the complaint does not state facts sufficient to constitute a cause of action.” 1 We will now consider this appeal. Our Code, section 163, subdivision 2, provides, “A complaint shall contain a plain and concise statement of facts constituting a cause of action without unnecessary repetition.” The appellant here contends that plaintiff’s complaint failed to state facts sufficient to constitute a cause of action. This court, in construing this section of the Code, has defined a cause of action, “Thus, generally, it may be said that a cause of action exists where the legal rights of one party has been invaded by another.” Chalmers v. Glenn, 18 S. C., 471. In the same case it is said: “It follows, therefore, that he must allege in his complaint all the facts showing his right, and also those showing its invasion by the defendant; and the facts thus alleged must in law upon their face, on the one side, entitle him to the right which he claims, and on the other amount to an invasion by the defendant.” Now, applying this adjudicated construction of this section of the Code to the case at bar, what do we find? The plaintiff was the owner, on the 15th of August, 1890, of certain cross-ties, of the value of twenty-six dollars and twenty-five cents, at or near the right of way of the defendant at Mountville, in this State. Now, by the allegations of the complaint, this was the right of the plaintiff. The complaint in its allegations charges that the defendant unlawfully took possession of such property and converted it to its own use, to his damage (the alleged value of the property) twenty-six dollars and twenty-five cents. All these allegations of fact must be taken as true. How can the conclusion be resisted, that, by the strictest tests, here is made evident a plain invasion by this defendant of plaintiff’s rights ? 2 But the appellant lavs great stress upon the use in the complaint of the word “unlawfully,” asking this court, because of the use of such a word, to declare that the allegation of which the word “unlawfully” is a part is thereby made the allegation of a conclusion of law and not a statement of fact, and refers to the cases decided by this court of Tutt v. Railway Company, 28 S. C., 396; Tompkins v. Railroad Company, 33 Id., 217; and Wallace v. R. R. Co., 34 Id., 62, as in 310support of such theory. It is true that this court did hold, in each of the three cases cited, that the complaint was defective because it depended, so far as the support of a cause of action in each was concerned, upon allegations of conclusions of law. In the first case cited, the complaint contained allegations of unlawful entry and unlawfully holding of the lands of the plaintiff by the railroad company defendant, without any recital of any facts showing how the entry or holding was unlawful, and inasmuch as the statutes of this State, which provide for obtaining the right of way through the lands of the owners, both with and without their consent, under certain well defined regulations, carefully guard the remedy for a failure on the part of such railroads to observe the rights of owners of the lands through or over which they obtain a road-bed, this court felt called upon to insist that the use of the words unlawful or unlawfully, as allegations in the complaint, should be given their true meaning as conclusions of law where nakedly pleaded; but the court was careful to say, “An act which may, or may not, be right and lawful, according to the circumstances under which it may he done, is not properly averred to be unjust or unlawful by merely calling it so.” So the other cases were against railroads ; that of Tompkins was in regard to right of way over the lands of another, and that of Wallace for constructing a dam in connection with track over the lands of another. But the case at bar is an entirely distinct action from the three cases we have just referred to. It has no reference to statutory rights of the defendant in connection with the property of the plaintiff; on the contrary, it belongs to that class of cases where railroads have no other or different rights than those exercised by natural persons. The use of the word unlawful in such cases has long been sanctioned. But even if this were not so, we are not prepared to say that the word “unlawfully,” as used in the complaint at bar, is not surplusage. Indeed, it so seems to us. We must, therefore, overrule this exception. The judgment of this court is, that the order of the Circuit Court appealed from be sustained, and that the appeal therefrom be dismissed.	07-20-2022	[ "The opinion of the court was delivered by Mr. Justice Pope. The complaint in this action is as follows: “The complaint of the above named plaintiff respectfully shows to this court: I. That the defendant, the Georgia, Carolina & Northern Railway Company, is, and was at the time hereinafter stated, a body politic and corporate under the laws of this State, and is competent to sue and be sued in the courts of this State. II. That on or about August 15,1890, the plaintiff was the owner and lawfully possessed of one hundred and five railroad cross ties at or near the right of way of defendant at Mountville, South Carolina. III. That said cross-ties were reasonably worth the sum of twenty five cents a piece, aggregating in value the sum of twenty-six dollars and twenty-five cents. IV.", "That on or about August 15,1890, the defendant unlawfully took possession of the said cross ties, the property of the plaintiff, and converted them to its own use, to the plaintiff’s damage twenty-six dollars and twenty-five cents. Wherefore the plaintiff demands judgment against the defendant for the sum of twenty-six dollars and twenty-five cents, and for the costs of this action.” At the September term, 1891, of the Court of Common Pleas for Laurens County, before Judge Hudson, on the complaint being read, the defendant interposed an oral demurrer, and moved the court to dismiss the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The Circuit Judge overruled the demurrer and dismissed the motion. The order therefor was dated 30th September, 1891. From this order of the Circuit Judge, the defendant has appealed to this court, asking its reversal upon the following ground : “That defendant excepts to and appeals from the order or ruling of his honor, J. H. Hudson, overruling defendant’s motion to dismiss plaintiff’s 309complaint herein, for that the complaint does not state facts sufficient to constitute a cause of action.” 1 We will now consider this appeal.", "Our Code, section 163, subdivision 2, provides, “A complaint shall contain a plain and concise statement of facts constituting a cause of action without unnecessary repetition.” The appellant here contends that plaintiff’s complaint failed to state facts sufficient to constitute a cause of action. This court, in construing this section of the Code, has defined a cause of action, “Thus, generally, it may be said that a cause of action exists where the legal rights of one party has been invaded by another.” Chalmers v. Glenn, 18 S. C., 471. In the same case it is said: “It follows, therefore, that he must allege in his complaint all the facts showing his right, and also those showing its invasion by the defendant; and the facts thus alleged must in law upon their face, on the one side, entitle him to the right which he claims, and on the other amount to an invasion by the defendant.” Now, applying this adjudicated construction of this section of the Code to the case at bar, what do we find? The plaintiff was the owner, on the 15th of August, 1890, of certain cross-ties, of the value of twenty-six dollars and twenty-five cents, at or near the right of way of the defendant at Mountville, in this State.", "Now, by the allegations of the complaint, this was the right of the plaintiff. The complaint in its allegations charges that the defendant unlawfully took possession of such property and converted it to its own use, to his damage (the alleged value of the property) twenty-six dollars and twenty-five cents. All these allegations of fact must be taken as true. How can the conclusion be resisted, that, by the strictest tests, here is made evident a plain invasion by this defendant of plaintiff’s rights ? 2 But the appellant lavs great stress upon the use in the complaint of the word “unlawfully,” asking this court, because of the use of such a word, to declare that the allegation of which the word “unlawfully” is a part is thereby made the allegation of a conclusion of law and not a statement of fact, and refers to the cases decided by this court of Tutt v. Railway Company, 28 S. C., 396; Tompkins v. Railroad Company, 33 Id., 217; and Wallace v. R. R. Co., 34 Id., 62, as in 310support of such theory. It is true that this court did hold, in each of the three cases cited, that the complaint was defective because it depended, so far as the support of a cause of action in each was concerned, upon allegations of conclusions of law.", "In the first case cited, the complaint contained allegations of unlawful entry and unlawfully holding of the lands of the plaintiff by the railroad company defendant, without any recital of any facts showing how the entry or holding was unlawful, and inasmuch as the statutes of this State, which provide for obtaining the right of way through the lands of the owners, both with and without their consent, under certain well defined regulations, carefully guard the remedy for a failure on the part of such railroads to observe the rights of owners of the lands through or over which they obtain a road-bed, this court felt called upon to insist that the use of the words unlawful or unlawfully, as allegations in the complaint, should be given their true meaning as conclusions of law where nakedly pleaded; but the court was careful to say, “An act which may, or may not, be right and lawful, according to the circumstances under which it may he done, is not properly averred to be unjust or unlawful by merely calling it so.” So the other cases were against railroads ; that of Tompkins was in regard to right of way over the lands of another, and that of Wallace for constructing a dam in connection with track over the lands of another. But the case at bar is an entirely distinct action from the three cases we have just referred to.", "It has no reference to statutory rights of the defendant in connection with the property of the plaintiff; on the contrary, it belongs to that class of cases where railroads have no other or different rights than those exercised by natural persons. The use of the word unlawful in such cases has long been sanctioned. But even if this were not so, we are not prepared to say that the word “unlawfully,” as used in the complaint at bar, is not surplusage. Indeed, it so seems to us. We must, therefore, overrule this exception. The judgment of this court is, that the order of the Circuit Court appealed from be sustained, and that the appeal therefrom be dismissed." ]	https://www.courtlistener.com/api/rest/v3/opinions/6677481/	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 01-7254 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus SHAQUAN LOVELY, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Columbia. Joseph F. Anderson, Jr., Chief Dis- trict Judge. (CR-98-247, CA-00-3577-3) Submitted: November 8, 2001 Decided: November 16, 2001 Before WILKINS, MICHAEL, and KING, Circuit Judges. Dismissed by unpublished per curiam opinion. Shaquan Lovely, Appellant Pro Se. Jane Barrett Taylor, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Shaquan Lovely seeks to appeal the district court’s orders de- nying his motion filed under 28 U.S.C.A. § 2255 (West Supp. 2001), and denying his motion for reconsideration. We have reviewed the record and the district court’s opinions and find no reversible error. Accordingly, we deny a certificate of appealability and dismiss the appeal on the reasoning of the district court. See United States v. Lovely, Nos. CR-98-247; CA-00-3577-3 (D.S.C. Apr. 26, 2001; July 12, 2001). We dispense with oral argument because the facts and legal contentions are adequately presented in the ma- terials before the court and argument would not aid the decisional process. DISMISSED 2	07-04-2013	[ "UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 01-7254 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus SHAQUAN LOVELY, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Columbia. Joseph F. Anderson, Jr., Chief Dis- trict Judge. (CR-98-247, CA-00-3577-3) Submitted: November 8, 2001 Decided: November 16, 2001 Before WILKINS, MICHAEL, and KING, Circuit Judges. Dismissed by unpublished per curiam opinion. Shaquan Lovely, Appellant Pro Se. Jane Barrett Taylor, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.", "Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Shaquan Lovely seeks to appeal the district court’s orders de- nying his motion filed under 28 U.S.C.A. § 2255 (West Supp. 2001), and denying his motion for reconsideration. We have reviewed the record and the district court’s opinions and find no reversible error. Accordingly, we deny a certificate of appealability and dismiss the appeal on the reasoning of the district court. See United States v. Lovely, Nos. CR-98-247; CA-00-3577-3 (D.S.C. Apr.", "26, 2001; July 12, 2001). We dispense with oral argument because the facts and legal contentions are adequately presented in the ma- terials before the court and argument would not aid the decisional process. DISMISSED 2" ]	https://www.courtlistener.com/api/rest/v3/opinions/1005823/	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 § 112 The following is a quotation of 35 U.S.C. 112(b): (b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention. The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph: The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention. Claims 7 and 11 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. Claims 7 and 11 recite the limitation "the metadata". There is insufficient antecedent basis for this limitation in the claims, given there is no previous mention of metadata in preceding claims 5 and 9. 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 1-12 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by the US patent application publication to Carrier (US 2008/0013757). In terms of independent claims 1 and 9, Carrier teaches a non-transitory computer-readable medium and a system storing instructions executable by at least one processor to facilitate an audio-file playback loop with a button according a method (one or more computer program products in which computer program instructions are stored on a computer readable medium for execution by a computer, see paragraph [0076]; A loop button (262) enables the user to specify that the sample is a loop sample, see paragraph [0031]; A loop button may be provided, for example as a toggle button, which turns looping on and off {i.e. button facilitating playback loop}. Loop playback is engaged when the loop out marker is set, causing playback to jump back to the Loop In Marker, see paragraph [0040]; The Loop button is switched on and playback of the audio loops until the Loop button is pressed to turn it off, see paragraph [0041]), the method comprising: - setting a playback loop start-point based on a first press or release of the button (A loop button (262) enables the user to specify that the sample is a loop sample, see - setting a playback loop end-point, associating the audio-file playback loop with an audio file, and entering into the playback loop based on a second press or release of the button (A loop button (262) enables the user to specify that the sample is a loop sample, see paragraph [0031]; A loop button may be provided, for example as a toggle button, which turns looping on and off. The Loop button is switched on and playback of the audio loops until the Loop button is pressed to turn it off {i.e. entering playback loop based on press or release of a button). Looping controls permit a user to insert a “Loop Out Marker” at the current play location in the audio file [Loop out marker represents the end-point of the playback loop]. It may be implemented such that loop playback is engaged when the loop out marker is set, causing playback to jump back to the Loop In Marker. As a default position, the loop out marker may be set to the end of the audio file, see paragraphs [0040] and [0041], and Fig.3); and - exiting the playback loop based on a third press or release of the button (A loop button may be provided, for example as a toggle button, which turns looping on and off. The Loop button is switched on and playback of the audio loops until the Loop button is In terms of independent claim 5, Carrier teaches a DJ media player (a DJ CD player, see paragraph [0044]; playback systems for disk jockeys, see paragraph [0018]) comprising: - a display to show audio file playback information (audio playback system comprises a display, through which status information for the playback system can be communicated to the user, see paragraph [0018]; the display also may include beat-per-minute display and controls (316). This display shows the current playback beat per minute even if it is different from the original recorded beat-per-minute, see paragraph [0045]); - a button, wherein a first press or release of the button sets a playback loop start-point (A loop button (262) enables the user to specify that the sample is a loop sample, see paragraph [0031]; A loop button may be provided, for example as a toggle button, which turns looping on and off. The Loop button is switched on and playback of the audio loops until the Loop button is pressed to turn it off [i.e. setting playback loop based on press or release of a button]. Looping controls permit a user to insert a "Loop In Marker” at the current play location in the audio file. As a default position, the loop in marker may be set to the beginning of an audio file [Loop In marker represents start-point of the playback loop], see paragraphs [0040] and [0041], and Fig.3), a second press or release of the button sets a playback loop end-point, associates a playback loop with an audio file, and enters into the playback loop (A loop button (262) enables the user to specify that the sample is a loop sample, see paragraph [0031]; A loop button may be provided, for example as a toggle button, which turns looping on and off. The Loop button is switched on and playback of the audio loops until the Loop button is pressed to turn it off [i.e. entering playback loop based on press or release of a button}. Looping controls permit a user to insert a "Loop Out Marker" at the current play location in the audio file (Loop out marker represents the end-point of the playback loop]. It may be implemented such that loop playback is engaged when the loop out marker is set, causing playback to jump back to the Loop In Marker. As a default position, the loop out marker may be set to the end of the audio file, see paragraphs [0040] and [0041], and Fig.3), and a third press or release of the button exits the playback loop (A loop button may be provided, for example as a toggle button, which turns looping on and off. The Loop button is switched on and playback of the audio loops until the Loop button is pressed to turn it off {i.e. exiting playback loop upon pressing or releasing the loop button], see paragraphs [0040], [0041], and Fig.3). As for claims 2, 6 and 10, Carrier teaches associating the audio-file playback loop with the audio file comprises adding metadata to the audio file (information such as a name of a song and an artist name (which may be taken from the ID3 tag of a file), or a file name of the audio file may be assigned to the audio file [i.e. adding metadata to the audio file], see paragraph [0038]). As for claims 3, 7 and 11, Carrier teaches that the metadata associates the audio-file playback loop with a button (A loop button may be provided, for example as a toggle button, which turns looping on and off. The Loop button is switched on and playback of the audio loops until the Loop button is pressed to turn it off [i.e. audio file playback loop with a button], see paragraphs [0040] and [0041], and Fig.3; looping controls include a loop in button provided to permit a user to insert a “Loop In Marker" {i.e. loop start point] at the current play location in the audio file. Similarly, a loop out button may be provided to permit a user to insert a "Loop Out Marker" [i.e. loop end-point] at the current play location in the audio file (metadata associated with audio file playback comprises the loop start-point, loop end-point, see paragraph [0040]). As for claims 4, 8 and 12, Carrier teaches reentering the playback loop based on a fourth press or release of the button and exiting the playback loop based on a fifth press or release of the button (A loop button may be provided, for example as a toggle button, which turns looping on and off. If looping is active, then the current play location will jump back to the loop in marker any time playback reaches the loop out marker, see paragraph [0040]; The Loop button is switched on and playback of the audio loops [i.e. reentering playback loop based on button press] until the Loop button is pressed to turn it off [i.e. exiting the playback loop based on button press], see paragraph [0041]). At least independent claims 1, 5 and 9 can further be rejected under 35 U.S.C. 102(a)(1) as being anticipated by the US patent application publication to Kudo et al. (US 2010/0014399) (see Figures 2 and 3, and paragraphs [0100]-[0106], wherein the buttons for each claimed operation can be condensed into a single button, 412 not necessarily provided (paragraph [0104]) and 412 not necessarily provided (paragraph [0106]). Conclusion The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Please see the Notice of References Cited provided by the Examiner, in particular the US patent application publications to Dekett et al. (US 2016/0267805), Clements et al. (US 2015/0094833), Norberg et al. (US 2008/0205681), Nakaide et al. (US 2013/0110269) and Tanaka et al. (US 2021/10074249). Any inquiry concerning this communication or earlier communications from the examiner should be directed to Christina Marie Schreiber whose telephone number is (571)272-4350. The examiner can normally be reached M-F 7-4 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, Elvin Enad can be reached on 571-272-1990. 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. /CHRISTINA M SCHREIBER/Examiner, Art Unit 2837 11/5/2021	2021-11-12T04:10:00	[ "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 § 112 The following is a quotation of 35 U.S.C. 112(b): (b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention. The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph: The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention. Claims 7 and 11 are rejected under 35 U.S.C. 112(b) or 35 U.S.C.", "112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. Claims 7 and 11 recite the limitation \"the metadata\". There is insufficient antecedent basis for this limitation in the claims, given there is no previous mention of metadata in preceding claims 5 and 9. 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 1-12 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by the US patent application publication to Carrier (US 2008/0013757). In terms of independent claims 1 and 9, Carrier teaches a non-transitory computer-readable medium and a system storing instructions executable by at least one processor to facilitate an audio-file playback loop with a button according a method (one or more computer program products in which computer program instructions are stored on a computer readable medium for execution by a computer, see paragraph [0076]; A loop button (262) enables the user to specify that the sample is a loop sample, see paragraph [0031]; A loop button may be provided, for example as a toggle button, which turns looping on and off {i.e.", "button facilitating playback loop}. Loop playback is engaged when the loop out marker is set, causing playback to jump back to the Loop In Marker, see paragraph [0040]; The Loop button is switched on and playback of the audio loops until the Loop button is pressed to turn it off, see paragraph [0041]), the method comprising: - setting a playback loop start-point based on a first press or release of the button (A loop button (262) enables the user to specify that the sample is a loop sample, see - setting a playback loop end-point, associating the audio-file playback loop with an audio file, and entering into the playback loop based on a second press or release of the button (A loop button (262) enables the user to specify that the sample is a loop sample, see paragraph [0031]; A loop button may be provided, for example as a toggle button, which turns looping on and off.", "The Loop button is switched on and playback of the audio loops until the Loop button is pressed to turn it off {i.e. entering playback loop based on press or release of a button). Looping controls permit a user to insert a “Loop Out Marker” at the current play location in the audio file [Loop out marker represents the end-point of the playback loop]. It may be implemented such that loop playback is engaged when the loop out marker is set, causing playback to jump back to the Loop In Marker. As a default position, the loop out marker may be set to the end of the audio file, see paragraphs [0040] and [0041], and Fig.3); and - exiting the playback loop based on a third press or release of the button (A loop button may be provided, for example as a toggle button, which turns looping on and off. The Loop button is switched on and playback of the audio loops until the Loop button is In terms of independent claim 5, Carrier teaches a DJ media player (a DJ CD player, see paragraph [0044]; playback systems for disk jockeys, see paragraph [0018]) comprising: - a display to show audio file playback information (audio playback system comprises a display, through which status information for the playback system can be communicated to the user, see paragraph [0018]; the display also may include beat-per-minute display and controls (316).", "This display shows the current playback beat per minute even if it is different from the original recorded beat-per-minute, see paragraph [0045]); - a button, wherein a first press or release of the button sets a playback loop start-point (A loop button (262) enables the user to specify that the sample is a loop sample, see paragraph [0031]; A loop button may be provided, for example as a toggle button, which turns looping on and off. The Loop button is switched on and playback of the audio loops until the Loop button is pressed to turn it off [i.e. setting playback loop based on press or release of a button]. Looping controls permit a user to insert a \"Loop In Marker” at the current play location in the audio file. As a default position, the loop in marker may be set to the beginning of an audio file [Loop In marker represents start-point of the playback loop], see paragraphs [0040] and [0041], and Fig.3), a second press or release of the button sets a playback loop end-point, associates a playback loop with an audio file, and enters into the playback loop (A loop button (262) enables the user to specify that the sample is a loop sample, see paragraph [0031]; A loop button may be provided, for example as a toggle button, which turns looping on and off. The Loop button is switched on and playback of the audio loops until the Loop button is pressed to turn it off [i.e.", "entering playback loop based on press or release of a button}. Looping controls permit a user to insert a \"Loop Out Marker\" at the current play location in the audio file (Loop out marker represents the end-point of the playback loop]. It may be implemented such that loop playback is engaged when the loop out marker is set, causing playback to jump back to the Loop In Marker. As a default position, the loop out marker may be set to the end of the audio file, see paragraphs [0040] and [0041], and Fig.3), and a third press or release of the button exits the playback loop (A loop button may be provided, for example as a toggle button, which turns looping on and off. The Loop button is switched on and playback of the audio loops until the Loop button is pressed to turn it off {i.e.", "exiting playback loop upon pressing or releasing the loop button], see paragraphs [0040], [0041], and Fig.3). As for claims 2, 6 and 10, Carrier teaches associating the audio-file playback loop with the audio file comprises adding metadata to the audio file (information such as a name of a song and an artist name (which may be taken from the ID3 tag of a file), or a file name of the audio file may be assigned to the audio file [i.e. adding metadata to the audio file], see paragraph [0038]). As for claims 3, 7 and 11, Carrier teaches that the metadata associates the audio-file playback loop with a button (A loop button may be provided, for example as a toggle button, which turns looping on and off.", "The Loop button is switched on and playback of the audio loops until the Loop button is pressed to turn it off [i.e. audio file playback loop with a button], see paragraphs [0040] and [0041], and Fig.3; looping controls include a loop in button provided to permit a user to insert a “Loop In Marker\" {i.e. loop start point] at the current play location in the audio file. Similarly, a loop out button may be provided to permit a user to insert a \"Loop Out Marker\" [i.e. loop end-point] at the current play location in the audio file (metadata associated with audio file playback comprises the loop start-point, loop end-point, see paragraph [0040]). As for claims 4, 8 and 12, Carrier teaches reentering the playback loop based on a fourth press or release of the button and exiting the playback loop based on a fifth press or release of the button (A loop button may be provided, for example as a toggle button, which turns looping on and off. If looping is active, then the current play location will jump back to the loop in marker any time playback reaches the loop out marker, see paragraph [0040]; The Loop button is switched on and playback of the audio loops [i.e.", "reentering playback loop based on button press] until the Loop button is pressed to turn it off [i.e. exiting the playback loop based on button press], see paragraph [0041]). At least independent claims 1, 5 and 9 can further be rejected under 35 U.S.C. 102(a)(1) as being anticipated by the US patent application publication to Kudo et al. (US 2010/0014399) (see Figures 2 and 3, and paragraphs [0100]-[0106], wherein the buttons for each claimed operation can be condensed into a single button, 412 not necessarily provided (paragraph [0104]) and 412 not necessarily provided (paragraph [0106]). Conclusion The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Please see the Notice of References Cited provided by the Examiner, in particular the US patent application publications to Dekett et al. (US 2016/0267805), Clements et al. (US 2015/0094833), Norberg et al. (US 2008/0205681), Nakaide et al.", "(US 2013/0110269) and Tanaka et al. (US 2021/10074249). Any inquiry concerning this communication or earlier communications from the examiner should be directed to Christina Marie Schreiber whose telephone number is (571)272-4350. The examiner can normally be reached M-F 7-4 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, Elvin Enad can be reached on 571-272-1990. 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. /CHRISTINA M SCHREIBER/Examiner, Art Unit 2837 11/5/2021" ]	https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-11-14.zip	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
By the Court. Lumpkin, J. delivering the opinion. [1.] Was Nathan G. Lewis a competent witness to prove the payment of $747, by himself, as administrator of Green B. Pinkston, deceased, to Joshua Taylor, the former guardian of the minor children of his intestate ? To allow it would be to permit the witness to discharge himself of his liability to the heirs of the estate which he represents — for if he has not paid over this money, he is still responsible to them for it. This principle we consider was settled in Nisbet vs. Lawson, 1 Kelly, 275. The doctrine there ruled was, that a witness who is liable to an action by the party for whom he is called, in case that party should not recover, is incompetent without a release. [2.] This was an action by the present guardian against the administrator of the former guardian and his securities, upon their bond; and the only evidence adduced to support it, was the receipt of certain sums of money by the deceased guardian. Is this, per se, a breach of the bond ? 307This point has been several times discussed before this Court. In the Justices of the Inferior Court vs. Woods & Vason, (1 Kelly, 84,) it was distinctly held, “ that the reception of money by the guardian is no breach of his bond; it is his duty to receive it;” “that the burden of proof is on the plaintiff to show affirmatively some act of waste or mal-administration on the part of the guardian;” and that “ the reception of the money by the guardian would not be sufficient to sustain a suit on the bond, without farther proof to establish a forfeiture.” And in Bryant, guardian, &c. and Beall, executor of Pye, vs. Owen and Wife, (1 Kelly, 355,) this Court say, “ The law makes it the duty of the guardian to inquire into and take charge of the estate of his ward; to receive and keep his effects. If the guardian is not appointed for this purpose, then the appointment of a guardian at all, is an act of redeemless folly. Moreover, the Statute of 12 Char. II. makes it the duty of guardians to take the custody, tuition, and management of the goods, chattels and personal estate of children committed to their care. This Statute is of force in Georgia. Schley’s Digest, 243. We think then, it is established by these views, and the authorities which sustain them, that it is the duty of the guardian to receive the effects of the ward, and if he fails to collect and receive them, he commits waste. If these things are so, can the receipt of the effects be evidence of waste at the same time? The thing is not only unreasonable but absurd.” Thus it will be perceived, that the question under consideration is most fully covered by the previous adjudications of this Court. In this case, Joshua Taylor, the former guardian, received the money and died. He alone was entitled to its custody, to the time of his death. It does not appear but that it came into the hands of his administrator, and if so, he and his securities, and not the securities of Taylor, are liable for it. It may be enough for the present disposition of this point to stop here, but I feel it due to myself to intimate, that if necessary, I should be prepared to maintain that, ordinarily at least, suit cannot be brought on an administrator’s or guardian’s bond against the sureties, until the principal has been first called to account, either before the Ordinary or some other Court of competent jurisdiction. 308[3.] I am aware that the Act of 1820, is supposed to control this matter. I once entertained that opinion myself — I now think differently. That Statute was passed to authorize suits to be instituted against securities to executor’s, administrator’s and guardian’s bonds, in the same action with the principal thereto. The preamble recites, that it had been decided by the Superior Courts of this State, that suit cannot be instituted against any security or securities to any executor’s, administrator’s or guardian’s bond, until the principal or principals to such bond shall have been sued to insolvency, whereby great injury to the interest of heirs, distributees and others may accrue. For remedy whereof it is provided, that securities to all such bonds shall be considered as joint, or joint and several obligors (astlie case may be) with the principals in said bond, so as to authorize any heirs or others concerned, to sue principal andsecurity in the same action. It is farther provided, that the principal, if within the State, shall be first sued, or shall be joined with the security, and if the latter be distinguished as principal, that the execution shall issue against the parties accordingly, and be first levied on the property of the principal, and if that is insufficient to satisfy it, it may then be collected out of the security, who is to have the use and control thereof, for the purposes of remuneration. Prince, 445. What was the mischief which the Legislature intended to correct? The Courts in this State, it seems, had decided, according to what I take to be sound law, that you had first to get a judgment against the executor, administrator or guardian, as such, and upon a return of nulla bona to that, the heir, distributee, creditor or other person concerned, had next to proceed against the representative and prove that he had wasted the assets, before the party would be entitled to an action against the sureties. The first judgment was de bonis teslatoris — the second, de bonis propriis. Lining vs. Giles, 2 Const. R. Tread. 720. Braxton vs. Spotsylvania, 1 Wash. Va. R. 31. Call vs. Ruffin, 1 Call. R. 333, and Gordon’s Administrators vs. Justices of Frederick, 1 Munf. 1. Lyles vs. Caldwell, 3 McCord, 225. Ordinary vs. Maddox, Ib. 237. Cureton vs. Shettor, Ib. 412. Magwood vs. Butler, Harper's C. R. 264. Glenn vs. Conner, Ib. 267. Wallace vs. James, 4 McCord, 121. The Act of 1820, then, intended to save one suit, and to allow the securities to be joined with the principal, not in the first in309stance, when he is proceeded against representatively, but in the next action, when he is charged personally with the devastavit. And we take this to be its true intent and meaning. But I will not pursue this subject farther. In Cameron vs. the Justices of the Inferior Court of Richmond County, (1 Kelly, 36,) the same views were strongly intimated by this Court. I will not say that a case might not be made, either in Equity or at Common Law, where this order of proceeding would not be dispensed with. And of one thing I am pretty clear-, namely: that the trustee might be summoned before the Court of Ordinary, whose peculiar province it is to take cognizance of such matters, and such proceedings be there had, as would stand in lieu of a formal suit against the party, and lay the ground work for the subsequent action on the bond. [4.] The Court charged the Jury, that in making up their verdict, they should calculate the interest that had accrued on the several sums paid the former guardian, add this to the principal, and that the aggregate amount would be the measure of damages; and this instruction is complained off Nisbet and Lawson, already cited, is a precedent to control this exception. This Court there held, and we think rightly, that in an action of assumpsit by the principal against his attorney, for money had and received, that the measure of damages was the amount of money collected, with the interest thereon from the time it was received. [5.] It is assumed in the argument, that this rule would contravene the second section of the Act of 1814, to establish a uniform mode of calculating interest in this State, and to prevent the collection of compound interest, and which declares that, “ in all cases where judgments may hereafter be obtained, all such judgments shall be entered up for the principal sum due, with the interest, but no part of such judgment shall bear interest, except the principal which may be due on the original debt, any law, usage, custom or practice to the contrary notwithstanding.” Prince, 294, 295. It is quite manifest that this clause of the Statute refers to judgments which are obtained on promissory notes and other liquidated demands bearing interest. It speaks of the “ original debt.” It never could have been intended to apply to actions on penal bonds or assumpsit, where the recovery is in damages. Suppose 310trover were brought for a note which had been converted by the defendant? It will not be contended, I apprehend, that the judgment should be for so much principal and so much interest. As in debt on a penal bond and assumpsit, the finding would be for a gross amount as damages. We approve, therefore, of the directions given to the Jury by the presiding Judge, as to the measure of damages; but differing as we do from the judgment rendered at the Circuit on the other two points, it must be reversed and the cause remanded.	01-11-2022	[ "By the Court. Lumpkin, J. delivering the opinion. [1.] Was Nathan G. Lewis a competent witness to prove the payment of $747, by himself, as administrator of Green B. Pinkston, deceased, to Joshua Taylor, the former guardian of the minor children of his intestate ? To allow it would be to permit the witness to discharge himself of his liability to the heirs of the estate which he represents — for if he has not paid over this money, he is still responsible to them for it. This principle we consider was settled in Nisbet vs. Lawson, 1 Kelly, 275. The doctrine there ruled was, that a witness who is liable to an action by the party for whom he is called, in case that party should not recover, is incompetent without a release. [2.] This was an action by the present guardian against the administrator of the former guardian and his securities, upon their bond; and the only evidence adduced to support it, was the receipt of certain sums of money by the deceased guardian. Is this, per se, a breach of the bond ?", "307This point has been several times discussed before this Court. In the Justices of the Inferior Court vs. Woods & Vason, (1 Kelly, 84,) it was distinctly held, “ that the reception of money by the guardian is no breach of his bond; it is his duty to receive it;” “that the burden of proof is on the plaintiff to show affirmatively some act of waste or mal-administration on the part of the guardian;” and that “ the reception of the money by the guardian would not be sufficient to sustain a suit on the bond, without farther proof to establish a forfeiture.” And in Bryant, guardian, &c. and Beall, executor of Pye, vs. Owen and Wife, (1 Kelly, 355,) this Court say, “ The law makes it the duty of the guardian to inquire into and take charge of the estate of his ward; to receive and keep his effects.", "If the guardian is not appointed for this purpose, then the appointment of a guardian at all, is an act of redeemless folly. Moreover, the Statute of 12 Char. II. makes it the duty of guardians to take the custody, tuition, and management of the goods, chattels and personal estate of children committed to their care. This Statute is of force in Georgia. Schley’s Digest, 243. We think then, it is established by these views, and the authorities which sustain them, that it is the duty of the guardian to receive the effects of the ward, and if he fails to collect and receive them, he commits waste. If these things are so, can the receipt of the effects be evidence of waste at the same time? The thing is not only unreasonable but absurd.” Thus it will be perceived, that the question under consideration is most fully covered by the previous adjudications of this Court. In this case, Joshua Taylor, the former guardian, received the money and died. He alone was entitled to its custody, to the time of his death.", "It does not appear but that it came into the hands of his administrator, and if so, he and his securities, and not the securities of Taylor, are liable for it. It may be enough for the present disposition of this point to stop here, but I feel it due to myself to intimate, that if necessary, I should be prepared to maintain that, ordinarily at least, suit cannot be brought on an administrator’s or guardian’s bond against the sureties, until the principal has been first called to account, either before the Ordinary or some other Court of competent jurisdiction. 308[3.] I am aware that the Act of 1820, is supposed to control this matter. I once entertained that opinion myself — I now think differently. That Statute was passed to authorize suits to be instituted against securities to executor’s, administrator’s and guardian’s bonds, in the same action with the principal thereto. The preamble recites, that it had been decided by the Superior Courts of this State, that suit cannot be instituted against any security or securities to any executor’s, administrator’s or guardian’s bond, until the principal or principals to such bond shall have been sued to insolvency, whereby great injury to the interest of heirs, distributees and others may accrue.", "For remedy whereof it is provided, that securities to all such bonds shall be considered as joint, or joint and several obligors (astlie case may be) with the principals in said bond, so as to authorize any heirs or others concerned, to sue principal andsecurity in the same action. It is farther provided, that the principal, if within the State, shall be first sued, or shall be joined with the security, and if the latter be distinguished as principal, that the execution shall issue against the parties accordingly, and be first levied on the property of the principal, and if that is insufficient to satisfy it, it may then be collected out of the security, who is to have the use and control thereof, for the purposes of remuneration. Prince, 445. What was the mischief which the Legislature intended to correct? The Courts in this State, it seems, had decided, according to what I take to be sound law, that you had first to get a judgment against the executor, administrator or guardian, as such, and upon a return of nulla bona to that, the heir, distributee, creditor or other person concerned, had next to proceed against the representative and prove that he had wasted the assets, before the party would be entitled to an action against the sureties. The first judgment was de bonis teslatoris — the second, de bonis propriis.", "Lining vs. Giles, 2 Const. R. Tread. 720. Braxton vs. Spotsylvania, 1 Wash. Va. R. 31. Call vs. Ruffin, 1 Call. R. 333, and Gordon’s Administrators vs. Justices of Frederick, 1 Munf. 1. Lyles vs. Caldwell, 3 McCord, 225. Ordinary vs. Maddox, Ib. 237. Cureton vs. Shettor, Ib. 412. Magwood vs. Butler, Harper's C. R. 264. Glenn vs. Conner, Ib. 267. Wallace vs. James, 4 McCord, 121. The Act of 1820, then, intended to save one suit, and to allow the securities to be joined with the principal, not in the first in309stance, when he is proceeded against representatively, but in the next action, when he is charged personally with the devastavit. And we take this to be its true intent and meaning. But I will not pursue this subject farther. In Cameron vs. the Justices of the Inferior Court of Richmond County, (1 Kelly, 36,) the same views were strongly intimated by this Court.", "I will not say that a case might not be made, either in Equity or at Common Law, where this order of proceeding would not be dispensed with. And of one thing I am pretty clear-, namely: that the trustee might be summoned before the Court of Ordinary, whose peculiar province it is to take cognizance of such matters, and such proceedings be there had, as would stand in lieu of a formal suit against the party, and lay the ground work for the subsequent action on the bond. [4.] The Court charged the Jury, that in making up their verdict, they should calculate the interest that had accrued on the several sums paid the former guardian, add this to the principal, and that the aggregate amount would be the measure of damages; and this instruction is complained off Nisbet and Lawson, already cited, is a precedent to control this exception. This Court there held, and we think rightly, that in an action of assumpsit by the principal against his attorney, for money had and received, that the measure of damages was the amount of money collected, with the interest thereon from the time it was received. [5.] It is assumed in the argument, that this rule would contravene the second section of the Act of 1814, to establish a uniform mode of calculating interest in this State, and to prevent the collection of compound interest, and which declares that, “ in all cases where judgments may hereafter be obtained, all such judgments shall be entered up for the principal sum due, with the interest, but no part of such judgment shall bear interest, except the principal which may be due on the original debt, any law, usage, custom or practice to the contrary notwithstanding.” Prince, 294, 295.", "It is quite manifest that this clause of the Statute refers to judgments which are obtained on promissory notes and other liquidated demands bearing interest. It speaks of the “ original debt.” It never could have been intended to apply to actions on penal bonds or assumpsit, where the recovery is in damages. Suppose 310trover were brought for a note which had been converted by the defendant? It will not be contended, I apprehend, that the judgment should be for so much principal and so much interest. As in debt on a penal bond and assumpsit, the finding would be for a gross amount as damages. We approve, therefore, of the directions given to the Jury by the presiding Judge, as to the measure of damages; but differing as we do from the judgment rendered at the Circuit on the other two points, it must be reversed and the cause remanded." ]	https://www.courtlistener.com/api/rest/v3/opinions/5551225/	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
van Gestel, J. These matters2 are again before the Court, this time on a second phase of the motions of the parties for summary judgment. The parties disagree over the interpretation of language in a June 1, 1998, letter agreement (“Letter Agreement”). Earlier, all parties argued that the contract language in question was unambiguous and, therefore, that they each were entitled to judgment as a matter of law. Although the language of the Letter Agreement was simple, because its interpretation by the Court seemed to present genuine issues of material fact regarding the parties’ intent, all motions were denied. See Memorandum and Order on Parties’ Cross Motions for Summary Judgment, dated December 21, 2000, full familiarity with which is assumed. Sensing the significance of the interpretation of the contractual language to the ultimate resolution of these cases, the Court scheduled a limited bifurcated evidentiary hearing in aid of that purpose. BACKGROUND The background materials that follow are taken from the parties’ previous filings in support of and opposition to the several motions for summary judgment, and from the testimony, exhibits, briefs and arguments presented at and after the evidentiary hearing conducted between February 20 and February 23, 2001. MATEP LLC and Medical Area Total Energy Plant, Inc. (collectively, “MATEP”) are the owners and operators of the Medical Area Total Energy Plant, an energy-gen erating plant and distribution system that provides electricity, steam and chilled water to, among others, the five plaintiffs in these cases: Beth Israel Deaconess Medical Center, Inc.; The Brigham and Women’s Hospital, Inc.; The Children’s Hospital Corporation; DanaFarber Cancer Institute, Inc.; and Joslin Diabetes Center, Inc. (collectively, the “plaintiffs" or “users”). The plaintiffs are hospitals and educational institutions in Boston’s Longwood Medical Area. MATEP was originally constructed and owned by Harvard University (“Harvard”). By the summer of 1997, Harvard was preparing to sell MATEP. As a result, Harvard and the plaintiffs negotiated, and on October 31, 1997, executed, what was called the Third Amendment to the Restated Utilities Contracts (“RUCs”). The purpose of the Third Amendment was, among other things, to address the impact of the then-impending deregulation of the Massachusetts electricity market on the prices to be charged by MATEP to the users for electricity under their contracts. For many years prior to May 1998, MATEP had sold electricity to the users at rates corresponding to those charged by the Boston Edison Company (“Edison”). The Third Amendment made certain changes in the way that the users paid for electricity. Under it, the price for electricity would change from the Boston Edison G-3 rate to the price of alternative suppliers of electricity upon the satisfaction of the following four conditions: (1) that a competitive market for energy exists; (2) that alternative supplies of electricity at comparable levels of service to that provided by MATEP and with specifications and reliability standards at least equal to those provided for in the contracts with MATEP are actually available; (3) that, in the absence of the contracts with MATEP, the users could contract for and obtain delivery of such alternative supplies of electricity under Arm, non-interruptibie agreements; and (4) that delivery of such alternative supplies of electricity is not prohibited by law. While the Third Amendment was being negotiated between Harvard and the plaintiffs, Advanced Energy Systems, Inc. (“AES”) was selected by Harvard as the likely purchaser of MATEP. The plaintiffs in these cases, as users of the MATEP system, had certain approval rights regarding any sale by Harvard of the facility. At the time leading up to the closing of the sale from Harvard to AES, it became known that PECO Energy Company (“PECO”),3 which had not previously provided electricity in Massachusetts, had entered or was about to enter the market. In the spring of 1998, the plaintiffs here, as users of MATEP electricity, requested that AES, as the future owner, agree to match the price and other terms offered by PECO to members participating in the Power Options Program.4 Under the Power Options Program, participants would remain customers of their local utility company from the date they entered into agreements with PECO until PECO converted their electricity accounts to service from it. This conversion would not occur until some time after the favorable resolution of a referendum on electric deregulation on the Massachusetts ballot in November 1998. The plaintiffs’ request that AES agree to match the PECO price resulted in four meetings that occurred on March 31, April 9 and 16, and May 13, 1998, among 597the users and their counsel. Harvard, and AES. Initially, AES had concerns about whether the PECO proposal met the comparability conditions of the Third Amendment to the RUCs. In essence, AES was concerned about whether the PECO proposal was a “real deal,” meaning: was PECO actually going to provide electricity, or was it just a financial scheme? And, if PECO was truly going to supply electricity, would it be supplied in a manner comparable to that supplied to its users by MATEP? These, and other issues, were unsuccessfully negotiated at the first three of the meetings, with agreement only arriving at and after the fourth. The impending closing of the Harvard/AES transfer of MATEP played some role in the parties’ resolution of the PECO pricing issue. The issue of comparability was in part ameliorated when it was learned that Massachusetts General Hospital, New England Medical Center and St. Elizabeth’s Hospital were each signing up with PECO. To the extent comparability remained in play, it was swallowed up in the “real deal” versus “financial deal” debate. At the first three meetings among the users, Harvard and AES, the discussion focused on how to sort out real offers of electricity from solely financial arrangements. All parties wanted to agree on a simple test, but they differed on what that test would be. AES advanced a majoritarian approach, insisting that PECO must “deliver” electricity to a majority of all of HEFA’s participating institutions. The users, on the other hand, argued for a test involving only a reference group of similar medical institutions. This impasse continued through the March and April meetings. At the May 13, 1998, meeting, AES broke the log-jam when it presented a draft Letter Agreement that, with minor changes, became the ultimate Letter Agreement of June 1, 1998. AES essentially accepted the users’ approach. The essence of the Letter Agreement entered into between AES and the plaintiffs is that if electricity from PECO became actually available to certain designated hospitals listed in Exhibit B thereto that had signed on to receive electricity under agreements with PECO, MATEP would charge its users the lower PECO rate for the period from June U 1998, through February 28, 2001. The Letter Agreement provides that it shall terminate in favor of MATEP “in the event that by April 1, 1999 . . . PECO has not commenced deliveries of electricity under a majority of the Two Year Agreements.” (Emphasis added.) The parties also agreed that until April 1, 1999, the plaintiffs would pay MATEP the higher Boston Edison rate for electricity, but that any excess over the PECO rate would be held in an escrow account controlled by MATEP. The escrowed funds would be returned to plaintiffs if PECO commenced deliveries of electricity by April 1, 1999. Claiming that the condition of the Letter Agreement has been met — i.e., PECO commenced delivery as required by April 1, 1999 — plaintiffs seek the return of the escrowed funds, which now total more than five million dollars. AES disagrees. PECO signed certain Two Year Agreements (“Two Year Agreements”) to provide electricity to the “seven”5 designated Massachusetts health institutions at rates that were lower than Edison’s. The Two Year Agreements with the designated hospitals provided that PECO Energy agrees to supply . . . electric energy and capacity sufficient to provide firm, full requirements of Electricity for each Account, meaning supply of Participant’s total electricity at each Receipt Point supplied from external sources. The designated hospitals all had numerous electric meters at a variety of different locations. By April 1, 1999, it appears that PECO had begun “delivering” electricity to some of the meters of at least five of the designated hospitals. The current dispute centers on whether this “delivery” of electricity to some of the meters at a majority of the designated hospitals satisfies the contractual requirement of “actually available.” DISCUSSION Summary judgment is granted where there are no issues of genuine material fact and the moving party is entitled to judgment as a matter of law. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991); Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983); Mass.R.Civ.P. 56(c). The moving party bears the burden of affirmatively demonstrating that there is no triable issue of fact. Pederson v. Time, Inc., 404 Mass. 14, 17 (1989). The Letter Agreement provides the test for whether electricity would be “actually available” to be if PECO “commenced deliveries under a majority of the Two Year Agreements” by April 1, 1999. Although the parties all agree that “commence” means “begin,” they dispute the definition of “under a majority of the Two Year Agreements.” Plaintiffs contend that “commenced deliveries under a majority of the Two Year Agreements” means “begin delivery of electricity to a majority of the seven hospitals.” Consequently, because PECO had executed agreements to provide electricity to at least five of the designated hospitals by April 1, 1999, plaintiffs contend that under the plain language of the Letter Agreement, the test of “actually available” electricity has been passed. MATEP responds that because the Letter Agreement specifically referenced the “Two Year Agreements,” and a sample Two Year Agreement was attached to each Letter Agreement, “actually available" must be considered in the context of both the Letter Agreement and the Two Year Agreement. MATEP thus argues that each of the designated hospitals that entered into a Two Year Agreement with PECO has several different electric meters in several different locations, and each Two Year Agreement listed every 598meter or account to which electricity was delivered to that particular hospital. Consequently, MATEP contends that to satisfy the requirement of “actually available” electricity, PECO would have had to have begun delivery of electricity to every meter of a majority' of the designated hospitals by April 1, 1999. Unless service had commenced to every meter at a majority of the designated hospitals, MATEP maintains, the “firm, full requirements of Electricity for each Account” condition of the Two Year Agreements would not have been satisfied. In support of this interpretation, MATEP notes that the Two Year Agreements define “firm, full requirements” as “supply of Participant’s total electricity at each Receipt Point supplied from external sources.” Thus, MATEP argues that the electricity was not “actually available” unless PECO had begun to deliver electricity to every meter' (receipt point) at a majority of the designated hospitals by the target date. These different interpretations of “under a majority of the Two-Year Agreements” revealed to the Court a genuine issue as to the parties’ intent at the time they entered into the Letter Agreement. “The intention of the parties, if made ambiguous by the words of the contract, generally presents a question of fact.” See Levenson v. L.M.I. Realty Corp., 31 Mass.App.Ct. 127, 130 (1991). Plaintiffs interpret “under a majority of the Two Year Agreements” as “to a majority of the seven hospitals,” while MATEP defines the same language as “to every meter at a majority of the seven hospitals.” Because the phrase “under a majority of the Two Year Agreements” might reasonably support either interpretation, this Court, in considering the original motions for summary judgment, found the wording to be ambiguous, and the ambiguity could not be resolved as a matter of law. It was this finding that resulted in the evidentiary hearing. The resolution of the several motions here depends upon a proper interpretation of the language of the Letter Agreement. This is a question of law for the Court. Lumber Mut. Ins. Co. v. Zoltek Corp., 419 Mass. 704, 707 (1995). “In the absence of an ambiguity, [a Court] will ‘construe the words of the [contract] in their usual and ordinary sense.’ ”116 Commonwealth Condominium Trust v. Aetna Casualty & Surety Company, 433 Mass. 373, 376 (2001). The mere fact that parties disagree on the proper construction of contractual language does not necessarily establish an ambiguity. Lumbermans Mut. Cas. Comp. v. Offices Unlimited, Inc., 419 Mass. 462, 466 (1995). A contract is to be read in light of the circumstances of its execution, which may enable a Court to see that its words maybe understood or, in the alternative, are actually ambiguous. Robert Industries, Inc. v. Spence, 362 Mass. 751, 753 (1973). When an element of ambiguity appears in a contract, the Court considers the entire instrument and the general scheme it reveals to determine the significance and meaning of the ambiguous terms. MacDonald v. Gough, 326 Mass. 93, 96 (1950). “The object of the court is to construe the contract as a whole, in a reasonable and practical way, consistent with its language, background and purpose.” USM Corp. v. Arthur D. Little Systems, Inc., 28 Mass.App.Ct. 108, 116 (1989). The Court must act in a way to give effect to the agreement as a rational business instrument in order to carry out the intent of the parties. Starr v. Fordham, 420 Mass. 178, 192 (1990). Judges have no roving writ to construe contractual language in a way that they think best. Exxon Corp. v. Esso Workers’ Union Inc., 118 F.3d 841 (1st Cir. 1987). Justice, common sense and the probable intention of the parties upon consideration of the words in question are guides to construction of a written instrument. City of Haverhill v. George Brox, Inc., 47 Mass.App.Ct. 717, 720 (1999). There is no question that PECO’s Two Year Agreements with the designated hospitals require it to supply them with “electric energy and capacity sufficient to . . . provide firm, full requirements of Electricity for each Account, meaning supply of Participant’s total electricity at each Receipt Point supplied from external sources.” The Court, initially, had trouble with the meaning of that language. At a minimum, a determination might depend upon numerous evidentiary factors, including the intent and practice of the parties and industry custom. The evidentiary hearing, following the summary judgment arguments and filings, however, has provided the Court with information that enables it to resolve the parties’ disagreements. This comes not from a study of the PECO Two Year Agreements, however, but rather from a newfound appreciation of what was said, and not said, about the meaning of the word “deliveries” as it relates to electricity as used in the Letter Agreement. The test to determine “actual availability” agreed to by AES and the users in the Letter Agreement had as its purpose to create a simple way of determining whether PECO’s participation in the Power Options Program with HEFA’s members was a “real deal” or just a “financial deal.”6 The selected language — "commenced deliveries of electricity" — was authored by AES and was included in its draft of the Letter Agreement first presented by its counsel at the May 13, 1998, meeting. The language used, however, was never changed and was not discussed; everyone present was quite content that they understood exactly what it meant. No one testified to attributing any special industry custom or meaning to the words. In fact, however, everyone employed a word that did not comfortably fit the situation. It has become clear to this Court from the evidentiary hearing that the word “deliveries” was miscast. What all of the parties really intended was a word or words that would better reflect what actually happens in the real world of electric power generation and from 599what source and in what manner the watts actually arrive at the user. Only one witness presented testimony and evidence about the way that electricity is made available to users. This witness was Douglas Stevenson (“Stevenson”), owner of Energy Options Consulting Group, LLC, a man with extensive credentials and experience in the electric power industry, and whom the Court found to be wholly credible. Stevenson used the analogy of a lake7 to explain the provision of electricity. He described how a power company like PECO “pours” electricity into a large common “lake” — in the power industry, the lake is called the grid — and “delivers” electricity when its customers (to whom it is contractually obligated and for whom it is financially responsible) draw electricity out of the “lake,” or grid. Within one hour of electricity being drawn by a PECO customer from the grid, PECO must “replenish” the amount drawn by its customer either by “pouring" in more of its own electricity or by purchasing electricity from others to be “poured” in. In assessing this process, one can readily see why the word “deliveries” is not the best choice for describing this function. In the electric industry, customers become “enrolled” by electricity producers. When a new producer, like PECO here, comes into an area already served by a local power supplier, the enrollment process can take about a month to complete. This is because of the connection between enrollment and the reading of electric meters. Only approximately 5% of all meters are read on any given business day. There being about twenty business days in a month, it takes about a month for a complete changeover from one supplier, like Boston Edison and Massachusetts Electric here, to another, like PECO here. Once a customer has been enrolled by a new power supplier, the fact of that enrollment is expressed on the next bill from the old supplier. Here, for example, the Boston Edison bill to Beth Israel Health Care in Chelsea, dated March 19, 1999, recited: “YOUR NEXT BILL WILL REFLECT SUPPLIER SERVICES FROM EXELON ENERGY.” Similarly, the Massachusetts Electric bill to Nashoba Community Hospital, dated March 26, 1999, bore the notation: “OUR RECORDS INDICATE THAT YOU HAVE SWITCHED YOUR SUPPLIER OPTION TO HORIZON ENERGY, DBA EXELON ENERGY.” Each of the foregoing examples were bills for electricity “delivered” by the old suppliers prior to the end of March 1999. The next bills reflect electricity “delivered” by PECO “commencing” before April 1, 1999. Stevenson provided evidence that starting in the first two weeks of March 1999, PECO began enrolling the eligible accounts for the designated reference hospitals, and that before April 1, 1999, five of those hospitals had 100% of their eligible accounts enrolled with PECO. Once an account was enrolled with PECO, starting with the next meter reading. PECO became responsible for “delivering” electricity to that account by “pouring” electricity into the grid and for “settling up” for that account’s withdrawals from the grid. Stevenson provided evidence that six of the designated hospitals began “receiving” electricity from PECO before April 1, 1999, and that, by April 15, 1999, at the end of the monthly meter cycle, all accounts at five of the designated hospitals were “receiving” from PECO. During the first month alone, PECO was credited with delivering 400 million watt hours of electricity to the designated hospitals, and during the first year an estimated 29 billion watt hours. This was conceded by the President and Chief Operating Officer of AES to be the delivery by PECO of a “substantial amount” of electricity to the designated hospitals. PECO’s participation in the Power Options Program with the designated hospitals was clearly shown to be a “real deal.” By April 1, 1999, PECO had commenced “deliveries” of electricity to six of the designated hospitals and had enrolled 90% of the eligible accounts at all of the designated hospitals. Thus, this Court rules that a proper understanding of the method by which electricity is “delivered” through the grid in Massachusetts mandates a conclusion that electricity from PECO became “actually available” to a majority of the designated hospitals by the beginning of “deliveries” under a majority of the PECO Two Year Agreements by April 1, 1999. What was in issue here were not the details of PECO’s Two Year Agreements, but rather whether PECO actually provided electricity or instead was only-involved in exchanging money. The language the parties chose — "commenced the deliveries of electricity under a majority of the Two Year Agreements" — had no other limiting words. The Letter Agreement itself defined references to “a majority of the Two Year Agreements” to mean “a majority of those Two Year Agreements set forth on Exhibit B.” Exhibit B merely listed the names of “seven” hospitals. Thus the “deliveries of electricity” were to designated hospitals, not to certain unidentified or undefined accounts or meters at those hospitals. “Accounts” and “meters" were never a topic of any discussion among the parties, but comparable hospitals always were. This Court cannot, nor should it, add language to the Letter Agreement relating to “meters” or “accounts” that the parties themselves chose not to include. H.W. Golden & Sons v. Marblehead, 68 F.2d 875 (1st Cir. 1934). ORDER This Court finds, on the narrow issue of the parties’ intent as to whether electricity from PECO was “actually available” as contemplated in the test included in the several Letter Agreements of June 1, 1998, between the plaintiffs and MATEP, that a proper interpretation of those Letter Agreements mandates a conclusion that electricity from PECO would become “actually available” — as the evidence shows it did — on 600or before April 1, 1999, by PECO’s enrollments and beginning of “deliveries” pursuant thereto of electricity to a majority of the hospitals designated on Exhibit B. As a consequence, the plaintiffs are entitled to recover their respective pro-rata shares from the escrow account. The plaintiffs’ several motions for partial summary judgment are ALLOWED insofar as they relate to all issues of liability as set out in their several complaints and as to Count I of the defendants’ counterclaims. To the extent that the defendants press cross motions for summary judgment they are DENIED. Four other actions against the same defendants have been consolidated for essentially identical summary judgment motions: The Brigham and Women’s Hospital Inc. v. MATEP LLC, et al. (Civil Action No. 99-4531 BLS); The Children’s Hospital Corporation v. MATEP LLC, et al. (Civil Action No. 99-4532 BLS); Dana-Farber Cancer Institute, Inc. v. MATEP LLC, et al. (Civil Action No. 99-4533 BLS); and Joslin Diabetes Center, Inc. v. MATEP LLC, et al. (Civil Action No. 99-4534 BLS). Each of the plaintiffs executed an identical Letter Agreement. PECO does business in Massachusetts through a subsidiary, Horizon Energy, d/b/a Exelon Energy. This memorandum uses “PECO” to refer to all of its entities doing business in Massachusetts. The Power Options Program was created by the Massachusetts Health and Education Facilities Authority (“HEFA”), and the program had as its purpose securing electricity supplies for its member institutions following deregulation of the electric industry. The “seven” hospitals were: Beth Israel Deaconess Medical Center; Beverly Hospital; Community Hospitals of Eastern Middlesex; Deaconess Nashoba Hospital; Deaconess Glover Hospital; Deaconess Waltham Hospital; Massachusetts Eye and Ear Infirmary; and New England Medical Center. The reason that eight, rather than seven, hospitals are listed in this footnote, is that there was an error in the list attached as Exhibit B to the Letter Agreement. Deaconess Glover Hospital and Deaconess Waltham Hospital, although wholly separate institutions, were listed as one: “Deaconess Glover Waltham Hospital." Nothing turns on this error. Implicit, of course, in agreeing to the test of “deliveries” to the designated hospitals is acceptance of the comparability issues, leaving only the “real deal” versus “financial deal” issue for resolution. A reservoir might have been even more apt.	10-17-2022	[ "van Gestel, J. These matters2 are again before the Court, this time on a second phase of the motions of the parties for summary judgment. The parties disagree over the interpretation of language in a June 1, 1998, letter agreement (“Letter Agreement”). Earlier, all parties argued that the contract language in question was unambiguous and, therefore, that they each were entitled to judgment as a matter of law. Although the language of the Letter Agreement was simple, because its interpretation by the Court seemed to present genuine issues of material fact regarding the parties’ intent, all motions were denied. See Memorandum and Order on Parties’ Cross Motions for Summary Judgment, dated December 21, 2000, full familiarity with which is assumed. Sensing the significance of the interpretation of the contractual language to the ultimate resolution of these cases, the Court scheduled a limited bifurcated evidentiary hearing in aid of that purpose.", "BACKGROUND The background materials that follow are taken from the parties’ previous filings in support of and opposition to the several motions for summary judgment, and from the testimony, exhibits, briefs and arguments presented at and after the evidentiary hearing conducted between February 20 and February 23, 2001. MATEP LLC and Medical Area Total Energy Plant, Inc. (collectively, “MATEP”) are the owners and operators of the Medical Area Total Energy Plant, an energy-gen erating plant and distribution system that provides electricity, steam and chilled water to, among others, the five plaintiffs in these cases: Beth Israel Deaconess Medical Center, Inc.; The Brigham and Women’s Hospital, Inc.; The Children’s Hospital Corporation; DanaFarber Cancer Institute, Inc.; and Joslin Diabetes Center, Inc. (collectively, the “plaintiffs\" or “users”). The plaintiffs are hospitals and educational institutions in Boston’s Longwood Medical Area. MATEP was originally constructed and owned by Harvard University (“Harvard”).", "By the summer of 1997, Harvard was preparing to sell MATEP. As a result, Harvard and the plaintiffs negotiated, and on October 31, 1997, executed, what was called the Third Amendment to the Restated Utilities Contracts (“RUCs”). The purpose of the Third Amendment was, among other things, to address the impact of the then-impending deregulation of the Massachusetts electricity market on the prices to be charged by MATEP to the users for electricity under their contracts. For many years prior to May 1998, MATEP had sold electricity to the users at rates corresponding to those charged by the Boston Edison Company (“Edison”). The Third Amendment made certain changes in the way that the users paid for electricity. Under it, the price for electricity would change from the Boston Edison G-3 rate to the price of alternative suppliers of electricity upon the satisfaction of the following four conditions: (1) that a competitive market for energy exists; (2) that alternative supplies of electricity at comparable levels of service to that provided by MATEP and with specifications and reliability standards at least equal to those provided for in the contracts with MATEP are actually available; (3) that, in the absence of the contracts with MATEP, the users could contract for and obtain delivery of such alternative supplies of electricity under Arm, non-interruptibie agreements; and (4) that delivery of such alternative supplies of electricity is not prohibited by law.", "While the Third Amendment was being negotiated between Harvard and the plaintiffs, Advanced Energy Systems, Inc. (“AES”) was selected by Harvard as the likely purchaser of MATEP. The plaintiffs in these cases, as users of the MATEP system, had certain approval rights regarding any sale by Harvard of the facility. At the time leading up to the closing of the sale from Harvard to AES, it became known that PECO Energy Company (“PECO”),3 which had not previously provided electricity in Massachusetts, had entered or was about to enter the market. In the spring of 1998, the plaintiffs here, as users of MATEP electricity, requested that AES, as the future owner, agree to match the price and other terms offered by PECO to members participating in the Power Options Program.4 Under the Power Options Program, participants would remain customers of their local utility company from the date they entered into agreements with PECO until PECO converted their electricity accounts to service from it. This conversion would not occur until some time after the favorable resolution of a referendum on electric deregulation on the Massachusetts ballot in November 1998.", "The plaintiffs’ request that AES agree to match the PECO price resulted in four meetings that occurred on March 31, April 9 and 16, and May 13, 1998, among 597the users and their counsel. Harvard, and AES. Initially, AES had concerns about whether the PECO proposal met the comparability conditions of the Third Amendment to the RUCs. In essence, AES was concerned about whether the PECO proposal was a “real deal,” meaning: was PECO actually going to provide electricity, or was it just a financial scheme?", "And, if PECO was truly going to supply electricity, would it be supplied in a manner comparable to that supplied to its users by MATEP? These, and other issues, were unsuccessfully negotiated at the first three of the meetings, with agreement only arriving at and after the fourth. The impending closing of the Harvard/AES transfer of MATEP played some role in the parties’ resolution of the PECO pricing issue. The issue of comparability was in part ameliorated when it was learned that Massachusetts General Hospital, New England Medical Center and St. Elizabeth’s Hospital were each signing up with PECO. To the extent comparability remained in play, it was swallowed up in the “real deal” versus “financial deal” debate. At the first three meetings among the users, Harvard and AES, the discussion focused on how to sort out real offers of electricity from solely financial arrangements. All parties wanted to agree on a simple test, but they differed on what that test would be. AES advanced a majoritarian approach, insisting that PECO must “deliver” electricity to a majority of all of HEFA’s participating institutions.", "The users, on the other hand, argued for a test involving only a reference group of similar medical institutions. This impasse continued through the March and April meetings. At the May 13, 1998, meeting, AES broke the log-jam when it presented a draft Letter Agreement that, with minor changes, became the ultimate Letter Agreement of June 1, 1998. AES essentially accepted the users’ approach. The essence of the Letter Agreement entered into between AES and the plaintiffs is that if electricity from PECO became actually available to certain designated hospitals listed in Exhibit B thereto that had signed on to receive electricity under agreements with PECO, MATEP would charge its users the lower PECO rate for the period from June U 1998, through February 28, 2001. The Letter Agreement provides that it shall terminate in favor of MATEP “in the event that by April 1, 1999 .", ". . PECO has not commenced deliveries of electricity under a majority of the Two Year Agreements.” (Emphasis added.) The parties also agreed that until April 1, 1999, the plaintiffs would pay MATEP the higher Boston Edison rate for electricity, but that any excess over the PECO rate would be held in an escrow account controlled by MATEP. The escrowed funds would be returned to plaintiffs if PECO commenced deliveries of electricity by April 1, 1999. Claiming that the condition of the Letter Agreement has been met — i.e., PECO commenced delivery as required by April 1, 1999 — plaintiffs seek the return of the escrowed funds, which now total more than five million dollars. AES disagrees. PECO signed certain Two Year Agreements (“Two Year Agreements”) to provide electricity to the “seven”5 designated Massachusetts health institutions at rates that were lower than Edison’s. The Two Year Agreements with the designated hospitals provided that PECO Energy agrees to supply .", ". . electric energy and capacity sufficient to provide firm, full requirements of Electricity for each Account, meaning supply of Participant’s total electricity at each Receipt Point supplied from external sources. The designated hospitals all had numerous electric meters at a variety of different locations. By April 1, 1999, it appears that PECO had begun “delivering” electricity to some of the meters of at least five of the designated hospitals. The current dispute centers on whether this “delivery” of electricity to some of the meters at a majority of the designated hospitals satisfies the contractual requirement of “actually available.” DISCUSSION Summary judgment is granted where there are no issues of genuine material fact and the moving party is entitled to judgment as a matter of law.", "Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991); Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983); Mass.R.Civ.P. 56(c). The moving party bears the burden of affirmatively demonstrating that there is no triable issue of fact. Pederson v. Time, Inc., 404 Mass. 14, 17 (1989). The Letter Agreement provides the test for whether electricity would be “actually available” to be if PECO “commenced deliveries under a majority of the Two Year Agreements” by April 1, 1999. Although the parties all agree that “commence” means “begin,” they dispute the definition of “under a majority of the Two Year Agreements.” Plaintiffs contend that “commenced deliveries under a majority of the Two Year Agreements” means “begin delivery of electricity to a majority of the seven hospitals.” Consequently, because PECO had executed agreements to provide electricity to at least five of the designated hospitals by April 1, 1999, plaintiffs contend that under the plain language of the Letter Agreement, the test of “actually available” electricity has been passed.", "MATEP responds that because the Letter Agreement specifically referenced the “Two Year Agreements,” and a sample Two Year Agreement was attached to each Letter Agreement, “actually available\" must be considered in the context of both the Letter Agreement and the Two Year Agreement. MATEP thus argues that each of the designated hospitals that entered into a Two Year Agreement with PECO has several different electric meters in several different locations, and each Two Year Agreement listed every 598meter or account to which electricity was delivered to that particular hospital. Consequently, MATEP contends that to satisfy the requirement of “actually available” electricity, PECO would have had to have begun delivery of electricity to every meter of a majority' of the designated hospitals by April 1, 1999. Unless service had commenced to every meter at a majority of the designated hospitals, MATEP maintains, the “firm, full requirements of Electricity for each Account” condition of the Two Year Agreements would not have been satisfied. In support of this interpretation, MATEP notes that the Two Year Agreements define “firm, full requirements” as “supply of Participant’s total electricity at each Receipt Point supplied from external sources.” Thus, MATEP argues that the electricity was not “actually available” unless PECO had begun to deliver electricity to every meter' (receipt point) at a majority of the designated hospitals by the target date. These different interpretations of “under a majority of the Two-Year Agreements” revealed to the Court a genuine issue as to the parties’ intent at the time they entered into the Letter Agreement.", "“The intention of the parties, if made ambiguous by the words of the contract, generally presents a question of fact.” See Levenson v. L.M.I. Realty Corp., 31 Mass.App.Ct. 127, 130 (1991). Plaintiffs interpret “under a majority of the Two Year Agreements” as “to a majority of the seven hospitals,” while MATEP defines the same language as “to every meter at a majority of the seven hospitals.” Because the phrase “under a majority of the Two Year Agreements” might reasonably support either interpretation, this Court, in considering the original motions for summary judgment, found the wording to be ambiguous, and the ambiguity could not be resolved as a matter of law. It was this finding that resulted in the evidentiary hearing. The resolution of the several motions here depends upon a proper interpretation of the language of the Letter Agreement.", "This is a question of law for the Court. Lumber Mut. Ins. Co. v. Zoltek Corp., 419 Mass. 704, 707 (1995). “In the absence of an ambiguity, [a Court] will ‘construe the words of the [contract] in their usual and ordinary sense.’ ”116 Commonwealth Condominium Trust v. Aetna Casualty & Surety Company, 433 Mass. 373, 376 (2001). The mere fact that parties disagree on the proper construction of contractual language does not necessarily establish an ambiguity. Lumbermans Mut. Cas. Comp. v. Offices Unlimited, Inc., 419 Mass. 462, 466 (1995). A contract is to be read in light of the circumstances of its execution, which may enable a Court to see that its words maybe understood or, in the alternative, are actually ambiguous.", "Robert Industries, Inc. v. Spence, 362 Mass. 751, 753 (1973). When an element of ambiguity appears in a contract, the Court considers the entire instrument and the general scheme it reveals to determine the significance and meaning of the ambiguous terms. MacDonald v. Gough, 326 Mass. 93, 96 (1950). “The object of the court is to construe the contract as a whole, in a reasonable and practical way, consistent with its language, background and purpose.” USM Corp. v. Arthur D. Little Systems, Inc., 28 Mass.App.Ct. 108, 116 (1989). The Court must act in a way to give effect to the agreement as a rational business instrument in order to carry out the intent of the parties. Starr v. Fordham, 420 Mass. 178, 192 (1990). Judges have no roving writ to construe contractual language in a way that they think best. Exxon Corp. v. Esso Workers’ Union Inc., 118 F.3d 841 (1st Cir. 1987).", "Justice, common sense and the probable intention of the parties upon consideration of the words in question are guides to construction of a written instrument. City of Haverhill v. George Brox, Inc., 47 Mass.App.Ct. 717, 720 (1999). There is no question that PECO’s Two Year Agreements with the designated hospitals require it to supply them with “electric energy and capacity sufficient to . . . provide firm, full requirements of Electricity for each Account, meaning supply of Participant’s total electricity at each Receipt Point supplied from external sources.” The Court, initially, had trouble with the meaning of that language. At a minimum, a determination might depend upon numerous evidentiary factors, including the intent and practice of the parties and industry custom. The evidentiary hearing, following the summary judgment arguments and filings, however, has provided the Court with information that enables it to resolve the parties’ disagreements.", "This comes not from a study of the PECO Two Year Agreements, however, but rather from a newfound appreciation of what was said, and not said, about the meaning of the word “deliveries” as it relates to electricity as used in the Letter Agreement. The test to determine “actual availability” agreed to by AES and the users in the Letter Agreement had as its purpose to create a simple way of determining whether PECO’s participation in the Power Options Program with HEFA’s members was a “real deal” or just a “financial deal.”6 The selected language — \"commenced deliveries of electricity\" — was authored by AES and was included in its draft of the Letter Agreement first presented by its counsel at the May 13, 1998, meeting. The language used, however, was never changed and was not discussed; everyone present was quite content that they understood exactly what it meant.", "No one testified to attributing any special industry custom or meaning to the words. In fact, however, everyone employed a word that did not comfortably fit the situation. It has become clear to this Court from the evidentiary hearing that the word “deliveries” was miscast. What all of the parties really intended was a word or words that would better reflect what actually happens in the real world of electric power generation and from 599what source and in what manner the watts actually arrive at the user.", "Only one witness presented testimony and evidence about the way that electricity is made available to users. This witness was Douglas Stevenson (“Stevenson”), owner of Energy Options Consulting Group, LLC, a man with extensive credentials and experience in the electric power industry, and whom the Court found to be wholly credible. Stevenson used the analogy of a lake7 to explain the provision of electricity. He described how a power company like PECO “pours” electricity into a large common “lake” — in the power industry, the lake is called the grid — and “delivers” electricity when its customers (to whom it is contractually obligated and for whom it is financially responsible) draw electricity out of the “lake,” or grid. Within one hour of electricity being drawn by a PECO customer from the grid, PECO must “replenish” the amount drawn by its customer either by “pouring\" in more of its own electricity or by purchasing electricity from others to be “poured” in. In assessing this process, one can readily see why the word “deliveries” is not the best choice for describing this function. In the electric industry, customers become “enrolled” by electricity producers.", "When a new producer, like PECO here, comes into an area already served by a local power supplier, the enrollment process can take about a month to complete. This is because of the connection between enrollment and the reading of electric meters. Only approximately 5% of all meters are read on any given business day. There being about twenty business days in a month, it takes about a month for a complete changeover from one supplier, like Boston Edison and Massachusetts Electric here, to another, like PECO here.", "Once a customer has been enrolled by a new power supplier, the fact of that enrollment is expressed on the next bill from the old supplier. Here, for example, the Boston Edison bill to Beth Israel Health Care in Chelsea, dated March 19, 1999, recited: “YOUR NEXT BILL WILL REFLECT SUPPLIER SERVICES FROM EXELON ENERGY.” Similarly, the Massachusetts Electric bill to Nashoba Community Hospital, dated March 26, 1999, bore the notation: “OUR RECORDS INDICATE THAT YOU HAVE SWITCHED YOUR SUPPLIER OPTION TO HORIZON ENERGY, DBA EXELON ENERGY.” Each of the foregoing examples were bills for electricity “delivered” by the old suppliers prior to the end of March 1999. The next bills reflect electricity “delivered” by PECO “commencing” before April 1, 1999. Stevenson provided evidence that starting in the first two weeks of March 1999, PECO began enrolling the eligible accounts for the designated reference hospitals, and that before April 1, 1999, five of those hospitals had 100% of their eligible accounts enrolled with PECO.", "Once an account was enrolled with PECO, starting with the next meter reading. PECO became responsible for “delivering” electricity to that account by “pouring” electricity into the grid and for “settling up” for that account’s withdrawals from the grid. Stevenson provided evidence that six of the designated hospitals began “receiving” electricity from PECO before April 1, 1999, and that, by April 15, 1999, at the end of the monthly meter cycle, all accounts at five of the designated hospitals were “receiving” from PECO. During the first month alone, PECO was credited with delivering 400 million watt hours of electricity to the designated hospitals, and during the first year an estimated 29 billion watt hours. This was conceded by the President and Chief Operating Officer of AES to be the delivery by PECO of a “substantial amount” of electricity to the designated hospitals. PECO’s participation in the Power Options Program with the designated hospitals was clearly shown to be a “real deal.” By April 1, 1999, PECO had commenced “deliveries” of electricity to six of the designated hospitals and had enrolled 90% of the eligible accounts at all of the designated hospitals.", "Thus, this Court rules that a proper understanding of the method by which electricity is “delivered” through the grid in Massachusetts mandates a conclusion that electricity from PECO became “actually available” to a majority of the designated hospitals by the beginning of “deliveries” under a majority of the PECO Two Year Agreements by April 1, 1999. What was in issue here were not the details of PECO’s Two Year Agreements, but rather whether PECO actually provided electricity or instead was only-involved in exchanging money. The language the parties chose — \"commenced the deliveries of electricity under a majority of the Two Year Agreements\" — had no other limiting words. The Letter Agreement itself defined references to “a majority of the Two Year Agreements” to mean “a majority of those Two Year Agreements set forth on Exhibit B.” Exhibit B merely listed the names of “seven” hospitals.", "Thus the “deliveries of electricity” were to designated hospitals, not to certain unidentified or undefined accounts or meters at those hospitals. “Accounts” and “meters\" were never a topic of any discussion among the parties, but comparable hospitals always were. This Court cannot, nor should it, add language to the Letter Agreement relating to “meters” or “accounts” that the parties themselves chose not to include. H.W. Golden & Sons v. Marblehead, 68 F.2d 875 (1st Cir. 1934). ORDER This Court finds, on the narrow issue of the parties’ intent as to whether electricity from PECO was “actually available” as contemplated in the test included in the several Letter Agreements of June 1, 1998, between the plaintiffs and MATEP, that a proper interpretation of those Letter Agreements mandates a conclusion that electricity from PECO would become “actually available” — as the evidence shows it did — on 600or before April 1, 1999, by PECO’s enrollments and beginning of “deliveries” pursuant thereto of electricity to a majority of the hospitals designated on Exhibit B. As a consequence, the plaintiffs are entitled to recover their respective pro-rata shares from the escrow account. The plaintiffs’ several motions for partial summary judgment are ALLOWED insofar as they relate to all issues of liability as set out in their several complaints and as to Count I of the defendants’ counterclaims. To the extent that the defendants press cross motions for summary judgment they are DENIED. Four other actions against the same defendants have been consolidated for essentially identical summary judgment motions: The Brigham and Women’s Hospital Inc. v. MATEP LLC, et al.", "(Civil Action No. 99-4531 BLS); The Children’s Hospital Corporation v. MATEP LLC, et al. (Civil Action No. 99-4532 BLS); Dana-Farber Cancer Institute, Inc. v. MATEP LLC, et al. (Civil Action No. 99-4533 BLS); and Joslin Diabetes Center, Inc. v. MATEP LLC, et al. (Civil Action No. 99-4534 BLS). Each of the plaintiffs executed an identical Letter Agreement. PECO does business in Massachusetts through a subsidiary, Horizon Energy, d/b/a Exelon Energy. This memorandum uses “PECO” to refer to all of its entities doing business in Massachusetts.", "The Power Options Program was created by the Massachusetts Health and Education Facilities Authority (“HEFA”), and the program had as its purpose securing electricity supplies for its member institutions following deregulation of the electric industry. The “seven” hospitals were: Beth Israel Deaconess Medical Center; Beverly Hospital; Community Hospitals of Eastern Middlesex; Deaconess Nashoba Hospital; Deaconess Glover Hospital; Deaconess Waltham Hospital; Massachusetts Eye and Ear Infirmary; and New England Medical Center. The reason that eight, rather than seven, hospitals are listed in this footnote, is that there was an error in the list attached as Exhibit B to the Letter Agreement. Deaconess Glover Hospital and Deaconess Waltham Hospital, although wholly separate institutions, were listed as one: “Deaconess Glover Waltham Hospital.\"", "Nothing turns on this error. Implicit, of course, in agreeing to the test of “deliveries” to the designated hospitals is acceptance of the comparability issues, leaving only the “real deal” versus “financial deal” issue for resolution. A reservoir might have been even more apt." ]	https://www.courtlistener.com/api/rest/v3/opinions/8323225/	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
210 Ga. App. 515 (1993) 436 S.E.2d 573 HOWARD v. BURCH. A93A1658. Court of Appeals of Georgia. Decided October 12, 1993. Edgar W. Howard, pro se. Michael J. Bowers, Attorney General, Neal B. Childers, Assistant Attorney General, for appellee. COOPER, Judge. Appellant, an inmate, filed a pro se action denominated a "tort action" against appellee, a correctional officer at the facility where appellant was housed. Appellant alleged in the action that appellee was liable for libel and slander for writing false disciplinary reports. The case was set for a hearing on a November 1992 non-jury calendar, but due to the volume of cases on that calendar, appellant's case was tentatively rescheduled for January 1993. Appellee subsequently moved to dismiss the complaint on the grounds that appellee was immune *516 from suit pursuant to the Georgia Tort Claims Act, OCGA § 50-21-20 et seq. Appellant did not respond to the motion, and the court entered an order granting the motion to dismiss on March 29, 1993. The trial judge found that appellee was an employee of the Georgia Department of Corrections, that his actions were related to the performance of his official duties and that appellant's action was barred by the Georgia Tort Claims Act. Appellant filed a notice of appeal from "the decision of this court. . . in his refusal to hear this case and hold a hearing and render a decision in the above styled case. . . ." Although appellant's notice of appeal is deficient in failing to specify the order from which the appeal is taken, we will give appellant as a pro se litigant, the benefit of the doubt and treat his appeal as being taken from the March 29, 1993 order dismissing his case. Consequently, appellee's request that the appeal be dismissed is denied. The Georgia Tort Claims Act "provides for a waiver of the state's sovereign immunity for `torts of state officers and employees while acting within the scope of their official duties or employment,' OCGA § 50-21-23 (a), unless the alleged tortious act falls within one of the exceptions set forth in OCGA § 50-21-24. The instant claim[s] [are] so excluded, as the Act provides that the state will have `no liability for losses resulting from . . . [libel and slander].' OCGA § 50-21-24 (7)." Collier v. Whitworth, 205 Ga. App. 758, 759 (423 SE2d 440) (1992). Accordingly, we find no error with the trial court's dismissal of appellant's action. Appellant's argument that the trial court should have held a hearing on appellee's motion to dismiss is without merit since Rule 6.3 of the Uniform Superior Court Rules does not mandate that such a hearing be held. Datz v. Brinson, 208 Ga. App. 455, 456 (4) (430 SE2d 823) (1993). Similarly, appellant's contention that the trial judge failed to recuse himself presents nothing for review since the record does not reflect that appellant made a request for recusal. Judgment affirmed. Beasley, P. J., and Smith, J., concur.	10-30-2013	[ "210 Ga. App. 515 (1993) 436 S.E.2d 573 HOWARD v. BURCH. A93A1658. Court of Appeals of Georgia. Decided October 12, 1993. Edgar W. Howard, pro se. Michael J. Bowers, Attorney General, Neal B. Childers, Assistant Attorney General, for appellee. COOPER, Judge. Appellant, an inmate, filed a pro se action denominated a \"tort action\" against appellee, a correctional officer at the facility where appellant was housed. Appellant alleged in the action that appellee was liable for libel and slander for writing false disciplinary reports. The case was set for a hearing on a November 1992 non-jury calendar, but due to the volume of cases on that calendar, appellant's case was tentatively rescheduled for January 1993.", "Appellee subsequently moved to dismiss the complaint on the grounds that appellee was immune *516 from suit pursuant to the Georgia Tort Claims Act, OCGA § 50-21-20 et seq. Appellant did not respond to the motion, and the court entered an order granting the motion to dismiss on March 29, 1993. The trial judge found that appellee was an employee of the Georgia Department of Corrections, that his actions were related to the performance of his official duties and that appellant's action was barred by the Georgia Tort Claims Act. Appellant filed a notice of appeal from \"the decision of this court. . . in his refusal to hear this case and hold a hearing and render a decision in the above styled case.", ". . .\" Although appellant's notice of appeal is deficient in failing to specify the order from which the appeal is taken, we will give appellant as a pro se litigant, the benefit of the doubt and treat his appeal as being taken from the March 29, 1993 order dismissing his case. Consequently, appellee's request that the appeal be dismissed is denied. The Georgia Tort Claims Act \"provides for a waiver of the state's sovereign immunity for `torts of state officers and employees while acting within the scope of their official duties or employment,' OCGA § 50-21-23 (a), unless the alleged tortious act falls within one of the exceptions set forth in OCGA § 50-21-24.", "The instant claim[s] [are] so excluded, as the Act provides that the state will have `no liability for losses resulting from . . . [libel and slander].' OCGA § 50-21-24 (7).\" Collier v. Whitworth, 205 Ga. App. 758, 759 (423 SE2d 440) (1992). Accordingly, we find no error with the trial court's dismissal of appellant's action. Appellant's argument that the trial court should have held a hearing on appellee's motion to dismiss is without merit since Rule 6.3 of the Uniform Superior Court Rules does not mandate that such a hearing be held. Datz v. Brinson, 208 Ga. App. 455, 456 (4) (430 SE2d 823) (1993). Similarly, appellant's contention that the trial judge failed to recuse himself presents nothing for review since the record does not reflect that appellant made a request for recusal. Judgment affirmed. Beasley, P. J., and Smith, J., concur." ]	https://www.courtlistener.com/api/rest/v3/opinions/1229787/	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
Name: 98/379/EC: Council Decision of 11 May 1998 on the provisional application of the Agreement between the European Community and the Russian Federation on trade in textile products Type: Decision Subject Matter: European construction; Europe; leather and textile industries Date Published: 1998-06-15 15.6.1998 EN Official Journal of the European Communities L 169/1 COUNCIL DECISION of 11 May 1998 on the provisional application of the Agreement between the European Community and the Russian Federation on trade in textile products (98/379/EC) THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular Article 113 thereof, in conjunction with the first sentence of Article 228(2) thereof, Having regard to the proposal from the Commission, Whereas the Commission has negotiated on behalf of the Community an Agreement between the European Community and the Russian Federation on trade in textile products, initialled on 28 March 1998; Whereas this Agreement should be applied on a provisional basis from 1 May 1998 pending the completion of the procedures necessary for its conclusion, subject to reciprocal provisional application of the Agreement by the Russian Federation, HAS DECIDED AS FOLLOWS: Article 1 The Agreement between the European Community and the Russian Federation on trade in textile products shall be applied on a provisional basis from 1 May 1998 pending its formal conclusion and subject to reciprocal provisional application of the Agreement by the Russian Federation. The text of the Agreement is annexed to this Decision. Article 2 This Decision shall be published in the Official Journal of the European Communities. Done at Brussels, 11 May 1998. For the Council The President J. BATTLE	1998-06-15	[ "Name: 98/379/EC: Council Decision of 11 May 1998 on the provisional application of the Agreement between the European Community and the Russian Federation on trade in textile products Type: Decision Subject Matter: European construction; Europe; leather and textile industries Date Published: 1998-06-15 15.6.1998 EN Official Journal of the European Communities L 169/1 COUNCIL DECISION of 11 May 1998 on the provisional application of the Agreement between the European Community and the Russian Federation on trade in textile products (98/379/EC) THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular Article 113 thereof, in conjunction with the first sentence of Article 228(2) thereof, Having regard to the proposal from the Commission, Whereas the Commission has negotiated on behalf of the Community an Agreement between the European Community and the Russian Federation on trade in textile products, initialled on 28 March 1998; Whereas this Agreement should be applied on a provisional basis from 1 May 1998 pending the completion of the procedures necessary for its conclusion, subject to reciprocal provisional application of the Agreement by the Russian Federation, HAS DECIDED AS FOLLOWS: Article 1 The Agreement between the European Community and the Russian Federation on trade in textile products shall be applied on a provisional basis from 1 May 1998 pending its formal conclusion and subject to reciprocal provisional application of the Agreement by the Russian Federation.", "The text of the Agreement is annexed to this Decision. Article 2 This Decision shall be published in the Official Journal of the European Communities. Done at Brussels, 11 May 1998. For the Council The President J. BATTLE" ]	https://dataverse.harvard.edu/dataset.xhtml?persistentId=doi:10.7910/DVN/0EGYWY	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
