text
stringlengths 1
11.6M
| created_timestamp
stringlengths 0
22
| text_chunks
sequencelengths 1
5.55k
| url
stringlengths 24
213
| domain
stringclasses 1
value | link
stringclasses 1
value |
|---|---|---|---|---|---|
b'CREDIT CARD AGREEMENT\nF03-Y754-7\nIntroduction\nYOUR CARDHOLDER AGREEMENT\nThis document, together with your Rates and Fees Table, and any amendments make up the\ncontract between you, the cardmember, and Citizens Bank, N.A. Any special offers related\nto your Account are subject to this Agreement, unless explained otherwise. We will refer\nto this document as your \xe2\x80\x9cAgreement.\xe2\x80\x9d THIS AGREEMENT CONTAINS AN ARBITRATION\nPROVISION INCLUDING A NOTICE REGARDING THE RIGHT TO OPT OUT.\nACCEPTANCE OF YOUR AGREEMENT\nYour use of the Account or any payment on the Account indicates your acceptance of the\nterms of this Agreement.\nAny Cards or checks issued to you belong to us. You agree to sign each Card before you\nuse it. You agree to return your Cards and checks to us at any time, if we ask you. When you\npresent your Card, we, a merchant, or any other party acting on our behalf can retain your\nCard, without prior notice to you.\nCHANGES TO YOUR AGREEMENT\nWe may change the terms of this Agreement, including but not limited to Annual Percentage\nRate (APR) and fees, from time to time. We may also add new terms, delete terms, or\nchange any benefit, service, or feature on your Account. We may do this in response to the\nbusiness, legal or competitive environment. Our ability to make changes to this Agreement is\nlimited by applicable law. If required by applicable law, we will provide notice of the change\nto you before the effective date of the change. We will tell you in the notice if you have the\nright to reject the change.\nPROMISE TO PAY\nWe have agreed to lend you money as described in this Agreement, and you agree to pay\nus back together with interest charges and fees. This promise includes paying for charges\nyou make (even if you do not present your Card or sign the transaction), charges that other\npeople make if you let them use your Account, and charges that additional authorized users\nmake or permit others to make.\nREWARDS\nYour Account might provide you with the opportunity to earn rewards. If it does, we will\nseparately provide you with a Reward Guide containing information and terms about your\nrewards.\nWORDS USED IN THIS AGREEMENT\n\xe2\x80\x9cAccount\xe2\x80\x9d means the relationship established between you and us in this Agreement.\n\xe2\x80\x9cCard\xe2\x80\x9d means any one or more credit cards that we issue to you or someone else with your\nauthorization under this Agreement.\n\xe2\x80\x9cWe,\xe2\x80\x9d \xe2\x80\x9cour\xe2\x80\x9d and \xe2\x80\x9cus\xe2\x80\x9d mean Citizens Bank, N.A., the issuer of your credit Card and the\ncreditor under this Agreement, or any subsequent holder of this Agreement.\n\n\x0c\xe2\x80\x9cYou\xe2\x80\x9d and \xe2\x80\x9cyour\xe2\x80\x9d mean anyone who\n\xe2\x80\xa2 applied for the Account (the \xe2\x80\x9cprimary cardmember\xe2\x80\x9d),\n\xe2\x80\xa2 uses or maintains the Account, or\n\xe2\x80\xa2 otherwise agrees to pay for the Account or be obligated under\nthis Agreement.\nUsing your account\nAUTHORIZED USERS\nIf you ask us to issue a Card on this Account to another person or if you allow any person\nto use your Account, he or she is an authorized user. You are responsible for any use of\nyour Account by an authorized user. Your Account does not permit you to limit the nature\nor amount of authority you give to any authorized user and you will not attempt to do so. An\nauthorized user\xe2\x80\x99s authority will continue until you (i) notify us that you are terminating the\nauthority and (ii) you physically retrieve any Card, checks and any other means of access to\nyour Card. Otherwise, you will remain liable for any transactions that we cannot prevent.\nEach authorized user\xe2\x80\x99s privilege ends automatically upon the death of all of the primary\ncardmembers. If any person uses the Card after the privilege ends, such use indicates his\nor her agreement to pay us, and we may, at our discretion, pursue the person for payment\nof any balance or charge resulting from his or her use of the Card. You agree to notify each\nauthorized user that he or she is subject to the terms of this Agreement.\nYOUR CREDIT LIMIT\nWe assign a total credit limit to your Account that we agree to extend to you at any one time.\nThe total credit limit will include a separate limit for cash advances. This information will be\nshown on your Account statement.\nYour available credit will be the amount of your total credit limit,\nminus the sum of:\n(i) the new balance, (ii) any purchases, balance transfers or cash advances which have been\nauthorized but not yet posted to your Account, and (iii) the amount of any payments that\nhave not yet cleared. We may change the amount of your total credit limit and the cash\nadvance limit without prior notice to you.\nYou agree not to exceed any part of your total credit limit. Even if we permit transactions that\nexceed any part of your total credit limit, you are responsible for those transactions. If we\nrefuse any such transaction, we may advise the person attempting the transaction that it has\nbeen refused and we are not responsible or liable for taking such action.\nPURCHASES\nYou can use your Card to buy or lease goods or services. Each of these transactions is a\npurchase. In addition, any credit life insurance charges, payment protection plan charges,\nAccount fees set forth below, and other fees that are charged to your Account (except cash\nadvance transaction fees) are treated as purchases and will be subject to the interest rate for\npurchases.\nBALANCE TRANSFERS\nWe may, at our sole option, allow you to pay an amount you owe on an account you have\nwith other creditors. This is called a balance transfer. We may pay the balance transfer\namounts you have authorized up to your total credit limit, unless otherwise limited by the\nterms of the balance transfer. Balance transfers may not be used to make payments on\naccounts issued or held by us or our affiliates.\nWhen you make a balance transfer, we will charge interest beginning on the transaction date,\nas described in more detail in the section Annual Percentage Rate and Interest. We will also\ncharge you a transaction fee as described in your Rates and Fees Table. The transaction fee\nwill accrue interest at the APR for purchases. Balance transfers and balance transfer\ntransaction fees may also be subject to promotional, special or additional terms. Such terms\n\n\x0cwill be included as part of your Agreement.\nCASH ADVANCES\nA Cash Advance means the use of your Account for a loan in the following ways:\n1) Obtaining cash from a financial institution or an ATM:\nYou can use your Card to obtain cash advances from any financial institution that accepts\nyour Card and processes the transaction. The minimum amount of any cash advance you\ncan obtain from a financial institution in one day is $20 and the maximum amount is $3,000\nor the available amount of your cash advance limit, whichever is less.\nYou can also use your Card and personal identification number (PIN) to get a cash advance\nfrom any automated teller machine (ATM) that accepts your Card. The total amount of cash\nadvances you can obtain from ATMs in one day is $500 or the available amount of your\ncash advance limit, whichever is less. We or the operators of ATMs may place additional\nlimitations and requirements on cash advances you may obtain from ATMs.\nAuthorization for cash advances over a certain dollar amount or number may be refused\nunder certain circumstances even though you have available cash. These restrictions may be\nfor security or other reasons, such as the ATM or other electronic authorization system not\nworking properly.\n2) Convenience Checks:\nA convenience check is any check we provide to you for accessing your account to obtain\ncredit. A convenience check transaction is a cash advance. Convenience checks may not be\nused to make payment on any account issued or held by us or our affiliates. Convenience\nchecks may be subject to promotional, special or additional terms, which are included as\npart of your Agreement.\nWe may pay the amount you have authorized up to your available credit limit, unless\notherwise changed by the terms of the offer. We reserve the right to put conditions on the\nuse of these checks and to reject, decline and return unpaid any check at our discretion. If\nwe decline a check, you may have to pay returned check fees or other penalties to whomever\nyou wrote the check. If you ask us to stop payment on a check, you will be charged a stop\npayment fee. If you transfer a balance using a convenience check, that transaction will be\ntreated like any other convenience check transaction, unless we tell you otherwise. We\ndo not certify or return these checks. Convenience checks may include an expiration date\nprinted on the check. We will honor checks received for payment before the expiration date\nprinted on the check, provided your account is open and in good standing, with available\ncredit.\n3) Purchasing a Cash Equivalent:\nYou may use your Card to enter into a cash equivalent transaction. This includes purchasing\ntravelers checks, savings bonds, foreign currency, money orders, wire transfers, lottery\ntickets, gift cards, gambling chips or wagers, or similar products or services as determined\nby us.\nWhen you obtain a cash advance we will charge interest beginning on the transaction date,\nas described in more detail in the section Annual Percentage Rate and Interest. We will also\ncharge you a transaction fee as described in your Rates and Fees Table. The transaction fee\nwill accrue interest at the APR for cash advances.\nFOREIGN TRANSACTION/CURRENCY CONVERSION\nIf a foreign transaction fee applies to your Account, we will charge you a fee for transactions\nthat are conducted in a currency other than U.S. Dollars. This includes, for example, online\nor phone purchases where the transaction is conducted in a currency other than U.S.\n\n\x0cDollars. This fee is calculated on the U.S. Dollar amount of the transaction. The transaction\nfee is an interest charge that will accrue interest at the APR for purchases.\nOur network providers (e.g., Mastercard) convert transactions in foreign currencies into\nU.S. dollars. The type of card you have determines who does the conversion. Each network\nprovider follows its own procedures, which it may change from time to time without notice\nto you at its discretion.\nThe exchange rate will be determined using either the range of rates available in the\nwholesale currency markets for the processing date or a government- mandated rate in\neffect on that date. The exchange rate used by our network providers may differ from the\nrate on the date of your transaction. You agree to accept and pay the U.S. Dollar amount\nconverted from a foreign currency as provided in this section. We will deduct the applicable\nfees from this amount. This means that the amount of the credit may be different from the\namount that was originally charged to your Account for the transaction.\nALLOWED USE\nYou agree to use your Account only for lawful purposes. You agree not to make or allow to\nbe made any transactions which are illegal under any state or federal law. We may decline to\napprove any transaction which we reasonably believe is illegal under any state or federal law.\nYour billing statement and making payments\nBILLING STATEMENTS\nWe will send you a billing statement each month that you have a credit or debit balance of\nmore than $1, when an interest charge has been imposed, or when there has been activity\nin your Account, unless we deem your Account uncollectible or delinquency collection\nproceedings have been instituted against you. In our discretion, we may choose to send you\na statement even if you do not have a credit or debit of $1 or more.\nYour statement will show the total amount that you owe us as of the end of the last billing\ncycle. It will also show the minimum payment you must make to us by the stated due date.\nNOTIFYING US IF YOU FIND A MISTAKE\nUnless you notify us in writing within 60 days of receipt, your billing statement will be\ndeemed to be correct.\nHOW TO MAKE A PAYMENT\nPayments may be mailed to the address shown on your billing statement. Payments\nmade by mail must be accompanied by the return portion of your statement. Payments\nmust be made in U.S. Dollars drawn on a federally-insured depository institution located\nin the U.S. You authorize us to collect any payment check either electronically or by\ndraft.\nIn addition to accepting payments by mail, we may permit you to make payments by\nelectronic means, including by telephone or Internet, subject to any terms we may\nimpose on these alternative methods of payment, including charging an expedited\nservice fee of which we will inform you at that time. Also, we may permit you to make\npayments in person at one of our branches.\nHOW WE CREDIT PAYMENTS\nPayments received at the address shown on your billing statement before 5:00 P.M. Eastern\nTime will be credited by us for that day. Payments received after this time will be credited\nfor the next business day. If your payment due date is on a day on which we do not receive\nmailed payments, a mailed payment received on the next business day will not be treated\nas late.\n\n\x0cIf you do not use one of the ways to make payments stated in this Agreement, the return\nportion of your statement is damaged and we are unable to identify your Account, or you\ndo not comply with the payment requirements stated on your statement, crediting of your\npayments may be delayed up to 5 days or your payment may be rejected.\nIf a payment is received in person at one of our branches before the actual time of closing\nof the branch at which the payment is made, it will be credited by us for that day.\nMINIMUM PAYMENT\nYou must pay at least the minimum payment due by the payment due date. You may pay\nthe entire amount you owe us at any time. The minimum payment due and payment due\ndate are shown on each billing statement. You also agree to pay amounts in excess of your\ncredit limit when billed to your monthly statements or sooner if we ask. If you do not pay\nthe minimum payment by the due date, we may charge you a late payment fee.\nHOW WE CALCULATE THE MINIMUM PAYMENT\nIf your new balance is $30 or less, your minimum payment will be the new balance.\nOtherwise, it will be the greater of (i) $30; or (ii) equal to the total billed Interest charges\n(excluding transaction fees for balance transfers, cash advances, foreign transactions, and\ncash equivalents), and any billed late payment fees and 1% of the new balance.\nAny amount past due and any amount over your total credit limit or cash advance limit\nmay be added to the minimum payment. Your minimum payment, exclusive of interest\ncharges, will be rounded to the nearest whole dollar. We may change your minimum\namount due including increasing your minimum amount due subject to applicable law.\nIf you exercise your right to cancel contained in a change-in-terms notification, we\nmay increase your minimum amount due. We may require (i) a method in which the\nminimum periodic payment includes a percentage of the outstanding balance that is\ntwice the percentage required before the increase or (ii) a method which incorporates an\namortization period of not less than 5 years. We may also choose a method that is no less\nbeneficial to you than the other two methods previously described.\nHOW PAYMENTS ARE APPLIED\nPayments less than or equal to the minimum amount due will be applied in any order\nthat we shall from time to time choose. Generally, payments less than or equal to the\nminimum amount due are applied to introductory, promotional or low rate balances\nbefore we apply payments to balances that are subject to standard or higher rates,\nregardless of when the transaction is made. Any amount of your payments that is\ngreater than the minimum amount due will be applied first to balances with the highest\nAPR, and then to each successive balance with the next highest APR, until the payment\nis exhausted.\nRESTRICTIVE ENDORSEMENTS\nAny conditional check, money order or any other instrument tendered with a restrictive\nendorsement or as a full satisfaction of a disputed debt must be sent to our address for\nbilling error notices shown on each statement and must conspicuously state on the face of\nthat payment or in an accompanying letter that it is tendered for this purpose. If you make\npayment in any other way and we accept it, we will not have waived our right to collect any\namount from you owed under this Agreement.\nAnnual percentage rate and interest\nABOUT YOUR ANNUAL PERCENTAGE RATES\nThe APR or \xe2\x80\x9cannual percentage rate\xe2\x80\x9d is an annualized interest rate. Different APRs apply\nto different balances (called transaction types) on your Account, such as the balances on\npurchases, balance transfers and cash advances.\n\n\x0cYour APRs may be either fixed or variable. Your Rates and Fees Table and your statement\ndisclose whether you have fixed or variable rates. If an APR is variable, it may vary monthly\nas the Index rate changes and will be reset on the first day of each billing cycle. The Index\nrate is described in your Rates and Fees table. If the Index increases, the variable APRs will\nincrease. Any increase in your APRs will apply to all unpaid purchases, balance transfers\nand cash advances (regardless of the transaction date), will increase the interest charge\nand may increase the minimum payment.\nHOW WE CALCULATE INTEREST\nIn General. We calculate the interest charge separately for each transaction type\n(purchases, balance transfers, and cash advances) as well as for any applicable\npromotional rate. This means that your Account may have separate balances for each\ntransaction type. The total interest charged for a billing cycle is the sum of the interest\ncharged for each balance.\nWe use the average daily balance (including new purchases) method, which means\nwe calculate a daily balance for each type of transaction and use the daily balances to\ndetermine your interest charges. According to this method, we calculate the interest charge\nfor each balance by\n\xe2\x80\xa2 applying the \xe2\x80\x9cdaily periodic rate\xe2\x80\x9d to the \xe2\x80\x9caverage daily balance\xe2\x80\x9d and\n\xe2\x80\xa2 multiplying the result by the number of days in the billing cycle.\nWE CALCULATE ITS COMPONENTS IN THE FOLLOWING WAY:\nThe \xe2\x80\x9cdaily periodic rate\xe2\x80\x9d is a daily interest rate. The daily periodic rate for each transaction\ntype is equal to the APR for that transaction type divided by 365.\nTo get the \xe2\x80\x9caverage daily balance\xe2\x80\x9d for each transaction type we add up the daily balances\nand then divide the result by the total number of days in the billing cycle. If any day\xe2\x80\x99s daily\nbalance is a credit balance, we will treat it as a balance equal to $0.00.\nWe calculate the \xe2\x80\x9cdaily balance\xe2\x80\x9d by\n\xe2\x80\xa2 taking the \xe2\x80\x9cbeginning balance\xe2\x80\x9d of the day,\n\xe2\x80\xa2 adding any new charges and applicable fees,\n\xe2\x80\xa2 except for the first day of the billing cycle, adding the amount of any interest equal to the\nprior day\xe2\x80\x99s daily balance multiplied by the daily periodic interest rate, and\n\xe2\x80\xa2 subtracting any payments or credits.\nThe \xe2\x80\x9cbeginning balance\xe2\x80\x9d for the first day of the billing cycle is generally the ending balance\nfor the prior billing cycle, including unpaid interest. For the rest of the billing cycle, the\nbeginning balance is the prior day\xe2\x80\x99s daily balance.\nThe addition of the prior day\xe2\x80\x99s interest to the daily balance calculation causes interest\nto compound daily. We may, at our discretion, round these amounts, subject to any\nrestrictions under applicable law.\nMINIMUM INTEREST CHARGE\nIf any interest charge is due, we will charge you at least the minimum interest charge\nshown on your Rates and Fees Table.\nHOW TO AVOID INTEREST CHARGES\nYou can avoid interest charges on purchases if you pay your entire balance by the payment\ndue date every month. You will not pay interest for an entire billing cycle (\xe2\x80\x9cinterest-free\nperiod\xe2\x80\x9d or \xe2\x80\x9cgrace period\xe2\x80\x9d) on new purchases and fees if you paid the entire balance by\nthe payment due date on your previous billing statement. The interest-free period or grace\nperiod is the time when you are not charged interest on new purchases and fees. We will\nnot charge you interest on any portion of a purchase balance you repay while that balance\nis subject to an interest-free period. The payment due date will be at least 21 days from the\nstatement date. To maintain the interest-free period, you must continue to pay your entire\nbalance every month.\n\n\x0cYou will lose your interest-free period if, at any time, you pay less than the entire balance\nshown on your billing statement. If you lose your interest-free period, the unpaid balance for\npurchases will be charged interest beginning on the transaction date and will continue to be\ncharged until payment in full is credited to your Account. The transaction date for purchases\nis the day you make the purchase as shown on your statement.\nOnce the interest-free period is lost, you may owe interest charges even if you pay the entire\nbalance stated on your most recent billing statement by the due date. This occurs because,\ninterest continues to accrue every day on the balance shown on your most recent statement\nuntil your payment in full is credited to your Account. The interest charged from the date of\nthe billing statement until the payment is credited to your Account will be included in your\nnext billing statement.\nThere is no interest-free period for cash advance or balance transfer transactions. You will\npay interest on cash advance and balance transfer transactions starting on the transaction\ndate until you pay the entire amount in full. The transaction date for balance transfers is the\nday you make the balance transfer as shown on a statement. The transaction date for cash\nadvances and related cash advance fees is the day you receive the cash advance.\nMILITARY LENDING ACT INFORMATION\nFederal law provides important protections to members of the Armed Forces and their\ndependents relating to extensions of consumer credit. In general, the cost of consumer\ncredit to a member of the Armed Forces and his or her dependent may not exceed an annual\npercentage rate of 36 percent. This rate must include, as applicable to the credit transaction\nor account: The costs associated with credit insurance premiums; fees for ancillary products\nsold in connection with the credit transaction; any application fee charged (other than certain\napplication fees for specified credit transactions or accounts); and any participation fee\ncharged (other than certain participation fees for a credit card account). To hear the Military\nLending Act Information, call 866-999-6336.\nDefault\nYOU ARE IN DEFAULT IF ANY ONE OF THE FOLLOWING EVENTS HAPPEN\n\xe2\x80\xa2 you fail to make any payment when it is due;\n\xe2\x80\xa2 you have exceeded one or more of your credit limits;\n\xe2\x80\xa2 you provide us false, misleading, or fraudulent information;\n\xe2\x80\xa2 we become aware that you are using your Card for illegal or fraudulent purposes;\n\xe2\x80\xa2 you fail to comply with any term of this Agreement or other agreements with us or any of\nour affiliated banks;\n\xe2\x80\xa2 you are not paying your debts as they become due or you are bankrupt or insolvency\nproceedings are filed against you;\n\xe2\x80\xa2 a payment you made is rejected or cannot be processed;\n\xe2\x80\xa2 you die or are legally declared incompetent or incapacitated; or\n\xe2\x80\xa2 we otherwise reasonably believe that you may be unwilling or unable to pay your debts on\ntime.\nOUR RIGHTS IF YOU ARE IN DEFAULT\nWe may reduce your total credit limit and/or your cash credit limit, increase your minimum\npayment, close your Account or suspend or terminate credit privileges if you are in default.\nWe may, to the extent permitted by law, demand immediate payment of the total balance.\nPENALTY APR RATE FOR NEW TRANSACTIONS\nWe may apply the penalty APR rate to new transactions if you:\n\xe2\x80\xa2 Do not pay at least the minimum payment due by the payment due date;\n\xe2\x80\xa2 Make a payment that is returned;\n\xe2\x80\xa2 Go over your credit limit; or\n\n\x0c\xe2\x80\xa2 Do any of the above on another account that you have with us.\nPlease refer to your Rates and Fees Table to determine if a penalty APR rate applies to your\nAccount. If the penalty APR rate is triggered, we will provide notice to you as required by\napplicable law. This rate may apply indefinitely.\nPENALTY APR RATE FOR EXISTING BALANCES\nIf we do not receive your minimum payment due within 60 days of the due date we may\napply the penalty APR rate to all your existing balances and all future balances.\nPlease refer to your Rates and Fees Table to determine if a penalty APR rate applies to your\nAccount. If the penalty APR rate is triggered, we will provide notice to you as required by\napplicable law. If for 6 consecutive billing cycles following the cycle in which the penalty APR\nrate is imposed, you make all required minimum payments by their payment due dates, we\nwill reinstate your APR on purchases, balance transfers and cash advances.\nCOLLECTION COSTS\nIf you are in default, we may refer your Account for collection or take any other actions\npermitted by this Agreement or applicable law. If we do, you agree to pay the reasonable fees\nand expenses of our collection agency or other person collecting your Account, as permitted\nby law, including reasonable attorneys\xe2\x80\x99 fees and alternative dispute resolution costs.\nNEW HAMPSHIRE RESIDENTS: If you prevail in any action, suit or proceeding we bring or\nin an action you bring in connection with this Agreement, reasonable attorneys\xe2\x80\x99 fees shall\nbe awarded to you. If you successfully assert a pertinent defense, set off, recoupment or\ncounterclaim to an action brought by us, the court may withhold from us the entire amount\nor such portion of the attorneys\xe2\x80\x99 fees as the court deems appropriate.\nWEST VIRGINIA RESIDENTS: Reference to the payment of attorneys\xe2\x80\x99 fees and court costs in\nthe terms of this Agreement is void.\nAccount fees\nThe following fees may be assessed on your Account (these are considered Account fees).\nIf any fee in your Rates and Fees Table is marked none, the section of this Agreement that\nrelates to that fee does not apply. Unless we tell you otherwise, all Account fees are treated\nas purchases (except that transaction fees for a cash advance are treated as a cash advance).\nCARD REPLACEMENT FEE\nIf we replace a stolen, lost or damaged Card, we may charge your Account a Card\nreplacement fee of $10. We may charge additional fees for expedited or overseas delivery of\nyour replacement Card.\nCOPY FEE\nWe may charge your Account a copy fee of $5 for each page of photocopy of any sales slip\nor other record of your Account plus $30 per hour for the time it takes our employees or\nagents to make the copies, to the extent permitted by law.\nSTOP PAYMENT FEE\nWe may charge your Account a stop payment fee of $29 when you request that we stop\npayment of a check you have requested (including balance transfer checks and other\nchecks that access your Account). You may make a stop payment request by calling us\nor by writing to us. We will accept a stop payment request provided that we receive the\nstop payment notice in a reasonable time before we have accepted, paid in cash, made\nfinal payment on or otherwise become obligated to pay such check, except to the extent\notherwise required by applicable law. Stop payment requests will remain in effect for six\nmonths unless renewed in writing or by calling us before the expiration of the 6-month\nperiod.\n\n\x0cLATE PAYMENT FEE\nWe may charge your account a late payment fee if we do not receive your minimum\npayment by the payment due date. Your late payment fee is $29 for the first occurrence\nand up to $40 for additional occurrences during the next six billing cycles. In no event will\nyour late payment fee exceed the minimum payment.\nANNUAL MEMBERSHIP FEE\nPlease refer to your Rates and Fees Table to determine if an annual membership fee applies\nto your Account and, if applicable, the amount of the fee.\nBALANCE TRANSFER TRANSACTION FEE, CASH ADVANCE TRANSACTION FEE, FOREIGN\nTRANSACTION FEE\nPlease refer to your Rates and Fees Table (or if relevant, a special offer) to determine the\namount of this fee.\nClosing an account\nHOW TO CLOSE YOUR ACCOUNT\nYou may close your Account by calling us or writing to us. If there are multiple primary\ncardmembers on your Account, any one of you may close your Account at any time. We\nmay immediately close your Account after we receive such a request, without giving notice\nto other cardmembers on your Account. You agree that you will not hold us\nresponsible for any costs, damages or inconvenience you suffer as a result of the closing of\nyour Account by any cardmember on your Account.\nWHEN WE MAY CLOSE YOUR ACCOUNT\nEven if you are not in default, we may, at any time: (i) reduce your total credit limit and/ or\ncash advance limit; (ii) close your Account; (iii) cancel or suspend your privileges to make\nfurther purchases and balance transfers or obtain cash advances; or (iv) cancel or suspend\nany Account privileges or benefits. We can also reissue a different card to you at any time.\nWHAT YOU MUST DO WHEN YOUR ACCOUNT IS CLOSED\nWhen your Account is closed, you must contact anyone authorized to charge\ntransactions to your Account, such as internet service providers, health clubs or\ninsurance agencies. Those transactions may continue to be charged to your Account\nuntil you change the billing. Also, if we believe that you have authorized a transaction or\nare attempting to use your Account after you have requested to close the Account, we\nmay allow the transaction to be charged to your Account and you will be responsible for\npayment under the terms of this Agreement.\nWHAT HAPPENS WHEN YOUR ACCOUNT IS CLOSED\nIf you close your Account, or we close your Account, you may not make any further\npurchases and balance transfers or obtain cash advances. If you use your card after\nclosing your Account and we extend credit as a convenience to you, you remain\nresponsible for paying those charges. If we or you close your Account, we may, at our\noption, require you to pay the entire balance of your Account at once or permit you to pay\nthe balance in monthly payments as provided in this Agreement or otherwise, as we\ndetermine. Other Account fees, such as a late payment fee, will apply as applicable. If an\nannual membership fee applies and you close your Account after the annual membership\nfee is billed, we will remove the fee from your Account, provided your Account is closed\nwithin 30 days after we mailed your statement on which the fee was charged to your\nAccount. You may pay any balance due on your Account at any time.\nOther important information\nHOW TO CONTACT US\nUnless we tell you otherwise, you can contact us by phone: TOLL FREE 1-800-426-1114 or in\nwriting: Credit Card Services \xe2\x80\x93 Customer Service, P.O. Box 7092, Bridgeport, CT 06601. When\nwriting, please include your name, address, home phone number, and Account number.\nA telephone call will not preserve your rights under federal law.\n\n\x0cCHANGING YOUR BILLING ADDRESS\nWe will send statements and notices to your last known address. You promise to notify us\npromptly of any change in your address by following the notification method provided in\nthe How to Contact Us section. If you have more than one Account, you need to notify us\nseparately for each Account.\nMULTIPLE CARDMEMBERS\nIf there are two or more cardmembers obligated under this Agreement, we can send\nstatements and notices to any one. Any notice we mail to an address provided by any of\nyou for the Account will serve as notice to all of you. Each cardmember obligated under\nthis Agreement is jointly and severally liable for all amounts charged to the Account\nregardless of which cardmember incurred the charges to the Account.\nWE MAY CONTACT YOU\nYou authorize us (and our affiliates, agents and contractors) to contact you at any\nnumber you provide to us, from which you call us, or at which we believe we can reach\nyou, and that we may contact you for any reason, including regarding any request you\nmake for a loan or other product, to service or collect on every account you currently\nhave with us or may have with us in the future and regarding any other products or\nservices we are providing to you or which we provide to you in the future. You authorize us\nto contact you in any manner, including by means of automated dialing devices,\nprerecorded messages, wireless push notifications, or text messages, even if you are\ncharged for receiving the communication and even if you will receive the communication on\na mobile or wireless device. You agree that such calls are not unsolicited and that\nwe may monitor and/or record them. You also agree to receive emails from us to any\naddress where we reasonably believe that we may contact you.\nCREDIT INFORMATION\nYou agree that we will obtain credit reports about you, investigate your ability to pay, and\nobtain information about you from other sources including information to verify and reverify your employment and income. We will use such information for any purposes,\nsubject to applicable law.\nWe may report information about your Account to credit bureaus. Negative credit\ninformation, including late payments, missed payments, or other defaults on your\nAccount may be reflected in your credit report. We may report Account information in\nyour name and the names of authorized users. If you believe we have furnished\ninaccurate or incomplete information about you or your Account to a credit reporting\nagency, write to us at: Disputes, P.O. Box 7092, Bridgeport, CT 06601. Please include\nyour name, address, home phone number and Account number, and explain what you\nbelieve is inaccurate or incomplete with supporting information.\nINFORMATION SHARING\nYou authorize us to share information about you and your Account with affiliates and third\nparties, unless the law or our Privacy Notice prohibits us from doing so. Please see our\nPrivacy Notice for your choices about information sharing. This includes information we\nget from you and others. It also includes information about your transactions with us.\nACCOUNT UPDATER FOR THIRD-PARTY STORED INFORMATION,\nINCLUDING PREAUTHORIZED DEBIT (RECURRING PAYMENTS)\nIf you choose to store your account information with anythird parties, we mayalso share\nupdates to this information with these third parties. Please note this only applies to third parties\nwith whom you elect to share this information. If you elect to share Account information with\na third party, you are responsible for any transfer or payment that third party makes from\nyour Account, even if that third party exceeds your authorization, and for any other issues\nthat arise with respect to your Account and/or information contained in your Account, by\nvirtue of the fact that you shared your Account information.\n\n\x0cUNAUTHORIZED USE\nIf you notice the loss or theft of your Card or possible unauthorized use of your Card, you\nshould immediately call us TOLL FREE at 1-800-443-0164. You will not be liable for\nany unauthorized use that occurs after you notify us. You may, however, be liable for\nunauthorized use that occurs before your notice to us. In any case, if there is unauthorized\nuse of your Card, your liability will not exceed $50.\nIF YOUR ACCOUNT HAS A CREDIT BALANCE\nYou may request a refund of credit balances at any time by writing. If you don\xe2\x80\x99t request\na refund, we will apply credit balances to new transactions unless a refund is required\nby law. If you have a credit balance that is less than $1,000 or such other amount as\nwe may determine, you may be able to request a refund over the telephone.\nEVENTS BEYOND OUR CONTROL\nExcept as otherwise required by applicable law, we are not responsible and will incur no\nliability to you for any failure, error, malfunction or any delay in carrying out any of our\nobligations under this Agreement if any such failure, error, malfunction or delay results\nfrom causes beyond our reasonable control.\nNO LIABILITY FOR REFUSAL TO HONOR\nWe are not liable for any refusal to honor your Account. This can include a refusal to\nhonor your Card or Account or any check written on any transaction on your behalf. We\nare not liable for any retention of your Card by us, any other financial institution, or any\nprovider of goods or services.\nNO RESPONSIBILITY FOR UNAUTHORIZED ACCESS OR INQUIRIES\nWe are not responsible for unauthorized inquiries about your account or access to your\nAccount information. You agree that so long as we are in compliance with applicable law and\nregulation that we will not be responsible or liable for the release of information to anyone\nwho has gained access to your Account or Account information.\nGOVERNING LAW\nThis Agreement and use of your Account are governed by federal law. To the extent that\nfederal law does not govern, Connecticut law will apply, no matter where you live or use\nyour Account. We accept this Agreement in Connecticut. Decisions about granting credit\nto you are made in Connecticut and all credit extended under this Agreement is extended\nby us from Connecticut.\nSEPARATION OF INVALID PROVISIONS\nIf any part of this Agreement becomes invalid under applicable law, the remainder of\nthis Agreement will remain valid and in effect. If your Account is subject to a law setting\nmaximum loan rates, fees or charges which is finally interpreted so that the charges on\nyour Account would exceed permissible limits, then any such charge will be reduced\n(including retroactively) to permitted limits and any amount collected from you exceeding\nthose limits will be refunded to you.\nOUR RIGHT TO DELAY ENFORCEMENT\nWe can delay enforcing any of our rights under this Agreement without losing any of them.\nASSIGNMENT\nWe may, at any time and without notice to you, sell, assign or transfer your Account,\nany amount due in your Account, this Agreement or our rights and obligations under\nyour Account or this Agreement to any person or entity. The person or entity to whom\nwe make any such sale assignment or transfer is entitled to all of our rights and is\nsubject to all of your obligations under this Agreement, to the extent sold, assigned or\ntransferred.\nARBITRATION AGREEMENT\nIf you are a Covered Borrower, as defined by the Military Lending Act, the arbitration\nprovisions set forth in this section do not apply to you.\nThis section constitutes the Arbitration Agreement between you and us.\n\n\x0cREAD THIS SECTION CAREFULLY AS IT WILL HAVE A SUBSTANTIAL IMPACT ON HOW\nLEGAL DISPUTES BETWEEN YOU AND US ARE RESOLVED. If you do not opt out, for a\ndispute subject to arbitration, there is a waiver of rights as discussed below.\nArbitration procedures are simpler and more limited than rules applicable in court.\nThe decision of the arbitrator is generally final and binding.\nYou have the right to cancel or opt out of this Arbitration Agreement as set forth below.\nSPECIAL DEFINITION OF \xe2\x80\x9cWE,\xe2\x80\x9d \xe2\x80\x9cUS\xe2\x80\x9d AND \xe2\x80\x9cOUR\xe2\x80\x9d\nSolely for purposes of this Arbitration Agreement, the terms \xe2\x80\x9cwe,\xe2\x80\x9d \xe2\x80\x9cus\xe2\x80\x9d and \xe2\x80\x9cour,\xe2\x80\x9d in\naddition to the meanings set forth in this Credit Card Agreement (the \xe2\x80\x9cCard Agreement\xe2\x80\x9d),\nalso refer to our employees, officers, directors, parents, controlling persons, subsidiaries,\naffiliates, successors and assigns.\nBINDING ARBITRATION\nIf you have a dispute with us, and we are not able to resolve the dispute informally,\nyou and we agree that upon demand by either you or us, the dispute will be resolved\nthrough the arbitration process as set forth in this part. A \xe2\x80\x9cclaim\xe2\x80\x9d or \xe2\x80\x9cdispute,\xe2\x80\x9d as used\nin this\nArbitration Agreement, is any unresolved disagreement between you and us, arising from\nor relating in any way to the Card Agreement (including any renewals, extensions,\naddendums or modifications), the credit relationship between us, or relating to any\nreward program, feature, or benefit. It includes any disagreement relating in any way to\nservices, accounts or any other matters; to your use of any of our banking facilities; or to\nany means you may use to access your account(s). Any claims or disputes arising from\nor relating to the advertising of our services, the application for, or the approval or\nestablishment of your Account are also included. Claims are subject to arbitration,\nregardless of what theory they are based\non, whether they seek legal or equitable remedies, or irrespective whether they are\ncommon law or statutory (federal or state) claims. Arbitration applies to any and all such\nclaims or disputes, whether they arose in the past, may currently exist, or may arise in the\nfuture.\nHowever, \xe2\x80\x9cclaim\xe2\x80\x9d or \xe2\x80\x9cdispute\xe2\x80\x9d as used in this Arbitration Agreement does not include\nany dispute or controversy about the validity, enforceability, coverage or scope of this\nArbitration Agreement or any part thereof (including, without limitation, the \xe2\x80\x9cClass\nAction and Class Arbitration Waiver\xe2\x80\x9d set forth below, subparts (1) and (2) of the\n\xe2\x80\x9cSeverability and Survival\xe2\x80\x9d part set forth below and/or this sentence); all such disputes\nor controversies are for a court and not an arbitrator to decide; but disputes about the\nvalidity or enforceability of this Account Agreement as a whole are for the arbitrator\nand not a court to decide. ANY DISPUTE CONCERNING THE VALIDITY,\nENFORCEABILITY, COVERAGE OR SCOPE OF THIS ARBITRATION AGREEMENT\nSHALL BE RESOLVED IN A RHODE ISLAND STATE OR FEDERAL COURT OF LAW, AND\nTHE PARTIES HEREBY SUBMIT TO THE JURISDICTION OF SUCH A COURT FOR SUCH\nPURPOSE.\nTRIAL WAIVER\nYOU AGREE THAT YOU AND WE ARE WAIVING THE RIGHT TO A JURY TRIAL AND\nTRIAL BEFORE A JUDGE IN A PUBLIC COURT upon demand by either party for arbitration.\nHowever, you and we retain the right to pursue in small claims court (or an equivalent state\ncourt) any dispute that is within that court\xe2\x80\x99s jurisdiction and advance only an individual\nclaim for relief. If either you or we fail to submit to binding arbitration of an arbitrable\ndispute following lawful demand, the party so failing shall bear all costs and expenses\nincurred by the other party in compelling arbitration.\n\n\x0cCLASS ACTION AND CLASS ARBITRATION WAIVER\nNEITHER YOU NOR WE SHALL BE ENTITLED TO JOIN OR CONSOLIDATE DISPUTES\nBY OR AGAINST OTHERS IN ANY COURT ACTION OR ARBITRATION, OR TO INCLUDE\nIN ANY COURT ACTION OR ARBITRATION ANY DISPUTE AS A REPRESENTATIVE OR\nMEMBER OF A CLASS, OR TO ACT IN ANY ARBITRATION IN THE INTEREST OF THE\nGENERAL PUBLIC OR IN A PRIVATE ATTORNEY GENERAL CAPACITY, UNLESS THOSE\nPERSONS ARE JOINT ACCOUNT BORROWERS OR BENEFICIARIES ON YOUR ACCOUNT.\nThis is so whether or not the claim has been assigned.\nARBITRATION PROCEDURES\nYou or we may submit a dispute to binding arbitration at any time, regardless of whether a\nlawsuit or other proceeding has been previously commenced.\nEach arbitration, including the selection of the arbitrator(s) shall be administered by the\nAmerican Arbitration Association (AAA), or JAMS according to such forum\xe2\x80\x99s rules and\nprocedures. You may obtain a copy of the arbitration rules for these forums, as well as\nadditional information about initiating arbitration by contacting these arbitration forums:\nAmerican Arbitration Association\n1-800-778-7879 (toll-free) | website: www.adr.org\nJAMS\n1-800-352-5267 (toll-free) | website: www.jamsadr.com\nIn the event that JAMS or the AAA is unable to handle the dispute for any reason, then\nthe matter shall be arbitrated instead by a neutral arbitrator selected by agreement of the\nparties pursuant to the AAA rules of procedure; or, if the parties cannot agree, selected by\na court in accordance with the Federal Arbitration Act (Title 9 of the United States Code)\n(\xe2\x80\x9cFAA\xe2\x80\x9d). To the extent that there is any variance between the selected forum\xe2\x80\x99s rules and this\nArbitration Agreement, this Arbitration Agreement shall control.\nIf you initiate the arbitration, you must notify us in writing at Credit Card Services \xe2\x80\x93\nArbitration, P.O. Box 7092, Bridgeport, CT 06601. If we initiate the arbitration, we will notify\nyou in writing at your last known address in our file.\nThe arbitration shall take place in the federal judicial district in which you reside, unless the\nparties agree to a different location in writing. Arbitrators must be members of the state bar\nwhere the arbitration is held, with expertise in the substantive laws applicable to the subject\nmatter of the dispute. No arbitrator or other party to an arbitration proceeding may disclose\nthe existence, content or results thereof, except for disclosures of information by a party\nrequired in the ordinary course of its business or by applicable law or regulation.\nThe arbitrator will follow applicable substantive law to the extent consistent with the FAA.\nThe arbitrator will give effect to the applicable statutes of limitation and will dismiss barred\nclaims. In addition, you or we may submit a written request to the arbitrator to expand\nthe scope of discovery normally allowable. At the timely request of either you or us, the\narbitrator must provide a brief written explanation of the basis for the award. A judgment\non the award may be entered by any court having jurisdiction.\nYou and we agree that in our relationship arising from this Card Agreement:\n(1) the parties are participating in transactions involving interstate commerce; and\n(2) this Arbitration Agreement and any resulting arbitration are governed by the provisions\nof the FAA, and, to the extent any provision of that act is inapplicable or unenforceable, the\nlaws of the state that govern the relationship between you and us.\nNo arbitrator shall have authority to entertain any dispute on behalf of a person who is not\na named party, nor shall any arbitrator have authority to make any award for the benefit of,\nor against, any person who is not a named party.\n\n\x0cARBITRATION COSTS\nThe party initiating the arbitration (or appeal of the first arbitration award) shall pay the\ninitial filing fee. If you file the arbitration and an award is rendered in your favor, we will\nreimburse you for your filing fee. If there is a hearing, we will pay the fees and costs for\nthe first day of that hearing. All other fees and costs will be allocated in accordance with\nthe rules of the arbitration forum. However, we will advance or reimburse filing and other\nfees if the arbitrator rules that you cannot afford to pay them or finds other good cause\nfor requiring us to do so; or if you ask us in writing and we determine in good faith there\nis justifiable reason for doing so. Each party shall bear the expense of their respective\nattorneys, experts, and witnesses and other expenses, regardless of who prevails, but the\narbitrator will have the authority to award attorneys and expert witness fees and costs to\nthe extent permitted by either the Card Agreement, the forum\xe2\x80\x99s rules or applicable law.\nARBITRATION AWARD AND APPEAL\nThe arbitrator\xe2\x80\x99s award shall be final and binding on all parties, except for any right of appeal\nprovided by the FAA. However, any party can, within 30 days after the entry of the award\nby the arbitrator, appeal the award to a three-arbitrator panel administered by the forum.\nThe panel shall reconsider anew all factual and legal issues, following the same rules of\nprocedure and decide by majority vote. Reference in this Arbitration Agreement to \xe2\x80\x9cthe\narbitrator\xe2\x80\x9d shall mean the panel if an appeal of the arbitrator\xe2\x80\x99s decision has been taken.\nThe costs of such an appeal will be borne in accordance with the above paragraph entitled\n\xe2\x80\x9cArbitration Costs.\xe2\x80\x9d Any final decision of the appeal panel is subject to judicial review only\nas provided under the FAA.\nSEVERABILITY AND SURVIVAL\nIf any part of this Arbitration Agreement is deemed or found to be unenforceable for any\nreason, the remainder shall be enforceable, except that:\n1. The parties acknowledge that the Class Action and Class Arbitration Waiver is material\nand essential to the arbitration of any disputes between them and is non-severable\nfrom this Arbitration Agreement. If the Class Action and Class Arbitration Waiver is\nlimited, voided or found unenforceable, then this Arbitration Agreement (except for this\nsentence) shall be null and void with respect to such proceeding, subject to the right\nto appeal the limitation or invalidation of the Class Action and Class Arbitration Waiver.\nThe parties acknowledge and agree that under no circumstances will a class action be\narbitrated; and\n2. if a claim is brought under California law seeking public injunctive relief and a court\ndetermines that the restrictions in the Class Action and Class Arbitration Waiver or\nelsewhere in this Arbitration Agreement prohibiting the arbitrator from awarding\nrelief on behalf of third parties are unenforceable with respect to such claim (and that\ndetermination becomes final after all appeals have been exhausted), the claim for public\ninjunctive relief will be determined in court and any individual claims seeking monetary\nrelief will be arbitrated. In such a case the parties will request that the court stay the\nclaim for public injunctive relief until the arbitration award pertaining to individual\nrelief has been entered in court. In no event will a claim for public injunctive relief be\narbitrated.\nThis Arbitration Agreement shall survive the closing of your Account and the termination or\nmodification of any relationship between us.\nNOTICE AND CURE\nPrior to initiating an arbitration, you may give us a written Claim Notice describing the\nbasis of your claim and the amount you would accept in resolution of the Claim, and a\nreasonable opportunity, not less than thirty (30) days, to resolve the claim. Such a Claim\nNotice must be sent to us by certified mail, return receipt requested, at Credit Card\nServices \xe2\x80\x93 Arbitration,\nP.O. Box 7092, Bridgeport, CT 06601. This is the sole and only method by which you can\nsubmit a Claim Notice. You should address all claims you have in a single Claim Notice\nand/ or a single arbitration.\n\n\x0cCOLLECTION COSTS\nExcept where prohibited by law, if we take court action or commence an arbitration\nproceeding against you for collection after you default, or if you elect arbitration of a\ncollection action we have brought against you in court, you will also be liable for court or\narbitration costs, other charges or fees, and reasonable attorneys\xe2\x80\x99 fees, should we prevail in\nsuch court action or arbitration.\nRIGHTS PRESERVED\nThis Arbitration Agreement does not prohibit you or us from exercising any lawful rights\nor using other available remedies to preserve, or obtain possession of property;\nexercise self-help remedies, including setoff rights; or obtain provisional or ancillary\nremedies such as injunctive relief, attachment, garnishment or the appointment of a\nreceiver by a court of competent jurisdiction.\nRIGHT TO CANCEL OR OPT OUT OF THIS ARBITRATION AGREEMENT\nYou may opt out of this Arbitration Agreement to resolve any claim or dispute by\narbitration. To opt out of this Arbitration Agreement, you must send us written notice of\nyour decision within forty-five (45) days of the opening of your Account or of receiving\nthe Arbitration Agreement for the first time. Such notice must clearly state that you wish\nto cancel or opt out of the Arbitration Agreement section of this Card Agreement. It\nshould include your name, address, Account name, Account number and your signature\nand must be mailed to Credit Card Services \xe2\x80\x93 Arbitration, P.O. Box 7092, Bridgeport, CT\n06601. This is the sole and only method by which you can opt out of this Arbitration\nAgreement. Your exercise of the right to opt-out will not affect any remaining terms of this\nCard Agreement and will not result in any adverse consequence to you or your Account.\nYou agree that our business records will be final and conclusive evidence with respect to\nwhether you cancelled or opted out of this Arbitration Agreement in a timely and proper\nfashion.\nYour billing rights \xe2\x80\x93 keep this document for future use\nThis notice tells you about your rights and our responsibilities under the Fair Credit\nBilling Act.\nWHAT TO DO IF YOU FIND A MISTAKE ON YOUR STATEMENT\nIf you think there is an error on your statement, write to us at Credit Card Services\n\xe2\x80\x93 Disputes, P.O. Box 7092, Bridgeport, CT 06601-3211.\nIn your letter, give us the following information:\n\xe2\x80\xa2 Account Information: Your name and account number.\n\xe2\x80\xa2 Dollar amount: The dollar amount of the suspected error.\n\xe2\x80\xa2 Description of problem: If you think there is an error on your bill, describe what you\nbelieve is wrong and why you believe it is a mistake.\nYOU MUST CONTACT US:\n\xe2\x80\xa2 Within 60 days after the error appeared on your statement.\n\xe2\x80\xa2 At least 3 business days before an automated payment is scheduled. If you want to\nstop payment on the amount you think is wrong.\nYou must notify us of any potential errors in writing. You may call us, but if you do we are\nnot required to investigate any potential errors and you may have to pay the amount in\nquestion.\nWhat will happen after we receive your letter\nWHEN WE RECEIVE YOUR LETTER, WE MUST DO TWO THINGS:\n1. Within 30 days of receiving your letter, we must tell you that we received your letter.\nWe will also tell you if we have already corrected the error.\n2. Within 90 days of receiving your letter, we must either correct the error or explain to\nyou why we believe the bill is correct.\n\n\x0cWHILE WE INVESTIGATE WHETHER OR NOT THERE HAS BEEN AN ERROR:\n\xe2\x80\xa2 We cannot try to collect the amount in question, or report you as delinquent on\nthat amount.\n\xe2\x80\xa2 The charge in question may remain on your statement, and we may continue to charge\nyou interest on that amount.\n\xe2\x80\xa2 While you do not have to pay the amount in question, you are responsible for\nthe remainder of your balance.\n\xe2\x80\xa2 We can apply any unpaid amount against your credit limit.\nAFTER WE FINISH OUR INVESTIGATION, ONE OF\nTWO THINGS WILL HAPPEN\nIf we made a mistake: You will not have to pay the amount in question or any interest\nor other fees related to that amount.\nIf we do not believe there was a mistake: You will have to pay the amount in question, along\nwith applicable interest and fees. We will send you a statement of the amount you owe and\nthe date payment is due. We may then report you as delinquent if you do not pay the amount\nwe think you owe.\nIf you receive our explanation but still believe your bill is wrong, you must write to us\nwithin 10 days telling us that you still refuse to pay. If you do so, we cannot report\nyou as delinquent without also reporting that you are questioning your bill. We must\ntell you the name of anyone to whom we reported you as delinquent, and we must let\nthose organizations know when the matter has been settled between us. If we do not\nfollow all of the rules above, you do not have to pay the first $50 of the amount you\nquestion even if your bill is correct.\nYOUR RIGHTS IF YOU ARE DISSATISFIED WITH\nYOUR CREDIT CARD PURCHASES:\nIf you are dissatisfied with the goods or services that you have purchased with your\ncredit card and you have tried in good faith to correct the problem with the merchant,\nyou may have the right to not pay the remaining amount due on the purchase.\nTO USE THIS RIGHT, ALL OF THE FOLLOWING MUST BE TRUE:\n1. The purchase must have been made in your home state or within 100 miles of your\ncurrent mailing address, and the purchase price must have been more than $50. (Note:\nNeither of these are necessary if your purchase was based on an advertisement we\nmailed to you, or if we own the company that sold you the goods or services.)\n2. You must have used your credit card for the purchase. Purchases made with cash\nadvances from an ATM or with a check that accesses your credit card account do\nnot qualify.\n3. You must not yet have fully paid for the purchase.\nIf all of the criteria above are met and you are still dissatisfied with the purchase, contact\nus in writing at: Credit Card Services \xe2\x80\x93 Disputes, P.O. Box 7092, Bridgeport, CT 066013211.\nWhile we investigate, the same rules apply to the disputed amount as discussed above.\nAfter we finish our investigation, we will tell you of our decision. At that point, if we think\nyou owe an amount and you do not pay, we may report you as delinquent.\n\xc2\xa9 Citizens Bank, N.A. 2020\n1353703_CD20_MasterAgreementUpdatesSafeHarbor\n\nRev 1/21\nCHA 1/21\n\n\x0cRates and Fees Table\nInterest Rates and Interest Charges\nAnnual Percentage\nRate (APR) for Purchases\n\n13.99% to 21.99%. This APR will be based on your creditworthiness and\nwill vary with the market based on the Prime Rate.*\nIntroductory APRs with varying durations may be available on some accounts.\n\nAPR for Balance\nTransfers\n\n13.99% to 21.99%. This APR will be based on your creditworthiness and will\nvary with the market based on the Prime Rate.*\nIntroductory APRs with varying durations may be available on some accounts.\n\nAPR for Cash Advances\n\n24.99%.\nThis APR will vary with the market based on the Prime Rate.*\n\nPenalty APR and When\nIt Applies\n\nNONE\n\nPaying Interest\n\nYour due date is at least 21 days after the close of each billing cycle. We will not charge\nyou interest on Purchases if you pay your entire balance by the due date of each\nmonth. You will pay interest on Cash Advances, Balance Transfers and Convenience\nChecks from the transaction date.\n\nMinimum Interest Charge\n\nIf you are charged interest, charge will be no less than $1.50\n\nFor Credit Card Tips from\nthe Consumer Financial\nProtection Bureau\n\nTo learn more about factors to consider when applying for or using a credit card,\nvisit the website of the Consumer Financial Protection Bureau at\nhttp://www.consumerfinance.gov/learnmore\n\nAnnual Fee\n\nNONE\n\nTransaction Fees\n- Balance Transfer\n\nEither $10 or 4% of the amount of each transfer, whichever is greater.\n\n- Cash Advance\n\nFees\n\nCash Loans, ATM Loans, and Convenience Check Loans: Either $10 or up to 3%\nof the amount of each advance, whichever is greater.\nCash Equivalent Transactions: Either $20 or 5% of the amount of each advance,\nwhichever is greater\n\n- Foreign Transaction\nPenalty Fees\n- Late Payment\n- Returned Payment\n- Over- the-Credit Limit\n\nNONE\n\nUp to $40\nNONE\nNONE\n\nHow we will Calculate your Balance: We will use the method called "average daily balances (including new\npurchases)." See Cardholder Agreement for more details.\nLoss of Introductory APR: We may end your Introductory APR and apply the Purchase APR if you make a late\npayment.\n\n\x0c*How We Will Calculate Your Variable Rates: Your variable rates may change when the Prime Rate changes. Your APR\nfor Purchases and Balance Transfers may vary monthly and will be reset on the first day of each billing cycle by adding the\nindex to a margin of 10.74-18.74 percentage points. The APR for Cash Advances may vary monthly and will be reset on\nthe first date of each billing cycle by adding the index to a margin of 21.74 percentage points. The index is determined\nmonthly and it is the Prime Rate published in the northeastern edition of The Wall Street Journal in its Money Rates table\non the first day of the preceding month rounded up to the nearest one-quarter of a percentage point. If the first day of the\npreceding month is not a business day, we will use the Prime Rate published on the next business day.\n\nThe information about costs of the card described in this application is accurate as of January 28, 2021. This\ninformation may have changed after that date. To find out what may have changed, call us toll free at 1-800-426-1114\nor write to us at Credit Card Services, P.O. Box 7092, Bridgeport, Connecticut 06601-7092.\n\n\x0cCITIZENS BANK CASH BACK PLUS\nWORLD MASTERCARD\xc2\xae REWARD GUIDE PROGRAM TERMS AND CONDITIONS\nF03-Y012-2\nThis Reward Guide governs the Cash Back Plus World MasterCard\xc2\xae Rewards\nProgram (the \xe2\x80\x9cProgram\xe2\x80\x9d). By using the Cash Back Plus credit card (the \xe2\x80\x9cCard\xe2\x80\x9d),\nyouagreetothetermsandconditions governingthe Program. The Program allows\nyou to receive Cash Back Plus Reward Points (\xe2\x80\x9cReward Points\xe2\x80\x9d). Your continued\nparticipation in the Program is also governed by the terms and conditions of your\nCardholder Agreement. Cardholder Agreement refers to the agreement governing\nthe terms of your Card account. Please review this document and keep it for your\nreference, along with your Cardholder Agreement.\n\xe2\x80\x9cYou\xe2\x80\x9d and \xe2\x80\x9cyour\xe2\x80\x9d mean the person(s) who applied for the Card. \xe2\x80\x9cWe,\xe2\x80\x9d \xe2\x80\x9cour,\xe2\x80\x9d \xe2\x80\x9cus,\xe2\x80\x9d\nand \xe2\x80\x9cCitizens Bank\xe2\x80\x9d mean Citizens Bank, N.A. and any of its affiliates.\n\nReward Points at a Glance\nEarn Rewards: Earn 1.8% base Reward Points for every dollar you spend on\neligible net purchases with no limits and no categories, as long as your account is\nin good standing. A Card account is in good standing if your Card is open and has\ncharging privileges.\nRedeem: Redeem Reward Points in increments of 25 for$25 incash back. Youcan\nredeem your Reward Points online or by telephone either as a direct deposit into a\nCitizens Bank personal checking, savings, or money market account or as a credit to\nyour Cash Back Plus credit card statement (\xe2\x80\x9cCredit Card Statement Credit\xe2\x80\x9d).\nExpiration: Noexpiration aslongasyour Cardaccountisingood standingandyou\nmake an eligible Purchase once every 12 months. If you do not make at least one\npurchase once every 12 months, Reward Points will be forfeited.\nLOOK INSIDE TO LEARN MORE ABOUT:\nEarning Rewards ........................................................................................... 2\nBonus Rewards .............................................................................................. 3\nRedeeming Rewards ..................................................................................... 4\nExpiration, Suspension, or Forfeiture of Rewards .......................................... 5\nChanges to or Cancellation of the Program .................................................... 5\nAdditional Information .................................................................................... 5\n\n1\n\n\x0cEarning Rewards\nHOW TO EARN REWARD POINTS:\n\xe2\x80\xa2 You will earn Reward Points of 1.8% for every dollar you spend on all eligible net\npurchases charged to the Card. A net purchase is the amount of a purchase\nless any credits, returns and adjustments (\xe2\x80\x9cPurchase\xe2\x80\x9d).\n\xe2\x80\xa2 A Purchase includes the total amount of each sale including sales tax and gratuities.\n\xe2\x80\xa2 Purchases resulting in fractions will be rounded up to the nearest whole cent if\ngreater than 0.005 and rounded down if equal to or less than 0.005.\n\xe2\x80\xa2 You will begin earning Reward Points on the date we mail the Card and the\nCardholder Agreement to you. If you are an existing credit card customer and\nyou are converted to the Program, you will begin earning Reward Points once\nthe request is processed.\n\xe2\x80\xa2 If you previously had a credit card account with us, which was converted to the\nProgram, existing purchase balances which are transferred to this account are not\neligible for the Program. Only Purchases made with your Card are eligible for this\nreward Program.\n\xe2\x80\xa2 Your Card account must be in good standing in order to earn Reward Points.\nAn account is in good standing if your Card is open and has charging privileges.\n\xe2\x80\xa2 From time to time, special promotions may feature bonus Reward Points,\ndetails will accompany the offer. Additional restrictions may apply.\nWHAT IS AN ELIGIBLE PURCHASE:\n\xe2\x80\xa2 An eligible Purchase is any lawful purchase to buy or lease goods or\nservices except as limited below:\n\xe2\x80\xa2 Balance transfers and cash advances, including convenience checks and\ntravelers\xe2\x80\x99 checks, money orders and other cash equivalents.\n\xe2\x80\xa2 Account fees or charges, returned check charges, interest charges, or\nfees related to plans offered by us such as life insurance or payment protection\nplans.\n\xe2\x80\xa2 Fraudulent purchases or unauthorized charges to your account.\n\xe2\x80\xa2 Wire transfers fees.\n\xe2\x80\xa2 Lottery tickets or gambling charges.\n\xe2\x80\xa2 We are not responsible for any mistakes made by a merchant regarding a purchase.\nFor example, if a merchant incorrectly identifies the purchase as a\ngambling purchase, we do not have to provide Reward Points for that\npurchase.\n\n\xe2\x80\xa2 Only eligible Purchases qualify for Reward Points.\n\n2\n\n\x0cRedeeming Rewards\nWHEN CAN YOU REDEEM YOUR REWARD POINTS:\n\xe2\x80\xa2 Reward Points can only be redeemed if your account is in good standing. You\ncan redeem Reward Points in increments of 25 for $25 in cash back. You can\nredeem as a direct deposit into your Citizens Bank personal checking, savings,\nor money market account or as a Credit Card Statement Credit.\n\xe2\x80\xa2 You can visit our website at www.citizensbank.com/creditcard or refer to\nyour monthly credit card statement to see how many Reward Points you\xe2\x80\x99ve\nearned.\nHOW YOU CAN REDEEM YOUR REWARD POINTS:\n\xe2\x80\xa2 You may redeem your Reward Points by submitting a request online at\nwww.citizensbank.com/creditcard or contacting a customer service representative\nby telephone at 1-800-684-2222.\nWHAT ARE THE REDEMPTION METHODS:\nREDEMPTION THROUGH ELECTRONIC DEPOSIT INTO YOUR\nCITIZENS BANK DEPOSIT ACCOUNT:\n\xe2\x80\xa2 Reward Points can be redeemed as a direct deposit into your Citizens Bank\npersonal checking, savings or money market account. You must be an owner on\nthe account and the account must be in good standing and able to accept\ndeposits. Reward Points may not be deposited into passbook and club\nsavings, certificate of deposits or IRA accounts.\n\xe2\x80\xa2 If an electronic transfer is rejected, the reward redemption will automatically\nbe credited back to your rewards account.\nREDEMPTION THROUGH CREDIT CARD STATEMENT CREDIT:\n\xe2\x80\xa2 Reward Points can be redeemed as a Credit Card Statement Credit to the Card that\nearned the Reward Points.\n\xe2\x80\xa2 Reward Point redemptions may reduce your account balance but cannot be applied\ntoward any minimum payments. You are still responsible for paying your minimum\nmonthly payment.\n\xe2\x80\xa2 If your Card is closed upon your request or by us before the Credit Card\nStatement Credit posts to your account, all Reward Points are forfeited (except if\nyour Card has been reported as lost or stolen, subject to verification).\nWHAT YOU NEED TO KNOW ABOUT REDEMPTION:\n\xe2\x80\xa2 Reward Points are deducted on the date you request redemption.\nRedemptions, however, may not be applied to your deposit account or credit card\naccount for up to 10 business days.\n\n\xe2\x80\xa2 Returned purchases, reversed transactions, refunds, credits or chargebacks\nwill reduce your Reward Points by the number of Reward Points you previously\nreceived for the Purchase. You may incur a negative Reward Points balance. We\nmay offset a negative balance with future Reward Points.\n\n3\n\n\x0c\xe2\x80\xa2 Only the primary cardholder may request to redeem Reward Points. Authorized\nusers on the account may not request to redeem Reward Points.\n\xe2\x80\xa2 Reward Points must be redeemed by an individual. Corporations, partnerships or\nentities may not redeem Reward Points.\n\xe2\x80\xa2 All Reward Points redemptions are final.\n\nExpiration, Suspension or Forfeiture of Reward\nPoints\n\xe2\x80\xa2 There is no expiration date on your Reward Points as long as your account is\nin good standing and you make at least one eligible Purchase once every\n12 months. If you do not make at least one purchase once every 12\nmonths, Reward Points will be forfeited.\n\xe2\x80\xa2 If your Card account is reinstated to good standing before the account is closed,\nyou will again be eligible to redeem Rewards Points.\n\xe2\x80\xa2 If you voluntarily close the Card or we close the Card (for any reason permitted\nby the Cardholder Agreement), all Reward Points are immediately and irrevocably\nforfeited.\n\nChanges to or Cancellation of the Program\n\xe2\x80\xa2 We reserve the right to add, amend or change any of the terms, conditions or\nrestrictions of the Program at any time without prior notice.\n\xe2\x80\xa2 The Program may be discontinued at any time, but Reward Points awarded\nbefore the Program is discontinued will be honored for 90 days after notice of\ncancellation of the Program is given. If there are any remaining Reward Points\nwhich are not redeemed within the 90 days after the notice of cancellation,\nthey will be forfeited.\n\xe2\x80\xa2 We may choose to discontinue your participation in the Program if we find that\nyou or someone else used your Card account in a way that violates the\nReward Guide or the terms and conditions of your Cardholder Agreement.\n\xe2\x80\xa2 The Program is not scheduled to end on a predetermined date.\n\nOther Important Information\n\xe2\x80\xa2 You have no property rights or other legal or equitable interest in Reward\nPoints earned as part of the Program. Reward Points have no cash value\nuntil they are redeemed. Unless specifically authorized by us, Reward Points\nmay not be sold, traded, assigned, transferred, or pledged under any\ncircumstances.\n\xe2\x80\xa2 Your exclusive remedy for earned but uncredited Reward Points shall be the\nissuance of the uncredited Reward Points, if available, or such other comparable\nbenefit as determined by us. If, however, your Card account is closed, then\nsuch Reward Points or other comparable benefit shall be forfeited.\n\n4\n\n\x0c\xe2\x80\xa2 We reserve the right to correct misstated Reward Points represented on\nstatements or the website at our sole discretion.\n\xe2\x80\xa2 Reward Points may be deducted from your Card account should those Reward\nPoints be the product of a fraudulent or unauthorized transaction.\n\xe2\x80\xa2 All Reward Points are subject to verification and confirmation by us. All\ndecisions regarding rewards disputes shall be final.\n\xe2\x80\xa2 Discrepancies about Reward Points are not treated as credit card billing disputes.\n\xe2\x80\xa2 It is your responsibility to notify us of any change in mailing address and email\naddress as soon as possible.\n\xe2\x80\xa2 If you voluntarily close your Card account, or we close your Card account, all\nunused Reward Points are immediately and irrevocably forfeited.\n\xe2\x80\xa2 Unless specifically authorized by us, Reward Points may not be combined with\nother discounts, special rates, promotions or other reward programs offered\nby us.\n\xe2\x80\xa2 All Reward Points are non-negotiable and cannot be redeemed for any benefit\nexcept those designated by us.\n\xe2\x80\xa2 Your Card is separate and distinct from any other Citizens Bank accounts you\nmay have with us or our affiliates.\n\xe2\x80\xa2 You agree to release Citizens Bank, N.A., and any of its affiliates from all\nliability, including:\n\xe2\x80\xa2 Any loss, claim, expense or damages you experience in connection with\nthe Program.\n\xe2\x80\xa2 Any claims, expenses and legal fees arising from or related to any\nviolation of the Program by you or anyone using your Card account.\n\xe2\x80\xa2 Any typographical errors or omissions in any Program-related document.\n\xe2\x80\xa2 Delayed or lost correspondence sent by U.S. mail or any other form of\ndelivery, including email.\n\xe2\x80\xa2 Any error, omission, interruption, deletion, defect, delay in operation or\ntransmission, theft, destruction or unauthorized access to, or alteration\nof Reward Points accrued and redeemed or other Program activities.\n\xe2\x80\xa2 We may assign our rights and obligations under this agreement to a third party,\nwho will then be entitled to any of our rights that we assign to them.\n\xe2\x80\xa2 The Reward Guide and use of your Card account are governed by federal law. To\nthe extent that federal law does not govern, Connecticut law will apply, no\nmatter where you live or use your Card account.\n\n5\n\n\x0c\xe2\x80\xa2 Reward Points may constitute taxable income. You may be issued an Internal\nRevenue Service Form 1099 (or other appropriate form) that reflects the value\nof earned Reward Points, or some portion there of (or any other part\nof the Program). Please consult your tax advisor. You are responsible for\nany tax liability that may arise from redeeming Reward Points. Citizens\nBank, N.A. does not provide tax advice.\n\xe2\x80\xa2 Any and all disputes that arise under or related to the Program will be resolved\nthrough arbitration as specifically set forth in your Cardholder Agreement.\n\xe2\x80\xa2 All Reward Points are subject to verification and confirmation by\nus. All decisions regarding rewards disputes shall be final.\n\xe2\x80\xa2 Discrepancies about Reward Points are not treated as credit card billing\nerror disputes.\n\nCredit cards are issued by Citizens Bank, N.A.\nCopyright 2019 Citizens Financial Group, Inc. All rights reserved. Citizens Bank is a\nbrand name of Citizens Bank, N.A.\nCS#887957_CDAD2108J_CshBckPlusGuide\n\nF03-Y012-2\nRev6/19\n\n6\n\n\x0c' | 2021 | [
"b'CREDIT CARD AGREEMENT\\nF03-Y754-7\\nIntroduction\\nYOUR CARDHOLDER AGREEMENT\\nThis document, together with your Rates and Fees Table, and any amendments make up the\\ncontract between you, the cardmember, and Citizens Bank, N.A. Any special offers related\\nto your Account are subject to this Agreement, unless explained otherwise. We will refer\\nto this document as your \\xe2\\x80\\x9cAgreement.\\xe2\\x80\\x9d THIS AGREEMENT CONTAINS AN ARBITRATION\\nPROVISION INCLUDING A NOTICE REGARDING THE RIGHT TO OPT OUT.\\nACCEPTANCE OF YOUR AGREEMENT\\nYour use of the Account or any payment on the Account indicates your acceptance of the\\nterms of this Agreement.\\nAny Cards or checks issued to you belong to us. You agree to sign each Card before you\\nuse it. You agree to return your Cards and checks to us at any time, if we ask you. When you\\npresent your Card, we, a merchant, or any other party acting on our behalf can retain your\\nCard, without prior notice to you.\\nCHANGES TO YOUR AGREEMENT\\nWe may change the terms of this Agreement, including but not limited to Annual Percentage\\nRate (APR) and fees, from time to time. We may also add new terms, delete terms, or\\nchange any benefit, service, or feature on your Account.",
"We may do this in response to the\\nbusiness, legal or competitive environment. Our ability to make changes to this Agreement is\\nlimited by applicable law. If required by applicable law, we will provide notice of the change\\nto you before the effective date of the change. We will tell you in the notice if you have the\\nright to reject the change.\\nPROMISE TO PAY\\nWe have agreed to lend you money as described in this Agreement, and you agree to pay\\nus back together with interest charges and fees. This promise includes paying for charges\\nyou make (even if you do not present your Card or sign the transaction), charges that other\\npeople make if you let them use your Account, and charges that additional authorized users\\nmake or permit others to make.\\nREWARDS\\nYour Account might provide you with the opportunity to earn rewards.",
"If it does, we will\\nseparately provide you with a Reward Guide containing information and terms about your\\nrewards.\\nWORDS USED IN THIS AGREEMENT\\n\\xe2\\x80\\x9cAccount\\xe2\\x80\\x9d means the relationship established between you and us in this Agreement.\\n\\xe2\\x80\\x9cCard\\xe2\\x80\\x9d means any one or more credit cards that we issue to you or someone else with your\\nauthorization under this Agreement.\\n\\xe2\\x80\\x9cWe,\\xe2\\x80\\x9d \\xe2\\x80\\x9cour\\xe2\\x80\\x9d and \\xe2\\x80\\x9cus\\xe2\\x80\\x9d mean Citizens Bank, N.A., the issuer of your credit Card and the\\ncreditor under this Agreement, or any subsequent holder of this Agreement.\\n\\n\\x0c\\xe2\\x80\\x9cYou\\xe2\\x80\\x9d and \\xe2\\x80\\x9cyour\\xe2\\x80\\x9d mean anyone who\\n\\xe2\\x80\\xa2 applied for the Account (the \\xe2\\x80\\x9cprimary cardmember\\xe2\\x80\\x9d),\\n\\xe2\\x80\\xa2 uses or maintains the Account, or\\n\\xe2\\x80\\xa2 otherwise agrees to pay for the Account or be obligated under\\nthis Agreement.\\nUsing your account\\nAUTHORIZED USERS\\nIf you ask us to issue a Card on this Account to another person or if you allow any person\\nto use your Account, he or she is an authorized user. You are responsible for any use of\\nyour Account by an authorized user. Your Account does not permit you to limit the nature\\nor amount of authority you give to any authorized user and you will not attempt to do so. An\\nauthorized user\\xe2\\x80\\x99s authority will continue until you (i) notify us that you are terminating the\\nauthority and (ii) you physically retrieve any Card, checks and any other means of access to\\nyour Card.",
"Otherwise, you will remain liable for any transactions that we cannot prevent.\\nEach authorized user\\xe2\\x80\\x99s privilege ends automatically upon the death of all of the primary\\ncardmembers. If any person uses the Card after the privilege ends, such use indicates his\\nor her agreement to pay us, and we may, at our discretion, pursue the person for payment\\nof any balance or charge resulting from his or her use of the Card. You agree to notify each\\nauthorized user that he or she is subject to the terms of this Agreement.\\nYOUR CREDIT LIMIT\\nWe assign a total credit limit to your Account that we agree to extend to you at any one time.\\nThe total credit limit will include a separate limit for cash advances. This information will be\\nshown on your Account statement.\\nYour available credit will be the amount of your total credit limit,\\nminus the sum of:\\n(i) the new balance, (ii) any purchases, balance transfers or cash advances which have been\\nauthorized but not yet posted to your Account, and (iii) the amount of any payments that\\nhave not yet cleared.",
"We may change the amount of your total credit limit and the cash\\nadvance limit without prior notice to you.\\nYou agree not to exceed any part of your total credit limit. Even if we permit transactions that\\nexceed any part of your total credit limit, you are responsible for those transactions. If we\\nrefuse any such transaction, we may advise the person attempting the transaction that it has\\nbeen refused and we are not responsible or liable for taking such action.\\nPURCHASES\\nYou can use your Card to buy or lease goods or services. Each of these transactions is a\\npurchase. In addition, any credit life insurance charges, payment protection plan charges,\\nAccount fees set forth below, and other fees that are charged to your Account (except cash\\nadvance transaction fees) are treated as purchases and will be subject to the interest rate for\\npurchases.\\nBALANCE TRANSFERS\\nWe may, at our sole option, allow you to pay an amount you owe on an account you have\\nwith other creditors. This is called a balance transfer.",
"We may pay the balance transfer\\namounts you have authorized up to your total credit limit, unless otherwise limited by the\\nterms of the balance transfer. Balance transfers may not be used to make payments on\\naccounts issued or held by us or our affiliates.\\nWhen you make a balance transfer, we will charge interest beginning on the transaction date,\\nas described in more detail in the section Annual Percentage Rate and Interest. We will also\\ncharge you a transaction fee as described in your Rates and Fees Table.",
"The transaction fee\\nwill accrue interest at the APR for purchases. Balance transfers and balance transfer\\ntransaction fees may also be subject to promotional, special or additional terms. Such terms\\n\\n\\x0cwill be included as part of your Agreement.\\nCASH ADVANCES\\nA Cash Advance means the use of your Account for a loan in the following ways:\\n1) Obtaining cash from a financial institution or an ATM:\\nYou can use your Card to obtain cash advances from any financial institution that accepts\\nyour Card and processes the transaction. The minimum amount of any cash advance you\\ncan obtain from a financial institution in one day is $20 and the maximum amount is $3,000\\nor the available amount of your cash advance limit, whichever is less.\\nYou can also use your Card and personal identification number (PIN) to get a cash advance\\nfrom any automated teller machine (ATM) that accepts your Card. The total amount of cash\\nadvances you can obtain from ATMs in one day is $500 or the available amount of your\\ncash advance limit, whichever is less.",
"We or the operators of ATMs may place additional\\nlimitations and requirements on cash advances you may obtain from ATMs.\\nAuthorization for cash advances over a certain dollar amount or number may be refused\\nunder certain circumstances even though you have available cash. These restrictions may be\\nfor security or other reasons, such as the ATM or other electronic authorization system not\\nworking properly.\\n2) Convenience Checks:\\nA convenience check is any check we provide to you for accessing your account to obtain\\ncredit. A convenience check transaction is a cash advance. Convenience checks may not be\\nused to make payment on any account issued or held by us or our affiliates. Convenience\\nchecks may be subject to promotional, special or additional terms, which are included as\\npart of your Agreement.\\nWe may pay the amount you have authorized up to your available credit limit, unless\\notherwise changed by the terms of the offer. We reserve the right to put conditions on the\\nuse of these checks and to reject, decline and return unpaid any check at our discretion. If\\nwe decline a check, you may have to pay returned check fees or other penalties to whomever\\nyou wrote the check.",
"If you ask us to stop payment on a check, you will be charged a stop\\npayment fee. If you transfer a balance using a convenience check, that transaction will be\\ntreated like any other convenience check transaction, unless we tell you otherwise. We\\ndo not certify or return these checks. Convenience checks may include an expiration date\\nprinted on the check. We will honor checks received for payment before the expiration date\\nprinted on the check, provided your account is open and in good standing, with available\\ncredit.\\n3) Purchasing a Cash Equivalent:\\nYou may use your Card to enter into a cash equivalent transaction.",
"This includes purchasing\\ntravelers checks, savings bonds, foreign currency, money orders, wire transfers, lottery\\ntickets, gift cards, gambling chips or wagers, or similar products or services as determined\\nby us.\\nWhen you obtain a cash advance we will charge interest beginning on the transaction date,\\nas described in more detail in the section Annual Percentage Rate and Interest. We will also\\ncharge you a transaction fee as described in your Rates and Fees Table. The transaction fee\\nwill accrue interest at the APR for cash advances.\\nFOREIGN TRANSACTION/CURRENCY CONVERSION\\nIf a foreign transaction fee applies to your Account, we will charge you a fee for transactions\\nthat are conducted in a currency other than U.S. Dollars.",
"This includes, for example, online\\nor phone purchases where the transaction is conducted in a currency other than U.S.\\n\\n\\x0cDollars. This fee is calculated on the U.S. Dollar amount of the transaction. The transaction\\nfee is an interest charge that will accrue interest at the APR for purchases.\\nOur network providers (e.g., Mastercard) convert transactions in foreign currencies into\\nU.S. dollars. The type of card you have determines who does the conversion. Each network\\nprovider follows its own procedures, which it may change from time to time without notice\\nto you at its discretion.\\nThe exchange rate will be determined using either the range of rates available in the\\nwholesale currency markets for the processing date or a government- mandated rate in\\neffect on that date. The exchange rate used by our network providers may differ from the\\nrate on the date of your transaction. You agree to accept and pay the U.S. Dollar amount\\nconverted from a foreign currency as provided in this section. We will deduct the applicable\\nfees from this amount.",
"This means that the amount of the credit may be different from the\\namount that was originally charged to your Account for the transaction.\\nALLOWED USE\\nYou agree to use your Account only for lawful purposes. You agree not to make or allow to\\nbe made any transactions which are illegal under any state or federal law. We may decline to\\napprove any transaction which we reasonably believe is illegal under any state or federal law.\\nYour billing statement and making payments\\nBILLING STATEMENTS\\nWe will send you a billing statement each month that you have a credit or debit balance of\\nmore than $1, when an interest charge has been imposed, or when there has been activity\\nin your Account, unless we deem your Account uncollectible or delinquency collection\\nproceedings have been instituted against you.",
"In our discretion, we may choose to send you\\na statement even if you do not have a credit or debit of $1 or more.\\nYour statement will show the total amount that you owe us as of the end of the last billing\\ncycle. It will also show the minimum payment you must make to us by the stated due date.\\nNOTIFYING US IF YOU FIND A MISTAKE\\nUnless you notify us in writing within 60 days of receipt, your billing statement will be\\ndeemed to be correct.\\nHOW TO MAKE A PAYMENT\\nPayments may be mailed to the address shown on your billing statement.",
"Payments\\nmade by mail must be accompanied by the return portion of your statement. Payments\\nmust be made in U.S. Dollars drawn on a federally-insured depository institution located\\nin the U.S. You authorize us to collect any payment check either electronically or by\\ndraft.\\nIn addition to accepting payments by mail, we may permit you to make payments by\\nelectronic means, including by telephone or Internet, subject to any terms we may\\nimpose on these alternative methods of payment, including charging an expedited\\nservice fee of which we will inform you at that time. Also, we may permit you to make\\npayments in person at one of our branches.\\nHOW WE CREDIT PAYMENTS\\nPayments received at the address shown on your billing statement before 5:00 P.M. Eastern\\nTime will be credited by us for that day. Payments received after this time will be credited\\nfor the next business day.",
"If your payment due date is on a day on which we do not receive\\nmailed payments, a mailed payment received on the next business day will not be treated\\nas late.\\n\\n\\x0cIf you do not use one of the ways to make payments stated in this Agreement, the return\\nportion of your statement is damaged and we are unable to identify your Account, or you\\ndo not comply with the payment requirements stated on your statement, crediting of your\\npayments may be delayed up to 5 days or your payment may be rejected.\\nIf a payment is received in person at one of our branches before the actual time of closing\\nof the branch at which the payment is made, it will be credited by us for that day.\\nMINIMUM PAYMENT\\nYou must pay at least the minimum payment due by the payment due date.",
"You may pay\\nthe entire amount you owe us at any time. The minimum payment due and payment due\\ndate are shown on each billing statement. You also agree to pay amounts in excess of your\\ncredit limit when billed to your monthly statements or sooner if we ask. If you do not pay\\nthe minimum payment by the due date, we may charge you a late payment fee.\\nHOW WE CALCULATE THE MINIMUM PAYMENT\\nIf your new balance is $30 or less, your minimum payment will be the new balance.\\nOtherwise, it will be the greater of (i) $30; or (ii) equal to the total billed Interest charges\\n(excluding transaction fees for balance transfers, cash advances, foreign transactions, and\\ncash equivalents), and any billed late payment fees and 1% of the new balance.\\nAny amount past due and any amount over your total credit limit or cash advance limit\\nmay be added to the minimum payment. Your minimum payment, exclusive of interest\\ncharges, will be rounded to the nearest whole dollar. We may change your minimum\\namount due including increasing your minimum amount due subject to applicable law.\\nIf you exercise your right to cancel contained in a change-in-terms notification, we\\nmay increase your minimum amount due.",
"We may require (i) a method in which the\\nminimum periodic payment includes a percentage of the outstanding balance that is\\ntwice the percentage required before the increase or (ii) a method which incorporates an\\namortization period of not less than 5 years. We may also choose a method that is no less\\nbeneficial to you than the other two methods previously described.\\nHOW PAYMENTS ARE APPLIED\\nPayments less than or equal to the minimum amount due will be applied in any order\\nthat we shall from time to time choose. Generally, payments less than or equal to the\\nminimum amount due are applied to introductory, promotional or low rate balances\\nbefore we apply payments to balances that are subject to standard or higher rates,\\nregardless of when the transaction is made. Any amount of your payments that is\\ngreater than the minimum amount due will be applied first to balances with the highest\\nAPR, and then to each successive balance with the next highest APR, until the payment\\nis exhausted.\\nRESTRICTIVE ENDORSEMENTS\\nAny conditional check, money order or any other instrument tendered with a restrictive\\nendorsement or as a full satisfaction of a disputed debt must be sent to our address for\\nbilling error notices shown on each statement and must conspicuously state on the face of\\nthat payment or in an accompanying letter that it is tendered for this purpose. If you make\\npayment in any other way and we accept it, we will not have waived our right to collect any\\namount from you owed under this Agreement.\\nAnnual percentage rate and interest\\nABOUT YOUR ANNUAL PERCENTAGE RATES\\nThe APR or \\xe2\\x80\\x9cannual percentage rate\\xe2\\x80\\x9d is an annualized interest rate.",
"Different APRs apply\\nto different balances (called transaction types) on your Account, such as the balances on\\npurchases, balance transfers and cash advances.\\n\\n\\x0cYour APRs may be either fixed or variable. Your Rates and Fees Table and your statement\\ndisclose whether you have fixed or variable rates. If an APR is variable, it may vary monthly\\nas the Index rate changes and will be reset on the first day of each billing cycle. The Index\\nrate is described in your Rates and Fees table. If the Index increases, the variable APRs will\\nincrease. Any increase in your APRs will apply to all unpaid purchases, balance transfers\\nand cash advances (regardless of the transaction date), will increase the interest charge\\nand may increase the minimum payment.\\nHOW WE CALCULATE INTEREST\\nIn General. We calculate the interest charge separately for each transaction type\\n(purchases, balance transfers, and cash advances) as well as for any applicable\\npromotional rate. This means that your Account may have separate balances for each\\ntransaction type.",
"The total interest charged for a billing cycle is the sum of the interest\\ncharged for each balance.\\nWe use the average daily balance (including new purchases) method, which means\\nwe calculate a daily balance for each type of transaction and use the daily balances to\\ndetermine your interest charges. According to this method, we calculate the interest charge\\nfor each balance by\\n\\xe2\\x80\\xa2 applying the \\xe2\\x80\\x9cdaily periodic rate\\xe2\\x80\\x9d to the \\xe2\\x80\\x9caverage daily balance\\xe2\\x80\\x9d and\\n\\xe2\\x80\\xa2 multiplying the result by the number of days in the billing cycle.\\nWE CALCULATE ITS COMPONENTS IN THE FOLLOWING WAY:\\nThe \\xe2\\x80\\x9cdaily periodic rate\\xe2\\x80\\x9d is a daily interest rate. The daily periodic rate for each transaction\\ntype is equal to the APR for that transaction type divided by 365.\\nTo get the \\xe2\\x80\\x9caverage daily balance\\xe2\\x80\\x9d for each transaction type we add up the daily balances\\nand then divide the result by the total number of days in the billing cycle. If any day\\xe2\\x80\\x99s daily\\nbalance is a credit balance, we will treat it as a balance equal to $0.00.\\nWe calculate the \\xe2\\x80\\x9cdaily balance\\xe2\\x80\\x9d by\\n\\xe2\\x80\\xa2 taking the \\xe2\\x80\\x9cbeginning balance\\xe2\\x80\\x9d of the day,\\n\\xe2\\x80\\xa2 adding any new charges and applicable fees,\\n\\xe2\\x80\\xa2 except for the first day of the billing cycle, adding the amount of any interest equal to the\\nprior day\\xe2\\x80\\x99s daily balance multiplied by the daily periodic interest rate, and\\n\\xe2\\x80\\xa2 subtracting any payments or credits.\\nThe \\xe2\\x80\\x9cbeginning balance\\xe2\\x80\\x9d for the first day of the billing cycle is generally the ending balance\\nfor the prior billing cycle, including unpaid interest. For the rest of the billing cycle, the\\nbeginning balance is the prior day\\xe2\\x80\\x99s daily balance.\\nThe addition of the prior day\\xe2\\x80\\x99s interest to the daily balance calculation causes interest\\nto compound daily.",