Court of Appeals of the State of Georgia ATLANTA, November 20, 2019 The Court of Appeals hereby passes the following order A20I0094. LEMONTREE PROPERTIES, LLC v. JOHN SAMPLES et al. 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: 18SUCV0343 Court of Appeals of the State of Georgia Clerk's Office, Atlanta, November 20, 2019. 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.	12-04-2019	[ "Court of Appeals of the State of Georgia ATLANTA, November 20, 2019 The Court of Appeals hereby passes the following order A20I0094. LEMONTREE PROPERTIES, LLC v. JOHN SAMPLES et al. 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: 18SUCV0343 Court of Appeals of the State of Georgia Clerk's Office, Atlanta, November 20, 2019. 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/4461017/	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 . 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 February 23, 2022 has been entered. 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. Claims 14, 15 and 18 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Antier et al. (U.S. 2009/0184082). Antier et al. teaches a finish portion (1; figure 1) of a preform for rotatably engaging with a tamper evidence closure 41 to seal contents within an interior of a container formed from the preform, the finish portion 1 comprising a cylindrical body that includes an opening (at upper end of 1) to an interior and extends to and includes a tamper evidence ledge 16, the cylindrical body including a stepped interior having, sequentially, a first surface with a first diameter (at lead line 1 in figure 1), and a second surface with a second diameter (the portion of the neck from which the threads extend, shown adjacent lead line 11 in figure 1) less than the first diameter, and a third surface with a third diameter (at lead line 14 in figure 1) equal to or less than the second diameter, one or more threads 11 configured to fasten the tamper evidence closure to the container, a valley disposed between the one or more threads (valley shown between threads 11 in figure 1), and a handling valley (between 11 and 16) disposed between the one or more threads and the tamper evidence ledge. Regarding claim 15, an outer diameter of the handling valley is opposite the second surface of the stepped interior (adjacent lead line 11 in figure 1). Regarding claim 18, the tamper evidence ledge presents a smoothly contoured edge, as shown in figure 3 at lead line 16. Claims 14-17 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Okuyama et al. (U.S. 2019/0367203). Okuyama et al. teaches a finish portion (10; figure 3) of a preform 1 for rotatably engaging with a tamper evidence closure to seal contents within an interior of a container formed from the preform (paragraph [0005]), the finish portion 10 comprising a cylindrical body that includes an opening (at upper end of 10, at 10b) to an interior and extends to and includes a tamper evidence ledge . Regarding claim 15, an outer diameter of the handling valley 11 is opposite the second surface of the stepped interior (the portion of inner surface opposite 11; figure 3). Regarding claim 16, an outer diameter of the valley (between threads 12) is opposite the first surface of the stepped interior (interior surface of 10a; figure 3). Regarding claim 17, the valley disposed between the one or more threads has an outer diameter that is greater than an outer diameter of the handling valley 11 (figure 3). Response to Arguments Applicant's arguments filed June 28, 2021 have been fully considered but they are not persuasive. Applicant’s arguments with respect to the claims 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 THIS ACTION IS MADE NON-FINAL. Any inquiry concerning this communication or earlier communications from the examiner should be directed to NIKI MARINA ELOSHWAY whose telephone number is (571)272-4538. The examiner can normally be reached on Monday through Friday 7: 00 a.m. to 3:00 p.m.. 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, Gregory Pickett can be reached on 571-272-4560. 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. /NIKI M ELOSHWAY/Examiner, Art Unit 3736	2022-03-17T11:54:04	[ "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 . 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 February 23, 2022 has been entered.", "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.", "Claims 14, 15 and 18 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Antier et al. (U.S. 2009/0184082). Antier et al. teaches a finish portion (1; figure 1) of a preform for rotatably engaging with a tamper evidence closure 41 to seal contents within an interior of a container formed from the preform, the finish portion 1 comprising a cylindrical body that includes an opening (at upper end of 1) to an interior and extends to and includes a tamper evidence ledge 16, the cylindrical body including a stepped interior having, sequentially, a first surface with a first diameter (at lead line 1 in figure 1), and a second surface with a second diameter (the portion of the neck from which the threads extend, shown adjacent lead line 11 in figure 1) less than the first diameter, and a third surface with a third diameter (at lead line 14 in figure 1) equal to or less than the second diameter, one or more threads 11 configured to fasten the tamper evidence closure to the container, a valley disposed between the one or more threads (valley shown between threads 11 in figure 1), and a handling valley (between 11 and 16) disposed between the one or more threads and the tamper evidence ledge. Regarding claim 15, an outer diameter of the handling valley is opposite the second surface of the stepped interior (adjacent lead line 11 in figure 1).", "Regarding claim 18, the tamper evidence ledge presents a smoothly contoured edge, as shown in figure 3 at lead line 16. Claims 14-17 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Okuyama et al. (U.S. 2019/0367203). Okuyama et al. teaches a finish portion (10; figure 3) of a preform 1 for rotatably engaging with a tamper evidence closure to seal contents within an interior of a container formed from the preform (paragraph [0005]), the finish portion 10 comprising a cylindrical body that includes an opening (at upper end of 10, at 10b) to an interior and extends to and includes a tamper evidence ledge .", "Regarding claim 15, an outer diameter of the handling valley 11 is opposite the second surface of the stepped interior (the portion of inner surface opposite 11; figure 3). Regarding claim 16, an outer diameter of the valley (between threads 12) is opposite the first surface of the stepped interior (interior surface of 10a; figure 3). Regarding claim 17, the valley disposed between the one or more threads has an outer diameter that is greater than an outer diameter of the handling valley 11 (figure 3). Response to Arguments Applicant's arguments filed June 28, 2021 have been fully considered but they are not persuasive. Applicant’s arguments with respect to the claims 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 THIS ACTION IS MADE NON-FINAL. Any inquiry concerning this communication or earlier communications from the examiner should be directed to NIKI MARINA ELOSHWAY whose telephone number is (571)272-4538. The examiner can normally be reached on Monday through Friday 7: 00 a.m. to 3:00 p.m..", "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, Gregory Pickett can be reached on 571-272-4560. 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. /NIKI M ELOSHWAY/Examiner, Art Unit 3736" ]	https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-03-20.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 is being examined under the pre-AIA first to invent provisions. Allowable Subject Matter Claims 1-2, 4, 6-12, 14-17 and 19-20 are allowed. The following is a statement of reasons for the indication of allowable subject matter: The closest prior art of record of Jiang, Neff and Sakhpara discloses a system for displaying the popularity of event in an area. The references alone or in combination however fail to teach or suggest identifying individuals that have purchased tickets to the upcoming event and using social attributes of the ticket sales attendees to determine the popularity of the event. Therefore the claims are patentable over the prior art. Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to Andrea Long whose telephone Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, William Bashore can be reached on 571-272-4088. 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. /ANDREA N LONG/Primary Examiner, Art Unit 2175	2021-03-09T18:02:05	[ "DETAILED ACTION Notice of Pre-AIA or AIA Status The present application is being examined under the pre-AIA first to invent provisions. Allowable Subject Matter Claims 1-2, 4, 6-12, 14-17 and 19-20 are allowed. The following is a statement of reasons for the indication of allowable subject matter: The closest prior art of record of Jiang, Neff and Sakhpara discloses a system for displaying the popularity of event in an area. The references alone or in combination however fail to teach or suggest identifying individuals that have purchased tickets to the upcoming event and using social attributes of the ticket sales attendees to determine the popularity of the event. Therefore the claims are patentable over the prior art. Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to Andrea Long whose telephone Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, William Bashore can be reached on 571-272-4088.", "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. /ANDREA N LONG/Primary Examiner, Art Unit 2175" ]	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
Citation Nr: 0523438 Decision Date: 08/25/05 Archive Date: 09/09/05 DOCKET NO. 03-14 028 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for low back degenerative disc disease. 2. Entitlement to service connection for a skin disorder. REPRESENTATION Appellant represented by: Nevada Office of Veterans' Services ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The veteran served on active duty from October 1965 to July 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. This case was previously before the Board in February 2004 and was remanded for the purpose of affording the veteran VA examinations. FINDING OF FACT VA examiners have linked low back disc disease and cicatrix to the veteran's military service. CONCLUSIONS OF LAW 1. Low back disc disease was incurred in the veteran's active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2004). 2. A skin disorder (cicatrix) was incurred in the veteran's active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2004). REASONS AND BASES FOR FINDING AND CONCLUSIONS In light of the following decision, there is no prejudice to the veteran by the Board proceeding with the issues on appeal at this time without reviewing the provisions of the Veterans Claims Assistance Act of 2000 (VCAA). Service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. I. Back disorder The veteran asserts that he suffers from back problems as a result of being required to repetitively lift heavy objects (including military radios) over distances of many miles. While service medical records reveal no treatment for a back condition, a service comrade statement received in August 2000 reflects that the veteran did complain of back pain during his service in Vietnam. On the question of whether the veteran's low back disc disease is related to his military service, the Board notes that the September 2004 VA neurological examiner and the January 2005 VA spine examiner are in disagreement (the September 2004 VA examiner stated that the veteran's disc disease was related to his military service). Both examiner's reviewed the record and conducted a thorough examination of the veteran. Following a review of the examinations, the rationale provided, and the qualifications of the examiners, the Board is unable to distinguish the two opinions. In such cases, reasonable doubt must be resolved in favor of the veteran. As such, service connection for low back disc disease is warranted. II. Skin A January 2005 VA skin examiner has indicated that the veteran's cicatrix is (as likely as not) related to exposure to Agent Orange. A review of the January 2005 dermatology examination indicates that the examiner noted the veteran's medical history, including the service complaints of a lump that was located on the veteran's neck. The Board notes that the veteran had service in Vietnam, and exposure to Agent Orange is presumed. The Board finds the January 2005 examiner's opinion to be based on a review of the evidence and accompanied by a sound rationale for the opinion of etiology expressed. As such, the Board finds that service connection for a skin disorder (cicatrix) is warranted. See generally Combee v. Brown, 34 F. 3d 1039 (Fed Cir. 1994). ORDER Service connection for degenerative changes of the lumbar spine is granted. Service connection for a skin disorder (cicatrix) is granted. ____________________________________________ V. L. Jordan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs	08-25-2005	[ "Citation Nr: 0523438 Decision Date: 08/25/05 Archive Date: 09/09/05 DOCKET NO. 03-14 028 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for low back degenerative disc disease. 2. Entitlement to service connection for a skin disorder. REPRESENTATION Appellant represented by: Nevada Office of Veterans' Services ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The veteran served on active duty from October 1965 to July 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. This case was previously before the Board in February 2004 and was remanded for the purpose of affording the veteran VA examinations. FINDING OF FACT VA examiners have linked low back disc disease and cicatrix to the veteran's military service. CONCLUSIONS OF LAW 1.", "Low back disc disease was incurred in the veteran's active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2004). 2. A skin disorder (cicatrix) was incurred in the veteran's active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2004). REASONS AND BASES FOR FINDING AND CONCLUSIONS In light of the following decision, there is no prejudice to the veteran by the Board proceeding with the issues on appeal at this time without reviewing the provisions of the Veterans Claims Assistance Act of 2000 (VCAA). Service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in active military service.", "38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. I. Back disorder The veteran asserts that he suffers from back problems as a result of being required to repetitively lift heavy objects (including military radios) over distances of many miles. While service medical records reveal no treatment for a back condition, a service comrade statement received in August 2000 reflects that the veteran did complain of back pain during his service in Vietnam. On the question of whether the veteran's low back disc disease is related to his military service, the Board notes that the September 2004 VA neurological examiner and the January 2005 VA spine examiner are in disagreement (the September 2004 VA examiner stated that the veteran's disc disease was related to his military service). Both examiner's reviewed the record and conducted a thorough examination of the veteran. Following a review of the examinations, the rationale provided, and the qualifications of the examiners, the Board is unable to distinguish the two opinions. In such cases, reasonable doubt must be resolved in favor of the veteran. As such, service connection for low back disc disease is warranted. II.", "Skin A January 2005 VA skin examiner has indicated that the veteran's cicatrix is (as likely as not) related to exposure to Agent Orange. A review of the January 2005 dermatology examination indicates that the examiner noted the veteran's medical history, including the service complaints of a lump that was located on the veteran's neck. The Board notes that the veteran had service in Vietnam, and exposure to Agent Orange is presumed. The Board finds the January 2005 examiner's opinion to be based on a review of the evidence and accompanied by a sound rationale for the opinion of etiology expressed. As such, the Board finds that service connection for a skin disorder (cicatrix) is warranted. See generally Combee v. Brown, 34 F. 3d 1039 (Fed Cir. 1994). ORDER Service connection for degenerative changes of the lumbar spine is granted.", "Service connection for a skin disorder (cicatrix) is granted. ____________________________________________ V. L. Jordan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs" ]	https://drive.google.com/drive/folders/12lAd8Os7VFeqbTKi4wcqJqODjHIn0-yQ?usp=sharing	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
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 Status of Claims Claims 1-8 and 12 are pending in this application. Claims 9-11 and 13-18 have been cancelled. This is the third action on the merits. This action is in response to the applicants’ filing of an amendment to a non-final office action on February 3, 2021. Withdrawn Rejections/Objections Applicant is notified that any outstanding rejection/objection that is not expressly maintained in this office action has been withdrawn or rendered moot in view of applicant's amendments and/or remarks. Examiner’s Statement of Reasons for Allowance Claims 1-8 and 12 are allowed. Claims 1-8 and 12 are free of the prior art. The examiner performed a chemical structure as well as an inventor and classification search to identify any potential prior art. The Examiner was unable to identify any prior art which contained the limitations seen in the present application with regards to a compound of Formula (I) or a process for preparing a composition containing a compound of Formula (I). Conclusion Claims 1-8 and 12 are allowed. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Fereydoun Sajjadi can be reached at 571-272-3311. 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. /Jeffrey H Murray/ Primary Examiner, Art Unit 1699	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 Status of Claims Claims 1-8 and 12 are pending in this application. Claims 9-11 and 13-18 have been cancelled. This is the third action on the merits. This action is in response to the applicants’ filing of an amendment to a non-final office action on February 3, 2021. Withdrawn Rejections/Objections Applicant is notified that any outstanding rejection/objection that is not expressly maintained in this office action has been withdrawn or rendered moot in view of applicant's amendments and/or remarks. Examiner’s Statement of Reasons for Allowance Claims 1-8 and 12 are allowed.", "Claims 1-8 and 12 are free of the prior art. The examiner performed a chemical structure as well as an inventor and classification search to identify any potential prior art. The Examiner was unable to identify any prior art which contained the limitations seen in the present application with regards to a compound of Formula (I) or a process for preparing a composition containing a compound of Formula (I). Conclusion Claims 1-8 and 12 are allowed. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Fereydoun Sajjadi can be reached at 571-272-3311. 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. /Jeffrey H Murray/ Primary Examiner, Art Unit 1699" ]	https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-03-07.zip	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
Exhibit 10.2.12 EMPLOYMENT AGREEMENT between HENRY J. HOOD and CHESAPEAKE ENERGY CORPORATION Effective July 1, 2003 -------------------------------------------------------------------------------- EMPLOYMENT AGREEMENT THIS AGREEMENT is made effective July 1, 2003, between CHESAPEAKE ENERGY CORPORATION, an Oklahoma corporation (the “Company”), and HENRY J. HOOD, an individual (the “Executive”). W I T N E S S E T H: WHEREAS, the Company desires to retain the services of the Executive and the Executive desires to make the Executive’s services available to the Company. NOW, THEREFORE, in consideration of the mutual promises herein contained, the Company and the Executive agree as follows: 1. Employment. The Company hereby employs the Executive and the Executive hereby accepts such employment subject to the terms and conditions contained in this Agreement. The Executive is engaged as an employee of the Company, and the Executive and the Company do not intend to create a joint venture, partnership or other relationship which might impose a fiduciary obligation on the Executive or the Company in the performance of this Agreement. 2. Executive’s Duties. The Executive is employed on a full-time basis. Throughout the term of this Agreement, the Executive will use the Executive’s best efforts and due diligence to assist the Company in achieving the most profitable operation of the Company and the Company’s affiliated entities consistent with developing and maintaining a quality business operation. 2.1 Specific Duties. The Executive will serve as Senior Vice President – Land and Legal for the Company. The Executive will perform all of the services required to fully and faithfully execute the office and position to which the Executive is appointed and such other services as may be reasonably requested by the Executive’s supervisor. During the term of this Agreement, the Executive may be nominated for election or appointed to serve as a director or officer of the Company’s subsidiaries as determined in the board of directors’ sole discretion. The services of the Executive will be requested and directed by Mr. Aubrey K. McClendon. 2.2 Rules and Regulations. The Company currently has an Employment Policies Manual which sets forth the general human resources policies of the Company and addresses frequently asked questions regarding the Company. The Executive agrees to comply with the Employment Policies Manual except to the extent inconsistent with this Agreement. The Employment Policies Manual is subject to change without notice in the sole discretion of the Company at any time. 1 -------------------------------------------------------------------------------- 2.3 Stock Investment. The Executive agrees to hold not less than ten thousand (10,000) shares of the Company’s common stock at all times after September 30, 2003, and prior to the termination of this Agreement, exclusive of shares held by the Executive in the Company’s retirement plans. 3. Other Activities. Except as provided in this Agreement or approved by the Board, the Executive agrees not to: (a) engage in other business activities independent of the Company which individually or in the aggregate require a substantial portion of the Executive’s time; (b) except for passive investments which do not violate this Agreement, serve as a general partner, officer, employee, director or member of any corporation, partnership, company or firm; or (c) directly or indirectly invest, participate or engage in the Oil and Gas Business. For purposes of this Agreement the term “Oil and Gas Business” means: (i) producing oil and gas; (ii) drilling, owning or operating an interest in oil and gas leases or wells; (iii) providing material or services to the Oil and Gas Business; (iv) refining, processing or marketing oil or gas; or (v) owning an interest in or assisting any corporation, partnership, company, entity or person in any of the foregoing. The foregoing will not prohibit: (w) ownership of publicly traded securities; (x) ownership of royalty interests where the Executive owns the surface of the land covered by the royalty interest and the ownership of the royalty interest is incidental to the ownership of such surface estate; (y) ownership of royalty interests, overriding royalty interests, working interests or other interests in oil and gas owned prior to the Executive’s date of first employment with the company and disclosed to the Company in writing; or (z) ownership of royalty interests, overriding royalty interests, working interests or other interests in oil and gas acquired by the Executive through a bona fide gift or inheritance. 4. Executive’s Compensation. The Company agrees to compensate the Executive as follows: 4.1 Base Salary. A base salary (the “Base Salary”), at the initial annual rate of not less than Three Hundred Thousand Dollars ($300,000.00) will be paid to the Executive in equal semi-monthly installments beginning July 15, 2003 during the term of this Agreement. 4.2 Bonus. In addition to the Base Salary described at paragraph 4.1 of this Agreement, the Company may periodically pay bonus compensation to the Executive. Any bonus compensation will be at the absolute discretion of the Company in such amounts and at such times as the board of directors of the Company may determine. 4.3 Equity Compensation. In addition to the compensation set forth in paragraphs 4.1 and 4.2 of this Agreement, the Executive may periodically receive grants of stock options, restricted stock or other awards from the Company’s various equity compensation plans, subject to the terms and conditions thereof. 2 -------------------------------------------------------------------------------- 4.4 Benefits. The Company will provide the Executive such retirement benefits, reimbursement of reasonable expenditures for dues, travel and entertainment and such other benefits as are customarily provided by the Company and as are set forth in and governed by the Company’s Employment Policies Manual. The Company will also provide the Executive the opportunity to apply for coverage under the Company’s medical, life and disability plans, if any. If the Executive is accepted for coverage under such plans, the Company will make such coverage available to the Executive on the same terms as is customarily provided by the Company to the plan participants as modified from time to time. The following specific benefits will also be provided to the Executive at the expense of the Company: 4.4.1 Vacation. The Executive will be entitled to take four (4) weeks of paid vacation each twelve months during the term of this Agreement. No additional compensation will be paid for failure to take vacation and no vacation may be carried forward from one twelve month period to another. 4.4.2 Membership Dues. The Company will reimburse the Executive for: (a) the monthly dues necessary to maintain a full membership in a club in the Oklahoma City area selected by the Executive in an amount not to exceed Seven Hundred Fifty Dollars ($750.00) per month; and (b) the reasonable cost of any approved business entertainment at such club. All other costs, including, without implied limitation, any initiation costs, initial membership costs, personal use and business entertainment unrelated to the Company will be the sole obligation of the Executive and the Company will have no liability with respect to such amounts. 4.5 Change of Control Payment. If, during the term of this Agreement, there is a “Change of Control” the Executive will be entitled to a payment (in addition to any other amounts payable to the Executive under this Agreement or otherwise) in an amount equal to two hundred percent (200%) of the sum of the Executive’s then current Base Salary under paragraph 4.1 of this Agreement plus the bonuses paid to the Executive during the twelve (12) calendar months preceding the Change of Control under paragraph 4.2 of this Agreement or its predecessor. The right to such compensation is subject to the Executive’s continued compliance with each of the provisions of this Agreement. If the foregoing amount is not paid within thirty (30) days after a Change of Control the unpaid amount will bear interest at the per annum rate equal to twelve percent (12%). For the purpose of this Agreement, a “Change of Control” means the occurrence of any of the following: 3 -------------------------------------------------------------------------------- (a) the acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) (a “Person”) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of twenty percent (20%) or more of either (i) the then outstanding shares of common stock of the Company (the “Outstanding Company Common Stock”) or (ii) the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors (the “Outstanding Company Voting Securities”). For purposes of this paragraph, the following acquisitions by a Person will not constitute a Change of Control: (i) any acquisition directly from the Company; (ii) any acquisition by the Company; (iii) any acquisition by or sponsored by Mssrs. Aubrey K. McClendon and/or Tom L. Ward; (iv) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company or any corporation controlled by the Company; or (v) any acquisition by any corporation pursuant to a transaction which complies with clauses (i), (ii) and (iii) of paragraph (c) below; (b) the individuals who, as of June 15, 2003, constitute the board of directors (the “Incumbent Board”) cease for any reason to constitute at least a majority of the board of directors. Any individual becoming a director subsequent to the date hereof whose election, or nomination for election by the Company’s shareholders, is approved by a vote of at least a majority of the directors then comprising the Incumbent Board will be considered a member of the Incumbent Board as of the date hereof, but any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Incumbent Board will not be deemed a member of the Incumbent Board as of the date hereof; (c) the consummation of a reorganization, merger, consolidation or sale or other disposition of all or substantially all of the assets of the Company (a “Business Combination”), unless following such Business Combination: (i) all or substantially all of the individuals and entities who were the beneficial owners, respectively, of the Outstanding Company Common Stock and Outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than sixty percent (60%) of, respectively, the then outstanding shares of common stock and the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from such Business Combination (including, without limitation, a corporation which as a result of such transaction owns the Company 4 -------------------------------------------------------------------------------- or all or substantially all of the Company’s assets either directly or through one or more subsidiaries) in substantially the same proportions as their ownership, immediately prior to such Business Combination of the Outstanding Company Common Stock and Outstanding Company Voting Securities, as the case may be, (ii) no Person (excluding any corporation resulting from such Business Combination or any employee benefit plan (or related trust) of the Company or such corporation resulting from such Business Combination) beneficially owns, directly or indirectly, twenty percent (20%) or more of, respectively, the then outstanding shares of common stock of the corporation resulting from such Business Combination or the combined voting power of the then outstanding voting securities of such corporation except to the extent that such ownership existed prior to the Business Combination and (iii) at least a majority of the members of the board of directors of the corporation resulting from such Business Combination were members of the Incumbent Board at the time of the execution of the initial agreement, or of the action of the Board, providing for such Business Combination; or, (d) the approval by the shareholders of the Company of a complete liquidation or dissolution of the Company. 4.6 Compensation Review. The compensation of the Executive will be reviewed not less frequently than annually by the board of directors of the Company. 5. Term. The employment relationship evidenced by this Agreement is an “at will” employment relationship and the Company reserves the right to terminate the Executive at any time with or without cause as provided herein. In the absence of such termination, this Agreement will extend for a term of three (3) years and three (3) months commencing on July 1, 2003, and ending on September 30, 2006 (the “Expiration Date”). 6. Termination. This Agreement will continue in effect until the expiration of the term stated at paragraph 5 of this Agreement unless earlier terminated pursuant to this paragraph 6. 6.1 Termination by Company. The Company will have the following rights to terminate this Agreement: 6.1.1 Termination without Cause. The Company may terminate this Agreement without cause at any time by the service of written notice of termination to the Executive specifying an effective date of such termination not sooner than thirty (30) days after the date of such notice (the “Termination Date”). In the event the Executive is terminated without cause, the Executive will receive as termination compensation: (a) Base Salary for a period of one 5 -------------------------------------------------------------------------------- hundred eighty (180) days; (b) any benefits payable by operation of paragraph 4.4 of this Agreement; and (c) any vacation pay accrued through the Termination Date. The right to the foregoing termination compensation under clause (a) above: (i) is subject to the Executive’s execution of the Company’s standard termination agreement releasing all legally waivable claims against the Company and the Executive’s compliance with each of the provisions of this Agreement; and (ii) will be reduced by the number of days remaining in the one year period after any change of control payment under paragraph 4.5 of this Agreement. 6.1.2 Termination for Cause. The Company may terminate this Agreement for cause if the Executive: (a) misappropriates the property of the Company or commits any other act of dishonesty; (b) engages in personal misconduct which materially injures the Company; (c) willfully violates any law or regulation relating to the business of the Company which results in injury to the Company; or (d) willfully and repeatedly fails to perform the Executive’s duties hereunder. In the event this Agreement is terminated for cause, the Company will not have any obligation to provide any further payments or benefits to the Executive after the Termination Date. 6.2 Termination by Executive. The Executive may voluntarily terminate this Agreement with or without cause by the service of written notice of such termination to the Company specifying a Termination Date no sooner than thirty (30) days after the date of such notice. In the event this Agreement is terminated by the Executive, neither the Company nor the Executive will have any further obligations hereunder including, without limitation, any obligation of the Company to provide any further payments or benefits to the Executive after the Termination Date. 6.3 Incapacity of Executive. If the Executive suffers from a physical or mental condition which in the reasonable judgment of the Company’s management prevents the Executive in whole or in part from performing the duties specified herein for a period of three (3) consecutive months, the Executive may be terminated. Although the termination may be deemed as a termination for cause, any compensation payable under paragraph 4 of this Agreement will be continued for one hundred eighty (180) days following the Termination Date. Notwithstanding the foregoing, the Executive’s Base Salary specified in paragraph 4.1 of this Agreement will be reduced by any benefits payable under any disability plans provided by the Company under paragraph 4.4. The right to the compensation due under this paragraph 6.3 is subject to the execution by the Executive or the Executive’s legal representative of the Company’s standard termination agreement releasing all legally waivable claims against the Company. 6 -------------------------------------------------------------------------------- 6.4 Death of Executive. If the Executive dies during the term of this Agreement, the Company may thereafter terminate this Agreement without compensation to the Executive’s estate except: (a) the obligation to continue the Base Salary payments under paragraph 4.1 of this Agreement for one (1) year following the date of the Executive’s death; and (b) the benefits described in paragraph 4.4 of this Agreement accrued through the date of the Executive’s death. The right to the compensation due under this paragraph 6.4 is subject to the execution by the administrator of the Executive’s estate of the Company’s standard termination agreement releasing all legally waivable claims against the Company. 6.5 Effect of Termination. The termination of this Agreement will terminate all obligations of the Executive to render services on behalf of the Company from and after the Termination Date, provided that the Executive will maintain the confidentiality of all information acquired by the Executive during the term of Executive’s employment in accordance with paragraph 7 of this Agreement. Except as otherwise provided in paragraph 6 of this Agreement, no accrued bonus, severance pay or other form of compensation will be payable by the Company to the Executive by reason of the termination of this Agreement. All keys, entry cards, credit cards, files, records, financial information, furniture, furnishings, equipment, supplies and other items relating to the Company in the Executive’s possession will remain the property of the Company. The Executive will have the right to retain and remove all personal property and effects which are owned by the Executive and located in the offices of the Company. All such personal items will be removed from such offices no later than two (2) days after the Termination Date, and the Company is hereby authorized to discard any items remaining and to reassign the Executive’s office space after such date. Prior to the Termination Date, the Executive will render such services to the Company as might be reasonably required to provide for the orderly termination of the Executive’s employment. Notwithstanding the foregoing and without discharging any obligations to pay compensation to the Executive under this Agreement, after notice of the Termination, the Company may request that the Executive not provide any other services to the Company and not enter the Company’s premises before or after the Termination Date. 7. Confidentiality. The Executive recognizes that the nature of the Executive’s services are such that the Executive will have access to information which constitutes trade secrets, is of a confidential nature, is of great value to the Company or is the foundation on which the business of the Company is predicated. The Executive agrees not to disclose to any person other than the Company’s employees or the Company’s 7 -------------------------------------------------------------------------------- legal counsel nor use for any purpose, other than the performance of this Agreement, any confidential information (“Confidential Information”). Confidential Information includes data or material (regardless of form) which is: (a) a trade secret; (b) provided, disclosed or delivered to Executive by the Company, any officer, director, employee, agent, attorney, accountant, consultant, or other person or entity employed by the Company in any capacity, any customer, borrower or business associate of the Company or any public authority having jurisdiction over the Company of any business activity conducted by the Company; or (c) produced, developed, obtained or prepared by or on behalf of Executive or the Company (whether or not such information was developed in the performance of this Agreement) with respect to the Company or any assets oil and gas prospects, business activities, officers, directors, employees, borrowers or customers of the foregoing. However, Confidential Information shall not include any information, data or material which at the time of disclosure or use was generally available to the public other than by a breach of this Agreement, was available to the party to whom disclosed on a non-confidential basis by disclosure or access provided by the Company or a third party, or was otherwise developed or obtained independently by the person to whom disclosed without a breach of this Agreement. On request by the Company, the Company will be entitled to the return of any Confidential Information in the possession of the Executive. The Executive also agrees that the provisions of this paragraph 7 will survive the termination, expiration or cancellation of this Agreement for a period of three (3) years. The Executive will deliver to the Company all originals and copies of the documents or materials containing Confidential Information. For purposes of paragraphs 7, 8, and 9 of this Agreement, the Company expressly includes any of the Company’s affiliated corporations, partnerships or entities. 8. Noncompetition. For a period of six (6) months after the Executive is no longer employed by the Company as a result of either the termination of or resignation by the Executive, the Executive will not acquire, attempt to acquire or aid another in the acquisition or attempted acquisition of an interest in oil and gas assets, oil and gas production, oil and gas leases, mineral interests, oil and gas wells or other such oil and gas exploration, development or production activities within any spacing unit in which the Company owns an oil and gas interest on the date of the resignation or termination of the Executive. In addition, the Executive will not solicit, induce, entice or attempt to entice any employee, contractor, customer, vendor or subcontractor to terminate or breach any relationship with the Company or the Company’s affiliates for the Executive’s own account or for the benefit of another party. The Executive further agrees that the Executive will not circumvent or attempt to circumvent the foregoing agreements by any future arrangement or through the actions of a third party. The foregoing will not prohibit the activities which are expressly permitted by the last sentence of paragraph 3 of this Agreement. 9. Proprietary Matters. The Executive expressly understands and agrees that any and all improvements, inventions, discoveries, processes, know-how or intellectual property that are generated or conceived by the Executive during the term of this Agreement, whether generated or conceived during the Executive’s regular working hours or otherwise, will be the sole and exclusive property of the Company. Whenever 8 -------------------------------------------------------------------------------- requested by the Company (either during the term of this Agreement or thereafter), the Executive will assign or execute any and all applications, assignments and or other instruments and do all things which the Company deems necessary or appropriate in order to permit the Company to: (a) assign and convey or otherwise make available to the Company the sole and exclusive right, title, and interest in and to said improvements, inventions, discoveries, processes, know-how, applications, patents, copyrights, trade names or trademarks; or (b) apply for, obtain, maintain, enforce and defend patents, copyrights, trade names, or trademarks of the United States or of foreign countries for said improvements, inventions, discoveries, processes or know-how. However, the improvements, inventions, discoveries, processes or know-how generated or conceived by the Executive and referred to above (except as they may be included in the patents, copyrights or registered trade names or trademarks of the Company, or corporations, partnerships or other entities which may be affiliated with the Company) shall not be exclusive property of the Company at any time after having been disclosed or revealed or have otherwise become available to the public or to a third party on a non-confidential basis other than by a breach of this Agreement, or after they have been independently developed or discussed without a breach of this Agreement by a third party who has no obligation to the Company or its affiliates. The foregoing will not prohibit any activities which are expressly permitted by the last sentence of paragraph 3 of this Agreement during the term of this Agreement. 10. Arbitration. The parties will attempt to promptly resolve any dispute or controversy arising out of or relating to this Agreement or termination of the Executive by the Company. Any negotiations pursuant to this paragraph 10 are confidential and will be treated as compromise and settlement negotiations for all purposes. If the parties are unable to reach a settlement amicably, the dispute will be submitted to binding arbitration before a single arbitrator in accordance with the Employment Dispute Resolution Rules of the American Arbitration Association. The arbitrator will be instructed and empowered to take reasonable steps to expedite the arbitration and the arbitrator’s judgment will be final and binding upon the parties subject solely to challenge on the grounds of fraud or gross misconduct. Except for damages arising out of a breach of paragraphs 7, 8 or 9 of this Agreement, the arbitrator is not empowered to award total damages (including compensatory damages) which exceed two hundred percent (200%) of compensatory damages and each party hereby irrevocably waives any damages in excess of that amount. The arbitration will be held in Oklahoma County, Oklahoma. Judgment upon any verdict in arbitration may be entered in any court of competent jurisdiction and the parties hereby consent to the jurisdiction of, and proper venue in, the federal and state courts located in Oklahoma County, Oklahoma. Each party will bear its own costs in connection with the arbitration and the costs of the arbitrator will be borne by the party who the arbitrator determines did not prevail in the matter. Unless otherwise expressly set forth in this Agreement, the procedures specified in this paragraph 10 will be the sole and exclusive procedures for the resolution of disputes and controversies between the parties arising out of or relating to this Agreement. Notwithstanding the foregoing, a party may seek a preliminary injunction or other provisional judicial relief if in such party’s judgment such action is necessary to avoid irreparable damage or to preserve the status quo. 9 -------------------------------------------------------------------------------- 11. Miscellaneous. The parties further agree as follows: 11.1 Time. Time is of the essence of each provision of this Agreement. 11.2 Notices. Any notice, payment, demand or communication required or permitted to be given by any provision of this Agreement will be in writing and will be deemed to have been given when delivered personally or by telefacsimile to the party designated to receive such notice, or on the date following the day sent by overnight courier, or on the third (3rd) business day after the same is sent by certified mail, postage and charges prepaid, directed to the following address or to such other or additional addresses as any party might designate by written notice to the other party: To the Company: Chesapeake Energy Corporation Post Office Box 18496 Oklahoma City, OK 73154-0496 Attn: Aubrey K. McClendon To the Executive: Henry J. Hood 6700 Northwest Grand Boulevard Oklahoma City, OK 73116 11.3 Assignment. Neither this Agreement nor any of the parties’ rights or obligations hereunder can be transferred or assigned without the prior written consent of the other parties to this Agreement; provided, however, the Company may assign this Agreement to any wholly owned affiliate or subsidiary of the Company without Executive’s consent. 11.4 Construction. If any provision of this Agreement or the application thereof to any person or circumstances is determined, to any extent, to be invalid or unenforceable, the remainder of this Agreement, or the application of such provision to persons or circumstances other than those as to which the same is held invalid or unenforceable, will not be affected thereby, and each term and provision of this Agreement will be valid and enforceable to the fullest extent permitted by law. This Agreement is intended to be interpreted, construed and enforced in accordance with the laws of the State of Oklahoma and any litigation relating to this Agreement will be conducted in a court of competent jurisdiction located in Oklahoma County, Oklahoma. 11.5 Entire Agreement. This Agreement, any documents executed in connection with this Agreement, any documents specifically referred to in this Agreement and the Employment Policies Manual constitute the entire agreement between the parties hereto with respect to the subject matter herein contained, and no modification hereof will be effective unless made by a supplemental written agreement executed by all of the parties hereto. 10 -------------------------------------------------------------------------------- 11.6 Binding Effect. This Agreement will be binding on the parties and their respective successors, legal representatives and permitted assigns. In the event of a merger, consolidation, combination, dissolution or liquidation of the Company, the performance of this Agreement will be assumed by any entity which succeeds to or is transferred the business of the Company as a result thereof, and the Executive waives the consent requirement of paragraph 11.3 to effect such assumption. 11.7 Legal Fees. If any party institutes an action or proceeding against any other party relating to the provisions of this Agreement or any default hereunder, the unsuccessful party to such action or proceeding will reimburse the successful party therein for the reasonable expenses of any legal fees incurred by the successful party, except with respect to any arbitration proceeding conducted pursuant to paragraph 10 above. 11.8 Supersession. On execution of this Agreement by the Company and the Executive, the relationship between the Company and the Executive will be bound by the terms of this Agreement, any documents executed in connection with this Agreement, any documents specifically referred to in this Agreement and the Employment Policies Manual. In the event of a conflict between the Employment Policies Manual and this Agreement, this Agreement will control in all respects. IN WITNESS WHEREOF, the undersigned have executed this Agreement effective the date first above written. CHESAPEAKE ENERGY CORPORATION, an Oklahoma corporation By: /s/ Aubrey K. McClendon Aubrey K. McClendon, Chief Executive Officer (the “Company”) By: /s/ Henry J. Hood Henry J. Hood, Individually (the “Executive”) 11		[ "Exhibit 10.2.12 EMPLOYMENT AGREEMENT between HENRY J. HOOD and CHESAPEAKE ENERGY CORPORATION Effective July 1, 2003 -------------------------------------------------------------------------------- EMPLOYMENT AGREEMENT THIS AGREEMENT is made effective July 1, 2003, between CHESAPEAKE ENERGY CORPORATION, an Oklahoma corporation (the “Company”), and HENRY J. HOOD, an individual (the “Executive”). W I T N E S S E T H: WHEREAS, the Company desires to retain the services of the Executive and the Executive desires to make the Executive’s services available to the Company.", "NOW, THEREFORE, in consideration of the mutual promises herein contained, the Company and the Executive agree as follows: 1. Employment. The Company hereby employs the Executive and the Executive hereby accepts such employment subject to the terms and conditions contained in this Agreement. The Executive is engaged as an employee of the Company, and the Executive and the Company do not intend to create a joint venture, partnership or other relationship which might impose a fiduciary obligation on the Executive or the Company in the performance of this Agreement. 2. Executive’s Duties. The Executive is employed on a full-time basis. Throughout the term of this Agreement, the Executive will use the Executive’s best efforts and due diligence to assist the Company in achieving the most profitable operation of the Company and the Company’s affiliated entities consistent with developing and maintaining a quality business operation. 2.1 Specific Duties. The Executive will serve as Senior Vice President – Land and Legal for the Company. The Executive will perform all of the services required to fully and faithfully execute the office and position to which the Executive is appointed and such other services as may be reasonably requested by the Executive’s supervisor.", "During the term of this Agreement, the Executive may be nominated for election or appointed to serve as a director or officer of the Company’s subsidiaries as determined in the board of directors’ sole discretion. The services of the Executive will be requested and directed by Mr. Aubrey K. McClendon. 2.2 Rules and Regulations. The Company currently has an Employment Policies Manual which sets forth the general human resources policies of the Company and addresses frequently asked questions regarding the Company. The Executive agrees to comply with the Employment Policies Manual except to the extent inconsistent with this Agreement. The Employment Policies Manual is subject to change without notice in the sole discretion of the Company at any time.", "1 -------------------------------------------------------------------------------- 2.3 Stock Investment. The Executive agrees to hold not less than ten thousand (10,000) shares of the Company’s common stock at all times after September 30, 2003, and prior to the termination of this Agreement, exclusive of shares held by the Executive in the Company’s retirement plans. 3. Other Activities. Except as provided in this Agreement or approved by the Board, the Executive agrees not to: (a) engage in other business activities independent of the Company which individually or in the aggregate require a substantial portion of the Executive’s time; (b) except for passive investments which do not violate this Agreement, serve as a general partner, officer, employee, director or member of any corporation, partnership, company or firm; or (c) directly or indirectly invest, participate or engage in the Oil and Gas Business. For purposes of this Agreement the term “Oil and Gas Business” means: (i) producing oil and gas; (ii) drilling, owning or operating an interest in oil and gas leases or wells; (iii) providing material or services to the Oil and Gas Business; (iv) refining, processing or marketing oil or gas; or (v) owning an interest in or assisting any corporation, partnership, company, entity or person in any of the foregoing.", "The foregoing will not prohibit: (w) ownership of publicly traded securities; (x) ownership of royalty interests where the Executive owns the surface of the land covered by the royalty interest and the ownership of the royalty interest is incidental to the ownership of such surface estate; (y) ownership of royalty interests, overriding royalty interests, working interests or other interests in oil and gas owned prior to the Executive’s date of first employment with the company and disclosed to the Company in writing; or (z) ownership of royalty interests, overriding royalty interests, working interests or other interests in oil and gas acquired by the Executive through a bona fide gift or inheritance. 4. Executive’s Compensation.", "The Company agrees to compensate the Executive as follows: 4.1 Base Salary. A base salary (the “Base Salary”), at the initial annual rate of not less than Three Hundred Thousand Dollars ($300,000.00) will be paid to the Executive in equal semi-monthly installments beginning July 15, 2003 during the term of this Agreement. 4.2 Bonus. In addition to the Base Salary described at paragraph 4.1 of this Agreement, the Company may periodically pay bonus compensation to the Executive. Any bonus compensation will be at the absolute discretion of the Company in such amounts and at such times as the board of directors of the Company may determine. 4.3 Equity Compensation.", "In addition to the compensation set forth in paragraphs 4.1 and 4.2 of this Agreement, the Executive may periodically receive grants of stock options, restricted stock or other awards from the Company’s various equity compensation plans, subject to the terms and conditions thereof. 2 -------------------------------------------------------------------------------- 4.4 Benefits. The Company will provide the Executive such retirement benefits, reimbursement of reasonable expenditures for dues, travel and entertainment and such other benefits as are customarily provided by the Company and as are set forth in and governed by the Company’s Employment Policies Manual. The Company will also provide the Executive the opportunity to apply for coverage under the Company’s medical, life and disability plans, if any.", "If the Executive is accepted for coverage under such plans, the Company will make such coverage available to the Executive on the same terms as is customarily provided by the Company to the plan participants as modified from time to time. The following specific benefits will also be provided to the Executive at the expense of the Company: 4.4.1 Vacation. The Executive will be entitled to take four (4) weeks of paid vacation each twelve months during the term of this Agreement. No additional compensation will be paid for failure to take vacation and no vacation may be carried forward from one twelve month period to another. 4.4.2 Membership Dues. The Company will reimburse the Executive for: (a) the monthly dues necessary to maintain a full membership in a club in the Oklahoma City area selected by the Executive in an amount not to exceed Seven Hundred Fifty Dollars ($750.00) per month; and (b) the reasonable cost of any approved business entertainment at such club. All other costs, including, without implied limitation, any initiation costs, initial membership costs, personal use and business entertainment unrelated to the Company will be the sole obligation of the Executive and the Company will have no liability with respect to such amounts.", "4.5 Change of Control Payment. If, during the term of this Agreement, there is a “Change of Control” the Executive will be entitled to a payment (in addition to any other amounts payable to the Executive under this Agreement or otherwise) in an amount equal to two hundred percent (200%) of the sum of the Executive’s then current Base Salary under paragraph 4.1 of this Agreement plus the bonuses paid to the Executive during the twelve (12) calendar months preceding the Change of Control under paragraph 4.2 of this Agreement or its predecessor. The right to such compensation is subject to the Executive’s continued compliance with each of the provisions of this Agreement. If the foregoing amount is not paid within thirty (30) days after a Change of Control the unpaid amount will bear interest at the per annum rate equal to twelve percent (12%).", "For the purpose of this Agreement, a “Change of Control” means the occurrence of any of the following: 3 -------------------------------------------------------------------------------- (a) the acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) (a “Person”) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of twenty percent (20%) or more of either (i) the then outstanding shares of common stock of the Company (the “Outstanding Company Common Stock”) or (ii) the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors (the “Outstanding Company Voting Securities”).", "For purposes of this paragraph, the following acquisitions by a Person will not constitute a Change of Control: (i) any acquisition directly from the Company; (ii) any acquisition by the Company; (iii) any acquisition by or sponsored by Mssrs. Aubrey K. McClendon and/or Tom L. Ward; (iv) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company or any corporation controlled by the Company; or (v) any acquisition by any corporation pursuant to a transaction which complies with clauses (i), (ii) and (iii) of paragraph (c) below; (b) the individuals who, as of June 15, 2003, constitute the board of directors (the “Incumbent Board”) cease for any reason to constitute at least a majority of the board of directors.", "Any individual becoming a director subsequent to the date hereof whose election, or nomination for election by the Company’s shareholders, is approved by a vote of at least a majority of the directors then comprising the Incumbent Board will be considered a member of the Incumbent Board as of the date hereof, but any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Incumbent Board will not be deemed a member of the Incumbent Board as of the date hereof; (c) the consummation of a reorganization, merger, consolidation or sale or other disposition of all or substantially all of the assets of the Company (a “Business Combination”), unless following such Business Combination: (i) all or substantially all of the individuals and entities who were the beneficial owners, respectively, of the Outstanding Company Common Stock and Outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than sixty percent (60%) of, respectively, the then outstanding shares of common stock and the combined voting power of the then outstanding voting securities entitled to vote generally in the election of directors, as the case may be, of the corporation resulting from such Business Combination (including, without limitation, a corporation which as a result of such transaction owns the Company 4 -------------------------------------------------------------------------------- or all or substantially all of the Company’s assets either directly or through one or more subsidiaries) in substantially the same proportions as their ownership, immediately prior to such Business Combination of the Outstanding Company Common Stock and Outstanding Company Voting Securities, as the case may be, (ii) no Person (excluding any corporation resulting from such Business Combination or any employee benefit plan (or related trust) of the Company or such corporation resulting from such Business Combination) beneficially owns, directly or indirectly, twenty percent (20%) or more of, respectively, the then outstanding shares of common stock of the corporation resulting from such Business Combination or the combined voting power of the then outstanding voting securities of such corporation except to the extent that such ownership existed prior to the Business Combination and (iii) at least a majority of the members of the board of directors of the corporation resulting from such Business Combination were members of the Incumbent Board at the time of the execution of the initial agreement, or of the action of the Board, providing for such Business Combination; or, (d) the approval by the shareholders of the Company of a complete liquidation or dissolution of the Company.", "4.6 Compensation Review. The compensation of the Executive will be reviewed not less frequently than annually by the board of directors of the Company. 5. Term. The employment relationship evidenced by this Agreement is an “at will” employment relationship and the Company reserves the right to terminate the Executive at any time with or without cause as provided herein. In the absence of such termination, this Agreement will extend for a term of three (3) years and three (3) months commencing on July 1, 2003, and ending on September 30, 2006 (the “Expiration Date”). 6. Termination. This Agreement will continue in effect until the expiration of the term stated at paragraph 5 of this Agreement unless earlier terminated pursuant to this paragraph 6. 6.1 Termination by Company. The Company will have the following rights to terminate this Agreement: 6.1.1 Termination without Cause. The Company may terminate this Agreement without cause at any time by the service of written notice of termination to the Executive specifying an effective date of such termination not sooner than thirty (30) days after the date of such notice (the “Termination Date”).", "In the event the Executive is terminated without cause, the Executive will receive as termination compensation: (a) Base Salary for a period of one 5 -------------------------------------------------------------------------------- hundred eighty (180) days; (b) any benefits payable by operation of paragraph 4.4 of this Agreement; and (c) any vacation pay accrued through the Termination Date. The right to the foregoing termination compensation under clause (a) above: (i) is subject to the Executive’s execution of the Company’s standard termination agreement releasing all legally waivable claims against the Company and the Executive’s compliance with each of the provisions of this Agreement; and (ii) will be reduced by the number of days remaining in the one year period after any change of control payment under paragraph 4.5 of this Agreement. 6.1.2 Termination for Cause. The Company may terminate this Agreement for cause if the Executive: (a) misappropriates the property of the Company or commits any other act of dishonesty; (b) engages in personal misconduct which materially injures the Company; (c) willfully violates any law or regulation relating to the business of the Company which results in injury to the Company; or (d) willfully and repeatedly fails to perform the Executive’s duties hereunder. In the event this Agreement is terminated for cause, the Company will not have any obligation to provide any further payments or benefits to the Executive after the Termination Date.", "6.2 Termination by Executive. The Executive may voluntarily terminate this Agreement with or without cause by the service of written notice of such termination to the Company specifying a Termination Date no sooner than thirty (30) days after the date of such notice. In the event this Agreement is terminated by the Executive, neither the Company nor the Executive will have any further obligations hereunder including, without limitation, any obligation of the Company to provide any further payments or benefits to the Executive after the Termination Date. 6.3 Incapacity of Executive. If the Executive suffers from a physical or mental condition which in the reasonable judgment of the Company’s management prevents the Executive in whole or in part from performing the duties specified herein for a period of three (3) consecutive months, the Executive may be terminated. Although the termination may be deemed as a termination for cause, any compensation payable under paragraph 4 of this Agreement will be continued for one hundred eighty (180) days following the Termination Date.", "Notwithstanding the foregoing, the Executive’s Base Salary specified in paragraph 4.1 of this Agreement will be reduced by any benefits payable under any disability plans provided by the Company under paragraph 4.4. The right to the compensation due under this paragraph 6.3 is subject to the execution by the Executive or the Executive’s legal representative of the Company’s standard termination agreement releasing all legally waivable claims against the Company. 6 -------------------------------------------------------------------------------- 6.4 Death of Executive. If the Executive dies during the term of this Agreement, the Company may thereafter terminate this Agreement without compensation to the Executive’s estate except: (a) the obligation to continue the Base Salary payments under paragraph 4.1 of this Agreement for one (1) year following the date of the Executive’s death; and (b) the benefits described in paragraph 4.4 of this Agreement accrued through the date of the Executive’s death.", "The right to the compensation due under this paragraph 6.4 is subject to the execution by the administrator of the Executive’s estate of the Company’s standard termination agreement releasing all legally waivable claims against the Company. 6.5 Effect of Termination. The termination of this Agreement will terminate all obligations of the Executive to render services on behalf of the Company from and after the Termination Date, provided that the Executive will maintain the confidentiality of all information acquired by the Executive during the term of Executive’s employment in accordance with paragraph 7 of this Agreement. Except as otherwise provided in paragraph 6 of this Agreement, no accrued bonus, severance pay or other form of compensation will be payable by the Company to the Executive by reason of the termination of this Agreement. All keys, entry cards, credit cards, files, records, financial information, furniture, furnishings, equipment, supplies and other items relating to the Company in the Executive’s possession will remain the property of the Company.", "The Executive will have the right to retain and remove all personal property and effects which are owned by the Executive and located in the offices of the Company. All such personal items will be removed from such offices no later than two (2) days after the Termination Date, and the Company is hereby authorized to discard any items remaining and to reassign the Executive’s office space after such date. Prior to the Termination Date, the Executive will render such services to the Company as might be reasonably required to provide for the orderly termination of the Executive’s employment.", "Notwithstanding the foregoing and without discharging any obligations to pay compensation to the Executive under this Agreement, after notice of the Termination, the Company may request that the Executive not provide any other services to the Company and not enter the Company’s premises before or after the Termination Date. 7. Confidentiality. The Executive recognizes that the nature of the Executive’s services are such that the Executive will have access to information which constitutes trade secrets, is of a confidential nature, is of great value to the Company or is the foundation on which the business of the Company is predicated. The Executive agrees not to disclose to any person other than the Company’s employees or the Company’s 7 -------------------------------------------------------------------------------- legal counsel nor use for any purpose, other than the performance of this Agreement, any confidential information (“Confidential Information”).", "Confidential Information includes data or material (regardless of form) which is: (a) a trade secret; (b) provided, disclosed or delivered to Executive by the Company, any officer, director, employee, agent, attorney, accountant, consultant, or other person or entity employed by the Company in any capacity, any customer, borrower or business associate of the Company or any public authority having jurisdiction over the Company of any business activity conducted by the Company; or (c) produced, developed, obtained or prepared by or on behalf of Executive or the Company (whether or not such information was developed in the performance of this Agreement) with respect to the Company or any assets oil and gas prospects, business activities, officers, directors, employees, borrowers or customers of the foregoing.", "However, Confidential Information shall not include any information, data or material which at the time of disclosure or use was generally available to the public other than by a breach of this Agreement, was available to the party to whom disclosed on a non-confidential basis by disclosure or access provided by the Company or a third party, or was otherwise developed or obtained independently by the person to whom disclosed without a breach of this Agreement. On request by the Company, the Company will be entitled to the return of any Confidential Information in the possession of the Executive. The Executive also agrees that the provisions of this paragraph 7 will survive the termination, expiration or cancellation of this Agreement for a period of three (3) years. The Executive will deliver to the Company all originals and copies of the documents or materials containing Confidential Information. For purposes of paragraphs 7, 8, and 9 of this Agreement, the Company expressly includes any of the Company’s affiliated corporations, partnerships or entities.", "8. Noncompetition. For a period of six (6) months after the Executive is no longer employed by the Company as a result of either the termination of or resignation by the Executive, the Executive will not acquire, attempt to acquire or aid another in the acquisition or attempted acquisition of an interest in oil and gas assets, oil and gas production, oil and gas leases, mineral interests, oil and gas wells or other such oil and gas exploration, development or production activities within any spacing unit in which the Company owns an oil and gas interest on the date of the resignation or termination of the Executive. In addition, the Executive will not solicit, induce, entice or attempt to entice any employee, contractor, customer, vendor or subcontractor to terminate or breach any relationship with the Company or the Company’s affiliates for the Executive’s own account or for the benefit of another party. The Executive further agrees that the Executive will not circumvent or attempt to circumvent the foregoing agreements by any future arrangement or through the actions of a third party.", "The foregoing will not prohibit the activities which are expressly permitted by the last sentence of paragraph 3 of this Agreement. 9. Proprietary Matters. The Executive expressly understands and agrees that any and all improvements, inventions, discoveries, processes, know-how or intellectual property that are generated or conceived by the Executive during the term of this Agreement, whether generated or conceived during the Executive’s regular working hours or otherwise, will be the sole and exclusive property of the Company. Whenever 8 -------------------------------------------------------------------------------- requested by the Company (either during the term of this Agreement or thereafter), the Executive will assign or execute any and all applications, assignments and or other instruments and do all things which the Company deems necessary or appropriate in order to permit the Company to: (a) assign and convey or otherwise make available to the Company the sole and exclusive right, title, and interest in and to said improvements, inventions, discoveries, processes, know-how, applications, patents, copyrights, trade names or trademarks; or (b) apply for, obtain, maintain, enforce and defend patents, copyrights, trade names, or trademarks of the United States or of foreign countries for said improvements, inventions, discoveries, processes or know-how.", "However, the improvements, inventions, discoveries, processes or know-how generated or conceived by the Executive and referred to above (except as they may be included in the patents, copyrights or registered trade names or trademarks of the Company, or corporations, partnerships or other entities which may be affiliated with the Company) shall not be exclusive property of the Company at any time after having been disclosed or revealed or have otherwise become available to the public or to a third party on a non-confidential basis other than by a breach of this Agreement, or after they have been independently developed or discussed without a breach of this Agreement by a third party who has no obligation to the Company or its affiliates.", "The foregoing will not prohibit any activities which are expressly permitted by the last sentence of paragraph 3 of this Agreement during the term of this Agreement. 10. Arbitration. The parties will attempt to promptly resolve any dispute or controversy arising out of or relating to this Agreement or termination of the Executive by the Company. Any negotiations pursuant to this paragraph 10 are confidential and will be treated as compromise and settlement negotiations for all purposes. If the parties are unable to reach a settlement amicably, the dispute will be submitted to binding arbitration before a single arbitrator in accordance with the Employment Dispute Resolution Rules of the American Arbitration Association. The arbitrator will be instructed and empowered to take reasonable steps to expedite the arbitration and the arbitrator’s judgment will be final and binding upon the parties subject solely to challenge on the grounds of fraud or gross misconduct.", "Except for damages arising out of a breach of paragraphs 7, 8 or 9 of this Agreement, the arbitrator is not empowered to award total damages (including compensatory damages) which exceed two hundred percent (200%) of compensatory damages and each party hereby irrevocably waives any damages in excess of that amount. The arbitration will be held in Oklahoma County, Oklahoma. Judgment upon any verdict in arbitration may be entered in any court of competent jurisdiction and the parties hereby consent to the jurisdiction of, and proper venue in, the federal and state courts located in Oklahoma County, Oklahoma. Each party will bear its own costs in connection with the arbitration and the costs of the arbitrator will be borne by the party who the arbitrator determines did not prevail in the matter. Unless otherwise expressly set forth in this Agreement, the procedures specified in this paragraph 10 will be the sole and exclusive procedures for the resolution of disputes and controversies between the parties arising out of or relating to this Agreement.", "Notwithstanding the foregoing, a party may seek a preliminary injunction or other provisional judicial relief if in such party’s judgment such action is necessary to avoid irreparable damage or to preserve the status quo. 9 -------------------------------------------------------------------------------- 11. Miscellaneous. The parties further agree as follows: 11.1 Time. Time is of the essence of each provision of this Agreement. 11.2 Notices. Any notice, payment, demand or communication required or permitted to be given by any provision of this Agreement will be in writing and will be deemed to have been given when delivered personally or by telefacsimile to the party designated to receive such notice, or on the date following the day sent by overnight courier, or on the third (3rd) business day after the same is sent by certified mail, postage and charges prepaid, directed to the following address or to such other or additional addresses as any party might designate by written notice to the other party: To the Company: Chesapeake Energy Corporation Post Office Box 18496 Oklahoma City, OK 73154-0496 Attn: Aubrey K. McClendon To the Executive: Henry J.", "Hood 6700 Northwest Grand Boulevard Oklahoma City, OK 73116 11.3 Assignment. Neither this Agreement nor any of the parties’ rights or obligations hereunder can be transferred or assigned without the prior written consent of the other parties to this Agreement; provided, however, the Company may assign this Agreement to any wholly owned affiliate or subsidiary of the Company without Executive’s consent. 11.4 Construction. If any provision of this Agreement or the application thereof to any person or circumstances is determined, to any extent, to be invalid or unenforceable, the remainder of this Agreement, or the application of such provision to persons or circumstances other than those as to which the same is held invalid or unenforceable, will not be affected thereby, and each term and provision of this Agreement will be valid and enforceable to the fullest extent permitted by law.", "This Agreement is intended to be interpreted, construed and enforced in accordance with the laws of the State of Oklahoma and any litigation relating to this Agreement will be conducted in a court of competent jurisdiction located in Oklahoma County, Oklahoma. 11.5 Entire Agreement. This Agreement, any documents executed in connection with this Agreement, any documents specifically referred to in this Agreement and the Employment Policies Manual constitute the entire agreement between the parties hereto with respect to the subject matter herein contained, and no modification hereof will be effective unless made by a supplemental written agreement executed by all of the parties hereto.", "10 -------------------------------------------------------------------------------- 11.6 Binding Effect. This Agreement will be binding on the parties and their respective successors, legal representatives and permitted assigns. In the event of a merger, consolidation, combination, dissolution or liquidation of the Company, the performance of this Agreement will be assumed by any entity which succeeds to or is transferred the business of the Company as a result thereof, and the Executive waives the consent requirement of paragraph 11.3 to effect such assumption. 11.7 Legal Fees. If any party institutes an action or proceeding against any other party relating to the provisions of this Agreement or any default hereunder, the unsuccessful party to such action or proceeding will reimburse the successful party therein for the reasonable expenses of any legal fees incurred by the successful party, except with respect to any arbitration proceeding conducted pursuant to paragraph 10 above. 11.8 Supersession. On execution of this Agreement by the Company and the Executive, the relationship between the Company and the Executive will be bound by the terms of this Agreement, any documents executed in connection with this Agreement, any documents specifically referred to in this Agreement and the Employment Policies Manual.", "In the event of a conflict between the Employment Policies Manual and this Agreement, this Agreement will control in all respects. IN WITNESS WHEREOF, the undersigned have executed this Agreement effective the date first above written. CHESAPEAKE ENERGY CORPORATION, an Oklahoma corporation By: /s/ Aubrey K. McClendon Aubrey K. McClendon, Chief Executive Officer (the “Company”) By: /s/ Henry J. Hood Henry J. Hood, Individually (the “Executive”) 11" ]	https://github.com/TheAtticusProject/cuad	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
Mr. Justice Magruder delivered the opinion of the court: The first section of the act of the legislature of Illinois in relation to fencing and operating railroads, approved March 31, 1874, provides : “That every railroad' corporation shall, within six months after any part of its line is open for use, erect and thereafter maintain fences on both sides of its road, or so much thereof as is open for use, suitable and sufficient to prevent cattle, horses, sheep, hogs or other stock from getting on such railroad, except at the crossings of public roads and highways, and within such portion of cities and incorporated towns and villages as are or may be hereafter laid out and platted into lots and blocks,” etc. (2 Starr & Cur. Stat. p. 1927). If stock is killed by a railroad company at a place where the law does not require the company to fence its road, the party seeking a recovery must prove that such killing was caused through the negligence of the railroad company. But where stock is killed by a railroad company at a place where the statute requires the road to be fenced and where it has not been fenced, the railroad company will be liable for all damages sustained by such killing, regardless of whether the stock was killed through the negligence of the company or not. (Illinois Central Railroad Co. v. Bull, 72 Ill. 537). The negligence here charged against the appellant company, in order to make it liable for the value of the horse killed, is its failure to perform the duty imposed upon it by the foregoing statute. It is admitted, that the portion of appellant’s road, which crosses the bridge and runs up to the eastern corporation line of Ramsey, is its main track and is not within the limits of any incorporated town or village. But appellant claims, that it was not obliged to fence its track, at the point outside of the corporate limits where the horse went upon the track, for two reasons, first, because it required the use of the track for switching purposes and for the proper handling of its trains, and, second, because a cattle-guard, if placed on the main track at the intersection of cross fences with the track, would endanger the safety of its employees. The chief error assigned is, that the trial court refused to give certain instructions asked by the company to the effect, that the existence of the reasons thus indicated, if established by the evidence, would be a sufficient excuse for the failure of the company to fence its tracks at the point designated, although the express terms of the statute required it to do so. We have held, that the foregoing statute was not intended to apply to public stations or depot grounds, even though such stations or depot grounds might not be within the limits of a village, town or city or at a highway crossing, and for the reason that the convenience of the public requires the station and depot grounds to be open. The accommodation of those traveling upon the railroad or transacting business with the company makes it" necessary that there should at all reasonable times be a ready and convenient means of access to the stations and depots of the company. “To require those places to be fenced would cause delay and inconvenience to the public, and detract from the public character of railways.” (Chicago, Burlington and Quincy Railroad Co. v. Hans, 111 Ill. 114). But it has never been held in this State that the convenience of the railroad company furnishes any justification for its failure to comply with the plain requirement of the statute. On the contrary in Chicago, Burlington and Quincy Railroad Co. v. Hans, supra, we said (p. 118): “The statute, by its terms,' relates to the road or tracks of the railroad. It ought not to be construed so as to embrace that which is not embraced in the statute, and depots and stations are surely not embraced in its terms. True, there is a road or track at the station, but the main feature of the place is not the track. The statute no doubt may embrace tracks other than the main track. Side-tracks," not at stations or depots, and such parts of side-tracks as do not constitute part of the depot yard, may well be held to be within the statute.” Here, the failure to fence is sought to be justified upon the ground, that certain side-tracks, which are not at the station or depot and do not constitute a part of the depot yard, and which are beyond the corporate limits of the town, can be more conveniently and safely used if unfenced than if fences were erected. Such a consideration furnishes no valid reason why the statute should not be obeyed. In Toledo, St. Louis and Kansas City Railroad Co. v. Thompson, 48 Ill. App. 36, it was assigned as error, that the court'refused to instruct the jury that the safety of its employees was a sufficient ground of exemption from the duty imposed upon the railroad company by the foregoing statute; and it was there held, that the instruction was properly refused, because it “drew from the supposed convenience of the company a conclusion of law which could properly follow only from that of the public-.” In its opinion delivered upon the decision of this case, the Appellate Court said: “Did the facts in evidence show this unfenced and unprotected track to be one of the parts of its road it is not required to fence? It does not appear that the freight or passenger traffic of Ramsey was large. No elevators or warehouses were there to indicate a place at which considerable quantities of grain were received and shipped. There was a space of 1900 feet in length from the depot within the town limits that could be used for the proper handling of appellant’s trains at that place,—amply sufficient for the transaction of its business with the public without using any part of its main track outside those limits. Those and other facts in evidence justify the verdict. The refused instructions requested were properly refused, and the special interrogatories requested, called for findings of evidentiary and not of ultimate facts, and were also properly refused.” We approve of the portion of the opinion of the Appellate Court thus quoted and adopt it as a part of this opinion. The judgment of the Appellate Court is affirmed. Judgment affirmed.	07-24-2022	[ "Mr. Justice Magruder delivered the opinion of the court: The first section of the act of the legislature of Illinois in relation to fencing and operating railroads, approved March 31, 1874, provides : “That every railroad' corporation shall, within six months after any part of its line is open for use, erect and thereafter maintain fences on both sides of its road, or so much thereof as is open for use, suitable and sufficient to prevent cattle, horses, sheep, hogs or other stock from getting on such railroad, except at the crossings of public roads and highways, and within such portion of cities and incorporated towns and villages as are or may be hereafter laid out and platted into lots and blocks,” etc. (2 Starr & Cur. Stat.", "p. 1927). If stock is killed by a railroad company at a place where the law does not require the company to fence its road, the party seeking a recovery must prove that such killing was caused through the negligence of the railroad company. But where stock is killed by a railroad company at a place where the statute requires the road to be fenced and where it has not been fenced, the railroad company will be liable for all damages sustained by such killing, regardless of whether the stock was killed through the negligence of the company or not. (Illinois Central Railroad Co. v. Bull, 72 Ill. 537). The negligence here charged against the appellant company, in order to make it liable for the value of the horse killed, is its failure to perform the duty imposed upon it by the foregoing statute. It is admitted, that the portion of appellant’s road, which crosses the bridge and runs up to the eastern corporation line of Ramsey, is its main track and is not within the limits of any incorporated town or village.", "But appellant claims, that it was not obliged to fence its track, at the point outside of the corporate limits where the horse went upon the track, for two reasons, first, because it required the use of the track for switching purposes and for the proper handling of its trains, and, second, because a cattle-guard, if placed on the main track at the intersection of cross fences with the track, would endanger the safety of its employees. The chief error assigned is, that the trial court refused to give certain instructions asked by the company to the effect, that the existence of the reasons thus indicated, if established by the evidence, would be a sufficient excuse for the failure of the company to fence its tracks at the point designated, although the express terms of the statute required it to do so. We have held, that the foregoing statute was not intended to apply to public stations or depot grounds, even though such stations or depot grounds might not be within the limits of a village, town or city or at a highway crossing, and for the reason that the convenience of the public requires the station and depot grounds to be open. The accommodation of those traveling upon the railroad or transacting business with the company makes it\" necessary that there should at all reasonable times be a ready and convenient means of access to the stations and depots of the company.", "“To require those places to be fenced would cause delay and inconvenience to the public, and detract from the public character of railways.” (Chicago, Burlington and Quincy Railroad Co. v. Hans, 111 Ill. 114). But it has never been held in this State that the convenience of the railroad company furnishes any justification for its failure to comply with the plain requirement of the statute. On the contrary in Chicago, Burlington and Quincy Railroad Co. v. Hans, supra, we said (p. 118): “The statute, by its terms,' relates to the road or tracks of the railroad.", "It ought not to be construed so as to embrace that which is not embraced in the statute, and depots and stations are surely not embraced in its terms. True, there is a road or track at the station, but the main feature of the place is not the track. The statute no doubt may embrace tracks other than the main track. Side-tracks,\" not at stations or depots, and such parts of side-tracks as do not constitute part of the depot yard, may well be held to be within the statute.” Here, the failure to fence is sought to be justified upon the ground, that certain side-tracks, which are not at the station or depot and do not constitute a part of the depot yard, and which are beyond the corporate limits of the town, can be more conveniently and safely used if unfenced than if fences were erected.", "Such a consideration furnishes no valid reason why the statute should not be obeyed. In Toledo, St. Louis and Kansas City Railroad Co. v. Thompson, 48 Ill. App. 36, it was assigned as error, that the court'refused to instruct the jury that the safety of its employees was a sufficient ground of exemption from the duty imposed upon the railroad company by the foregoing statute; and it was there held, that the instruction was properly refused, because it “drew from the supposed convenience of the company a conclusion of law which could properly follow only from that of the public-.” In its opinion delivered upon the decision of this case, the Appellate Court said: “Did the facts in evidence show this unfenced and unprotected track to be one of the parts of its road it is not required to fence? It does not appear that the freight or passenger traffic of Ramsey was large. No elevators or warehouses were there to indicate a place at which considerable quantities of grain were received and shipped. There was a space of 1900 feet in length from the depot within the town limits that could be used for the proper handling of appellant’s trains at that place,—amply sufficient for the transaction of its business with the public without using any part of its main track outside those limits. Those and other facts in evidence justify the verdict. The refused instructions requested were properly refused, and the special interrogatories requested, called for findings of evidentiary and not of ultimate facts, and were also properly refused.” We approve of the portion of the opinion of the Appellate Court thus quoted and adopt it as a part of this opinion.", "The judgment of the Appellate Court is affirmed. Judgment affirmed." ]	https://www.courtlistener.com/api/rest/v3/opinions/6966519/	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
Isaac Rittinger was the owner of a five-passenger Studebaker automobile, and James G. Spahn, a friend, on the afternoon of December 24th, 1923, drove the owner and his wife to Hagerstown, where they went to spend Christmas with the owner's daughter, the wife of Frank H. Chairs. It was planned that, after spending Christmas day in Hagerstown, Spahn would go alone with the automobile to Frederick to visit and, on his return, take the owner and his wife back to their home in Baltimore. The party arrived in Hagerstown, went to the home of Frank H. Chairs, and Spahn remained there until about ten o'clock at night, when Spahn, at the request of Chairs, drove the latter and himself to a store to make some purchases, which had been overlooked by Mrs. Chairs. On their way back, Chairs suggested to Spahn that they drive to Williamsport for a ride. They accordingly proceeded over the railway crossing of the appellee at Virginia Avenue in Hagerstown and, after staying a few minutes in Williamsport, the two started on their return. Spahn continued to drive and, being unfamiliar with the route, requested Chairs, who sat on the right front seat, to direct him and to tell him when they approached the railway crossings. The first crossing which they met was that of the Cumberland Valley Railway, and Chairs warned the driver before it was reached. Appellee's crossing came next, and it was there that a collision occurred between the automobile Page 682 and the end of a string of thirty-two freight cars, which were being slowly pushed out upon the crossing. The appellee's railway crossing was at grade and consisted of the single main line track and a siding to its south. The tracks were laid diagonally across the highway, which was fifty-five feet wide, including the sidewalks, and its macadam surface for public travel was about thirty-nine feet wide. Both tracks extend from the west boundary line of the crossing in a straight line for about three hundred feet and then curve slightly to the left. As you approach the railway crossing from Williamsport, which is south of the crossing, the course of the highway is a direct line for about six hundred feet before reaching the crossing. The view to the left or west of the highway as you near the crossing is unobstructed, except for a two-story brick dwelling and a few small trees which are about seventy-five feet south of the crossing and on the west side of the highway. The testimony is that on the crossing the tracks are visible in daylight for about one thousand feet; and that for a distance of one hundred feet, measured south from the crossing along the highway, there is an unbroken view of the tracks to the west for from nine hundred to one thousand feet; and that, at a distance of one hundred and fifty feet, the view of the tracks in the same direction is from twelve hundred to thirteen hundred feet, but that, at a distance of two hundred feet from the crossing, a similar view is afforded for two hundred and fifty feet. Hence, with an adequate unobstructed view of the tracks to the west from this last named point, there was no occasion to stop as well as to look and listen before attempting to pass over the crossing. On the west of the highway, and a short distance south of the tracks, there was the usual railway danger signal post, but the crossing was without street or other light; and the railway company relied upon the signals given by an approaching train and by the crossing watchman to warn travelers by day and at night. The watchman was sheltered by a watchman's box built near the tracks, and he was equipped at night with a red lantern, which was so made that a red Page 683 light could be seen from the front and back faces of the lantern, but not from its two purposely darkened sides. The effect of this was to make the red light visible in but two and opposite directions, and the reason for the use of this type of lantern was to assure that the signal would not be observed by the trainmen when it was being used to warn the travelers on the highway. The length of the draft of the freight cars which came in collision with the automobile was about twelve hundred feet, and, as the pushing locomotive was on the curve in a cut, the engineer could not, at this distance, see the end of the draft or directly receive a signal from his brakeman at the other end, but regulated the movement of his train by signals relayed through brakemen at both ends, and in the middle, of the draft. The nearer end of the draft was estimated to be from one hundred and fifty to two hundred feet west of the crossing, and the movement of these freight cars was a yard or shifting operation, which began by the engineman blowing his whistle, when he started to push the draft over the crossing, so as to let the crew and the crossing watchman know the beginning of the propulsion of the draft over the highway crossing. According to the testimony on the part of the appellee, as soon as the engineman gave his whistle, the watchman took his place at the middle of the street crossing, between the main track and the siding track, and swung his lantern to give warning to the travelers on the highway. While the watchman was so engaged, the automobile occupied by Spahn and Chairs approached the crossing at a rapid speed without stopping, and the draft, as soon as it passed between the watchman and the automobile, prevented either the watchman seeing the automobile or its occupants observing the watchman and his signal. The driver, perceiving in his path, and too late to stop, the freight car, which was slowly moving over the crossing at a rate variously given as four, five and six miles an hour, turned, in his attempt to escape, the automobile sharply to the right and drove off the metaled highway, but not soon enough to avoid being struck Page 684 by the first freight car, which collided with the automobile and dragged it until, in response to a signal from the front brakeman, which was relayed through the intermediate brakeman to the engineer, the draft was brought to a stop after it had traveled almost four freight car lengths east of the crossing. The driver was thrown from the automobile and was found, injured, lying on the south of the switch and about seventy feet east of the crossing. The dead body of Chairs was among the wreckage of the automobile, which had been swept along and crumpled under the first freight car. The other evidence of the appellee tended to support its theory that the watchman was on the crossing in time, and, with the red light of his lantern displayed to the travelers on the highway, did signal long enough before the car reached the crossing for the driver to have stopped in a place of safety, and that the occupants of the automobile had seen the signal, but either disregarded it or had not looked until too late to avert the accident. The important testimony on the part of the appellant was that given by the driver of the automobile. His evidence with respect to the accident tended to show that Chairs told him of the first railway crossing on their way into Hagerstown, and that he slowed down and looked ahead and to the right and to the left before he drove over, and that at a curve in the highway, which the proof on the part of the appellee established was six hundred feet before the crossing of the appellee would be passed, Chairs again warned him of the railway crossing where the collision occurred, and asked him to slow down. In response to this warning and direction, the driver gradually reduced his speed from fifteen miles an hour to six or eight miles an hour, and about one hundred feet from the crossing he disengaged his clutch and let his automobile drift forward, meanwhile listening attentively and looking ahead and to the right and left until the railway crossing was reached, where, not having heard, nor hearing, anything to warn him of the oncoming freight cars, and not having seen, nor seeing, the cars, or any light or watchman, Page 685 the automobile drifted, without stopping, upon the railway crossing, being kept on the right side of the highway. The automobile had its front wheels about on the siding when its driver heard a shout on his left. He turned his head, saw, at the edge of the macadam of the highway, the approaching freight car and some one on it with a light, and immediately engaged his clutch, and did all in his power to escape, turning to the extreme right of the roadway, but before the driver could get off the siding the automobile was struck on the left, near the rear seat, and overturned, and then the driver lost all recollection of what happened until he was picked up on the south of the siding. The driver of the automobile further testified that Chairs warned him some six hundred feet away of the railway crossing in question, and the appellee, in the production of its evidence, proved an admission by the driver, containing the statement that his companion had notified him of the nearness of the crossing. It must be accepted, therefore, as a fact established by this record, that Chairs gave the driver due notice of the presence of the crossing. It is also the testimony of the driver that Chairs suggested the speed of the automobile be lessened, and that this was done in the manner described. The driver further stated that he knew from his companion's movements that he was also looking and listening as they traveled towards the crossing, but that neither of them spoke. The automobile was in good running condition, with its headlights burning and, at its rate of speed while advancing towards the crossing, could have been stopped within its own length. If the testimony on the part of the appellant be true, it tended to establish that, with no obstruction between the automobile and the railway track, with no signal, watchman, nor anything else seen or heard to indicate to Chairs the approach of the freight train, or the probable failure of the driver to continue, until the passage of the crossing was accomplished, to exercise the same degree of adequate care as he was then exhibiting, the automobile under control and Page 686 moving slowly forward was suddenly struck on the crossing by the unlighted end of a string of freight cars, unexpectedly emerging from the darkness of the night at the edge of the macadam highway, and advancing too rapidly for the driver of the automobile to avoid the collision. This testimony tending to show the culpability of the appellee and the absence of fault on the part of Spahn and of Chairs was in conflict with the evidence offered by the appellee, but the relative credibility and weight of the evidence was for the jury and not for the court, unless the testimony for appellant is so clearly false that it must be rejected in the consideration of this case. The accident occurred late at night, the crossing had no street light, and the string of unlighted freight cars on the siding track was motionless in the darkness. The pushing engine was around a curve and hidden from view in a cut about fourteen hundred feet west of the highway crossing, and the other end of the draft of freight cars was, as appellee's watchman first testified in chief, within fifty or sixty feet of the crossing, but later, on his cross-examination, he asserted the distance was from one hundred and fifty feet to two hundred feet, which is the estimate of the other witnesses on the part of the appellee. In any event, the distance to be traversed before the first freight car reached the crossing was short. The only signal which the appellee asserts was given by the engine was a whistle blown at the beginning of the movement of the freight cars towards the crossing. This was not blown to warn travelers on the highway, but to notify the watchman in his box to take his station at the crossing to protect the public. The testimony of the driver that he, although listening for a signal, heard none, is affirmative testimony from which the jury might have found the distant whistle was either not given or was not heard. Balto. O.R. Co.v. State, 141 Md. 523. Moreover, the movement was not that of a running train out in the silence of open country, but a slow movement of a draft of freight cars on a siding track connected with the railway yards of Hagerstown, that had begun, under the propulsion of a distant and invisible engine, only a few minutes before the accident. Page 687 The foremost freight car carried no warning light and, according to the appellant's proof, did not leave the obscurity of the night by entering upon the crossing until the front part of the automobile was upon the track of the siding. Under the circumstances it cannot be said that the testimony of the driver to the effect that, although looking and listening, the occupants of the automobile had not seen nor heard the approach of the freight cars during the few feet it had been in motion before it come on the crossing was so inherently incredible as to be unworthy of consideration. The driver saw the car as soon as it was visible, according to his testimony, and nothing the other occupant of the automobile could have done would have been helpful in such an imminent peril. Nor do the facts warrant disregarding the testimony that those in the automobile were not warned by the crossing watchman. It was possible for the watchman not to have been at his post; and for the warning signal from his lantern not to have been given because of this absence, or because the covered or dark sides of his lantern were turned towards the travelers on the highway, and the illuminated sides were held so as to shine up and down the railway tracks. The presence of the watchman at his station in time to give warning to the occupants of the automobile was not an inevitably accompanying circumstance of the accident, but was an independent fact to be established by proof. The witnesses for the appellee testified that they looked and saw him there signaling travelers to stop; but the witness for the appellant was as positive and direct in his testimony that the occupants of the automobile also looked, but saw neither the watchman nor his signal. It clearly was for the jury to weigh this conflicting evidence and to determine the issue of fact it raised; and, therefore, the appellee was not justified in its contention that the judgment of the lower court should be affirmed on the ground that the appellant had sustained no injury because appellee's prayers demurring to the legal sufficiency of the evidence to entitle the appellant to a recovery should have been granted. Balto. O.R.R. Co. v. McCabe, 133 Md. 219, 224, 225. Page 688 2. The next matter for determination is presented by the ruling on the prayers. The rejection of the appellant's first, fourth and fifth prayers, and the granting of appellant's seventh prayer as modified by the court, and of appellee's ninth and thirteenth prayers, were due to the acceptance by the nisi prius court of appellee's theory that the negligence of the driver was imputable to the other occupant of the automobile. The evidence established that Chairs was neither the master nor the principal of the driver of the automobile. The driver who had possession and control of the automobile was the bailee of its owner; and Chairs was the guest or passenger of the bailee. That Chairs requested the bailee to drive him, first, to the shopping district and then to Williamsport, and pointed out the direction and indicated the dangers to be encountered to a chauffeur, who did not know the way, in no legal manner made the two joint adventurers in a common enterprise. The guest was riding at the pleasure of the driver, who was under no obligation or duty to obey the directions of Chairs with respect to where the driver should take or return the automobile, or in what manner it should be used and operated. In no true sense can it be said that they had joint or common possession and control of the automobile. Phila. etc. Ry.Co. v. Hogeland, 66 Md. 149; Balto. O.R. Co. v. McCabe,133 Md. 219, 224; Baltimore v. State, 146 Md. 440, 450, 451;Dorchester County v. Wright, 138 Md. 580; Wash., B. A. Ry.Co. v. State, 136 Md. 103, 109. It follows that the lower court was in error when it laid down the proposition that the negligence of the driver was imputable to his guest, under the circumstances disclosed by this record, and that, therefore, it should not have granted the appellee's ninth and thirteenth prayers, nor should it have modified the appellant's seventh prayer, which, together with appellant's first, fourth, and fifth prayers, should have been granted, as these were instructions of an accepted form and adapted to the facts of the instant case. It may also be added that appellee's ninth prayer was erroneous in imposing upon the driver the duty to exercise "the highest degree of care and skill practicable under all circumstances." Page 689 It is true that this expression is found in a prayer approved inUnited Rwys. Elec. Co. v. Crain, 123 Md. 332, 338, 339, 354, but the opinion did not expressly consider the phrase, which under the circumstances sets too high a degree of care, as was explained in Wash., B. A.R. Co. v. State, 136 Md. 103, 117. There was no error in rejecting appellant's third prayer, as it was abstract in form and did not require the jury to find as a condition of recovery that the injury complained of was caused by the negligent failure to give the crossing signal while the dead man was in the exercise of due care. The eighth prayer on the part of the appellant was rightly refused. It sought to hold the appellee responsible upon the theory that the servants of the appellee could have discovered the peril of the travelers on the crossing and then have stopped the engine and cars so as to have prevented the collision. There was no legally sufficient evidence to support the submission of this prayer. The fourth prayer of the appellee was a customary instruction on the burden of proof, and the appellee's fifth prayer as modified was unobjectionable. 3. The four exceptions on the evidence arise on the refusal of the trial court to permit witnesses to testify with respect to the equipment of the cars with air brakes. We think evidence was given tending to show that the cars were provided with only hand brakes, and this would prevent error from being prejudicial; but, as the case must be sent back for a new trial, it may be said that this evidence was admissible as reflecting upon how the movement of the freight cars was controlled. Because of the indicated error in the rulings on the prayers, the judgment will have to be reversed for a new trial. Judgment reversed, with costs, and case remanded for a newtrial. *Page 690	07-05-2016	[ "Isaac Rittinger was the owner of a five-passenger Studebaker automobile, and James G. Spahn, a friend, on the afternoon of December 24th, 1923, drove the owner and his wife to Hagerstown, where they went to spend Christmas with the owner's daughter, the wife of Frank H. Chairs. It was planned that, after spending Christmas day in Hagerstown, Spahn would go alone with the automobile to Frederick to visit and, on his return, take the owner and his wife back to their home in Baltimore. The party arrived in Hagerstown, went to the home of Frank H. Chairs, and Spahn remained there until about ten o'clock at night, when Spahn, at the request of Chairs, drove the latter and himself to a store to make some purchases, which had been overlooked by Mrs. Chairs.", "On their way back, Chairs suggested to Spahn that they drive to Williamsport for a ride. They accordingly proceeded over the railway crossing of the appellee at Virginia Avenue in Hagerstown and, after staying a few minutes in Williamsport, the two started on their return. Spahn continued to drive and, being unfamiliar with the route, requested Chairs, who sat on the right front seat, to direct him and to tell him when they approached the railway crossings. The first crossing which they met was that of the Cumberland Valley Railway, and Chairs warned the driver before it was reached. Appellee's crossing came next, and it was there that a collision occurred between the automobile Page 682 and the end of a string of thirty-two freight cars, which were being slowly pushed out upon the crossing. The appellee's railway crossing was at grade and consisted of the single main line track and a siding to its south. The tracks were laid diagonally across the highway, which was fifty-five feet wide, including the sidewalks, and its macadam surface for public travel was about thirty-nine feet wide.", "Both tracks extend from the west boundary line of the crossing in a straight line for about three hundred feet and then curve slightly to the left. As you approach the railway crossing from Williamsport, which is south of the crossing, the course of the highway is a direct line for about six hundred feet before reaching the crossing. The view to the left or west of the highway as you near the crossing is unobstructed, except for a two-story brick dwelling and a few small trees which are about seventy-five feet south of the crossing and on the west side of the highway. The testimony is that on the crossing the tracks are visible in daylight for about one thousand feet; and that for a distance of one hundred feet, measured south from the crossing along the highway, there is an unbroken view of the tracks to the west for from nine hundred to one thousand feet; and that, at a distance of one hundred and fifty feet, the view of the tracks in the same direction is from twelve hundred to thirteen hundred feet, but that, at a distance of two hundred feet from the crossing, a similar view is afforded for two hundred and fifty feet.", "Hence, with an adequate unobstructed view of the tracks to the west from this last named point, there was no occasion to stop as well as to look and listen before attempting to pass over the crossing. On the west of the highway, and a short distance south of the tracks, there was the usual railway danger signal post, but the crossing was without street or other light; and the railway company relied upon the signals given by an approaching train and by the crossing watchman to warn travelers by day and at night. The watchman was sheltered by a watchman's box built near the tracks, and he was equipped at night with a red lantern, which was so made that a red Page 683 light could be seen from the front and back faces of the lantern, but not from its two purposely darkened sides. The effect of this was to make the red light visible in but two and opposite directions, and the reason for the use of this type of lantern was to assure that the signal would not be observed by the trainmen when it was being used to warn the travelers on the highway.", "The length of the draft of the freight cars which came in collision with the automobile was about twelve hundred feet, and, as the pushing locomotive was on the curve in a cut, the engineer could not, at this distance, see the end of the draft or directly receive a signal from his brakeman at the other end, but regulated the movement of his train by signals relayed through brakemen at both ends, and in the middle, of the draft. The nearer end of the draft was estimated to be from one hundred and fifty to two hundred feet west of the crossing, and the movement of these freight cars was a yard or shifting operation, which began by the engineman blowing his whistle, when he started to push the draft over the crossing, so as to let the crew and the crossing watchman know the beginning of the propulsion of the draft over the highway crossing. According to the testimony on the part of the appellee, as soon as the engineman gave his whistle, the watchman took his place at the middle of the street crossing, between the main track and the siding track, and swung his lantern to give warning to the travelers on the highway.", "While the watchman was so engaged, the automobile occupied by Spahn and Chairs approached the crossing at a rapid speed without stopping, and the draft, as soon as it passed between the watchman and the automobile, prevented either the watchman seeing the automobile or its occupants observing the watchman and his signal. The driver, perceiving in his path, and too late to stop, the freight car, which was slowly moving over the crossing at a rate variously given as four, five and six miles an hour, turned, in his attempt to escape, the automobile sharply to the right and drove off the metaled highway, but not soon enough to avoid being struck Page 684 by the first freight car, which collided with the automobile and dragged it until, in response to a signal from the front brakeman, which was relayed through the intermediate brakeman to the engineer, the draft was brought to a stop after it had traveled almost four freight car lengths east of the crossing.", "The driver was thrown from the automobile and was found, injured, lying on the south of the switch and about seventy feet east of the crossing. The dead body of Chairs was among the wreckage of the automobile, which had been swept along and crumpled under the first freight car. The other evidence of the appellee tended to support its theory that the watchman was on the crossing in time, and, with the red light of his lantern displayed to the travelers on the highway, did signal long enough before the car reached the crossing for the driver to have stopped in a place of safety, and that the occupants of the automobile had seen the signal, but either disregarded it or had not looked until too late to avert the accident.", "The important testimony on the part of the appellant was that given by the driver of the automobile. His evidence with respect to the accident tended to show that Chairs told him of the first railway crossing on their way into Hagerstown, and that he slowed down and looked ahead and to the right and to the left before he drove over, and that at a curve in the highway, which the proof on the part of the appellee established was six hundred feet before the crossing of the appellee would be passed, Chairs again warned him of the railway crossing where the collision occurred, and asked him to slow down. In response to this warning and direction, the driver gradually reduced his speed from fifteen miles an hour to six or eight miles an hour, and about one hundred feet from the crossing he disengaged his clutch and let his automobile drift forward, meanwhile listening attentively and looking ahead and to the right and left until the railway crossing was reached, where, not having heard, nor hearing, anything to warn him of the oncoming freight cars, and not having seen, nor seeing, the cars, or any light or watchman, Page 685 the automobile drifted, without stopping, upon the railway crossing, being kept on the right side of the highway.", "The automobile had its front wheels about on the siding when its driver heard a shout on his left. He turned his head, saw, at the edge of the macadam of the highway, the approaching freight car and some one on it with a light, and immediately engaged his clutch, and did all in his power to escape, turning to the extreme right of the roadway, but before the driver could get off the siding the automobile was struck on the left, near the rear seat, and overturned, and then the driver lost all recollection of what happened until he was picked up on the south of the siding. The driver of the automobile further testified that Chairs warned him some six hundred feet away of the railway crossing in question, and the appellee, in the production of its evidence, proved an admission by the driver, containing the statement that his companion had notified him of the nearness of the crossing. It must be accepted, therefore, as a fact established by this record, that Chairs gave the driver due notice of the presence of the crossing. It is also the testimony of the driver that Chairs suggested the speed of the automobile be lessened, and that this was done in the manner described.", "The driver further stated that he knew from his companion's movements that he was also looking and listening as they traveled towards the crossing, but that neither of them spoke. The automobile was in good running condition, with its headlights burning and, at its rate of speed while advancing towards the crossing, could have been stopped within its own length. If the testimony on the part of the appellant be true, it tended to establish that, with no obstruction between the automobile and the railway track, with no signal, watchman, nor anything else seen or heard to indicate to Chairs the approach of the freight train, or the probable failure of the driver to continue, until the passage of the crossing was accomplished, to exercise the same degree of adequate care as he was then exhibiting, the automobile under control and Page 686 moving slowly forward was suddenly struck on the crossing by the unlighted end of a string of freight cars, unexpectedly emerging from the darkness of the night at the edge of the macadam highway, and advancing too rapidly for the driver of the automobile to avoid the collision.", "This testimony tending to show the culpability of the appellee and the absence of fault on the part of Spahn and of Chairs was in conflict with the evidence offered by the appellee, but the relative credibility and weight of the evidence was for the jury and not for the court, unless the testimony for appellant is so clearly false that it must be rejected in the consideration of this case. The accident occurred late at night, the crossing had no street light, and the string of unlighted freight cars on the siding track was motionless in the darkness. The pushing engine was around a curve and hidden from view in a cut about fourteen hundred feet west of the highway crossing, and the other end of the draft of freight cars was, as appellee's watchman first testified in chief, within fifty or sixty feet of the crossing, but later, on his cross-examination, he asserted the distance was from one hundred and fifty feet to two hundred feet, which is the estimate of the other witnesses on the part of the appellee.", "In any event, the distance to be traversed before the first freight car reached the crossing was short. The only signal which the appellee asserts was given by the engine was a whistle blown at the beginning of the movement of the freight cars towards the crossing. This was not blown to warn travelers on the highway, but to notify the watchman in his box to take his station at the crossing to protect the public. The testimony of the driver that he, although listening for a signal, heard none, is affirmative testimony from which the jury might have found the distant whistle was either not given or was not heard. Balto. O.R.", "Co.v. State, 141 Md. 523. Moreover, the movement was not that of a running train out in the silence of open country, but a slow movement of a draft of freight cars on a siding track connected with the railway yards of Hagerstown, that had begun, under the propulsion of a distant and invisible engine, only a few minutes before the accident. Page 687 The foremost freight car carried no warning light and, according to the appellant's proof, did not leave the obscurity of the night by entering upon the crossing until the front part of the automobile was upon the track of the siding.", "Under the circumstances it cannot be said that the testimony of the driver to the effect that, although looking and listening, the occupants of the automobile had not seen nor heard the approach of the freight cars during the few feet it had been in motion before it come on the crossing was so inherently incredible as to be unworthy of consideration. The driver saw the car as soon as it was visible, according to his testimony, and nothing the other occupant of the automobile could have done would have been helpful in such an imminent peril. Nor do the facts warrant disregarding the testimony that those in the automobile were not warned by the crossing watchman. It was possible for the watchman not to have been at his post; and for the warning signal from his lantern not to have been given because of this absence, or because the covered or dark sides of his lantern were turned towards the travelers on the highway, and the illuminated sides were held so as to shine up and down the railway tracks.", "The presence of the watchman at his station in time to give warning to the occupants of the automobile was not an inevitably accompanying circumstance of the accident, but was an independent fact to be established by proof. The witnesses for the appellee testified that they looked and saw him there signaling travelers to stop; but the witness for the appellant was as positive and direct in his testimony that the occupants of the automobile also looked, but saw neither the watchman nor his signal. It clearly was for the jury to weigh this conflicting evidence and to determine the issue of fact it raised; and, therefore, the appellee was not justified in its contention that the judgment of the lower court should be affirmed on the ground that the appellant had sustained no injury because appellee's prayers demurring to the legal sufficiency of the evidence to entitle the appellant to a recovery should have been granted. Balto.", "O.R.R. Co. v. McCabe, 133 Md. 219, 224, 225. Page 688 2. The next matter for determination is presented by the ruling on the prayers. The rejection of the appellant's first, fourth and fifth prayers, and the granting of appellant's seventh prayer as modified by the court, and of appellee's ninth and thirteenth prayers, were due to the acceptance by the nisi prius court of appellee's theory that the negligence of the driver was imputable to the other occupant of the automobile. The evidence established that Chairs was neither the master nor the principal of the driver of the automobile. The driver who had possession and control of the automobile was the bailee of its owner; and Chairs was the guest or passenger of the bailee. That Chairs requested the bailee to drive him, first, to the shopping district and then to Williamsport, and pointed out the direction and indicated the dangers to be encountered to a chauffeur, who did not know the way, in no legal manner made the two joint adventurers in a common enterprise. The guest was riding at the pleasure of the driver, who was under no obligation or duty to obey the directions of Chairs with respect to where the driver should take or return the automobile, or in what manner it should be used and operated.", "In no true sense can it be said that they had joint or common possession and control of the automobile. Phila. etc. Ry.Co. v. Hogeland, 66 Md. 149; Balto. O.R. Co. v. McCabe,133 Md. 219, 224; Baltimore v. State, 146 Md. 440, 450, 451;Dorchester County v. Wright, 138 Md. 580; Wash., B. A. Ry.Co. v. State, 136 Md. 103, 109. It follows that the lower court was in error when it laid down the proposition that the negligence of the driver was imputable to his guest, under the circumstances disclosed by this record, and that, therefore, it should not have granted the appellee's ninth and thirteenth prayers, nor should it have modified the appellant's seventh prayer, which, together with appellant's first, fourth, and fifth prayers, should have been granted, as these were instructions of an accepted form and adapted to the facts of the instant case.", "It may also be added that appellee's ninth prayer was erroneous in imposing upon the driver the duty to exercise \"the highest degree of care and skill practicable under all circumstances.\" Page 689 It is true that this expression is found in a prayer approved inUnited Rwys. Elec. Co. v. Crain, 123 Md. 332, 338, 339, 354, but the opinion did not expressly consider the phrase, which under the circumstances sets too high a degree of care, as was explained in Wash., B. A.R. Co. v. State, 136 Md. 103, 117. There was no error in rejecting appellant's third prayer, as it was abstract in form and did not require the jury to find as a condition of recovery that the injury complained of was caused by the negligent failure to give the crossing signal while the dead man was in the exercise of due care. The eighth prayer on the part of the appellant was rightly refused. It sought to hold the appellee responsible upon the theory that the servants of the appellee could have discovered the peril of the travelers on the crossing and then have stopped the engine and cars so as to have prevented the collision.", "There was no legally sufficient evidence to support the submission of this prayer. The fourth prayer of the appellee was a customary instruction on the burden of proof, and the appellee's fifth prayer as modified was unobjectionable. 3. The four exceptions on the evidence arise on the refusal of the trial court to permit witnesses to testify with respect to the equipment of the cars with air brakes. We think evidence was given tending to show that the cars were provided with only hand brakes, and this would prevent error from being prejudicial; but, as the case must be sent back for a new trial, it may be said that this evidence was admissible as reflecting upon how the movement of the freight cars was controlled.", "Because of the indicated error in the rulings on the prayers, the judgment will have to be reversed for a new trial. Judgment reversed, with costs, and case remanded for a newtrial. *Page 690" ]	https://www.courtlistener.com/api/rest/v3/opinions/3486524/	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
Title: From Benjamin Franklin to the Earl of Shelburne, 26 November 1782 From: Franklin, Benjamin To: Shelburne, William Petty, Earl of My Lord,Passy, Nov. 26. 1782 Mr Vaughan brought me some time since from your Lordship a Remedy you were so kind as to send me for my Gravel. I intended to thank you by him. He staid here much longer than I expected, and when he went it was so suddenly that I had not time to write. I was nevertheless extreamly sensible of your Goodness towards me in this fresh Instance, and I beg you to accept my thankful Acknowledgements, and to be assur’d that I shall ever retain a grateful Remembrance of it. With great and sincere Esteem and Respect, I have the honour to be, My Lord, Your Lordship’s most obedient and most humble Servant B Franklin Rt Honble. the Earl of Shelburne	11-26-1782	[ "Title: From Benjamin Franklin to the Earl of Shelburne, 26 November 1782 From: Franklin, Benjamin To: Shelburne, William Petty, Earl of My Lord,Passy, Nov. 26. 1782 Mr Vaughan brought me some time since from your Lordship a Remedy you were so kind as to send me for my Gravel. I intended to thank you by him. He staid here much longer than I expected, and when he went it was so suddenly that I had not time to write. I was nevertheless extreamly sensible of your Goodness towards me in this fresh Instance, and I beg you to accept my thankful Acknowledgements, and to be assur’d that I shall ever retain a grateful Remembrance of it. With great and sincere Esteem and Respect, I have the honour to be, My Lord, Your Lordship’s most obedient and most humble Servant B Franklin Rt Honble. the Earl of Shelburne" ]	https://founders.archives.gov/API/docdata/Franklin/01-38-02-0267	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
Exhibit 10.64 EMPLOYMENT AGREEMENT BETWEEN LITHIUM TECHNOLOGY CORPORATION AND AMIR ELBAZ THIS AGREEMENT made effective as of the 5th day of December, 2006, by and between Lithium Technology Corporation, a Delaware corporation with a principal place of business at 5115 Campus Drive, Plymouth Meeting, Pennsylvania (hereafter “LTC” or the “Company”), and Amir Elbaz, with a principal place of business at 375 Park Avenue, New York, New York (hereafter or “Employee”). RECITALS: WHEREAS, LTC is engaged in the business of designing, developing, manufacturing, marketing, managing and operating proprietary devices, equipment, and technologies to sell battery cells, batteries and development contracts (the “Business”); WHEREAS, LTC desires to engage Employee to provide certain services related to the development and operation of the Business; and WHEREAS, Employee desires to render such services. NOW THEREFORE, in consideration of the mutual promises and covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Employment. (a) LTC hereby engages Employee as its Executive Vice President, Chief Financial Officer, and Treasurer who shall supervise and monitor the finances of the Company and financial reporting of the Company, including working with the outside auditors of the Company, and Employee hereby accepts the appointment to serve in each capacity at LTC. During the term of this Agreement, Employee will be responsible to report to the Chief Executive Officer and/or the Chairman of the Board of Directors. (b) Employee hereby accepts such appointment subject to the provisions and conditions of this Agreement. 2. Term of Agreement. This Agreement shall be for a period of three (3) years if not sooner terminated pursuant to Section 6 below (the “Term”). The parties may agree by written amendment to continue this Agreement after that date on a year to year basis. 3. Employee’s Duties. Employee shall devote so much of his time and attention to the affairs of the Company. Employee shall perform the duties of Executive Vice President, Chief Financial Officer, and Treasurer (the “Duties”). Nothing in this Agreement shall restrict Employee, however from expending his personal time on his own ventures or investments so long as: (i) -------------------------------------------------------------------------------- such activities are consistent with Employee’s Duties with the Company; (ii) such activities and time commitments do not impair the effective performance of his Duties for the Company; (iii) such activities do not, directly or indirectly, compete with the Business of the Company; and (iv) Employee discloses such activities to the Board of Directors. (a) Employee will cooperate with the Company in any efforts by the Company to obtain a life insurance policy on the life of Employee for the benefit of the Company. 4. Company’s Duties. (a) The Company shall: (i) Compensate Employee as set forth in Section 5 below. (ii) Furnish the Employee with a suitable private office, and such equipment, supplies, instruments, and clerical and staff support as are reasonable and necessary to fulfil his Duties as set forth in this Agreement. (iii) Furnish Employee with such data, materials, documents and other information as are reasonable and necessary to fulfil his responsibilities and Duties as set forth in this Agreement. (iv) Reimburse Employee for all reasonable out of pocket business expenses he incurs to fulfil the terms of this Agreement, approved by the Company in accordance with its policies, rules, standards, and/or procedures governing such expenses, including without limitation, those for travel, lodging, food, telephone, facsimile and other electronic voice or data transmissions. Employee shall submit periodic reports of such expenses on forms with supporting documentation as the Company shall prescribe for its executive employees and the Company shall pay such reimbursement within forty-five (45) days of such submissions. (b) The Company, upon approval of the Board of Directors, may pay additional compensation to Employee as a member of management and/or for serving on the Board of Directors beyond that amount set forth in Section 5 below. The Board may approve such additional compensation if it views such additional compensation to be in the best interest of, and fair to the Company. Such additional compensation may be in the form of, without limitation, stock options, warrants, or performance bonuses. 5. Compensation. (a) The Company shall pay Employee, at a minimum, a base annual salary of $225,000 (“Base Compensation”) for each of the three (3) years during the Term of this Agreement. Compensation shall be in bi weekly installments payable on the 15th day of the month and last day of each month, except as the parties may agree to another installment practice with the consent of the Board of Directors from time to time. There shall be no adjustment for cost of living increases or Consumer Price Index increases. This compensation is subject to Section 5(d) below. -------------------------------------------------------------------------------- (b) Employee shall be eligible to participate in coverage under the Company’s employee and insurance plans or programs and other employee benefit plan or programs, if any, at least equal to the coverage provided to other full-time executives of LTC. (c) Employee may be paid additional compensation (as a member of management and/or the Board of Directors) as the Board may approve from time to time pursuant to Section 4(b) above. (d) Employee shall be provided with a Company car on a full time basis to meet his commuting needs. All associated costs including but not limited to parking, gas, tolls and insurance shall be covered by the Company. 6. Termination. (a) The Term of this Agreement shall end on the date of the first of the following events to occur: (i) Close of business three (3) years to the date following the execution of this Agreement. (ii) Thirty (30) days following the Board of Director’s receipt of written notice of Employee’s resignation. Employee shall not deliver any such notice until the parties have had prior verbal discussions. (iii) The date on which or in the case of (A), (B), the date which is thirty (30) days after the date on which the Employee shall have received written notice from the Board of Directors of the Company that it has decided to terminate his employment for cause, which notice shall specify the nature of such cause. For purposes of this subsection, “cause” shall mean any of the following: (A) Employee’s breach of any term of this Agreement. (B) The repeated, deliberate or intentional failure, refusal, or the habitual neglect of Employee to perform his Duties to the standard required under this Agreement (except by reason of short term or long term disability). (C) Acts constituting gross negligence in the performance of Employee’s Duties or any cause based on criminal misconduct. (D) An act of dishonesty by Employee intended to result in gain or personal enrichment of Employee at the Company’s expense. (E) In the event that Employee is unable for a period of one hundred eighty (180) consecutive days to substantially perform his Duties under this Agreement by reason of illness or incapacity, the thirtieth (30th) day after the date on which Employee shall have received written notice from the Board of Directors of the Company that it has decided to terminate his employment because of such disability. -------------------------------------------------------------------------------- (F) The date on which the Employee shall have received written notice form the Board of Directors of the Company that it has decided to terminate his employment without cause. (G) This Agreement shall terminate automatically upon death of the Employee. (b) Termination of this Agreement pursuant to Section 6(a) shall not affect Employee’s obligations under Sections 7 (Confidentiality), 8 (Restrictive Covenants), and 10 (Inventions). (c) In the event of termination without cause as provided in subsection (F) the Company will continue to pay the Employee an amount equal to his pay for twelve month monthly instalments (twelve months salary) or the amount equal to his pay for the number of monthly instalments remaining under this Agreement, whichever is less. 7. Confidentiality. (a) Employee may now and in the future have access to, and may be given information with respect to the special business techniques, concepts, designs, drawings, ideas, models, inventions, molds, forms, software programs, other intangible work product and tangible deliverables, patents, copyrights, trade secrets, other intellectual property, systems, know-how, financial, accounting and production policies, procedures, records and infrastructure, lists of customers, and all other information regarding manufacture, implementation or distribution of the products, plans and technology (the “Confidential Information) that are part of or used or useful in the Business of the Company and its members, employees, agents, subsidiaries or affiliates , which is not generally known to the public and gives the Company an advantage over its respective competitors who do not know or use the Confidential Information. Employee acknowledges that all of such Confidential Information as it now or in the future exists: (1) Belongs to the Company, its shareholders, subsidiaries and affiliates; (2) Constitutes specialized and highly confidential information not generally known in the industry; and (3) Constitutes a valuable asset of the Company. Accordingly, Employee recognizes and acknowledges that it is essential to the Company to protect the confidentiality of such Confidential Information. (b) Employee agrees to act as a trustee of such Confidential Information and of any other confidential information he acquires in connection with his association with the Company. Further, as an inducement to the Company to retain him as an employee, he will hold all such Confidential Information, in trust and confidence for the use and benefit solely of the Company. (c) Employee agrees to refrain from divulging or disclosing any Confidential Information to others and from using such Confidential Information, except for the benefit of the Company as contemplated hereunder. Employee further agrees to refrain from taking any other actions, which would tend to destroy or reduce the value of the Confidential Information to the Protected Party. -------------------------------------------------------------------------------- (d) Upon Employee’s termination (for any reason), Employee shall deliver, or cause to be delivered in the case of termination because of incapacity, to the Company all documents and data of any nature pertaining to his work with the Company. Employee shall not take any documents or data of any description or any reproduction of any description containing or pertaining to any Confidential Information. (e) The confidentiality provisions of this Section 7 are intended to supplement and not supersede the applicable provisions of the Uniform Trade Secrets Act, to the fullest extent applicable. (f) During the term hereof, and thereafter, Employee shall not disclose such Confidential Information to any person, firm, association, or other entity for any reason or purpose whatsoever, unless such information has already become common knowledge or unless Employee is required to disclose it by judicial process. Employee shall notify the Company in writing of such judicial process prior to disclosure, and allow the Company a reasonable opportunity to defend and protect its rights therein. 8. Restrictive Covenants. (a) For a period of three (3) years after the expiration or termination of this Agreement for any reason whatsoever, Employee shall not, directly or indirectly, engage in activities for, nor render services (similar or reasonably related to those in which Employee shall have rendered to the Company) to, any person, entity, firm, business organization which directly or indirectly competes with the Business of the Company to the extent and insofar as such competition is based on or exploits the Confidential Information or Inventions (defined below) of the Company, whether now existing or hereafter established, nor shall Employee entice, induce or encourage any of the Company’s employees to engage in any activity which, were it done by Employee, would violate any provision of this section. (b) For a period of three (3) years after the expiration or termination of this Agreement for any reason whatsoever, Employee shall not, directly or indirectly, solicit the Company’s employees or independent contractors to leave their employ or terminate their contracts with the Company. Further, Employee shall not offer or cause to be offered employment or an independent contract to any person who was employed by or under contract with the Business of the Company at any time during the eighteen (18) months prior to the termination of his employment with the Company. Upon Employee’s written request to the Company specifying the activities proposed to be conducted by Employee, the Company may in its discretion give Employee written approval(s) to personally engage in any activity or render services referred to in Subsection (a) upon receipt of written assurances (satisfactory to the Company and its counsel) from Employee and from Employee’s prospective employer(s), partner(s) or company that the integrity and provisions of this Section will not in any way be jeopardized or violated by such activities, provided the burden of so establishing the foregoing to the satisfaction of the Company and its counsel shall be upon Employee and his prospective employer(s), partner(s) or company (c) The parties acknowledge that they have attempted to limit Employee’s right to compete only to the extent necessary to protect the Company from unfair competition. However, the -------------------------------------------------------------------------------- parties hereby agree that, if the scope or enforceability of the restrictive covenant is in any way disputed at any time, a court or other competent trier of fact may modify and enforce the covenant to the extent that it finds the covenant to be reasonable under the circumstances existing at the time. (d) Employee further acknowledges that: (1) in the event his contract with the Company terminates for any reason, he will be able to earn a livelihood without violating the foregoing restrictions; and (2) that his ability to earn a livelihood without violating such restrictions is a material condition to his retention by the Company. (e) Employee’s duties under this Section 8 shall survive termination of this Agreement. Employee acknowledges that a remedy at law for any breach or threatened breach by Employee of this Section 8 may be inadequate, and Employee therefore agrees that the Company shall be entitled to all available remedies in law including injunctive relief in case of any such breach or threatened breach. 9. Warranty Against Prior Existing Restriction. Employee represents and warrants to the Company that he is not a party to any agreement containing a non-competition clause or other restriction with respect to: (a) the services which he is required to perform hereunder; or (b) the use or disclosure of any information directly or indirectly related to the Company’s business, or to the services he is required to render pursuant hereto. 10. Inventions. (a) Employee agrees to promptly disclose to the Company, or any persons designated by it, all improvements, inventions, formulae, processes, techniques, know-how and data, whether or not patentable, made or conceived or reduced to practice or learned by Employee, either alone or jointly with others, during the period of Employee’s employment which are useful in the Business of the Company, or result from tasks assigned to Employee by the Company, or result from use or premises owned, leased or contracted for by the Company (all said improvements, inventions, formulae, processes, techniques, know-how and data shall be collectively hereinafter called “Inventions”). (b) All Inventions shall be the sole property of the Company and its assigns, and the Company and its assigns shall be the sole owner of all patents and other rights in connection therewith. Employee hereby assigns to the Company any rights he may have or acquire in all Inventions. Employee further agrees as to all Inventions to assist the Company in every proper way (but at the Company’s expense) to obtain and from time to time enforce patents, copyrights, trademarks, and other rights and protections and enforcing the same, as the Company may desire, together with any assignments thereof to the Company or persons designated by it. Employee’s obligation to assist the Company in obtaining and enforcing patents, copyrights, trademarks and other rights and protections relating to the Inventions in any and all countries shall continue beyond the termination of Employee’s employment, but the Company shall compensate Employee at a reasonable rate after such termination for time actually spent by Employee at the Company’s request on such assistance. (c) In the event the Company is unable after reasonable effort, to secure Employee’s signature on any document or documents needed to apply for or prosecute any patent, copyright, -------------------------------------------------------------------------------- other right or protection relating to an Invention, for any reason whatsoever, Employee hereby irrevocably designates and appoints the Company and its duly authorized officers and agents as Employee’s agent and attorney-in-fact to act for and on Employee’s behalf to execute and file any such application or applications and to do all other lawfully permitted acts to further the prosecution and issuance of patents, copyrights, or similar protections thereon with the same legal force and effect as if executed by Employee. (d) The Company makes no claim to any intellectual property or product which is developed or invented by Employee, which is not useful in or related to the Company’s Business, provided such intellectual property or product does not result from the use of Confidential Information or violate any terms of Section 7 (Confidentiality), Section 8 (Restrictive Covenants), or Section 10 (Inventions) set forth in this Agreement. 11. Severability. It is the desire and intent of the parties hereto that the provisions of this Agreement shall be enforced to the fullest extent permissible under the laws and public policy of each jurisdiction in which enforcement is sought. Accordingly, if any particular provision, section, or subsection of this Agreement is adjudged by any court of law to be void or unenforceable, in whole or in part, such adjudication shall not be deemed to affect the validity of the remainder of the Agreement, including any other provision, section, or subsection. In addition, if any one or more of the provisions contained in this Agreement shall for any reason be held to be excessively broad as to duration, geographical scope, activity or subject, it shall be construed by limiting and reducing it, so as to be enforceable to the extent compatible with the applicable law as it shall then appear. Each provision, section, and subsection of this Agreement is declared to be separable from every other provision, section, and subsection and constitutes a separate and distinct covenant. 12. Entire Agreement. This Agreement contains the entire understanding of the parties and supersedes all previous verbal and written agreements. There are no other agreements, representations, or warranties not set forth herein. 13. Notices. All notices or other documents under this Agreement shall be in writing and delivered personally or mailed by certified mail, return receipt requested postage prepaid, addressed to the Company or Employee at their last known addresses. Addresses are as follows: If to the Company: Lithium Technology Corporation 5115 Campus Drive Plymouth Meeting, PA 19462 Attention: Andrew J. Manning With Copy to: Gallagher, Briody & Butler 155 Village Blvd., Suite 201 Princeton, NJ 08540 Attention: Thomas P. Gallagher, Esq. If to Employee: Amir Elbaz 375 Park Avenue, Suite 1309 New York, NY 10152 14. Non-waiver. No delay or failure by either party to exercise any right under this Agreement, and no partial or single exercise of that right, shall constitute a waiver of that or any other right, unless otherwise expressly provided herein. -------------------------------------------------------------------------------- 15. Headings. Headings in this Agreement are for convenience only and shall not be used to interpret or construe its provisions. 16. Governing Law. This Agreement shall be construed in accordance with and governed by the laws of the State of New York. 17. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. 18. Binding Effect. The provisions of this Agreement shall be binding upon and inure to the benefit of each of the parties and their respective successors and assigns. 19. Remedies. The parties agree that in addition to any other rights and remedies available to the Company for any breach by Employee of his obligations hereunder, the Company shall be entitled to enforce Employee’s obligations hereunder by court injunction, or court ordered affirmative action, which injunction or ordered action may restrain a future breaking of this Agreement if there is reasonable ground to believe that such a breach is threatened. Employee further agrees to allow the Company to enjoin future use or disclosure of its Confidential Information if it has reasonable grounds to believe such action is necessary to protect such Confidential Information. 20. Attorney’s Fees. If either party hereto shall breach any of the terms hereof, such breaching party shall pay to the non-defaulting party all of the non-defaulting party’s costs and expenses, including reasonable attorney’s fees and costs, incurred by such party in enforcing the terms of this Agreement. 21. Prohibition Against Assignment. Employee agrees, for himself and on behalf of his successors, heirs, executors, administrators, and any person or persons claiming under him by virtue hereof, that this Agreement and the rights, interests, and benefits hereunder cannot be assigned, transferred, pledged, or hypothecated in any way and shall not be subject to execution, attachment, or similar process. Any such attempt to do so, contrary to the terms hereof, shall be null and void and shall relieve the Company of any and all obligations or liability hereunder. IN WITNESS WHEREOF, the Parties have duly executed this Agreement as of the date first written above. For Company: /s/ H.H. van Andel By: H.H. van Andel Its: Chairman of the Board For Employee: /s/ Amir Elbaz By: Amir Elbaz As: Individual		[ "Exhibit 10.64 EMPLOYMENT AGREEMENT BETWEEN LITHIUM TECHNOLOGY CORPORATION AND AMIR ELBAZ THIS AGREEMENT made effective as of the 5th day of December, 2006, by and between Lithium Technology Corporation, a Delaware corporation with a principal place of business at 5115 Campus Drive, Plymouth Meeting, Pennsylvania (hereafter “LTC” or the “Company”), and Amir Elbaz, with a principal place of business at 375 Park Avenue, New York, New York (hereafter or “Employee”). RECITALS: WHEREAS, LTC is engaged in the business of designing, developing, manufacturing, marketing, managing and operating proprietary devices, equipment, and technologies to sell battery cells, batteries and development contracts (the “Business”); WHEREAS, LTC desires to engage Employee to provide certain services related to the development and operation of the Business; and WHEREAS, Employee desires to render such services. NOW THEREFORE, in consideration of the mutual promises and covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Employment. (a) LTC hereby engages Employee as its Executive Vice President, Chief Financial Officer, and Treasurer who shall supervise and monitor the finances of the Company and financial reporting of the Company, including working with the outside auditors of the Company, and Employee hereby accepts the appointment to serve in each capacity at LTC. During the term of this Agreement, Employee will be responsible to report to the Chief Executive Officer and/or the Chairman of the Board of Directors.", "(b) Employee hereby accepts such appointment subject to the provisions and conditions of this Agreement. 2. Term of Agreement. This Agreement shall be for a period of three (3) years if not sooner terminated pursuant to Section 6 below (the “Term”). The parties may agree by written amendment to continue this Agreement after that date on a year to year basis. 3. Employee’s Duties. Employee shall devote so much of his time and attention to the affairs of the Company.", "Employee shall perform the duties of Executive Vice President, Chief Financial Officer, and Treasurer (the “Duties”). Nothing in this Agreement shall restrict Employee, however from expending his personal time on his own ventures or investments so long as: (i) -------------------------------------------------------------------------------- such activities are consistent with Employee’s Duties with the Company; (ii) such activities and time commitments do not impair the effective performance of his Duties for the Company; (iii) such activities do not, directly or indirectly, compete with the Business of the Company; and (iv) Employee discloses such activities to the Board of Directors. (a) Employee will cooperate with the Company in any efforts by the Company to obtain a life insurance policy on the life of Employee for the benefit of the Company. 4. Company’s Duties. (a) The Company shall: (i) Compensate Employee as set forth in Section 5 below. (ii) Furnish the Employee with a suitable private office, and such equipment, supplies, instruments, and clerical and staff support as are reasonable and necessary to fulfil his Duties as set forth in this Agreement. (iii) Furnish Employee with such data, materials, documents and other information as are reasonable and necessary to fulfil his responsibilities and Duties as set forth in this Agreement.", "(iv) Reimburse Employee for all reasonable out of pocket business expenses he incurs to fulfil the terms of this Agreement, approved by the Company in accordance with its policies, rules, standards, and/or procedures governing such expenses, including without limitation, those for travel, lodging, food, telephone, facsimile and other electronic voice or data transmissions. Employee shall submit periodic reports of such expenses on forms with supporting documentation as the Company shall prescribe for its executive employees and the Company shall pay such reimbursement within forty-five (45) days of such submissions. (b) The Company, upon approval of the Board of Directors, may pay additional compensation to Employee as a member of management and/or for serving on the Board of Directors beyond that amount set forth in Section 5 below.", "The Board may approve such additional compensation if it views such additional compensation to be in the best interest of, and fair to the Company. Such additional compensation may be in the form of, without limitation, stock options, warrants, or performance bonuses. 5. Compensation. (a) The Company shall pay Employee, at a minimum, a base annual salary of $225,000 (“Base Compensation”) for each of the three (3) years during the Term of this Agreement. Compensation shall be in bi weekly installments payable on the 15th day of the month and last day of each month, except as the parties may agree to another installment practice with the consent of the Board of Directors from time to time. There shall be no adjustment for cost of living increases or Consumer Price Index increases.", "This compensation is subject to Section 5(d) below. -------------------------------------------------------------------------------- (b) Employee shall be eligible to participate in coverage under the Company’s employee and insurance plans or programs and other employee benefit plan or programs, if any, at least equal to the coverage provided to other full-time executives of LTC. (c) Employee may be paid additional compensation (as a member of management and/or the Board of Directors) as the Board may approve from time to time pursuant to Section 4(b) above. (d) Employee shall be provided with a Company car on a full time basis to meet his commuting needs. All associated costs including but not limited to parking, gas, tolls and insurance shall be covered by the Company. 6. Termination. (a) The Term of this Agreement shall end on the date of the first of the following events to occur: (i) Close of business three (3) years to the date following the execution of this Agreement.", "(ii) Thirty (30) days following the Board of Director’s receipt of written notice of Employee’s resignation. Employee shall not deliver any such notice until the parties have had prior verbal discussions. (iii) The date on which or in the case of (A), (B), the date which is thirty (30) days after the date on which the Employee shall have received written notice from the Board of Directors of the Company that it has decided to terminate his employment for cause, which notice shall specify the nature of such cause. For purposes of this subsection, “cause” shall mean any of the following: (A) Employee’s breach of any term of this Agreement. (B) The repeated, deliberate or intentional failure, refusal, or the habitual neglect of Employee to perform his Duties to the standard required under this Agreement (except by reason of short term or long term disability). (C) Acts constituting gross negligence in the performance of Employee’s Duties or any cause based on criminal misconduct. (D) An act of dishonesty by Employee intended to result in gain or personal enrichment of Employee at the Company’s expense.", "(E) In the event that Employee is unable for a period of one hundred eighty (180) consecutive days to substantially perform his Duties under this Agreement by reason of illness or incapacity, the thirtieth (30th) day after the date on which Employee shall have received written notice from the Board of Directors of the Company that it has decided to terminate his employment because of such disability. -------------------------------------------------------------------------------- (F) The date on which the Employee shall have received written notice form the Board of Directors of the Company that it has decided to terminate his employment without cause. (G) This Agreement shall terminate automatically upon death of the Employee. (b) Termination of this Agreement pursuant to Section 6(a) shall not affect Employee’s obligations under Sections 7 (Confidentiality), 8 (Restrictive Covenants), and 10 (Inventions). (c) In the event of termination without cause as provided in subsection (F) the Company will continue to pay the Employee an amount equal to his pay for twelve month monthly instalments (twelve months salary) or the amount equal to his pay for the number of monthly instalments remaining under this Agreement, whichever is less.", "7. Confidentiality. (a) Employee may now and in the future have access to, and may be given information with respect to the special business techniques, concepts, designs, drawings, ideas, models, inventions, molds, forms, software programs, other intangible work product and tangible deliverables, patents, copyrights, trade secrets, other intellectual property, systems, know-how, financial, accounting and production policies, procedures, records and infrastructure, lists of customers, and all other information regarding manufacture, implementation or distribution of the products, plans and technology (the “Confidential Information) that are part of or used or useful in the Business of the Company and its members, employees, agents, subsidiaries or affiliates , which is not generally known to the public and gives the Company an advantage over its respective competitors who do not know or use the Confidential Information. Employee acknowledges that all of such Confidential Information as it now or in the future exists: (1) Belongs to the Company, its shareholders, subsidiaries and affiliates; (2) Constitutes specialized and highly confidential information not generally known in the industry; and (3) Constitutes a valuable asset of the Company.", "Accordingly, Employee recognizes and acknowledges that it is essential to the Company to protect the confidentiality of such Confidential Information. (b) Employee agrees to act as a trustee of such Confidential Information and of any other confidential information he acquires in connection with his association with the Company. Further, as an inducement to the Company to retain him as an employee, he will hold all such Confidential Information, in trust and confidence for the use and benefit solely of the Company. (c) Employee agrees to refrain from divulging or disclosing any Confidential Information to others and from using such Confidential Information, except for the benefit of the Company as contemplated hereunder. Employee further agrees to refrain from taking any other actions, which would tend to destroy or reduce the value of the Confidential Information to the Protected Party. -------------------------------------------------------------------------------- (d) Upon Employee’s termination (for any reason), Employee shall deliver, or cause to be delivered in the case of termination because of incapacity, to the Company all documents and data of any nature pertaining to his work with the Company.", "Employee shall not take any documents or data of any description or any reproduction of any description containing or pertaining to any Confidential Information. (e) The confidentiality provisions of this Section 7 are intended to supplement and not supersede the applicable provisions of the Uniform Trade Secrets Act, to the fullest extent applicable. (f) During the term hereof, and thereafter, Employee shall not disclose such Confidential Information to any person, firm, association, or other entity for any reason or purpose whatsoever, unless such information has already become common knowledge or unless Employee is required to disclose it by judicial process. Employee shall notify the Company in writing of such judicial process prior to disclosure, and allow the Company a reasonable opportunity to defend and protect its rights therein. 8. Restrictive Covenants. (a) For a period of three (3) years after the expiration or termination of this Agreement for any reason whatsoever, Employee shall not, directly or indirectly, engage in activities for, nor render services (similar or reasonably related to those in which Employee shall have rendered to the Company) to, any person, entity, firm, business organization which directly or indirectly competes with the Business of the Company to the extent and insofar as such competition is based on or exploits the Confidential Information or Inventions (defined below) of the Company, whether now existing or hereafter established, nor shall Employee entice, induce or encourage any of the Company’s employees to engage in any activity which, were it done by Employee, would violate any provision of this section.", "(b) For a period of three (3) years after the expiration or termination of this Agreement for any reason whatsoever, Employee shall not, directly or indirectly, solicit the Company’s employees or independent contractors to leave their employ or terminate their contracts with the Company. Further, Employee shall not offer or cause to be offered employment or an independent contract to any person who was employed by or under contract with the Business of the Company at any time during the eighteen (18) months prior to the termination of his employment with the Company. Upon Employee’s written request to the Company specifying the activities proposed to be conducted by Employee, the Company may in its discretion give Employee written approval(s) to personally engage in any activity or render services referred to in Subsection (a) upon receipt of written assurances (satisfactory to the Company and its counsel) from Employee and from Employee’s prospective employer(s), partner(s) or company that the integrity and provisions of this Section will not in any way be jeopardized or violated by such activities, provided the burden of so establishing the foregoing to the satisfaction of the Company and its counsel shall be upon Employee and his prospective employer(s), partner(s) or company (c) The parties acknowledge that they have attempted to limit Employee’s right to compete only to the extent necessary to protect the Company from unfair competition.", "However, the -------------------------------------------------------------------------------- parties hereby agree that, if the scope or enforceability of the restrictive covenant is in any way disputed at any time, a court or other competent trier of fact may modify and enforce the covenant to the extent that it finds the covenant to be reasonable under the circumstances existing at the time. (d) Employee further acknowledges that: (1) in the event his contract with the Company terminates for any reason, he will be able to earn a livelihood without violating the foregoing restrictions; and (2) that his ability to earn a livelihood without violating such restrictions is a material condition to his retention by the Company. (e) Employee’s duties under this Section 8 shall survive termination of this Agreement. Employee acknowledges that a remedy at law for any breach or threatened breach by Employee of this Section 8 may be inadequate, and Employee therefore agrees that the Company shall be entitled to all available remedies in law including injunctive relief in case of any such breach or threatened breach.", "9. Warranty Against Prior Existing Restriction. Employee represents and warrants to the Company that he is not a party to any agreement containing a non-competition clause or other restriction with respect to: (a) the services which he is required to perform hereunder; or (b) the use or disclosure of any information directly or indirectly related to the Company’s business, or to the services he is required to render pursuant hereto. 10.", "Inventions. (a) Employee agrees to promptly disclose to the Company, or any persons designated by it, all improvements, inventions, formulae, processes, techniques, know-how and data, whether or not patentable, made or conceived or reduced to practice or learned by Employee, either alone or jointly with others, during the period of Employee’s employment which are useful in the Business of the Company, or result from tasks assigned to Employee by the Company, or result from use or premises owned, leased or contracted for by the Company (all said improvements, inventions, formulae, processes, techniques, know-how and data shall be collectively hereinafter called “Inventions”). (b) All Inventions shall be the sole property of the Company and its assigns, and the Company and its assigns shall be the sole owner of all patents and other rights in connection therewith.", "Employee hereby assigns to the Company any rights he may have or acquire in all Inventions. Employee further agrees as to all Inventions to assist the Company in every proper way (but at the Company’s expense) to obtain and from time to time enforce patents, copyrights, trademarks, and other rights and protections and enforcing the same, as the Company may desire, together with any assignments thereof to the Company or persons designated by it. Employee’s obligation to assist the Company in obtaining and enforcing patents, copyrights, trademarks and other rights and protections relating to the Inventions in any and all countries shall continue beyond the termination of Employee’s employment, but the Company shall compensate Employee at a reasonable rate after such termination for time actually spent by Employee at the Company’s request on such assistance. (c) In the event the Company is unable after reasonable effort, to secure Employee’s signature on any document or documents needed to apply for or prosecute any patent, copyright, -------------------------------------------------------------------------------- other right or protection relating to an Invention, for any reason whatsoever, Employee hereby irrevocably designates and appoints the Company and its duly authorized officers and agents as Employee’s agent and attorney-in-fact to act for and on Employee’s behalf to execute and file any such application or applications and to do all other lawfully permitted acts to further the prosecution and issuance of patents, copyrights, or similar protections thereon with the same legal force and effect as if executed by Employee.", "(d) The Company makes no claim to any intellectual property or product which is developed or invented by Employee, which is not useful in or related to the Company’s Business, provided such intellectual property or product does not result from the use of Confidential Information or violate any terms of Section 7 (Confidentiality), Section 8 (Restrictive Covenants), or Section 10 (Inventions) set forth in this Agreement. 11. Severability. It is the desire and intent of the parties hereto that the provisions of this Agreement shall be enforced to the fullest extent permissible under the laws and public policy of each jurisdiction in which enforcement is sought.", "Accordingly, if any particular provision, section, or subsection of this Agreement is adjudged by any court of law to be void or unenforceable, in whole or in part, such adjudication shall not be deemed to affect the validity of the remainder of the Agreement, including any other provision, section, or subsection. In addition, if any one or more of the provisions contained in this Agreement shall for any reason be held to be excessively broad as to duration, geographical scope, activity or subject, it shall be construed by limiting and reducing it, so as to be enforceable to the extent compatible with the applicable law as it shall then appear.", "Each provision, section, and subsection of this Agreement is declared to be separable from every other provision, section, and subsection and constitutes a separate and distinct covenant. 12. Entire Agreement. This Agreement contains the entire understanding of the parties and supersedes all previous verbal and written agreements. There are no other agreements, representations, or warranties not set forth herein. 13. Notices. All notices or other documents under this Agreement shall be in writing and delivered personally or mailed by certified mail, return receipt requested postage prepaid, addressed to the Company or Employee at their last known addresses. Addresses are as follows: If to the Company: Lithium Technology Corporation 5115 Campus Drive Plymouth Meeting, PA 19462 Attention: Andrew J. Manning With Copy to: Gallagher, Briody & Butler 155 Village Blvd., Suite 201 Princeton, NJ 08540 Attention: Thomas P. Gallagher, Esq. If to Employee: Amir Elbaz 375 Park Avenue, Suite 1309 New York, NY 10152 14. Non-waiver.", "No delay or failure by either party to exercise any right under this Agreement, and no partial or single exercise of that right, shall constitute a waiver of that or any other right, unless otherwise expressly provided herein. -------------------------------------------------------------------------------- 15. Headings. Headings in this Agreement are for convenience only and shall not be used to interpret or construe its provisions. 16. Governing Law. This Agreement shall be construed in accordance with and governed by the laws of the State of New York. 17. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. 18.", "Binding Effect. The provisions of this Agreement shall be binding upon and inure to the benefit of each of the parties and their respective successors and assigns. 19. Remedies. The parties agree that in addition to any other rights and remedies available to the Company for any breach by Employee of his obligations hereunder, the Company shall be entitled to enforce Employee’s obligations hereunder by court injunction, or court ordered affirmative action, which injunction or ordered action may restrain a future breaking of this Agreement if there is reasonable ground to believe that such a breach is threatened. Employee further agrees to allow the Company to enjoin future use or disclosure of its Confidential Information if it has reasonable grounds to believe such action is necessary to protect such Confidential Information.", "20. Attorney’s Fees. If either party hereto shall breach any of the terms hereof, such breaching party shall pay to the non-defaulting party all of the non-defaulting party’s costs and expenses, including reasonable attorney’s fees and costs, incurred by such party in enforcing the terms of this Agreement. 21. Prohibition Against Assignment. Employee agrees, for himself and on behalf of his successors, heirs, executors, administrators, and any person or persons claiming under him by virtue hereof, that this Agreement and the rights, interests, and benefits hereunder cannot be assigned, transferred, pledged, or hypothecated in any way and shall not be subject to execution, attachment, or similar process. Any such attempt to do so, contrary to the terms hereof, shall be null and void and shall relieve the Company of any and all obligations or liability hereunder. IN WITNESS WHEREOF, the Parties have duly executed this Agreement as of the date first written above. For Company: /s/ H.H. van Andel By: H.H.", "van Andel Its: Chairman of the Board For Employee: /s/ Amir Elbaz By: Amir Elbaz As: Individual" ]	https://github.com/TheAtticusProject/cuad	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-15-00021-CV ____________________ IN RE BEVERLY ELAINE JONES _______________________________________________________ ______________ Original Proceeding ________________________________________________________ _____________ ORDER The relator, Beverly Elaine Jones, filed a petition for writ of habeas corpus, alleging her confinement for contempt pursuant to an order of the 75th District Court of Liberty County, Texas, in trial cause number CV71726 is illegal because she has not been provided with adequate notice of the manner in which she violated the community supervision order and the trial court failed to hold a hearing within the time required by law. Jones requests that she be released on bail pending our resolution of her petition. It is, therefore, ORDERED that Relator, Beverly Elaine Jones, shall be released from confinement in the Liberty County Jail upon Relator executing and 1 filing with the Sheriff of Liberty County a good and sufficient appearance bond or security, conditioned as required by law, in the sum of Five Hundred Dollars ($500.00). See Tex. R. App. P. 52.8(b)(3), 52.10(b). A copy of the approved and executed bond shall be forwarded to the Clerk of this Court. ORDER ENTERED January 16, 2015. PER CURIAM Before McKeithen, C.J., Kreger and Horton, JJ. 2	01-19-2015	[ "In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-15-00021-CV ____________________ IN RE BEVERLY ELAINE JONES _______________________________________________________ ______________ Original Proceeding ________________________________________________________ _____________ ORDER The relator, Beverly Elaine Jones, filed a petition for writ of habeas corpus, alleging her confinement for contempt pursuant to an order of the 75th District Court of Liberty County, Texas, in trial cause number CV71726 is illegal because she has not been provided with adequate notice of the manner in which she violated the community supervision order and the trial court failed to hold a hearing within the time required by law. Jones requests that she be released on bail pending our resolution of her petition. It is, therefore, ORDERED that Relator, Beverly Elaine Jones, shall be released from confinement in the Liberty County Jail upon Relator executing and 1 filing with the Sheriff of Liberty County a good and sufficient appearance bond or security, conditioned as required by law, in the sum of Five Hundred Dollars ($500.00).", "See Tex. R. App. P. 52.8(b)(3), 52.10(b). A copy of the approved and executed bond shall be forwarded to the Clerk of this Court. ORDER ENTERED January 16, 2015. PER CURIAM Before McKeithen, C.J., Kreger and Horton, JJ. 2" ]	https://www.courtlistener.com/api/rest/v3/opinions/2771052/	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
Judgment affirmed, with costs; no opinion. Concur: CULLEN, Ch. J., GRAY, WERNER, WILLARD BARTLETT, HISCOCK, CHASE and COLLIN, JJ.	07-06-2016	[ "Judgment affirmed, with costs; no opinion. Concur: CULLEN, Ch. J., GRAY, WERNER, WILLARD BARTLETT, HISCOCK, CHASE and COLLIN, JJ." ]	https://www.courtlistener.com/api/rest/v3/opinions/3617566/	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
Citation Nr: 1032680 Decision Date: 08/30/10 Archive Date: 09/08/10 DOCKET NO. 04-43 307 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for diabetes mellitus, claimed as due to herbicide exposure. 2. Entitlement to service connection for coronary artery disease (CAD), claimed as secondary to diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from October 1968 to October 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal of a June 2004 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In February 2009, the Board remanded the claim for additional evidentiary development. The case has now been returned to the Board for further appellate consideration. The issue of entitlement to service connection for CAD as secondary to diabetes mellitus is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran has a current diagnosis of diabetes mellitus, which is a disease associated with exposure to certain herbicide agents as enumerated in 38 C.F.R. § 3.309(e) (2009). 2. Resolving all doubt in the Veteran's favor, the Veteran more likely than not was on an airplane that stopped in Da Nang, Vietnam, while en route from the aircraft carrier (U.S.S. America) to Japan in 1972. 3. The Veteran briefly visited Vietnam in 1972, resulting in his physical presence on Vietnam soil. CONCLUSION OF LAW Diabetes mellitus is presumed to have been incurred in active service. 38 U.S.C.A. §§ 1110, 1112, 1113, 11354, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist In November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify him what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b) (2009). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(c) (2009). Subsequent judicial decisions have clarified the duties to notify and assist imposed by the VCAA, to include Pelegrini v. Principi, 18 Vet. App. 112 (2004), Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 ((Fed. Cir. 2006), and Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Considering the claim on appeal in light of the above-noted legal authority, and in light of the Board's favorable disposition of this matter, the Board finds that all notification and development action needed to fairly resolve the claim has been accomplished. Legal Criteria and Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002 & Supp 2009); 38 C.F.R. § 3.303 (2009). 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. 38 C.F.R. § 3.303(b) (2009). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. Savage v. Gober, 10 Vet. App. 488, 495-98 (1997). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2009). In order to establish service connection for a claimed disorder, the following must be shown: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). If a Veteran was exposed to a herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of § 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of section 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e) (2009). Section 3.307(a)(6) provides that the term "herbicide agent" means a chemical in a herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. Section 3.307(a)(6)(iii) also provides that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to a herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. For the purposes of section 3.307, the term herbicide agent means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(i) (2009). Agent Orange is a herbicide agent. Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii) (2009). According to the VA Adjudication Procedure Manual, M21-1MR, part IV, subpart ii, ch. 2, section C, 10,b. (M21-1MR), service in the Republic of Vietnam means service in the Republic of Vietnam or its inland waterways, or service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. Service in the Republic of Vietnam under 38 C.F.R. § 3.307(a)(6)(iii) requires the service member's presence at some point on the landmass or the inland waters of Vietnam. Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008). Cf. VAOPGCPREC 7-93 (Aug. 12, 1993) (holding that service in Vietnam does not include service of a Vietnam era Veteran whose only contact with Vietnam was flying high-altitude missions in Vietnamese airspace); VAOPGCPREC 27-97 (July 23, 1997) (holding that mere service on a deep-water naval vessel in waters off shore of the Republic of Vietnam is not qualifying service in Vietnam). If a Veteran was exposed to a herbicide agent during active military, naval, or air service, certain enumerated diseases, to include prostate cancer, shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e) (2009). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2009)); 38 C.F.R. § 3.102 (2009). After a review of the evidence, the Board has determined that service connection is warranted for diabetes mellitus as due to inservice herbicide exposure. The Board finds that, with resolution of doubt in the Veteran's favor, the Veteran set foot in the Republic of Vietnam during the Vietnam Era and is thus entitled to the presumption of service connection for diabetes mellitus. The Board's reasons for this decision are detailed below. Initially, it must be determined if there is evidence that diabetes mellitus exists. A February 1999 private report indicates that the Veteran required dietary restriction to control his diabetes. Subsequently dated records show that this condition continues. The Board's next inquiry focuses on the incurrence of an event, injury, or disease in service. The Veteran asserts that he served aboard the U.S.S. America, an aircraft carrier operating in the waters offshore of Vietnam. He contends that, when he was discharged, he took a mail plane to Da Nang, where he deplaned and waited approximately two hours, then boarded a C-130, which took him to Japan. This was in September 1972. His military personnel records confirm his service aboard the U.S.S. America, but do not mention the details of his journey home. However, two fellow servicemen submitted statements in support of the Veteran's claim, and they recalled that the Veteran boarded the plane just as he said when he left the carrier. One of them recalled that when he was discharged several months later, he also traveled through Da Nang on his way home. The Veteran also submitted a copy of a declassified report regarding the use of Agent Orange in Vietnam, to include in Da Nang. The report reflects that Agent Orange was used in Da Nang, but its use was terminated in January 1971. Regarding the Veteran's statements that his transport plane stopped in Vietnam in September 1972 during his flight enroute to Japan, the Board finds that the Veteran is competent and credible to make such statements. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a Veteran and other persons can attest to factual matters of which they had first-hand knowledge, e.g., experiencing and witnessing events in service). Indeed, the Veteran is competent and credible to report that the airplane he was on deplaned for a couple of hours in Da Nang, Vietnam, enroute from the U.S.S. America, to Japan, thereby stepping foot in Vietnam. Service personnel records show that this ship did serve in the waters offshore of Vietnam. Although the evidence of record, to include the fellow servicemen's statements, do not prove that the Veteran traveled through Da Nang enroute to Japan and then the United States, it is conceded that it was likely that he deplaned in Da Nang as part of his trip itinerary. Thus, notwithstanding the absence of supporting military records, there is no evidence of record to call into question the credibility of the Veteran's statements concerning this in-service event. As it is conceded that the Veteran was physically present in Vietnam for at least a limited period of time, his exposure to a herbicide agent such as Agent Orange is presumed. Upon consideration of the foregoing, the Board finds that the evidence both for and against the material issue of whether the Veteran had in-country service in Vietnam is, at least, in equipoise and, consequently, resolves reasonable doubt in the Veteran's favor in finding that he had qualifying service in Vietnam during the Vietnam era. Thus, because he currently suffers from a disease that has been identified as associated with herbicide exposure (i.e., diabetes mellitus), and is presumed exposed to herbicide agents in service during a temporary stop in the Republic of Vietnam, the Board finds that the Veteran is entitled to service connection for diabetes on a presumptive basis. 38 C.F.R. § 3.309(e) (2009). Moreover, two private physicians have opined that his current diabetes mellitus is due to this exposure. Thus, the appeal is granted. When the evidence for and against the claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the Appellant. See 38 U.S.C.A. § 5107 (West 2002 & Supp. 2009); 38 C.F.R. § 3.102 (2009). Accordingly, with resolution of doubt in the Veteran's favor, the Board concludes that a grant of service connection for diabetes mellitus is warranted. ORDER Entitlement to service connection for diabetes mellitus, claimed as due to herbicide exposure, is granted. REMAND As indicated above, it has now been determined that diabetes mellitus is of service origin. The Appellant has claimed that his CAD is related to diabetes mellitus. In support of his claim is a private physician's opinion from July 2009 that this is the case. However, review of the report reflects that the physician provided no rationale for his conclusion. Therefore, the Board finds that the VA opinion is necessary to clarify whether CAD, first noted in early 2001, is secondary thereto. Moreover, an opinion as to whether the condition was aggravated by diabetes mellitus is necessary. 38 C.F.R. § 3.159(c)(4)(i) (2009). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the etiology of his current CAD. Any tests deemed necessary should be conducted. The claims folder must be provided to the examiner for review in conjunction with the examination, and the examiner must state that the claims folder has been reviewed. The examiner should elicit from the Veteran a complete history of his medical disorders and note that, in addition to the medical evidence, the Veteran's lay history has been considered. As to any cardiovascular disorders found, the clinician is asked to indicate whether it is at least as likely as not (i.e., whether there is at least a 50 percent probability) that such disorder is related to service, or is caused or aggravated (permanent worsening as opposed to temporary flare-ups or increase in symptoms) by the Veteran's service- connected diabetes mellitus, type II. Any and all opinions must be accompanied by a complete rationale. The clinician is also advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. "More likely" and "as likely" support the contended causal relationship; "less likely" weighs against the claim. If the examiner is unable to provide the requested opinion(s) without resorting to speculation, it should be so stated. In such case, however, the examiner must provide a detailed rationale for such conclusion. 2. After all available evidence has been associated with the claims file, the AMC/RO should review the evidence and determine if further development is warranted. The AMC/RO should take any additional development as deemed necessary. Note: The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 38 C.F.R. § 3.655 (2009). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant or the death of an immediate family member. If the Veteran fails to report to the scheduled examination, the AMC/RO should obtain and associated with the claims file a copy or copies of the notice or notices of examination sent to the Appellant by the appropriate VA medical facility. 3. The AMC/RO should then review the case again based on the additional evidence. If any benefit sought is not granted, the AMC/RO should furnish the Appellant and his representative with a supplemental statement of the case (SSOC), and should give the Appellant a reasonable opportunity to respond before returning the record to the Board for further review. The Appellant has the right to submit additional evidence and argument on the matter or matters 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. 2009). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs	08-30-2010	[ "Citation Nr: 1032680 Decision Date: 08/30/10 Archive Date: 09/08/10 DOCKET NO. 04-43 307 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for diabetes mellitus, claimed as due to herbicide exposure. 2. Entitlement to service connection for coronary artery disease (CAD), claimed as secondary to diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from October 1968 to October 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal of a June 2004 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In February 2009, the Board remanded the claim for additional evidentiary development. The case has now been returned to the Board for further appellate consideration.", "The issue of entitlement to service connection for CAD as secondary to diabetes mellitus is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran has a current diagnosis of diabetes mellitus, which is a disease associated with exposure to certain herbicide agents as enumerated in 38 C.F.R. § 3.309(e) (2009). 2. Resolving all doubt in the Veteran's favor, the Veteran more likely than not was on an airplane that stopped in Da Nang, Vietnam, while en route from the aircraft carrier (U.S.S. America) to Japan in 1972. 3.", "The Veteran briefly visited Vietnam in 1972, resulting in his physical presence on Vietnam soil. CONCLUSION OF LAW Diabetes mellitus is presumed to have been incurred in active service. 38 U.S.C.A. §§ 1110, 1112, 1113, 11354, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist In November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp.", "2009). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify him what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b) (2009). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2009); 38 C.F.R.", "§ 3.159(c) (2009). Subsequent judicial decisions have clarified the duties to notify and assist imposed by the VCAA, to include Pelegrini v. Principi, 18 Vet. App. 112 (2004), Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 ((Fed. Cir. 2006), and Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Considering the claim on appeal in light of the above-noted legal authority, and in light of the Board's favorable disposition of this matter, the Board finds that all notification and development action needed to fairly resolve the claim has been accomplished. Legal Criteria and Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002 & Supp 2009); 38 C.F.R. § 3.303 (2009). 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. 38 C.F.R.", "§ 3.303(b) (2009). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. Savage v. Gober, 10 Vet. App. 488, 495-98 (1997). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2009). In order to establish service connection for a claimed disorder, the following must be shown: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir.", "2004). If a Veteran was exposed to a herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of § 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of section 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e) (2009). Section 3.307(a)(6) provides that the term \"herbicide agent\" means a chemical in a herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. Section 3.307(a)(6)(iii) also provides that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to a herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. For the purposes of section 3.307, the term herbicide agent means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era.", "38 C.F.R. § 3.307(a)(6)(i) (2009). Agent Orange is a herbicide agent. Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii) (2009). According to the VA Adjudication Procedure Manual, M21-1MR, part IV, subpart ii, ch. 2, section C, 10,b. (M21-1MR), service in the Republic of Vietnam means service in the Republic of Vietnam or its inland waterways, or service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. Service in the Republic of Vietnam under 38 C.F.R. § 3.307(a)(6)(iii) requires the service member's presence at some point on the landmass or the inland waters of Vietnam. Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008). Cf.", "VAOPGCPREC 7-93 (Aug. 12, 1993) (holding that service in Vietnam does not include service of a Vietnam era Veteran whose only contact with Vietnam was flying high-altitude missions in Vietnamese airspace); VAOPGCPREC 27-97 (July 23, 1997) (holding that mere service on a deep-water naval vessel in waters off shore of the Republic of Vietnam is not qualifying service in Vietnam). If a Veteran was exposed to a herbicide agent during active military, naval, or air service, certain enumerated diseases, to include prostate cancer, shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e) (2009).", "In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2009)); 38 C.F.R. § 3.102 (2009). After a review of the evidence, the Board has determined that service connection is warranted for diabetes mellitus as due to inservice herbicide exposure. The Board finds that, with resolution of doubt in the Veteran's favor, the Veteran set foot in the Republic of Vietnam during the Vietnam Era and is thus entitled to the presumption of service connection for diabetes mellitus.", "The Board's reasons for this decision are detailed below. Initially, it must be determined if there is evidence that diabetes mellitus exists. A February 1999 private report indicates that the Veteran required dietary restriction to control his diabetes. Subsequently dated records show that this condition continues. The Board's next inquiry focuses on the incurrence of an event, injury, or disease in service. The Veteran asserts that he served aboard the U.S.S. America, an aircraft carrier operating in the waters offshore of Vietnam. He contends that, when he was discharged, he took a mail plane to Da Nang, where he deplaned and waited approximately two hours, then boarded a C-130, which took him to Japan. This was in September 1972.", "His military personnel records confirm his service aboard the U.S.S. America, but do not mention the details of his journey home. However, two fellow servicemen submitted statements in support of the Veteran's claim, and they recalled that the Veteran boarded the plane just as he said when he left the carrier. One of them recalled that when he was discharged several months later, he also traveled through Da Nang on his way home. The Veteran also submitted a copy of a declassified report regarding the use of Agent Orange in Vietnam, to include in Da Nang.", "The report reflects that Agent Orange was used in Da Nang, but its use was terminated in January 1971. Regarding the Veteran's statements that his transport plane stopped in Vietnam in September 1972 during his flight enroute to Japan, the Board finds that the Veteran is competent and credible to make such statements. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a Veteran and other persons can attest to factual matters of which they had first-hand knowledge, e.g., experiencing and witnessing events in service). Indeed, the Veteran is competent and credible to report that the airplane he was on deplaned for a couple of hours in Da Nang, Vietnam, enroute from the U.S.S. America, to Japan, thereby stepping foot in Vietnam. Service personnel records show that this ship did serve in the waters offshore of Vietnam. Although the evidence of record, to include the fellow servicemen's statements, do not prove that the Veteran traveled through Da Nang enroute to Japan and then the United States, it is conceded that it was likely that he deplaned in Da Nang as part of his trip itinerary. Thus, notwithstanding the absence of supporting military records, there is no evidence of record to call into question the credibility of the Veteran's statements concerning this in-service event.", "As it is conceded that the Veteran was physically present in Vietnam for at least a limited period of time, his exposure to a herbicide agent such as Agent Orange is presumed. Upon consideration of the foregoing, the Board finds that the evidence both for and against the material issue of whether the Veteran had in-country service in Vietnam is, at least, in equipoise and, consequently, resolves reasonable doubt in the Veteran's favor in finding that he had qualifying service in Vietnam during the Vietnam era. Thus, because he currently suffers from a disease that has been identified as associated with herbicide exposure (i.e., diabetes mellitus), and is presumed exposed to herbicide agents in service during a temporary stop in the Republic of Vietnam, the Board finds that the Veteran is entitled to service connection for diabetes on a presumptive basis.", "38 C.F.R. § 3.309(e) (2009). Moreover, two private physicians have opined that his current diabetes mellitus is due to this exposure. Thus, the appeal is granted. When the evidence for and against the claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the Appellant. See 38 U.S.C.A. § 5107 (West 2002 & Supp. 2009); 38 C.F.R. § 3.102 (2009). Accordingly, with resolution of doubt in the Veteran's favor, the Board concludes that a grant of service connection for diabetes mellitus is warranted.", "ORDER Entitlement to service connection for diabetes mellitus, claimed as due to herbicide exposure, is granted. REMAND As indicated above, it has now been determined that diabetes mellitus is of service origin. The Appellant has claimed that his CAD is related to diabetes mellitus. In support of his claim is a private physician's opinion from July 2009 that this is the case. However, review of the report reflects that the physician provided no rationale for his conclusion.", "Therefore, the Board finds that the VA opinion is necessary to clarify whether CAD, first noted in early 2001, is secondary thereto. Moreover, an opinion as to whether the condition was aggravated by diabetes mellitus is necessary. 38 C.F.R. § 3.159(c)(4)(i) (2009). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the etiology of his current CAD. Any tests deemed necessary should be conducted. The claims folder must be provided to the examiner for review in conjunction with the examination, and the examiner must state that the claims folder has been reviewed. The examiner should elicit from the Veteran a complete history of his medical disorders and note that, in addition to the medical evidence, the Veteran's lay history has been considered.", "As to any cardiovascular disorders found, the clinician is asked to indicate whether it is at least as likely as not (i.e., whether there is at least a 50 percent probability) that such disorder is related to service, or is caused or aggravated (permanent worsening as opposed to temporary flare-ups or increase in symptoms) by the Veteran's service- connected diabetes mellitus, type II. Any and all opinions must be accompanied by a complete rationale. The clinician is also advised that the term \"as likely as not\" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation.", "\"More likely\" and \"as likely\" support the contended causal relationship; \"less likely\" weighs against the claim. If the examiner is unable to provide the requested opinion(s) without resorting to speculation, it should be so stated. In such case, however, the examiner must provide a detailed rationale for such conclusion. 2. After all available evidence has been associated with the claims file, the AMC/RO should review the evidence and determine if further development is warranted. The AMC/RO should take any additional development as deemed necessary. Note: The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 38 C.F.R. § 3.655 (2009). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant or the death of an immediate family member. If the Veteran fails to report to the scheduled examination, the AMC/RO should obtain and associated with the claims file a copy or copies of the notice or notices of examination sent to the Appellant by the appropriate VA medical facility.", "3. The AMC/RO should then review the case again based on the additional evidence. If any benefit sought is not granted, the AMC/RO should furnish the Appellant and his representative with a supplemental statement of the case (SSOC), and should give the Appellant a reasonable opportunity to respond before returning the record to the Board for further review. The Appellant has the right to submit additional evidence and argument on the matter or matters 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. 2009). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs" ]	https://drive.google.com/drive/folders/12lAd8Os7VFeqbTKi4wcqJqODjHIn0-yQ?usp=sharing	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
Order affirmed, with ten dollars costs and disbursements. No opinion. Present — Clarke, P. J., Laughlin, Page, Shearn and Merrell, JJ.	01-06-2022	[ "Order affirmed, with ten dollars costs and disbursements. No opinion. Present — Clarke, P. J., Laughlin, Page, Shearn and Merrell, JJ." ]	https://www.courtlistener.com/api/rest/v3/opinions/5253591/	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
Case 1:19-cv-02173-CJN Document 49 Filed 11/18/19 Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA DONALD J. TRUMP, Plaintiff, v. Case No. 19-cv-2173 (CJN) COMMITTEE ON WAYS AND MEANS, UNITED STATES HOUSE OF REPRESENTATIVES, et al., Defendants. NOTICE The Committee Defendants submit this Notice in response to the Court’s question at the hearing in this matter on November 18, 2019. If this Court grants the Committee Defendants’ motion to dismiss, undersigned counsel agrees that should Chairman Neal make a request under the TRUST Act relating to Plaintiff Donald J. Trump during the 116th Congress, counsel will notify the Court and counsel for the Plaintiff that such a request has been made. Respectfully submitted, /s/ Douglas N. Letter Douglas N. Letter (D.C. Bar No. 2533492) General Counsel Todd B. Tatelman (VA Bar No. 66008) Deputy General Counsel Megan Barbero (MA Bar No. 668854) Associate General Counsel Josephine Morse (D.C. Bar No. 1531317) Associate General Counsel Adam A. Grogg (D.C. Bar No. 1552438) Assistant General Counsel OFFICE OF GENERAL COUNSEL U.S. HOUSE OF REPRESENTATIVES 219 Cannon House Office Building Washington, D.C. 20515 Case 1:19-cv-02173-CJN Document 49 Filed 11/18/19 Page 2 of 2 (202) 225-9700 douglas.letter@mail.house.gov Counsel for the Committee Defendants November 18, 2019	2019-11-18	[ "Case 1:19-cv-02173-CJN Document 49 Filed 11/18/19 Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA DONALD J. TRUMP, Plaintiff, v. Case No. 19-cv-2173 (CJN) COMMITTEE ON WAYS AND MEANS, UNITED STATES HOUSE OF REPRESENTATIVES, et al., Defendants. NOTICE The Committee Defendants submit this Notice in response to the Court’s question at the hearing in this matter on November 18, 2019. If this Court grants the Committee Defendants’ motion to dismiss, undersigned counsel agrees that should Chairman Neal make a request under the TRUST Act relating to Plaintiff Donald J. Trump during the 116th Congress, counsel will notify the Court and counsel for the Plaintiff that such a request has been made.", "Respectfully submitted, /s/ Douglas N. Letter Douglas N. Letter (D.C. Bar No. 2533492) General Counsel Todd B. Tatelman (VA Bar No. 66008) Deputy General Counsel Megan Barbero (MA Bar No. 668854) Associate General Counsel Josephine Morse (D.C. Bar No. 1531317) Associate General Counsel Adam A. Grogg (D.C. Bar No. 1552438) Assistant General Counsel OFFICE OF GENERAL COUNSEL U.S. HOUSE OF REPRESENTATIVES 219 Cannon House Office Building Washington, D.C. 20515 Case 1:19-cv-02173-CJN Document 49 Filed 11/18/19 Page 2 of 2 (202) 225-9700 douglas.letter@mail.house.gov Counsel for the Committee Defendants November 18, 2019" ]	https://www.courtlistener.com/api/rest/v3/recap-documents/114265753/	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
—Appeal dismissed as moot (see, People v Finkle, 262 AD2d 971 [decided herewith]). All concur except Pigott, Jr., J., who votes to affirm. (Appeal from Order of Oneida County Court, Burke, J. — CPL art 440.) Present — Denman, P. J., Lawton, Hayes, Pigott, Jr., and Scudder, JJ.	01-13-2022	[ "—Appeal dismissed as moot (see, People v Finkle, 262 AD2d 971 [decided herewith]). All concur except Pigott, Jr., J., who votes to affirm. (Appeal from Order of Oneida County Court, Burke, J. — CPL art 440.) Present — Denman, P. J., Lawton, Hayes, Pigott, Jr., and Scudder, JJ." ]	https://www.courtlistener.com/api/rest/v3/opinions/6039000/	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 . This action is in response to Applicant’s amendment of 8/3/21, which is entered. Claim Rejections - 35 USC § 112(d) The following is a quotation of 35 U.S.C. 112(d): (d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers. The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph: Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers. Claim 3 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claim 3 depends from claim 1 that was cancelled in the most recent amendment. Therefore, claim 3 does not contain a reference to a claim previously set forth. Applicant may cancel the claim, amend the claim to place the claim in proper dependent form, rewrite the claim in independent form, or present a sufficient showing that the dependent claim complies with the statutory requirements. For the purpose of examination, claim 3 is construed as depending from claim 5. 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. Claims 5 and 3 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Klingler et al. (DE 102006001798 A1 English machine translation) (hereinafter “Klingler”). The specification and drawings of Klingler show all of the elements recited in claims 5 and 3 of this application. Regarding claim 5, Klingler shows a personal air flow device for a vehicle (1, para. [0001]), comprising: first and second air flow ducts (3.6 and 3.7, or 3.4 and 3.5 in annotated Fig. 1 below, the capitalized annotations denoting claim limitations) provided respectively with upstream sections that are spaced apart from one another (annotated Fig. 1) and that carry first and second separate air mass flows (3.4 through 3. 7 are described as “air guide elements” in para. [0041] and thereby carry first and second separate air mass flows in the configuration of Figs 3 – 5), the first and second air flow PNG media_image1.png 564 785 media_image1.png Greyscale Regarding claim 3, Klingler further shows the personal air flow device (1) is connectable to an air-conditioning unit of the vehicle (functional limitation that Klingler can perform as described in para. [0031]). Response to Arguments Applicant’s arguments with respect to claims 5 and 3 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). 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 PHILLIP DECKER whose telephone number is (571)270-3088. The examiner can normally be reached Monday - Friday 8:30 - 5:00. 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, Edelmira Bosques can be reached on 571-270-5614. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. /PHILLIP DECKER/Examiner, Art Unit 3762 /EDELMIRA BOSQUES/Supervisory Patent Examiner, Art Unit 3762	2021-10-26T07:10:47	[ "DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . This action is in response to Applicant’s amendment of 8/3/21, which is entered. Claim Rejections - 35 USC § 112(d) The following is a quotation of 35 U.S.C. 112(d): (d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers. The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph: Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C.", "112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers. Claim 3 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claim 3 depends from claim 1 that was cancelled in the most recent amendment. Therefore, claim 3 does not contain a reference to a claim previously set forth. Applicant may cancel the claim, amend the claim to place the claim in proper dependent form, rewrite the claim in independent form, or present a sufficient showing that the dependent claim complies with the statutory requirements. For the purpose of examination, claim 3 is construed as depending from claim 5.", "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. Claims 5 and 3 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Klingler et al. (DE 102006001798 A1 English machine translation) (hereinafter “Klingler”). The specification and drawings of Klingler show all of the elements recited in claims 5 and 3 of this application.", "Regarding claim 5, Klingler shows a personal air flow device for a vehicle (1, para. [0001]), comprising: first and second air flow ducts (3.6 and 3.7, or 3.4 and 3.5 in annotated Fig. 1 below, the capitalized annotations denoting claim limitations) provided respectively with upstream sections that are spaced apart from one another (annotated Fig. 1) and that carry first and second separate air mass flows (3.4 through 3.", "7 are described as “air guide elements” in para. [0041] and thereby carry first and second separate air mass flows in the configuration of Figs 3 – 5), the first and second air flow PNG media_image1.png 564 785 media_image1.png Greyscale Regarding claim 3, Klingler further shows the personal air flow device (1) is connectable to an air-conditioning unit of the vehicle (functional limitation that Klingler can perform as described in para. [0031]). Response to Arguments Applicant’s arguments with respect to claims 5 and 3 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).", "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 PHILLIP DECKER whose telephone number is (571)270-3088. The examiner can normally be reached Monday - Friday 8:30 - 5:00. 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, Edelmira Bosques can be reached on 571-270-5614. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. /PHILLIP DECKER/Examiner, Art Unit 3762 /EDELMIRA BOSQUES/Supervisory Patent Examiner, Art Unit 3762" ]	https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-10-31.zip	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