"We may, at our discretion, round these amounts, subject to any\\nrestrictions under applicable law.\\nMINIMUM INTEREST CHARGE\\nIf any interest charge is due, we will charge you at least the minimum interest charge\\nshown on your Rates and Fees Table.\\nHOW TO AVOID INTEREST CHARGES\\nYou can avoid interest charges on purchases if you pay your entire balance by the payment\\ndue date every month. You will not pay interest for an entire billing cycle (\\xe2\\x80\\x9cinterest-free\\nperiod\\xe2\\x80\\x9d or \\xe2\\x80\\x9cgrace period\\xe2\\x80\\x9d) on new purchases and fees if you paid the entire balance by\\nthe payment due date on your previous billing statement.",
"The interest-free period or grace\\nperiod is the time when you are not charged interest on new purchases and fees. We will\\nnot charge you interest on any portion of a purchase balance you repay while that balance\\nis subject to an interest-free period. The payment due date will be at least 21 days from the\\nstatement date. To maintain the interest-free period, you must continue to pay your entire\\nbalance every month.\\n\\n\\x0cYou will lose your interest-free period if, at any time, you pay less than the entire balance\\nshown on your billing statement. If you lose your interest-free period, the unpaid balance for\\npurchases will be charged interest beginning on the transaction date and will continue to be\\ncharged until payment in full is credited to your Account. The transaction date for purchases\\nis the day you make the purchase as shown on your statement.\\nOnce the interest-free period is lost, you may owe interest charges even if you pay the entire\\nbalance stated on your most recent billing statement by the due date.",
"This occurs because,\\ninterest continues to accrue every day on the balance shown on your most recent statement\\nuntil your payment in full is credited to your Account. The interest charged from the date of\\nthe billing statement until the payment is credited to your Account will be included in your\\nnext billing statement.\\nThere is no interest-free period for cash advance or balance transfer transactions. You will\\npay interest on cash advance and balance transfer transactions starting on the transaction\\ndate until you pay the entire amount in full.",
"The transaction date for balance transfers is the\\nday you make the balance transfer as shown on a statement. The transaction date for cash\\nadvances and related cash advance fees is the day you receive the cash advance.\\nMILITARY LENDING ACT INFORMATION\\nFederal law provides important protections to members of the Armed Forces and their\\ndependents relating to extensions of consumer credit. In general, the cost of consumer\\ncredit to a member of the Armed Forces and his or her dependent may not exceed an annual\\npercentage rate of 36 percent. This rate must include, as applicable to the credit transaction\\nor account: The costs associated with credit insurance premiums; fees for ancillary products\\nsold in connection with the credit transaction; any application fee charged (other than certain\\napplication fees for specified credit transactions or accounts); and any participation fee\\ncharged (other than certain participation fees for a credit card account). To hear the Military\\nLending Act Information, call 866-999-6336.\\nDefault\\nYOU ARE IN DEFAULT IF ANY ONE OF THE FOLLOWING EVENTS HAPPEN\\n\\xe2\\x80\\xa2 you fail to make any payment when it is due;\\n\\xe2\\x80\\xa2 you have exceeded one or more of your credit limits;\\n\\xe2\\x80\\xa2 you provide us false, misleading, or fraudulent information;\\n\\xe2\\x80\\xa2 we become aware that you are using your Card for illegal or fraudulent purposes;\\n\\xe2\\x80\\xa2 you fail to comply with any term of this Agreement or other agreements with us or any of\\nour affiliated banks;\\n\\xe2\\x80\\xa2 you are not paying your debts as they become due or you are bankrupt or insolvency\\nproceedings are filed against you;\\n\\xe2\\x80\\xa2 a payment you made is rejected or cannot be processed;\\n\\xe2\\x80\\xa2 you die or are legally declared incompetent or incapacitated; or\\n\\xe2\\x80\\xa2 we otherwise reasonably believe that you may be unwilling or unable to pay your debts on\\ntime.\\nOUR RIGHTS IF YOU ARE IN DEFAULT\\nWe may reduce your total credit limit and/or your cash credit limit, increase your minimum\\npayment, close your Account or suspend or terminate credit privileges if you are in default.\\nWe may, to the extent permitted by law, demand immediate payment of the total balance.\\nPENALTY APR RATE FOR NEW TRANSACTIONS\\nWe may apply the penalty APR rate to new transactions if you:\\n\\xe2\\x80\\xa2 Do not pay at least the minimum payment due by the payment due date;\\n\\xe2\\x80\\xa2 Make a payment that is returned;\\n\\xe2\\x80\\xa2 Go over your credit limit; or\\n\\n\\x0c\\xe2\\x80\\xa2 Do any of the above on another account that you have with us.\\nPlease refer to your Rates and Fees Table to determine if a penalty APR rate applies to your\\nAccount.",
"If the penalty APR rate is triggered, we will provide notice to you as required by\\napplicable law. This rate may apply indefinitely.\\nPENALTY APR RATE FOR EXISTING BALANCES\\nIf we do not receive your minimum payment due within 60 days of the due date we may\\napply the penalty APR rate to all your existing balances and all future balances.\\nPlease refer to your Rates and Fees Table to determine if a penalty APR rate applies to your\\nAccount. If the penalty APR rate is triggered, we will provide notice to you as required by\\napplicable law. If for 6 consecutive billing cycles following the cycle in which the penalty APR\\nrate is imposed, you make all required minimum payments by their payment due dates, we\\nwill reinstate your APR on purchases, balance transfers and cash advances.\\nCOLLECTION COSTS\\nIf you are in default, we may refer your Account for collection or take any other actions\\npermitted by this Agreement or applicable law. If we do, you agree to pay the reasonable fees\\nand expenses of our collection agency or other person collecting your Account, as permitted\\nby law, including reasonable attorneys\\xe2\\x80\\x99 fees and alternative dispute resolution costs.\\nNEW HAMPSHIRE RESIDENTS: If you prevail in any action, suit or proceeding we bring or\\nin an action you bring in connection with this Agreement, reasonable attorneys\\xe2\\x80\\x99 fees shall\\nbe awarded to you.",
"If you successfully assert a pertinent defense, set off, recoupment or\\ncounterclaim to an action brought by us, the court may withhold from us the entire amount\\nor such portion of the attorneys\\xe2\\x80\\x99 fees as the court deems appropriate.\\nWEST VIRGINIA RESIDENTS: Reference to the payment of attorneys\\xe2\\x80\\x99 fees and court costs in\\nthe terms of this Agreement is void.\\nAccount fees\\nThe following fees may be assessed on your Account (these are considered Account fees).\\nIf any fee in your Rates and Fees Table is marked none, the section of this Agreement that\\nrelates to that fee does not apply. Unless we tell you otherwise, all Account fees are treated\\nas purchases (except that transaction fees for a cash advance are treated as a cash advance).\\nCARD REPLACEMENT FEE\\nIf we replace a stolen, lost or damaged Card, we may charge your Account a Card\\nreplacement fee of $10.",
"We may charge additional fees for expedited or overseas delivery of\\nyour replacement Card.\\nCOPY FEE\\nWe may charge your Account a copy fee of $5 for each page of photocopy of any sales slip\\nor other record of your Account plus $30 per hour for the time it takes our employees or\\nagents to make the copies, to the extent permitted by law.\\nSTOP PAYMENT FEE\\nWe may charge your Account a stop payment fee of $29 when you request that we stop\\npayment of a check you have requested (including balance transfer checks and other\\nchecks that access your Account). You may make a stop payment request by calling us\\nor by writing to us. We will accept a stop payment request provided that we receive the\\nstop payment notice in a reasonable time before we have accepted, paid in cash, made\\nfinal payment on or otherwise become obligated to pay such check, except to the extent\\notherwise required by applicable law. Stop payment requests will remain in effect for six\\nmonths unless renewed in writing or by calling us before the expiration of the 6-month\\nperiod.\\n\\n\\x0cLATE PAYMENT FEE\\nWe may charge your account a late payment fee if we do not receive your minimum\\npayment by the payment due date. Your late payment fee is $29 for the first occurrence\\nand up to $40 for additional occurrences during the next six billing cycles.",
"In no event will\\nyour late payment fee exceed the minimum payment.\\nANNUAL MEMBERSHIP FEE\\nPlease refer to your Rates and Fees Table to determine if an annual membership fee applies\\nto your Account and, if applicable, the amount of the fee.\\nBALANCE TRANSFER TRANSACTION FEE, CASH ADVANCE TRANSACTION FEE, FOREIGN\\nTRANSACTION FEE\\nPlease refer to your Rates and Fees Table (or if relevant, a special offer) to determine the\\namount of this fee.\\nClosing an account\\nHOW TO CLOSE YOUR ACCOUNT\\nYou may close your Account by calling us or writing to us. If there are multiple primary\\ncardmembers on your Account, any one of you may close your Account at any time. We\\nmay immediately close your Account after we receive such a request, without giving notice\\nto other cardmembers on your Account. You agree that you will not hold us\\nresponsible for any costs, damages or inconvenience you suffer as a result of the closing of\\nyour Account by any cardmember on your Account.\\nWHEN WE MAY CLOSE YOUR ACCOUNT\\nEven if you are not in default, we may, at any time: (i) reduce your total credit limit and/ or\\ncash advance limit; (ii) close your Account; (iii) cancel or suspend your privileges to make\\nfurther purchases and balance transfers or obtain cash advances; or (iv) cancel or suspend\\nany Account privileges or benefits.",
"We can also reissue a different card to you at any time.\\nWHAT YOU MUST DO WHEN YOUR ACCOUNT IS CLOSED\\nWhen your Account is closed, you must contact anyone authorized to charge\\ntransactions to your Account, such as internet service providers, health clubs or\\ninsurance agencies. Those transactions may continue to be charged to your Account\\nuntil you change the billing. Also, if we believe that you have authorized a transaction or\\nare attempting to use your Account after you have requested to close the Account, we\\nmay allow the transaction to be charged to your Account and you will be responsible for\\npayment under the terms of this Agreement.\\nWHAT HAPPENS WHEN YOUR ACCOUNT IS CLOSED\\nIf you close your Account, or we close your Account, you may not make any further\\npurchases and balance transfers or obtain cash advances.",
"If you use your card after\\nclosing your Account and we extend credit as a convenience to you, you remain\\nresponsible for paying those charges. If we or you close your Account, we may, at our\\noption, require you to pay the entire balance of your Account at once or permit you to pay\\nthe balance in monthly payments as provided in this Agreement or otherwise, as we\\ndetermine. Other Account fees, such as a late payment fee, will apply as applicable. If an\\nannual membership fee applies and you close your Account after the annual membership\\nfee is billed, we will remove the fee from your Account, provided your Account is closed\\nwithin 30 days after we mailed your statement on which the fee was charged to your\\nAccount. You may pay any balance due on your Account at any time.\\nOther important information\\nHOW TO CONTACT US\\nUnless we tell you otherwise, you can contact us by phone: TOLL FREE 1-800-426-1114 or in\\nwriting: Credit Card Services \\xe2\\x80\\x93 Customer Service, P.O.",
"Box 7092, Bridgeport, CT 06601. When\\nwriting, please include your name, address, home phone number, and Account number.\\nA telephone call will not preserve your rights under federal law.\\n\\n\\x0cCHANGING YOUR BILLING ADDRESS\\nWe will send statements and notices to your last known address. You promise to notify us\\npromptly of any change in your address by following the notification method provided in\\nthe How to Contact Us section. If you have more than one Account, you need to notify us\\nseparately for each Account.\\nMULTIPLE CARDMEMBERS\\nIf there are two or more cardmembers obligated under this Agreement, we can send\\nstatements and notices to any one. Any notice we mail to an address provided by any of\\nyou for the Account will serve as notice to all of you.",
"Each cardmember obligated under\\nthis Agreement is jointly and severally liable for all amounts charged to the Account\\nregardless of which cardmember incurred the charges to the Account.\\nWE MAY CONTACT YOU\\nYou authorize us (and our affiliates, agents and contractors) to contact you at any\\nnumber you provide to us, from which you call us, or at which we believe we can reach\\nyou, and that we may contact you for any reason, including regarding any request you\\nmake for a loan or other product, to service or collect on every account you currently\\nhave with us or may have with us in the future and regarding any other products or\\nservices we are providing to you or which we provide to you in the future.",
"You authorize us\\nto contact you in any manner, including by means of automated dialing devices,\\nprerecorded messages, wireless push notifications, or text messages, even if you are\\ncharged for receiving the communication and even if you will receive the communication on\\na mobile or wireless device. You agree that such calls are not unsolicited and that\\nwe may monitor and/or record them. You also agree to receive emails from us to any\\naddress where we reasonably believe that we may contact you.\\nCREDIT INFORMATION\\nYou agree that we will obtain credit reports about you, investigate your ability to pay, and\\nobtain information about you from other sources including information to verify and reverify your employment and income. We will use such information for any purposes,\\nsubject to applicable law.\\nWe may report information about your Account to credit bureaus. Negative credit\\ninformation, including late payments, missed payments, or other defaults on your\\nAccount may be reflected in your credit report. We may report Account information in\\nyour name and the names of authorized users. If you believe we have furnished\\ninaccurate or incomplete information about you or your Account to a credit reporting\\nagency, write to us at: Disputes, P.O.",
"Box 7092, Bridgeport, CT 06601. Please include\\nyour name, address, home phone number and Account number, and explain what you\\nbelieve is inaccurate or incomplete with supporting information.\\nINFORMATION SHARING\\nYou authorize us to share information about you and your Account with affiliates and third\\nparties, unless the law or our Privacy Notice prohibits us from doing so. Please see our\\nPrivacy Notice for your choices about information sharing. This includes information we\\nget from you and others. It also includes information about your transactions with us.\\nACCOUNT UPDATER FOR THIRD-PARTY STORED INFORMATION,\\nINCLUDING PREAUTHORIZED DEBIT (RECURRING PAYMENTS)\\nIf you choose to store your account information with anythird parties, we mayalso share\\nupdates to this information with these third parties. Please note this only applies to third parties\\nwith whom you elect to share this information.",
"If you elect to share Account information with\\na third party, you are responsible for any transfer or payment that third party makes from\\nyour Account, even if that third party exceeds your authorization, and for any other issues\\nthat arise with respect to your Account and/or information contained in your Account, by\\nvirtue of the fact that you shared your Account information.\\n\\n\\x0cUNAUTHORIZED USE\\nIf you notice the loss or theft of your Card or possible unauthorized use of your Card, you\\nshould immediately call us TOLL FREE at 1-800-443-0164. You will not be liable for\\nany unauthorized use that occurs after you notify us. You may, however, be liable for\\nunauthorized use that occurs before your notice to us. In any case, if there is unauthorized\\nuse of your Card, your liability will not exceed $50.\\nIF YOUR ACCOUNT HAS A CREDIT BALANCE\\nYou may request a refund of credit balances at any time by writing. If you don\\xe2\\x80\\x99t request\\na refund, we will apply credit balances to new transactions unless a refund is required\\nby law.",
"If you have a credit balance that is less than $1,000 or such other amount as\\nwe may determine, you may be able to request a refund over the telephone.\\nEVENTS BEYOND OUR CONTROL\\nExcept as otherwise required by applicable law, we are not responsible and will incur no\\nliability to you for any failure, error, malfunction or any delay in carrying out any of our\\nobligations under this Agreement if any such failure, error, malfunction or delay results\\nfrom causes beyond our reasonable control.\\nNO LIABILITY FOR REFUSAL TO HONOR\\nWe are not liable for any refusal to honor your Account. This can include a refusal to\\nhonor your Card or Account or any check written on any transaction on your behalf.",
"We\\nare not liable for any retention of your Card by us, any other financial institution, or any\\nprovider of goods or services.\\nNO RESPONSIBILITY FOR UNAUTHORIZED ACCESS OR INQUIRIES\\nWe are not responsible for unauthorized inquiries about your account or access to your\\nAccount information. You agree that so long as we are in compliance with applicable law and\\nregulation that we will not be responsible or liable for the release of information to anyone\\nwho has gained access to your Account or Account information.\\nGOVERNING LAW\\nThis Agreement and use of your Account are governed by federal law. To the extent that\\nfederal law does not govern, Connecticut law will apply, no matter where you live or use\\nyour Account.",
"We accept this Agreement in Connecticut. Decisions about granting credit\\nto you are made in Connecticut and all credit extended under this Agreement is extended\\nby us from Connecticut.\\nSEPARATION OF INVALID PROVISIONS\\nIf any part of this Agreement becomes invalid under applicable law, the remainder of\\nthis Agreement will remain valid and in effect. If your Account is subject to a law setting\\nmaximum loan rates, fees or charges which is finally interpreted so that the charges on\\nyour Account would exceed permissible limits, then any such charge will be reduced\\n(including retroactively) to permitted limits and any amount collected from you exceeding\\nthose limits will be refunded to you.\\nOUR RIGHT TO DELAY ENFORCEMENT\\nWe can delay enforcing any of our rights under this Agreement without losing any of them.\\nASSIGNMENT\\nWe may, at any time and without notice to you, sell, assign or transfer your Account,\\nany amount due in your Account, this Agreement or our rights and obligations under\\nyour Account or this Agreement to any person or entity. The person or entity to whom\\nwe make any such sale assignment or transfer is entitled to all of our rights and is\\nsubject to all of your obligations under this Agreement, to the extent sold, assigned or\\ntransferred.\\nARBITRATION AGREEMENT\\nIf you are a Covered Borrower, as defined by the Military Lending Act, the arbitration\\nprovisions set forth in this section do not apply to you.\\nThis section constitutes the Arbitration Agreement between you and us.\\n\\n\\x0cREAD THIS SECTION CAREFULLY AS IT WILL HAVE A SUBSTANTIAL IMPACT ON HOW\\nLEGAL DISPUTES BETWEEN YOU AND US ARE RESOLVED.",
"If you do not opt out, for a\\ndispute subject to arbitration, there is a waiver of rights as discussed below.\\nArbitration procedures are simpler and more limited than rules applicable in court.\\nThe decision of the arbitrator is generally final and binding.\\nYou have the right to cancel or opt out of this Arbitration Agreement as set forth below.\\nSPECIAL DEFINITION OF \\xe2\\x80\\x9cWE,\\xe2\\x80\\x9d \\xe2\\x80\\x9cUS\\xe2\\x80\\x9d AND \\xe2\\x80\\x9cOUR\\xe2\\x80\\x9d\\nSolely for purposes of this Arbitration Agreement, the terms \\xe2\\x80\\x9cwe,\\xe2\\x80\\x9d \\xe2\\x80\\x9cus\\xe2\\x80\\x9d and \\xe2\\x80\\x9cour,\\xe2\\x80\\x9d in\\naddition to the meanings set forth in this Credit Card Agreement (the \\xe2\\x80\\x9cCard Agreement\\xe2\\x80\\x9d),\\nalso refer to our employees, officers, directors, parents, controlling persons, subsidiaries,\\naffiliates, successors and assigns.\\nBINDING ARBITRATION\\nIf you have a dispute with us, and we are not able to resolve the dispute informally,\\nyou and we agree that upon demand by either you or us, the dispute will be resolved\\nthrough the arbitration process as set forth in this part.",
"A \\xe2\\x80\\x9cclaim\\xe2\\x80\\x9d or \\xe2\\x80\\x9cdispute,\\xe2\\x80\\x9d as used\\nin this\\nArbitration Agreement, is any unresolved disagreement between you and us, arising from\\nor relating in any way to the Card Agreement (including any renewals, extensions,\\naddendums or modifications), the credit relationship between us, or relating to any\\nreward program, feature, or benefit. It includes any disagreement relating in any way to\\nservices, accounts or any other matters; to your use of any of our banking facilities; or to\\nany means you may use to access your account(s). Any claims or disputes arising from\\nor relating to the advertising of our services, the application for, or the approval or\\nestablishment of your Account are also included. Claims are subject to arbitration,\\nregardless of what theory they are based\\non, whether they seek legal or equitable remedies, or irrespective whether they are\\ncommon law or statutory (federal or state) claims. Arbitration applies to any and all such\\nclaims or disputes, whether they arose in the past, may currently exist, or may arise in the\\nfuture.\\nHowever, \\xe2\\x80\\x9cclaim\\xe2\\x80\\x9d or \\xe2\\x80\\x9cdispute\\xe2\\x80\\x9d as used in this Arbitration Agreement does not include\\nany dispute or controversy about the validity, enforceability, coverage or scope of this\\nArbitration Agreement or any part thereof (including, without limitation, the \\xe2\\x80\\x9cClass\\nAction and Class Arbitration Waiver\\xe2\\x80\\x9d set forth below, subparts (1) and (2) of the\\n\\xe2\\x80\\x9cSeverability and Survival\\xe2\\x80\\x9d part set forth below and/or this sentence); all such disputes\\nor controversies are for a court and not an arbitrator to decide; but disputes about the\\nvalidity or enforceability of this Account Agreement as a whole are for the arbitrator\\nand not a court to decide.",
"ANY DISPUTE CONCERNING THE VALIDITY,\\nENFORCEABILITY, COVERAGE OR SCOPE OF THIS ARBITRATION AGREEMENT\\nSHALL BE RESOLVED IN A RHODE ISLAND STATE OR FEDERAL COURT OF LAW, AND\\nTHE PARTIES HEREBY SUBMIT TO THE JURISDICTION OF SUCH A COURT FOR SUCH\\nPURPOSE.\\nTRIAL WAIVER\\nYOU AGREE THAT YOU AND WE ARE WAIVING THE RIGHT TO A JURY TRIAL AND\\nTRIAL BEFORE A JUDGE IN A PUBLIC COURT upon demand by either party for arbitration.\\nHowever, you and we retain the right to pursue in small claims court (or an equivalent state\\ncourt) any dispute that is within that court\\xe2\\x80\\x99s jurisdiction and advance only an individual\\nclaim for relief. If either you or we fail to submit to binding arbitration of an arbitrable\\ndispute following lawful demand, the party so failing shall bear all costs and expenses\\nincurred by the other party in compelling arbitration.\\n\\n\\x0cCLASS ACTION AND CLASS ARBITRATION WAIVER\\nNEITHER YOU NOR WE SHALL BE ENTITLED TO JOIN OR CONSOLIDATE DISPUTES\\nBY OR AGAINST OTHERS IN ANY COURT ACTION OR ARBITRATION, OR TO INCLUDE\\nIN ANY COURT ACTION OR ARBITRATION ANY DISPUTE AS A REPRESENTATIVE OR\\nMEMBER OF A CLASS, OR TO ACT IN ANY ARBITRATION IN THE INTEREST OF THE\\nGENERAL PUBLIC OR IN A PRIVATE ATTORNEY GENERAL CAPACITY, UNLESS THOSE\\nPERSONS ARE JOINT ACCOUNT BORROWERS OR BENEFICIARIES ON YOUR ACCOUNT.\\nThis is so whether or not the claim has been assigned.\\nARBITRATION PROCEDURES\\nYou or we may submit a dispute to binding arbitration at any time, regardless of whether a\\nlawsuit or other proceeding has been previously commenced.\\nEach arbitration, including the selection of the arbitrator(s) shall be administered by the\\nAmerican Arbitration Association (AAA), or JAMS according to such forum\\xe2\\x80\\x99s rules and\\nprocedures.",
"You may obtain a copy of the arbitration rules for these forums, as well as\\nadditional information about initiating arbitration by contacting these arbitration forums:\\nAmerican Arbitration Association\\n1-800-778-7879 (toll-free) | website: www.adr.org\\nJAMS\\n1-800-352-5267 (toll-free) | website: www.jamsadr.com\\nIn the event that JAMS or the AAA is unable to handle the dispute for any reason, then\\nthe matter shall be arbitrated instead by a neutral arbitrator selected by agreement of the\\nparties pursuant to the AAA rules of procedure; or, if the parties cannot agree, selected by\\na court in accordance with the Federal Arbitration Act (Title 9 of the United States Code)\\n(\\xe2\\x80\\x9cFAA\\xe2\\x80\\x9d). To the extent that there is any variance between the selected forum\\xe2\\x80\\x99s rules and this\\nArbitration Agreement, this Arbitration Agreement shall control.\\nIf you initiate the arbitration, you must notify us in writing at Credit Card Services \\xe2\\x80\\x93\\nArbitration, P.O. Box 7092, Bridgeport, CT 06601. If we initiate the arbitration, we will notify\\nyou in writing at your last known address in our file.\\nThe arbitration shall take place in the federal judicial district in which you reside, unless the\\nparties agree to a different location in writing.",
"Arbitrators must be members of the state bar\\nwhere the arbitration is held, with expertise in the substantive laws applicable to the subject\\nmatter of the dispute. No arbitrator or other party to an arbitration proceeding may disclose\\nthe existence, content or results thereof, except for disclosures of information by a party\\nrequired in the ordinary course of its business or by applicable law or regulation.\\nThe arbitrator will follow applicable substantive law to the extent consistent with the FAA.\\nThe arbitrator will give effect to the applicable statutes of limitation and will dismiss barred\\nclaims. In addition, you or we may submit a written request to the arbitrator to expand\\nthe scope of discovery normally allowable. At the timely request of either you or us, the\\narbitrator must provide a brief written explanation of the basis for the award. A judgment\\non the award may be entered by any court having jurisdiction.\\nYou and we agree that in our relationship arising from this Card Agreement:\\n(1) the parties are participating in transactions involving interstate commerce; and\\n(2) this Arbitration Agreement and any resulting arbitration are governed by the provisions\\nof the FAA, and, to the extent any provision of that act is inapplicable or unenforceable, the\\nlaws of the state that govern the relationship between you and us.\\nNo arbitrator shall have authority to entertain any dispute on behalf of a person who is not\\na named party, nor shall any arbitrator have authority to make any award for the benefit of,\\nor against, any person who is not a named party.\\n\\n\\x0cARBITRATION COSTS\\nThe party initiating the arbitration (or appeal of the first arbitration award) shall pay the\\ninitial filing fee.",
"If you file the arbitration and an award is rendered in your favor, we will\\nreimburse you for your filing fee. If there is a hearing, we will pay the fees and costs for\\nthe first day of that hearing. All other fees and costs will be allocated in accordance with\\nthe rules of the arbitration forum. However, we will advance or reimburse filing and other\\nfees if the arbitrator rules that you cannot afford to pay them or finds other good cause\\nfor requiring us to do so; or if you ask us in writing and we determine in good faith there\\nis justifiable reason for doing so. Each party shall bear the expense of their respective\\nattorneys, experts, and witnesses and other expenses, regardless of who prevails, but the\\narbitrator will have the authority to award attorneys and expert witness fees and costs to\\nthe extent permitted by either the Card Agreement, the forum\\xe2\\x80\\x99s rules or applicable law.\\nARBITRATION AWARD AND APPEAL\\nThe arbitrator\\xe2\\x80\\x99s award shall be final and binding on all parties, except for any right of appeal\\nprovided by the FAA.",
"However, any party can, within 30 days after the entry of the award\\nby the arbitrator, appeal the award to a three-arbitrator panel administered by the forum.\\nThe panel shall reconsider anew all factual and legal issues, following the same rules of\\nprocedure and decide by majority vote. Reference in this Arbitration Agreement to \\xe2\\x80\\x9cthe\\narbitrator\\xe2\\x80\\x9d shall mean the panel if an appeal of the arbitrator\\xe2\\x80\\x99s decision has been taken.\\nThe costs of such an appeal will be borne in accordance with the above paragraph entitled\\n\\xe2\\x80\\x9cArbitration Costs.\\xe2\\x80\\x9d Any final decision of the appeal panel is subject to judicial review only\\nas provided under the FAA.\\nSEVERABILITY AND SURVIVAL\\nIf any part of this Arbitration Agreement is deemed or found to be unenforceable for any\\nreason, the remainder shall be enforceable, except that:\\n1.",
"The parties acknowledge that the Class Action and Class Arbitration Waiver is material\\nand essential to the arbitration of any disputes between them and is non-severable\\nfrom this Arbitration Agreement. If the Class Action and Class Arbitration Waiver is\\nlimited, voided or found unenforceable, then this Arbitration Agreement (except for this\\nsentence) shall be null and void with respect to such proceeding, subject to the right\\nto appeal the limitation or invalidation of the Class Action and Class Arbitration Waiver.\\nThe parties acknowledge and agree that under no circumstances will a class action be\\narbitrated; and\\n2. if a claim is brought under California law seeking public injunctive relief and a court\\ndetermines that the restrictions in the Class Action and Class Arbitration Waiver or\\nelsewhere in this Arbitration Agreement prohibiting the arbitrator from awarding\\nrelief on behalf of third parties are unenforceable with respect to such claim (and that\\ndetermination becomes final after all appeals have been exhausted), the claim for public\\ninjunctive relief will be determined in court and any individual claims seeking monetary\\nrelief will be arbitrated. In such a case the parties will request that the court stay the\\nclaim for public injunctive relief until the arbitration award pertaining to individual\\nrelief has been entered in court.",
"In no event will a claim for public injunctive relief be\\narbitrated.\\nThis Arbitration Agreement shall survive the closing of your Account and the termination or\\nmodification of any relationship between us.\\nNOTICE AND CURE\\nPrior to initiating an arbitration, you may give us a written Claim Notice describing the\\nbasis of your claim and the amount you would accept in resolution of the Claim, and a\\nreasonable opportunity, not less than thirty (30) days, to resolve the claim. Such a Claim\\nNotice must be sent to us by certified mail, return receipt requested, at Credit Card\\nServices \\xe2\\x80\\x93 Arbitration,\\nP.O. Box 7092, Bridgeport, CT 06601. This is the sole and only method by which you can\\nsubmit a Claim Notice. You should address all claims you have in a single Claim Notice\\nand/ or a single arbitration.\\n\\n\\x0cCOLLECTION COSTS\\nExcept where prohibited by law, if we take court action or commence an arbitration\\nproceeding against you for collection after you default, or if you elect arbitration of a\\ncollection action we have brought against you in court, you will also be liable for court or\\narbitration costs, other charges or fees, and reasonable attorneys\\xe2\\x80\\x99 fees, should we prevail in\\nsuch court action or arbitration.\\nRIGHTS PRESERVED\\nThis Arbitration Agreement does not prohibit you or us from exercising any lawful rights\\nor using other available remedies to preserve, or obtain possession of property;\\nexercise self-help remedies, including setoff rights; or obtain provisional or ancillary\\nremedies such as injunctive relief, attachment, garnishment or the appointment of a\\nreceiver by a court of competent jurisdiction.\\nRIGHT TO CANCEL OR OPT OUT OF THIS ARBITRATION AGREEMENT\\nYou may opt out of this Arbitration Agreement to resolve any claim or dispute by\\narbitration.",
"To opt out of this Arbitration Agreement, you must send us written notice of\\nyour decision within forty-five (45) days of the opening of your Account or of receiving\\nthe Arbitration Agreement for the first time. Such notice must clearly state that you wish\\nto cancel or opt out of the Arbitration Agreement section of this Card Agreement. It\\nshould include your name, address, Account name, Account number and your signature\\nand must be mailed to Credit Card Services \\xe2\\x80\\x93 Arbitration, P.O. Box 7092, Bridgeport, CT\\n06601. This is the sole and only method by which you can opt out of this Arbitration\\nAgreement. Your exercise of the right to opt-out will not affect any remaining terms of this\\nCard Agreement and will not result in any adverse consequence to you or your Account.\\nYou agree that our business records will be final and conclusive evidence with respect to\\nwhether you cancelled or opted out of this Arbitration Agreement in a timely and proper\\nfashion.\\nYour billing rights \\xe2\\x80\\x93 keep this document for future use\\nThis notice tells you about your rights and our responsibilities under the Fair Credit\\nBilling Act.\\nWHAT TO DO IF YOU FIND A MISTAKE ON YOUR STATEMENT\\nIf you think there is an error on your statement, write to us at Credit Card Services\\n\\xe2\\x80\\x93 Disputes, P.O.",
"Box 7092, Bridgeport, CT 06601-3211.\\nIn your letter, give us the following information:\\n\\xe2\\x80\\xa2 Account Information: Your name and account number.\\n\\xe2\\x80\\xa2 Dollar amount: The dollar amount of the suspected error.\\n\\xe2\\x80\\xa2 Description of problem: If you think there is an error on your bill, describe what you\\nbelieve is wrong and why you believe it is a mistake.\\nYOU MUST CONTACT US:\\n\\xe2\\x80\\xa2 Within 60 days after the error appeared on your statement.\\n\\xe2\\x80\\xa2 At least 3 business days before an automated payment is scheduled. If you want to\\nstop payment on the amount you think is wrong.\\nYou must notify us of any potential errors in writing. You may call us, but if you do we are\\nnot required to investigate any potential errors and you may have to pay the amount in\\nquestion.\\nWhat will happen after we receive your letter\\nWHEN WE RECEIVE YOUR LETTER, WE MUST DO TWO THINGS:\\n1. Within 30 days of receiving your letter, we must tell you that we received your letter.\\nWe will also tell you if we have already corrected the error.\\n2.",
"Within 90 days of receiving your letter, we must either correct the error or explain to\\nyou why we believe the bill is correct.\\n\\n\\x0cWHILE WE INVESTIGATE WHETHER OR NOT THERE HAS BEEN AN ERROR:\\n\\xe2\\x80\\xa2 We cannot try to collect the amount in question, or report you as delinquent on\\nthat amount.\\n\\xe2\\x80\\xa2 The charge in question may remain on your statement, and we may continue to charge\\nyou interest on that amount.\\n\\xe2\\x80\\xa2 While you do not have to pay the amount in question, you are responsible for\\nthe remainder of your balance.\\n\\xe2\\x80\\xa2 We can apply any unpaid amount against your credit limit.\\nAFTER WE FINISH OUR INVESTIGATION, ONE OF\\nTWO THINGS WILL HAPPEN\\nIf we made a mistake: You will not have to pay the amount in question or any interest\\nor other fees related to that amount.\\nIf we do not believe there was a mistake: You will have to pay the amount in question, along\\nwith applicable interest and fees. We will send you a statement of the amount you owe and\\nthe date payment is due. We may then report you as delinquent if you do not pay the amount\\nwe think you owe.\\nIf you receive our explanation but still believe your bill is wrong, you must write to us\\nwithin 10 days telling us that you still refuse to pay.",
"If you do so, we cannot report\\nyou as delinquent without also reporting that you are questioning your bill. We must\\ntell you the name of anyone to whom we reported you as delinquent, and we must let\\nthose organizations know when the matter has been settled between us. If we do not\\nfollow all of the rules above, you do not have to pay the first $50 of the amount you\\nquestion even if your bill is correct.\\nYOUR RIGHTS IF YOU ARE DISSATISFIED WITH\\nYOUR CREDIT CARD PURCHASES:\\nIf you are dissatisfied with the goods or services that you have purchased with your\\ncredit card and you have tried in good faith to correct the problem with the merchant,\\nyou may have the right to not pay the remaining amount due on the purchase.\\nTO USE THIS RIGHT, ALL OF THE FOLLOWING MUST BE TRUE:\\n1.",
"The purchase must have been made in your home state or within 100 miles of your\\ncurrent mailing address, and the purchase price must have been more than $50. (Note:\\nNeither of these are necessary if your purchase was based on an advertisement we\\nmailed to you, or if we own the company that sold you the goods or services.)\\n2. You must have used your credit card for the purchase. Purchases made with cash\\nadvances from an ATM or with a check that accesses your credit card account do\\nnot qualify.\\n3. You must not yet have fully paid for the purchase.\\nIf all of the criteria above are met and you are still dissatisfied with the purchase, contact\\nus in writing at: Credit Card Services \\xe2\\x80\\x93 Disputes, P.O.",
"Box 7092, Bridgeport, CT 066013211.\\nWhile we investigate, the same rules apply to the disputed amount as discussed above.\\nAfter we finish our investigation, we will tell you of our decision. At that point, if we think\\nyou owe an amount and you do not pay, we may report you as delinquent.\\n\\xc2\\xa9 Citizens Bank, N.A. 2020\\n1353703_CD20_MasterAgreementUpdatesSafeHarbor\\n\\nRev 1/21\\nCHA 1/21\\n\\n\\x0cRates and Fees Table\\nInterest Rates and Interest Charges\\nAnnual Percentage\\nRate (APR) for Purchases\\n\\n13.99% to 21.99%. This APR will be based on your creditworthiness and\\nwill vary with the market based on the Prime Rate. *\\nIntroductory APRs with varying durations may be available on some accounts.\\n\\nAPR for Balance\\nTransfers\\n\\n13.99% to 21.99%. This APR will be based on your creditworthiness and will\\nvary with the market based on the Prime Rate.",
"*\\nIntroductory APRs with varying durations may be available on some accounts.\\n\\nAPR for Cash Advances\\n\\n24.99%.\\nThis APR will vary with the market based on the Prime Rate. *\\n\\nPenalty APR and When\\nIt Applies\\n\\nNONE\\n\\nPaying Interest\\n\\nYour due date is at least 21 days after the close of each billing cycle. We will not charge\\nyou interest on Purchases if you pay your entire balance by the due date of each\\nmonth. You will pay interest on Cash Advances, Balance Transfers and Convenience\\nChecks from the transaction date.\\n\\nMinimum Interest Charge\\n\\nIf you are charged interest, charge will be no less than $1.50\\n\\nFor Credit Card Tips from\\nthe Consumer Financial\\nProtection Bureau\\n\\nTo learn more about factors to consider when applying for or using a credit card,\\nvisit the website of the Consumer Financial Protection Bureau at\\nhttp://www.consumerfinance.gov/learnmore\\n\\nAnnual Fee\\n\\nNONE\\n\\nTransaction Fees\\n- Balance Transfer\\n\\nEither $10 or 4% of the amount of each transfer, whichever is greater.\\n\\n- Cash Advance\\n\\nFees\\n\\nCash Loans, ATM Loans, and Convenience Check Loans: Either $10 or up to 3%\\nof the amount of each advance, whichever is greater.\\nCash Equivalent Transactions: Either $20 or 5% of the amount of each advance,\\nwhichever is greater\\n\\n- Foreign Transaction\\nPenalty Fees\\n- Late Payment\\n- Returned Payment\\n- Over- the-Credit Limit\\n\\nNONE\\n\\nUp to $40\\nNONE\\nNONE\\n\\nHow we will Calculate your Balance: We will use the method called \"average daily balances (including new\\npurchases).\"",
"See Cardholder Agreement for more details.\\nLoss of Introductory APR: We may end your Introductory APR and apply the Purchase APR if you make a late\\npayment.\\n\\n\\x0c*How We Will Calculate Your Variable Rates: Your variable rates may change when the Prime Rate changes. Your APR\\nfor Purchases and Balance Transfers may vary monthly and will be reset on the first day of each billing cycle by adding the\\nindex to a margin of 10.74-18.74 percentage points. The APR for Cash Advances may vary monthly and will be reset on\\nthe first date of each billing cycle by adding the index to a margin of 21.74 percentage points. The index is determined\\nmonthly and it is the Prime Rate published in the northeastern edition of The Wall Street Journal in its Money Rates table\\non the first day of the preceding month rounded up to the nearest one-quarter of a percentage point.",
"If the first day of the\\npreceding month is not a business day, we will use the Prime Rate published on the next business day.\\n\\nThe information about costs of the card described in this application is accurate as of January 28, 2021. This\\ninformation may have changed after that date. To find out what may have changed, call us toll free at 1-800-426-1114\\nor write to us at Credit Card Services, P.O. Box 7092, Bridgeport, Connecticut 06601-7092.\\n\\n\\x0cCITIZENS BANK CASH BACK PLUS\\nWORLD MASTERCARD\\xc2\\xae REWARD GUIDE PROGRAM TERMS AND CONDITIONS\\nF03-Y012-2\\nThis Reward Guide governs the Cash Back Plus World MasterCard\\xc2\\xae Rewards\\nProgram (the \\xe2\\x80\\x9cProgram\\xe2\\x80\\x9d). By using the Cash Back Plus credit card (the \\xe2\\x80\\x9cCard\\xe2\\x80\\x9d),\\nyouagreetothetermsandconditions governingthe Program.",
"The Program allows\\nyou to receive Cash Back Plus Reward Points (\\xe2\\x80\\x9cReward Points\\xe2\\x80\\x9d). Your continued\\nparticipation in the Program is also governed by the terms and conditions of your\\nCardholder Agreement. Cardholder Agreement refers to the agreement governing\\nthe terms of your Card account. Please review this document and keep it for your\\nreference, along with your Cardholder Agreement.\\n\\xe2\\x80\\x9cYou\\xe2\\x80\\x9d and \\xe2\\x80\\x9cyour\\xe2\\x80\\x9d mean the person(s) who applied for the Card. \\xe2\\x80\\x9cWe,\\xe2\\x80\\x9d \\xe2\\x80\\x9cour,\\xe2\\x80\\x9d \\xe2\\x80\\x9cus,\\xe2\\x80\\x9d\\nand \\xe2\\x80\\x9cCitizens Bank\\xe2\\x80\\x9d mean Citizens Bank, N.A. and any of its affiliates.\\n\\nReward Points at a Glance\\nEarn Rewards: Earn 1.8% base Reward Points for every dollar you spend on\\neligible net purchases with no limits and no categories, as long as your account is\\nin good standing. A Card account is in good standing if your Card is open and has\\ncharging privileges.\\nRedeem: Redeem Reward Points in increments of 25 for$25 incash back. Youcan\\nredeem your Reward Points online or by telephone either as a direct deposit into a\\nCitizens Bank personal checking, savings, or money market account or as a credit to\\nyour Cash Back Plus credit card statement (\\xe2\\x80\\x9cCredit Card Statement Credit\\xe2\\x80\\x9d).\\nExpiration: Noexpiration aslongasyour Cardaccountisingood standingandyou\\nmake an eligible Purchase once every 12 months.",
"If you do not make at least one\\npurchase once every 12 months, Reward Points will be forfeited.\\nLOOK INSIDE TO LEARN MORE ABOUT:\\nEarning Rewards ........................................................................................... 2\\nBonus Rewards .............................................................................................. 3\\nRedeeming Rewards ..................................................................................... 4\\nExpiration, Suspension, or Forfeiture of Rewards .......................................... 5\\nChanges to or Cancellation of the Program .................................................... 5\\nAdditional Information .................................................................................... 5\\n\\n1\\n\\n\\x0cEarning Rewards\\nHOW TO EARN REWARD POINTS:\\n\\xe2\\x80\\xa2 You will earn Reward Points of 1.8% for every dollar you spend on all eligible net\\npurchases charged to the Card. A net purchase is the amount of a purchase\\nless any credits, returns and adjustments (\\xe2\\x80\\x9cPurchase\\xe2\\x80\\x9d).\\n\\xe2\\x80\\xa2 A Purchase includes the total amount of each sale including sales tax and gratuities.\\n\\xe2\\x80\\xa2 Purchases resulting in fractions will be rounded up to the nearest whole cent if\\ngreater than 0.005 and rounded down if equal to or less than 0.005.\\n\\xe2\\x80\\xa2 You will begin earning Reward Points on the date we mail the Card and the\\nCardholder Agreement to you.",
"If you are an existing credit card customer and\\nyou are converted to the Program, you will begin earning Reward Points once\\nthe request is processed.\\n\\xe2\\x80\\xa2 If you previously had a credit card account with us, which was converted to the\\nProgram, existing purchase balances which are transferred to this account are not\\neligible for the Program. Only Purchases made with your Card are eligible for this\\nreward Program.\\n\\xe2\\x80\\xa2 Your Card account must be in good standing in order to earn Reward Points.\\nAn account is in good standing if your Card is open and has charging privileges.\\n\\xe2\\x80\\xa2 From time to time, special promotions may feature bonus Reward Points,\\ndetails will accompany the offer.",
"Additional restrictions may apply.\\nWHAT IS AN ELIGIBLE PURCHASE:\\n\\xe2\\x80\\xa2 An eligible Purchase is any lawful purchase to buy or lease goods or\\nservices except as limited below:\\n\\xe2\\x80\\xa2 Balance transfers and cash advances, including convenience checks and\\ntravelers\\xe2\\x80\\x99 checks, money orders and other cash equivalents.\\n\\xe2\\x80\\xa2 Account fees or charges, returned check charges, interest charges, or\\nfees related to plans offered by us such as life insurance or payment protection\\nplans.\\n\\xe2\\x80\\xa2 Fraudulent purchases or unauthorized charges to your account.\\n\\xe2\\x80\\xa2 Wire transfers fees.\\n\\xe2\\x80\\xa2 Lottery tickets or gambling charges.\\n\\xe2\\x80\\xa2 We are not responsible for any mistakes made by a merchant regarding a purchase.\\nFor example, if a merchant incorrectly identifies the purchase as a\\ngambling purchase, we do not have to provide Reward Points for that\\npurchase.\\n\\n\\xe2\\x80\\xa2 Only eligible Purchases qualify for Reward Points.\\n\\n2\\n\\n\\x0cRedeeming Rewards\\nWHEN CAN YOU REDEEM YOUR REWARD POINTS:\\n\\xe2\\x80\\xa2 Reward Points can only be redeemed if your account is in good standing.",
"You\\ncan redeem Reward Points in increments of 25 for $25 in cash back. You can\\nredeem as a direct deposit into your Citizens Bank personal checking, savings,\\nor money market account or as a Credit Card Statement Credit.\\n\\xe2\\x80\\xa2 You can visit our website at www.citizensbank.com/creditcard or refer to\\nyour monthly credit card statement to see how many Reward Points you\\xe2\\x80\\x99ve\\nearned.\\nHOW YOU CAN REDEEM YOUR REWARD POINTS:\\n\\xe2\\x80\\xa2 You may redeem your Reward Points by submitting a request online at\\nwww.citizensbank.com/creditcard or contacting a customer service representative\\nby telephone at 1-800-684-2222.\\nWHAT ARE THE REDEMPTION METHODS:\\nREDEMPTION THROUGH ELECTRONIC DEPOSIT INTO YOUR\\nCITIZENS BANK DEPOSIT ACCOUNT:\\n\\xe2\\x80\\xa2 Reward Points can be redeemed as a direct deposit into your Citizens Bank\\npersonal checking, savings or money market account. You must be an owner on\\nthe account and the account must be in good standing and able to accept\\ndeposits. Reward Points may not be deposited into passbook and club\\nsavings, certificate of deposits or IRA accounts.\\n\\xe2\\x80\\xa2 If an electronic transfer is rejected, the reward redemption will automatically\\nbe credited back to your rewards account.\\nREDEMPTION THROUGH CREDIT CARD STATEMENT CREDIT:\\n\\xe2\\x80\\xa2 Reward Points can be redeemed as a Credit Card Statement Credit to the Card that\\nearned the Reward Points.\\n\\xe2\\x80\\xa2 Reward Point redemptions may reduce your account balance but cannot be applied\\ntoward any minimum payments.",
"You are still responsible for paying your minimum\\nmonthly payment.\\n\\xe2\\x80\\xa2 If your Card is closed upon your request or by us before the Credit Card\\nStatement Credit posts to your account, all Reward Points are forfeited (except if\\nyour Card has been reported as lost or stolen, subject to verification).\\nWHAT YOU NEED TO KNOW ABOUT REDEMPTION:\\n\\xe2\\x80\\xa2 Reward Points are deducted on the date you request redemption.\\nRedemptions, however, may not be applied to your deposit account or credit card\\naccount for up to 10 business days.\\n\\n\\xe2\\x80\\xa2 Returned purchases, reversed transactions, refunds, credits or chargebacks\\nwill reduce your Reward Points by the number of Reward Points you previously\\nreceived for the Purchase. You may incur a negative Reward Points balance.",
"We\\nmay offset a negative balance with future Reward Points.\\n\\n3\\n\\n\\x0c\\xe2\\x80\\xa2 Only the primary cardholder may request to redeem Reward Points. Authorized\\nusers on the account may not request to redeem Reward Points.\\n\\xe2\\x80\\xa2 Reward Points must be redeemed by an individual. Corporations, partnerships or\\nentities may not redeem Reward Points.\\n\\xe2\\x80\\xa2 All Reward Points redemptions are final.\\n\\nExpiration, Suspension or Forfeiture of Reward\\nPoints\\n\\xe2\\x80\\xa2 There is no expiration date on your Reward Points as long as your account is\\nin good standing and you make at least one eligible Purchase once every\\n12 months. If you do not make at least one purchase once every 12\\nmonths, Reward Points will be forfeited.\\n\\xe2\\x80\\xa2 If your Card account is reinstated to good standing before the account is closed,\\nyou will again be eligible to redeem Rewards Points.\\n\\xe2\\x80\\xa2 If you voluntarily close the Card or we close the Card (for any reason permitted\\nby the Cardholder Agreement), all Reward Points are immediately and irrevocably\\nforfeited.\\n\\nChanges to or Cancellation of the Program\\n\\xe2\\x80\\xa2 We reserve the right to add, amend or change any of the terms, conditions or\\nrestrictions of the Program at any time without prior notice.\\n\\xe2\\x80\\xa2 The Program may be discontinued at any time, but Reward Points awarded\\nbefore the Program is discontinued will be honored for 90 days after notice of\\ncancellation of the Program is given.",
"If there are any remaining Reward Points\\nwhich are not redeemed within the 90 days after the notice of cancellation,\\nthey will be forfeited.\\n\\xe2\\x80\\xa2 We may choose to discontinue your participation in the Program if we find that\\nyou or someone else used your Card account in a way that violates the\\nReward Guide or the terms and conditions of your Cardholder Agreement.\\n\\xe2\\x80\\xa2 The Program is not scheduled to end on a predetermined date.\\n\\nOther Important Information\\n\\xe2\\x80\\xa2 You have no property rights or other legal or equitable interest in Reward\\nPoints earned as part of the Program. Reward Points have no cash value\\nuntil they are redeemed. Unless specifically authorized by us, Reward Points\\nmay not be sold, traded, assigned, transferred, or pledged under any\\ncircumstances.\\n\\xe2\\x80\\xa2 Your exclusive remedy for earned but uncredited Reward Points shall be the\\nissuance of the uncredited Reward Points, if available, or such other comparable\\nbenefit as determined by us. If, however, your Card account is closed, then\\nsuch Reward Points or other comparable benefit shall be forfeited.\\n\\n4\\n\\n\\x0c\\xe2\\x80\\xa2 We reserve the right to correct misstated Reward Points represented on\\nstatements or the website at our sole discretion.\\n\\xe2\\x80\\xa2 Reward Points may be deducted from your Card account should those Reward\\nPoints be the product of a fraudulent or unauthorized transaction.\\n\\xe2\\x80\\xa2 All Reward Points are subject to verification and confirmation by us.",
"All\\ndecisions regarding rewards disputes shall be final.\\n\\xe2\\x80\\xa2 Discrepancies about Reward Points are not treated as credit card billing disputes.\\n\\xe2\\x80\\xa2 It is your responsibility to notify us of any change in mailing address and email\\naddress as soon as possible.\\n\\xe2\\x80\\xa2 If you voluntarily close your Card account, or we close your Card account, all\\nunused Reward Points are immediately and irrevocably forfeited.\\n\\xe2\\x80\\xa2 Unless specifically authorized by us, Reward Points may not be combined with\\nother discounts, special rates, promotions or other reward programs offered\\nby us.\\n\\xe2\\x80\\xa2 All Reward Points are non-negotiable and cannot be redeemed for any benefit\\nexcept those designated by us.\\n\\xe2\\x80\\xa2 Your Card is separate and distinct from any other Citizens Bank accounts you\\nmay have with us or our affiliates.\\n\\xe2\\x80\\xa2 You agree to release Citizens Bank, N.A., and any of its affiliates from all\\nliability, including:\\n\\xe2\\x80\\xa2 Any loss, claim, expense or damages you experience in connection with\\nthe Program.\\n\\xe2\\x80\\xa2 Any claims, expenses and legal fees arising from or related to any\\nviolation of the Program by you or anyone using your Card account.\\n\\xe2\\x80\\xa2 Any typographical errors or omissions in any Program-related document.\\n\\xe2\\x80\\xa2 Delayed or lost correspondence sent by U.S. mail or any other form of\\ndelivery, including email.\\n\\xe2\\x80\\xa2 Any error, omission, interruption, deletion, defect, delay in operation or\\ntransmission, theft, destruction or unauthorized access to, or alteration\\nof Reward Points accrued and redeemed or other Program activities.\\n\\xe2\\x80\\xa2 We may assign our rights and obligations under this agreement to a third party,\\nwho will then be entitled to any of our rights that we assign to them.\\n\\xe2\\x80\\xa2 The Reward Guide and use of your Card account are governed by federal law.",
"To\\nthe extent that federal law does not govern, Connecticut law will apply, no\\nmatter where you live or use your Card account.\\n\\n5\\n\\n\\x0c\\xe2\\x80\\xa2 Reward Points may constitute taxable income. You may be issued an Internal\\nRevenue Service Form 1099 (or other appropriate form) that reflects the value\\nof earned Reward Points, or some portion there of (or any other part\\nof the Program). Please consult your tax advisor. You are responsible for\\nany tax liability that may arise from redeeming Reward Points. Citizens\\nBank, N.A. does not provide tax advice.\\n\\xe2\\x80\\xa2 Any and all disputes that arise under or related to the Program will be resolved\\nthrough arbitration as specifically set forth in your Cardholder Agreement.\\n\\xe2\\x80\\xa2 All Reward Points are subject to verification and confirmation by\\nus. All decisions regarding rewards disputes shall be final.\\n\\xe2\\x80\\xa2 Discrepancies about Reward Points are not treated as credit card billing\\nerror disputes.\\n\\nCredit cards are issued by Citizens Bank, N.A.\\nCopyright 2019 Citizens Financial Group, Inc. All rights reserved.",
"Citizens Bank is a\\nbrand name of Citizens Bank, N.A.\\nCS#887957_CDAD2108J_CshBckPlusGuide\\n\\nF03-Y012-2\\nRev6/19\\n\\n6\\n\\n\\x0c'"
] | https://files.consumerfinance.gov/a/assets/Credit_Card_Agreements_2021_Q2.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
941 N.E.2d 568 (2011) MURPHY v. STATE. No. 18A02-1003-CR-299. Court of Appeals of Indiana. January 27, 2011. RILEY, J. Disposition of Case by Unpublished Memorandum Decision Affirmed. ROBB, C.J., concurs. BROWN, J., concurs. | 10-30-2013 | [
"941 N.E.2d 568 (2011) MURPHY v. STATE. No. 18A02-1003-CR-299. Court of Appeals of Indiana. January 27, 2011. RILEY, J. Disposition of Case by Unpublished Memorandum Decision Affirmed. ROBB, C.J., concurs. BROWN, J., concurs."
] | https://www.courtlistener.com/api/rest/v3/opinions/2483323/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Exhibit 10.1 pmilogoa11.jpg [pmilogoa11.jpg]
BY HAND
To: Mr. Miroslaw Zielinski
Lausanne, April 28, 2020
EARLY RETIREMENT AGREEMENT (the “Agreement”) and RELEASE
Dear Miroslaw,
This Agreement sets out the terms that Philip Morris Products S.A. (the “Company”) has agreed with you shall apply to your early retirement.
1. Definitions
In this Agreement the expressions below shall have the following meanings:
An “Affiliate” of a company means any person, company, group of companies or other entity, which, either directly or indirectly, owns, is owned by, has common owner(s) with, or shares ownership interest in that company.
“Confidential Information” shall have the meaning set out in the section “Confidentiality” of this Agreement.
The “Tobacco Business” means the manufacturing, sale, marketing, research and development and/or distribution of cigarettes, other combustible and noncombustible tobacco products, or e-cigarettes/e-vapors (battery powered devices which produce an aerosol by evaporating a flavored nicotine solution).
Philip Morris Products S.A., Avenue de Rhodanie 50, 1007 Lausanne, Switzerland T:+41 (58) 242 00 00, F: +41 (58) 242 01 01 Page 1 of 16
--------------------------------------------------------------------------------
pmilogoa11.jpg [pmilogoa11.jpg]
2. Ending of Employment Agreement
We hereby agree that your employment with the Company will end on June 30, 2020 and that you will take an early retirement as from this date (the “Early Retirement Date”). For the avoidance of doubt, your last working day is on June 30, 2020, and your early retirement will formally start on July 1, 2020. As the decision to take early retirement is mutually agreed, no notice of termination is required by you to us, or by us to you.
3. Payments by the Company
(a) Your salary will be paid up to and including the Early Retirement Date, in accordance with the Company’s standard payroll practices. In addition, by the Early Retirement Date, the Company will pay you:
(i) the pro-rated 13th salary for the period January 1, 2020 to the Early Retirement Date; and
(ii) your pro-rated fidelity premium.
(b) Within 30 days after the Early Retirement Date, the Company shall also pay you a gross amount compensating any outstanding vacation entitlement, as per Company policy and Company records.
(c) (i) Subject to your countersignature of this Agreement and that you shall execute any additional documents to formalize the end of your employment with the Company and/or any other Affiliate (in particular, with any PMI entity you maintained employment with in Poland), you will receive a payment in the total gross amount of CHF 2’019’245.--, which includes an amount in lieu of your pro-rated 2020 incentive compensation (“IC”). This amount (the “Severance Payment”) is granted in recognition of your contribution to the Company, subject to the conditions that you fully comply with your obligations to the Company under this Agreement, as well as that you remain employed until the Early Retirement Date and continue to perform your role (including handover and knowledge transfer and any other duties reasonably required of you by the Company) until the Early Retirement Date.
(ii) You will receive your Severance Payment within 30 days following the Early Retirement Date.
Philip Morris Products S.A., Avenue de Rhodanie 50, 1007 Lausanne, Switzerland T:+41 (58) 242 00 00, F: +41 (58) 242 01 01 Page 2 of 16
--------------------------------------------------------------------------------
pmilogoa11.jpg [pmilogoa11.jpg]
(iii) If the Early Retirement Date as defined in this Agreement is postponed by you for any reason whatsoever (but not by the Company), the Severance Payment shall be automatically forfeited.
(iv) Should the Pension schemes of Philip Morris in Switzerland (the “Pension Fund”) have to pay to you any amount in connection with a disability status after the execution of this Agreement, both parties to this Agreement hereby give permission to the Pension Fund to take into consideration the amount paid according to this Section 3(c) when determining the additional payments to be made.
(d) In addition, you will also receive a lump sum payment in the total gross amount of CHF 1’417’514.-- in consideration for the non-competition obligation in the section “Non Competition” of this Agreement, to be paid in two installments as per the below schedule, subject to the conditions that (i) you fully comply with your obligations to the Company under this Agreement and that (ii) you address a letter or an email to our P&C Operations Switzerland at the end of the non-compete period, confirming that you did not violate in any manner the non-compete obligation stipulated in this Agreement (see boilerplate for confirmation under Appendix I to this Agreement). The two installments will be paid as follows:
• CHF 708’757.-- (gross) paid in July 2020
• CHF 708’757.-- (gross) paid in July 2022
For the avoidance of doubt, in the case of death the outstanding monies mentioned above - i.e. the second installment will be paid to your heirs, provided that you had complied to the non-compete obligations.
4. Restricted Stock Units
Subject to your compliance with the terms and conditions of this Agreement, the previous unvested Restricted Stock Units (RSUs) grants and awards made to you will fully vest. The accelerated vesting will occur on the Early Retirement Date and will be processed by UBS Financial Services Inc. (“UBS”) as soon as reasonably practicable following the Early Retirement Date. The Company will comply with local laws and regulations including tax and social security withholding and information reporting to the taxing authorities as may be required.
Philip Morris Products S.A., Avenue de Rhodanie 50, 1007 Lausanne, Switzerland T:+41 (58) 242 00 00, F: +41 (58) 242 01 01 Page 3 of 16
--------------------------------------------------------------------------------
pmilogoa11.jpg [pmilogoa11.jpg]
Any applicable tax withholding (and any other payroll withholding taxes or social security deduction when applicable) will be satisfied by deducting the number of shares equal in value to the amount of the withholding requirements from your stock award; therefore, the number of shares deposited into your UBS account on the vesting date will be net of the shares used to satisfy applicable withholding taxes or other applicable deductions (rounded up to the nearest whole share). However, if you are not subject to income tax withholdings, or if the withholdings do not fully cover your income tax liability, you will be responsible for satisfying any tax liabilities due on these amounts.
You understand and agree that these vestings are being made and the valuations will be determined in compliance with applicable laws, regulations and practices.
Being an Executive Officer (as designated by the Board of Directors of Philip Morris International Inc. within the meaning of Section 16 of the Security Exchange Act of 1934, as amended) within the period of 12 months prior your Early Retirement Date, any such shares you receive by way of accelerated vesting under this paragraph (in accordance with the terms of the applicable stock agreements) will be subject to a holding period of 12 consecutive months expiring on June 30, 2021.
5. Performance Share Units
Subject to the terms and conditions of the applicable Performance Share Units (PSUs) award agreements and your compliance with the terms and conditions of this Agreement, the following treatment will apply to your unvested PSUs:
• All your unvested PSU grants will vest on the respective scheduled vesting date set out in your award statements. The number of PSUs that will actually vest, for each relevant year, will be equal to the performance percentage multiplied by your target number of PSUs, to the extent that the respective performance targets set out in your award statements are achieved at the end of each performance period.
In order to be eligible at the vesting to receive the relevant shares, you will have to
• provide the Company (email: CorporateCompensationPrograms.PMI@pmi.com) with your contact details before the Early Retirement Date and notify the Company promptly of any change;
• in the event the Company specifically asks you in writing, promptly provide the Company with any information regarding your personal circumstances (including your bank account details) that the Company may reasonably need in order to satisfy tax, social security or other similar requirements.
Philip Morris Products S.A., Avenue de Rhodanie 50, 1007 Lausanne, Switzerland T:+41 (58) 242 00 00, F: +41 (58) 242 01 01 Page 4 of 16
--------------------------------------------------------------------------------
pmilogoa11.jpg [pmilogoa11.jpg]
You acknowledge that, should the Company be unable to contact you and/or should you fail to provide the Company, in response to the Company’s written request, with relevant information with respect to a specific vesting, it may result in the impossibility of said specific vesting and the corresponding PSUs will be forfeited. Each vesting will be processed by UBS Financial Services Inc. (“UBS”) as soon as reasonably practicable following the vesting date. The Company will comply with local laws and regulations including tax withholding (income and /or social security) and information reporting to the taxing authorities as may be required.
Any applicable tax withholding (and any other withholding payroll taxes or social security deduction when applicable) will be satisfied by deducting the number of shares equal in value to the amount of the withholding required from your stock award; therefore, the number of shares deposited into your UBS account after the vesting date will be net of the shares used to satisfy applicable withholding taxes or other applicable deductions (rounded up to the nearest whole share).
You understand and agree that these vestings are being made and the valuations will be determined in compliance with the relevant award agreement and applicable laws, regulations and practices. You will receive your dividend equivalent payments in one lump-sum payment as soon as reasonably practicable following each vesting date. The amount paid to you will be based on the number of PSUs that vest and will be paid through payroll subject to tax withholding (income and/or social security) and information reporting to the taxing authorities as may be required.
Please note that with respect to both the issuance of shares and payment of the lump sum for dividend equivalents, you are responsible for satisfying your actual tax liabilities, even if you are not subject to tax withholdings or if the withholdings do not fully cover your tax liability.
6. Miscellaneous on Payments and Benefits
(a) No other payment, benefits or compensation shall be due to you by the Company and/or any Affiliate during the employment or after the Early Retirement Date, except those expressly stipulated in this Agreement.
(b) The amounts payable pursuant to this Agreement will be subject to income tax and social security deductions, as applicable. You will be personally responsible for any actual income tax and social security liabilities arising on these amounts. If an income or social security tax withholding obligation arises for the Company in accordance with applicable legislation, the Company will fully
Philip Morris Products S.A., Avenue de Rhodanie 50, 1007 Lausanne, Switzerland T:+41 (58) 242 00 00, F: +41 (58) 242 01 01 Page 5 of 16
--------------------------------------------------------------------------------
pmilogoa11.jpg [pmilogoa11.jpg]
comply with its obligations and will apply an appropriate withholding rate to any amounts paid to you pursuant to this Agreement.
(c) Any outstanding balance on the account of the corporate credit card issued in your name as of the Early Retirement Date and any other amounts that for any reason you may owe the Company may be set-off against any amounts payable by the Company pursuant to this Agreement.
7. Tax Return Filing Assistance
The Company will maintain your current tax assistance entitlement (use of KPMG services with your contribution) for your 2020 Swiss tax return. The Company may deduct said contribution from any amount due to you as per this Agreement.
This entitlement may be subject to income tax and social security deductions, if applicable.
Note that you will not be provided with any tax filing assistance in connection with the 2018, 2019 and 2020 Performance Share Units that are due to vest in 2021, 2022 and 2023, respectively.
In addition, should an action be initiated against you or your estate pertaining to Ukrainian taxes filed for the tax years from 1999 to 2002 while you were on an international assignment to Ukraine and the US taxes filed for the tax years from 2003 to 2010 while you were on an international assignment to the US, the Company will assist you in your defense against such claim, for period that you were hosted in Ukraine and the US respectively, provided that you had afforded all the information that was requested from you for the adequate filing of your taxes, at the time.
8. Post Career Counseling
The Company will, at its expense, provide you with post-career counseling services with an agency of its choice, should you wish to use it and notify the Company to this effect by the Early Retirement Date. Should you have questions with respect to the proposed post-career counseling services, please contact Constantin Romanov, Global Head of Total Rewards (tel. +41 58 242 6423).
This entitlement may be subject to income tax and social security deductions, if applicable.
Philip Morris Products S.A., Avenue de Rhodanie 50, 1007 Lausanne, Switzerland T:+41 (58) 242 00 00, F: +41 (58) 242 01 01 Page 6 of 16
--------------------------------------------------------------------------------
pmilogoa11.jpg [pmilogoa11.jpg]
9. Benefit Car
You will have the option to buy your present benefit car at the lower of its net book value or market value, at least 20 days before the Early Retirement Date. In order for you to exercise this option, you undertake, within the 20-day period preceding the Early Retirement Date, to bring the car to a location and at a date to be agreed with the Company, in order for the Company to determine the exact market value of the car, which shall be communicated to you through a separate document. Should you not comply with this obligation, the Company is free to forfeit this option. The Company is free to appoint a third party of its choice to make the valuation and said evaluation shall be final. If the market value exceeds the book value, the difference represents a taxable benefit for you and will be subject to income tax and social security deductions, if applicable.
The transfer will be effective on the Early Retirement Date. Insurance of the car will become your responsibility on the Early Retirement Date. You undertake to subscribe civil liability coverage for the car with an appropriate insurance company, starting on the first day following the Early Retirement Date, and to provide the Company with a certificate of insurance stating said coverage. The Company does not require reimbursement of the registration tax paid for 2020, but payment for 2021 and beyond shall be your responsibility. The Company is entitled to deduct payment for the car from your salary and/or from any other payment due to you according to this Agreement. No warranties will be given as to the condition of the car, of which you will be deemed to have full knowledge. If you decide not to exercise your option to buy the benefit car, it will be your obligation to return it to the Company by the Early Retirement Date, in accordance with the terms of the relevant Benefit Car Affiliate Practices CH.
10. Pension Fund
Please contact directly our Pension Fund Administration (tel. +41 58 242 12 41) about your accrued rights.
11. Health / Accident Insurance / Loss of Income Insurance
Your current benefits will be kept until the Early Retirement Date.
Concerning your health insurance, you may elect (i) to maintain your and your spouse’s participation in the current PMI retirees Plan at your full expense (should you maintain your residence in Switzerland), to the extent that it is offered to PMI retirees at the time of your Early Retirement Date, or (ii) to subscribe to an individual insurance policy with the insurance company of your choice. Please contact Angele Bitterlin, Team Leader P&C Operations - Benefits (tel: +41 58 242 4128) for further information.
Philip Morris Products S.A., Avenue de Rhodanie 50, 1007 Lausanne, Switzerland T:+41 (58) 242 00 00, F: +41 (58) 242 01 01 Page 7 of 16
--------------------------------------------------------------------------------
pmilogoa11.jpg [pmilogoa11.jpg]
The accident insurance (LAA coverage) will cover you for an additional 31 days after the Early Retirement Date. After this date, you will need to inform your insurance company about the end of your cover and make the necessary steps to subscribe a new accident insurance (a coverage of accident risk may be added to your current health insurance scheme).
About your loss of income insurance, please contact P&C Operations – Benefits (Angele Bitterlin tel. +41 58 242 4128) 30 days prior to the Early Retirement Date for more information. You can request insurance coverage and transfer from the Company to an individual contract within 90 days following the Early Retirement Date.
12. Confidentiality
You acknowledge that during your employment you were engaged in a position of trust and confidence and you were privy to Confidential Information (as defined below). You acknowledge that it benefits both the Company and its employees for the Company to protect its Confidential Information and to obtain the rights to discoveries, inventions, improvements, innovations and other works developed by its employees. You agree that you will not disclose or cause to be disclosed Confidential Information. You further agree that you shall remain bound to the terms and conditions set forth in any confidentiality agreement in place between you and the Company.
For purposes of this Agreement, Confidential Information means any information obtained as a result of your employment with the Company, including information regarding its current or former employees, current or former customers or potential customers that is proprietary or private (not publicly known or available), whether or not it is designated that way in writing. Examples of Confidential Information include the following:
• trade secrets
• intellectual property
• business strategies
• employee information
• government relations matters
• details of customers or prospective customers
• sales, marketing or advertising plans
• business policies
• details of finances, products, services or pricing
• matters concerning business development
• details of organizational structures
Philip Morris Products S.A., Avenue de Rhodanie 50, 1007 Lausanne, Switzerland T:+41 (58) 242 00 00, F: +41 (58) 242 01 01 Page 8 of 16
--------------------------------------------------------------------------------
pmilogoa11.jpg [pmilogoa11.jpg]
• information concerning research and development
• details of any legal strategies; information covered by the attorney client privilege or constituting attorney work product
• information relating to technology (including methods, systems, techniques, procedures, designs, specifications, formulae, inventions, know-how, hardware and software)
• data and databases
• testing or evaluation procedures
• security protocols
• information related to internal/external investigations
• the terms of this Agreement, except that you may discuss the terms of the proposed Agreement with your attorneys, tax advisors/accountants, life partner, daughters and heirs.
You understand that use or disclosure of Confidential Information would violate this Agreement and applicable law, and would cause immediate and irreparable harm to the Company and its competitive position. You thus acknowledge and agree that the Company is entitled to preliminary and permanent injunctive relief in order to prevent or stop such violations, in addition to damages, costs and other relief that may be appropriate. If you are required by subpoena or court order to disclose any Confidential Information, you agree to notify the Company (specifically, the Company representative who has signed this Agreement, or his/her successor) as soon as practicable.
You agree that you will return any Confidential Information in tangible or electronic form in your possession by the Early Retirement Date at the latest. You further agree that you shall remain bound to the terms and conditions set forth in any confidentiality agreement in place between you and the Company.
Unless required by a lawfully issued subpoena, court order or other lawful request by any regulatory agency or governmental authority to release information, the Company will keep any information with respect to your employment and/or the end of your employment strictly confidential, subject to the Company’s disclosure obligations under the securities laws.
These confidentiality obligations continue to be valid and enforceable after the end of your employment relationship, but, with respect to any particular Confidential Information, for only so long as such Confidential Information has been maintained as confidential by the Company.
Philip Morris Products S.A., Avenue de Rhodanie 50, 1007 Lausanne, Switzerland T:+41 (58) 242 00 00, F: +41 (58) 242 01 01 Page 9 of 16
--------------------------------------------------------------------------------
pmilogoa11.jpg [pmilogoa11.jpg]
13. Non-Disparagement
Both parties agree not to speak disparagingly of the other party, including but not limited, about the Company products or services, or any of the Company’s current or former officers, directors or managers.
14. Affiliate Directorships
You agree to resign as a Director, Manager or similar positions of all Affiliates of the Company of which you are a director, a manager or a similar position on or before the Early Retirement Date, by signing the resignation letter(s) that the Company or any Affiliate shall submit to you.
15. Company Property
In addition to your obligation to return Confidential Information by the Early Retirement Date at the latest, you will also return to the Company by that date all files, documents, tapes, CD’s, and copies thereof, and other items belonging to the Company and its Affiliates irrespective of their source and origin, including, where applicable, credit cards, telephone cards, standard mobile phones, BlackBerry, SmartPhones (HTC, QTEK), iPhones, iPads, keys, access and identification cards, and computers, and, if requested, will certify that this has been done to the best of your belief.
For the benefit car please refer to the section “Benefit Car” of this Agreement.
16. Non Competition You recognize and agree that you have access to information relating to the Company and its Affiliates, and their respective businesses, including business plans and strategies, which are highly confidential, and that you have been employed by the Company in a special position of trust. You also recognize that the Company is undertaking, pursuant to Section 3(d) of this Agreement, to make substantial payments to you generally, and specifically in respect of your obligations under this Section.
In consideration of the foregoing, you agree that you will not, without the prior written consent of the Assistant General Counsel, Philip Morris International (Agustin Cervello, agustin.cervello@pmi.com, or any successor), provide any services for a period of 24 (twenty-four) months from the Early Retirement Date, directly or indirectly, whether as an employee, consultant or otherwise, to any person, company, group of companies or other entity (i) engaged in the Tobacco Business, or (ii) which owns directly or indirectly, either individually or jointly with other parties and whether through ownership of voting
Philip Morris Products S.A., Avenue de Rhodanie 50, 1007 Lausanne, Switzerland T:+41 (58) 242 00 00, F: +41 (58) 242 01 01 Page 10 of 16
--------------------------------------------------------------------------------
pmilogoa11.jpg [pmilogoa11.jpg]
securities or otherwise, more than 25 % of the equity ownership of any person, company, group of companies or other entity engaged in the Tobacco Business, or (iii) one of the purposes of which is to take positions or actions in opposition to the Tobacco Business.
Your obligations in the preceding paragraph shall apply worldwide, including, without limitation, with respect to Japan Tobacco Inc., Imperial Brands p.l.c., British American Tobacco p.l.c., China National Tobacco Corporation, and their Affiliates.
For avoidance of doubt, if the Company and/or any of its Affiliates chooses to engage you or an entity you may be working for, as a consultant, such engagement should not be in violation of your non-compete obligations in this section.
You further agree for a period of 24 (twenty-four) months from the Early Retirement Date not to acquire a financial interest or shares in an enterprise engaged in the Tobacco Business or to enter into a partnership with such an enterprise. The acquisition of 5% or less of shares in a publicly held corporation will not be deemed a violation of this covenant not to compete.
In case of any violation of this covenant not to compete you agree that the Company will retain, and you will forfeit your right to, the amount of CHF 1’417’514.-- provided for in consideration for the non-competition obligation, or if already paid, you will return such amount to the Company. Moreover, in case of such a violation, a contractual penalty of CHF 700’000.-- shall be due by you to the Company. In addition, the Company reserves the right to seek further damages and/or specific performance of this covenant not to compete.
17. Future Relationship and Cooperation
You agree that, consistent with applicable law and to the extent the Company or any of its Affiliates so requests, you will cooperate reasonably and truthfully with the requesting company in connection with any matter, including any legal or business dispute, concerning which you were involved or had knowledge while employed by the Company and its Affiliates, including but not limited to any enquiry, proceeding, hearing, or investigation by or before any administrative, executive, judicial or legislative body or agency, or within the Company and its Affiliates. You agree to make yourself available if and when reasonably required by the Company, its Affiliates or relevant counsel, taking into account your schedule. The Company will reimburse you for all reasonable travel and other out-of-pocket expenses incurred by you in connection with your compliance with this obligation. Such amounts shall be payable within 60 days of receipt of the corresponding statement, provided, however, that you must submit any such expense statement to the Company no later than 90 days prior to the end of the calendar year following the year you incur the expense.
Philip Morris Products S.A., Avenue de Rhodanie 50, 1007 Lausanne, Switzerland T:+41 (58) 242 00 00, F: +41 (58) 242 01 01 Page 11 of 16
--------------------------------------------------------------------------------
pmilogoa11.jpg [pmilogoa11.jpg]
You agree that, to the extent consistent with applicable law, you will not aid, assist, or participate in any legal action or proceeding filed by third parties against the Company or its Affiliates or, against any of its or their current or former officers, directors, employees, employee benefit plans or funds or pension funds.
In the event that any claim is made, or threatened to be made, against you by a third party, including without limitation a government agency, relating to activities you performed in the course of your employment with the Company or its Affiliates, the Company will indemnify you to the fullest extent permitted by applicable law in respect of any award of damages or compensation payment, and any costs reasonably incurred by you in defending such a claim, including reasonable attorneys’ fees and expenses, provided that (i) you promptly notify the Company of any such claim or threatened claim, (ii) you take all reasonable steps to defend the claim including, in the absence of a bona fide conflict of interest, giving the Company the opportunity to direct and control such defense, and (iii), with respect to any award of damages or compensation payment, the amount to be indemnified is the subject of an enforceable Court decision or of a settlement or similar agreement approved by the Company, and provided further that you submit any expense statements, including for counsel fees, within 60 days of your receipt thereof. In the event that any award of damages, compensation payment or costs arise as a result of willful misconduct or knowing violation of criminal law on your part, this indemnity will not apply, and any amounts already paid by the Company pursuant to this clause will be repayable.
18. Reservation of Rights
Nothing in this Agreement shall be construed as preventing you, the Company, or any of its Affiliates from:
(a) providing information to, or participating or cooperating in any inquiry conducted by, a governmental agency; or
(b) responding truthfully to a lawfully-issued subpoena, court order, or other lawful request by any regulatory agency or governmental authority.
19. Agreement and Release
By countersigning this Agreement and in consideration of the payments to be made by the Company to you or for your benefit:
(i) you hereby confirm that you accept and agree to all of the terms and conditions set forth above;
Philip Morris Products S.A., Avenue de Rhodanie 50, 1007 Lausanne, Switzerland T:+41 (58) 242 00 00, F: +41 (58) 242 01 01 Page 12 of 16
--------------------------------------------------------------------------------
pmilogoa11.jpg [pmilogoa11.jpg]
(ii) you also acknowledge that this Agreement provides consideration to you which you are not legally entitled to receive in connection with your employment with the Company and/or the ending of said employment, or under any other agreement. In exchange for receiving this additional consideration, you agree, on behalf of yourself, your heirs, personal representatives, executors, administrators, successors and assigns, to forever release and discharge the Company, its Affiliates, and its and their respective successors, predecessors, divisions, assigns, assets, employee benefit plans or funds, pension funds, and any of its or their respective past, present and/or future representatives, shareholders, directors, officers, fiduciaries, agents, trustees, administrators, and employees (collectively referred to as the "Releasees"), from any and all claims, demands, damages, remedies, contracts (express or implied) and causes of action of any kind or nature whatsoever, whether known or unknown, which you had, now have or in the future may or could have against the Releasees, or any of them, by reason of any matter, act, omission or event that occurred, or is alleged to have occurred, up to the date of this Agreement, including, but not limited to, any and all claims in connection with your employment with the Company (or with any other Releasee) and/or your separation therefrom. The foregoing releases shall not apply to any claims for monies due under this Agreement or to any right or entitlement you may have accrued, respectively will accrue, with the Pension Fund as per applicable retirement plans.
(iii) you hereby acknowledge and agree that all overtime work and/or supplementary work you might have performed, if any, has been compensated in full;
(iv) if any provision of this Agreement is held by a court of competent jurisdiction to be overbroad, unreasonable or unenforceable, such provision shall be given effect by the court to the maximum extent possible by narrowing or not enforcing in part that aspect of the provision found overbroad, unreasonable or unenforceable, without affecting the validity or enforceability of the remainder of this Agreement; and
(v) you hereby agree that this Agreement sets out all the terms and conditions relating to the ending of your employment with the Company and supersedes all discussions and understandings, if any, oral or written. However, if requested to do it, you shall execute additional documents to formalize the end of your employment with the Company and/or any other Affiliate (in particular, with any PMI entity you maintained employment with in Poland), with no further compensation, and expressly agree that it is a condition for you to receive the Severance Payment. Should you receive any statutory amount in connection with the end of possible employment relationships out of the Company, the Company shall take it into account and impact the Severance Payment accordingly.
Philip Morris Products S.A., Avenue de Rhodanie 50, 1007 Lausanne, Switzerland T:+41 (58) 242 00 00, F: +41 (58) 242 01 01 Page 13 of 16
--------------------------------------------------------------------------------
pmilogoa11.jpg [pmilogoa11.jpg]
You represent that you have not, and agree that, to the extent permitted by law, you will not, bring or cause to be brought any charges, claims, demands, or actions in any forum against the Company or any other Releasee arising from any matter, act, omission or event that occurred or is alleged to have occurred, up to the date of this Agreement, including, but not limited to, any charge or claim in connection with your employment and/or your separation from employment, except for any claim related to the settlement of any outstanding expenses pursuant to the Company’s Travel and Entertainment Policy and the payments to be made, respectively the benefits to be granted, pursuant to this Agreement.
This waiver and release includes all claims of any kind, whether they are known to you or unknown, which you now have, had, or may hereafter claim to have had against the Company, its Affiliates and other Releasees, or any of them, by reason of any matter, act, omission, or event that has occurred or is alleged to have occurred up to the date of this Agreement, except for claims that cannot be waived or released under Swiss law.
This Agreement does not waive or release any rights or claims that you may have which arise after the date of this Agreement and Release is executed.
The making of this Agreement is not intended to be, and shall not be construed, as an admission that the Company or any of the Releasees violated any federal, state or local law (statutory or decisional), ordinance or regulation, breached any contract or committed any wrong whatsoever against you.
20. Review Period
This offer of mutual agreement is made without prejudice. The Agreement will be null and void if not accepted by May 11, 2020. Such acceptance shall be evidenced by your signature of this Agreement.
In addition, once executed, this Agreement shall be automatically cancelled (and, as a consequence, all the payments and benefits stipulated in this Agreement shall be cancelled) if you accept another position with the Company or an Affiliate anywhere in the world on or before the Early Retirement Date.
21. Governing Law and Jurisdiction
Any issues relating to or arising out of this Agreement shall be governed exclusively by the laws of Switzerland without regard to its conflict of law provisions and shall be subject to the exclusive jurisdiction of the competent courts of the Canton de Vaud, Switzerland.
Philip Morris Products S.A., Avenue de Rhodanie 50, 1007 Lausanne, Switzerland T:+41 (58) 242 00 00, F: +41 (58) 242 01 01 Page 14 of 16
--------------------------------------------------------------------------------
pmilogoa11.jpg [pmilogoa11.jpg]
However, each party is hereby expressly authorized and entitled to initiate judicial action seeking preliminary or permanent injunctive relief with respect to the obligations set forth under confidentiality and non-compete provisions of this Agreement, before any other court of competent jurisdiction.
Yours faithfully,
PHILIP MORRIS PRODUCTS S.A.
/S/ CONSTANTIN ROMANOV
Constantin Romanov Global Head of Total Rewards
/S/ RALF ZYSK
Ralf Zysk Global Head of People Sustainability, Employee Relations
I agree to the above:
Signature: /S/ MIROSLAW ZIELINSKI Miroslaw Zielinski
Date: April 30, 2020
Philip Morris Products S.A., Avenue de Rhodanie 50, 1007 Lausanne, Switzerland T:+41 (58) 242 00 00, F: +41 (58) 242 01 01 Page 15 of 16
--------------------------------------------------------------------------------
pmilogoa11.jpg [pmilogoa11.jpg]
APPENDIX I
[Boilerplate for confirmation message to be sent by email to yourhr@pmi.com or by ordinary mail to Philip Morris Products S.A. - Manager P&C Operations - Switzerland – Avenue de Rhodanie 50 – 1007 Lausanne – Switzerland at the end of the non-compete period]
“Dear Sirs,
Reference is made to the “Separation agreement and Release” that I executed with Philip Morris Products S.A., and more specifically to the non-compete obligation stipulated in said agreement.
I hereby state that I did not violate the non-compete obligation in any manner during the agreed period and, therefore, ask you to pay the agreed amount at your best convenience.”