MEMORANDUM OPINION BARNES, District Judge. Before the Court is a motion for partial summary judgment filed by plaintiff, the Estate of Mary G. Sodorff (Sodorff). Defen1006dant United Southern Assurance Company (United) has responded to the motion. I. BACKGROUND Plaintiff Sodorff filed her complaint in this Court on March 11, 1996, which asks for damages and a declaratory judgment that United wrongfully failed to defend her in a suit in which she was held hable. The complaint alleges that defendant United issued a liability insurance policy to Harold Beard (Beard) on April 21,1992, and that it covered the liability incurred by Sodorff as the result of negligently injuring her employer and passenger, Harold Beard, while driving his truck. Beard obtained a $1,300,000.00 judgment against the Estate of Sodorff, who died as the result of the accident. Sodorffs estate alleges that she was covered under the omnibus clause of the policy issued to Beard. Sodorffs demand that United defend her against the Beard suit was refused. (Answer at Par. 9). Plaintiff Sodorff filed a motion for partial summary judgment on July 18, 1997, contending that her liabilities (Beard’s injuries) were covered by the liability policy issued to Beard, and that United breached its duty to defend and indemnify Beard’s claim against her. II. DISCUSSION The standard of review for summary judgment motions is well established. The Federal Rules of Civil Procedure provide that when a party moves for summary judgment: The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, show that there is no genuine issue as to a material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Krenik v. County of Le Sueur, 47 F.3d 953 (8th Cir.1995). The Supreme Court has issued the following guidelines for trial courts to determine whether this standard has been satisfied: The inquiry performed is the threshold inquiry of determining whether there' is a need for trial—whether, in other words, there are genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). See also AgriStor Leasing v. Farrow, 826 F.2d 732 (8th Cir.1987); Niagara of Wisconsin Paper Corp. v. Paper Indus. Union—Management Pension Fund, 800 F.2d 742, 746 (8th Cir.1986). The Eighth Circuit Court of Appeals has advised trial courts that summary judgment should be cautiously invoked so that no person will be improperly deprived of a trial of disputed factual issues. Inland Oil & Transp. Co. v. United States, 600 F.2d 725 (8th Cir.), cert, denied, 444 U.S. 991, 100 S.Ct. 522, 62 L.Ed.2d 420 (1979). The Eighth Circuit has also held that courts, in ruling on motions for summary judgment, must give the non-moving parties “the benefit of the reasonable inferences that can be drawn from the underlying facts.” Fischer v. NWA, Inc., 883 F.2d 594, 598 (8th Cir. 1989) (citing Tmka v. Elanco Products, 709 F.2d 1223 (8th Cir.1983)). When Fed. R.Civ.P. 56 is properly used, “dilatory tactics resulting from the assertion of unfounded claims or the interposition of specious denials or sham defenses can be defeated, parties may be accorded expeditious justice, and some of the pressure on court dockets may be alleviated.” 10 Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, Federal Practice and Procedure § 2712 (1983). A summary judgment motion is an extremely important device for conservation of judicial time and costs of litigation where it is clear that no claim or defense to a claim exists as a matter of law. Champion Brick Co. v. Signode Corp., 263 F.Supp. 387, 391 (D.C.Md.1967). In moving for partial summary judgment, Sodorffs estate asks the Court to declare that the liability policy issued to Harold Beard by United (which insured the liabilities of Sodorff as a permissive driver) covered the injuries sustained by Harold Beard. In support, Sodorff submits that Harold Beard is neither excluded by law from being a claimant under his own policy, nor is he excluded by the express terms. 1007A. Exclusion by law Courts are not in agreement as to whether a named insured is covered under an automobile liability policy when he is negligently injured by a permissive driver who claims protection under the omnibus clause. See Appleman, Insurance Law and Practice (Buckley ed.) § 4409; 12 George J. Couch, Couch on Insurance § 45:484-85 (2d rev. ed.1981). The issue is one of first impression under Arkansas law. United argues that to allow Beard to be covered under these circumstances would transform the liability policy into one for personal injury coverage when no premiums for such coverage have been paid. In addition, they point to the workers’ compensation, fellow employee, and employee indemnification exclusions of the policy as manifesting an intent to exclude any liability which arises among the Beards or their employees during the course of the trucking business. In contrast, the plaintiff asserts that the plain language of the policy provides coverage for the liabilities of Sodorff, and that no exclusion prevents coverage of a liability which happens to arise in favor of the named insured. The majority of authority permits recovery to the named insured under these circumstances. Couch § 45:484; Appleman § 4409 at 325 (noting that “the courts feel that the case must be examined from the viewpoint of the driver who expects and demands protection from the possibility of having to pay a judgment not compensated by insurance”). This rule is fashioned on the principle of strict construction that the insurer is under a duty as drafter to insert a provision excluding coverage of bodily injury to the named insured if no such coverage is desired. See, e.g., State Farm Mutual Automobile Ins. Co. v. Cartmel, 250 Ark. 77, 463 S.W.2d 648 (1971) (upholding a named insured exclusion). Cases finding a lack of coverage on grounds other than express exclusion are often based upon policy language which either covers liability arising from injuries to “other persons” only, State Farm Mut. Auto. Ins. Co. v. Sivey, 404 Mich. 51, 272 N.W.2d 555 (1978); Wheeler v. State Farm Mut. Auto. Ins. Co., 438 F.2d 730 (10th Cir.1971), or which was mandated by financial responsibility statutes rather than drafted by the insurer in interest. See, e.g., Transamerica Ins. Co. v. Norfolk and Dedham Mut. Fire Ins. Co. et al, 361 Mass. 144, 279 N.E.2d 686, 687-88 (1972). A minority of cases have excluded coverage solely on the basis that extending coverage would serve to transform a liability insurance policy into one covering personal injury for the named insured. Gibson v. State Farm Mut. Auto. Ins. Co., 378 So.2d 875 (Fla.Ct. App.1979); Oliveria v. Preferred Accident Ins. Co., 312 Mass. 426, 45 N.E.2d 263 (1942). Arkansas case law dealing with the construction of insurance contracts is clearly in accord with the majority view. Indeed, Arkansas courts have long followed the rule that the intent to exclude coverage in insurance contracts should be expressed in clear and unambiguous language, and an insurance policy, having been drafted by the insurer without consultation with the insured, is to be interpreted and construed liberally in favor of the insured and strictly against the insurer. Nationwide Mut. Ins. Co. v. Worthey, 314 Ark. 185, 861 S.W.2d 307, 309 (1993) (citing Baskette v. Union Life Ins. Co., 9 Ark.App. 34, 652 S.W.2d 635, 637 (1983)). Thus, even where language of exclusion is present in a policy, an interpretation favorable to the insured will be adopted if there is doubt or uncertainty as to the meaning of such language. Id. (citing Drummond Citizens Ins. Co. v. Sergeant, 266 Ark. 611, 588 S.W.2d 419, 423 (1979)). In this instance, the plain language of the policy extends coverage for the liabilities of Sodorff. The policy defines an “insured” as “you [named insured] for any covered auto” as well as “anyone else while using with your permission a covered ‘auto’ you own, hire or borrow....” (Ex. 6 to Def.’s Mem. in Opp’n. of Summ. J.). The policy covers an insured for: all sums an “insured” legally must pay as damages because of “bodily injury” or “property damage” to which this insurance applies, caused by an “accident” and resulting from the ownership, maintenance or use of a covered “auto”. 1008No provision is present in the policy to expressly or indirectly exclude coverage of liability arising as the result of injuries to the named insured. Although the policy includes the workers’ compensation, employee indemnification, and fellow employee exclusions discussed below, these provisions do not address exclusion of the named insured from coverage. Compare Hancock v. Tri-State Ins. Co., 43 Ark.App. 47, 858 S.W.2d 152 (1993) (where coverage of the injured party was directly excluded by a provision excluding obligations arising among fellow employees). In light of the strict construction used in interpreting insurance contracts, United’s argument that such exclusions manifest an intent to exclude all liabilities arising among the Beards and their employees during the course of the trucking operation is misplaced. Accordingly, Sodorff enjoyed liability coverage as the result of being a permissive driver of a vehicle insured under the contract at issue. In keeping with the rule as applied by a majority of authorities, Sodorffs liability coverage is not excluded by law merely because her liability arises towards the named insured rather than a third party. B. Exclusion by express terms United relies upon three exclusions in the terms of its contract with Harold Beard to deny coverage of Sodorffs liabilities. These provisions exclude: obligations arising under workers’ compensation laws, obligations arising among fellow employees, and obligations arising as the result of bodily injury to an employee of the insured. 1. The worker’s compensation exclusion The workers’ compensation exclusion reads as follows: WORKERS’ COMPENSATION—Any obligation for which the “insured” or the “insured’s” insurer may be held liable under any workers’ compensation, disability benefits or unemployment compensation law or any similar law. (Ex. 6 of Def.’s Mem. in Opp’n. to Summ. J.). United’s assertion that the workers’ compensation exclusion serves to avoid coverage of injuries to Harold Beard is handicapped by the fact that no workers’ compensation insurance covered the parties involved in the trucking operation. (Ex. 1 of Pl.’s Mem. in Supp. of Summ. J.). Nevertheless, United maintains that the exclusion is still applicable on two bases. First, United contends that the parties should be covered under the workers’ compensation policy of another company (Southern Refrigeration) if shown to be subcontractors of that company. However, this argument fails on its face. Ark.Code Ann. § ll-9-402(a) states that “where a subcontractor fails to secure compensation required by this chapter, the prime contractor shall be liable for compensation to the employees of the subcontractor.” Thus, even if the Beards were found to be subcontractors, the liability arising on the part of Southern Refrigeration would not extend to subcontractors under the statute, but would be limited to the subcontractor’s employees. Indeed, this district has previously noted that § 402 is “not for the benefit of the subcontractor. Rather the provision [is] for the unprotected subcontractor’s employees.” Employers Ins. of Wausau v. Polar Express, Inc., 780 F.Supp. 610, 617 (W.D.Ark.1991); see also Liggett Construction Co. v. Griffin, 4 Ark.App. 247, 629 S.W.2d 316, 318 (1982) (primary purpose of provision is to protect the employees of subcontractors who are not financially responsible). Accordingly, even if Sodorff was an employee of a subcontractor, no obligation would arise for which the insurer of Southern Refrigeration could be held liable. Thus, the exclusion is not applicable. Second, United asserts that there is a question of fact as to whether the trucking operation met the definition of an employer who is required by the act to obtain workers’ compensation coverage. United contends that coverage need merely be required, rather than in place, in order for the workers’ compensation exclusion to apply. Yet, even if such a requirement were found, no obligation would be placed upon Sodorff under the act. Ark.Code Ann. § 11-9-401 allows an employer to be held liable for workers’ compensation benefits if the employer was required by the act to provide coverage to his employees but failed to do so. 1009However, no provision of the act places an obligation upon the employee on the grounds that the employer did not obtain the required coverage.1 Such a provision would be subject to ridicule. Sodorffs obligations could not have arisen under the Workers’ Compensation Act even if it required coverage, and the exclusion in the policy at hand does not apply. 2. The fellow employee exclusion The second exclusion upon which United relies in denying coverage states: FELLOW EMPLOYEE—'“Bodily injury” to any fellow employee of the “insured” arising out of and in the course of the fellow employee’s employment. United has admitted in its answer to the complaint that Sodorff was an employee of Harold Beard. (Answer at par. 6). Despite plaintiffs reliance upon it in their motion for summary judgment, no amendment or withdrawal of this admission has been sought since its filing over a year ago. Generally, admissions contained in pleadings are in the nature of judicial admissions and are binding on the parties unless withdrawn or amended. Missouri Housing Dev. Comm’n v. Brice, 919 F.2d 1306, 1314 (8th Cir.1990). Thus, “even if the post-pleading evidence conflicts with the evidence in the pleadings, admissions in the pleadings are binding on the parties and may support summary judgment against the party making such admissions.” Brice at 1315 (citing Davis v. A.G. Edwards & Sons, Inc., 823 F.2d 105 (5th Cir.1987)). United has admitted that Sodorff was acting “as an employee of Harold Beard” when the accident giving rise to her liability occurred. (Answer at Par. 6). As such, Sodorff and Harold Beard cannot be considered fellow employees of one another, and the exclusion is inapplicable in that regard. S. The employee indemnification exclusion Finally, United asserts that the employee indemnification exclusion serves to This pro-prevent coverage in this instance, vision excludes: EMPLOYEE INDEMNIFICATION AND EMPLOYER’S LIABILITY—“Bodily injury” to: a. An employee of the “insured” arising out of and in the course of employment by the “insured”; or b. The spouse, child, parent, brother or sister of that employee as a consequence of paragraph a. above. This exclusion applies: (1) Whether the “insured” may be liable as an employer or in any other capacity; and (2) To any obligation to share damages with or repay someone else who must pay damages because of the injury. In arguing that partial summary judgment should not be rendered as to the coverage of Harold Beard’s injuries, United claims that Harold might be found to have been the employee of his wife, Joyce Beard. United asserts that Joyce Beard claimed all the income from the trucking operation and was generally responsible for obtaining the insurance coverage at issue. As such, United argues that Joyce Beard could be found the named insured, and Harold Beard her employee. United points out that Harold Beard’s injuries would therefore be excluded from coverage as those belonging to an employee of the named insured. Even if regarded as true, however, the factual assertions made by United are of no consequence. Where no ambiguity is present, contract language is given its plain and ordinary meaning, and extrinsic evidence is inadmissible to contradict its terms. Newman v. First Nat’l. Bank of Harrison, 285 Ark. 52, 685 S.W.2d 147 (1985); C. & A. Constr. Co. v. Benning Constr. Co., 256 Ark. 621, 509 S.W.2d 302 (1974). The declarations and endorsements of the liability policy issued by United repeatedly identify Harold Beard as the named insured. The assertion that Joyce Beard is actually the named in*1010sured is inconsistent with the clear terms of the contract and therefore inadmissible. Thus, the employee indemnification exclusion cannot apply. III. CONCLUSION For the above reasons, the Court finds that the insurance policy issued by United provided coverage of Sodorffs liabilities to her employer, Harold Beard. Thus, United was under a duty to defend the claim brought against Sodorff by Beard. Home Indemnity Co. v. City of Marianna, 291 Ark. 610, 727 S.W.2d 375, 379 (1987) (citing Commercial Union Ins. Co. v. Henshall, 262 Ark. 117, 553 S.W.2d 274 (1977)). United breached this duty when it refused to do so. SodorfPs motion for partial summary judgment should therefore be granted. A separate order will be entered consistent with this opinion. . In this instance, for example, Harold Beard obtained a judgment for $1,300,000.00 against Sodorff. Such a substantial obligation certainly did not arise under the Worker’s Compensation Act.	11-26-2022	[ "MEMORANDUM OPINION BARNES, District Judge. Before the Court is a motion for partial summary judgment filed by plaintiff, the Estate of Mary G. Sodorff (Sodorff). Defen1006dant United Southern Assurance Company (United) has responded to the motion. I. BACKGROUND Plaintiff Sodorff filed her complaint in this Court on March 11, 1996, which asks for damages and a declaratory judgment that United wrongfully failed to defend her in a suit in which she was held hable. The complaint alleges that defendant United issued a liability insurance policy to Harold Beard (Beard) on April 21,1992, and that it covered the liability incurred by Sodorff as the result of negligently injuring her employer and passenger, Harold Beard, while driving his truck. Beard obtained a $1,300,000.00 judgment against the Estate of Sodorff, who died as the result of the accident. Sodorffs estate alleges that she was covered under the omnibus clause of the policy issued to Beard. Sodorffs demand that United defend her against the Beard suit was refused. (Answer at Par.", "9). Plaintiff Sodorff filed a motion for partial summary judgment on July 18, 1997, contending that her liabilities (Beard’s injuries) were covered by the liability policy issued to Beard, and that United breached its duty to defend and indemnify Beard’s claim against her. II. DISCUSSION The standard of review for summary judgment motions is well established. The Federal Rules of Civil Procedure provide that when a party moves for summary judgment: The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, show that there is no genuine issue as to a material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Krenik v. County of Le Sueur, 47 F.3d 953 (8th Cir.1995). The Supreme Court has issued the following guidelines for trial courts to determine whether this standard has been satisfied: The inquiry performed is the threshold inquiry of determining whether there' is a need for trial—whether, in other words, there are genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct.", "2505, 2511, 91 L.Ed.2d 202 (1986). See also AgriStor Leasing v. Farrow, 826 F.2d 732 (8th Cir.1987); Niagara of Wisconsin Paper Corp. v. Paper Indus. Union—Management Pension Fund, 800 F.2d 742, 746 (8th Cir.1986). The Eighth Circuit Court of Appeals has advised trial courts that summary judgment should be cautiously invoked so that no person will be improperly deprived of a trial of disputed factual issues. Inland Oil & Transp. Co. v. United States, 600 F.2d 725 (8th Cir. ), cert, denied, 444 U.S. 991, 100 S.Ct. 522, 62 L.Ed.2d 420 (1979). The Eighth Circuit has also held that courts, in ruling on motions for summary judgment, must give the non-moving parties “the benefit of the reasonable inferences that can be drawn from the underlying facts.” Fischer v. NWA, Inc., 883 F.2d 594, 598 (8th Cir. 1989) (citing Tmka v. Elanco Products, 709 F.2d 1223 (8th Cir.1983)). When Fed. R.Civ.P.", "56 is properly used, “dilatory tactics resulting from the assertion of unfounded claims or the interposition of specious denials or sham defenses can be defeated, parties may be accorded expeditious justice, and some of the pressure on court dockets may be alleviated.” 10 Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, Federal Practice and Procedure § 2712 (1983). A summary judgment motion is an extremely important device for conservation of judicial time and costs of litigation where it is clear that no claim or defense to a claim exists as a matter of law. Champion Brick Co. v. Signode Corp., 263 F.Supp. 387, 391 (D.C.Md.1967). In moving for partial summary judgment, Sodorffs estate asks the Court to declare that the liability policy issued to Harold Beard by United (which insured the liabilities of Sodorff as a permissive driver) covered the injuries sustained by Harold Beard. In support, Sodorff submits that Harold Beard is neither excluded by law from being a claimant under his own policy, nor is he excluded by the express terms. 1007A. Exclusion by law Courts are not in agreement as to whether a named insured is covered under an automobile liability policy when he is negligently injured by a permissive driver who claims protection under the omnibus clause.", "See Appleman, Insurance Law and Practice (Buckley ed.) § 4409; 12 George J. Couch, Couch on Insurance § 45:484-85 (2d rev. ed.1981). The issue is one of first impression under Arkansas law. United argues that to allow Beard to be covered under these circumstances would transform the liability policy into one for personal injury coverage when no premiums for such coverage have been paid. In addition, they point to the workers’ compensation, fellow employee, and employee indemnification exclusions of the policy as manifesting an intent to exclude any liability which arises among the Beards or their employees during the course of the trucking business. In contrast, the plaintiff asserts that the plain language of the policy provides coverage for the liabilities of Sodorff, and that no exclusion prevents coverage of a liability which happens to arise in favor of the named insured. The majority of authority permits recovery to the named insured under these circumstances. Couch § 45:484; Appleman § 4409 at 325 (noting that “the courts feel that the case must be examined from the viewpoint of the driver who expects and demands protection from the possibility of having to pay a judgment not compensated by insurance”).", "This rule is fashioned on the principle of strict construction that the insurer is under a duty as drafter to insert a provision excluding coverage of bodily injury to the named insured if no such coverage is desired. See, e.g., State Farm Mutual Automobile Ins. Co. v. Cartmel, 250 Ark. 77, 463 S.W.2d 648 (1971) (upholding a named insured exclusion). Cases finding a lack of coverage on grounds other than express exclusion are often based upon policy language which either covers liability arising from injuries to “other persons” only, State Farm Mut.", "Auto. Ins. Co. v. Sivey, 404 Mich. 51, 272 N.W.2d 555 (1978); Wheeler v. State Farm Mut. Auto. Ins. Co., 438 F.2d 730 (10th Cir.1971), or which was mandated by financial responsibility statutes rather than drafted by the insurer in interest. See, e.g., Transamerica Ins. Co. v. Norfolk and Dedham Mut. Fire Ins. Co. et al, 361 Mass. 144, 279 N.E.2d 686, 687-88 (1972). A minority of cases have excluded coverage solely on the basis that extending coverage would serve to transform a liability insurance policy into one covering personal injury for the named insured. Gibson v. State Farm Mut. Auto. Ins. Co., 378 So.2d 875 (Fla.Ct. App.1979); Oliveria v. Preferred Accident Ins. Co., 312 Mass. 426, 45 N.E.2d 263 (1942). Arkansas case law dealing with the construction of insurance contracts is clearly in accord with the majority view. Indeed, Arkansas courts have long followed the rule that the intent to exclude coverage in insurance contracts should be expressed in clear and unambiguous language, and an insurance policy, having been drafted by the insurer without consultation with the insured, is to be interpreted and construed liberally in favor of the insured and strictly against the insurer. Nationwide Mut.", "Ins. Co. v. Worthey, 314 Ark. 185, 861 S.W.2d 307, 309 (1993) (citing Baskette v. Union Life Ins. Co., 9 Ark.App. 34, 652 S.W.2d 635, 637 (1983)). Thus, even where language of exclusion is present in a policy, an interpretation favorable to the insured will be adopted if there is doubt or uncertainty as to the meaning of such language. Id. (citing Drummond Citizens Ins. Co. v. Sergeant, 266 Ark. 611, 588 S.W.2d 419, 423 (1979)). In this instance, the plain language of the policy extends coverage for the liabilities of Sodorff. The policy defines an “insured” as “you [named insured] for any covered auto” as well as “anyone else while using with your permission a covered ‘auto’ you own, hire or borrow....” (Ex.", "6 to Def.’s Mem. in Opp’n. of Summ. J.). The policy covers an insured for: all sums an “insured” legally must pay as damages because of “bodily injury” or “property damage” to which this insurance applies, caused by an “accident” and resulting from the ownership, maintenance or use of a covered “auto”. 1008No provision is present in the policy to expressly or indirectly exclude coverage of liability arising as the result of injuries to the named insured. Although the policy includes the workers’ compensation, employee indemnification, and fellow employee exclusions discussed below, these provisions do not address exclusion of the named insured from coverage.", "Compare Hancock v. Tri-State Ins. Co., 43 Ark.App. 47, 858 S.W.2d 152 (1993) (where coverage of the injured party was directly excluded by a provision excluding obligations arising among fellow employees). In light of the strict construction used in interpreting insurance contracts, United’s argument that such exclusions manifest an intent to exclude all liabilities arising among the Beards and their employees during the course of the trucking operation is misplaced. Accordingly, Sodorff enjoyed liability coverage as the result of being a permissive driver of a vehicle insured under the contract at issue. In keeping with the rule as applied by a majority of authorities, Sodorffs liability coverage is not excluded by law merely because her liability arises towards the named insured rather than a third party. B. Exclusion by express terms United relies upon three exclusions in the terms of its contract with Harold Beard to deny coverage of Sodorffs liabilities.", "These provisions exclude: obligations arising under workers’ compensation laws, obligations arising among fellow employees, and obligations arising as the result of bodily injury to an employee of the insured. 1. The worker’s compensation exclusion The workers’ compensation exclusion reads as follows: WORKERS’ COMPENSATION—Any obligation for which the “insured” or the “insured’s” insurer may be held liable under any workers’ compensation, disability benefits or unemployment compensation law or any similar law. (Ex. 6 of Def.’s Mem. in Opp’n.", "to Summ. J.). United’s assertion that the workers’ compensation exclusion serves to avoid coverage of injuries to Harold Beard is handicapped by the fact that no workers’ compensation insurance covered the parties involved in the trucking operation. (Ex. 1 of Pl.’s Mem. in Supp. of Summ. J.). Nevertheless, United maintains that the exclusion is still applicable on two bases. First, United contends that the parties should be covered under the workers’ compensation policy of another company (Southern Refrigeration) if shown to be subcontractors of that company. However, this argument fails on its face. Ark.Code Ann. § ll-9-402(a) states that “where a subcontractor fails to secure compensation required by this chapter, the prime contractor shall be liable for compensation to the employees of the subcontractor.” Thus, even if the Beards were found to be subcontractors, the liability arising on the part of Southern Refrigeration would not extend to subcontractors under the statute, but would be limited to the subcontractor’s employees. Indeed, this district has previously noted that § 402 is “not for the benefit of the subcontractor.", "Rather the provision [is] for the unprotected subcontractor’s employees.” Employers Ins. of Wausau v. Polar Express, Inc., 780 F.Supp. 610, 617 (W.D.Ark.1991); see also Liggett Construction Co. v. Griffin, 4 Ark.App. 247, 629 S.W.2d 316, 318 (1982) (primary purpose of provision is to protect the employees of subcontractors who are not financially responsible). Accordingly, even if Sodorff was an employee of a subcontractor, no obligation would arise for which the insurer of Southern Refrigeration could be held liable. Thus, the exclusion is not applicable. Second, United asserts that there is a question of fact as to whether the trucking operation met the definition of an employer who is required by the act to obtain workers’ compensation coverage. United contends that coverage need merely be required, rather than in place, in order for the workers’ compensation exclusion to apply. Yet, even if such a requirement were found, no obligation would be placed upon Sodorff under the act.", "Ark.Code Ann. § 11-9-401 allows an employer to be held liable for workers’ compensation benefits if the employer was required by the act to provide coverage to his employees but failed to do so. 1009However, no provision of the act places an obligation upon the employee on the grounds that the employer did not obtain the required coverage.1 Such a provision would be subject to ridicule. Sodorffs obligations could not have arisen under the Workers’ Compensation Act even if it required coverage, and the exclusion in the policy at hand does not apply. 2. The fellow employee exclusion The second exclusion upon which United relies in denying coverage states: FELLOW EMPLOYEE—'“Bodily injury” to any fellow employee of the “insured” arising out of and in the course of the fellow employee’s employment. United has admitted in its answer to the complaint that Sodorff was an employee of Harold Beard.", "(Answer at par. 6). Despite plaintiffs reliance upon it in their motion for summary judgment, no amendment or withdrawal of this admission has been sought since its filing over a year ago. Generally, admissions contained in pleadings are in the nature of judicial admissions and are binding on the parties unless withdrawn or amended. Missouri Housing Dev. Comm’n v. Brice, 919 F.2d 1306, 1314 (8th Cir.1990). Thus, “even if the post-pleading evidence conflicts with the evidence in the pleadings, admissions in the pleadings are binding on the parties and may support summary judgment against the party making such admissions.” Brice at 1315 (citing Davis v. A.G. Edwards & Sons, Inc., 823 F.2d 105 (5th Cir.1987)). United has admitted that Sodorff was acting “as an employee of Harold Beard” when the accident giving rise to her liability occurred. (Answer at Par. 6).", "As such, Sodorff and Harold Beard cannot be considered fellow employees of one another, and the exclusion is inapplicable in that regard. S. The employee indemnification exclusion Finally, United asserts that the employee indemnification exclusion serves to This pro-prevent coverage in this instance, vision excludes: EMPLOYEE INDEMNIFICATION AND EMPLOYER’S LIABILITY—“Bodily injury” to: a. An employee of the “insured” arising out of and in the course of employment by the “insured”; or b. The spouse, child, parent, brother or sister of that employee as a consequence of paragraph a. above. This exclusion applies: (1) Whether the “insured” may be liable as an employer or in any other capacity; and (2) To any obligation to share damages with or repay someone else who must pay damages because of the injury.", "In arguing that partial summary judgment should not be rendered as to the coverage of Harold Beard’s injuries, United claims that Harold might be found to have been the employee of his wife, Joyce Beard. United asserts that Joyce Beard claimed all the income from the trucking operation and was generally responsible for obtaining the insurance coverage at issue. As such, United argues that Joyce Beard could be found the named insured, and Harold Beard her employee. United points out that Harold Beard’s injuries would therefore be excluded from coverage as those belonging to an employee of the named insured. Even if regarded as true, however, the factual assertions made by United are of no consequence.", "Where no ambiguity is present, contract language is given its plain and ordinary meaning, and extrinsic evidence is inadmissible to contradict its terms. Newman v. First Nat’l. Bank of Harrison, 285 Ark. 52, 685 S.W.2d 147 (1985); C. & A. Constr. Co. v. Benning Constr. Co., 256 Ark. 621, 509 S.W.2d 302 (1974). The declarations and endorsements of the liability policy issued by United repeatedly identify Harold Beard as the named insured. The assertion that Joyce Beard is actually the named in*1010sured is inconsistent with the clear terms of the contract and therefore inadmissible. Thus, the employee indemnification exclusion cannot apply. III. CONCLUSION For the above reasons, the Court finds that the insurance policy issued by United provided coverage of Sodorffs liabilities to her employer, Harold Beard. Thus, United was under a duty to defend the claim brought against Sodorff by Beard. Home Indemnity Co. v. City of Marianna, 291 Ark. 610, 727 S.W.2d 375, 379 (1987) (citing Commercial Union Ins. Co. v. Henshall, 262 Ark. 117, 553 S.W.2d 274 (1977)).", "United breached this duty when it refused to do so. SodorfPs motion for partial summary judgment should therefore be granted. A separate order will be entered consistent with this opinion. . In this instance, for example, Harold Beard obtained a judgment for $1,300,000.00 against Sodorff. Such a substantial obligation certainly did not arise under the Worker’s Compensation Act." ]	https://www.courtlistener.com/api/rest/v3/opinions/8735423/	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
MEMORANDUM OF DECISION AND ORDER ROBERT D. POTTER, Chief Judge. THIS MATTER is before the Court on Defendant’s motion, filed August 28, 1990, to dismiss and for sanctions pursuant to Rule 37 of the Federal Rules of Civil Procedure. I. FACTUAL BACKGROUND. The record in this case indicates Plaintiff, an employee of Yellow Freight System, filed a pro se complaint on February 2, 1989 alleging that he had been subjected to racial discrimination in violation of Title VII, and that Defendant had violated the Worker Compensation laws. On June 22, 1989, this Court granted Defendant’s motion to dismiss both claims. The Fourth Circuit Court of Appeals on December 1, 1989 affirmed the dismissal of the Worker Compensation claim but reversed and remanded to this Court the Title VII claim. 892 F.2d 74. On December 14, 1989, Defendant served its answer and affirmative defenses to Plaintiff’s Title VII complaint. The initial discovery date was set by this Court for April 2, 1990. On March 22, 1990, Defendant’s counsel served Plaintiff with a Notice of Deposition scheduling the deposition for April 11, 1990 in Charlotte, North Carolina—the location where the alleged discrimination took place. Because Defendant’s counsel had not received a response from Plaintiff, Defendant’s counsel sent a certified letter to Plaintiff on April 2, 1990 requesting confirmation of the scheduled deposition. Defendant’s counsel received a letter on April 3, 1990 from Plaintiff that indicated Plaintiff would be unable to attend the deposition because health and financial problems precluded him from traveling to Charlotte, North Carolina. Defendant filed a motion to compel discovery on April 20, 1990. This Court granted that motion on May 2, 1990 and directed Plaintiff to notify the Court and Defendant of three (3) dates during May, 1990 that he would be available for his deposition to be taken. The Court further directed Plaintiff to appear during the properly noticed time in Charlotte, North Carolina for the deposition. By letter, dated May 3, 1990, Plaintiff notified the Court that he would not appear in Charlotte, North Carolina for the deposition at any time because of health and financial reasons. ' On May 22, 1990, this Court entered a second discovery order. The Court delineated the various sanction alternatives available to the Court including dismissal and directed Plaintiff to supplement the record with medical records and doctor's affidavits explaining the extent of his present medical ailments and present limitations. 426In response to the Court’s order, Plaintiff sent a letter to the Court and attached copies of hospital bills, copies of receipts for the purchase of prescription drugs, and other assorted documents. After reviewing the documents, the Court, on July 23, 1990, found that given the circumstances of this case, Kingstree, South Carolina (the seat for the county in which Plaintiff resides and only 13 miles from Plaintiff’s residence) was an appropriate location for the deposition to be taken. The Court also noted that Plaintiff had persisted in refusing to allow Defendant to take his deposition. The Court warned, “[I]f the Plaintiff persists in refusing to be deposed, the Court may have no other alternative than to dismiss this case with prejudice for the Plaintiff’s failure to engage in meaningful discovery. See F.R.Civ.P. 37(b).” Order of July 23, 1990, at 2. On July 26, 1990, Defendant’s counsel contacted Plaintiff by phone. According to the affidavit of Mr. David Kresser, counsel for Defendant, which is attached to Defendant’s motion, Plaintiff agreed to appear in Kingstree on August 16, 1990 to be deposed. The day before the deposition, Plaintiff contacted Defendant’s counsel and informed him that he would not appear as scheduled due to personal reasons he refused to divulge. After rearranging his schedule, Defendant’s counsel agreed to reschedule the deposition in Kingstree for August 24,1990; the day selected by Plaintiff. Because Defendant’s counsel would be traveling from Atlanta, Georgia to Kingstree for the deposition, Defendant’s counsel contacted Plaintiff on August 23, 1990 to confirm the deposition scheduled for the next day. Plaintiff informed Defendant that he would not appear for the deposition because of personal reasons related to his health and finances. When asked if he had planned on contacting Defendant’s counsel prior to the scheduled deposition, Plaintiff responded, “No.” Thus, had Defendant’s counsel failed to contact Plaintiff, unnecessary travel expenses and inconvenience would have been incurred by Defendant. Because Defendant believes that Plaintiff will continue to disregard this Court’s discovery orders and refuse to be deposed, Defendant filed this motion on August 28, 1990. Plaintiff responded on September 10, 1990. The only reason stated in the response attempting to justify the defiance of the Court’s order is that Plaintiff does not have the money to make the thirteen (13) mile trip to Kingstree. Apparently, Plaintiff believes that a plaintiff granted in forma pauperis status is not required to incur any expenses in prosecuting his complaint. 11. APPLICABLE LEGAL STANDARD. A motion to dismiss and for sanctions based on the failure of a party to attend a deposition is governed by Rule 37 of the Federal Rules of Civil Procedure. That Rule provides in pertinent part: (a) Motion for Order Compelling Discovery. A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery____ (b) Failure to Comply with Order. (2) Sanctions by Court in Which Action is Pending. If a party ... fails to obey an order to provide or permit discovery ... the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following ... (C) An order ... dismissing the action or proceeding or any part thereof____ (d) Failure of Party to Attend at Own Deposition or Serve Answers to Interrogatories or Respond to Request for Inspection. If a party ... fails (1) to appear before the officer who is to take the deposition after being served with a proper notice ... the court in which the motion is pending on motion may make such orders in regard to the failure as are just, and among other it may take any action authorized under paragraphs (A), (B), and (C) of subdivision (b)(2) of this rule. In lieu of any order or in addition thereto, the court shall require the party failing to act ... to pay reasonable expenses, including attorney’s fees, 427caused by the failure, unless, the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. It is evident from Rule 37 that the failure of a party to obey a discovery order can lead to the dismissal of the action and the award of reasonable expenses including attorney’s fees. III. DISCUSSION. Courts applying Rule 37 have found that the rule should not be applied as an initial remedy. See generally 4A Moore’s Federal Practice, Par. 37.03[2] at 37-88 (1990) (hereinafter “Moore’s”). The harsh sanction of dismissal cannot be utilized when the failure to obey the discovery order was a result of a party’s inability to do so after good faith efforts at compliance. Societe Internationale Pour Participations Industrielles et Commerciales, S.A. v. Rogers, 357 U.S. 197, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958). Courts have generally held that there must be some element of bad faith, willfulness, gross negligence, or callous disregard of the rights of other litigants in order to justify imposition of the sanction of dismissal. See Moore’s at 37-89. The determination of whether the factual situation of any given case justifies dismissal for violation of a discovery order is left in the sound discretion of the trial court. See National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 643, 96 S.Ct. 2778, 2781, 49 L.Ed.2d 747 (1976) (per curiam). “[T]he question, of course, is not whether this Court, or whether the Court of Appeals, would as an original matter have dismissed the action; it is whether the District Court abused its discretion in so doing.” Id. at 642, 96 S.Ct. at 2780; see also Wilson v. Volkswagen of America, Inc., 561 F.2d 494, 504 (4th Cir.1977), cert. denied, 434 U.S. 1020, 98 S.Ct. 744, 54 L.Ed.2d 768 (1978). The sanction of dismissal must be available to the district court not merely to penalize conduct, but to deter those who might be tempted to such conduct in the absence of such a deterrent. National Hockey League, 427 U.S. at 643, 96 S.Ct. at 2781. Nonetheless, many courts have found that an abuse of discretion occurs when the district court dismisses an action without explicitly considering whether lesser sanctions would effectively cure the improper behavior. Moore’s at 37-94 (citing cases). The Fourth Circuit Court of Appeals has directed that district courts consider four factors in deciding whether to impose the sanction of dismissal when a party fails to comply with a discovery order. See Mutual Federal Savings & Loan Association v. Richards & Associates, 872 F.2d 88, 92 (4th Cir.1988); McKenna v. Sovran Bank NA, 9 Fed.Rules Serv.3d 1249, 1252 (4th Cir.1987) (unpublished) (citing Wilson, 561 F.2d at 503-06); Aerodyune Systems Engineering, Ltd. v. Heritage International Bank, 115 F.R.D. 281 (D.Md.1987); Snead v. Automation Industries, 102 F.R.D. 823 (D.Md.1984). The factors include: (1) whether the noncomplying party acted in bad faith; (2) the amount of prejudice his noncompliance caused his adversary, which necessarily includes an inquiry into the materiality of the evidence he failed to produce; (3) the need for deterrence of the particular sort of noncompliance; and (4) the effectiveness of less drastic sanctions. Mutual Federal Savings & Loan, 872 F.2d at 92. In this case, the Court’s examination of the relevant factors leads it to conclude that Defendant’s motion to dismiss is meritorious. First, the Court believes Plaintiff has acted in bad faith. The uncontradicted evidence that Defendant has produced in the form of an affidavit, letters to Plaintiff, and notices of deposition demonstrates that Defendant attempted to depose Plaintiff no less than three (3) times. Each time Plaintiff willfully failed to appear as scheduled. See generally Affidavit of Attorney David Kresser of August 27, 1990, at 3-5 (hereinafter “Kresser Aff.”). Although there is some evidence in the record that medical and financial problems precluded Plaintiff from attending the first scheduled deposition, the Court attempted to alleviate those problems by directing that the deposition 428be conducted a mere thirteen (13) miles from Plaintiff's home. The Court believes the failure of Plaintiff to attend the scheduled depositions of August 16, 1990 and August 24, 1990 is demonstrative of bad faith. See Technical Chemical Company v. IG-LO Products Corp., 812 F.2d 222, 224 (5th Cir.1987) (pro se plaintiffs failure to appear at two (2) depositions indicated bad faith); Kabbe v. Rotan Mosle, Inc., 752 F.2d 1083, 1084 (5th Cir.1985) (plaintiff failed to appear three times at scheduled depositions; Fifth Circuit held district court did not abuse its discretion in dismissing case); The Buckeye Union Insurance Co. v. Boggs, 109 F.R.D. 420 (S.D.W.V.1986). Plaintiff has utterly failed to come forward with any legitimate reason that explains his refusal to attend the two (2) scheduled depositions in Kingstree. Thus, the Court concludes that Plaintiff chose to disregard this Court’s discovery orders in bad faith. This conclusion is affirmed by Plaintiff’s wanton disregard of the expense and inconvenience to Defendant in attempting to procure his deposition as evidenced by Plaintiff’s statement that he did not intend to notify Defendant’s counsel that he would not be appearing for the August 24, 1990 scheduled deposition. Kresser Aff. at 5. Second, the Court believes Plaintiff’s failure to comply with the discovery orders issued by this Court caused Defendant to be prejudiced. The evidence that Plaintiff failed to produce is material to this case. The complaint filed by Plaintiff is vague and general. Moreover, Plaintiff failed to provide sufficient answers to Defendant’s request for admissions and interrogatories. Kresser Aff. at 1-2. Therefore, the only means left for Defendant to discover the relevant information necessary for it to prepare this matter for trial was to depose Plaintiff. Plaintiff's refusal to submit to being deposed effectively estopped Defendant from preparing this case. See Mutual Federal Savings & Loan, 872 F.2d at 93. Third, the Court believes the need for deterrence of this type of noncompliance is vital for the efficient administration of justice. If parties were permitted to routinely ignore notices for depositions, the Court would be required to intervene in the discovery process of every case. In this case alone, the Court has entered three (3) discovery orders to no avail directing Plaintiff to submit to the taking of his deposition. With the tremendous caseload federal district courts must manage, this type of involvement in every case would create unmanageable dockets. Accordingly, the Court believes that in this case it is necessary “[t]o deter those who might be tempted to such conduct in the absence of such a deterrent ... Other parties to other lawsuits would feel freer than we think Rule 37 contemplates they should feel to flout other discovery orders of other district courts.” National Hockey League, 427 U.S. at 643, 96 S.Ct. at 2781. Fourth, the Court is unable to conclude that less drastic sanctions would be effective. Plaintiff has failed to suggest less drastic sanctions would ensure his compliance with the Court’s discovery orders. Due to Plaintiff’s financial condition, the Court is certain that monetary sanctions would be ineffective due to Plaintiff’s indigent status. See F.R.Civ.Proc. 37(c); see also Rogler v. Phillips Building Mental Retardation Program, 126 F.R.D. 509, 514 (D.Md.1989). Nor can the Court find that evidence Plaintiff has withheld be established as true due to the fact that Plaintiff has not provided Defendant with any substantive information. See F.R.Civ.Proc. 37(b)(2)(A); see also Mutual Federal Savings & Loan, 872 F.2d at 93. Finally, the Court is unable to strike out part of the pleadings because the Title VII claim is the only cause of action alleged in the complaint. See F.R.Civ.Proc. 37(b)(2)(C). While the Court could find Plaintiff in contempt, the Court would have to imprison Plaintiff because he is unable to pay a fine. The Court does not believe, given the crowded conditions of the Mecklenburg County Jail, that such an alternative is appropriate in this case. Thus, the Court believes that its only option is to dismiss this action. 429In short, the Court believes that it has exercised a great deal of patience with Plaintiff. See National Hockey League, 427 U.S. at 642, 96 S.Ct. at 2780 (“(The) record shows that the District Court was extremely patient in its efforts to allow the respondents ample time to comply with its discovery orders”). The Court has given Plaintiff three opportunities over a six (6) month period of time to comply with the relatively simple direction that he make himself available to be deposed. The Court believes Plaintiff is unwilling to abide by that direction. Although the fact that Plaintiff is pro se requires some consideration, the Court does not believe that fact alone excuses Plaintiffs failure to comply in this case. See Technical Chemical Co., 812 F.2d at 224 (pro se litigant’s failure to comply with discovery order by presenting himself for deposition not justified because he lacked funds to travel). Defendant has requested that reasonable expenses be assessed against Plaintiff. Because of Plaintiff’s indigence, the Court does not believe that the interests of justice would be served by awarding expenses in this circumstance. Accordingly, the Court will grant Defendant’s motion to dismiss, but deny Defendant’s motion to award it expenses. IY. ORDER OF THE COURT. NOW, THEREFORE, IT IS ORDERED that Defendant’s motion to dismiss pursuant to Rule 37 of the Federal Rules of Civil Procedure be, and hereby is, GRANTED. IT IS FURTHER ORDERED that Defendant’s motion for sanctions pursuant to Rule 37 of the Federal Rules of Civil Procedure be, and hereby is, DENIED.	11-27-2022	[ "MEMORANDUM OF DECISION AND ORDER ROBERT D. POTTER, Chief Judge. THIS MATTER is before the Court on Defendant’s motion, filed August 28, 1990, to dismiss and for sanctions pursuant to Rule 37 of the Federal Rules of Civil Procedure. I. FACTUAL BACKGROUND. The record in this case indicates Plaintiff, an employee of Yellow Freight System, filed a pro se complaint on February 2, 1989 alleging that he had been subjected to racial discrimination in violation of Title VII, and that Defendant had violated the Worker Compensation laws. On June 22, 1989, this Court granted Defendant’s motion to dismiss both claims.", "The Fourth Circuit Court of Appeals on December 1, 1989 affirmed the dismissal of the Worker Compensation claim but reversed and remanded to this Court the Title VII claim. 892 F.2d 74. On December 14, 1989, Defendant served its answer and affirmative defenses to Plaintiff’s Title VII complaint. The initial discovery date was set by this Court for April 2, 1990. On March 22, 1990, Defendant’s counsel served Plaintiff with a Notice of Deposition scheduling the deposition for April 11, 1990 in Charlotte, North Carolina—the location where the alleged discrimination took place. Because Defendant’s counsel had not received a response from Plaintiff, Defendant’s counsel sent a certified letter to Plaintiff on April 2, 1990 requesting confirmation of the scheduled deposition. Defendant’s counsel received a letter on April 3, 1990 from Plaintiff that indicated Plaintiff would be unable to attend the deposition because health and financial problems precluded him from traveling to Charlotte, North Carolina.", "Defendant filed a motion to compel discovery on April 20, 1990. This Court granted that motion on May 2, 1990 and directed Plaintiff to notify the Court and Defendant of three (3) dates during May, 1990 that he would be available for his deposition to be taken. The Court further directed Plaintiff to appear during the properly noticed time in Charlotte, North Carolina for the deposition. By letter, dated May 3, 1990, Plaintiff notified the Court that he would not appear in Charlotte, North Carolina for the deposition at any time because of health and financial reasons. ' On May 22, 1990, this Court entered a second discovery order. The Court delineated the various sanction alternatives available to the Court including dismissal and directed Plaintiff to supplement the record with medical records and doctor's affidavits explaining the extent of his present medical ailments and present limitations. 426In response to the Court’s order, Plaintiff sent a letter to the Court and attached copies of hospital bills, copies of receipts for the purchase of prescription drugs, and other assorted documents.", "After reviewing the documents, the Court, on July 23, 1990, found that given the circumstances of this case, Kingstree, South Carolina (the seat for the county in which Plaintiff resides and only 13 miles from Plaintiff’s residence) was an appropriate location for the deposition to be taken. The Court also noted that Plaintiff had persisted in refusing to allow Defendant to take his deposition. The Court warned, “[I]f the Plaintiff persists in refusing to be deposed, the Court may have no other alternative than to dismiss this case with prejudice for the Plaintiff’s failure to engage in meaningful discovery. See F.R.Civ.P. 37(b).” Order of July 23, 1990, at 2.", "On July 26, 1990, Defendant’s counsel contacted Plaintiff by phone. According to the affidavit of Mr. David Kresser, counsel for Defendant, which is attached to Defendant’s motion, Plaintiff agreed to appear in Kingstree on August 16, 1990 to be deposed. The day before the deposition, Plaintiff contacted Defendant’s counsel and informed him that he would not appear as scheduled due to personal reasons he refused to divulge. After rearranging his schedule, Defendant’s counsel agreed to reschedule the deposition in Kingstree for August 24,1990; the day selected by Plaintiff. Because Defendant’s counsel would be traveling from Atlanta, Georgia to Kingstree for the deposition, Defendant’s counsel contacted Plaintiff on August 23, 1990 to confirm the deposition scheduled for the next day. Plaintiff informed Defendant that he would not appear for the deposition because of personal reasons related to his health and finances. When asked if he had planned on contacting Defendant’s counsel prior to the scheduled deposition, Plaintiff responded, “No.” Thus, had Defendant’s counsel failed to contact Plaintiff, unnecessary travel expenses and inconvenience would have been incurred by Defendant. Because Defendant believes that Plaintiff will continue to disregard this Court’s discovery orders and refuse to be deposed, Defendant filed this motion on August 28, 1990. Plaintiff responded on September 10, 1990.", "The only reason stated in the response attempting to justify the defiance of the Court’s order is that Plaintiff does not have the money to make the thirteen (13) mile trip to Kingstree. Apparently, Plaintiff believes that a plaintiff granted in forma pauperis status is not required to incur any expenses in prosecuting his complaint. 11. APPLICABLE LEGAL STANDARD. A motion to dismiss and for sanctions based on the failure of a party to attend a deposition is governed by Rule 37 of the Federal Rules of Civil Procedure.", "That Rule provides in pertinent part: (a) Motion for Order Compelling Discovery. A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery____ (b) Failure to Comply with Order. (2) Sanctions by Court in Which Action is Pending. If a party ... fails to obey an order to provide or permit discovery ... the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following ... (C) An order ... dismissing the action or proceeding or any part thereof____ (d) Failure of Party to Attend at Own Deposition or Serve Answers to Interrogatories or Respond to Request for Inspection. If a party ... fails (1) to appear before the officer who is to take the deposition after being served with a proper notice ... the court in which the motion is pending on motion may make such orders in regard to the failure as are just, and among other it may take any action authorized under paragraphs (A), (B), and (C) of subdivision (b)(2) of this rule. In lieu of any order or in addition thereto, the court shall require the party failing to act ... to pay reasonable expenses, including attorney’s fees, 427caused by the failure, unless, the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.", "It is evident from Rule 37 that the failure of a party to obey a discovery order can lead to the dismissal of the action and the award of reasonable expenses including attorney’s fees. III. DISCUSSION. Courts applying Rule 37 have found that the rule should not be applied as an initial remedy. See generally 4A Moore’s Federal Practice, Par. 37.03[2] at 37-88 (1990) (hereinafter “Moore’s”). The harsh sanction of dismissal cannot be utilized when the failure to obey the discovery order was a result of a party’s inability to do so after good faith efforts at compliance. Societe Internationale Pour Participations Industrielles et Commerciales, S.A. v. Rogers, 357 U.S. 197, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958). Courts have generally held that there must be some element of bad faith, willfulness, gross negligence, or callous disregard of the rights of other litigants in order to justify imposition of the sanction of dismissal.", "See Moore’s at 37-89. The determination of whether the factual situation of any given case justifies dismissal for violation of a discovery order is left in the sound discretion of the trial court. See National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 643, 96 S.Ct. 2778, 2781, 49 L.Ed.2d 747 (1976) (per curiam). “[T]he question, of course, is not whether this Court, or whether the Court of Appeals, would as an original matter have dismissed the action; it is whether the District Court abused its discretion in so doing.” Id. at 642, 96 S.Ct. at 2780; see also Wilson v. Volkswagen of America, Inc., 561 F.2d 494, 504 (4th Cir.1977), cert. denied, 434 U.S. 1020, 98 S.Ct. 744, 54 L.Ed.2d 768 (1978). The sanction of dismissal must be available to the district court not merely to penalize conduct, but to deter those who might be tempted to such conduct in the absence of such a deterrent. National Hockey League, 427 U.S. at 643, 96 S.Ct.", "at 2781. Nonetheless, many courts have found that an abuse of discretion occurs when the district court dismisses an action without explicitly considering whether lesser sanctions would effectively cure the improper behavior. Moore’s at 37-94 (citing cases). The Fourth Circuit Court of Appeals has directed that district courts consider four factors in deciding whether to impose the sanction of dismissal when a party fails to comply with a discovery order. See Mutual Federal Savings & Loan Association v. Richards & Associates, 872 F.2d 88, 92 (4th Cir.1988); McKenna v. Sovran Bank NA, 9 Fed.Rules Serv.3d 1249, 1252 (4th Cir.1987) (unpublished) (citing Wilson, 561 F.2d at 503-06); Aerodyune Systems Engineering, Ltd. v. Heritage International Bank, 115 F.R.D. 281 (D.Md.1987); Snead v. Automation Industries, 102 F.R.D. 823 (D.Md.1984). The factors include: (1) whether the noncomplying party acted in bad faith; (2) the amount of prejudice his noncompliance caused his adversary, which necessarily includes an inquiry into the materiality of the evidence he failed to produce; (3) the need for deterrence of the particular sort of noncompliance; and (4) the effectiveness of less drastic sanctions.", "Mutual Federal Savings & Loan, 872 F.2d at 92. In this case, the Court’s examination of the relevant factors leads it to conclude that Defendant’s motion to dismiss is meritorious. First, the Court believes Plaintiff has acted in bad faith. The uncontradicted evidence that Defendant has produced in the form of an affidavit, letters to Plaintiff, and notices of deposition demonstrates that Defendant attempted to depose Plaintiff no less than three (3) times. Each time Plaintiff willfully failed to appear as scheduled. See generally Affidavit of Attorney David Kresser of August 27, 1990, at 3-5 (hereinafter “Kresser Aff.”). Although there is some evidence in the record that medical and financial problems precluded Plaintiff from attending the first scheduled deposition, the Court attempted to alleviate those problems by directing that the deposition 428be conducted a mere thirteen (13) miles from Plaintiff's home.", "The Court believes the failure of Plaintiff to attend the scheduled depositions of August 16, 1990 and August 24, 1990 is demonstrative of bad faith. See Technical Chemical Company v. IG-LO Products Corp., 812 F.2d 222, 224 (5th Cir.1987) (pro se plaintiffs failure to appear at two (2) depositions indicated bad faith); Kabbe v. Rotan Mosle, Inc., 752 F.2d 1083, 1084 (5th Cir.1985) (plaintiff failed to appear three times at scheduled depositions; Fifth Circuit held district court did not abuse its discretion in dismissing case); The Buckeye Union Insurance Co. v. Boggs, 109 F.R.D. 420 (S.D.W.V.1986). Plaintiff has utterly failed to come forward with any legitimate reason that explains his refusal to attend the two (2) scheduled depositions in Kingstree.", "Thus, the Court concludes that Plaintiff chose to disregard this Court’s discovery orders in bad faith. This conclusion is affirmed by Plaintiff’s wanton disregard of the expense and inconvenience to Defendant in attempting to procure his deposition as evidenced by Plaintiff’s statement that he did not intend to notify Defendant’s counsel that he would not be appearing for the August 24, 1990 scheduled deposition. Kresser Aff. at 5. Second, the Court believes Plaintiff’s failure to comply with the discovery orders issued by this Court caused Defendant to be prejudiced.", "The evidence that Plaintiff failed to produce is material to this case. The complaint filed by Plaintiff is vague and general. Moreover, Plaintiff failed to provide sufficient answers to Defendant’s request for admissions and interrogatories. Kresser Aff. at 1-2. Therefore, the only means left for Defendant to discover the relevant information necessary for it to prepare this matter for trial was to depose Plaintiff. Plaintiff's refusal to submit to being deposed effectively estopped Defendant from preparing this case.", "See Mutual Federal Savings & Loan, 872 F.2d at 93. Third, the Court believes the need for deterrence of this type of noncompliance is vital for the efficient administration of justice. If parties were permitted to routinely ignore notices for depositions, the Court would be required to intervene in the discovery process of every case. In this case alone, the Court has entered three (3) discovery orders to no avail directing Plaintiff to submit to the taking of his deposition. With the tremendous caseload federal district courts must manage, this type of involvement in every case would create unmanageable dockets. Accordingly, the Court believes that in this case it is necessary “[t]o deter those who might be tempted to such conduct in the absence of such a deterrent ... Other parties to other lawsuits would feel freer than we think Rule 37 contemplates they should feel to flout other discovery orders of other district courts.” National Hockey League, 427 U.S. at 643, 96 S.Ct.", "at 2781. Fourth, the Court is unable to conclude that less drastic sanctions would be effective. Plaintiff has failed to suggest less drastic sanctions would ensure his compliance with the Court’s discovery orders. Due to Plaintiff’s financial condition, the Court is certain that monetary sanctions would be ineffective due to Plaintiff’s indigent status. See F.R.Civ.Proc. 37(c); see also Rogler v. Phillips Building Mental Retardation Program, 126 F.R.D. 509, 514 (D.Md.1989). Nor can the Court find that evidence Plaintiff has withheld be established as true due to the fact that Plaintiff has not provided Defendant with any substantive information. See F.R.Civ.Proc. 37(b)(2)(A); see also Mutual Federal Savings & Loan, 872 F.2d at 93.", "Finally, the Court is unable to strike out part of the pleadings because the Title VII claim is the only cause of action alleged in the complaint. See F.R.Civ.Proc. 37(b)(2)(C). While the Court could find Plaintiff in contempt, the Court would have to imprison Plaintiff because he is unable to pay a fine. The Court does not believe, given the crowded conditions of the Mecklenburg County Jail, that such an alternative is appropriate in this case. Thus, the Court believes that its only option is to dismiss this action. 429In short, the Court believes that it has exercised a great deal of patience with Plaintiff. See National Hockey League, 427 U.S. at 642, 96 S.Ct. at 2780 (“(The) record shows that the District Court was extremely patient in its efforts to allow the respondents ample time to comply with its discovery orders”).", "The Court has given Plaintiff three opportunities over a six (6) month period of time to comply with the relatively simple direction that he make himself available to be deposed. The Court believes Plaintiff is unwilling to abide by that direction. Although the fact that Plaintiff is pro se requires some consideration, the Court does not believe that fact alone excuses Plaintiffs failure to comply in this case. See Technical Chemical Co., 812 F.2d at 224 (pro se litigant’s failure to comply with discovery order by presenting himself for deposition not justified because he lacked funds to travel).", "Defendant has requested that reasonable expenses be assessed against Plaintiff. Because of Plaintiff’s indigence, the Court does not believe that the interests of justice would be served by awarding expenses in this circumstance. Accordingly, the Court will grant Defendant’s motion to dismiss, but deny Defendant’s motion to award it expenses. IY. ORDER OF THE COURT. NOW, THEREFORE, IT IS ORDERED that Defendant’s motion to dismiss pursuant to Rule 37 of the Federal Rules of Civil Procedure be, and hereby is, GRANTED. IT IS FURTHER ORDERED that Defendant’s motion for sanctions pursuant to Rule 37 of the Federal Rules of Civil Procedure be, and hereby is, DENIED." ]	https://www.courtlistener.com/api/rest/v3/opinions/9031458/	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
313 F.Supp. 1130 (1970) Peter J. CASANO, Plaintiff, v. WDSU-TV, INC., Defendant. Civ. A. No. 3882. United States District Court, S. D. Mississippi, S. D. June 1, 1970. 1131 1132 Walter J. Phillips, Bay St. Louis, Miss., Frank J. D'Amico, New Orleans, La., for plaintiff. George Morse, Gulfport, Miss., for defendant. MEMORANDUM OPINION NIXON, District Judge. The plaintiff, Peter J. Casano, filed this action for libel in this Court against the defendant, WDSU-TV, Inc. to recover damages allegedly resulting from its television broadcasts on August 8, and August 13, 1969, emanating from its studios near New Orleans, Louisiana, approximately fifty miles or less from plaintiff's domicile in Pass Christian, Harrison County, Mississippi. The alleged libelous material was transmitted over the defendant's station (Channel 6) into its area of coverage. The plaintiff's domicile was within the area of dominant influence of the defendant's television station, and the telecast complained of was viewed by television audiences in areas within this Court's jurisdiction in the Southern District of Mississippi at the same time that it was viewed by television audiences in the New Orleans, Louisiana and other Louisiana outlying areas. The broadcasts complained of were concerned essentially with an examination of conduct on the part of the District Attorney of Orleans Parish, Jim Garrison, a public official then seeking renomination on the Democratic ticket. Specifically, plaintiff charges that the defendant inferred that plaintiff was a "racketeer", a "Carlos Marcello-connected attorney" and that he owned property with one Leon Salloum, who was accused of possessing stolen property. The defendant was served with personal process at its domicile or studio at 520 Royal Street in New Orleans, Louisiana within 100 miles of Biloxi, Mississippi where this action was commenced. In response, WDSU filed a Motion to Dismiss, contending that this Court lacks personal jurisdiction over it. By affidavit in support of its motion, the defendant, through its President, A. Louis Read stated: (1) It is a corporation organized and existing under the laws of the State of Louisiana and maintains its offices in the City of New Orleans, Louisiana and its transmitter in St. Bernard Parish, Louisiana. (2) It is engaged in the business of television broadcasting in the State of Louisiana and does not do business nor 1133 has it qualified to do business in any other state or jurisdiction. (3) It leases no office space and maintains no bank accounts or corporate books or records, and does not execute contracts in Mississippi. (4) None of the officers or directors of WDSU reside in Mississippi nor does it have any mailing address or telephone listing in Mississippi. (5) It does not pay any taxes in Mississippi, does not purchase supplies and equipment, and has no employees or manager therein. (6) During the year 1969 it carried commercial announcements for eleven advertisers located on the Gulf Coast area of Mississippi and named these advertisers and their location as well as the name and location of the advertising agency involved. Four of these advertisers are located in Gulfport, Harrison County, Mississippi; one in Biloxi, Harrison County, Mississippi; two in Pass Christian, Harrison County, Mississippi; two in Ocean Springs, Jackson County, Mississippi, and one in Picayune, Pearl River County, Mississippi. Four of the advertising agencies which placed these advertisements are located in Biloxi and Gulfport, Harrison County, Mississippi. All advertisements were subject to the approval of the defendant's Vice President in charge of sales in New Orleans. Three of the Mississippi advertisers, Gulf National Bank of Gulfport, First National Bank of Biloxi and The Port of Gulfport, which is the Mississippi State Port facility, sponsored advertisements that were institutional in character and were carried in connection with programing of WDSU that related specifically to the Mississippi Gulf Coast. All other advertisements were aimed primarily at the New Orleans market, that is, were designed to induce Louisiana residents to avail themselves of the goods or services offered by the advertisements. All payments for advertising on WDSU other than those paid to its national advertising representative, are due and payable in New Orleans, Louisiana. (7) Other than what may be owing to WDSU from time to time on account of advertising previously carried by it at the behalf of Mississippi advertisers or agencies, the defendant has no property or other assets located within the State of Mississippi. (8) WDSU has no employees stationed in Mississippi nor does it employ "stringers" for the purpose of reporting on news events therein. (9) The broadcasts of WDSU referred to in the Complaint filed herein were made in connection with an investigation of the conduct of the District Attorney of Orleans Parish, Louisiana and was a matter of significance primarily to the listening audience in New Orleans, Louisiana and vicinity. Every person mentioned in those broadcasts either resided or maintained an office in Louisiana. (10) While the broadcast signals of WDSU can be received by a greater number of homes, the American Research Bureau (an independent market survey organization whose findings are heavily relied on by television advertisers) classifies 14,300 television-equipped homes in Mississippi as being within the "area of dominant influence" of New Orleans television stations, as compared with 402,400 such homes in the State of Louisiana, and constitutes less than 3.5% of all television-equipped homes within the area of dominant influence of New Orleans television stations. (11) Of defendant's total advertising receipts in 1969, less than six tenths of one percent (.6%) was attributable to advertisers located in Mississippi. Less than half of that amount was placed with defendant directly from Mississippi, the remainder having been placed by advertising agencies in Louisiana and Texas. (12) The plaintiff herein is listed in the yellow pages of the telephone directory for the Greater New Orleans area dated December, 1969 with two office numbers appearing. 1134 On the other hand, by affidavit and supplemental affidavit as well as by his sworn testimony herein, plaintiff declared that: (a) He was born in Gulfport, Mississippi on October 19, 1935 and is now a resident citizen of Pass Christian, Mississippi, wherein he is a registered voter and has applied for and been granted homestead exemption. He is a member of the Trinity Episcopal Church in Pass Christian and his son has been enrolled in Christ Episcopal School in Bay St. Louis, Hancock County, Mississippi for the past three years. (b) That he is a licensed practicing attorney in Louisiana and a member of the Louisiana bar but not the Mississippi bar. He is involved in several businesses in Louisiana but none in Mississippi; that fifty percent (50%) of his time is devoted to the practice of law although he owns an interest in two hotels as well as a restaurant and some apartments. Nevertheless, his social activities are basically centered in the State of Mississippi where most of his immediate family live and reside. He does a considerable amount of his work in his home in Pass Christian from which he commutes to New Orleans each day and spends every weekend at home in Pass Christian. (c) He owns an automobile which he uses for business which bears a Louisiana license tag, and he also has a Louisiana drivers license. His personal automobile has a Mississippi tag and his wife, who usually drives this vehicle, has a Mississippi drivers license. (d) Plaintiff is a member of several social clubs in the Gulf Coast area, and belongs to only one club in Louisiana, namely, the New Orleans Athletic Club. (e) That the defendant televises or broadcasts daily into the State of Mississippi, and the broadcasts which form the basis of this action were heard and seen by numerous acquaintances, business associates, relatives and friends of plaintiff, all of whom live and reside in the State of Mississippi. (f) That the defendant's regular program and schedule are published in the Gulf Coast edition of TV Guide, and The Daily Herald, the principal newspaper published on the Mississippi Gulf Coast and in Harrison County. Each and every television cable company on the Gulf Coast regularly carries the programs of WDSU-TV (Channel 6). (g) WDSU-TV, Inc. is one of the main television broadcasting stations on the Mississippi Gulf Coast and is frequently seen and heard by large segments of the community in which plaintiff lives and resides. (h) The programs in question were televised in plaintiff's hometown in the State of Mississippi. He denies that they were of significance primarily to the listening and viewing audience in the New Orleans, Louisiana vicinity. (i) The State of Mississippi has taken an interest in connection with the activities of the Cosa Nostra and/or Mafia as evidenced by a recent report of Mississippi's Lieutenant Governor Sullivan. (j) The defendant frequently sends reporters and photographers into the State of Mississippi; also, that in every weather advisory broadcast both daily and nightly, weather reports for the State of Mississippi are given primarily for residents of the Mississippi Gulf Coast. (k) In many of the broadcasts of the defendant, the States of Mississippi and Louisiana only are referred to as matters of local interest. (l) The circulation of the defendant's broadcast in the State of Mississippi are substantial, it actively solicits advertising therein, and the purpose and existence of its involvement within the State of Mississippi is to exploit further the Mississippi market for financial gain. (m) Many of the advertisers on the defendant's Channel 6 particularly solicit residents of the State of Mississippi, and particularly the Mississippi Gulf Coast area, and advertise free delivery to residents of the Mississippi Gulf Coast area. 1135 Although this Court is of the opinion that the defendant herein has sufficient contacts with Mississippi to satisfy due process under the holdings in International Shoe Company v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, 161 A.L.R. 1057 (1945); McGee v. International Life Insurance Company, 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957), and Eyerly Aircraft Co. v. Killain, 414 F.2d 591 (C.A.5, 1969), it is necessary as Judge Goldberg stated in Eyerly, to take the specific measurements of Mississippi law to see if its "Long Arm" reaches as far as the Constitution permits. Although the decisions are not uniform, and some Courts have chosen to regard the amenability of a corporation to suit within a state as a matter of procedure, governed solely by a federal test, the sounder view, and that supported by the greater weight of authority, including the Court of Appeals for the Fifth Circuit, is that under the doctrine of Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, in diversity cases, state law determines whether a corporation is subject to suit in that state, and the federal decisions are important only in ascertaining whether the state law is within constitutional bounds. Eyerly Aircraft v. Killain, supra, pp. 598, 599, f.n. 9; Walker v. Savell, 335 F.2d 536, 540 (C.A.5, 1964); 1 Barron & Holtzoff, Federal Practice and Procedure, Sec. 179, at 696 (1960). Each case which raises an in personam or territorial jurisdictional question must be decided upon its own peculiar facts. Curtis Publishing Co. v. Golino, 383 F.2d 586 (C.A.5, 1967); Phillips v. Hooker Chemical Corp., 375 F.2d 189 (C.A.5, 1967); Republic-Transcon Industries, Inc. v. Templeton, 253 Miss. 132, 175 So. 2d 185 (1965); Jarrard Motors, Inc. v. Jackson Auto & Supply Co., 237 Miss. 660, 115 So.2d 309 (1959). However, the question for decision is not what the Mississippi Supreme Court has said in a case which is factually most in line with the one which must be decided, but what the Court has said with respect to the legal principles to be followed in any case involving the concept of "doing business." Walker v. Savell, supra, 335 F.2d at p. 541. It is first necessary to examine Section 1437 of the Mississippi Code, 1942, Rec., both prior and subsequent to its amendment which became effective on July 1, 1964 and the Mississippi Supreme Court decisions construing and applying this statute which controls or governs the acquisition of jurisdiction over nonresident defendants, including foreign corporations, in the State of Mississippi, and which as amended is also referred to as the "Long Arm" statute.[1] Also, Section 1437 must be read 1136 in conjunction with Section 5345 of the Mississippi Code of 1942, Rec.,[2] which specifically deals with jurisdiction over foreign corporations "doing business" in the State of Mississippi. Prior to its amendment in 1964, Section 1437 contained no provisions for the acquisition of jurisdiction over nonresident defendants in cases where the commission of a single tort or execution of a single contract was the only contact which a nonresident had with the State of Mississippi. During that era the acquisition of jurisdiction rested primarily on whether the nonresident who had not qualified to do business in Mississippi and had not appointed a resident agent for service of process therein, was found to be "[doing] business or perform[ing] any character of work or service in this State." It was necessary to scrutinize the nature and extent of the particular defendant's activity to determine whether it was "doing business" within the meaning of this statute, and the only limitations placed on the reach of this statute were that the defendant must have certain "minimal contacts" with the State and the assumption of jurisdiction must not offend "traditional notions of fair play and substantial justice." See Davis-Wood Lumber Co. v. Ladner, 210 Miss. 863, 50 So.2d 615 (1951). An excellent discussion of the history of this jurisdictional prerequisite as construed by the Courts is found in the case of Walker v. Savell, 335 F.2d 536 (5th Cir. 1964). In Walker the Court considered and discussed the leading case of Lee v. Memphis Publishing Co., 195 Miss. 264, 14 So.2d 351, 152 A.L.R. 1428, and four other important subsequent cases decided by the Supreme Court of Mississippi, namely, Davis-Wood Lumber Co. v. Ladner, supra; Jarrard Motors, Inc. v. Jackson Auto & Supply Co., supra; Livestock Services, Inc. v. American Cyanimid Co., 244 Miss. 531, 142 So.2d 210 (1962); and Century Brick Corp. v. Carroll, 247 Miss. 514, 153 So.2d 683 (1963), in order to determine what, if any, gloss had been put upon the Mississippi Court's opinion in Lee v. Memphis Publishing Co., supra, by the decision of the United States Supreme Court in the International Shoe Case, supra. The Court in Walker concluded that the Mississippi Supreme Court had not in any of these cases decided to supercede its own announced requirements by the more modern or liberal trend discussed in the United States Supreme Court's decisions of International Shoe and McGee v. International Life Insurance Company, 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223. Immediately after the 1964 amendment to section 1437 became effective, enlarging the scope thereof, the Mississippi Supreme Court handed down its landmark decision in Mladinich v. Kohn, 250 Miss. 138, 164 So.2d 785 (1964). The Court referred to the amendment which had been enacted but had not yet become effective, and utilized this decision to lay down the ground rules for the application of the amended and broadened statute. See Miss. Defense Lawyers' Journal, "How Long the Arm", Vol. 4, p. 45 and 27 A.L.R.2d pp. 463-465. In this case the Court held that in order to subject a nonresident to 1137 jurisdiction in the State of Mississippi, in addition to the requirements that it have certain "minimal contacts" with the forum state and that assumption of jurisdiction would not offend "traditional notions of fair play and substantial justice," there were three other basic factors which must coincide, and these are: "(1) the nonresident defendant or foreign corporation must purposefully do some act or consummate some transaction in the forum state; (2) the cause of action must arise from, or be connected with, such act or transaction; and (3) the assumption of jurisdiction in the forum state must not offend traditional notions of fair play and substantial justice, consideration being given to to the quality, nature, and extent of the activity in the forum state, the relative convenience of the parties, the benefits and protection of the laws of the forum state afforded the respective parties, and the basic equities of the situation." Effective July 1, 1964, Mississippi's "Arm" apparently became longer by the addition of two other bases for acquiring jurisdiction of a foreign corporation or entity, namely: (1) if it committed a tort in the state against a resident of the state, or (2) made a contract with the state resident, some part of which was to be performed in the state. Although the above three criteria were laid down in Mladinich v. Kohn, prior to the effective date of the amendment to section 1437, they have been retained as necessary and essential prerequisites to the acquisition of jurisdiction since that amendment and up to this date, as is apparent by reading subsequent decisions of the Mississippi Supreme Court. See Hilbun v. California-Western States Life Insurance Company, Miss., 210 So.2d 307 (1968); Breckenridge v. Time, Inc., 253 Miss. 835, 179 So.2d 781 (1965); Republic-Transcon Industries, Inc. v. Templeton, supra. Either the jurisdictional arm of section 1437 as amended is not as long as it appears in its "legislative sleeve" or the Mississippi Supreme Court has shortened it by "judicial surgery" to a length shorter than the permissible constitutional reach. The landmark jurisdictional decisions of the Supreme Court show the extent to which states may go, consistent with due process, but due process does not compel the states to go this far if they do not choose to do so. 1 Barron & Holtzoff, Federal Practice and Procedure, Sec. 179, at p. 696. We thus are not concerned with the question of whether the statute as construed by the state court violates the due process clause of the Fourteenth Amendment of the United States Constitution. This latter question, as stated by the Fifth Circuit in Walker v. Savell, supra, 335 F.2d at p. 542, is controlled by the United States Supreme Court's decisions which show a continuing development from Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565, to International Shoe, supra, and McGee, supra. In Walker v. Savell, the Fifth Circuit stated that there is no suggestion in its opinion in Mississippi Wood Preserving Co. v. Rothschild, 201 F.2d 233 (C.A.5, 1953), that the broadened scope of International Shoe had been adopted by the Mississippi Supreme Court as the Mississippi standard. Walker v. Savell, supra, 335 F.2d at 543. In view of the fact that it is not necessary for this Court in this diversity case to engage in "rational divination" on this question because of the clear decisions of the Mississippi Supreme Court establishing the above prerequisites thereto, it now devolves upon this Court to apply the facts as it finds them herein to the law in order to resolve the present jurisdictional question. See Collins v. Truck Equipment Sales, Inc., Miss., 231 So.2d 187 (1970). The first question to be answered is whether the defendant herein, a foreign corporation, purposefully did some act or consummated some transaction within the State of Mississippi, that is, whether its television broadcasts complained of constituted purposeful acts which allegedly constituted the tort of television defamation or libel, or consummated some transaction in the State of Mississippi. If the answer to this question is 1138 in the negative our inquiry would end and this Motion to Dismiss would be granted. On the other hand, if the answer is in the affirmative, then the second criterion of Mladinich v. Kohn would be satisfied, that is, the cause of action which forms the basis of this suit did arise from or is connected with this act or transaction. In this event, the remaining question would be whether the third necessary prerequisite is satisfied, that is, whether "the assumption of jurisdiction by the forum state must not offend traditional notions of fair play and substantial justice, consideration being given to the quality, nature, and extent of the activity in the forum state, the relative convenience of the parties, the benefits and protection of the laws of the forum state afforded the respective parties, and the basic equities of the situation." The defendant contends that under the principles laid down by the Mississippi Supreme Court in Forman v. Mississippi Publishers Corp., 195 Miss. 90, 14 So.2d 344 (1943), the alleged tort of defamation or libel must be considered to have occurred or accrued where the television broadcasts originated, in Louisiana, and not in the State of Mississippi. The Forman case dealt with the question of the proper venue in an action for libel against a foreign corporation qualified to do business in Mississippi and domiciled in Hinds County. The defendant published and first circulated its newspaper containing the allegedly libelous article in Hinds County, and the plaintiff filed suit in Sunflower County, Mississippi where the paper was later circulated. The Court held that under the applicable statute which requires venue in the County "where the cause of action may occur or accrue," the proper venue for libel by the publication of a newspaper is in the county where the paper is first published and circulated; that it would not assent to the principle which would multiply the causes of action by the number of its readers; and that since the gravamen of the offense is not the knowledge by the plaintiff nor the injury to his feelings but the degrading of reputation, the right accrued as soon as the paper was exhibited to third persons in whom alone such repute is resident, because at that time the tort is complete even though the damage may continue or even accumulate. The defendant's reliance on Forman is misplaced, because, unlike Forman, although the television broadcasts in question originated in the defendant's studio in Louisiana, they were simultaneously beamed or transmitted into the homes of Mississippi residents, including those in plaintiff's hometown, and the homes of residents of New Orleans, Louisiana and outlying areas who were viewing Channel 6 in those areas. Thus, even under the test of Forman, the alleged tort was committed and the right accrued in Mississippi as soon as the programs were exhibited to all of the above viewers, which occurred simultaneously in Mississippi and Louisiana. This Court is of the opinion that the transmission of a television broadcast via the airways is the purposeful doing of an act contemplated by Mladinich, particularly in this day and time, with extensive and effective transmission within and without the earth's realm and sphere. In this connection, Paragraph No. 13 of the Affidavit filed herein by the defendant through its President in support of its Motion to Dismiss, admits that there are 14,300 television-equipped homes in Mississippi within the "area of dominant influence" of New Orleans television stations, and of course, there are an additional number of television-equipped homes who receive Channel 6 in Mississippi outside the area of dominant influence. This Court therefore is of the opinion and finds that the first and second of the three essential prerequisites necessary to subject a nonresident to personal jurisdiction in the State of Mississippi are satisfied. The next inquiry is whether the last and most difficult obstacle to the acquisition of territorial jurisdiction of a 1139 nonresident in the State of Mississippi has been overcome, namely, whether the foreign corporation has had sufficient "minimal contacts" with the forum state so that its assumption of jurisdiction does not offend traditional notions of fair play and substantial justice, consideration being given to the quality, nature and extent of its activity in the forum state, the relative convenience of the parties, the benefits and protection of the laws of the forum state afforded the respective parties, and the basic equities of the situation. As previously stated, in making this determination the question for decision is not what the Supreme Court of the State of Mississippi has said in a case which is factually most in line with the one being decided, but what the Court has said with respect to the legal principles to be followed in any case involving the concept of "doing business". In this regard, each case must be decided on its own facts. A determination of when a nonresident publisher may properly be brought into the Courts of a state, involves, as do all due process examinations, the resolution of a broad question of policy. What "minimal contacts" with a state by such a publisher or broadcaster make it amenable to service of process is dependent to a large degree upon the equities of the situation. The question to be decided is whether the quality, nature and extent of the activities of the defendant in Mississippi were inconsequential, Breckenridge v. Time, Inc., 253 Miss. 835, 179 So.2d 781 (1965), or whether its business activity in Mississippi was and is calculated, ordered, and substantial. Curtis Publishing Co. v. Golino, 383 F.2d 586 (C.A.5, 1967) at p. 593. As the Fifth Circuit said in Golino, the ultimate goal is that justice prevail, and the courts' concept of what constitutes the necessary "minimum contacts" will be molded to meet the needs of justice; that is, in each case there must be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. Hanson v. Denckla, 357 U.S. 235, 251, 253, 78 S.Ct. 1228, 1238, 1240, 2 L.Ed.2d 1283, 1296, 1298. The "standard" adopted by the United States Supreme Court by which assertions of the jurisdiction over a nonresident corporation must be measured has been stated in International Shoe as follows: "Due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend `traditional notions of fair play and substantial justice.'" See Comment, Long Arm Jurisdiction over Publishers: To Chill a Mocking Word, 57 Colum.L.Rev. 342 (1967). As the Fifth Circuit said in Golino at page 589, in applying the broad policy to specific facts, decisions are rendered which guide future tribunals in deciding similar questions as they arise, and in applying these principles, the basis of the prior decisionsa desire to effectuate the underlying constitutional policymust always be kept in mind. This underlying policy must control the application of precedent, just as it must guide the creation of future precedents. The principal cases relied on by the defendant in support of its Motion to Dismiss are Breckenridge v. Time, Inc., supra; New York Times Co. v. Connor, 365 F.2d 567 (C.A.5, 1966); Buckley v. New York Times Co., 338 F.2d 470 (C.A. 5, 1964); Curtis Publishing Co. v. Birdsong, 360 F.2d 344 (C.A. 5, 1966); and Walker v. Savell, 335 F.2d 536 (C.A.5, 1964). Another Mississippi Supreme Court case which at first brush would seem to support the movant's contention is that of Lee v. Memphis Publishing Co., 195 Miss. 264, 14 So.2d 351 (1943), in which a majority of the Court, en banc, held that the defendant Memphis Publishing Co., a Delaware Corporation, publisher of "The Commercial Appeal," a daily newspaper printed and published in Memphis, Tennessee, was not subject to 1140 in personam jurisdiction in an action for damages filed against it in the Circuit Court of Webster County, Mississippi, accruing out of the publication and circulation of an alleged defamatory and libelous article, despite the fact that it had distributors in various vicinities of the State, part of whose contractual duties were to retain all purchases and increase the number of purchases of the newspapers and to sell and deliver the paper promptly to purchasers, newsboys and newsstands at the regular rates fixed by the paper. In addition, the defendant had salaried State District Circulation Managers located in Mississippi who among other things recommended the employment and discharge of distributors; it maintained and paid the rent on an office in Jackson, Mississippi where it kept a paid employee whose duty it was to gather state-wide news; it distributed 40,000 daily papers within the State of Mississippi which constituted almost 30% of its total circulation. The majority, citing cases, including many Federal cases, stated that although perfect candor constrained it to say that one's first reaction is adverse to the contention that the defendant was not "doing business" within the State of Mississippi; nevertheless, after an examination of the reported cases and consideration of the legal principles involved, to hold the defendant amenable to service of process in Mississippi would violate the "due process" clause of the Fourteenth Amendment by subjecting it to jurisdiction unless its business was of such nature and character as to warrant the inference that it had subjected itself to the local jurisdiction within the sense of doing business as defined by the decisions in the "Federal Supreme Court" in its application of that constitutional provision. It can thus be seen from reading this case that the Federal decisions on which it is based are not "the law" today. This Court, engaging in "rational divination," is of the opinion that the Mississippi Supreme Court would at this time overrule or refuse to follow this decision, even applying the less than liberal standards of Mladinich and its progeny. The Mississippi Supreme Court case principally relied on by the defendant is Breckenridge v. Time, Inc., supra, in which the Court refused to exercise jurisdiction over the defendant under the State's amended "Long Arm" statute. The Mississippi Court held that when a nonresident defendant magazine publisher did not purposefully do any act or consummate any transaction in Mississippi, the photographs complained of showing plaintiff standing on a bridge above a swamp and allegedly jeering while a search was being conducted for the bodies of three civil rights workers who mysteriously disappeared in Neshoba County, Mississippi, were taken by an independent photographer in Mississippi, and the information used in the alleged libelous statements published with the photograph were obtained from news services and "stringers" who were not employees of the defendant, but who sold pictures and information to the publisher in New York, that the Mississippi Court, in view of traditional notions of fair play and substantial justice, would not assume jurisdiction of the case. The Court held that under the facts and circumstances of that case "the quality, nature, and extent of the activity of appellee in the forum state were at the most inconsequential. * * * Those minimal contacts which are a prerequisite to personal jurisdiction of the courts of Mississippi over a nonresident defendant are totally lacking as to appellee." The Court went on to state that certainly just any inconsequential contact with the state of the forum is not sufficient to support jurisdiction over a nonresident under the "due process" clause (citing Hanson v. Denckla; Buckley v. New York Times Co., and comparing Century Brick Corp. of America v. Carroll, 247 Miss. 514, 153 So.2d 683 (1963). The defendant also places great reliance upon Buckley v. New York Times Co., supra, and New York Times Co. v. Connor, supra, as well as Walker v. Savell, supra. Buckley and Connor involve 1141 libel actions against the New York Timesone by Buckley, a Louisiana citizen, and the other by Connor, an Alabama citizen. The opinion in Connor pointed out that the contacts in the case before it were virtually identical with those listed in Buckley, both Courts holding that on the facts before them, the respective state "Long Arm" statutes could not constitutionally be applied to the defendant. The contacts of The Times with Louisiana stated by the Court in Buckley were as follows: "The New York Times Company is edited and published in New York and is sent directly to subscribers and independent distributors from New York. The Times Company has no offices or resident agents or employees in Louisiana of any kind. The only connections of the Times Company with Louisiana are: the sending of less than a thousandth of one per cent, in the aggregate, of its newspapers from New York to subscribers and to independent distributors in Louisiana; the occasional solicitation of advertising (an amount less than one thousandth of one per cent, in the aggregate) by traveling representatives; two such trips were made in 1960, three in 1961 and four in 1962; and the occasional sending of staff reporters to Louisiana on special assignments (there are no regular Times reporters in Louisiana); this occurred eight times in 1960, twice in 1961 and eleven times in 1962." The following language from Buckley was cited and held controlling in Connor: "The law is well settled that the mere circulation of a periodical through the mails to subscribers and independent distributors constitutes neither doing business nor engaging in a business activity." Walker involved a libel suit by General Walker against the Associated Press, a mutual cooperative and nonprofit association formed to gather, collect and interchange news with its members. The defendant could neither sell nor traffic in such news items collected and interchanged, but distributed them only to its members. The cost of these services were apportioned among the members in the form of assessments. It had in the State of Mississippi at the critical point of time, five employees, four of whom were newsmen whose duties were to gather news items and forward them to New Orleans, Louisiana where they were approved or circulated, some of which were re-transmitted to Mississippi members of the Associated Press and used within the State of Mississippi. The other employee was a maintenance man whose duty it was to repair equipment needed by the defendant in disseminating its services in Mississippi and other states. The defendant did not advertise its service in Mississippi, kept no corporate books or records, did not execute any contract in Mississippi and did not make available to its members or other members in Mississippi any news items procured there until they were transmitted to offices outside the State of Mississippi for approval. The Fifth Circuit, in affirming the United States District Court for the Northern District of Mississippi, which dismissed this suit for lack of personal jurisdiction, stated the following: "It may well be the policy of the state of Mississippi to require a much stricter showing of the doing of business within that state by a foreign newspaper like the Memphis Commercial Appeal, or a foreign news service like the Associated Press, before it is to be held amenable to local service in a libel suit than would be the case in a suit against an ordinary commercial corporation. We think there is reason for such a distinction because of the inherent danger or threat to the free exercise of the right of freedom of the press if jurisdiction in every state can be inferred from minimal contacts." This Court is convinced that defendant's reliance on the above four cases is misplaced, as valid factual distinctions in the instant case require a different legal result. These distinctions are predicated upon basic differences between the business activities, purposes and 1142 motivations of a publisher of a newspaper although one of wide circulation and great influence, as in Connor and Buckley and of a mutual cooperative and nonprofit wire or news service as in Walker and a publisher of a national magazine as in Breckenridge, from the business activities, purposes and motivations of a television broadcasting company authorized to, and daily transmitting and beaming its signals or telecasts into a potential of 14,300 television-equipped homes in Mississippi within its "area of dominant influence," as is shown and established in Paragraph No. 13 of the defendant's President's Affidavit filed herein in support of its Motion to Dismiss. Plaintiff places his primary reliance upon Curtis Pub. Co. v. Golino, supra, decided by the United States Court of Appeals for the Fifth Circuit in 1967, which affirmed the action of the United States District Court for the Eastern District of Louisiana, which denied the defendant's motion to dismiss plaintiff's action for libel to recover damages allegedly resulting from an article in the February 29, 1964 issue of The Saturday Evening Post entitled: "New Orleans: Cosa Nostra's WallstreetCrime in America: VI." The Court held that the defendant's reliance on Buckley and Connor was misplaced, in view of valid factual distinctions between those cases and the case before it. The Court reasoned that the existence of a newspaper, no matter how popular, depends primarily upon circulation in the vicinity of its publication and while circulation in other areas may well be welcomed, it is not critical to the newspaper's continued existence, and thus circulation beyond the vicinity of publication can be characterized as "secondary or passive circulation," in that it is a product of the publication's excellence, rather than of a business effort of active solicitation in all areas of the nation. On the other hand, a magazine publication itself, unlike a newspaper, is not prepared primarily for local consumption but rather for a nationwide audience, and the primary function of such a business is to sell as many magazines as possible in every state of the Union and to that end the corporation actively directs its business. The Court went on to state at page 591: "The legal principle urged upon us by appellants would allow a publisher, fully aware of the strong possibility of resulting legal action, to print libelous matters directed at persons in distant localities, yet remain free from suit in such localities in spite of the pecuniary benefits gained in that very jurisdiction where it asserts it cannot be held legally accountable. A rule of law allowing such a condition would clearly not conform to the purposes behind the `minimum contacts' due process requirement. Resolution of the due process issue in the field of extra-territorial jurisdiction involves consideration of many factors. Circulation is admittedly one of these factors when dealing with a national publisher, and we are unwilling to say with appellant that it can never be sufficient in itself to satisfy the constitutional test." * * * * * * "* * * It is to the end of increasing circulation that all other facets of the business are directed. It is also the activity from which the alleged injuries in a libel action flows. Where, as here, the solicited circulation of a corporation's publications account for a relatively significant portion of the corporation's revenue, notions of fair play and substantial justice support the right of the state to require the corporation to answer non-frivolous claims arising out of its contacts with the state, even though it has managed to reduce its physical presence in the state to a minimum." In Paragraph 14 of its president's affidavit, the defendant states that less than six tenths of one percent (.6%) of its advertisement income was attributable to advertisers located in Mississippi, and in Paragraph 13, states that the 14,300 television-equipped homes in Mississippi which 1143 are within the "area of dominant influence" of New Orleans television stations compared with 402,400 such homes in the State of Louisiana, constitutes less than 3.5% of all television-equipped homes within the "area of dominant influence" of New Orleans television stations. In Golino the Court found that the circulation of appellant's magazines in Louisiana was less than 1%; and in his concurring opinion in Curtis Pub. Co. v. Birdsong, 360 F.2d 344, 352 (C.A. 5, 1966), Judge Rives pointed out that The Saturday Evening Post circulation in Alabama, which was approximately .008% of its total circulation sufficed to constitute active submission of the defendant therein to the benefits of Alabama's fruitful market place, and having accepted the benefits of the market place, could not complain that one of the fruits of the harvest was a lawsuit. The statistics showing the number of television-equipped homes in Mississippi, the percentage of 3.5%, and the .6% of the defendant's total advertising receipts attributable to advertisers located in Mississippi are somewhat deceiving inasmuch as they are subject to the following apparent variables. There are many more television-equipped homes and a much larger population in the metropolitan area of New Orleans itself than on the Mississippi Gulf Coast, and, when combined with other areas in Louisiana within the dominant influence of its television broadcasts, certainly would greatly exceed the number of television-equipped homes in the State of Mississippi within the area of dominant influence of its stations. Likewise, the percentage of advertisement receipts attributable to Mississippi advertisers is subject to the same variables. Percentages of sales can be expected to slightly exceed population figures in areas of relative economic affluence and lag behind in the poorer sections, as pointed out in Golino, 383 F.2d at page 591. It can thus hardly be doubted that the defendant herein considers its audience and its advertisers in Mississippi to be a significant portion of its business, that is, as much as could be reasonably expected from the Mississippi market. An increased or larger viewing audience produces increased revenues from advertisements, as is so vividly indicated by the "poll taking" by television stations and networks and which has so often resulted in the "life" or "death" of various television programs. The facts of the instant case are even more distinguishable from those in Connor and Buckley than were those in Golino, and more strongly support the denial of the defendant's Motion herein. It is to the end of increasing its viewing audience that all facets of the television business are directed. This is also the activity from which the alleged injuries in a libel action flow. The defendant is one of the main television broadcasting stations broadcasting or televising its pictures to television viewers in the southern part of Mississippi, and more particularly along the Mississippi Gulf Coast where plaintiff resides; its programs are frequently seen and heard by large segments of the community in which the plaintiff lives and resides. Every week, or almost every week, one of the "Midday" programs telecast by the defendant is devoted to some aspect of life on the Mississippi Gulf Coast, and frequently, residents of the Mississippi Gulf Coast appear on said program. In addition, weather reports deal with weather in Louisiana and in Mississippi and especially in the New Orleans and Mississippi Gulf Coast area. Political candidates in the State of Mississippi have utilized WDSU-TV or Channel 6 to reach the voting public within the State of Mississippi. Businesses, including large department stores in the City of New Orleans, directly appeal to residents of the Mississippi Gulf Coast in these telecasts, and many advertise free delivery service to certain areas of the Mississippi Gulf Coast. One actually offers free bus transportation to its store to certain Mississippi Gulf Coast residents. In many of the television broadcasts of the defendant, the States of Mississippi and Louisiana only are referred to when 1144 dealing with matters of local interest or "local news"; the defendant television broadcasting corporation actively solicits advertising in the State of Mississippi, and has actively and fully exploited the Mississippi market for financial gain, the revenue it has derived therefrom which could not be considered inconsequential. The author of this opinion, at his home in Biloxi, Mississippi, often views WDSUTV (Channel 6) because of its comprehensive news coverage, its editorials, and its frequent telecasts of matters of local public interest in Mississippi and particularly of the Mississippi Gulf Coast, which has been so often characterized as an outlying portion of New Orleans, not only because of its close proximity and contiguity thereto, but also because of the almost identical makeup, customs and moves of the citizens thereof. The business activity of the defendant in Mississippi therefore is calculated, ordered and substantial, and the fact that physical contacts are minimized does not alter the basic existence of it involvement in, and its peculiar benefit from, a full exploitation of the Mississippi market. The defendant could and can reasonably anticipate that the sale, distribution and promotion of its broadcasts and advertisements might entail libel actions, and that such actions will in all probability be brought in the places of residence of parties alleging injuries. Notions of fair play and substantial justice support the right of the State of Mississippi to require the defendant to answer nonfrivolous claims arising out of its contacts with the State, even though it has managed to reduce its physical presence therein to a minimum. Breckenridge is certainly distinguishable on its facts inasmuch as all of the actions of the defendant therein were done through independent third persons, as distinguished from the direct television broadcasts into the State of Mississippi and particularly along its Gulf Coast by the defendant and particularly in view of its above activities. This Court does not quarrel with the principle of law laid down in Breckenridge, but distinguishes Breckenridge on its facts. The Mississippi Supreme Court in the above case found that to assume jurisdiction would be unreasonable and would offend traditional notions of fair play and substantial justice because the minimum contacts which are prerequisite to personal jurisdiction of the Courts of Mississippi were totally lacking therein because of the quality, nature and extent of the activity of the defendant in the forum state were at the most inconsequential. On the other hand, this Court, as stated above, finds the opposite to be true under the facts and circumstances of this case. The defendant contends that the Fifth Circuit Court of Appeals in New York Times Co. v. Connor, supra, has ruled that in cases involving libel, First Amendment considerations require more than the usual amount of contacts before a state may acquire jurisdiction over a nonresident publisher, and therefore, that First Amendment consideration discussed therein compel the granting of this Motion to Dismiss. This Court disagrees with this contention, particularly because of the following language found in the Golino case decided one year subsequent to Connor: "Certainly the language in Connor does not stand for the proposition that, because of the constitutional protection of the dissemination of ideas, a publisher may never be sued for libel in a state other than that of publication. Rather, Connor indicates that first amendment considerations are a factor relevant to a determination of the jurisdictional question; and, the discussion of that factor in Connor must be viewed in its factual context. * * * To argue that periodic lawsuits resulting from circulation of the Post will chill the desire of Curtis to actively encourage the widest possible circulation is clearly out of line with economic realities." This Court has taken into account First Amendment considerations as a relevant factor, but does not consider them controlling 1145 on the facts of this particular case. It would be economically unrealistic to assume that periodic lawsuits of this type will chill or discourage the defendant's broadcasts or telecasts of the news or its opinions. It must also be considered that the identical broadcasts or telecasts made to Mississippi viewers are also, at the same time, made to New Orleans and its outlying areas in the State of Louisiana within the dominant influence of the defendant's television station. The standards applied today to libel actions do not vary from state to state, but have, through decisions of the Federal Courts, and particularly the United States Supreme Court, become uniform. In truth and fact, the law of "libel," that is, the proof necessary to support a verdict for a plaintiff in a libel or slander suit concerning a matter of valid public interest requires clear and convincing proof of actual malice, in the absence of which, no jury issue is made of and no recovery may be had. Bon Air Hotel, Inc. v. Time, etc., 426 F.2d 858 (C.A. 5, May 6, 1970); New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); Time, Inc. v. McLaney, 406 F.2d 565 (C.A. 5, 1969), cert. den. 395 U.S. 922, 89 S.Ct. 1776, 23 L.Ed.2d 239; Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964); Wasserman v. Time, Inc., 424 F.2d 920 (D.C.Cir., 1970). The concurring opinion of Judge Rives in Birdsong, supra, dealing with the issue of minimum contacts, is very apropos here: "The teachings as to nonresident jurisdiction reveal several key principles. It is `essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.' * * I submit that Post has actively submitted itself to the benefits of Alabama's fruitful market place just as much as did International Life with its single contract of insurance in the McGee case. Having accepted the benefits of the market place, it cannot complain that one of the fruits of the harvest was a lawsuit." Fully mindful of the realization that the "minimal contact" doctrine of the State of Mississippi is not as liberal as that permitted by International Shoe, this Court nevertheless finds as a matter of fact and a matter of law that the defendant is "doing business" in the State of Mississippi within the meaning of the "Long Arm" statute of this State, as it is construed and applied by the Mississippi Supreme Court. The requirement of defense of this case in Mississippi by the defendant is not viewed as a significant inconvenience to it because of the close proximity of New Orleans to Biloxi, Mississippi, where this Court sits, and the excellent highways connecting the two cities. According to plaintiff's affidavit, most, if not all, of his witnesses who will be called to testify at the trial are citizens of Harrison County, Mississippi. Furthermore, the requirement of defense in this jurisdiction is certainly not one that will hinder either the defendant's television broadcasting into the State of Mississippi or its other activities in this State. Having considered all of the above factors, this Court is convinced that under the facts and the law, the defendant is "doing business" within the State of Mississippi, and this Court has constitutionally permissible jurisdiction over it herein. Furthermore, plaintiff is entitled to have his case tried in this forum, the place of his residence, particularly since the prerequisite to recovery in these type actions has been standardized or made uniform by the decisions of the Federal Courts, and particularly the United States Supreme Court. Therefore, the Motion to Dismiss For Lack of Personal Jurisdiction will be denied, and the plaintiff may submit an Order to this Court in conformance with the above and foregoing opinion within the time and manner prescribed by the Rules of this Court. NOTES [1] "(a) Any nonresident person, firm, general or limited partnership, or any foreign or other corporation not qualified under the Constitution and laws of this State as to doing business herein, who shall make a contract with a resident of this State to be performed in whole or in part by any party in this State, or who shall commit a tort in whole or in part in this State against a resident of this State, or who shall do any business or perform any character of work or service in this State, shall by such act or acts be deemed to be doing business in Mississippi. Such act or acts shall be deemed equivalent to the appointment by such nonresident of the Secretary of State of the State of Mississippi, or his successor or successors in office, to be the true and lawful attorney or agent of such nonresident upon whom all lawful process may be served in any actions or proceedings accrued or accruing from such act or acts, or arising from or growing out of such contract or tort, or as an incident thereto, by any such nonresident or his, their, or its agent, servant or employee. The doing of such business, or the engaging in any such work or service in this State, or the making of such contract, or the committing of such tort in this State, shall be deemed to be a signification of such nonresident's agreement that any process against it which is so served upon the Secretary of State shall be of the same legal force and effect as if served on the nonresident at its principal place of business in the state or country where it is incorporated and according to the law of that state or country. (b) All civil actions for the recovery of damages brought against a nonresident of the State of Mississippi may be commenced in the county in which the action accrued or where the plaintiff then resides or is domiciled, except as otherwise provided by law. Service of process may be had in any county of the State where the defendants, or any of them, may be found, except when elsewhere provided by law for service upon the Secretary of State. (c) The provisions of this act as they apply to an accrual of a cause of action will be in full force and effect as to any such accrual if the cause of action accrued either before or after passage of this act." [2] "Any corporation claiming existence under the laws of any other state or of any other country foreign to the United States, found doing business in this state, shall be subject to suit here to the same extent that corporations of this state are, whether the cause of action accrued in this state or not."	10-30-2013	[ "313 F.Supp. 1130 (1970) Peter J. CASANO, Plaintiff, v. WDSU-TV, INC., Defendant. Civ. A. No. 3882. United States District Court, S. D. Mississippi, S. D. June 1, 1970. 1131 1132 Walter J. Phillips, Bay St. Louis, Miss., Frank J. D'Amico, New Orleans, La., for plaintiff. George Morse, Gulfport, Miss., for defendant. MEMORANDUM OPINION NIXON, District Judge. The plaintiff, Peter J. Casano, filed this action for libel in this Court against the defendant, WDSU-TV, Inc. to recover damages allegedly resulting from its television broadcasts on August 8, and August 13, 1969, emanating from its studios near New Orleans, Louisiana, approximately fifty miles or less from plaintiff's domicile in Pass Christian, Harrison County, Mississippi. The alleged libelous material was transmitted over the defendant's station (Channel 6) into its area of coverage. The plaintiff's domicile was within the area of dominant influence of the defendant's television station, and the telecast complained of was viewed by television audiences in areas within this Court's jurisdiction in the Southern District of Mississippi at the same time that it was viewed by television audiences in the New Orleans, Louisiana and other Louisiana outlying areas. The broadcasts complained of were concerned essentially with an examination of conduct on the part of the District Attorney of Orleans Parish, Jim Garrison, a public official then seeking renomination on the Democratic ticket.", "Specifically, plaintiff charges that the defendant inferred that plaintiff was a \"racketeer\", a \"Carlos Marcello-connected attorney\" and that he owned property with one Leon Salloum, who was accused of possessing stolen property. The defendant was served with personal process at its domicile or studio at 520 Royal Street in New Orleans, Louisiana within 100 miles of Biloxi, Mississippi where this action was commenced. In response, WDSU filed a Motion to Dismiss, contending that this Court lacks personal jurisdiction over it. By affidavit in support of its motion, the defendant, through its President, A. Louis Read stated: (1) It is a corporation organized and existing under the laws of the State of Louisiana and maintains its offices in the City of New Orleans, Louisiana and its transmitter in St. Bernard Parish, Louisiana.", "(2) It is engaged in the business of television broadcasting in the State of Louisiana and does not do business nor 1133 has it qualified to do business in any other state or jurisdiction. (3) It leases no office space and maintains no bank accounts or corporate books or records, and does not execute contracts in Mississippi. (4) None of the officers or directors of WDSU reside in Mississippi nor does it have any mailing address or telephone listing in Mississippi. (5) It does not pay any taxes in Mississippi, does not purchase supplies and equipment, and has no employees or manager therein. (6) During the year 1969 it carried commercial announcements for eleven advertisers located on the Gulf Coast area of Mississippi and named these advertisers and their location as well as the name and location of the advertising agency involved. Four of these advertisers are located in Gulfport, Harrison County, Mississippi; one in Biloxi, Harrison County, Mississippi; two in Pass Christian, Harrison County, Mississippi; two in Ocean Springs, Jackson County, Mississippi, and one in Picayune, Pearl River County, Mississippi.", "Four of the advertising agencies which placed these advertisements are located in Biloxi and Gulfport, Harrison County, Mississippi. All advertisements were subject to the approval of the defendant's Vice President in charge of sales in New Orleans. Three of the Mississippi advertisers, Gulf National Bank of Gulfport, First National Bank of Biloxi and The Port of Gulfport, which is the Mississippi State Port facility, sponsored advertisements that were institutional in character and were carried in connection with programing of WDSU that related specifically to the Mississippi Gulf Coast.", "All other advertisements were aimed primarily at the New Orleans market, that is, were designed to induce Louisiana residents to avail themselves of the goods or services offered by the advertisements. All payments for advertising on WDSU other than those paid to its national advertising representative, are due and payable in New Orleans, Louisiana. (7) Other than what may be owing to WDSU from time to time on account of advertising previously carried by it at the behalf of Mississippi advertisers or agencies, the defendant has no property or other assets located within the State of Mississippi. (8) WDSU has no employees stationed in Mississippi nor does it employ \"stringers\" for the purpose of reporting on news events therein. (9) The broadcasts of WDSU referred to in the Complaint filed herein were made in connection with an investigation of the conduct of the District Attorney of Orleans Parish, Louisiana and was a matter of significance primarily to the listening audience in New Orleans, Louisiana and vicinity.", "Every person mentioned in those broadcasts either resided or maintained an office in Louisiana. (10) While the broadcast signals of WDSU can be received by a greater number of homes, the American Research Bureau (an independent market survey organization whose findings are heavily relied on by television advertisers) classifies 14,300 television-equipped homes in Mississippi as being within the \"area of dominant influence\" of New Orleans television stations, as compared with 402,400 such homes in the State of Louisiana, and constitutes less than 3.5% of all television-equipped homes within the area of dominant influence of New Orleans television stations. (11) Of defendant's total advertising receipts in 1969, less than six tenths of one percent (.6%) was attributable to advertisers located in Mississippi. Less than half of that amount was placed with defendant directly from Mississippi, the remainder having been placed by advertising agencies in Louisiana and Texas. (12) The plaintiff herein is listed in the yellow pages of the telephone directory for the Greater New Orleans area dated December, 1969 with two office numbers appearing. 