Philip Morris Products S.A., Avenue de Rhodanie 50, 1007 Lausanne, Switzerland T:+41 (58) 242 00 00, F: +41 (58) 242 01 01 Page 16 of 16 | [
"Exhibit 10.1 pmilogoa11.jpg [pmilogoa11.jpg] BY HAND To: Mr. Miroslaw Zielinski Lausanne, April 28, 2020 EARLY RETIREMENT AGREEMENT (the “Agreement”) and RELEASE Dear Miroslaw, This Agreement sets out the terms that Philip Morris Products S.A. (the “Company”) has agreed with you shall apply to your early retirement. 1. Definitions In this Agreement the expressions below shall have the following meanings: An “Affiliate” of a company means any person, company, group of companies or other entity, which, either directly or indirectly, owns, is owned by, has common owner(s) with, or shares ownership interest in that company. “Confidential Information” shall have the meaning set out in the section “Confidentiality” of this Agreement. The “Tobacco Business” means the manufacturing, sale, marketing, research and development and/or distribution of cigarettes, other combustible and noncombustible tobacco products, or e-cigarettes/e-vapors (battery powered devices which produce an aerosol by evaporating a flavored nicotine solution).",
"Philip Morris Products S.A., Avenue de Rhodanie 50, 1007 Lausanne, Switzerland T:+41 (58) 242 00 00, F: +41 (58) 242 01 01 Page 1 of 16 -------------------------------------------------------------------------------- pmilogoa11.jpg [pmilogoa11.jpg] 2. Ending of Employment Agreement We hereby agree that your employment with the Company will end on June 30, 2020 and that you will take an early retirement as from this date (the “Early Retirement Date”). For the avoidance of doubt, your last working day is on June 30, 2020, and your early retirement will formally start on July 1, 2020. As the decision to take early retirement is mutually agreed, no notice of termination is required by you to us, or by us to you. 3. Payments by the Company (a) Your salary will be paid up to and including the Early Retirement Date, in accordance with the Company’s standard payroll practices. In addition, by the Early Retirement Date, the Company will pay you: (i) the pro-rated 13th salary for the period January 1, 2020 to the Early Retirement Date; and (ii) your pro-rated fidelity premium.",
"(b) Within 30 days after the Early Retirement Date, the Company shall also pay you a gross amount compensating any outstanding vacation entitlement, as per Company policy and Company records. (c) (i) Subject to your countersignature of this Agreement and that you shall execute any additional documents to formalize the end of your employment with the Company and/or any other Affiliate (in particular, with any PMI entity you maintained employment with in Poland), you will receive a payment in the total gross amount of CHF 2’019’245.--, which includes an amount in lieu of your pro-rated 2020 incentive compensation (“IC”).",
"This amount (the “Severance Payment”) is granted in recognition of your contribution to the Company, subject to the conditions that you fully comply with your obligations to the Company under this Agreement, as well as that you remain employed until the Early Retirement Date and continue to perform your role (including handover and knowledge transfer and any other duties reasonably required of you by the Company) until the Early Retirement Date. (ii) You will receive your Severance Payment within 30 days following the Early Retirement Date. Philip Morris Products S.A., Avenue de Rhodanie 50, 1007 Lausanne, Switzerland T:+41 (58) 242 00 00, F: +41 (58) 242 01 01 Page 2 of 16 -------------------------------------------------------------------------------- pmilogoa11.jpg [pmilogoa11.jpg] (iii) If the Early Retirement Date as defined in this Agreement is postponed by you for any reason whatsoever (but not by the Company), the Severance Payment shall be automatically forfeited.",
"(iv) Should the Pension schemes of Philip Morris in Switzerland (the “Pension Fund”) have to pay to you any amount in connection with a disability status after the execution of this Agreement, both parties to this Agreement hereby give permission to the Pension Fund to take into consideration the amount paid according to this Section 3(c) when determining the additional payments to be made.",
"(d) In addition, you will also receive a lump sum payment in the total gross amount of CHF 1’417’514.-- in consideration for the non-competition obligation in the section “Non Competition” of this Agreement, to be paid in two installments as per the below schedule, subject to the conditions that (i) you fully comply with your obligations to the Company under this Agreement and that (ii) you address a letter or an email to our P&C Operations Switzerland at the end of the non-compete period, confirming that you did not violate in any manner the non-compete obligation stipulated in this Agreement (see boilerplate for confirmation under Appendix I to this Agreement). The two installments will be paid as follows: • CHF 708’757.-- (gross) paid in July 2020 • CHF 708’757.-- (gross) paid in July 2022 For the avoidance of doubt, in the case of death the outstanding monies mentioned above - i.e. the second installment will be paid to your heirs, provided that you had complied to the non-compete obligations. 4. Restricted Stock Units Subject to your compliance with the terms and conditions of this Agreement, the previous unvested Restricted Stock Units (RSUs) grants and awards made to you will fully vest.",
"The accelerated vesting will occur on the Early Retirement Date and will be processed by UBS Financial Services Inc. (“UBS”) as soon as reasonably practicable following the Early Retirement Date. The Company will comply with local laws and regulations including tax and social security withholding and information reporting to the taxing authorities as may be required. Philip Morris Products S.A., Avenue de Rhodanie 50, 1007 Lausanne, Switzerland T:+41 (58) 242 00 00, F: +41 (58) 242 01 01 Page 3 of 16 -------------------------------------------------------------------------------- pmilogoa11.jpg [pmilogoa11.jpg] Any applicable tax withholding (and any other payroll withholding taxes or social security deduction when applicable) will be satisfied by deducting the number of shares equal in value to the amount of the withholding requirements from your stock award; therefore, the number of shares deposited into your UBS account on the vesting date will be net of the shares used to satisfy applicable withholding taxes or other applicable deductions (rounded up to the nearest whole share).",
"However, if you are not subject to income tax withholdings, or if the withholdings do not fully cover your income tax liability, you will be responsible for satisfying any tax liabilities due on these amounts. You understand and agree that these vestings are being made and the valuations will be determined in compliance with applicable laws, regulations and practices. Being an Executive Officer (as designated by the Board of Directors of Philip Morris International Inc. within the meaning of Section 16 of the Security Exchange Act of 1934, as amended) within the period of 12 months prior your Early Retirement Date, any such shares you receive by way of accelerated vesting under this paragraph (in accordance with the terms of the applicable stock agreements) will be subject to a holding period of 12 consecutive months expiring on June 30, 2021.",
"5. Performance Share Units Subject to the terms and conditions of the applicable Performance Share Units (PSUs) award agreements and your compliance with the terms and conditions of this Agreement, the following treatment will apply to your unvested PSUs: • All your unvested PSU grants will vest on the respective scheduled vesting date set out in your award statements. The number of PSUs that will actually vest, for each relevant year, will be equal to the performance percentage multiplied by your target number of PSUs, to the extent that the respective performance targets set out in your award statements are achieved at the end of each performance period. In order to be eligible at the vesting to receive the relevant shares, you will have to • provide the Company (email: CorporateCompensationPrograms.PMI@pmi.com) with your contact details before the Early Retirement Date and notify the Company promptly of any change; • in the event the Company specifically asks you in writing, promptly provide the Company with any information regarding your personal circumstances (including your bank account details) that the Company may reasonably need in order to satisfy tax, social security or other similar requirements.",
"Philip Morris Products S.A., Avenue de Rhodanie 50, 1007 Lausanne, Switzerland T:+41 (58) 242 00 00, F: +41 (58) 242 01 01 Page 4 of 16 -------------------------------------------------------------------------------- pmilogoa11.jpg [pmilogoa11.jpg] You acknowledge that, should the Company be unable to contact you and/or should you fail to provide the Company, in response to the Company’s written request, with relevant information with respect to a specific vesting, it may result in the impossibility of said specific vesting and the corresponding PSUs will be forfeited. Each vesting will be processed by UBS Financial Services Inc. (“UBS”) as soon as reasonably practicable following the vesting date. The Company will comply with local laws and regulations including tax withholding (income and /or social security) and information reporting to the taxing authorities as may be required. Any applicable tax withholding (and any other withholding payroll taxes or social security deduction when applicable) will be satisfied by deducting the number of shares equal in value to the amount of the withholding required from your stock award; therefore, the number of shares deposited into your UBS account after the vesting date will be net of the shares used to satisfy applicable withholding taxes or other applicable deductions (rounded up to the nearest whole share). You understand and agree that these vestings are being made and the valuations will be determined in compliance with the relevant award agreement and applicable laws, regulations and practices. You will receive your dividend equivalent payments in one lump-sum payment as soon as reasonably practicable following each vesting date. The amount paid to you will be based on the number of PSUs that vest and will be paid through payroll subject to tax withholding (income and/or social security) and information reporting to the taxing authorities as may be required.",
"Please note that with respect to both the issuance of shares and payment of the lump sum for dividend equivalents, you are responsible for satisfying your actual tax liabilities, even if you are not subject to tax withholdings or if the withholdings do not fully cover your tax liability. 6. Miscellaneous on Payments and Benefits (a) No other payment, benefits or compensation shall be due to you by the Company and/or any Affiliate during the employment or after the Early Retirement Date, except those expressly stipulated in this Agreement. (b) The amounts payable pursuant to this Agreement will be subject to income tax and social security deductions, as applicable. You will be personally responsible for any actual income tax and social security liabilities arising on these amounts. If an income or social security tax withholding obligation arises for the Company in accordance with applicable legislation, the Company will fully Philip Morris Products S.A., Avenue de Rhodanie 50, 1007 Lausanne, Switzerland T:+41 (58) 242 00 00, F: +41 (58) 242 01 01 Page 5 of 16 -------------------------------------------------------------------------------- pmilogoa11.jpg [pmilogoa11.jpg] comply with its obligations and will apply an appropriate withholding rate to any amounts paid to you pursuant to this Agreement. (c) Any outstanding balance on the account of the corporate credit card issued in your name as of the Early Retirement Date and any other amounts that for any reason you may owe the Company may be set-off against any amounts payable by the Company pursuant to this Agreement. 7. Tax Return Filing Assistance The Company will maintain your current tax assistance entitlement (use of KPMG services with your contribution) for your 2020 Swiss tax return.",
"The Company may deduct said contribution from any amount due to you as per this Agreement. This entitlement may be subject to income tax and social security deductions, if applicable. Note that you will not be provided with any tax filing assistance in connection with the 2018, 2019 and 2020 Performance Share Units that are due to vest in 2021, 2022 and 2023, respectively. In addition, should an action be initiated against you or your estate pertaining to Ukrainian taxes filed for the tax years from 1999 to 2002 while you were on an international assignment to Ukraine and the US taxes filed for the tax years from 2003 to 2010 while you were on an international assignment to the US, the Company will assist you in your defense against such claim, for period that you were hosted in Ukraine and the US respectively, provided that you had afforded all the information that was requested from you for the adequate filing of your taxes, at the time. 8. Post Career Counseling The Company will, at its expense, provide you with post-career counseling services with an agency of its choice, should you wish to use it and notify the Company to this effect by the Early Retirement Date.",
"Should you have questions with respect to the proposed post-career counseling services, please contact Constantin Romanov, Global Head of Total Rewards (tel. +41 58 242 6423). This entitlement may be subject to income tax and social security deductions, if applicable. Philip Morris Products S.A., Avenue de Rhodanie 50, 1007 Lausanne, Switzerland T:+41 (58) 242 00 00, F: +41 (58) 242 01 01 Page 6 of 16 -------------------------------------------------------------------------------- pmilogoa11.jpg [pmilogoa11.jpg] 9. Benefit Car You will have the option to buy your present benefit car at the lower of its net book value or market value, at least 20 days before the Early Retirement Date. In order for you to exercise this option, you undertake, within the 20-day period preceding the Early Retirement Date, to bring the car to a location and at a date to be agreed with the Company, in order for the Company to determine the exact market value of the car, which shall be communicated to you through a separate document. Should you not comply with this obligation, the Company is free to forfeit this option.",
"The Company is free to appoint a third party of its choice to make the valuation and said evaluation shall be final. If the market value exceeds the book value, the difference represents a taxable benefit for you and will be subject to income tax and social security deductions, if applicable. The transfer will be effective on the Early Retirement Date. Insurance of the car will become your responsibility on the Early Retirement Date. You undertake to subscribe civil liability coverage for the car with an appropriate insurance company, starting on the first day following the Early Retirement Date, and to provide the Company with a certificate of insurance stating said coverage.",
"The Company does not require reimbursement of the registration tax paid for 2020, but payment for 2021 and beyond shall be your responsibility. The Company is entitled to deduct payment for the car from your salary and/or from any other payment due to you according to this Agreement. No warranties will be given as to the condition of the car, of which you will be deemed to have full knowledge. If you decide not to exercise your option to buy the benefit car, it will be your obligation to return it to the Company by the Early Retirement Date, in accordance with the terms of the relevant Benefit Car Affiliate Practices CH. 10.",
"Pension Fund Please contact directly our Pension Fund Administration (tel. +41 58 242 12 41) about your accrued rights. 11. Health / Accident Insurance / Loss of Income Insurance Your current benefits will be kept until the Early Retirement Date. Concerning your health insurance, you may elect (i) to maintain your and your spouse’s participation in the current PMI retirees Plan at your full expense (should you maintain your residence in Switzerland), to the extent that it is offered to PMI retirees at the time of your Early Retirement Date, or (ii) to subscribe to an individual insurance policy with the insurance company of your choice. Please contact Angele Bitterlin, Team Leader P&C Operations - Benefits (tel: +41 58 242 4128) for further information. Philip Morris Products S.A., Avenue de Rhodanie 50, 1007 Lausanne, Switzerland T:+41 (58) 242 00 00, F: +41 (58) 242 01 01 Page 7 of 16 -------------------------------------------------------------------------------- pmilogoa11.jpg [pmilogoa11.jpg] The accident insurance (LAA coverage) will cover you for an additional 31 days after the Early Retirement Date.",
"After this date, you will need to inform your insurance company about the end of your cover and make the necessary steps to subscribe a new accident insurance (a coverage of accident risk may be added to your current health insurance scheme). About your loss of income insurance, please contact P&C Operations – Benefits (Angele Bitterlin tel. +41 58 242 4128) 30 days prior to the Early Retirement Date for more information.",
"You can request insurance coverage and transfer from the Company to an individual contract within 90 days following the Early Retirement Date. 12. Confidentiality You acknowledge that during your employment you were engaged in a position of trust and confidence and you were privy to Confidential Information (as defined below). You acknowledge that it benefits both the Company and its employees for the Company to protect its Confidential Information and to obtain the rights to discoveries, inventions, improvements, innovations and other works developed by its employees. You agree that you will not disclose or cause to be disclosed Confidential Information. You further agree that you shall remain bound to the terms and conditions set forth in any confidentiality agreement in place between you and the Company.",
"For purposes of this Agreement, Confidential Information means any information obtained as a result of your employment with the Company, including information regarding its current or former employees, current or former customers or potential customers that is proprietary or private (not publicly known or available), whether or not it is designated that way in writing. Examples of Confidential Information include the following: • trade secrets • intellectual property • business strategies • employee information • government relations matters • details of customers or prospective customers • sales, marketing or advertising plans • business policies • details of finances, products, services or pricing • matters concerning business development • details of organizational structures Philip Morris Products S.A., Avenue de Rhodanie 50, 1007 Lausanne, Switzerland T:+41 (58) 242 00 00, F: +41 (58) 242 01 01 Page 8 of 16 -------------------------------------------------------------------------------- pmilogoa11.jpg [pmilogoa11.jpg] • information concerning research and development • details of any legal strategies; information covered by the attorney client privilege or constituting attorney work product • information relating to technology (including methods, systems, techniques, procedures, designs, specifications, formulae, inventions, know-how, hardware and software) • data and databases • testing or evaluation procedures • security protocols • information related to internal/external investigations • the terms of this Agreement, except that you may discuss the terms of the proposed Agreement with your attorneys, tax advisors/accountants, life partner, daughters and heirs. You understand that use or disclosure of Confidential Information would violate this Agreement and applicable law, and would cause immediate and irreparable harm to the Company and its competitive position.",
"You thus acknowledge and agree that the Company is entitled to preliminary and permanent injunctive relief in order to prevent or stop such violations, in addition to damages, costs and other relief that may be appropriate. If you are required by subpoena or court order to disclose any Confidential Information, you agree to notify the Company (specifically, the Company representative who has signed this Agreement, or his/her successor) as soon as practicable. You agree that you will return any Confidential Information in tangible or electronic form in your possession by the Early Retirement Date at the latest. You further agree that you shall remain bound to the terms and conditions set forth in any confidentiality agreement in place between you and the Company. Unless required by a lawfully issued subpoena, court order or other lawful request by any regulatory agency or governmental authority to release information, the Company will keep any information with respect to your employment and/or the end of your employment strictly confidential, subject to the Company’s disclosure obligations under the securities laws. These confidentiality obligations continue to be valid and enforceable after the end of your employment relationship, but, with respect to any particular Confidential Information, for only so long as such Confidential Information has been maintained as confidential by the Company.",
"Philip Morris Products S.A., Avenue de Rhodanie 50, 1007 Lausanne, Switzerland T:+41 (58) 242 00 00, F: +41 (58) 242 01 01 Page 9 of 16 -------------------------------------------------------------------------------- pmilogoa11.jpg [pmilogoa11.jpg] 13. Non-Disparagement Both parties agree not to speak disparagingly of the other party, including but not limited, about the Company products or services, or any of the Company’s current or former officers, directors or managers. 14. Affiliate Directorships You agree to resign as a Director, Manager or similar positions of all Affiliates of the Company of which you are a director, a manager or a similar position on or before the Early Retirement Date, by signing the resignation letter(s) that the Company or any Affiliate shall submit to you. 15. Company Property In addition to your obligation to return Confidential Information by the Early Retirement Date at the latest, you will also return to the Company by that date all files, documents, tapes, CD’s, and copies thereof, and other items belonging to the Company and its Affiliates irrespective of their source and origin, including, where applicable, credit cards, telephone cards, standard mobile phones, BlackBerry, SmartPhones (HTC, QTEK), iPhones, iPads, keys, access and identification cards, and computers, and, if requested, will certify that this has been done to the best of your belief.",
"For the benefit car please refer to the section “Benefit Car” of this Agreement. 16. Non Competition You recognize and agree that you have access to information relating to the Company and its Affiliates, and their respective businesses, including business plans and strategies, which are highly confidential, and that you have been employed by the Company in a special position of trust. You also recognize that the Company is undertaking, pursuant to Section 3(d) of this Agreement, to make substantial payments to you generally, and specifically in respect of your obligations under this Section. In consideration of the foregoing, you agree that you will not, without the prior written consent of the Assistant General Counsel, Philip Morris International (Agustin Cervello, agustin.cervello@pmi.com, or any successor), provide any services for a period of 24 (twenty-four) months from the Early Retirement Date, directly or indirectly, whether as an employee, consultant or otherwise, to any person, company, group of companies or other entity (i) engaged in the Tobacco Business, or (ii) which owns directly or indirectly, either individually or jointly with other parties and whether through ownership of voting Philip Morris Products S.A., Avenue de Rhodanie 50, 1007 Lausanne, Switzerland T:+41 (58) 242 00 00, F: +41 (58) 242 01 01 Page 10 of 16 -------------------------------------------------------------------------------- pmilogoa11.jpg [pmilogoa11.jpg] securities or otherwise, more than 25 % of the equity ownership of any person, company, group of companies or other entity engaged in the Tobacco Business, or (iii) one of the purposes of which is to take positions or actions in opposition to the Tobacco Business.",
"Your obligations in the preceding paragraph shall apply worldwide, including, without limitation, with respect to Japan Tobacco Inc., Imperial Brands p.l.c., British American Tobacco p.l.c., China National Tobacco Corporation, and their Affiliates. For avoidance of doubt, if the Company and/or any of its Affiliates chooses to engage you or an entity you may be working for, as a consultant, such engagement should not be in violation of your non-compete obligations in this section. You further agree for a period of 24 (twenty-four) months from the Early Retirement Date not to acquire a financial interest or shares in an enterprise engaged in the Tobacco Business or to enter into a partnership with such an enterprise. The acquisition of 5% or less of shares in a publicly held corporation will not be deemed a violation of this covenant not to compete.",
"In case of any violation of this covenant not to compete you agree that the Company will retain, and you will forfeit your right to, the amount of CHF 1’417’514.-- provided for in consideration for the non-competition obligation, or if already paid, you will return such amount to the Company. Moreover, in case of such a violation, a contractual penalty of CHF 700’000.-- shall be due by you to the Company. In addition, the Company reserves the right to seek further damages and/or specific performance of this covenant not to compete. 17. Future Relationship and Cooperation You agree that, consistent with applicable law and to the extent the Company or any of its Affiliates so requests, you will cooperate reasonably and truthfully with the requesting company in connection with any matter, including any legal or business dispute, concerning which you were involved or had knowledge while employed by the Company and its Affiliates, including but not limited to any enquiry, proceeding, hearing, or investigation by or before any administrative, executive, judicial or legislative body or agency, or within the Company and its Affiliates. You agree to make yourself available if and when reasonably required by the Company, its Affiliates or relevant counsel, taking into account your schedule.",
"The Company will reimburse you for all reasonable travel and other out-of-pocket expenses incurred by you in connection with your compliance with this obligation. Such amounts shall be payable within 60 days of receipt of the corresponding statement, provided, however, that you must submit any such expense statement to the Company no later than 90 days prior to the end of the calendar year following the year you incur the expense. Philip Morris Products S.A., Avenue de Rhodanie 50, 1007 Lausanne, Switzerland T:+41 (58) 242 00 00, F: +41 (58) 242 01 01 Page 11 of 16 -------------------------------------------------------------------------------- pmilogoa11.jpg [pmilogoa11.jpg] You agree that, to the extent consistent with applicable law, you will not aid, assist, or participate in any legal action or proceeding filed by third parties against the Company or its Affiliates or, against any of its or their current or former officers, directors, employees, employee benefit plans or funds or pension funds. In the event that any claim is made, or threatened to be made, against you by a third party, including without limitation a government agency, relating to activities you performed in the course of your employment with the Company or its Affiliates, the Company will indemnify you to the fullest extent permitted by applicable law in respect of any award of damages or compensation payment, and any costs reasonably incurred by you in defending such a claim, including reasonable attorneys’ fees and expenses, provided that (i) you promptly notify the Company of any such claim or threatened claim, (ii) you take all reasonable steps to defend the claim including, in the absence of a bona fide conflict of interest, giving the Company the opportunity to direct and control such defense, and (iii), with respect to any award of damages or compensation payment, the amount to be indemnified is the subject of an enforceable Court decision or of a settlement or similar agreement approved by the Company, and provided further that you submit any expense statements, including for counsel fees, within 60 days of your receipt thereof.",
"In the event that any award of damages, compensation payment or costs arise as a result of willful misconduct or knowing violation of criminal law on your part, this indemnity will not apply, and any amounts already paid by the Company pursuant to this clause will be repayable. 18. Reservation of Rights Nothing in this Agreement shall be construed as preventing you, the Company, or any of its Affiliates from: (a) providing information to, or participating or cooperating in any inquiry conducted by, a governmental agency; or (b) responding truthfully to a lawfully-issued subpoena, court order, or other lawful request by any regulatory agency or governmental authority. 19. Agreement and Release By countersigning this Agreement and in consideration of the payments to be made by the Company to you or for your benefit: (i) you hereby confirm that you accept and agree to all of the terms and conditions set forth above; Philip Morris Products S.A., Avenue de Rhodanie 50, 1007 Lausanne, Switzerland T:+41 (58) 242 00 00, F: +41 (58) 242 01 01 Page 12 of 16 -------------------------------------------------------------------------------- pmilogoa11.jpg [pmilogoa11.jpg] (ii) you also acknowledge that this Agreement provides consideration to you which you are not legally entitled to receive in connection with your employment with the Company and/or the ending of said employment, or under any other agreement. In exchange for receiving this additional consideration, you agree, on behalf of yourself, your heirs, personal representatives, executors, administrators, successors and assigns, to forever release and discharge the Company, its Affiliates, and its and their respective successors, predecessors, divisions, assigns, assets, employee benefit plans or funds, pension funds, and any of its or their respective past, present and/or future representatives, shareholders, directors, officers, fiduciaries, agents, trustees, administrators, and employees (collectively referred to as the \"Releasees\"), from any and all claims, demands, damages, remedies, contracts (express or implied) and causes of action of any kind or nature whatsoever, whether known or unknown, which you had, now have or in the future may or could have against the Releasees, or any of them, by reason of any matter, act, omission or event that occurred, or is alleged to have occurred, up to the date of this Agreement, including, but not limited to, any and all claims in connection with your employment with the Company (or with any other Releasee) and/or your separation therefrom.",
"The foregoing releases shall not apply to any claims for monies due under this Agreement or to any right or entitlement you may have accrued, respectively will accrue, with the Pension Fund as per applicable retirement plans. (iii) you hereby acknowledge and agree that all overtime work and/or supplementary work you might have performed, if any, has been compensated in full; (iv) if any provision of this Agreement is held by a court of competent jurisdiction to be overbroad, unreasonable or unenforceable, such provision shall be given effect by the court to the maximum extent possible by narrowing or not enforcing in part that aspect of the provision found overbroad, unreasonable or unenforceable, without affecting the validity or enforceability of the remainder of this Agreement; and (v) you hereby agree that this Agreement sets out all the terms and conditions relating to the ending of your employment with the Company and supersedes all discussions and understandings, if any, oral or written. However, if requested to do it, you shall execute additional documents to formalize the end of your employment with the Company and/or any other Affiliate (in particular, with any PMI entity you maintained employment with in Poland), with no further compensation, and expressly agree that it is a condition for you to receive the Severance Payment. Should you receive any statutory amount in connection with the end of possible employment relationships out of the Company, the Company shall take it into account and impact the Severance Payment accordingly.",
"Philip Morris Products S.A., Avenue de Rhodanie 50, 1007 Lausanne, Switzerland T:+41 (58) 242 00 00, F: +41 (58) 242 01 01 Page 13 of 16 -------------------------------------------------------------------------------- pmilogoa11.jpg [pmilogoa11.jpg] You represent that you have not, and agree that, to the extent permitted by law, you will not, bring or cause to be brought any charges, claims, demands, or actions in any forum against the Company or any other Releasee arising from any matter, act, omission or event that occurred or is alleged to have occurred, up to the date of this Agreement, including, but not limited to, any charge or claim in connection with your employment and/or your separation from employment, except for any claim related to the settlement of any outstanding expenses pursuant to the Company’s Travel and Entertainment Policy and the payments to be made, respectively the benefits to be granted, pursuant to this Agreement.",
"This waiver and release includes all claims of any kind, whether they are known to you or unknown, which you now have, had, or may hereafter claim to have had against the Company, its Affiliates and other Releasees, or any of them, by reason of any matter, act, omission, or event that has occurred or is alleged to have occurred up to the date of this Agreement, except for claims that cannot be waived or released under Swiss law. This Agreement does not waive or release any rights or claims that you may have which arise after the date of this Agreement and Release is executed. The making of this Agreement is not intended to be, and shall not be construed, as an admission that the Company or any of the Releasees violated any federal, state or local law (statutory or decisional), ordinance or regulation, breached any contract or committed any wrong whatsoever against you.",
"20. Review Period This offer of mutual agreement is made without prejudice. The Agreement will be null and void if not accepted by May 11, 2020. Such acceptance shall be evidenced by your signature of this Agreement. In addition, once executed, this Agreement shall be automatically cancelled (and, as a consequence, all the payments and benefits stipulated in this Agreement shall be cancelled) if you accept another position with the Company or an Affiliate anywhere in the world on or before the Early Retirement Date.",
"21. Governing Law and Jurisdiction Any issues relating to or arising out of this Agreement shall be governed exclusively by the laws of Switzerland without regard to its conflict of law provisions and shall be subject to the exclusive jurisdiction of the competent courts of the Canton de Vaud, Switzerland. Philip Morris Products S.A., Avenue de Rhodanie 50, 1007 Lausanne, Switzerland T:+41 (58) 242 00 00, F: +41 (58) 242 01 01 Page 14 of 16 -------------------------------------------------------------------------------- pmilogoa11.jpg [pmilogoa11.jpg] However, each party is hereby expressly authorized and entitled to initiate judicial action seeking preliminary or permanent injunctive relief with respect to the obligations set forth under confidentiality and non-compete provisions of this Agreement, before any other court of competent jurisdiction. Yours faithfully, PHILIP MORRIS PRODUCTS S.A. /S/ CONSTANTIN ROMANOV Constantin Romanov Global Head of Total Rewards /S/ RALF ZYSK Ralf Zysk Global Head of People Sustainability, Employee Relations I agree to the above: Signature: /S/ MIROSLAW ZIELINSKI Miroslaw Zielinski Date: April 30, 2020 Philip Morris Products S.A., Avenue de Rhodanie 50, 1007 Lausanne, Switzerland T:+41 (58) 242 00 00, F: +41 (58) 242 01 01 Page 15 of 16 -------------------------------------------------------------------------------- pmilogoa11.jpg [pmilogoa11.jpg] APPENDIX I [Boilerplate for confirmation message to be sent by email to yourhr@pmi.com or by ordinary mail to Philip Morris Products S.A. - Manager P&C Operations - Switzerland – Avenue de Rhodanie 50 – 1007 Lausanne – Switzerland at the end of the non-compete period] “Dear Sirs, Reference is made to the “Separation agreement and Release” that I executed with Philip Morris Products S.A., and more specifically to the non-compete obligation stipulated in said agreement.",
"I hereby state that I did not violate the non-compete obligation in any manner during the agreed period and, therefore, ask you to pay the agreed amount at your best convenience.” Philip Morris Products S.A., Avenue de Rhodanie 50, 1007 Lausanne, Switzerland T:+41 (58) 242 00 00, F: +41 (58) 242 01 01 Page 16 of 16"
] | https://github.com/TheAtticusProject/cuad | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
|
985 So. 2d 1147 (2008) Angela Louise EDWARDS, Personal Representative of the Estate of Sheena Nicole Edwards, Appellant, v. C.A. MOTORS, LTD., d/b/a "Acura of Orange Park," Appellee. No. 1D07-4162. District Court of Appeal of Florida, First District. June 18, 2008. Rehearing Denied July 23, 2008. *1148 William J. Dorsey, Jacksonville, for Appellant. Frank W. Hession and Robert Guild, Jacksonville, for Appellee. KAHN, J. Twenty-year-old Sheena Nicole Edwards and her unborn son sustained fatal injuries when an Acura MDX driven by Rosemary Wills struck the vehicle in which Sheena was a passenger. Appellant Angela Louise Edwards, Sheena's mother, subsequently brought this wrongful death action against appellee C.A. Motors, owner of the auto dealership that leased the accident vehicle to Ms. Wills. Ms. Edwards now appeals a summary judgment for appellee, founded on the trial court's determination that appellee was immunized from suit because the lease agreement complied with Florida law regarding minimum insurance requirements for long-term leases. For the reasons that follow, we reverse.
BACKGROUND Ms. Wills' 48-month lease of the accident vehicle, an Acura MDX, began May 18, 2002. The lease agreement obligated Ms. Wills to procure an auto insurance policy with coverage providing the following minimum limits: $100,000 for bodily injuries to any one person, $300,000 for bodily injuries for any one accident, and $50,000 for property damage. Significant here, the agreement also provided: "Lessor may change the amounts of required insurance." The parties do not dispute that Ms. Wills obtained the required coverage and her insurance policy was valid and in effect at the time of the accident. In its answer to Ms. Edwards' suit, C.A. Motors raised the affirmative defense that recovery is barred by section 324.021(9)(b), Florida Statutes (2006). The statute immunizes a vehicle lessor from liability for damages caused by a lessee's negligence so long as the lessee has obtained bodily injury coverage of at least $100,000 per person and $300,000 per accident, and provided that the lease term is one year or longer. Ms. Edwards argued in response that the lease provision reserving to appellee the right to "change the amounts of required insurance" did not strictly comply with the statute and rendered the statutory immunity inapplicable. The trial court granted final summary judgment for the dealership, having determined that Ms. Wills' lease strictly complied with the statute because it "contain[ed] specific references to the required amounts of insurance" and "[did] not allow[ ] for a change below the minimum statutory requirements." Appellant now seeks review.
ANALYSIS Florida courts established as an element of our common law, and long adhered to the rule, that the owner of a dangerous instrumentality is vicariously liable for damages caused by another person's use of *1149 the property. See S. Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629, 631 (1920) (quoting Pollock, Law of Torts 506). The supreme court in Anderson held that the owner of an automobile a "highly dangerous agency" must be "liable for any injury which might be committed through [a permissive user's] negligence." Id. at 636. In 1959, the supreme court extended the doctrine of dangerous instrumentalities to cover rented automobiles. Susco Car Rental Sys. of Fla. v. Leonard, 112 So. 2d 832, 837 (Fla.1959) (noting "the assumption that an owner cannot deliver a vehicle into the hands of another without assuming, or continuing, his full responsibility to the public"). In 1986, however, the Legislature crafted a statutory exception to the dangerous instrumentality doctrine for title owners of vehicles on long-term lease. See generally Ady v. Am. Honda Fin. Corp., 675 So. 2d 577, 580 (Fla.1996) (discussing history of statutory exception to dangerous instrumentality doctrine). Beginning in 1987, the presently numbered section 324.021(9)(b), Florida Statutes, broadly limited vehicle lessors' liability in cases involving long-term leases where lessees procure their own insurance coverage. The present version of the statute provides in relevant part: The lessor, under an agreement to lease a motor vehicle for 1 year or longer which requires the lessee to obtain insurance acceptable to the lessor which contains limits not less than $100,000/$300,000 bodily injury liability and $50,000 property damage liability or not less than $500,000 combined property damage liability and bodily injury liability, shall not be deemed the owner of said motor vehicle for the purpose of determining financial responsibility for the operation of said motor vehicle or for the acts of the operator in connection therewith; further, this subparagraph shall be applicable so long as the insurance meeting these requirements is in effect. The insurance meeting such requirements may be obtained by the lessor or lessee, provided, if such insurance is obtained by the lessor, the combined coverage for bodily injury liability and property damage liability shall contain limits of not less than $1 million and may be provided by a lessor's blanket policy. § 324.021(9)(b)(1), Fla. Stat. (2006). Because the statute is in derogation of the common law rule imposing vicarious liability, the lease agreement must strictly comply with the statute for C.A. Motors to claim protection as a non-owner of the accident vehicle for the purpose of determining liability. See Ady, 675 So.2d at 580 (holding that "there must be strict compliance with the express provisions of section 324.021(9)(b) before a title owner of a motor vehicle can receive the benefits of this statutory exception to the dangerous instrumentality doctrine"); see generally Fla. Steel Corp. v. Adaptable Devs., Inc., 503 So. 2d 1232, 1234 (Fla.1986) ("It is a rule of statutory construction that any statute in derogation of the common law requires strict compliance with its provisions by one seeking to avail himself of its benefits."); Carlile v. Game & Fresh Water Fish Comm'n, 354 So. 2d 362, 364 (Fla. 1977) (explaining that statutes in derogation of common law must be strictly construed). The case law holds that a lease agreement which, by its text, allows either party to abrogate the statutorily required insurance does not strictly comply with the statute. In Rodriguez-Cespedes v. Creative Leasing, Inc., the Third District determined that a lease agreement failed strictly to comply because it "provided only that [the lessee] was to procure the *1150 insurance required under the lease. Neither the lease agreement, the vehicle lease order, the business use form, nor the insurance certification contained the 100/300/50 insurance requirement." 728 So. 2d 811, 813 (Fla. 3d DCA 1999). Because the agreement did not, as the statute mandates, require specific policy limits, the court concluded that the lessor could not escape liability for damages due to the lessee's negligence, even though, "some months" before the accident that gave rise to the lawsuit, the lessee "had secured a liability policy with 100/300/50 coverage." Id. A lease requiring the lessee to obtain either (a) $100,000/$300,000/$50,000 bodily injury and property coverage or (b) "a combined single limit of $300,000 for bodily injuries and property damage" similarly did not comply with a prior version of the statute, which omitted the alternative in the present version permitting a lessee to obtain a policy covering bodily injuries and property damage. Gen. Motors Acceptance Corp. v. Davis, 664 So. 2d 1025, 1026-28 (Fla. 2d DCA 1995) (construing § 324.021(9)(b), Fla. Stat. (1993)); accord Bush Leasing, Inc. v. Gallo, 634 So. 2d 737, 741 (Fla. 1st DCA 1994) (holding that lease agreement requiring single-limit coverage of $500,000 did not strictly comply with then-effective version of statute, which omitted reference to single-limit policies). Here, the lease agreement properly tracked the statute's requirements of minimum coverage. The agreement went beyond that, however, and reserved to appellee, the lessor, the unilateral right to "change the amounts of required insurance," without imposing any standards governing appellee's discretion to modify the insurance requirements. Perhaps only an unscrupulous or unwise lessor would expose itself to potential liability under the dangerous instrumentality doctrine by reducing insurance coverage requirements to amounts less than the statutory minimums. Nevertheless, the unambiguous text of the lease agreement in this case gives appellee the authority to do so. The lease agreement, by its text, authorizes appellee to disregard the requirements of the statute. This renders the agreement in this case analogous to that in Creative Leasing, which did not specify minimum insurance coverage. Similarly, the agreements in Davis and Bush Leasing authorized the lessee to procure an insurance policy not authorized by the statute, but which provided substantial liability coverage, perhaps even more, in some instances, than required by the statute. See Creative Leasing, 728 So.2d at 813; Davis, 664 So.2d at 1026-27; Bush Leasing, 634 So.2d at 741. This agreement, like those in the cases cited, authorizes a course of conduct that departs from the requirements of the statute. Appellee has argued it would never have taken such a step. Our review, however, is constrained by the text of the lease. In the absence of any contract language limiting the dealership's modification power solely to conform to future changes to the law, we cannot conclude that the lease agreement, as written, strictly complies with section 324.021(9)(b)(1), Florida Statutes (2006). We REVERSE the summary judgment for appellee and REMAND for further proceedings. BROWNING, C.J., and THOMAS, J., concur. | 10-30-2013 | [
"985 So. 2d 1147 (2008) Angela Louise EDWARDS, Personal Representative of the Estate of Sheena Nicole Edwards, Appellant, v. C.A. MOTORS, LTD., d/b/a \"Acura of Orange Park,\" Appellee. No. 1D07-4162. District Court of Appeal of Florida, First District. June 18, 2008. Rehearing Denied July 23, 2008. *1148 William J. Dorsey, Jacksonville, for Appellant. Frank W. Hession and Robert Guild, Jacksonville, for Appellee. KAHN, J. Twenty-year-old Sheena Nicole Edwards and her unborn son sustained fatal injuries when an Acura MDX driven by Rosemary Wills struck the vehicle in which Sheena was a passenger. Appellant Angela Louise Edwards, Sheena's mother, subsequently brought this wrongful death action against appellee C.A. Motors, owner of the auto dealership that leased the accident vehicle to Ms. Wills.",
"Ms. Edwards now appeals a summary judgment for appellee, founded on the trial court's determination that appellee was immunized from suit because the lease agreement complied with Florida law regarding minimum insurance requirements for long-term leases. For the reasons that follow, we reverse. BACKGROUND Ms. Wills' 48-month lease of the accident vehicle, an Acura MDX, began May 18, 2002. The lease agreement obligated Ms. Wills to procure an auto insurance policy with coverage providing the following minimum limits: $100,000 for bodily injuries to any one person, $300,000 for bodily injuries for any one accident, and $50,000 for property damage. Significant here, the agreement also provided: \"Lessor may change the amounts of required insurance.\" The parties do not dispute that Ms. Wills obtained the required coverage and her insurance policy was valid and in effect at the time of the accident. In its answer to Ms. Edwards' suit, C.A. Motors raised the affirmative defense that recovery is barred by section 324.021(9)(b), Florida Statutes (2006).",
"The statute immunizes a vehicle lessor from liability for damages caused by a lessee's negligence so long as the lessee has obtained bodily injury coverage of at least $100,000 per person and $300,000 per accident, and provided that the lease term is one year or longer. Ms. Edwards argued in response that the lease provision reserving to appellee the right to \"change the amounts of required insurance\" did not strictly comply with the statute and rendered the statutory immunity inapplicable. The trial court granted final summary judgment for the dealership, having determined that Ms. Wills' lease strictly complied with the statute because it \"contain[ed] specific references to the required amounts of insurance\" and \"[did] not allow[ ] for a change below the minimum statutory requirements.\"",
"Appellant now seeks review. ANALYSIS Florida courts established as an element of our common law, and long adhered to the rule, that the owner of a dangerous instrumentality is vicariously liable for damages caused by another person's use of *1149 the property. See S. Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629, 631 (1920) (quoting Pollock, Law of Torts 506). The supreme court in Anderson held that the owner of an automobile a \"highly dangerous agency\" must be \"liable for any injury which might be committed through [a permissive user's] negligence.\"",
"Id. at 636. In 1959, the supreme court extended the doctrine of dangerous instrumentalities to cover rented automobiles. Susco Car Rental Sys. of Fla. v. Leonard, 112 So. 2d 832, 837 (Fla.1959) (noting \"the assumption that an owner cannot deliver a vehicle into the hands of another without assuming, or continuing, his full responsibility to the public\"). In 1986, however, the Legislature crafted a statutory exception to the dangerous instrumentality doctrine for title owners of vehicles on long-term lease. See generally Ady v. Am. Honda Fin.",
"Corp., 675 So. 2d 577, 580 (Fla.1996) (discussing history of statutory exception to dangerous instrumentality doctrine). Beginning in 1987, the presently numbered section 324.021(9)(b), Florida Statutes, broadly limited vehicle lessors' liability in cases involving long-term leases where lessees procure their own insurance coverage. The present version of the statute provides in relevant part: The lessor, under an agreement to lease a motor vehicle for 1 year or longer which requires the lessee to obtain insurance acceptable to the lessor which contains limits not less than $100,000/$300,000 bodily injury liability and $50,000 property damage liability or not less than $500,000 combined property damage liability and bodily injury liability, shall not be deemed the owner of said motor vehicle for the purpose of determining financial responsibility for the operation of said motor vehicle or for the acts of the operator in connection therewith; further, this subparagraph shall be applicable so long as the insurance meeting these requirements is in effect.",
"The insurance meeting such requirements may be obtained by the lessor or lessee, provided, if such insurance is obtained by the lessor, the combined coverage for bodily injury liability and property damage liability shall contain limits of not less than $1 million and may be provided by a lessor's blanket policy. § 324.021(9)(b)(1), Fla. Stat. (2006). Because the statute is in derogation of the common law rule imposing vicarious liability, the lease agreement must strictly comply with the statute for C.A. Motors to claim protection as a non-owner of the accident vehicle for the purpose of determining liability. See Ady, 675 So.2d at 580 (holding that \"there must be strict compliance with the express provisions of section 324.021(9)(b) before a title owner of a motor vehicle can receive the benefits of this statutory exception to the dangerous instrumentality doctrine\"); see generally Fla. Steel Corp. v. Adaptable Devs., Inc., 503 So. 2d 1232, 1234 (Fla.1986) (\"It is a rule of statutory construction that any statute in derogation of the common law requires strict compliance with its provisions by one seeking to avail himself of its benefits. \"); Carlile v. Game & Fresh Water Fish Comm'n, 354 So.",
"2d 362, 364 (Fla. 1977) (explaining that statutes in derogation of common law must be strictly construed). The case law holds that a lease agreement which, by its text, allows either party to abrogate the statutorily required insurance does not strictly comply with the statute. In Rodriguez-Cespedes v. Creative Leasing, Inc., the Third District determined that a lease agreement failed strictly to comply because it \"provided only that [the lessee] was to procure the *1150 insurance required under the lease. Neither the lease agreement, the vehicle lease order, the business use form, nor the insurance certification contained the 100/300/50 insurance requirement.\" 728 So. 2d 811, 813 (Fla. 3d DCA 1999). Because the agreement did not, as the statute mandates, require specific policy limits, the court concluded that the lessor could not escape liability for damages due to the lessee's negligence, even though, \"some months\" before the accident that gave rise to the lawsuit, the lessee \"had secured a liability policy with 100/300/50 coverage.\" Id. A lease requiring the lessee to obtain either (a) $100,000/$300,000/$50,000 bodily injury and property coverage or (b) \"a combined single limit of $300,000 for bodily injuries and property damage\" similarly did not comply with a prior version of the statute, which omitted the alternative in the present version permitting a lessee to obtain a policy covering bodily injuries and property damage.",
"Gen. Motors Acceptance Corp. v. Davis, 664 So. 2d 1025, 1026-28 (Fla. 2d DCA 1995) (construing § 324.021(9)(b), Fla. Stat. (1993)); accord Bush Leasing, Inc. v. Gallo, 634 So. 2d 737, 741 (Fla. 1st DCA 1994) (holding that lease agreement requiring single-limit coverage of $500,000 did not strictly comply with then-effective version of statute, which omitted reference to single-limit policies). Here, the lease agreement properly tracked the statute's requirements of minimum coverage. The agreement went beyond that, however, and reserved to appellee, the lessor, the unilateral right to \"change the amounts of required insurance,\" without imposing any standards governing appellee's discretion to modify the insurance requirements. Perhaps only an unscrupulous or unwise lessor would expose itself to potential liability under the dangerous instrumentality doctrine by reducing insurance coverage requirements to amounts less than the statutory minimums. Nevertheless, the unambiguous text of the lease agreement in this case gives appellee the authority to do so. The lease agreement, by its text, authorizes appellee to disregard the requirements of the statute.",
"This renders the agreement in this case analogous to that in Creative Leasing, which did not specify minimum insurance coverage. Similarly, the agreements in Davis and Bush Leasing authorized the lessee to procure an insurance policy not authorized by the statute, but which provided substantial liability coverage, perhaps even more, in some instances, than required by the statute. See Creative Leasing, 728 So.2d at 813; Davis, 664 So.2d at 1026-27; Bush Leasing, 634 So.2d at 741. This agreement, like those in the cases cited, authorizes a course of conduct that departs from the requirements of the statute. Appellee has argued it would never have taken such a step. Our review, however, is constrained by the text of the lease. In the absence of any contract language limiting the dealership's modification power solely to conform to future changes to the law, we cannot conclude that the lease agreement, as written, strictly complies with section 324.021(9)(b)(1), Florida Statutes (2006).",
"We REVERSE the summary judgment for appellee and REMAND for further proceedings. BROWNING, C.J., and THOMAS, J., concur."
] | https://www.courtlistener.com/api/rest/v3/opinions/1664031/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 21 2016 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ANDREW G. CLARK, No. 14-35622
Plaintiff-Appellant, D.C. No. 6:13-cv-01546-AA
v. MEMORANDUM* WELLS FARGO BANK, NA; et al.,
Defendants-Appellees.
Appeal from the United States District Court for the District of Oregon Ann L. Aiken, District Judge, Presiding
Submitted September 13, 2016**
Before: HAWKINS, N.R. SMITH, and HURWITZ, Circuit Judges.
Andrew G. Clark appeals pro se from the district court’s judgment
dismissing his action alleging federal and state law claims. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo a dismissal for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6), Eclectic Prop. E., LLC v.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Marcus & Millichap Co., 751 F.3d 990, 995 (9th Cir. 2014), and we affirm.
The district court properly dismissed Clark’s Racketeer Influenced and
Corrupt Organizations Act claims because Clark failed to allege facts sufficient to
show a predicate act of racketeering activity. See 18 U.S.C. § 1961(1); Lacey v.
Maricopa Cty., 693 F.3d 896, 939 (9th Cir. 2012) (plaintiff’s “vague allegations
with no factual support that the defendants engaged in any of the requisite
predicate crimes” were insufficient to survive a motion to dismiss).
The district court properly dismissed Clark’s 42 U.S.C. § 1983 claims
because Clark failed to allege facts sufficient to show the requisite state action.
See Johnson v. Knowles, 113 F.3d 1114, 1118-20 (9th Cir. 1997) (§ 1983 claims
failed where plaintiffs did not show the action of a private individual amounted to
state action).
The district court properly dismissed Clark’s allegations of OSHA violations
because OSHA does not provide a private right of action. See 29 U.S.C.
§ 653(b)(4).
The district court properly dismissed Clark’s defamation claims because the
alleged defamatory statements were either made in the context of judicial
proceedings or were published by Clark on his public websites. See Wallulis v.
2 14-35622 Dymowski, 918 P.2d 755, 761 (Or. 1996) (a defamation claim is barred by an
absolute privilege for statements made as part of judicial proceedings or that are
consented to).
The district court properly dismissed Clark’s negligence claim because
defendants did not have a duty to further investigate Clark’s conduct before
complaining to the police. See Brown v. Far W. Fed. Sav. & Loan Ass’n, 674
P.2d 1183, 1186-87 (Or. 1984) (public policy considerations preclude the
imposition of a duty on citizens to investigate further before reporting crime or
instigating an arrest).
We reject as without merit Clark’s contentions that defendants committed
fraud on the court.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
All pending motions are denied.
AFFIRMED.
3 14-35622 | 09-21-2016 | [
"NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 21 2016 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ANDREW G. CLARK, No. 14-35622 Plaintiff-Appellant, D.C. No. 6:13-cv-01546-AA v. MEMORANDUM* WELLS FARGO BANK, NA; et al., Defendants-Appellees. Appeal from the United States District Court for the District of Oregon Ann L. Aiken, District Judge, Presiding Submitted September 13, 2016** Before: HAWKINS, N.R. SMITH, and HURWITZ, Circuit Judges. Andrew G. Clark appeals pro se from the district court’s judgment dismissing his action alleging federal and state law claims.",
"We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), Eclectic Prop. E., LLC v. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Marcus & Millichap Co., 751 F.3d 990, 995 (9th Cir. 2014), and we affirm. The district court properly dismissed Clark’s Racketeer Influenced and Corrupt Organizations Act claims because Clark failed to allege facts sufficient to show a predicate act of racketeering activity. See 18 U.S.C. § 1961(1); Lacey v. Maricopa Cty., 693 F.3d 896, 939 (9th Cir.",
"2012) (plaintiff’s “vague allegations with no factual support that the defendants engaged in any of the requisite predicate crimes” were insufficient to survive a motion to dismiss). The district court properly dismissed Clark’s 42 U.S.C. § 1983 claims because Clark failed to allege facts sufficient to show the requisite state action. See Johnson v. Knowles, 113 F.3d 1114, 1118-20 (9th Cir. 1997) (§ 1983 claims failed where plaintiffs did not show the action of a private individual amounted to state action). The district court properly dismissed Clark’s allegations of OSHA violations because OSHA does not provide a private right of action. See 29 U.S.C. § 653(b)(4). The district court properly dismissed Clark’s defamation claims because the alleged defamatory statements were either made in the context of judicial proceedings or were published by Clark on his public websites. See Wallulis v. 2 14-35622 Dymowski, 918 P.2d 755, 761 (Or.",
"1996) (a defamation claim is barred by an absolute privilege for statements made as part of judicial proceedings or that are consented to). The district court properly dismissed Clark’s negligence claim because defendants did not have a duty to further investigate Clark’s conduct before complaining to the police. See Brown v. Far W. Fed. Sav. & Loan Ass’n, 674 P.2d 1183, 1186-87 (Or. 1984) (public policy considerations preclude the imposition of a duty on citizens to investigate further before reporting crime or instigating an arrest). We reject as without merit Clark’s contentions that defendants committed fraud on the court. We do not consider matters not specifically and distinctly raised and argued in the opening brief, or arguments and allegations raised for the first time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).",
"All pending motions are denied. AFFIRMED. 3 14-35622"
] | https://www.courtlistener.com/api/rest/v3/opinions/4035723/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
The objection to the form of action might have been obviated at the trial by an amendment of the declaration, adding *Page 345 a new count in trespass. Stebbins v. L. Ins. Co., 59 N.H. 143. And as the amendment, if made before the trial, would not have affected the trial or the verdict, it may be made now without disturbing the verdict. Roulo v. Valcour, 58 N.H. 347. It does not appear to be necessary to inquire whether case, or trespass, is the right form of action. The question put to the plaintiff's husband was asked for the purpose of disparaging his credibility. How far justice required the cross-examination should be allowed to go in that direction was a question of fact to be determined at the trial term. Gutterson v. Morse, 58 N.H. 165. When the amendment is made, there will be. Judgment on the verdict. ALLEN, J., did not sit: the others concurred. | 07-05-2016 | [
"The objection to the form of action might have been obviated at the trial by an amendment of the declaration, adding *Page 345 a new count in trespass. Stebbins v. L. Ins. Co., 59 N.H. 143. And as the amendment, if made before the trial, would not have affected the trial or the verdict, it may be made now without disturbing the verdict. Roulo v. Valcour, 58 N.H. 347. It does not appear to be necessary to inquire whether case, or trespass, is the right form of action. The question put to the plaintiff's husband was asked for the purpose of disparaging his credibility. How far justice required the cross-examination should be allowed to go in that direction was a question of fact to be determined at the trial term. Gutterson v. Morse, 58 N.H. 165. When the amendment is made, there will be. Judgment on the verdict.",
"ALLEN, J., did not sit: the others concurred."
] | https://www.courtlistener.com/api/rest/v3/opinions/3550726/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Title: From Thomas Jefferson to Albert Gallatin, 16 October 1808 From: Jefferson, Thomas To: Gallatin, Albert
Th Jefferson to mr Gallatin [16 Oct. 1808.] Collector of Detroit. I think the liberal construction of the letter of May 2. as explained in the Collector’s letter, had better be permitted to go on, sub silentio, as the contrary would be vexatious & unprofitable, and might excite a spirit of counter-vexation in the English. McKim’s application is inadmissible, and Genl. Smith would be far from himself approving such a departure from rule, if explained to him. Massey’s commission. a half sighted lawyer might perhaps say that a commission signed with a blank for the name, afterwards filled up was a nullity; because in legal instruments, any change in a material part of a bond, deed &c. after sealing & delivery, nullifies it. but I am not certain whether there are not cases, even in ordinary transactions at law, where it is otherwise e.g. a power of Attorney sent to a distance with a blank for the name a blank commission, blank subpoena &c. but in matters of government there can be no question but that the commission sealed & signed with a blank for the name, date, place &c. is good: because government can in no country be carried on without it. the most vital proceedings of our own government would become null were such a construction to prevail, and the argumentum ab inconvenienti, which is one of the great foundations of the law, will undoubtedly sustain the practice, and sanction it by the maxim ‘qui facit per alterum, facit per se’. I could not therefore give the countenance of the government to so impracticable a construction, by issuing a new commission. Affectte. salutns. | 10-16-1808 | [
"Title: From Thomas Jefferson to Albert Gallatin, 16 October 1808 From: Jefferson, Thomas To: Gallatin, Albert Th Jefferson to mr Gallatin [16 Oct. 1808.] Collector of Detroit. I think the liberal construction of the letter of May 2. as explained in the Collector’s letter, had better be permitted to go on, sub silentio, as the contrary would be vexatious & unprofitable, and might excite a spirit of counter-vexation in the English. McKim’s application is inadmissible, and Genl. Smith would be far from himself approving such a departure from rule, if explained to him. Massey’s commission.",
"a half sighted lawyer might perhaps say that a commission signed with a blank for the name, afterwards filled up was a nullity; because in legal instruments, any change in a material part of a bond, deed &c. after sealing & delivery, nullifies it. but I am not certain whether there are not cases, even in ordinary transactions at law, where it is otherwise e.g. a power of Attorney sent to a distance with a blank for the name a blank commission, blank subpoena &c. but in matters of government there can be no question but that the commission sealed & signed with a blank for the name, date, place &c. is good: because government can in no country be carried on without it. the most vital proceedings of our own government would become null were such a construction to prevail, and the argumentum ab inconvenienti, which is one of the great foundations of the law, will undoubtedly sustain the practice, and sanction it by the maxim ‘qui facit per alterum, facit per se’. I could not therefore give the countenance of the government to so impracticable a construction, by issuing a new commission. Affectte.",
"salutns."
] | https://founders.archives.gov/API/docdata/Jefferson/99-01-02-8874 | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Bell and Hutcheson, JJ., dissenting. It is our opinion that *287the caveat as amended alleged sufficient facts to show a mistake of fact by the testator as to the existence and conduct of caveators, who were heirs at law. We are also of the opinion that the charge to the jury was erroneous in that it would have permitted the propounder to obtain a judgment probating the will merely upon a presumption of sanity, and without requiring affirmative proof that the testatrix was apparently of sound mind. | 01-11-2022 | [
"Bell and Hutcheson, JJ., dissenting. It is our opinion that *287the caveat as amended alleged sufficient facts to show a mistake of fact by the testator as to the existence and conduct of caveators, who were heirs at law. We are also of the opinion that the charge to the jury was erroneous in that it would have permitted the propounder to obtain a judgment probating the will merely upon a presumption of sanity, and without requiring affirmative proof that the testatrix was apparently of sound mind."
] | https://www.courtlistener.com/api/rest/v3/opinions/5589984/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
UNITED HYDRAULIC SERVICESUnited Hydraulic Services,Inc.chidPerry W`HisandJames O. Mills.Cases 9-CA-17643, 9-CA-17962, and 9-CA-191668 January 1987SUPPLEMENTAL DECISION ANDORDERBY CHAIRMAN DOTSON ANDMEMBERSBABSON AND STEPHENSOn 29 June 1984 the National Labor RelationsBoard issued a Decision and Order' in this pro-ceeding in which the Board, inter alia, ordered theRespondent to reinstate and to make whole the dis-criminatees for any loss of pay suffered by reasonof the Respondent's discrimination against them.On 21 January 1986 the United States Court of Ap-peals for the Fourth Circuit entered its judgmentenforcing the Board's Order. 2A controversyhaving arisen over the amount of backpay dueunder the Board's Order, as enforced by the court,the Regional Director for Region 9 about 3 April1986 issued a backpay specification and notice ofhearing alleging the amounts of backpay due, thediiscriminatees under the Board's Order. Subse-quently, the Respondent filed an answer to thebackpay specification.Thereafter, on 9 May 1986 the General Counselfiled with the Board in Washington, D.C., a motionto Strike Portions of Respondent's Answer andMotion for Summary Judgment. On 21 May 1986the Board issued an Order Transferring Proceedingto the Board and Notice to Show Cause why theGeneral Counsel's motion should not be granted.On about 2 June 1986 the Respondent filed a docu-ment with the Board and requested that the docu-ment be incorporated by reference into its answer.The National Labor Relations Board has delegat-ed its authority in this proceeding to a three-member panel.On the entire record in the proceeding, theBoard makes the followingRuling on the Motion for Summary JudgmentSection 102.54 of the Board's Rules and Regula-tions provides in pertinent part:(b)... The answer to the specification shall beinwriting .... The respondent shall specifi-cally admit, deny, or explain each and everyallegation of the specification, unless the re-spondent is without knowledge, in which casethe respondent shall so state, such statementoperating as a denial. Denials shall fairly meet1 271 NLRB 107.2 755 F.2d 955.645the substance of the allegations of the specifi-cation denied.When a respondent intends todeny only part of anallegation, the respondentshall specify so much of it as is true and shalldeny only the remainder. As to all matterswithin the knowledge of the respondent, in-cluding but not limited to the various factorsentering into the computation of gross back-pay, a general denial shall not suffice....(c)... If the respondentfilesan answer to thespecification but fails to deny any allegation ofthe specification in the manner required bysubsection (b) of this section, and the failure soto deny is not adequately explained, such alle-gation shall be deemed to be admitted to betrue, and may be so, found by the Board with-out the taking of evidence supporting such al-legation, and the respondent shall be precludedfrom introducing any evidence, controvertingsaid allegation.The backpay specification, issued and served ontheRespondent about 3 April 1986, specificallystatesthat the Respondent shall, within 15 daysfrom the date of the specification, file with the Re-gionalDirector for Region 9 an answer to thespecification and that, if the answer fails to denythe allegations of the specification in the mannerrequired ' under the Board's Rules and Regulationsand the failure to do so is not adequately explained,such allegations shall be deemed to be admitted tobe true and the Respondent shall be precludedfrom introducing any evidence controverting them.In the instant case, the Respondent filed ananswer to the backpay specification which admit-ted all of the backpay specification's allegationswith respect to four of the six discriminatees.3 Ac-cordingly,we,, shall grant the General Counsel'sMotion for Summary Judgment as to those fourdiscriminatees. ,Regarding the other two discrimina-tees, the answer admitted certain allegations anddenied others. Specifically, with respect to discri-minatee PerryWilliams, the Respondent deniedthat the backpay period ended on the date allegedby the General Counsel because, according to theRespondent,Williams was offered reinstatement atleast 2 weeks prior to the date he returned towork. The Respondent also disputed the GeneralCounsel's computation'of gross backpay for a partof the backpay period, alleging that Williams "didnot possess the skills, training, and experience nec-essary to perform the same work performed bythose individuals utilized by the Board as `repre-3The backpayspecification allegedthat no backpaywas due one ofthe four discriminatees,Ricky Tackett.282 NLRB No. 95 646DECISIONS OF NATIONAL LABOR RELATIONS BOARDsentative replacement employees doing comparablework."' The Respondent further denied that Wil-liamswould have received the overtime or thewage increase alleged by the General Counsel. Inaddition, theRespondent's answer disputed theGeneral Counsel's. computation of Williams'interimearnings.Withrespect to discriminatee James Mills, theRespondent's answer denied the allegations con-tained inthe backpay specification only withregard toMills' interim earnings.Finally, the answer stated that the Respondentwould not introduce evidence at the hearing thenscheduled and concluded:[I]n support of its answer to the backpay speci-fication,United Hydraulic Services, Inc. re-spectfully requests that the Board consider allmaterials in its possession including,but notlimited to, those documents provided to theRegionalDirector and Compliance Officer ofRegion 9 by counsel for the respondent whichmaterials include documents which United Hy-draulic Services, Inc. believes support its con-tentions.As noted above, after the Board issued the OrderTransferring Proceeding to the Board and Noticeto Show Cause why the General Counsel's Motionfor Summary Judgment should not be granted, theRespondent filed a document with the Board andrequested that the document be incorporated byreference into the answer.We construe the docu-ment to be an amendment to the answer permissi-ble under Section 102.57 of the Board's Rules andRegulations.In addition to making various argu-ments and assertions regarding the interim earningsof Mills and Williams, the amended answer statesthat the Respondent "has instructed its counsel toaggressively defend any back-pay award."The General Counsel's motion to strike requeststhe Board to strike from the original answer theabove-quoted sentence, which requested the Boardto consider documents previously submitted to thecompliance officer.We shall deny the motion tostrike that portion of the answer, in' view of ourfinding that the aforementioned document is anamendment to the answer. Further, in light of thestatement in the amended answer indicating thatthe Respondent intends to "aggressively defend" itsposition in this backpay proceeding, we find thatthe Respondent has changed its position with re-spect to whether it will appear at any hearing inthismatter and that it will present its own evi-dence.With respect to the Motion for Summary Judg-ment,we agree with the General Counsel thatthere are no issues remaining with respect to thegrossbackpay of discriminateeMills.Thus, theanswer, as amended, does not deny any of the alle-gations contained in the backpay specification re-gardingMills'grossbackpay.As for the grossbackpay alleged in the backpay specification fordiscriminateeWilliams, we fmd that the only alle-gation denied with the specificity required by Sec-tion 102.54(b) of the Board's Rules and Regulationsis the date on which the backpay period ended.Accordingly, we will grant the General Counsel'sMotion for Summary Judgment insofar as it con-cerns the gross backpay of Mills and all of the alle-gations regarding Williams' backpay except for thealleged date on which the backpay period ended.We deny the General Counsel's Motion for Sum-mary Judgment insofar as it concerns the interimearnings of Mills and Williams. It is well settledthat although a general denial does not constitute asufficient answer to the gross backpay allegationsof a backpay specification,a generaldenial of thebackpay specification's- allegations regarding inter-im earnings does suffice to place in issue all ques-tions concerning interim earnings.In view of ' theRespondent's amendment to the part of the originalanswer which stated that it would not appear atthe hearing, we find that the Respondent shouldhave an opportunity to present evidence regardingthe interim earnings of Mills and Williams.ORDERThe National Labor Relations Board orders thatthe Respondent, United Hydraulic Services, Inc.,Micco,West Virginia, its officers, agents, succes-sors, and assigns, shall make whole Ricky Bradley,Melvin Lowe, and Charles Smith by paying themthe amounts of backpay set forth in the backpayspecification, plus interest at the appropriate rateminus taxwithholdings required by Federal andstate laws, subject to the accrual of additional in-terest until payment is effected.IT IS FURTHER ORDERED that the General Coun-sel'sMotion for Summary Judgment is grantedwith respect to the gross backpay of James Mills asset forth in the backpay specification, and with re-spect to the gross backpay allegations regardingPerryWilliams except for the alleged date onwhich his backpay period ended.IT IS FURTHER ORDERED that this proceeding isremanded to the Regional Director for Region 9for the purpose of issuing a notice of hearing andscheduling such hearing before an administrativelaw judge, which hearing shall be limited to takingevidence concerning the interim earnings of JamesMillsand Perry Williams, and the date on whichWilliams' backpay period ended. UNITED HYDRAULIC SERVICES647IT ISFURTHER ORDERED that'he" admiiuistrafivethe record `evidence.Following service of thelaw judge shall prepare and serve on the parties aadministrative law judge's decision on the parties,supplemental decision containing findings of fact,the provisions of Section102.46 of,the Board'sconclusions of law,and recommendations based onRules shall be applicable. | [
"UNITED HYDRAULIC SERVICESUnited Hydraulic Services,Inc.chidPerry W`HisandJames O. Mills.Cases 9-CA-17643, 9-CA-17962, and 9-CA-191668 January 1987SUPPLEMENTAL DECISION ANDORDERBY CHAIRMAN DOTSON ANDMEMBERSBABSON AND STEPHENSOn 29 June 1984 the National Labor RelationsBoard issued a Decision and Order' in this pro-ceeding in which the Board, inter alia, ordered theRespondent to reinstate and to make whole the dis-criminatees for any loss of pay suffered by reasonof the Respondent's discrimination against them.On 21 January 1986 the United States Court of Ap-peals for the Fourth Circuit entered its judgmentenforcing the Board's Order. 2A controversyhaving arisen over the amount of backpay dueunder the Board's Order, as enforced by the court,the Regional Director for Region 9 about 3 April1986 issued a backpay specification and notice ofhearing alleging the amounts of backpay due, thediiscriminatees under the Board's Order.",
"Subse-quently, the Respondent filed an answer to thebackpay specification.Thereafter, on 9 May 1986 the General Counselfiled with the Board in Washington, D.C., a motionto Strike Portions of Respondent's Answer andMotion for Summary Judgment. On 21 May 1986the Board issued an Order Transferring Proceedingto the Board and Notice to Show Cause why theGeneral Counsel's motion should not be granted.On about 2 June 1986 the Respondent filed a docu-ment with the Board and requested that the docu-ment be incorporated by reference into its answer.The National Labor Relations Board has delegat-ed its authority in this proceeding to a three-member panel.On the entire record in the proceeding, theBoard makes the followingRuling on the Motion for Summary JudgmentSection 102.54 of the Board's Rules and Regula-tions provides in pertinent part:(b)... The answer to the specification shall beinwriting .... The respondent shall specifi-cally admit, deny, or explain each and everyallegation of the specification, unless the re-spondent is without knowledge, in which casethe respondent shall so state, such statementoperating as a denial.",
"Denials shall fairly meet1 271 NLRB 107.2 755 F.2d 955.645the substance of the allegations of the specifi-cation denied.When a respondent intends todeny only part of anallegation, the respondentshall specify so much of it as is true and shalldeny only the remainder. As to all matterswithin the knowledge of the respondent, in-cluding but not limited to the various factorsentering into the computation of gross back-pay, a general denial shall not suffice....(c)... If the respondentfilesan answer to thespecification but fails to deny any allegation ofthe specification in the manner required bysubsection (b) of this section, and the failure soto deny is not adequately explained, such alle-gation shall be deemed to be admitted to betrue, and may be so, found by the Board with-out the taking of evidence supporting such al-legation, and the respondent shall be precludedfrom introducing any evidence, controvertingsaid allegation.The backpay specification, issued and served ontheRespondent about 3 April 1986, specificallystatesthat the Respondent shall, within 15 daysfrom the date of the specification, file with the Re-gionalDirector for Region 9 an answer to thespecification and that, if the answer fails to denythe allegations of the specification in the mannerrequired ' under the Board's Rules and Regulationsand the failure to do so is not adequately explained,such allegations shall be deemed to be admitted tobe true and the Respondent shall be precludedfrom introducing any evidence controverting them.In the instant case, the Respondent filed ananswer to the backpay specification which admit-ted all of the backpay specification's allegationswith respect to four of the six discriminatees.3 Ac-cordingly,we,, shall grant the General Counsel'sMotion for Summary Judgment as to those fourdiscriminatees.",
",Regarding the other two discrimina-tees, the answer admitted certain allegations anddenied others. Specifically, with respect to discri-minatee PerryWilliams, the Respondent deniedthat the backpay period ended on the date allegedby the General Counsel because, according to theRespondent,Williams was offered reinstatement atleast 2 weeks prior to the date he returned towork. The Respondent also disputed the GeneralCounsel's computation'of gross backpay for a partof the backpay period, alleging that Williams \"didnot possess the skills, training, and experience nec-essary to perform the same work performed bythose individuals utilized by the Board as `repre-3The backpayspecification allegedthat no backpaywas due one ofthe four discriminatees,Ricky Tackett.282 NLRB No. 95 646DECISIONS OF NATIONAL LABOR RELATIONS BOARDsentative replacement employees doing comparablework.\"' The Respondent further denied that Wil-liamswould have received the overtime or thewage increase alleged by the General Counsel.",
"Inaddition, theRespondent's answer disputed theGeneral Counsel's. computation of Williams'interimearnings.Withrespect to discriminatee James Mills, theRespondent's answer denied the allegations con-tained inthe backpay specification only withregard toMills' interim earnings.Finally, the answer stated that the Respondentwould not introduce evidence at the hearing thenscheduled and concluded:[I]n support of its answer to the backpay speci-fication,United Hydraulic Services, Inc. re-spectfully requests that the Board consider allmaterials in its possession including,but notlimited to, those documents provided to theRegionalDirector and Compliance Officer ofRegion 9 by counsel for the respondent whichmaterials include documents which United Hy-draulic Services, Inc. believes support its con-tentions.As noted above, after the Board issued the OrderTransferring Proceeding to the Board and Noticeto Show Cause why the General Counsel's Motionfor Summary Judgment should not be granted, theRespondent filed a document with the Board andrequested that the document be incorporated byreference into the answer.We construe the docu-ment to be an amendment to the answer permissi-ble under Section 102.57 of the Board's Rules andRegulations.In addition to making various argu-ments and assertions regarding the interim earningsof Mills and Williams, the amended answer statesthat the Respondent \"has instructed its counsel toaggressively defend any back-pay award.",
"\"The General Counsel's motion to strike requeststhe Board to strike from the original answer theabove-quoted sentence, which requested the Boardto consider documents previously submitted to thecompliance officer.We shall deny the motion tostrike that portion of the answer, in' view of ourfinding that the aforementioned document is anamendment to the answer. Further, in light of thestatement in the amended answer indicating thatthe Respondent intends to \"aggressively defend\" itsposition in this backpay proceeding, we find thatthe Respondent has changed its position with re-spect to whether it will appear at any hearing inthismatter and that it will present its own evi-dence.With respect to the Motion for Summary Judg-ment,we agree with the General Counsel thatthere are no issues remaining with respect to thegrossbackpay of discriminateeMills.Thus, theanswer, as amended, does not deny any of the alle-gations contained in the backpay specification re-gardingMills'grossbackpay.As for the grossbackpay alleged in the backpay specification fordiscriminateeWilliams, we fmd that the only alle-gation denied with the specificity required by Sec-tion 102.54(b) of the Board's Rules and Regulationsis the date on which the backpay period ended.Accordingly, we will grant the General Counsel'sMotion for Summary Judgment insofar as it con-cerns the gross backpay of Mills and all of the alle-gations regarding Williams' backpay except for thealleged date on which the backpay period ended.We deny the General Counsel's Motion for Sum-mary Judgment insofar as it concerns the interimearnings of Mills and Williams.",
"It is well settledthat although a general denial does not constitute asufficient answer to the gross backpay allegationsof a backpay specification,a generaldenial of thebackpay specification's- allegations regarding inter-im earnings does suffice to place in issue all ques-tions concerning interim earnings.In view of ' theRespondent's amendment to the part of the originalanswer which stated that it would not appear atthe hearing, we find that the Respondent shouldhave an opportunity to present evidence regardingthe interim earnings of Mills and Williams.ORDERThe National Labor Relations Board orders thatthe Respondent, United Hydraulic Services, Inc.,Micco,West Virginia, its officers, agents, succes-sors, and assigns, shall make whole Ricky Bradley,Melvin Lowe, and Charles Smith by paying themthe amounts of backpay set forth in the backpayspecification, plus interest at the appropriate rateminus taxwithholdings required by Federal andstate laws, subject to the accrual of additional in-terest until payment is effected.IT IS FURTHER ORDERED that the General Coun-sel'sMotion for Summary Judgment is grantedwith respect to the gross backpay of James Mills asset forth in the backpay specification, and with re-spect to the gross backpay allegations regardingPerryWilliams except for the alleged date onwhich his backpay period ended.IT IS FURTHER ORDERED that this proceeding isremanded to the Regional Director for Region 9for the purpose of issuing a notice of hearing andscheduling such hearing before an administrativelaw judge, which hearing shall be limited to takingevidence concerning the interim earnings of JamesMillsand Perry Williams, and the date on whichWilliams' backpay period ended. UNITED HYDRAULIC SERVICES647IT ISFURTHER ORDERED that'he\" admiiuistrafivethe record `evidence.Following service of thelaw judge shall prepare and serve on the parties aadministrative law judge's decision on the parties,supplemental decision containing findings of fact,the provisions of Section102.46 of,the Board'sconclusions of law,and recommendations based onRules shall be applicable."
] | https://www.nlrb.gov/cases-decisions/decisions/board-decisions | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
|
FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________
No. 1D17-4091 _____________________________
LUIS E. HERRERA,
Appellant,
v.
STATE OF FLORIDA,
Appellee. _____________________________
On appeal from the Circuit Court for Duval County. Marianne L. Aho, Judge.
September 14, 2018
PER CURIAM.
AFFIRMED.
WOLF, LEWIS, and ROWE, JJ., concur.
_____________________________
Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Andy Thomas, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant; Luis E. Herrera, pro se, Appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
2 | 09-14-2018 | [
"FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D17-4091 _____________________________ LUIS E. HERRERA, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Duval County. Marianne L. Aho, Judge. September 14, 2018 PER CURIAM. AFFIRMED. WOLF, LEWIS, and ROWE, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Andy Thomas, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant; Luis E. Herrera, pro se, Appellant. Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee. 2"
] | https://www.courtlistener.com/api/rest/v3/opinions/4312639/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Case: 1:18-cv-06967 Document #: 1-8 Filed: 10/17/18 Page 1 of 3 PageID #:47
EXHIBIT 8 Case: 1:18-cv-06967 Document #: 1-8 Filed: 10/17/18 Page 2 of 3 PageID #:48
Reg. No. 5,479,677 Life After Hate, Inc. (ILLINOIS not-for-profit corporation ) 917 W. Washington Blvd., Suite 212 Registered May 29, 2018 Chicago, ILLINOIS 60607
CLASS 41: Educational services, namely, providing classes, workshops, seminars and Int. Cl.: 41, 45 lectures in the nature of the teaching of counter racism and counter extremism in order to foster acceptance of all races, cultures, religions Service Mark FIRST USE 3-13-2015; IN COMMERCE 3-13-2015 Principal Register CLASS 45: Non-profit social services in the nature of social counseling, personal development counseling, personal improvement counseling and self-improvement counseling in the field of helping radicalized individuals to disengage from extremist movements; Non- profit social networking services in the field of helping radicalized individuals to disengage from extremist movements provided via a website; Providing supportive emotional counseling and emotional support to current and former hate group members and at-risk- youth to assist them in the process of de-radicalization
FIRST USE 3-13-2015; IN COMMERCE 3-13-2015
THE MARK CONSISTS OF STANDARD CHARACTERS WITHOUT CLAIM TO ANY PARTICULAR FONT STYLE, SIZE OR COLOR
SER. NO. 87-615,677, FILED 09-20-2017 Case: 1:18-cv-06967 Document #: 1-8 Filed: 10/17/18 Page 3 of 3 PageID #:49
REQUIREMENTS TO MAINTAIN YOUR FEDERAL TRADEMARK REGISTRATION WARNING: YOUR REGISTRATION WILL BE CANCELLED IF YOU DO NOT FILE THE DOCUMENTS BELOW DURING THE SPECIFIED TIME PERIODS.
Requirements in the First Ten Years* What and When to File:
First Filing Deadline: You must file a Declaration of Use (or Excusable Nonuse) between the 5th and 6th years after the registration date. See 15 U.S.C. §§1058, 1141k. If the declaration is accepted, the registration will continue in force for the remainder of the ten-year period, calculated from the registration date, unless cancelled by an order of the Commissioner for Trademarks or a federal court.
Second Filing Deadline: You must file a Declaration of Use (or Excusable Nonuse) and an Application for Renewal between the 9th and 10th years after the registration date.* See 15 U.S.C. §1059.
Requirements in Successive Ten-Year Periods* What and When to File:
You must file a Declaration of Use (or Excusable Nonuse) and an Application for Renewal between every 9th and 10th-year period, calculated from the registration date.*
Grace Period Filings*
The above documents will be accepted as timely if filed within six months after the deadlines listed above with the payment of an additional fee.
*ATTENTION MADRID PROTOCOL REGISTRANTS: The holder of an international registration with an extension of protection to the United States under the Madrid Protocol must timely file the Declarations of Use (or Excusable Nonuse) referenced above directly with the United States Patent and Trademark Office (USPTO). The time periods for filing are based on the U.S. registration date (not the international registration date). The deadlines and grace periods for the Declarations of Use (or Excusable Nonuse) are identical to those for nationally issued registrations. See 15 U.S.C. §§1058, 1141k. However, owners of international registrations do not file renewal applications at the USPTO. Instead, the holder must file a renewal of the underlying international registration at the International Bureau of the World Intellectual Property Organization, under Article 7 of the Madrid Protocol, before the expiration of each ten-year term of protection, calculated from the date of the international registration. See 15 U.S.C. §1141j. For more information and renewal forms for the international registration, see http://www.wipo.int/madrid/en/.
NOTE: Fees and requirements for maintaining registrations are subject to change. Please check the USPTO website for further information. With the exception of renewal applications for registered extensions of protection, you can file the registration maintenance documents referenced above online at h ttp://www.uspto.gov.
NOTE: A courtesy e-mail reminder of USPTO maintenance filing deadlines will be sent to trademark owners/holders who authorize e-mail communication and maintain a current e-mail address with the USPTO. To ensure that e-mail is authorized and your address is current, please use the Trademark Electronic Application System (TEAS) Correspondence Address and Change of Owner Address Forms available at http://www.uspto.gov.
Page: 2 of 2 / RN # 5479677 | 2018-10-17 | [
"Case: 1:18-cv-06967 Document #: 1-8 Filed: 10/17/18 Page 1 of 3 PageID #:47 EXHIBIT 8 Case: 1:18-cv-06967 Document #: 1-8 Filed: 10/17/18 Page 2 of 3 PageID #:48 Reg. No. 5,479,677 Life After Hate, Inc. (ILLINOIS not-for-profit corporation ) 917 W. Washington Blvd., Suite 212 Registered May 29, 2018 Chicago, ILLINOIS 60607 CLASS 41: Educational services, namely, providing classes, workshops, seminars and Int. Cl. : 41, 45 lectures in the nature of the teaching of counter racism and counter extremism in order to foster acceptance of all races, cultures, religions Service Mark FIRST USE 3-13-2015; IN COMMERCE 3-13-2015 Principal Register CLASS 45: Non-profit social services in the nature of social counseling, personal development counseling, personal improvement counseling and self-improvement counseling in the field of helping radicalized individuals to disengage from extremist movements; Non- profit social networking services in the field of helping radicalized individuals to disengage from extremist movements provided via a website; Providing supportive emotional counseling and emotional support to current and former hate group members and at-risk- youth to assist them in the process of de-radicalization FIRST USE 3-13-2015; IN COMMERCE 3-13-2015 THE MARK CONSISTS OF STANDARD CHARACTERS WITHOUT CLAIM TO ANY PARTICULAR FONT STYLE, SIZE OR COLOR SER.",
"NO. 87-615,677, FILED 09-20-2017 Case: 1:18-cv-06967 Document #: 1-8 Filed: 10/17/18 Page 3 of 3 PageID #:49 REQUIREMENTS TO MAINTAIN YOUR FEDERAL TRADEMARK REGISTRATION WARNING: YOUR REGISTRATION WILL BE CANCELLED IF YOU DO NOT FILE THE DOCUMENTS BELOW DURING THE SPECIFIED TIME PERIODS. Requirements in the First Ten Years* What and When to File: First Filing Deadline: You must file a Declaration of Use (or Excusable Nonuse) between the 5th and 6th years after the registration date. See 15 U.S.C. §§1058, 1141k. If the declaration is accepted, the registration will continue in force for the remainder of the ten-year period, calculated from the registration date, unless cancelled by an order of the Commissioner for Trademarks or a federal court.",
"Second Filing Deadline: You must file a Declaration of Use (or Excusable Nonuse) and an Application for Renewal between the 9th and 10th years after the registration date. * See 15 U.S.C. §1059. Requirements in Successive Ten-Year Periods* What and When to File: You must file a Declaration of Use (or Excusable Nonuse) and an Application for Renewal between every 9th and 10th-year period, calculated from the registration date. * Grace Period Filings* The above documents will be accepted as timely if filed within six months after the deadlines listed above with the payment of an additional fee. *ATTENTION MADRID PROTOCOL REGISTRANTS: The holder of an international registration with an extension of protection to the United States under the Madrid Protocol must timely file the Declarations of Use (or Excusable Nonuse) referenced above directly with the United States Patent and Trademark Office (USPTO). The time periods for filing are based on the U.S. registration date (not the international registration date). The deadlines and grace periods for the Declarations of Use (or Excusable Nonuse) are identical to those for nationally issued registrations.",
"See 15 U.S.C. §§1058, 1141k. However, owners of international registrations do not file renewal applications at the USPTO. Instead, the holder must file a renewal of the underlying international registration at the International Bureau of the World Intellectual Property Organization, under Article 7 of the Madrid Protocol, before the expiration of each ten-year term of protection, calculated from the date of the international registration. See 15 U.S.C. §1141j. For more information and renewal forms for the international registration, see http://www.wipo.int/madrid/en/. NOTE: Fees and requirements for maintaining registrations are subject to change. Please check the USPTO website for further information. With the exception of renewal applications for registered extensions of protection, you can file the registration maintenance documents referenced above online at h ttp://www.uspto.gov.",
"NOTE: A courtesy e-mail reminder of USPTO maintenance filing deadlines will be sent to trademark owners/holders who authorize e-mail communication and maintain a current e-mail address with the USPTO. To ensure that e-mail is authorized and your address is current, please use the Trademark Electronic Application System (TEAS) Correspondence Address and Change of Owner Address Forms available at http://www.uspto.gov. Page: 2 of 2 / RN # 5479677"
] | https://www.courtlistener.com/api/rest/v3/recap-documents/43165727/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
FOR PUBLICATION
ATTORNEYS FOR APPELLANT :
JEFFREY A. MODISETT
Attorney General of Indiana
RANDI F. ELFENBAUM
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
STATE OF INDIANA, )
)
Appellant-Plaintiff, )
)
vs. ) No. 92A05-9704-CR-160
)
MICHAEL L. GOBLE, )
)
Appellee-Defendant. )
APPEAL FROM THE WHITLEY SUPERIOR COURT
The Honorable John Boyce, Special Judge
Cause No. 92D01-9507-DF-389
October 29, 1999
OPINION - FOR PUBLICATION
RUCKER, Judge
The State of Indiana appeals the trial court's order granting Michael L. Goble's motion for discharge pursuant to Ind. Crim. Rule 4(C). (footnote: 1) We address the following restated issue: was the delay in bringing Goble to trial within one year attributable to the State. We conclude it was not and therefore reverse.
On July 26, 1995, the State charged Goble with resisting law enforcement as a Class D felony and mistreatment of a police dog as a Class A misdemeanor. At the initial hearing counsel was appointed for Goble, and trial was scheduled for November 30, 1995. Prior to trial, Goble filed a number of pro se pleadings including those entitled: "Demand Quash," "Habeas Corpus," "Motion For Recussal [sic]," "Notice of Misconduct," "Notice of Dismissal of the Public Defender for Cause," "Affidavit of Truth In Dismissal Of Terry Smith," and a document entitled "Titles of Nobility Amendment." See R. at 16, 24, 33, 34-53. Among other things, the various pleadings challenged the jurisdiction of Indiana courts to try Goble, questioned the authority and fairness of the trial judge, and attacked the competency of Goble's court appointed counsel. On the morning of trial, Goble began by addressing the court as follows: "[m]y name, my Christian Appelation [sic] sir is M-i-c-h-a-e-l as Michael and capital L-y-n-n Lynn is my Christian Appellation. My family name is Goble. I'm here in that capacity sui juris objecting to these proceedings." R. at 294. Over the next several minutes, as the trial judge attempted to explain the proceedings and what was about to occur, Goble interrupted on several occasions and generally disrupted the orderly process of the court. See R. at 274-318. The trial judge exercised extraordinary patience in dealing with Goble but ultimately found him in contempt of court:
Let the record reflect the following, Mr. Goble, please be quiet while I make the record here. This is Michael D. Rush, Judge of the Whitley Superior Court a duly constituted Court of the legislature of the State of Indiana. The conduct by the Defendant, Michael L. Goble, is determined by this Court to be in Direct Criminal contempt of this court's ability to conduct a hearing and to present to this Defendant a fair and appropriate jury trial by the laws and rules and procedures of the State of Indiana. The conduct which has occurred in this Court room in the presence of this Court is continual interruptions one after the other and directly affects this Court's ability to conduct appropriate proceedings under the law and rules of the State of Indiana in criminal cases. This conduct has taken place in my presence and in the presence of all persons who are in this Court room who the court will possibly call to make an affidavit as to the conduct that has taken place here in this Court room. I believe that Mr. Goble has committed acts of Criminal Contempt in the presence of this court that are done in defiance, disrespect of the lawful order of this court and the laws of the State of Indiana and the dignity of these proceedings.
R. at 318-19. The trial judge sentenced Goble to thirty days in jail. He also granted counsel's motion to withdraw his appearance. In addition, the trial judge recused himself and requested the appointment of a special judge. Acting on the request the supreme court entered an order appointing the Honorable John Boyce as special judge in this case on January 10, 1996. Thereafter Judge Boyce scheduled Goble's trial for July 19, 1996. On January 22, 1996, Goble, acting pro se , filed with the trial court a pleading entitled "Notice to the Supreme Court of Judicial Error and Hearing for Cause." R. at 144. As best we can discern, the pleading appears to challenge the supreme court's authority to appoint Judge Boyce. In any event, on July 5, 1996, again acting pro se , Goble filed a pleading requesting a pre-trial conference to "determine Jurisdiction or in the Alternative Discharge pursuant to Trial Rule 4 of Criminal Procedure." R. at 152. Prior to that date Goble had sent a letter to the trial judge requesting court appointed counsel. In response, the trial judge appointed counsel to represent Goble and scheduled a hearing date of July 19, 1996, to address the motion for discharge.
On July 16, 1996, counsel entered an appearance for Goble, moved to continue the previously scheduled trial date, and filed a motion for pre-trial conference. Accordingly the trial court vacated the trial date and scheduled a pre-trial conference for July 23, 1996. Pre-trial conference was held as scheduled. Goble did not appear but was represented by counsel. At the pre-trial conference the trial court denied Goble's motion for discharge and scheduled a trial date of October 31, 1996. Thereafter on August 12, 1996, again acting pro se Goble filed a pleading entitled "Criminal Rule 4 Discharge Refusal For Fruad [sic]." R. at 162. The trial court considered the pleading as a second motion for discharge and denied it.
Thereafter, a final pre-trial conference was scheduled for September 27, 1996. Goble appeared on that date. Goble's court appointed counsel also appeared. However, Goble affirmed that counsel "can't speak for Mr. Goble" and asserted that counsel was there only as "an advisory counsel rather than to be here representing me." R. at 330. Goble again moved for discharge under Criminal Rule 4, arguing, among other things, that he was not given notice of the July 23, 1996, pre-trial conference. On the evidence presented, the court rejected Goble's lack of notice argument. The trial court did, however, take Goble's motion for discharge under advisement and permitted Goble to file a memorandum to support his position. Accordingly, on October 11, 1996, Goble filed a pro se pleading entitled "Demand for Due Process of the Land Organic with Motion Pursuant to Criminal Rule 4 for Discharge and Memorandum of Fundamental Law." R. at 168.
On October 23, 1996, the trial court entered an order pointing out that, among other things, Goble's latest pleading asserted a number of issues based upon Goble's beliefs in, and relying upon, the rhetoric of the common law courts movement. (footnote: 2) The trial court discounted such assertions. Nonetheless the trial court granted Goble's motion for discharge. In so doing, the trial court outlined the various relevant dates and causes for delay and determined "[b]y the time of the final pre-trial conference on September 27, [1]996, 429 calendar days had elapsed since Goble's arrest, disregarding delay attributable to Goble leaves a total elapsed time attributable to the State of 386 days." R. at 200. This appeal followed. (footnote: 3) Ind. Crim. Rule 4(C) provides in relevant part:
No person shall be held on recognizance or otherwise to answer a criminal charge for a period in aggregate embracing more than one year from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge, whichever is later; except where a continuance was had on his motion, or the delay was caused by his act . . . .
Under the Rule the State has an affirmative duty to bring a criminal defendant to trial within one year. Bates v. State , 520 N.E.2d 129, 131 (Ind. Ct. App. 1988). The one year time period commences upon the date of arrest or date of charge, whichever is later. Id. That period is extended by delay arising from any continuance had on the defendant's motion, by any delay caused by the defendant's act, or by congestion of the court's calender. Id.
Goble was initially arrested on July 6, 1995, for mistreatment of a police dog and resisting law enforcement. He was charged with those offenses on July 26, 1995. Thus, barring any delays attributable to Goble the State was obligated to bring him to trial by July 26, 1996. On November 30, 1995, Goble appeared for trial. However, as a result of Goble's conduct, the trial judge was compelled to find Goble in contempt of court. The trial judge also recused himself and requested appointment of a special judge. The supreme court appointed a special judge on January 10, 1996. The 41-day delay from the date of recusal to the date of the appointment of the special judge tolled the running of the Crim. R. 4(C) time period. And this is so whether the delay is attributable to Goble under the premise that his acts caused the delay, or whether the unavailability of a qualified trial judge is considered a delay about which "the State has little means of addressing." Henderson v. State , 647 N.E.2d 7, 13 (Ind. Ct. App. 1995) (finding a 139-day delay between recusal of the regular judge and the appointment of a special judge an "exigent circumstance" that tolled the running of the time period under Crim. R. 4). Tolling of the time period extends the ultimate deadline by which the defendant must be tried. Id. Thus, the State now had to bring Goble to trial by September 5, 1996.
After the special judge was appointed, trial was rescheduled for July 19, 1996. However, upon motion by Goble's counsel dated July 16, 1996, the date was vacated, and the trial court set a pre-trial conference for July 23, 1996. At the pre-trial conference the trial court scheduled trial for October 31, 1996. When a defendant requests a continuance of his trial date, "[t]he delay attributable to the defendant runs from the time the motion is filed through the date upon which the new trial is rescheduled." Henderson , 647 N.E.2d at 13. The 111-day delay between the date the continuance was requested and the date trial was rescheduled is attributable to Goble. Although Goble would later contend that counsel "can't speak for Mr. Goble," and that counsel's role was only that of "an advisory counsel," the fact is that counsel was appointed to represent Goble at Goble's request. As a result of Goble's request for a continuance, the State was not required to bring him to trial until December 26, 1996.
Because the State was not required to bring Goble to trial until December 26, 1996, Goble's motion for discharge made at the final pre-trial conference on September 27, 1996, was premature. On this record the State has made a prima facie showing that the trial court erred in granting Goble's motion for discharge. Accordingly, the judgment of the trial court is reversed, and this cause is remanded for further proceedings.
Judgment reversed and cause remanded.
NAJAM, J., concurs.
STATON, J., concurs in result.
IN THE
COURT OF APPEALS OF INDIANA
STATE OF INDIANA, )
)
Appellant-Plaintiff, )
)
vs. ) No. 92A05-9704-CR-160
)
MICHAEL L. GOBLE, )
)
Appellee-Defendant. )
STATON, Judge , concurring in result
I concur in result. The "leniency" and "tolerance" of the trial court should have been restrained. The finding of contempt should not have delayed the trial of defendant Goble. He should have had court counsel appointed for him immediately and been given an early trial date. Disruptive defendants are often their own worst enemy. Their conduct denies them as well as others a speedy trial. Disruptive conduct and ridiculous procedural motions should not be allowed to deny justice to other members of the community subject to the jurisdiction of the trial court.
FOOTNOTES 1: Under Ind. Code § 35-38-4-2 the State may appeal "[f]rom an order or judgment for the defendant, upon his motion for discharge because of delay of his trial not caused by his act . . . ."
2: "There is a movement afoot in this country today that is made up of disaffected and often dispossessed Americans who are seeking a better way through a wholesale return to their view of the past. This movement has been called many things: the anti-government movement, the sovereignty movement, and the common law courts movement. Regardless of the name attached to the beliefs and the people who follow them, one common denominator exists: a feeling of despair, rooted in personal and pecuniary loss, and manifested in a new, defiant mistrust and spite for the ways of the current government." State Justice Inst., Nat'l.Cntr. For State Courts, The Anti-Government Movement Guidebook ix (1999).
3: We first observe that Goble has failed to file an appellee's brief. Where the appellee fails to file a brief, it is within our discretion to reverse the trial court's decision if the appellant makes a prima facie showing of reversible error. Spears v. State , 621 N.E.2d 366, 367 (Ind. Ct. App. 1993). This rule was established for the benefit of the court so that it might be relieved of the burden of controverting arguments advanced for a reversal where such a burden rests with the appellee. Id.
We next observe that the State timely filed its Brief of Appellant over two years ago on June 30, 1997. The inordinate delay in the resolution of this appeal has been caused by Goble. Our records show that on July 23, 1997, the Clerk of the Court of Appeals released the Record of Proceedings to Goble, acting pro se . Shortly thereafter, at Goble 's request, the trial court appointed a public defender to represent Goble in this appeal. Counsel made repeated attempts to obtain the Record from Goble. However, Goble insisted that the attorney had been appointed only as co-counsel in this matter and therefore Goble, and not counsel, was entitled to the Record. Goble never surrendered the Record to counsel nor returned the Record to the Clerk of this court. In compliance with an order from the Chief Judge of this Court, the Clerk of the Whitley County Court prepared, certified, and sent to the Clerk of the Court of Appeals a duplicate copy of the Record of Proceedings on May 5, 1999. This case was then transmitted to the Court of Appeals on June 1, 1999. | 03-02-2013 | [
"FOR PUBLICATION ATTORNEYS FOR APPELLANT : JEFFREY A. MODISETT Attorney General of Indiana RANDI F. ELFENBAUM Deputy Attorney General Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA STATE OF INDIANA, ) ) Appellant-Plaintiff, ) ) vs. ) No. 92A05-9704-CR-160 ) MICHAEL L. GOBLE, ) ) Appellee-Defendant. ) APPEAL FROM THE WHITLEY SUPERIOR COURT The Honorable John Boyce, Special Judge Cause No. 92D01-9507-DF-389 October 29, 1999 OPINION - FOR PUBLICATION RUCKER, Judge The State of Indiana appeals the trial court's order granting Michael L. Goble's motion for discharge pursuant to Ind. Crim. Rule 4(C).",
"(footnote: 1) We address the following restated issue: was the delay in bringing Goble to trial within one year attributable to the State. We conclude it was not and therefore reverse. On July 26, 1995, the State charged Goble with resisting law enforcement as a Class D felony and mistreatment of a police dog as a Class A misdemeanor. At the initial hearing counsel was appointed for Goble, and trial was scheduled for November 30, 1995. Prior to trial, Goble filed a number of pro se pleadings including those entitled: \"Demand Quash,\" \"Habeas Corpus,\" \"Motion For Recussal [sic],\" \"Notice of Misconduct,\" \"Notice of Dismissal of the Public Defender for Cause,\" \"Affidavit of Truth In Dismissal Of Terry Smith,\" and a document entitled \"Titles of Nobility Amendment.\" See R. at 16, 24, 33, 34-53. Among other things, the various pleadings challenged the jurisdiction of Indiana courts to try Goble, questioned the authority and fairness of the trial judge, and attacked the competency of Goble's court appointed counsel. On the morning of trial, Goble began by addressing the court as follows: \"[m]y name, my Christian Appelation [sic] sir is M-i-c-h-a-e-l as Michael and capital L-y-n-n Lynn is my Christian Appellation. My family name is Goble.",
"I'm here in that capacity sui juris objecting to these proceedings.\" R. at 294. Over the next several minutes, as the trial judge attempted to explain the proceedings and what was about to occur, Goble interrupted on several occasions and generally disrupted the orderly process of the court. See R. at 274-318. The trial judge exercised extraordinary patience in dealing with Goble but ultimately found him in contempt of court: Let the record reflect the following, Mr. Goble, please be quiet while I make the record here. This is Michael D. Rush, Judge of the Whitley Superior Court a duly constituted Court of the legislature of the State of Indiana. The conduct by the Defendant, Michael L. Goble, is determined by this Court to be in Direct Criminal contempt of this court's ability to conduct a hearing and to present to this Defendant a fair and appropriate jury trial by the laws and rules and procedures of the State of Indiana. The conduct which has occurred in this Court room in the presence of this Court is continual interruptions one after the other and directly affects this Court's ability to conduct appropriate proceedings under the law and rules of the State of Indiana in criminal cases. This conduct has taken place in my presence and in the presence of all persons who are in this Court room who the court will possibly call to make an affidavit as to the conduct that has taken place here in this Court room.",
"I believe that Mr. Goble has committed acts of Criminal Contempt in the presence of this court that are done in defiance, disrespect of the lawful order of this court and the laws of the State of Indiana and the dignity of these proceedings. R. at 318-19. The trial judge sentenced Goble to thirty days in jail. He also granted counsel's motion to withdraw his appearance. In addition, the trial judge recused himself and requested the appointment of a special judge. Acting on the request the supreme court entered an order appointing the Honorable John Boyce as special judge in this case on January 10, 1996. Thereafter Judge Boyce scheduled Goble's trial for July 19, 1996. On January 22, 1996, Goble, acting pro se , filed with the trial court a pleading entitled \"Notice to the Supreme Court of Judicial Error and Hearing for Cause.\"",
"R. at 144. As best we can discern, the pleading appears to challenge the supreme court's authority to appoint Judge Boyce. In any event, on July 5, 1996, again acting pro se , Goble filed a pleading requesting a pre-trial conference to \"determine Jurisdiction or in the Alternative Discharge pursuant to Trial Rule 4 of Criminal Procedure.\" R. at 152. Prior to that date Goble had sent a letter to the trial judge requesting court appointed counsel. In response, the trial judge appointed counsel to represent Goble and scheduled a hearing date of July 19, 1996, to address the motion for discharge.",
"On July 16, 1996, counsel entered an appearance for Goble, moved to continue the previously scheduled trial date, and filed a motion for pre-trial conference. Accordingly the trial court vacated the trial date and scheduled a pre-trial conference for July 23, 1996. Pre-trial conference was held as scheduled. Goble did not appear but was represented by counsel. At the pre-trial conference the trial court denied Goble's motion for discharge and scheduled a trial date of October 31, 1996. Thereafter on August 12, 1996, again acting pro se Goble filed a pleading entitled \"Criminal Rule 4 Discharge Refusal For Fruad [sic].\" R. at 162. The trial court considered the pleading as a second motion for discharge and denied it. Thereafter, a final pre-trial conference was scheduled for September 27, 1996.",
"Goble appeared on that date. Goble's court appointed counsel also appeared. However, Goble affirmed that counsel \"can't speak for Mr. Goble\" and asserted that counsel was there only as \"an advisory counsel rather than to be here representing me.\" R. at 330. Goble again moved for discharge under Criminal Rule 4, arguing, among other things, that he was not given notice of the July 23, 1996, pre-trial conference. On the evidence presented, the court rejected Goble's lack of notice argument. The trial court did, however, take Goble's motion for discharge under advisement and permitted Goble to file a memorandum to support his position. Accordingly, on October 11, 1996, Goble filed a pro se pleading entitled \"Demand for Due Process of the Land Organic with Motion Pursuant to Criminal Rule 4 for Discharge and Memorandum of Fundamental Law.\"",
"R. at 168. On October 23, 1996, the trial court entered an order pointing out that, among other things, Goble's latest pleading asserted a number of issues based upon Goble's beliefs in, and relying upon, the rhetoric of the common law courts movement. (footnote: 2) The trial court discounted such assertions. Nonetheless the trial court granted Goble's motion for discharge. In so doing, the trial court outlined the various relevant dates and causes for delay and determined \"[b]y the time of the final pre-trial conference on September 27, [1]996, 429 calendar days had elapsed since Goble's arrest, disregarding delay attributable to Goble leaves a total elapsed time attributable to the State of 386 days.\" R. at 200. This appeal followed. (footnote: 3) Ind.",
"Crim. Rule 4(C) provides in relevant part: No person shall be held on recognizance or otherwise to answer a criminal charge for a period in aggregate embracing more than one year from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge, whichever is later; except where a continuance was had on his motion, or the delay was caused by his act . . . .",
"Under the Rule the State has an affirmative duty to bring a criminal defendant to trial within one year. Bates v. State , 520 N.E.2d 129, 131 (Ind. Ct. App. 1988). The one year time period commences upon the date of arrest or date of charge, whichever is later. Id. That period is extended by delay arising from any continuance had on the defendant's motion, by any delay caused by the defendant's act, or by congestion of the court's calender. Id. Goble was initially arrested on July 6, 1995, for mistreatment of a police dog and resisting law enforcement. He was charged with those offenses on July 26, 1995.",
"Thus, barring any delays attributable to Goble the State was obligated to bring him to trial by July 26, 1996. On November 30, 1995, Goble appeared for trial. However, as a result of Goble's conduct, the trial judge was compelled to find Goble in contempt of court. The trial judge also recused himself and requested appointment of a special judge. The supreme court appointed a special judge on January 10, 1996. The 41-day delay from the date of recusal to the date of the appointment of the special judge tolled the running of the Crim. R. 4(C) time period. And this is so whether the delay is attributable to Goble under the premise that his acts caused the delay, or whether the unavailability of a qualified trial judge is considered a delay about which \"the State has little means of addressing.\" Henderson v. State , 647 N.E.2d 7, 13 (Ind. Ct. App.",
"1995) (finding a 139-day delay between recusal of the regular judge and the appointment of a special judge an \"exigent circumstance\" that tolled the running of the time period under Crim. R. 4). Tolling of the time period extends the ultimate deadline by which the defendant must be tried. Id. Thus, the State now had to bring Goble to trial by September 5, 1996. After the special judge was appointed, trial was rescheduled for July 19, 1996. However, upon motion by Goble's counsel dated July 16, 1996, the date was vacated, and the trial court set a pre-trial conference for July 23, 1996. At the pre-trial conference the trial court scheduled trial for October 31, 1996. When a defendant requests a continuance of his trial date, \"[t]he delay attributable to the defendant runs from the time the motion is filed through the date upon which the new trial is rescheduled.\" Henderson , 647 N.E.2d at 13.",
"The 111-day delay between the date the continuance was requested and the date trial was rescheduled is attributable to Goble. Although Goble would later contend that counsel \"can't speak for Mr. Goble,\" and that counsel's role was only that of \"an advisory counsel,\" the fact is that counsel was appointed to represent Goble at Goble's request. As a result of Goble's request for a continuance, the State was not required to bring him to trial until December 26, 1996. Because the State was not required to bring Goble to trial until December 26, 1996, Goble's motion for discharge made at the final pre-trial conference on September 27, 1996, was premature. On this record the State has made a prima facie showing that the trial court erred in granting Goble's motion for discharge. Accordingly, the judgment of the trial court is reversed, and this cause is remanded for further proceedings.",
"Judgment reversed and cause remanded. NAJAM, J., concurs. STATON, J., concurs in result. IN THE COURT OF APPEALS OF INDIANA STATE OF INDIANA, ) ) Appellant-Plaintiff, ) ) vs. ) No. 92A05-9704-CR-160 ) MICHAEL L. GOBLE, ) ) Appellee-Defendant. ) STATON, Judge , concurring in result I concur in result. The \"leniency\" and \"tolerance\" of the trial court should have been restrained. The finding of contempt should not have delayed the trial of defendant Goble. He should have had court counsel appointed for him immediately and been given an early trial date. Disruptive defendants are often their own worst enemy. Their conduct denies them as well as others a speedy trial. Disruptive conduct and ridiculous procedural motions should not be allowed to deny justice to other members of the community subject to the jurisdiction of the trial court. FOOTNOTES 1: Under Ind.",
"Code § 35-38-4-2 the State may appeal \"[f]rom an order or judgment for the defendant, upon his motion for discharge because of delay of his trial not caused by his act . . . .\" 2: \"There is a movement afoot in this country today that is made up of disaffected and often dispossessed Americans who are seeking a better way through a wholesale return to their view of the past. This movement has been called many things: the anti-government movement, the sovereignty movement, and the common law courts movement. Regardless of the name attached to the beliefs and the people who follow them, one common denominator exists: a feeling of despair, rooted in personal and pecuniary loss, and manifested in a new, defiant mistrust and spite for the ways of the current government.\"",
"State Justice Inst., Nat'l.Cntr. For State Courts, The Anti-Government Movement Guidebook ix (1999). 3: We first observe that Goble has failed to file an appellee's brief. Where the appellee fails to file a brief, it is within our discretion to reverse the trial court's decision if the appellant makes a prima facie showing of reversible error. Spears v. State , 621 N.E.2d 366, 367 (Ind. Ct. App. 1993).",
"This rule was established for the benefit of the court so that it might be relieved of the burden of controverting arguments advanced for a reversal where such a burden rests with the appellee. Id. We next observe that the State timely filed its Brief of Appellant over two years ago on June 30, 1997. The inordinate delay in the resolution of this appeal has been caused by Goble. Our records show that on July 23, 1997, the Clerk of the Court of Appeals released the Record of Proceedings to Goble, acting pro se .",
"Shortly thereafter, at Goble 's request, the trial court appointed a public defender to represent Goble in this appeal. Counsel made repeated attempts to obtain the Record from Goble. However, Goble insisted that the attorney had been appointed only as co-counsel in this matter and therefore Goble, and not counsel, was entitled to the Record. Goble never surrendered the Record to counsel nor returned the Record to the Clerk of this court. In compliance with an order from the Chief Judge of this Court, the Clerk of the Whitley County Court prepared, certified, and sent to the Clerk of the Court of Appeals a duplicate copy of the Record of Proceedings on May 5, 1999. This case was then transmitted to the Court of Appeals on June 1, 1999."
] | https://www.courtlistener.com/api/rest/v3/opinions/853744/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
MADDOX, Retired Justice. This appeal involves a dispute between a municipal board of adjustment and a company that owns advertising billboard structures; the question presented is whether changes the company made in two of its billboards violated a municipal zoning ordinance that prohibited changes that prolonged or enhanced the useful life of the billboard or that increased its size, shape, location, angle, or height. Based on the record before us, we conclude that, as a matter of law, the changes the company made in the billboards violated the ordinance; therefore, we reverse and remand. H & S Southern Graphics Systems, Inc. (“Southern Graphics”), a company that owns advertising billboard structures, appealed from a decision of the City of Foley Board of Adjustments and Appeals (“the Board”) holding that changes Southern Graphics had made in two of its billboards located along the Foley Beach Express, a toll road in Baldwin County, violated an ordinance of the City of Foley.1 The case was tried before a jury, and at the close of Southern Graphics’ case-in-chief, the Board moved for a judgment as a matter of law; it renewed the motion at the close of all the evidence. The trial *296court denied both motions. The jury returned a verdict for Southern Graphics, and the trial court entered a judgment on that verdict. The Board appealed. We reverse and remand.
Facts
In 2000, Southern Graphics applied for and received sign permits and building permits from the City of Foley to construct two “double stack” billboards along the Foley Beach Express. Each permit allowed Southern Graphics to erect a billboard consisting of two 10 1/2-foot by 36-foot stacked sign faces, that is, one on top of the other, in each direction of travel. Southern Graphics’ application for the permits and its engineering plans stated that the billboards would contain a total of 756 square feet of advertising space in each direction of travel. The stacked signs were designed to be, and were originally constructed to be, separated by a four-foot gap, and each of the two sign faces had lights, a catwalk, and an apron attached to the bottom. Both permits were issued on March 27, 2000, and construction of the billboards began soon thereafter. On July 3, 2000, the City of Foley passed a zoning ordinance that specifically addressed outdoor advertising along the Foley Beach Express. The two billboards Southern Graphics had been issued permits for violated the provisions of the new ordinance because they were located within 660 feet of the Foley Beach Express and they were visible from the Foley Beach Express. The ordinance, however, “grandfathered in” existing billboard structures as legal nonconforming signs and they were allowed .to remain, but with certain restrictions. Some of those restrictions read, as follows: “(B) A legal nonconforming billboard may not be: “(1) Structurally altered, amended or repaired so as to prolong or enhance the useful life of the billboard; “(2) Altered, changed or moved in any manner that increases its size, shape, location, angle, or height .... ” (Emphasis added.) On February 22, 2001, the City of Foley received a complaint that work was being performed on several of Southern Graphics’ billboards on the Foley Beach Express. Southern Graphics had not applied for or obtained a building or sign permit to do work on the billboards. Consequently, the zoning administrator and building inspector for the City of Foley, Chuck Lay, met with Robert Griffin of Southern Graphics to advise him to stop work on the billboards. Despite being told that he could not alter the signs without a building permit and despite being told that the intended changes to the signs violated the zoning ordinance, Southern Graphics proceeded to make changes to the two billboard structures. The changes included removing the lights, apron, and catwalk that serviced the top sign of the stacked sign and filling in the four-foot gap between the two signs to join the two sign faces into one larger sign face. In making these changes, Southern Graphics increased the total square footage of the sign face on the stacked signs from 756 square feet to 900 square feet. By making these changes, Southern Graphics also changed the shape of the sign from two 10 1/2-foot by 36-foot signs to one 25-foot by 36-foot sign. The zoning administrator determined that the changes to the billboards violated the ordinance. Southern Graphics then appealed that determination to the Board and requested a variance; the Board found that the changes Southern Graphics had made to the billboard structures violated the ordinance and denied Southern Graph*297ics’ request for a variance on September 12, 2001. Southern Graphics then appealed the Board’s decision to the Baldwin Circuit Court, and a jury found that it had not violated the provisions of the ordinance. The trial judge entered a judgment based on the jury verdict. The Board appealed. Many of the above-stated facts are undisputed, and Southern Graphics states in its brief that it “is satisfied with the Statement of the Facts set forth by the Board” in its brief to this Court, except that Southern Graphics “objects to the Board’s statement as fact that ‘[ojbsolescence is a factor in determining the “useful life” of a structure under this ordinance.’ ” (Southern Graphics’ brief, pp. 1-2.) Southern Graphics says that the ordinance does not define or refer to “obsolescence” and does not define “useful life,” “[n]or does it set forth any factors to be used to determine ‘useful life.’ ” (Southern Graphics’ brief, p. 2.) Southern Graphics also “objects to the Board’s statement [in its brief,] as fact that Southern Graphics made these changes to their billboards in an attempt to help market the signs and make them more attractive to companies interested in advertising on billboards.”2 (Southern Graphics’ brief, p. 2.)
Standard of Review
In view of the fact that the parties substantially agree as to all of the facts that are pertinent to determining whether the billboards violated the provisions of the ordinance, our standard of review is de novo. See Ex parte Norwood, 615 So.2d 1210, 1212 (Ala.Civ.App.1992) (“‘[construction of a zoning ordinance is a question of law1 ”); see also Civitans Care, Inc. v. Board of Adjustment of Huntsville, 437 So.2d 540 (Ala.Civ.App.1983); and Burnham v. City of Mobile, 277 Ala. 659, 174 So.2d 301 (1965). Although this case was heard by a jury and although the law provides that a jury’s findings of fact are presumed correct, that presumption has no application when the trial court has been shown to have improperly applied the law to the facts. Cf. Marvin’s, Inc. v. Robertson, 608 So.2d 391 (Ala.1992), and Smith v. Style Adver., Inc., 470 So.2d 1194 (Ala.1985). See also Beavers v. County of Walker, 645 So.2d 1365 (Ala.1994); Justice v. Arab Lumber & Supply, Inc., 533 So.2d 538 (Ala.1988); First Nat’l Bank of Mobile v. Duckworth, 502 So.2d 709 (Ala.1987); Barrett v. Odom, May & DeBuys, 453 So.2d 729 (Ala.1984).
Discussion
With the above-stated standard of review firmly in mind, and because this appeal involves the interpretation of a municipal zoning ordinance, we begin our opinion by stating some general principles of law that this Court recently set forth in Ex parte Lamar Advertising Co., 849 So.2d 928 (Ala.2002). This Court stated: “This Court recognizes ‘that a municipality may establish a comprehensive land-use plan and effectuate that plan through a scheme of comprehensive zoning regulations.’ Budget Inn of Daphne, Inc. v. City of Daphne, 789 So.2d 154, 158 (Ala.2000). However, a city ordinance is subject to the same general rules of construction as is an act of the Legislature, S & S Distrib. Co. v. Town of New Hope, 334 So.2d 905 (Ala. *2981976). In John Deere Co. v. Gamble, 523 So.2d 95, 99-100 (Ala.1988), this Court, quoting Clark v. Houston County Comm’n, 507 So.2d 902, 903-04 (Ala. 1987), set out the following general rule of statutory construction, which applies to the construction of a municipal ordinance: “ ‘ “The fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature in enacting the statute. Advertiser Co. v. Hobbie, 474 So.2d 93 (Ala.1985); League of Women Voters v. Renfro, 292 Ala. 128, 290 So.2d 167 (1974). If possible, the intent of the legislature should be gathered from the language of the statute itself. Advertiser Co. v. Hobbie, supra; Morgan County Board of Education v. Alabama Public School & College Authority, 362 So.2d 850 (Ala.1978).” ’ “In Ex parte Pfizer, Inc., 746 So.2d 960, 964 (Ala.1999), this Court stated: “ ‘ “When the language of a statute is plain and unambiguous, ... courts must enforce the statute as written by giving the words of the statute their ordinary plain meaning — they must interpret that language to mean exactly what it says and thus give effect to the apparent intent of the Legislature.” Ex parte T.B., 698 So.2d 127, 130 (Ala.1997). Justice Houston wrote the following for this Court in DeKalb County LP Gas Co. v. Suburban Gas, Inc., 729 So.2d 270 (Ala.1998): “ ‘ “In determining the meaning of a statute, this Court looks to the plain meaning of the words as written by the legislature. As we have said: “ ““ ‘Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.” ”” ” 849 So.2d at 930. In Moore v. Pettus, 260 Ala. 616, 71 So.2d 814 (1954), this Court stated: “The intention of zoning laws as regards a use of nonconforming property is to restrict rather than extend it. Fulford v. Board of Zoning of City of Dothan, 256 Ala. 336, 54 So.2d 580 [(1951)]. The objective is the gradual elimination of the nonconforming use by obsolescence or destruction by fire or the elements. Given the objective of zoning to eliminate nonconforming uses, courts throughout the country generally follow a strict policy against their extension or enlargement. San Diego County v. McClurken, 37 Cal.2d 683, 234 P.2d 972 [(1951)], and cases cited there. The whole purpose and spirit of the zoning ordinance would be defeated if an owner is permitted to substitute permanent brick walls for rotted exterior walls, put in new flooring in place of rotted flooring, put on a new roof and build a new addition, as this would extend or prolong indefinitely the life of the nonconforming building. Selligman v. Von Allm[e]n Bros., 297 Ky. 121, 179 S.W.2d 207 [(1944)].” 260 Ala. at 627, 71 So.2d at 824-25 (emphasis added). As stated above, the ordinance in this case, which permitted a nonconforming use, nevertheless contained the following restrictions: “(B) A legal nonconforming billboard may not be: “(1) Structurally altered, amended or repaired so as to prolong or enhance the useful life of the billboard; *299“(2) Altered, changed or moved in any manner that increases its size, shape, location, angle, or height....” The Board argues that although Southern Graphics’ billboard structures were “grandfathered in” under the ordinance as it existed before the new ordinance was enacted and were therefore “legal nonconforming billboard[s],” Southern Graphics structurally altered the billboards to enhance their useful life in violation of the zoning ordinance. We need not decide that issue, because it is clear that the changes Southern Graphics made to the billboard structures violate the restriction in the ordinance that a sign could not be “[a]ltered, changed or moved in any manner that increases its size, shape, location, angle, or height.” It is quite obvious that the signs were altered or changed to increase their size. That was not true in Lamar Advertising. As stated in footnote one of that opinion, the newly installed trivision sign did not change the square footage of advertising displayed. That is not true in this case. Here, it is undisputed that Southern Graphics changed its billboards so that the total advertising space was increased by 144 square feet — from 756 square feet to 900 square feet in each direction of travel. As stated above, Southern Graphics’ application and engineering plans stated that the billboards would contain a total of 756 square feet of advertising space in each direction of travel. The judgment of the trial court, holding that Southern Graphics’ alteration of its billboards did not violate the new zoning ordinance, is reversed and the case remanded for proceedings consistent with this opinion. This opinion was prepared by retired Justice Hugh Maddox, sitting as a Justice of this Court pursuant to § 12-18-10(e), Ala.Code 1975. REVERSED AND REMANDED. HOUSTON, SEE, LYONS, HARWOOD, and STUART, JJ., concur.
. Although Southern Graphics' notice of appeal from the decision of the Board referred to the Board’s denial of its request for a variance, this issue was not litigated. The case was tried only on the issue of the Board’s determination that an improper change in the existing billboards had been made in violation of the ordinance. In fact, Southern Graphics did not challenge the validity of the zoning ordinance, but merely challenged whether its actions were prohibited by the terms of the ordinance.
. This objection appears to lack merit in view of the testimony of Griffin that Southern Graphics "thought it would be good to incorporate one ad on the double sign as opposed to two,” and that “[f]rom a sales standpoint, it's easier to sell one ad than two ads.” Griffin further testified that Southern Graphics "wanted to try [the changes] on a couple of them to see what sort of response we got from the advertising community.” | 07-30-2022 | [
"MADDOX, Retired Justice. This appeal involves a dispute between a municipal board of adjustment and a company that owns advertising billboard structures; the question presented is whether changes the company made in two of its billboards violated a municipal zoning ordinance that prohibited changes that prolonged or enhanced the useful life of the billboard or that increased its size, shape, location, angle, or height. Based on the record before us, we conclude that, as a matter of law, the changes the company made in the billboards violated the ordinance; therefore, we reverse and remand. H & S Southern Graphics Systems, Inc. (“Southern Graphics”), a company that owns advertising billboard structures, appealed from a decision of the City of Foley Board of Adjustments and Appeals (“the Board”) holding that changes Southern Graphics had made in two of its billboards located along the Foley Beach Express, a toll road in Baldwin County, violated an ordinance of the City of Foley.1 The case was tried before a jury, and at the close of Southern Graphics’ case-in-chief, the Board moved for a judgment as a matter of law; it renewed the motion at the close of all the evidence.",
"The trial *296court denied both motions. The jury returned a verdict for Southern Graphics, and the trial court entered a judgment on that verdict. The Board appealed. We reverse and remand. Facts In 2000, Southern Graphics applied for and received sign permits and building permits from the City of Foley to construct two “double stack” billboards along the Foley Beach Express. Each permit allowed Southern Graphics to erect a billboard consisting of two 10 1/2-foot by 36-foot stacked sign faces, that is, one on top of the other, in each direction of travel. Southern Graphics’ application for the permits and its engineering plans stated that the billboards would contain a total of 756 square feet of advertising space in each direction of travel. The stacked signs were designed to be, and were originally constructed to be, separated by a four-foot gap, and each of the two sign faces had lights, a catwalk, and an apron attached to the bottom. Both permits were issued on March 27, 2000, and construction of the billboards began soon thereafter. On July 3, 2000, the City of Foley passed a zoning ordinance that specifically addressed outdoor advertising along the Foley Beach Express.",
"The two billboards Southern Graphics had been issued permits for violated the provisions of the new ordinance because they were located within 660 feet of the Foley Beach Express and they were visible from the Foley Beach Express. The ordinance, however, “grandfathered in” existing billboard structures as legal nonconforming signs and they were allowed .to remain, but with certain restrictions. Some of those restrictions read, as follows: “(B) A legal nonconforming billboard may not be: “(1) Structurally altered, amended or repaired so as to prolong or enhance the useful life of the billboard; “(2) Altered, changed or moved in any manner that increases its size, shape, location, angle, or height .... ” (Emphasis added.) On February 22, 2001, the City of Foley received a complaint that work was being performed on several of Southern Graphics’ billboards on the Foley Beach Express.",
"Southern Graphics had not applied for or obtained a building or sign permit to do work on the billboards. Consequently, the zoning administrator and building inspector for the City of Foley, Chuck Lay, met with Robert Griffin of Southern Graphics to advise him to stop work on the billboards. Despite being told that he could not alter the signs without a building permit and despite being told that the intended changes to the signs violated the zoning ordinance, Southern Graphics proceeded to make changes to the two billboard structures.",
"The changes included removing the lights, apron, and catwalk that serviced the top sign of the stacked sign and filling in the four-foot gap between the two signs to join the two sign faces into one larger sign face. In making these changes, Southern Graphics increased the total square footage of the sign face on the stacked signs from 756 square feet to 900 square feet. By making these changes, Southern Graphics also changed the shape of the sign from two 10 1/2-foot by 36-foot signs to one 25-foot by 36-foot sign. The zoning administrator determined that the changes to the billboards violated the ordinance. Southern Graphics then appealed that determination to the Board and requested a variance; the Board found that the changes Southern Graphics had made to the billboard structures violated the ordinance and denied Southern Graph*297ics’ request for a variance on September 12, 2001. Southern Graphics then appealed the Board’s decision to the Baldwin Circuit Court, and a jury found that it had not violated the provisions of the ordinance.",
"The trial judge entered a judgment based on the jury verdict. The Board appealed. Many of the above-stated facts are undisputed, and Southern Graphics states in its brief that it “is satisfied with the Statement of the Facts set forth by the Board” in its brief to this Court, except that Southern Graphics “objects to the Board’s statement as fact that ‘[ojbsolescence is a factor in determining the “useful life” of a structure under this ordinance.’ ” (Southern Graphics’ brief, pp. 1-2.) Southern Graphics says that the ordinance does not define or refer to “obsolescence” and does not define “useful life,” “[n]or does it set forth any factors to be used to determine ‘useful life.’ ” (Southern Graphics’ brief, p. 2.) Southern Graphics also “objects to the Board’s statement [in its brief,] as fact that Southern Graphics made these changes to their billboards in an attempt to help market the signs and make them more attractive to companies interested in advertising on billboards.”2 (Southern Graphics’ brief, p. 2.) Standard of Review In view of the fact that the parties substantially agree as to all of the facts that are pertinent to determining whether the billboards violated the provisions of the ordinance, our standard of review is de novo.",
"See Ex parte Norwood, 615 So.2d 1210, 1212 (Ala.Civ.App.1992) (“‘[construction of a zoning ordinance is a question of law1 ”); see also Civitans Care, Inc. v. Board of Adjustment of Huntsville, 437 So.2d 540 (Ala.Civ.App.1983); and Burnham v. City of Mobile, 277 Ala. 659, 174 So.2d 301 (1965). Although this case was heard by a jury and although the law provides that a jury’s findings of fact are presumed correct, that presumption has no application when the trial court has been shown to have improperly applied the law to the facts.",
"Cf. Marvin’s, Inc. v. Robertson, 608 So.2d 391 (Ala.1992), and Smith v. Style Adver., Inc., 470 So.2d 1194 (Ala.1985). See also Beavers v. County of Walker, 645 So.2d 1365 (Ala.1994); Justice v. Arab Lumber & Supply, Inc., 533 So.2d 538 (Ala.1988); First Nat’l Bank of Mobile v. Duckworth, 502 So.2d 709 (Ala.1987); Barrett v. Odom, May & DeBuys, 453 So.2d 729 (Ala.1984). Discussion With the above-stated standard of review firmly in mind, and because this appeal involves the interpretation of a municipal zoning ordinance, we begin our opinion by stating some general principles of law that this Court recently set forth in Ex parte Lamar Advertising Co., 849 So.2d 928 (Ala.2002). This Court stated: “This Court recognizes ‘that a municipality may establish a comprehensive land-use plan and effectuate that plan through a scheme of comprehensive zoning regulations.’ Budget Inn of Daphne, Inc. v. City of Daphne, 789 So.2d 154, 158 (Ala.2000).",
"However, a city ordinance is subject to the same general rules of construction as is an act of the Legislature, S & S Distrib. Co. v. Town of New Hope, 334 So.2d 905 (Ala. *2981976). In John Deere Co. v. Gamble, 523 So.2d 95, 99-100 (Ala.1988), this Court, quoting Clark v. Houston County Comm’n, 507 So.2d 902, 903-04 (Ala. 1987), set out the following general rule of statutory construction, which applies to the construction of a municipal ordinance: “ ‘ “The fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature in enacting the statute. Advertiser Co. v. Hobbie, 474 So.2d 93 (Ala.1985); League of Women Voters v. Renfro, 292 Ala. 128, 290 So.2d 167 (1974). If possible, the intent of the legislature should be gathered from the language of the statute itself. Advertiser Co. v. Hobbie, supra; Morgan County Board of Education v. Alabama Public School & College Authority, 362 So.2d 850 (Ala.1978).” ’ “In Ex parte Pfizer, Inc., 746 So.2d 960, 964 (Ala.1999), this Court stated: “ ‘ “When the language of a statute is plain and unambiguous, ... courts must enforce the statute as written by giving the words of the statute their ordinary plain meaning — they must interpret that language to mean exactly what it says and thus give effect to the apparent intent of the Legislature.” Ex parte T.B., 698 So.2d 127, 130 (Ala.1997).",
"Justice Houston wrote the following for this Court in DeKalb County LP Gas Co. v. Suburban Gas, Inc., 729 So.2d 270 (Ala.1998): “ ‘ “In determining the meaning of a statute, this Court looks to the plain meaning of the words as written by the legislature. As we have said: “ ““ ‘Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.” ”” ” 849 So.2d at 930. In Moore v. Pettus, 260 Ala. 616, 71 So.2d 814 (1954), this Court stated: “The intention of zoning laws as regards a use of nonconforming property is to restrict rather than extend it. Fulford v. Board of Zoning of City of Dothan, 256 Ala. 336, 54 So.2d 580 [(1951)]. The objective is the gradual elimination of the nonconforming use by obsolescence or destruction by fire or the elements. Given the objective of zoning to eliminate nonconforming uses, courts throughout the country generally follow a strict policy against their extension or enlargement. San Diego County v. McClurken, 37 Cal.2d 683, 234 P.2d 972 [(1951)], and cases cited there.",
"The whole purpose and spirit of the zoning ordinance would be defeated if an owner is permitted to substitute permanent brick walls for rotted exterior walls, put in new flooring in place of rotted flooring, put on a new roof and build a new addition, as this would extend or prolong indefinitely the life of the nonconforming building. Selligman v. Von Allm[e]n Bros., 297 Ky. 121, 179 S.W.2d 207 [(1944)].” 260 Ala. at 627, 71 So.2d at 824-25 (emphasis added). As stated above, the ordinance in this case, which permitted a nonconforming use, nevertheless contained the following restrictions: “(B) A legal nonconforming billboard may not be: “(1) Structurally altered, amended or repaired so as to prolong or enhance the useful life of the billboard; *299“(2) Altered, changed or moved in any manner that increases its size, shape, location, angle, or height....” The Board argues that although Southern Graphics’ billboard structures were “grandfathered in” under the ordinance as it existed before the new ordinance was enacted and were therefore “legal nonconforming billboard[s],” Southern Graphics structurally altered the billboards to enhance their useful life in violation of the zoning ordinance. We need not decide that issue, because it is clear that the changes Southern Graphics made to the billboard structures violate the restriction in the ordinance that a sign could not be “[a]ltered, changed or moved in any manner that increases its size, shape, location, angle, or height.” It is quite obvious that the signs were altered or changed to increase their size. That was not true in Lamar Advertising. As stated in footnote one of that opinion, the newly installed trivision sign did not change the square footage of advertising displayed.",
"That is not true in this case. Here, it is undisputed that Southern Graphics changed its billboards so that the total advertising space was increased by 144 square feet — from 756 square feet to 900 square feet in each direction of travel. As stated above, Southern Graphics’ application and engineering plans stated that the billboards would contain a total of 756 square feet of advertising space in each direction of travel. The judgment of the trial court, holding that Southern Graphics’ alteration of its billboards did not violate the new zoning ordinance, is reversed and the case remanded for proceedings consistent with this opinion. This opinion was prepared by retired Justice Hugh Maddox, sitting as a Justice of this Court pursuant to § 12-18-10(e), Ala.Code 1975. REVERSED AND REMANDED. HOUSTON, SEE, LYONS, HARWOOD, and STUART, JJ., concur.",
". Although Southern Graphics' notice of appeal from the decision of the Board referred to the Board’s denial of its request for a variance, this issue was not litigated. The case was tried only on the issue of the Board’s determination that an improper change in the existing billboards had been made in violation of the ordinance. In fact, Southern Graphics did not challenge the validity of the zoning ordinance, but merely challenged whether its actions were prohibited by the terms of the ordinance. . This objection appears to lack merit in view of the testimony of Griffin that Southern Graphics \"thought it would be good to incorporate one ad on the double sign as opposed to two,” and that “[f]rom a sales standpoint, it's easier to sell one ad than two ads.” Griffin further testified that Southern Graphics \"wanted to try [the changes] on a couple of them to see what sort of response we got from the advertising community.”"
] | https://www.courtlistener.com/api/rest/v3/opinions/7768750/ | 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 .
Interview Summary A phone call has been placed on 01/04/2022 with JASON FAR-HADIAN to confirm the cancellation of claims 26-28.
Claim Objections Claim 1 is objected to because of the following informalities: the phrase “an energy expense” in line 14 should be amended to read –the energy expense--. Appropriate correction is required.
Claim 8 is objected to because of the following informalities: the phrase “the user biometric data” in line 1 should be amended to read –a user biometric data” to avoid a potential of 112(b) lack of antecedent basis. Appropriate correction is required.
Claim 10 is objected to because of the following informalities: the phrase “an energy expense” in line 1 should be amended to read –the energy expense--. Appropriate correction is required.
Claim 25 is objected to because of the following informalities: the phrase “the estimated heart rate” in line 17 should be amended to read –estimated heart rate-- to avoid a potential of 112(b) lack of antecedent basis. Appropriate correction is required.
Claim 25 is objected to because of the following informalities: the phrase “energy expense” in line 19 should be amended to read –the energy expense--. Appropriate correction is required. Claim Rejections - 35 USC § 112 The following is a quotation of 35 U.S.C. 112(b): (b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph: The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-2, 4-5, 7-12, 21-28 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claims 1and 25 recite the limitation “a series of coordinate data” in lines 11 and 14, respectively, this limitation is not defined by the claims, which renders the claims indefinite, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It also doesn’t change the fact that under the broadest reasonably interpretation one with ordinary skill in the art isn’t sure the series of coordinates are coordinates of which parameter. The scope of the claim remains indeterminate because of the claimed “a series of coordinate data”.
Claims 1, 21 recite the limitation “moving one or more body parts”, this limitation is not defined by the claims, which renders the claims indefinite. One with ordinary skill in the art isn’t sure if the claimed “one or more body parts” are the same and/or different than the “plurality of the user’s body parts”. As broadly as claimed the scope of the claim is indeterminate with respect to claimed “moving one or more body parts” in line 12.
Claim 1 recites the limitation "the user’s body parts" in line 8. There is insufficient antecedent basis for this limitation in the claim.
Claim 21 recites the limitation "the user’s body parts" in line 8. There is insufficient antecedent basis for this limitation in the claim.
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)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1-2, 4-5, 7-12 and 21-25 is/are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Ward et al (US 2020/0047027).
receiving spatiotemporal data by a client application stored and executing on a client device (receiving streamed, live videos, images of a user performing a workout by exercise machine 100, par.48-49, fig.1), a plurality of activity elements associated with a workout in a virtual reality (VR) or augmented reality (AR) visual space, being displayed on a display in communication with the client application (par.29, display 102 can provide continuously augmented reality overlay updated textual, graphical, or video information that is positioned on the screen based at least in part on user position, par.67, plurality of visual feedback in par.68 and par.77, as best seen in fig.6 and 10c), the spatiotemporal data indicating spatial coordinates of a plurality of points associated with a plurality of the user's body parts, while the user is performing the workout (the body parts coordinates/3-Dposition displayed on display 102, par.67-68 and skeletal representations of user body position, par.77, as best seen in fig.6 and 10c), the spatiotemporal data being updated periodically, in response to the user moving one or more body parts during the workout (the body parts coordinates/3Dposition is determining an energy expense for the user during the workout based on the spatiotemporal data (determining energy burned from imaged/video data analyzing body positions, par.28, par.87 and par.97); and displaying the energy expense by the user during the workout on the display with the activity elements within the display (displaying energy burned/calories burned, par.80, fig.10j).
As to claims 2 and 22, Ward discloses the system and method, wherein the spatiotemporal data is received as data derived from image data of the user performing the workout (the body position date/images/videos are received while a user is performing a workout, par.5-9, par.29, par.48-50, par.67-68 and par.77, as best seen in fig.1, 5-6 and 10c).
As to claims 4 and 23, Ward discloses the system and method, wherein the energy expense includes calories burned (par.80, fig.10j).
As to claims 5 and 24, Ward discloses the system and method, wherein the energy expense and calories burned are displayed as on overlay to the activity elements displayed in a virtual reality (VR) or augmented reality (AR) visual space by a camera (par.29 and par.52, display 102 can provide continuously augmented reality overlay updated textual, graphical, or video information that is positioned on the screen based
As to claim 7, Ward discloses the system and method, wherein the activity elements are augmented elements displayed within space captured by a camera (3D cameras, par.5-9, par.12, par.21, par.46, par.48 and par.50, as best seen in fig.1, 5, 6 and 10c).
As to claim 8, Ward discloses the system and method, wherein the user biometric data including the user age, height, weight, and sex (determining biometric data, par.50, determining weight, par.80).
As to claim 9, Ward discloses the system and method, wherein determining the energy expense includes: selecting one of a plurality of calculation methods (the different methods to calculate energy burned/calorie-burning, par.28, par.81 par.87, par.94 and par.97); and calculating the energy expense based on the selected calculation method (calculating energy burned/calorie-burning, par.28, par.81 par.87, par.94 and par.97).
As to claim 10, Ward discloses the system and method, wherein determining an energy expense includes comparing the energy expense to a range of expected energy expenses to confirm the validity of the energy expense (Summaries can compare a user against their personal workout history, par.94).
transmitting the received spatiotemporal data to a remote server by the client device (transmitting video/image data to cloud 120 and server 122, par.47 and par.53, fig.1); calculating the energy expense based on the spatiotemporal data by the server (calculating energy burned using computers/processors in server 122, par.28, par.87 and par.97); and receiving the calculated energy expense from the remote server by the client device (displaying the calculated energy burned/calories burned by display 102, par.80, fig.10j).
As to claim 12, Ward discloses the system and method, further comprising: determining an estimated heart rate for the user while performing the workout (determining heart rate, par.23, par.28, par.50 and par.97), the heart rate determined based on the spatiotemporal data and user biometric data that does not change during the workout (par.28, par.50, par.52, par.82 and par.97), wherein the energy expense for the user during the workout is determined based on the spatiotemporal data and the estimated user heart rate (par.28, par.50, par.52, par.82 and par.97), the user heart rate and energy expense being determined without measuring the user's heart rate (heart rate is being calculated from biometric data captured by camera and not measured, end of par.28 and end of par.50), wherein the estimated heart rate for the user-is displayed during the workout by the client application (display 102 displays biometric information, such as, hear rate, par.80, fig.10j). Response to Arguments Applicant’s arguments with respect to claim(s) 1, 21 and 25 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 MAY A ABOUELELA whose telephone number is (571)270-7917. The examiner can normally be reached 8-5.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, JACQUELINE CHENG can be reached on 5712725596. 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.
/MAY A ABOUELELA/Primary Examiner, Art Unit 3791 | 2022-01-06T10:32:08 | [
"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 . Interview Summary A phone call has been placed on 01/04/2022 with JASON FAR-HADIAN to confirm the cancellation of claims 26-28. Claim Objections Claim 1 is objected to because of the following informalities: the phrase “an energy expense” in line 14 should be amended to read –the energy expense--. Appropriate correction is required. Claim 8 is objected to because of the following informalities: the phrase “the user biometric data” in line 1 should be amended to read –a user biometric data” to avoid a potential of 112(b) lack of antecedent basis. Appropriate correction is required. Claim 10 is objected to because of the following informalities: the phrase “an energy expense” in line 1 should be amended to read –the energy expense--.",
"Appropriate correction is required. Claim 25 is objected to because of the following informalities: the phrase “the estimated heart rate” in line 17 should be amended to read –estimated heart rate-- to avoid a potential of 112(b) lack of antecedent basis. Appropriate correction is required. Claim 25 is objected to because of the following informalities: the phrase “energy expense” in line 19 should be amended to read –the energy expense--. Appropriate correction is required.",
"Claim Rejections - 35 USC § 112 The following is a quotation of 35 U.S.C. 112(b): (b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention. The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph: The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention. Claims 1-2, 4-5, 7-12, 21-28 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. Claims 1and 25 recite the limitation “a series of coordinate data” in lines 11 and 14, respectively, this limitation is not defined by the claims, which renders the claims indefinite, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.",
"It also doesn’t change the fact that under the broadest reasonably interpretation one with ordinary skill in the art isn’t sure the series of coordinates are coordinates of which parameter. The scope of the claim remains indeterminate because of the claimed “a series of coordinate data”. Claims 1, 21 recite the limitation “moving one or more body parts”, this limitation is not defined by the claims, which renders the claims indefinite. One with ordinary skill in the art isn’t sure if the claimed “one or more body parts” are the same and/or different than the “plurality of the user’s body parts”. As broadly as claimed the scope of the claim is indeterminate with respect to claimed “moving one or more body parts” in line 12. Claim 1 recites the limitation \"the user’s body parts\" in line 8. There is insufficient antecedent basis for this limitation in the claim.",
"Claim 21 recites the limitation \"the user’s body parts\" in line 8. There is insufficient antecedent basis for this limitation in the claim. 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)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention. Claim(s) 1-2, 4-5, 7-12 and 21-25 is/are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Ward et al (US 2020/0047027). receiving spatiotemporal data by a client application stored and executing on a client device (receiving streamed, live videos, images of a user performing a workout by exercise machine 100, par.48-49, fig.1), a plurality of activity elements associated with a workout in a virtual reality (VR) or augmented reality (AR) visual space, being displayed on a display in communication with the client application (par.29, display 102 can provide continuously augmented reality overlay updated textual, graphical, or video information that is positioned on the screen based at least in part on user position, par.67, plurality of visual feedback in par.68 and par.77, as best seen in fig.6 and 10c), the spatiotemporal data indicating spatial coordinates of a plurality of points associated with a plurality of the user's body parts, while the user is performing the workout (the body parts coordinates/3-Dposition displayed on display 102, par.67-68 and skeletal representations of user body position, par.77, as best seen in fig.6 and 10c), the spatiotemporal data being updated periodically, in response to the user moving one or more body parts during the workout (the body parts coordinates/3Dposition is determining an energy expense for the user during the workout based on the spatiotemporal data (determining energy burned from imaged/video data analyzing body positions, par.28, par.87 and par.97); and displaying the energy expense by the user during the workout on the display with the activity elements within the display (displaying energy burned/calories burned, par.80, fig.10j).",
"As to claims 2 and 22, Ward discloses the system and method, wherein the spatiotemporal data is received as data derived from image data of the user performing the workout (the body position date/images/videos are received while a user is performing a workout, par.5-9, par.29, par.48-50, par.67-68 and par.77, as best seen in fig.1, 5-6 and 10c). As to claims 4 and 23, Ward discloses the system and method, wherein the energy expense includes calories burned (par.80, fig.10j). As to claims 5 and 24, Ward discloses the system and method, wherein the energy expense and calories burned are displayed as on overlay to the activity elements displayed in a virtual reality (VR) or augmented reality (AR) visual space by a camera (par.29 and par.52, display 102 can provide continuously augmented reality overlay updated textual, graphical, or video information that is positioned on the screen based As to claim 7, Ward discloses the system and method, wherein the activity elements are augmented elements displayed within space captured by a camera (3D cameras, par.5-9, par.12, par.21, par.46, par.48 and par.50, as best seen in fig.1, 5, 6 and 10c).",
"As to claim 8, Ward discloses the system and method, wherein the user biometric data including the user age, height, weight, and sex (determining biometric data, par.50, determining weight, par.80). As to claim 9, Ward discloses the system and method, wherein determining the energy expense includes: selecting one of a plurality of calculation methods (the different methods to calculate energy burned/calorie-burning, par.28, par.81 par.87, par.94 and par.97); and calculating the energy expense based on the selected calculation method (calculating energy burned/calorie-burning, par.28, par.81 par.87, par.94 and par.97). As to claim 10, Ward discloses the system and method, wherein determining an energy expense includes comparing the energy expense to a range of expected energy expenses to confirm the validity of the energy expense (Summaries can compare a user against their personal workout history, par.94). transmitting the received spatiotemporal data to a remote server by the client device (transmitting video/image data to cloud 120 and server 122, par.47 and par.53, fig.1); calculating the energy expense based on the spatiotemporal data by the server (calculating energy burned using computers/processors in server 122, par.28, par.87 and par.97); and receiving the calculated energy expense from the remote server by the client device (displaying the calculated energy burned/calories burned by display 102, par.80, fig.10j). As to claim 12, Ward discloses the system and method, further comprising: determining an estimated heart rate for the user while performing the workout (determining heart rate, par.23, par.28, par.50 and par.97), the heart rate determined based on the spatiotemporal data and user biometric data that does not change during the workout (par.28, par.50, par.52, par.82 and par.97), wherein the energy expense for the user during the workout is determined based on the spatiotemporal data and the estimated user heart rate (par.28, par.50, par.52, par.82 and par.97), the user heart rate and energy expense being determined without measuring the user's heart rate (heart rate is being calculated from biometric data captured by camera and not measured, end of par.28 and end of par.50), wherein the estimated heart rate for the user-is displayed during the workout by the client application (display 102 displays biometric information, such as, hear rate, par.80, fig.10j).",
"Response to Arguments Applicant’s arguments with respect to claim(s) 1, 21 and 25 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 MAY A ABOUELELA whose telephone number is (571)270-7917.",
"The examiner can normally be reached 8-5. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, JACQUELINE CHENG can be reached on 5712725596. 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. /MAY A ABOUELELA/Primary Examiner, Art Unit 3791"
] | https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-01-09.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
830 S.W.2d 38 (1992) K.R.W., a Minor, by his Next Friend and Mother, A.C.S, and A.C.S. Individually, Respondents, v. D.B.W., Appellant. No. WD 45142. Missouri Court of Appeals, Western District. May 12, 1992. *39 Carl William Bussey, Bussey & Associates, Kansas City, for appellant. John F. Payne, Payne & Roque, Kansas City, for respondents. Before SPINDEN, P.J., and TURNAGE and BRECKENRIDGE, JJ. PER CURIAM: D.B.W. appeals from an order of the trial court awarding $475.25 per month in child support to A.C.S. for the support of their son, K.R.W. He contends that the trial court erred in awarding an amount of child support that was greater than the amount dictated by Rule 88.01 without making a finding that such an amount was proper. The judgment is reversed and the cause remanded. D.B.W. fathered a child, K.R.W., out of wedlock with A.C.S. A.C.S. filed a petition for paternity, custody and support. The trial court issued an order in paternity, which D.B.W. does not challenge on appeal. He does, however, challenge the trial court's computation of child support. A.C.S. is employed by the Cook County Circuit Court in Chicago, Illinois. She testified that her income from the court was either $1049 or $1149 per month. The pay stub that she provided reflected an income of $523.50, presumably bi-weekly, resulting in a monthly income of $1134. A.C.S. testified that her child care expenses in Chicago were $425 per month and that she lived with her parents at an expense of $100 per month. D.B.W. a practicing dentist, did not testify. He provided the trial court with an Income and Expense Statement and a "guideline sheet" or Civil Procedure Form 14, Presumed Child Support Amount Worksheet. The Income and Expense Statement that D.B.W. provided demonstrated that he had a monthly income of $1500. The guidelines were completed using D.B.W.'s *40 monthly income of $1500 and A.C.S.'s monthly income of $1134. The guideline that D.B.W. provided the trial court did not figure in the cost of child care and arrived at a support figure for A.C.S. of $195 per month. On June 24, 1991, the trial court entered a judgment and decree of paternity, awarding A.C.S. $475.25 per month child support. The trial court stated its intention to award child support based on the guidelines, except that the judge stated that the guidelines were to be "absent the day care and then we will use the same percentages on the day care." The trial court's judgment and decree of paternity did not, however, reveal the exact calculations used to arrive at the monthly child support figure of $475.25. If the trial court used the guidelines provided by D.B.W., the amount of child support would have been $195 plus a proration of the child care costs. If the trial court independently computed the guidelines and factored in the monthly child care cost of $425 in the computation, as proper pursuant to the guidelines, the presumed child support amount would total $466, or $9.25 less than the actual amount awarded. This calculation does not, however, reflect $200 in child support D.B.W. was ordered to pay each month for another child he had fathered. The decision of the trial court is reviewed in accordance with the established standards set forth in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). The decision of the trial court must be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or erroneously applies the law. Id. at 32. The decision as to the amount of child support to be awarded rests within the sound discretion of the trial court and this court may review the amount only to determine if there has been an abuse of discretion or erroneous application of the law. Coit v. Coit, 778 S.W.2d 344, 346 (Mo.App. 1989). The parties in this case assume that the child support guidelines established by Rule 88.01 apply in determining the amount of support appropriate for K.R.W. The question of whether Rule 88 and Form 14 are mandatory in paternity suits has been addressed by the Eastern District in L.C. v. D.S., 804 S.W.2d 817, 818 (Mo.App.1991), but was not decided. The court in L.C. points out that the statutory factors that the court considers in awarding support, enumerated in § 452.340, RSMo Cum.Supp. 1990, the section under which Rule 88 was adopted, differ from the factors enumerated in § 210.841, RSMo Cum.Supp. 1990, a provision of the Uniform Parentage Act. Id. at 818. This court, however, has recently held unequivocally that Rule 88.01 is applicable to support awards in the context of paternity actions. M.L.H. v. W.H.P., 831 S.W.2d 677, 683 (Mo.App. WD 1992). M.L.H. relies upon the following provision of Rule 88.01(e): "There is a rebuttable presumption that the amount of child support calculated pursuant to Civil Procedure Form No. 14 is the amount of child support to be awarded in any judicial or administrative proceeding for dissolution of marriage, legal separation, or child support." This provision makes Rule 88.01 mandatory in the instant case as the paternity action here involves a judicial proceeding for child support. Any statute or existing rule to the contrary is superseded. Rule 41.02. The Missouri Constitution in Art. V, § 5, provides for the establishment of rules of procedure by the supreme court which shall not change substantive rights. Hough v. Hough, 819 S.W.2d 751, 752 (Mo. App.1991); State ex rel. Peabody Coal Co. v. Powell, 574 S.W.2d 423 (Mo. banc 1978). The Peabody court held that where the adoption of such a rule "is inconsistent with a statute and has not been annulled or amended by later enactment of the legislature, the rule supersedes that statute." Peabody, 574 S.W.2d at 426. Furthermore, it is constitutionally required that the same child support standards be applied in cases involving illegitimate children as in cases involving children born within a lawful marriage. Pritchard v. Pritchard, 763 S.W.2d 669, 671 (Mo.App.1988). Compliance with the terms contained in Rule 88.01 is mandatory. Campbell v. *41 Campbell, 811 S.W.2d 504, 506 (Mo.App. 1991). "Rule 88.01 creates a rebuttable presumption that the amount of child support calculated pursuant to Civil Procedure Form No. 14 is the amount of child support to be awarded." Brotherton v. Lowe, 819 S.W.2d 74, 79 (Mo.App.1991). That presumption is rebutted by a written or specific finding on the record by the trial court that the amount so calculated would be unjust or inappropriate, after consideration of all relevant factors. Id. It is mandatory that such a finding be made where the amount calculated using Form 14 differs from the amount awarded. Campbell, 811 S.W.2d at 506. D.B.W. argues that it was an abuse of discretion to use the day care expense to compute support because $425 per month for day care is not a reasonable amount. He bases his argument on a comparison of the child care expenses A.C.S. experienced in Kansas City, compared to her child care expenses in Chicago. She paid $80 per month for child care in Kansas City, as opposed to the $425 per month she is paying since her employment in Chicago. This court may not substitute its judgment for that of the trial court to reach a different result as long as there is credible evidence to support the trial court's judgment. In re Marriage of Bruske, 656 S.W.2d 288, 294 (Mo.App.1983). There is such evidence present in the instant case. A.C.S. introduced evidence of her child care costs. D.B.W. offered no evidence regarding day care expenses either in Kansas City or Chicago. Nor did he provide any evidence of the type and extent of day care K.R.W. received while in Kansas City. The trial court did not abuse its discretion in including those costs in its calculation. D.B.W. also complains that the trial court committed error in not considering federal income tax child care credits in its calculations. No reference was made to these credits at the trial level and no evidence was presented to the court on the matter. D.B.W.'s calculations in the brief are speculative and not properly before this court on appeal. See South Side Plumbing Co. v. Tigges, 525 S.W.2d 583, 590 (Mo.App.1975). The facts in the instant case do, however, reveal that the ordered support differs in amount from that calculated pursuant to Form 14, because Form 14 provides for an adjustment for other court-ordered child support payments made by the parent. Evidence of such a payment appears in the trial transcript. Using the $200.00 of court-ordered support D.B.W. is paying for another child as an adjustment to his monthly gross income, his presumed support under Form 14 would total $420.29. The amount awarded, $475.25, is $54.96 greater than the amount reached allowing for the other child support and incorporating the $425 monthly child care expense. Because the amount differs from that calculated pursuant to the guidelines and no finding has been entered on the record that the guidelines would be unjust or inappropriate, the cause must be remanded back to the trial court for further proceedings. The judgment of the trial court is reversed and the cause remanded to the trial court to allow that court, if it so chooses, to make the required findings that the guidelines would be unjust or inappropriate. If said findings are not so made, then the trial court is directed to modify the child support award to reflect a sum consistent with the guidelines. | 10-30-2013 | [
"830 S.W.2d 38 (1992) K.R.W., a Minor, by his Next Friend and Mother, A.C.S, and A.C.S. Individually, Respondents, v. D.B.W., Appellant. No. WD 45142. Missouri Court of Appeals, Western District. May 12, 1992. *39 Carl William Bussey, Bussey & Associates, Kansas City, for appellant. John F. Payne, Payne & Roque, Kansas City, for respondents. Before SPINDEN, P.J., and TURNAGE and BRECKENRIDGE, JJ. PER CURIAM: D.B.W. appeals from an order of the trial court awarding $475.25 per month in child support to A.C.S.",
"for the support of their son, K.R.W. He contends that the trial court erred in awarding an amount of child support that was greater than the amount dictated by Rule 88.01 without making a finding that such an amount was proper. The judgment is reversed and the cause remanded. D.B.W. fathered a child, K.R.W., out of wedlock with A.C.S. A.C.S. filed a petition for paternity, custody and support. The trial court issued an order in paternity, which D.B.W. does not challenge on appeal. He does, however, challenge the trial court's computation of child support. A.C.S.",
"is employed by the Cook County Circuit Court in Chicago, Illinois. She testified that her income from the court was either $1049 or $1149 per month. The pay stub that she provided reflected an income of $523.50, presumably bi-weekly, resulting in a monthly income of $1134. A.C.S. testified that her child care expenses in Chicago were $425 per month and that she lived with her parents at an expense of $100 per month. D.B.W. a practicing dentist, did not testify. He provided the trial court with an Income and Expense Statement and a \"guideline sheet\" or Civil Procedure Form 14, Presumed Child Support Amount Worksheet. The Income and Expense Statement that D.B.W.",
"provided demonstrated that he had a monthly income of $1500. The guidelines were completed using D.B.W. 's *40 monthly income of $1500 and A.C.S. 's monthly income of $1134. The guideline that D.B.W. provided the trial court did not figure in the cost of child care and arrived at a support figure for A.C.S. of $195 per month. On June 24, 1991, the trial court entered a judgment and decree of paternity, awarding A.C.S. $475.25 per month child support. The trial court stated its intention to award child support based on the guidelines, except that the judge stated that the guidelines were to be \"absent the day care and then we will use the same percentages on the day care.\" The trial court's judgment and decree of paternity did not, however, reveal the exact calculations used to arrive at the monthly child support figure of $475.25. If the trial court used the guidelines provided by D.B.W., the amount of child support would have been $195 plus a proration of the child care costs.",
"If the trial court independently computed the guidelines and factored in the monthly child care cost of $425 in the computation, as proper pursuant to the guidelines, the presumed child support amount would total $466, or $9.25 less than the actual amount awarded. This calculation does not, however, reflect $200 in child support D.B.W. was ordered to pay each month for another child he had fathered. The decision of the trial court is reviewed in accordance with the established standards set forth in Murphy v. Carron, 536 S.W.2d 30 (Mo.",
"banc 1976). The decision of the trial court must be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or erroneously applies the law. Id. at 32. The decision as to the amount of child support to be awarded rests within the sound discretion of the trial court and this court may review the amount only to determine if there has been an abuse of discretion or erroneous application of the law. Coit v. Coit, 778 S.W.2d 344, 346 (Mo.App. 1989). The parties in this case assume that the child support guidelines established by Rule 88.01 apply in determining the amount of support appropriate for K.R.W. The question of whether Rule 88 and Form 14 are mandatory in paternity suits has been addressed by the Eastern District in L.C. v. D.S., 804 S.W.2d 817, 818 (Mo.App.1991), but was not decided.",
"The court in L.C. points out that the statutory factors that the court considers in awarding support, enumerated in § 452.340, RSMo Cum.Supp. 1990, the section under which Rule 88 was adopted, differ from the factors enumerated in § 210.841, RSMo Cum.Supp. 1990, a provision of the Uniform Parentage Act. Id. at 818. This court, however, has recently held unequivocally that Rule 88.01 is applicable to support awards in the context of paternity actions. M.L.H. v. W.H.P., 831 S.W.2d 677, 683 (Mo.App. WD 1992). M.L.H. relies upon the following provision of Rule 88.01(e): \"There is a rebuttable presumption that the amount of child support calculated pursuant to Civil Procedure Form No. 14 is the amount of child support to be awarded in any judicial or administrative proceeding for dissolution of marriage, legal separation, or child support.\" This provision makes Rule 88.01 mandatory in the instant case as the paternity action here involves a judicial proceeding for child support. Any statute or existing rule to the contrary is superseded. Rule 41.02.",
"The Missouri Constitution in Art. V, § 5, provides for the establishment of rules of procedure by the supreme court which shall not change substantive rights. Hough v. Hough, 819 S.W.2d 751, 752 (Mo. App.1991); State ex rel. Peabody Coal Co. v. Powell, 574 S.W.2d 423 (Mo. banc 1978). The Peabody court held that where the adoption of such a rule \"is inconsistent with a statute and has not been annulled or amended by later enactment of the legislature, the rule supersedes that statute.\" Peabody, 574 S.W.2d at 426. Furthermore, it is constitutionally required that the same child support standards be applied in cases involving illegitimate children as in cases involving children born within a lawful marriage. Pritchard v. Pritchard, 763 S.W.2d 669, 671 (Mo.App.1988). Compliance with the terms contained in Rule 88.01 is mandatory. Campbell v. *41 Campbell, 811 S.W.2d 504, 506 (Mo.App. 1991).",
"\"Rule 88.01 creates a rebuttable presumption that the amount of child support calculated pursuant to Civil Procedure Form No. 14 is the amount of child support to be awarded.\" Brotherton v. Lowe, 819 S.W.2d 74, 79 (Mo.App.1991). That presumption is rebutted by a written or specific finding on the record by the trial court that the amount so calculated would be unjust or inappropriate, after consideration of all relevant factors. Id. It is mandatory that such a finding be made where the amount calculated using Form 14 differs from the amount awarded.",
"Campbell, 811 S.W.2d at 506. D.B.W. argues that it was an abuse of discretion to use the day care expense to compute support because $425 per month for day care is not a reasonable amount. He bases his argument on a comparison of the child care expenses A.C.S. experienced in Kansas City, compared to her child care expenses in Chicago. She paid $80 per month for child care in Kansas City, as opposed to the $425 per month she is paying since her employment in Chicago. This court may not substitute its judgment for that of the trial court to reach a different result as long as there is credible evidence to support the trial court's judgment. In re Marriage of Bruske, 656 S.W.2d 288, 294 (Mo.App.1983).",
"There is such evidence present in the instant case. A.C.S. introduced evidence of her child care costs. D.B.W. offered no evidence regarding day care expenses either in Kansas City or Chicago. Nor did he provide any evidence of the type and extent of day care K.R.W. received while in Kansas City. The trial court did not abuse its discretion in including those costs in its calculation. D.B.W. also complains that the trial court committed error in not considering federal income tax child care credits in its calculations. No reference was made to these credits at the trial level and no evidence was presented to the court on the matter. D.B.W. 's calculations in the brief are speculative and not properly before this court on appeal.",
"See South Side Plumbing Co. v. Tigges, 525 S.W.2d 583, 590 (Mo.App.1975). The facts in the instant case do, however, reveal that the ordered support differs in amount from that calculated pursuant to Form 14, because Form 14 provides for an adjustment for other court-ordered child support payments made by the parent. Evidence of such a payment appears in the trial transcript. Using the $200.00 of court-ordered support D.B.W. is paying for another child as an adjustment to his monthly gross income, his presumed support under Form 14 would total $420.29. The amount awarded, $475.25, is $54.96 greater than the amount reached allowing for the other child support and incorporating the $425 monthly child care expense. Because the amount differs from that calculated pursuant to the guidelines and no finding has been entered on the record that the guidelines would be unjust or inappropriate, the cause must be remanded back to the trial court for further proceedings. The judgment of the trial court is reversed and the cause remanded to the trial court to allow that court, if it so chooses, to make the required findings that the guidelines would be unjust or inappropriate.",
"If said findings are not so made, then the trial court is directed to modify the child support award to reflect a sum consistent with the guidelines."