1134 On the other hand, by affidavit and supplemental affidavit as well as by his sworn testimony herein, plaintiff declared that: (a) He was born in Gulfport, Mississippi on October 19, 1935 and is now a resident citizen of Pass Christian, Mississippi, wherein he is a registered voter and has applied for and been granted homestead exemption.", "He is a member of the Trinity Episcopal Church in Pass Christian and his son has been enrolled in Christ Episcopal School in Bay St. Louis, Hancock County, Mississippi for the past three years. (b) That he is a licensed practicing attorney in Louisiana and a member of the Louisiana bar but not the Mississippi bar. He is involved in several businesses in Louisiana but none in Mississippi; that fifty percent (50%) of his time is devoted to the practice of law although he owns an interest in two hotels as well as a restaurant and some apartments. Nevertheless, his social activities are basically centered in the State of Mississippi where most of his immediate family live and reside.", "He does a considerable amount of his work in his home in Pass Christian from which he commutes to New Orleans each day and spends every weekend at home in Pass Christian. (c) He owns an automobile which he uses for business which bears a Louisiana license tag, and he also has a Louisiana drivers license. His personal automobile has a Mississippi tag and his wife, who usually drives this vehicle, has a Mississippi drivers license. (d) Plaintiff is a member of several social clubs in the Gulf Coast area, and belongs to only one club in Louisiana, namely, the New Orleans Athletic Club. (e) That the defendant televises or broadcasts daily into the State of Mississippi, and the broadcasts which form the basis of this action were heard and seen by numerous acquaintances, business associates, relatives and friends of plaintiff, all of whom live and reside in the State of Mississippi. (f) That the defendant's regular program and schedule are published in the Gulf Coast edition of TV Guide, and The Daily Herald, the principal newspaper published on the Mississippi Gulf Coast and in Harrison County.", "Each and every television cable company on the Gulf Coast regularly carries the programs of WDSU-TV (Channel 6). (g) WDSU-TV, Inc. is one of the main television broadcasting stations on the Mississippi Gulf Coast and is frequently seen and heard by large segments of the community in which plaintiff lives and resides. (h) The programs in question were televised in plaintiff's hometown in the State of Mississippi. He denies that they were of significance primarily to the listening and viewing audience in the New Orleans, Louisiana vicinity. (i) The State of Mississippi has taken an interest in connection with the activities of the Cosa Nostra and/or Mafia as evidenced by a recent report of Mississippi's Lieutenant Governor Sullivan. (j) The defendant frequently sends reporters and photographers into the State of Mississippi; also, that in every weather advisory broadcast both daily and nightly, weather reports for the State of Mississippi are given primarily for residents of the Mississippi Gulf Coast. (k) In many of the broadcasts of the defendant, the States of Mississippi and Louisiana only are referred to as matters of local interest. (l) The circulation of the defendant's broadcast in the State of Mississippi are substantial, it actively solicits advertising therein, and the purpose and existence of its involvement within the State of Mississippi is to exploit further the Mississippi market for financial gain.", "(m) Many of the advertisers on the defendant's Channel 6 particularly solicit residents of the State of Mississippi, and particularly the Mississippi Gulf Coast area, and advertise free delivery to residents of the Mississippi Gulf Coast area. 1135 Although this Court is of the opinion that the defendant herein has sufficient contacts with Mississippi to satisfy due process under the holdings in International Shoe Company v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, 161 A.L.R. 1057 (1945); McGee v. International Life Insurance Company, 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957), and Eyerly Aircraft Co. v. Killain, 414 F.2d 591 (C.A.5, 1969), it is necessary as Judge Goldberg stated in Eyerly, to take the specific measurements of Mississippi law to see if its \"Long Arm\" reaches as far as the Constitution permits.", "Although the decisions are not uniform, and some Courts have chosen to regard the amenability of a corporation to suit within a state as a matter of procedure, governed solely by a federal test, the sounder view, and that supported by the greater weight of authority, including the Court of Appeals for the Fifth Circuit, is that under the doctrine of Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, in diversity cases, state law determines whether a corporation is subject to suit in that state, and the federal decisions are important only in ascertaining whether the state law is within constitutional bounds. Eyerly Aircraft v. Killain, supra, pp. 598, 599, f.n.", "9; Walker v. Savell, 335 F.2d 536, 540 (C.A.5, 1964); 1 Barron & Holtzoff, Federal Practice and Procedure, Sec. 179, at 696 (1960). Each case which raises an in personam or territorial jurisdictional question must be decided upon its own peculiar facts. Curtis Publishing Co. v. Golino, 383 F.2d 586 (C.A.5, 1967); Phillips v. Hooker Chemical Corp., 375 F.2d 189 (C.A.5, 1967); Republic-Transcon Industries, Inc. v. Templeton, 253 Miss. 132, 175 So. 2d 185 (1965); Jarrard Motors, Inc. v. Jackson Auto & Supply Co., 237 Miss. 660, 115 So.2d 309 (1959). However, the question for decision is not what the Mississippi Supreme Court has said in a case which is factually most in line with the one which must be decided, but what the Court has said with respect to the legal principles to be followed in any case involving the concept of \"doing business.\" Walker v. Savell, supra, 335 F.2d at p. 541.", "It is first necessary to examine Section 1437 of the Mississippi Code, 1942, Rec., both prior and subsequent to its amendment which became effective on July 1, 1964 and the Mississippi Supreme Court decisions construing and applying this statute which controls or governs the acquisition of jurisdiction over nonresident defendants, including foreign corporations, in the State of Mississippi, and which as amended is also referred to as the \"Long Arm\" statute. [1] Also, Section 1437 must be read 1136 in conjunction with Section 5345 of the Mississippi Code of 1942, Rec.,[2] which specifically deals with jurisdiction over foreign corporations \"doing business\" in the State of Mississippi. Prior to its amendment in 1964, Section 1437 contained no provisions for the acquisition of jurisdiction over nonresident defendants in cases where the commission of a single tort or execution of a single contract was the only contact which a nonresident had with the State of Mississippi. During that era the acquisition of jurisdiction rested primarily on whether the nonresident who had not qualified to do business in Mississippi and had not appointed a resident agent for service of process therein, was found to be \"[doing] business or perform[ing] any character of work or service in this State.\"", "It was necessary to scrutinize the nature and extent of the particular defendant's activity to determine whether it was \"doing business\" within the meaning of this statute, and the only limitations placed on the reach of this statute were that the defendant must have certain \"minimal contacts\" with the State and the assumption of jurisdiction must not offend \"traditional notions of fair play and substantial justice.\" See Davis-Wood Lumber Co. v. Ladner, 210 Miss. 863, 50 So.2d 615 (1951). An excellent discussion of the history of this jurisdictional prerequisite as construed by the Courts is found in the case of Walker v. Savell, 335 F.2d 536 (5th Cir. 1964). In Walker the Court considered and discussed the leading case of Lee v. Memphis Publishing Co., 195 Miss.", "264, 14 So.2d 351, 152 A.L.R. 1428, and four other important subsequent cases decided by the Supreme Court of Mississippi, namely, Davis-Wood Lumber Co. v. Ladner, supra; Jarrard Motors, Inc. v. Jackson Auto & Supply Co., supra; Livestock Services, Inc. v. American Cyanimid Co., 244 Miss. 531, 142 So.2d 210 (1962); and Century Brick Corp. v. Carroll, 247 Miss. 514, 153 So.2d 683 (1963), in order to determine what, if any, gloss had been put upon the Mississippi Court's opinion in Lee v. Memphis Publishing Co., supra, by the decision of the United States Supreme Court in the International Shoe Case, supra.", "The Court in Walker concluded that the Mississippi Supreme Court had not in any of these cases decided to supercede its own announced requirements by the more modern or liberal trend discussed in the United States Supreme Court's decisions of International Shoe and McGee v. International Life Insurance Company, 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223. Immediately after the 1964 amendment to section 1437 became effective, enlarging the scope thereof, the Mississippi Supreme Court handed down its landmark decision in Mladinich v. Kohn, 250 Miss. 138, 164 So.2d 785 (1964). The Court referred to the amendment which had been enacted but had not yet become effective, and utilized this decision to lay down the ground rules for the application of the amended and broadened statute. See Miss. Defense Lawyers' Journal, \"How Long the Arm\", Vol. 4, p. 45 and 27 A.L.R.2d pp.", "463-465. In this case the Court held that in order to subject a nonresident to 1137 jurisdiction in the State of Mississippi, in addition to the requirements that it have certain \"minimal contacts\" with the forum state and that assumption of jurisdiction would not offend \"traditional notions of fair play and substantial justice,\" there were three other basic factors which must coincide, and these are: \"(1) the nonresident defendant or foreign corporation must purposefully do some act or consummate some transaction in the forum state; (2) the cause of action must arise from, or be connected with, such act or transaction; and (3) the assumption of jurisdiction in the forum state must not offend traditional notions of fair play and substantial justice, consideration being given to to the quality, nature, and extent of the activity in the forum state, the relative convenience of the parties, the benefits and protection of the laws of the forum state afforded the respective parties, and the basic equities of the situation.\" Effective July 1, 1964, Mississippi's \"Arm\" apparently became longer by the addition of two other bases for acquiring jurisdiction of a foreign corporation or entity, namely: (1) if it committed a tort in the state against a resident of the state, or (2) made a contract with the state resident, some part of which was to be performed in the state.", "Although the above three criteria were laid down in Mladinich v. Kohn, prior to the effective date of the amendment to section 1437, they have been retained as necessary and essential prerequisites to the acquisition of jurisdiction since that amendment and up to this date, as is apparent by reading subsequent decisions of the Mississippi Supreme Court. See Hilbun v. California-Western States Life Insurance Company, Miss., 210 So.2d 307 (1968); Breckenridge v. Time, Inc., 253 Miss. 835, 179 So.2d 781 (1965); Republic-Transcon Industries, Inc. v. Templeton, supra. Either the jurisdictional arm of section 1437 as amended is not as long as it appears in its \"legislative sleeve\" or the Mississippi Supreme Court has shortened it by \"judicial surgery\" to a length shorter than the permissible constitutional reach.", "The landmark jurisdictional decisions of the Supreme Court show the extent to which states may go, consistent with due process, but due process does not compel the states to go this far if they do not choose to do so. 1 Barron & Holtzoff, Federal Practice and Procedure, Sec. 179, at p. 696. We thus are not concerned with the question of whether the statute as construed by the state court violates the due process clause of the Fourteenth Amendment of the United States Constitution. This latter question, as stated by the Fifth Circuit in Walker v. Savell, supra, 335 F.2d at p. 542, is controlled by the United States Supreme Court's decisions which show a continuing development from Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565, to International Shoe, supra, and McGee, supra. In Walker v. Savell, the Fifth Circuit stated that there is no suggestion in its opinion in Mississippi Wood Preserving Co. v. Rothschild, 201 F.2d 233 (C.A.5, 1953), that the broadened scope of International Shoe had been adopted by the Mississippi Supreme Court as the Mississippi standard. Walker v. Savell, supra, 335 F.2d at 543.", "In view of the fact that it is not necessary for this Court in this diversity case to engage in \"rational divination\" on this question because of the clear decisions of the Mississippi Supreme Court establishing the above prerequisites thereto, it now devolves upon this Court to apply the facts as it finds them herein to the law in order to resolve the present jurisdictional question. See Collins v. Truck Equipment Sales, Inc., Miss., 231 So.2d 187 (1970). The first question to be answered is whether the defendant herein, a foreign corporation, purposefully did some act or consummated some transaction within the State of Mississippi, that is, whether its television broadcasts complained of constituted purposeful acts which allegedly constituted the tort of television defamation or libel, or consummated some transaction in the State of Mississippi.", "If the answer to this question is 1138 in the negative our inquiry would end and this Motion to Dismiss would be granted. On the other hand, if the answer is in the affirmative, then the second criterion of Mladinich v. Kohn would be satisfied, that is, the cause of action which forms the basis of this suit did arise from or is connected with this act or transaction. In this event, the remaining question would be whether the third necessary prerequisite is satisfied, that is, whether \"the assumption of jurisdiction by the forum state must not offend traditional notions of fair play and substantial justice, consideration being given to the quality, nature, and extent of the activity in the forum state, the relative convenience of the parties, the benefits and protection of the laws of the forum state afforded the respective parties, and the basic equities of the situation.\"", "The defendant contends that under the principles laid down by the Mississippi Supreme Court in Forman v. Mississippi Publishers Corp., 195 Miss. 90, 14 So.2d 344 (1943), the alleged tort of defamation or libel must be considered to have occurred or accrued where the television broadcasts originated, in Louisiana, and not in the State of Mississippi. The Forman case dealt with the question of the proper venue in an action for libel against a foreign corporation qualified to do business in Mississippi and domiciled in Hinds County. The defendant published and first circulated its newspaper containing the allegedly libelous article in Hinds County, and the plaintiff filed suit in Sunflower County, Mississippi where the paper was later circulated. The Court held that under the applicable statute which requires venue in the County \"where the cause of action may occur or accrue,\" the proper venue for libel by the publication of a newspaper is in the county where the paper is first published and circulated; that it would not assent to the principle which would multiply the causes of action by the number of its readers; and that since the gravamen of the offense is not the knowledge by the plaintiff nor the injury to his feelings but the degrading of reputation, the right accrued as soon as the paper was exhibited to third persons in whom alone such repute is resident, because at that time the tort is complete even though the damage may continue or even accumulate.", "The defendant's reliance on Forman is misplaced, because, unlike Forman, although the television broadcasts in question originated in the defendant's studio in Louisiana, they were simultaneously beamed or transmitted into the homes of Mississippi residents, including those in plaintiff's hometown, and the homes of residents of New Orleans, Louisiana and outlying areas who were viewing Channel 6 in those areas. Thus, even under the test of Forman, the alleged tort was committed and the right accrued in Mississippi as soon as the programs were exhibited to all of the above viewers, which occurred simultaneously in Mississippi and Louisiana. This Court is of the opinion that the transmission of a television broadcast via the airways is the purposeful doing of an act contemplated by Mladinich, particularly in this day and time, with extensive and effective transmission within and without the earth's realm and sphere.", "In this connection, Paragraph No. 13 of the Affidavit filed herein by the defendant through its President in support of its Motion to Dismiss, admits that there are 14,300 television-equipped homes in Mississippi within the \"area of dominant influence\" of New Orleans television stations, and of course, there are an additional number of television-equipped homes who receive Channel 6 in Mississippi outside the area of dominant influence. This Court therefore is of the opinion and finds that the first and second of the three essential prerequisites necessary to subject a nonresident to personal jurisdiction in the State of Mississippi are satisfied. The next inquiry is whether the last and most difficult obstacle to the acquisition of territorial jurisdiction of a 1139 nonresident in the State of Mississippi has been overcome, namely, whether the foreign corporation has had sufficient \"minimal contacts\" with the forum state so that its assumption of jurisdiction does not offend traditional notions of fair play and substantial justice, consideration being given to the quality, nature and extent of its activity in the forum state, the relative convenience of the parties, the benefits and protection of the laws of the forum state afforded the respective parties, and the basic equities of the situation.", "As previously stated, in making this determination the question for decision is not what the Supreme Court of the State of Mississippi has said in a case which is factually most in line with the one being decided, but what the Court has said with respect to the legal principles to be followed in any case involving the concept of \"doing business\". In this regard, each case must be decided on its own facts. A determination of when a nonresident publisher may properly be brought into the Courts of a state, involves, as do all due process examinations, the resolution of a broad question of policy. What \"minimal contacts\" with a state by such a publisher or broadcaster make it amenable to service of process is dependent to a large degree upon the equities of the situation. The question to be decided is whether the quality, nature and extent of the activities of the defendant in Mississippi were inconsequential, Breckenridge v. Time, Inc., 253 Miss. 835, 179 So.2d 781 (1965), or whether its business activity in Mississippi was and is calculated, ordered, and substantial. Curtis Publishing Co. v. Golino, 383 F.2d 586 (C.A.5, 1967) at p. 593.", "As the Fifth Circuit said in Golino, the ultimate goal is that justice prevail, and the courts' concept of what constitutes the necessary \"minimum contacts\" will be molded to meet the needs of justice; that is, in each case there must be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. Hanson v. Denckla, 357 U.S. 235, 251, 253, 78 S.Ct. 1228, 1238, 1240, 2 L.Ed.2d 1283, 1296, 1298. The \"standard\" adopted by the United States Supreme Court by which assertions of the jurisdiction over a nonresident corporation must be measured has been stated in International Shoe as follows: \"Due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend `traditional notions of fair play and substantial justice.'\" See Comment, Long Arm Jurisdiction over Publishers: To Chill a Mocking Word, 57 Colum.L.Rev.", "342 (1967). As the Fifth Circuit said in Golino at page 589, in applying the broad policy to specific facts, decisions are rendered which guide future tribunals in deciding similar questions as they arise, and in applying these principles, the basis of the prior decisionsa desire to effectuate the underlying constitutional policymust always be kept in mind. This underlying policy must control the application of precedent, just as it must guide the creation of future precedents.", "The principal cases relied on by the defendant in support of its Motion to Dismiss are Breckenridge v. Time, Inc., supra; New York Times Co. v. Connor, 365 F.2d 567 (C.A.5, 1966); Buckley v. New York Times Co., 338 F.2d 470 (C.A. 5, 1964); Curtis Publishing Co. v. Birdsong, 360 F.2d 344 (C.A. 5, 1966); and Walker v. Savell, 335 F.2d 536 (C.A.5, 1964). Another Mississippi Supreme Court case which at first brush would seem to support the movant's contention is that of Lee v. Memphis Publishing Co., 195 Miss. 264, 14 So.2d 351 (1943), in which a majority of the Court, en banc, held that the defendant Memphis Publishing Co., a Delaware Corporation, publisher of \"The Commercial Appeal,\" a daily newspaper printed and published in Memphis, Tennessee, was not subject to 1140 in personam jurisdiction in an action for damages filed against it in the Circuit Court of Webster County, Mississippi, accruing out of the publication and circulation of an alleged defamatory and libelous article, despite the fact that it had distributors in various vicinities of the State, part of whose contractual duties were to retain all purchases and increase the number of purchases of the newspapers and to sell and deliver the paper promptly to purchasers, newsboys and newsstands at the regular rates fixed by the paper.", "In addition, the defendant had salaried State District Circulation Managers located in Mississippi who among other things recommended the employment and discharge of distributors; it maintained and paid the rent on an office in Jackson, Mississippi where it kept a paid employee whose duty it was to gather state-wide news; it distributed 40,000 daily papers within the State of Mississippi which constituted almost 30% of its total circulation. The majority, citing cases, including many Federal cases, stated that although perfect candor constrained it to say that one's first reaction is adverse to the contention that the defendant was not \"doing business\" within the State of Mississippi; nevertheless, after an examination of the reported cases and consideration of the legal principles involved, to hold the defendant amenable to service of process in Mississippi would violate the \"due process\" clause of the Fourteenth Amendment by subjecting it to jurisdiction unless its business was of such nature and character as to warrant the inference that it had subjected itself to the local jurisdiction within the sense of doing business as defined by the decisions in the \"Federal Supreme Court\" in its application of that constitutional provision.", "It can thus be seen from reading this case that the Federal decisions on which it is based are not \"the law\" today. This Court, engaging in \"rational divination,\" is of the opinion that the Mississippi Supreme Court would at this time overrule or refuse to follow this decision, even applying the less than liberal standards of Mladinich and its progeny. The Mississippi Supreme Court case principally relied on by the defendant is Breckenridge v. Time, Inc., supra, in which the Court refused to exercise jurisdiction over the defendant under the State's amended \"Long Arm\" statute. The Mississippi Court held that when a nonresident defendant magazine publisher did not purposefully do any act or consummate any transaction in Mississippi, the photographs complained of showing plaintiff standing on a bridge above a swamp and allegedly jeering while a search was being conducted for the bodies of three civil rights workers who mysteriously disappeared in Neshoba County, Mississippi, were taken by an independent photographer in Mississippi, and the information used in the alleged libelous statements published with the photograph were obtained from news services and \"stringers\" who were not employees of the defendant, but who sold pictures and information to the publisher in New York, that the Mississippi Court, in view of traditional notions of fair play and substantial justice, would not assume jurisdiction of the case. The Court held that under the facts and circumstances of that case \"the quality, nature, and extent of the activity of appellee in the forum state were at the most inconsequential.", "* * * Those minimal contacts which are a prerequisite to personal jurisdiction of the courts of Mississippi over a nonresident defendant are totally lacking as to appellee.\" The Court went on to state that certainly just any inconsequential contact with the state of the forum is not sufficient to support jurisdiction over a nonresident under the \"due process\" clause (citing Hanson v. Denckla; Buckley v. New York Times Co., and comparing Century Brick Corp. of America v. Carroll, 247 Miss. 514, 153 So.2d 683 (1963). The defendant also places great reliance upon Buckley v. New York Times Co., supra, and New York Times Co. v. Connor, supra, as well as Walker v. Savell, supra. Buckley and Connor involve 1141 libel actions against the New York Timesone by Buckley, a Louisiana citizen, and the other by Connor, an Alabama citizen. The opinion in Connor pointed out that the contacts in the case before it were virtually identical with those listed in Buckley, both Courts holding that on the facts before them, the respective state \"Long Arm\" statutes could not constitutionally be applied to the defendant. The contacts of The Times with Louisiana stated by the Court in Buckley were as follows: \"The New York Times Company is edited and published in New York and is sent directly to subscribers and independent distributors from New York.", "The Times Company has no offices or resident agents or employees in Louisiana of any kind. The only connections of the Times Company with Louisiana are: the sending of less than a thousandth of one per cent, in the aggregate, of its newspapers from New York to subscribers and to independent distributors in Louisiana; the occasional solicitation of advertising (an amount less than one thousandth of one per cent, in the aggregate) by traveling representatives; two such trips were made in 1960, three in 1961 and four in 1962; and the occasional sending of staff reporters to Louisiana on special assignments (there are no regular Times reporters in Louisiana); this occurred eight times in 1960, twice in 1961 and eleven times in 1962.\"", "The following language from Buckley was cited and held controlling in Connor: \"The law is well settled that the mere circulation of a periodical through the mails to subscribers and independent distributors constitutes neither doing business nor engaging in a business activity.\" Walker involved a libel suit by General Walker against the Associated Press, a mutual cooperative and nonprofit association formed to gather, collect and interchange news with its members. The defendant could neither sell nor traffic in such news items collected and interchanged, but distributed them only to its members. The cost of these services were apportioned among the members in the form of assessments. It had in the State of Mississippi at the critical point of time, five employees, four of whom were newsmen whose duties were to gather news items and forward them to New Orleans, Louisiana where they were approved or circulated, some of which were re-transmitted to Mississippi members of the Associated Press and used within the State of Mississippi. The other employee was a maintenance man whose duty it was to repair equipment needed by the defendant in disseminating its services in Mississippi and other states. The defendant did not advertise its service in Mississippi, kept no corporate books or records, did not execute any contract in Mississippi and did not make available to its members or other members in Mississippi any news items procured there until they were transmitted to offices outside the State of Mississippi for approval.", "The Fifth Circuit, in affirming the United States District Court for the Northern District of Mississippi, which dismissed this suit for lack of personal jurisdiction, stated the following: \"It may well be the policy of the state of Mississippi to require a much stricter showing of the doing of business within that state by a foreign newspaper like the Memphis Commercial Appeal, or a foreign news service like the Associated Press, before it is to be held amenable to local service in a libel suit than would be the case in a suit against an ordinary commercial corporation. We think there is reason for such a distinction because of the inherent danger or threat to the free exercise of the right of freedom of the press if jurisdiction in every state can be inferred from minimal contacts.\" This Court is convinced that defendant's reliance on the above four cases is misplaced, as valid factual distinctions in the instant case require a different legal result. These distinctions are predicated upon basic differences between the business activities, purposes and 1142 motivations of a publisher of a newspaper although one of wide circulation and great influence, as in Connor and Buckley and of a mutual cooperative and nonprofit wire or news service as in Walker and a publisher of a national magazine as in Breckenridge, from the business activities, purposes and motivations of a television broadcasting company authorized to, and daily transmitting and beaming its signals or telecasts into a potential of 14,300 television-equipped homes in Mississippi within its \"area of dominant influence,\" as is shown and established in Paragraph No.", "13 of the defendant's President's Affidavit filed herein in support of its Motion to Dismiss. Plaintiff places his primary reliance upon Curtis Pub. Co. v. Golino, supra, decided by the United States Court of Appeals for the Fifth Circuit in 1967, which affirmed the action of the United States District Court for the Eastern District of Louisiana, which denied the defendant's motion to dismiss plaintiff's action for libel to recover damages allegedly resulting from an article in the February 29, 1964 issue of The Saturday Evening Post entitled: \"New Orleans: Cosa Nostra's WallstreetCrime in America: VI.\" The Court held that the defendant's reliance on Buckley and Connor was misplaced, in view of valid factual distinctions between those cases and the case before it.", "The Court reasoned that the existence of a newspaper, no matter how popular, depends primarily upon circulation in the vicinity of its publication and while circulation in other areas may well be welcomed, it is not critical to the newspaper's continued existence, and thus circulation beyond the vicinity of publication can be characterized as \"secondary or passive circulation,\" in that it is a product of the publication's excellence, rather than of a business effort of active solicitation in all areas of the nation. On the other hand, a magazine publication itself, unlike a newspaper, is not prepared primarily for local consumption but rather for a nationwide audience, and the primary function of such a business is to sell as many magazines as possible in every state of the Union and to that end the corporation actively directs its business. The Court went on to state at page 591: \"The legal principle urged upon us by appellants would allow a publisher, fully aware of the strong possibility of resulting legal action, to print libelous matters directed at persons in distant localities, yet remain free from suit in such localities in spite of the pecuniary benefits gained in that very jurisdiction where it asserts it cannot be held legally accountable.", "A rule of law allowing such a condition would clearly not conform to the purposes behind the `minimum contacts' due process requirement. Resolution of the due process issue in the field of extra-territorial jurisdiction involves consideration of many factors. Circulation is admittedly one of these factors when dealing with a national publisher, and we are unwilling to say with appellant that it can never be sufficient in itself to satisfy the constitutional test.\" * * * * * * \"* * * It is to the end of increasing circulation that all other facets of the business are directed. It is also the activity from which the alleged injuries in a libel action flows. Where, as here, the solicited circulation of a corporation's publications account for a relatively significant portion of the corporation's revenue, notions of fair play and substantial justice support the right of the state to require the corporation to answer non-frivolous claims arising out of its contacts with the state, even though it has managed to reduce its physical presence in the state to a minimum.\" In Paragraph 14 of its president's affidavit, the defendant states that less than six tenths of one percent (.6%) of its advertisement income was attributable to advertisers located in Mississippi, and in Paragraph 13, states that the 14,300 television-equipped homes in Mississippi which 1143 are within the \"area of dominant influence\" of New Orleans television stations compared with 402,400 such homes in the State of Louisiana, constitutes less than 3.5% of all television-equipped homes within the \"area of dominant influence\" of New Orleans television stations.", "In Golino the Court found that the circulation of appellant's magazines in Louisiana was less than 1%; and in his concurring opinion in Curtis Pub. Co. v. Birdsong, 360 F.2d 344, 352 (C.A. 5, 1966), Judge Rives pointed out that The Saturday Evening Post circulation in Alabama, which was approximately .008% of its total circulation sufficed to constitute active submission of the defendant therein to the benefits of Alabama's fruitful market place, and having accepted the benefits of the market place, could not complain that one of the fruits of the harvest was a lawsuit. The statistics showing the number of television-equipped homes in Mississippi, the percentage of 3.5%, and the .6% of the defendant's total advertising receipts attributable to advertisers located in Mississippi are somewhat deceiving inasmuch as they are subject to the following apparent variables.", "There are many more television-equipped homes and a much larger population in the metropolitan area of New Orleans itself than on the Mississippi Gulf Coast, and, when combined with other areas in Louisiana within the dominant influence of its television broadcasts, certainly would greatly exceed the number of television-equipped homes in the State of Mississippi within the area of dominant influence of its stations. Likewise, the percentage of advertisement receipts attributable to Mississippi advertisers is subject to the same variables. Percentages of sales can be expected to slightly exceed population figures in areas of relative economic affluence and lag behind in the poorer sections, as pointed out in Golino, 383 F.2d at page 591.", "It can thus hardly be doubted that the defendant herein considers its audience and its advertisers in Mississippi to be a significant portion of its business, that is, as much as could be reasonably expected from the Mississippi market. An increased or larger viewing audience produces increased revenues from advertisements, as is so vividly indicated by the \"poll taking\" by television stations and networks and which has so often resulted in the \"life\" or \"death\" of various television programs. The facts of the instant case are even more distinguishable from those in Connor and Buckley than were those in Golino, and more strongly support the denial of the defendant's Motion herein. It is to the end of increasing its viewing audience that all facets of the television business are directed. This is also the activity from which the alleged injuries in a libel action flow.", "The defendant is one of the main television broadcasting stations broadcasting or televising its pictures to television viewers in the southern part of Mississippi, and more particularly along the Mississippi Gulf Coast where plaintiff resides; its programs are frequently seen and heard by large segments of the community in which the plaintiff lives and resides. Every week, or almost every week, one of the \"Midday\" programs telecast by the defendant is devoted to some aspect of life on the Mississippi Gulf Coast, and frequently, residents of the Mississippi Gulf Coast appear on said program. In addition, weather reports deal with weather in Louisiana and in Mississippi and especially in the New Orleans and Mississippi Gulf Coast area.", "Political candidates in the State of Mississippi have utilized WDSU-TV or Channel 6 to reach the voting public within the State of Mississippi. Businesses, including large department stores in the City of New Orleans, directly appeal to residents of the Mississippi Gulf Coast in these telecasts, and many advertise free delivery service to certain areas of the Mississippi Gulf Coast. One actually offers free bus transportation to its store to certain Mississippi Gulf Coast residents.", "In many of the television broadcasts of the defendant, the States of Mississippi and Louisiana only are referred to when 1144 dealing with matters of local interest or \"local news\"; the defendant television broadcasting corporation actively solicits advertising in the State of Mississippi, and has actively and fully exploited the Mississippi market for financial gain, the revenue it has derived therefrom which could not be considered inconsequential. The author of this opinion, at his home in Biloxi, Mississippi, often views WDSUTV (Channel 6) because of its comprehensive news coverage, its editorials, and its frequent telecasts of matters of local public interest in Mississippi and particularly of the Mississippi Gulf Coast, which has been so often characterized as an outlying portion of New Orleans, not only because of its close proximity and contiguity thereto, but also because of the almost identical makeup, customs and moves of the citizens thereof. The business activity of the defendant in Mississippi therefore is calculated, ordered and substantial, and the fact that physical contacts are minimized does not alter the basic existence of it involvement in, and its peculiar benefit from, a full exploitation of the Mississippi market. The defendant could and can reasonably anticipate that the sale, distribution and promotion of its broadcasts and advertisements might entail libel actions, and that such actions will in all probability be brought in the places of residence of parties alleging injuries. Notions of fair play and substantial justice support the right of the State of Mississippi to require the defendant to answer nonfrivolous claims arising out of its contacts with the State, even though it has managed to reduce its physical presence therein to a minimum.", "Breckenridge is certainly distinguishable on its facts inasmuch as all of the actions of the defendant therein were done through independent third persons, as distinguished from the direct television broadcasts into the State of Mississippi and particularly along its Gulf Coast by the defendant and particularly in view of its above activities. This Court does not quarrel with the principle of law laid down in Breckenridge, but distinguishes Breckenridge on its facts.", "The Mississippi Supreme Court in the above case found that to assume jurisdiction would be unreasonable and would offend traditional notions of fair play and substantial justice because the minimum contacts which are prerequisite to personal jurisdiction of the Courts of Mississippi were totally lacking therein because of the quality, nature and extent of the activity of the defendant in the forum state were at the most inconsequential. On the other hand, this Court, as stated above, finds the opposite to be true under the facts and circumstances of this case. The defendant contends that the Fifth Circuit Court of Appeals in New York Times Co. v. Connor, supra, has ruled that in cases involving libel, First Amendment considerations require more than the usual amount of contacts before a state may acquire jurisdiction over a nonresident publisher, and therefore, that First Amendment consideration discussed therein compel the granting of this Motion to Dismiss. This Court disagrees with this contention, particularly because of the following language found in the Golino case decided one year subsequent to Connor: \"Certainly the language in Connor does not stand for the proposition that, because of the constitutional protection of the dissemination of ideas, a publisher may never be sued for libel in a state other than that of publication. Rather, Connor indicates that first amendment considerations are a factor relevant to a determination of the jurisdictional question; and, the discussion of that factor in Connor must be viewed in its factual context.", "* * * To argue that periodic lawsuits resulting from circulation of the Post will chill the desire of Curtis to actively encourage the widest possible circulation is clearly out of line with economic realities.\" This Court has taken into account First Amendment considerations as a relevant factor, but does not consider them controlling 1145 on the facts of this particular case. It would be economically unrealistic to assume that periodic lawsuits of this type will chill or discourage the defendant's broadcasts or telecasts of the news or its opinions. It must also be considered that the identical broadcasts or telecasts made to Mississippi viewers are also, at the same time, made to New Orleans and its outlying areas in the State of Louisiana within the dominant influence of the defendant's television station. The standards applied today to libel actions do not vary from state to state, but have, through decisions of the Federal Courts, and particularly the United States Supreme Court, become uniform. In truth and fact, the law of \"libel,\" that is, the proof necessary to support a verdict for a plaintiff in a libel or slander suit concerning a matter of valid public interest requires clear and convincing proof of actual malice, in the absence of which, no jury issue is made of and no recovery may be had.", "Bon Air Hotel, Inc. v. Time, etc., 426 F.2d 858 (C.A. 5, May 6, 1970); New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); Time, Inc. v. McLaney, 406 F.2d 565 (C.A. 5, 1969), cert. den. 395 U.S. 922, 89 S.Ct. 1776, 23 L.Ed.2d 239; Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964); Wasserman v. Time, Inc., 424 F.2d 920 (D.C.Cir., 1970). The concurring opinion of Judge Rives in Birdsong, supra, dealing with the issue of minimum contacts, is very apropos here: \"The teachings as to nonresident jurisdiction reveal several key principles. It is `essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.' * * I submit that Post has actively submitted itself to the benefits of Alabama's fruitful market place just as much as did International Life with its single contract of insurance in the McGee case.", "Having accepted the benefits of the market place, it cannot complain that one of the fruits of the harvest was a lawsuit.\" Fully mindful of the realization that the \"minimal contact\" doctrine of the State of Mississippi is not as liberal as that permitted by International Shoe, this Court nevertheless finds as a matter of fact and a matter of law that the defendant is \"doing business\" in the State of Mississippi within the meaning of the \"Long Arm\" statute of this State, as it is construed and applied by the Mississippi Supreme Court. The requirement of defense of this case in Mississippi by the defendant is not viewed as a significant inconvenience to it because of the close proximity of New Orleans to Biloxi, Mississippi, where this Court sits, and the excellent highways connecting the two cities. According to plaintiff's affidavit, most, if not all, of his witnesses who will be called to testify at the trial are citizens of Harrison County, Mississippi.", "Furthermore, the requirement of defense in this jurisdiction is certainly not one that will hinder either the defendant's television broadcasting into the State of Mississippi or its other activities in this State. Having considered all of the above factors, this Court is convinced that under the facts and the law, the defendant is \"doing business\" within the State of Mississippi, and this Court has constitutionally permissible jurisdiction over it herein. Furthermore, plaintiff is entitled to have his case tried in this forum, the place of his residence, particularly since the prerequisite to recovery in these type actions has been standardized or made uniform by the decisions of the Federal Courts, and particularly the United States Supreme Court. Therefore, the Motion to Dismiss For Lack of Personal Jurisdiction will be denied, and the plaintiff may submit an Order to this Court in conformance with the above and foregoing opinion within the time and manner prescribed by the Rules of this Court.", "NOTES [1] \"(a) Any nonresident person, firm, general or limited partnership, or any foreign or other corporation not qualified under the Constitution and laws of this State as to doing business herein, who shall make a contract with a resident of this State to be performed in whole or in part by any party in this State, or who shall commit a tort in whole or in part in this State against a resident of this State, or who shall do any business or perform any character of work or service in this State, shall by such act or acts be deemed to be doing business in Mississippi. Such act or acts shall be deemed equivalent to the appointment by such nonresident of the Secretary of State of the State of Mississippi, or his successor or successors in office, to be the true and lawful attorney or agent of such nonresident upon whom all lawful process may be served in any actions or proceedings accrued or accruing from such act or acts, or arising from or growing out of such contract or tort, or as an incident thereto, by any such nonresident or his, their, or its agent, servant or employee.", "The doing of such business, or the engaging in any such work or service in this State, or the making of such contract, or the committing of such tort in this State, shall be deemed to be a signification of such nonresident's agreement that any process against it which is so served upon the Secretary of State shall be of the same legal force and effect as if served on the nonresident at its principal place of business in the state or country where it is incorporated and according to the law of that state or country. (b) All civil actions for the recovery of damages brought against a nonresident of the State of Mississippi may be commenced in the county in which the action accrued or where the plaintiff then resides or is domiciled, except as otherwise provided by law. Service of process may be had in any county of the State where the defendants, or any of them, may be found, except when elsewhere provided by law for service upon the Secretary of State. (c) The provisions of this act as they apply to an accrual of a cause of action will be in full force and effect as to any such accrual if the cause of action accrued either before or after passage of this act.\"", "[2] \"Any corporation claiming existence under the laws of any other state or of any other country foreign to the United States, found doing business in this state, shall be subject to suit here to the same extent that corporations of this state are, whether the cause of action accrued in this state or not.\"" ]	https://www.courtlistener.com/api/rest/v3/opinions/1969157/	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
RIGGS, J. Husband appeals and wife cross-appeals from an order modifying the child support provisions of a judgment of dissolution. Husband claims that the trial court erred in its application of the Uniform Child Support Guidelines, because it imputed to husband a pro rata share of his family’s Sub-chapter S corporation’s income that he neither receives nor is entitled to receive. Wife claims that the trial court erred in not imputing all of husband’s pro rata share of the corporation’s income to him and in imputing all of her corporation’s income to her.1 On de novo review, we reverse on the appeal and affirm on the cross-appeal. Husband is employed as president and manager of Albany Rental, Inc., a closely held corporation, of which he owns 27.5 percent of the shares.2 He receives a salary of $2,000 a month from the corporation. Because it is a Sub-chapter S corporation, under federal tax law, its income is attributed to each of the shareholders in the same proportion as the shareholder’s ownership and is treated as the shareholder’s gross income. IRC § 1366. Because the shareholders must pay tax on the attributed income, the corporation declares a dividend each year in an amount sufficient to pay only the taxes. It retains the rest of the profits. Wife owns and operates an incorporated accounting business. She is the sole shareholder. She receives a salary of $2,000 per month from the corporation. In 1990, the corporation had profits of $9,300 that were retained. At the modification hearing, wife argued that, in 1990, husband’s income was $6,792 per month, counting his salary and his share of the corporation’s retained profits. Husband argued that, for the purpose of determining child support, his income was only $2,000 per month, because he did not receive and was not entitled to receive the corporation’s profits. The trial court held that it would not be appropriate or fair under the circumstances to include all of 591husband’s share of the retained profits in his gross income and that it would impute only an additional $2,000 to him. It considered the balance of husband’s share of the retained profits to be a legitimate business reinvestment. Therefore, it found that husband’s monthly gross income was $4,000. In determining wife’s income, the trial court included her salary and her corporation’s retained profits and found that her gross monthly income was $2,700. The question is whether a Subchapter S corporation’s undistributed income that is attributed to an individual shareholder for income tax purposes should also be attributed to the shareholder for purposes of determining child support under the guidelines. Under the guidelines, ORS 25.270 to ORS 25.285; OAR 137-50-320 to OAR 137-50-490, gross income is defined as “income from any source, including but not limited to salaries, wages, commissions, advances, forgiveness of indebtedness, bonuses, dividends, severance pay, pensions, interest, honoraria, trust income, annuities, return on capital, social security benefits, workers’ compensation benefits, unemployment insurance benefits, disability insurance benefits, gifts, prizes, and alimony or separate maintenance received.” OAR 137-50-340(1). (Emphasis supplied.) Gross income from joint ownership of a closely held corporation is defined as “gross receipts minus costs of goods sold minus ordinary and necessary expenses required for self-employment or business operation. Specifically excluded from ordinary and necessary expenses for purposes of OAR 137-50-320 to OAR 137-50-490 are amounts allowable by the Internal Revenue Service for the accelerated component of depreciation expenses, investment tax credits, or any other business expenses determined by the Administrator, Court, or Hearings Officer to be inappropriate for determining gross income for purposes of calculating child support.” OAR 137-50-350(1). Before income can be attributed to a parent for purposes of determining child support, notwithstanding the broad language of the guidelines, there must be some right to 592receive or ability to control the distribution of the income.3 See OAR 137-50-340(1). Although the income of a Subchapter S corporation receives special tax treatment, the general rule regarding the treatment of distributions from corporations for tax purposes is. that “[a] distribution made by a corporation to its shareholders shall be included in the gross income of the distributees when the cash or other property is unqualifiedly made subject to their demands.” 26 CFR § 1.301-l(b) (1991). That rule is also appropriate for the purpose of determining when a corporation’s profits should be considered income under the child support guidelines, at least in circumstances such as these, where husband, as a minority shareholder, has no control over the retention or distribution of profits and there is no evidence that the retained profits were manipulated to avoid paying child support. No part of husband’s share of the corporation’s undistributed profits should have been included in calculating the child support award. Our holding is consistent with the statutory requirement that the formula for determining child support awards comply with this standard: “The child is entitled to benefit from the income of both parents to the same extent that the child would have benefited had the family unit remained intact or if there had been an intact family unit consisting of both parents and the child.” ORS 25.275(2)(a). Even if the parties had remained married, their minor children would not and could not have received any benefit from the undistributed profits of the corporation. We affirm on the cross-appeal, for the reasons discussed above and because wife is the sole shareholder of her corporation and has complete control over its earnings. 593On appeal, remanded for recalculation of child support; affirmed on cross-appeal. Costs to husband on appeal and on cross-appeal. Wife makes four assignments of error, all of which are addressed by a single argument that is essentially the same argument that she makes in response to husband’s appeal. Therefore, we do not address the assignments separately. Husband’s brothers own 25 percent and 2 percent of the stock, respectively, and his mother owns 45.5 percent. Wife argues that the guidelines do not require receipt or control. Receipt and control, however, are basic concepts in determining what is income, at least for income tax purposes. The general rule has been stated: “Income of a taxable nature is not subject to taxation unless it is realized or received, but realization need not take the form of an actual receipt of cash or property by the taxpayer. * * [I]t has been stated that if the taxpayer is to he deemed in constructive receipt of income, the essential point is that he must have an unqualified right to the use and enjoyment of the money and other property deemed to be income.” 85 CJS, “Taxation,” § 1096(c). (Footnotes omitted.)	07-24-2022	[ "RIGGS, J. Husband appeals and wife cross-appeals from an order modifying the child support provisions of a judgment of dissolution. Husband claims that the trial court erred in its application of the Uniform Child Support Guidelines, because it imputed to husband a pro rata share of his family’s Sub-chapter S corporation’s income that he neither receives nor is entitled to receive. Wife claims that the trial court erred in not imputing all of husband’s pro rata share of the corporation’s income to him and in imputing all of her corporation’s income to her.1 On de novo review, we reverse on the appeal and affirm on the cross-appeal. Husband is employed as president and manager of Albany Rental, Inc., a closely held corporation, of which he owns 27.5 percent of the shares.2 He receives a salary of $2,000 a month from the corporation.", "Because it is a Sub-chapter S corporation, under federal tax law, its income is attributed to each of the shareholders in the same proportion as the shareholder’s ownership and is treated as the shareholder’s gross income. IRC § 1366. Because the shareholders must pay tax on the attributed income, the corporation declares a dividend each year in an amount sufficient to pay only the taxes. It retains the rest of the profits.", "Wife owns and operates an incorporated accounting business. She is the sole shareholder. She receives a salary of $2,000 per month from the corporation. In 1990, the corporation had profits of $9,300 that were retained. At the modification hearing, wife argued that, in 1990, husband’s income was $6,792 per month, counting his salary and his share of the corporation’s retained profits. Husband argued that, for the purpose of determining child support, his income was only $2,000 per month, because he did not receive and was not entitled to receive the corporation’s profits. The trial court held that it would not be appropriate or fair under the circumstances to include all of 591husband’s share of the retained profits in his gross income and that it would impute only an additional $2,000 to him. It considered the balance of husband’s share of the retained profits to be a legitimate business reinvestment.", "Therefore, it found that husband’s monthly gross income was $4,000. In determining wife’s income, the trial court included her salary and her corporation’s retained profits and found that her gross monthly income was $2,700. The question is whether a Subchapter S corporation’s undistributed income that is attributed to an individual shareholder for income tax purposes should also be attributed to the shareholder for purposes of determining child support under the guidelines. Under the guidelines, ORS 25.270 to ORS 25.285; OAR 137-50-320 to OAR 137-50-490, gross income is defined as “income from any source, including but not limited to salaries, wages, commissions, advances, forgiveness of indebtedness, bonuses, dividends, severance pay, pensions, interest, honoraria, trust income, annuities, return on capital, social security benefits, workers’ compensation benefits, unemployment insurance benefits, disability insurance benefits, gifts, prizes, and alimony or separate maintenance received.” OAR 137-50-340(1). (Emphasis supplied.) Gross income from joint ownership of a closely held corporation is defined as “gross receipts minus costs of goods sold minus ordinary and necessary expenses required for self-employment or business operation. Specifically excluded from ordinary and necessary expenses for purposes of OAR 137-50-320 to OAR 137-50-490 are amounts allowable by the Internal Revenue Service for the accelerated component of depreciation expenses, investment tax credits, or any other business expenses determined by the Administrator, Court, or Hearings Officer to be inappropriate for determining gross income for purposes of calculating child support.” OAR 137-50-350(1). Before income can be attributed to a parent for purposes of determining child support, notwithstanding the broad language of the guidelines, there must be some right to 592receive or ability to control the distribution of the income.3 See OAR 137-50-340(1).", "Although the income of a Subchapter S corporation receives special tax treatment, the general rule regarding the treatment of distributions from corporations for tax purposes is. that “[a] distribution made by a corporation to its shareholders shall be included in the gross income of the distributees when the cash or other property is unqualifiedly made subject to their demands.” 26 CFR § 1.301-l(b) (1991). That rule is also appropriate for the purpose of determining when a corporation’s profits should be considered income under the child support guidelines, at least in circumstances such as these, where husband, as a minority shareholder, has no control over the retention or distribution of profits and there is no evidence that the retained profits were manipulated to avoid paying child support.", "No part of husband’s share of the corporation’s undistributed profits should have been included in calculating the child support award. Our holding is consistent with the statutory requirement that the formula for determining child support awards comply with this standard: “The child is entitled to benefit from the income of both parents to the same extent that the child would have benefited had the family unit remained intact or if there had been an intact family unit consisting of both parents and the child.” ORS 25.275(2)(a). Even if the parties had remained married, their minor children would not and could not have received any benefit from the undistributed profits of the corporation.", "We affirm on the cross-appeal, for the reasons discussed above and because wife is the sole shareholder of her corporation and has complete control over its earnings. 593On appeal, remanded for recalculation of child support; affirmed on cross-appeal. Costs to husband on appeal and on cross-appeal. Wife makes four assignments of error, all of which are addressed by a single argument that is essentially the same argument that she makes in response to husband’s appeal. Therefore, we do not address the assignments separately. Husband’s brothers own 25 percent and 2 percent of the stock, respectively, and his mother owns 45.5 percent.", "Wife argues that the guidelines do not require receipt or control. Receipt and control, however, are basic concepts in determining what is income, at least for income tax purposes. The general rule has been stated: “Income of a taxable nature is not subject to taxation unless it is realized or received, but realization need not take the form of an actual receipt of cash or property by the taxpayer. * * [I]t has been stated that if the taxpayer is to he deemed in constructive receipt of income, the essential point is that he must have an unqualified right to the use and enjoyment of the money and other property deemed to be income.” 85 CJS, “Taxation,” § 1096(c).", "(Footnotes omitted.)" ]	https://www.courtlistener.com/api/rest/v3/opinions/6940003/	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 95-60563 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus WILLIAM SAPPINGTON, Defendant-Appellant. - - - - - - - - - - Appeal from the United States District Court for the Northern District of Mississippi USDC No. 3:95-CR-003 - - - - - - - - - - October 24, 1996 Before POLITZ, Chief Judge, and JOLLY and HIGGINBOTHAM, Circuit Judges. PER CURIAM:* William Sappington appeals the revocation of his probation. Having reviewed the record and Sappington’s arguments on appeal, we find that the district court did not abuse its discretion in revoking probation. See United States v. King, 990 F.2d 190, 193 (5th Cir.), cert. denied, 114 S. Ct. 223 (1993). AFFIRMED. * Pursuant to Local Rule 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 Local Rule 47.5.4.	04-25-2010	[ "IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 95-60563 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus WILLIAM SAPPINGTON, Defendant-Appellant. - - - - - - - - - - Appeal from the United States District Court for the Northern District of Mississippi USDC No. 3:95-CR-003 - - - - - - - - - - October 24, 1996 Before POLITZ, Chief Judge, and JOLLY and HIGGINBOTHAM, Circuit Judges. PER CURIAM:* William Sappington appeals the revocation of his probation. Having reviewed the record and Sappington’s arguments on appeal, we find that the district court did not abuse its discretion in revoking probation.", "See United States v. King, 990 F.2d 190, 193 (5th Cir. ), cert. denied, 114 S. Ct. 223 (1993). AFFIRMED. * Pursuant to Local Rule 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 Local Rule 47.5.4." ]	https://www.courtlistener.com/api/rest/v3/opinions/10744/	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
159 N.W.2d 431 (1968) Charles B. OLDSEN, Executor of the Estate of Boyd C. Oldsen, Deceased, Appellee, v. Gary JARVIS and Bernard Jarvis, Appellants. No. 52937. Supreme Court of Iowa. June 11, 1968. 432 Theodore T. Duffield, Des Moines, for appellants. Thomas L. McCullough, Sac City, for appellee. GARFIELD, Chief Justice. This is a law action to recover from the operator and owner of an automobile, for negligently causing the death of plaintiff's decedent, a pedestrian in a crosswalk. Defendants have appealed from judgment on jury verdict against them. Three errors are assigned: (1) Claimed excessiveness of the verdict for $15,000; (2) failure to grant a mistrial because of alleged improper jury argument by plaintiff's counsel; and (3) allowing the chief of police to testify as to location and length of skid marks when, it is said, the testimony was based on hearsay. The first of these is relied upon most and we consider it first. I. The fatal injury occurred in Sac City August 27, 1966 about 8:35 p. m. when decedent, age 83, was walking north in a crosswalk across Main Street (U. S. Highway 20). A car driven by defendant Gary Jarvis, age 18, with the consent of the owner, Gary's father Bernard Jarvis, struck decedent when he was nearly half way across the street. Decedent's doctor happened to witness the accident and immediately went to his aid. A "hypo" of 100 milligrams of demerol for relief of pain was administered at the scene. An ambulance was called and decedent was admitted to the hospital in Sac City at 9 o'clock. A second "hypo" was given at 10:10 when the doctor thought the first one was starting to wear off. Decedent died at 10:24. X-rays taken after death revealed a massive fracture of the left pelvis from the top down through the lower pelvis and a fracture of the right hip and knee. Death came as a result of shock due to the injuries and internal bleeding. Decedent complained of a lot of pain and of numbness and pain in both legs; he repeated over and over "Boy, oh boy, it hurts so bad." He was conscious until a few moments before his death and knew he had been horribly injured. Decedent was a retired carpenter and cabinet maker. His income tax returns for 1961 and later years gave his occupation as retired. He had come to this country from Germany in 1909 at the age of 26. He was married about 1921. They adopted their only child, a son, at the age of 18 months. He lived in California about the last 15 years. Decedent sent him through Iowa State College and he became an engineer. Decedent's wife died about three years before he did. Decedent had a deformed left elbow caused by a broken arm sustained in a fall and an inguinal hernia. Otherwise he was in good health for one of his age. Before he retired he was a hard worker, did his work well and was thrifty. He was well liked. His tax returns for the last five calendar years show no income from his work. The only income reported was from rentals. He also received about $100 a month social security. In 1954 decedent purchased an old fire station for $2339.41 which was remodeled 433 into offices below and apartments above. Decedent did as much of the remodeling work as he could. In 1958 a new water system was installed at a cost of $1364.51. Decedent lived in one of the apartments after his wife died and looked after the building, making minor repairs, watching the furnace, and sweeping. Before his wife's death she and Mr. Oldsen lived in one of four living units in a remodeled older home. He sold this building after his wife died for around $11,000 with which he paid off the mortgage on the fire station building. In addition to that building decedent owned a vacant lot the adopted son valued at $1500. The remodeled fire station and contents he valued at $15,000. Decedent had $1524.75 in the bank when he died, an old car valued at $100 and $1000 life insurance. Decedent owed a note at the bank for $1000 or $1500. His hospital bill was $91.70, his doctor bill $60 and the bill for his funeral and burial was $1102.08. Social Security paid about $200 to $250 of this last amount. The Commissioner's Standard Mortality Tables show the average life expectancy of a person aged 83 is 4.89 years. II. The jury was instructed that for plaintiff to recover, the burden was upon him to establish by a preponderance of the evidence that: (1) defendant driver was negligent in some particular as charged by plaintiff; (2) such negligence was the proximate cause of the accident and resulting death and damage; and (3) the estate suffered some pecuniary damage and the extent thereof. On the measure of recovery the jury was instructed it could allow: (1) the fair and reasonable value of medical and hospital service as shown by the evidence; (2) such amount as would fairly and reasonably compensate for decedent's pain and suffering adding that such amount cannot be measured by any exact or mathematical standard but must rest in the jury's sound discretion based upon a fair and impartial consideration of the evidence; (3) the present worth or value of the estate decedent would reasonably be expected to have saved and accumulated as a result of his own efforts from the date of his death if he had lived out the term of his natural life; and (4) reasonable interest on the sum paid for funeral expenses, not exceeding what is reasonable and proper, for the time the estate was compelled to pay such expenses in advance of the normal date of death. The instruction went on to say the total recovery for the four items mentioned, i. e., medical and hospital services, pain and suffering, death of decedent and funeral expenses, must be limited to the amount shown by the evidence. No objection was made to any of the instructions and they therefore stand as the law of the case. Hurtig v. Bjork, 258 Iowa 155, 157-158, 138 N.W.2d 62, 64, and citations. The instruction on measure of plaintiff's recovery closely follows Instructions 3.09, on pain and suffering, and 3.10, on death, of Uniform Jury Instructions prepared by a committee of Iowa State Bar Association and accords with many of our decisions. The trial court's ruling on defendants' motion for new trial contains this: "Most seriously contended is that the verdict is excessive. The court has given considerable thought to requiring a remittitur. The judgment is for $15,000 and the evidence of loss to the estate of accumulations would not support so high an amount. There is, however, considerable evidence as to excruciating pain suffered by decedent during the short period he lived following the accident. This evidence was extremely strong. Any attempt as required by the law of damages to equate money with suffering is bound to be imperfect and fraught with a certain amount of danger. Upon considerable reflection this court determines it should not interfere." 434 We have held many times we will interfere with a verdict because of its size where it is lacking in evidential support although there may be no passion or prejudice. Allen v. Lindeman, 259 Iowa 1384, 1399, 148 N.W.2d 610, 620-621 and citations; In re Estate of Ronfeldt, Iowa, 152 N.W.2d 837, 847. It is of course true, as the jury was instructed, that damages for pain and suffering cannot be measured by any exact or mathematical standard and rest in the sound discretion of the jury based upon a fair and impartial consideration of the evidence. III. The trial court's conclusion is inescapable that the evidence of pecuniary loss to the estate of accumulations from decedent's own efforts does not support such an amount as $15,000. In fact the only theory on which this verdict may be upheld is that the evidence of pain and suffering during the two hours decedent survived the injury supports an award for this item of damage that equals a considerable part of the total recovery. Defendants think $1000 is the highest amount allowable for pain and suffering here. Plaintiff on the other hand thinks a fair award for pain and suffering would be between $6000 and $10,000. Each side cites a few decisions as supporting its view. A reading of them and many others on the subject affords persuasive proof of the wisdom of the familiar statement in our opinions that a comparison of verdicts is of little value in determining whether an award in a particular case is excessive. Each case must be evaluated according to the evidence produced in it. Henneman v. McCalla, 260 Iowa 60, 148 N.W.2d 447, 459; Hurtig v. Bjork, supra, 258 Iowa 155, 162-163, 138 N.W.2d 62, 67 and citations. "The amount of damages that may properly be awarded in any particular case depends upon the facts and circumstances of that case; hence, the verdict and judgment in another case of similar character is not a controlling criterion, but is at best an imperfect analogy." 22 Am.Jur.2d, Damages, section 368, page 476. We think an award of $6000 to $10,000 for pain and suffering of decedent during the short time he survived the accident is much more than a fair consideration of the evidence supports. As stated, decedent's physician (who had examined him only ten days previously) witnessed the accident, came to his immediate aid and administered a "hypo" for relief of pain. Another "hypo" was given at the hospital when the doctor thought the first was wearing off. Defendant complained of numbness in his legs as well as severe pain from the injury. Although the "hypos" left decedent with a lot of pain, they together with the constant attention of the doctor at the hospital must have helped materially. The doctor and hospital bills were comparatively nominal $151.70 for both. Interest on the cost of the funeral and burial, disregarding the fact Social Security paid $200 to $250 of it, for five years would be $275. If decedent were to outlive the average expectancy of a person 83, $55 for each added year should be added to the $275 in computing this item of damage. Aside from these small sums and a fair allowance for pain and suffering, the rest of the verdict must represent the then present worth or value of the estate decedent would reasonably be expected to save and accumulate from his own efforts between the time of his death and the end of his natural life. The evidence discloses no reasonable probability decedent would have added any considerable amount to his estate from his own efforts if this unfortunate accident had not taken his life. There is no fair basis to conclude decedent would have 435 earned more from his efforts in the next five years, had he lived, than in the last five years he did live. As stated, he reported no income from such source during those years and gave his occupation as retired. His only income was from rentals. Of course decedent would have been 88 had he lived another five years, while he was just 78 five years before he died. The reasonable deduction is his earning power would decline, rather than increase, with advancing years. Plaintiff's counsel tells us the jury could have found decedent could have lived on his $100 a month Social Security together with free rental in his apartment in the remodeled fire station. Any assumption that it costs the owner nothing to live in his own property is erroneous. Taxes on this building increased from $335.36 in 1963 to $490.86 in 1965. In 1964 gas and electricity for the building cost a total of $1000. Gross income from it that year was just $1100, with a net loss for the year, including depreciation of $161.38, of $1247. We are also told the jury could have found decedent's in-pocket income from the fire station building rentals could have produced $100 per month and he could have saved and accumulated $1000 a year for another ten years. Savings and accumulations from such source would not be from decedent's own efforts. But in any event the statement is scarcely within the realm of possibility. The largest net income from the building for any of the last five years decedent lived was $528.17 in 1962. If the depreciation of $161.38 claimed for that year were added to the first figure, the net profit for the year would total only $689.55. In the following year the net profit was just $132.97, with the same amount deducted for depreciation. Of course the award in any case of present worth of accumulations reasonably to be expected from a decedent, had he lived, is necessarily somewhat of an approximation. Railsback v. Buesch, 253 Iowa 1064, 1071, 114 N.W.2d 916, 920 and citations. And, as stated, damages for pain and suffering cannot be measured by any exact or mathematical formula. Nevertheless, upon the whole case we conclude the verdict of $15,000 is clearly above what the record justifies, and must be held excessive. Unless a remittitur is filed within 30 days from the filing of this opinion of all the verdict in excess of $10,000 with interest from the date of the verdict and costs a new trial will be granted. If such remittitur is so filed, judgment shall be entered on the reduced amount. IV. As may be inferred from what is just said, we find no reversible error in either of the other two assigned errors. The claim of improper jury argument by plaintiff's counsel is that he resorted to the so-called "Golden Rule" argument, in violation of this pronouncement in Russell v. Chicago, R.I. & P.R. Co., 249 Iowa 664, 672, 86 N.W.2d 843, 848, 70 A.L.R. 2d 927, 934: "Direct appeals to jurors to place themselves in the situation of one of the parties, to allow such damages as they would wish if in the same position, or to consider what they would be willing to accept in compensation for similar injuries are condemned by the courts." (Citations) During closing argument to the jury here plaintiff's counsel made this statement in substance: "It's been suggested that my suggestion of $10,000 or $20,000 was ridiculous or something to that effect, but let me ask you this question: Would counsel for the defendant or his client or I or you " At this point defendants' counsel interrupted opposing counsel and in the absence of the jury objected that what was said was a gross violation of the rules, highly 436 prejudicial and inflammatory. Defendants' counsel then moved for a mistrial which the court denied. Counsel then asked that opposing counsel be admonished that use of the "Golden Rule" argument was misconduct and improper. Plaintiff's counsel denied he had said anything improper yet; the court remarked he appeared to be moving toward the "Golden Rule" argument; plaintiff's counsel asked and was granted permission to finish his argument; no further objection was made to the argument until the motion for new trial was filed after the verdict was returned. Nor does the record show what plaintiff's counsel said in finishing his argument. Defendants' counsel did not ask that the jury be admonished to disregard as improper anything said in the closing argument for plaintiff. We have held many times the trial court has considerable discretion in determining whether alleged misconduct of counsel, if there was such, was prejudicial. We will not interfere with its determination of such a question unless it is reasonably clear the discretion has been abused. Castner v. Wright, 256 Iowa 638, 652, 127 N.W.2d 583, 591, 128 N.W.2d 885, and citations; Mead v. Scott, 256 Iowa 1285, 1290, 130 N.W.2d 641, 644 and citations. We find insufficient ground for holding the trial court abused its discretion here. The only ruling made was to deny a mistrial. The fact defendants' experienced counsel did not see fit to have a record made of the rest of his opponent's argument nor object to anything then said seems to indicate there was no further ground for objection. So far as shown, the trial court heard the entire argument and evidently felt there was no clear resort to the so-called "Golden Rule" argument. V. The remaining assigned error is that the chief of police was allowed to give testimony concerning skid marks at the scene which, it is said, was based on hearsay and was contrary to testimony of Officer Bruscher who, with a police car, made one of the two sets of skid marks there. It is sufficient answer to this assignment that the record references supporting it reveal no error. Further, the testimony referred to cannot be deemed prejudicial to defendants. It bore on the issue of the driver's negligence. Defendants offered no testimony except a few lines from the driver's deposition to the effect his speed when he first saw decedent two car lengths away or a little more was about 25 miles per hour. (That was the speed limit at the place of the accident.) Decedent's physician was of the opinion the driver's speed was about 40 miles per hour. There can be little doubt the driver's negligence caused the accident. Two of the four charges of negligence were failure to maintain a proper lookout and failure to yield the right-of-way to a pedestrian in a crosswalk. The driver testified without objection in his deposition offered by plaintiff that he pleaded guilty to this second charge. If, as defendants' counsel objected, the chief of police gave testimony contrary to that of the other officer, it would benefit defendants rather than be prejudicial to them. As stated at the end of Division III hereof, if a remittitur is filed within 30 days from the filing of this opinion of all the verdict in excess of $10,000, judgment shall be entered on the reduced amount, with interest from the date of the verdict and costs. If such remittitur is not so filed, a new trial will be granted. Affirmed on condition. All Justices concur, except BECKER, J., who dissents. 437 BECKER, Justice. I dissent. What was said in dissent in Hurtig v. Bjork, 258 Iowa 155, 138 N.W.2d 62 applies here. But this case constitutes complete abandonment of all criteria for ordering remittiturs except the judges' own subjective opinion of the amount that may be justified by the evidence. Our former adherence to the proposition that judges will not invade the province of the jury is clearly abandoned. To quote the note at 48 Iowa Law Review 649, 655, 656, "The court in applying the substantial evidence standard is usually careful to recognize that the damage question is a question of fact peculiarly for the jury to decide and that great care must be exercised so as not to invade the province of the jury. Moreover, it is emphasized that judges must be cautious not to substitute their judgment for that of the jury, and that they must recognize that no two cases will be exactly the same with no two juries returning the same verdict. A close examination of Iowa decisions reveals that the court articulates but does not follow these controls. In most cases where the damages are allegedly excessive, the court essentially reviews the facts and evidence as shown in the record, decides what amount such record will justify, and enters its judgment accordingly. It is striking that a court which frequently has stated that unliquidated damages and damages for pain and suffering are not subject to mathematical computation or cannot be compensated by a money judgment can review a `cold record' where evidence is often conflicting and determine the proper dollar amount of recovery which the evidence will support." At page 664 the author said: "The Iowa Constitution provides for protection of the right to jury trial, and the supreme court has been careful to recognize that the province of the jury must not be invaded. Nonetheless, this province seems to have been freely invaded when the court subsequently makes the determination of damages which is often the crux of the jury's task. The Iowa court has indicated that it remits to the highest verdict which the evidence will sustain." We are no longer careful to note that we do not invade the province of the jury. This, at least, as the merit of integrity; for we do invade the province of the jury in this case. In reality we become the jury. What this court is really doing here is reversing a long line of Iowa cases. This is easily demonstrated by quotation from Primus v. Bellevue Apartments, 241 Iowa 1055, 1065, 1066, 44 N.W.2d 347, 353, 25 A.L.R. 2d 565: "We have said precedents are of little value because of the varying circumstances and the imponderables and that each case must turn on its own facts. Dunham v. Des Moines Ry. Co., 240 Iowa 421, 430, 35 N.W.2d 578, 583, 584, points out that in reducing an award or granting a new trial for excessive verdict the court is substituting its judgment on a fact question for that of the jury, `* * * only where the award appears to be unconscionable or clearly not warranted by the record, should the judgment of the jury, in such matters be disturbed.' "DeToskey v. Ruan Transport Corporation, 241 Iowa 45, 48, 40 N.W.2d 4, 6, 17 A.L.R. 2d 826, enunciates the same rule, cites various supporting decisions of this court and quotes from Collins v. City of Council Bluffs, 32 Iowa 324, 331, 332, 7 Am.Rep. 200, 205, a statement that the law imposes on the jury the duty to assess damages in consideration of its fitness to discharge it: "`Neither in fact nor in law are courts better prepared to discharge it; they are not under the law charged with that delicate duty, and should not indirectly assume its exercise when, according to their judgments, verdicts do not accord with their views in the exact amount of damages allowed. * * * In no case ought a verdict be disturbed unless it is so flagrantly excessive *438 as to raise a presumption that it was the result of passion, prejudice or undue influence, and not the result of an honest exercise of the judgment and the lawful discretion of the jury.'" How can what is said in this case be squared with those holdings? Shouldn't all such cases, and they are myriad, be overruled? We now state we need no such standards. By evolution and by rationalization we clearly contravene Article I, section 9 of our own constitution by denying a jury trial. In a case like this it is incorrect to say the plaintiff may have a new trial is he so desires. There is no possibility of new evidence that would make a new trial and new appeal more beneficial. It would be cheaper, and better to simply have these matters submitted to us on the record, sans decision by a trier of the fact. If the jury is there to help represent the combined judgment of the community; as a touchstone with reality, we should not use it simply to reduce its judgment. If this jury had brought in a $5000 verdict and plaintiff appealed for an additur, would we have raised it to $10,000? In DeMoss v. Walker, 242 Iowa 911, 48 N.W.2d 811, we refused to order an additur where the jury brought back a verdict of $100 in a wrongful death action by the estate of a 77 year old woman. One other point, if this record does not sustain a $15,000 award what happens to defendant's right to a jury trial with this solution? He has had no jury fix damages at $10,000. Yet we say he must pay that amount if plaintiff elects to take it. See 48 Iowa Law Review, 649, 664. In this day of changing values it does not seem incongruous for the jury to fix a $15,000 value for the wrongful death of a human being regardless of his or her age. Such a view is even more persuasive where acute pain is involved. Assessment by us of the alleviating effect of hypodermic injections of demerol seems clearly unwise. I would affirm.	10-30-2013	[ "159 N.W.2d 431 (1968) Charles B. OLDSEN, Executor of the Estate of Boyd C. Oldsen, Deceased, Appellee, v. Gary JARVIS and Bernard Jarvis, Appellants. No. 52937. Supreme Court of Iowa. June 11, 1968. 432 Theodore T. Duffield, Des Moines, for appellants. Thomas L. McCullough, Sac City, for appellee. GARFIELD, Chief Justice. This is a law action to recover from the operator and owner of an automobile, for negligently causing the death of plaintiff's decedent, a pedestrian in a crosswalk. Defendants have appealed from judgment on jury verdict against them. Three errors are assigned: (1) Claimed excessiveness of the verdict for $15,000; (2) failure to grant a mistrial because of alleged improper jury argument by plaintiff's counsel; and (3) allowing the chief of police to testify as to location and length of skid marks when, it is said, the testimony was based on hearsay.", "The first of these is relied upon most and we consider it first. I. The fatal injury occurred in Sac City August 27, 1966 about 8:35 p. m. when decedent, age 83, was walking north in a crosswalk across Main Street (U. S. Highway 20). A car driven by defendant Gary Jarvis, age 18, with the consent of the owner, Gary's father Bernard Jarvis, struck decedent when he was nearly half way across the street. Decedent's doctor happened to witness the accident and immediately went to his aid. A \"hypo\" of 100 milligrams of demerol for relief of pain was administered at the scene. An ambulance was called and decedent was admitted to the hospital in Sac City at 9 o'clock. A second \"hypo\" was given at 10:10 when the doctor thought the first one was starting to wear off. Decedent died at 10:24.", "X-rays taken after death revealed a massive fracture of the left pelvis from the top down through the lower pelvis and a fracture of the right hip and knee. Death came as a result of shock due to the injuries and internal bleeding. Decedent complained of a lot of pain and of numbness and pain in both legs; he repeated over and over \"Boy, oh boy, it hurts so bad.\" He was conscious until a few moments before his death and knew he had been horribly injured. Decedent was a retired carpenter and cabinet maker. His income tax returns for 1961 and later years gave his occupation as retired.", "He had come to this country from Germany in 1909 at the age of 26. He was married about 1921. They adopted their only child, a son, at the age of 18 months. He lived in California about the last 15 years. Decedent sent him through Iowa State College and he became an engineer. Decedent's wife died about three years before he did. Decedent had a deformed left elbow caused by a broken arm sustained in a fall and an inguinal hernia. Otherwise he was in good health for one of his age.", "Before he retired he was a hard worker, did his work well and was thrifty. He was well liked. His tax returns for the last five calendar years show no income from his work. The only income reported was from rentals. He also received about $100 a month social security. In 1954 decedent purchased an old fire station for $2339.41 which was remodeled 433 into offices below and apartments above. Decedent did as much of the remodeling work as he could. In 1958 a new water system was installed at a cost of $1364.51. Decedent lived in one of the apartments after his wife died and looked after the building, making minor repairs, watching the furnace, and sweeping. Before his wife's death she and Mr. Oldsen lived in one of four living units in a remodeled older home.", "He sold this building after his wife died for around $11,000 with which he paid off the mortgage on the fire station building. In addition to that building decedent owned a vacant lot the adopted son valued at $1500. The remodeled fire station and contents he valued at $15,000. Decedent had $1524.75 in the bank when he died, an old car valued at $100 and $1000 life insurance. Decedent owed a note at the bank for $1000 or $1500. His hospital bill was $91.70, his doctor bill $60 and the bill for his funeral and burial was $1102.08. Social Security paid about $200 to $250 of this last amount. The Commissioner's Standard Mortality Tables show the average life expectancy of a person aged 83 is 4.89 years. II. The jury was instructed that for plaintiff to recover, the burden was upon him to establish by a preponderance of the evidence that: (1) defendant driver was negligent in some particular as charged by plaintiff; (2) such negligence was the proximate cause of the accident and resulting death and damage; and (3) the estate suffered some pecuniary damage and the extent thereof. On the measure of recovery the jury was instructed it could allow: (1) the fair and reasonable value of medical and hospital service as shown by the evidence; (2) such amount as would fairly and reasonably compensate for decedent's pain and suffering adding that such amount cannot be measured by any exact or mathematical standard but must rest in the jury's sound discretion based upon a fair and impartial consideration of the evidence; (3) the present worth or value of the estate decedent would reasonably be expected to have saved and accumulated as a result of his own efforts from the date of his death if he had lived out the term of his natural life; and (4) reasonable interest on the sum paid for funeral expenses, not exceeding what is reasonable and proper, for the time the estate was compelled to pay such expenses in advance of the normal date of death.", "The instruction went on to say the total recovery for the four items mentioned, i. e., medical and hospital services, pain and suffering, death of decedent and funeral expenses, must be limited to the amount shown by the evidence. No objection was made to any of the instructions and they therefore stand as the law of the case. Hurtig v. Bjork, 258 Iowa 155, 157-158, 138 N.W.2d 62, 64, and citations. The instruction on measure of plaintiff's recovery closely follows Instructions 3.09, on pain and suffering, and 3.10, on death, of Uniform Jury Instructions prepared by a committee of Iowa State Bar Association and accords with many of our decisions. The trial court's ruling on defendants' motion for new trial contains this: \"Most seriously contended is that the verdict is excessive. The court has given considerable thought to requiring a remittitur.", "The judgment is for $15,000 and the evidence of loss to the estate of accumulations would not support so high an amount. There is, however, considerable evidence as to excruciating pain suffered by decedent during the short period he lived following the accident. This evidence was extremely strong. Any attempt as required by the law of damages to equate money with suffering is bound to be imperfect and fraught with a certain amount of danger. Upon considerable reflection this court determines it should not interfere.\"", "434 We have held many times we will interfere with a verdict because of its size where it is lacking in evidential support although there may be no passion or prejudice. Allen v. Lindeman, 259 Iowa 1384, 1399, 148 N.W.2d 610, 620-621 and citations; In re Estate of Ronfeldt, Iowa, 152 N.W.2d 837, 847. It is of course true, as the jury was instructed, that damages for pain and suffering cannot be measured by any exact or mathematical standard and rest in the sound discretion of the jury based upon a fair and impartial consideration of the evidence. III. The trial court's conclusion is inescapable that the evidence of pecuniary loss to the estate of accumulations from decedent's own efforts does not support such an amount as $15,000. In fact the only theory on which this verdict may be upheld is that the evidence of pain and suffering during the two hours decedent survived the injury supports an award for this item of damage that equals a considerable part of the total recovery.", "Defendants think $1000 is the highest amount allowable for pain and suffering here. Plaintiff on the other hand thinks a fair award for pain and suffering would be between $6000 and $10,000. Each side cites a few decisions as supporting its view. A reading of them and many others on the subject affords persuasive proof of the wisdom of the familiar statement in our opinions that a comparison of verdicts is of little value in determining whether an award in a particular case is excessive. Each case must be evaluated according to the evidence produced in it. Henneman v. McCalla, 260 Iowa 60, 148 N.W.2d 447, 459; Hurtig v. Bjork, supra, 258 Iowa 155, 162-163, 138 N.W.2d 62, 67 and citations. \"The amount of damages that may properly be awarded in any particular case depends upon the facts and circumstances of that case; hence, the verdict and judgment in another case of similar character is not a controlling criterion, but is at best an imperfect analogy.\" 22 Am.Jur.2d, Damages, section 368, page 476. We think an award of $6000 to $10,000 for pain and suffering of decedent during the short time he survived the accident is much more than a fair consideration of the evidence supports.", "As stated, decedent's physician (who had examined him only ten days previously) witnessed the accident, came to his immediate aid and administered a \"hypo\" for relief of pain. Another \"hypo\" was given at the hospital when the doctor thought the first was wearing off. Defendant complained of numbness in his legs as well as severe pain from the injury. Although the \"hypos\" left decedent with a lot of pain, they together with the constant attention of the doctor at the hospital must have helped materially. The doctor and hospital bills were comparatively nominal $151.70 for both.", "Interest on the cost of the funeral and burial, disregarding the fact Social Security paid $200 to $250 of it, for five years would be $275. If decedent were to outlive the average expectancy of a person 83, $55 for each added year should be added to the $275 in computing this item of damage. Aside from these small sums and a fair allowance for pain and suffering, the rest of the verdict must represent the then present worth or value of the estate decedent would reasonably be expected to save and accumulate from his own efforts between the time of his death and the end of his natural life. The evidence discloses no reasonable probability decedent would have added any considerable amount to his estate from his own efforts if this unfortunate accident had not taken his life.", "There is no fair basis to conclude decedent would have 435 earned more from his efforts in the next five years, had he lived, than in the last five years he did live. As stated, he reported no income from such source during those years and gave his occupation as retired. His only income was from rentals. Of course decedent would have been 88 had he lived another five years, while he was just 78 five years before he died. The reasonable deduction is his earning power would decline, rather than increase, with advancing years. Plaintiff's counsel tells us the jury could have found decedent could have lived on his $100 a month Social Security together with free rental in his apartment in the remodeled fire station. Any assumption that it costs the owner nothing to live in his own property is erroneous. Taxes on this building increased from $335.36 in 1963 to $490.86 in 1965. In 1964 gas and electricity for the building cost a total of $1000. Gross income from it that year was just $1100, with a net loss for the year, including depreciation of $161.38, of $1247.", "We are also told the jury could have found decedent's in-pocket income from the fire station building rentals could have produced $100 per month and he could have saved and accumulated $1000 a year for another ten years. Savings and accumulations from such source would not be from decedent's own efforts. But in any event the statement is scarcely within the realm of possibility. The largest net income from the building for any of the last five years decedent lived was $528.17 in 1962. If the depreciation of $161.38 claimed for that year were added to the first figure, the net profit for the year would total only $689.55. In the following year the net profit was just $132.97, with the same amount deducted for depreciation. Of course the award in any case of present worth of accumulations reasonably to be expected from a decedent, had he lived, is necessarily somewhat of an approximation. Railsback v. Buesch, 253 Iowa 1064, 1071, 114 N.W.2d 916, 920 and citations.", "And, as stated, damages for pain and suffering cannot be measured by any exact or mathematical formula. Nevertheless, upon the whole case we conclude the verdict of $15,000 is clearly above what the record justifies, and must be held excessive. Unless a remittitur is filed within 30 days from the filing of this opinion of all the verdict in excess of $10,000 with interest from the date of the verdict and costs a new trial will be granted. If such remittitur is so filed, judgment shall be entered on the reduced amount. IV. As may be inferred from what is just said, we find no reversible error in either of the other two assigned errors. The claim of improper jury argument by plaintiff's counsel is that he resorted to the so-called \"Golden Rule\" argument, in violation of this pronouncement in Russell v. Chicago, R.I. & P.R.", "Co., 249 Iowa 664, 672, 86 N.W.2d 843, 848, 70 A.L.R. 2d 927, 934: \"Direct appeals to jurors to place themselves in the situation of one of the parties, to allow such damages as they would wish if in the same position, or to consider what they would be willing to accept in compensation for similar injuries are condemned by the courts.\" (Citations) During closing argument to the jury here plaintiff's counsel made this statement in substance: \"It's been suggested that my suggestion of $10,000 or $20,000 was ridiculous or something to that effect, but let me ask you this question: Would counsel for the defendant or his client or I or you \" At this point defendants' counsel interrupted opposing counsel and in the absence of the jury objected that what was said was a gross violation of the rules, highly 436 prejudicial and inflammatory.", "Defendants' counsel then moved for a mistrial which the court denied. Counsel then asked that opposing counsel be admonished that use of the \"Golden Rule\" argument was misconduct and improper. Plaintiff's counsel denied he had said anything improper yet; the court remarked he appeared to be moving toward the \"Golden Rule\" argument; plaintiff's counsel asked and was granted permission to finish his argument; no further objection was made to the argument until the motion for new trial was filed after the verdict was returned. Nor does the record show what plaintiff's counsel said in finishing his argument.", "Defendants' counsel did not ask that the jury be admonished to disregard as improper anything said in the closing argument for plaintiff. We have held many times the trial court has considerable discretion in determining whether alleged misconduct of counsel, if there was such, was prejudicial. We will not interfere with its determination of such a question unless it is reasonably clear the discretion has been abused. Castner v. Wright, 256 Iowa 638, 652, 127 N.W.2d 583, 591, 128 N.W.2d 885, and citations; Mead v. Scott, 256 Iowa 1285, 1290, 130 N.W.2d 641, 644 and citations. We find insufficient ground for holding the trial court abused its discretion here. The only ruling made was to deny a mistrial. The fact defendants' experienced counsel did not see fit to have a record made of the rest of his opponent's argument nor object to anything then said seems to indicate there was no further ground for objection.", "So far as shown, the trial court heard the entire argument and evidently felt there was no clear resort to the so-called \"Golden Rule\" argument. V. The remaining assigned error is that the chief of police was allowed to give testimony concerning skid marks at the scene which, it is said, was based on hearsay and was contrary to testimony of Officer Bruscher who, with a police car, made one of the two sets of skid marks there. It is sufficient answer to this assignment that the record references supporting it reveal no error. Further, the testimony referred to cannot be deemed prejudicial to defendants. It bore on the issue of the driver's negligence. Defendants offered no testimony except a few lines from the driver's deposition to the effect his speed when he first saw decedent two car lengths away or a little more was about 25 miles per hour.", "(That was the speed limit at the place of the accident.) Decedent's physician was of the opinion the driver's speed was about 40 miles per hour. There can be little doubt the driver's negligence caused the accident. Two of the four charges of negligence were failure to maintain a proper lookout and failure to yield the right-of-way to a pedestrian in a crosswalk. The driver testified without objection in his deposition offered by plaintiff that he pleaded guilty to this second charge. If, as defendants' counsel objected, the chief of police gave testimony contrary to that of the other officer, it would benefit defendants rather than be prejudicial to them. As stated at the end of Division III hereof, if a remittitur is filed within 30 days from the filing of this opinion of all the verdict in excess of $10,000, judgment shall be entered on the reduced amount, with interest from the date of the verdict and costs.", "If such remittitur is not so filed, a new trial will be granted. Affirmed on condition. All Justices concur, except BECKER, J., who dissents. 437 BECKER, Justice. I dissent. What was said in dissent in Hurtig v. Bjork, 258 Iowa 155, 138 N.W.2d 62 applies here. But this case constitutes complete abandonment of all criteria for ordering remittiturs except the judges' own subjective opinion of the amount that may be justified by the evidence.", "Our former adherence to the proposition that judges will not invade the province of the jury is clearly abandoned. To quote the note at 48 Iowa Law Review 649, 655, 656, \"The court in applying the substantial evidence standard is usually careful to recognize that the damage question is a question of fact peculiarly for the jury to decide and that great care must be exercised so as not to invade the province of the jury. Moreover, it is emphasized that judges must be cautious not to substitute their judgment for that of the jury, and that they must recognize that no two cases will be exactly the same with no two juries returning the same verdict. A close examination of Iowa decisions reveals that the court articulates but does not follow these controls. In most cases where the damages are allegedly excessive, the court essentially reviews the facts and evidence as shown in the record, decides what amount such record will justify, and enters its judgment accordingly.", "It is striking that a court which frequently has stated that unliquidated damages and damages for pain and suffering are not subject to mathematical computation or cannot be compensated by a money judgment can review a `cold record' where evidence is often conflicting and determine the proper dollar amount of recovery which the evidence will support.\" At page 664 the author said: \"The Iowa Constitution provides for protection of the right to jury trial, and the supreme court has been careful to recognize that the province of the jury must not be invaded. Nonetheless, this province seems to have been freely invaded when the court subsequently makes the determination of damages which is often the crux of the jury's task. The Iowa court has indicated that it remits to the highest verdict which the evidence will sustain.\" We are no longer careful to note that we do not invade the province of the jury. This, at least, as the merit of integrity; for we do invade the province of the jury in this case.", "In reality we become the jury. What this court is really doing here is reversing a long line of Iowa cases. This is easily demonstrated by quotation from Primus v. Bellevue Apartments, 241 Iowa 1055, 1065, 1066, 44 N.W.2d 347, 353, 25 A.L.R. 2d 565: \"We have said precedents are of little value because of the varying circumstances and the imponderables and that each case must turn on its own facts. Dunham v. Des Moines Ry. Co., 240 Iowa 421, 430, 35 N.W.2d 578, 583, 584, points out that in reducing an award or granting a new trial for excessive verdict the court is substituting its judgment on a fact question for that of the jury, `* * * only where the award appears to be unconscionable or clearly not warranted by the record, should the judgment of the jury, in such matters be disturbed.' \"DeToskey v. Ruan Transport Corporation, 241 Iowa 45, 48, 40 N.W.2d 4, 6, 17 A.L.R.", "2d 826, enunciates the same rule, cites various supporting decisions of this court and quotes from Collins v. City of Council Bluffs, 32 Iowa 324, 331, 332, 7 Am.Rep. 200, 205, a statement that the law imposes on the jury the duty to assess damages in consideration of its fitness to discharge it: \"`Neither in fact nor in law are courts better prepared to discharge it; they are not under the law charged with that delicate duty, and should not indirectly assume its exercise when, according to their judgments, verdicts do not accord with their views in the exact amount of damages allowed. * * * In no case ought a verdict be disturbed unless it is so flagrantly excessive *438 as to raise a presumption that it was the result of passion, prejudice or undue influence, and not the result of an honest exercise of the judgment and the lawful discretion of the jury.'\" How can what is said in this case be squared with those holdings? Shouldn't all such cases, and they are myriad, be overruled? We now state we need no such standards.", "By evolution and by rationalization we clearly contravene Article I, section 9 of our own constitution by denying a jury trial. In a case like this it is incorrect to say the plaintiff may have a new trial is he so desires. There is no possibility of new evidence that would make a new trial and new appeal more beneficial. It would be cheaper, and better to simply have these matters submitted to us on the record, sans decision by a trier of the fact. If the jury is there to help represent the combined judgment of the community; as a touchstone with reality, we should not use it simply to reduce its judgment. If this jury had brought in a $5000 verdict and plaintiff appealed for an additur, would we have raised it to $10,000?", "In DeMoss v. Walker, 242 Iowa 911, 48 N.W.2d 811, we refused to order an additur where the jury brought back a verdict of $100 in a wrongful death action by the estate of a 77 year old woman. One other point, if this record does not sustain a $15,000 award what happens to defendant's right to a jury trial with this solution? He has had no jury fix damages at $10,000. Yet we say he must pay that amount if plaintiff elects to take it. See 48 Iowa Law Review, 649, 664. In this day of changing values it does not seem incongruous for the jury to fix a $15,000 value for the wrongful death of a human being regardless of his or her age. Such a view is even more persuasive where acute pain is involved. Assessment by us of the alleviating effect of hypodermic injections of demerol seems clearly unwise. I would affirm." ]	https://www.courtlistener.com/api/rest/v3/opinions/1275719/	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