] | https://www.courtlistener.com/api/rest/v3/opinions/1766550/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
This suit adds another chapter to the controversy between the two rival labor organizations involved in the case of Quinn, etal. v. Marvin, et al., 168 Or. 52, 120 P.2d 227. In the Quinn-Marvin case both labor organizations, namely, the Furniture Makers and Finishers Local Union No. 1090, which was chartered *Page 314 by the Brotherhood of Painters, Decorators and Paperhangers of America, affiliated with the American Federation of Labor, and Furniture Makers Local Union No. 1090 affiliated with the United Furniture Workers of America, which in turn is affiliated with the Congress of Industrial Organizations, were claiming the right to the possession and control of the funds, records, files and other personal property of the Furniture Makers and Finishers Local Union No. 1090. In the case at bar, plaintiffs are claiming that, notwithstanding the fact that they have become members of the organization affiliated with the Congress of Industrial Organizations, their membership in an unincorporated association known to this record as the Doernbecher Workers Protective Association, the membership of which is declared by its constitution to be coextensive with the membership of said Furniture Makers and Finishers Local Union No. 1090, and that as such alleged members of the A.F.L. organization plaintiffs' action and that of those whom plaintiffs represent in voting upon a motion to distribute the fund in suit, the same being a "strike fund" created for the benefit of the members of said Furniture Makers and Local Union No. 1090, should be given effect and said fund should be so distributed. Defendants claim that plaintiffs, and those for whose benefit plaintiffs are acting, forfeited their membership in said unincorporated association when their membership in said Furniture Makers and Finishers Local Union No. 1090 terminated. One of the provisions of said unincorporated association's constitution and by-laws is as follows: "Membership in this association shall be coextensive with membership in Furniture Makers *Page 315 and Finishers Union Local 1090. No person not a member in good standing of Local 1090 shall be eligible for membership in this association, but all persons who are members in good standing of Local 1090 shall be eligible for membership in this association." It is the contention of plaintiffs that the above quoted provision merely prescribes the qualification prerequisite to membership in said unincorporated association and does not imply that such membership, when once gained, will be forfeited by those who cease to be members in good standing in said Furniture Makers and Finishers Union Local 1090. There are authorities holding that the term, eligible to an office, means eligible to be elected to the office at the date of the appointment or election. State v. Christenson, 84 Utah 185,35 P.2d 775, 779; Beatty v. Hartwell, 217 Ala. 239,115 So. 164. There are other authorities holding that such term signifies legal qualification for that office, that is qualification to hold office as well as to be chosen therefor. State ex rel.Nourse v. Clarke, 3 Nev. 566, 570; State ex rel. Sundfor v.Thorson, 72 N.D. 246, 6 N.W.2d 89, 143 A.L.R. 599; Hoy v.State ex rel. Buchanan, 168 Ind. 506, 81 N.E. 509, 11 Ann. Cas. 944. There are other authorities holding that it is susceptible of both meanings, and that in each case it is necessary, in accordance with a well settled canon of construction, to give the term the meaning which will carry out the purpose of the law.State ex. rel v. Dunn, 277 Mo. 38, 209 S.W. 110; Demaree v.Scates, 50 Kan. 275, 32 P. 1123, 20 L.R.A. 97, 34 Am. St. Rep. 113; Kirkpatrick v. Brownfield, 97 Ky. 558, 31 S.W. 137, 29 L.R.A. 703, 53 Am. St. Rep. 422. *Page 316 In determining the meaning of the term eligible for membership, as used in the instant case, effect must be given to the provision requiring the membership of the unincorporated association to be coextensive with membership in the Furniture Makers and Finishers Local Union No. 1090. The Oxford English Dictionary thus defines coextensive: "Extending over the same space of time, of equal extension; coinciding in limits." Similarly, Funk Wagnalls New Standard Dictionary defines it as — "Having equal extension, having the same limits or extent." The Oxford Dictionary defines "Extension of a term or concept" as "its range as measured by the number of objects which it denotes or contains under it." In view of the flexibility of the term eligibility and the approved meaning of the term coextensive, we think the membership of the unincorporated association must be and continue to be the same, neither larger nor smaller than that of Local 1090 affiliated with the A.F.L. This results in an affirmance of the trial court's decree in so far as it denies the relief sought by plaintiffs' amended complaint. The action of those who controlled the proceedings which ensued after the presiding officer had adjourned the meeting of September 27, 1940, at which time the purported action was taken authorizing the distribution of the fund in suit, was ineffective because the course thus attempted was and is contrary to the method of procedure prescribed by the constitution and by-laws of the unincorporated association. This *Page 317 is aptly reflected in the opinion of the learned trial judge thus: "The meeting of September 27, 1940, was the regular monthly meeting of the D.W.P.A. It was presided over by Fred Manash, the president of D.W.P.A. The evidence clearly establishes a controversy of considerable proportions, encouraged not only by verbal argument, but fisticuffs as well, assuming the proportions of a `riot'; in the midst of which disorder the president adjourned the meeting, being unable to maintain order. Thereafter those remaining resumed the meeting with temporary officers and proceeded to take the action in question in voting repayment to the donors of the D.W.P.A. funds. That the meeting was truly uncontrollable and the president justified in the action he took in adjourning the same is established by the evidence of the minutes (Exhibit 2) and the testimony of the witnesses Manash and Shankles. The subsequent manner in which the meeting was conducted, the action taken in voting to suspend all officers and elect new ones, in striking Article 17, Section 2 of the Constitution and By-laws, serve to indicate the reckless disregard of procedure as provided by the Constitution and By-laws (Article 6, Section 4 and 5). The presiding officer attempted to conduct the meeting and maintain order as directed by Article 8. He refused to put the motion to suspend all officers and elect new ones, clearly contrary to the method of accomplishing such result provided by the Constitution and By-laws, and thereupon disorder followed. It was impossible to transact business in an orderly manner, and the presiding officer did the only thing open to him, — he adjourned the meeting. Had he proceeded to put an appeal from the ruling of the chair, and failed to be sustained, the action taken clearly would have been illegal." The trial judge also recognized the rule that in the absence of any provision in the laws of an association *Page 318 prescribing the manner in which its meetings shall be conducted, common parliamentary principles in use by all deliberative assemblies may be resorted to in considering the regularity of the proceedings. 7 C.J.S., Subject: Associations, p. 44, Sec. 18, subdiv. d, citing Ostrom v. Greene, 161 N.Y. 353, 55 N.E. 919, affirming 52 N.Y.S. 1147, 30 A.D. 621, affirming45 N.Y.S. 852, 20 Misc. 177; and Mixed Local of Hotel and RestaurantEmployees Union Local No. 458 v. Hotel and Restaurant EmployeesInternational Alliance and Bartenders International League ofAmerica, 212 Minn. 587, 4 N.W.2d 771. See also 46 C.J., Subject: Parliamentary Law, p. 1377, § 3, citing Witherspoon v.State, 138 Miss. 310, 103 So. 134. The members of the Doernbecher Workers Protective Association, as members of the Furniture Makers and Finishers Local Union No. 1090, are controlled by the constitution and by-laws of said Local 1090 and those of Brotherhood of Painters, Decorators and Paperhangers of America. The first paragraph of the constitution of said Local 1090, after stating its purpose, is as follows: "The meetings of this Union shall be governed by the Roberts Rules of Order unless otherwise specified by this Constitution and By-laws"; and, under the subject of "Parliamentary Rules" inter alia the Constitution and By-laws of said Brotherhood of Painters, Decorators and Paperhangers contain the following: "Rule 5. All questions of a parliamentary nature not provided for in these rules shall be decided by Roberts' Rules of Order." We think, therefore, that the trial judge was fully warranted in holding that, as applied to the case *Page 319 at bar, Robert's Rules of Order could be deemed to state common parliamentary principles in general usage without any other affirmative showing to that effect. As stated by the trial judge, section 58 of that authority, among other things, declares the following rule of procedure: "In case of fire, riot, or very serious disorder, or, other great emergency, the chair has the right and the duty to declare the assembly adjourned to some other time (and place if necessary), if it is impracticable to take a vote, or in his opinion, dangerous to delay for a vote." Robert's Rules of Order Revised, (1921 Ed.) p. 237, Sec. 58. We think that the learned trial judge was justified in saying in his opinion: "Clearly the situation presented here was one not only justifying, but requiring the action taken." It follows that the attempt by those who remained after the adjournment of the meeting of September 27, 1940, to resume business and disburse the fund in suit by distributing it to its alleged donors was ineffective and of no validity. We are also in accord with the statement in the opinion of the trial judge concerning the meeting of September 28, 1940. We quote as follows therefrom: "The meeting of September 28 was a meeting of Local 1090" (affiliated with A.F.L.), "called for the specific purpose stated in the notice `to take action on new proposed contract' (Exhibit 9). Clearly, this meeting was limited to the affairs of Local 1090 and the specific purpose thereof, being a special meeting. It could and did not act legally or authoritatively upon the `strike funds'. By no magic alchemy was it converted into a meeting of *Page 320 the D.W.P.A. even though membership and general setup and purpose were identical. It was powerless, therefore, to transact the business of the D.W.P.A." We concur with the learned trial judge in the above quoted excerpts from his opinion. Article 17 of the Constitution and By-laws of said unincorporated association provides as follows: "Article XVII — Dissolution Section 1. In the event this association shall dissolve, the funds and property of the association shall be liquidated and shall first be used to pay all outstanding obligations of the association and the remainder shall be divided equally among the membership of the association as of the date of dissolution. Section 2. This association shall not be dissolved so long as twenty-five (25) members oppose dissolution." This provision is controlling upon the members until it is amended or repealed by approved procedure. No such procedure was taken or attempted. The record indicates that any attempt to dissolve the association without first amending or repealing the foregoing provision of its constitution and by-laws would have been futile for the reason that there were more than twenty-five members who would oppose it. We have held that by joining an affiliate of the Congress of Industrial Organizations a member of an organization affiliated with the American Federation of Labor forfeits his membership in such A.F.L. organization. Quinn, et al. v. Marvin, et al., supra. In the instant case, we hold that such forfeiture of membership in Local 1090 affiliated with the A.F.L. results ipsofacto in forfeiture of membership in the *Page 321 unincorporated association known to this record as Doernbecher Workers Protective Association. The trial court made an order allowing each of the following named persons the sum of $250 as compensation for their services as trustees of the fund in suit, to-wit: Fred Manash, Robert Marvin, Jack Shankles, Richard Shultz and C.J. Drake. As we understand the record, there were but three trustees of the fund in suit. Plaintiffs' amended complaint, after setting forth the names of the depositaries and the respective amounts of the fund in suit deposited with such depositaries respectively, states in paragraph IX: "That in making said deposits the said defendant banks received instructions from the Doernbecher Workers Protective Association that disbursements or withdrawals from said respective account could be made only over the signatures of Fred Manash, Robert Marvin and Jack Shankles." Paragraph IX of plaintiff's complaint was expressly admitted in defendant's answer and crossbill, which answer and crossbill was filed sometime subsequent to the filing of plaintiffs' amended complaint; and we find no other answer of defendants, hence, we feel warranted in assuming that the admission above mentioned refers to paragraph IX of plaintiffs' amended complaint. The record discloses that defendant Manash made the motion to distribute the fund in suit, which is shown to have been one of the reasons for the institution and prosecution of this suit. Plaintiffs Marvin and Shankles not only attempted to distribute the fund in suit, but have sought by this suit to procure a decree of distribution thereof. We do not construe this course *Page 322 as constituting ground for an allowance of compensation for services either in creating, augmenting or preserving a trust fund. For that reason, the decree of the circuit court is vacated, annulled and set aside in so far as it directs payment of $250 to each of the five persons named therein as trustees. In all other respects, the decree of the circuit court is affirmed. It is further ordered that neither party hereto recover costs or disbursements upon this appeal. *Page 323 | 07-06-2016 | [
"This suit adds another chapter to the controversy between the two rival labor organizations involved in the case of Quinn, etal. v. Marvin, et al., 168 Or. 52, 120 P.2d 227. In the Quinn-Marvin case both labor organizations, namely, the Furniture Makers and Finishers Local Union No. 1090, which was chartered *Page 314 by the Brotherhood of Painters, Decorators and Paperhangers of America, affiliated with the American Federation of Labor, and Furniture Makers Local Union No. 1090 affiliated with the United Furniture Workers of America, which in turn is affiliated with the Congress of Industrial Organizations, were claiming the right to the possession and control of the funds, records, files and other personal property of the Furniture Makers and Finishers Local Union No.",
"1090. In the case at bar, plaintiffs are claiming that, notwithstanding the fact that they have become members of the organization affiliated with the Congress of Industrial Organizations, their membership in an unincorporated association known to this record as the Doernbecher Workers Protective Association, the membership of which is declared by its constitution to be coextensive with the membership of said Furniture Makers and Finishers Local Union No. 1090, and that as such alleged members of the A.F.L. organization plaintiffs' action and that of those whom plaintiffs represent in voting upon a motion to distribute the fund in suit, the same being a \"strike fund\" created for the benefit of the members of said Furniture Makers and Local Union No.",
"1090, should be given effect and said fund should be so distributed. Defendants claim that plaintiffs, and those for whose benefit plaintiffs are acting, forfeited their membership in said unincorporated association when their membership in said Furniture Makers and Finishers Local Union No. 1090 terminated. One of the provisions of said unincorporated association's constitution and by-laws is as follows: \"Membership in this association shall be coextensive with membership in Furniture Makers *Page 315 and Finishers Union Local 1090. No person not a member in good standing of Local 1090 shall be eligible for membership in this association, but all persons who are members in good standing of Local 1090 shall be eligible for membership in this association.\"",
"It is the contention of plaintiffs that the above quoted provision merely prescribes the qualification prerequisite to membership in said unincorporated association and does not imply that such membership, when once gained, will be forfeited by those who cease to be members in good standing in said Furniture Makers and Finishers Union Local 1090. There are authorities holding that the term, eligible to an office, means eligible to be elected to the office at the date of the appointment or election. State v. Christenson, 84 Utah 185,35 P.2d 775, 779; Beatty v. Hartwell, 217 Ala. 239,115 So. 164. There are other authorities holding that such term signifies legal qualification for that office, that is qualification to hold office as well as to be chosen therefor.",
"State ex rel.Nourse v. Clarke, 3 Nev. 566, 570; State ex rel. Sundfor v.Thorson, 72 N.D. 246, 6 N.W.2d 89, 143 A.L.R. 599; Hoy v.State ex rel. Buchanan, 168 Ind. 506, 81 N.E. 509, 11 Ann. Cas. 944. There are other authorities holding that it is susceptible of both meanings, and that in each case it is necessary, in accordance with a well settled canon of construction, to give the term the meaning which will carry out the purpose of the law.State ex. rel v. Dunn, 277 Mo. 38, 209 S.W. 110; Demaree v.Scates, 50 Kan. 275, 32 P. 1123, 20 L.R.A. 97, 34 Am. St. Rep. 113; Kirkpatrick v. Brownfield, 97 Ky. 558, 31 S.W. 137, 29 L.R.A.",
"703, 53 Am. St. Rep. 422. *Page 316 In determining the meaning of the term eligible for membership, as used in the instant case, effect must be given to the provision requiring the membership of the unincorporated association to be coextensive with membership in the Furniture Makers and Finishers Local Union No. 1090. The Oxford English Dictionary thus defines coextensive: \"Extending over the same space of time, of equal extension; coinciding in limits.\" Similarly, Funk Wagnalls New Standard Dictionary defines it as — \"Having equal extension, having the same limits or extent.\" The Oxford Dictionary defines \"Extension of a term or concept\" as \"its range as measured by the number of objects which it denotes or contains under it.\" In view of the flexibility of the term eligibility and the approved meaning of the term coextensive, we think the membership of the unincorporated association must be and continue to be the same, neither larger nor smaller than that of Local 1090 affiliated with the A.F.L. This results in an affirmance of the trial court's decree in so far as it denies the relief sought by plaintiffs' amended complaint. The action of those who controlled the proceedings which ensued after the presiding officer had adjourned the meeting of September 27, 1940, at which time the purported action was taken authorizing the distribution of the fund in suit, was ineffective because the course thus attempted was and is contrary to the method of procedure prescribed by the constitution and by-laws of the unincorporated association. This *Page 317 is aptly reflected in the opinion of the learned trial judge thus: \"The meeting of September 27, 1940, was the regular monthly meeting of the D.W.P.A.",
"It was presided over by Fred Manash, the president of D.W.P.A. The evidence clearly establishes a controversy of considerable proportions, encouraged not only by verbal argument, but fisticuffs as well, assuming the proportions of a `riot'; in the midst of which disorder the president adjourned the meeting, being unable to maintain order. Thereafter those remaining resumed the meeting with temporary officers and proceeded to take the action in question in voting repayment to the donors of the D.W.P.A. funds. That the meeting was truly uncontrollable and the president justified in the action he took in adjourning the same is established by the evidence of the minutes (Exhibit 2) and the testimony of the witnesses Manash and Shankles. The subsequent manner in which the meeting was conducted, the action taken in voting to suspend all officers and elect new ones, in striking Article 17, Section 2 of the Constitution and By-laws, serve to indicate the reckless disregard of procedure as provided by the Constitution and By-laws (Article 6, Section 4 and 5). The presiding officer attempted to conduct the meeting and maintain order as directed by Article 8. He refused to put the motion to suspend all officers and elect new ones, clearly contrary to the method of accomplishing such result provided by the Constitution and By-laws, and thereupon disorder followed. It was impossible to transact business in an orderly manner, and the presiding officer did the only thing open to him, — he adjourned the meeting. Had he proceeded to put an appeal from the ruling of the chair, and failed to be sustained, the action taken clearly would have been illegal.\"",
"The trial judge also recognized the rule that in the absence of any provision in the laws of an association *Page 318 prescribing the manner in which its meetings shall be conducted, common parliamentary principles in use by all deliberative assemblies may be resorted to in considering the regularity of the proceedings. 7 C.J.S., Subject: Associations, p. 44, Sec. 18, subdiv. d, citing Ostrom v. Greene, 161 N.Y. 353, 55 N.E. 919, affirming 52 N.Y.S. 1147, 30 A.D. 621, affirming45 N.Y.S. 852, 20 Misc. 177; and Mixed Local of Hotel and RestaurantEmployees Union Local No. 458 v. Hotel and Restaurant EmployeesInternational Alliance and Bartenders International League ofAmerica, 212 Minn. 587, 4 N.W.2d 771. See also 46 C.J., Subject: Parliamentary Law, p. 1377, § 3, citing Witherspoon v.State, 138 Miss. 310, 103 So. 134.",
"The members of the Doernbecher Workers Protective Association, as members of the Furniture Makers and Finishers Local Union No. 1090, are controlled by the constitution and by-laws of said Local 1090 and those of Brotherhood of Painters, Decorators and Paperhangers of America. The first paragraph of the constitution of said Local 1090, after stating its purpose, is as follows: \"The meetings of this Union shall be governed by the Roberts Rules of Order unless otherwise specified by this Constitution and By-laws\"; and, under the subject of \"Parliamentary Rules\" inter alia the Constitution and By-laws of said Brotherhood of Painters, Decorators and Paperhangers contain the following: \"Rule 5. All questions of a parliamentary nature not provided for in these rules shall be decided by Roberts' Rules of Order.\" We think, therefore, that the trial judge was fully warranted in holding that, as applied to the case *Page 319 at bar, Robert's Rules of Order could be deemed to state common parliamentary principles in general usage without any other affirmative showing to that effect. As stated by the trial judge, section 58 of that authority, among other things, declares the following rule of procedure: \"In case of fire, riot, or very serious disorder, or, other great emergency, the chair has the right and the duty to declare the assembly adjourned to some other time (and place if necessary), if it is impracticable to take a vote, or in his opinion, dangerous to delay for a vote.\"",
"Robert's Rules of Order Revised, (1921 Ed.) p. 237, Sec. 58. We think that the learned trial judge was justified in saying in his opinion: \"Clearly the situation presented here was one not only justifying, but requiring the action taken.\" It follows that the attempt by those who remained after the adjournment of the meeting of September 27, 1940, to resume business and disburse the fund in suit by distributing it to its alleged donors was ineffective and of no validity. We are also in accord with the statement in the opinion of the trial judge concerning the meeting of September 28, 1940. We quote as follows therefrom: \"The meeting of September 28 was a meeting of Local 1090\" (affiliated with A.F.L. ), \"called for the specific purpose stated in the notice `to take action on new proposed contract' (Exhibit 9). Clearly, this meeting was limited to the affairs of Local 1090 and the specific purpose thereof, being a special meeting. It could and did not act legally or authoritatively upon the `strike funds'. By no magic alchemy was it converted into a meeting of *Page 320 the D.W.P.A. even though membership and general setup and purpose were identical. It was powerless, therefore, to transact the business of the D.W.P.A.\"",
"We concur with the learned trial judge in the above quoted excerpts from his opinion. Article 17 of the Constitution and By-laws of said unincorporated association provides as follows: \"Article XVII — Dissolution Section 1. In the event this association shall dissolve, the funds and property of the association shall be liquidated and shall first be used to pay all outstanding obligations of the association and the remainder shall be divided equally among the membership of the association as of the date of dissolution. Section 2. This association shall not be dissolved so long as twenty-five (25) members oppose dissolution.\" This provision is controlling upon the members until it is amended or repealed by approved procedure. No such procedure was taken or attempted. The record indicates that any attempt to dissolve the association without first amending or repealing the foregoing provision of its constitution and by-laws would have been futile for the reason that there were more than twenty-five members who would oppose it.",
"We have held that by joining an affiliate of the Congress of Industrial Organizations a member of an organization affiliated with the American Federation of Labor forfeits his membership in such A.F.L. organization. Quinn, et al. v. Marvin, et al., supra. In the instant case, we hold that such forfeiture of membership in Local 1090 affiliated with the A.F.L. results ipsofacto in forfeiture of membership in the *Page 321 unincorporated association known to this record as Doernbecher Workers Protective Association. The trial court made an order allowing each of the following named persons the sum of $250 as compensation for their services as trustees of the fund in suit, to-wit: Fred Manash, Robert Marvin, Jack Shankles, Richard Shultz and C.J.",
"Drake. As we understand the record, there were but three trustees of the fund in suit. Plaintiffs' amended complaint, after setting forth the names of the depositaries and the respective amounts of the fund in suit deposited with such depositaries respectively, states in paragraph IX: \"That in making said deposits the said defendant banks received instructions from the Doernbecher Workers Protective Association that disbursements or withdrawals from said respective account could be made only over the signatures of Fred Manash, Robert Marvin and Jack Shankles.\" Paragraph IX of plaintiff's complaint was expressly admitted in defendant's answer and crossbill, which answer and crossbill was filed sometime subsequent to the filing of plaintiffs' amended complaint; and we find no other answer of defendants, hence, we feel warranted in assuming that the admission above mentioned refers to paragraph IX of plaintiffs' amended complaint.",
"The record discloses that defendant Manash made the motion to distribute the fund in suit, which is shown to have been one of the reasons for the institution and prosecution of this suit. Plaintiffs Marvin and Shankles not only attempted to distribute the fund in suit, but have sought by this suit to procure a decree of distribution thereof. We do not construe this course *Page 322 as constituting ground for an allowance of compensation for services either in creating, augmenting or preserving a trust fund. For that reason, the decree of the circuit court is vacated, annulled and set aside in so far as it directs payment of $250 to each of the five persons named therein as trustees. In all other respects, the decree of the circuit court is affirmed. It is further ordered that neither party hereto recover costs or disbursements upon this appeal. *Page 323"
] | https://www.courtlistener.com/api/rest/v3/opinions/3839362/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
As filed with the Securities and Exchange Commission on November 28, 2012 File Nos. 333–16093 811–07923 SECURITIES AND EXCHANGE COMMISSION Washington, D.C.20549 FORM N–1A REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 Post–Effective Amendment No.55 and REGISTRATION STATEMENT UNDER THE INVESTMENT COMPANY ACT OF 1940 Amendment No.56 CNI CHARTER FUNDS (Exact Name of Registrant as Specified in its Charter) 400 North Roxbury Drive Beverly Hills, California 90210 (Address of Principal Executive Office) (800) 708-8881 (Registrant’s Telephone Number, Including Area Code) William J. Souza, Esq. 400 North Roxbury Drive Beverly Hills, California 90210 (Name and Address of Agent for Service) It is proposed that this filing will become effective: [X] immediately upon filing pursuant to Rule 485(b) [] on (date), pursuant to Rule 485(b) [ ] 60 days after filing pursuant to Rule 485(a)(1) [] 75 days after filing pursuant to Rule 485(a)(2) [ ] on pursuant to Rule 485(a)(1) Please Send Copy of Communications to: MICHAEL GLAZER Bingham McCutchen LLP 355 South Grand Avenue, Suite 4400 Los Angeles, California 90071-3106 PROSPECTUS DATED NOVEMBER 28, 2012 Government Money Market Fund High Yield Bond Fund Servicing Class (CNIXX) Institutional Class (CNIHX) Class N (CNGXX) Servicing Class (CHYIX) Class S (CNFXX) Class N (CHBAX) Prime Money Market Fund Multi-Asset Fund Institutional Class (CNRPX) Institutional Class (CNIMX) Servicing Class (CNMXX) Servicing Class (CNIIX) Class N (CNPXX) Class N (CNIAX) Class S (CNSXX) U.S. Core Equity Fund California Tax Exempt Money Market Fund Institutional Class (CNRUX) Servicing Class (CNTXX) Servicing Class (CNRVX) Class N (CNEXX) Class N (CNRWX) Class S (CEMXX) Diversified Equity Fund Limited Maturity Fixed Income Fund Institutional Class (AHDEX) Institutional Class (AHLFX) Class N (AHADX) Class N (AHALX) Large Cap Value Equity Fund Government Bond Fund Institutional Class (CNILX) Institutional Class (CNIGX) Servicing Class (CNLIX) Servicing Class (CNBIX) Class N (CVEAX) Class N (CGBAX) Large Cap Growth Equity Fund Corporate Bond Fund Servicing Class (CNGIX) Servicing Class (CNCIX) Class N (CLEAX) Class N (CCBAX) Socially Responsible Equity Fund California Tax Exempt Bond Fund Institutional Class (AHSRX) Servicing Class (CNTIX) Class N (AHRAX) Class N (CCTEX) Full Maturity Fixed Income Fund Institutional Class (AHFMX) Class N (AHAFX) table of contents Summaries 2 Government Money Market Fund (the “Government Money Fund”) 2 Prime Money Market Fund (the “Prime Money Fund”) 5 California Tax Exempt Money Market Fund (the “California Money Fund”) 8 Limited Maturity Fixed Income Fund (the “Limited Maturity Fund”) 11 Government Bond Fund 15 Corporate Bond Fund 18 California Tax Exempt Bond Fund 22 Full Maturity Fixed Income Fund (the “Full Maturity Fund”) 26 High Yield Bond Fund 30 Multi-Asset Fund 34 U.S. Core Equity Fund 39 Diversified Equity Fund 42 Large Cap Value Equity Fund (the “Large Cap Value Fund”) 46 Large Cap Growth Equity Fund (the “Large Cap Growth Fund”) 49 Socially Responsible Equity Fund 52 More About the Funds 56 More About the Funds’ Risks 57 Management of the Funds 65 How to Buy, Sell and Exchange Shares 71 Dividends and Taxes 77 Financial Highlights 79 Important Terms to Know 83 Privacy Principles 84 For More Information Back Cover Mutual fund shares are not insured or guaranteed by the U.S. Government, the Federal Deposit Insurance Corporation or any other governmental agency. Mutual fund shares are not bank deposits, nor are they obligations of, or issued, endorsed or guaranteed by City National Bank. Investing in mutual funds involves risks, including possible loss of principal. The Funds’ Statement of Additional Information (the “SAI”) has more detailed information on all subjects covered in this Prospectus. Investors seeking more in-depth explanations of the Funds should request the SAI and review it before purchasing shares. CNI CHARTER FUNDS | 1 summaries Government Money Fund INVESTMENT GOAL The Government Money Fund is a money market fund that seeks to preserve your principal and maintain a high degree of liquidity while providing current income. Also, the Government Money Fund seeks to maintain a $1.00 per share net asset value (“NAV”). FEES AND EXPENSES OF THE FUND The table below describes the fees and expenses you may pay if you buy and hold shares of the Government Money Fund. Annual Fund Operating Expenses (expenses that you pay each year as a percentage of the value of your investment) ServicingClass(1) Class N Class S Management Fees 0.26% 0.26% 0.26% Distribution (12b-1) Fee None 0.50% 0.50% Other Expenses Shareholder Servicing Fee 0.25% 0.25% 0.25% Other Fund Expenses 0.10% 0.10% 0.10% Total Other Expenses 0.35% 0.35% 0.35% Total Annual Fund Operating Expenses 0.61% 1.11% 1.11% (1) Effective November 28, 2012, the shares previously designated as Institutional Class shares were redesignated as Servicing Class shares. EXAMPLE This Example is intended to help you compare the cost of investing in the Government Money Fund with the cost of investing in other mutual funds. The Example assumes that you invest $10,000 in the Government Money Fund for the time periods indicated and then redeem all of your shares at the end of those periods. The Example also assumes that your investment has a 5% return each year and that the Fund’s operating expenses remain the same. Although your actual costs may be higher or lower, based on these assumptions your costs would be: 1 Year 3 Years 5 Years 10 Years ServicingClass Class N Class S PRINCIPAL INVESTMENT STRATEGIES The Government Money Fund purchases liquid, high quality, short-term U.S. Government bonds and notes. The Fund invests at least 80% of its net assets (including borrowings for investment purposes) in U.S. Government securities. In particular, the Fund invests in U.S. Treasury obligations, obligations issued or guaranteed as to principal and interest by agencies or instrumentalities of the U.S. Government and repurchase agreements involving these obligations. Obligations issued or guaranteed by the U.S. Government or its agencies or instrumentalities in which the Government Money Fund invests consist principally of securities issued or guaranteed by Fannie Mae (formerly known as the Federal National Mortgage Association), the Federal Home Loan Bank (“FHLB”), Freddie Mac (formerly known as the Federal Home Loan Mortgage Corporation) and the Government National Mortgage Association (“Ginnie Mae”). The securities held by the Fund must, in the opinion of City National Asset Management, Inc. (“CNAM”), the Fund’s investment adviser, present minimal credit risk. The Fund invests in compliance with the requirements of Rule 2a-7 under the Investment Company Act of 1940 relating to the credit quality, maturity, liquidity and diversification of investments for money market funds. CNI CHARTER FUNDS | 2 Using a top-down strategy and bottom-up security selection, CNAM seeks securities with an acceptable maturity that are marketable and liquid and offer competitive yields. CNAM also considers factors such as the anticipated level of interest rates and the maturity of individual securities relative to the maturity of the Fund as a whole. PRINCIPAL RISKS OF INVESTING IN THE FUND As with any money market fund, there are risks to investing. Neither the Government Money Fund nor CNAM can guarantee that the Fund will meet its investment goal. Here are the principal risks to consider: No Guarantees – An investment in the Fund is not a deposit in a bank and is not insured or guaranteed by the Federal Deposit Insurance Corporation or any other government agency. Although the Fund seeks to preserve the value of your investment at an NAV of $1.00, it is possible to lose money by investing in the Fund. Additionally, you should be aware that a very small number of money market funds in other fund complexes have in the past “broken the buck,” which means that investors did not receive $1.00 per share for their investment in those funds, and any money market fund may do so in the future. The Effect of Interest Rates – The Fund’s yield typically moves in the same direction as movements in short-term interest rates, although it does not do so as quickly. When interest rates are very low, the Fund’s expenses could absorb all or a significant portion of the Fund’s income, and, if the Fund’s expenses exceed the Fund’s income, the Fund may be unable to maintain its $1.00 share price without a subsidy by CNAM or its affiliates. Market Risk of Fixed Income Securities – The prices of fixed income securities respond to economic developments, particularly interest rate changes, as well as to perceptions about the creditworthiness of individual issuers, including governments. Generally, fixed income securities decrease in value if interest rates rise and increase in value if interest rates fall, with lower rated securities more volatile than higher rated securities. Credit – The Government Money Fund invests exclusively in securities that are rated, when the Fund buys them, in the highest short-term rating category, or if unrated, are of comparable quality in CNAM’s opinion. However, it is possible that some issuers or other obligors will be unable to make the required payments on securities held by the Fund. Debt securities also go up or down in value based on the perceived creditworthiness of issuers or other obligors. If an obligor for a security held by the Fund fails to pay, otherwise defaults or is perceived to be less creditworthy, a security’s credit rating is downgraded (which could happen rapidly), or the credit quality or value of any underlying assets declines, the value of your investment in the Fund could decline significantly, particularly in certain market environments. If the Fund enters into a financial contract (such as a repurchase agreement or reverse repurchase agreement) the Fund will be subject to the credit risk presented by the counterparty. Government-Sponsored Entities – The Fund invests in securities issued by government-sponsored entities, such as mortgage-related securities, which may not be guaranteed or insured by the U.S. Government and may only be supported by the credit of the issuing agency. Management – The Fund’s performance depends on the adviser’s skill in making appropriate investments. As a result, the Fund may underperform the money market or similar funds. Defensive Investments – During unusual economic or market conditions, or for temporary defensive or liquidity purposes, the Fund may invest 100% of its assets in cash or cash equivalents that would not ordinarily be consistent with the Fund’s investment goals. Redemptions – The Fund may experience heavy redemptions, particularly during periods of declining or illiquid markets, that could cause the Fund to liquidate its assets at inopportune times or at a loss or depressed value and that could affect the Fund’s ability to maintain a $1.00 share price. Redemption risk is greater to the extent that the Fund has investors with large shareholdings, short investment horizons, or unpredictable cash flow needs. PERFORMANCE The bar chart and the performance table that follow illustrate some of the risks and volatility of an investment in the Government Money Fund by showing changes in the Fund’s performance from year to year and by showing the Fund’s average annual total returns for 1, 5 and 10 years and since inception. Of course, the Fund’s past performance (before and after taxes) does not necessarily indicate how the Fund will perform in the future. Call 1-888-889-0799 or visit www.cnicharterfunds.com for the Fund’s most current 7-day yield or to obtain updated performance information. This bar chart shows the performance of the Government Money Fund’s Servicing Class (formerly designated as Institutional Class) shares based on a calendar year. CNI CHARTER FUNDS | 3 Best Quarter Worst Quarter 1.19% 0.00% Q4 2006 Q4 2011 This table shows the Government Money Fund’s average annual total returns for the periods ended December 31, 2011. Average Annual Total Returns (for the periods ended December 31, 2011) One Year Five Years Ten Years Since Inception Inception Date Servicing Class 0.02% 1.31% 1.60% 2.05% 4/3/2000 Class N 0.01% 1.21% 1.44% 2.06% 6/21/1999 Class S 0.01% 1.12% 1.30% 1.85% 10/6/1999 INVESTMENT MANAGER City National Asset Management, Inc. PURCHASE AND SALE OF FUND SHARES The Government Money Fund has no minimum purchase or minimum shareholder account balance requirements; however, you will have to comply with the purchase and account balance minimums of your approved broker-dealer or other financial institution (each, an “Authorized Institution”). The Fund may require each Authorized Institution to meet certain aggregate investment levels before it may open an account with the Fund on behalf of its customers. Contact your Authorized Institution for more information. The shares of the Government Money Fund are redeemable. You may redeem your shares only through your Authorized Institution. To redeem shares of the Fund, you should contact your Authorized Institution and follow its procedures, including deadlines for receipt by the Authorized Institution of your share redemption instructions. Your Authorized Institution may charge a fee for its services, in addition to the fees charged by the Fund. TAX INFORMATION The Government Money Fund intends to make distributions that may be taxed as ordinary income or capital gains. PAYMENTS TO BROKER-DEALERS AND OTHER FINANCIAL INTERMEDIARIES If you purchase the Government Money Fund through a broker-dealer or other financial intermediary (such as a bank), the Fund and its related companies may pay the intermediary for the sale of Fund shares and related services. These payments may create a conflict of interest by influencing the broker-dealer or other intermediary and your salesperson to recommend the Fund over another investment. Ask your salesperson or visit your financial intermediary’s web site for more information. CNI CHARTER FUNDS | 4 Prime Money Fund INVESTMENT GOAL The Prime Money Fund is a money market fund that seeks to provide current income through low-risk investments. Also, the Prime Money Fund seeks to maintain a $1.00 per share net asset value (“NAV”). FEES AND EXPENSES OF THE FUND The table below describes the fees and expenses you may pay if you buy and hold shares of the Prime Money Fund. Annual Fund Operating Expenses (expenses that you pay each year as a percentage of the value of your investment) Institutional Class(1) Servicing Class(1) Class N Class S Management Fees 0.25% 0.25% 0.25% 0.25% Distribution (12b-1) Fee None None 0.50% 0.50% Other Expenses Shareholder Servicing Fee None 0.25% 0.25% 0.25% Other Fund Expenses 0.10%(2) 0.10% 0.10% 0.10% Total Other Expenses 0.10% 0.35% 0.35% 0.35% Total Annual Fund Operating Expenses 0.35% 0.60% 1.10% 1.10% (1) The current Institutional Class shares were initially offered November 28, 2012. Effective November 28, 2012, the shares previously designated as Institutional Class shares were redesignated as Servicing Class shares. Other Fund Expenses for Institutional Class shares are estimated based on the amounts for Servicing Class, Class N and Class S shares. EXAMPLE This Example is intended to help you compare the cost of investing in the Prime Money Fund with the cost of investing in other mutual funds. The Example assumes that you invest $10,000 in the Prime Money Fund for the time periods indicated and then redeem all of your shares at the end of those periods. The Example also assumes that your investment has a 5% return each year and that the Fund’s operating expenses remain the same. Although your actual costs may be higher or lower, based on these assumptions your costs would be: 1 Year 3 Years 5 Years 10 Years Institutional Class Servicing Class Class N Class S PRINCIPAL INVESTMENT STRATEGIES The Prime Money Fund purchases liquid, high quality, short-term debt securities in the form of U.S. dollar denominated money market instruments that, in the opinion of City National Asset Management, Inc. (“CNAM”), the Fund’s investment adviser, present minimal credit risk. The Fund’s principal investments consist of commercial paper and short-term corporate obligations, obligations issued or guaranteed as to principal and interest by agencies or instrumentalities of the U.S. government, repurchase agreements involving those obligations. Obligations issued or guaranteed by the U.S. Government or its agencies or instrumentalities in which the Prime Money Fund invests consist principally of securities issued or guaranteed by Fannie Mae (formerly known as the Federal National Mortgage Association), the Federal Home Loan Bank (“FHLB”), Freddie Mac (formerly known as the Federal Home Loan Mortgage Corporation) and the Government National Mortgage Association (“Ginnie Mae”). The Fund invests in compliance with the requirements of Rule 2a-7 under the Investment Company Act of 1940 relating to the credit quality, maturity, liquidity and diversification of investments for money market funds. CNI CHARTER FUNDS | 5 PRINCIPAL RISKS OF INVESTING IN THE FUND As with any money market fund, there are risks to investing. Neither the Prime Money Fund nor CNAM can guarantee that the Fund will meet its investment goal. Here are the principal risks to consider: No Guarantees – An investment in the Fund is not a deposit in a bank and is not insured or guaranteed by the Federal Deposit Insurance Corporation or any other government agency. Although the Fund seeks to preserve the value of your investment at an NAV of $1.00, it is possible to lose money by investing in the Fund. Additionally, you should be aware that a very small number of money market funds in other fund complexes have in the past “broken the buck,” which means that investors did not receive $1.00 per share for their investment in those funds, and any money market fund may do so in the future. The Effect of Interest Rates – The Fund’s yield typically moves in the same direction as movements in short-term interest rates, although it does not do so as quickly. When interest rates are very low, the Fund’s expenses could absorb all or a significant portion of the Fund’s income, and, if the Fund’s expenses exceed the Fund’s income, the Fund may be unable to maintain its $1.00 share price without a subsidy by CNAM or its affiliates. Market Risk of Fixed Income Securities – The prices of fixed income securities respond to economic developments, particularly interest rate changes, as well as to perceptions about the creditworthiness of individual issuers, including governments. Generally, fixed income securities decrease in value if interest rates rise and increase in value if interest rates fall, with lower rated securities more volatile than higher rated securities. Credit – The Prime Money Fund invests exclusively in securities that are rated, when the Fund buys them, in the highest short-term rating category, or if unrated, are of comparable quality in CNAM’s opinion. However, it is possible that some issuers or other obligors will be unable to make the required payments on securities held by the Fund. Debt securities also go up or down in value based on the perceived creditworthiness of issuers or other obligors. If an obligor for a security held by the Fund fails to pay, otherwise defaults or is perceived to be less creditworthy, a security’s credit rating is downgraded (which could happen rapidly), or the credit quality or value of any underlying assets declines, the value of your investment in the Fund could decline significantly, particularly in certain market environments. If the Fund enters into a financial contract (such as a repurchase agreement or reverse repurchase agreement) the Fund will be subject to the credit risk presented by the counterparty. Financial Services Firms – The Fund invests in obligations of financial services firms, including those of banks. Changes in economic conditions and government regulations can significantly affect these issuers. Government-Sponsored Entities – The Fund invests in securities issued by government-sponsored entities, such as mortgage-related securities, which may not be guaranteed or insured by the U.S. Government and may only be supported by the credit of the issuing agency. Management – The Fund’s performance depends on the adviser’s skill in making appropriate investments. As a result, the Fund may underperform the money market or similar funds. Defensive Investments – During unusual economic or market conditions, or for temporary defensive or liquidity purposes, the Fund may invest 100% of its assets in cash or cash equivalents that would not ordinarily be consistent with the Fund’s investment goals. Redemptions – The Fund may experience heavy redemptions, particularly during periods of declining or illiquid markets, that could cause the Fund to liquidate its assets at inopportune times or at a loss or depressed value and that could affect the Fund’s ability to maintain a $1.00 share price. Redemption risk is greater to the extent that the Fund has investors with large shareholdings, short investment horizons, or unpredictable cash flow needs. PERFORMANCE The bar chart and the performance table that follow illustrate some of the risks and volatility of an investment in the Prime Money Fund by showing changes in the Fund’s performance from year to year and by showing the Fund’s average annual total returns for 1, 5 and 10 years and since inception. Of course, the Fund’s past performance (before and after taxes) does not necessarily indicate how the Fund will perform in the future. Call 1-888-889-0799 or visit www.cnicharterfunds.com for the Fund’s most current 7-day yield or to obtain updated performance information. This bar chart shows the performance of the Prime Money Fund’s Servicing Class (formerly designated as Institutional Class) shares based on a calendar year. CNI CHARTER FUNDS | 6 Best Quarter Worst Quarter 1.20% 0.01% Q4 2006 Q4 2011 This table shows the Prime Money Fund’s average annual total returns for the periods ended December 31, 2011. Average Annual Total Returns (for the periods ended December 31, 2011) One Year Five Years Ten Years Since Inception Inception Date Servicing Class 0.05% 1.44% 1.68% 2.52% 3/23/1998 Class N 0.03% 1.32% 1.51% 2.05% 10/18/1999 Class S 0.01% 1.22% 1.36% 1.89% 10/26/1999 INVESTMENT MANAGER City National Asset Management, Inc. PURCHASE AND SALE OF FUND SHARES The minimum initial investment for Institutional Class shares is $1,000,000. There is no minimum for subsequent investments in Institutional Class shares. The Fund reserves the right to change the minimum amount required to open an account without prior notice. The Fund may accept investments of smaller amounts at its discretion. The Fund has no minimum purchase or minimum shareholder account balance requirements for Servicing Class, Class N or Class S shares; however, you will have to comply with the purchase and account balance minimums of your approved broker-dealer or other financial institution (each, an “Authorized Institution”). The Fund may require each Authorized Institution to meet certain aggregate investment levels before it may open an account with the Fund on behalf of its customers. Contact your Authorized Institution for more information. The shares of the Prime Money Fund are redeemable. You may redeem your shares only through your Authorized Institution. To redeem shares of the Fund, you should contact your Authorized Institution and follow its procedures, including deadlines for receipt by the Authorized Institution of your share redemption instructions. Your Authorized Institution may charge a fee for its services, in addition to the fees charged by the Fund. TAX INFORMATION The Prime Money Fund intends to make distributions that may be taxed as ordinary income or capital gains. PAYMENTS TO BROKER-DEALERS AND OTHER FINANCIAL INTERMEDIARIES If you purchase the Prime Money Fund through a broker-dealer or other financial intermediary (such as a bank), the Fund and its related companies may pay the intermediary for the sale of Fund shares and related services. These payments may create a conflict of interest by influencing the broker-dealer or other intermediary and your salesperson to recommend the Fund over another investment. Ask your salesperson or visit your financial intermediary’s web site for more information. CNI CHARTER FUNDS | 7 California Money Fund INVESTMENT GOAL The California Money Fund is a money market fund that seeks to preserve your principal and maintain a high degree of liquidity while providing current income that is exempt from federal, and to the extent possible, California state personal income tax. Also, the California Money Fund seeks to maintain a $1.00 per share net asset value (“NAV”). FEES AND EXPENSES OF THE FUND The table below describes the fees and expenses you may pay if you buy and hold shares of the California Money Fund. Annual Fund Operating Expenses (expenses that you pay each year as a percentage of the value of your investment) ServicingClass(1) Class N Class S Management Fees 0.27% 0.27% 0.27% Distribution (12b-1) Fee None 0.50% 0.50% Other Expenses Shareholder Servicing Fee 0.25% 0.25% 0.25% Other Fund Expenses 0.10% 0.10% 0.10% Total Other Expenses 0.35% 0.35% 0.35% Total Annual Fund Operating Expenses 0.62% 1.12% 1.12% (1) Effective November 28, 2012, the shares previously designated as Institutional Class shares were redesignated as Servicing Class shares. EXAMPLE This Example is intended to help you compare the cost of investing in the California Money Fund with the cost of investing in other mutual funds. The Example assumes that you invest $10,000 in the California Money Fund for the time periods indicated and then redeem all of your shares at the end of those periods. The Example also assumes that your investment has a 5% return each year and that the Fund’s operating expenses remain the same. Although your actual costs may be higher or lower, based on these assumptions your costs would be: 1 Year 3 Years 5 Years 10 Years ServicingClass Class N Class S PRINCIPAL INVESTMENT STRATEGIES The California Money Fund purchases liquid, high quality, short-term municipal money market securities issued by the State of California and its agencies, by various counties, cities and regional or special districts in California, and by various other sectors of the California municipal securities market. The Fund invests at least 80% of its net assets (including borrowings for investment purposes) in municipal obligations that pay interest which is expected to be exempt from federal and California state personal income tax and securities that pay interest which is not a preference item for purposes of the federal alternative minimum tax (the “AMT”). This policy may not be changed without shareholder approval. Up to 20% of the Fund’s net assets may be invested in securities subject to the AMT, although City National Asset Management, Inc. (“CNAM”), the Fund’s investment adviser, does not currently intend to invest in such securities. The Fund also invests in high quality municipal bonds rated within the highest grade by nationally recognized statistical rating organizations such as Standard & Poor’s Ratings Services and/or Moody’s Investors Service, or equivalent quality (in CNAM’s opinion) for unrated securities, notes and tax exempt commercial paper. The securities held by the Fund must, in the opinion of CNAM, present minimal credit risk. The Fund invests in compliance with the requirements of Rule 2a-7 under the Investment Company Act of 1940 relating to the credit quality, maturity, liquidity and diversification of investments for money market funds. CNI CHARTER FUNDS | 8 PRINCIPAL RISKS OF INVESTING IN THE FUND As with any money market fund, there are risks to investing. Neither the California Money Fund nor CNAM can guarantee that the Fund will meet its investment goal. Here are the principal risks to consider: No Guarantees – An investment in the Fund is not a deposit in a bank and is not insured or guaranteed by the Federal Deposit Insurance Corporation or any other government agency. Although the Fund seeks to preserve the value of your investment at an NAV of $1.00, it is possible to lose money by investing in the Fund. Additionally, you should be aware that a very small number of money market funds in other fund complexes have in the past “broken the buck,” which means that investors did not receive $1.00 per share for their investment in those funds, and any money market fund may do so in the future. California Risk Factors – The Fund may be subject to greater risks than other tax exempt money market funds that are diversified across issuers located in a number of states. The Fund is vulnerable to adverse economic, political or other events that may lessen the ability of California municipal securities issuers to pay interest and principal on their securities. Poor statewide or local economic results, changing political sentiments, legislation, policy changes or voter-based initiatives at the state or local level, erosion of the tax base or revenues of the state or one or more local governments, seismic or other natural disasters, or other economic or credit problems affecting the state generally or a particular issuer may reduce tax revenues and increase the expenses of California municipal issuers, making it more difficult for them to meet their obligations. Actual or perceived erosion of the creditworthiness of California municipal issuers may also reduce the value of the Fund’s holdings. Municipal Obligations – U.S. state and local governments issuing municipal securities held by the Fund rely on taxes and revenues from private projects financed by municipal securities to pay interest and principal on municipal debt. The payment of principal and interest on these obligations may be adversely affected by a variety of factors at the state or local level, including poor statewide or local economic results, changing political sentiments, legislation, policy changes or voter-based initiatives, erosion of the tax base or revenues of the state or one or more local governments, natural disasters, or other economic or credit problems. Taxes – Although one of the Fund’s goals is to provide income exempt from federal and California state personal income taxes, some of its income may be subject to the AMT. If certain types of investments the Fund buys as tax-exempt are later ruled to be taxable, a portion of the Fund’s income could become taxable. The Effect of Interest Rates – The Fund’s yield typically moves in the same direction as movements in short-term interest rates, although it does not do so as quickly. When interest rates are very low, the Fund’s expenses could absorb all or a significant portion of the Fund’s income, and, if the Fund’s expenses exceed the Fund’s income, the Fund may be unable to maintain its $1.00 share price without a subsidy by CNAM or its affiliates. Market Risk of Fixed Income Securities – The prices of fixed income securities respond to economic developments, particularly interest rate changes, as well as to perceptions about the creditworthiness of individual issuers, including governments. Generally, fixed income securities decrease in value if interest rates rise and increase in value if interest rates fall, with lower rated securities more volatile than higher rated securities. Credit – The California Money Fund invests exclusively in securities that are rated, when the Fund buys them, in the highest short-term rating category, or if unrated, are of comparable quality in CNAM’s opinion. However, it is possible that some issuers or other obligors will be unable to make the required payments on securities held by the Fund. Debt securities also go up or down in value based on the perceived creditworthiness of issuers or other obligors. If an obligor for a security held by the Fund fails to pay, otherwise defaults or is perceived to be less creditworthy, a security’s credit rating is downgraded (which could happen rapidly), or the credit quality or value of any underlying assets declines, the value of your investment in the Fund could decline significantly, particularly in certain market environments. If the Fund enters into a financial contract (such as a repurchase agreement or reverse repurchase agreement) the Fund will be subject to the credit risk presented by the counterparty. Management – The Fund’s performance depends on the adviser’s skill in making appropriate investments. As a result, the Fund may underperform the money market or similar funds. Defensive Investments – During unusual economic or market conditions, or for temporary defensive or liquidity purposes, the Fund may invest 100% of its assets in municipal obligations of issuers in states other than California or taxable money market securities. During such a period, the Fund may not achieve its investment goals. If the Fund makes defensive investments, it may generate taxable income. Redemptions – The Fund may experience heavy redemptions, particularly during periods of declining or illiquid markets, that could cause the Fund to liquidate its assets at inopportune times or at a loss or depressed value and that could affect the Fund’s ability to maintain a $1.00 share price. Redemption risk is greater to the extent that the Fund has investors with large shareholdings, short investment horizons, or unpredictable cash flow needs. CNI CHARTER FUNDS | 9 PERFORMANCE The bar chart and the performance table that follow illustrate some of the risks and volatility of an investment in the California Money Fund by showing changes in the Fund’s performance from year to year and by showing the Fund’s average annual total returns for 1, 5 and 10 years and since inception. Of course, the Fund’s past performance (before and after taxes) does not necessarily indicate how the Fund will perform in the future. Call 1-888-889-0799 or visit www.cnicharterfunds.com for the Fund’s most current 7-day yield or to obtain updated performance information. This bar chart shows the performance of the California Money Fund’s Servicing Class (formerly designated as Institutional Class) shares based on a calendar year. Best Quarter Worst Quarter 0.77% 0.00% Q2 2007 Q4 2011 This table shows the California Money Fund’s average annual total returns for the periods ended December 31, 2011. Average Annual Total Returns (for the periods ended December 31, 2011) One Year Five Years Ten Years Since Inception Inception Date ServicingClass 0.02% 0.89% 1.11% 1.33% 4/3/2000 Class N 0.01% 0.78% 0.95% 1.22% 6/21/1999 Class S 0.01% 0.70% 0.81% 1.05% 11/12/1999 INVESTMENT MANAGER City National Asset Management, Inc. PURCHASE AND SALE OF FUND SHARES The California Money Fund has no minimum purchase or minimum shareholder account balance requirements; however, you will have to comply with the purchase and account balance minimums of your approved broker-dealer or other financial institution (each, an “Authorized Institution”). The Fund may require each Authorized Institution to meet certain aggregate investment levels before it may open an account with the Fund on behalf of its customers. Contact your Authorized Institution for more information. The shares of the California Money Fund are redeemable. You may redeem your shares only through your Authorized Institution. To redeem shares of the Fund, you should contact your Authorized Institution and follow its procedures, including deadlines for receipt by the Authorized Institution of your share redemption instructions. Your Authorized Institution may charge a fee for its services, in addition to the fees charged by the Fund. TAX INFORMATION The California Money Fund intends to distribute income that is exempt from regular federal and California state income taxes. A portion of the Fund’s distributions may be subject to such taxes or to the AMT. PAYMENTS TO BROKER-DEALERS AND OTHER FINANCIAL INTERMEDIARIES If you purchase the California Money Fund through a broker-dealer or other financial intermediary (such as a bank), the Fund and its related companies may pay the intermediary for the sale of Fund shares and related services. These payments may create a conflict of interest by influencing the broker-dealer or other intermediary and your salesperson to recommend the Fund over another investment. Ask your salesperson or visit your financial intermediary’s web site for more information. CNI CHARTER FUNDS | 10 Limited Maturity Fund INVESTMENT GOAL The Limited Maturity Fund seeks to provide a high level of current income, consistent with the preservation of capital and liquidity. FEES AND EXPENSES OF THE FUND The table below describes the fees and expenses you may pay if you buy and hold shares of the Limited Maturity Fund. Annual Fund Operating Expenses (expenses that you pay each year as a percentage of the value of your investment) Institutional Class Class N Management Fees 0.50% 0.50% Distribution (12b-1) Fee None 0.25% Other Expenses Shareholder Servicing Fee None 0.25% Other Fund Expenses 0.17% 0.17% Total Other Expenses 0.17% 0.42% Total Annual Fund Operating Expenses 0.67% 1.17% Fee Waiver and/or Expense Reimbursement(1) (0.00)% (0.25)% Total Annual Fund Operating Expenses After Fee Waiver and/or Expense Reimbursement 0.67% 0.92% (1) City National Asset Management, Inc., the Fund’s investment adviser (“CNAM”), has contractually agreed to waive the shareholder servicing fees for Class N shares until January 28, 2014. Prior to that date, this arrangement may be terminated without penalty by the Fund’s Board of Trustees upon 60 days’ written notice to CNAM, and it will terminate automatically upon the termination of the shareholder services agreement between CNAM and the Fund. Any shareholder servicing fees waived by CNAM pursuant to this arrangement will not be eligible for reimbursement by the Fund to CNAM. EXAMPLE This Example is intended to help you compare the cost of investing in the Limited Maturity Fund with the cost of investing in other mutual funds. The Example assumes that you invest $10,000 in the Fund for the time periods indicated and then redeem all of your shares at the end of those periods. The Example also assumes that your investment has a 5% return each year and that the Fund’s operating expenses remain the same. Although your actual costs may be higher or lower, based on these assumptions your costs would be: 1 Year 3 Years 5 Years 10 Years Institutional Class Class N PORTFOLIO TURNOVER The Fund pays transaction costs, such as commissions, when it buys and sells securities (or “turns over” its portfolio). A higher portfolio turnover rate may indicate higher transaction costs and may result in higher taxes when Fund shares are held in a taxable account. These costs, which are not reflected in annual fund operating expenses or in the example, affect the Fund’s performance. During the most recent fiscal year, the Fund’s portfolio turnover rate was 50% of the average value of its portfolio. CNI CHARTER FUNDS | 11 PRINCIPAL INVESTMENT STRATEGIES At least 80% of the Limited Maturity Fund’s net assets (including borrowings for investment purposes) consists of fixed income securities either issued or guaranteed by the U.S. Government or its agencies or instrumentalities, money market instruments and non-convertible fixed income securities (i.e., bonds which cannot be converted into stock) of U.S. companies. For purposes of the Fund’s 80% policy, fixed income securities of U.S. companies include securities issued by an issuer that is domiciled in the United States; conducts a majority of its business in the United States; or is listed in the Barclays Capital Intermediate U.S. Government/Credit Index (the “Index”) at the time of purchase, or will be listed in the Index. The Fund invests in securities having one of the four highest ratings of either Moody’s Investors Service (at least Baa) or Standard & Poor’s (at least BBB). The Fund may retain a security after it has been downgraded to any ratingbelow the minimum credit rating if City National Asset Management, Inc. (“CNAM”), the Fund’s investment adviser, determines that doing so is in the best interests of the Fund. The fixed income securities in which the Fund invests may have fixed, variable or floating interest rates, as well as varying principal repayment and interest rate reset terms. Fixed income securities issued or guaranteed by the U.S. Government or its agencies or instrumentalities in which the Limited Maturity Fund invests consist principally of mortgage-backed or asset-backed securities issued or guaranteed by Fannie Mae (formerly known as the Federal National Mortgage Association), the Federal Home Loan Bank (“FHLB”), Freddie Mac (formerly known as the Federal Home Loan Mortgage Corporation) and the Government National Mortgage Association (“Ginnie Mae”). At least 80% of the Limited Maturity Fund’s net assets consists of fixed income securities with “limited maturity.” This investment strategy may be changed at any time, with 60 days’ prior notice to shareholders. CNAM considers “limited maturity” to mean a maturity of less than five years. There is no limit on the maturities of individual securities. CNAM actively manages the average duration of the Fund’s portfolio and determines which securities to purchase or sell in accordance with its analysis of prevailing interest rates and yields, the quality and value of particular securities, and the comparative risks and returns of alternative investments. PRINCIPAL RISKS OF INVESTING IN THE FUND As with any mutual fund, there are risks to investing. Neither the Limited Maturity Fund nor CNAM can guarantee that the Fund will meet its investment goal. The Fund will expose you to risks that could cause you to lose money. Here are the principal risks to consider: The Effect of Interest Rates – The Fund’s yield typically moves in the same direction as movements in short-term interest rates, although it does not do so as quickly. Market Risk of Fixed Income Securities – The prices of fixed income securities respond to economic developments, particularly interest rate changes, as well as to perceptions about the creditworthiness of individual issuers, including governments. Generally, fixed income securities decrease in value if interest rates rise and increase in value if interest rates fall, with lower rated securities more volatile than higher rated securities. The duration of these securities affects risk as well, with longer term securities generally more volatile than shorter term securities. Issuers – The Fund may be adversely affected if the issuers of securities that the Fund holds do not make their principal or interest payments on time. Government-Sponsored Entities – The Fund invests in securities issued by government-sponsored entities which may not be guaranteed or insured by the U.S. Government and may only be supported by the credit of the issuing agency. Prepayments – As a general rule, prepayments of the principal of the loans underlying mortgage-backed or other pass-through securities increase during a period of falling interest rates and decrease during a period of rising interest rates. In periods of declining interest rates, as a result of prepayments the Fund may be required to reinvest its assets in securities with lower interest rates. In periods of increasing interest rates, the securities subject to prepayment risk held by the Fund may exhibit price characteristics of longer-term debt securities. Extension – Rising interest rates can cause the average maturity of the Fund’s holdings of mortgage-backed and other pass-through securities to lengthen unexpectedly due to a drop in prepayments. This would increase the sensitivity of the Fund to rising rates and the potential for price declines of portfolio securities. Rating Agencies – A credit rating is not an absolute standard of quality, but rather a general indicator that reflects only the view of the originating rating agency. If a rating agency revises downward or withdraws its rating of a security in which the Fund invests, that security may become less liquid or may lose value. Management – The Fund’s performance depends on the portfolio managers’ skill in making appropriate investments. As a result, the Fund may underperform the fixed income market or similar funds. Defensive Investments – During unusual economic or market conditions, or for temporary defensive or liquidity purposes, the Fund may invest 100% of its assets in cash or cash equivalents that would not ordinarily be consistent with the Fund’s investment goals. CNI CHARTER FUNDS | 12 PERFORMANCE The bar chart and the performance table that follow illustrate some of the risks and volatility of an investment in the Limited Maturity Fund by showing changes in the Fund’s performance from year to year and by showing the Fund’s average annual total returns for 1, 5 and 10 years and since inception. Of course, the Fund’s past performance (before and after taxes) does not necessarily indicate how the Fund will perform in the future. Call 1-888-889-0799 or visit www.cnicharterfunds.com to obtain updated performance information. This bar chart shows the performance of the Limited Maturity Fund’s Institutional Class shares based on a calendar year. Best Quarter Worst Quarter 3.13% (1.33)% Q4 2008 Q2 2004 This table shows the average annual total returns of each class of the Limited Maturity Fund for the periods ended December 31, 2011. The table also shows how the Fund’s performance compares with the returns of indexes comprised of investments similar to those held by the Fund. Average Annual Total Returns (for the periods ended December 31, 2011) One Year Five Years Ten Years Since Inception(1) Institutional Class Return Before Taxes 1.64% 3.77% 3.15% 4.90% Return After Taxes on Distributions 1.16% 2.82% 2.22% 3.33% Return After Taxes on Distributions and Sale of Fund Shares 1.06% 2.66% 2.15% 3.27% Class N Return Before Taxes 1.29% 3.49% 2.96% 4.82% BofA Merrill Lynch 1-3 Year US Treasury Index (Reflects no deduction for fees, expenses or taxes) 1.55% 3.69% 3.25% 5.40% BofA Merrill Lynch US 3-Month Treasury Bill Index (Reflects no deduction for fees, expenses or taxes) 0.10% 1.48% 1.95% 4.00% (1) Performance for “Since Inception” for all classes is shown for periods beginning October 22, 1988, which is the date the predecessor to the Limited Maturity Fund (the “Predecessor Fund”) commenced operations. On September 30, 2005, the Predecessor Fund reorganized into the Fund. The performance results for Institutional Class shares of the Fund before September 30, 2005, reflect the performance of the Predecessor Fund’s Class I shares. Class A shares of the Predecessor Fund, the predecessor to the Class N shares of the Fund, commenced operations on October 22, 2004. The performance results for Class N shares of the Fund for the period of October 22, 2004 to September 29, 2005, reflect the performance of the Predecessor Fund’s Class A shares. The performance results for Class N shares of the Fund for the period of October 22, 1988 to October 21, 2004, reflect the performance of the Predecessor Fund’s Class I shares. The performance of the Predecessor Fund’s Class I shares has not been adjusted to reflect the higher Rule 12b-1 fees and expenses applicable to the Fund’s Class N shares. If it had, the performance of the Fund’s Class N shares would have been lower than that shown. For each index shown the measurement period used in computing the returns of the index for the “Since Inception” period begins on October 31, 1988. After-tax returns are calculated using the historical highest individual federal marginal income tax rates and do not reflect the impact of state and local taxes. Actual after-tax returns depend on an investor’s tax situation and may differ from those shown. The performance of Institutional Class shares does not reflect Class N shares’ Rule 12b-1 fees and expenses. After-tax returns for Class N shares will vary from the after-tax returns shown above for Institutional Class shares. The after-tax returns shown are not relevant to investors who hold their Fund shares through tax-deferred arrangements, such as 401(k) plans or individual retirement accounts. CNI CHARTER FUNDS | 13 INVESTMENT MANAGER City National Asset Management, Inc. PORTFOLIO MANAGERS Paul C. Single and William C. Miller, Jr. of CNAM have served as portfolio managers for the Fund since 2005. PURCHASE AND SALE OF FUND SHARES The minimum initial investment for Institutional Class shares is $1,000,000. The minimum initial investment for Class N shares is $1,000. There is no minimum for subsequent investments in Institutional Class shares or Class N shares. The Fund reserves the right to change the minimum amount required to open an account or to add to an existing account without prior notice. The Fund may accept investments of smaller amounts at its discretion; however, your financial institution or financial professional may establish higher minimum investment requirements than the Fund and may also independently charge you transaction fees and additional amounts in return for its services. The shares of the Limited Maturity Fund are redeemable. You may redeem some or all of your shares on any day the NYSE is open for regular session trading. The Fund ordinarily pays redemption proceeds on the business day following the redemption of your shares. However, the Fund reserves the right to make payment within seven days of the redemption request. Redemption proceeds will be sent to you via check to your address of record or will be wired to your bank via the instructions on your account. TAX INFORMATION The Limited Maturity Fund intends to make distributions that may be taxed as ordinary income or capital gains. PAYMENTS TO BROKER-DEALERS AND OTHER FINANCIAL INTERMEDIARIES If you purchase the Limited Maturity Fund through a broker-dealer or other financial intermediary (such as a bank), the Fund and its related companies may pay the intermediary for the sale of Fund shares and related services. These payments may create a conflict of interest by influencing the broker-dealer or other intermediary and your salesperson to recommend the Fund over another investment. Ask your salesperson or visit your financial intermediary’s web site for more information. CNI CHARTER FUNDS | 14 Government Bond Fund INVESTMENT GOAL The Government Bond Fund seeks to provide current income (as the primary component of a total return intermediate duration strategy) by investing primarily in U.S. Government securities. FEES AND EXPENSES OF THE FUND The table below describes the fees and expenses you may pay if you buy and hold shares of the Government Bond Fund. Annual Fund Operating Expenses (expenses that you pay each year as a percentage of the value of your investment) Institutional Class(1) Servicing Class(1) Class N Management Fees 0.43% 0.43% 0.43% Distribution (12b-1) Fee None None 0.25% Other Expenses Shareholder Servicing Fee None 0.25% 0.25% Other Fund Expenses 0.10%(2) 0.10% 0.10% Total Other Expenses 0.10% 0.35% 0.35% Total Annual Fund Operating Expenses 0.53% 0.78% 1.03% Institutional Class shares were initially offered in December, 2011. Effective December 19, 2011, the shares previously designated as Institutional Class shares were redesignated as Servicing Class shares. Other Fund Expenses for Institutional Class shares are estimated based on the amounts for Servicing Class shares and Class N shares. EXAMPLE This Example is intended to help you compare the cost of investing in the Government Bond Fund with the cost of investing in other mutual funds. The Example assumes that you invest $10,000 in the Government Bond Fund for the time periods indicated and then redeem all of your shares at the end of those periods. The Example also assumes that your investment has a 5% return each year and that the Fund’s operating expenses remain the same. Although your actual costs may be higher or lower, based on these assumptions your costs would be: 1 Year 3 Years 5 Years 10 Years Institutional Class Servicing Class Class N PORTFOLIO TURNOVER The Government Bond Fund pays transaction costs, such as commissions, when it buys and sells securities (or “turns over” its portfolio). A higher portfolio turnover rate may indicate higher transaction costs and may result in higher taxes when Fund shares are held in a taxable account. These costs, which are not reflected in annual fund operating expenses or in the example, affect the Fund’s performance. During the most recent fiscal year, the Fund’s portfolio turnover rate was 86% of the average value of its portfolio. PRINCIPAL INVESTMENT STRATEGIES At least 80% of the Government Bond Fund’s net assets (including borrowings for investment purposes) consists of U.S. Government securities either issued or guaranteed by the U.S. Government or its agencies or instrumentalities. The Fund may also purchase prime quality, conforming mortgage-backed securities issued by the U.S. Government or Fannie Mae (formerly known as the Federal National Mortgage Association), the Federal Home Loan Bank (“FHLB”), Freddie Mac (formerly known as the Federal Home Loan Mortgage Corporation) or the Governmant National Mortgage Association (“Ginnie Mae”) whose maturity and duration are consistent with an intermediate term strategy. The Fund typically invests in securities rated investment-grade by Standard & Poor’s, Moody’s Investors Services and/or Fitch Ratings, or unrated securities considered to be of equivalent quality by City National Asset Management, Inc. (“CNAM”), the Fund’s investment adviser. CNI CHARTER FUNDS | 15 CNAM actively manages the average duration of the Fund’s portfolio in accordance with its expectations of interest rate changes as driven by economic trends. The average duration of the Fund’s portfolio typically ranges from two to six years, but may vary due to unusually large purchases or redemptions of the Fund’s shares. The Government Bond Fund may also invest in the shares of money market mutual funds whose objectives are consistent with those of the Fund. PRINCIPAL RISKS OF INVESTING IN THE FUND As with any mutual fund, there are risks to investing. Neither the Government Bond Fund nor CNAM can guarantee that the Fund will meet its investment goal. The Fund will expose you to risks that could cause you to lose money. Here are the principal risks to consider: The Effect of Interest Rates – The Fund’s yield typically moves in the same direction as movements in short-term interest rates, although it does not do so as quickly. Market Risk of Fixed Income Securities – The prices of fixed income securities respond to economic developments, particularly interest rate changes, as well as to perceptions about the creditworthiness of individual issuers, including governments. Generally, fixed income securities decrease in value if interest rates rise and increase in value if interest rates fall, with lower rated securities more volatile than higher rated securities. The duration of these securities affects risk as well, with longer term securities generally more volatile than shorter term securities. Government-Sponsored Entities – The Fund invests in securities issued by government-sponsored entities which may not be guaranteed or insured by the U.S. Government and may only be supported by the credit of the issuing agency. Issuers – The Fund may be adversely affected if the issuers of securities that the Fund holds do not make their principal or interest payments on time. Prepayments – As a general rule, prepayments of the principal of the loans underlying mortgage-backed or other pass-through securities increase during a period of falling interest rates and decrease during a period of rising interest rates. In periods of declining interest rates, as a result of prepayments the Fund may be required to reinvest its assets in securities with lower interest rates. In periods of increasing interest rates, the securities subject to prepayment risk held by the Fund may exhibit price characteristics of longer-term debt securities. Extension – Rising interest rates can cause the average maturity of the Fund’s holdings of mortgage-backed and other pass-through securities to lengthen unexpectedly due to a drop in prepayments. This would increase the sensitivity of the Fund to rising rates and the potential for price declines of portfolio securities. Rating Agencies – A credit rating is not an absolute standard of quality, but rather a general indicator that reflects only the view of the originating rating agency. If a rating agency revises downward or withdraws its rating of a security in which the Fund invests, that security may become less liquid or may lose value. Management – The Fund’s performance depends on the portfolio managers’ skill in making appropriate investments. As a result, the Fund may underperform the fixed income market or similar funds. Defensive Investments – During unusual economic or market conditions, or for temporary defensive or liquidity purposes, the Fund may invest 100% of its assets in cash or cash equivalents that would not ordinarily be consistent with the Fund’s investment goals. PERFORMANCE The bar chart and the performance table that follow illustrate some of the risks and volatility of an investment in the Government Bond Fund by showing changes in the Fund’s performance from year to year and by showing the Fund’s average annual total returns for 1, 5 and 10 years. Of course, the Fund’s past performance (before and after taxes) does not necessarily indicate how the Fund will perform in the future. Call 1-888-889-0799 or visit www.cnicharterfunds.com to obtain updated performance information. This bar chart shows the performance of the Government Bond Fund’s Servicing Class (formerly designated as Institutional Class) shares based on a calendar year. Best Quarter Worst Quarter 4.20% (1.39)% Q3 2002 Q2 2004 CNI CHARTER FUNDS | 16 This table shows the average annual total returns of each class of the Government Bond Fund for the periods ended December 31, 2011. The table also shows how the Fund’s performance compares with the returns of indices comprised of investments similar to those held by the Fund. Average Annual Total Returns (for the periods ended December 31, 2011) One Year Five Years Ten Years Inception Date Servicing Class 1/14/2000 Return Before Taxes 3.85% 4.04% 3.68% Return After Taxes on Distributions 3.18% 2.90% 2.46% Return After Taxes on Distributions and Sale of Fund Shares 2.51% 2.78% 2.44% Class N 4/13/2000 Return Before Taxes 3.58% 3.77% 3.45% Barclays Capital U.S. 1-5 Year Government Bond Index (1) (Reflects no deduction for fees, expenses or taxes) 3.21% 4.76% 4.05% Barclays Capital U.S. Intermediate Government Bond Index (Reflects no deduction for fees, expenses or taxes) 6.08% 5.86% 4.89% Previously, the Fund’s performance was compared to the Barclays Capital U.S. Intermediate Government Bond Index as its primary benchmark. CNAM has elected to compare the Fund’s performance to the Barclays Capital U.S. 1-5 Year Government Bond Index as CNAM believes this is the most appropriate index for comparison to the Fund’s performance. After-tax returns are calculated using the historical highest individual federal marginal income tax rates and do not reflect the impact of state and local taxes. Actual after-tax returns depend on an investor’s tax situation and may differ from those shown. The performance of Servicing Class shares does not reflect Class N shares’ Rule 12b-1 fees and expenses. After-tax returns for Class N shares and Institutional Class shares will vary from the after-tax returns shown above for Servicing Class shares. The after-tax returns shown are not relevant to investors who hold their Fund shares through tax-deferred arrangements, such as 401(k) plans or individual retirement accounts. INVESTMENT MANAGER City National Asset Management, Inc. PORTFOLIO MANAGERS Paul C. Single and Robert Harder have served as portfolio managers for the Government Bond Fund since 2003 and June 2010, respectively. PURCHASE AND SALE OF FUND SHARES The minimum initial investment for Institutional Class shares is $1,000,000. There is no minimum for subsequent investments in Institutional Class shares. The Fund reserves the right to change the minimum amount required to open an account without prior notice. The Fund may accept investments of smaller amounts at its discretion. There are no minimum purchase or minimum shareholder account balance requirements for Servicing Class or Class N shares; however, you will have to comply with the purchase and account balance minimums of your approved broker-dealer or other financial institution (each, an “Authorized Institution”). The Fund may require each Authorized Institution to meet certain aggregate investment levels before it may open an account with the Fund on behalf of its customers. Contact your Authorized Institution for more information. The shares of the Government Bond Fund are redeemable. You may redeem your shares only through your Authorized Institution. To redeem shares of the Fund, you should contact your Authorized Institution and follow its procedures, including deadlines for receipt by the Authorized Institution of your share redemption instructions. Your Authorized Institution may charge a fee for its services, in addition to the fees charged by the Fund. TAX INFORMATION The Government Bond Fund intends to make distributions that may be taxed as ordinary income or capital gains. PAYMENTS TO BROKER-DEALERS AND OTHER FINANCIAL INTERMEDIARIES If you purchase the Government Bond Fund through a broker-dealer or other financial intermediary (such as a bank), the Fund and its related companies may pay the intermediary for the sale of Fund shares and related services. These payments may create a conflict of interest by influencing the broker-dealer or other intermediary and your salesperson to recommend the Fund over another investment. Ask your salesperson or visit your financial intermediary’s web site for more information. CNI CHARTER FUNDS | 17 Corporate Bond Fund INVESTMENT GOAL The Corporate Bond Fund seeks to provide current income (as the primary component of a total return intermediate duration strategy) by investing in a diversified portfolio of fixed income securities. FEES AND EXPENSES OF THE FUND The table below describes the fees and expenses you may pay if you buy and hold shares of the Corporate Bond Fund. Annual Fund Operating Expenses (expenses that you pay each year as a percentage of the value of your investment) Servicing Class(1) Class N Management Fees 0.40% 0.40% Distribution (12b-1) Fee None 0.25% Other Expenses Shareholder Servicing Fee 0.25% 0.25% Other Fund Expenses 0.11% 0.11% Total Other Expenses 0.36% 0.36% Total Annual Fund Operating Expenses(2) 0.76% 1.01% Effective December 19, 2011, the shares previously designated as Institutional Class shares were redesignated as Servicing Class shares. Includes “Acquired Fund Fees and Expenses” incurred indirectly by the Fund due to investments in other investment companies and pooled investment vehicles. The Total Annual Fund Operating Expenses above do not correlate to the ratio of expenses to average net assets given in the financial highlights (which reflects the Fund’s operating expenses but not “Acquired Fund Fees and Expenses”). EXAMPLE This Example is intended to help you compare the cost of investing in the Corporate Bond Fund with the cost of investing in other mutual funds. The Example assumes that you invest $10,000 in the Corporate Bond Fund for the time periods indicated and then redeem all of your shares at the end of those periods. The Example also assumes that your investment has a 5% return each year and that the Fund’s operating expenses remain the same. Although your actual costs may be higher or lower, based on these assumptions your costs would be: 1 Year 3 Years 5 Years 10 Years Servicing Class Class N PORTFOLIO TURNOVER The Corporate Bond Fund pays transaction costs, such as commissions, when it buys and sells securities (or “turns over” its portfolio). A higher portfolio turnover rate may indicate higher transaction costs and may result in higher taxes when Fund shares are held in a taxable account. These costs, which are not reflected in annual fund operating expenses or in the example, affect the Fund’s performance. During the most recent fiscal year, the Fund’s portfolio turnover rate was 40% of the average value of its portfolio. CNI CHARTER FUNDS | 18 PRINCIPAL INVESTMENT STRATEGIES At least 80% of the Corporate Bond Fund’s net assets (including borrowings for investment purposes) consists of investment grade corporate notes, bonds and debentures that are nationally traded and corporate issues of domestic and international companies (including emerging market companies) denominated in U.S. dollars. The Fund may also purchase mortgage-backed and asset-backed instruments whose maturities and durations are consistent with an intermediate term strategy. City National Asset Management, Inc. (“CNAM”), the Fund’s investment adviser, actively manages the average duration of the portfolio in accordance with its expectations of interest rate changes as driven by economic trends. The average duration of the Fund’s portfolio typically ranges from two to six years, but may vary due to unusually large purchases or redemptions of the Fund’s shares. CNAM typically invests in corporate issues with a minimum credit rating from Moody’s Investors Service or Standard & Poor’s of Baa or BBB, mortgage-backed and asset-backed instruments with a minimum rating of Aa or AA and corporate commercial paper issued by issuers with a minimum credit rating of P1 or A1. The Fund may retain a security after it has been downgraded to any ratingbelow the minimum credit rating if CNAM determines that doing so is in the best interests of the Fund. The Fund may also invest in the shares of money market mutual funds whose objectives are consistent with those of the Fund. PRINCIPAL RISKS OF INVESTING IN THE FUND As with any mutual fund, there are risks to investing. Neither the Corporate Bond Fund nor CNAM can guarantee that the Fund will meet its investment goal. The Fund will expose you to risks that could cause you to lose money. Here are the principal risks to consider: The Effect of Interest Rates – The Fund’s yield typically moves in the same direction as movements in short-term interest rates, although it does not do so as quickly. Market Risk of Fixed Income Securities – The prices of fixed income securities respond to economic developments, particularly interest rate changes, as well as to perceptions about the creditworthiness of individual issuers, including governments. Generally, fixed income securities decrease in value if interest rates rise and increase in value if interest rates fall, with lower rated securities more volatile than higher rated securities. The duration of these securities affects risk as well, with longer term securities generally more volatile than shorter term securities. Issuers – The Fund may be adversely affected if the issuers of securities that the Fund holds do not make their principal or interest payments on time. Prepayments – As a general rule, prepayments of the principal of the loans underlying mortgage-backed or other pass-through securities increase during a period of falling interest rates and decrease during a period of rising interest rates. In periods of declining interest rates, as a result of prepayments the Fund may be required to reinvest its assets in securities with lower interest rates. In periods of increasing interest rates, the securities subject to prepayment risk held by the Fund may exhibit price characteristics of longer-term debt securities. Extension – Rising interest rates can cause the average maturity of the Fund’s holdings of mortgage-backed and other pass-through securities to lengthen unexpectedly due to a drop in prepayments. This would increase the sensitivity of the Fund to rising rates and the potential for price declines of portfolio securities. Rating Agencies – A credit rating is not an absolute standard of quality, but rather a general indicator that reflects only the view of the originating rating agency. If a rating agency revises downward or withdraws its rating of a security in which the Fund invests, that security may become less liquid or may lose value. Foreign Securities – Foreign investments tend to be more volatile than domestic securities, and are subject to risks that are not typically associated with domestic securities (e.g., changes in currency rates and exchange control regulations, future political and economic developments and the possibility of seizure or nationalization of companies, or the imposition of withholding taxes on income). Emerging Market Securities – Many of the risks with respect to foreign investments are more pronounced for investments in developing or emerging market countries. Emerging market countries may have government exchange controls, more volatile currency exchange rates, less market regulation, and less developed securities markets and legal systems. Their economies also depend heavily upon international trade and may be adversely affected by protective trade barriers and economic conditions of their trading partners. Management – The Fund’s performance depends on the portfolio managers’ skill in making appropriate investments. As a result, the Fund may underperform the fixed income market or similar funds. Defensive Investments – During unusual economic or market conditions, or for temporary defensive or liquidity purposes, the Fund may invest 100% of its assets in cash or cash equivalents that would not ordinarily be consistent with the Fund’s investment goals. CNI CHARTER FUNDS | 19 PERFORMANCE The bar chart and the performance table that follow illustrate some of the risks and volatility of an investment in the Corporate Bond Fund by showing changes in the Fund’s performance from year to year and by showing the Fund’s average annual total returns for 1, 5 and 10 years. Of course, the Fund’s past performance (before and after taxes) does not necessarily indicate how the Fund will perform in the future. Call 1-888-889-0799 or visit www.cnicharterfunds.com to obtain updated performance information. This bar chart shows the performance of the Corporate Bond Fund’s Servicing Class (formerly designated as Institutional Class) shares based on a calendar year. Best Quarter Worst Quarter 4.40% (2.84)% Q2 2009 Q3 2008 This table shows the average annual total returns of each class of the Corporate Bond Fund for the periods ended December 31, 2011. The table also shows how the Fund’s performance compares with the returns of indices comprised of companies similar to those held by the Fund. Average Annual Total Returns (for the periods ended December 31, 2011) One Year Five Years Ten Years Inception Date Servicing Class 1/14/2000 Return Before Taxes 2.22% 4.63% 4.32% Return After Taxes on Distributions 1.16% 3.28% 2.85% Return After Taxes on Distributions and Sale of Fund Shares 1.53% 3.17% 2.83% Class N 4/13/2000 Return Before Taxes 1.96% 4.36% 4.07% Barclays Capital U.S. Corporate 1-5 A3 or Higher, 2% Issuer Constrained Index (1) (Reflects no deduction for fees, expenses or taxes) 3.24% 5.10% 4.77% Barclays Capital U.S. Intermediate Corporate Bond Index (Reflects no deduction for fees, expenses or taxes) 5.52% 6.26% 5.86% Previously, the Fund’s performance was compared to the Barclays Capital U.S. Intermediate Corporate Bond Index as its primary benchmark. CNAM has elected to compare the Fund’s performance to the Barclays Capital U.S. Corporate 1-5 A3 or Higher, 2% Issuer Constrained Index as CNAM believes this is the most appropriate index for comparison to the Fund’s performance. After-tax returns are calculated using the historical highest individual federal marginal income tax rates and do not reflect the impact of state and local taxes. Actual after-tax returns depend on an investor’s tax situation and may differ from those shown. The performance of Servicing Class shares does not reflect Class N shares’ Rule 12b-1 fees and expenses. After-tax returns for Class N shares will vary from the after-tax returns shown above for Servicing Class shares. The after-tax returns shown are not relevant to investors who hold their Fund shares through tax-deferred arrangements, such as 401(k) plans or individual retirement accounts. CNI CHARTER FUNDS | 20 INVESTMENT MANAGER City National Asset Management, Inc. PORTFOLIO MANAGERS William C. Miller and Robert Harder have served as portfolio managers for the Corporate Bond Fund since 2001 and June 2010, respectively. PURCHASE AND SALE OF FUND SHARES The Corporate Bond Fund has no minimum purchase or minimum shareholder account balance requirements; however, you will have to comply with the purchase and account balance minimums of your approved broker-dealer or other financial institution (each, an “Authorized Institution”). The Fund may require each Authorized Institution to meet certain aggregate investment levels before it may open an account with the Fund on behalf of its customers. Contact your Authorized Institution for more information. The shares of the Corporate Bond Fund are redeemable. You may redeem your shares only through your Authorized Institution. To redeem shares of the Fund, you should contact your Authorized Institution and follow its procedures, including deadlines for receipt by the Authorized Institution of your share redemption instructions. Your Authorized Institution may charge a fee for its services, in addition to the fees charged by the Fund. TAX INFORMATION The Corporate Bond Fund intends to make distributions that may be taxed as ordinary income or capital gains. PAYMENTS TO BROKER-DEALERS AND OTHER FINANCIAL INTERMEDIARIES If you purchase the Corporate Bond Fund through a broker-dealer or other financial intermediary (such as a bank), the Fund and its related companies may pay the intermediary for the sale of Fund shares and related services. These payments may create a conflict of interest by influencing the broker-dealer or other intermediary and your salesperson to recommend the Fund over another investment. Ask your salesperson or visit your financial intermediary’s web site for more information. CNI CHARTER FUNDS | 21 California Tax Exempt Bond Fund INVESTMENT GOAL The California Tax Exempt Bond Fund seeks to provide current income exempt from federal and California state income tax (as the primary component of a total return strategy) by investing primarily in California municipal bonds. FEES AND EXPENSES OF THE FUND The table below describes the fees and expenses you may pay if you buy and hold shares of the California Tax Exempt Bond Fund. Annual Fund Operating Expenses (expenses that you pay each year as a percentage of the value of your investment) Servicing Class(1) Class N Management Fees 0.27% 0.27% Distribution (12b-1) Fee None 0.25% Other Expenses Shareholder Servicing Fee 0.25% 0.25% Other Fund Expenses 0.11% 0.11% Total Other Expenses 0.36% 0.36% Total Annual Fund Operating Expenses(2) 0.63% 0.88% Effective December 19, 2011, the shares previously designated as Institutional Class shares were redesignated as Servicing Class shares. Includes “Acquired Fund Fees and Expenses” incurred indirectly by the Fund due to investments in other investment companies and pooled investment vehicles. The Total Annual Fund Operating Expenses above do not correlate to the ratio of expenses to average net assets given in the financial highlights (which reflects the Fund’s operating expenses but not “Acquired Fund Fees and Expenses”). EXAMPLE This Example is intended to help you compare the cost of investing in the California Tax Exempt Bond Fund with the cost of investing in other mutual funds. The Example assumes that you invest $10,000 in the California Tax Exempt Bond Fund for the time periods indicated and then redeem all of your shares at the end of those periods. The Example also assumes that your investment has a 5% return each year and that the Fund’s operating expenses remain the same. Although your actual costs may be higher or lower, based on these assumptions your costs would be: 1 Year 3 Years 5 Years 10 Years Servicing Class Class N PORTFOLIO TURNOVER The California Tax Exempt Bond Fund pays transaction costs, such as commissions, when it buys and sells securities (or “turns over” its portfolio). A higher portfolio turnover rate may indicate higher transaction costs and may result in higher taxes when Fund shares are held in a taxable account. These costs, which are not reflected in annual fund operating expenses or in the example, affect the Fund’s performance. During the most recent fiscal year, the Fund’s portfolio turnover rate was 26% of the average value of its portfolio. CNI CHARTER FUNDS | 22 PRINCIPAL INVESTMENT STRATEGIES The California Tax Exempt Bond Fund invests at least 80% of its net assets (including borrowings for investment purposes) in intermediate-term, high quality municipal bonds and notes, the interest from which is expected to be exempt from federal and California state personal income taxes. This policy may not be changed without shareholder approval. The municipal bond obligations in which the Fund invests consist of general obligation bonds, revenue bonds, notes and obligations issued by the State of California and its agencies and by various counties, cities and regional or special districts in California. The Fund may also invest in short-term tax exempt commercial paper, floating rate notes or shares of money market mutual funds whose objectives are consistent with the Fund’s objectives (i.e., money market funds that invest primarily in securities the interest from which is expected to be exempt from federal and California state personal income taxes). City National Asset Management, Inc. (“CNAM”), the Fund’s investment adviser, actively manages the average duration of the Fund’s portfolio in accordance with its expectations of interest rate changes as driven by economic trends. The average duration of the Fund’s portfolio typically ranges from three