BARTCH, J. The defendant was prosecuted for, and convicted of, the crime of embezzlement. Upon being sentenced to imprisonment in the State prison, he appealed to this court, claiming that his conviction was not lawful, and that a new trial ought to be granted. Erom the record it appears that he was charged with unlawfully, feloniously, and fraudulently appropriating and embezzling $8,000 of money belonging to the Oregon Short Line Railroad Company, a corporation, on February 8, 1901; he, as is averred, having been intrusted with the money as the local treasurer of that company. Erom the evidence, among other things, it appears that the defendant became the local treasurer of the company in March, 1897, and remained such until this trouble arose; that previous to his employment as such treasurer, and ever since October, 1880, he was chief clerk in the treasurer’s department of the Union Pacific Railroad Company at Omaha, Nebraska; that in the course of such employment vast sums of money passed through his hands; that while local treasurer of the Oregon Short Line Railroad Company the money received amounted to $700,000 to $1,000,000 per month, about half of which passed through his office; that the money was deposited mostly in McCornick & Company’s and Jones & Company’s Banks; that various books were kept in the local treasurer’s office, showing the accounts of the company and the accounts with the banks; that the remittances from agents and 13conductors, amounting to about a balf million dollars per month, were made directly to the bants, and were not bandied by the local treasurer’s office at all; that the banks would give the treasurer credit, and then send him the deposit slips, to enable him to make the entries in his books; that the money, checks, and drafts received at the local treasurer’s office were usually taken to the bank by the chief clerk, but sometimes they were taken by the other clerk, sometimes by the hall boy, and sometimes by the janitor; that three persons had access to these things in the local treasurer’s office, and the chief clerk had a key to the office, and had access to the books; that the other clerk and janitor also had keys; that on several occasions discrepancies between the accounts appeared from the books of the treasurer and of the banks, but which, until the present instance, were always found to be mere errors in the accounts; and that the discrepancy or shortage which has resulted in this prosecution amounts, as per such books, to $8,000, which sum, it appears, has not been satisfactorily accounted for by the treasurer. At the trial it was shown that the defendant, prior to the alleged defalcation, had always borne a good character for truth and honesty, and this forms the basis for the principal question raised upon this appeal. The appellant insists that the court erred in its charge to the jury as to character, 1 and in refusing to charge as requested. Among other things, the defense requested the court to charge as follows: “You are further instructed that good character is an important fact with every man, and never more so than when he is put on trial, charged with an offense which is rendered improbable in the last degree by a uniform course of life wholly inconsistent with any such crime. There are cases (and it is for you to say what weight it shall have in this case) where it becomes a man’s sole dependence, and yet may prove sufficient to outweigh evidence of the most positive character. The most clear and convincing cases are sometimes 14satisfactorily rebutted by it, and a life of unblemished integrity becomes a complete shield of protection against what otherwise may appear to be proof of guilt. Good character may not only raise a doubt of guilt which would not otherwise exist, but it may bring conviction of innocence. In every criminal trial it is a fact which the defendant is at liberty to put in evidence, and, being in, the jury have a right to give it such weight as they think it entitled to.” Another similar request was also submitted by the defense, but the court refused both, and then charged in the following language: “You are instructed that evidence of previous good character is competent evidence in favor of a party accused, as tending to show that he would not be likely to commit the crime alleged against him. And in this case, if the jury believe from the evidence that prior to the commission of the alleged crime, the defendant had always borne a good character for honesty and truth among his acquaintances and in the neighborhood where he lived, then this is a fact proper to be considered by the jury, with all the other evidence in the case, in determining the question whether the witnesses who have testified to facts tending to criminate him have been mistaken or have testified falsely or truthfully; and if, after a careful consideration of all the evidence in the case, including that bearing upon his previous good character, the jury entertain any reasonable doubt of the defendant’s guilt, then it is their sworn duty to acquit him.” On the theory of this instruction, the evidence of good character could not be considered by the jury for any purpose, except for that of determining whether the witnesses for the prosecution were mistaken or had testified falsely or truthfully. jSuch a limitation upon such evidence is especially liable to mislead a jury, where, as in this case, there is no direct proof of the defendant’s guilt, but where the criminating evidence consists of testimony relating to discrepancies in accounts appearing in books kept by the defendant, when compared and considered with the books of the bank where the 15banking business was done. It might well be' that the witnesses testifying to what appeared from those books were neither mistaken nor untruthful in their statements, and that the money was actually embezzled, and yet, as others had access to the books in question, the defendant might not be the guilty person. The possibility that these things may exist in fact is of itself sufficient to show that such a limitation upon this class of evidence can not be sustained in justice to the accused, nor is it warranted in law. In every criminal prosecution the accused is entitled to prove his good character, 2 and, when proven, it is itself a fact in the ease— a circumstance tending, in a greater or less degree, to establish his innocence; and the prisoner has a right to have it considered by the jury the same as any other fact in evidence. “Such fact, considered in connection with the crim-inating facts, may of itself be sufficient to render it highly improbable that the accused would commit the crime charged, and raise a reasonable doubt in the minds of the jury. Where one has led a consistent, upright, and honest life, why should that fact not avail him when accused of an act, a conviction whereof would destroy all his future hopes and aspirations, and take from him that which can profit no man, and which no man can restore ? History and experience teach us that there are cases in which the accused’s sole defense is a good character, and yet this may outweigh the most positive proof. Conspiracy may charge an innocent man with a crime, and forge its chain of suspicion and falsehood so skillfully that nothing but a life of unblemished integrity and honor can break it. Such evidence is clearly admissible, and may not only raise a doubt as to the defendant’s guilt, but bring conviction of his innocence.” State v. Blue, 17 Utah 115, 183, 53 Pac. 978. In People v. Hancock, 7 Utah 170, 179, 25 Pac. 1093, where the trial court, in its charge to the jury, limited, in effect, the proof of good character to doubtful cases, this court, holding that the charge was misleading, speaking 16through Mr. Justice MiNeb, said: “There may be cases made out so clear that no good character can make them doubtful, but there may be others in which evidence given against a person without character would amount to a conviction, in which a high character would produce a reasonable doubt, or in which high character would actually outweigh evidence which might otherwise appear conclusive.” In People v. Garbutt, 17 Mich. 9, 97 Am. Dec. 162, Mr. Chief Justice Cooley, delivering the opinion of the court, said: “Good character is an important fact with every man, and never more so than when he is put on trial, charged with an offense which is rendered improbable in the last degree by a uniform course of life wholly inconsistent with any such crime. There are cases where it becomes a man’s sole dependence, and yet may prove sufficient to outweigh evidence of the most positive character. The most clear and convincing cases are sometimes satisfactorily rebutted by it, and a life of unblemished integrity becomes a complete shield of protection against the most skillful web of suspicion and falsehood which conspirators have been able to weave. Good character may not only raise a doubt of guilt which would not otherwise exist, but it may bring conviction of innocence. In every criminal trial it is a fact which the defendant is at liberty to put in evidence, and, being in, the jury have a right to give it such weight as they think it entitled to.” 5 Am. and Eng. Ency. Law (2 Ed.), 867; Whart. Cr. Ev., secs. 66, 67; People v. Shepardson, 49 Cal. 629; People v. Doggett, 62 Cal. 27; Fields v. State, 11 Am. Rep. 771; Springfield v. State, 96 Ala. 81, 11 South. 250, 38 Am. St. Rep. 85; Com. v. Cleary, 135 Pa. 64, 19 Atl. 1017, 8 L. R. A. 301. The court was also unfortunate in its further charge respecting the good character of the accused, as follows: “If the jury believe from the evidence, beyond a reasonable 3 doubt, that the defendant committed the crime in question, as charged in the information, it will be your sworn *17duty, as jurors, to find the defendant guilty, even though the evidence may satisfy your minds that the defendant, previous to the commission of the alleged crime, had sustained a good reputation and character for honesty and truth.” Considering this with the previous instructions, limiting the effect of the proof relating to good character, it was calculated to lead the jury to infer that if, from the criminating evidence, they believed the prisoner guilty, they must discard the evidence of good character. The instruction must therefore be regarded as misleading and erroneous, for the accused had the right to have such testimony considered in determining the question of his guilt or innocence, the same as any other evidence in the case. So the accused had the right to have the jury charged that in determining' whether or not he was guilty as charged in the information, beyond a reasonable doubt, his good character, so far as involved, if proven, should be considered and weighed the same as any other fact established, and that it in itself might not only create a reasonable doubt of guilt, which might not otherwise exist, but might carry conviction of innocence. We conclude, therefore, that the court erred in its charge as to good character, and that, at least, the substance of one or the other of the requests hereinbefore quoted and referred to should have been given. While we do not deem further discussion in reference to the charge, which is exceedingly lengthy, necessary, still we think it advisable to direct attention to the fact that there are other portions than those herein discussed which ought to receive close scrutiny by the court before again submitting the case to the jury, in the event of another trial. We do not think it important to comment on the other points presented in the record. The ease must be reversed and remanded, with directions to the court below to set aside the judgment and sentence, and to grant a new trial. It is so ordered. MINEE. C. I., and BASKIN, J., concur.	11-24-2022	[ "BARTCH, J. The defendant was prosecuted for, and convicted of, the crime of embezzlement. Upon being sentenced to imprisonment in the State prison, he appealed to this court, claiming that his conviction was not lawful, and that a new trial ought to be granted. Erom the record it appears that he was charged with unlawfully, feloniously, and fraudulently appropriating and embezzling $8,000 of money belonging to the Oregon Short Line Railroad Company, a corporation, on February 8, 1901; he, as is averred, having been intrusted with the money as the local treasurer of that company.", "Erom the evidence, among other things, it appears that the defendant became the local treasurer of the company in March, 1897, and remained such until this trouble arose; that previous to his employment as such treasurer, and ever since October, 1880, he was chief clerk in the treasurer’s department of the Union Pacific Railroad Company at Omaha, Nebraska; that in the course of such employment vast sums of money passed through his hands; that while local treasurer of the Oregon Short Line Railroad Company the money received amounted to $700,000 to $1,000,000 per month, about half of which passed through his office; that the money was deposited mostly in McCornick & Company’s and Jones & Company’s Banks; that various books were kept in the local treasurer’s office, showing the accounts of the company and the accounts with the banks; that the remittances from agents and 13conductors, amounting to about a balf million dollars per month, were made directly to the bants, and were not bandied by the local treasurer’s office at all; that the banks would give the treasurer credit, and then send him the deposit slips, to enable him to make the entries in his books; that the money, checks, and drafts received at the local treasurer’s office were usually taken to the bank by the chief clerk, but sometimes they were taken by the other clerk, sometimes by the hall boy, and sometimes by the janitor; that three persons had access to these things in the local treasurer’s office, and the chief clerk had a key to the office, and had access to the books; that the other clerk and janitor also had keys; that on several occasions discrepancies between the accounts appeared from the books of the treasurer and of the banks, but which, until the present instance, were always found to be mere errors in the accounts; and that the discrepancy or shortage which has resulted in this prosecution amounts, as per such books, to $8,000, which sum, it appears, has not been satisfactorily accounted for by the treasurer. At the trial it was shown that the defendant, prior to the alleged defalcation, had always borne a good character for truth and honesty, and this forms the basis for the principal question raised upon this appeal.", "The appellant insists that the court erred in its charge to the jury as to character, 1 and in refusing to charge as requested. Among other things, the defense requested the court to charge as follows: “You are further instructed that good character is an important fact with every man, and never more so than when he is put on trial, charged with an offense which is rendered improbable in the last degree by a uniform course of life wholly inconsistent with any such crime. There are cases (and it is for you to say what weight it shall have in this case) where it becomes a man’s sole dependence, and yet may prove sufficient to outweigh evidence of the most positive character. The most clear and convincing cases are sometimes 14satisfactorily rebutted by it, and a life of unblemished integrity becomes a complete shield of protection against what otherwise may appear to be proof of guilt. Good character may not only raise a doubt of guilt which would not otherwise exist, but it may bring conviction of innocence.", "In every criminal trial it is a fact which the defendant is at liberty to put in evidence, and, being in, the jury have a right to give it such weight as they think it entitled to.” Another similar request was also submitted by the defense, but the court refused both, and then charged in the following language: “You are instructed that evidence of previous good character is competent evidence in favor of a party accused, as tending to show that he would not be likely to commit the crime alleged against him. And in this case, if the jury believe from the evidence that prior to the commission of the alleged crime, the defendant had always borne a good character for honesty and truth among his acquaintances and in the neighborhood where he lived, then this is a fact proper to be considered by the jury, with all the other evidence in the case, in determining the question whether the witnesses who have testified to facts tending to criminate him have been mistaken or have testified falsely or truthfully; and if, after a careful consideration of all the evidence in the case, including that bearing upon his previous good character, the jury entertain any reasonable doubt of the defendant’s guilt, then it is their sworn duty to acquit him.” On the theory of this instruction, the evidence of good character could not be considered by the jury for any purpose, except for that of determining whether the witnesses for the prosecution were mistaken or had testified falsely or truthfully.", "jSuch a limitation upon such evidence is especially liable to mislead a jury, where, as in this case, there is no direct proof of the defendant’s guilt, but where the criminating evidence consists of testimony relating to discrepancies in accounts appearing in books kept by the defendant, when compared and considered with the books of the bank where the 15banking business was done. It might well be' that the witnesses testifying to what appeared from those books were neither mistaken nor untruthful in their statements, and that the money was actually embezzled, and yet, as others had access to the books in question, the defendant might not be the guilty person. The possibility that these things may exist in fact is of itself sufficient to show that such a limitation upon this class of evidence can not be sustained in justice to the accused, nor is it warranted in law. In every criminal prosecution the accused is entitled to prove his good character, 2 and, when proven, it is itself a fact in the ease— a circumstance tending, in a greater or less degree, to establish his innocence; and the prisoner has a right to have it considered by the jury the same as any other fact in evidence.", "“Such fact, considered in connection with the crim-inating facts, may of itself be sufficient to render it highly improbable that the accused would commit the crime charged, and raise a reasonable doubt in the minds of the jury. Where one has led a consistent, upright, and honest life, why should that fact not avail him when accused of an act, a conviction whereof would destroy all his future hopes and aspirations, and take from him that which can profit no man, and which no man can restore ? History and experience teach us that there are cases in which the accused’s sole defense is a good character, and yet this may outweigh the most positive proof.", "Conspiracy may charge an innocent man with a crime, and forge its chain of suspicion and falsehood so skillfully that nothing but a life of unblemished integrity and honor can break it. Such evidence is clearly admissible, and may not only raise a doubt as to the defendant’s guilt, but bring conviction of his innocence.” State v. Blue, 17 Utah 115, 183, 53 Pac. 978. In People v. Hancock, 7 Utah 170, 179, 25 Pac. 1093, where the trial court, in its charge to the jury, limited, in effect, the proof of good character to doubtful cases, this court, holding that the charge was misleading, speaking 16through Mr. Justice MiNeb, said: “There may be cases made out so clear that no good character can make them doubtful, but there may be others in which evidence given against a person without character would amount to a conviction, in which a high character would produce a reasonable doubt, or in which high character would actually outweigh evidence which might otherwise appear conclusive.” In People v. Garbutt, 17 Mich. 9, 97 Am. Dec. 162, Mr. Chief Justice Cooley, delivering the opinion of the court, said: “Good character is an important fact with every man, and never more so than when he is put on trial, charged with an offense which is rendered improbable in the last degree by a uniform course of life wholly inconsistent with any such crime.", "There are cases where it becomes a man’s sole dependence, and yet may prove sufficient to outweigh evidence of the most positive character. The most clear and convincing cases are sometimes satisfactorily rebutted by it, and a life of unblemished integrity becomes a complete shield of protection against the most skillful web of suspicion and falsehood which conspirators have been able to weave. Good character may not only raise a doubt of guilt which would not otherwise exist, but it may bring conviction of innocence. In every criminal trial it is a fact which the defendant is at liberty to put in evidence, and, being in, the jury have a right to give it such weight as they think it entitled to.” 5 Am. and Eng. Ency. Law (2 Ed. ), 867; Whart. Cr.", "Ev., secs. 66, 67; People v. Shepardson, 49 Cal. 629; People v. Doggett, 62 Cal. 27; Fields v. State, 11 Am. Rep. 771; Springfield v. State, 96 Ala. 81, 11 South. 250, 38 Am. St. Rep. 85; Com. v. Cleary, 135 Pa. 64, 19 Atl. 1017, 8 L. R. A. 301. The court was also unfortunate in its further charge respecting the good character of the accused, as follows: “If the jury believe from the evidence, beyond a reasonable 3 doubt, that the defendant committed the crime in question, as charged in the information, it will be your sworn *17duty, as jurors, to find the defendant guilty, even though the evidence may satisfy your minds that the defendant, previous to the commission of the alleged crime, had sustained a good reputation and character for honesty and truth.” Considering this with the previous instructions, limiting the effect of the proof relating to good character, it was calculated to lead the jury to infer that if, from the criminating evidence, they believed the prisoner guilty, they must discard the evidence of good character.", "The instruction must therefore be regarded as misleading and erroneous, for the accused had the right to have such testimony considered in determining the question of his guilt or innocence, the same as any other evidence in the case. So the accused had the right to have the jury charged that in determining' whether or not he was guilty as charged in the information, beyond a reasonable doubt, his good character, so far as involved, if proven, should be considered and weighed the same as any other fact established, and that it in itself might not only create a reasonable doubt of guilt, which might not otherwise exist, but might carry conviction of innocence. We conclude, therefore, that the court erred in its charge as to good character, and that, at least, the substance of one or the other of the requests hereinbefore quoted and referred to should have been given. While we do not deem further discussion in reference to the charge, which is exceedingly lengthy, necessary, still we think it advisable to direct attention to the fact that there are other portions than those herein discussed which ought to receive close scrutiny by the court before again submitting the case to the jury, in the event of another trial.", "We do not think it important to comment on the other points presented in the record. The ease must be reversed and remanded, with directions to the court below to set aside the judgment and sentence, and to grant a new trial. It is so ordered. MINEE. C. I., and BASKIN, J., concur." ]	https://www.courtlistener.com/api/rest/v3/opinions/8654656/	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS MATTHEW VANDERHOOP, Plaintiff, v. Civil Action No. 18-11924-FDS WILMINGTON SAVINGS FUND SOCIETY FSB, D/B/A CHRISTIANA TRUST, NOT IN ITS INDIVIDUAL CAPACITY, BUT SOLELY AS TRUSTEE FOR BCAT 2014-10TT, Defendant. CERTIFICATE OF CONFERENCE REGARDING MOTION OF WILMINGTON SAVINGS TO DISMISS AMENDED COMPLAINT NOW COMES Wilmington Savings Fund Society FSB, d/b/a Christiana Trust, not in its individual capacity, but solely as Trustee for BCAT 2014-10TT (“Wilmington Savings”) defendant in the above-captioned action, and – pursuant to LR 7.1(a)(2) – hereby certify that Wilmington Savings conferred with Matthew Vanderhoop (the “Plaintiff”) through counsel by telephone on December 10, 2018 and by electronic mail in an effort to resolve or narrow the issues of disagreement that are the subject of the action. Despite these conversations, Wilmington Savings and the Plaintiff have not been able to resolve or narrow the issues of disagreement between them, issues that are the subject of the Motion of Wilmington Savings to Dismiss Amended Complaint and related memorandum of law filed with this Court. 1 Respectfully submitted, WILMINGTON SAVINGS FUND SOCIETY FSB, D/B/A CHRISTIANA TRUST, NOT IN ITS INDIVIDUAL CAPACITY, BUT SOLELY AS TRUSTEE FOR BCAT 2014- 10TT, By its attorneys, /s/ Aaron A. Fredericks, Esq. Richard C. Demerle, Esq. (BBO#652242) Aaron A. Fredericks, Esq. (BBO#688412) Sassoon & Cymrot, LLP 84 State Street Boston, MA 02109 (617) 720-0099 AFredericks@SassoonCymrot.com DATE: December 11, 2018 2	2018-12-11	[ "UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS MATTHEW VANDERHOOP, Plaintiff, v. Civil Action No. 18-11924-FDS WILMINGTON SAVINGS FUND SOCIETY FSB, D/B/A CHRISTIANA TRUST, NOT IN ITS INDIVIDUAL CAPACITY, BUT SOLELY AS TRUSTEE FOR BCAT 2014-10TT, Defendant. CERTIFICATE OF CONFERENCE REGARDING MOTION OF WILMINGTON SAVINGS TO DISMISS AMENDED COMPLAINT NOW COMES Wilmington Savings Fund Society FSB, d/b/a Christiana Trust, not in its individual capacity, but solely as Trustee for BCAT 2014-10TT (“Wilmington Savings”) defendant in the above-captioned action, and – pursuant to LR 7.1(a)(2) – hereby certify that Wilmington Savings conferred with Matthew Vanderhoop (the “Plaintiff”) through counsel by telephone on December 10, 2018 and by electronic mail in an effort to resolve or narrow the issues of disagreement that are the subject of the action. Despite these conversations, Wilmington Savings and the Plaintiff have not been able to resolve or narrow the issues of disagreement between them, issues that are the subject of the Motion of Wilmington Savings to Dismiss Amended Complaint and related memorandum of law filed with this Court.", "1 Respectfully submitted, WILMINGTON SAVINGS FUND SOCIETY FSB, D/B/A CHRISTIANA TRUST, NOT IN ITS INDIVIDUAL CAPACITY, BUT SOLELY AS TRUSTEE FOR BCAT 2014- 10TT, By its attorneys, /s/ Aaron A. Fredericks, Esq. Richard C. Demerle, Esq. (BBO#652242) Aaron A. Fredericks, Esq. (BBO#688412) Sassoon & Cymrot, LLP 84 State Street Boston, MA 02109 (617) 720-0099 AFredericks@SassoonCymrot.com DATE: December 11, 2018 2" ]	https://www.courtlistener.com/api/rest/v3/recap-documents/138756430/	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 . Response to Arguments Applicant's arguments filed 10/4/2021 have been fully considered but they are not persuasive. Applicant argued that, “The Office Action alleges that Voss discloses elements of claim 1, specifically analogizing the "air supply mechanism 12," and "distal end 22," "annular protrusion 26," of Voss to the "air output," "nozzle," and "lip," as claimed (Action, pp. 2-3). However, Voss does not teach, disclose, or suggest "a lip extending radially from the nozzle and configured to be received inside of a port of the inflatable device to retain the nozzle in the port of the inflatable device," as recited in amended independent claim 1 (emphasis added). Voss discloses "a convection blanket for warming person lying thereon" (Abstract), where the blanket includes a "[h]ose 14 may be connected to inlet port 18 by any convenient means, such as a drawstring 24 or elastic band which is attached to the circumferential perimeter of inlet port 18" (col. 3, Ins. 31-33). Voss further discloses that "[t]he distal end 22 of hose 14 may be supplied with an annular protrusion 26 to better secure hose 14 within port 18" and states that "[t]he particular means employed to connect hose 14 to inlet port 18 is not critical" (col. 3, Ins. 36-40). Voss then clarifies that "the use of special fittings attached to inlet port 18 is deemed undesirable" (col. 3, Ins. 44-45). However, Voss fails to teach or disclose that the "annular protrusion 26," which the Office Action analogized to the claimed "lip," is received within the "port 18" or any other orifice within the blanket. In fact, Voss teaches away from such a configuration as it very clearly states that "special fittings" are "undesirable."” within the port. Within, meaning, inside the port, meaning that the annular protrusion goes inside the port to secure the port around the hose. Furthermore, keeping the annular protrusion on the outside of the port would in no way secure the hose inside the port as discussed by Voss. Thus Examiner does not find this argument persuasive, and finds that Voss does in fact teach the lip (annular protrusion 26) being secured within the port as is now claimed. Claim Rejections - 35 USC § 103 The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made. Claim 1-6, 8, 11-17, and 19-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Voss (US Patent 4867230) in view of Sanders (US Patent Application Publication 20100290931). Regarding claim1, Voss teaches a system for use with an inflatable device comprising: an air output (Figure 1; 12); and a nozzle (Figure 1; at 22) at a distal end of the air output, wherein the nozzle comprises a lip (Figure 1; 26) extending radially from the nozzle and configured to be received inside of a port of the inflatable device to retain the nozzle in a port of the inflatable device (Column 3; lines 31-41). Voss does not teach the lip having a non-circular shape around the nozzle. Sanders teaches the lip having a non-circular shape around the nozzle (Figure 3c; 305). It would have been obvious to one of ordinary skill in the art at the time of Applicant’s Regarding claim 2, Voss does not teach the lip comprises an oblong shape. Sanders teaches the lip comprises an oblong shape (Figure 3c; 305). It would have been obvious to one of ordinary skill in the art at the time of Applicant’s filing date to modify the lip of Voss to be non-circular in order to allow it to lock to certain inflatable devices and expand the user of the pump. Regarding claim 3, Voss does not teach the lip is formed by at least one flange extending radially from the nozzle. Sanders teaches the lip is formed by at least one flange extending radially from the nozzle (Figure 3c; 305 (and nozzle under cover 315)). It would have been obvious to one of ordinary skill in the art at the time of Applicant’s filing date to modify the lip of Voss to be non-circular in order to allow it to lock to certain inflatable devices and expand the user of the pump. Regarding claim4, Voss does not teach the lip is formed by two flanges extending radially from opposing sides of the nozzle. Sanders teaches the lip is formed by two flanges extending radially from opposing sides of the nozzle (Figure 3c; 305 (and nozzle under cover 315)). It would have been obvious to one of ordinary skill in the art at the time of Applicant’ s filing date to modify the lip of Voss to be non-circular in order to allow it to lock to certain inflatable devices and expand the user of the pump. Regarding claim5, Voss does not teach the lip is formed by the two flanges on opposing sides of the nozzle and at least one connecting portion coupled between the two flanges, the connecting portion having a smaller radial diameter around the nozzle than the flanges. Sanders teaches the lip is formed by the two flanges on opposing sides of the nozzle (Figure 3c; 305 (top and bottom) and at least one connecting portion (Figure 3c; the connecting portions can be seen Regarding claim 6, Voss does not teach the lip is formed by the two flanges on opposing sides of the nozzle, a first connecting portion coupled between the two flanges on a first side of the nozzle, and a second connecting portion coupled between the two flanges on a second side of the nozzle, the connecting portions having a smaller radial diameter around the nozzle than the flanges. Sanders teaches the lip is formed by the two flanges (Figure 3c; 305 (top and bottom) on opposing sides of the nozzle, a first connecting portion (Figure 3c; the connecting portions can be seen between the two flanges around and under the cover, see also Figure 3b) coupled between the two flanges on a first side of the nozzle, and a second connecting portion (Figure 3c; the connecting portions can be seen between the two flanges around and under the cover, see also Figure 3b) coupled between the two flanges on a second side of the nozzle, the connecting portions having a smaller radial diameter around the nozzle than the flanges. It would have been obvious to one of ordinary skill in the art at the time of Applicant’s filing date to modify the lip of Voss to be non-circular in order to allow it to lock to certain inflatable devices and expand the user of the pump. Regarding claim 8, Voss teaches the inflatable device, wherein the inflatable device comprises: an inflatable body formed by atop sheet (Figure 1; at 28) and a bottom sheet (Figure 1; at 34) disposed beneath the top sheet to define a cavity configured to be inflated such that the top sheet forms a top wall of the cavity and the bottom sheet forms a bottom wall of the cavity; at least one port (Figure 1; at 18) having a port opening in fluid communication with the Regarding claim 11, Voss teaches the air output is an air pump (Figure 1; 12) having a hose (Figure 1; 14) extending from the air pump, and wherein the nozzle (Figure 1; 22) is at a distal end of the hose. Regarding claim 12, Voss teaches a patient positioning system comprising: an inflatable device comprising: at least one port (Figure 1; 18) having a port opening in fluid communication with a cavity to be inflated (Figure 1; cavity between 28 and 34 as shown) and configured to provide inputted air for inflating the cavity; and an air output (Figure 1; 12) comprising a nozzle (Figure 1; 18) at a distal end of the air output, wherein the nozzle comprises a lip (Figure 1; 26) extending radially from the nozzle and configured to be received within the port to retain the nozzle in the port of the inflatable device (Column 3; lines 31-41), and wherein the at least one port comprises an elastic member (Column 3; lines 31-41 “Hose 14 may be connected to inlet port 18 by any convenient means, such as a drawstring 24 or elastic band”) for adjusting a size of the port opening and is configured to engage with the lip of the air output. Voss does not teach the lip having a non- circular shape around the nozzle. Sanders teaches the lip having a non-circular shape around the nozzle (Figure 3c; 305). It would have been obvious to one of ordinary skill in the art at the time of Applicant’s filing date to modify the lip of Voss to be non-circular in order to allow it to lock to certain inflatable devices and expand the user of the pump. Regarding claim 13, Voss does not teach the lip comprises an oblong shape. Sanders teaches the lip comprises an oblong shape (Figure 3c; 305). It would have been obvious to one Regarding claim 14, Voss does not teach the lip is formed by at least one flange extending radially from the nozzle. Sanders teaches the lip is formed by at least one flange extending radially from the nozzle (Figure 3c; 305 (and nozzle under cover 315)). It would have been obvious to one of ordinary skill in the art at the time of Applicant’s filing date to modify the lip of Voss to be non-circular in order to allow it to lock to certain inflatable devices and expand the user of the pump. Regarding claim 15, Voss does not teach the lip is formed by two flanges extending radially from opposing sides of the nozzle. Sanders teaches the lip is formed by two flanges extending radially from opposing sides of the nozzle (Figure 3c; 305 (and nozzle under cover 315)). It would have been obvious to one of ordinary skill in the art at the time of Applicant’ s filing date to modify the lip of Voss to be non-circular in order to allow it to lock to certain inflatable devices and expand the user of the pump. Regarding claim 16, Voss does not teach the lip is formed by the two flanges on opposing sides of the nozzle and at least one connecting portion coupled between the two flanges, the connecting portion having a smaller radial diameter around the nozzle than the flanges. Sanders teaches the lip is formed by the two flanges on opposing sides of the nozzle (Figure 3c; 305 (top and bottom) and at least one connecting portion (Figure 3c; the connecting portions can be seen between the two flanges around and under the cover, see also Figure 3b) coupled between the two flanges, the connecting portion having a smaller radial diameter around the nozzle than the flanges. It would have been obvious to one of ordinary skill in the art Regarding claim 17, Voss does not teach the lip is formed by the two flanges on opposing sides of the nozzle, a first connecting portion coupled between the two flanges on a first side of the nozzle, and a second connecting portion coupled between the two flanges on a second side of the nozzle, the connecting portions having a smaller radial diameter around the nozzle than the flanges. Sanders teaches the lip is formed by the two flanges (Figure 3c; 305 (top and bottom) on opposing sides of the nozzle, a first connecting portion (Figure 3c; the connecting portions can be seen between the two flanges around and under the cover, see also Figure 3b) coupled between the two flanges on a first side of the nozzle, and a second connecting portion (Figure 3c; the connecting portions can be seen between the two flanges around and under the cover, see also Figure 3b) coupled between the two flanges on a second side of the nozzle, the connecting portions having a smaller radial diameter around the nozzle than the flanges. It would have been obvious to one of ordinary skill in the art at the time of Applicant’s filing date to modify the lip of Voss to be non-circular in order to allow it to lock to certain inflatable devices and expand the user of the pump. Regarding claim 19, Voss teaches a method of using an inflatable device for turning and positioning a person on a support surface, comprising: placing above a supporting surface an inflatable device (Figure 1; 10) comprising at least one port (Figure 1; 18) having a port opening in fluid communication with a cavity (Figure 1; cavity between 28 and 34 as shown) to be inflated and configured to provide inputted air for inflating the cavity; and placing a patient above the inflatable device; adjusting the port opening to receive a nozzle (Figure 1; 22) of an air output (Figure 1; 12), wherein the nozzle comprises a lip (Figure 1; 26) extending radially from the nozzle and configured to be received within the port opening to retain the nozzle in the port Regarding claim 20, Voss teaches using the device to change a position of the patient on the support surface (Figure 1, the device may be inflated and deflated thus changing the position of the person on the support surface). Claim 7 and 18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Voss (US Patent 4867230) in view of Sanders (US Patent Application Publication 20100290931) further in view of Schulte (US Patent 6347642). Regarding claim 7, Voss does not teach the lip is removable from the nozzle. Schulte teaches the lip is removable from the nozzle (Figure 2 shows an adapter with a lip (see 8, 9, 10) which can be removed from the air hose through slot 13). It would have been obvious to one of ordinary skill in the art at the time of Applicant’s filing date to modify the lip of Voss to be a removable adapter in order to allow different connections to different inflatable devices. Regarding claim 18, Voss does not teach the lip is removable from the nozzle. Schulte teaches the lip is removable from the nozzle (Figure 2 shows an adapter with a lip (see 8, 9, 10) which can be removed from the air hose through slot 13). It would have been obvious to one of . Claim 9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Voss (US Patent 4867230) in view of Sanders (US Patent Application Publication 20100290931) further in view of Lewis (US Patent 10092470). Regarding claim 9, Voss does not teach the port further comprises at least one side handle connected adjacent the port opening. Lewis teaches the port further comprises at least one side handle connected adjacent the port opening (Figure 2a; handle 2150 bottom left is adjacent the port opening (at 2106)). It would have been obvious to one of ordinary skill in the art at the time of Applicant’s filing date to modify the device of Voss to include a handle next to the port in order to easily move the device. Claim 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Voss (US Patent 4867230) in view of Sanders (US Patent Application Publication 20100290931) further in view of Fairburn (US Patent Application Publication 20150040326). Regarding claim 10, Voss does not teach the inflatable device further comprises at least one port sock, wherein the at least one port sock comprises a first open end coupled to the inflatable body in fluid communication with the cavity and a second open end at an extended position away from the inflatable body, wherein the at least one port is located at the second open end of the at least one port sock. Fairburn teaches the inflatable device further comprises at least one port sock (Figure 1a; the portion between where 108 is marked and 100), wherein the at least one port sock comprises a first open end coupled to the inflatable body in fluid communication with the cavity (Figure 1a; the end of 108 attached to the inflatable body 100 (left/back end)) and a second open end (Figure 1a; the end of 108 coupled to 106 (the right/front end) at an extended position away from the inflatable body, wherein the at least one Conclusion 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 MORGAN J MCCLURE whose telephone number is (571)270-0362. The examiner can normally be reached M-F 8:30am - 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. 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. /MORGAN J MCCLURE/Examiner, Art Unit 3673 /Peter M. Cuomo/Supervisory Patent Examiner, Art Unit 3673	2022-01-15T10:28:28	[ "DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Response to Arguments Applicant's arguments filed 10/4/2021 have been fully considered but they are not persuasive. Applicant argued that, “The Office Action alleges that Voss discloses elements of claim 1, specifically analogizing the \"air supply mechanism 12,\" and \"distal end 22,\" \"annular protrusion 26,\" of Voss to the \"air output,\" \"nozzle,\" and \"lip,\" as claimed (Action, pp. 2-3). However, Voss does not teach, disclose, or suggest \"a lip extending radially from the nozzle and configured to be received inside of a port of the inflatable device to retain the nozzle in the port of the inflatable device,\" as recited in amended independent claim 1 (emphasis added).", "Voss discloses \"a convection blanket for warming person lying thereon\" (Abstract), where the blanket includes a \"[h]ose 14 may be connected to inlet port 18 by any convenient means, such as a drawstring 24 or elastic band which is attached to the circumferential perimeter of inlet port 18\" (col. 3, Ins. 31-33). Voss further discloses that \"[t]he distal end 22 of hose 14 may be supplied with an annular protrusion 26 to better secure hose 14 within port 18\" and states that \"[t]he particular means employed to connect hose 14 to inlet port 18 is not critical\" (col. 3, Ins. 36-40). Voss then clarifies that \"the use of special fittings attached to inlet port 18 is deemed undesirable\" (col. 3, Ins. 44-45).", "However, Voss fails to teach or disclose that the \"annular protrusion 26,\" which the Office Action analogized to the claimed \"lip,\" is received within the \"port 18\" or any other orifice within the blanket. In fact, Voss teaches away from such a configuration as it very clearly states that \"special fittings\" are \"undesirable. \"” within the port. Within, meaning, inside the port, meaning that the annular protrusion goes inside the port to secure the port around the hose. Furthermore, keeping the annular protrusion on the outside of the port would in no way secure the hose inside the port as discussed by Voss. Thus Examiner does not find this argument persuasive, and finds that Voss does in fact teach the lip (annular protrusion 26) being secured within the port as is now claimed.", "Claim Rejections - 35 USC § 103 The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.", "Claim 1-6, 8, 11-17, and 19-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Voss (US Patent 4867230) in view of Sanders (US Patent Application Publication 20100290931). Regarding claim1, Voss teaches a system for use with an inflatable device comprising: an air output (Figure 1; 12); and a nozzle (Figure 1; at 22) at a distal end of the air output, wherein the nozzle comprises a lip (Figure 1; 26) extending radially from the nozzle and configured to be received inside of a port of the inflatable device to retain the nozzle in a port of the inflatable device (Column 3; lines 31-41).", "Voss does not teach the lip having a non-circular shape around the nozzle. Sanders teaches the lip having a non-circular shape around the nozzle (Figure 3c; 305). It would have been obvious to one of ordinary skill in the art at the time of Applicant’s Regarding claim 2, Voss does not teach the lip comprises an oblong shape. Sanders teaches the lip comprises an oblong shape (Figure 3c; 305). It would have been obvious to one of ordinary skill in the art at the time of Applicant’s filing date to modify the lip of Voss to be non-circular in order to allow it to lock to certain inflatable devices and expand the user of the pump. Regarding claim 3, Voss does not teach the lip is formed by at least one flange extending radially from the nozzle. Sanders teaches the lip is formed by at least one flange extending radially from the nozzle (Figure 3c; 305 (and nozzle under cover 315)).", "It would have been obvious to one of ordinary skill in the art at the time of Applicant’s filing date to modify the lip of Voss to be non-circular in order to allow it to lock to certain inflatable devices and expand the user of the pump. Regarding claim4, Voss does not teach the lip is formed by two flanges extending radially from opposing sides of the nozzle. Sanders teaches the lip is formed by two flanges extending radially from opposing sides of the nozzle (Figure 3c; 305 (and nozzle under cover 315)). It would have been obvious to one of ordinary skill in the art at the time of Applicant’ s filing date to modify the lip of Voss to be non-circular in order to allow it to lock to certain inflatable devices and expand the user of the pump. Regarding claim5, Voss does not teach the lip is formed by the two flanges on opposing sides of the nozzle and at least one connecting portion coupled between the two flanges, the connecting portion having a smaller radial diameter around the nozzle than the flanges. Sanders teaches the lip is formed by the two flanges on opposing sides of the nozzle (Figure 3c; 305 (top and bottom) and at least one connecting portion (Figure 3c; the connecting portions can be seen Regarding claim 6, Voss does not teach the lip is formed by the two flanges on opposing sides of the nozzle, a first connecting portion coupled between the two flanges on a first side of the nozzle, and a second connecting portion coupled between the two flanges on a second side of the nozzle, the connecting portions having a smaller radial diameter around the nozzle than the flanges.", "Sanders teaches the lip is formed by the two flanges (Figure 3c; 305 (top and bottom) on opposing sides of the nozzle, a first connecting portion (Figure 3c; the connecting portions can be seen between the two flanges around and under the cover, see also Figure 3b) coupled between the two flanges on a first side of the nozzle, and a second connecting portion (Figure 3c; the connecting portions can be seen between the two flanges around and under the cover, see also Figure 3b) coupled between the two flanges on a second side of the nozzle, the connecting portions having a smaller radial diameter around the nozzle than the flanges.", "It would have been obvious to one of ordinary skill in the art at the time of Applicant’s filing date to modify the lip of Voss to be non-circular in order to allow it to lock to certain inflatable devices and expand the user of the pump. Regarding claim 8, Voss teaches the inflatable device, wherein the inflatable device comprises: an inflatable body formed by atop sheet (Figure 1; at 28) and a bottom sheet (Figure 1; at 34) disposed beneath the top sheet to define a cavity configured to be inflated such that the top sheet forms a top wall of the cavity and the bottom sheet forms a bottom wall of the cavity; at least one port (Figure 1; at 18) having a port opening in fluid communication with the Regarding claim 11, Voss teaches the air output is an air pump (Figure 1; 12) having a hose (Figure 1; 14) extending from the air pump, and wherein the nozzle (Figure 1; 22) is at a distal end of the hose.", "Regarding claim 12, Voss teaches a patient positioning system comprising: an inflatable device comprising: at least one port (Figure 1; 18) having a port opening in fluid communication with a cavity to be inflated (Figure 1; cavity between 28 and 34 as shown) and configured to provide inputted air for inflating the cavity; and an air output (Figure 1; 12) comprising a nozzle (Figure 1; 18) at a distal end of the air output, wherein the nozzle comprises a lip (Figure 1; 26) extending radially from the nozzle and configured to be received within the port to retain the nozzle in the port of the inflatable device (Column 3; lines 31-41), and wherein the at least one port comprises an elastic member (Column 3; lines 31-41 “Hose 14 may be connected to inlet port 18 by any convenient means, such as a drawstring 24 or elastic band”) for adjusting a size of the port opening and is configured to engage with the lip of the air output.", "Voss does not teach the lip having a non- circular shape around the nozzle. Sanders teaches the lip having a non-circular shape around the nozzle (Figure 3c; 305). It would have been obvious to one of ordinary skill in the art at the time of Applicant’s filing date to modify the lip of Voss to be non-circular in order to allow it to lock to certain inflatable devices and expand the user of the pump. Regarding claim 13, Voss does not teach the lip comprises an oblong shape. Sanders teaches the lip comprises an oblong shape (Figure 3c; 305). It would have been obvious to one Regarding claim 14, Voss does not teach the lip is formed by at least one flange extending radially from the nozzle. Sanders teaches the lip is formed by at least one flange extending radially from the nozzle (Figure 3c; 305 (and nozzle under cover 315)). It would have been obvious to one of ordinary skill in the art at the time of Applicant’s filing date to modify the lip of Voss to be non-circular in order to allow it to lock to certain inflatable devices and expand the user of the pump.", "Regarding claim 15, Voss does not teach the lip is formed by two flanges extending radially from opposing sides of the nozzle. Sanders teaches the lip is formed by two flanges extending radially from opposing sides of the nozzle (Figure 3c; 305 (and nozzle under cover 315)). It would have been obvious to one of ordinary skill in the art at the time of Applicant’ s filing date to modify the lip of Voss to be non-circular in order to allow it to lock to certain inflatable devices and expand the user of the pump. Regarding claim 16, Voss does not teach the lip is formed by the two flanges on opposing sides of the nozzle and at least one connecting portion coupled between the two flanges, the connecting portion having a smaller radial diameter around the nozzle than the flanges. Sanders teaches the lip is formed by the two flanges on opposing sides of the nozzle (Figure 3c; 305 (top and bottom) and at least one connecting portion (Figure 3c; the connecting portions can be seen between the two flanges around and under the cover, see also Figure 3b) coupled between the two flanges, the connecting portion having a smaller radial diameter around the nozzle than the flanges.", "It would have been obvious to one of ordinary skill in the art Regarding claim 17, Voss does not teach the lip is formed by the two flanges on opposing sides of the nozzle, a first connecting portion coupled between the two flanges on a first side of the nozzle, and a second connecting portion coupled between the two flanges on a second side of the nozzle, the connecting portions having a smaller radial diameter around the nozzle than the flanges. Sanders teaches the lip is formed by the two flanges (Figure 3c; 305 (top and bottom) on opposing sides of the nozzle, a first connecting portion (Figure 3c; the connecting portions can be seen between the two flanges around and under the cover, see also Figure 3b) coupled between the two flanges on a first side of the nozzle, and a second connecting portion (Figure 3c; the connecting portions can be seen between the two flanges around and under the cover, see also Figure 3b) coupled between the two flanges on a second side of the nozzle, the connecting portions having a smaller radial diameter around the nozzle than the flanges.", "It would have been obvious to one of ordinary skill in the art at the time of Applicant’s filing date to modify the lip of Voss to be non-circular in order to allow it to lock to certain inflatable devices and expand the user of the pump. Regarding claim 19, Voss teaches a method of using an inflatable device for turning and positioning a person on a support surface, comprising: placing above a supporting surface an inflatable device (Figure 1; 10) comprising at least one port (Figure 1; 18) having a port opening in fluid communication with a cavity (Figure 1; cavity between 28 and 34 as shown) to be inflated and configured to provide inputted air for inflating the cavity; and placing a patient above the inflatable device; adjusting the port opening to receive a nozzle (Figure 1; 22) of an air output (Figure 1; 12), wherein the nozzle comprises a lip (Figure 1; 26) extending radially from the nozzle and configured to be received within the port opening to retain the nozzle in the port Regarding claim 20, Voss teaches using the device to change a position of the patient on the support surface (Figure 1, the device may be inflated and deflated thus changing the position of the person on the support surface).", "Claim 7 and 18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Voss (US Patent 4867230) in view of Sanders (US Patent Application Publication 20100290931) further in view of Schulte (US Patent 6347642). Regarding claim 7, Voss does not teach the lip is removable from the nozzle. Schulte teaches the lip is removable from the nozzle (Figure 2 shows an adapter with a lip (see 8, 9, 10) which can be removed from the air hose through slot 13). It would have been obvious to one of ordinary skill in the art at the time of Applicant’s filing date to modify the lip of Voss to be a removable adapter in order to allow different connections to different inflatable devices. Regarding claim 18, Voss does not teach the lip is removable from the nozzle.", "Schulte teaches the lip is removable from the nozzle (Figure 2 shows an adapter with a lip (see 8, 9, 10) which can be removed from the air hose through slot 13). It would have been obvious to one of . Claim 9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Voss (US Patent 4867230) in view of Sanders (US Patent Application Publication 20100290931) further in view of Lewis (US Patent 10092470). Regarding claim 9, Voss does not teach the port further comprises at least one side handle connected adjacent the port opening. Lewis teaches the port further comprises at least one side handle connected adjacent the port opening (Figure 2a; handle 2150 bottom left is adjacent the port opening (at 2106)).", "It would have been obvious to one of ordinary skill in the art at the time of Applicant’s filing date to modify the device of Voss to include a handle next to the port in order to easily move the device. Claim 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Voss (US Patent 4867230) in view of Sanders (US Patent Application Publication 20100290931) further in view of Fairburn (US Patent Application Publication 20150040326). Regarding claim 10, Voss does not teach the inflatable device further comprises at least one port sock, wherein the at least one port sock comprises a first open end coupled to the inflatable body in fluid communication with the cavity and a second open end at an extended position away from the inflatable body, wherein the at least one port is located at the second open end of the at least one port sock. Fairburn teaches the inflatable device further comprises at least one port sock (Figure 1a; the portion between where 108 is marked and 100), wherein the at least one port sock comprises a first open end coupled to the inflatable body in fluid communication with the cavity (Figure 1a; the end of 108 attached to the inflatable body 100 (left/back end)) and a second open end (Figure 1a; the end of 108 coupled to 106 (the right/front end) at an extended position away from the inflatable body, wherein the at least one Conclusion 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 MORGAN J MCCLURE whose telephone number is (571)270-0362.", "The examiner can normally be reached M-F 8:30am - 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. 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. /MORGAN J MCCLURE/Examiner, Art Unit 3673 /Peter M. Cuomo/Supervisory Patent Examiner, Art Unit 3673" ]	https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-01-23.zip	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
Opinion by William W. Pouter, J., The defendant, desiring to sell a piece of real estate, signed and sealed a paper containing a condensed description of the property and the following agreement: “It is hereby agreed that I, F. J. Wehrle, place the above described property in the hands of George T. Owens for the period of twelve months from this date, May 31, 1898, and do empower the said George T. Owens to act as my agent in the sale of the same; and in case a sale is effected through the above agent, or any other person, or within the time specified, I agree to pay the said George T. Owens commission of five per cent on the full amount of sale, and to pay the same out of the first money received by me.” On the trial of the case, in accordance with the local practice, the plaintiff offered in evidence the averments of fact, not denied by the affidavit of defense. These included the execution of the agreement; that a sale was made by the plaintiff, or by some other person, and within twelve months of the date of the agreement; that the land was sold for $8,350, on January 26, 1899, and that the defendant has received more of the purchase money than the amount due the plaintiff on the sale. The defendant offered no evidence whatever. The question for the court below thus became one of construction of the written agreement. Holding the defendant to be bound, a verdict was directed for the plaintiff for the amount of his claim, based on five per centum of the amount for which the property was sold. The substance of the defendant’s contention is that the true construction of the writing is that the plaintiff was to be paid, provided he effected the sale; and that failing to show that he had done so, it was not sufficient *538to aver that it was effected through the plaintiff, “ or by some other person.” In the affidavit of defense there are allegations made that the contract in suit was procured by improper means. But no attempt was made to prove these allegations. Of course, had fraud been shown in the procurement of the contract, a different case would have been presented. This not appearing, we have before us a written agreement, which is not ambiguous in its terms, which is not susceptible of more than one meaning, namely, that should the defendant’s property be sold during the time limited, by the plaintiff or by any one else, the plaintiff should receive a certain sum of money, measured by a per centum of the price received. If it be said that the contract, thus read, bears hardly on the defendant, the reply is that courts do not sit to relieve suitors from the results of improvident agreements, nor the consequences of bad bargains. It may be that the defendant made a foolish agreement. It may be also that the plaintiff, in the mind of the defendant at least, was worth as an agent the provision made for him. At all events, the provision was made, and, while it would seem, in the absence of proof that the plaintiff made effort to sell the property, that consideration was wanting, yet is the suggestion met by the presence of a seal to the agreement importing consideration: Geiselbrecht v. Geiselbrecht, 8 Pa. Superior Ct. 183. This, as has been seen, is not the mere appointment of an agent. It is not merely the entry of a property with a real estate broker for sale on commission. It is a formal agreement under seal, whose terms we are asked to enforce. We are of opinion that the court below could not have done otherwise than direct a verdict for the plaintiff upon the case as it was presented before him. Judgment affirmed.	02-18-2022	[ "Opinion by William W. Pouter, J., The defendant, desiring to sell a piece of real estate, signed and sealed a paper containing a condensed description of the property and the following agreement: “It is hereby agreed that I, F. J. Wehrle, place the above described property in the hands of George T. Owens for the period of twelve months from this date, May 31, 1898, and do empower the said George T. Owens to act as my agent in the sale of the same; and in case a sale is effected through the above agent, or any other person, or within the time specified, I agree to pay the said George T. Owens commission of five per cent on the full amount of sale, and to pay the same out of the first money received by me.” On the trial of the case, in accordance with the local practice, the plaintiff offered in evidence the averments of fact, not denied by the affidavit of defense. These included the execution of the agreement; that a sale was made by the plaintiff, or by some other person, and within twelve months of the date of the agreement; that the land was sold for $8,350, on January 26, 1899, and that the defendant has received more of the purchase money than the amount due the plaintiff on the sale. The defendant offered no evidence whatever.", "The question for the court below thus became one of construction of the written agreement. Holding the defendant to be bound, a verdict was directed for the plaintiff for the amount of his claim, based on five per centum of the amount for which the property was sold. The substance of the defendant’s contention is that the true construction of the writing is that the plaintiff was to be paid, provided he effected the sale; and that failing to show that he had done so, it was not sufficient *538to aver that it was effected through the plaintiff, “ or by some other person.” In the affidavit of defense there are allegations made that the contract in suit was procured by improper means. But no attempt was made to prove these allegations.", "Of course, had fraud been shown in the procurement of the contract, a different case would have been presented. This not appearing, we have before us a written agreement, which is not ambiguous in its terms, which is not susceptible of more than one meaning, namely, that should the defendant’s property be sold during the time limited, by the plaintiff or by any one else, the plaintiff should receive a certain sum of money, measured by a per centum of the price received.", "If it be said that the contract, thus read, bears hardly on the defendant, the reply is that courts do not sit to relieve suitors from the results of improvident agreements, nor the consequences of bad bargains. It may be that the defendant made a foolish agreement. It may be also that the plaintiff, in the mind of the defendant at least, was worth as an agent the provision made for him. At all events, the provision was made, and, while it would seem, in the absence of proof that the plaintiff made effort to sell the property, that consideration was wanting, yet is the suggestion met by the presence of a seal to the agreement importing consideration: Geiselbrecht v. Geiselbrecht, 8 Pa. Superior Ct. 183. This, as has been seen, is not the mere appointment of an agent. It is not merely the entry of a property with a real estate broker for sale on commission.", "It is a formal agreement under seal, whose terms we are asked to enforce. We are of opinion that the court below could not have done otherwise than direct a verdict for the plaintiff upon the case as it was presented before him. Judgment affirmed." ]	https://www.courtlistener.com/api/rest/v3/opinions/6273033/	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
Littlejohn, Acting Judge: Respondent Annette Caudle Hayes (Mrs. Hayes) sued appellant Peoples Federal Savings and Loan Association (Peoples) for negligently permitting her husband (Mr. Hayes) to make withdrawals from her personal savings account. A jury returned a verdict in favor of Mrs. Hayes for the amount of the withdrawals plus interest. Peoples appeals. We reverse and remand. Mrs. Hayes had a passbook savings account in her name alone with Peoples. In 1978 a house titled in her name was damaged by fire. The insurance company issued checks to-talling approximately Thirty-five Thousand Four Hundred Dollars to her. She then furnished her passbook to her husband who in turn deposited the checks in her savings account at Peoples. Thereafter, allegedly without Mrs. Hayes’ permission, Peoples allowed Mr. Hayes to make several withdrawals totalling Thirty-six Thousand Five Hundred Dollars from the account. The withdrawals were accomplished by Peoples’ drawing five checks payable to Mrs. Hayes and delivering them to her husband.1 There65after, Mr. Hayes endorsed his wife’s name on the checks and cashed them at other banks. In December 1978 Mr. Hayes admitted to Mrs. Hayes that he had withdrawn the money from her account. Mrs. Hayes did nothing about the matter until the summer of 1980 at which time she notified Peoples of the unauthorized withdrawals and demanded return of her money to her account. In August 1980 Mrs. Hayes signed affidavits stating that the checks had been fraudulently endorsed by her husband. Thereafter, Peoples began the process authorized by Section 36-4-207,1976 Code of Laws of South Carolina, to collect the funds from the banks which actually had cashed the checks presented by Mr. Hayes. In September 1980 Mrs. Hayes executed an acknowledgment prepared by Peoples’ attorney in which she stated that she did not contest her husband’s “... rights to endorse the. checks and to obtain the money.” The acknowledgment also recites that “in consideration of the institutions who [sic] cashed these checks over his endorsement, foregoing any further action relating to these checks, I hereby release each of the banks and companies and corporations who [sic] cashed these checks, from any further responsibility in connection therewith.” After execution of the acknowledgment Peoples abandoned all efforts to recover pursuant to Code Section 36-4-207, against those banks which paid the checks over the forged endorsements. The answer, in addition to a general denial, claims that Mrs. Hayes should not recover the amount of the checks because (1) she was contributorily negligent; (2) she was estopped from demanding payment from it because she executed the acknowledgment which deprived it of its collection rights against those banks that cashed the checks; and (3) she unduly delayed bringing this action. At the end of all of the testimony, counsel for Peoples moved for a directed verdict on several grounds: (1) [T]hat the contributory negligence of the Plaintiff, which we have pled, is the sole and proximate cause of any loss that she. may have sustained by reason of these actions. (2) [T]hat because of her conduct and her actions she has equitably estopped from proceeding against the 66building and loan association, because of these actions and because of the long delay that exists and make it impossible for the Defendant to recover on this loss, and that they had a right to recover at the time this loss was discovered. (3) [T]hat she had by her actions deprived the Defendant of any possibility of recouping anything by reason of her actions. (4) [T]hat the Plaintiff in executing the acknowledgment conceded that her husband had authority to endorse her name and get the money and even if we were negligent in giving him the checks she says by the acknowledgment that it was satisfactory and she had therefore waived her right to pursue the defendant. (5) [B]y executing this acknowledgment she has deprived the defendant of its right against the banks. (6) [T]he negligence of the banks is the proximate cause of her loss and our giving him — the defendant giving him her checks is a remote cause of any loss that she sustained. The trial judge denied all motions. Therein, he erred. Inasmuch as Mrs. Hayes entrusted Mr. Hayes with her passbook and checks endorsed by her for $35,400 to go to Peoples and make a deposit, it was entirely reasonable for Peoples to conclude that he was an authorized person. Certainly, it had no reason to anticipate that her husband would violate the criminal felony law by committing forgeries. For a depositor to send a passbook to a bank or savings and loan association to procure a withdrawal by way of a check made payable to the true owner, especially a spouse, is routine procedure. We hold under the facts of this case that there was no duty on the part of Peoples to foresee a forgery. Such a burden would place upon commerce a restriction which simply should not exist. If it be the law that Peoples is liable under the circumstance of this case, no bank or savings and loan hereaft,er would be able to follow procedures heretofore deemed entirely appropriate and in keeping with good business practices. In addition, we think that Peoples was entitled to a directed verdict by reason of the fact that the wife, in September 1980, executed an acknowledgment pre*67pared by the attorney for Peoples in which she stated that she did not contest her husband’s .. right to endorse the checks and to obtain the money.” She released the banks which had cashed the checks after which Peoples abandoned efforts to recover against those banks which paid the checks over the forged endorsements. We hold that the judge should have granted the motion in favor of Peoples for the reason stated in the second ground of the motion indicated above. The real cause of this law suit is not that which the husband did at Peoples. The husband and wife are now separated, if not divorced; and accordingly, the wife would now play a different tune. She waited five years to commence this action. We hold that the only reasonable inference to be drawn from the whole of the evidence is that Peoples was not negligent, that Mrs. Hayes was negligent and that her negligence was the proximate cause of the loss as between her and Peoples. We also hold that Mrs. Hayes should, as a matter of law, be estopped to claim in this action. By her own testimony, she states that she signed the release “... because I didn’t want Mr. Hayes to go to jail.” This was before the marital romance blew up. The case is reversed and remanded for the purpose of entry of judgment in favor of the defendant. Reversed and remanded. Goolsby, J., concurs. Cureton, J., concurs in a separate opinion. All but one of these withdrawals were made after Mr. Hayes presented Mrs. Hayes’ passbook to the bank. The bank officer stated she did not require Mrs. Hayes to come in and sign for the withdrawals because she thought Mr. Hayes was handling the account for his wife. Moreover, she noted that she did not question Mr. Hayes’ authority to make withdrawals because when he first brought in the checks for deposit with Mrs. Hayes’ valid endorsements, the bank could have cashed them for him and given him the cash without incurring any liability to Mrs. Hayes.	10-17-2022	[ "Littlejohn, Acting Judge: Respondent Annette Caudle Hayes (Mrs. Hayes) sued appellant Peoples Federal Savings and Loan Association (Peoples) for negligently permitting her husband (Mr. Hayes) to make withdrawals from her personal savings account. A jury returned a verdict in favor of Mrs. Hayes for the amount of the withdrawals plus interest. Peoples appeals. We reverse and remand. Mrs. Hayes had a passbook savings account in her name alone with Peoples. In 1978 a house titled in her name was damaged by fire. The insurance company issued checks to-talling approximately Thirty-five Thousand Four Hundred Dollars to her. She then furnished her passbook to her husband who in turn deposited the checks in her savings account at Peoples. Thereafter, allegedly without Mrs. Hayes’ permission, Peoples allowed Mr. Hayes to make several withdrawals totalling Thirty-six Thousand Five Hundred Dollars from the account. The withdrawals were accomplished by Peoples’ drawing five checks payable to Mrs. Hayes and delivering them to her husband.1 There65after, Mr. Hayes endorsed his wife’s name on the checks and cashed them at other banks.", "In December 1978 Mr. Hayes admitted to Mrs. Hayes that he had withdrawn the money from her account. Mrs. Hayes did nothing about the matter until the summer of 1980 at which time she notified Peoples of the unauthorized withdrawals and demanded return of her money to her account. In August 1980 Mrs. Hayes signed affidavits stating that the checks had been fraudulently endorsed by her husband. Thereafter, Peoples began the process authorized by Section 36-4-207,1976 Code of Laws of South Carolina, to collect the funds from the banks which actually had cashed the checks presented by Mr. Hayes.", "In September 1980 Mrs. Hayes executed an acknowledgment prepared by Peoples’ attorney in which she stated that she did not contest her husband’s “... rights to endorse the. checks and to obtain the money.” The acknowledgment also recites that “in consideration of the institutions who [sic] cashed these checks over his endorsement, foregoing any further action relating to these checks, I hereby release each of the banks and companies and corporations who [sic] cashed these checks, from any further responsibility in connection therewith.” After execution of the acknowledgment Peoples abandoned all efforts to recover pursuant to Code Section 36-4-207, against those banks which paid the checks over the forged endorsements. The answer, in addition to a general denial, claims that Mrs. Hayes should not recover the amount of the checks because (1) she was contributorily negligent; (2) she was estopped from demanding payment from it because she executed the acknowledgment which deprived it of its collection rights against those banks that cashed the checks; and (3) she unduly delayed bringing this action.", "At the end of all of the testimony, counsel for Peoples moved for a directed verdict on several grounds: (1) [T]hat the contributory negligence of the Plaintiff, which we have pled, is the sole and proximate cause of any loss that she. may have sustained by reason of these actions. (2) [T]hat because of her conduct and her actions she has equitably estopped from proceeding against the 66building and loan association, because of these actions and because of the long delay that exists and make it impossible for the Defendant to recover on this loss, and that they had a right to recover at the time this loss was discovered. (3) [T]hat she had by her actions deprived the Defendant of any possibility of recouping anything by reason of her actions. (4) [T]hat the Plaintiff in executing the acknowledgment conceded that her husband had authority to endorse her name and get the money and even if we were negligent in giving him the checks she says by the acknowledgment that it was satisfactory and she had therefore waived her right to pursue the defendant. (5) [B]y executing this acknowledgment she has deprived the defendant of its right against the banks.", "(6) [T]he negligence of the banks is the proximate cause of her loss and our giving him — the defendant giving him her checks is a remote cause of any loss that she sustained. The trial judge denied all motions. Therein, he erred. Inasmuch as Mrs. Hayes entrusted Mr. Hayes with her passbook and checks endorsed by her for $35,400 to go to Peoples and make a deposit, it was entirely reasonable for Peoples to conclude that he was an authorized person. Certainly, it had no reason to anticipate that her husband would violate the criminal felony law by committing forgeries. For a depositor to send a passbook to a bank or savings and loan association to procure a withdrawal by way of a check made payable to the true owner, especially a spouse, is routine procedure. We hold under the facts of this case that there was no duty on the part of Peoples to foresee a forgery. Such a burden would place upon commerce a restriction which simply should not exist.", "If it be the law that Peoples is liable under the circumstance of this case, no bank or savings and loan hereaft,er would be able to follow procedures heretofore deemed entirely appropriate and in keeping with good business practices. In addition, we think that Peoples was entitled to a directed verdict by reason of the fact that the wife, in September 1980, executed an acknowledgment pre*67pared by the attorney for Peoples in which she stated that she did not contest her husband’s .. right to endorse the checks and to obtain the money.” She released the banks which had cashed the checks after which Peoples abandoned efforts to recover against those banks which paid the checks over the forged endorsements. We hold that the judge should have granted the motion in favor of Peoples for the reason stated in the second ground of the motion indicated above.", "The real cause of this law suit is not that which the husband did at Peoples. The husband and wife are now separated, if not divorced; and accordingly, the wife would now play a different tune. She waited five years to commence this action. We hold that the only reasonable inference to be drawn from the whole of the evidence is that Peoples was not negligent, that Mrs. Hayes was negligent and that her negligence was the proximate cause of the loss as between her and Peoples. We also hold that Mrs. Hayes should, as a matter of law, be estopped to claim in this action. By her own testimony, she states that she signed the release “... because I didn’t want Mr. Hayes to go to jail.” This was before the marital romance blew up. The case is reversed and remanded for the purpose of entry of judgment in favor of the defendant. Reversed and remanded.", "Goolsby, J., concurs. Cureton, J., concurs in a separate opinion. All but one of these withdrawals were made after Mr. Hayes presented Mrs. Hayes’ passbook to the bank. The bank officer stated she did not require Mrs. Hayes to come in and sign for the withdrawals because she thought Mr. Hayes was handling the account for his wife. Moreover, she noted that she did not question Mr. Hayes’ authority to make withdrawals because when he first brought in the checks for deposit with Mrs. Hayes’ valid endorsements, the bank could have cashed them for him and given him the cash without incurring any liability to Mrs. Hayes." ]	https://www.courtlistener.com/api/rest/v3/opinions/8291908/	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
McCay, Judge. The judgment in this case was not based on the verdict of a jury, but was the act of the judge, and in such cases, according to the settled maxims of the common law, the judgment is, during the term, in the breast of the judge. In Kerr’s Action at Law, page 29, Law Library, 81, this practice is distinctly laid down, and it is referred to the equitable jurisdiction of the court, to-wit: to that supervision of its own proceedings which exists in every court, so to control its action as that its rules and practice shall not be the means of hardship or injustice. Necessary rules of order require that this jurisdiction shall be exercised only at the discretion of the judge. It is not a matter of right in the party asking its exercise; but, like the appeal to a chancellor for his interference, it must be sought for by an appeal to the sense of justice and propriety of the court. Ordinarily, the exercise of this discretion is not matter of appeal. It turns on the special facts of each case, on the conduct of the parties, on the press of business before the court, etc. In the case before us, we think there was no error. If the judge was satisfied that the movant acted in good faith, and that he was not needlessly troubling the court in asking it to undo what it had done, there was no error. This court will be very slow to interfere in such cases, where no injustice has been done — where only a technical advantage of the other party is disturbed, Whether the effect be, in , this case, to cause delay, we do not know. That was doubtless considered by the court. It does not appear that the case was not heard, or that it could not have been heard, at the term. Judgment affirmed.	01-11-2022	[ "McCay, Judge. The judgment in this case was not based on the verdict of a jury, but was the act of the judge, and in such cases, according to the settled maxims of the common law, the judgment is, during the term, in the breast of the judge. In Kerr’s Action at Law, page 29, Law Library, 81, this practice is distinctly laid down, and it is referred to the equitable jurisdiction of the court, to-wit: to that supervision of its own proceedings which exists in every court, so to control its action as that its rules and practice shall not be the means of hardship or injustice. Necessary rules of order require that this jurisdiction shall be exercised only at the discretion of the judge. It is not a matter of right in the party asking its exercise; but, like the appeal to a chancellor for his interference, it must be sought for by an appeal to the sense of justice and propriety of the court. Ordinarily, the exercise of this discretion is not matter of appeal.", "It turns on the special facts of each case, on the conduct of the parties, on the press of business before the court, etc. In the case before us, we think there was no error. If the judge was satisfied that the movant acted in good faith, and that he was not needlessly troubling the court in asking it to undo what it had done, there was no error. This court will be very slow to interfere in such cases, where no injustice has been done — where only a technical advantage of the other party is disturbed, Whether the effect be, in , this case, to cause delay, we do not know. That was doubtless considered by the court. It does not appear that the case was not heard, or that it could not have been heard, at the term.", "Judgment affirmed." ]	https://www.courtlistener.com/api/rest/v3/opinions/5557223/	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
DETAILED ACTION This action is in response to Application No. 16/796,565 originally filed 02/20/2020. The amendment presented on 04/16/2021 which provides amendments to claims 1, 3, 11, and 13 is hereby acknowledged. Currently Claims 1-20 are pending. Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Response to Arguments Applicant's arguments filed 04/16/2021 have been fully considered but they are not persuasive. The claim amendments as filed are not supported by the specification. Specifically the phrase “a second electrode disposed on the first electrode and overlapping the common electrode and at least one of the plurality of clock signal lines in a plan view” is not supported. As seen in Figure 9, the second electrode SE and first electrode CNE are separated by a pixel defining film PDL and are not shown to be disposed on the other. Additionally, the term “second hole” was used without defining a “first hole”. This is a 112(b) issue. In light of the outstanding issues, The Office proposed an Examiner Amendment to correct the outstanding issues and place the application in a condition for allowance. 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 Authorization for this examiner’s amendment was given in an interview with Kyuwan Ryu (74,525) on 06/14/2021. The application has been amended as follows: Please CANCEL the following claims: Cancel Claim 6. Please AMEND the following claims: 1. (Currently Amended) A display device comprising: a display panel configured to display an image; and an input sensing layer disposed on the display panel and including an input sensor and a plurality of input sensing lines electrically connected to the input sensor, wherein the display panel includes: a base layer including a display region and a non-display region; a first hole being surrounded by the display region in a plan view; a circuit layer including a pixel circuit layer disposed on the base layer within the display region, and a driving circuit layer disposed on the non-display region of the base layer and including a power electrode and a plurality of clock signal lines and providing a driving signal configured to drive the pixel circuit layer; a light emitting element layer including a pixel electrode disposed on the pixel circuit layer and electrically connected to the pixel circuit layer, a light emitting layer disposed on the pixel electrode, and a common electrode disposed on the light emitting layer and extended toward the non-display region from the display region, wherein the common electrode is disposed on a second electrode in the non-display region; and a first electrode disposed between the plurality of clock signal lines and the plurality of input sensing lines and having a plurality of second holes defined therein; and wherein the second electrode is spaced apart from the first electrode with a pixel defining film interposed therebetween overlaps the first 5. (Currently Amended) The display device of claim 1, wherein the 11. (Currently Amended) The display device of claim 1, wherein [[a ]]the first hole is defined by removing the components of the display panel and the input sensing layer 13. (Currently Amended) A display device comprising: a base layer having a display region and a non-display region defined thereon; a circuit layer including a driving circuit layer which is disposed on the base layer and includes a power electrode and a plurality of clock signal lines, and a pixel circuit layer; a light emitting element layer disposed on the circuit layer and including a pixel electrode, a light emitting layer, and a common electrode sequentially laminated; a pixel defining film which is disposed on the pixel electrode and exposes at least a portion of the pixel electrode; and a second electrode disposed on the pixel defining film to be spaced apart from a first electrode with the pixel defining film interposed therebetween and overlapping the first , and at least one of the plurality of clock signal lines in a plan view. 14. (Currently Amended) The display device of claim 13, wherein the first electrode electrically connects overlaps Reasons for Allowance The following is an examiner’s statement of reasons for allowance: The most relevant prior art of record Lee et al. U.S. Patent Application Publication No. , Yang et al. U.S. Patent Application Publication No. 2005/0264689 A1, or any other cited art of record does not fairly suggest either alone or in combination the now recited combination of layers as in the independent claim. It is therefore respectfully submitted the claims are allowable over the prior art of record. 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 The prior art made of record and not relied upon however still considered pertinent to applicant's disclosure is cited in PTO-892. Prior art cited in PTO-892 reads upon the applicants claims in part and/or gives a general reference to the knowledge and skill of those ordinarily skilled in the art at the time/before the effective filing date of invention. Applicant Representatives are reminded of CFR 1.4(d)(2)(ii) which states “A patent practitioner (§ 1.32(a)(1) ), signing pursuant to §§ 1.33(b)(1) or 1.33(b)(2), must supply his/her registration number either as part of the S-signature, or immediately below or adjacent to the S-signature. The number (#) character may be used only as part of the S-signature when appearing before a practitioner’s registration number; otherwise the number character may not be used in an S-signature.” When an unsigned or improperly signed amendment is received the amendment will be listed in the contents of the application file, but not entered. The examiner will notify applicant of the status of the application, advising him or her to furnish a duplicate amendment properly signed or to ratify the amendment already filed. In an application not under final rejection, applicant should be given a two month time period in which to ratify the previously filed amendment (37 CFR 1.135(c) ). 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, Temesghen Ghebretinsae can be reached on 571-272-3017. 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. /Michael J Jansen II/ Primary Examiner, Art Unit 2626	2021-06-23T15:02:17	[ "DETAILED ACTION This action is in response to Application No. 16/796,565 originally filed 02/20/2020. The amendment presented on 04/16/2021 which provides amendments to claims 1, 3, 11, and 13 is hereby acknowledged. Currently Claims 1-20 are pending. Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Response to Arguments Applicant's arguments filed 04/16/2021 have been fully considered but they are not persuasive. The claim amendments as filed are not supported by the specification. Specifically the phrase “a second electrode disposed on the first electrode and overlapping the common electrode and at least one of the plurality of clock signal lines in a plan view” is not supported.", "As seen in Figure 9, the second electrode SE and first electrode CNE are separated by a pixel defining film PDL and are not shown to be disposed on the other. Additionally, the term “second hole” was used without defining a “first hole”. This is a 112(b) issue. In light of the outstanding issues, The Office proposed an Examiner Amendment to correct the outstanding issues and place the application in a condition for allowance. 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 Authorization for this examiner’s amendment was given in an interview with Kyuwan Ryu (74,525) on 06/14/2021. The application has been amended as follows: Please CANCEL the following claims: Cancel Claim 6. Please AMEND the following claims: 1.", "(Currently Amended) A display device comprising: a display panel configured to display an image; and an input sensing layer disposed on the display panel and including an input sensor and a plurality of input sensing lines electrically connected to the input sensor, wherein the display panel includes: a base layer including a display region and a non-display region; a first hole being surrounded by the display region in a plan view; a circuit layer including a pixel circuit layer disposed on the base layer within the display region, and a driving circuit layer disposed on the non-display region of the base layer and including a power electrode and a plurality of clock signal lines and providing a driving signal configured to drive the pixel circuit layer; a light emitting element layer including a pixel electrode disposed on the pixel circuit layer and electrically connected to the pixel circuit layer, a light emitting layer disposed on the pixel electrode, and a common electrode disposed on the light emitting layer and extended toward the non-display region from the display region, wherein the common electrode is disposed on a second electrode in the non-display region; and a first electrode disposed between the plurality of clock signal lines and the plurality of input sensing lines and having a plurality of second holes defined therein; and wherein the second electrode is spaced apart from the first electrode with a pixel defining film interposed therebetween overlaps the first 5.", "(Currently Amended) The display device of claim 1, wherein the 11. (Currently Amended) The display device of claim 1, wherein [[a ]]the first hole is defined by removing the components of the display panel and the input sensing layer 13. (Currently Amended) A display device comprising: a base layer having a display region and a non-display region defined thereon; a circuit layer including a driving circuit layer which is disposed on the base layer and includes a power electrode and a plurality of clock signal lines, and a pixel circuit layer; a light emitting element layer disposed on the circuit layer and including a pixel electrode, a light emitting layer, and a common electrode sequentially laminated; a pixel defining film which is disposed on the pixel electrode and exposes at least a portion of the pixel electrode; and a second electrode disposed on the pixel defining film to be spaced apart from a first electrode with the pixel defining film interposed therebetween and overlapping the first , and at least one of the plurality of clock signal lines in a plan view.", "14. (Currently Amended) The display device of claim 13, wherein the first electrode electrically connects overlaps Reasons for Allowance The following is an examiner’s statement of reasons for allowance: The most relevant prior art of record Lee et al. U.S. Patent Application Publication No. , Yang et al. U.S. Patent Application Publication No. 2005/0264689 A1, or any other cited art of record does not fairly suggest either alone or in combination the now recited combination of layers as in the independent claim. It is therefore respectfully submitted the claims are allowable over the prior art of record. 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 The prior art made of record and not relied upon however still considered pertinent to applicant's disclosure is cited in PTO-892. Prior art cited in PTO-892 reads upon the applicants claims in part and/or gives a general reference to the knowledge and skill of those ordinarily skilled in the art at the time/before the effective filing date of invention. Applicant Representatives are reminded of CFR 1.4(d)(2)(ii) which states “A patent practitioner (§ 1.32(a)(1) ), signing pursuant to §§ 1.33(b)(1) or 1.33(b)(2), must supply his/her registration number either as part of the S-signature, or immediately below or adjacent to the S-signature. The number (#) character may be used only as part of the S-signature when appearing before a practitioner’s registration number; otherwise the number character may not be used in an S-signature.” When an unsigned or improperly signed amendment is received the amendment will be listed in the contents of the application file, but not entered. The examiner will notify applicant of the status of the application, advising him or her to furnish a duplicate amendment properly signed or to ratify the amendment already filed.", "In an application not under final rejection, applicant should be given a two month time period in which to ratify the previously filed amendment (37 CFR 1.135(c) ). 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, Temesghen Ghebretinsae can be reached on 571-272-3017. 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. /Michael J Jansen II/ Primary Examiner, Art Unit 2626" ]	https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-06-27.zip	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
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 election without traverse of claims 1-14 and newly added claims 21-26 in the reply filed on 04/28/22 is acknowledged. By this election, claims 15-20 is cancelled; claims 1-14 and newly added claims 21-26 are pending in the application. 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. Claim(s) 1-2 and 9 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Fischer (2010/0224960). Regarding claim 1, Fischer (Fig. 4) discloses a semiconductor structure, comprising: a capacitor (514, 524, [0031]), comprising: a first electrode 511 and a second electrode 521 respectively electrically connected to a first conductor 392 and a second conductor 391 ([0035]); and a first dielectric layer 611 between the first electrode 511 and the second electrode 521 ([0029]), wherein the first dielectric layer 611 contacts with a sidewall surface of the first conductor 392; and a second dielectric layer 420 over and adjacent to the capacitor ([0027]). Regarding claim 2, Fischer (Fig. 4) discloses wherein the first electrode 521 and the second electrode 511 respectively contacts with the first conductor 392 and the second conductor 391. Regarding claim 9, Fischer (Fig. 4) discloses wherein the first conductor 392 and the second conductor 391 are respectively electrically coupled to a conductive trace (343, 341). 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 10 and 12-14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Gu et al. (2019/0221515) in view of Lin (2011/0210420). Regarding claim 10, Gu (Fig. 4) discloses a semiconductor structure, comprising: a first conductor 61 and a second conductor 61 ([0022]); a capacitor (24, 25, 26) disposed between the first conductor and the second conductor 61, and electrically connected to the first conductor and the second conductor 61; an oxide containing dielectric 27 disposed over the capacitor (24, 25, 26) and surrounding the first conductor and the second conductor 61 ([0010]); and a dielectric 36 disposed over the oxide containing dielectric 27, wherein a portion of the first conductor 61 and a portion of the second conductor 61 are exposed from the oxide containing dielectrics (27, 36). Gu discloses all the claimed limitation except for a nitride containing dielectric disposed over the oxide containing dielectric. However, Lin (Fig. 5) discloses a nitride containing dielectric 164 disposed over the oxide containing dielectric 162 (see [0062-0063]) for the intended use as a matter of design choice. In re Leshin, 125 USPQ 416. Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention was made to modify the structure of Gu by forming the nitride containing dielectric disposed over the oxide containing dielectric for the intended use as a matter of design choice, as taught by Lin (see Fig. 5 and [0062]). Regarding claim 12, Gu (Fig. 4) discloses wherein the capacitor (24, 25, 26) includes an electrode plate 24 contacting the first conductor 64 and isolated from the second conductor 66. Regarding claim 13, Gu (Fig. 4) discloses wherein the oxide containing dielectric 27 is at least partially disposed between the first conductor and the second conductor 61. Regarding claim 14, as discussed the combination above, Gu (Fig. 4) discloses wherein the nitride containing dielectric 36 is at least partially disposed between the first conductor and the second conductor 61. Claim 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Gu et al. (2019/0221515) in view of Lin (2011/0210420) and further in view of Chang et al. (2002/0142569). Regarding claim 11, Gu and Lin disclose all the claimed limitation except for a dielectric constant of the nitride containing dielectric is substantially higher than a dielectric constant of the oxide containing dielectric. However, Chang (Fig. 4) discloses a dielectric constant of the nitride containing dielectric 56 is substantially higher than a dielectric constant of the oxide containing dielectric 54 (see [0019]) in order to improve the production yield of the semiconductor wafer ([0011]). Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention was made to modify the structure of Gu and Lin by forming a dielectric constant of the nitride containing dielectric is substantially higher than a dielectric constant of the oxide containing dielectric, as taught by Chang in order to improve the production yield of the semiconductor wafer (see Fig. 4 and [0011]). Claim 3 is/are rejected under 35 U.S.C. 103 as being unpatentable over Fischer (2010/0224960). Regarding claim 3, Fischer discloses all the claimed limitation except for a shortest distance between the second dielectric layer and the capacitor is about 1 kÅ to 3 kÅ. However, the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. In Gardner v. TEC Systems, Inc., 725 F. 2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, to form a shortest distance between the second dielectric layer and the capacitor is about 1 kÅ to 3 kÅ as claimed, because the dimensions can be varied depending upon the device in a particular application. Claims 21-26 is/are rejected under 35 U.S.C. 103 as being unpatentable over Gu et al. (2019/0221515) in view of Fischer (2010/0224960). Regarding claim 21, Gu (Fig. 4) discloses a semiconductor structure, comprising: a first conductor 61 and a second conductor 61 ([0022]); a capacitor (24, 25, 26) disposed between the first conductor and the second conductor 61, and electrically connected to the first conductor and the second conductor 61; a dielectric 27 disposed over the capacitor (24, 25, 26) and surrounding the first conductor and the second conductor 61 ([0010]); and a second dielectric 36 disposed over the first dielectric 27, wherein the capacitor contacts the first conductor 61 at a first sidewall surface, and the capacitor contacts the second conductor 61 at a second sidewall surface. Gu discloses all the claimed limitations except for a first solder bump and a second solder bump. However, Fischer (Fig. 2) discloses the first conductor 391 and the second conductor 392 are respectively electrically connected to a first solder bump 398 and a second solder bump 399 at one end in order to serve as electrical connections between the semiconductor device and a package substrate ([0038]). Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention was made to modify the structure of Gu by forming the first conductor and the second conductor are respectively electrically connected to a first solder bump and a second solder bump at one end, as taught by Fischer in order to improve serve as electrical connections between the semiconductor device and a package substrate (see Fig. 2 and [0038]). Regarding claim 22, Gu (Fig. 4) discloses wherein the first conductor and the second conductor 61 are respectively electrically connected to a first conductive trace 14 and a second conductive trace 14 at the other end. Regarding claim 23, Gu (Fig. 4) discloses wherein the first sidewall surface and the second sidewall surface are between the two ends. Regarding claim 24, Gu (Fig. 4) discloses wherein the capacitor (24, 25, 26) includes a first electrode 26 extending along a first direction and electrically connected to the first conductor 61. Regarding claim 25, Gu (Fig. 4) discloses wherein the capacitor includes a second electrode 24 extending along a second direction opposite to the first direction, and electrically connected to the second conductor 61. Regarding claim 26, Gu (Fig. 4) discloses wherein a portion of the first conductor 61 and a portion of the second conductor 61 are exposed from the first dielectric 27 and the second dielectric 36. Allowable Subject Matter Claims 4-8 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. The prior art of record fails to disclose all the limitations recited in the claim 4. Specifically, the prior art of record fails to disclose wherein the second dielectric layer includes a first sub-layer, a second sub-layer and a third sub-layer, wherein a dielectric constant of the third sub-layer is substantially higher than a dielectric constant of the first sub-layer or a dielectric constant of the second sub-layer. 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. See 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) may be used to overcome an actual or provisional rejection based on a nonstatutory double patenting ground provided the conflicting application or patent is shown to be commonly owned with this application. See 37 CFR 1.130(b). 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 1-14 and 21-26 are rejected under the judicially created doctrine of obviousness-type double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 10,867,903. Although the conflicting claims are not identical, they are not patentably distinct from each other because as follows: both U.S. Patent and instant application claimed a semiconductor structure, including at least two conductors and a first dielectric partially surrounding the at least two conductors, a capacitor substantially under the first dielectric, and a second dielectric over and lining along the first dielectric and top portions of the at least two conductors. Specifically, claims 1, 10 and 21 of the instant application, which claim the same subject matter as disclosed in claims 1, 8 and 15 of U.S. Patent No. 10,867,903. Regarding claims 1-14 and 21-26 of the instant application, which claim the same subject matter as disclosed in claims 1-20 of U.S. Patent No. 10,867,903. The facts are that the claims of the U. S. Patent No. 10,867,903 and instant application have claimed the same goal and are not distinguished from each other. Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to THERESA T DOAN whose telephone number is (571)272-1704. The examiner can normally be reached on Monday, Tuesday, Wednesday and Thursday from 7:00AM - 3:00PM. 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, WAEL FAHMY can be reached on (571) 272-1705. 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. /THERESA T DOAN/ Primary Examiner, Art Unit 2814	2022-05-25T11:42:12	[ "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 election without traverse of claims 1-14 and newly added claims 21-26 in the reply filed on 04/28/22 is acknowledged. By this election, claims 15-20 is cancelled; claims 1-14 and newly added claims 21-26 are pending in the application. 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. Claim(s) 1-2 and 9 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Fischer (2010/0224960). Regarding claim 1, Fischer (Fig.", "4) discloses a semiconductor structure, comprising: a capacitor (514, 524, [0031]), comprising: a first electrode 511 and a second electrode 521 respectively electrically connected to a first conductor 392 and a second conductor 391 ([0035]); and a first dielectric layer 611 between the first electrode 511 and the second electrode 521 ([0029]), wherein the first dielectric layer 611 contacts with a sidewall surface of the first conductor 392; and a second dielectric layer 420 over and adjacent to the capacitor ([0027]). Regarding claim 2, Fischer (Fig. 4) discloses wherein the first electrode 521 and the second electrode 511 respectively contacts with the first conductor 392 and the second conductor 391. Regarding claim 9, Fischer (Fig. 4) discloses wherein the first conductor 392 and the second conductor 391 are respectively electrically coupled to a conductive trace (343, 341). 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 10 and 12-14 is/are rejected under 35 U.S.C.", "103 as being unpatentable over Gu et al. (2019/0221515) in view of Lin (2011/0210420). Regarding claim 10, Gu (Fig. 4) discloses a semiconductor structure, comprising: a first conductor 61 and a second conductor 61 ([0022]); a capacitor (24, 25, 26) disposed between the first conductor and the second conductor 61, and electrically connected to the first conductor and the second conductor 61; an oxide containing dielectric 27 disposed over the capacitor (24, 25, 26) and surrounding the first conductor and the second conductor 61 ([0010]); and a dielectric 36 disposed over the oxide containing dielectric 27, wherein a portion of the first conductor 61 and a portion of the second conductor 61 are exposed from the oxide containing dielectrics (27, 36). Gu discloses all the claimed limitation except for a nitride containing dielectric disposed over the oxide containing dielectric. However, Lin (Fig. 5) discloses a nitride containing dielectric 164 disposed over the oxide containing dielectric 162 (see [0062-0063]) for the intended use as a matter of design choice.", "In re Leshin, 125 USPQ 416. Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention was made to modify the structure of Gu by forming the nitride containing dielectric disposed over the oxide containing dielectric for the intended use as a matter of design choice, as taught by Lin (see Fig. 5 and [0062]). Regarding claim 12, Gu (Fig. 4) discloses wherein the capacitor (24, 25, 26) includes an electrode plate 24 contacting the first conductor 64 and isolated from the second conductor 66. Regarding claim 13, Gu (Fig. 4) discloses wherein the oxide containing dielectric 27 is at least partially disposed between the first conductor and the second conductor 61.", "Regarding claim 14, as discussed the combination above, Gu (Fig. 4) discloses wherein the nitride containing dielectric 36 is at least partially disposed between the first conductor and the second conductor 61. Claim 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Gu et al. (2019/0221515) in view of Lin (2011/0210420) and further in view of Chang et al. (2002/0142569). Regarding claim 11, Gu and Lin disclose all the claimed limitation except for a dielectric constant of the nitride containing dielectric is substantially higher than a dielectric constant of the oxide containing dielectric. However, Chang (Fig. 4) discloses a dielectric constant of the nitride containing dielectric 56 is substantially higher than a dielectric constant of the oxide containing dielectric 54 (see [0019]) in order to improve the production yield of the semiconductor wafer ([0011]).", "Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention was made to modify the structure of Gu and Lin by forming a dielectric constant of the nitride containing dielectric is substantially higher than a dielectric constant of the oxide containing dielectric, as taught by Chang in order to improve the production yield of the semiconductor wafer (see Fig. 4 and [0011]). Claim 3 is/are rejected under 35 U.S.C. 103 as being unpatentable over Fischer (2010/0224960). Regarding claim 3, Fischer discloses all the claimed limitation except for a shortest distance between the second dielectric layer and the capacitor is about 1 kÅ to 3 kÅ.", "However, the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. In Gardner v. TEC Systems, Inc., 725 F. 2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, to form a shortest distance between the second dielectric layer and the capacitor is about 1 kÅ to 3 kÅ as claimed, because the dimensions can be varied depending upon the device in a particular application.", "Claims 21-26 is/are rejected under 35 U.S.C. 103 as being unpatentable over Gu et al. (2019/0221515) in view of Fischer (2010/0224960). Regarding claim 21, Gu (Fig. 4) discloses a semiconductor structure, comprising: a first conductor 61 and a second conductor 61 ([0022]); a capacitor (24, 25, 26) disposed between the first conductor and the second conductor 61, and electrically connected to the first conductor and the second conductor 61; a dielectric 27 disposed over the capacitor (24, 25, 26) and surrounding the first conductor and the second conductor 61 ([0010]); and a second dielectric 36 disposed over the first dielectric 27, wherein the capacitor contacts the first conductor 61 at a first sidewall surface, and the capacitor contacts the second conductor 61 at a second sidewall surface.", "Gu discloses all the claimed limitations except for a first solder bump and a second solder bump. However, Fischer (Fig. 2) discloses the first conductor 391 and the second conductor 392 are respectively electrically connected to a first solder bump 398 and a second solder bump 399 at one end in order to serve as electrical connections between the semiconductor device and a package substrate ([0038]). Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention was made to modify the structure of Gu by forming the first conductor and the second conductor are respectively electrically connected to a first solder bump and a second solder bump at one end, as taught by Fischer in order to improve serve as electrical connections between the semiconductor device and a package substrate (see Fig. 2 and [0038]). Regarding claim 22, Gu (Fig.", "4) discloses wherein the first conductor and the second conductor 61 are respectively electrically connected to a first conductive trace 14 and a second conductive trace 14 at the other end. Regarding claim 23, Gu (Fig. 4) discloses wherein the first sidewall surface and the second sidewall surface are between the two ends. Regarding claim 24, Gu (Fig. 4) discloses wherein the capacitor (24, 25, 26) includes a first electrode 26 extending along a first direction and electrically connected to the first conductor 61. Regarding claim 25, Gu (Fig. 4) discloses wherein the capacitor includes a second electrode 24 extending along a second direction opposite to the first direction, and electrically connected to the second conductor 61.", "Regarding claim 26, Gu (Fig. 4) discloses wherein a portion of the first conductor 61 and a portion of the second conductor 61 are exposed from the first dielectric 27 and the second dielectric 36. Allowable Subject Matter Claims 4-8 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. The prior art of record fails to disclose all the limitations recited in the claim 4. Specifically, the prior art of record fails to disclose wherein the second dielectric layer includes a first sub-layer, a second sub-layer and a third sub-layer, wherein a dielectric constant of the third sub-layer is substantially higher than a dielectric constant of the first sub-layer or a dielectric constant of the second sub-layer. 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. See 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) may be used to overcome an actual or provisional rejection based on a nonstatutory double patenting ground provided the conflicting application or patent is shown to be commonly owned with this application. See 37 CFR 1.130(b).", "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 1-14 and 21-26 are rejected under the judicially created doctrine of obviousness-type double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 10,867,903. Although the conflicting claims are not identical, they are not patentably distinct from each other because as follows: both U.S. Patent and instant application claimed a semiconductor structure, including at least two conductors and a first dielectric partially surrounding the at least two conductors, a capacitor substantially under the first dielectric, and a second dielectric over and lining along the first dielectric and top portions of the at least two conductors. Specifically, claims 1, 10 and 21 of the instant application, which claim the same subject matter as disclosed in claims 1, 8 and 15 of U.S. Patent No. 10,867,903. Regarding claims 1-14 and 21-26 of the instant application, which claim the same subject matter as disclosed in claims 1-20 of U.S. Patent No. 10,867,903. The facts are that the claims of the U. S. Patent No.", "10,867,903 and instant application have claimed the same goal and are not distinguished from each other. Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to THERESA T DOAN whose telephone number is (571)272-1704. The examiner can normally be reached on Monday, Tuesday, Wednesday and Thursday from 7:00AM - 3:00PM. 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, WAEL FAHMY can be reached on (571) 272-1705. 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. /THERESA T DOAN/ Primary Examiner, Art Unit 2814" ]	https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-05-29.zip	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
340 Mass. 1 (1959) 162 N.E.2d 789 THE NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY vs. WALWORTH COMPANY. Supreme Judicial Court of Massachusetts, Suffolk. October 6, 1959. December 7, 1959. Present: WILKINS, C.J., RONAN, SPALDING, WILLIAMS, & WHITTEMORE, JJ. Noel W. Deering, for the plaintiff. Philander S. Ratzkoff, for the defendant. WILKINS, C.J. This action of contract upon the indemnity provisions of an agreement relating to a private railroad track for freight transportation has been reported without decision by a judge of the Superior Court. G.L. (Ter. Ed.) c. 231, § 111. The facts are agreed. The contract, dated August 16, 1915, between the plaintiff and Walworth Manufacturing Company, has become an obligation of the defendant. On April 9, 1945, a taxicab of one Hoban was in collision with a locomotive upon the private track. He brought an action of tort which resulted in a verdict, and later a judgment, in his favor against the trustees of the plaintiff. Hoban v. Trustees of N.Y., N.H. & H.R.R. 326 Mass. 566. The verdict was not based on gross negligence of the plaintiff or its trustees. The defendant refused to defend the action or to pay the judgment. Reorganization proceedings of the plaintiff terminated before execution issued, and the plaintiff was obliged to pay, and did pay, $14,865.65 in satisfaction of the judgment. 3 In the preamble of the contract the defendant's predecessor (Walworth) is referred to as "Proprietor." The recitals are that Walworth "and certain other individuals, firms and corporations located in the South Boston District ... are desirous of building an industrial track for the private use in the transportation of freight" from the main line of the railroad; that "the Proprietor has obtained the necessary statutory authority from all public boards and tribunals for the construction and operation of a railroad for private use in the transportation of freight across or upon C Street, West First Street and East First Street ... to connect the location and tracks of the Railroad Company with private tracks upon the property or properties of parties adjoining said streets"; and that "it is deemed for the best interests of all parties that said railroad for private use shall, when completed, be operated by the Railway Company." "Contracts of indemnity are to be fairly and reasonably construed in order to ascertain the intention of the parties and to effectuate the purpose sought to be accomplished." Century Indem. Co. v. Bloom, 325 Mass. 52, 56, and cases cited. "[W]e must construe the contract with reference to the situation of the parties when they made it and to the objects sought to be accomplished." Bryne v. Gloucester, 297 Mass. 156, 158. There is no general principle that contracts of indemnity are not favored in law, nor any such implication in Laskowski v. Manning, 325 Mass. 393, 398-399. The contract, read as a whole, expresses a desire on the part of the proprietor and its associates for the installation of a track and the operation of a freight railroad on public ways in Boston to connect with tracks on their respective properties. The installation and operation of a railroad on the public streets are patently a more dangerous undertaking than are the same activities on private property or on a railroad right of way. As the project was not within the field of the plaintiff's public duty (New York Cent. R.R. v. William Culkeen & Sons Co. 249 Mass. 71, 75-76), the 4 plaintiff was able to install and operate the railroad on terms which in 1915 the proprietor, no doubt, readily signed. Now many years later, after this accident, the defendant has been able to discover and suggest reasons why the indemnity should not apply. One objection is that paragraph Ninth (c) covers only the maintenance and operation of tracks and has nothing to do with the operation of rolling stock on the tracks. This paragraph reads, "Ninth: The Proprietor agrees to indemnify the Railroad Company for and hold it harmless from any claim or any expense arising from: ... (c) Any other loss, damage or injury to person or property on said private railroad or extension thereof, or the premises adjacent thereto, by reason of said tracks or the extension thereof, or the construction, maintenance and operation thereof, except such as arise solely from the gross negligence of the Railroad Company or its agents and servants." The language of the contract was not chosen with the greatest care. Several phrases, italicized for emphasis in the following quotations, are used, we think, with intent to refer interchangeably to the same think. The preamble, as we have seen, mentions "building an industrial track for the private use," "construction and operation of a railroad for private use," and "railroad for private use[1] ... operated by the Railway Company." In paragraph First we read: "the Railroad Company shall construct and when completed shall operate said industrial track ... and shall in the construction and operation of said railroad be subject and entitled...." In paragraph Third the proprietor appointed the railroad company "its sole agent to construct, complete and operate said private railroad and in such construction and operation to enter upon, use and operate the same with cars and engines for the transportation of freight, it being the intention 5 of this agreement to secure to the Railroad Company the control, subject to the terms of this indenture, of the maintenance and operation of said private railroad and of the right to lay tracks...." In paragraph Sixth "The Proprietor agrees to maintain and keep said private railroad in proper condition for the safe and efficient handling of cars thereon," "to pay all taxes and assessments on said private railroad and other property and rights in, on, or connected with said private railroad," and to pay a great variety of other expenses. In paragraph Twelfth, it is provided: "The Proprietor may after the private railroad has been constructed and is ready for operation, designate in writing some one to act as the agent of the Proprietor and of the subscribers to said private railroad, but such designation shall not relieve the Proprietor or the subscribers to said track of the duties and liabilities imposed by this agreement. This last reference to "subscribers to said track," we think, is particularly significant, and ends the contract on the same note with which the preamble began, "building an industrial track." We are of opinion that the indemnity in paragraph Ninth (c) against loss, damage or injury on "said private railroad ... by reason of said tracks ... or the construction, maintenance and operation thereof" is not confined to the metal tracks, but embraces the entire railroad operation. In other words, the indemnity covers negligence, but not gross negligence, in the railroad operation. Our opinion is not unfavorably affected by the fact that paragraph Ninth (a) indemnifies against loss by reason of the refusal of anyone to permit the removal of track metal or "by reason of any imperfection or invalidity in any franchise, license or permit relating to said track"; or that paragraph Ninth (b) indemnifies against any loss or damage by fire "whether caused by negligence of the Railroad Company or otherwise, communicated directly or indirectly by or from locomotive engines upon said private railroad" (italics supplied). We are aware that a contract will not be construed as indemnifying one against his own negligence or that of his employees unless express language unequivocally so requires. Boston & Maine R.R. 6 v. T. Stuart & Son Co. 236 Mass. 98, 104. Farrell v. Eastern Bridge & Structural Co. 291 Mass. 323. Laskowski v. Manning, 325 Mass. 393, 398-399. This test is met by the language of the contract excluding liability for gross negligence of the railroad company, which is a simultaneous inclusion of liability for ordinary negligence. Another objection made by the defendant is that the opinion in the Hoban case shows that the evidence of negligence which made a case for the jury was that the locomotive was standing on a public way without lights during the period from one half an hour after sunset to one half an hour before sunrise in violation of G.L. (Ter. Ed.) c. 85, § 15. The contention is that "the defendant is under no obligation to indemnify the plaintiff against the tort liability of the plaintiff having its genesis solely in a violation of law in circumstances where the defendant did not participate in any way in the wrong." We are referred to paragraph Seventh, which provides: "The Railroad Company agrees with the Proprietor that it will construct and complete as aforesaid said private railroad and will operate said private railroad in accordance with all laws existing or hereafter in force, and with all orders and directions of all public boards or tribunals now or from time to time hereafter having authority in the premises." It is argued that this provision must embrace G.L. (Ter. Ed.) c. 85, § 15. We note that the penalty for violation is "a fine of not more than five dollars." G.L. (Ter. Ed.) c. 85, § 17. It seems to us that paragraph Seventh is aimed broadly at method of operation, and is not meant to run counter in individual cases to the general effect of the later provisions of paragraph Ninth (c). By method of operation we have in mind, but not exclusively, the statutory provisions relating to railroads for private use. In 1915 the effective statute, St. 1906, c. 463, Part II, § 251, read, in part: "A person or corporation may construct a railroad for private use in the transportation of freight; but shall not take or use lands or other property therefor without the consent of the owner thereof. No such railroad shall be connected with the railroad *7 of another corporation without its consent; nor shall it be constructed across or upon a highway, town way or travelled place without the consent of the board of aldermen of the city or selectmen of the town, nor except in a place and manner approved by them. If the board of aldermen or selectmen consent, they shall from time to time make such regulations relative to motive power, rate of speed, and time and manner of using the railroad over and upon such way or travelled place, as in their judgment the public safety and convenience require, and they may order such changes to be made in the track as are rendered necessary by the alteration or repair of such way." As we read the contract, paragraph Seventh does not derogate from the coverage of paragraph Ninth (c) in those cases where negligence is based on a finding that there was a violation of some traffic or grade crossing law. In the Hoban case, as in the usual tort case, there was conflict in the testimony. It would not be a reasonable interpretation that the parties to this contract, which the preamble declares was entered into to achieve a desire of the proprietor and its associates, excluded from coverage one of the most frequent grounds of liability in railroad operation. In accordance with the terms of the report, judgment is to be entered for the plaintiff for the amount paid in satisfaction of the judgment in Hoban v. Trustees of N.Y., N.H. & H.R.R. 326 Mass. 566, together with interest from the date of payment. So ordered. NOTES [1] The construction of "a railroad for private use" in the transportation of freight is presently regulated by G.L.c. 160, § 245, as amended through St. 1941, c. 496, § 2, which springs from St. 1871, c. 232. It has existed in very much the same form down to the present time. St. 1874, c. 372, §§ 175, 176. Pub. Sts. c. 112, §§ 223, 224. R.L.c. 111, § 279. St. 1906, c. 463, Part II, §§ 251, 258.	10-30-2013	[ "340 Mass. 1 (1959) 162 N.E.2d 789 THE NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY vs. WALWORTH COMPANY. Supreme Judicial Court of Massachusetts, Suffolk. October 6, 1959. December 7, 1959. Present: WILKINS, C.J., RONAN, SPALDING, WILLIAMS, & WHITTEMORE, JJ. Noel W. Deering, for the plaintiff. Philander S. Ratzkoff, for the defendant. WILKINS, C.J. This action of contract upon the indemnity provisions of an agreement relating to a private railroad track for freight transportation has been reported without decision by a judge of the Superior Court. G.L. (Ter. Ed.) c. 231, § 111.", "The facts are agreed. The contract, dated August 16, 1915, between the plaintiff and Walworth Manufacturing Company, has become an obligation of the defendant. On April 9, 1945, a taxicab of one Hoban was in collision with a locomotive upon the private track. He brought an action of tort which resulted in a verdict, and later a judgment, in his favor against the trustees of the plaintiff.", "Hoban v. Trustees of N.Y., N.H. & H.R.R. 326 Mass. 566. The verdict was not based on gross negligence of the plaintiff or its trustees. The defendant refused to defend the action or to pay the judgment. Reorganization proceedings of the plaintiff terminated before execution issued, and the plaintiff was obliged to pay, and did pay, $14,865.65 in satisfaction of the judgment. 3 In the preamble of the contract the defendant's predecessor (Walworth) is referred to as \"Proprietor.\" The recitals are that Walworth \"and certain other individuals, firms and corporations located in the South Boston District ... are desirous of building an industrial track for the private use in the transportation of freight\" from the main line of the railroad; that \"the Proprietor has obtained the necessary statutory authority from all public boards and tribunals for the construction and operation of a railroad for private use in the transportation of freight across or upon C Street, West First Street and East First Street ... to connect the location and tracks of the Railroad Company with private tracks upon the property or properties of parties adjoining said streets\"; and that \"it is deemed for the best interests of all parties that said railroad for private use shall, when completed, be operated by the Railway Company.\"", "\"Contracts of indemnity are to be fairly and reasonably construed in order to ascertain the intention of the parties and to effectuate the purpose sought to be accomplished.\" Century Indem. Co. v. Bloom, 325 Mass. 52, 56, and cases cited. \"[W]e must construe the contract with reference to the situation of the parties when they made it and to the objects sought to be accomplished.\" Bryne v. Gloucester, 297 Mass. 156, 158. There is no general principle that contracts of indemnity are not favored in law, nor any such implication in Laskowski v. Manning, 325 Mass. 393, 398-399.", "The contract, read as a whole, expresses a desire on the part of the proprietor and its associates for the installation of a track and the operation of a freight railroad on public ways in Boston to connect with tracks on their respective properties. The installation and operation of a railroad on the public streets are patently a more dangerous undertaking than are the same activities on private property or on a railroad right of way. As the project was not within the field of the plaintiff's public duty (New York Cent. R.R. v. William Culkeen & Sons Co. 249 Mass.", "71, 75-76), the 4 plaintiff was able to install and operate the railroad on terms which in 1915 the proprietor, no doubt, readily signed. Now many years later, after this accident, the defendant has been able to discover and suggest reasons why the indemnity should not apply. One objection is that paragraph Ninth (c) covers only the maintenance and operation of tracks and has nothing to do with the operation of rolling stock on the tracks. This paragraph reads, \"Ninth: The Proprietor agrees to indemnify the Railroad Company for and hold it harmless from any claim or any expense arising from: ... (c) Any other loss, damage or injury to person or property on said private railroad or extension thereof, or the premises adjacent thereto, by reason of said tracks or the extension thereof, or the construction, maintenance and operation thereof, except such as arise solely from the gross negligence of the Railroad Company or its agents and servants.\" The language of the contract was not chosen with the greatest care. Several phrases, italicized for emphasis in the following quotations, are used, we think, with intent to refer interchangeably to the same think. The preamble, as we have seen, mentions \"building an industrial track for the private use,\" \"construction and operation of a railroad for private use,\" and \"railroad for private use[1] ... operated by the Railway Company.\"", "In paragraph First we read: \"the Railroad Company shall construct and when completed shall operate said industrial track ... and shall in the construction and operation of said railroad be subject and entitled....\" In paragraph Third the proprietor appointed the railroad company \"its sole agent to construct, complete and operate said private railroad and in such construction and operation to enter upon, use and operate the same with cars and engines for the transportation of freight, it being the intention 5 of this agreement to secure to the Railroad Company the control, subject to the terms of this indenture, of the maintenance and operation of said private railroad and of the right to lay tracks....\" In paragraph Sixth \"The Proprietor agrees to maintain and keep said private railroad in proper condition for the safe and efficient handling of cars thereon,\" \"to pay all taxes and assessments on said private railroad and other property and rights in, on, or connected with said private railroad,\" and to pay a great variety of other expenses.", "In paragraph Twelfth, it is provided: \"The Proprietor may after the private railroad has been constructed and is ready for operation, designate in writing some one to act as the agent of the Proprietor and of the subscribers to said private railroad, but such designation shall not relieve the Proprietor or the subscribers to said track of the duties and liabilities imposed by this agreement. This last reference to \"subscribers to said track,\" we think, is particularly significant, and ends the contract on the same note with which the preamble began, \"building an industrial track.\" We are of opinion that the indemnity in paragraph Ninth (c) against loss, damage or injury on \"said private railroad ... by reason of said tracks ... or the construction, maintenance and operation thereof\" is not confined to the metal tracks, but embraces the entire railroad operation.", "In other words, the indemnity covers negligence, but not gross negligence, in the railroad operation. Our opinion is not unfavorably affected by the fact that paragraph Ninth (a) indemnifies against loss by reason of the refusal of anyone to permit the removal of track metal or \"by reason of any imperfection or invalidity in any franchise, license or permit relating to said track\"; or that paragraph Ninth (b) indemnifies against any loss or damage by fire \"whether caused by negligence of the Railroad Company or otherwise, communicated directly or indirectly by or from locomotive engines upon said private railroad\" (italics supplied). We are aware that a contract will not be construed as indemnifying one against his own negligence or that of his employees unless express language unequivocally so requires. Boston & Maine R.R. 6 v. T. Stuart & Son Co. 236 Mass. 98, 104. Farrell v. Eastern Bridge & Structural Co. 291 Mass. 323.", "Laskowski v. Manning, 325 Mass. 393, 398-399. This test is met by the language of the contract excluding liability for gross negligence of the railroad company, which is a simultaneous inclusion of liability for ordinary negligence. Another objection made by the defendant is that the opinion in the Hoban case shows that the evidence of negligence which made a case for the jury was that the locomotive was standing on a public way without lights during the period from one half an hour after sunset to one half an hour before sunrise in violation of G.L. (Ter. Ed.)", "c. 85, § 15. The contention is that \"the defendant is under no obligation to indemnify the plaintiff against the tort liability of the plaintiff having its genesis solely in a violation of law in circumstances where the defendant did not participate in any way in the wrong.\" We are referred to paragraph Seventh, which provides: \"The Railroad Company agrees with the Proprietor that it will construct and complete as aforesaid said private railroad and will operate said private railroad in accordance with all laws existing or hereafter in force, and with all orders and directions of all public boards or tribunals now or from time to time hereafter having authority in the premises.\"", "It is argued that this provision must embrace G.L. (Ter. Ed.) c. 85, § 15. We note that the penalty for violation is \"a fine of not more than five dollars.\" G.L. (Ter. Ed.) c. 85, § 17. It seems to us that paragraph Seventh is aimed broadly at method of operation, and is not meant to run counter in individual cases to the general effect of the later provisions of paragraph Ninth (c). By method of operation we have in mind, but not exclusively, the statutory provisions relating to railroads for private use. In 1915 the effective statute, St. 1906, c. 463, Part II, § 251, read, in part: \"A person or corporation may construct a railroad for private use in the transportation of freight; but shall not take or use lands or other property therefor without the consent of the owner thereof.", "No such railroad shall be connected with the railroad *7 of another corporation without its consent; nor shall it be constructed across or upon a highway, town way or travelled place without the consent of the board of aldermen of the city or selectmen of the town, nor except in a place and manner approved by them. If the board of aldermen or selectmen consent, they shall from time to time make such regulations relative to motive power, rate of speed, and time and manner of using the railroad over and upon such way or travelled place, as in their judgment the public safety and convenience require, and they may order such changes to be made in the track as are rendered necessary by the alteration or repair of such way.\" As we read the contract, paragraph Seventh does not derogate from the coverage of paragraph Ninth (c) in those cases where negligence is based on a finding that there was a violation of some traffic or grade crossing law. In the Hoban case, as in the usual tort case, there was conflict in the testimony. It would not be a reasonable interpretation that the parties to this contract, which the preamble declares was entered into to achieve a desire of the proprietor and its associates, excluded from coverage one of the most frequent grounds of liability in railroad operation.", "In accordance with the terms of the report, judgment is to be entered for the plaintiff for the amount paid in satisfaction of the judgment in Hoban v. Trustees of N.Y., N.H. & H.R.R. 326 Mass. 566, together with interest from the date of payment. So ordered. NOTES [1] The construction of \"a railroad for private use\" in the transportation of freight is presently regulated by G.L.c. 160, § 245, as amended through St. 1941, c. 496, § 2, which springs from St. 1871, c. 232. It has existed in very much the same form down to the present time. St. 1874, c. 372, §§ 175, 176. Pub. Sts. c. 112, §§ 223, 224. R.L.c. 111, § 279.", "St. 1906, c. 463, Part II, §§ 251, 258." ]	https://www.courtlistener.com/api/rest/v3/opinions/2028053/	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
DETAILED ACTION Claims 1, 4-8, 10-14, 16-23, 25-27, 33-34, 36, 39-43 are pending, and are rejected. 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 § 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 33-34, 36, 42 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. For claim 33: The Specification has no mention of displaying a second map that represents at least the second area, wherein displaying the third indication comprises at For claim 34: The Specification has no mention of refraining from displaying, on the second map, a second icon associated with the second A/V device, the second location being located outside of the second area. For claim 36: The Specification has no mention of based at least in part on the selection, displaying a list of videos; generating third input data; and determining that the third input data corresponds to a selection associated with a video from list of videos, the video represented by the image data, and wherein displaying the one or more images represented by the image data is based at least in part on the selection associated with the video. It is not clear how the third input data corresponds to a selection associated with a video from list of videos, the video represented by the image data, and wherein displaying the one or more images represented by the image data is based at least in part on the selection associated with the video. For claim 42: The Specification has no mention of wherein the indication if a first indication, and wherein the method further comprises displaying, on the map, a second indication that the consent for sharing the image data has been received. 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 Claims 1, 11-14, 16, 26-27, 33-34, 39-43 are rejected under 35 U.S.C. § 103 as being un-patentable over U.S. Patent Application Publication Number 2012/0313755 attributed to Gutierrez et al. (hereafter referred to as Gutierrez) and U.S. Patent Number 6,658,091 attributed to Naidoo et al. (hereafter referred to as Naidoo. Regarding claim 1: Gutierrez discloses a method, comprising: displaying, on a display, a map of a first area [0047, figure 2]; displaying, on the map, a first indication of a first location associated with a first audio/video recording and communication device (A/V device) [0048, 0050, figure 3]; displaying, on the map, a second indication of a second location associated with a second A/V device [figure 3, 0048]; generating first input data [figure 3: clearly indicates generation of input data, 0050, figure 12-13]; determining based at least in part on the first input data, a second area on the map, the second area including the first location [figure 3, 0050, figure 12-13]; displaying a third indication that the first A/V device is located within the second area and generated image data [figure 3, figure 8]; generating second input data [figure 5: the user may select the camera at node P32 by clicking on the node in the map or by clicking on the camera name in the network control area 204 the screen 502 may pop up when the user hovers a "mouse" icon over a particular node. Also a video pop up screen 502 pop up showing a real-time video 510 or still image of the current video/image data generated by the camera along with header information 512, 0055, 0056]; determining that the second input data corresponds to a selection of the third indication [figure 5: the user may select the camera at node P32 by clicking on the node in the map or by clicking on the camera name in the network control area 204 the screen 502 0055, 0056, 0063]; andLee &Hayes2 of 17R140-0219US Serial No. 15/387,471displaying, on the display one or more images represented by the image data [510 of figure 5, 0055]; Gutierrez discloses several inputs as has been pointed out above; he does not detail on the number of inputs. Having the teachings of Gutierrez, one of ordinary skill can come up with their own choice on the number regarding the number of inputs; that’s merely a design/implementation detail. It would have been obvious to one of ordinary skill in the art, having the teachings of Gutierrez before him/her, before the effective filing date of the claimed invention to have specific number of inputs to accommodate some user who may prefer a certain number of inputs. Gutierrez does not disclose based at least in part on the selection, sending a request for consent for sharing the image data and based at least in part on the consent being received, receiving the image data from one or more computing devices. Naidoo discloses based at least in part on the selection, sending a request for consent for sharing the image data and based at least in part on the consent being received, receiving the image data from one or more computing devices [column 11, line 11-14]. It would have been obvious to one of ordinary skill in the art, having the teachings of Gutierrez and Naidoo before him/her, before the effective filing date of the claimed invention to incorporate Naidoo’s teachings of consent into Gutierrez to secure the image data. Regarding claim 12: The method of claim 1, further comprising displaying information associated with the image data, the information including at least one of the first location or a date and time that the image data was generated [Gutierrez: 0050, figure 3]. Regarding claim 13: The method of claim 1, wherein: displaying the third indication comprises at least displaying, on the display an icon associated with the image data; determining that the second input data corresponds to the selection of the third indication comprises determining that the third input data corresponds to a selection of the icon [Gutierrez: 0055]. Regarding claim 14: The method of claim 1 further comprising: displaying, an icon associated with the image data, generating third input data [Gutierrez: figure 5, figure 8, figure 12-13]; determining that the third input data corresponds to a selection of the icon [Gutierrez: figure 8]; and causing the image data to be associated with a group of videos [Gutierrez: figure 8]. For claim 33: The method of claim 1, wherein the map is a first map, and wherein the method further comprises: displaying a second map that represents at least the second area, wherein displaying the third indication comprises at least displaying, on the second map, a first icon that indicates that the first location associated with the first Lee&Hayes8 of 20R140-0219US Serial No. 15/387,471A/V device is located within the second area [Gutierrez: figure 2, figure 5]. For claim 39: The method of claim 1, further comprising displaying a fourth indication that the consent for sharing the image data has been received [Naidoo: column 11, line 11-14]. For claim 40: The first electronic device of claim 16, the more computer-readable media storing further instructions that, when executed by the one or more processors, cause the first electronic device to perform further operations comprising sending a request for the consent to receive the image data [Naidoo: column 11, line 11-14]. For claim 41: Gutierrez discloses a method comprising: receiving a first input indicating an area of interest [0047, 0048]; displaying, on a display, a map that includes the area of interest [figure 2-3]; displaying, on the map, an indication that an electronic device is located within the area of interest [figure 3, 0050]; receiving a second input associated with the electronic device [figure 5: the user may select the camera at node P32 by clicking on the node in the map or by clicking on the camera name]; based at least in part on receiving the second input, sending, to one or more computing devices, a request for image data generated by the electronic device [figure 5: the user may select the camera at node P32 by clicking on the node in the map or by clicking on the camera name in the network control area 204 the screen 502 may pop up when the user hovers a "mouse" icon over a particular node. Also a video pop up screen 502 pop up showing a real-time video 510 or still image of the current video/image data generated by the camera along with header information 512, 0055]; It would have been obvious to one of ordinary skill in the art, having the teachings of Gutierrez before him/her, before the effective filing date of the claimed invention to have specific number of inputs to accommodate some user who may prefer a certain number of inputs. Gutierrez does not disclose based at least in part on consent being received for sharing the image data, receiving the image data from one or more computing devices and displaying, on the display, one or more images represented by the image data. Naidoo discloses based at least in part on consent being received for sharing the image data, receiving the image data from one or more computing devices and displaying, on the display, one or more images represented by the image data [column 11, line 11-14]. It would have been obvious to one of ordinary skill in the art, having the teachings of Gutierrez and Naidoo before him/her, before the effective filing date of the claimed invention to incorporate Naidoo’s teachings of consent into Gutierrez to secure the image data. For claim 42: The method of claim 41, wherein the indication if a first indication, and wherein the method further comprises displaying, on the map, a second indication that the consent for sharing the image data has been received [Naidoo: column 11, line 11-14]. Claims 16, 26-27 are rejected using the same rationale as claims 1, 11-12 respectively. Claims 10, 17-18, 25, 36 are rejected under 35 U.S.C. § 103 as being unpatentable Gutierrez and Naidoo and U.S. Patent Application Publication Number 2009/0015672 attributed to Clapp et al. (hereafter referred to as Clapp). Regarding claim 10: Neither Gutierrez nor Naidoo discloses displaying a number that indicates a number of videos associated with the first A/V device. Clapp discloses displaying a number of videos associated with the first A/V device [0048, 410 of figure 4]. It would have been obvious to one of ordinary skill in the art, having the teachings of Gutierrez and Naidoo and Clapp before him/her, before the effective filing date of the claimed invention to incorporate Clapp’s teachings into Gutierrez and Naidoo and have displaying a number that indicates a number of videos associated with the first A/V device in order to provide more information which would add more value to the system. One of ordinary skill would do so to accommodate and satisfy a user who might be interested to know the number. For claim 17: The first electronic device of claim 16, wherein the location is a first location, and wherein the one or more computer-readable media storing store further instructions that, when executed by the one or more processors, cause the first electronic device to perform further operations comprising: generating third input data Neither Gutierrez nor Naidoo discloses displaying, on the map, a first icon associated with the second location, the first icon being a first type. Clapp discloses displaying, on the map, a first icon associated with the second location, the first icon being a first type [figure 4, 0047]. It would have been obvious to one of ordinary skill in the art, having the teachings of Gutierrez and Naidoo and Clapp before him/her, before the effective filing date of the claimed invention to incorporate icon as taught by Clapp into Gutierrez and Naidoo to distinguish location. One of ordinary skill in art would do so because Gutierrez already discloses that map can display different icon symbols [0047, figure 3]. Lee &Hayes5 of 19R140-0219USSerial No. 15/387,471For claim 18: The first electronic device of claim 17, wherein the first indication includes a second icon of a second type that is different than the first type [Clapp: figure 4, 0047]. For claim 36: The method of claim 1, further comprising: based at least in part on the selection, displaying a list of videos [Clapp: 410 of figure 4]; generating third input data [Clapp: 0048]; and determining that the third input data corresponds to a selection associated with a video from list of videos, the video represented by the image data, and wherein displaying the one or more images represented by the image data is based at least in part on the selection associated with the video [Clapp: 0048, 410 of figure 4]. Claim 25 is rejected using the same rationale as claim 10. s 4-5, 8, 19-20, 23 are rejected under 35 U.S.C. § 103 as being un-patentable over Gutierrez and Naidoo and U.S. Patent Application Publication Number 2009/0322874 attributed to Knutson et al. (hereafter referred to as Knutson). Regarding claim 4: Gutierrez discloses generating third input data [figure 12-13]. Neither Gutierrez nor Naidoo discloses determining based at least in part on the third input data, a range of at least one of a date or a time. Knutson discloses determining based at least in part on the third input data, a range of at least one of a date or a time [Knutson: 390 of figure 7J]. It would have been obvious to one of ordinary skill in the art, having the teachings of Gutierrez and Naidoo and Knutson before him/her, before the effective filing date of the claimed invention to incorporate the teachings of Knutson regarding date/time into Gutierrez and Naidoo in order to get information targeted on a specific time. Regarding claim 5: The method of claim 4, further comprising: determining an additional time that the first A/V device generated the image data; and determining that the additional time satisfies the range [Knutson: 394 of figure 7K]. Regarding claim 8: The method of claim 1, further comprising generating third input data [Knutson: figure 7A]; determining, based at least in part on the third input data, at least one of a case number or an incident number [Knutson: 306 of figure 7A]. Claims 19-20, 23 are rejected using the same rationale as claims 4-5, 8 respectively. s 6-7, 21-22 are rejected under 35 U.S.C. § 103 as being un-patentable over Gutierrez and Naidoo and U.S. Patent Application Publication Number 2004/0006425 attributed to Wood et al. (hereafter referred to as Wood). Regarding claim 6: Neither Gutierrez nor Naidoo discloses displaying, on the map, a polygon representing the second area. Wood discloses displaying, on the map, a polygon representing the second area [Wood: 0030, figure 4, user may define a polygon representing the area of interest on display]. It would have been obvious to one of ordinary skill in the art, having the teachings of Gutierrez and Naidoo and Wood before him/her, before the effective filing date of the claimed invention to incorporate a polygon as taught by Wood into Gutierrez and Naidoo to accommodate the user who may prefer to draw a polygon on the map, the polygon representing the second area. Regarding claim 7: The method of claim 1, further comprising displaying, on the map, a radius representing the second area [Wood: 0030, figure 4]. Claims 21-22 are rejected using the same rationale as claims 6-7 respectively. Double Patenting The non-statutory 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 time wise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A non-statutory 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 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); 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 non-statutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP §§ 706.02(l)(1) - 706.02(l)(3) for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b). The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp. Claims 1, 16, 41 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims of U.S. Patent No. 10,650,247 and further in view of Gutierrez. Although the claims at issue are not identical, they are not patentably distinct from each other. For independent claim 1, 41: Claim 1 of U.S. Patent No. 10,650,247 is written in media form whereas claims 1, 41 of the instant application are written in method form. Although the claims at issue are not identical, they are not patentably distinct from each other. Claim 1 of U.S. Patent No. 10,650,247 is narrower than the claims 1, 41 of the instant application. Claim 1 of U.S. Patent No. 10,650,247 does not expressively For independent claim 16: Claim 1 of U.S. Patent No. 10,650,247 is written in media form whereas claim 16 of the instant application is written in product form. Although the claims at issue are not identical, they are not patentably distinct from each other. Claim 1 of U.S. Patent No. 10,650,247 is narrower than the claim 16 of the instant application. Claim 1 of U.S. Patent No. 10,650,247 does not expressively mention graphical user interface. Gutierrez discloses graphical user interface at least in figure 5. It would have been obvious to one of ordinary skill in the art to incorporate the well-known graphical user interface to take the advantage of the ease of use of such interface. Response to Arguments For 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph rejection of claims: For claims 33, 34: The applicant explains as below: Paragraphs [00104]-[00107] describe that the map illustrated in Figure 4 may include a different map than the map illustrated in Figure 3. As such, Applicant respectfully submits that there is sufficient written description for the “second map” recited by claims 33 and 34. But figure 3 and figure 4 appear to be same map and the above mentioned paragraphs are silent on a second map as described by the claim language. Furthermore, Applicant respectfully submits that support for claim 36 can also be found at least in Figure 4 and paragraphs [00104]-[00107] of the application. More specifically, the GUI 400 of Figure 4 includes icons 404(200) indicating the number of videos and a list of videos 432 that meet the requester’s criteria. As such, Applicant respectfully submits that there is sufficient written description for the “list of videos” recited by claim 36. The GUI 400 of Figure 4 may include icons 404 (200) indicating the number of videos and a list of videos 432 but it is not clear how the third input data corresponds to a selection associated with a video from list of videos, the video represented by the image data, and wherein displaying the one or more images represented by the image data is based at least in part on the selection associated with the video. For claim 42: This newly added claim has no support in the specification. For Double Patenting Rejection: Rejection has been updated. Applicant has requested that the provisional double patenting rejections be held in abeyance until all other grounds of rejections are resolved. For 35 U.S.C. §103 rejection: The applicant does not mention which paragraph and/or figure in the originally filed application support the claim amendments. Applicant's arguments filed have been fully considered but they are not persuasive. The applicant reproduces claim 1 language and makes statements as below: Gutierrez does not teach or suggest at least, “determining that the second input data corresponds to a selection of the third indication; based at least in part on the selection, sending a request for consent for sharing the image data; [and] based at least in part on the consent being received, receiving the image data from one or more computing devices,” as amended claim 1 recites. In the rejection of claim 1 before the present amendments, the Office cites Gutierrez, paragraphs [0055], [0056], and [0062] as allegedly teaching “determining that the third input data corresponds to a selection of the third indication; and displaying, on the display, one or more images represented by the image data.” Office Action, p. 5. However, in the rejection of previously presented claim 37, the Office acknowledges that Gutierrez does not teach or suggest “displaying the third indication further indicates that consent has been provided for sharing the image data.” Id., p. 10. The applicant then reproduces Gutierrez and makes the statement below: As shown, Gutierrez describes that a user may select a camera, which then causes a video pop up screen to show a real-time video or still image generated by the camera. Id. Gutierrez does not teach or suggest that, when the user selects the camera, a “request for consent for sharing” the real-time video or still image is sent. Additionally, Gutierrez does not teach or suggest that the device receives the real-time video or still image based on “consent being received.” For instance, Gutierrez does not teach or suggest any type of “consent” for sharing the real-time video or still image. Consequently, Gutierrez does not teach or suggest “determining that the second input data corresponds to a selection of the third indication; based at least in part on the selection, sending a request for consent for sharing the image data; [and] based at least in part on the consent being received, receiving the image data from one or more computing devices,” as amended claim 1 recites. Additionally, in the rejection of previously presented claim 37, the Office cites US Patent No. 6,658,091 to Naidoo, et al. (hereinafter, “Naidoo”), column 11 as allegedly teaching, “displaying the third indication further indicates that consent has been provided for sharing the image data.” Office Action, p. 10. However, Naidoo states: When a guest user performs lifestyle monitoring, the guest user will have limited access to security system 100. Thus, guest users may not have full access to all cameras 112 and all audio stations 107 at all times. For example, remote user 152 may be able to access video from a camera 112 in a kitchen twenty-four hours a day, but may never be able to monitor audio or video from a bedroom. As another example, remote user 152 may be given permission to view video from several cameras 112 on a particular day, but only on that particular day. Remote user 152 may also be given permission to only access certain audio stations 107. Naidoo, col. 11,11. 5-15. As shown, Naidoo describes providing a remote user with access to video from a camera. Id. Naidoo does not teach or suggest that, when the remote user selects the camera, a “request for consent for sharing” video is sent. Consequently, the combination of Gutierrez and Naidoo does not teach or suggest “determining that the second input data corresponds to a selection of the third indication; based at least in part on the selection, sending a request for consent for sharing the image data; [and] based at least in part on the consent being received, receiving the image data from one or more computing devices,” as amended claim 1 recites. When a guest user performs lifestyle monitoring, the guest user will have limited access to security system 100. Thus, guest users may not have full access to all cameras 112 and all audio stations 107 at all times. For example, remote user 152 may be able to access video from a camera 112 in a kitchen twenty-four hours a day, but may never be able to monitor audio or video from a bedroom. As another example, remote user 152 may be given permission to view video from several cameras 112 on a particular day, but only on that particular day. Remote user 152 may also be given permission to only access certain audio stations 107. In other words, there is no sharing unless the request for consent for sharing is successful. There is no other new line of arguments. Conclusion Examiner has pointed out particular references contained in the prior arts of record in the body of this action for the convenience of the applicant. Although the specified citations are representative of the teachings in the art and are applied to the specific limitations within the individual claim, other passages and Figures may apply as well. It is respectfully requested from the applicant, in preparing the response, to consider fully the entire references as potentially teaching all or part of the claimed invention, as well as the context of the passage as taught by the prior arts or disclosed by the examiner. Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANITA D CHAUDHURI whose telephone number is (571)272-1427. The examiner can normally be reached on Mon-Wed 7-4 ET (1st week of the bi-week) and Mon-Tue 7-4 ET (2nd week of the bi-week). If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Kieu Vu can be reached at 571 272 4057. 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). /Anita D. Chaudhuri/ Examiner, Art Unit 2173 /KIEU D VU/Supervisory Patent Examiner, Art Unit 2173	2021-05-14T05:46:37	[ "DETAILED ACTION Claims 1, 4-8, 10-14, 16-23, 25-27, 33-34, 36, 39-43 are pending, and are rejected. 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 § 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 33-34, 36, 42 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. For claim 33: The Specification has no mention of displaying a second map that represents at least the second area, wherein displaying the third indication comprises at For claim 34: The Specification has no mention of refraining from displaying, on the second map, a second icon associated with the second A/V device, the second location being located outside of the second area.", "For claim 36: The Specification has no mention of based at least in part on the selection, displaying a list of videos; generating third input data; and determining that the third input data corresponds to a selection associated with a video from list of videos, the video represented by the image data, and wherein displaying the one or more images represented by the image data is based at least in part on the selection associated with the video. It is not clear how the third input data corresponds to a selection associated with a video from list of videos, the video represented by the image data, and wherein displaying the one or more images represented by the image data is based at least in part on the selection associated with the video. For claim 42: The Specification has no mention of wherein the indication if a first indication, and wherein the method further comprises displaying, on the map, a second indication that the consent for sharing the image data has been received.", "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 Claims 1, 11-14, 16, 26-27, 33-34, 39-43 are rejected under 35 U.S.C. § 103 as being un-patentable over U.S. Patent Application Publication Number 2012/0313755 attributed to Gutierrez et al. (hereafter referred to as Gutierrez) and U.S. Patent Number 6,658,091 attributed to Naidoo et al. (hereafter referred to as Naidoo. Regarding claim 1: Gutierrez discloses a method, comprising: displaying, on a display, a map of a first area [0047, figure 2]; displaying, on the map, a first indication of a first location associated with a first audio/video recording and communication device (A/V device) [0048, 0050, figure 3]; displaying, on the map, a second indication of a second location associated with a second A/V device [figure 3, 0048]; generating first input data [figure 3: clearly indicates generation of input data, 0050, figure 12-13]; determining based at least in part on the first input data, a second area on the map, the second area including the first location [figure 3, 0050, figure 12-13]; displaying a third indication that the first A/V device is located within the second area and generated image data [figure 3, figure 8]; generating second input data [figure 5: the user may select the camera at node P32 by clicking on the node in the map or by clicking on the camera name in the network control area 204 the screen 502 may pop up when the user hovers a \"mouse\" icon over a particular node.", "Also a video pop up screen 502 pop up showing a real-time video 510 or still image of the current video/image data generated by the camera along with header information 512, 0055, 0056]; determining that the second input data corresponds to a selection of the third indication [figure 5: the user may select the camera at node P32 by clicking on the node in the map or by clicking on the camera name in the network control area 204 the screen 502 0055, 0056, 0063]; andLee &Hayes2 of 17R140-0219US Serial No. 15/387,471displaying, on the display one or more images represented by the image data [510 of figure 5, 0055]; Gutierrez discloses several inputs as has been pointed out above; he does not detail on the number of inputs.", "Having the teachings of Gutierrez, one of ordinary skill can come up with their own choice on the number regarding the number of inputs; that’s merely a design/implementation detail. It would have been obvious to one of ordinary skill in the art, having the teachings of Gutierrez before him/her, before the effective filing date of the claimed invention to have specific number of inputs to accommodate some user who may prefer a certain number of inputs. Gutierrez does not disclose based at least in part on the selection, sending a request for consent for sharing the image data and based at least in part on the consent being received, receiving the image data from one or more computing devices. Naidoo discloses based at least in part on the selection, sending a request for consent for sharing the image data and based at least in part on the consent being received, receiving the image data from one or more computing devices [column 11, line 11-14]. It would have been obvious to one of ordinary skill in the art, having the teachings of Gutierrez and Naidoo before him/her, before the effective filing date of the claimed invention to incorporate Naidoo’s teachings of consent into Gutierrez to secure the image data.", "Regarding claim 12: The method of claim 1, further comprising displaying information associated with the image data, the information including at least one of the first location or a date and time that the image data was generated [Gutierrez: 0050, figure 3]. Regarding claim 13: The method of claim 1, wherein: displaying the third indication comprises at least displaying, on the display an icon associated with the image data; determining that the second input data corresponds to the selection of the third indication comprises determining that the third input data corresponds to a selection of the icon [Gutierrez: 0055].", "Regarding claim 14: The method of claim 1 further comprising: displaying, an icon associated with the image data, generating third input data [Gutierrez: figure 5, figure 8, figure 12-13]; determining that the third input data corresponds to a selection of the icon [Gutierrez: figure 8]; and causing the image data to be associated with a group of videos [Gutierrez: figure 8]. For claim 33: The method of claim 1, wherein the map is a first map, and wherein the method further comprises: displaying a second map that represents at least the second area, wherein displaying the third indication comprises at least displaying, on the second map, a first icon that indicates that the first location associated with the first Lee&Hayes8 of 20R140-0219US Serial No. 15/387,471A/V device is located within the second area [Gutierrez: figure 2, figure 5]. For claim 39: The method of claim 1, further comprising displaying a fourth indication that the consent for sharing the image data has been received [Naidoo: column 11, line 11-14].", "For claim 40: The first electronic device of claim 16, the more computer-readable media storing further instructions that, when executed by the one or more processors, cause the first electronic device to perform further operations comprising sending a request for the consent to receive the image data [Naidoo: column 11, line 11-14]. For claim 41: Gutierrez discloses a method comprising: receiving a first input indicating an area of interest [0047, 0048]; displaying, on a display, a map that includes the area of interest [figure 2-3]; displaying, on the map, an indication that an electronic device is located within the area of interest [figure 3, 0050]; receiving a second input associated with the electronic device [figure 5: the user may select the camera at node P32 by clicking on the node in the map or by clicking on the camera name]; based at least in part on receiving the second input, sending, to one or more computing devices, a request for image data generated by the electronic device [figure 5: the user may select the camera at node P32 by clicking on the node in the map or by clicking on the camera name in the network control area 204 the screen 502 may pop up when the user hovers a \"mouse\" icon over a particular node.", "Also a video pop up screen 502 pop up showing a real-time video 510 or still image of the current video/image data generated by the camera along with header information 512, 0055]; It would have been obvious to one of ordinary skill in the art, having the teachings of Gutierrez before him/her, before the effective filing date of the claimed invention to have specific number of inputs to accommodate some user who may prefer a certain number of inputs. Gutierrez does not disclose based at least in part on consent being received for sharing the image data, receiving the image data from one or more computing devices and displaying, on the display, one or more images represented by the image data. Naidoo discloses based at least in part on consent being received for sharing the image data, receiving the image data from one or more computing devices and displaying, on the display, one or more images represented by the image data [column 11, line 11-14].", "It would have been obvious to one of ordinary skill in the art, having the teachings of Gutierrez and Naidoo before him/her, before the effective filing date of the claimed invention to incorporate Naidoo’s teachings of consent into Gutierrez to secure the image data. For claim 42: The method of claim 41, wherein the indication if a first indication, and wherein the method further comprises displaying, on the map, a second indication that the consent for sharing the image data has been received [Naidoo: column 11, line 11-14]. Claims 16, 26-27 are rejected using the same rationale as claims 1, 11-12 respectively. Claims 10, 17-18, 25, 36 are rejected under 35 U.S.C. § 103 as being unpatentable Gutierrez and Naidoo and U.S. Patent Application Publication Number 2009/0015672 attributed to Clapp et al. (hereafter referred to as Clapp).", "Regarding claim 10: Neither Gutierrez nor Naidoo discloses displaying a number that indicates a number of videos associated with the first A/V device. Clapp discloses displaying a number of videos associated with the first A/V device [0048, 410 of figure 4]. It would have been obvious to one of ordinary skill in the art, having the teachings of Gutierrez and Naidoo and Clapp before him/her, before the effective filing date of the claimed invention to incorporate Clapp’s teachings into Gutierrez and Naidoo and have displaying a number that indicates a number of videos associated with the first A/V device in order to provide more information which would add more value to the system.", "One of ordinary skill would do so to accommodate and satisfy a user who might be interested to know the number. For claim 17: The first electronic device of claim 16, wherein the location is a first location, and wherein the one or more computer-readable media storing store further instructions that, when executed by the one or more processors, cause the first electronic device to perform further operations comprising: generating third input data Neither Gutierrez nor Naidoo discloses displaying, on the map, a first icon associated with the second location, the first icon being a first type. Clapp discloses displaying, on the map, a first icon associated with the second location, the first icon being a first type [figure 4, 0047].", "It would have been obvious to one of ordinary skill in the art, having the teachings of Gutierrez and Naidoo and Clapp before him/her, before the effective filing date of the claimed invention to incorporate icon as taught by Clapp into Gutierrez and Naidoo to distinguish location. One of ordinary skill in art would do so because Gutierrez already discloses that map can display different icon symbols [0047, figure 3]. Lee &Hayes5 of 19R140-0219USSerial No. 15/387,471For claim 18: The first electronic device of claim 17, wherein the first indication includes a second icon of a second type that is different than the first type [Clapp: figure 4, 0047]. For claim 36: The method of claim 1, further comprising: based at least in part on the selection, displaying a list of videos [Clapp: 410 of figure 4]; generating third input data [Clapp: 0048]; and determining that the third input data corresponds to a selection associated with a video from list of videos, the video represented by the image data, and wherein displaying the one or more images represented by the image data is based at least in part on the selection associated with the video [Clapp: 0048, 410 of figure 4].", "Claim 25 is rejected using the same rationale as claim 10. s 4-5, 8, 19-20, 23 are rejected under 35 U.S.C. § 103 as being un-patentable over Gutierrez and Naidoo and U.S. Patent Application Publication Number 2009/0322874 attributed to Knutson et al. (hereafter referred to as Knutson). Regarding claim 4: Gutierrez discloses generating third input data [figure 12-13]. Neither Gutierrez nor Naidoo discloses determining based at least in part on the third input data, a range of at least one of a date or a time. Knutson discloses determining based at least in part on the third input data, a range of at least one of a date or a time [Knutson: 390 of figure 7J]. It would have been obvious to one of ordinary skill in the art, having the teachings of Gutierrez and Naidoo and Knutson before him/her, before the effective filing date of the claimed invention to incorporate the teachings of Knutson regarding date/time into Gutierrez and Naidoo in order to get information targeted on a specific time. Regarding claim 5: The method of claim 4, further comprising: determining an additional time that the first A/V device generated the image data; and determining that the additional time satisfies the range [Knutson: 394 of figure 7K]. Regarding claim 8: The method of claim 1, further comprising generating third input data [Knutson: figure 7A]; determining, based at least in part on the third input data, at least one of a case number or an incident number [Knutson: 306 of figure 7A]. Claims 19-20, 23 are rejected using the same rationale as claims 4-5, 8 respectively.", "s 6-7, 21-22 are rejected under 35 U.S.C. § 103 as being un-patentable over Gutierrez and Naidoo and U.S. Patent Application Publication Number 2004/0006425 attributed to Wood et al. (hereafter referred to as Wood). Regarding claim 6: Neither Gutierrez nor Naidoo discloses displaying, on the map, a polygon representing the second area. Wood discloses displaying, on the map, a polygon representing the second area [Wood: 0030, figure 4, user may define a polygon representing the area of interest on display]. It would have been obvious to one of ordinary skill in the art, having the teachings of Gutierrez and Naidoo and Wood before him/her, before the effective filing date of the claimed invention to incorporate a polygon as taught by Wood into Gutierrez and Naidoo to accommodate the user who may prefer to draw a polygon on the map, the polygon representing the second area. Regarding claim 7: The method of claim 1, further comprising displaying, on the map, a radius representing the second area [Wood: 0030, figure 4]. Claims 21-22 are rejected using the same rationale as claims 6-7 respectively. Double Patenting The non-statutory 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 time wise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A non-statutory 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 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); 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 non-statutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement.", "See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP §§ 706.02(l)(1) - 706.02(l)(3) for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b). The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used.", "A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp. Claims 1, 16, 41 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims of U.S. Patent No. 10,650,247 and further in view of Gutierrez. Although the claims at issue are not identical, they are not patentably distinct from each other. For independent claim 1, 41: Claim 1 of U.S. Patent No.", "10,650,247 is written in media form whereas claims 1, 41 of the instant application are written in method form. Although the claims at issue are not identical, they are not patentably distinct from each other. Claim 1 of U.S. Patent No. 10,650,247 is narrower than the claims 1, 41 of the instant application. Claim 1 of U.S. Patent No. 10,650,247 does not expressively For independent claim 16: Claim 1 of U.S. Patent No. 10,650,247 is written in media form whereas claim 16 of the instant application is written in product form. Although the claims at issue are not identical, they are not patentably distinct from each other. Claim 1 of U.S. Patent No. 10,650,247 is narrower than the claim 16 of the instant application. Claim 1 of U.S. Patent No. 10,650,247 does not expressively mention graphical user interface.", "Gutierrez discloses graphical user interface at least in figure 5. It would have been obvious to one of ordinary skill in the art to incorporate the well-known graphical user interface to take the advantage of the ease of use of such interface. Response to Arguments For 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph rejection of claims: For claims 33, 34: The applicant explains as below: Paragraphs [00104]-[00107] describe that the map illustrated in Figure 4 may include a different map than the map illustrated in Figure 3. As such, Applicant respectfully submits that there is sufficient written description for the “second map” recited by claims 33 and 34. But figure 3 and figure 4 appear to be same map and the above mentioned paragraphs are silent on a second map as described by the claim language. Furthermore, Applicant respectfully submits that support for claim 36 can also be found at least in Figure 4 and paragraphs [00104]-[00107] of the application. More specifically, the GUI 400 of Figure 4 includes icons 404(200) indicating the number of videos and a list of videos 432 that meet the requester’s criteria.", "As such, Applicant respectfully submits that there is sufficient written description for the “list of videos” recited by claim 36. The GUI 400 of Figure 4 may include icons 404 (200) indicating the number of videos and a list of videos 432 but it is not clear how the third input data corresponds to a selection associated with a video from list of videos, the video represented by the image data, and wherein displaying the one or more images represented by the image data is based at least in part on the selection associated with the video. For claim 42: This newly added claim has no support in the specification. For Double Patenting Rejection: Rejection has been updated. Applicant has requested that the provisional double patenting rejections be held in abeyance until all other grounds of rejections are resolved. For 35 U.S.C.", "§103 rejection: The applicant does not mention which paragraph and/or figure in the originally filed application support the claim amendments. Applicant's arguments filed have been fully considered but they are not persuasive. The applicant reproduces claim 1 language and makes statements as below: Gutierrez does not teach or suggest at least, “determining that the second input data corresponds to a selection of the third indication; based at least in part on the selection, sending a request for consent for sharing the image data; [and] based at least in part on the consent being received, receiving the image data from one or more computing devices,” as amended claim 1 recites. In the rejection of claim 1 before the present amendments, the Office cites Gutierrez, paragraphs [0055], [0056], and [0062] as allegedly teaching “determining that the third input data corresponds to a selection of the third indication; and displaying, on the display, one or more images represented by the image data.” Office Action, p. 5. However, in the rejection of previously presented claim 37, the Office acknowledges that Gutierrez does not teach or suggest “displaying the third indication further indicates that consent has been provided for sharing the image data.” Id., p. 10. The applicant then reproduces Gutierrez and makes the statement below: As shown, Gutierrez describes that a user may select a camera, which then causes a video pop up screen to show a real-time video or still image generated by the camera.", "Id. Gutierrez does not teach or suggest that, when the user selects the camera, a “request for consent for sharing” the real-time video or still image is sent. Additionally, Gutierrez does not teach or suggest that the device receives the real-time video or still image based on “consent being received.” For instance, Gutierrez does not teach or suggest any type of “consent” for sharing the real-time video or still image. Consequently, Gutierrez does not teach or suggest “determining that the second input data corresponds to a selection of the third indication; based at least in part on the selection, sending a request for consent for sharing the image data; [and] based at least in part on the consent being received, receiving the image data from one or more computing devices,” as amended claim 1 recites. Additionally, in the rejection of previously presented claim 37, the Office cites US Patent No. 6,658,091 to Naidoo, et al.", "(hereinafter, “Naidoo”), column 11 as allegedly teaching, “displaying the third indication further indicates that consent has been provided for sharing the image data.” Office Action, p. 10. However, Naidoo states: When a guest user performs lifestyle monitoring, the guest user will have limited access to security system 100. Thus, guest users may not have full access to all cameras 112 and all audio stations 107 at all times. For example, remote user 152 may be able to access video from a camera 112 in a kitchen twenty-four hours a day, but may never be able to monitor audio or video from a bedroom. As another example, remote user 152 may be given permission to view video from several cameras 112 on a particular day, but only on that particular day. Remote user 152 may also be given permission to only access certain audio stations 107. Naidoo, col. 11,11. 5-15. As shown, Naidoo describes providing a remote user with access to video from a camera. Id.", "Naidoo does not teach or suggest that, when the remote user selects the camera, a “request for consent for sharing” video is sent. Consequently, the combination of Gutierrez and Naidoo does not teach or suggest “determining that the second input data corresponds to a selection of the third indication; based at least in part on the selection, sending a request for consent for sharing the image data; [and] based at least in part on the consent being received, receiving the image data from one or more computing devices,” as amended claim 1 recites. When a guest user performs lifestyle monitoring, the guest user will have limited access to security system 100. Thus, guest users may not have full access to all cameras 112 and all audio stations 107 at all times. For example, remote user 152 may be able to access video from a camera 112 in a kitchen twenty-four hours a day, but may never be able to monitor audio or video from a bedroom. As another example, remote user 152 may be given permission to view video from several cameras 112 on a particular day, but only on that particular day. Remote user 152 may also be given permission to only access certain audio stations 107. In other words, there is no sharing unless the request for consent for sharing is successful. There is no other new line of arguments. Conclusion Examiner has pointed out particular references contained in the prior arts of record in the body of this action for the convenience of the applicant.", "Although the specified citations are representative of the teachings in the art and are applied to the specific limitations within the individual claim, other passages and Figures may apply as well. It is respectfully requested from the applicant, in preparing the response, to consider fully the entire references as potentially teaching all or part of the claimed invention, as well as the context of the passage as taught by the prior arts or disclosed by the examiner. Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANITA D CHAUDHURI whose telephone number is (571)272-1427. The examiner can normally be reached on Mon-Wed 7-4 ET (1st week of the bi-week) and Mon-Tue 7-4 ET (2nd week of the bi-week).", "If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Kieu Vu can be reached at 571 272 4057. 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). /Anita D. Chaudhuri/ Examiner, Art Unit 2173 /KIEU D VU/Supervisory Patent Examiner, Art Unit 2173" ]	https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-05-16.zip	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
CONNELL, Chief Judge. The Statement of Facts, as found on Pages 1 and part of 2 in the Defense Brief, is so well put, and so eminently fair from the viewpoint of both sides, that I will adopt it as a preliminary statement to what I will here find. It reads as follows, and we quote it: “In 1949 defendant, National Castings Company adopted a general pension plan for salaried employees. The plan, which specifically provided that it could be later amended by the directors, was approved by the shareholders. In 1956 the directors, pursuant to the powers granted in 452the original plan and pursuant to the newly enacted Section 1701.60 of the Ohio Revised Code enacted a comprehensive amendment to the plan which inter alia (a) reduced the age of eligibility from age 30 to 25, (b) reduced the service requirement from 5 years to 2 years, (c) increased the benefit rate on service before entry into plan membership from %% to %%, (d) increased the benefit rate for membership service before 1957 from 1% to 14% and (e) changed the benefit rate for membership service after 1956 from 1% on all earnings on which a member contributed to 1% on earnings up to $4,200 during a year and 1%% on earnings over $4,200 during a year and discontinued employee contributions on the first $4,200 of earnings in a year. The result was a general across-the-board increase of pension benefits from the old level established back in 1949. The amendment made no distinction between those employees over 65, those employees under 65 and retired employees. The amended plan was approved by the Commissioner of Internal Revenue as a qualified plan under Section 401 of the Internal Revenue Code of 1954, 26 U.S.C.A. §. 401, pursuant to which the Company deducts all payments to the Trustee as business expenses. Such approval was based on a finding by the Commissioner that the plan and amendments were, inter alia, benefiting at least 70 per cent of all employees and not discriminatory in ■ favor of employees who are officers, shareholders, persons .whose principal duties consist in supervising the work oi other employees, or highly compensated employees. “Plaintiff’s Amended Complaint now attacks the fact that the Company did not so distinguish and claims that the higher payments resulting from the 1956 amendment to those employees who were over 65 or already retired when the amendment was adopted should be stopped and' that in the case of defendant Pomeroy such payments should be recovered.' Plaintiff claims that such payments are' an ‘unreasonable gift of corporate funds, and an unreasonable waste and spoliation of corporate funds, and a heavy burden and expense to the corporation without reasonable or adequate consideration.’ ” For the purpose of our discussion, may I first cite the pensions of the three highest officers of this company, and how their three pensions were changed by the 1956 amendment here in question. Mr. Pomeroy’s pension as of December, ’49, was $9,630.51. The 1956 amendment made it $21,436.50. He was, as we all know, the President. Vice President Moriarty, for 1949, was to receive a pension of $10,821. Under the 1956 amendment, Mr. Moriarty’s pension was jumped to $21,535. Mr. Wasson, another Vice President, was likewise jumped from $8,422 to $17,-474. All three were, therefore, approximately doubled by this amendment which is here in question. The focal point of Plaintiff’s attack herein is the pension of Mr. Pomeroy, to which we will confine whatever we hereafter say and find. This is not just a legal battle between these two men, nor is it a personal fight between the shareholder and the President. This is an attack on a pension system in which the ex-president’s pension has become the point of attack. Plaintiff’s Complaint is that a pension system, which was adopted in 1949 with the shareholders’ approval, was amended in 1956 without their approval and, for that reason, is contrary to law. I find that the 1956 plan was adopted as the result of much study — as has been shown by the evidence in the case — and that the United States Government Department which was involved, namely, the Internal Revenue Service, approved it. The money in the fund, to a great extent, comes in indirectly as an income tax deduction. This, indirectly, permits a company to retain more earnings if it will give them back to its employees under the form of a pension plan. The plan herein adopted was the result of quite a study by Mr. Field, Vice 453President, who testified concerning such plan. The plan had to do justice to a large number of superannuated employees to get the Government’s approval. It had to do justice to all employees. It had to do justice to those employees who were not organized in the unionized sense, and it had to give comparable benefits to employees not organized. It would be obviously unfair if only the organized employees received such benefits, or so we believe the Legislature of Ohio believed when it enacted the statute here involved. The Internal Revenue Service, as we have said, has approved the plan. The plan must apply to 70% to qualify, and no partiality may be given to those highest paid. These and other conditions must obtain, such as having to do with those eligible, how the funds shall be raised, the minimum annual amount necessarily to be paid in, and the deduction for past service. All of the required conditions were here met, to the satisfaction of the Internal Revenue Service. All salaried personnel were covered, both unionized and not unionized. This company had to follow the type of plans followed within its industry. For four plants, they dealt with one union; and for another plant, they dealt with a separate union. These two different unions followed two different plans, and the salaried employees followed another— such a plan as was being utilized in similar plants in other industries. The changes taking place throughout the country, both in pension systems and in the liberalization of pension rights, seem to require constant study of such frequent and constant evolution. Disparities in pension rights for salaried employees, and those on an hourly wage, require frequent adjustment. Living costs necessitate further adjustment. It appears that the study of pension inequities and the desirability of pension equities amounts to a new science, in which executives are now required to make detailed studies formerly limited to those who were skilled social workers, arithmeticians and actuaries. The evidence before us indicates that pension plans are now evolved by corporations on a basis of scientific study of many factors, including what happens to employees and their needs, even during the period when they are on a pension. As a result of much research and study and consideration of the company’s financial status, the officers of this particular company decided a change in their pension plan to be desirable. The original plan in 1949 had been approved by the shareholders at their annual meeting. That approval related to the outlined plan which was contemplated at the time, which was to cost a certain amount; and that plan delegated control of pensions thereafter to its own Board of Directors. It goes on to relate, on Page 5 of the Amendment proposed as of March 3rd, 1949, this language, under the word “Amendment”, after having set up the plan: “The company has the right at any time, by action of the Board, to amend the Plan in any respect except,” and the exception is of no consequence here. Before 1956, Ohio Statute § 1701.60 was enacted, giving directors authority to establish reasonable compensation, including pension benefits, for services to corporations by directors and officers. The directors later changed the pension plan. The change made in 1956 came at a time when the company had had a number of very good years just behind it; years of much higher profits than had been true before the original plan went into effect in 1949. The company was also experiencing a condition wherein men eligible for pension at 65 nevertheless continued to work, because they believed that if they went on pension, their pensions would not adequately sustain them, as has been brought out in the evidence here. That condition is rather universally true throughout our country and its economic life. It is the reason why millions work at two jobs, and why many pensioners work on an additional job. 454The officers here considered the desirability of an amendment to the old pension plan, and a written report went to the directors as of October 18, 1956, on the subject; and the directors unanimously agreed on the suggested amendments as of December 13, 1956 — which were later approved by the Internal Revenue Service of the United States per Defendants’ Exhibit 7 herein. This suggested amendment undertook to give ex-president Pomeroy the pension herein under question. It is noticeable that this increased pension is in proportion to that of two other top executives. Our question is, whether such pension benefits constitute reasonable compensation for services to the corporation. The testimony before us indicates that the 1949 pensions were average or low, and that the 1956 pensions are average and not high. The testimony before us also indicates that in similar and comparable situations in companies doing $40,000,000 to $60,000,000 worth of business per year — as did this company — and hiring 4,000 to 5,500 employees per year • — as does this company — that the pensions such executives receive is very comparable to that received here. It is here Plaintiff’s contention that the fact that the shareholders have not ratified Mr. Pomeroy’s pension makes it illegal, and this Court is asked to require him to return to the Corporation pension benefits already received. Plaintiff bases such contention on the circumstances under which the shareholders approved the original plan in 1949. In this respect, we find that in 1949 a proxy was sent to the shareholders herein, describing a pension system contemplated for employees not unionized, and which plan was later ratified by 97% of the votes of the shareholders. The proxy described the pension plan contemplated and the expected cost for several of the first years of its operation. It further provided that after the original stockholder approval of the plan, as set forth in such first stockholders’ meeting, that any later amendments of the plan which would increase its costs, and any future change which it might be necessary to make in the plan, would be done by action of the Board of Directors without consulting the shareholders. Once the shareholders adopted this plan in 1949, they thereby relinquished all control over this plan. They originally did have the option of not adopting any at all. Once they adopted this one, they turned future control of the plan over to the Board of Directors. Once they put that power in the Board, that power remained in the Board. The Ohio Statute § 1701.60 put further specific power in the Board to establish reasonable compensation, including pensions, for services to the corporation, and authorized a Board of Directors to then delegate the Board’s entire authority to one or more of its officers or directors. So, by Ohio law, all this authority can now be vested in that one man. Therefore, the stockholders of this company, and this stockholder, are no longer, and is no longer, entitled to pass on pensions and pension changes re officer pensions, because the Ohio statute now prescribes that it be done in the way in which it was done; also, in the very way in which the stockholders approved it be done in 1949. The law has now taken this authority from the stockholders and put it in the Board of Directors. The stockholders still have sufficient control of their companies, because they select the Board of Directors. Their agents, who are the Board of Directors, still have control. They can change or remove members, or all members, of any Board of Directors, so the statute now places the power of decision on pensions in the directors so selected by the stockholders. Thus, the stockholders have lost no real power. They have merely delegated their power. Ohio’s statute but confirmed that delegation. Herein, they delegated that power in 1949. The Legislature enacted it later— merely, in effect, approving legally what had already legally been done. We have here learned, through the evidence in the case, that pensions, under 455this evidence, now constitute a novel, complex and ever-changing science which must require constant study, constant attention, constant evaluation and constant revision — which is probably why the Legislature puts this responsibility on a Board of Directors, which is readily available, which meets monthly — or on immediate call — rather than on the remote body of shareholders far more distant from the local scene and not on ready call, and far more separated and far more inaccessible and, generally, meeting only at a yearly interval, and surely then hardly having time for the kind of detailed study and decision concerning which we have here been hearing from witnesses well cognizant of this subject. So the law itself sounds very reasonable. The pension idea is worthy of some comment here. A pension is fundamentally a means by which it is attempted, by an employer, to bridge a gap left in the worker’s lifetime, when old age forces him off the pay roll. In the servile state of the Middle Ages, the serfs were protected for life — meaning they were fed for life — even when they were too old to work. ' Under the guild system, labor owned all the tools. Labor and capital were combined. Tradesmen furnished themselves with work till they died — and loved the work. Men owning tools had incentive; nobody had to give them any. They had incentive enough, and they had little concern with shorter hours and working conditions because they were in control. Labor made the sails, the iron, the ships, the glass, and built the universities and the cathedrals and equipped the fleets, and controlled the commerce of the world for centuries — and ran the cities besides. But when water power and steam production and electric generation came into use, labor lost control of the tools, because a mill run by water, a boiler run by steam, and a turbine run by an electric generator is purchasable only by a pooling of money by those who have superfluous money. The worker lost control of the tools and had to work for those who took over the production of the power. And the shareholders thereupon became supreme. They were really the gentlemen of the realm. And both the worker and the serf then found themselves working by contract alone, and often starving when the contract terminated, because the master had no further responsibility towards him after the contract terminated; he owed him only what the contract called for. I can remember when, even in courtrooms, labor was always called a commodity. The fortuitous combination of workers uniting in their common cause for pensions, and an income tax exemption given for the purpose, has given rise to recent pension plans which now fill the gap left when men are too old to work and must still live. Capitol — and I spell it with an “o” — thus provides a pension for labor’s benefit, through the Government’s acquiescence in not insisting on a larger tax. The Ohio Legislature has enacted a statute to give management a similar protection and, in the nature of things, management is morally, as well as legally, entitled to that protection. Ohio law authorizes a reasonable compensatory pension for management’s services to the corporation. If a man on a $20,000 annual salary gets a pension of $80,000 annually, on its face, such compensation appears unreasonable. But if a man on an $80,000 annual salary gets a $20,000 annual pension — what then? For that is our question: Is about one-fourth of one’s salary reasonable as a pension ? Is it, or is it not, about equal to the universal concept of our country regarding pensions ? Mr. Pomeroy, for many decades, had to keep a company profitably going, which hired 4,000 to 5,500 men in a half dozen plants, in several different places. In an industry supplying railroad parts — an industry long past its peak — it took some genius to keep 4,000 or 5,500 men busy. Mr. Pomeroy burned up a lifetime of that genius to keep his company and his men going during the 38 years of his service. His operation took in $40,000,000 to $60,000,000 a year, so he had tremendous 456responsibility. He had to do the deciding and thinking so that 4,000 to 5,500 men would continue to get work. In his final years, he was paid a total of approximately $80,000 annually— which I assume he well earned. He waived a $21,000 pension when he was between 65 and 68, and then took the pension. Is one-fourth his income a reasonable pension for the few years he has left? I would think so. First of all, he would have to live 6 years on his present pension to get back — at the rate of the $10,000 a year increase in pension he received — to get back the $63,000 of pension monies which he waived by continuing to work between 65 and 68. Many men waive pensions. I happen to have had a fine father who was in our Fire Department for 47 years. He could have taken a pension when he had 25 years in. He worked 22 years more and waived it.- Many men waive pensions. Many men would rather work than be on pensions. Their waived pensions become contributions. The testimony here was that the average pension under this plan is $1,850. The testimony was, further, that the average pay received by the average pensioner before he went on pension was $7,678 a year. That is about the % rule, because 4 times $1,850 comes to $7,400. So we see the ^4 rule applied across-the-board to all the pensioners of this company. If the pay of the average worker under this salary plan, as was testified to here, doubled between 1949 and 1961 from an average of $3,853 to $7,678, then we are really on a 50-cent dollar, which applies equally as well to their pay and to Mr. Pomeroy’s pension. And, of course, pensioners are as subject to income tax as is everyone else. Under the workers’ formula at the Sharon Plant, it has been here testified that Mr. Pomeroy would have been entitled to $28,000 a year. I think his pension is reasonable and so find, under all the conditions set forth in this case. In fact, one-fourth of one’s pay is pretty much the standardized pension throughout the country. Evidence has here been adduced to the effect that under Social Security, Railroad Retirement, Civil Service and Military Service, increases in pensions previously granted, are the rule and not the exception. It appears to this Court that the herein increase was fair, reasonable and consistent with our changing times. Our next question is, was it legal ? Did the Board of Directors have a right to give such a pension under the statute? Well, under the statute, the Board of Directors would not only have the right to establish a pension, but it could delegate such authority to one or more of its officers or directors. Under the law, its officer or director agent could so decide alone. Under the law, the one person so appointed could decide by himself. So the only limitation on a pension so established or granted by the Board, or its delegated officer or its delegated director, is that it be reasonable. I believe that that is now the only particular in which a pension so granted is legally susceptible of attack. We will note that the statute does not go back to the shareholders for any authority in any regard. The statute puts this power into that management which the shareholders have already selected. Obviously, if the shareholders were intended to be importuned for every pension, or change in pensions, and if shareholders had to decide whether workers would get pensions at all, or whether their dividends could or would be increased by their refusal to give pensions, only confusion and deep dissatisfaction would result. Such confusion, unfairness and dissatisfaction our Legislature here sought to prevent. Such confusion, or possibility of unfairness, our Legislature controls by putting the power in the Board, the shareholder always retaining the power of Board selection. The statute is most clear on the subject. The Board of Directors has authority to establish reasonable compensation, in-457eluding pensions. This gives a Board such power, irrespective of what the shareholders may say or think. They control the Board; they do not control what the Board does in this respect. This Board had that power by law, irrespective of what the shareholders once said, or now say. And when the shareholders once before voted a pension plan which had then contemplated a far lesser cost, that mere far lesser cost so contemplated, in and of itself, would not require further shareholder action at a later time to establish a pension plan at a higher cost, because a later statute now puts the power somewhere else, namely, in the Board of Directors. In fact, in 1949, that’s exactly where the shareholders put that later power. Their plan and Ohio’s law coincide. In its brief, Plaintiff herein has said that if the shareholders would only approve the present plan, there would be no future claim of unreasonableness. In other words, it seems to me that the Plaintiff here really protests what it considers the illegality of the plan and not its reasonableness. The Defense herein has introduced voluminous evidence tending to show and showing the reasonableness of Mr. Pomeroy’s pension. It has done so by an exhaustive study and presentation of comparable situations of which evidence has been herein introduced. Plaintiff has offered no evidence in this respect to the contrary. And the burden, as we know, is on the Plaintiff to prove this pension to be unreasonable. For the drastic far-reaching action which Plaintiff asks of this Court, Plaintiff has failed to prove this feature of his case by any evidence whatsoever. I find the pension plan as to Mr. Pomeroy reasonable, under all the evidence adduced in the case. I find that the 1956 plan is perfectly legal, under our statute. I further find the specific pension of Cleve H. Pomeroy to be reasonable. I find that this amendment was enacted in 1956 for a valid corporate purpose; and that it constituted a valid corporate action for which the Company has received adequate consideration in the form: of varied intangible and tangible benefits,- and for services to the Corporation itself in a great variety of ways, both before and after the age of 65 was attained by Mr. Pomeroy. I realize that if we compare two machinists, of equal capacity and length of service and pay, for pension, their pension should be equal; and that it might be fair to say that the services they rendered the Company actually had ended the day they went on pensiqn. That would all be very tangible. Their momentum would have ended the last time they turned off the current on their lathes. We can all appreciate and understand the tangible things Mr. Pomeroy did for his Company. But only the empowered Board can appreciate the intangible things he did — and still does. Only the Board can understand and appreciate the momentum he gave his Company by constant effort, by years of making the friends to whom are made the sales— and the sales aggregated $40,000,000 to $60,000,000, as we know. Only the Board can understand the imagination, study, work, perseverance and effort necessarily expended to keep the 5,000 men working, in order to feed the 20,000 other people behind the 5,000 men working. I assume, from the size of this industry which has been here described, that the man here involved would be one of the few industrial giants in the area who has survived to the age of 65 or 68; and I would assume that the directors and officers who must now keep the business going at the pace he set can really understand the effect his efforts had, and still have, on this business and its survival. When the Legislature so empowered the Board of Directors, it put the task of evaluating those services and the continuation of that business momentum in the hands of those who knew it best, in the hands of the directors — which is in the right place: for they watched the man work and could see the effect of what 458he did, and the continued results of what he did. They can understand how it affected the Company, which still takes care of all of them. The leadership which emanates from such a man can be better felt and sensed than seen or proved. That leadership, which might be beyond accurate power of description, though it isn’t tangible, is, nevertheless entitled to reward and recognition while its effects are lasting, and that question is one for the exclusive decision of the Board of Directors under the law of Ohio. I, therefore, find for these Defendants, as I have indicated; and I ask that counsel prepare Findings of Fact and Conclusions of Law accordingly, with exception to the Plaintiff.	11-26-2022	[ "CONNELL, Chief Judge. The Statement of Facts, as found on Pages 1 and part of 2 in the Defense Brief, is so well put, and so eminently fair from the viewpoint of both sides, that I will adopt it as a preliminary statement to what I will here find. It reads as follows, and we quote it: “In 1949 defendant, National Castings Company adopted a general pension plan for salaried employees. The plan, which specifically provided that it could be later amended by the directors, was approved by the shareholders. In 1956 the directors, pursuant to the powers granted in 452the original plan and pursuant to the newly enacted Section 1701.60 of the Ohio Revised Code enacted a comprehensive amendment to the plan which inter alia (a) reduced the age of eligibility from age 30 to 25, (b) reduced the service requirement from 5 years to 2 years, (c) increased the benefit rate on service before entry into plan membership from %% to %%, (d) increased the benefit rate for membership service before 1957 from 1% to 14% and (e) changed the benefit rate for membership service after 1956 from 1% on all earnings on which a member contributed to 1% on earnings up to $4,200 during a year and 1%% on earnings over $4,200 during a year and discontinued employee contributions on the first $4,200 of earnings in a year.", "The result was a general across-the-board increase of pension benefits from the old level established back in 1949. The amendment made no distinction between those employees over 65, those employees under 65 and retired employees. The amended plan was approved by the Commissioner of Internal Revenue as a qualified plan under Section 401 of the Internal Revenue Code of 1954, 26 U.S.C.A. §. 401, pursuant to which the Company deducts all payments to the Trustee as business expenses.", "Such approval was based on a finding by the Commissioner that the plan and amendments were, inter alia, benefiting at least 70 per cent of all employees and not discriminatory in ■ favor of employees who are officers, shareholders, persons .whose principal duties consist in supervising the work oi other employees, or highly compensated employees. “Plaintiff’s Amended Complaint now attacks the fact that the Company did not so distinguish and claims that the higher payments resulting from the 1956 amendment to those employees who were over 65 or already retired when the amendment was adopted should be stopped and' that in the case of defendant Pomeroy such payments should be recovered.'", "Plaintiff claims that such payments are' an ‘unreasonable gift of corporate funds, and an unreasonable waste and spoliation of corporate funds, and a heavy burden and expense to the corporation without reasonable or adequate consideration.’ ” For the purpose of our discussion, may I first cite the pensions of the three highest officers of this company, and how their three pensions were changed by the 1956 amendment here in question. Mr. Pomeroy’s pension as of December, ’49, was $9,630.51. The 1956 amendment made it $21,436.50. He was, as we all know, the President.", "Vice President Moriarty, for 1949, was to receive a pension of $10,821. Under the 1956 amendment, Mr. Moriarty’s pension was jumped to $21,535. Mr. Wasson, another Vice President, was likewise jumped from $8,422 to $17,-474. All three were, therefore, approximately doubled by this amendment which is here in question. The focal point of Plaintiff’s attack herein is the pension of Mr. Pomeroy, to which we will confine whatever we hereafter say and find. This is not just a legal battle between these two men, nor is it a personal fight between the shareholder and the President.", "This is an attack on a pension system in which the ex-president’s pension has become the point of attack. Plaintiff’s Complaint is that a pension system, which was adopted in 1949 with the shareholders’ approval, was amended in 1956 without their approval and, for that reason, is contrary to law. I find that the 1956 plan was adopted as the result of much study — as has been shown by the evidence in the case — and that the United States Government Department which was involved, namely, the Internal Revenue Service, approved it. The money in the fund, to a great extent, comes in indirectly as an income tax deduction. This, indirectly, permits a company to retain more earnings if it will give them back to its employees under the form of a pension plan.", "The plan herein adopted was the result of quite a study by Mr. Field, Vice 453President, who testified concerning such plan. The plan had to do justice to a large number of superannuated employees to get the Government’s approval. It had to do justice to all employees. It had to do justice to those employees who were not organized in the unionized sense, and it had to give comparable benefits to employees not organized. It would be obviously unfair if only the organized employees received such benefits, or so we believe the Legislature of Ohio believed when it enacted the statute here involved. The Internal Revenue Service, as we have said, has approved the plan. The plan must apply to 70% to qualify, and no partiality may be given to those highest paid. These and other conditions must obtain, such as having to do with those eligible, how the funds shall be raised, the minimum annual amount necessarily to be paid in, and the deduction for past service. All of the required conditions were here met, to the satisfaction of the Internal Revenue Service.", "All salaried personnel were covered, both unionized and not unionized. This company had to follow the type of plans followed within its industry. For four plants, they dealt with one union; and for another plant, they dealt with a separate union. These two different unions followed two different plans, and the salaried employees followed another— such a plan as was being utilized in similar plants in other industries. The changes taking place throughout the country, both in pension systems and in the liberalization of pension rights, seem to require constant study of such frequent and constant evolution. Disparities in pension rights for salaried employees, and those on an hourly wage, require frequent adjustment. Living costs necessitate further adjustment.", "It appears that the study of pension inequities and the desirability of pension equities amounts to a new science, in which executives are now required to make detailed studies formerly limited to those who were skilled social workers, arithmeticians and actuaries. The evidence before us indicates that pension plans are now evolved by corporations on a basis of scientific study of many factors, including what happens to employees and their needs, even during the period when they are on a pension. As a result of much research and study and consideration of the company’s financial status, the officers of this particular company decided a change in their pension plan to be desirable. The original plan in 1949 had been approved by the shareholders at their annual meeting.", "That approval related to the outlined plan which was contemplated at the time, which was to cost a certain amount; and that plan delegated control of pensions thereafter to its own Board of Directors. It goes on to relate, on Page 5 of the Amendment proposed as of March 3rd, 1949, this language, under the word “Amendment”, after having set up the plan: “The company has the right at any time, by action of the Board, to amend the Plan in any respect except,” and the exception is of no consequence here. Before 1956, Ohio Statute § 1701.60 was enacted, giving directors authority to establish reasonable compensation, including pension benefits, for services to corporations by directors and officers. The directors later changed the pension plan. The change made in 1956 came at a time when the company had had a number of very good years just behind it; years of much higher profits than had been true before the original plan went into effect in 1949. The company was also experiencing a condition wherein men eligible for pension at 65 nevertheless continued to work, because they believed that if they went on pension, their pensions would not adequately sustain them, as has been brought out in the evidence here. That condition is rather universally true throughout our country and its economic life.", "It is the reason why millions work at two jobs, and why many pensioners work on an additional job. 454The officers here considered the desirability of an amendment to the old pension plan, and a written report went to the directors as of October 18, 1956, on the subject; and the directors unanimously agreed on the suggested amendments as of December 13, 1956 — which were later approved by the Internal Revenue Service of the United States per Defendants’ Exhibit 7 herein. This suggested amendment undertook to give ex-president Pomeroy the pension herein under question. It is noticeable that this increased pension is in proportion to that of two other top executives. Our question is, whether such pension benefits constitute reasonable compensation for services to the corporation. The testimony before us indicates that the 1949 pensions were average or low, and that the 1956 pensions are average and not high. The testimony before us also indicates that in similar and comparable situations in companies doing $40,000,000 to $60,000,000 worth of business per year — as did this company — and hiring 4,000 to 5,500 employees per year • — as does this company — that the pensions such executives receive is very comparable to that received here. It is here Plaintiff’s contention that the fact that the shareholders have not ratified Mr. Pomeroy’s pension makes it illegal, and this Court is asked to require him to return to the Corporation pension benefits already received.", "Plaintiff bases such contention on the circumstances under which the shareholders approved the original plan in 1949. In this respect, we find that in 1949 a proxy was sent to the shareholders herein, describing a pension system contemplated for employees not unionized, and which plan was later ratified by 97% of the votes of the shareholders. The proxy described the pension plan contemplated and the expected cost for several of the first years of its operation.", "It further provided that after the original stockholder approval of the plan, as set forth in such first stockholders’ meeting, that any later amendments of the plan which would increase its costs, and any future change which it might be necessary to make in the plan, would be done by action of the Board of Directors without consulting the shareholders. Once the shareholders adopted this plan in 1949, they thereby relinquished all control over this plan. They originally did have the option of not adopting any at all. Once they adopted this one, they turned future control of the plan over to the Board of Directors. Once they put that power in the Board, that power remained in the Board. The Ohio Statute § 1701.60 put further specific power in the Board to establish reasonable compensation, including pensions, for services to the corporation, and authorized a Board of Directors to then delegate the Board’s entire authority to one or more of its officers or directors. So, by Ohio law, all this authority can now be vested in that one man. Therefore, the stockholders of this company, and this stockholder, are no longer, and is no longer, entitled to pass on pensions and pension changes re officer pensions, because the Ohio statute now prescribes that it be done in the way in which it was done; also, in the very way in which the stockholders approved it be done in 1949.", "The law has now taken this authority from the stockholders and put it in the Board of Directors. The stockholders still have sufficient control of their companies, because they select the Board of Directors. Their agents, who are the Board of Directors, still have control. They can change or remove members, or all members, of any Board of Directors, so the statute now places the power of decision on pensions in the directors so selected by the stockholders. Thus, the stockholders have lost no real power. They have merely delegated their power.", "Ohio’s statute but confirmed that delegation. Herein, they delegated that power in 1949. The Legislature enacted it later— merely, in effect, approving legally what had already legally been done. We have here learned, through the evidence in the case, that pensions, under 455this evidence, now constitute a novel, complex and ever-changing science which must require constant study, constant attention, constant evaluation and constant revision — which is probably why the Legislature puts this responsibility on a Board of Directors, which is readily available, which meets monthly — or on immediate call — rather than on the remote body of shareholders far more distant from the local scene and not on ready call, and far more separated and far more inaccessible and, generally, meeting only at a yearly interval, and surely then hardly having time for the kind of detailed study and decision concerning which we have here been hearing from witnesses well cognizant of this subject. So the law itself sounds very reasonable.", "The pension idea is worthy of some comment here. A pension is fundamentally a means by which it is attempted, by an employer, to bridge a gap left in the worker’s lifetime, when old age forces him off the pay roll. In the servile state of the Middle Ages, the serfs were protected for life — meaning they were fed for life — even when they were too old to work. ' Under the guild system, labor owned all the tools. Labor and capital were combined. Tradesmen furnished themselves with work till they died — and loved the work. Men owning tools had incentive; nobody had to give them any.", "They had incentive enough, and they had little concern with shorter hours and working conditions because they were in control. Labor made the sails, the iron, the ships, the glass, and built the universities and the cathedrals and equipped the fleets, and controlled the commerce of the world for centuries — and ran the cities besides. But when water power and steam production and electric generation came into use, labor lost control of the tools, because a mill run by water, a boiler run by steam, and a turbine run by an electric generator is purchasable only by a pooling of money by those who have superfluous money. The worker lost control of the tools and had to work for those who took over the production of the power.", "And the shareholders thereupon became supreme. They were really the gentlemen of the realm. And both the worker and the serf then found themselves working by contract alone, and often starving when the contract terminated, because the master had no further responsibility towards him after the contract terminated; he owed him only what the contract called for. I can remember when, even in courtrooms, labor was always called a commodity. The fortuitous combination of workers uniting in their common cause for pensions, and an income tax exemption given for the purpose, has given rise to recent pension plans which now fill the gap left when men are too old to work and must still live. Capitol — and I spell it with an “o” — thus provides a pension for labor’s benefit, through the Government’s acquiescence in not insisting on a larger tax.", "The Ohio Legislature has enacted a statute to give management a similar protection and, in the nature of things, management is morally, as well as legally, entitled to that protection. Ohio law authorizes a reasonable compensatory pension for management’s services to the corporation. If a man on a $20,000 annual salary gets a pension of $80,000 annually, on its face, such compensation appears unreasonable. But if a man on an $80,000 annual salary gets a $20,000 annual pension — what then?", "For that is our question: Is about one-fourth of one’s salary reasonable as a pension ? Is it, or is it not, about equal to the universal concept of our country regarding pensions ? Mr. Pomeroy, for many decades, had to keep a company profitably going, which hired 4,000 to 5,500 men in a half dozen plants, in several different places. In an industry supplying railroad parts — an industry long past its peak — it took some genius to keep 4,000 or 5,500 men busy. Mr. Pomeroy burned up a lifetime of that genius to keep his company and his men going during the 38 years of his service. His operation took in $40,000,000 to $60,000,000 a year, so he had tremendous 456responsibility.", "He had to do the deciding and thinking so that 4,000 to 5,500 men would continue to get work. In his final years, he was paid a total of approximately $80,000 annually— which I assume he well earned. He waived a $21,000 pension when he was between 65 and 68, and then took the pension. Is one-fourth his income a reasonable pension for the few years he has left? I would think so. First of all, he would have to live 6 years on his present pension to get back — at the rate of the $10,000 a year increase in pension he received — to get back the $63,000 of pension monies which he waived by continuing to work between 65 and 68. Many men waive pensions.", "I happen to have had a fine father who was in our Fire Department for 47 years. He could have taken a pension when he had 25 years in. He worked 22 years more and waived it.- Many men waive pensions. Many men would rather work than be on pensions. Their waived pensions become contributions. The testimony here was that the average pension under this plan is $1,850. The testimony was, further, that the average pay received by the average pensioner before he went on pension was $7,678 a year. That is about the % rule, because 4 times $1,850 comes to $7,400. So we see the ^4 rule applied across-the-board to all the pensioners of this company. If the pay of the average worker under this salary plan, as was testified to here, doubled between 1949 and 1961 from an average of $3,853 to $7,678, then we are really on a 50-cent dollar, which applies equally as well to their pay and to Mr. Pomeroy’s pension.", "And, of course, pensioners are as subject to income tax as is everyone else. Under the workers’ formula at the Sharon Plant, it has been here testified that Mr. Pomeroy would have been entitled to $28,000 a year. I think his pension is reasonable and so find, under all the conditions set forth in this case. In fact, one-fourth of one’s pay is pretty much the standardized pension throughout the country. Evidence has here been adduced to the effect that under Social Security, Railroad Retirement, Civil Service and Military Service, increases in pensions previously granted, are the rule and not the exception.", "It appears to this Court that the herein increase was fair, reasonable and consistent with our changing times. Our next question is, was it legal ? Did the Board of Directors have a right to give such a pension under the statute? Well, under the statute, the Board of Directors would not only have the right to establish a pension, but it could delegate such authority to one or more of its officers or directors. Under the law, its officer or director agent could so decide alone.", "Under the law, the one person so appointed could decide by himself. So the only limitation on a pension so established or granted by the Board, or its delegated officer or its delegated director, is that it be reasonable. I believe that that is now the only particular in which a pension so granted is legally susceptible of attack. We will note that the statute does not go back to the shareholders for any authority in any regard. The statute puts this power into that management which the shareholders have already selected. Obviously, if the shareholders were intended to be importuned for every pension, or change in pensions, and if shareholders had to decide whether workers would get pensions at all, or whether their dividends could or would be increased by their refusal to give pensions, only confusion and deep dissatisfaction would result.", "Such confusion, unfairness and dissatisfaction our Legislature here sought to prevent. Such confusion, or possibility of unfairness, our Legislature controls by putting the power in the Board, the shareholder always retaining the power of Board selection. The statute is most clear on the subject. The Board of Directors has authority to establish reasonable compensation, in-457eluding pensions. This gives a Board such power, irrespective of what the shareholders may say or think. They control the Board; they do not control what the Board does in this respect. This Board had that power by law, irrespective of what the shareholders once said, or now say.", "And when the shareholders once before voted a pension plan which had then contemplated a far lesser cost, that mere far lesser cost so contemplated, in and of itself, would not require further shareholder action at a later time to establish a pension plan at a higher cost, because a later statute now puts the power somewhere else, namely, in the Board of Directors. In fact, in 1949, that’s exactly where the shareholders put that later power. Their plan and Ohio’s law coincide. In its brief, Plaintiff herein has said that if the shareholders would only approve the present plan, there would be no future claim of unreasonableness. In other words, it seems to me that the Plaintiff here really protests what it considers the illegality of the plan and not its reasonableness.", "The Defense herein has introduced voluminous evidence tending to show and showing the reasonableness of Mr. Pomeroy’s pension. It has done so by an exhaustive study and presentation of comparable situations of which evidence has been herein introduced. Plaintiff has offered no evidence in this respect to the contrary. And the burden, as we know, is on the Plaintiff to prove this pension to be unreasonable. For the drastic far-reaching action which Plaintiff asks of this Court, Plaintiff has failed to prove this feature of his case by any evidence whatsoever.", "I find the pension plan as to Mr. Pomeroy reasonable, under all the evidence adduced in the case. I find that the 1956 plan is perfectly legal, under our statute. I further find the specific pension of Cleve H. Pomeroy to be reasonable. I find that this amendment was enacted in 1956 for a valid corporate purpose; and that it constituted a valid corporate action for which the Company has received adequate consideration in the form: of varied intangible and tangible benefits,- and for services to the Corporation itself in a great variety of ways, both before and after the age of 65 was attained by Mr. Pomeroy. I realize that if we compare two machinists, of equal capacity and length of service and pay, for pension, their pension should be equal; and that it might be fair to say that the services they rendered the Company actually had ended the day they went on pensiqn. That would all be very tangible.", "Their momentum would have ended the last time they turned off the current on their lathes. We can all appreciate and understand the tangible things Mr. Pomeroy did for his Company. But only the empowered Board can appreciate the intangible things he did — and still does. Only the Board can understand and appreciate the momentum he gave his Company by constant effort, by years of making the friends to whom are made the sales— and the sales aggregated $40,000,000 to $60,000,000, as we know. Only the Board can understand the imagination, study, work, perseverance and effort necessarily expended to keep the 5,000 men working, in order to feed the 20,000 other people behind the 5,000 men working. I assume, from the size of this industry which has been here described, that the man here involved would be one of the few industrial giants in the area who has survived to the age of 65 or 68; and I would assume that the directors and officers who must now keep the business going at the pace he set can really understand the effect his efforts had, and still have, on this business and its survival. When the Legislature so empowered the Board of Directors, it put the task of evaluating those services and the continuation of that business momentum in the hands of those who knew it best, in the hands of the directors — which is in the right place: for they watched the man work and could see the effect of what 458he did, and the continued results of what he did.", "They can understand how it affected the Company, which still takes care of all of them. The leadership which emanates from such a man can be better felt and sensed than seen or proved. That leadership, which might be beyond accurate power of description, though it isn’t tangible, is, nevertheless entitled to reward and recognition while its effects are lasting, and that question is one for the exclusive decision of the Board of Directors under the law of Ohio. I, therefore, find for these Defendants, as I have indicated; and I ask that counsel prepare Findings of Fact and Conclusions of Law accordingly, with exception to the Plaintiff." ]	https://www.courtlistener.com/api/rest/v3/opinions/8735149/	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
EXHIBIT 31.1 SECTION I, Steven N. Bronson, certify that: 1. I have reviewed this quarterly report on Form 10-Q of Qualstar Corporation; 2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; 3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; 4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: (a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, is made known to us by others, particularly during the period in which this report is being prepared; (b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; (c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and (d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and 5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions): (a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and (b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting. Dated: August 11, 2016 /s/ STEVEN N. BRONSON Steven N. Bronson Principal Executive Officer		[ "EXHIBIT 31.1 SECTION I, Steven N. Bronson, certify that: 1. I have reviewed this quarterly report on Form 10-Q of Qualstar Corporation; 2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; 3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; 4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: (a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, is made known to us by others, particularly during the period in which this report is being prepared; (b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; (c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and (d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and 5.", "The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions): (a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and (b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting. Dated: August 11, 2016 /s/ STEVEN N. BRONSON Steven N. Bronson Principal Executive Officer" ]	https://applica-public.s3-eu-west-1.amazonaws.com/contract-discovery/edgar.txt.xz	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
The foregoing opinion by SEDDON, C., is adopted as the opinion of Court in Banc. All of the judges concur, except White, J., who dissents, and Otto, J., not sitting.	07-05-2016	[ "The foregoing opinion by SEDDON, C., is adopted as the opinion of Court in Banc. All of the judges concur, except White, J., who dissents, and Otto, J., not sitting." ]	https://www.courtlistener.com/api/rest/v3/opinions/3521201/	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): March 21, 2014 Signature Exploration and Production Corp. (Exact name of Registrant as specified in its charter) Delaware (State or other Jurisdiction of Incorporation or organization) 333-382580 (Commission File Number) 59-3733133 (IRS Employer I.D. No.) 4700 Millenia Blvd, Suite 175 Orlando, FL 32829 Phone: (888) 895-3594 Fax: (407) 354-3441 (Address, including zip code, and telephone and facsimile numbers, including area code, of registrant’s executive offices) NA (Former name, former address and former fiscal year, if changed since last report) ITEM 3.02Unregistered Sales of Equity Securities. On March 21, 2014, the Registrant sold 200,000 units to one person.Each unit consists of one share of common stock, one A warrant and one B warrant.Each warrant gives the holder the right to purchase of one share of common stock of the Registrant pursuant to certain terms and conditions.The price was $0.50 per unit.The sale was exempt from the registration requirements of Section 5 of the Securities Act of 1933 pursuant to Section 4(2) of the same Act and Rule 506 promulgated thereunder. SIGNATURE PAGE Pursuant to the requirement of the Securities and Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. Signature Exploration and Production Corp. Dated: March 27, 2014 By: /s/ Steven Weldon Steven Weldon Chief Financial Officer		[ "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): March 21, 2014 Signature Exploration and Production Corp. (Exact name of Registrant as specified in its charter) Delaware (State or other Jurisdiction of Incorporation or organization) 333-382580 (Commission File Number) 59-3733133 (IRS Employer I.D. No.) 4700 Millenia Blvd, Suite 175 Orlando, FL 32829 Phone: (888) 895-3594 Fax: (407) 354-3441 (Address, including zip code, and telephone and facsimile numbers, including area code, of registrant’s executive offices) NA (Former name, former address and former fiscal year, if changed since last report) ITEM 3.02Unregistered Sales of Equity Securities. On March 21, 2014, the Registrant sold 200,000 units to one person.Each unit consists of one share of common stock, one A warrant and one B warrant.Each warrant gives the holder the right to purchase of one share of common stock of the Registrant pursuant to certain terms and conditions.The price was $0.50 per unit.The sale was exempt from the registration requirements of Section 5 of the Securities Act of 1933 pursuant to Section 4(2) of the same Act and Rule 506 promulgated thereunder.", "SIGNATURE PAGE Pursuant to the requirement of the Securities and Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. Signature Exploration and Production Corp. Dated: March 27, 2014 By: /s/ Steven Weldon Steven Weldon 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
1 Update: Lemelson Capital Further Increases Short Stake in Ligand Pharmaceuticals (NASDAQ: LGND) as LGND EPS Plunges 76 percent in Q2 2014 Lemelson Capital further increases short stake and reaffirms 100 percent downside risk in Ligand Pharmaceuticals (NASDAQ: LGND), revenue and earnings down across the board, while liabilities and dilution continue to rise dramatically. Table of Contents Overview ................................................................................................................................................... 1 Disclaimer.................................................................................................................................................. 2 Q2 2014 EPS Plunges 76 Percent .............................................................................................................. 3 Collaborative Research and Development Revenue Continues to Plummet ........................................... 3 When Non-Cash Items are Removed, Q2 2014 Revenue Has Decreased ................................................ 3 Press Release vs. SEC filings: Net Income, Contingent Liabilities and Stock-based Compensation......... 4 Competitive Threat to Promacta and Kyprolis Not Yet Realized .............................................................. 5 Summary: Financials Continue Eroding while Liabilities Continue Increasing. 100 Percent Downside Risk Reaffirmed ......................................................................................................................................... 6 Full Disclaimer ........................................................................................................................................... 7 Overview  Despite a significant downward correction in the share price of Ligand Pharmaceuticals (NASDAQ: LGND) since the June 16, 2014 publication of its original research report on LGND, Lemelson Capital Management has since continued to increase its short position in the Company. o Lemelson Capital’s original June 16, 2014 report can be found here. o Lemelson Capital’s appended 12-page update published on July 3, 2014, can be found here. 2  Between June 16, 2014 and August 1, 2014, a period of approximately six weeks, shares in Ligand Pharmaceuticals have plunged roughly 35 percent, losing approximately $490 million in market capitalization.  Q2 2014 EPS plunged 76% from Q2 2013.  Collaborative Research and Development continue a multi-year slide with the release of the company’s Q2 earnings report, dropping ~80% in just a matter of four years.  When non-cash items are excluded, Q2 2014 revenue actually declined year over year.  Ligand’s press releases and communications with investors continue to paint an exceedingly and deceptively optimistic picture, including in its Q2 2014 earnings release this morning. Yet, the firm’s SEC filings reveal a business whose key revenue streams and earnings continue to decline, or are likely to diminish entirely. Revenue and earnings are down 76 percent year over year, contingent liabilities are up roughly 148 percent while management continues a policy of extraordinary shareholder dilution through stock-based compensation that exceeds by a significant margin the company’s net income from continuing operations.  Once intangibles are removed from balance sheet, company shareholder equity is just $21,000 to shield the common shareholder from the litany of growing liabilities and severe competitive threats the company faces.  Promacta sales have not yet been impaired by new Hep C regimens that address multiple genotypes, but will be. Kyprolis, the company’s other major royalty generating program also faces severe competitive threats.  The financial condition of the company continues to erode rapidly offering essentially zero margin of safety to common shareholders. Disclaimer Following publication, Lemelson Capital may transact in the securities of the company. Lemelson Capital has obtained all information herein from sources it believes to be accurate and reliable. However, such information is presented “as is,” without warranty of any kind whether express or implied. Lemelson Capital makes no representation, express or implied, as to the accuracy, timeliness, or completeness of any such information or with regard to the results obtained from its use. All expressions of opinion are subject to change without notice, and Lemelson Capital does not undertake to update this report or any information contained herein. 3 Q2 2014 EPS Plunges 76 Percent Q2 2014 EPS has plunged 76 percent year over year. Net income attributable to common shareholders for the second quarter of 2014 was just $1.6 million, or $0.07 per diluted share, compared with net income attributable to common shareholders for the second quarter of 2013 of $6.1 million, or $0.30 per diluted share. Net income attributable to common shareholders for the first six months of 2014 was $3.7 million, or $0.17 per diluted share, compared with net income attributable to common shareholders of $7.6 million, or $0.37 per diluted share, for the same period in 2013, representing a decrease of 54.1 percent. Collaborative Research and Development Revenue Continues to Plummet Collaborative research and development and other revenues declined to just ~$4.3 million from ~$5.0 million for the same period in 2013, a decrease of 14 percent year over year and continuing a multi-year trend. Once the TG Therapeutics non-cash licensing agreement is backed out of revenue, collaborative research and development revenue declined even further, to just $3 million for all of 1H 2014, or a decline of some 38 percent over the same period in 2013. Collaborative R & D revenues (a substantial part of Ligand’s overall sales and business model), have already declined 79 percent in just the last four years, continuing to further concentrate the Company’s business into just two precariously fragile revenue streams. When Non-Cash Items are Removed, Q2 2014 Revenue Has Decreased The company reported in the Q2 earnings release that revenues for the second quarter of 2014 were $10.6 million, an increase of 11 percent compared with $9.6 million for the same period in 2013. However, this presentation of the data is potentially misleading. An upfront, non-cash license fee was received by Ligand from TG Therapeutics for the licensing of IRAK-4 in the second quarter of 2014. Under the terms of the agreement, Ligand received 125,000 shares of TG common stock, valued at approximately $1.2 million at signing. As of the close of market on August 1, 2014, the 125,000 shares had a value of just $917,500, a decrease in value to the company of some $300,000. Once this non-cash licensing fee is removed from the Q2 revenue figures, the company’s revenue was only $9.4 million, which is 2.1 percent less than the $9.6 million of revenue the company had in Q2 2013. 4 A statement of cash flows would have revealed this, but cash flow reporting was oddly omitted from the company’s Q2 2014 earnings release. Material sales decreased approximately $500,000, or 13 percent, to $3.5 million from $4.0 million for the same period in 2013, representing a drop of some 13 percent. Press Release vs. SEC filings: Net Income, Contingent Liabilities and Stock-based Compensation Net income from continuing operations dropped from $3,694,000 in Q2 of 2013 to just $1,592,000 in Q2 2014, representing a drop of approximately 57 percent (a decline of approximately 76 percent in EPS when accounting for continued dilution). Contingent liabilities to the company increased an extraordinary 147 percent during the same time period from $-2,741,000 to $1,312,000, while mark-to-market adjustments for investments would have taken another $797,000 off the income statement had the company reported the more correct and accurate GAAP figures. Despite the drop in revenues and the plunge in EPS, management continued to siphon off shareholder value through an extraordinary increase of approximately 100 percent in stock-based compensation during the first six months of 2014 alone. “…Ligand which has only speculative value and virtually no perceptible insight into future revenue or profitability, while maintaining a spectrum of significant liabilities, including from the Company itself vis-à-vis spectacular dilution. LIGAND PHARMACEUTICALS - SEVERE COMPETITIVE THREAT TO KEY ROYALTY PROGRAM AND “GOING CONCERN” RISK DRIVE 100 PERCENT DOWNSIDE JUNE 16, 2014 While net income attributable to Ligand common shareholders fell by approximately 53 percent from 1H 2013 ($7.6 million) to 1H 2014 ($3.7 million), management increased their awards by more than 100 percent, to approximately $5.1 million, or 27 percent greater than the company’s entire 1H 2014 earnings, with the lions share likely going to the company’s top two executives, validating the original research report that one of the greatest risk to Ligand earnings is from management itself. 5 Competitive Threat to Promacta and Kyprolis Not Yet Realized Promacta revenues (as was previously reported) from Hepatitis C patients are dependent on the use of interferon in Hepatitis C therapeutic regimens, which Lemelson Capital’s industry sources expect to be reduced significantly, if not entirely, in the future due to approvals of the new oral Hepatitis C treatments including but not limited to Gileand’s blockbuster therapy, Sovaldi. In its first two industry record shattering quarters on the market, Sovaldi has racked up sales of $5.8 billion despite reports that thousands of patients are still waiting for Gilead's two drugs in one pill combination treatment expected to gain U.S. approval in October. UPDATE 2-GILEAD HEPATITIS C DRUG SOVALDI RACKS UP $3.5 BLN IN QUARTER REUTERS – JULY 23, 2014 It was only last December 2013 that the U.S. Food and Drug Administration (FDA) approved Sovaldi, an oral treatment for chronic Hepatitis C, for use with Ribavirin and interferon. Solvaldi also appears to be used “off label” with Johnson and Johnson’s (NYSE:JNJ) Olysio. These new oral combination regimens present a severe competitive threat to future Promacta sales as outlined in the original June 16, research report. However, this has not yet shown up in GlaxoSmithKline’s (NASDAQ: GSK) Promacta sales figures since prescribing physicians, as part of the initial regiments, have continued to prescribe the new treatments in combination with interferon (a point also outlined in the original June 16 report), a practice set to change. Further, Solvaldi will gain additional future competition from drugs in development by AbbVie Inc. (NASDAQ:ABBV) and Merck & Company (NYSE:MRK), creating a more competitive market for the oral Hepatitis C drug market that will undoubtedly drive future promotional efforts, price points and parenthetically further pressure legacy indications such as Promacta, which without interferon have no commercially viable application in Hepatitis C treatment. The key point is that doctors will eliminate interferon (an expensive indication) in the future when prescribing Sovaldi and other oral combination regimens. Further clouding the issue is the fact that at least one vocal analyst has repeatedly promoted the idea that interferon will continue to be a mainstay of Hepatitis C treatment for certain genotypes outside of the U.S. However, prescribing information for Solvadi contradicts and invalidates such a suggestion. 6 Solvaldi Indications HCV Mono-infected and Treatment Duration HCV/HIV-1 Co-infected Genotype 1 or 4 SOVALDI + peg- 12 weeks interferon alfa + ribavirin Genotype 2 SOVALDI + ribavirin 12 weeks Genotype 3 SOVALDI + ribavirin 24 weeks SOURCE: SOLVALDI PRESCRIBING INFORMATION Like Promacta, Kyprolis also faces an extraordinary competitive threat from two entrenched multiple myloma (MM) indications, Celgene’s (NASDAQ:CELG) Revlimid and Takeda Pharmaceutical Company Limited’s (OTC:TKPYY) Velcade. Celgene also markets Pomalyst (Pomalidomide), another thalidomide analogue, which was approved in 2013 for the treatment of MM patients who have received at least two prior therapies including Revlimid and Velcade and have demonstrated disease progression on or within 60 days of completion of the last therapy. Although Kyprolis has U.S. Orphan Drug designation with exclusivity through July 2019 and U.S. patents that extend until at least 2025, Velcade patent expires in the U.S. in 2017 and 2019 in the E.U, opening the door for much less expensive generics. Kyprolis’ future competition may also include Amgen’s pipeline product, Oprozomib, that is in Phase II development. Summary: Financials Continue Eroding while Liabilities Continue Increasing. 100 Percent Downside Risk Reaffirmed EPS has plunged 76 percent year-over year through Q2 2014 without explanation from management. Collaborative research and development revenue has fallen 38 percent year-over-year (when non-cash items are backed out), continuing a multi-year trend. The company has awarded its executives 47.4 percent more in stock-based compensation than the company has earned in Q2 2014, and ~27 more than the company earned in 1H 2014. The company’s tangible equity is just $21,000 against a comparatively monstrous market capitalization of approximately $1.1 billion, while the company’s net earnings were just $1.59 million in Q2 2014. Liabilities continue to grow at a fast pace, while all of the company’s insipid earnings continue to be entirely eliminated by ever-increasing stock-based compensation. 7 The Company’s business model as a “broker” of obscure, third-line, unknown and largely untested indications is inherently flawed and filled with extraordinary risk. It is worth considering why so much time, energy and resources are invested by the company in extraordinarily complex transactions that are often presented to the public in a different light than they are to the SEC. A common shareholder is distinct from bond-holders or other forms of secured securities holders. Shares of Ligand have already lost approximately 35 percent since the publication of the original LCM report on June 16, 2014 through the close of market on August 1, 2014 (a loss of some $490 million in market capitalization in slightly over six weeks). Common shareholders of Ligand now have just $21,000 in tangible equity to shield them from the slightest bad news which could send the company’s $1.1 billion market capitalization tumbling substantially further. Indeed the company’s intangible and contingent liabilities could easily exceed $21,000 in a day. For this reason, as well as those enumerated in LCM’s previous reports, the intrinsic value of Ligand shares must be reaffirmed as $0 with downside risk justifiably calculated at 100 percent. Full Disclaimer As of the publication date of this report, Lemelson Capital Management LLC has a short position in the Company covered herein (Ligand Pharmaceuticals) and stands to realize gains in the event that the price of the stock declines. Following publication of the report, Lemelson Capital may transact in the securities of the Company covered herein. All content in this report represents the opinions of Lemelson Capital. Lemelson Capital has obtained all information herein from sources it believes to be accurate and reliable. However, such information is presented “as is,” without warranty of any kind, whether express or implied. Lemelson Capital makes no representation, express or implied, as to the accuracy, timeliness, or completeness of any such information or with regard to the results obtained from its use. All expressions of opinion are subject to change without notice, and Lemelson Capital does not undertake to update or supplement this report or any information contained herein. This document is for informational purposes only and it is not intended as an official confirmation of any transaction. All market prices, data and other information are not warranted as to completeness or accuracy and are subject to change without notice. The information included in this document is based upon selected public market data and reflects prevailing conditions and Lemelson Capital’s views as of this date, all of which are accordingly subject to change. Lemelson Capital’s opinions and estimates constitute a best efforts judgment and should be regarded as indicative, preliminary and for illustrative purposes only. 8 Any investment involves substantial risks, including, but not limited to, pricing volatility, inadequate liquidity, and the potential complete loss of principal. This report’s estimated fundamental value only represents a best efforts estimate of the potential fundamental valuation of a specific security, and is not expressed as, or implied as, assessments of the quality of a security, a summary of past performance, or an actionable investment strategy for an investor. This document does not in any way constitute an offer or solicitation of an offer to buy or sell any investment, security, or commodity discussed herein or of any of the affiliates of Lemelson Capital. Also, this document does not in any way constitute an offer or solicitation of an offer to buy or sell any security in any jurisdiction in which such an offer would be unlawful under the securities laws of such jurisdiction. To the best of Lemelson Capital’s abilities and beliefs, all information contained herein is accurate and reliable. Lemelson Capital reserves the rights for their affiliates, officers, and employees to hold cash or derivative positions in any Company discussed in this document at any time. As of the original publication date of this document, investors should assume that Lemelson Capital is short shares of Ligand and may have positions in financial derivatives that reference this security and stand to potentially realize gains in the event that the market valuation of the Company’s common equity is lower than prior to the original publication date. These affiliates, officers, and individuals shall have no obligation to inform any investor about their historical, current, and future trading activities. In addition, Lemelson Capital may benefit from any change in the valuation of any other companies, securities, or commodities discussed in this document.	2020-09-30	[ "1 Update: Lemelson Capital Further Increases Short Stake in Ligand Pharmaceuticals (NASDAQ: LGND) as LGND EPS Plunges 76 percent in Q2 2014 Lemelson Capital further increases short stake and reaffirms 100 percent downside risk in Ligand Pharmaceuticals (NASDAQ: LGND), revenue and earnings down across the board, while liabilities and dilution continue to rise dramatically. Table of Contents Overview ................................................................................................................................................... 1 Disclaimer.................................................................................................................................................. 2 Q2 2014 EPS Plunges 76 Percent .............................................................................................................. 3 Collaborative Research and Development Revenue Continues to Plummet ........................................... 3 When Non-Cash Items are Removed, Q2 2014 Revenue Has Decreased ................................................ 3 Press Release vs. SEC filings: Net Income, Contingent Liabilities and Stock-based Compensation......... 4 Competitive Threat to Promacta and Kyprolis Not Yet Realized .............................................................. 5 Summary: Financials Continue Eroding while Liabilities Continue Increasing. 100 Percent Downside Risk Reaffirmed ......................................................................................................................................... 6 Full Disclaimer ........................................................................................................................................... 7 Overview  Despite a significant downward correction in the share price of Ligand Pharmaceuticals (NASDAQ: LGND) since the June 16, 2014 publication of its original research report on LGND, Lemelson Capital Management has since continued to increase its short position in the Company.", "o Lemelson Capital’s original June 16, 2014 report can be found here. o Lemelson Capital’s appended 12-page update published on July 3, 2014, can be found here. 2  Between June 16, 2014 and August 1, 2014, a period of approximately six weeks, shares in Ligand Pharmaceuticals have plunged roughly 35 percent, losing approximately $490 million in market capitalization.  Q2 2014 EPS plunged 76% from Q2 2013.  Collaborative Research and Development continue a multi-year slide with the release of the company’s Q2 earnings report, dropping ~80% in just a matter of four years.  When non-cash items are excluded, Q2 2014 revenue actually declined year over year.  Ligand’s press releases and communications with investors continue to paint an exceedingly and deceptively optimistic picture, including in its Q2 2014 earnings release this morning. Yet, the firm’s SEC filings reveal a business whose key revenue streams and earnings continue to decline, or are likely to diminish entirely. Revenue and earnings are down 76 percent year over year, contingent liabilities are up roughly 148 percent while management continues a policy of extraordinary shareholder dilution through stock-based compensation that exceeds by a significant margin the company’s net income from continuing operations.", " Once intangibles are removed from balance sheet, company shareholder equity is just $21,000 to shield the common shareholder from the litany of growing liabilities and severe competitive threats the company faces.  Promacta sales have not yet been impaired by new Hep C regimens that address multiple genotypes, but will be. Kyprolis, the company’s other major royalty generating program also faces severe competitive threats.  The financial condition of the company continues to erode rapidly offering essentially zero margin of safety to common shareholders. Disclaimer Following publication, Lemelson Capital may transact in the securities of the company. Lemelson Capital has obtained all information herein from sources it believes to be accurate and reliable. However, such information is presented “as is,” without warranty of any kind whether express or implied. Lemelson Capital makes no representation, express or implied, as to the accuracy, timeliness, or completeness of any such information or with regard to the results obtained from its use.", "All expressions of opinion are subject to change without notice, and Lemelson Capital does not undertake to update this report or any information contained herein. 3 Q2 2014 EPS Plunges 76 Percent Q2 2014 EPS has plunged 76 percent year over year. Net income attributable to common shareholders for the second quarter of 2014 was just $1.6 million, or $0.07 per diluted share, compared with net income attributable to common shareholders for the second quarter of 2013 of $6.1 million, or $0.30 per diluted share. Net income attributable to common shareholders for the first six months of 2014 was $3.7 million, or $0.17 per diluted share, compared with net income attributable to common shareholders of $7.6 million, or $0.37 per diluted share, for the same period in 2013, representing a decrease of 54.1 percent.", "Collaborative Research and Development Revenue Continues to Plummet Collaborative research and development and other revenues declined to just ~$4.3 million from ~$5.0 million for the same period in 2013, a decrease of 14 percent year over year and continuing a multi-year trend. Once the TG Therapeutics non-cash licensing agreement is backed out of revenue, collaborative research and development revenue declined even further, to just $3 million for all of 1H 2014, or a decline of some 38 percent over the same period in 2013. Collaborative R & D revenues (a substantial part of Ligand’s overall sales and business model), have already declined 79 percent in just the last four years, continuing to further concentrate the Company’s business into just two precariously fragile revenue streams. When Non-Cash Items are Removed, Q2 2014 Revenue Has Decreased The company reported in the Q2 earnings release that revenues for the second quarter of 2014 were $10.6 million, an increase of 11 percent compared with $9.6 million for the same period in 2013. However, this presentation of the data is potentially misleading. An upfront, non-cash license fee was received by Ligand from TG Therapeutics for the licensing of IRAK-4 in the second quarter of 2014.", "Under the terms of the agreement, Ligand received 125,000 shares of TG common stock, valued at approximately $1.2 million at signing. As of the close of market on August 1, 2014, the 125,000 shares had a value of just $917,500, a decrease in value to the company of some $300,000. Once this non-cash licensing fee is removed from the Q2 revenue figures, the company’s revenue was only $9.4 million, which is 2.1 percent less than the $9.6 million of revenue the company had in Q2 2013. 4 A statement of cash flows would have revealed this, but cash flow reporting was oddly omitted from the company’s Q2 2014 earnings release.", "Material sales decreased approximately $500,000, or 13 percent, to $3.5 million from $4.0 million for the same period in 2013, representing a drop of some 13 percent. Press Release vs. SEC filings: Net Income, Contingent Liabilities and Stock-based Compensation Net income from continuing operations dropped from $3,694,000 in Q2 of 2013 to just $1,592,000 in Q2 2014, representing a drop of approximately 57 percent (a decline of approximately 76 percent in EPS when accounting for continued dilution). Contingent liabilities to the company increased an extraordinary 147 percent during the same time period from $-2,741,000 to $1,312,000, while mark-to-market adjustments for investments would have taken another $797,000 off the income statement had the company reported the more correct and accurate GAAP figures. Despite the drop in revenues and the plunge in EPS, management continued to siphon off shareholder value through an extraordinary increase of approximately 100 percent in stock-based compensation during the first six months of 2014 alone.", "“…Ligand which has only speculative value and virtually no perceptible insight into future revenue or profitability, while maintaining a spectrum of significant liabilities, including from the Company itself vis-à-vis spectacular dilution. LIGAND PHARMACEUTICALS - SEVERE COMPETITIVE THREAT TO KEY ROYALTY PROGRAM AND “GOING CONCERN” RISK DRIVE 100 PERCENT DOWNSIDE JUNE 16, 2014 While net income attributable to Ligand common shareholders fell by approximately 53 percent from 1H 2013 ($7.6 million) to 1H 2014 ($3.7 million), management increased their awards by more than 100 percent, to approximately $5.1 million, or 27 percent greater than the company’s entire 1H 2014 earnings, with the lions share likely going to the company’s top two executives, validating the original research report that one of the greatest risk to Ligand earnings is from management itself. 5 Competitive Threat to Promacta and Kyprolis Not Yet Realized Promacta revenues (as was previously reported) from Hepatitis C patients are dependent on the use of interferon in Hepatitis C therapeutic regimens, which Lemelson Capital’s industry sources expect to be reduced significantly, if not entirely, in the future due to approvals of the new oral Hepatitis C treatments including but not limited to Gileand’s blockbuster therapy, Sovaldi.", "In its first two industry record shattering quarters on the market, Sovaldi has racked up sales of $5.8 billion despite reports that thousands of patients are still waiting for Gilead's two drugs in one pill combination treatment expected to gain U.S. approval in October. UPDATE 2-GILEAD HEPATITIS C DRUG SOVALDI RACKS UP $3.5 BLN IN QUARTER REUTERS – JULY 23, 2014 It was only last December 2013 that the U.S. Food and Drug Administration (FDA) approved Sovaldi, an oral treatment for chronic Hepatitis C, for use with Ribavirin and interferon. Solvaldi also appears to be used “off label” with Johnson and Johnson’s (NYSE:JNJ) Olysio. These new oral combination regimens present a severe competitive threat to future Promacta sales as outlined in the original June 16, research report.", "However, this has not yet shown up in GlaxoSmithKline’s (NASDAQ: GSK) Promacta sales figures since prescribing physicians, as part of the initial regiments, have continued to prescribe the new treatments in combination with interferon (a point also outlined in the original June 16 report), a practice set to change. Further, Solvaldi will gain additional future competition from drugs in development by AbbVie Inc. (NASDAQ:ABBV) and Merck & Company (NYSE:MRK), creating a more competitive market for the oral Hepatitis C drug market that will undoubtedly drive future promotional efforts, price points and parenthetically further pressure legacy indications such as Promacta, which without interferon have no commercially viable application in Hepatitis C treatment. The key point is that doctors will eliminate interferon (an expensive indication) in the future when prescribing Sovaldi and other oral combination regimens. Further clouding the issue is the fact that at least one vocal analyst has repeatedly promoted the idea that interferon will continue to be a mainstay of Hepatitis C treatment for certain genotypes outside of the U.S. However, prescribing information for Solvadi contradicts and invalidates such a suggestion. 6 Solvaldi Indications HCV Mono-infected and Treatment Duration HCV/HIV-1 Co-infected Genotype 1 or 4 SOVALDI + peg- 12 weeks interferon alfa + ribavirin Genotype 2 SOVALDI + ribavirin 12 weeks Genotype 3 SOVALDI + ribavirin 24 weeks SOURCE: SOLVALDI PRESCRIBING INFORMATION Like Promacta, Kyprolis also faces an extraordinary competitive threat from two entrenched multiple myloma (MM) indications, Celgene’s (NASDAQ:CELG) Revlimid and Takeda Pharmaceutical Company Limited’s (OTC:TKPYY) Velcade.", "Celgene also markets Pomalyst (Pomalidomide), another thalidomide analogue, which was approved in 2013 for the treatment of MM patients who have received at least two prior therapies including Revlimid and Velcade and have demonstrated disease progression on or within 60 days of completion of the last therapy. Although Kyprolis has U.S. Orphan Drug designation with exclusivity through July 2019 and U.S. patents that extend until at least 2025, Velcade patent expires in the U.S. in 2017 and 2019 in the E.U, opening the door for much less expensive generics. Kyprolis’ future competition may also include Amgen’s pipeline product, Oprozomib, that is in Phase II development. Summary: Financials Continue Eroding while Liabilities Continue Increasing. 100 Percent Downside Risk Reaffirmed EPS has plunged 76 percent year-over year through Q2 2014 without explanation from management. Collaborative research and development revenue has fallen 38 percent year-over-year (when non-cash items are backed out), continuing a multi-year trend.", "The company has awarded its executives 47.4 percent more in stock-based compensation than the company has earned in Q2 2014, and ~27 more than the company earned in 1H 2014. The company’s tangible equity is just $21,000 against a comparatively monstrous market capitalization of approximately $1.1 billion, while the company’s net earnings were just $1.59 million in Q2 2014. Liabilities continue to grow at a fast pace, while all of the company’s insipid earnings continue to be entirely eliminated by ever-increasing stock-based compensation. 7 The Company’s business model as a “broker” of obscure, third-line, unknown and largely untested indications is inherently flawed and filled with extraordinary risk. It is worth considering why so much time, energy and resources are invested by the company in extraordinarily complex transactions that are often presented to the public in a different light than they are to the SEC. A common shareholder is distinct from bond-holders or other forms of secured securities holders.", "Shares of Ligand have already lost approximately 35 percent since the publication of the original LCM report on June 16, 2014 through the close of market on August 1, 2014 (a loss of some $490 million in market capitalization in slightly over six weeks). Common shareholders of Ligand now have just $21,000 in tangible equity to shield them from the slightest bad news which could send the company’s $1.1 billion market capitalization tumbling substantially further. Indeed the company’s intangible and contingent liabilities could easily exceed $21,000 in a day. For this reason, as well as those enumerated in LCM’s previous reports, the intrinsic value of Ligand shares must be reaffirmed as $0 with downside risk justifiably calculated at 100 percent. Full Disclaimer As of the publication date of this report, Lemelson Capital Management LLC has a short position in the Company covered herein (Ligand Pharmaceuticals) and stands to realize gains in the event that the price of the stock declines.", "Following publication of the report, Lemelson Capital may transact in the securities of the Company covered herein. All content in this report represents the opinions of Lemelson Capital. Lemelson Capital has obtained all information herein from sources it believes to be accurate and reliable. However, such information is presented “as is,” without warranty of any kind, whether express or implied. Lemelson Capital makes no representation, express or implied, as to the accuracy, timeliness, or completeness of any such information or with regard to the results obtained from its use. All expressions of opinion are subject to change without notice, and Lemelson Capital does not undertake to update or supplement this report or any information contained herein. This document is for informational purposes only and it is not intended as an official confirmation of any transaction.", "All market prices, data and other information are not warranted as to completeness or accuracy and are subject to change without notice. The information included in this document is based upon selected public market data and reflects prevailing conditions and Lemelson Capital’s views as of this date, all of which are accordingly subject to change. Lemelson Capital’s opinions and estimates constitute a best efforts judgment and should be regarded as indicative, preliminary and for illustrative purposes only. 8 Any investment involves substantial risks, including, but not limited to, pricing volatility, inadequate liquidity, and the potential complete loss of principal.", "This report’s estimated fundamental value only represents a best efforts estimate of the potential fundamental valuation of a specific security, and is not expressed as, or implied as, assessments of the quality of a security, a summary of past performance, or an actionable investment strategy for an investor. This document does not in any way constitute an offer or solicitation of an offer to buy or sell any investment, security, or commodity discussed herein or of any of the affiliates of Lemelson Capital. Also, this document does not in any way constitute an offer or solicitation of an offer to buy or sell any security in any jurisdiction in which such an offer would be unlawful under the securities laws of such jurisdiction.", "To the best of Lemelson Capital’s abilities and beliefs, all information contained herein is accurate and reliable. Lemelson Capital reserves the rights for their affiliates, officers, and employees to hold cash or derivative positions in any Company discussed in this document at any time. As of the original publication date of this document, investors should assume that Lemelson Capital is short shares of Ligand and may have positions in financial derivatives that reference this security and stand to potentially realize gains in the event that the market valuation of the Company’s common equity is lower than prior to the original publication date. These affiliates, officers, and individuals shall have no obligation to inform any investor about their historical, current, and future trading activities. In addition, Lemelson Capital may benefit from any change in the valuation of any other companies, securities, or commodities discussed in this document." ]	https://www.courtlistener.com/api/rest/v3/recap-documents/147446054/	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
Citation Nr: 1539525 Decision Date: 09/15/15 Archive Date: 09/24/15 DOCKET NO. 08-29 866 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a right arm disability. 2. Entitlement to service connection for a left arm disability. 3. Entitlement to service connection for a left leg disability. 4. Entitlement to service connection for a cervical spine disability. 5. Entitlement to service connection for a lumbar spine disability. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Matthew Schlickenmaier, Associate Counsel INTRODUCTION The Veteran served on active duty from September to December 1981, May to September 1994, October 1994 to March 1995, and September 2004 to March 2005. She also had Reserve service including a period of active duty for training that began on January 12, 2004. This case is before the Board of Veterans' Appeals (BVA or Board) on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the benefits sought on appeal. In September 2010, the Veteran presented testimony before the undersigned and a copy of the transcript is associated with the electronic record. In a February 2011 decision, the Board denied service connection for hearing loss and tinnitus and remanded the remaining issues on appeal to the RO via the Appeals Management Center (AMC) for additional development of the record. In November 2014, the Board again remanded the appeal for further development, and the case has been returned to the Board for appellate consideration. This appeal was processed using the Virtual Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The issues of entitlement to service connection for a left arm disability and a left leg disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's right arm disability is unrelated to active military service. 2. The Veteran's cervical spine disability is unrelated to active military service. 3. The Veteran's lumbar spine disability is unrelated to active military service. CONCLUSIONS OF LAW 1. A right arm disability was not incurred in or aggravated by active military service, and arthritis may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.1, 3.6, 3.102, 3.159, 3.303, 3.307, 3.309 (2015). 2. A cervical spine disability was not incurred in or aggravated by active military service, and arthritis may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.1, 3.6, 3.102, 3.159, 3.303, 3.307, 3.309 (2015). 3. A lumbar spine disability was not incurred in or aggravated by active military service, and arthritis may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.1, 3.6, 3.102, 3.159, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. In May 2006, VA notified the Veteran of the information and evidence needed to substantiate her claim, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. There is no evidence that additional records have yet to be requested, or that additional examinations are in order. Here, the Veteran contends that her disabilities were caused by two accidents, one during a period of active service in Germany from November 1994 through March 1995 and the other during a period of active duty for training in January 2004. While numerous records substantiate the January 2004 motor vehicle accident, the Veteran's service treatment records do not document an injury as described by the Veteran from 1994. Numerous attempts to obtain the records have been unsuccessful and in an April 2013 memorandum, the RO made a formal finding of unavailability of the medical records from the U.S. Army Hospital in Kaiserslautern, Germany for January 1, 1994 through September 2004. The Board is aware that in such situations, it has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The record contains VA medical records, private medical records, records from the Social Security Administration, the transcript of the September 2010 hearing before the undersigned Acting Veterans Law Judge, and the Veteran's statements in support of her claims. The Board has carefully reviewed the statements and concludes that there has been no identification of further available evidence not already of record other than the records addressed above. The Veteran was afforded VA examinations in June 2007 and March 2015. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the March 2015 VA opinion obtained in this case is more than adequate, as it is predicated on a reading of the Veteran's claims file and medical records, and the results of the current examination. It considers all of the pertinent evidence of record, to include the statements of the Veteran, and provides rationales. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c) (4); Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). Also, as noted above, the Veteran presented testimony in a hearing before the undersigned Acting Veterans Law Judge. In this regard, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.103(c)(2) requires that the RO official or Veterans Law Judge who conducts a hearing fulfill two duties to comply with this regulation. These duties consist of: (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. This was done during the September 2010 hearing before the Board. Additionally, to the extent possible, VA obtained the relevant evidence and information needed to adjudicate the claims. The Veteran has not asserted that VA has failed to comply with 38 C.F.R. § 3.103(c)(2) , nor have they identified any prejudice in the conducting of the Board hearing. Thus, the duties to notify and assist have been met. Pursuant to the Board's February 2011 and November 2014 remands, the AOJ made all necessary attempts to obtain any outstanding and relevant treatment records, obtained adequate VA examinations and opinions, readjudicated the claims, and issued supplemental statements of the case. Based on the foregoing actions, the Board finds that there has been substantial compliance with the prior remands. Stegall v. West, 11 Vet. App. 268 (1998). Legal Principles and Analysis With respect to each of the Veteran's claims, the Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for disability resulting from disease or injury incurred in or aggravated while performing active duty for training (ACDUTRA), which means, in pertinent part, full-time duty in the Armed Forces performed by Reserves for training. 38 U.S.C.A. § 101. For disorders claimed to have been incurred or aggravated during ACDUTRA, the claimant must establish a service connected disability in order to achieve status as a veteran. Paulson v. Brown, 7 Vet. App. 466, 470 (1995). Arthritis, if manifest to a degree of 10 percent within one year after separation from active duty, may be presumed to have been incurred in service. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Alternatively, a nexus to service may be presumed where there is continuity of symptomatology since service. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Here, again, the Veteran asserts that her right arm, cervical spine and lumbar spine disabilities were caused by two accidents, one during a period of active duty from November 1994 through March 1995 and the other during a period of ACDUTRA in January 2004. Service treatment records from 1981 show complaints of low back pain and left lower extremity pain after stepping in a hole and twisting her knee and ankle. A June 1989 line of duty determination shows a complaint of insect bites and low back pain unrelated to an accident. At a February 1992 examination, the Veteran reported occasional cramps in her legs, which were not incapacitating. A September 19, 1994, orthopedic consultation request relates that the Veteran returned from Europe with an abnormal right upper extremity post injury in Germany. A November 2003 record from Scott Air Force Base shows that she denied a prior history of medical problems. On January 12, 2004, the Veteran was ordered to ACDUTRA for five days. The same day she was involved in a motor vehicle accident, which resulted in neck and lumbar sprains. The accident was determined to have occurred in the line of duty. A December 2004 annual medical evaluation shows that the Veteran denied back pain and was determined to be fit for duty. In June 2007, a VA examiner diagnosed the Veteran with lumbar strain by history and cervical strain by history but opined that none of the Veteran's current complaints or findings were related to the January 2004 accident and/or it would be too speculative to consider the current findings as related to the accident in 2004. While the VA examiner also noted several service treatment records from 1981 and 1994 which documented complaints of pain in the right arm and low back, the Veteran reported that those problems had resolved prior to the 2004 motor vehicle accident. A June 2008 x-ray revealed a mild S-shaped curvature of the thoracic spine, consistent with scoliosis; mild kyphosis of the upper thoracic spine; disc space narrowing and endplate remodeling consistent with multilevel degenerative disc disease in the midthoracic spine; degenerative disc disease at L5-S1; minimal levoconvex curvature of the lumbar spine centered at L4 suggestive of mild scoliosis; degenerative disc disease at C5-C6 and at C4-C5 and straightening of the cervical spine. A November 2009 VA treatment record shows an assessment of myofascial pain syndrome. Another November 2009 VA treatment record reveals that the Veteran reported that every year on the anniversary of the 2004 motor vehicle accident, the pain returns and she "hurts all over." In June 2010, the Social Security Administration determined in part that she injured her neck and back in 1994 and again in the 2004 motor vehicle accident. In August 2010, the Veteran reported to a VA doctor that she experienced back and hip pain that she related to the 2004 car accident. After examining the Veteran and reviewing an MRI and CT scan of the spine, the doctor's assessment was that her pain was likely due to osteoarthritic changes complicated with muscle spasm. At the September 2010 hearing, the Veteran testified that she originally injured her right arm, cervical spine and lumbar spine in Germany in 1994 or 1995 when she fell off of an extremely big, heavy vehicle that was twice her height. She stated that she was treated at an Army hospital in Kaiserslautern, Germany and received physical therapy at her base but her problems had continued since then. She also stated that she has experienced problems ever since the January 2004 accident and that she has been constantly been in pain since that time. A December 2010 VA treatment record shows that the Veteran reported being involved in another motor vehicle accident which resulted in neck and back pain. At a March 2015 VA examination, the author of the June 2007 VA examination, a staff physician, conducted a thorough examination of the Veteran, considered her reported history and subjective complaints and reviewed the entire electronic claims file. As to the low back, the examiner observed that March 2015 x-rays revealed increased degenerative disc disease with subchondral sclerosis, disc space narrowing and anterior spur formation at L5-S1; the impression was lumbar sprain with degenerative disc disease L5-S1. The examiner noted that the Veteran had subjective complaints of low back pain with improved range of motion since 2007. The examiner opined that although there was an increase in the amount of degenerative disc disease at L5-S1 since 2007, this was due to the normal aging process and the low back condition was due to degenerative disc disease and "not related to anything that occurred in the military." The examiner also observed that, contrary to the June 2007 VA examination, the Veteran now reported that her low back pain had started in 1994. As to the neck, the examiner diagnosed the Veteran with chronic cervical strain with degenerative disc disease at C5-C6 based in part on a May 2013 cervical spine x-ray showing evidence of degenerative disc disease with moderate disc space narrowing and anterior spur formation at C5-C6 but disc spaces at C4-C5 and C6-C7 that were well maintained. He opined that her subjective complaints and the x-ray findings were due to degenerative disc disease at C5-C6 and that the current neck disorder was related to aging but not specifically related to any motor vehicle accident in 2004. As to the right upper extremity, the examiner noted that a 2007 elbow x-ray was negative and that there were no physical findings or specific history indicating radiculopathy. The impression was that there was no right upper extremity pathology. The examiner opined that while there were soft tissue injuries noted in the service treatment records, there were no findings nor history to suggest that the Veteran's current symptoms were a continuation of those in service or were otherwise related to the in service conditions. He added that while he considered the Veteran's subjective complaints of pain, objective testing did not reveal any abnormalities. In light of the above, the Board finds that the claims must be denied. While the record has shown evidence of current disabilities, in order for these to be recognized as service connected, the medical evidence must establish a link between these conditions and the claimed 1994 injury or the January 2004 motor vehicle accident that occurred during ACDUTRA. Except for a September 1994 notation indicating an abnormal right upper extremity post-injury, service treatment records do not document an injury as described by the Veteran from 1994. More significantly, her statements regarding the allegedly resulting injuries have been inconsistent. Although at the September 2010 hearing, she reported that her disabilities began in 1994 and continued until the present time, at the June 2007 VA examination, she reported that prior to the 2004 motor vehicle accident, the disabilities had resolved and were not causing any difficulties. Indeed, the November 2003 record from Scott Air Force Base shows that she denied a prior history of medical problems at that time. Such inconsistencies severely undercut the Veteran's credibility as to the existence of the claimed 1994 injury and any resulting symptomatology. See Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). While the January 2004 car accident clearly occurred during a period of ACDUTRA, her statements regarding any resulting symptoms have been similarly inconsistent. At the September 2010 hearing, she described having been in constant pain since both accidents; however, the November 2009 VA treatment record shows that she reported that every year on the anniversary of the 2004 motor vehicle accident, the pain returns and she hurts all over, suggesting that she is otherwise generally without pain. Further casting doubt on her more recent statements is the fact that in December 2010, she reported being involved in another motor vehicle accident which resulted in neck and back pain. Thus, to the extent the Veteran may even be considered competent to describe traumatic injuries resulting from the car accident, her statements are not credible. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007) (testimony as to a medical process extending beyond an immediately observable cause-and-effect relationship is generally of the type that courts have found to be beyond the competence of lay witnesses). The March 2015 VA examiner's opinion as to the etiology of the above disorders is adequate and is of significant probative value since he indicated that he thoroughly reviewed the claims file and examined the Veteran. As the VA examiner explained the reasons for his conclusions based on an accurate characterization of the evidence of record, his opinion is entitled to significant probative weight. See Nieves-Rodriguez, 22 Vet. App. at 304. That the August 2010 VA doctor also concluded that the Veteran's pain was unrelated to the 2004 accident further corroborates the March 2015 VA examiner's opinion. There is no indication that the Social Security Administration's notation that the Veteran injured her neck and back in 1994 and 2004 was made after a thorough analysis of the service treatment records or that the agency had access to records VA did not. As such, these findings are insufficient to establish that she her cervical and lumbar spine disorders are service connected. Indeed, the findings of the Social Security Administration are not binding on the Board since the rules and regulations governing the award of Social Security disability benefits differ from those governing the award of VA benefits. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). While service treatment records do show complaints of right arm pain and back pain prior to the alleged 1994 injury, the evidence does not show - and the Veteran does not contend - that such notations are in any way related to her current complaints. Thus, the current disabilities are not otherwise related to service. While the Veteran has arthritis, there is no evidence that any arthritis manifest to a degree of 10 percent within one year after separation from any period of active duty. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Nor is there evidence a continuity of symptomatology since service. Walker, 708 F.3d at 1338-40. Even considering the Board's heightened obligation to carefully consider the benefit-of-the-doubt rule, the above evidence preponderates against finding that any current cervical spine, lumbar spine, and right arm disorder is related to service. 38 U.S.C.A. § 5107(b). Therefore, \ the claims are denied. ORDER Entitlement to service connection for a right arm disability is denied. Entitlement to service connection for a cervical spine disability is denied. Entitlement to service connection for a lumbar spine disability is denied. REMAND As to the remaining claims, an addendum opinion is needed to address deficiencies in the March 2015 VA examination. Regarding the left leg, the November 2014 Board remand directed the examiner to provide an opinion as to the current nature and likely etiology of the Veteran's current left leg disability. The March 2015 VA examiner discussed the knee but failed to provide an opinion addressing other aspects of the left lower extremity. Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, an addendum opinion is required. As to the left arm, the November 2014 Board remand also noted that a June 2007 left shoulder x-ray revealed "sclerotic changes in the head of the humerus raising the possibility of prior trauma." The March 2015 VA examiner's opinion did not address such findings even though he noted that the Veteran's current complaints were located near her scapula and trapezius muscles. An addendum opinion is therefore also needed to address this relevant evidence. Accordingly, the case is REMANDED for the following actions: 1. Forward the entire claims file in electronic records to the examiner who prepared the March 2015 VA opinion or, if that examiner is unavailable, to another suitably qualified VA examiner. The examiner should review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records and lay statements. The rationale for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the opinion report, and a rationale should be provided for that conclusion. If additional examination is indicated, it should be scheduled in accordance with applicable procedures. The examiner should provide an opinion addressing whether it is at least as likely as not that any current left leg disability is related to service, or was otherwise caused by service, to include a January 2004 in-service car accident and a claimed injury in 1994. The opinion should address the entire left lower extremity. The examiner should also provide an opinion addressing whether it is at least as likely as not that any current left arm disability is related to service, or was otherwise caused by service, to include a January 2004 in-service car accident and a claimed injury in 1994. The opinion should address the June 2007 left shoulder x-ray noting sclerotic changes in the head of the humerus raising the possibility of prior trauma. 2. After the development requested has been completed, the AOJ should review any report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures at once. 3. After completing any additional development deemed necessary, readjudicate the claims. If any benefit requested on appeal is not granted to the Veteran's satisfaction, the Veteran should be furnished a supplemental statement of the case, which addresses all of the evidence obtained after the issuance of the last supplemental statement of the case, and provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. 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 2014). ______________________________________________ LANA K. JENG Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs	09-15-2015	[ "Citation Nr: 1539525 Decision Date: 09/15/15 Archive Date: 09/24/15 DOCKET NO. 08-29 866 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a right arm disability. 2. Entitlement to service connection for a left arm disability. 3. Entitlement to service connection for a left leg disability. 4. Entitlement to service connection for a cervical spine disability. 5. Entitlement to service connection for a lumbar spine disability. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Matthew Schlickenmaier, Associate Counsel INTRODUCTION The Veteran served on active duty from September to December 1981, May to September 1994, October 1994 to March 1995, and September 2004 to March 2005. She also had Reserve service including a period of active duty for training that began on January 12, 2004. This case is before the Board of Veterans' Appeals (BVA or Board) on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the benefits sought on appeal. In September 2010, the Veteran presented testimony before the undersigned and a copy of the transcript is associated with the electronic record. In a February 2011 decision, the Board denied service connection for hearing loss and tinnitus and remanded the remaining issues on appeal to the RO via the Appeals Management Center (AMC) for additional development of the record.", "In November 2014, the Board again remanded the appeal for further development, and the case has been returned to the Board for appellate consideration. This appeal was processed using the Virtual Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The issues of entitlement to service connection for a left arm disability and a left leg disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's right arm disability is unrelated to active military service. 2. The Veteran's cervical spine disability is unrelated to active military service.", "3. The Veteran's lumbar spine disability is unrelated to active military service. CONCLUSIONS OF LAW 1. A right arm disability was not incurred in or aggravated by active military service, and arthritis may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.1, 3.6, 3.102, 3.159, 3.303, 3.307, 3.309 (2015). 2. A cervical spine disability was not incurred in or aggravated by active military service, and arthritis may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.1, 3.6, 3.102, 3.159, 3.303, 3.307, 3.309 (2015). 3. A lumbar spine disability was not incurred in or aggravated by active military service, and arthritis may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R.", "§§ 3.1, 3.6, 3.102, 3.159, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. In May 2006, VA notified the Veteran of the information and evidence needed to substantiate her claim, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain.", "VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. There is no evidence that additional records have yet to be requested, or that additional examinations are in order. Here, the Veteran contends that her disabilities were caused by two accidents, one during a period of active service in Germany from November 1994 through March 1995 and the other during a period of active duty for training in January 2004. While numerous records substantiate the January 2004 motor vehicle accident, the Veteran's service treatment records do not document an injury as described by the Veteran from 1994.", "Numerous attempts to obtain the records have been unsuccessful and in an April 2013 memorandum, the RO made a formal finding of unavailability of the medical records from the U.S. Army Hospital in Kaiserslautern, Germany for January 1, 1994 through September 2004. The Board is aware that in such situations, it has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The record contains VA medical records, private medical records, records from the Social Security Administration, the transcript of the September 2010 hearing before the undersigned Acting Veterans Law Judge, and the Veteran's statements in support of her claims. The Board has carefully reviewed the statements and concludes that there has been no identification of further available evidence not already of record other than the records addressed above.", "The Veteran was afforded VA examinations in June 2007 and March 2015. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the March 2015 VA opinion obtained in this case is more than adequate, as it is predicated on a reading of the Veteran's claims file and medical records, and the results of the current examination. It considers all of the pertinent evidence of record, to include the statements of the Veteran, and provides rationales. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c) (4); Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). Also, as noted above, the Veteran presented testimony in a hearing before the undersigned Acting Veterans Law Judge. In this regard, in Bryant v. Shinseki, 23 Vet.", "App. 488 (2010), the United States Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.103(c)(2) requires that the RO official or Veterans Law Judge who conducts a hearing fulfill two duties to comply with this regulation. These duties consist of: (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. This was done during the September 2010 hearing before the Board. Additionally, to the extent possible, VA obtained the relevant evidence and information needed to adjudicate the claims. The Veteran has not asserted that VA has failed to comply with 38 C.F.R. § 3.103(c)(2) , nor have they identified any prejudice in the conducting of the Board hearing. Thus, the duties to notify and assist have been met. Pursuant to the Board's February 2011 and November 2014 remands, the AOJ made all necessary attempts to obtain any outstanding and relevant treatment records, obtained adequate VA examinations and opinions, readjudicated the claims, and issued supplemental statements of the case. Based on the foregoing actions, the Board finds that there has been substantial compliance with the prior remands.", "Stegall v. West, 11 Vet. App. 268 (1998). Legal Principles and Analysis With respect to each of the Veteran's claims, the Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims.", "Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a veteran must show: \"(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir.", "2010). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for disability resulting from disease or injury incurred in or aggravated while performing active duty for training (ACDUTRA), which means, in pertinent part, full-time duty in the Armed Forces performed by Reserves for training. 38 U.S.C.A. § 101. For disorders claimed to have been incurred or aggravated during ACDUTRA, the claimant must establish a service connected disability in order to achieve status as a veteran. Paulson v. Brown, 7 Vet. App. 466, 470 (1995). Arthritis, if manifest to a degree of 10 percent within one year after separation from active duty, may be presumed to have been incurred in service.", "38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Alternatively, a nexus to service may be presumed where there is continuity of symptomatology since service. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A.", "§ 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Here, again, the Veteran asserts that her right arm, cervical spine and lumbar spine disabilities were caused by two accidents, one during a period of active duty from November 1994 through March 1995 and the other during a period of ACDUTRA in January 2004. Service treatment records from 1981 show complaints of low back pain and left lower extremity pain after stepping in a hole and twisting her knee and ankle.", "A June 1989 line of duty determination shows a complaint of insect bites and low back pain unrelated to an accident. At a February 1992 examination, the Veteran reported occasional cramps in her legs, which were not incapacitating. A September 19, 1994, orthopedic consultation request relates that the Veteran returned from Europe with an abnormal right upper extremity post injury in Germany. A November 2003 record from Scott Air Force Base shows that she denied a prior history of medical problems. On January 12, 2004, the Veteran was ordered to ACDUTRA for five days. The same day she was involved in a motor vehicle accident, which resulted in neck and lumbar sprains. The accident was determined to have occurred in the line of duty.", "A December 2004 annual medical evaluation shows that the Veteran denied back pain and was determined to be fit for duty. In June 2007, a VA examiner diagnosed the Veteran with lumbar strain by history and cervical strain by history but opined that none of the Veteran's current complaints or findings were related to the January 2004 accident and/or it would be too speculative to consider the current findings as related to the accident in 2004. While the VA examiner also noted several service treatment records from 1981 and 1994 which documented complaints of pain in the right arm and low back, the Veteran reported that those problems had resolved prior to the 2004 motor vehicle accident. A June 2008 x-ray revealed a mild S-shaped curvature of the thoracic spine, consistent with scoliosis; mild kyphosis of the upper thoracic spine; disc space narrowing and endplate remodeling consistent with multilevel degenerative disc disease in the midthoracic spine; degenerative disc disease at L5-S1; minimal levoconvex curvature of the lumbar spine centered at L4 suggestive of mild scoliosis; degenerative disc disease at C5-C6 and at C4-C5 and straightening of the cervical spine.", "A November 2009 VA treatment record shows an assessment of myofascial pain syndrome. Another November 2009 VA treatment record reveals that the Veteran reported that every year on the anniversary of the 2004 motor vehicle accident, the pain returns and she \"hurts all over.\" In June 2010, the Social Security Administration determined in part that she injured her neck and back in 1994 and again in the 2004 motor vehicle accident. In August 2010, the Veteran reported to a VA doctor that she experienced back and hip pain that she related to the 2004 car accident. After examining the Veteran and reviewing an MRI and CT scan of the spine, the doctor's assessment was that her pain was likely due to osteoarthritic changes complicated with muscle spasm.", "At the September 2010 hearing, the Veteran testified that she originally injured her right arm, cervical spine and lumbar spine in Germany in 1994 or 1995 when she fell off of an extremely big, heavy vehicle that was twice her height. She stated that she was treated at an Army hospital in Kaiserslautern, Germany and received physical therapy at her base but her problems had continued since then. She also stated that she has experienced problems ever since the January 2004 accident and that she has been constantly been in pain since that time. A December 2010 VA treatment record shows that the Veteran reported being involved in another motor vehicle accident which resulted in neck and back pain. At a March 2015 VA examination, the author of the June 2007 VA examination, a staff physician, conducted a thorough examination of the Veteran, considered her reported history and subjective complaints and reviewed the entire electronic claims file.", "As to the low back, the examiner observed that March 2015 x-rays revealed increased degenerative disc disease with subchondral sclerosis, disc space narrowing and anterior spur formation at L5-S1; the impression was lumbar sprain with degenerative disc disease L5-S1. The examiner noted that the Veteran had subjective complaints of low back pain with improved range of motion since 2007. The examiner opined that although there was an increase in the amount of degenerative disc disease at L5-S1 since 2007, this was due to the normal aging process and the low back condition was due to degenerative disc disease and \"not related to anything that occurred in the military.\" The examiner also observed that, contrary to the June 2007 VA examination, the Veteran now reported that her low back pain had started in 1994.", "As to the neck, the examiner diagnosed the Veteran with chronic cervical strain with degenerative disc disease at C5-C6 based in part on a May 2013 cervical spine x-ray showing evidence of degenerative disc disease with moderate disc space narrowing and anterior spur formation at C5-C6 but disc spaces at C4-C5 and C6-C7 that were well maintained. He opined that her subjective complaints and the x-ray findings were due to degenerative disc disease at C5-C6 and that the current neck disorder was related to aging but not specifically related to any motor vehicle accident in 2004. As to the right upper extremity, the examiner noted that a 2007 elbow x-ray was negative and that there were no physical findings or specific history indicating radiculopathy. The impression was that there was no right upper extremity pathology. The examiner opined that while there were soft tissue injuries noted in the service treatment records, there were no findings nor history to suggest that the Veteran's current symptoms were a continuation of those in service or were otherwise related to the in service conditions.", "He added that while he considered the Veteran's subjective complaints of pain, objective testing did not reveal any abnormalities. In light of the above, the Board finds that the claims must be denied. While the record has shown evidence of current disabilities, in order for these to be recognized as service connected, the medical evidence must establish a link between these conditions and the claimed 1994 injury or the January 2004 motor vehicle accident that occurred during ACDUTRA. Except for a September 1994 notation indicating an abnormal right upper extremity post-injury, service treatment records do not document an injury as described by the Veteran from 1994.", "More significantly, her statements regarding the allegedly resulting injuries have been inconsistent. Although at the September 2010 hearing, she reported that her disabilities began in 1994 and continued until the present time, at the June 2007 VA examination, she reported that prior to the 2004 motor vehicle accident, the disabilities had resolved and were not causing any difficulties. Indeed, the November 2003 record from Scott Air Force Base shows that she denied a prior history of medical problems at that time. Such inconsistencies severely undercut the Veteran's credibility as to the existence of the claimed 1994 injury and any resulting symptomatology. See Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). While the January 2004 car accident clearly occurred during a period of ACDUTRA, her statements regarding any resulting symptoms have been similarly inconsistent. At the September 2010 hearing, she described having been in constant pain since both accidents; however, the November 2009 VA treatment record shows that she reported that every year on the anniversary of the 2004 motor vehicle accident, the pain returns and she hurts all over, suggesting that she is otherwise generally without pain.", "Further casting doubt on her more recent statements is the fact that in December 2010, she reported being involved in another motor vehicle accident which resulted in neck and back pain. Thus, to the extent the Veteran may even be considered competent to describe traumatic injuries resulting from the car accident, her statements are not credible. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007) (testimony as to a medical process extending beyond an immediately observable cause-and-effect relationship is generally of the type that courts have found to be beyond the competence of lay witnesses). The March 2015 VA examiner's opinion as to the etiology of the above disorders is adequate and is of significant probative value since he indicated that he thoroughly reviewed the claims file and examined the Veteran. As the VA examiner explained the reasons for his conclusions based on an accurate characterization of the evidence of record, his opinion is entitled to significant probative weight. See Nieves-Rodriguez, 22 Vet.", "App. at 304. That the August 2010 VA doctor also concluded that the Veteran's pain was unrelated to the 2004 accident further corroborates the March 2015 VA examiner's opinion. There is no indication that the Social Security Administration's notation that the Veteran injured her neck and back in 1994 and 2004 was made after a thorough analysis of the service treatment records or that the agency had access to records VA did not. As such, these findings are insufficient to establish that she her cervical and lumbar spine disorders are service connected. Indeed, the findings of the Social Security Administration are not binding on the Board since the rules and regulations governing the award of Social Security disability benefits differ from those governing the award of VA benefits.", "See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). While service treatment records do show complaints of right arm pain and back pain prior to the alleged 1994 injury, the evidence does not show - and the Veteran does not contend - that such notations are in any way related to her current complaints. Thus, the current disabilities are not otherwise related to service. While the Veteran has arthritis, there is no evidence that any arthritis manifest to a degree of 10 percent within one year after separation from any period of active duty. 38 U.S.C.A.", "§§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Nor is there evidence a continuity of symptomatology since service. Walker, 708 F.3d at 1338-40. Even considering the Board's heightened obligation to carefully consider the benefit-of-the-doubt rule, the above evidence preponderates against finding that any current cervical spine, lumbar spine, and right arm disorder is related to service. 38 U.S.C.A. § 5107(b). Therefore, \\ the claims are denied. ORDER Entitlement to service connection for a right arm disability is denied.", "Entitlement to service connection for a cervical spine disability is denied. Entitlement to service connection for a lumbar spine disability is denied. REMAND As to the remaining claims, an addendum opinion is needed to address deficiencies in the March 2015 VA examination. Regarding the left leg, the November 2014 Board remand directed the examiner to provide an opinion as to the current nature and likely etiology of the Veteran's current left leg disability. The March 2015 VA examiner discussed the knee but failed to provide an opinion addressing other aspects of the left lower extremity. Stegall v. West, 11 Vet.", "App. 268, 271 (1998). As such, an addendum opinion is required. As to the left arm, the November 2014 Board remand also noted that a June 2007 left shoulder x-ray revealed \"sclerotic changes in the head of the humerus raising the possibility of prior trauma.\" The March 2015 VA examiner's opinion did not address such findings even though he noted that the Veteran's current complaints were located near her scapula and trapezius muscles. An addendum opinion is therefore also needed to address this relevant evidence. Accordingly, the case is REMANDED for the following actions: 1. Forward the entire claims file in electronic records to the examiner who prepared the March 2015 VA opinion or, if that examiner is unavailable, to another suitably qualified VA examiner.", "The examiner should review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records and lay statements. The rationale for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the opinion report, and a rationale should be provided for that conclusion. If additional examination is indicated, it should be scheduled in accordance with applicable procedures. The examiner should provide an opinion addressing whether it is at least as likely as not that any current left leg disability is related to service, or was otherwise caused by service, to include a January 2004 in-service car accident and a claimed injury in 1994. The opinion should address the entire left lower extremity. The examiner should also provide an opinion addressing whether it is at least as likely as not that any current left arm disability is related to service, or was otherwise caused by service, to include a January 2004 in-service car accident and a claimed injury in 1994.", "The opinion should address the June 2007 left shoulder x-ray noting sclerotic changes in the head of the humerus raising the possibility of prior trauma. 2. After the development requested has been completed, the AOJ should review any report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures at once.", "3. After completing any additional development deemed necessary, readjudicate the claims. If any benefit requested on appeal is not granted to the Veteran's satisfaction, the Veteran should be furnished a supplemental statement of the case, which addresses all of the evidence obtained after the issuance of the last supplemental statement of the case, and provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. 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 2014). ______________________________________________ LANA K. JENG Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs" ]	https://drive.google.com/drive/folders/12lAd8Os7VFeqbTKi4wcqJqODjHIn0-yQ?usp=sharing	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law
UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY ELISEO JIMENEZ, No. 19-cv-17193 (NLH) (SAK) Plaintiff, v. OPINION DETECTIVE DANIEL CHOE, et al., Defendants. APPEARANCE: Eliseo Jimenez 269336 Atlantic County Jail 5060 Atlantic Ave Mays Landing, NJ 08330 Plaintiff Pro se HILLMAN, District Judge Plaintiff Eliseo Jimenez, presently incarcerated in the Atlantic County Jail in Mays Landing, New Jersey, seeks to bring a claim pursuant to 42 U.S.C. § 1983, against Detective Daniel Choe and the Atlantic County Prosecutor’s Office. See ECF No. 1. At this time, the Court must review the Complaint, pursuant to 28 U.S.C. § 1915(e)(2) to determine whether it should be dismissed as frivolous or malicious, for failure to state a claim upon which relief may be granted, or because it seeks monetary relief from a defendant who is immune from such relief. For the reasons set forth below, the Court will dismiss the 1 Complaint without prejudice. 28 U.S.C. § 1915(e)(2)(b)(ii). The Court will grant leave to amend. I. BACKGROUND According to the complaint, Detective Choe arrested Plaintiff at home on January 9, 2019. ECF No. 1 at 5. Detective Choe took Plaintiff to the Atlantic County Prosecutor’s Office and interrogated him regarding an unidentified crime. Id. “After hours of insisting that I was not guilty of the charges I was being questioned about, I was told by this Detective that if I write an apology to the family I would be released.” Id. Plaintiff wrote the requested apology but was not released. Id. Plaintiff states the letter he wrote at Detective Choe’s direction was used to “detain and prosecute [him] for something [he’s] innocent of.” Id. II. STANDARD OF REVIEW Section 1915(e)(2) requires a court to review complaints prior to service in cases in which a plaintiff is proceeding in forma pauperis. The Court must sua sponte dismiss any claim that is frivolous, is malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. This action is subject to sua sponte screening for dismissal under 28 U.S.C. § 1915(e)(2)(B) because Plaintiff is proceeding in forma pauperis and is incarcerated. 2 To survive sua sponte screening for failure to state a claim, the complaint must allege “sufficient factual matter” to show that the claim is facially plausible. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). “‘A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’” Fair Wind Sailing, Inc. v. Dempster, 764 F.3d 303, 308 n.3 (3d Cir. 2014) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “[A] pleading that offers ‘labels or conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Iqbal, 556 U.S. at 678 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). III. DISCUSSION Plaintiff alleges Detective Choe violated his rights under Miranda v. Arizona, 384 U.S. 436 (1966) “by threatening me and lying on his police reports which tainted the entire investigation.” ECF No. 1 at 5. Plaintiff alleges Detective Choe told Plaintiff he would be released if he wrote an apology letter to the victim’s family. Id. at 9. Plaintiff states he did not understand his rights and does not speak English, which Detective Choe exploited during the interview. Id. at 5. To the extent Plaintiff alleges a violation of his Fifth Amendment rights, he has failed to state a claim for relief 3 under § 1983. “[V]iolations of the prophylactic Miranda procedures do not amount to violations of the Constitution itself.” Giuffre v. Bissell, 31 F.3d 1241, 1256 (3d Cir. 1994); see also Chavez v. Martinez, 538 U.S. 760, 767 (2003). “[I]t is the use of coerced statements during a criminal trial, and not in obtaining an indictment, that violates the Constitution.” Renda v. King, 347 F.3d 550, 559 (3d Cir. 2003); see also Ojo v. Luong, 709 F. App’x 113, 118 (3d Cir. 2017) (citing Renda). Plaintiff indicates he was “detained and prosecuted” based on the allegedly coerced letter, but it is not clear whether those statements were introduced at trial or if they were only used to obtain an indictment. Plaintiff may file an amended complaint with further information about the circumstances of his arrest. Construing the complaint liberally, Plaintiff also appears to be alleging false arrest and false imprisonment claims. “To state a claim for false arrest under the Fourth Amendment, a plaintiff must establish: (1) that there was an arrest; and (2) that the arrest was made without probable cause.” James v. City of Wilkes-Barre, 700 F.3d 675, 680 (3d Cir. 2012). “Probable cause to arrest exists when the facts and circumstances within the arresting officer’s knowledge are sufficient in themselves to warrant a reasonable person to believe that an offense has been or is being committed by the person to be arrested.” Orsatti v. New Jersey State Police, 71 F.3d 480, 482 (3d Cir. 4 1995). “[W]here the police lack probable cause to make an arrest, the arrestee has a claim under § 1983 for false imprisonment based on a detention pursuant to that arrest.” O’Connor v. City of Phila., 233 F. App’x 161, 164 (3d Cir. 2007) (internal quotation marks and citation omitted). Plaintiff does not provide any information about the circumstances of his arrest other than the interview at the prosecutor’s office. The circumstances surrounding the interview are not enough to state a false arrest claim because Plaintiff indicates he was arrested before Detective Choe took him to the prosecutor’s office. ECF No. 1 at 5. In order to state a false arrest claim, Plaintiff would have to provide more information about how Detective Choe came to arrest Plaintiff in the first place. The facts as set forth in the complaint do not state a false arrest or false imprisonment claim, but Plaintiff may be able to allege facts supporting those claims. Therefore, the Court will grant him leave to amend. Plaintiff also asserts a claim against the Atlantic County Prosecutor’s Office as Detective Choe’s employer. A local government unit, such as the Prosecutor’s Office, cannot be found liable under 42 U.S.C. § 1983 simply because it employs a wrongdoer. See Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658, 691–92 (1978). “There must be a ‘direct causal link between a municipal policy or custom and the alleged 5 constitutional deprivation’ to ground municipal liability.” Jiminez v. All Am. Rathskeller, Inc., 503 F.3d 247, 249–50 (3d Cir. 2007) (quoting City of Canton v. Harris, 489 U.S. 378, 385 (1989)). “Policy is made when a decisionmaker possess[ing] final authority to establish municipal policy with respect to the action issues an official proclamation, policy, or edict. Government custom can be demonstrated by showing that a given course of conduct, although not specifically endorsed or authorized by law, is so well-settled and permanent as virtually to constitute law.” Kirkland v. DiLeo, 581 F. App’x 111, 118 (3d Cir. 2014) (internal quotation marks and citations omitted) (alteration in original). In other words, Plaintiff must set forth facts supporting an inference that Atlantic County itself was the “moving force” behind the alleged constitutional violation. Generally, “plaintiffs who file complaints subject to dismissal under [§ 1915] should receive leave to amend unless amendment would be inequitable or futile.” Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002). As Plaintiff may be able to provide facts supporting his claims, he file a proposed amended complaint within 30 days of this Opinion and Order. Plaintiff should note that when an amended complaint is filed, the complaint no longer performs any function in the case 6 and cannot be utilized to cure defects in the complaint, unless the relevant portion is specifically incorporated in the new complaint. 6 Wright, Miller & Kane, Federal Practice and Procedure 1476 (2d ed. 1990) (footnotes omitted). The amended complaint may adopt some or all of the allegations in the complaint, but the identification of the particular allegations to be adopted must be clear and explicit. Id. To avoid confusion, the safer course is to file an amended complaint that is complete in itself. Id. IV. CONCLUSION For the reasons stated above, the Complaint will be dismissed without prejudice for failure to state a claim. An appropriate order follows. Dated: _July 2, 2021 ___s/ Noel L. Hillman ____ At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J. 7	2021-07-02	[ "UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY ELISEO JIMENEZ, No. 19-cv-17193 (NLH) (SAK) Plaintiff, v. OPINION DETECTIVE DANIEL CHOE, et al., Defendants. APPEARANCE: Eliseo Jimenez 269336 Atlantic County Jail 5060 Atlantic Ave Mays Landing, NJ 08330 Plaintiff Pro se HILLMAN, District Judge Plaintiff Eliseo Jimenez, presently incarcerated in the Atlantic County Jail in Mays Landing, New Jersey, seeks to bring a claim pursuant to 42 U.S.C. § 1983, against Detective Daniel Choe and the Atlantic County Prosecutor’s Office.", "See ECF No. 1. At this time, the Court must review the Complaint, pursuant to 28 U.S.C. § 1915(e)(2) to determine whether it should be dismissed as frivolous or malicious, for failure to state a claim upon which relief may be granted, or because it seeks monetary relief from a defendant who is immune from such relief. For the reasons set forth below, the Court will dismiss the 1 Complaint without prejudice.", "28 U.S.C. § 1915(e)(2)(b)(ii). The Court will grant leave to amend. I. BACKGROUND According to the complaint, Detective Choe arrested Plaintiff at home on January 9, 2019. ECF No. 1 at 5. Detective Choe took Plaintiff to the Atlantic County Prosecutor’s Office and interrogated him regarding an unidentified crime. Id. “After hours of insisting that I was not guilty of the charges I was being questioned about, I was told by this Detective that if I write an apology to the family I would be released.” Id. Plaintiff wrote the requested apology but was not released. Id. Plaintiff states the letter he wrote at Detective Choe’s direction was used to “detain and prosecute [him] for something [he’s] innocent of.” Id. II. STANDARD OF REVIEW Section 1915(e)(2) requires a court to review complaints prior to service in cases in which a plaintiff is proceeding in forma pauperis. The Court must sua sponte dismiss any claim that is frivolous, is malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief.", "This action is subject to sua sponte screening for dismissal under 28 U.S.C. § 1915(e)(2)(B) because Plaintiff is proceeding in forma pauperis and is incarcerated. 2 To survive sua sponte screening for failure to state a claim, the complaint must allege “sufficient factual matter” to show that the claim is facially plausible. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). “‘A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’” Fair Wind Sailing, Inc. v. Dempster, 764 F.3d 303, 308 n.3 (3d Cir. 2014) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “[A] pleading that offers ‘labels or conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Iqbal, 556 U.S. at 678 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). III.", "DISCUSSION Plaintiff alleges Detective Choe violated his rights under Miranda v. Arizona, 384 U.S. 436 (1966) “by threatening me and lying on his police reports which tainted the entire investigation.” ECF No. 1 at 5. Plaintiff alleges Detective Choe told Plaintiff he would be released if he wrote an apology letter to the victim’s family. Id. at 9. Plaintiff states he did not understand his rights and does not speak English, which Detective Choe exploited during the interview. Id. at 5. To the extent Plaintiff alleges a violation of his Fifth Amendment rights, he has failed to state a claim for relief 3 under § 1983.", "“[V]iolations of the prophylactic Miranda procedures do not amount to violations of the Constitution itself.” Giuffre v. Bissell, 31 F.3d 1241, 1256 (3d Cir. 1994); see also Chavez v. Martinez, 538 U.S. 760, 767 (2003). “[I]t is the use of coerced statements during a criminal trial, and not in obtaining an indictment, that violates the Constitution.” Renda v. King, 347 F.3d 550, 559 (3d Cir. 2003); see also Ojo v. Luong, 709 F. App’x 113, 118 (3d Cir. 2017) (citing Renda). Plaintiff indicates he was “detained and prosecuted” based on the allegedly coerced letter, but it is not clear whether those statements were introduced at trial or if they were only used to obtain an indictment.", "Plaintiff may file an amended complaint with further information about the circumstances of his arrest. Construing the complaint liberally, Plaintiff also appears to be alleging false arrest and false imprisonment claims. “To state a claim for false arrest under the Fourth Amendment, a plaintiff must establish: (1) that there was an arrest; and (2) that the arrest was made without probable cause.” James v. City of Wilkes-Barre, 700 F.3d 675, 680 (3d Cir. 2012). “Probable cause to arrest exists when the facts and circumstances within the arresting officer’s knowledge are sufficient in themselves to warrant a reasonable person to believe that an offense has been or is being committed by the person to be arrested.” Orsatti v. New Jersey State Police, 71 F.3d 480, 482 (3d Cir. 4 1995). “[W]here the police lack probable cause to make an arrest, the arrestee has a claim under § 1983 for false imprisonment based on a detention pursuant to that arrest.” O’Connor v. City of Phila., 233 F. App’x 161, 164 (3d Cir.", "2007) (internal quotation marks and citation omitted). Plaintiff does not provide any information about the circumstances of his arrest other than the interview at the prosecutor’s office. The circumstances surrounding the interview are not enough to state a false arrest claim because Plaintiff indicates he was arrested before Detective Choe took him to the prosecutor’s office. ECF No. 1 at 5. In order to state a false arrest claim, Plaintiff would have to provide more information about how Detective Choe came to arrest Plaintiff in the first place. The facts as set forth in the complaint do not state a false arrest or false imprisonment claim, but Plaintiff may be able to allege facts supporting those claims. Therefore, the Court will grant him leave to amend. Plaintiff also asserts a claim against the Atlantic County Prosecutor’s Office as Detective Choe’s employer. A local government unit, such as the Prosecutor’s Office, cannot be found liable under 42 U.S.C. § 1983 simply because it employs a wrongdoer.", "See Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658, 691–92 (1978). “There must be a ‘direct causal link between a municipal policy or custom and the alleged 5 constitutional deprivation’ to ground municipal liability.” Jiminez v. All Am. Rathskeller, Inc., 503 F.3d 247, 249–50 (3d Cir. 2007) (quoting City of Canton v. Harris, 489 U.S. 378, 385 (1989)). “Policy is made when a decisionmaker possess[ing] final authority to establish municipal policy with respect to the action issues an official proclamation, policy, or edict. Government custom can be demonstrated by showing that a given course of conduct, although not specifically endorsed or authorized by law, is so well-settled and permanent as virtually to constitute law.” Kirkland v. DiLeo, 581 F. App’x 111, 118 (3d Cir. 2014) (internal quotation marks and citations omitted) (alteration in original). In other words, Plaintiff must set forth facts supporting an inference that Atlantic County itself was the “moving force” behind the alleged constitutional violation. Generally, “plaintiffs who file complaints subject to dismissal under [§ 1915] should receive leave to amend unless amendment would be inequitable or futile.” Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir.", "2002). As Plaintiff may be able to provide facts supporting his claims, he file a proposed amended complaint within 30 days of this Opinion and Order. Plaintiff should note that when an amended complaint is filed, the complaint no longer performs any function in the case 6 and cannot be utilized to cure defects in the complaint, unless the relevant portion is specifically incorporated in the new complaint. 6 Wright, Miller & Kane, Federal Practice and Procedure 1476 (2d ed. 1990) (footnotes omitted).", "The amended complaint may adopt some or all of the allegations in the complaint, but the identification of the particular allegations to be adopted must be clear and explicit. Id. To avoid confusion, the safer course is to file an amended complaint that is complete in itself. Id. IV. CONCLUSION For the reasons stated above, the Complaint will be dismissed without prejudice for failure to state a claim. An appropriate order follows. Dated: _July 2, 2021 ___s/ Noel L. Hillman ____ At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J. 7" ]	https://www.courtlistener.com/api/rest/v3/recap-documents/174237206/	Legal & Government	https://huggingface.co/datasets/pile-of-law/pile-of-law

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