to eight years, but may vary due to unusually large purchases or redemptions of the Fund’s shares. The Fund typically invests in issues with a minimum credit rating from Moody’s Investors Service or Standard & Poor’s of Baa or BBB, issues carrying credit enhancements such as insurance by the major bond insurance companies with an underlying minimum credit rating of Baa or BBB, and short term notes with a rating from Moody’s of MIG1 or VMIG1 or from Standard & Poor’s of SP1 or A1. The Fund may retain a security after it has been downgraded to any ratingbelow the minimum credit rating if CNAM determines that doing so is in the best interests of the Fund. PRINCIPAL RISKS OF INVESTING IN THE FUND As with any mutual fund, there are risks to investing. Neither the California Tax Exempt Bond Fund nor CNAM can guarantee that the Fund will meet its investment goal. The Fund will expose you to risks that could cause you to lose money. Here are the principal risks to consider: The Effect of Interest Rates – The Fund’s yield typically moves in the same direction as movements in short-term interest rates, although it does not do so as quickly. Market Risk of Fixed Income Securities – The prices of fixed income securities respond to economic developments, particularly interest rate changes, as well as to perceptions about the creditworthiness of individual issuers, including governments. Generally, fixed income securities decrease in value if interest rates rise and increase in value if interest rates fall, with lower rated securities more volatile than higher rated securities. The duration of these securities affects risk as well, with longer term securities generally more volatile than shorter term securities. California Risk Factors – The Fund may be subject to greater risks than other tax exempt bond funds that are diversified across issuers located in a number of states. The Fund is vulnerable to adverse economic, political or other events that may lessen the ability of California municipal securities issuers to pay interest and principal on their securities. Poor statewide or local economic results, changing political sentiments, legislation, policy changes or voter-based initiatives at the state or local level, erosion of the tax base or revenues of the state or one or more local governments, seismic or other natural disasters, or other economic or credit problems affecting the state generally or a particular issuer may reduce tax revenues and increase the expenses of California municipal issuers, making it more difficult for them to meet their obligations. Actual or perceived erosion of the creditworthiness of California municipal issuers may also reduce the value of the Fund’s holdings. Municipal Obligations – U.S. state and local governments issuing municipal securities held by the Fund rely on taxes and revenues from private projects financed by municipal securities to pay interest and principal on municipal debt. The payment of principal and interest on these obligations may be adversely affected by a variety of factors at the state or local level, including poor statewide or local economic results, changing political sentiments, legislation, policy changes or voter-based initiatives, erosion of the tax base or revenues of the state or one or more local governments, natural disasters, or other economic or credit problems. Underlying Funds – To the extent the Fund invests in other funds, the risks associated with investing in the Fund are closely related to the risks associated with the securities and other investments held by the underlying funds. The ability of the Fund to achieve its investment goal depends in part upon the ability of the underlying funds to achieve their investment goals. The underlying funds may not achieve their investment goals. In addition, by investing in the Fund, shareholders indirectly bear fees and expenses charged by the underlying funds in addition to the Fund’s direct fees and expenses. Non-diversification – The Fund is non-diversified, which means that it may invest in the securities of relatively few issuers. As a result, the Fund may be more susceptible to adverse events affecting those issuers and may experience increased volatility. Rating Agencies – A credit rating is not an absolute standard of quality, but rather a general indicator that reflects only the view of the originating rating agency. If a rating agency revises downward or withdraws its rating of a security in which the Fund invests, that security may become less liquid or may lose value. Management – The Fund’s performance depends on the portfolio managers’ skill in making appropriate investments. As a result, the Fund may underperform the fixed income market or similar funds. CNI CHARTER FUNDS | 23 Defensive Investments – During unusual economic or market conditions, or for temporary defensive or liquidity purposes, the Fund may invest 100% of its assets in municipal obligations of issuers in states other than California or in cash or cash equivalents (including taxable money market securities). During such a period, the Fund may not achieve its investment goals. If the Fund makes defensive investments, it may generate taxable income. PERFORMANCE The bar chart and the performance table that follow illustrate some of the risks and volatility of an investment in the California Tax Exempt Bond Fund by showing changes in the Fund’s performance from year to year and by showing the Fund’s average annual total returns for 1, 5 and 10 years. Of course, the Fund’s past performance (before and after taxes) does not necessarily indicate how the Fund will perform in the future. Call 1-888-889-0799 or visit www.cnicharterfunds.com to obtain updated performance information. This bar chart shows the performance of the California Tax Exempt Bond Fund’s Servicing Class (formerly designated as Institutional Class) shares based on a calendar year. Best Quarter Worst Quarter 4.45% (1.85)% Q3 2009 Q2 2004 This table shows the average annual total returns of each class of the California Tax Exempt Bond Fund for the periods ended December 31, 2011. The table also shows how the Fund’s performance compares with the returns of an index comprised of investments similar to those held by the Fund. Average Annual Total Returns (for the periods ended December 31, 2011) One Year Five Years Ten Years Inception Date Servicing Class 1/14/2000 Return Before Taxes 6.16% 4.20% 3.93% Return After Taxes on Distributions 6.03% 4.16% 3.82% Return After Taxes on Distributions and Sale of Fund Shares 5.08% 4.03% 3.76% Class N 4/13/2000 Return Before Taxes 5.88% 3.93% 3.67% Barclays Capital CA Intermediate-Short Municipal Index (Reflects no deduction for fees, expenses or taxes) 7.10% 5.16% 4.52% After-tax returns are calculated using the historical highest individual federal marginal income tax rates and do not reflect the impact of state and local taxes. Actual after-tax returns depend on an investor’s tax situation and may differ from those shown. The performance of Servicing Class shares does not reflect Class N shares’ Rule 12b-1 fees and expenses. After-tax returns for Class N shares will vary from the after-tax returns shown above for Servicing Class shares. The after-tax returns shown are not relevant to investors who hold their Fund shares through tax-deferred arrangements, such as 401(k) plans or individual retirement accounts. CNI CHARTER FUNDS | 24 INVESTMENT MANAGER City National Asset Management, Inc. PORTFOLIO MANAGERS Gregory Kaplan and Kathleen Meyer have served as portfolio managers for the California Tax Exempt Bond Fund since November 2009 and June 2010, respectively. PURCHASE AND SALE OF FUND SHARES The California Tax Exempt Bond Fund has no minimum purchase or minimum shareholder account balance requirements; however, you will have to comply with the purchase and account balance minimums of your approved broker-dealer or other financial institution (each, an “Authorized Institution”). The Fund may require each Authorized Institution to meet certain aggregate investment levels before it may open an account with the Fund on behalf of its customers. Contact your Authorized Institution for more information. The shares of the California Tax Exempt Bond Fund are redeemable. You may redeem your shares only through your Authorized Institution. To redeem shares of the Fund, you should contact your Authorized Institution and follow its procedures, including deadlines for receipt by the Authorized Institution of your share redemption instructions. Your Authorized Institution may charge a fee for its services, in addition to the fees charged by the Fund. TAX INFORMATION The California Tax Exempt Bond Fund intends to distribute income that is exempt from regular federal and California state income taxes. A portion of the Fund’s distributions may be subject to such taxes or to the federal alternative minimum tax. PAYMENTS TO BROKER-DEALERS AND OTHER FINANCIAL INTERMEDIARIES If you purchase the California Tax Exempt Bond Fund through a broker-dealer or other financial intermediary (such as a bank), the Fund and its related companies may pay the intermediary for the sale of Fund shares and related services. These payments may create a conflict of interest by influencing the broker-dealer or other intermediary and your salesperson to recommend the Fund over another investment. Ask your salesperson or visit your financial intermediary’s web site for more information. CNI CHARTER FUNDS | 25 Full Maturity Fund INVESTMENT GOAL The Full Maturity Fund seeks to provide a high level of current income, consistent with the preservation of capital. FEES AND EXPENSES OF THE FUND The table below describes the fees and expenses you may pay if you buy and hold shares of the Full Maturity Fund. Annual Fund Operating Expenses (expenses that you pay each year as a percentage of the value of your investment) Institutional Class Class N Management Fees 0.50% 0.50% Distribution (12b-1) Fee None 0.25% Other Expenses Shareholder Servicing Fee None 0.25% Other Fund Expenses 0.17% 0.17% Total Other Expenses 0.17% 0.42% Total Annual Fund Operating Expenses 0.67% 1.17% Fee Waiver and/or Expense Reimbursement(1) (0.00)% (0.25)% Total Annual Fund Operating Expenses After Fee Waiver and/or Expense Reimbursement 0.67% 0.92% (1) City National Asset Management, Inc., the Fund’s investment adviser (“CNAM”), has contractually agreed to waive the shareholder servicing fees for Class N until January 28, 2014. Prior to that date, this arrangement may be terminated without penalty by the Fund’s Board of Trustees upon 60 days’ written notice to CNAM, and it will terminate automatically upon the termination of the shareholder services agreement between CNAM and the Fund. Any shareholder servicing fees waived by CNAM pursuant to this arrangement will not be eligible for reimbursement by the Fund to CNAM. EXAMPLE This Example is intended to help you compare the cost of investing in the Full Maturity Fund with the cost of investing in other mutual funds. The Example assumes that you invest $10,000 in the Fund for the time periods indicated and then redeem all of your shares at the end of those periods. The Example also assumes that your investment has a 5% return each year and that the Fund’s operating expenses remain the same. Although your actual costs may be higher or lower, based on these assumptions your costs would be: 1 Year 3 Years 5 Years 10 Years Institutional Class Class N PORTFOLIO TURNOVER The Fund pays transaction costs, such as commissions, when it buys and sells securities (or “turns over” its portfolio). A higher portfolio turnover rate may indicate higher transaction costs and may result in higher taxes when Fund shares are held in a taxable account. These costs, which are not reflected in annual fund operating expenses or in the example, affect the Fund’s performance. During the most recent fiscal year, the Fund’s portfolio turnover rate was 43% of the average value of its portfolio. PRINCIPAL INVESTMENT STRATEGIES At least 80% of the Full Maturity Fund’s net assets (including borrowings for investment purposes) consists of fixed income securities either issued or guaranteed by the U.S. Government or its agencies or instrumentalities, money market instruments, non-convertible fixed income securities (i.e., bonds which cannot be converted into stock) of U.S. companies and U.S. dollar-denominated debt obligations issued by foreign governments and corporations. The Fund invests at least 80% of its net assets in securities having one of the three highest ratings of either Moody’s Investors Service or Standard & Poor’s (at least A-). The Fund may also invest up to 20% of its total assets in securities with a minimum credit rating from Moody’s or Standard & Poor’s of Baa3 or BBB-, respectively, or which, if unrated, are determined by CNI CHARTER FUNDS | 26 a sub-adviser to be of comparable quality. The Fund may retain a security after it has been downgraded to any ratingbelow the minimum credit rating if City National Asset Management, Inc. (“CNAM”), the Fund’s investment adviser, determines that doing so is in the best interests of the Fund. The fixed income securities in which the Fund invests may have fixed, variable or floating interest rates, as well as varying principal repayment and interest rate reset terms. Fixed income securities issued or guaranteed by the U.S. Government or its agencies or instrumentalities in which the Full Maturity Fund invests consist principally of mortgage-backed or asset-backed securities issued or guaranteed by Fannie Mae (formerly known as the Federal National Mortgage Association), the Federal Home Loan Bank (“FHLB”), Freddie Mac (formerly known as the Federal Home Loan Mortgage Corporation) and the Government National Mortgage Association (“Ginnie Mae”). In certain cases, securities issued by government-sponsored agencies may not be guaranteed or insured by the U.S. Government. At least 80% of the Full Maturity Fund’s net assets consists of fixed income securities with “full duration.” This investment strategy may be changed at any time, with 60 days’ prior notice to shareholders. CNAM considers “full duration” to mean duration ranging from that of the bonds included in the Barclays Capital U.S. Intermediate Government/Credit Bond Index, which had an average duration of 3.94 years as of September 30, 2011, to that of the bonds included in the Barclays Capital U.S. Aggregate Bond Index, which had an average duration of 4.96 years as of September 30, 2011. Duration is a weighted measure of the length of time required to receive the present value of future payments, both interest and principal, from a fixed income security. Each of the Fund’s sub-advisers actively manages the average duration of the portion of the Fund’s investments that it manages and determines which securities to purchase or sell in accordance with its individual analysis of prevailing interest rates and yields, the quality and value of particular securities, and the comparative risks and returns of alternative investments. The maturities of the securities held by the Fund are generally less than five years. PRINCIPAL RISKS OF INVESTING IN THE FUND As with any mutual fund, there are risks to investing. None of the Full Maturity Fund, CNAM and the Fund’s sub-advisers can guarantee that the Fund will meet its investment goal. The Fund will expose you to risks that could cause you to lose money. Here are the principal risks to consider: The Effect of Interest Rates – The Fund’s yield typically moves in the same direction as movements in short-term interest rates, although it does not do so as quickly. Market Risk of Fixed Income Securities – The prices of fixed income securities respond to economic developments, particularly interest rate changes, as well as to perceptions about the creditworthiness of individual issuers, including governments. Generally, fixed income securities decrease in value if interest rates rise and increase in value if interest rates fall, with lower rated securities more volatile than higher rated securities. The duration of these securities affects risk as well, with longer term securities generally more volatile than shorter term securities. Issuers – The Fund may be adversely affected if the issuers of securities that the Fund holds do not make their principal or interest payments on time. Government-Sponsored Entities – The Fund invests in securities issued by government-sponsored entities which may not be guaranteed or insured by the U.S. Government and may only be supported by the credit of the issuing agency. Prepayments – As a general rule, prepayments of the principal of the loans underlying mortgage-backed or other pass-through securities increase during a period of falling interest rates and decrease during a period of rising interest rates. In periods of declining interest rates, as a result of prepayments the Fund may be required to reinvest its assets in securities with lower interest rates. In periods of increasing interest rates, the securities subject to prepayment risk held by the Fund may exhibit price characteristics of longer-term debt securities. Extension – Rising interest rates can cause the average maturity of the Fund’s holdings of mortgage-backed and other pass-through securities to lengthen unexpectedly due to a drop in prepayments. This would increase the sensitivity of the Fund to rising rates and the potential for price declines of portfolio securities. Rating Agencies – A credit rating is not an absolute standard of quality, but rather a general indicator that reflects only the view of the originating rating agency. If a rating agency revises downward or withdraws its rating of a security in which the Fund invests, that security may become less liquid or may lose value. Foreign Securities – Foreign investments tend to be more volatile than domestic securities, and are subject to risks that are not typically associated with domestic securities (e.g., changes in currency rates and exchange control regulations, future political and economic developments and the possibility of seizure or nationalization of companies, or the imposition of withholding taxes on income). Sub-Adviser Allocation – The Fund’s performance is affected by CNAM’s decisions concerning how much of the Fund’s portfolio to allocate for management by each of the Fund’s sub-advisers. Management – The Fund’s performance depends on the portfolio managers’ skill in making appropriate investments. As a result, the Fund may underperform the fixed income market or similar funds. Defensive Investments – During unusual economic or market conditions, or for temporary defensive or liquidity purposes, the Fund may invest 100% of its assets in cash or cash equivalents that would not ordinarily be consistent with the Fund’s investment goals. CNI CHARTER FUNDS | 27 PERFORMANCE The bar chart and the performance table that follow illustrate some of the risks and volatility of an investment in the Full Maturity Fund by showing changes in the Fund’s performance from year to year and by showing the Fund’s average annual total returns for 1, 5 and 10 years and since inception. Of course, the Fund’s past performance (before and after taxes) does not necessarily indicate how the Fund will perform in the future. Call 1-888-889-0799 or visit www.cnicharterfunds.com to obtain updated performance information. This bar chart shows the performance of the Full Maturity Fund’s Institutional Class shares based on a calendar year. Best Quarter Worst Quarter 4.14% (2.43)% Q3 2009 Q2 2004 This table shows the average annual total returns of each class of the Full Maturity Fund for the periods ended December 31, 2011. The table also shows how the Fund’s performance compares with the returns of indexes comprised of investments similar to those held by the Fund. Average Annual Total Returns ( for the periods ended December 31, 2011) One Year Five Years Ten Years Since Inception(1) Institutional Class Return Before Taxes 5.87% 5.55% 4.98% 5.92% Return After Taxes on Distributions 4.64% 4.11% 3.46% 4.00% Return After Taxes on Distributions and Sale of Fund Shares 4.05% 3.93% 3.39% 3.96% Class N Return Before Taxes 5.61% 5.28% 4.77% 5.83% Barclays Capital U.S. Intermediate Government/Credit Bond Index (Reflects no deduction for fees, expenses or taxes) 5.80% 5.88% 5.20% 6.70% Barclays Capital U.S. Aggregate Bond Index (Reflects no deduction for fees, expenses or taxes) 7.84% 6.50% 5.78% 7.24% (1) Performance for “Since Inception” for all classes is shown for periods beginning October 20, 1988, which is the date the predecessor to the Full Maturity Fund (the “Predecessor Fund”) commenced operations. On September 30, 2005, the Predecessor Fund reorganized into the Fund. The performance results for Institutional Class shares of the Fund before September 30, 2005, reflect the performance of the Predecessor Fund’s Class I shares. Class A shares of the Predecessor Fund, the predecessor to the Class N shares of the Fund, commenced operations on May 11, 2004. The performance results for Class N shares of the Fund for the period of May 11, 2004, to September 29, 2005, reflect the performance of the Predecessor Fund’s Class A shares. The performance results for Class N shares of the Fund for the period of October 20, 1988 to May 11, 2004, reflect the performance of the Predecessor Fund’s Class I shares. The performance of the Predecessor Fund’s Class I shares has not been adjusted to reflect the higher Rule 12b-1 fees and expenses applicable to the Fund’s Class N shares. If it had, the performance of the Fund’s Class N shares would have been lower than that shown. For each index shown the measurement period used in computing the returns of the index for the “Since Inception” period begins on October 31, 1988. After-tax returns are calculated using the historical highest individual federal marginal income tax rates and do not reflect the impact of state and local taxes. Actual after-tax returns depend on an investor’s tax situation and may differ from those shown. The performance of Institutional Class shares does not reflect Class N shares’ Rule 12b-1 fees and expenses. After-tax returns for Class N shares will vary from the after-tax returns shown above for Institutional Class shares. The after-tax returns shown are not relevant to investors who hold their Fund shares through tax-deferred arrangements, such as 401(k) plans or individual retirement accounts. CNI CHARTER FUNDS | 28 INVESTMENT MANAGER City National Asset Management, Inc. SUB-ADVISERS Baird Advisors (“Baird”) Boyd Watterson Asset Management, LLC (“Boyd Watterson”) PORTFOLIO MANAGERS Daniel A. Tranchita and Gary A. Elfe of Baird have served as portfolio managers for the Fund (or the Predecessor Fund, as applicable) since 2000. Justin C. Waggoner of Boyd Watterson has served as portfolio manager for the Fund since 2007. PURCHASE AND SALE OF FUND SHARES The minimum initial investment for Institutional Class shares is $1,000,000. The minimum initial investment for Class N shares is $1,000. There is no minimum for subsequent investments in Institutional Class shares or Class N shares. The Fund reserves the right to change the minimum amount required to open an account or to add to an existing account without prior notice. The Fund may accept investments of smaller amounts at its discretion; however, your financial institution or financial professional may establish higher minimum investment requirements than the Fund and may also independently charge you transaction fees and additional amounts in return for its services. The shares of the Full Maturity Fund are redeemable. You may redeem some or all of your shares on any day the NYSE is open for regular session trading. The Fund ordinarily pays redemption proceeds on the business day following the redemption of your shares. However, the Fund reserves the right to make payment within seven days of the redemption request. Redemption proceeds will be sent to you via check to your address of record or will be wired to your bank via the instructions on your account. TAX INFORMATION The Full Maturity Fund intends to make distributions that may be taxed as ordinary income or capital gains. PAYMENTS TO BROKER-DEALERS AND OTHER FINANCIAL INTERMEDIARIES If you purchase the Full Maturity Fund through a broker-dealer or other financial intermediary (such as a bank), the Fund and its related companies may pay the intermediary for the sale of Fund shares and related services. These payments may create a conflict of interest by influencing the broker-dealer or other intermediary and your salesperson to recommend the Fund over another investment. Ask your salesperson or visit your financial intermediary’s web site for more information. CNI CHARTER FUNDS | 29 High Yield Bond Fund INVESTMENT GOAL The High Yield Bond Fund seeks to maximize total return by investing primarily in fixed income securities rated below investment grade (i.e., “junk bonds”). FEES AND EXPENSES OF THE FUND The table below describes the fees and expenses you may pay if you buy and hold shares of the High Yield Bond Fund. Annual Fund Operating Expenses (expenses that you pay each year as a percentage of the value of your investment) Institutional Class(1) Servicing Class(1) Class N Management Fees 0.75% 0.75% 0.75% Distribution (12b-1) Fee None None 0.30% Other Expenses Shareholder Servicing Fee None 0.25% 0.25% Other Fund Expenses 0.10%(2) 0.10% 0.10% Total Other Expenses 0.10% 0.35% 0.35% Total Annual Fund Operating Expenses 0.85% 1.10% 1.40% Institutional Class shares were initially offered in December, 2011. Effective December 19, 2011, the shares previously designated as Institutional Class shares were redesignated as Servicing Class shares. Other Fund Expenses for Institutional Class shares are estimated based on the amounts for Servicing Class shares and Class N shares. EXAMPLE This Example is intended to help you compare the cost of investing in the High Yield Bond Fund with the cost of investing in other mutual funds. The Example assumes that you invest $10,000 in the High Yield Bond Fund for the time periods indicated and then redeem all of your shares at the end of those periods. The Example also assumes that your investment has a 5% return each year and that the Fund’s operating expenses remain the same. Although your actual costs may be higher or lower, based on these assumptions your costs would be: 1 Year 3 Years 5 Years 10 Years Institutional Class Servicing Class Class N PORTFOLIO TURNOVER The High Yield Bond Fund pays transaction costs, such as commissions, when it buys and sells securities (or “turns over” its portfolio). A higher portfolio turnover rate may indicate higher transaction costs and may result in higher taxes when Fund shares are held in a taxable account. These costs, which are not reflected in annual fund operating expenses or in the example, affect the Fund’s performance. During the most recent fiscal year, the Fund’s portfolio turnover rate was 56% of the average value of its portfolio. CNI CHARTER FUNDS | 30 PRINCIPAL INVESTMENT STRATEGIES At least 80% of the High Yield Bond Fund’s net assets (including borrowings for investment purposes) consists of fixed income securities rated below investment grade (commonly referred to as “junk bonds”). In particular, the Fund invests in corporate bonds and debentures, convertible securities (securities that may be exchanged, at the option of the holder, for equity securities), preferred securities, zero coupon obligations and debt securities that are issued by U.S. and foreign governments. The Fund’s sub-adviser seeks to invest in securities that offer a high current yield as well as total return potential. In an effort to control risks, the sub-adviser purchases investments diversified across issuers, industries and sectors. The average maturity of the Fund’s investments varies, and there is no limit on the maturity of any security held by the Fund. The Fund invests in fixed income securities rated at least CCC by Standard & Poor’s or Caa2 by Moody’s Investors Service at the time of investment. The Fund may retain a security after it has been downgraded to any ratingbelow the minimum credit rating if City National Asset Management, Inc. (“CNAM”), the Fund’s investment adviser, determines that doing so is in the best interests of the Fund. PRINCIPAL RISKS OF INVESTING IN THE FUND As with any mutual fund, there are risks to investing. None of the High Yield Bond Fund, City National Asset Management, Inc. (“CNAM”), the Fund’s investment adviser, and the Fund’s sub-adviser can guarantee that the Fund will meet its investment goal. The Fund will expose you to risks that could cause you to lose money. Here are the principal risks to consider: The Effect of Interest Rates – The Fund’s yield typically moves in the same direction as movements in short-term interest rates, although it does not do so as quickly. Market Risk of Fixed Income Securities – The prices of fixed income securities respond to economic developments, particularly interest rate changes, as well as to perceptions about the creditworthiness of individual issuers, including governments. Generally, fixed income securities decrease in value if interest rates rise and increase in value if interest rates fall, with lower rated securities more volatile than higher rated securities. The duration of these securities affects risk as well, with longer term securities generally more volatile than shorter term securities. Interest Rate Risk of Preferred Securities – Like fixed income securities, preferred stock generally decreases in value if interest rates rise and increases in value if interest rates fall. Convertible Securities – Convertible securities tend to be subordinate to other debt securities issued by the same issuer. Also, issuers of convertible securities are often not as strong financially as issuers with higher credit ratings. Convertible securities generally provide yields higher than the underlying stocks, but generally lower than comparable non-convertible securities. Issuers – The Fund may be adversely affected if the issuers of securities that the Fund holds do not make their principal or interest payments on time. High Yield (“Junk”) Bonds – High yield bonds involve greater risks of default, downgrade, or price declines and are more volatile than investment grade securities. Issuers of high yield bonds may be more susceptible than other issuers to economic downturns and are subject to a greater risk that the issuer may not be able to pay interest or dividends and ultimately to repay principal upon maturity. Discontinuation of these payments could have a substantial adverse effect on the market value of the security. Prepayments – As a general rule, prepayments of the principal of the loans underlying mortgage-backed or other pass-through securities increase during a period of falling interest rates and decrease during a period of rising interest rates. In periods of declining interest rates, as a result of prepayments the Fund may be required to reinvest its assets in securities with lower interest rates. In periods of increasing interest rates, the securities subject to prepayment risk held by the Fund may exhibit price characteristics of longer-term debt securities. Extension – Rising interest rates can cause the average maturity of the Fund’s holdings of mortgage-backed or other pass-through securities to lengthen unexpectedly due to a drop in prepayments. This would increase the sensitivity of the Fund to rising rates and the potential for price declines of portfolio securities. Rating Agencies – A credit rating is not an absolute standard of quality, but rather a general indicator that reflects only the view of the originating rating agency. If a rating agency revises downward or withdraws its rating of a security in which the Fund invests, that security may become less liquid or may lose value. Foreign Securities – Foreign investments tend to be more volatile than domestic securities, and are subject to risks that are not typically associated with domestic securities (e.g., changes in currency rates and exchange control regulations, unfavorable political and economic developments and the possibility of seizure or nationalization of companies, or the imposition of withholding taxes on income). Management – The Fund’s performance depends on the portfolio manager’s skill in making appropriate investments. As a result, the Fund may underperform the fixed income market or similar funds. Defensive Investments – During unusual economic or market conditions, or for temporary defensive or liquidity purposes, the Fund may invest 100% of its assets in cash or cash equivalents that would not ordinarily be consistent with the Fund’s investment goals. CNI CHARTER FUNDS | 31 PERFORMANCE The bar chart and the performance table that follow illustrate some of the risks and volatility of an investment in the High Yield Bond Fund by showing changes in the Fund’s performance from year to year and by showing the Fund’s average annual total returns for 1, 5 and 10 years. Of course, the Fund’s past performance (before and after taxes) does not necessarily indicate how the Fund will perform in the future. Call 1-888-889-0799 or visit www.cnicharterfunds.com to obtain updated performance information. This bar chart shows the performance of the High Yield Bond Fund’s Servicing Class (formerly designated as Institutional Class) shares based on a calendar year. Best Quarter Worst Quarter 18.73% (19.69)% Q2 2009 Q4 2008 This table shows the average annual total returns of each class of the High Yield Bond Fund for the periods ended December 31, 2011. The table also shows how the Fund’s performance compares with the returns of an index comprised of investments similar to those held by the Fund. Average Annual Total Returns (for the periods ended December 31, 2011) One Year Five Years Ten Years Inception Date Servicing Class 1/14/2000 Return Before Taxes 5.88% 6.94% 7.79% Return After Taxes on Distributions 2.84% 3.75% 4.64% Return After Taxes on Distributions and Sale of Fund Shares 3.79% 3.97% 4.73% Class N 1/14/2000 Return Before Taxes 5.56% 6.62% 7.47% Citigroup High Yield Market Capped Index (Reflects no deduction for fees, expenses or taxes) 5.75% 7.18% 8.82% After-tax returns are calculated using the historical highest individual federal marginal income tax rates and do not reflect the impact of state and local taxes. Actual after-tax returns depend on an investor’s tax situation and may differ from those shown. The performance of the Servicing Class shares does not reflect the Class N shares’ Rule 12b-1 fees and expenses. After-tax returns for Class N shares and Institutional Class shares will vary from the after-tax returns shown above for Servicing Class shares. The after-tax returns shown are not relevant to investors who hold their Fund shares through tax-deferred arrangements, such as 401(k) plans or individual retirement accounts. INVESTMENT MANAGER City National Asset Management, Inc. SUB-ADVISER Guggenheim Partners Investment Management, LLC (“Guggenheim”) PORTFOLIO MANAGERS Jeffrey Abrams and Kevin Gundersen, CFA of Guggenheim have served as portfolio managers of the High Yield Bond Fund since November 2011. CNI CHARTER FUNDS | 32 PURCHASE AND SALE OF FUND SHARES The minimum initial investment for Institutional Class shares is $1,000,000. There is no minimum for subsequent investments in Institutional Class shares. The Fund reserves the right to change the minimum amount required to open an account without prior notice. The Fund may accept investments of smaller amounts at its discretion. There are no minimum purchase or minimum shareholder account balance requirements for Servicing Class or Class N shares; however, you will have to comply with the purchase and account balance minimums of your approved broker-dealer or other financial institution (each, an “Authorized Institution”). The Fund may require each Authorized Institution to meet certain aggregate investment levels before it may open an account with the Fund on behalf of its customers. Contact your Authorized Institution for more information. The shares of the High Yield Bond Fund are redeemable. You may redeem your shares only through your Authorized Institution. To redeem shares of the Fund, you should contact your Authorized Institution and follow its procedures, including deadlines for receipt by the Authorized Institution of your share redemption instructions. Your Authorized Institution may charge a fee for its services, in addition to the fees charged by the Fund. TAX INFORMATION The High Yield Bond Fund intends to make distributions that may be taxed as ordinary income or capital gains. PAYMENTS TO BROKER-DEALERS AND OTHER FINANCIAL INTERMEDIARIES If you purchase the High Yield Bond Fund through a broker-dealer or other financial intermediary (such as a bank), the Fund and its related companies may pay the intermediary for the sale of Fund shares and related services. These payments may create a conflict of interest by influencing the broker-dealer or other intermediary and your salesperson to recommend the Fund over another investment. Ask your salesperson or visit your financial intermediary’s web site for more information. CNI CHARTER FUNDS | 33 Multi-Asset Fund INVESTMENT GOAL The Multi-Asset Fund seeks to generate a positive total return in excess of inflation in a manner consistent with capital preservation in all market environments. FEES AND EXPENSES OF THE FUND The table below describes the fees and expenses you may pay if you buy and hold shares of the Multi-Asset Fund. Annual Fund Operating Expenses (expenses that you pay each year as a percentage of the value of your investment) Institutional Class(1) Servicing Class(1) Class N Management Fees 0.50% 0.50% 0.50% Distribution (12b-1) Fee None None 0.25% Other Expenses Shareholder Servicing Fee None 0.25% 0.25% Other Fund Expenses 0.10%(2) 0.10% 0.10% Total Other Expenses 0.10% 0.35% 0.35% Acquired Fund Fees and Expenses 0.39% 0.39% 0.39% Total Annual Fund Operating Expenses(3) 0.99% 1.24% 1.49% Institutional Class shares were initially offered in December, 2011. Effective December 19, 2011, the shares previously designated as Institutional Class shares were redesignated as Servicing Class shares. Other Fund Expenses for Institutional Class shares are estimated based on the amounts for Servicing Class shares and Class N shares. Includes “Acquired Fund Fees and Expenses” incurred indirectly by the Fund due to investments in other investment companies and pooled investment vehicles. The Total Annual Fund Operating Expenses above do not correlate to the ratio of expenses to average net assets given in the financial highlights (which reflects the Fund’s operating expenses but not “Acquired Fund Fees and Expenses”). EXAMPLE This Example is intended to help you compare the cost of investing in the Multi-Asset Fund with the cost of investing in other mutual funds. The Example assumes that you invest $10,000 in the Multi-Asset Fund for the time periods indicated and then redeem all of your shares at the end of those periods. The Example also assumes that your investment has a 5% return each year and that the Fund’s operating expenses remain the same. Although your actual costs may be higher or lower, based on these assumptions your costs would be: 1 Year 3 Years 5 Years 10 Years Institutional Class Servicing Class Class N PORTFOLIO TURNOVER The Multi-Asset Fund pays transaction costs, such as commissions, when it buys and sells securities (or “turns over” its portfolio). A higher portfolio turnover rate may indicate higher transaction costs and may result in higher taxes when Fund shares are held in a taxable account. These costs, which are not reflected in annual fund operating expenses or in the example, affect the Fund’s performance. During the most recent fiscal year, the Fund’s portfolio turnover rate was 67% of the average value of its portfolio. CNI CHARTER FUNDS | 34 PRINCIPAL INVESTMENT STRATEGIES The Multi-Asset Fund is a “fund of funds” and pursues its investment objective by investing all or a principal portion of its assets in other mutual funds or exchange-traded funds (“underlying funds”). These underlying funds will include other funds in the CNI Charter Funds family, like the Corporate Bond Fund, the Government Bond Fund and the High Yield Bond Fund, which are also managed by City National Asset Management, Inc. (“CNAM”), the Fund’s investment adviser, as well as unaffiliated funds. The Multi-Asset Fund invests in a diversified portfolio, consisting of direct investments in the following asset classes and investments in underlying funds which invest in these asset classes: • Common and preferred equity securities of U.S. and foreign companies (including emerging market companies) of all industries, market capitalizations and investment characteristics; and • The following types of fixed income securities, which are not limited with respect to maturity (although the average maturity of the Fund’s portfolio of direct investments in fixed income securities typically ranges from two to seven years): • Corporate debt securities of U.S. and foreign companies (including emerging market companies) of all ratings (including below-investment grade ratings (commonly referred to as “junk bonds”)), consisting of bonds, notes, convertible securities, mortgage-backed and asset-backed instruments, corporate commercial paper, debentures, convertible and preferred securities and zero coupon obligations; • Inflation-indexed bonds issued both by U.S. and foreign governments and corporations; • Money market investments; • Repurchase agreements with respect to fixed income instruments issued by U.S. and foreign issuers; • Debt securities issued by U.S. states or local governments or their subdivisions, agencies, authorities and other government-sponsored enterprises; and • Obligations of foreign governments, including governments of emerging market countries, or their subdivisions, agencies and government-sponsored enterprises. The Multi-Asset Fund invests in these securities and investments in proportions which reflect CNAM’s judgment regarding the potential returns and risks of each asset class. CNAM considers a number of factors when making these allocations, including economic conditions and monetary factors, inflation and interest rate levels and trends, investor confidence and technical stock market measures. CNAM purchases and sells portfolio securities based on a variety of valuation factors, including but not limited to expected return, expected risk, yield and price and earnings multiples, as well as analysis of various economic measures and statistics. PRINCIPAL RISKS OF INVESTING IN THE FUND As with any mutual fund, there are risks to investing. Neither the Multi-Asset Fund nor CNAM can guarantee that the Fund will meet its investment goal. The Fund will expose you to risks that could cause you to lose money. Here are the principal risks to consider: Allocation – The Multi-Asset Fund’s performance depends on CNAM’s ability to anticipate correctly the relative potential returns and risks of the asset classes in which the Fund directly or indirectly invests. Underlying Funds – The risks associated with investing in the Fund are closely related to the risks associated with the securities and other investments held by the underlying funds. The ability of the Fund to achieve its investment goal depends in part upon the ability of the underlying funds to achieve their investment goals. The underlying funds may not achieve their investment goals. In addition, by investing in the Fund, shareholders indirectly bear fees and expenses charged by the underlying funds in addition to the Fund’s direct fees and expenses. Market Risk of Equity Securities – By investing directly or indirectly in stocks, the Fund may expose you to a sudden decline in the share price of a particular portfolio holding or to an overall decline in the stock market. In addition, the Fund’s principal market segment may underperform other segments or the market as a whole. The value of your investment in the Fund will fluctuate daily and cyclically based on movements in the stock market and the activities of individual companies in the Fund’s portfolio. Market Risk of Fixed Income Securities – The prices of fixed income securities respond to economic developments, particularly interest rate changes, as well as to perceptions about the creditworthiness of individual issuers, including governments. Generally, fixed income securities decrease in value if interest rates rise and increase in value if interest rates fall, with lower rated securities more volatile than higher rated securities. The duration of these securities affects risk as well, with longer term securities generally more volatile than shorter term securities. CNI CHARTER FUNDS | 35 Rating Agencies – A credit rating is not an absolute standard of quality, but rather a general indicator that reflects only the view of the originating rating agency. If a rating agency revises downward or withdraws its rating of a security in which the Fund or an underlying fund invests, that security may become less liquid or may lose value. Interest Rate Risk of Preferred Securities – Like fixed income securities, preferred stock generally decreases in value if interest rates rise and increases in value if interest rates fall. High Yield (“Junk”) Bonds – High yield bonds held by the underlying funds involve greater risks of default, downgrade, or price declines and are more volatile than investment grade securities. Issuers of high yield bonds may be more susceptible than other issuers to economic downturns and are subject to a greater risk that the issuer may not be able to pay interest or dividends and ultimately to repay principal upon maturity. Discontinuation of these payments could have a substantial adverse effect on the market value of the security. Municipal Obligations – U.S. state and local governments issuing municipal securities held by the underlying funds rely on taxes and revenues from private projects financed by municipal securities to pay interest and principal on municipal debt. The payment of principal and interest on these obligations may be adversely affected by a variety of factors at the state or local level, including poor statewide or local economic results, changing political sentiments, legislation, policy changes or voter-based initiatives, erosion of the tax base or revenues of the state or one or more local governments, natural disasters, or other economic or credit problems. Foreign government obligations are also subject to similar risks. Foreign Securities – Foreign investments held by the underlying funds tend to be more volatile than domestic securities, and are subject to risks that are not typically associated with domestic securities (e.g., changes in currency rates and exchange control regulations, unfavorable political and economic developments and the possibility of seizure or nationalization of companies, or the imposition of withholding taxes on income). Emerging Market Securities – Many of the risks with respect to foreign investments are more pronounced for investments in developing or emerging market countries. Emerging market countries may have government exchange controls, more volatile currency exchange rates, less market regulation, and less developed securities markets and legal systems. Their economies also depend heavily upon international trade and may be adversely affected by protective trade barriers and economic conditions of their trading partners. Management – The Fund’s performance depends on the portfolio managers’ skill in making appropriate investments. As a result, the Fund may underperform the markets in which it invests or similar funds. Defensive Investments – During unusual economic or market conditions, or for temporary defensive or liquidity purposes, the Fund or one or more underlying funds may invest 100% of its assets in cash or cash equivalents that would not ordinarily be consistent with its investment goals. PERFORMANCE The bar chart and the performance table that follow illustrate some of the risks and volatility of an investment in the Multi-Asset Fund by showing changes in the Fund’s performance from year to year and by showing the Fund’s average annual total returns for 1 year and since inception. Of course, the Fund’s past performance (before and after taxes) does not necessarily indicate how the Fund will perform in the future. Call 1-888-889-0799 or visit www.cnicharterfunds.com to obtain updated performance information. This bar chart shows the performance of the Multi-Asset Fund’s Servicing Class (formerly designated as Institutional Class) shares based on a calendar year. Best Quarter Worst Quarter 9.17% (9.81)% Q3 2010 Q3 2011 CNI CHARTER FUNDS | 36 This table shows the average annual total returns of each class of the Multi-Asset Fund for the periods ended December 31, 2011. The table also shows how the Fund’s performance compares to various broad-based securities market indexes and the Consumer Price Index (“CPI”) plus 500 basis points. Average Annual Total Returns (for the periods ended December 31, 2011) One Year Since Inception Inception Date Servicing Class 10/1/2007 Return Before Taxes (4.99)% (0.06)% Return After Taxes on Distributions (5.49)% (0.76)% Return After Taxes on Distributions and Sale of Fund Shares (3.24)% (0.45)% Class N 10/1/2007 Return Before Taxes (5.32)% (0.32)% Barclays Capital U.S. TIPS Index (1) (Reflects no deduction for fees, expenses or taxes) 13.56% 7.85% 60/40 hybrid of the following two indexes:(1) S&P 500 Index Barclays Capital U.S. Intermediate Government/Credit Bond Index (Reflects no deduction for fees, expenses or taxes) 3.86% 1.38% CPI + 500 Basis Points (Reflects no deduction for fees, expenses or taxes) 8.10% 6.96% S&P 500 Index (Reflects no deduction for fees, expenses or taxes) 2.11% (2.32)% Previously, the Fund’s performance was compared to the Consumer Price Index plus 500 basis points (CPI + 500 basis points) and the S&P 500 Index as its primary benchmarks. CNAM has elected to compare the Fund’s performance to the Barclays Capital U.S. TIPS Index and a hybrid index consisting of 60% S&P 500 Index and 40% Barclays Capital U.S. Intermediate Government/Credit Index, in addition to the CPI + 500 Basis Points, as CNAM believes these are the most appropriate measures for comparison to the Fund’s performance. After-tax returns are calculated using the historical highest individual federal marginal income tax rates and do not reflect the impact of state and local taxes. Actual after-tax returns depend on an investor’s tax situation and may differ from those shown. The performance of Servicing Class shares does not reflect Class N shares’ Rule 12b-1 fees and expenses. After-tax returns for Class N shares and Institutional Class shares will vary from the after-tax returns shown above for Servicing Class shares. The after-tax returns shown are not relevant to investors who hold their Fund shares through tax-deferred arrangements, such as 401(k) plans or individual retirement accounts. INVESTMENT MANAGER City National Asset Management, Inc. PORTFOLIO MANAGERS Bruce Simon, William C. Miller and Otis “Tres” Heald have served as portfolio managers for the Multi-Asset Fund since February 2011, the Fund’s inception in October 2007, and June 2010, respectively. PURCHASE AND SALE OF FUND SHARES The minimum initial investment for Institutional Class shares is $1,000,000. There is no minimum for subsequent investments in Institutional Class shares. The Fund reserves the right to change the minimum amount required to open an account without prior notice. The Fund may accept investments of smaller amounts at its discretion. There are no minimum purchase or minimum shareholder account balance requirements for Servicing Class or Class N shares; however, you will have to comply with the purchase and account balance minimums of your approved broker-dealer or other financial institution (each, an “Authorized Institution”). The Fund may require each Authorized Institution to meet certain aggregate investment levels before it may open an account with the Fund on behalf of its customers. Contact your Authorized Institution for more information. The shares of the Multi-Asset Fund are redeemable. You may redeem your shares only through your Authorized Institution. To redeem shares of the Multi-Asset Fund, you should contact your Authorized Institution and follow its procedures, including deadlines for receipt by the Authorized Institution of your share redemption instructions. Your Authorized Institution may charge a fee for its services, in addition to the fees charged by the Fund. CNI CHARTER FUNDS | 37 TAX INFORMATION The Multi-Asset Fund intends to make distributions that may be taxed as ordinary income or capital gains. PAYMENTS TO BROKER-DEALERS AND OTHER FINANCIAL INTERMEDIARIES If you purchase the Multi-Asset Fund through a broker-dealer or other financial intermediary (such as a bank), the Fund and its related companies may pay the intermediary for the sale of Fund shares and related services. These payments may create a conflict of interest by influencing the broker-dealer or other intermediary and your salesperson to recommend the Fund over another investment. Ask your salesperson or visit your financial intermediary’s web site for more information. CNI CHARTER FUNDS | 38 U.S. Core Equity Fund INVESTMENT GOAL The U.S. Core Equity Fund seeks to provide long-term capital appreciation. FEES AND EXPENSES OF THE FUND The table below describes the fees and expenses you may pay if you buy and hold shares of the U.S. Core Equity Fund. Annual Fund Operating Expenses (expenses that you pay each year as a percentage of the value of your investment) Institutional Class Servicing Class Class N Management Fees 0.40% 0.40% 0.40% Distribution (12b-1) Fee None None 0.25% Other Expenses(1) Shareholder Servicing Fee None 0.25% 0.25% Other Fund Expenses 0.15% 0.15% 0.15% Total Other Expenses 0.15% 0.40% 0.40% Total Annual Fund Operating Expenses 0.55% 0.80% 1.05% “Other Expenses” are based on estimated amounts for the current fiscal year. EXAMPLE This example is intended to help you compare the cost of investing in the U.S. Core Equity Fund with the cost of investing in other mutual funds. The Example assumes that you invest $10,000 in the U.S. Core Equity Fund for the time periods indicated and then redeem all of your shares at the end of those periods. The example also assumes that your investment has a 5% return each year and that the Fund’s operating expenses remain the same. Although your actual costs may be higher or lower, based on these assumptions your costs would be: 1 Year 3 Years Institutional Class Servicing Class Class N PORTFOLIO TURNOVER The U.S. Core Equity Fund pays transaction costs, such as commissions, when it buys and sells securities (or “turns over” its portfolio). A higher portfolio turnover rate may indicate higher transaction costs and may result in higher taxes when Fund shares are held in a taxable account. These costs, which are not reflected in annual fund operating expenses or in the example, affect the Fund’s performance. CNI CHARTER FUNDS | 39 PRINCIPAL INVESTMENT STRATEGIES At least 80% of the U.S. Core Equity Fund’s net assets (including borrowings for investment purposes) consists of common stock of large and middle capitalization corporations domiciled in the United States. For this purpose, City National Asset Management, Inc. (“CNAM”), the Fund’s investment adviser, considers a large capitalization corporation and a middle capitalization corporation to be a corporation with a market capitalization satisfying Standard & Poor’s eligibility criteria, at the time of investment, for inclusion in the S&P 500 Index (currently $4 billion or greater) and the S&P Midcap 400 Index (currently $1 billion to $4.4 billion), respectively. CNAM uses a multifactor investment approach employing a combination of macroeconomic, quantitative and fundamental analyses to select companies with share price growth potential that may not be recognized by the market at large. Macroeconomic analysis evaluates investment themes, geopolitical events, monetary and fiscal policy and global economic trends. Quantitative analysis seeks to measure the value of securities by using mathematical and statistical modeling and research. Fundamental analysis of a security involves measuring its intrinsic value by examining related economic, financial and other factors, such as the overall economy and industry conditions, and the financial condition and management of the issuer. In selecting securities for the Fund, CNAM utilizes proprietary industry and stock selection models to determine which industries and companies it believes are likely to provide superior risk adjusted returns. CNAM also employs a proprietary company analysis framework to evaluate individual securities by examining fundamental data such as management quality, revenue and earnings growth, profitability, market share, cash flow and balance sheet strength. CNAM seeks to manage the portfolio’s risk characteristics to be similar to those of the S&P 500 Index. CNAM constructs the portfolio to closely resemble the S&P 500 Index with respect to factors such as market capitalization, earnings per share growth rates, return on equity, price to earnings, price to book and other commonly recognized portfolio characteristics. CNAM may determine to sell a security under several circumstances, including but not limited to when its target value is realized, the company’s earnings deteriorate, or more attractive investment alternatives are identified. PRINCIPAL RISKS OF INVESTING IN THE FUND As with any mutual fund, there are risks to investing. Neither the U.S. Core Equity Fund nor CNAM can guarantee that the Fund will meet its investment goal. The Fund will expose you to risks that could cause you to lose money. Here are the principal risks to consider: Market Risk of Equity Securities – By investing in common stocks, the Fund may expose you to a sudden decline in the share price of a particular portfolio holding or to an overall decline in the stock market. In addition, the Fund’s principal market segment may underperform other segments or the market as a whole. The market may also undervalue the stocks held by the Fund. Additionally, a rise in interest rates may result in a decline in the equity market. The value of your investment in the Fund will fluctuate daily based on movements in the stock market and the activities of individual companies in the Fund’s portfolio. Investment Style – CNAM primarily uses a core equity style to select investments for the Fund and will often choose equities that it considers to be “growth at a reasonable price” (GARP). These styles may fall out of favor, may underperform other styles and may cause volatility in the Fund’s share price. Management – The Fund’s performance depends on the portfolio managers’ skill in making appropriate investments. As a result, the Fund may underperform the equity market or similar funds. Medium Capitalization (Mid-Cap) Companies – Investments in mid-cap companies may involve greater risks than investments in larger, more established companies, such as limited product lines, markets and financial or managerial resources. In addition, the securities of mid-cap companies may have greater price volatility and less liquidity than the securities of larger capitalized companies. Defensive Investments – During unusual economic or market conditions, or for temporary defensive or liquidity purposes, the Fund may invest up to 100% of its assets in cash or cash equivalents that would not ordinarily be consistent with the Fund’s investment goals. PERFORMANCE The Fund is new and it does not have a full calendar year performance record to compare against other mutual funds or broad measures of securities market performance such as indices. Performance information will be available after the Fund has been in operation for one calendar year. CNI CHARTER FUNDS | 40 INVESTMENT MANAGER City National Asset Management, Inc. PORTFOLIO MANAGERS Otis “Tres” Heald and Thomas A. Galvin have served as portfolio managers for the U.S. Core Equity Fund since its inception in November 2012. PURCHASE AND SALE OF FUND SHARES The minimum initial investment for Institutional Class shares is $1,000,000. There is no minimum for subsequent investments in Institutional Class shares. The Fund reserves the right to change the minimum amount required to open an account without prior notice. The Fund may accept investments of smaller amounts at its discretion. There are no minimum purchase or minimum shareholder account balance requirements for Servicing Class or Class N shares; however, you will have to comply with the purchase and account balance minimums of your approved broker-dealer or other financial institution (each, an “Authorized Institution”). The Fund may require each Authorized Institution to meet certain aggregate investment levels before it may open an account with the Fund on behalf of its customers. Contact your Authorized Institution for more information . The shares of the U.S. Core Equity Fund are redeemable. You may redeem your shares only through your Authorized Institution. To redeem shares of the Fund, you should contact your Authorized Institution and follow its procedures, including deadlines for receipt by the Authorized Institution of your share redemption instructions. Your Authorized Institution may charge a fee for its services, in addition to the fees charged by the Fund. TAX INFORMATION The U.S. Core Equity Fund intends to make distributions that may be taxed as ordinary income or capital gains. PAYMENTS TO BROKER-DEALERS AND OTHER FINANCIAL INTERMEDIARIES If you purchase the U.S. Core Equity Fund through a broker-dealer or other financial intermediary (such as a bank), the Fund and its related companies may pay the intermediary for the sale of Fund shares and related services. These payments may create a conflict of interest by influencing the broker-dealer or other intermediary and your salesperson to recommend the Fund over another investment. Ask your salesperson or visit your financial intermediary’s web site for more information. CNI CHARTER FUNDS | 41 Diversified Equity Fund INVESTMENT GOAL The Diversified Equity Fund seeks to provide long-term capital growth. FEES AND EXPENSES OF THE FUND The table below describes the fees and expenses you may pay if you buy and hold shares of the Diversified Equity Fund. Annual Fund Operating Expenses (expenses that you pay each year as a percentage of the value of your investment) Institutional Class Class N Management Fees 0.75% 0.75% Distribution (12b-1) Fee None 0.25% Other Expenses Shareholder Servicing Fee None 0.25% Other Fund Expenses 0.15% 0.15% Total Other Expenses 0.15% 0.40% Total Annual Fund Operating Expenses 0.90% 1.40% Fee Waiver and/or Expense Reimbursement(1)(2) (0.10)% (0.35)% Total Annual Fund Operating Expenses After Fee Waiver and/or Expense Reimbursement 0.80% 1.05% (1) City National Asset Management, Inc., the Fund’s investment adviser (“CNAM”), has contractually agreed to waive a portion of the annual management fee payable to it by the Fund, thereby reducing the annual management fee from 0.75% of average daily net assets to 0.65% of average daily net assets. This limitation will be in effect until January 28, 2014. Prior to that date, this arrangement may be terminated without penalty by the Fund’s Board of Trustees upon 60 days’ written notice to CNAM, and it will terminate automatically upon the termination of the investment management agreement between CNAM and the Fund. Any management fees waived by CNAM pursuant to this arrangement will not be eligible for reimbursement by the Fund to CNAM. (2) CNAM has contractually agreed to limit shareholder servicing fees for Class N to 0.15% until January 28, 2014. Prior to that date, this arrangement may be terminated without penalty by the Fund’s Board of Trustees upon 60 days’ written notice to CNAM, and it will terminate automatically upon the termination of the shareholder services agreement between CNAM and the Fund. Any shareholder servicing fees waived by CNAM pursuant to this arrangement will not be eligible for reimbursement by the Fund to CNAM. EXAMPLE This Example is intended to help you compare the cost of investing in the Diversified Equity Fund with the cost of investing in other mutual funds. The Example assumes that you invest $10,000 in the Fund for the time periods indicated and then redeem all of your shares at the end of those periods. The Example also assumes that your investment has a 5% return each year and that the Fund’s operating expenses remain the same. Although your actual costs may be higher or lower, based on these assumptions your costs would be: 1 Year 3 Years 5 Years 10 Years Institutional Class Class N PORTFOLIO TURNOVER The Fund pays transaction costs, such as commissions, when it buys and sells securities (or “turns over” its portfolio). A higher portfolio turnover rate may indicate higher transaction costs and may result in higher taxes when Fund shares are held in a taxable account. These costs, which are not reflected in annual fund operating expenses or in the example, affect the Fund’s performance. During the most recent fiscal year, the Fund’s portfolio turnover rate was 112% of the average value of its portfolio. CNI CHARTER FUNDS | 42 PRINCIPAL INVESTMENT STRATEGIES At least 80% of the Diversified Equity Fund’s net assets (including borrowings for investment purposes) consists of common stocks of large-capitalization U.S. companies that are diversified among various industries and market sectors. For this purpose, City National Asset Management, Inc. (“CNAM”), the Fund’s investment adviser, considers a large-capitalization company to be a company with a market capitalization satisfying Standard & Poor’s eligibility criteria for inclusion in the S&P 500 Index at the time of investment (currently $4 billion or greater). This investment strategy may be changed at any time, with 60 days’ prior notice to shareholders. CNAM manages a portion of the Diversified Equity Fund's assets by replicating the holdings of the S&P 500 Index other than tobacco-related companies. The investments of the remainder of the Fund are typically equity securities that a sub-adviser believes have one or more of the following characteristics: a price significantly below the intrinsic value of the issuer; favorable prospects for earnings growth; above average return on equity and dividend yield; and sound overall financial condition of the issuer. Up to 20% of the Diversified Equity Fund’s net assets may consist of equity securities, consisting primarily of common stock, of mid-capitalization companies. For this purpose, CNAM considers a mid-capitalization company to be a company with a market capitalization satisfying Standard & Poor’s eligibility criteria for inclusion in the S&P Midcap 400 Index at the time of investment (currently $1 billion to $4.4 billion). In addition to investing in U.S. corporations, the Fund invests in U.S. dollar denominated sponsored American Depositary Receipts of foreign corporations. The Fund’s sub-advisers may buy and sell securities in the Fund’s portfolio frequently, which may result in higher transaction costs and produce capital gains and losses. The Fund’s sub-advisers may determine to sell a security when its target value is realized, its earnings deteriorate, changing circumstances affect the original reasons for the security’s purchase, or more attractive investment alternatives are identified. PRINCIPAL RISKS OF INVESTING IN THE FUND As with any mutual fund, there are risks to investing. None of the Diversified Equity Fund, CNAM and the Fund’s sub-advisers can guarantee that the Fund will meet its investment goal. The Fund will expose you to risks that could cause you to lose money. Here are the principal risks to consider: Market Risk of Equity Securities – By investing in common stocks, the Fund may expose you to a sudden decline in the share price of a particular portfolio holding or to an overall decline in the stock market. In addition, the Fund’s principal market segment may underperform other segments or the market as a whole. The value of your investment in the Fund will fluctuate daily and cyclically based on movements in the stock market and the activities of individual companies in the Fund’s portfolio. Index Risk –The performance of the portion of the Fund designed to replicate the S&P 500 Index may not exactly match the performance of the Index. That portion of the Fund does not hold every stock contained in the Index and the performance of the stocks held in the Fund may not track exactly the performance of the stocks held in the Index. Furthermore, unlike the Index, the Fund incurs management fees, 12b-1 fees (for Class N shares only), administrative expenses and transaction costs in trading stocks. Medium Capitalization (Mid-Cap) Companies – Investments in mid-cap companies may involve greater risks than investments in larger, more established companies, such as limited product lines, markets and financial or managerial resources. In addition, the securities of mid-cap companies may have greater price volatility and less liquidity than the securities of larger capitalized companies. Foreign Investments (American Depositary Receipts) – Foreign investments tend to be more volatile than domestic securities, and are subject to risks that are not typically associated with domestic securities (e.g., unfavorable political and economic developments and the possibility of seizure or nationalization of companies, or the imposition of withholding taxes on income). The Fund invests in U.S. dollar denominated American Depositary Receipts of foreign companies (“ADRs”) which are sponsored by the foreign issuers. ADRs are subject to the risks of changes in currency or exchange rates (which affect the value of the issuer even though ADRs are denominated in U.S. dollars) and the risks of investing in foreign securities. Sub-Adviser Allocation –The Fund’s performance is affected by CNAM’s decisions concerning how much of the Fund’s portfolio to allocate for management by each of the Fund’s sub-advisers. Management – The Fund’s performance depends on the portfolio managers’ skill in making appropriate investments. As a result, the Fund may underperform the equity market or similar funds. Defensive Investments – During unusual economic or market conditions, or for temporary defensive or liquidity purposes, the Fund may invest 100% of its assets in cash or cash equivalents that would not ordinarily be consistent with the Fund’s investment goals. CNI CHARTER FUNDS | 43 PERFORMANCE The bar chart and the performance table that follow illustrate some of the risks and volatility of an investment in the Diversified Equity Fund by showing changes in the Fund’s performance from year to year and by showing the Fund’s average annual total returns for 1, 5 and 10 years and since inception. Of course, the Fund’s past performance (before and after taxes) does not necessarily indicate how the Fund will perform in the future. Call 1-888-889-0799 or visit www.cnicharterfunds.com to obtain updated performance information. This bar chart shows the performance of the Diversified Equity Fund’s Institutional Class shares based on a calendar year. Best Quarter Worst Quarter 16.06% (23.29)% Q2 2003 Q4 2008 This table shows the average annual total returns of each class of the Diversified Equity Fund for the periods ended December 31, 2011. The table also shows how the Fund’s performance compares with the returns of an index comprised of companies similar to those held by the Fund. Average Annual Total Returns (for the periods ended December 31, 2011) One Year Five Years Ten Years Since Inception(1) Institutional Class Return Before Taxes (6.96)% (3.48)% 1.98% 8.55% Return After Taxes on Distributions (7.02)% (4.12)% 1.32% 6.04% Return After Taxes on Distributions and Sale of Fund Shares (4.44)% (2.98)% 1.62% 6.14% Class N Return Before Taxes (7.18)% (3.71)% 1.75% 8.45% S&P 500 Index (Reflects no deduction for fees, expenses or taxes) 2.11% (0.25)% 2.92% 9.09% Performance for “Since Inception” for all classes is shown for periods beginning October 20, 1988, which is the date the predecessor to the Diversified Equity Fund (the “Predecessor Fund”) commenced operations. On September 30, 2005, the Predecessor Fund reorganized into the Fund. The performance results for Institutional Class shares of the Fund before September 30, 2005, reflect the performance of the Predecessor Fund’s Class I shares. Class A shares of the Predecessor Fund, the predecessor to the Class N shares of the Fund, commenced operations on December 30, 2002. The performance results for Class N shares of the Fund for the period of December 30, 2002, to September 29, 2005, reflect the performance of the Predecessor Fund’s Class A shares. The performance results for Class N shares of the Fund for the period of October 20, 1988 to December 30, 2002, reflect the performance of the Predecessor Fund’s Class I shares. The performance of the Predecessor Fund’s Class I Shares has not been adjusted to reflect the higher Rule 12b-1 fees and expenses applicable to the Fund’s Class N shares. If it had, the performance of the Fund’s Class N shares would have been lower than that shown. For the index shown the measurement period used in computing the returns of the index for the “Since Inception” period begins on October 31, 1988. After-tax returns are calculated using the historical highest individual federal marginal income tax rates and do not reflect the impact of state and local taxes. Actual after-tax returns depend on an investor’s tax situation and may differ from those shown. The performance of Institutional Class shares does not reflect Class N shares’ Rule 12b-1 fees and expenses. After-tax returns for Class N shares will vary from the after-tax returns shown above for Institutional Class shares. The after-tax returns shown are not relevant to investors who hold their Fund shares through tax-deferred arrangements, such as 401(k) plans or individual retirement accounts. CNI CHARTER FUNDS | 44 INVESTMENT MANAGER City National Asset Management, Inc. SUB-ADVISERS SKBA Capital Management, LLC (“SKBA”) Turner Investments, L.P. (“Turner”) PORTFOLIO MANAGERS Thomas Kuo and Dimitry Kirtsman of CNAM have served as portfolio managers for the Fund since March 2012. Andrew W. Bischel, Kenneth J. Kaplan, Joshua J. Rothé and Shelley H. Mann of SKBA have served as portfolio managers for the Fund since 2006. Robert E. Turner of Turner has served as portfolio manager for the Fund since 2008. PURCHASE AND SALE OF FUND SHARES The minimum initial investment for Institutional Class shares is $1,000,000. The minimum initial investment for Class N shares is $1,000. There is no minimum for subsequent investments in Institutional Class shares or Class N shares. The Fund reserves the right to change the minimum amount required to open an account or to add to an existing account without prior notice. The Fund may accept investments of smaller amounts at its discretion; however, your financial institution or financial professional may establish higher minimum investment requirements than the Fund and may also independently charge you transaction fees and additional amounts in return for its services. The shares of the Diversified Equity Fund are redeemable. You may redeem some or all of your shares on any day the NYSE is open for regular session trading. The Fund ordinarily pays redemption proceeds on the business day following the redemption of your shares. However, the Fund reserves the right to make payment within seven days of the redemption request. Redemption proceeds will be sent to you via check to your address of record or will be wired to your bank via the instructions on your account. TAX INFORMATION The Diversified Equity Fund intends to make distributions that may be taxed as ordinary income or capital gains. PAYMENTS TO BROKER-DEALERS AND OTHER FINANCIAL INTERMEDIARIES If you purchase the Diversified Equity Fund through a broker-dealer or other financial intermediary (such as a bank), the Fund and its related companies may pay the intermediary for the sale of Fund shares and related services. These payments may create a conflict of interest by influencing the broker-dealer or other intermediary and your salesperson to recommend the Fund over another investment. Ask your salesperson or visit your financial intermediary’s web site for more information. CNI CHARTER FUNDS | 45 Large Cap Value Fund INVESTMENT GOAL The Large Cap Value Fund seeks to provide capital appreciation and moderate income consistent with current returns available in the marketplace by investing in large U.S. corporations and U.S. dollar denominated American Depositary Receipts of large foreign corporations which are undervalued. FEES AND EXPENSES OF THE FUND The table below describes the fees and expenses you may pay if you buy and hold shares of the Large Cap Value Fund. Annual Fund Operating Expenses (expenses that you pay each year as a percentage of the value of your investment) Institutional Class(1) Servicing Class(1) Class N Management Fees 0.62% 0.62% 0.62% Distribution (12b-1) Fee None None 0.25% Other Expenses Shareholder Servicing Fee None 0.25% 0.25% Other Fund Expenses 0.10%(2) 0.10% 0.10% Total Other Expenses 0.10% 0.35% 0.35% Total Annual Fund Operating Expenses 0.72% 0.97% 1.22% Institutional Class shares were initially offered in December, 2011. Effective December 19, 2011, the shares previously designated as Institutional Class shares were redesignated as Servicing Class shares. Other Fund Expenses for Institutional Class shares are estimated based on the amounts for Servicing Class shares and Class N shares. EXAMPLE This Example is intended to help you compare the cost of investing in the Large Cap Value Fund with the cost of investing in other mutual funds. The Example assumes that you invest $10,000 in the Large Cap Value Fund for the time periods indicated and then redeem all of your shares at the end of those periods. The Example also assumes that your investment has a 5% return each year and that the Fund’s operating expenses remain the same. Although your actual costs may be higher or lower, based on these assumptions your costs would be: 1 Year 3 Years 5 Years 10 Years Institutional Class Servicing Class Class N PORTFOLIO TURNOVER The Large Cap Value Fund pays transaction costs, such as commissions, when it buys and sells securities (or “turns over” its portfolio). A higher portfolio turnover rate may indicate higher transaction costs and may result in higher taxes when Fund shares are held in a taxable account. These costs, which are not reflected in annual fund operating expenses or in the example, affect the Fund’s performance. During the most recent fiscal year, the Fund’s portfolio turnover rate was 43% of the average value of its portfolio. CNI CHARTER FUNDS | 46 PRINCIPAL INVESTMENT STRATEGIES At least 80% of the Large Cap Value Fund’s net assets (including borrowings for investment purposes) consists of common stock of large U.S. corporations and U.S. dollar denominated American Depositary Receipts of large foreign corporations which are undervalued. For this purpose, City National Asset Management, Inc. (“CNAM”), the Fund’s investment adviser, considers a large corporation to be a company with a market capitalization similar to the market capitalizations of the companies in the S&P 500 Value Index at the time of investment (currently $1 billion to $369 billion). CNAM uses a combination of quantitative and fundamental analysis to select companies with share price growth potential that may not be recognized by the market at large. Quantitative analysis seeks to measure the value of securities by using mathematical and statistical modeling and research. Fundamental analysis of a security involves measuring its intrinsic value by examining related economic, financial and other factors, such as the overall economy and industry conditions, and the financial condition and management of the issuer. Although the Fund is not an index fund, CNAM seeks to manage the portfolio’s overall risk characteristics to be similar to those of the S&P 500 Value Index. CNAM may determine to sell a security when its target value is realized, its earnings deteriorate, changing circumstances affect the original reasons for the security’s purchase, or more attractive investment alternatives are identified. PRINCIPAL RISKS OF INVESTING IN THE FUND As with any mutual fund, there are risks to investing. Neither the Large Cap Value Fund nor CNAM can guarantee that the Fund will meet its investment goal. The Fund will expose you to risks that could cause you to lose money. Here are the principal risks to consider: Market Risk of Equity Securities – By investing in common stocks, the Fund may expose you to a sudden decline in the share price of a particular portfolio holding or to an overall decline in the stock market. In addition, the Fund’s principal market segment may underperform other segments or the market as a whole. The value of your investment in the Fund will fluctuate daily and cyclically based on movements in the stock market and the activities of individual companies in the Fund’s portfolio. Investment Style – CNAM primarily uses a value style to select investments for the Fund. This style may fall out of favor, may underperform other styles and may increase the volatility of the Fund’s share price. Management – The Fund’s performance depends on the portfolio managers’ skill in making appropriate investments. As a result, the Fund may underperform the equity market or similar funds. Foreign Investments (American Depositary Receipts) – Foreign investments tend to be more volatile than domestic securities, and are subject to risks that are not typically associated with domestic securities (e.g., unfavorable political and economic developments and the possibility of seizure or nationalization of companies, or the imposition of withholding taxes on income). The Fund invests in U.S. dollar denominated American Depositary Receipts of foreign companies (“ADRs”) which are sponsored by the foreign issuers. ADRs are subject to the risks of changes in currency or exchange rates (which affect the value of the issuer even though ADRs are denominated in U.S. dollars) and the risks of investing in foreign securities. Defensive Investments – During unusual economic or market conditions, or for temporary defensive or liquidity purposes, the Fund may invest 100% of its assets in cash or cash equivalents that would not ordinarily be consistent with the Fund’s investment goals. PERFORMANCE The bar chart and the performance table that follow illustrate some of the risks and volatility of an investment in the Large Cap Value Fund by showing changes in the Fund’s performance from year to year and by showing the Fund’s average annual total returns for 1, 5 and 10 years. Of course, the Fund’s past performance (before and after taxes) does not necessarily indicate how the Fund will perform in the future. Call 1-888-889-0799 or visit www.cnicharterfunds.com to obtain updated performance information. This bar chart shows the performance of the Large Cap Value Fund’s Servicing Class (formerly designated as Institutional Class) shares based on a calendar year. Best Quarter Worst Quarter 18.81% (20.90)% Q2 2003 Q4 2008 CNI CHARTER FUNDS | 47 This table shows the average annual total returns of each class of the Large Cap Value Fund for the periods ended December 31, 2011. The table also shows how the Fund’s performance compares with the returns of an index comprised of companies similar to those held by the Fund. Average Annual Total Returns (for the periods ended December 31, 2011) One Year Five Years Ten Years Inception Date Servicing Class 1/14/2000 Return Before Taxes (1.78)% (2.61)% 3.19% Return After Taxes on Distributions (1.99)% (3.22)% 2.46% Return After Taxes on Distributions and Sale of Fund Shares (0.87)% (2.43)% 2.50% Class N 4/13/2000 Return Before Taxes (2.04)% (2.89)% 2.91% S&P 500 Value Index (Reflects no deduction for fees, expenses or taxes) (0.48)% (2.96)% 3.52% After-tax returns are calculated using the historical highest individual federal marginal income tax rates and do not reflect the impact of state and local taxes. Actual after-tax returns depend on an investor’s tax situation and may differ from those shown. The performance of Servicing Class shares does not reflect Class N shares’ Rule 12b-1 fees and expenses. After-tax returns for Class N shares and Institutional Class shares will vary from the after-tax returns shown above for Servicing Class shares. The after-tax returns shown are not relevant to investors who hold their Fund shares through tax-deferred arrangements, such as 401(k) plans or individual retirement accounts. INVESTMENT MANAGER City National Asset Management, Inc. PORTFOLIO MANAGERS Steve Decker and Max Sasso have served as portfolio managers for the Large Cap Value Fund since June 2010. PURCHASE AND SALE OF FUND SHARES The minimum initial investment for Institutional Class shares is $1,000,000. There is no minimum for subsequent investments in Institutional Class shares. The Fund reserves the right to change the minimum amount required to open an account without prior notice. The Fund may accept investments of smaller amounts at its discretion. There are no minimum purchase or minimum shareholder account balance requirements for Servicing Class or Class N shares; however, you will have to comply with the purchase and account balance minimums of your approved broker-dealer or other financial institution (each, an “Authorized Institution”). The Fund may require each Authorized Institution to meet certain aggregate investment levels before it may open an account with the Fund on behalf of its customers. Contact your Authorized Institution for more information. The shares of the Large Cap Value Fund are redeemable. You may redeem your shares only through your Authorized Institution. To redeem shares of the Fund, you should contact your Authorized Institution and follow its procedures, including deadlines for receipt by the Authorized Institution of your share redemption instructions. Your Authorized Institution may charge a fee for its services, in addition to the fees charged by the Fund. TAX INFORMATION The Large Cap Value Fund intends to make distributions that may be taxed as ordinary income or capital gains. PAYMENTS TO BROKER-DEALERS AND OTHER FINANCIAL INTERMEDIARIES If you purchase the Large Cap Value Fund through a broker-dealer or other financial intermediary (such as a bank), the Fund and its related companies may pay the intermediary for the sale of Fund shares and related services. These payments may create a conflict of interest by influencing the broker-dealer or other intermediary and your salesperson to recommend the Fund over another investment. Ask your salesperson or visit your financial intermediary’s web site for more information. CNI CHARTER FUNDS | 48 Large Cap Growth Fund INVESTMENT GOAL The Large Cap Growth Fund seeks to provide capital appreciation by investing in large U.S. corporations and U.S. dollar denominated American Depositary Receipts of large foreign corporations with the potential for growth. FEES AND EXPENSES OF THE FUND The table below describes the fees and expenses you may pay if you buy and hold shares of the Large Cap Growth Fund. Annual Fund Operating Expenses (expenses that you pay each year as a percentage of the value of your investment) Servicing Class(1) Class N Management Fees 0.65% 0.65% Distribution (12b-1) Fee None 0.25% Other Expenses Shareholder Servicing Fee 0.25% 0.25% Other Fund Expenses 0.10% 0.10% Total Other Expenses 0.35% 0.35% Total Annual Fund Operating Expenses 1.00% 1.25% Effective December 19, 2011, the shares previously designated as Institutional Class shares were redesignated as Servicing Class shares. EXAMPLE This Example is intended to help you compare the cost of investing in the Large Cap Growth Fund with the cost of investing in other mutual funds. The Example assumes that you invest $10,000 in the Large Cap Growth Fund for the time periods indicated and then redeem all of your shares at the end of those periods. The Example also assumes that your investment has a 5% return each year and that the Fund’s operating expenses remain the same. Although your actual costs may be higher or lower, based on these assumptions your costs would be: 1 Year 3 Years 5 Years 10 Years Servicing Class Class N PORTFOLIO TURNOVER The Large Cap Growth Fund pays transaction costs, such as commissions, when it buys and sells securities (or “turns over” its portfolio). A higher portfolio turnover rate may indicate higher transaction costs and may result in higher taxes when Fund shares are held in a taxable account. These costs, which are not reflected in annual fund operating expenses or in the example, affect the Fund’s performance. During the most recent fiscal year, the Fund’s portfolio turnover rate was 82% of the average value of its portfolio. CNI CHARTER FUNDS | 49 PRINCIPAL INVESTMENT STRATEGIES At least 80% of the Large Cap Growth Fund’s net assets (including borrowings for investment purposes) consists of common stock of large U.S. corporations and U.S. dollar denominated American Depositary Receipts of large foreign corporations. For this purpose, City National Asset Management, Inc. (“CNAM”), the Fund’s investment adviser, considers a large corporation to be a company with a market capitalization similar to the market capitalizations of the companies in the S&P 500 Growth Index at the time of investment (currently $1 billion to $296 billion). CNAM uses a combination of quantitative and fundamental analysis to select companies with share price growth potential that may not be recognized by the market at large. Quantitative analysis seeks to measure the value of securities by using mathematical and statistical modeling and research. Fundamental analysis of a security involves measuring its intrinsic value by examining related economic, financial and other factors, such as the overall economy and industry conditions, and the financial condition and management of the issuer. Although the Fund is not an index fund, CNAM seeks to manage the portfolio’s overall risk characteristics to be similar to those of the S&P 500 Growth Index. CNAM may determine to sell a security when its target value is realized, its earnings deteriorate, changing circumstances affect the original reasons for the security’s purchase, or more attractive investment alternatives are identified. PRINCIPAL RISKS OF INVESTING IN THE FUND As with any mutual fund, there are risks to investing. Neither the Large Cap Growth Fund nor CNAM can guarantee that the Fund will meet its investment goal. The Fund will expose you to risks that could cause you to lose money. Here are the principal risks to consider: Market Risk of Equity Securities – By investing in common stocks, the Fund may expose you to a sudden decline in the share price of a particular portfolio holding or to an overall decline in the stock market. In addition, the Fund’s principal market segment may underperform other segments or the market as a whole. The value of your investment in the Fund will fluctuate daily and cyclically based on movements in the stock market and the activities of individual companies in the Fund’s portfolio. Investment Style – CNAM primarily uses a growth style to select investments for the Fund. This style may fall out of favor, may underperform other styles and may increase the volatility of the Fund’s share price. Management – The Fund’s performance depends on the portfolio managers’ skill in making appropriate investments. As a result, the Fund may underperform the equity market or similar funds. Foreign Investments (American Depositary Receipts) – Foreign investments tend to be more volatile than domestic securities, and are subject to risks that are not typically associated with domestic securities (e.g., unfavorable political and economic developments and the possibility of seizure or nationalization of companies, or the imposition of withholding taxes on income). The Fund invests in U.S. dollar denominated American Depositary Receipts of foreign companies (“ADRs”) which are sponsored by the foreign issuers. ADRs are subject to the risks of changes in currency or exchange rates (which affect the value of the issuer even though ADRs are denominated in U.S. dollars) and the risks of investing in foreign securities. Defensive Investments – During unusual economic or market conditions, or for temporary defensive or liquidity purposes, the Fund may invest 100% of its assets in cash or cash equivalents that would not ordinarily be consistent with the Fund’s investment goals. PERFORMANCE The bar chart and the performance table that follow illustrate some of the risks and volatility of an investment in the Large Cap Growth Fund by showing changes in the Fund’s performance from year to year and by showing the Fund’s average annual total returns for 1, 5 and 10 years. Of course, the Fund’s past performance (before and after taxes) does not necessarily indicate how the Fund will perform in the future. Call 1-888-889-0799 or visit www.cnicharterfunds.com to obtain updated performance information. This bar chart shows the performance of the Large Cap Growth Fund’s Servicing Class (formerly designated as Institutional Class) shares based on a calendar year. Best Quarter Worst Quarter 14.32% (20.40)% Q2 2009 Q4 2008 CNI CHARTER FUNDS | 50 This table shows the average annual total returns of each class of the Large Cap Growth Fund for the periods ended December 31, 2011. The table also shows how the Fund’s performance compares with the returns of an index comprised of companies similar to those held by the Fund. Average Annual Total Returns (for the periods ended December 31, 2011) One Year Five Years Ten Years Inception Date Servicing Class 1/14/2000 Return Before Taxes (4.02)% 0.60% 1.63% Return After Taxes on Distributions (4.05)% 0.44% 1.51% Return After Taxes on Distributions and Sale of Fund Shares (2.57)% 0.42% 1.32% Class N 3/28/2000 Return Before Taxes (4.26)% 0.34% 1.37% S&P 500 Growth Index (Reflects no deduction for fees, expenses or taxes) 4.65% 2.38% 2.13% After-tax returns are calculated using the historical highest individual federal marginal income tax rates and do not reflect the impact of state and local taxes. Actual after-tax returns depend on an investor’s tax situation and may differ from those shown. The performance of Servicing Class shares does not reflect Class N shares’ Rule 12b-1 fees and expenses. After-tax returns for Class N shares will vary from the after-tax returns shown above for Servicing Class shares. The after-tax returns shown are not relevant to investors who hold their Fund shares through tax-deferred arrangements, such as 401(k) plans or individual retirement accounts. INVESTMENT MANAGER City National Asset Management, Inc. PORTFOLIO MANAGERS Otis “Tres” Heald and Joseph Querriera have served as portfolio managers for the Large Cap Growth Fund since June 2010. PURCHASE AND SALE OF FUND SHARES The Large Cap Growth Fund has no minimum purchase or minimum shareholder account balance requirements; however, you will have to comply with the purchase and account balance minimums of your approved broker-dealer or other financial institution (each, an “Authorized Institution”). The Fund may require each Authorized Institution to meet certain aggregate investment levels before it may open an account with the Fund on behalf of its customers. Contact your Authorized Institution for more information. The shares of the Large Cap Growth Fund are redeemable. You may redeem your shares only through your Authorized Institution. To redeem shares of the Large Cap Growth Fund, you should contact your Authorized Institution and follow its procedures, including deadlines for receipt by the Authorized Institution of your share redemption instructions. Your Authorized Institution may charge a fee for its services, in addition to the fees charged by the Fund. TAX INFORMATION The Large Cap Growth Fund intends to make distributions that may be taxed as ordinary income or capital gains. PAYMENTS TO BROKER-DEALERS AND OTHER FINANCIAL INTERMEDIARIES If you purchase the Large Cap Growth Fund through a broker-dealer or other financial intermediary (such as a bank), the Fund and its related companies may pay the intermediary for the sale of Fund shares and related services. These payments may create a conflict of interest by influencing the broker-dealer or other intermediary and your salesperson to recommend the Fund over another investment. Ask your salesperson or visit your financial intermediary’s web site for more information. CNI CHARTER FUNDS | 51 Socially Responsible Equity Fund INVESTMENT GOAL The Socially Responsible Equity Fund seeks to provide long-term capital growth. FEES AND EXPENSES OF THE FUND The table below describes the fees and expenses you may pay if you buy and hold shares of the Socially Responsible Equity Fund. Annual Fund Operating Expenses (expenses that you pay each year as a percentage of the value of your investment) Institutional Class Class N Management Fees 0.75% 0.75% Distribution (12b-1) Fee None 0.25% Other Expenses Shareholder Servicing Fee None 0.25% Other Fund Expenses 0.14% 0.14% Total Other Expenses 0.14% 0.39% Total Annual Fund Operating Expenses 0.89% 1.39% Fee Waiver and/or Expense Reimbursement(1) (0.00)% (0.25)% Total Annual Fund Operating Expenses After Fee Waiver and/or Expense Reimbursement 0.89% 1.14% (1) City National Asset Management, Inc., the Fund’s investment adviser (“CNAM”), has contractually agreed to waive the shareholder servicing fees for Class N until January 28, 2014. Prior to that date, this arrangement may be terminated without penalty by the Fund’s Board of Trustees upon 60 days’ written notice to CNAM, and it will terminate automatically upon the termination of the shareholder services agreement between CNAM and the Fund. Any shareholder servicing fees waived by CNAM pursuant to this arrangement will not be eligible for reimbursement by the Fund to CNAM. EXAMPLE This Example is intended to help you compare the cost of investing in the Socially Responsible Equity Fund with the cost of investing in other mutual funds. The Example assumes that you invest $10,000 in the Fund for the time periods indicated and then redeem all of your shares at the end of those periods. The Example also assumes that your investment has a 5% return each year and that the Fund’s operating expenses remain the same. Although your actual costs may be higher or lower, based on these assumptions your costs would be: 1 Year 3 Years 5 Years 10 Years Institutional Class Class N PORTFOLIO TURNOVER The Fund pays transaction costs, such as commissions, when it buys and sells securities (or “turns over” its portfolio). A higher portfolio turnover rate may indicate higher transaction costs and may result in higher taxes when Fund shares are held in a taxable account. These costs, which are not reflected in annual fund operating expenses or in the example, affect the Fund’s performance. During the most recent fiscal year, the Fund’s portfolio turnover rate was 22% of the average value of its portfolio. CNI CHARTER FUNDS | 52 PRINCIPAL INVESTMENT STRATEGIES At least 80% of the Socially Responsible Equity Fund’s net assets (including borrowings for investment purposes) consists of common stocks of U.S. issuers that meet certain socially responsible criteria. This investment strategy may be changed at any time, with 60 days’ prior notice to shareholders. Up to 50% of the Fund’s net assets may consist of securities of mid-cap companies. For this purpose, City National Asset Management, Inc. (“CNAM”), the Fund’s investment adviser, considers a mid-capitalization company to be a company satisfying Standard & Poor’s eligibility criteria for inclusion in the S&P 400 Midcap Index at the time of investment (currently $1 billion to $4.4 billion). In addition to investing in U.S. corporations, the Fund invests in U.S. dollar denominated American Depositary Receipts of foreign corporations. In selecting investments, the Socially Responsible Equity Fund’s sub-adviser considers social criteria such as an issuer’s community relations, corporate governance, diversity, employee relations, environmental impact and sustainability, human rights record, and product safety. Using both quantitative and qualitative data, the Fund’s sub-adviser also evaluates an issuer’s involvement in specific revenue-generating activities to determine whether the issuer’s involvement was meaningful or simply incidental with respect to that activity. The Fund’s sub-adviser applies vigorous valuation screens that identify issuers for further in-depth fundamental analysis for potential inclusion in the Fund. The investment strategy typically emphasizes securities that the sub-adviser believes have one or more of the following characteristics: a price significantly below the intrinsic value of the issuer; below average price to sales and price to cash flow ratios; and sound overall financial condition of the issuer. The Fund’s sub-adviser may determine to sell a security when its target value is realized, its earnings deteriorate, changing circumstances affect the original reasons for the security’s purchase, or more attractive investment alternatives are identified. The Fund seeks to avoid investing in any issuer that derives more than 5% of its total revenue from tobacco, alcohol, gambling, abortion or weaponry (whether sold to consumers or the military), or that is involved in nuclear power. Because information on an issuer’s involvement in those activities may not be publicly available, it is possible that the Fund’s holdings may include an issuer that does not meet its criteria for socially responsible investing. When the sub-adviser discovers that a holding does not meet its criteria for socially responsible investing, it will divest that holding as soon as reasonably practicable. PRINCIPAL RISKS OF INVESTING IN THE FUND As with any mutual fund, there are risks to investing. None of the Socially Responsible Equity Fund, CNAM and the Fund’s sub-adviser can guarantee that the Fund will meet its investment goal. The Fund will expose you to risks that could cause you to lose money. Here are the principal risks to consider: Market Risk of Equity Securities – By investing in common stocks, the Fund may expose you to a sudden decline in the share price of a particular portfolio holding or to an overall decline in the stock market. In addition, the Fund’s principal market segment may underperform other segments or the market as a whole. The value of your investment in the Fund will fluctuate daily and cyclically based on movements in the stock market and the activities of individual companies in the Fund’s portfolio. Medium Capitalization (Mid-Cap) Companies – Investments in mid-cap companies may involve greater risks than investments in larger, more established companies, such as limited product lines, markets and financial or managerial resources. In addition, the securities of mid-cap companies may have greater price volatility and less liquidity than the securities of larger capitalized companies. Foreign Investments (American Depositary Receipts) – Foreign investments tend to be more volatile than domestic securities, and are subject to risks that are not typically associated with domestic securities (e.g., unfavorable political and economic developments and the possibility of seizure or nationalization of companies, or the imposition of withholding taxes on income). The Fund invests in U.S. dollar denominated American Depositary Receipts of foreign companies (“ADRs”) which are sponsored by the foreign issuers. ADRs are subject to the risks of changes in currency or exchange rates (which affect the value of the issuer even though ADRs are denominated in U.S. dollars) and the risks of investing in foreign securities. Investment Style – The Fund’s sub-adviser primarily uses a value style to select investments for the Fund. This style may fall out of favor, may underperform other styles and may increase the volatility of the Fund’s share price. Management – The Fund’s performance depends on the portfolio managers’ skill in making appropriate investments. As a result, the Fund may underperform the equity market or similar funds. Defensive Investments – During unusual economic or market conditions, or for temporary defensive or liquidity purposes, the Fund may invest 100% of its assets in cash or cash equivalents that would not ordinarily be consistent with the Fund’s investment goals. CNI CHARTER FUNDS | 53 PERFORMANCE The bar chart and the performance table that follow illustrate some of the risks and volatility of an investment in the Socially Responsible Equity Fund by showing changes in the Fund’s performance from year to year and by showing the Fund’s average annual total returns for 1 and 5 years and since inception. Of course, the Fund’s past performance (before and after taxes) does not necessarily indicate how the Fund will perform in the future. Call 1-888-889-0799 or visit www.cnicharterfunds.com to obtain updated performance information. This bar chart shows the performance of the Socially Responsible Equity Fund’s Institutional Class shares based on a calendar year. Best Quarter Worst Quarter 18.47% (25.79)% Q2 2009 Q4 2008 This table shows the average annual total returns of each class of the Socially Responsible Equity Fund for the periods ended December 31, 2011. The table also shows how the Fund’s performance compares with the returns of indexes comprised of companies similar to those held by the Fund. Average Annual Total Returns (for the periods ended December 31, 2011) One Year Five Years Since Inception(1) Institutional Class Return Before Taxes (1.55)% (2.02)% 1.24% Return After Taxes on Distributions (1.76)% (2.40)% 0.87% Return After Taxes on Distributions and Sale of Fund Shares (0.73)% (1.74)% 1.03% Class N Return Before Taxes (1.80)% (2.27)% 1.00% MSCI KLD 400 Social Index (Reflects no deduction for fees, expenses or taxes) 1.60% 0.21% 2.38% Russell 1000® Value Index (Reflects no deduction for fees, expenses or taxes) 0.39% (2.64)% 1.95% (1) Performance for “Since Inception” for all classes is shown for periods beginning January 3, 2005, which is the date the predecessor to the Socially Responsible Equity Fund (the “Predecessor Fund”) commenced operations. On September 30, 2005, the Predecessor Fund reorganized into the Fund. The performance results for Institutional Class shares of the Fund before September 30, 2005, reflect the performance of the Predecessor Fund’s Class I shares. Class A shares of the Predecessor Fund, the predecessor to the Class N shares of the Fund, commenced operations on August 12, 2005. The performance results for Class N shares of the Fund for the period of August 12, 2005, to September 29, 2005, reflect the performance of the Predecessor Fund’s Class A shares. The performance results for Class N shares of the Fund for the period of January 3, 2005 to August 12, 2005, reflect the performance of the Predecessor Fund’s Class I shares. The performance of the Predecessor Fund’s Class I shares has not been adjusted to reflect the higher Rule 12b-1 fees and expenses applicable to the Fund’s Class N shares. If it had, the performance of the Fund’s Class N shares would have been lower than that shown. For the index shown the measurement period used in computing the returns of the index for the “Since Inception” period begins on December 31, 2004. After-tax returns are calculated using the historical highest individual federal marginal income tax rates and do not reflect the impact of state and local taxes. Actual after-tax returns depend on an investor’s tax situation and may differ from those shown. The performance of Institutional Class shares does not reflect Class N shares’ Rule 12b-1 fees and expenses. After-tax returns for Class N shares will vary from the after-tax returns shown above for Institutional Class shares. The after-tax returns shown are not relevant to investors who hold their Fund shares through tax-deferred arrangements, such as 401(k) plans or individual retirement accounts. CNI CHARTER FUNDS | 54 INVESTMENT MANAGER City National Asset Management, Inc. SUB-ADVISER SKBA Capital Management, LLC (“SKBA”) PORTFOLIO MANAGERS Andrew W. Bischel, Kenneth J. Kaplan, Joshua J. Rothé and Shelley H. Mann of SKBA have served as portfolio managers for the Fund (or the Predecessor Fund, as applicable) since 2004. PURCHASE AND SALE OF FUND SHARES The minimum initial investment for Institutional Class shares is $1,000,000. The minimum initial investment for Class N shares is $1,000. There is no minimum for subsequent investments in Institutional Class shares or Class N shares. The Fund reserves the right to change the minimum amount required to open an account or to add to an existing account without prior notice. The Fund may accept investments of smaller amounts at its discretion; however, your financial institution or financial professional may establish higher minimum investment requirements than the Fund and may also independently charge you transaction fees and additional amounts in return for its services. The shares of the Socially Responsible Equity Fund are redeemable. You may redeem some or all of your shares on any day the NYSE is open for regular session trading. The Fund ordinarily pays redemption proceeds on the business day following the redemption of your shares. However, the Fund reserves the right to make payment within seven days of the redemption request. Redemption proceeds will be sent to you via check to your address of record or will be wired to your bank via the instructions on your account. TAX INFORMATION The Socially Responsible Equity Fund intends to make distributions that may be taxed as ordinary income or capital gains. PAYMENTS TO BROKER-DEALERS AND OTHER FINANCIAL INTERMEDIARIES If you purchase the Socially Responsible Equity Fund through a broker-dealer or other financial intermediary (such as a bank), the Fund and its related companies may pay the intermediary for the sale of Fund shares and related services. These payments may create a conflict of interest by influencing the broker-dealer or other intermediary and your salesperson to recommend the Fund over another investment. Ask your salesperson or visit your financial intermediary’s web site for more information. CNI CHARTER FUNDS | 55 more about the funds For ease of reference, this Prospectus refers to certain sub-groups of the CNI Charter Funds as follows: • Money Market Funds – Government Money Fund, Prime Money Fund and California Money Fund • Bond Funds – Limited Maturity Fund, Government Bond Fund, Corporate Bond Fund, California Tax Exempt Bond Fund, Full Maturity Fund and High Yield Bond Fund • Equity Funds – U.S. Core Equity Fund, Diversified Equity Fund, Large Cap Value Fund, Large Cap Growth Fund and Socially Responsible Equity Fund • Funds – Money Market Funds, Bond Funds, Multi-Asset Fund and Equity Funds In addition, this Prospectus refers to City National Asset Management, Inc., the Funds’ investment adviser, as “CNAM”. The goal of each Fund can only be changed with shareholder approval. For all Funds other than the California Money Market Fund and the California Tax Exempt Bond Fund, any policy to invest at least 80% of a Fund’s net assets in specific types of investments may be changed by the Funds’ Board of Trustees upon at least 60 days’ notice to shareholders. If you wish to learn more about each Fund’s principal investments and other securities in which each Fund may invest, please review the SAI. More about the Money Market Funds MORE ABOUT THE PRINCIPAL INVESTMENT STRATEGIES MATURITY Each Money Market Fund invests in securities that, at the time of purchase, have remaining maturities of 397 days or less. Each Money Market Fund maintains a weighted average maturity of not more than 60 days in accordance with applicable regulations. In addition, each Money Market Fund must comply with rules with respect to the Fund’s weighted average life. If, after purchase, the maturity on a security is extended, CNAM or the Board of Trustees (if required by applicable regulations) will decide whether the security should be held or sold. LIQUIDITY Each Money Market Fund must follow strict rules with respect to the liquidity of its portfolio securities, including, as applicable, daily and weekly liquidity requirements. In addition, a Money Market Fund may not purchase illiquid securities if, as a result of the acquisition, more than 5% of the Fund’s total assets would be invested in illiquid securities. Illiquid securities are those that, as determined by CNAM, may not be disposed of in the ordinary course of business within seven days at approximately the value ascribed to them by the Fund. Securities that are deemed liquid at the time of purchase by a Fund may become illiquid following purchase. More about the Bond Funds CNAM periodically reviews the creditworthiness of issuers held by the Bond Funds. CNAM’s credit analysis process includes not only a review of the rating agencies’ assigned ratings but also a review of the specific factors central to those ratings assessments, as well as the factors that could cause a change in the assigned ratings. CNAM and the applicable sub-advisers consider duration, among other factors, in selecting fixed income securities for the Bond Funds. Duration is a weighted measure of the length of time required to receive the present value of future payments, both interest and principal, from a fixed income security. More about the Multi-Asset Fund MORE ABOUT THE PRINCIPAL INVESTMENT STRATEGIES The Multi-Asset Fund is a “fund of funds,” a term used to describe mutual funds that pursue their investment objectives by investing all or substantial portions of their assets in other mutual funds or other types of funds. The cost of investing in the Fund is generally higher than the cost of investing in a mutual fund that invests solely in individual stocks and bonds. By investing in the Fund, an investor indirectly bears fees and expenses charged by the underlying funds in addition to the Fund’s direct fees and expenses. In addition, the use of a fund of funds structure could affect the timing, amount and character of distributions to the Fund’s shareholders and may therefore increase the amount of taxes payable by shareholders. The underlying funds in which the Fund may invest include other funds in the CNI Charter Funds family (“affiliated” funds) as well as funds unaffiliated with CNI Charter Funds (“unaffiliated” funds). More about the Large Cap Value Fund and the Large Cap Growth Fund The Funds’ Board of Trustees decided to close the Large Cap Value Fund and the Large Cap Growth Fund on or about January 3, 2013. In connection with the closing of the Funds, the Board of Trustees has directed CNAM to liquidate the Funds’ portfolio holdings in an orderly manner and to invest the proceeds in money market and other short CNI CHARTER FUNDS | 56 term instruments. The Board of Trustees approved payment of the initial installment of the Funds’ annual capital gains distributions on November 21, 2012, to shareholders of record as of November 19, 2012, and a second capital gains distribution, if necessary, on December 28, 2012, to shareholders of record as of December 26, 2012. Shareholders of the Large Cap Value Fund and the Large Cap Growth Fund may redeem their shares at any time before the Funds close. Existing shareholders of either Fund may continue to exchange into the same Class of other series of the CNI Charter Funds family pursuant to procedures set forth in the Prospectus. The Funds anticipate that a substantial number of shareholders, many of whom are clients of City National Securities, Inc. or City National Bank or are participants in City National Bank retirement plans, will redeem their shares of the Funds before December 31, 2012. At the closing date the remaining assets of the Funds will be liquidated and paid to any shareholders who have not redeemed their Fund shares by that date. INFORMATION ABOUT AFFILIATED UNDERLYING FUNDS The Multi-Asset Fund intends to invest a portion of its assets in the Corporate Bond Fund, Government Bond Fund, and High Yield Bond Fund, each of which is managed by CNAM. Descriptions of each of these Funds’ principal investment strategies and principal investment risks are included in this Prospectus. Additional information about these Funds’ investments and related risks may be found in the SAI. INFORMATION ABOUT UNAFFILIATED UNDERLYING FUNDS The Multi-Asset Fund also intends to invest in unaffiliated exchange-traded funds and mutual funds which invest in various types of securities. Detailed descriptions of these funds’ principal investment strategies and principal investment risks may be found in the prospectuses for the respective unaffiliated underlying funds. INFORMATION ABOUT BONDS In selecting the Multi-Asset Fund’s investments in fixed income securities, CNAM considers, but does not impose requirements with respect to, duration. Duration is a weighted measure of the length of time required to receive the present value of future payments, both interest and principal, from a fixed income security. Under normal circumstances, the Fund’s investments in fixed income securities consist primarily of fixed rate bonds with maturities of ten years or less. Portfolio Holdings A description of the Funds’ policies and procedures with respect to the disclosure of portfolio holdings is available in the SAI. more about the funds’ risks PRINCIPAL RISKS OF THE FUNDS Here are the principal risks that apply to the Money Market Funds: No Guarantees (Money Market Funds) – An investment in a Money Market Fund is not a deposit in a bank and is not insured or guaranteed by the Federal Deposit Insurance Corporation, the Federal Reserve Board or any other government agency. Although each Money Market Fund seeks to preserve the value of your investment at an NAV of $1.00, it is possible to lose money by investing in a Money Market Fund. Additionally, you should be aware that a very small number of money market funds in other fund complexes have in the past “broken the buck,” which means that investors did not receive $1.00 per share for their investment in those funds, and any money market fund may do so in the future. You should be aware that CNAM and its affiliates are under no obligation to provide financial support to the Fund or take other measures to ensure that you receive $1.00 per share for your investment in the Fund. You should not invest in the Fund with the expectation that any such action will be taken. You should also be aware that CNAM and its affiliates have from time to time voluntarily waived, and as of the date of this Prospectus are continuing to waive, fees in order to support the Money Market Funds' yields, but are under no obligation to continue to do so, and may terminate any such waivers at any time. The Effect of Interest Rates (Money Market Funds) – A Money Market Fund’s yield is affected by short-term interest rate changes. When rates decline, a Money Market Fund’s yield will typically fall, but less quickly than prevailing market rates. When rates increase, a Money Market Fund’s yield will typically rise, but not as quickly as market rates. When interest rates are very low, the Fund’s expenses could absorb all or a significant portion of the Fund’s income, and, if the Fund’s expenses exceed the Fund’s income, the Fund may be unable to maintain its $1.00 share price. From time to time, CNAM and its affiliates may reimburse or otherwise reduce the Fund’s expenses or CNAM may waive a portion of its management fee in an effort to maintain a net asset value of $1.00 per share, for the purpose of avoiding a negative yield. Any such expense reimbursements, reductions or waivers are voluntary and temporary and may be terminated by CNAM or its affiliates at any time without notice. The recent adoption of more stringent regulations governing the management of money market funds could have a negative effect on the Fund’s yield. Under these new regulations, the Fund may be required to maintain greater liquidity based on characteristics and anticipated liquidity needs of its shareholders and the Fund may have a lower yield than money market funds with a different shareholder base. CNI CHARTER FUNDS | 57 Market Risk of Fixed Income Securities (Money Market Funds) – By investing in fixed income securities, a Fund may expose you to declines in a holding’s value. The prices of fixed income securities respond to economic developments, particularly interest rate changes, as well as to perceptions about the creditworthiness of individual issuers, including governments. Generally, fixed income securities decrease in value if interest rates rise and increase in value if interest rates fall, with lower rated securities more volatile than higher rated securities. Credit (Money Market Funds) – Each Money Market Fund invests exclusively in securities that are rated, when the Fund buys them, in the highest short-term rating category, or if unrated, are of comparable quality in CNAM’s opinion. However, it is possible that some issuers or other obligors will be unable to make the required payments on securities held by a Fund. Debt securities also go up or down in value based on the perceived creditworthiness of issuers or other obligors. If an obligor for a security held by a Fund fails to pay, otherwise defaults or is perceived to be less creditworthy, a security’s credit rating is downgraded (which could happen rapidly), or the credit quality or value of any underlying assets declines, the value of your investment in the Fund could decline significantly, particularly in certain market environments. If a Fund enters into a financial contract (such as a repurchase agreement or reverse repurchase agreement) the Fund will be subject to the credit risk presented by the counterparty. Upon the occurrence of certain triggering events or defaults on a security held by the Fund, or if the portfolio managers believe that an obligor of such a security may have difficulty meeting its obligations, the Fund may obtain a new or restructured security or underlying assets. In that case, the Fund may become the holder of securities or assets that it could not otherwise purchase or might not otherwise hold (for example, because they are of lower quality or are subordinated to other obligations of the issuer) at a time when those assets may be difficult to sell or can be sold only at a loss. In addition, the Fund may incur expenses to protect the Fund’s interest in securities experiencing these events. Any of these events may cause you to lose money. If, after purchase, the credit rating on a security is downgraded by one or more rating agencies or the credit quality deteriorates, CNAM or the Board of Trustees (where required by applicable regulations) will decide whether the security should be held or sold. Management (Money Market Funds) – A Fund’s performance depends on the adviser’s skill in making appropriate investments. As a result, a Fund may underperform similar funds or to the money market. Defensive Investments (Money Market Funds) – The securities in which each Fund invests, and the strategies described in this Prospectus, are those that a Fund uses under normal conditions. During unusual economic or market conditions, or for temporary defensive or liquidity purposes, a Fund may invest up to 100% of its assets in cash or cash equivalents that would not ordinarily be consistent with the Fund’s investment goals. No Fund is required or expected to take such a defensive posture. But if used, such a stance may help a Fund minimize or avoid losses during adverse market, economic or political conditions. Redemptions (Money Market Funds) – Each Fund may experience periods of heavy redemptions that could cause the Fund to liquidate its assets at inopportune times or at a loss or depressed value, particularly during periods of declining or illiquid markets. Redemption risk is greater to the extent that the Fund has investors with large shareholdings, short investment horizons, or unpredictable cash flow needs. In addition, redemption risk is heightened during periods of overall market turmoil. The redemption by one or more large shareholders of their holdings in the Fund could cause the remaining shareholders in the Fund to lose money. Further, if one decision maker has control of Fund shares owned by separate Fund shareholders, the decision maker may cause redemptions by those shareholders, which may further increase the Fund’s redemption risk. If the Fund is forced to liquidate its assets under unfavorable conditions or at inopportune times, the Fund’s ability to maintain a stable $1.00 share price may be affected. In addition, the Fund may suspend redemptions when permitted by applicable regulations. Government-Sponsored Entities (Prime Money Fund, Government Money Fund)– The Funds may invest in securities issued by government-sponsored entities consisting principally of Fannie Mae, FHLB, Freddie Mac and Ginnie Mae, which securities may not be guaranteed or insured by the U.S. Government and may only be supported by the credit of the issuing agency. Fannie Mae guarantees full and timely payment of all interest and principal of its pass-through securities, and Freddie Mac guarantees timely payment of interest and ultimate collection of principal of its pass-through securities, but such securities are not backed by the full faith and credit of the U.S. Government. Similarly, FHLB securities are not backed by the U.S. Government. The principal and interest on Ginnie Mae pass-through securities are guaranteed by Ginnie Mae and backed by the full faith and credit of the U.S. Government. To meet its obligations under a guarantee, Ginnie Mae is authorized to borrow from the U.S. Treasury with no limitations as to amount. Financial Services Firms (Prime Money Fund) – Financial services firms, like banks, depend upon being able to obtain funds at reasonable costs and upon liquidity in the capital and credit markets to finance lending and other operations. As a result, these firms generally are sensitive to changes in money market and general economic conditions. For instance, when a bank’s borrowers experience financial difficulties, their failure to repay the bank will adversely affect the bank’s financial situation. Financial services firms are highly regulated. Decisions by regulators may limit the loans banks make and the interest rates and fees they charge, and may reduce bank profitability. California Risk Factors (California Money Fund) – The Fund may be subject to greater risks than other tax exempt funds that are diversified across issuers located in a number CNI CHARTER FUNDS | 58 of states. Because the Fund concentrates its investments in California municipal securities, it is vulnerable to economic, political or other developments that may lessen the ability of California municipal securities issuers to pay interest and principal on their securities. Poor statewide or local economic results, changing political sentiments, legislation, policy changes or voter-based initiatives at the state or local level, erosion of the tax base or revenues of the state or one or more local governments, seismic or other natural disasters, or other economic or credit problems affecting the state generally or a particular issuer may reduce tax revenues and increase the expenses of California municipal issuers, making it more difficult for them to meet their obligations. Actual or perceived erosion of the creditworthiness of California municipal issuers may also reduce the value of the holdings of the Fund. California municipal securities issuers rely on taxes and, to some extent, revenues from private projects financed by municipal securities to pay interest and principal on their securities. See the SAI for more detailed information regarding California developments. In addition, although one of the goals of the Fund is to provide income exempt from federal and California state personal income taxes, some of the Fund’s income may be subject to the AMT. Municipal Obligations (California Money Fund) – U.S. state and local governments rely on taxes and, to some extent, revenues from private projects financed by municipal securities to pay interest and principal on municipal debt. Poor statewide or local economic results, changing political sentiments, legislation, policy changes or voter-based initiatives at the state or local level, erosion of the tax base or revenues of the state or one or more local governments, natural disasters, or other economic or credit problems affecting the state generally or a particular issuer may reduce tax revenues and increase the expenses of municipal issuers, making it more difficult for them to meet their obligations. Here are the principal risks that apply to the Bond Funds: The Effect of Interest Rates (Bond Funds) – A Fund’s yield is affected by short-term interest rate changes. When rates decline, a Fund’s yield will typically fall, but less quickly than prevailing market rates. When rates increase, a Fund’s yield will typically rise, but not as quickly as market rates. Market Risk of Fixed Income Securities (Bond Funds) – By investing directly or indirectly in fixed income securities, a Fund may expose you to declines in a holding’s value. The prices of fixed income securities respond to economic developments, particularly interest rate changes, as well as to perceptions about the creditworthiness of individual issuers, including governments. Generally, fixed income securities decrease in value if interest rates rise and increase in value if interest rates fall, with lower rated securities more volatile than higher rated securities. The duration of these securities affects risk as well, with longer term securities generally more volatile than shorter term securities. Duration is a weighted measure of the length of time required to receive the present value of future payments, both interest and principal, from a fixed income security. Rating Agencies (Bond Funds) – A credit rating is not an absolute standard of quality, but rather a general indication that reflects only the view of the originating rating agency from which an explanation of the significance of its ratings may be obtained. There is no assurance that a particular rating will continue for any given period of time or that any such rating will not be revised downward or withdrawn entirely if, in the judgment of the agency establishing the rating, circumstances so warrant. A downward revision or withdrawal of such ratings may have an effect on the liquidity or market price of the securities in which the Fund invests. Management (Bond Funds) – A Fund’s performance depends on the portfolio managers’ skill in making appropriate investments. As a result, a Fund may underperform the fixed income market or similar funds. Defensive Investments (Bond Funds) – The securities in which each Fund invests, and the strategies described in this Prospectus, are those that a Fund uses under normal conditions. During unusual economic or market conditions, or for temporary defensive or liquidity purposes, a Fund may invest up to 100% of its assets in cash or cash equivalents that would not ordinarily be consistent with the Fund’s investment goals. No Fund is required or expected to take such a defensive posture. But if used, such a stance may help a Fund minimize or avoid losses during adverse market, economic or political conditions. Issuers (Bond Funds) – Changes in the financial condition of issuers may adversely affect the value of the Funds’ securities. Economic or political changes may also adversely affect the ability of issuers to repay principal and to make interest payments on securities owned by the Funds. Prepayments (Limited Maturity Fund, Government Bond Fund, Corporate Bond Fund, Full Maturity Fund, High Yield Bond Fund) – The principal of the loans underlying mortgage-backed or other pass-through securities may be prepaid at any time. As a general rule, prepayments increase during a period of falling interest rates and decrease during a period of rising interest rates. As a result of prepayments, in periods of declining interest rates a Fund may be required to reinvest its assets in securities with lower interest rates. In periods of increasing interest rates, prepayments generally may decline, with the effect that the securities subject to prepayment risk held by a Fund may exhibit price characteristics of longer-term debt securities. Extension (Limited Maturity Fund, Government Bond Fund, Corporate Bond Fund, Full Maturity Fund, High Yield Bond Fund) – Rising interest rates can cause the average maturity of a Fund’s holdings of mortgage-backed or other pass-through securities to lengthen unexpectedly due to a drop in prepayments. This would increase the sensitivity of a Fund to rising rates and the potential for price declines of portfolio securities. Extending the average life of a mortgage-backed or other pass-through security increases the risk of depreciation due to future increases in market interest rates. For these reasons, mortgage-backed and other pass-through securities may be less effective than other types of U.S. Government securities as a means of “locking in” interest rates. CNI CHARTER FUNDS | 59 Government-Sponsored Entities (Government Bond Fund, Limited Maturity Fund, Full Maturity Fund) – The Funds may invest in securities issued by government-sponsored entities consisting principally of Fannie Mae, FHLB, Freddie Mac and Ginnie Mae, which securities may not be guaranteed or insured by the U.S. Government and may only be supported by the credit of the issuing agency. Fannie Mae guarantees full and timely payment of all interest and principal of its pass-through securities, and Freddie Mac guarantees timely payment of interest and ultimate collection of principal of its pass-through securities, but such securities are not backed by the full faith and credit of the U.S. Government. Similarly, FHLB securities are not backed by the U.S. Government. The principal and interest on Ginnie Mae pass-through securities are guaranteed by Ginnie Mae and backed by the full faith and credit of the U.S. Government. To meet its obligations under a guarantee, Ginnie Mae is authorized to borrow from the U.S. Treasury with no limitations as to amount. Sub-Adviser Allocation (Full Maturity Fund) – CNAM divides the Fund’s investment portfolio into various “sleeves,” each of which is managed by one of the Fund’s sub-advisers. From time to time, CNAM adjusts the size of these sleeves based on a variety of factors, including the sleeves’ relative performance. Accordingly, the Fund’s performance is affected by CNAM’s decisions concerning how much of the Fund’s portfolio it allocates for management by each of the Fund’s sub-advisers. Municipal Obligations (California Tax Exempt Bond Fund) – U.S. state and local governments rely on taxes and, to some extent, revenues from private projects financed by municipal securities to pay interest and principal on municipal debt. Poor statewide or local economic results, changing political sentiments, legislation, policy changes or voter-based initiatives at the state or local level, erosion of the tax base or revenues of the state or one or more local governments, natural disasters, or other economic or credit problems affecting the state generally or a particular issuer may reduce tax revenues and increase the expenses of municipal issuers, making it more difficult for them to meet their obligations. For the California Tax Exempt Bond Fund, please also see the discussion entitled “California Risk Factors” below. Foreign Securities (Corporate Bond Fund, Full Maturity Fund, High Yield Bond Fund)– Foreign investments tend to be more volatile than domestic securities, and are subject to risks that are not typically associated with domestic securities. For example, such investments may be adversely affected by changes in currency rates and exchange control regulations, unfavorable political and economic developments and the possibility of seizure or nationalization of companies, or the imposition of withholding taxes on income. Foreign markets tend to be more volatile than the U.S. market due to economic and political instability and regulatory conditions in some countries. Emerging Market Securities (Corporate Bond Fund) – Many of the risks with respect to foreign investments are more pronounced for investments in developing or emerging market countries, such as Russia and many of the countries of Asia, Latin America, Eastern Europe, Africa, and the Middle East. The economies of many of these countries depend heavily upon international trade and are accordingly affected by protective trade barriers and economic conditions of their trading partners. The enactment by these trading partners of protectionist trade legislation could have a significant adverse effect upon the securities markets of such countries. Many of these countries may also have government exchange controls, currencies with no recognizable market value relative to the established currencies of western market economies, little or no experience in trading in securities, no financial reporting standards, a lack of a banking and securities infrastructure to handle such trading, and a legal tradition which does not recognize rights in private property. Interest Rate Risk of Preferred Stock (High Yield Bond Fund) – Preferred stock is issued with a fixed par value and pays dividends based on a percentage of that par value at a fixed rate. As with fixed income securities, which also make fixed payments, the market value of preferred stock is sensitive to changes in interest rates. Preferred stock generally decreases in value if interest rates rise and increases in value if interest rates fall. Convertible Securities (High Yield Bond Fund)– Convertible securities tend to be subordinate to other debt securities issued by the same issuer. Also, issuers of convertible securities are often not as strong financially as issuers with higher credit ratings. Convertible securities generally provide yields higher than the underlying stocks, but generally lower than comparable non-convertible securities. Because of this higher yield, convertible securities generally sell at a price above their “conversion value,” which is the current market value of the stock to be received upon conversion. The difference between this conversion value and the price of convertible securities will vary over time depending on changes in the value of the underlying common stocks and interest rates. High Yield (“Junk”) Bonds (High Yield Bond Fund) – High yield bonds involve greater risks of default or downgrade and are more volatile than investment grade securities. High yield bonds involve a greater risk of price declines than investment grade securities due to actual or perceived changes in an issuer’s creditworthiness. In addition, issuers of high yield bonds may be more susceptible than other issuers to economic downturns, which may result in a weakened capacity of the issuer to make principal or interest payments. High yield bonds are subject to a greater risk that the issuer may not be able to pay interest or dividends and ultimately to repay principal upon maturity. Discontinuation of these payments could have a substantial adverse effect on the market value of the security. The High Yield Bond Fund may invest in unrated securities. Lower rated securities and unrated equivalents are speculative and may be in default. Market Risk of Equity Securities (High Yield Bond Fund) – By investing directly or indirectly in stocks, the Fund may expose you to a sudden decline in a holding’s share price or an overall decline in the stock market. In addition, the value of your investment will fluctuate on a day-to-day and a cyclical basis with movements in the stock market, as well CNI CHARTER FUNDS | 60 as in response to the activities of individual companies. In addition, individual companies may report poor results or be negatively affected by industry and/or economic trends and developments. The rights of a company’s common stockholders to dividends and upon liquidation of the company generally are subordinated (i.e., rank lower) to those of preferred stockholders, bondholders and other creditors of the issuer. The Fund is also subject to the risk that its principal equity market segment may underperform other equity market segments or the market as a whole. California Risk Factors (California Tax Exempt Bond Fund) – The Fund may be subject to greater risks than other tax exempt funds that are diversified across issuers located in a number of states. Because the Fund concentrates its investments in California municipal securities, it is vulnerable to economic, political or other developments that may lessen the ability of California municipal securities issuers to pay interest and principal on their securities. Poor statewide or local economic results, changing political sentiments, legislation, policy changes or voter-based initiatives at the state or local level, erosion of the tax base or revenues of the state or one or more local governments, seismic or other natural disasters, or other economic or credit problems affecting the state generally or a particular issuer may reduce tax revenues and increase the expenses of California municipal issuers, making it more difficult for them to meet their obligations. Actual or perceived erosion of the creditworthiness of California municipal issuers may also reduce the value of the holdings of the Fund. California municipal securities issuers rely on taxes and, to some extent, revenues from private projects financed by municipal securities to pay interest and principal on their securities. See the SAI for more detailed information regarding California developments. In addition, although one of the goals of the Fund is to provide income exempt from federal and California state personal income taxes, some of the Fund’s income may be subject to the AMT. Non-diversification (California Tax Exempt Bond Fund) – The Fund is non-diversified, which means that it may invest in the securities of relatively few issuers. As a result, the Fund may be more susceptible to a single adverse economic or regulatory occurrence affecting one or more of these issuers, and may experience increased volatility due to its investments in those securities. In addition, the Fund will be more susceptible to factors which adversely affect issuers of California obligations than a mutual fund which does not have as great a concentration in California municipal obligations. Here are the principal risks that apply to the Multi-Asset Fund: Allocation – Performance depends on the ability of the Fund’s investment manager to anticipate correctly the relative potential returns and risks of the asset classes in which the Fund directly or indirectly invests. For example, the Fund’s relative investment performance would suffer if only a small portion of its assets were allocated to stocks during a significant stock market advance, and its absolute investment performance would suffer if a major portion of its assets were allocated to stocks during a market decline. Management – The Fund’s performance depends on the portfolio managers’ skill in making appropriate investments. As a result, the Fund may underperform the fixed income or equity markets, as applicable, or similar funds. Market Risk of Equity Securities – By investing directly or indirectly in stocks, the Fund may expose you to a sudden decline in a holding’s share price or an overall decline in the stock market. In addition, as with any stock fund, the value of your investment will fluctuate on a day-to-day and a cyclical basis with movements in the stock market, as well as in response to the activities of individual companies. In addition, individual companies may report poor results or be negatively affected by industry and/or economic trends and developments. The rights of a company’s common stockholders to dividends and upon liquidation of the company generally are subordinated (i.e., rank lower) to those of preferred stockholders, bondholders and other creditors of the issuer. Market Risk of Fixed Income Securities – By investing directly or indirectly in fixed income securities, the Fund may expose you to declines in a holding’s value. The prices of fixed income securities respond to economic developments, particularly interest rate changes, as well as to perceptions about the creditworthiness of individual issuers, including governments. Generally, fixed income securities decrease in value if interest rates rise and increase in value if interest rates fall, with lower rated securities more volatile than higher rated securities. The duration of these securities affects risk as well, with longer term securities generally more volatile than shorter term securities. Duration is a weighted measure of the length of time required to receive the present value of future payments, both interest and principal, from a fixed income security. Rating Agencies – A credit rating is not an absolute standard of quality, but rather a general indication that reflects only the view of the originating rating agency from which an explanation of the significance of its ratings may be obtained. There is no assurance that a particular rating will continue for any given period of time or that any such rating will not be revised downward or withdrawn entirely if, in the judgment of the agency establishing the rating, circumstances so warrant. A downward revision or withdrawal of such ratings may have an effect on the liquidity or market price of the securities in which the Fund invests. Foreign Securities – Foreign investments tend to be more volatile than domestic securities, and are subject to risks that are not typically associated with domestic securities. For example, such investments may be adversely affected by changes in currency rates and exchange control regulations, unfavorable political and economic developments and the possibility of seizure or nationalization of companies, or the imposition of withholding taxes on income. Foreign markets tend to be more volatile than the U.S. market due to economic and political instability and regulatory conditions in some countries. CNI CHARTER FUNDS | 61 Defensive Investments – The securities in which the Fund invests, and the strategies described in this Prospectus, are those that the Fund uses under normal conditions. During unusual economic or market conditions, or for temporary defensive or liquidity purposes, the Fund may invest up to 100% of its assets in cash or cash equivalents that would not ordinarily be consistent with the Fund’s investment goals. The Fund is not required or expected to take such a defensive posture. But if used, such a stance may help the Fund minimize or avoid losses during adverse market, economic or political conditions. The Fund’s underlying funds may have similar policies. Underlying Funds – Because the Fund invests a significant portion of its assets in underlying funds, the risks associated with investing in the Fund are closely related to the risks associated with the securities and other investments held by the underlying funds. The ability of the Fund to achieve its investment goal depends in part upon the ability of the underlying funds to achieve their investment goals. There can be no assurance that the investment goal of any underlying fund will be achieved. Interest Rate Risk of Preferred Stock – Preferred stock is issued with a fixed par value and pays dividends based on a percentage of that par value at a fixed rate. As with fixed income securities, which also make fixed payments, the market value of preferred stock is sensitive to changes in interest rates. Preferred stock generally decreases in value if interest rates rise and increases in value if interest rates fall. High Yield (“Junk”) Bonds – High yield bonds involve greater risks of default or downgrade and are more volatile than investment grade securities. High yield bonds involve a greater risk of price declines than investment grade securities due to actual or perceived changes in an issuer’s creditworthiness. In addition, issuers of high yield bonds may be more susceptible than other issuers to economic downturns, which may result in a weakened capacity of the issuer to make principal or interest payments. High yield bonds are subject to a greater risk that the issuer may not be able to pay interest or dividends and ultimately to repay principal upon maturity. Discontinuation of these payments could have a substantial adverse effect on the market value of the security. There is no lower limit on the ratings of high yield securities that may be purchased or held by the Fund or an underlying fund. In addition, the Fund may invest directly or indirectly in unrated securities. Lower rated securities and unrated equivalents are speculative and may be in default. Municipal Obligations – U.S. state and local governments rely on taxes and, to some extent, revenues from private projects financed by municipal securities to pay interest and principal on municipal debt. Poor statewide or local economic results, changing political sentiments, legislation, policy changes or voter-based initiatives at the state or local level, erosion of the tax base or revenues of the state or one or more local governments, natural disasters, or other economic or credit problems affecting the state generally or a particular issuer may reduce tax revenues and increase the expenses of municipal issuers, making it more difficult for them to meet their obligations. Foreign government obligations are also subject to similar risks that the issuer of the obligations may be unable or unwilling to repay principal or interest when due. Emerging Market Securities – The Fund’s direct or indirect investments in foreign securities may include investments in emerging markets. Many of the risks with respect to foreign investments are more pronounced for investments in developing or emerging market countries, such as Russia and many of the countries of Asia, Latin America, Eastern Europe, Africa, and the Middle East. The economies of many of these countries depend heavily upon international trade and are accordingly affected by protective trade barriers and economic conditions of their trading partners. The enactment by these trading partners of protectionist trade legislation could have a significant adverse effect upon the securities markets of such countries. Many of these countries may also have government exchange controls, currencies with no recognizable market value relative to the established currencies of western market economies, little or no experience in trading in securities, no financial reporting standards, a lack of a banking and securities infrastructure to handle such trading, and a legal tradition which does not recognize rights in private property. Here are the principal risks that apply to the Equity Funds: Market Risk of Equity Securities (Equity Funds) – By investing directly or indirectly in stocks, a Fund may expose you to a sudden decline in a holding’s share price or an overall decline in the stock market. In addition, as with any stock fund, the value of your investment will fluctuate on a day-to-day and a cyclical basis with movements in the stock market, as well as in response to the activities of individual companies. In addition, individual companies may report poor results or be negatively affected by industry and/or economic trends and developments. The rights of a company’s common stockholders to dividends and upon liquidation of the company generally are subordinated (i.e., rank lower) to those of preferred stockholders, bondholders and other creditors of the issuer. Management (Equity Funds) – A Fund’s performance depends on the portfolio managers’ skill in making appropriate investments. As a result, a Fund may underperform the equity market or similar funds. Foreign Investments (American Depositary Receipts) (Large Cap Value Fund, Large Cap Growth Fund, Diversified Equity Fund and Socially Responsible Equity Fund) – Foreign investments tend to be more volatile than domestic securities, and are subject to risks that are not typically associated with domestic securities. For example, such investments may be adversely affected by unfavorable political and economic developments and the possibility of seizure or nationalization of companies, or the imposition of withholding taxes on income. Foreign markets tend to be more volatile than the U.S. market due to economic and political instability and regulatory conditions in some countries. The Funds invest in U.S. dollar denominated American Depositary Receipts of foreign companies (“ADRs”) which are sponsored by the foreign CNI CHARTER FUNDS | 62 issuers. ADRs are receipts typically issued by a U.S. bank or trust company evidencing its ownership of the underlying foreign securities, and are subject to the risks of changes in currency or exchange rates (which affect the value of the issuer even though ADRs are denominated in U.S. dollars) and the risks of investment in foreign securities. Defensive Investments (Equity Funds) – The securities in which each Fund invests, and the strategies described in this Prospectus, are those that a Fund uses under normal conditions. During unusual economic or market conditions, or for temporary defensive or liquidity purposes, a Fund may invest up to 100% of its assets in cash or cash equivalents that would not ordinarily be consistent with the Fund’s investment goals. No Fund is required or expected to take such a defensive posture. But if used, such a stance may help a Fund minimize or avoid losses during adverse market, economic or political conditions. Investment Style (U.S. Core Equity Fund, Large Cap Value Fund, Large Cap Growth Fund and Socially Responsible Equity Fund) – A core equity style is primarily used to select investments for the U.S. Core Equity Fund, a growth style is primarily used to select investments for the Large Cap Growth Fund and a value style is primarily used to select investments for the Large Cap Value Fund and Socially Responsible Equity Fund. These styles may fall out of favor, may underperform other styles and may increase the volatility of a Fund’s share price. Medium Capitalization (Mid-Cap) Companies (U.S. Core Equity Fund, Diversified Equity Fund, Socially Responsible Equity Fund) – The Funds invest from time to time in mid-cap companies. Investments in mid-cap companies may involve greater risks than investments in larger, more established companies, such as limited product lines, markets and financial or managerial resources. In addition, the securities of mid-cap companies may have few market makers, wider spreads between their quoted bid and asked prices, and lower trading volume, resulting in greater price volatility and less liquidity than the securities of larger capitalized companies. Sub-Adviser Allocation (Diversified Equity Fund) – CNAM divides the Fund’s investment portfolio into various “sleeves,” each of which is managed by one of the Fund’s sub-advisers. From time to time, CNAM adjusts the size of these sleeves based on a variety of factors, including the sleeves’ relative performance. Accordingly, the Fund’s performance is affected by CNAM’s decisions concerning how much of the Fund’s portfolio it allocates for management by each of the Fund’s sub-advisers. NON-PRINCIPAL INVESTMENT STRATEGIES AND RELATED RISKS OF THE FUNDS The following risks of the Funds referred to below are related to non-principal investment strategies of those Funds. These risks are in addition to the principal risks of the Funds discussed above. Sector Concentration (All Funds) – From time to time a Fund may invest a significant portion of its total assets in various industries in one or more sectors of the economy. To the extent a Fund’s assets are invested in a sector of the economy, the Fund will be subject to market and economic factors affecting companies in that sector. Portfolio Turnover (All Funds) – Each Fund will sell a security when its portfolio managers believe it is appropriate to do so, regardless of how long a Fund has owned that security. Buying and selling securities generally involves some expense to a Fund, such as commissions paid to brokers and other transaction costs. By selling a security, a Fund may realize taxable capital gains that it will subsequently distribute to shareholders. Generally speaking, the higher a Fund’s annual portfolio turnover, the greater its brokerage costs and the greater the likelihood that it will realize taxable capital gains. On the other hand, a Fund may from time to time realize commission costs in order to engage in tax minimization strategies if the result is a greater enhancement to the value of a Fund share than the transaction cost to achieve it. Increased brokerage costs may adversely affect a Fund’s performance. Also, unless you are a tax-exempt investor or you purchase shares through a tax-deferred account, the distribution of capital gains may affect your after-tax return. The Multi-Asset Fund’s underlying funds may have similar policies. Annual portfolio turnover of 100% or more is considered high. Municipal Obligations (Government Money Fund, Prime Money Fund) – U.S. state and local governments rely on taxes and, to some extent, revenues from private projects financed by municipal securities to pay interest and principal on municipal debt. Poor statewide or local economic results, changing political sentiments, legislation, policy changes or voter-based initiatives at the state or local level, erosion of the tax base or revenues of the state or one or more local governments, natural disasters, or other economic or credit problems affecting the state generally or a particular issuer may reduce tax revenues and increase the expenses of municipal issuers, making it more difficult for them to meet their obligations. Foreign government obligations are also subject to similar risks that the issuer of the obligations may be unable or unwilling to repay principal or interest when due. Tobacco-Free Investments (Limited Maturity Fund, Full Maturity Fund, U.S. Core Equity Fund, Diversified Equity Fund, Socially Responsible Equity Fund) – The Funds follow a guideline of restricting investment in securities of tobacco-related companies through the research of MSCI ESG Research. Commodities (Multi-Asset Fund) – The Fund may invest a portion of its assets in exchange-traded notes or exchange-traded funds that are linked to commodities or commodities indexes. The Fund’s direct or indirect exposure to the commodities markets may subject the Fund to greater volatility than investments in traditional securities. The value of commodity-linked instruments may be affected by changes in overall market movements, commodity index volatility, changes in interest rates, or risks affecting a particular industry CNI CHARTER FUNDS | 63 or commodity, such as drought, floods, weather, livestock disease, embargoes, tariffs and international economic, political and regulatory developments. Foreign Currencies (Multi-Asset Fund) – The Fund’s direct or indirect investments in securities denominated in foreign currencies are subject to currency risk, which means that the value of those securities can change significantly when foreign currencies strengthen or weaken relative to the U.S. Dollar. The Fund may invest in foreign currencies to hedge against the risks of variation in currency exchange rates relative to the U.S. Dollar. Such strategies, however, involve certain transaction costs and investment risks, including dependence upon the ability of CNAM to predict movements in exchange rates. Some countries in which the Fund may directly or indirectly invest may have fixed or managed currencies that are not freely convertible at market rates into the U.S. Dollar. Certain currencies may not be internationally traded. Many countries in which the Fund may invest have experienced substantial, and in some periods extremely high, rates of inflation for many years. Inflation and rapid fluctuation in inflation rates may have negative effects on certain economies and securities markets. Moreover, the economies of some countries may differ favorably or unfavorably from the U.S. economy in such respects as the rate of growth of gross domestic product, rate of inflation, capital reinvestment, resource self-sufficiency and balance of payments. Hedge Funds (Multi-Asset Fund) – The Fund may invest up to 10% of its net assets in private investment funds (“Hedge Funds”) managed by various investment managers (“Managers”) that use a variety of investment strategies, including investment in other Hedge Funds. By investing in Hedge Funds indirectly through the Fund, an investor indirectly bears a portion of the asset-based fees, incentive-based allocations and other expenses borne by the Fund as an investor in Hedge Funds, in addition to the operating expenses of the Fund. The incentive-based allocations assessed by Managers and borne directly by the Fund may create an incentive for Managers to make investments that are riskier or more speculative than those that might have been made in the absence of incentive-based allocations. Because the Managers value the Hedge Funds they manage, which directly affects the amount of incentive-based allocations they receive, Managers face a conflict of interest in performing such valuations. Various risks are associated with the securities and other instruments in which Hedge Funds may invest, their investment strategies and the specialized investment techniques they may use. Hedge Funds are not registered as investment companies under the Investment Company Act of 1940, as amended (the “Investment Company Act”). Therefore, the Fund, as an investor in Hedge Funds, does not have the benefit of the protections afforded by the Investment Company Act to investors in registered investment companies, such as mutual funds. To the extent the Fund invests in a Hedge Fund that allows its investors to effect withdrawals only at certain specified times, the Fund may not be able to withdraw its investment in such Hedge Fund promptly after it has made a decision to do so, which may result in a loss and adversely affect the Fund’s investment return. To the extent the Fund invests in a Hedge Fund that is permitted to distribute securities in kind to investors making withdrawals, upon the Fund’s withdrawal of all or a portion of its interest in such Hedge Fund the Multi-Asset Fund may receive securities that are illiquid or difficult to value. The Fund considers its investments in Hedge Funds to be illiquid. Inflation-Indexed Bonds (Multi-Asset Fund) – The Fund may invest in inflation-indexed bonds. Inflation-indexed bonds may react differently than other fixed income securities to changes in interest rates. Because interest rates on inflation-indexed bonds are adjusted for inflation, the values of these bonds are not materially affected by inflation expectations. Therefore, the values of inflation-indexed bonds are anticipated to change in response to changes in “real” interest rates, which represent nominal (stated) interest rates reduced by the expected impact of inflation. Generally, the value of an inflation-protected security falls when real interest rates rise and rises when real interest rates fall. Real Estate-Related Investments (Multi-Asset Fund) – Because the Fund may invest a portion of its assets directly or indirectly in securities of companies principally engaged in the real estate industry and other real estate related investments, the Fund’s performance may be linked to the performance of the real estate markets. Property values may fall due to increasing vacancies or declining rents resulting from economic, legal, cultural or technological developments. Investments in real estate companies may also subject the Fund to the risks associated with the direct ownership of real estate. Real estate companies are subject to legislative or regulatory changes, adverse market conditions and increased competition. The general performance of the real estate industry has historically been cyclical and particularly sensitive to economic downturns. Changes in prevailing real estate values and rental income, interest rates and changing demographics may affect the value of securities of issuers in the real estate industry. Repurchase Agreements (Multi-Asset Fund) – The Fund may invest in repurchase agreements. Repurchase agreements are agreements under which securities are acquired from a securities dealer or bank subject to resale on an agreed upon date and at an agreed upon price which includes principal and interest. Under all repurchase agreements entered into by the Fund, the Fund’s custodian or its agent must take possession of the underlying collateral. However, if the seller defaults, the Fund could realize a loss on the sale of the underlying security to the extent the proceeds of the sale are less than the resale price. In addition, even though the U.S. Bankruptcy Code provides protection for most repurchase agreements, if the seller should be involved in bankruptcy or insolvency proceedings, the Fund may incur delays and costs in selling the security and may suffer a loss of principal and interest if the Fund is treated as an unsecured creditor. The Fund may also invest in repurchase agreements collateralized by securities issued by foreign issuers, which are also subject to the risks associated with foreign securities discussed above under “Principal Risks of the Funds.” CNI CHARTER FUNDS | 64 management of the funds INVESTMENT MANAGER CNAM provides the Funds with investment management services. CNAM’s address is City National Center, 400 North Roxbury Drive, Beverly Hills, California 90210. CNAM is a wholly owned subsidiary of City National Bank (“CNB”), a federally chartered commercial bank founded in the early 1950s, with approximately $6.0 billion in assets under management as of December 31, 2011. CNB is itself a wholly owned subsidiary of City National Corporation, a New York Stock Exchange listed company. CNB has provided trust and fiduciary services, including investment management services, to individuals and businesses for over 50 years. CNB currently provides investment management services to individuals, pension and profit sharing plans, endowments and foundations. As of December 31, 2011, CNB and its affiliates had approximately $54.5 billion in assets under administration, which includes $31.3 billion in assets under management. Subject to the oversight of the Board of Trustees, CNAM has complete discretion as to the purchase and sale of investments for the Funds it directly manages, consistent with each such Fund’s investment objective, policies and restrictions. CNAM is responsible for the evaluation, selection and monitoring of the sub-advisers of the Full Maturity Fund, High Yield Bond Fund, Diversified Equity Fund and Socially Responsible Equity Fund (collectively, the “Sub-advised Funds”). CNAM selects sub-advisers based on a variety of factors, including investment style, performance record and the characteristics of each sub-adviser’s typical investments. The assets of the Full Maturity Fund and the Diversified Equity Fund are divided into various sleeves and CNAM is responsible for allocating the assets among the sub-advisers in accordance with their specific investment styles. The sub-advisers manage the Sub-advised Funds’ investments and are responsible for making all investment decisions and placing orders to purchase and sell securities for these Funds. Subject to the oversight of CNAM and the Board of Trustees, the sub-advisers have complete discretion as to the purchase and sale of investments for these Funds consistent with each Fund’s investment objective, policies and restrictions. CNAM received a fee from each Fund for its investment management services at the annual rates set forth in the table below for the fiscal year ended September 30, 2011. Each annual rate is stated as a percentage of the average annual net assets of the Fund. These fees reflect fee waivers or reimbursements of fees waived by CNAM in prior years. The sub-advisers are compensated out of the investment management fees paid to CNAM. Government Money Market Fund 0.05% Prime Money Market Fund 0.14% California Tax Exempt Money Market Fund 0.08% Limited Maturity Fund 0.50% Government Bond Fund 0.36% Corporate Bond Fund 0.40% California Tax Exempt Bond Fund 0.16% Full Maturity Fund 0.50% High Yield Bond Fund 0.66% Multi-Asset Fund 0.50% Diversified Equity Fund 0.75% Large Cap Value Equity Fund 0.62% Large Cap Growth Equity Fund 0.65% Socially Responsible Equity Fund 0.75% CNAM has voluntarily agreed to limit its fees or reimburse expenses to the extent necessary to keep total annual fund operating expenses (excluding taxes, interest, brokerage commissions, acquired fund fees and expenses, and extraordinary expenses) at or below the levels set forth in the table below. Any fee reductions or reimbursements may be repaid to CNAM within three years after they occur if such repayments can be achieved within a Fund’s expense limit in effect at the time such expenses were incurred and if certain other conditions are satisfied. CNI CHARTER FUNDS | 65 Institutional Class Servicing Class Class N Class S Government Money Market Fund N/A 0.63% 0.85% 1.05% Prime Money Market Fund 0.38% 0.63% 0.85% 1.05% California Tax Exempt Money Market Fund N/A 0.55% 0.78% 0.98% Limited Maturity Fund* 1.00% N/A 1.25% N/A Government Bond Fund 0.55% 0.80% 1.05% N/A Corporate Bond Fund N/A 0.80% 1.05% N/A California Tax Exempt Bond Fund N/A 0.60% 0.85% N/A Full Maturity Fund* 1.00% N/A 1.25% N/A High Yield Bond Fund 0.85% 1.10% 1.40% N/A Multi-Asset Fund 1.25% 1.50% 1.75% N/A U.S. Core Equity Fund 0.70% 0.95% 1.20% N/A Diversified Equity Fund* 1.25% N/A 1.50% N/A Large Cap Value Equity Fund 0.75% 1.00% 1.25% N/A Large Cap Growth Equity Fund N/A 1.05% 1.30% N/A Socially Responsible Equity Fund* 1.25% N/A 1.50% N/A * With respect to the Limited Maturity Fund, Full Maturity Fund, Diversified Equity Fund and Socially Responsible Equity Fund, CNAM has contractually agreed to limit its fees and reimburse expenses to the extent necessary to keep total annual fund operating expenses (excluding taxes, interest, brokerage commissions, acquired fund fees and expenses, and extraordinary expenses) at or below the levels set forth above until January 28, 2013. CNAM has determined that it will continue to limit its fees and reimburse expenses after January 28, 2013, but that it will do so on a voluntary, rather than contractual, basis. A discussion regarding the basis for the Board of Trustees’ approval of the Funds’ investment advisory agreement with CNAM is available in the Funds’ Annual Report for the fiscal year ended September 30, 2011. SUB-ADVISERS AND PORTFOLIO MANAGERS Following is certain information about the individuals employed by or associated with CNAM or the relevant sub-adviser who are primarily responsible for the day-to-day management of each Fund’s investment portfolio (the “Portfolio Managers”), if any, and in the case of the Sub-advised Funds, certain information about the sub-advisers. The SAI contains additional information about the sub-advisers and the Portfolio Managers, including the Portfolio Managers’ compensation, other accounts managed by the Portfolio Managers, and the Portfolio Managers’ ownership of securities in the Funds. MONEY MARKET FUNDS All investment decisions for the Money Market Funds are made by CNAM’s Fixed Income Team of investment professionals, all of whom take an active part in the decision-making process. LIMITED MATURITY FUND Paul C. Single and William C. Miller, Jr. serve as portfolio managers for the Limited Maturity Fund. Paul C. Single is Senior Vice President and Director – Fixed Income Investments of CNAM. Mr. Single has over 26 years of institutional investment management experience and specializes in investment grade taxable fixed income securities. Prior to joining CNB in 2002, Mr. Single was a principal and portfolio manager of Wells Capital Management. William C. Miller, Jr. is Senior Vice President and Director – Fixed Income Investments of CNAM. Mr. Miller has over 13 years of investment management experience and specializes in the research, analysis, and selection of fixed income securities. Prior to joining CNB in 2001, Mr. Miller was an Investment Officer with Fiduciary Trust International of California and from 1995 to 1998, was an Associate with Pacific Investment Management Company. Mr. Miller, a Chartered Financial Analyst, holds a bachelor’s degree with a concentration in Finance from California State University, Fullerton. GOVERNMENT BOND FUND Paul C. Single and Robert Harder serve as portfolio managers for the Government Bond Fund. Information about Mr. Single’s background and experience is provided above under “Limited Maturity Fund.” Robert Harder is Senior Vice President and Senior Portfolio Manager of CNAM and specializes in the research, analysis, selection and trading of fixed income securities. Mr. Harder has over 15 years of investment management experience. Prior to joining CNB in 2005, he served as a portfolio manager and relationship manager at Wells Capital Management, the registered investment adviser group at Wells Fargo Bank. Prior to joining Wells Fargo, Mr. Harder served as supervisor of investment performance for Wilshire Associates Incorporated. Mr. Harder holds a bachelor’s degree in History from UCLA. CNI CHARTER FUNDS | 66 CORPORATE BOND FUND William C. Miller and Robert Harder serve as portfolio managers for the Corporate Bond Fund. Information about Mr. Miller’s background and experience is provided above under “Limited Maturity Fund.” Information about Mr. Harder’s background and experience is provided above under “Government Bond Fund.” CALIFORNIA TAX EXEMPT BOND FUND Gregory Kaplan and Kathleen Meyer serve as portfolio managers for the California Tax Exempt Bond Fund. Gregory Kaplan serves as Senior Vice President and Director – Fixed Income Investments of CNAM. Mr. Kaplan has over 20 years of experience in the financial industry. Prior to joining CNAM, he served as vice president and portfolio manager for Robertson Stephens Asset Management. Mr. Kaplan is a Chartered Financial Analyst and holds an MBA in Finance from The Pamplin School of Business at Virginia Tech, and a BS in Finance from Rutgers University. Kathleen Meyer is Senior Vice President and Senior Portfolio Manager of CNAM, where she focuses on research, analysis, selection, and trading of tax-exempt fixed income securities. Ms. Meyer has over 25 years of experience in the investment industry. Prior to joining CNB in 2008, she served as senior vice president and senior portfolio manager at U.S. Trust. She has also served as vice president and tax-exempt high-net-worth specialist at Merrill Lynch, vice president and portfolio manager at First Interstate Bank, and portfolio manager at E. F. Hutton. Ms. Meyer holds a bachelor’s degree from Arizona State University. FULL MATURITY FUND Baird Advisors (“Baird”). Baird, an institutional fixed income department within Robert W. Baird & Co., Inc., currently serves as sub-adviser to a portion of the Full Maturity Fund. Baird is located at 777 East Wisconsin Avenue, Suite 2500, Milwaukee, Wisconsin 53202. Baird also provides management services to pension plans, non-profit organizations and individuals. Daniel A. Tranchita and Gary A. Elfe have primary responsibility for managing Baird’s portion of the Full Maturity Fund. Mr. Tranchita has been a Managing Director and Senior Portfolio Manager at Baird since 2000, and previously served as Senior Vice President and Senior Portfolio Manager of Firstar Investment Research & Management Company, LLC (“Firstar”) from 1989 to 2000. Mr. Elfe has been a Managing Director and Senior Portfolio Manager at Baird since 2000, and previously served as Senior Vice President and Senior Portfolio Manager at Firstar from 1978 to 2000. As Baird utilizes a team-oriented investment approach, Mary Ellen Stanek (Chief Investment Officer), Charlie Groeschell, Warren Pierson, Jay Schwister, Sharon deGuzman and Jeff Schrom are also involved in portfolio analysis and in security transactions for Baird’s portion of the Full Maturity Fund. Boyd Watterson Asset Management, LLC (“Boyd Watterson”). Boyd Watterson currently serves as sub-adviser to a portion of the Full Maturity Fund. Boyd Watterson is located at 1801 East 9th Street, Suite 1400, Cleveland, Ohio 44114. It was organized in 1928 and provides equity and fixed income investment management services to individuals and institutions, and as of December 31, 2010 had $4.6 billion in total firm assets under management. Day-to-day management of the portion of the Full Maturity Fund managed by Boyd Watterson is the responsibility of its Fixed Income Group, which establishes Boyd Watterson’s fixed income investment strategy. Justin C. Waggoner (Vice President) has primary responsibility for managing Boyd Watterson’s portion of the Fund, and has been employed by Boyd Watterson since 2007. Discussions regarding the bases for the Board of Trustees’ approvals of the sub-advisory agreements with Baird and Boyd Watterson are available in the Funds’ Annual Report for the fiscal year ended September 30, 2011. HIGH YIELD BOND FUND Guggenheim Partners Investment Management, LLC (“Guggenheim”). Guggenheim currently serves as the High Yield Bond Fund’s sub-adviser, providing investment advisory and portfolio management services pursuant to a sub-advisory agreement with CNAM. Guggenheim’s headquarters are located at 100 Wilshire Boulevard, Santa Monica, California 90401, but its High Yield investment team is primarily located at 135 East 57th Street, 6th Floor, New York, New York 10022. Guggenheim provides investment advisory services to institutional clients including public pensions, corporate pensions, foundations, insurance companies and family offices, and as of June 30, 2012, managed or sub-managed $8.3 billion in assets. Guggenheim is an indirect subsidiary of Guggenheim Partners, LLC, a global diversified financial services firm which offers capital markets services, portfolio and risk management expertise, wealth management, investment management and family office services. The High Yield Bond Fund is managed by Jeffrey Abrams, a Senior Managing Director and Portfolio Manager at Guggenheim. Mr. Abrams is a portfolio manager for Guggenheim’s Corporate Credit Strategies and is a member of the Investment Committee. He has been with Guggenheim Partners since May 2002. During his career at the firm, Mr. Abrams has been a senior analyst covering the food and beverage sectors, then subsequently led an industry team focused on investing across the leveraged credit markets in a number of industries, including financial institutions, retail, food and beverage, and consumer products. Prior to joining Guggenheim, Mr. Abrams worked in the Leveraged Finance CNI CHARTER FUNDS | 67 Group at Bear Stearns, where he focused on various leveraged debt transactions across multiple industries. Mr. Abrams received his BBA in Finance and a B.A. in History from Emory University. Kevin Gundersen, CFA, Managing Director, is the secondary portfolio manager for the High Yield Bond Fund. Mr. Gundersen is a portfolio manager for Guggenheim’s Corporate Credit Strategies and is a member of the Investment Committee. He has been with Guggenheim Partners since December 2002. During his career at the firm, Mr. Gundersen has been an analyst covering a variety of sectors, and subsequently led an industry team that focused on investing across the capital structure in the media, telecommunications and technology sectors. Prior to joining Guggenheim, Mr. Gundersen worked at GeoTrust, a technology company focused on eCommerce security solutions. Mr. Gundersen received his A.B. from Harvard University. Scott Minerd, Chief Investment Officer, and Patrick Mitchell, a Senior Managing Director at Guggenheim, are responsible for the day-to day overview and strategic direction of the High Yield Bond Fund. Mr. Minerd joined Guggenheim Capital, LLC in 1998. Mr. Minerd is Chief Investment Officer of Guggenheim and a Managing Partner of Guggenheim Partners, LLC. He was formerly a Managing Director with Credit Suisse First Boston in charge of trading and risk management for the Fixed Income Credit Trading Group. Previously, Mr. Minerd was Morgan Stanley’s London based European Capital Markets Products Trading and Risk Manager. Mr. Minerd earned a B.S. in Economics from the Wharton School, University of Pennsylvania, Philadelphia, and has completed graduate work at the University of Chicago Graduate School of Business and the Wharton School, University of Pennsylvania. Mr. Mitchell joined Guggenheim in 2009, with more than 30 years of experience in portfolio management, commercial banking, research and investments. Previously, Mr. Mitchell was a Managing Director at Maple Stone Capital Management (2007 to 2008) and Metropolitan West Financial, LLC (2000 to 2006). During the 1990s, Mr. Mitchell managed portfolios for the California State Teachers’ Retirement System (the last four years as the Chief Investment Officer). Mr. Mitchell received an MBA from Idaho State University and a Bachelor of Science in Business from the University of Idaho. A discussion regarding the basis of the Board of Trustees’ approval of CNAM’s sub-advisory agreement with Guggenheim is available in the Funds’ Annual Report for the fiscal year ended September 30, 2011. MULTI-ASSET FUND Bruce Simon, William C. Miller and Otis “Tres” Heald serve as portfolio managers for the Multi-Asset Fund. Bruce Simon is Chief Investment Officer of CNAM. Mr. Simon has over 25 years of experience in the investment industry. Prior to joining CNB in 2011, Mr. Simon served as Chief Investment Officer and a Managing Director at Ballentine Partners, an investment management firm, for three years. Prior to that, from 2002 to 2006, Mr. Simon served as Chief Investment Officer and a Managing Director at Morgan Stanley’s private wealth management division. Mr. Simon, a Chartered Financial Analyst, holds an MBA in Applied Economics from George Washington University and a bachelor’s degree from Penn State University. Information about Mr. Miller’s background and experience is provided above under “Limited Maturity Fund.” Otis “Tres” Heald is Senior Vice President and Director – Equity Investments of CNAM. Mr. Heald has over 20 years of experience and focuses on fundamental equity research. Prior to joining CNB in 2002, Mr. Heald served as SVP and market investment executive for Bank of America Capital Management, and was president of a mutual fund company. Mr. Heald, a Chartered Financial Analyst, holds a master’s degree in business administration from the University of Southern California. U.S. CORE EQUITY FUND Otis “Tres” Heald and Thomas A. Galvin serve as portfolio managers for the U.S. Core Equity Fund. Information about Mr. Heald’s background and experience is provided above under “Multi-Asset Fund.” Thomas A. Galvin is Senior Vice President of CNAM and Director of U.S. Equity Research of Rochdale Investment Management (“Rochdale”), a wholly-owned subsidiary of CNB. Mr. Galvin has 29 years of equity investment experience. Prior to joining CNAM and Rochdale in 2012, Mr. Galvin served as Managing Partner at Galvin Asset Management, which he founded in 2007. Prior to founding Galvin Asset Management, he was a Senior Portfolio Manager and Director of Research at UBS Global Asset Management, from 2006 to 2007. From 1991 to 2006, Mr. Galvin was with Forstmann – Leff Associates, where he held a number of positions including Chief Investment Officer and Director of Research. Mr. Galvin earned an M.B.A. in Finance and Investments from Fordham University and a B.A. in Economics with a minor in Accounting from Queens College. DIVERSIFIED EQUITY FUND CNAM. CNAM manages a portion of the Diversified Equity Fund. Thomas Kuo and Dimitry Kirtsman are the portfolio managers for CNAM's portion of the Fund. Thomas Kuo is a Vice President and Portfolio Manager for CNAM. Mr. Kuo has over 10 years of experience in the investment management industry, with most of his time spent in the field of equity research, analysis and portfolio management. Mr. Kuo joined CNB in 2000. Mr. Kuo, a Chartered Financial Analyst, holds a bachelor’s degree in business administration, with an emphasis in Finance, from California State Polytechnic University in Pomona. CNI CHARTER FUNDS | 68 Dimitry Kirtsman is a Vice President and Quantitative Research Analyst for CNAM. Mr. Kirtsman has over nine years of experience in the areas of investment and economic research. Prior to joining CNB in 2008, Mr. Kirtsman served as an Economist for Countrywide Financial, where he specialized in economic research and econometric modeling. Mr. Kirtsman earned a Bachelor’s degree in Business Economics from the University of California, Santa Barbara and a Master’s Degree in Economics from the University of Texas, Austin. SKBA Capital Management, LLC (“SKBA”). SKBA serves as sub-adviser to a portion of the Diversified Equity Fund. SKBA is located at 44 Montgomery Street, Suite 3500, San Francisco, California 94104. SKBA provides investment advisory services to a variety of clients. All SKBA client accounts are managed by an investment strategy team led by Andrew W. Bischel (CEO and Chief Investment Officer). The strategy team for SKBA’s portion of the Diversified Equity Fund meets at least weekly to discuss and decide which securities should be added to or sold from the portfolio. The members of the strategy team are Mr. Bischel, Kenneth J. Kaplan (Chairman), Josh J. Rothé (President and Director of Equity Research) and Shelley H. Mann (Senior Vice President and Director of Trading). Each of these individuals has been with SKBA for at least the last five years. Turner Investments, L.P. (“Turner”). Turner serves as sub-adviser to a portion of the Diversified Equity Fund. Turner is located at 1205 Westlakes Dr., Suite 100, Berwyn, Pennsylvania 19312, and is employee-owned. Turner has been providing investment advisory services to clients such as pension funds, foundations, public companies, other asset managers, financial advisors, and individuals since 1990. Day-to-day management of Turner’s portion of the Diversified Equity Fund is the responsibility of Turner’s Growth Equity Investment Team, which is led by Robert Turner, CFA. Mr. Turner is Chairman and Chief Investment Officer of Turner and co-founded the firm in 1990. He was previously Senior Investment Manager with Meridian Investment Company, and has 30 years of investment experience. Turner takes a team approach to investment management. Mr. Turner is the lead portfolio manager for the large cap growth equity strategy and is supported by a team of 24 investment professionals who provide fundamental, industry-focused research for all of the firm’s growth equity strategies. As the lead portfolio manager, Mr. Turner is the final decision maker for all purchase and sale decisions. Discussions regarding the bases for the Board of Trustees’ approvals of the sub-advisory agreements with SKBA and Turner are available in the Funds’ Annual Report for the fiscal period ended September 30, 2011. Previous Sub-adviser, AMBS Investment Counsel, LLC (“AMBS”) served as a sub-adviser to the Diversified Equity Fund until September 15, 2011. Upon its termination, the assets of the Fund being managed by AMBS were allocated among SKBA and Turner for management. LARGE CAP VALUE FUND Steve Decker and Max Sasso serve as portfolio managers for the Large Cap Value Fund. Steve Decker is Senior Vice President and Senior Portfolio Manager of CNAM. Mr. Decker has almost 15 years of experience in portfolio management and equity analysis. Prior to joining CNB in 2001, Mr. Decker was founding partner and portfolio manager at Palladian Capital, and senior equity analyst for the Farmers Insurance Group’s in-house investment division. Mr. Decker, a Chartered Financial Analyst, holds a master’s degree in business administration from the Marshall School of Business at the University of Southern California, and a bachelor’s degree from the University of Utah. Max Sasso is Vice President and Senior Portfolio Manager of CNAM, where he specializes in the research, analysis, and selection of securities for the firm’s domestic equity strategies. Mr. Sasso has over 14 years of experience in the investment management industry. He joined CNB in 1997. Mr. Sasso holds a master’s degree in business administration from Columbia University Graduate School of Business in New York and a bachelor’s degree from UCLA. LARGE CAP GROWTH FUND Otis “Tres” Heald and Joseph Querriera serve as portfolio managers for the Large Cap Growth Fund. Information about Mr. Heald’s background and experience is provided above under “Multi-Asset Fund.” Joseph Querriera is Vice President and Senior Portfolio Manager of CNAM, where he focuses on the non-bank financial sector. Mr. Querriera has over ten years of experience in investment analysis and portfolio management. Prior to joining CNB in 2004, he served as second vice president and portfolio manager at Northern Trust. Mr. Querriera, a Chartered Financial Analyst, holds a master’s degree in business administration from the University of Southern California and a bachelor’s degree in business administration, with an emphasis in Finance, from California State Polytechnic University in Pomona. SOCIALLY RESPONSIBLE EQUITY FUND SKBA.SKBA serves as sub-adviser to the Socially Responsible Equity Fund. Information about SKBA is included above under “Diversified Equity Fund.” The strategy team for the Socially Responsible Equity Fund includes Andrew W. Bischel, Kenneth J. Kaplan, Josh J. Rothé and Shelley H. Mann. Information about these individuals is included above under “Diversified Equity Fund.” A discussion regarding the basis for the Board of Trustees’ approval of CNAM’s sub-advisory agreement with SKBA is available in the Funds’ Annual Report for the fiscal year ended September 30, 2011. CNI CHARTER FUNDS | 69 ALL FUNDS Under current law, the appointment of a new sub-adviser generally would require the approval of a Fund’s shareholders. However, the Trust has received an exemptive order from the SEC which permits CNAM, subject to certain conditions required by the SEC, to retain an unaffiliated sub-adviser, or terminate or replace a sub-adviser to any of the Funds, with the approval of the Board of Trustees but without obtaining shareholder approval. Shareholders of a Fund will be notified of any change in any such sub-advisers and be provided with information regarding any new sub-adviser. This exemption does not apply to any sub-adviser affiliated with CNAM. An order from the SEC granting this exemption benefits shareholders by enabling the Funds to operate in a less costly and more efficient manner. CNAM has the ultimate responsibility to monitor any sub-advisers and recommend their hiring, termination and replacement. CNAM may also terminate any sub-adviser and assume direct responsibility for the portfolio management of that Fund with the approval of the Board of Trustees, but without obtaining shareholder approval. ADMINISTRATOR SEI Investments Global Funds Services (the “Administrator”) serves as administrator and fund accountant to the Funds. The Administrator is located at One Freedom Valley Drive, Oaks, Pennsylvania 19456. DISTRIBUTOR SEI Investments Distribution Co. (the “Distributor”) serves as the Funds’ distributor pursuant to a distribution agreement with the Funds. The Distributor is located at One Freedom Valley Drive, Oaks, Pennsylvania 19456 and can be reached at 1-888-889-0799. DISTRIBUTION OF FUND SHARES The Funds have adopted plans for their Class N and Class S shares, where applicable, under Rule 12b-1 of the Investment Company Act. The plans allow the Money Market Funds to pay to the Distributor distribution fees of 0.50% of average daily net assets for the sale and distribution of their Class N and Class S shares, and all other Funds to pay to the Distributor distribution fees of 0.25% of average daily net assets for the sale and distribution of their Class N shares (0.30% for Class N shares of the High Yield Bond Fund). The Distributor pays some or all of such distribution fees to broker-dealers and other financial intermediaries (primarily CNB and its affiliates) as compensation for providing distribution-related services. Because the distribution fees are paid out of the Funds’ assets on an ongoing basis, over time these fees will increase the cost of your investment and may cost you more than paying other types of sales charges. The Distributor may, from time to time in its sole discretion, institute one or more promotional incentive programs for dealers, which will be paid for by the Distributor from any distribution fees it receives or from any other source available to it. Under any such program, the Distributor may provide cash or non-cash compensation as recognition for past sales or encouragement for future sales that may include the following: merchandise, travel expenses, prizes, meals, and lodgings, and gifts that do not exceed $100 per year, per individual. Institutional Class and Servicing Class shares of the Funds are not subject to distribution fees under these plans. For the fiscal year ended September 30, 2011, affiliates of CNAM voluntarily waived distribution fees in the amounts set forth in the table below. Each of these waivers continues in effect as of the date of this Prospectus but may be terminated at any time. Class N Class S Government Money Market Fund 0.49% 0.48% Prime Money Market Fund 0.47% 0.46% California Tax Exempt Money Market Fund 0.49% 0.49% SHAREHOLDER SERVICING FEES The Funds are subject to shareholder service agreements that allow each Fund to pay fees of 0.25% of its average daily net assets for non-distribution services provided to shareholders of each Class of each Fund (except for Institutional Class shares). Because these fees are paid out of the Funds’ assets (continuously for Servicing Class shares), over time these fees will increase the cost of your investment. For the fiscal year ended September 30, 2011, affiliates of CNAM voluntarily waived shareholder servicing fees in the amounts set forth in the table below. Each of these waivers continues in effect as of the date of this Prospectus but may be terminated at any time. Servicing Class(1) Class N Class S Government Money Market Fund 0.25% 0.25% 0.25% Prime Money Market Fund 0.25% 0.25% 0.25% California Tax Exempt Money Market Fund 0.25% 0.25% 0.25% (1) Effective November 28, 2012, the shares of the Government Money Market Fund, Prime Money Market Fund and California Tax Exempt Money Market Fund previously designated as Institutional Class shares were redesignated as Servicing Class shares. CNI CHARTER FUNDS | 70 how to buy, sell andexchange shares Here are the details you should know about how to purchase, sell (sometimes called “redeem”) and exchange shares. GENERAL INFORMATION Shares of all Funds are offered through approved broker-dealers or other financial institutions (each an “Authorized Institution”). If you purchase shares of a Fund through an Authorized Institution, your Authorized Institution is responsible for maintaining your individual account records, processing your order correctly and promptly, keeping you advised regarding the status of your individual account, confirming your transactions and ensuring that you receive copies of the Fund’s Summary Prospectus. You will also generally have to address your correspondence or questions regarding the Fund to your Authorized Institution. The Limited Maturity Fund, the Full Maturity Fund, the Diversified Equity Fund and the Socially Responsible Equity Fund are offered directly as well as through Authorized Institutions. Institutional Class shares are intended for institutional investors. Institutional Class shares of Funds other than the Limited Maturity Fixed Income Fund, Full Maturity Fixed Income Fund, Diversified Equity Fund and Socially Responsible Equity Fund are available only to fiduciary, advisory, agency, custodial and other similar accounts maintained at City National Bank which meet the minimum initial investment requirements. Servicing Class shares are available only to other fiduciary, advisory, agency, custodial and other similar accounts maintained at City National Bank. Class N shares are intended for individual investors, partnerships, corporations, and other accounts. Class S shares are retail shares of the Money Market Funds and are intended for investors who have funds on deposit with City National Bank. Not all Funds and classes are available in all states. PRICING OF FUND SHARES How and when we calculate each Fund’s net asset value per share (“NAV”) determines the price at which you will buy or sell shares. We calculate the NAV once each day at the following times: • Government Money Fund and Prime Money Fund – Usually at 3:00 p.m. Eastern time. • California Money Fund – Usually at 2:00 p.m. Eastern time. • All Other Funds – As of the close of trading on the New York Stock Exchange (the “NYSE”). The NYSE usually closes at 4:00 p.m. Eastern time on weekdays, except for holidays. Shares of the Equity Funds, Multi-Asset Fund and Bond Funds may be purchased or sold on any day that the NYSE is open for business. Shares of the Money Market Funds may be purchased or sold on any day that the NYSE and the Federal Reserve are open for business. The Funds reserve the right to open for business on days the NYSE is closed due to an emergency or other unanticipated event, but the Federal Reserve Bank of New York is open. Shares of a Fund, however, cannot be purchased or sold by Federal Reserve wire on days when either the NYSE or the Federal Reserve is closed. On any business day when the Securities Industry and Financial Markets Association (“SIFMA”) recommends that the securities markets close early due to an emergency or other unanticipated event, each Money Market Fund and Bond Fund reserves the right to close early. If a Money Market Fund or Bond Fund does so, it will not grant same business day credit for purchase and redemption orders received after the Money Market Fund’s or Bond Fund’s closing time and credit will be given on the next business day. If the Fund or your Authorized Institution, as applicable, receives your purchase, redemption or exchange request in good order from you on a business day before 3:00 p.m. Eastern time for the Government Money Fund and the Prime Money Fund, before 2:00 p.m. Eastern time for the California Money Fund, and before the close of trading on the NYSE for all other Funds, we will price your order at that day’s NAV. If the Funds or your Authorized Institution, as applicable, receives your request in good order on a business day from you after these times, we will price your order at the next day’s NAV. In some cases, however, you may have to transmit your request to your Authorized Institution by an earlier time in order for your request to be effective on the day of transmittal. “In good order” means that the Funds have received and processed your account application and have received all required information and documentation, including, as applicable, the information described under “Customer Identification and Verification” and “Anti-Money Laundering Program” below and any required signature guarantees. To ensure that your request is in good order, follow the directions for purchasing shares as described under “How to Buy Shares”. CALCULATION OF NAV NAV for one share of a class of a Fund is the value of that share’s portion of the net assets (i.e., assets less liabilities) attributable to that class of that Fund. Shares of each Money Market Fund are priced at NAV, which is expected to remain constant at $1.00. We calculate the NAV of each class of each Fund by dividing the total net value of the assets attributable to the class by the number of outstanding shares of that class. We base the value of the investments of each Equity Fund, each Bond Fund, and the Multi-Asset Fund on their market values, usually the last price reported for each security before the close of the market that day. In the case of the Money Market Funds, securities are valued at amortized cost, which is expected to approximate market value. CNI CHARTER FUNDS | 71 A market price may not be available for securities that trade infrequently. If market prices are not readily available or considered to be unreliable by the Adviser, fair value prices may be determined by the Funds’ Fair Value Committee. The Fair Value Committee in good faith uses methods approved by and under the ultimate supervision of the Board of Trustees. For instance, if trading in a security has been halted or suspended or a security has been delisted from a national exchange, a security has not been traded for an extended period of time, or a significant event with respect to a security occurs after the close of the market or exchange on which the security principally trades and before a Fund calculates its NAV, the Fair Value Committee will determine the security’s fair value. In determining the fair value of a security, the Fair Value Committee will consider the investment manager’s (or the relevant sub-adviser’s) valuation recommendation and information supporting the recommendation, including factors such as the type of security, last trade price, fundamental analytical data relating to the security, forces affecting the market in which the security is purchased and sold, the price and extent of public trading in similar securities of the issuer or comparable companies, and other relevant factors. Valuing securities at fair value involves greater reliance on judgment than valuation of securities based on readily available market quotations. Any Fund that uses fair value to price securities may value those securities higher or lower than another fund using market quotations or fair value to price the same securities. There can be no assurance that a Fund could obtain the fair value assigned to a security if it were to sell the security at approximately the time at which that Fund determines its net asset value. The Board of Trustees reviews all fair value determinations. Some of the Funds may invest in securities listed on foreign exchanges which may trade on Saturdays or on U.S. national business holidays when the NYSE is closed. Consequently, the NAV of a Fund’s shares may be significantly affected on any day when the Fund does not price its shares and when you are not able to purchase or redeem the Fund’s shares. Similarly, if an event materially affecting the value of foreign investments or foreign currency exchange rates occurs prior to the close of business of the NYSE but after the time their values are otherwise determined for a Fund, such investments or exchange rates will be valued at their fair value as discussed above. More details about how we calculate the NAV for each Fund may be found in the SAI. HOW TO BUY SHARES All Funds –To purchase shares of a Fund through an Authorized Institution, you should contact your Authorized Institution and follow its procedures, including acceptable methods of payment and deadlines for receipt by the Authorized Institution of your share purchase instructions. Your Authorized Institution may establish higher minimum investment requirements than the Funds, and may charge a fee for its services, in addition to the fees charged by the Funds. A Fund may reject any purchase order (generally within one business day) if it is determined that accepting the order would not be in the best interest of the Fund or its shareholders. Limited Maturity Fund, Full Maturity Fund, Diversified Equity Fund and Socially Responsible Equity Fund – There are two additional ways to purchase shares of these Funds: By Mail– To open a new account, complete and sign an application. Applications are available by calling 1-800-445-1341. Make your check payable to the Fund in which you choose to invest. The check must be drawn on a U.S. bank and payable in U.S. dollars. You will be required to include your full name, permanent street address, date of birth and taxpayer identification number. Send your completed application and check to: Regular Mail: CNI Charter Funds P.O. Box 2175 Milwaukee, WI 53201 Overnight Delivery: CNI Charter Funds 803 W. Michigan St. Milwaukee, WI 53233 To add to an existing account, make your check payable to the Fund in which you choose to invest. The check must be drawn on a U.S. bank. Please include your account number on the check and send your check to: Regular Mail: CNI Charter Funds P.O. Box 2175 Milwaukee, WI 53201 Overnight Delivery: CNI Charter Funds 803 W. Michigan St. Milwaukee, WI 53233 By Wire– If you are making an initial investment in a Fund, before you wire funds, please call us at 1-800-445-1341 to make arrangements with a telephone service representative to submit your completed application via mail, overnight delivery, or facsimile. You may then contact your bank to initiate the wire using the following wire instructions: UMB Bank, N.A. Kansas City, MO ABA# 101000695 For Credit to: CNI Charter Funds Account Number 9871879089 Further Credit: [Mutual Fund Name] [Shareholder name and account number] CNI CHARTER FUNDS | 72 If you wish to add to an existing account by Federal Funds wire payment, please call us at 1-800-445-1341, during business hours, to advise of your intent to wire funds. This will ensure prompt and accurate credit to your account upon receipt of your wire. You may also make additional purchases via Electronic Funds Transfer from your checking/savings account if you elected the option on your account application. In order to participate in this option, your bank must be a member of the ACH network. Amounts sent by wire or electronic funds must be received by 4:00 p.m., Eastern time, in order to buy shares that day. The Funds do not impose charges for wire services, but your bank may impose such charges. The Funds and UMB are not responsible for the consequences of delays resulting from the banking or Federal Reserve Wire System, or from incomplete wiring instructions. General– The Funds reserve the right to reject any purchase request, including a purchase request that may disrupt a Fund’s operation or performance as described below under “Customer Identification and Verification” and “Anti-Money Laundering Program.” The Funds will not be responsible for any loss of potential investment gains resulting from your inability to invest in a Fund because of the Fund’s rejection of a purchase request based on the Fund’s obligation to deter money laundering under Federal law or the Fund’s determination that the purchase request will disrupt the Fund’s operation. When the Funds reject a purchase request, the funds received from the shareholder or account applicant will not be invested in the Funds. Instead, a check from the Funds for the full amount of the check received by the Funds will be returned to the shareholder or account applicant as soon as possible after receipt by the Funds’ transfer agent of the purchase request (generally within one business day). The return of funds to a shareholder or account applicant may be delayed as a result of the Funds’ compliance with Federal law relating to money laundering. The Funds do not accept payment in cash or money orders. The Funds also do not accept cashier’s checks in amounts of less than $10,000, except for the Limited Maturity Fund, the Full Maturity Fund, the Diversified Equity Fund and the Socially Responsible Fund, which do not accept any payment in cashier’s checks. To prevent check fraud, the Funds will not accept third party checks, Treasury checks, credit card checks, bank drafts, traveler’s checks or starter checks for the purchase of shares. The Fund’s transfer agent may charge a $25.00 fee against a shareholder’s account, in addition to any loss sustained by the Funds, for any payment that is returned. It is the policy of the Funds not to accept applications under certain circumstances or in amounts considered disadvantageous to shareholders. The Funds reserve the right to reject any application. You must certify whether you are subject to withholding for failing to report income to the Internal Revenue Service. The Funds may return investments received without a certified taxpayer identification number. FOREIGN INVESTORS The Funds do not generally accept investments by non-U.S. persons. HOW TO SELL SHARES All Funds – You may redeem some or all of your shares of the Equity Funds, Multi-Asset Fund or Bond Funds on any day the NYSE is open for regular session trading. Shares of the Money Market Funds may be redeemed on any day the NYSE and the Federal Reserve are open for business. If you purchased Fund shares through an Authorized Institution, you may sell your shares only through your Authorized Institution. To sell shares of a Fund, you should contact your Authorized Institution and follow its procedures. Your Authorized Institution may charge a fee for its services, in addition to the fees charged by the Funds. Redemption requests for the Equity Funds, Multi-Asset Fund and Bond Funds must be received by the Fund or your Authorized Institution before 4:00 p.m. Eastern Time or the Authorized Institution’s earlier applicable deadline. Redemption requests for the Government Money Fund and the Prime Money Fund must be received before 3:00 p.m. Eastern Time, and redemption requests for the California Money Fund must be received before 2:00 p.m. Eastern Time, or before the Authorized Institution’s earlier deadline. As long as the Funds or their agents receive your redemption request in good order before the close of regular trading on the NYSE (usually 4:00 p.m., Eastern time) or the applicable deadline, your shares will be sold at that day’s NAV. A redemption request is in good order if it includes all required information and the Funds have a completed application on file. If the Funds receive your redemption request after the close of regular trading on the NYSE, your redemption request will be executed the next business day, and your shares will be sold at the next day’s NAV. Redemption proceeds may be withheld or delayed as required by anti-money laundering laws and regulations. Shares generally continue earning dividends until the next business day after your trade date. Normally, the Funds will make payment on your redemption request as promptly as possible after receiving your request, but it may take up to seven business days. The Funds generally pay sale (redemption) proceeds in cash. However, under conditions where cash redemptions are detrimental to a Fund and its shareholders (e.g., the amount you are redeeming is large enough to affect a Fund’s operation), the Fund reserves the right to make redemptions in readily marketable securities rather than cash (a “redemption in kind”). If your shares were ever redeemed in kind, you would probably have to pay transaction costs to sell the securities distributed to you, as well as taxes on any capital gains from the sale as with any redemption. In addition, you would be subject to market exposure on securities received from a Fund CNI CHARTER FUNDS | 73 until you sold them. By calling us before you attempt to redeem a large dollar amount, you are more likely to avoid in-kind or delayed payment of your redemption. The Funds may suspend redemptions or postpone payments of redemption proceeds for more than seven days during any period when the NYSE is closed for other than customary weekends or holidays; trading on the NYSE is restricted; there are emergency circumstances as determined by the SEC; or the SEC has by order permitted such suspension to protect shareholders of a Fund. Limited Maturity Fund, Full Maturity Fund, Diversified Equity Fund and Socially Responsible Equity Fund – If you purchased shares of any of these Funds directly, you may redeem some or all of your shares in the following ways. Redemption proceeds will be sent to you via check to your address of record or will be wired to the bank via the instructions on your account. By Mail– Complete a written redemption request that includes the Fund’s name, your account number, each account owner’s name and address, the dollar amount or number of shares to be sold, and the signature of each owner as it appears on the account. Send the written request to: Regular Mail: CNI Charter Funds P.O. Box 2175 Milwaukee, WI 53201 Overnight Delivery: CNI Charter Funds 803 W. Michigan St. Milwaukee, WI 53233 By Wire– You may only request payment of your redemption proceeds by wire if you have previously elected wire redemption privileges on your account application or a separate form. Wire requests are only available if your redemption is for $5,000 or more. To request a wire redemption, mail us your request (see “By Mail” above) or call us with your request (see “By Telephone” below). If you wish to make your wire request by telephone, however, you must have previously elected telephone redemption privileges on your account application or a separate form. Telephone redemptions are not available for IRA accounts. By Telephone– You may only request payment of your redemption proceeds by telephone if you have previously elected telephone redemption privileges on your account application or a separate form. Telephone redemptions are not available for IRA accounts. To redeem shares by telephone, call us with your request at 1-800-445-1341. You will need to provide your account number, the exact name(s) in which the account is registered and taxpayer identification number. We may also require a password or additional forms of identification. Your proceeds will be mailed to you or wired to you (if you have elected wire redemption privileges – see “By Wire” above). General– The Funds require a signature guarantee when a redemption request will be payable to anyone other than the account owners of record, mailed to an address other than the address of record, or wired to a bank other than one previously authorized. A signature guarantee is also required in the event that you add wiring instructions to your account after it was initially established. Special documentation may be required to redeem from certain types of accounts, such as trust, corporate, non-profit or retirement accounts. Please call us at 1-800-445-1341 before attempting to redeem from these types of accounts. If you have recently purchased shares by check, a Fund may withhold redemption proceeds until your purchase check has cleared, which may take up to 15 days from the date of purchase. HOW TO EXCHANGE SHARES All Funds – You may exchange shares of a Fund for the same class of shares of any other Fund in which you are eligible to invest on any business day. When you exchange shares, you are really selling your shares and buying other shares, so your sale price and purchase price will be based on the NAVs of the relevant Funds next calculated after we receive your exchange request. Exchange instructions must be received before 3:00 p.m., Eastern time for the Government Money Fund and the Prime Money Fund, before 2:00 p.m. Eastern time for the California Money Fund, and before the close of trading on the NYSE for all other Funds. If you wish to exchange shares of a Fund that you purchased through an Authorized Institution, you should contact your Authorized Institution. Your Authorized Institution may charge you transaction fees and additional amounts for its services. Limited Maturity Fund, Full Maturity Fund, Diversified Equity Fund and Socially Responsible Equity Fund – If you wish to exchange between these Funds, you may transfer investments among existing accounts or you may open a new account to accept the exchange from an existing account. When requesting an exchange between these Funds, both accounts must be registered in the same name, with the same address and taxpayer identification number. By Mail– Send a written request using the procedures for written redemption requests below. No signature guarantee is required. For further information, please call us at 1-800-445-1341. By Telephone– You must request telephone exchange privileges on your initial account application. To authorize telephone exchanges after establishing your Fund account, send a signed written request to: CNI Charter Funds P.O. Box 2175 Milwaukee, WI 53201 CNI CHARTER FUNDS | 74 To request an exchange, please call us at 1-800-445-1341. Shares exchanged by telephone must have a value of $1,000 or more. Exchange instructions must be received before 4:00 p.m., Eastern time. INACTIVE AND LOST ACCOUNTS Please note that the value of your account may be transferred to the appropriate state if no activity occurs in the account within the time period specified by state law. Limited Maturity Fund, Full Maturity Fund, Diversified Equity Fund and Socially Responsible Equity Fund – A Fund will consider your account lost if correspondence to your address of record is returned as undeliverable on two consecutive occasions, unless the Fund determines your new address. When an account is lost, all distributions on the account will be reinvested in additional Fund shares. In addition, the amount of any outstanding checks (unpaid for six months or more) or returned checks will be reinvested at the then-current NAV and the checks will be canceled. However, checks will not be reinvested into accounts with a zero balance. Unclaimed accounts may be subject to state escheatment laws, and no Fund (or its transfer agent) will be liable to the shareholders or their representatives for compliance with those laws in good faith. ADDITIONAL INFORMATION ABOUT TELEPHONE TRANSACTIONS You may give up some level of security by choosing to exchange or sell shares by telephone rather than by mail. To prevent unauthorized transactions in your account, the Funds or their services providers, as applicable, will employ reasonable procedures to confirm that telephone instructions are genuine. If the Funds or their service providers follow these procedures, neither the Funds nor their service providers will be liable for any loss, liability, cost or expense arising from unauthorized or fraudulent telephone instructions. Because you may be responsible for unauthorized telephone requests, you should verify the accuracy of each telephone transaction as soon as you receive your account statement and you should take precautions to keep confidential your account number and tax identification number. SIGNATURE GUARANTEE REQUIREMENTS To protect you and the Funds against fraud, signatures on certain requests must have a “signature guarantee.” A signature guarantee verifies the authenticity of your signature. You can obtain one from most banking institutions or securities brokers, but not from a notary public. For requests made in writing, a signature guarantee is required for any of the following: • Redemption requests for $50,000 or more; • Changes to a shareholder’s record name; • Redemption from an account for which the address or account registration has changed within the last 30 days; • Sending proceeds to any person, address, brokerage firm or bank account not on record; • Sending proceeds to an account with a different registration (name or ownership) from yours; and • Changes to telephone or wire redemption privileges and adding or changing bank instructions. FREQUENT PURCHASES AND REDEMPTIONS OF FUND SHARES The Funds’ Board of Trustees has adopted policies and procedures with respect to frequent purchases and redemptions of Fund shares. The Funds discourage short-term or other excessive trading (such as market timing) into and out of the Funds because such trading may harm performance by disrupting portfolio management strategies and by increasing expenses. The Funds do not accommodate frequent purchases and redemptions of Fund shares, other than the Money Market Funds, and reserve the right to reject or cancel (generally within one business day of receipt of the purchase order) without any prior notice, any purchase or purchase portion of any exchange order, including transactions representing excessive trading and, as applicable, transactions accepted by any shareholder’s Authorized Institution. Money market funds are generally not effective vehicles for market timing activity since these types of funds seek to maintain a constant NAV of $1.00. In addition, the risks of frequent trading are not generally applicable to money market funds because they are cash management vehicles which accommodate frequent inflows and outflows of cash. As a result, money market funds are managed to accommodate such cash flows, particularly when used as bank sweep vehicles (as the Money Market Funds are used), which generally eliminates the potential for disruptive trading. However, a money market fund may be used in conjunction with an exchange with a non-money market fund in order to facilitate market timing activity in the non-money market fund. With respect to exchanges between a Money Market Fund and any other non-money market Fund, frequent trading will be monitored in conjunction with the Funds’ frequent trading procedures as described below. The Money Market Funds reserve the right to reject or cancel (generally within one business day) without any prior notice, any purchase or purchase portion of any exchange order, including transactions representing excessive trading and transactions accepted by any shareholder’s Authorized Institution. A Money Market Fund may exercise such right in the event the Money Market Fund determines that a purchase or exchange order is disruptive to the portfolio management of the Money Market Fund or any other Fund. The transfer agents for the Funds have procedures in place designed to detect and prevent market timing activity. CNAM also participates in the enforcement of the Funds’ market timing prevention policy by monitoring transaction activity in the Funds. CNAM and the transfer agents currently monitor for various patterns in trading activity CNI CHARTER FUNDS | 75 in client accounts, including omnibus accounts, such as a purchase and sale of shares of a Fund (a “round trip”) within 30 days, multiple round trips within several months, and four exchanges per quarter. These parameters are subject to change. Shareholders seeking to engage in excessive trading practices may use a variety of strategies to avoid detection and, despite the efforts of the Funds to prevent excessive trading, there is no guarantee that the Funds or their transfer agents will be able to identify such shareholders or curtail their trading practices. The ability of the Funds and their agents to detect and curtail excessive trading practices may also be limited by operational systems and technological limitations. In addition, the Funds receive purchase, exchange and redemption orders through financial intermediaries and cannot always know or reasonably detect excessive trading which may be facilitated by these intermediaries. However, the Funds do attempt to review excessive trading at the omnibus level and work with each intermediary in enforcing the Funds’ policies and procedures if suspicious activity is detected. In addition, the Distributor has received assurances from each financial intermediary which sells shares of the Funds that it has procedures in place to monitor for excessive trading. If the Funds or their service providers find what they believe may be market timing activity in an omnibus account with respect to the Funds, they will contact management of the Funds, who will review the activity and determine what action, if any, the Funds will take. Possible actions include contacting the financial intermediary and requesting assistance in identifying shareholders who may be engaging in market timing activity, and restricting or rejecting future purchase or exchange orders with respect to shareholders found to be engaging in such activity. There are no assurances that the Funds or their service providers will successfully identify all omnibus accounts engaged in excessive trading, or that intermediaries will properly administer their excessive trading monitoring policies. If you invest in the Funds through an intermediary, please read that firm’s materials carefully to learn of any other rules or fees that may apply. COMPLIANCE WITH APPLICABLE CUSTOMER IDENTIFICATION, VERIFICATION, AND ANTI-MONEY LAUNDERING REQUIREMENTS CUSTOMER IDENTIFICATION AND VERIFICATION To help the government fight the funding of terrorism and money laundering activities, Federal law requires all financial institutions to obtain, verify, and record information that identifies each person who opens an account. What this means to you: when you open an account, you will be asked to provide certain information, which includes your name, address, date of birth, and other information that will serve as a basis to establish your identity. This information is subject to verification. The Funds are required by law to reject your investment if the required identifying information is not provided. In certain instances, a Fund, or an Authorized Institution on behalf of a Fund, may be required to collect documents pursuant to certain applicable legal obligations. Documents provided in connection with your application will be used solely to establish and verify your identity. Attempts to collect missing information required on the application will be performed by contacting you or, if applicable, your broker or Authorized Institution. If this information is unable to be obtained within a timeframe established in the sole discretion of the Funds, your application will be rejected. Upon receipt of your application in proper form (or upon receipt of all identifying information required on the application), your investment will be accepted and your order will be processed at the NAV next determined after receipt of your application in proper form. However, a Fund reserves the right to close your account if it is unable to verify your identity. Attempts to verify your identity will be performed within a timeframe established in the sole discretion of a Fund. If a Fund is unable to verify your identity, the Fund reserves the right to liquidate your account at the then-current day’s price and remit proceeds to you via check. The Fund reserves the further right to hold your proceeds until clearance of your original check. In such an instance, you may be subject to a gain or loss on Fund shares and will be subject to corresponding tax implications. ANTI-MONEY LAUNDERING PROGRAM Customer identification and verification is part of the Funds’ overall obligation to deter money laundering under Federal law. The Funds have adopted an Anti-Money Laundering Compliance Program designed to prevent the Funds from being used for money laundering or the financing of terrorist activities. In this regard, the Funds reserve the right to: (i) refuse, cancel or rescind any purchase or exchange order; (ii) freeze any account and/or suspend account services; or (iii) involuntarily close your account in cases of threatening conduct or suspected fraudulent or illegal activity. These actions will be taken when, in the sole discretion of Fund management, they are deemed to be in the best interest of the Funds or in cases when the Funds are requested or compelled to do so by governmental or law enforcement authority. If your account is closed at the request of governmental or law enforcement authority, you may not receive proceeds of the redemption if the Funds are required to withhold such proceeds. CNI CHARTER FUNDS | 76 dividends and taxes DIVIDENDS Money Market Funds. The Money Market Funds declare dividends each day the NAV is calculated, pay dividends monthly, and pay net capital gains, if any, at least once a year. Following their fiscal year end (September 30), the Money Market Funds may make additional distributions to avoid the imposition of taxes. Your dividends begin to accrue on the day your purchase order is settled for shares bought before 3:00 p.m. Eastern time for the Government Money Fund and the Prime Money Fund, and before 2:00 p.m. Eastern time for the California Money Fund. The Money Market Funds will not credit you with dividends for shares on the day the Fund makes payment on your redemption request. Bond Funds. Each Bond Fund declares investment income daily and distributes it monthly as a dividend to shareholders. You will begin earning dividends on a Bond Fund on the business day your purchase order is settled. The Funds make distributions of capital gains, if any, at least annually. If you own Fund shares on a Bond Fund’s record date, you will be entitled to receive the distribution. Equity Funds and Multi-Asset Fund. The Equity Funds and the Multi-Asset Fund declare and distribute investment income, if any, quarterly as a dividend to shareholders. The Equity Funds and the Multi-Asset Fund make distributions of capital gains, if any, at least annually. If you own Equity Fund or Multi-Asset Fund shares on the Equity Fund’s or the Multi-Asset Fund’s record date, you will be entitled to receive the distribution. Following their fiscal year end (September 30), the Funds may make additional distributions to avoid the imposition of a tax. Each Fund automatically reinvests your dividends and capital gains distributions in additional full or fractional shares, unless you instruct your Authorized Institution or the Fund, as applicable, in writing prior to the date of the dividend or distribution of your election to receive payment in cash. Your election will be effective for all dividends and distributions paid after your written notice is received. To cancel your election, please send your written notice to your Authorized Institution or the Fund, as applicable. Proceeds from dividends or distributions will normally be wired on the business day after dividends or distributions are credited to your account. TAXES The following discussion is very general. Because each shareholder’s circumstances are different and special tax rules may apply, you should consult your tax adviser about your investment in a Fund. You will generally have to pay federal income taxes, as well as any state and local taxes, on distributions received from a Fund. If you sell Fund shares or exchange them for shares of another Fund, it is generally considered a taxable event. If, however, you sell or exchange shares of a Money Market Fund, you generally will not have any gain or loss on the sale or exchange so long as the Money Market Fund in which you invest maintains an NAV of $1.00. The following table summarizes the tax status to you of certain transactions related to the Funds: TRANSACTION FEDERAL TAX STATUS Redemption or exchange of shares Usually capital gain or loss; long term only if shares owned more than one year Distributions of net capital gain (excess of net long-term capital gain over net short-term capital loss) Long-term capital gain Ordinary dividends (including distributions of net short-term capital gain) Ordinary income; certain dividends potentially taxable at long-term capital gain rates Exempt-interest dividends Exempt from regular federal income tax Distributions of net capital gain are taxable to you as long-term capital gain regardless of how long you have owned your shares. Certain dividends may be treated as “qualified dividend income,” which for noncorporate shareholders is taxed at reduced rates for taxable years beginning before January 1, 2013. “Qualified dividend income” generally is income derived by a Fund from dividends paid by U.S. corporations or certain foreign corporations that are either incorporated in a U.S. possession or eligible for tax benefits under certain U.S. income tax treaties. In addition, dividends received from foreign corporations may be treated as qualified dividend income if the stock with respect to which the dividends are paid is readily tradable on an established U.S. securities market. A portion of the dividends received from a Fund (but none of the Fund’s capital gain distributions) may qualify for the dividends-received deduction for corporate shareholders. CNI CHARTER FUNDS | 77 Most distributions from the California Money Fund and the California Tax Exempt Bond Fund are expected to be exempt-interest dividends, which are exempt from regular federal income tax, but may be subject to state or local income taxes. Exempt-interest dividends from California municipal securities will also be exempt from California state personal income tax. Some exempt-interest dividends may be subject to the federal alternative minimum tax. The Funds other than the California Money Fund and the California Tax Exempt Bond Fund do not expect to be eligible to distribute any exempt-interest dividends. You may want to avoid buying shares of a Fund when the Fund is about to declare a dividend or distribution that is not declared on a daily basis, because it will be taxable to you even though it may effectively be a return of a portion of your investment. A Fund’s dividends and other distributions are generally treated as received by shareholders when they are paid. However, if any dividend or distribution is declared by a Fund in October, November or December of any calendar year and payable to shareholders of record on a specified date in such a month but is actually paid during the following January, such dividend or distribution will be treated as received by each shareholder on December 31 of the year in which it was declared. After the end of the year, the Funds will provide you with information about the dividends and distributions you received and any redemptions of shares during the previous year. If you are neither a citizen nor a resident of the United States, certain dividends that you receive from a Fund may be subject to federal withholding tax. To the extent that a Fund’s distributions consist of ordinary dividends or other payments that are subject to withholding, the Fund will withhold federal income tax at the rate of 30% (or such lower rate as may be determined in accordance with any applicable treaty). Most distributions from the California Money Fund and the California Tax Exempt Bond Fund are expected to be exempt-interest dividends, which are not subject to such withholding. Ordinary dividends that are reported by a Fund as “interest-related dividends” or “short-term capital gain dividends” are generally exempt from such withholding for taxable years of the Fund beginning before January 1, 2012. If you do not provide the Funds with your correct taxpayer identification number and any required certifications, you will be subject to backup withholding on your redemption proceeds (except for proceeds from redemptions of Money Market Fund shares), dividends (including exempt-interest dividends), and other distributions. Backup withholding will not, however, be applied to payments that have been subject to the 30% withholding tax on shareholders who are neither citizens nor residents of the United States. The backup withholding rate is currently 28% and is scheduled to increase to 31% in 2013. Distributions derived from interest on U.S. government securities (but not distributions of gain from the sale of such securities) may be exempt from certain state and local taxes. Consult your tax adviser for restrictions and details. More information about taxes is contained in the Funds’ SAI. CNI CHARTER FUNDS | 78 financial highlights The following financial highlights tables are intended to help you understand the Funds’ financial performance. Information for the years or periods indicated below (with the exception of the six months ended March 31, 2012) has been audited by KPMG LLP, an independent registered public accounting firm, whose report, along with the Funds’ financial statements, are included in the Funds’ 2011 Annual Report (available upon request; see the back cover of this Prospectus). Information presented in the financial highlights tables is for a single CNI Fund share outstanding throughout the period or, if shorter, the period for a Fund’s operations. The total return figures in the tables represent the rate an investor would have earned (or lost) on an investment in the Fund (assuming reinvestment of all dividends and distributions). For a Share Outstanding Throughout Each Period For the six months ended March 31, 2012 (Unaudited) and the year ended September 30, Net Asset Value Beginning of Period Net Investment Income† Dividends From Net Investment Income NetAsset Value End of Period Total Return‡ NetAssets End of Period(000) Ratio of Expensesto Average Net Assets(1)(2) Ratio Of Net Investment Income to Average Net Assets(1) Ratio of Expensesto Average Net Assets (Excluding Waivers & Recovered Fees)(1) Government Money Market Fund Servicing Class (commenced operations on April 3, 2000)* 2012 + $ 1.00 $ 0.000 ^ $ (0.000 )^ $ 1.00 0.01 % $ 102,623 0.11 % 0.01 % 0.60 % ^ )^ ^ )^ ) ) ) Class N (commenced operations on June 21, 1999) 2012 + $ 1.00 $ 0.000 ^ $ (0.000 )^ $ 1.00 0.01 % $ 2,683,416 0.11 % 0.01 % 1.10 % ^ )^ ^ )^ ) ) ) Class S (commenced operations on October 6, 1999) 2012 + $ 1.00 $ 0.000 ^ $ (0.000 )^ $ 1.00 0.01 % $ 277,506 0.11 % 0.01 % 1.10 % ^ )^ ^ )^ ) ) ) Prime Money Market Fund Servicing Class (commenced operations on March 23, 1998)* 2012 + $ 1.00 $ 0.000 ^ $ (0.000 )^ $ 1.00 0.01 % $ 513,612 0.20 % 0.02 % 0.60 % ) )* ) ) ) Class N (commenced operations on October 18, 1999) 2012 + $ 1.00 $ 0.000 ^ $ (0.000 )^ $ 1.00 0.01 % $ 394,070 0.21 % 0.01 % 1.10 % ^ )^ ^ )*^ ) ) ) Class S (commenced operations on October 26, 1999) 2012 + $ 1.00 $ 0.000 ^ $ (0.000 )^ $ 1.00 0.01 % $ 233,688 0.21 % 0.01 % 1.10 % ^ ^ ^ )*^ ) ) ) California Tax Exempt Money Market Fund Servicing Class (commenced operations on April 3, 2000)* 2012 + $ 1.00 $ 0.000 ^ $ (0.000 )^ $ 1.00 0.01 % $ 125,470 0.09 % 0.01 % 0.62 % ^ )^ ^ )*^ ) ) ) Class N (commenced operations on June 21, 1999) 2012 + $ 1.00 $ 0.000 ^ $ (0.000 )^ $ 1.00 0.01 % $ 685,393 0.09 % 0.01 % 1.12 % ^ )^ ^ )*^ ) ) ) Class S (commenced operations on November 12, 1999) 2012 + $ 1.00 $ 0.000 ^ $ (0.000 )^ $ 1.00 0.01 % $ 69,246 0.09 % 0.01 % 1.12 % ^ )^ ^ )*^ ) ) ) + For the six months ended March 31, 2012. * Effective November 28, 2012, Institutional Class shares were redesignated as Servicing Class shares. This share class name change will have no impact on the Fund’s operation or investment policy. † Per share calculations are based on Average Shares outstanding throughout the period. ‡ Returns are for the period indicated and have not been annualized. Fee waivers are in effect; if they had not been in effect, performance would have been lower. Returns shown do not reflect the deduction of taxes that a shareholder would pay on fund distributions or the redemption of fund shares. ^ Amount represents less than $0.001. * Includes a realized capital gain distribution of less than $0.001. Annualized for periods less than one year. Ratio includes waivers and previously waived investment advisory fees recovered. The impact of the recovered fees may cause a higher net expense ratio. CNI CHARTER FUNDS | 79 financial highlights For a Share Outstanding Throughout Each Period For the six months ended March 31, 2012 (Unaudited) and the year ended September 30, Net Asset Value Beginning of Period Net Investment Income† Net Realized and Unrealized Gains (Losses) on Securities† Dividends From Net Investment Income Distrib-utions From Realized Capital Gains Net Asset Value End of Period Total Return‡ Net Assets End of Period (000) Ratio Of Expenses to Average Net Assets(1)(2) Ratio of Net Investment Income to Average Net Assets(1) Ratio of Expenses to Average Net Assets (Excluding Waivers & Recovered Fees)(1) Portfolio Turnover Rate Limited Maturity Fixed Income Fund Institutional Class (commenced operations on October 22,1988) 2012 + $ 11.15 $ 0.06 $ 0.04 $ (0.06 ) $ — $ 11.19 0.94 % $ 33,101 0.69 % 1.15 % 0.69 % 15 % ) ) — 50 ) — ) — 98 ) ) — 79 ) — 76 Class N (commenced operations on October 22, 2004) 2012 + $ 11.15 $ 0.05 $ 0.04 $ (0.05 ) $ — $ 11.19 0.81 % $ 5,935 0.94 % 0.90 % 1.19 % 15 % ) ) — 50 ) — ) — 98 ) ) — 79 ) — 76 Government Bond Fund Servicing Class (commenced operations on January 14, 2000)* 2012 + $ 10.75 $ 0.05 $ (0.04 ) $ (0.08 ) $ (0.01 ) $ 10.67 0.06 % $ 122,376 0.75 % 0.96 % 0.78 % 27 % ) — 86 ) — 93 ) — 85 ) — 36 ) — 83 Class N (commenced operations on April 13, 2000) 2012 + $ 10.77 $ 0.04 $ (0.05 ) $ (0.06 ) $ (0.01 ) $ 10.69 (0.07 )% $ 2,887 1.01 % 0.71 % 1.03 % 27 % ) — 86 ) — 93 ) — 85 ) — 36 ) — 83 Corporate Bond Fund Servicing Class (commenced operations on January 14, 2000)* 2012 + $ 10.58 $ 0.13 $ 0.22 $ (0.13 ) $ (0.05 ) $ 10.75 3.28 % $ 118,337 0.75 % 2.39 % 0.76 % 20 % ) ) — 40 ) — 28 ) — 30 ) ) — 12 — ) — 30 Class N (commenced operations on April 13, 2000) 2012 + $ 10.59 $ 0.11 $ 0.22 $ (0.11 ) $ (0.05 ) $ 10.76 3.15 % $ 2,482 1.00 % 2.15 % 1.01 % 20 % ) ) — ) 40 ) — 28 ) — 30 ) ) — ) 12 ) — 30 California Tax Exempt Bond Fund Servicing Class (commenced operations on January 14, 2000)* 2012 + $ 10.67 $ 0.13 $ 0.11 $ (0.13 ) $ (0.07 ) $ 10.71 2.29 % $ 53,854 0.56 % 2.46 % 0.62 % 16 % ) ) 26 ) — 28 ) — 50 ) ) — 55 ) ) — 43 Class N (commenced operations on April 13, 2000) 2012 + $ 10.70 $ 0.12 $ 0.11 $ (0.12 ) $ (0.07 ) $ 10.74 2.16 % $ 4,655 0.81 % 2.21 % 0.87 % 16 % ) ) 26 ) — 28 ) — 50 ) ) — 55 — ) — 43 + For the six months ended March 31, 2012. * Effective December 19, 2011, Institutional Class Shares were redesignated as Servicing Class Shares. This share class name change will have no impact on the Fund’s operation or investment policy. † Per share calculations are based on Average Shares outstanding throughout the period. ‡ Returns are for the period indicated and have not been annualized. Fee waivers are in effect; if they had not been in effect, performance would have been lower. Returns shown do not reflect the deduction of taxes that a shareholder would pay on fund distributions or the redemption of fund shares. Annualized for periods less than one year. Ratio includes waivers and previously waived investment advisory fees recovered. The impact of the recovered fees may cause a higher net expense ratio. Amounts designated as “—” are either $0 or have been rounded to $0. CNI CHARTER FUNDS | 80 financial highlights For a Share Outstanding Throughout Each Period For the six months ended March 31, 2012 (Unaudited) and the year ended September 30, Net Asset Value Beginning of Period Net Investment Income† Net Realized and Unrealized Gains (Losses) on Securities† Dividends From Net Investment Income Distrib-utions From Realized Capital Gains Net Asset Value End of Period Total Return‡ Net Assets End of Period (000) Ratio Of Expenses To Average Net Assets(1)(2) Ratio of Net Investment Income to Average Net Assets(1) Ratio of Expenses to Average Net Assets (Excluding Waivers & Recovered Fees)(1) Portfolio Turnover Rate Full Maturity Fixed Income Fund Institutional Class (commenced operations on October 20, 1988) 2012 + $ 10.91 $ 0.13 $ 0.02 $ (0.13 ) $ (0.14 ) $ 10.79 1.45 % $ 44,793 0.68 % 2.36 % 0.68 % 42 % ) ) 43 ) ) 63 ) — 56 ) ) — 34 — ) — 55 Class N (commenced operations on May 11, 2004) 2012 + $ 10.90 $ 0.11 $ 0.04 $ (0.12 ) $ (0.14 ) $ 10.79 1.42 % $ 376 0.93 % 2.12 % 1.18 % 42 % ) ) 43 ) ) 63 ) — 56 ) ) — 34 — ) — 55 High Yield Bond Fund Servicing Class (commenced operations on January 14, 2000)* 2012 + $ 7.98 $ 0.33 $ 0.49 $ (0.33 ) $ — $ 8.47 10.45 % $ 64,059 1.06 % 8.08 % 1.09 % 29 % ) ) — 56 ) — 87 ) — 59 ) ) — ) 20 ) ) — 26 Class N (commenced operations on January 14, 2000) 2012 + $ 7.98 $ 0.32 $ 0.49 $ (0.32 ) $ — $ 8.47 10.29 % $ 33,493 1.36 % 7.82 % 1.39 % 29 % ) ) — 56 ) — 87 ) — 59 ) ) — ) 20 ) ) — 26 Multi-Asset Fund Servicing Class (commenced operations on October 1, 2007)* 2012 + $ 9.88 $ 0.12 $ 0.54 $ (0.11 ) $ — $ 10.43 6.73 % $ 8,442 0.84 % 2.29 % 0.84 % 35 % ) ) — ) 67 ) — 76 ) — 94 ) ) — ) Class N (commenced operations on October 1, 2007) 2012 + $ 9.88 $ 0.11 $ 0.53 $ (0.11 ) $ — $ 10.41 6.48 % $ 26,694 1.09 % 2.15 % 1.10 % 35 % ) ) — ) 67 ) — 76 ) — 94 ) ) — ) Diversified Equity Fund Institutional Class (commenced operations on October 20, 1988) 2012 + $ 11.33 $ 0.03 $ 2.58 $ (0.03 ) $ — $ 13.91 23.10 % $ 44,327 0.93 % 0.47 % 0.93 % 52 % ) ) — ) )** — ) )*** — ) 93 ) Class N (commenced operations on December 30, 2002) 2012 + $ 11.37 $ 0.01 $ 2.59 $ (0.02 ) $ — $ 13.95 22.86 % $ 4,731 1.18 % 0.20 % 1.43 % 52 % ) ) — ) ) — ) ) — ) 93 ) + For the six months ended March 31, 2012. † Per share calculations are based on Average Shares outstanding throughout the period. ‡ Returns are for the period indicated and have not been annualized. Fee waivers are in effect; if they had not been in effect, performance would have been lower. Returns shown do not reflect the deduction of taxes that a shareholder would pay on fund distributions or the redemption of fund shares. * Effective December 19, 2011, Institutional Class Shares were redesignated as Servicing Class Shares. This share class name change will have no impact on the Fund’s operation or investment policy. ** Includes return of capital less than $0.01 per share. *** Includes return of capital of $0.01 per share. Annualized for periods less than one year. Ratio includes waivers and previously waived investment advisory fees recovered. The impact of the recovered fees may cause a higher net expense ratio. Amounts designated as “—” are either $0 or have been rounded to $0. CNI CHARTER FUNDS | 81 financial highlights For a Share Outstanding Throughout Each Period For the six months ended March 31, 2012 (Unaudited) and the year ended September 30, Net Asset Value Beginning of Period Net Investment Income (Loss)† Net Realized and Unrealized Gains (Losses) on Securities† Dividends From Net Investment Income Distrib-utions From Realized Capital Gains Net Asset Value End of Period Total Return‡ Net Assets End of Period (000) Ratio Of Expenses to Average Net Assets(1)(2) Ratio of Net Investment Income (Loss) to Average Net Assets(1) Ratio of Expenses to Average Net Assets (Excluding Waivers & Recovered Fees)(1) Portfolio Turnover Rate Large Cap Value Equity Fund Servicing Class (commenced operations on January 14, 2000)* 2012 + $ 7.41 $ 0.06 $ 1.60 $ (0.06 ) $ — $ 9.01 22.48 % $ 81,888 0.96 % 1.52 % 0.97 % 14 % ) ) — ) 43 ) — 26 ) ) — ) 18 ) 36 ) ) 24 Class N (commenced operations on April 13, 2000) 2012 + $ 7.40 $ 0.05 $ 1.59 $ (0.05 ) $ — $ 8.99 22.24 % $ 10,270 1.21 % 1.27 % 1.22 % 14 % ) ) — ) 43 ) — 26 ) ) — ) 18 ) 36 ) ) 24 Large Cap Growth Equity Fund Servicing Class (commenced operations on January 14, 2000)* 2012 + $ 7.44 $ 0.02 $ 1.90 $ (0.02 ) $ — $ 9.34 25.82 % $ 35,679 0.99 % 0.39 % 1.00 % 21 % ) ) — ) 82 ) — 61 ) ) — ) 12 ) ) — ) 26 ) — 30 Class N (commenced operations on March 28, 2000) 2012 + $ 7.35 $ 0.01 $ 1.88 $ — $ — $ 9.24 25.71 % $ 11,540 1.24 % 0.13 % 1.25 % 21 % ) ) )^ — ) ) 82 ) — 61 ) ) — ) 12 ) ) — ) 26 ) — 30 Socially Responsible Equity Fund Institutional Class (commenced operations on January 3, 2005) 2012 + $ 8.38 $ 0.07 $ 1.75 $ (0.07 ) $ — $ 10.13 21.74 % $ 78,259 0.90 % 1.50 % 0.90 % 14 % ) ) — ) 22 )** — 36 ) ) — ) 48 ) 41 ) ) 29 Class N (commenced operations on August 12, 2005) 2012 + $ 8.37 $ 0.07 $ 1.73 $ (0.06 ) $ — $ 10.11 21.53 % $ 24,439 1.15 % 1.49 % 1.40 % 14 % ) ) — ) 22 ) — 36 ) ) — ) 48 ) 41 ) ) 29 + For the six months ended March 31, 2012. † Per share calculations are based on Average Shares outstanding throughout the period. ‡ Returns are for the period indicated and have not been annualized. Fee waivers are in effect; if they had not been in effect, performance would have been lower. Total return figures do not include applicable sales loads. Returns shown do not reflect the deduction of taxes that a shareholder would pay on fund distributions or the redemption of fund shares. * Effective December 19, 2011, Institutional Class Shares were redesignated as Servicing Class Shares. This share class name change will have no impact on the Fund’s operation or investment policy. ** Includes return of capital less than $0.01 per share. ^ Amount represents less than $0.01 per share. Annualized for periods less than one year. Ratio includes waivers and previously waived investment advisory fees recovered. The impact of the recovered fees may cause a higher net expense ratio. Amounts designated as “—” are either $0 or have been rounded to $0. CNI CHARTER FUNDS | 82 important terms to know Barclays Capital CA Intermediate-Short Municipal Index — comprised of California state-specific municipal issues which have a fixed rate coupon, have between 1 and 10 years to maturity, an investment grade rating from Moody’s Investors Service or Standard & Poor’s (Baa3/BBB- or better), and are publicly registered. The individual issues must also have at least $7 million par outstanding and be part of a deal of $50 million or more. The composition of the Index is rebalanced monthly to include the universe of securities meeting the above criteria. Barclays Capital U.S. 1-5 Year Government Bond Index — an unmanaged index that includes U.S. Treasury and agency securities with remaining maturities of one to five years. Barclays Capital U.S. Aggregate Bond Index — an unmanaged index generally representing fixed-rate, investment-grade government bonds, corporate debt securities, mortgage-backed securities, and asset-backed securities with minimum maturity dates of at least one year. Barclays Capital U.S. Corporate 1-5 A3 or Higher, 2% Issuer Constrained Index — comprised of fixed income securities issued by corporations which have between 1 and 5 years to maturity, with a rating of A3 or higher. Barclays Capital U.S. Intermediate Corporate Bond Index — comprised of nonconvertible fixed income securities issued by corporations which have a fixed rate coupon, have between 1 and 10 years to maturity, at least $250 million par outstanding, an investment grade rating from Moody’s Investors Service, Standard & Poor’s or Fitch Ratings (Baa3/BBB-/BBB- or better), and are publicly registered. The composition of the Index is rebalanced monthly to include the universe of securities meeting the above criteria. Barclays Capital U.S. Intermediate Government Bond Index — comprised of nonconvertible securities issued by the U.S. government and U.S. government agencies which have a fixed rate coupon, between 1 and 10 years to maturity, and at least $250 million par outstanding. The composition of the Index is rebalanced monthly to include the universe of securities meeting the above criteria. Barclays Capital U.S. Intermediate Government/Credit Bond Index — a total return index comprised of investment grade corporate debt issues as well as debt issues of U.S. government agencies and the U.S. Treasury. The debt issues all maintain maturities within a range of 1 to 10 years. Barclays Capital U.S. TIPS Index — an unmanaged market index comprised of all U.S. Treasury Inflation Protected Securities rated investment grade (Baa3 or better), have at least one year to final maturity, and at least $250 million par amount outstanding. Citigroup High Yield Market Capped Index — uses the same basic composition as the Citigroup High Yield Market Index (which is comprised of cash-pay, deferred-interest securities and Rule 144A bonds of issuers domiciled in the United States or Canada with a minimum maturity of at least one year, a minimum amount outstanding of $100 million, and a speculative-grade rating by both Moody’s Investor Service and Standard & Poor’s), but caps the total debt of each individual issuer at $5 billion par outstanding and delays the entry of “fallen angels,” or issuers recently downgraded from investment grade to high yield, into the Index. CPI + 500 Basis Points — created by adding 5% to the annual percentage change in the Consumer Price Index (“CPI”). The CPI is an unmanaged index representing the rate of inflation of U.S. consumer prices as determined by the U.S. Bureau of Labor Statistics. Effective Yield — the interest rate, compounded weekly, you would receive if you kept your investment in a Fund for a year. Liquidity — the ability to turn investments into cash. BofA Merrill Lynch 1-3 Year US Treasury Index — a subset of the Merrill Lynch Treasury Master Index. The maturity range on the securities included in the Index is from 1 to 3 years. This Index is available on a monthly basis in price-only and total return versions. The value was set at 100 on 12/31/1975. BofA Merrill Lynch US 3-Month Treasury Bill Index — comprised of a single issue purchased at the beginning of the month and held for a full month. Each month the Index is rebalanced and the issue selected is the outstanding Treasury Bill that matures closest to, but not beyond, three months from the rebalancing date. MSCI KLD 400 Social Index — a free float-adjusted, market capitalization-weighted, common stock index of U.S. equities constructed using environmental, social and governance factors. In 2010, this index changed its name from the FTSE KLD 400 Social Index to the MSCI KLD 400 Social Index. Quality — the credit rating given to a security by a nationally recognized statistical rating organization. Russell 1000® Value Index — measures the performance of the large-cap value segment of the U.S. equity universe, including those Russell 1000 companies with lower price-to-book ratios and lower expected growth values. The Russell 1000® Value Index is constructed to provide a comprehensive and unbiased barometer for the large-cap value segment. The Index is completely reconstituted annually to ensure new and growing equities are included and that the represented companies continue to reflect value characteristics. S&P 500® Growth Index — measures the performance of all of the stocks in the S&P 500® Index that have growth characteristics. A proprietary methodology is used to score constituents, which are weighted according to their market capitalization. S&P 500® Value Index — measures the performance of all of the stocks in the S&P 500® Index that have value characteristics. A proprietary methodology is used to score constituents, which are weighted according to their market capitalization. S&P 500® Index — a broad market-weighted average of U.S. blue-chip companies. Yield — the interest rate you would receive if you kept your investment in a Fund for a year. It is based on the current interest rate for a trailing seven-day period. CNI CHARTER FUNDS | 83 privacy principles CNI Charter Funds and its affiliates know our shareholders expect and rely upon us to maintain the confidentiality and privacy of all of the information about them in our possession and control. Maintaining the trust and confidence of our shareholders is our highest priority. We have adopted and published the CNI Charter Funds Statement of Privacy Principles to guide our conduct when we collect, use, maintain or release shareholder information and to assist our shareholders and others to better understand our privacy practices in general and as they apply to nonpublic personal information in particular. Certain information regarding the Funds’ Privacy Principles is summarized below. We will obey all applicable laws respecting the privacy of nonpublic personal information and will comply with the obligations of the law respecting nonpublic personal information provided to us. We collect, use and retain the information, including nonpublic personal information, about our shareholders and prospective shareholders that we believe is necessary for us to understand and better meet their financial needs and requests, to administer and maintain their accounts, to provide them with our products and services, to anticipate their future needs, to protect them and us from fraud or unauthorized transactions, and to meet legal requirements. We may share information regarding our shareholders with our affiliates as permitted by law because some of our products and services are delivered through or in conjunction with our affiliates. We instruct our colleagues to limit the availability of all shareholder information within our organization to those colleagues responsible for servicing the needs of the shareholder and those colleagues who reasonably need such information to perform their duties and as required or permitted by law. We do provide shareholder information, including nonpublic personal information, to our vendors and other outside service providers whom we use when appropriate or necessary to perform and enhance our shareholder services. When we provide shareholder information to anyone outside our organization, we only do so as required or permitted by law. We require all of our vendors and service providers who receive shareholder information from us to agree to maintain the information in confidence, to limit the use and dissemination of the information to the purpose for which it is provided and to abide by the law. To the extent permitted by law, we undertake to advise a shareholder of any government or other legal process served on us requiring disclosure of information about that shareholder. Except as stated above, we limit our disclosure of nonpublic personal information to third parties to the following circumstances: (i) when requested to do so by the shareholder; (ii) when necessary, in our opinion, to effect, administer, or enforce a shareholder initiated transaction; and (iii) when required or permitted to do so by law or regulation, including authorized requests from government agencies and if we are the victim of fraud or otherwise suffer loss caused by the unlawful act of the shareholder. A full copy of the CNI Charter Funds’ Statement of Privacy Principles is available at www.cnicharterfunds.com. Should you have any questions regarding the Funds’ Privacy Principles, please contact your investment professional or the Funds at 1-888-889-0799. CNI CHARTER FUNDS | 84 for more information CNI CHARTER FUNDS Additional information is available free of charge in the Statement of Additional Information (“SAI”) for the Funds. The SAI is incorporated by reference (legally considered part of this document). In the Annual Report for the Funds, you will find a discussion of the market conditions and investment strategies that significantly affected the Funds’ performance during their last fiscal year. Additional information about the Funds’ investments is available in the Funds’ Annual and Semi-Annual Reports. To receive a free copy of this Prospectus, the SAI, or the Annual and Semi-Annual Reports, please visit the Funds’ website at www.cnicharterfunds.com or contact: SEI Investments Distribution Co. One Freedom Valley Drive Oaks, Pennsylvania 19456 1-888-889-0799 To reduce expenses, we may mail only one copy of the Funds’ Prospectus and each Annual and Semi-Annual Report to those addresses shared by two or more accounts. If you wish to receive individual copies of these documents, please call us at 1-888-889-0799 (or contact your Authorized Institution, as applicable). We will begin sending you individual copies 30 days after receiving your request. Information about the Funds may be reviewed and copied: • at the SEC’s Public Reference Room in Washington, D.C. at 1-202-551-8090; • on the EDGAR database on the SEC’s website at www.sec.gov; or • by written request (including duplication fee) to the Public Reference Section of the SEC, Washington, D.C. 20549-6009 or by electronic request at publicinfo@sec.gov. For the current seven-day yield, or if you have questions about the Funds, please call 1-888-889-0799. A description of the Funds’ policies and procedures with respect to the disclosure of the Funds’ portfolio securities is available in the SAI. The Funds’ Investment Company Act file number: 811-07923. CNI-PS-018-0500 Government Money Market Fund Prime Money Market Fund California Tax Exempt Money Market Fund Limited Maturity Fixed Income Fund Government Bond Fund Corporate Bond Fund California Tax Exempt Bond Fund Full Maturity Fixed Income Fund High Yield Bond Fund Multi-Asset Fund U.S. Core Equity Fund Diversified Equity Fund Large Cap Value Equity Fund Large Cap Growth Equity Fund Socially Responsible Equity Fund STATEMENT OF ADDITIONAL INFORMATION CNI CHARTER FUNDS 400 North Roxbury Drive, Beverly Hills, California 90210 GOVERNMENT MONEY MARKET FUND ServicingClass (CNIXX) Class N (CNGXX) Class S (CNFXX) PRIME MONEY MARKET FUND Institutional Class (CNRPX) ServicingClass (CNMXX) Class N (CNPXX) Class S (CNSXX) CALIFORNIA TAX EXEMPT MONEY MARKET FUND ServicingClass (CNTXX) Class N (CNEXX) Class S (CEMXX) LIMITED MATURITY FIXED INCOME FUND Institutional Class (AHLFX) Class N (AHALX) GOVERNMENT BOND FUND Institutional Class (CNIGX) Servicing Class (CNBIX) Class N (CGBAX) CORPORATE BOND FUND Servicing Class (CNCIX) Class N (CCBAX) CALIFORNIA TAX EXEMPT BOND FUND Servicing Class (CNTIX) Class N (CCTEX) FULL MATURITY FIXED INCOME FUND Institutional Class (AHFMX) Class N (AHAFX) HIGH YIELD BOND FUND Institutional Class (CNIHX) Servicing Class (CHYIX) Class N (CHBAX) MULTI-ASSET FUND Institutional Class (CNIMX) Servicing Class (CNIIX) Class N (CNIAX) U.S. CORE EQUITY FUND Institutional Class (CNRUX) Servicing Class (CNRVX) Class N (CNRWX) DIVERSIFIED EQUITY FUND Institutional Class (AHDEX) Class N (AHADX) LARGE CAP VALUE EQUITY FUND Institutional Class (CNILX) Servicing Class (CNLIX) Class N (CVEAX) LARGE CAP GROWTH EQUITY FUND Servicing Class (CNGIX) Class N (CLEAX) SOCIALLY RESPONSIBLE EQUITY FUND Institutional Class (AHSRX) Class N (AHRAX) November 28, 2012 CNI-SX-007-0500 Mutual fund shares are not insured or guaranteed by the U.S. Government, the Federal Deposit Insurance Corporation or any other governmental agency. Mutual fund shares are not bank deposits, nor are they obligations of, or issued, endorsed or guaranteed by City National Bank (“CNB”). Investing in mutual funds and other securities involves risks, including possible loss of principal. This Statement of Additional Information (“SAI”) is not a prospectus. It should be read in conjunction with the prospectus dated November 28, 2012, which may be amended from time to time (the “Prospectus”), for the Government Money Market Fund (the “Government Money Fund”), the Prime Money Market Fund (the “Prime Money Fund”), the California Tax Exempt Money Market Fund (the “California Money Fund”), the Limited Maturity Fixed Income Fund (the “Limited Maturity Fund”), the Government Bond Fund, the Corporate Bond Fund, the California Tax Exempt Bond Fund (the “California Bond Fund”), the Full Maturity Fixed Income Fund (the “Full Maturity Fund”), the High Yield Bond Fund, the Multi-Asset Fund, the U.S. Core Equity Fund, the Diversified Equity Fund, the Large Cap Value Equity Fund (the “Large Cap Value Fund”), the Large Cap Growth Equity Fund (the “Large Cap Growth Fund”) and the Socially Responsible Equity Fund. The U.S. Core Equity Fund, the Diversified Equity Fund, the Large Cap Growth Fund, the Large Cap Value Fund and the Socially Responsible Equity Fund are referred to herein as the “Equity Funds.” The Limited Maturity Fund, the Government Bond Fund, the Corporate Bond Fund, the California Bond Fund, the Full Maturity Fund and the High Yield Bond Fund are referred to herein as the “Bond Funds.” The Government Money Fund, the Prime Money Fund and the California Money Fund are referred to herein as the “Money Market Funds.” The Equity Funds, the Bond Funds, the Money Market Funds and the Multi-Asset Fund are referred to herein as the “Funds.” Each Fund is a series of CNI Charter Funds (the “Trust”), an open-end, management investment company. Audited financial statements for each of the Funds contained in the Annual Report to Shareholders of the Trust for the fiscal year ended September 30, 2011, are incorporated herein by reference. To obtain a free copy of the above-referenced Prospectus or Annual Report for the Trust, please call 1-888-889-0799 or visit www.cnicharterfunds.com. TABLE OF CONTENTS THE FUNDS 1 INVESTMENT TECHNIQUES AND RISK CONSIDERATIONS 2 INVESTMENT RESTRICTIONS 44 MANAGEMENT OF THE TRUST 52 PORTFOLIO TRANSACTIONS 74 DISTRIBUTIONS AND TAXES 77 SHARE PRICE CALCULATION 86 DISTRIBUTION PLAN 88 SHAREHOLDER SERVICES AGREEMENT 89 EXPENSES 92 CODES OF ETHICS 92 DISCLOSURE OF PORTFOLIO HOLDINGS 92 PROXY VOTING 94 GENERAL INFORMATION 94 CONTROL PERSONS AND PRINCIPAL HOLDERS OF SECURITIES 95 PERFORMANCE INFORMATION 107 PURCHASE AND REDEMPTION OF SHARES OTHER INFORMATION 111 FINANCIAL STATEMENTS 111 APPENDIX A – RATINGS OF INVESTMENT SECURITIES A-1 APPENDIX B – PROXY VOTING POLICIES B-1 i THE FUNDS The various classes of shares of each Fund commenced operations on the following dates: Fund Institutional Class Servicing Class Class N Class S Government Money Fund N/A 4/3/00 6/21/99 10/6/99 Prime Money Fund 11/28/12 3/23/98 10/18/99 10/26/99 California Money Fund N/A 4/3/00 6/21/99 11/12/99 Limited Maturity Fund(1) 11/22/88 N/A 10/22/04 N/A Government Bond Fund 12/19/11 1/14/00 4/13/00 N/A Corporate Bond Fund N/A 1/14/00 4/13/00 N/A California Bond Fund N/A 1/14/00 4/13/00 N/A Full Maturity Fund(1) 10/20/88 N/A 5/11/04 N/A High Yield Bond Fund 12/19/11 1/14/00 1/14/00 N/A Multi-Asset Fund 12/19/11 10/1/07 10/1/07 N/A U.S. Core Equity Fund 11/30/12 11/30/12 11/30/12 N/A Diversified Equity Fund(1) 10/20/88 N/A 12/30/02 N/A Large Cap Value Fund 12/19/11 1/14/00 4/13/00 N/A Large Cap Growth Fund N/A 1/14/00 3/28/00 N/A Socially Responsible Equity Fund(1) 1/3/05 N/A 8/12/05 N/A For each of the Limited Maturity Fund, the Full Maturity Fund, the Diversified Equity Fund and the Socially Responsible Equity Fund, the inception dates shown above reflect the inception date of the corresponding share class of its Predecessor Fund, as defined below. Each of the Limited Maturity Fund, the Full Maturity Fund, the Diversified Equity Fund and the Socially Responsible Equity Fund commenced operations on September 30, 2005, the date of the acquisition of the assets and liabilities of each corresponding series (each a “Predecessor Fund” and collectively the “Predecessor Funds”) of AHA Investment Funds, Inc., a registered investment company organized on March 14, 1988. As of the date of the acquisition, all of the holders of issued and outstanding Class A and Class I shares of each Predecessor Fund received Class A and Institutional Class shares, as applicable, of the corresponding Fund. Each Fund has the same investment objective, policies and strategies as the corresponding Predecessor Fund. As compared to the Funds, the Predecessor Funds had a different board of directors and some different service providers. In addition, the Predecessor Funds’ fiscal year ended June 30, while the Funds’ fiscal year ends September 30. Effective January 31, 2008, Class A shares of the Funds were redesignated as Class N shares, except that Class A shares of the Predecessor Funds were redesignated as Class N shares effective October 17, 2007. There were no changes to the rights, fees or expenses of the Class A shares or services provided to Class A shareholders in connection with the change of designation to Class N. Effective December 19, 2011, the then-existing Institutional Class shares of each of the Government Bond Fund, Corporate Bond Fund, California Bond Fund, High Yield Bond Fund, Multi-Asset Fund, Large Cap Value Fund and Large Cap Growth Fund were redesignated as Servicing Class shares.There were no changes to the rights, fees or expenses of the Institutional Class shares or services provided to Institutional Class shareholders in connection with the change of designation to Servicing Class.The current Institutional Class shares of the Government Bond Fund, High Yield Bond Fund, Multi-Asset Fund and Large Cap Value Fund were initially offered in December 2011. Effective November 28, 2012, the then-existing Institutional Class shares of each of the Government Money Market Fund, Prime Money Market Fund and California Tax Exempt Money Market Fund were redesignated as 1 Servicing Class shares.There were no changes to the rights, fees or expenses of the Institutional Class shares or services provided to Institutional Class shareholders in connection with the change of designation to Servicing Class.The current Institutional Class shares of the Prime Money Market Fund were initially offered in November 28, 2012. Each Fund (other than the California Bond Fund) is a diversified fund, which means that it may not, with respect to 75% of its total assets, invest more than 5% of its total assets in the securities of one issuer and in not more than 10% of the outstanding voting securities of an issuer.These limits do not apply to cash, Government securities, and securities of other investment companies. The California Bond Fund is a non-diversified fund, which means it is not subject to the diversification requirements described above. However, the California Bond Fund intends to diversify its assets to the extent necessary to qualify for tax treatment as a regulated investment company under the Internal Revenue Code of 1986, as amended (the “Code”). City National Asset Management, Inc. (“CNAM” or the “Investment Manager”) serves as investment manager to the Funds. As the investment adviser, CNAM allocates portions of the assets of the Full Maturity Fund, the High Yield Bond Fund, the Diversified Equity Fund and the Socially Responsible Equity Fund among one or more of Guggenheim Partners Investment Management, LLC (“Guggenheim”), Robert W. Baird & Co. Incorporated (“Baird”), SKBA Capital Management, LLC (“SKBA”), Boyd Watterson Asset Management LLC (“Boyd Watterson”) and Turner Investments, L.P. (“Turner”) (each a “Sub-Adviser” and collectively the “Sub-Advisers”) and any other sub-adviser which it may engage, subject to approval by the Trust’s Board of Trustees. Each of the Sub-Advisers serves as a sub-adviser to one or more of the Funds, as described more fully below. INVESTMENT TECHNIQUES AND RISK CONSIDERATIONS The Prospectus describes the principal and material non-principal strategies and risks of investing in each Fund. This SAI provides additional information about the Funds’ principal strategies and risks and further describes non-principal strategies and risks of the Funds that an investor should also consider. In recent years, the equity and debt capital markets in the United States and internationally have experienced unprecedented volatility. This caused a significant decline in the value and liquidity of many securities. These market conditions may continue or get worse. Because the situation is unprecedented and widespread, it may be unusually difficult to identify both risks and opportunities using past models of the interplay of market forces, or to predict the duration of these events. MONEY MARKET FUNDS Government Money Fund. It is a fundamental policy of the Government Money Fund to invest, under normal conditions, only in (1) U.S. Treasury obligations, (2) obligations issued or guaranteed as to principal and interest by the agencies or instrumentalities of the U.S. Government, and (3) repurchase agreements involving these obligations. Prime Money Fund. The Prime Money Fund invests generally in the following types of U.S. Dollar-denominated money market instruments, which are deemed to mature in 397 days or less in accordance with federal securities regulations and which CNAM has determined present minimal credit risk: • Commercial paper, including asset-backed commercial paper, rated in the highest rating category by Moody’s Investors Service, Inc. (“Moody’s”), Standard and Poor’s Corporation (“S&P”), Fitch Ratings (“Fitch”), or any other nationally recognized statistical rating organization (“NRSRO”); or commercial paper or notes of issuers with an unsecured debt issue outstanding currently rated in the highest rating category by any NRSRO where the obligation is on the same or a higher level of priority and collateralized to the same extent as the rated issue. 2 • Other corporate obligations such as publicly traded bonds, debentures, and notes rated in the highest rating category by any NRSRO and other similar securities which, if unrated by any NRSRO, are determined by the Investment Manager, using guidelines approved by the Board of Trustees of the Trust (the “Board of Trustees” or the “Board”), to be at least equal in quality to one or more of the above referenced securities. • Obligations of, or guaranteed by, the U.S. or Canadian governments, their agencies or instrumentalities. • Repurchase agreements involving obligations that are suitable for investment under the categories listed above. • Certificates of deposit, time deposits, notes and bankers’ acceptances of U.S. domestic banks (including their foreign branches), Canadian chartered banks, U.S. branches of foreign banks and foreign branches of foreign banks having total assets of $5 billion or greater. California Money Fund. It is a fundamental policy of the California Money Fund to invest, under normal conditions, at least 80% of its net assets in municipal securities that pay interest that, in the opinion of bond counsel, is exempt from federal and California state personal income tax and that is not a preference item for purposes of the federal alternative minimum tax (the “AMT”). These constitute municipal obligations of the State of California and its political subdivisions of municipal authorities and municipal obligations issued by territories or possessions of the United States. The California Money Fund may invest, under normal conditions, up to 20% of its net assets in (1) municipal securities the interest on which is a preference item for purposes of the AMT (although the California Money Fund has no present intention of investing in such securities), and (2) taxable investments. The California Money Fund will not invest 25% or more of its total assets in municipal securities the interest on which is derived from revenues of similar type projects. This restriction does not apply to municipal securities in any of the following categories: public housing authorities, general obligations of states and localities, state and local housing finance authorities, or municipal utilities systems. Money Market Fund Risks. The Money Market Funds will invest in securities which the Investment Manager has determined, according to procedures approved by the Board and factors set forth under Rule 2a-7 under the Investment Company Act of 1940, as amended (the “1940 Act”), to present minimal credit risk. The ratings assigned to commercial paper and other corporate obligations, as well as the guidelines approved by the Board, are intended to enable the Investment Manager to minimize the credit risk with respect to the securities in the Money Market Funds’ portfolios, but there can be no absolute assurance that the Investment Manager will be successful in this regard. If issuer defaults nevertheless occur representing a sufficiently large portion of a Money Market Fund’s portfolio, the Money Market Fund may be unable to maintain stable net asset values of $1.00 per share. CALIFORNIA BOND FUND The California Bond Fund invests in obligations either issued by or on behalf of states, territories and possessions of the United States and the District of Columbia and their political subdivisions, agencies, authorities and instrumentalities, including industrial development bonds, as well as obligations of certain agencies and instrumentalities of the U.S. Government – in each case that pay interest that, in the opinion of bond counsel to the issuer, is exempt from federal income tax (“Municipal Securities”) or exempt from federal and California personal income tax (“California Municipal Securities”). Thus, this Fund generally will have a lower return than if it primarily purchases higher yielding taxable securities. Generally, the value of the Municipal Securities and California Municipal Securities held by this Fund will fluctuate inversely with interest rates. The California Bond Fund is a “non-diversified” investment company under the 1940 Act. However, the Fund is subject to diversification requirements under the Code, which means that, with respect to 50% of its total assets, it 3 may not invest more than 5% of its total assets in the securities of any one issuer (other than the U.S. Government). The balance of its total assets may be invested in as few as two issuers. Thus, up to 25% of the Fund’s total assets may be invested in the securities of any one issuer. For purposes of this limitation, a security is considered to be issued by the governmental entity (or entities) the assets and revenues of which back the security, or, with respect to an industrial development bond, that is backed only by the assets and revenues of a non-governmental user, by such non-governmental user. In certain circumstances, the guarantor of a guaranteed security also may be considered to be an issuer in connection with such guarantee. By investing in a portfolio of municipal securities, a shareholder in the California Bond Fund enjoys greater diversification than an investor holding a single municipal security. The investment return on a non-diversified portfolio, however, typically is dependent upon the performance of a smaller number of issuers relative to the number of issuers held in a diversified portfolio. If the financial condition or market assessment of certain issuers changes, this Fund’s policy of acquiring large positions in the obligations of a relatively small number of issuers may affect the value of its portfolio to a greater extent than if its portfolio were fully diversified. MULTI-ASSET FUND The Multi-Asset Fund invests primarily in shares of other open-end and closed-end investment companies (each, an “Underlying Fund”), including affiliated funds (i.e., the Money Market Funds, Bond Funds and Equity Funds) to the extent permitted by applicable law and subject to certain restrictions set forth in this SAI. The affiliated funds in which the Multi-Asset Fund intends to invest a portion of its assets are the Corporate Bond Fund, Government Bond Fund and High Yield Bond Fund (together, the “Affiliated Underlying Funds”), each of which is managed by the Investment Manager. Generally, under the 1940 Act and Securities and Exchange Commission (“SEC”) rules adopted pursuant to the 1940 Act, the Multi-Asset Fund’s acquisition of the securities of affiliated and unaffiliated funds is subject to the following guidelines and restrictions: • The Multi-Asset Fund may own an unlimited amount of any affiliated fund’s voting securities. • The Multi-Asset Fund and its “affiliated persons” may own no more than 3% of an unaffiliated fund’s voting securities, subject to the following restrictions: • the Multi-Asset Fund and the Underlying Fund, in the aggregate, may not charge a sales load greater than the limits set forth in Rule 2830(d)(3) of the Conduct Rules of the Financial Industry Regulatory Authority, Inc. (“FINRA”) applicable to funds of funds; • the Underlying Fund is not obligated to redeem more than 1% of its total outstanding securities during any period less than 30 days; and • the purchase or acquisition of the Underlying Fund is made pursuant to an arrangement with the Underlying Fund or its principal underwriter whereby the Multi-Asset Fund is obligated either to (i) seek instructions from its shareholders regarding the voting of all proxies with respect to the Underlying Fund and to vote in accordance with such instructions, or (ii) to vote the shares of the Underlying Fund held by the Multi-Asset Fund in the same proportion as the vote of all other shareholders of the Underlying Fund. • The sales load and distribution fees paid by the Multi-Asset Fund with respect to an Underlying Fund, aggregated with any distribution fees of the Multi-Asset Fund, may not be excessive under FINRA rules. • Any Underlying Fund must have a policy that prohibits it from acquiring any securities of registered open-end funds or registered unit investment trusts in reliance on certain sections of the 1940 Act. Underlying Funds typically incur fees that are separate from those fees incurred directly by the Multi-Asset Fund. The Multi-Asset Fund’s purchase of such investment company securities results in the layering of expenses as 4 Multi-Asset Fund shareholders would indirectly bear a proportionate share of the operating expenses of such investment companies, including advisory fees, in addition to paying Fund expenses. Under certain circumstances an open-end investment company in which the Multi-Asset Fund invests may determine to make payment of a redemption by the Multi-Asset Fund wholly or in part by a distribution in kind of securities from its portfolio, instead of in cash. As a result, the Multi-Asset Fund may hold such securities until the Investment Manager determines it is appropriate to dispose of them. Such disposition will impose additional costs on the Fund. Investment decisions by the investment advisers to the registered investment companies in which the Fund invests are made independently of the Multi-Asset Fund. At any particular time, one Underlying Fund may be purchasing shares of an issuer whose shares are being sold by another Underlying Fund. As a result, under these circumstances the Multi-Asset Fund indirectly would incur certain transactional costs without accomplishing any investment purpose. PERMITTED INVESTMENTS Investments by the Funds may include the following types of securities. With respect to the Multi-Asset Fund, references in this section to investments by a Fund include the Multi-Asset Fund’s “direct” investments as well as its “indirect” investments (i.e., investments by its Underlying Funds). Equity Securities. The Equity Funds and the Multi-Asset Fund will (as a principal investment strategy), and the Bond Funds may (as a non-principal investment strategy), invest in equity securities. Equity securities represent ownership interests in a company or corporation, and include common stock, preferred stock, warrants and other rights to acquire such instruments. Holders of equity securities are not creditors of the issuer and, in the event the issuer is liquidated, would be entitled to their pro rata share of the issuer’s asset, if any, after creditors (including the holders of fixed income securities and senior equity securities) are paid. Investments in equity securities in general are subject to market risks and fluctuation in value due to earnings, economic conditions and other factors that may cause their prices to fluctuate over time. The value of convertible equity securities is also affected by prevailing interest rates, the credit quality of the issuer and any call provisions. Fluctuations in the values of equity securities in which a Fund invests will cause the net asset value of the Fund to fluctuate. Investments in small or middle capitalization companies involve greater risk than is customarily associated with larger, more established companies due to the greater business risks of small size, limited markets and financial resources, narrow product lines and the frequent lack of depth of management. The securities of small- or medium-sized companies are often traded over-the-counter, and may not be traded in volumes typical of securities traded on a national securities exchange. Consequently, the securities of smaller companies may have limited market stability and may be subject to more abrupt or erratic market movements than securities of larger, more established companies or the market averages in general. Preferred stock is a blend of the characteristics of a bond and common stock. It can offer the higher yield of a bond and has priority over common stock in equity ownership, but does not have the seniority of a bond and, unlike common stock, it ordinarily does not have voting rights and its participation in the issuer’s growth may be limited. Preferred stock has preference over common stock in the receipt of dividends and in any residual assets after payment to creditors should the issuer be dissolved. Although the dividend is set at a fixed annual rate, in some circumstances it can be changed or omitted by the issuer.The market prices of preferred stocks are subject to changes in interest rates and are more sensitive to changes in the issuer’s creditworthiness than are the prices of debt securities. Warrants and rights permit, but do not obligate, their holder to subscribe for other securities.Warrants and rights are subject to the same market risk as stocks, but may be more volatile in price.In addition, the value of a warrant or right does not necessarily change with the value of the underlying securities and will cease to have value if it is not exercised prior to its expiration date. 5 Fixed Income Securities. The Money Market Funds, the Bond Funds and the Multi-Asset Fund will (as a principal investment strategy), and the Equity Funds may (as a non-principal investment strategy), invest in fixed income securities. Fixed income securities are debt obligations issued by the U.S. Government and its agencies, corporations, municipalities and other borrowers. The market values of the Funds’ fixed income investments will change in response to interest rate changes and other factors. During periods of falling interest rates, the values of outstanding fixed income securities generally rise. Conversely, during periods of rising interest rates, the values of such securities generally decline. These fluctuations will generally be greater for longer-term securities than for shorter-term securities. Investors should recognize that, in periods of declining interest rates, the returns of the Funds which invest in debt securities will tend to be somewhat higher than prevailing market rates, and in periods of rising interest rates, the returns of the Funds which invest in debt securities will tend to be somewhat lower. Also, when interest rates are falling, the inflow of net new money to the Funds from the continuous sale of their shares will likely be invested in portfolio instruments producing lower yields than the balance of the portfolios, thereby reducing these Funds’ current returns. In periods of rising interest rates, the opposite can be expected to occur. Changes in the ability of an issuer to make payments of interest and principal when due, in the market’s perception of the issuer’s creditworthiness, and in the rating of any fixed income security by NRSROs also affect the market value of that issuer’s debt securities. Changes in the value of portfolio securities will not necessarily affect cash income derived from these securities, but will affect the Funds’ net asset values. See attached Appendix A for a discussion of fixed income ratings. These Funds’ performance also may be affected by changes in market or economic conditions and other circumstances affecting the financial services industry. Government regulation of banks, savings and loan associations, and finance companies may limit both the amounts and types of loans and other financial commitments these entities can make and the interest rates and fees they can charge. The profitability of the financial services industry, which is largely dependent on the availability and cost of capital funds, has fluctuated in response to volatility in interest rate levels. In addition, the financial services industry is subject to risks resulting from general economic conditions and the potential exposure to credit losses. ETFs. The Multi-Asset Fund will (as a principal investment strategy), and the Government Bond Fund, the Corporate Bond Fund, the California Bond Fund, the High Yield Bond Fund, the U.S. Core Equity Fund, the Large Cap Value Fund and the Large Cap Growth Fund may (as a non-principal investment strategy), invest in exchange-traded funds (“ETFs”), which are registered investment companies that generally seek to track the performance of specific indices. ETFs, such as Barclays Global Investors’ iShares funds, Standard & Poor’s Depository Receipts (“SPDRs”), NASDAQ-100 Index Tracking Stock (“NASDAQ 100s”) and Dow Jones DIAMONDS (“Diamonds”), may be organized as open-end funds or as unit investment trusts (“UITs”). Their shares are listed on stock exchanges and can be traded throughout the day at market-determined prices. iShares, SPDRs, NASDAQ 100s and DIAMONDS are listed on the American Stock Exchange. An ETF generally issues index-based investments in aggregations of 50,000 shares known as “Creation Units” in exchange for a “Portfolio Deposit” consisting of (a) a portfolio of securities substantially similar to the component securities (“Index Securities”) of the applicable index (the “Index”), (b) a cash payment equal to a pro rata portion of the dividends accrued on the ETF’s portfolio securities since the last dividend payment by the ETF, net of expenses and liabilities, and (c) a cash payment or credit (“Balancing Amount”) designed to equalize the net asset value of the Index and the net asset value of a Portfolio Deposit. Shares of ETFs are not individually redeemable, except upon termination of the ETF. To redeem shares of an ETF, an investor must accumulate enough shares of the ETF to reconstitute a Creation Unit. The liquidity of small holdings of ETF shares, therefore, will depend upon the existence of a secondary market for such shares. Upon redemption of a Creation Unit, the portfolio will receive Index Securities and cash identical to the Portfolio Deposit required of an investor wishing to purchase a Creation Unit that day. The price of ETF shares is based upon (but not necessarily identical to) the value of the securities held by the ETF. Accordingly, the level of risk involved in the purchase or sale of ETF shares is similar to the risk involved in 6 the purchase or sale of traditional common stock, with the exception that the pricing mechanism for ETF shares is based on a basket of stocks. Disruptions in the markets for the securities underlying ETF shares purchased or sold by the Fund could result in losses on such shares. There is no assurance that the requirements of the national securities exchanges necessary to maintain the listing of shares of any ETF will continue to be met. A Fund’s investments in any ETF may be limited by the 1940 Act and SEC rules.See “Investment Company Shares” below. Corporate Bonds. The Government Money Fund, the Prime Money Fund, the Limited Maturity Fund, the Corporate Bond Fund, the Full Maturity Fund and the High Yield Bond Fund (as a principal investment strategy) and the California Money Fund, the Government Bond Fund, the California Bond Fund, the Multi-Asset Fund and the Equity Funds (as a non-principal investment strategy) may invest in corporate bonds. Corporations issue bonds and notes to raise money for working capital or for capital expenditures such as plant construction, equipment purchases and expansion. In return for the money loaned to the corporation by shareholders, the corporation promises to pay bondholders interest and to repay the principal amount of the bond or note. Low Grade, High Yield Debt. The High Yield Bond Fund will (as a principal investment strategy), and the Government Bond Fund, the Corporate Bond Fund, the California Bond Fund, the Multi-Asset Fund, the Large Cap Value Fund and the Large Cap Growth Fund may (as a non-principal investment strategy), invest in low grade, high yield debt. There is no bottom limit on the ratings of high yield securities that may be purchased or held by the Funds. In addition, those Funds may invest in unrated securities. Lower rated securities are defined as securities below the fourth highest rating category by an NRSRO, as discussed in Appendix A. Such obligations are speculative and may be in default. Fixed income securities are subject to the risk of an issuer’s ability to meet principal and interest payments on the obligation (credit risk), and may also be subject to price volatility due to such factors as interest rate sensitivity, market perception of the creditworthiness of the issuer and general market liquidity (market risk). Lower rated or unrated (i.e., high yield) securities are more likely to react to developments affecting market and credit risk than are more highly rated securities, which primarily react to movements in the general level of interest rates.Like all fixed income securities, the market values of high yield securities tend to vary inversely with the level of interest rates. Yields and market values of high yield securities will fluctuate over time, reflecting not only changing interest rates but the market’s perception of credit quality and the outlook for economic growth. When economic conditions appear to be deteriorating, medium to lower rated securities may decline in value due to heightened concern over credit quality, regardless of prevailing interest rates. The risk of loss because of default by issuers of high yield securities is generally greater because medium and lower rated securities generally are unsecured and frequently subordinated to the prior payment of senior indebtedness.Investors should carefully consider the relative risks of investing in high yield securities and understand that such securities are not generally meant for short-term investing. Adverse economic developments can disrupt the market for high yield securities and severely affect the ability of issuers, especially highly leveraged issuers, to service their debt obligations or to repay their obligations upon maturity, which may lead to a higher incidence of default on such securities. In addition, the secondary market for high yield securities, which is concentrated in relatively few market makers, may not be as liquid as the secondary market for more highly rated securities. As a result, a Fund’s adviser could find it more difficult to sell these securities or may be able to sell the securities only at prices lower than if such securities were widely traded. Furthermore, the Trust may experience difficulty in valuing certain securities at certain times. Prices realized upon the sale of such lower rated or unrated securities, under these circumstances, may be less than the prices used in calculating the Fund’s net asset value. Prices for high yield securities may be affected by legislative and regulatory developments. These laws could adversely affect a Fund’s net asset value and investment practices, the secondary market value for high yield securities, the financial condition of issuers of these securities and the value of outstanding high yield securities. 7 Lower rated or unrated debt obligations also present risks based on payment expectations. If an issuer calls the obligations for redemption, a Fund may have to replace the security with a lower yielding security, resulting in a decreased return for investors. If the Fund experiences unexpected net redemptions, it may be forced to sell its higher rated securities, resulting in a decline in the overall credit quality of the Fund’s investment portfolio and increasing the exposure of the Fund to the risks of high yield securities. Subsequent to its purchase by a Fund, an issue of securities may cease to be rated or its rating may be reduced below the minimum required for purchase by the Fund.Neither such event will require sale of the securities by the Fund, although the Investment Manager (or the relevant Sub-adviser) will consider the event in determining whether the Fund should continue to hold the security. Variable and Floating Rate Instruments. The Money Market Funds, the Limited Maturity Fund and the Full Maturity Fund (as a principal investment strategy) and the Bond Funds (excluding the Limited Maturity Fund and the Full Maturity Fund), the Multi-Asset Fund and the Equity Funds (as a non-principal investment strategy) may invest in variable and floating rate instruments. Certain of the obligations purchased by the Funds may carry variable or floating rates of interest and may involve a conditional or unconditional demand feature. Such obligations may include variable amount master demand notes that permit the indebtedness thereunder to vary in addition to providing for periodic adjustments in the interest rate. Such instruments bear interest at rates which are not fixed, but which vary with changes in specified market rates or indices. The interest rates on these securities may be reset daily, weekly, quarterly or at some other interval, and may have a floor or ceiling on interest rate changes. There is a risk that the current interest rate on such obligations may not accurately reflect existing market interest rates. While such instruments may provide a Fund with a certain degree of protection against rising interest rates, the Fund will participate in any declines in interest rates as well.A demand instrument with a demand notice period exceeding seven days may be considered illiquid if there is no secondary market for such security.The absence of an active secondary market with respect to particular variable and floating rate instruments could make it difficult for a Fund to dispose of a variable or floating rate note if the issuer defaults on its payment obligation or during periods that the Fund is not entitled to exercise its demand rights. Convertible Securities and Warrants. The High Yield Bond Fund (as a principal investment strategy) and the remaining Bond Funds, the Multi-Asset Fund and the Equity Funds may (as a non-principal investment strategy) invest in convertible securities and warrants. A convertible security is a fixed income security (a debt instrument or a preferred stock) which may be converted at a stated price or stated rate within a specified period of time into a certain quantity of the common stock of the same or a different issuer. Convertible securities are senior to common stock in an issuer’s capital structure, but are usually subordinated to similar non-convertible securities. While providing a fixed income stream (generally higher in yield than the income derivable from common stock but lower than that afforded by a similar nonconvertible security), a convertible security also affords an investor the opportunity, through its conversion feature, to participate in the capital appreciation attendant upon a market price advance in the convertible security’s underlying common stock. Although to a lesser extent than with fixed income securities generally, the market value of convertible securities tends to decline as interest rates increase and, conversely, tends to increase as interest rates decline. In addition, because of the conversion feature, the market value of convertible securities tends to vary with fluctuations in the market value of the underlying common stocks and, therefore, also will react to variations in the general market for equity securities.A significant feature of convertible securities is that as the market price of the underlying common stock declines, convertible securities tend to trade increasingly on a yield basis, and so they may not experience market value declines to the same extent as the underlying common stock.When the market price of the underlying common stock increases, the prices of the convertible securities tend to rise as a reflection of the value of the underlying common stock. A warrant gives the holder a right to purchase at any time during a specified period a predetermined number of shares of common stock at a fixed price. Unlike convertible debt securities or preferred stock, warrants do not pay 8 fixed dividends. Investments in warrants involve certain risks, including the possible lack of a liquid market for resale of the warrants, potential price fluctuations as a result of speculation or other factors, and failure of the price of the underlying security to reach or have reasonable prospects of reaching a level at which the warrant can be prudently exercised (in which event the warrant may expire without being exercised, resulting in a loss of the Fund’s entire investment therein). Neither the Diversified Equity Fund nor the Socially Responsible Equity Fund may invest more than 5% of the value of the Fund’s total assets in warrants, including not more than 2% of such assets in warrants not listed on a U.S. stock exchange. Rights and warrants attached to, received in exchange for, or as a distribution on, other securities are not subject to this restriction. Commercial Paper and Other Short-Term Corporate Obligations. Each of the Money Market Funds, the Bond Funds and the Multi-Asset Fund may invest in commercial paper as a non-principal investment strategy. Commercial paper is a short-term, unsecured promissory note issued to finance short-term credit needs. Other short-term corporate obligations include variable amount master demand notes, which are obligations that permit a Fund to invest at varying rates of interest pursuant to direct arrangements between the Fund, as lender, and the borrower. These notes permit daily changes in the amounts borrowed. Because they are direct lending arrangements between the lender and borrower, such instruments generally will not be traded, and there generally is no established secondary market for these obligations, although they are redeemable at face value, plus accrued interest, at any time. If these obligations are not secured by letters of credit or other credit support arrangements, a Fund’s right to redeem its investment depends on the ability of the borrower to pay principal and interest on demand. The value of commercial paper and other securities in the Funds’ portfolios may be adversely affected by the inability of the issuers (or related supporting institutions) to make principal or interest payments on the obligations in a timely manner. Such obligations frequently are not rated by credit rating agencies. Section 4(2) Commercial Paper. The Money Market Funds (as a principal investment strategy) and the other Funds (as a non-principal investment strategy) may invest in Section 4(2) commercial paper. Section 4(2) commercial paper is issued in reliance on an exemption from registration under Section 4(2) of the Securities Act of 1933, as amended (the “1933 Act”). Any resale of such commercial paper must be in an exempt transaction, usually to an institutional investor through the issuer or investment dealers who make a market in such commercial paper. Commercial paper and short-term notes will consist of issues rated at the time of purchase “A-2” or higher by Standard & Poor’s Ratings Services, “Prime-1” or “Prime-2” by Moody’s Investors Service, Inc., or similarly rated by another NRSRO or if unrated, will be determined by the Investment Manager (or the relevant Sub-Adviser) to be of comparable quality. These rating symbols are described in Appendix A. Illiquid Securities. The Funds may invest in illiquid securities as a non-principal investment strategy. Historically, illiquid securities have included securities subject to contractual or legal restrictions on resale because they have not been registered under the 1933 Act, securities which are otherwise not readily marketable and repurchase agreements having a maturity of longer than seven days. Restricted securities are securities that may not be sold freely to the public absent registration under the 1933 Act, or an exemption from registration. Rule 144A under the 1933 Act establishes a safe harbor from the registration requirements of the 1933 Act for resales of certain securities to qualified institutional buyers. Institutional markets for restricted securities sold pursuant to Rule 144A in many cases provide both readily ascertainable values for restricted securities and the ability to liquidate an investment to satisfy share redemption orders. Such markets might include automated systems for the trading, clearance and settlement of unregistered securities of domestic and foreign issuers, such as the PORTAL System sponsored by NASDAQ. An insufficient number of qualified buyers interested in purchasing Rule 144A eligible restricted securities, however, could adversely affect the marketability of such portfolio securities and result in a Fund’s inability to dispose of such securities promptly or at favorable prices. The Board has delegated the function of making day-to-day determinations of liquidity to the Investment Manager (or Sub-Adviser, if any) pursuant to guidelines approved by the Board. The Investment Manager (or Sub-Adviser, if any) will take into account a number of factors in reaching liquidity decisions, including, but not limited to: (1) 9 the frequency of trades for the security, (2) the number of dealers willing and ready to purchase and sell the security, (3) whether any dealers have agreed to make a market in the security, (4) the number of other potential purchasers for the security, and (5) the nature of the securities and the nature of the marketplace trades. To the extent that the Investment Manager (or Sub-Adviser, if any), pursuant to the guidelines approved by the Board, determines a Rule 144A eligible security to be liquid, such a security would not be subject to a Fund’s percentage limit on illiquid securities investment. No Money Market Fund will purchase illiquid securities, including time deposits and repurchase agreements maturing in more than seven days, if, as a result of the purchase, more than 5% of the Fund’s net assets valued at the time of the transaction are invested in such securities. No Equity Fund or Bond Fund will purchase illiquid securities, including time deposits and repurchase agreements maturing in more than seven days, if, as a result of the purchase, more than 15% of the Fund’s net assets (10% of the value of its net assets for the Limited Maturity Fund, the Full Maturity Fund, the Diversified Equity Fund and the Socially Responsible Equity Fund) valued at the time of the transaction are invested in such securities. Each Fund will monitor the level of liquidity and take appropriate action, if necessary, to attempt to maintain adequate liquidity. The investment policy on the purchase of illiquid securities is non-fundamental. Mortgage-Related Securities and Derivative Securities. The Government Money Fund, the Limited Maturity Fund, the Government Bond Fund and the Full Maturity Fund (as a principal investment strategy) and all of the other Funds (as a non-principal investment strategy) may invest in mortgage-related securities. A mortgage-related security is an interest in a pool of mortgage loans and can be considered a derivative security. Most mortgage-related securities are pass-through securities, which means that investors receive payments consisting of a pro rata share of both principal and interest (less servicing and other fees), as well as unscheduled prepayments, as mortgages in the underlying mortgage pool are paid off by the borrowers. Different types of these mortgage-related securities are subject to different combinations of prepayment, extension, interest rate and other market risks. Certain mortgage-related securities are subject to high volatility. The Funds use these securities in an effort to enhance return and as a means to make certain investments not otherwise available to the Funds. If a Fund purchases mortgage-backed securities that are “subordinated” to other interests in the same mortgage pool, the Fund as a holder of those securities may only receive payments after the pool’s obligations to other investors have been satisfied. An unexpectedly high rate of defaults on the mortgages held by a mortgage pool may limit substantially the pool’s ability to make payments of principal or interest to the Fund as a holder of such subordinated securities, reducing the values of those securities or in some cases rendering them worthless; the risk of such defaults is generally higher in the case of mortgage pools that include so-called “subprime” mortgages. An unexpectedly high or low rate of prepayments on a pool’s underlying mortgages may have similar effects on subordinated securities. A mortgage pool may issue securities subject to various levels of subordination; the risk of non-payment affects securities at each level, although the risk is greater in the case of more highly subordinated securities. In general, mortgage loan repayments may be adversely affected by matters such as a general economic turndown, high unemployment, a general slowdown in the real estate market, a drop in the market prices of real estate, or an increase in interest rates resulting in high mortgage payments by holders of adjustable rate mortgages.Forexample, the value of mortgage-related securities has been adversely affected by the recent disruptions in the credit markets, the increase in the default rate on prime and subprime residential mortgages, and the overall decrease in residential home prices from the price levels reached during the 2003-2007 time period.It is possible that, as a result of these and other circumstances, the value of mortgage-related securities will continue to be adversely affected for some time.Because prepayment rates of individual pools vary widely, it is not possible to accurately predict the average life of a particular pool.Common practice is to assume that prepayments will result in an average life ranging from two to ten years for pools of fixed-rate 30-year mortgages.Pools of mortgages with other maturities or different characteristics will have varying average life assumptions. Agency Mortgage-Related Securities. The dominant issuers or guarantors of mortgage-related securities today are the Government National Mortgage Association (“Ginnie Mae”), Fannie Mae (formerly known as the Federal 10 National Mortgage Association) and Freddie Mac (formerly known as the Federal Home Loan Mortgage Corporation). Ginnie Mae creates pass-through securities from pools of government-guaranteed or -insured (Federal Housing Administration or Veterans Administration) mortgages. Fannie Mae and Freddie Mac issue pass-through securities from pools of conventional and federally insured and/or guaranteed residential mortgages. The principal and interest on Ginnie Mae pass-through securities are guaranteed by Ginnie Mae and backed by the full faith and credit of the U.S. Government. Fannie Mae guarantees full and timely payment of all interest and principal, and Freddie Mac guarantees timely payment of interest and ultimate collection of principal of its pass-through securities. Securities from Fannie Mae and Freddie Mac are not backed by the full faith and credit of the U.S. Government but are generally considered to offer minimal credit risks. The yields provided by these mortgage-related securities have historically exceeded the yields on other types of U.S. Government securities with comparable “lives” largely due to the risks associated with prepayment on the underlying mortgages. Adjustable rate mortgage securities (“ARMs”) are pass-through securities representing interests in pools of mortgage loans with adjustable interest rates determined in accordance with a predetermined interest rate index and which may be subject to certain limits. The adjustment feature of ARMs tends to lessen their interest rate sensitivity. Mortgage-Related Securities – Ginnie Mae. Ginnie Mae is a wholly owned corporate instrumentality of the U.S. Government within the Department of Housing and Urban Development. The National Housing Act of 1934, as amended (the “Housing Act”), authorizes Ginnie Mae to guarantee the timely payment of the principal of, and interest on, securities that are based on and backed by a pool of specified mortgage loans. For these types of securities to qualify for a Ginnie Mae guarantee, the underlying collateral must be mortgages insured by the Federal Housing Administration (the “FHA”) under the Housing Act (“FHA Loans”), or Title V of the Housing Act of 1949, as amended (“VA Loans”), or be pools of other eligible mortgage loans. The Housing Act provides that the full faith and credit of the U.S. Government is pledged to the payment of all amounts that may be required to be paid under any guarantee. In order to meet its obligations under a guarantee, Ginnie Mae is authorized to borrow from the U.S. Treasury with no limitations as to amount. Ginnie Mae pass-through securities may represent a proportionate interest in one or more pools of the following types of mortgage loans: (1) fixed-rate level payment mortgage loans; (2) fixed-rate graduated payment mortgage loans; (3) fixed-rate growing equity mortgage loans; (4) fixed-rate mortgage loans secured by manufactured (mobile) homes; (5) mortgage loans on multifamily residential properties under construction; (6) mortgage loans on completed multifamily projects; (7) fixed-rate mortgage loans as to which escrowed funds are used to reduce the borrower’s monthly payments during the early years of the mortgage loans (“buydown” mortgage loans); (8) mortgage loans that provide for adjustments on payments based on periodic changes in interest rates or in other payment terms of the mortgage loans; and (9) mortgage-backed serial notes. Mortgage-Related Securities – Fannie Mae. Fannie Mae is a federally chartered and privately owned corporation established under the Federal National Mortgage Association Charter Act. Fannie Mae was originally organized in 1938 as a U.S. Government agency to add greater liquidity to the mortgage market. Fannie Mae was transformed into a private sector corporation by legislation enacted in 1968. Fannie Mae provides funds to the mortgage market primarily by purchasing home mortgage loans from local lenders, thereby providing them with funds for additional lending. Fannie Mae acquires funds to purchase loans from investors that may not ordinarily invest in mortgage loans directly, thereby expanding the total amount of funds available for housing. Each Fannie Mae pass-through security represents a proportionate interest in one or more pools of FHA Loans, VA Loans or conventional mortgage loans (that is, mortgage loans that are not insured or guaranteed by any U.S. Government agency). The loans contained in those pools consist of one or more of the following: (1) fixed-rate level payment mortgage loans; (2) fixed-rate growing equity mortgage loans; (3) fixed-rate graduated payment mortgage loans; (4) variable-rate mortgage loans; (5) other adjustable-rate mortgage loans; and (6) fixed-rate mortgage loans secured by multifamily projects. 11 On September 7, 2008, the Federal Housing Finance Agency (“FHFA”) was appointed as the conservator of Freddie Mac and Fannie Mae for an indefinite period. In accordance with the Federal Housing Finance Regulatory Reform Act of 2008 and the Federal Housing Enterprises Financial Safety and Soundness Act of 1992, as conservator, the FHFA will control and oversee these entities until the FHFA deems them financially sound and solvent. During the conservatorship, each entity’s obligations are expected to be paid in the normal course of business. Although no express guarantee exists for the debt or mortgage-backed securities issued by these entities, the U.S. Department of Treasury, through a secured lending credit facility and a senior preferred stock purchase agreement, has attempted to enhance the ability of the entities to meet their obligations. Mortgage-Related Securities – Freddie Mac. Freddie Mac is a corporate instrumentality of the United States established by the Emergency Home Finance Act of 1970, as amended. Freddie Mac was organized primarily for the purpose of increasing the availability of mortgage credit to finance needed housing. The operations of Freddie Mac currently consist primarily of the purchase of first lien, conventional, residential mortgage loans and participation interests in mortgage loans and the resale of the mortgage loans in the form of mortgage-backed securities. The mortgage loans underlying Freddie Mac securities typically consist of fixed-rate or adjustable-rate mortgage loans with original terms to maturity of between 10 and 30 years, substantially all of which are secured by first liens on one-to-four-family residential properties or multifamily projects. Each mortgage loan must include whole loans, participation interests in whole loans and undivided interests in whole loans and participation in another Freddie Mac security. See the discussion of Fannie Mae in the previous section for information about the 2008 appointment of FHFA as the conservator of Freddie Mac. Privately Issued Mortgage-Related Securities. Mortgage-related securities offered by private issuers include pass-through securities comprised of pools of conventional residential mortgage loans; mortgage-backed bonds which are considered to be obligations of the institution issuing the bonds and are collateralized by mortgage loans; and bonds and “CMOs” collateralized by mortgage-related securities issued by Ginnie Mae, Fannie Mae, Freddie Mac or by pools of conventional mortgages, multifamily or commercial mortgage loans. Each class of a CMO is issued at a specific fixed or floating coupon rate and has a stated maturity or final distribution date. Principal prepayments on the collateral pool may cause the various classes of a CMO to be retired substantially earlier than their stated maturities or final distribution dates. The principal of and interest on the collateral pool may be allocated among the several classes of a CMO in a number of different ways. Generally, the purpose of the allocation of the cash flow of a CMO to the various classes is to obtain a more predictable cash flow to some of the individual tranches than exists with the underlying collateral of the CMO. As a general rule, the more predictable the cash flow is on a CMO tranche, the lower the anticipated yield will be on that tranche at the time of issuance relative to prevailing market yields on mortgage-related securities. Certain classes of CMOs may have priority over others with respect to the receipt of prepayments on the mortgages. Parallel pay CMOs are structured to provide payments of principal on each payment date to more than one class. These simultaneous payments are taken into account in calculating the stated maturity date or final distribution date of each class which, like the other CMO structures, must be retired by its stated maturity date or final distribution date, but may be retired earlier. Planned amortization class CMOs (“PAC Bonds”) are parallel pay CMOs that generally require payments of a specified amount of principal on each payment date; the required principal payment on PAC Bonds have the highest priority after interest has been paid to all classes. Privately issued mortgage-related securities generally offer a higher rate of interest (but greater credit and interest rate risk) than U.S. Government and agency mortgage-related securities because they offer no direct or indirect governmental guarantees. Many issuers or servicers of mortgage-related securities guarantee or provide insurance for timely payment of interest and principal, however. Some mortgage-related securities are offered through private placements that are restricted as to further sale and there may be a limited market for such securities, 12 especially when there is a perceived weakness in the mortgage and real estate market sectors.Without an active trading market, mortgage-backed securities held in a Fund’s portfolio may be particularly difficult to value because of the complexities involved in assessing the value of the underlying mortgage loans. In addition, privately issued mortgage-related securities are not subject to the underwriting requirements for the underlying mortgages that are applicable to mortgage-backed securities that have a government or government-sponsored entity guarantee.As a result, the mortgage loans underlying private mortgage-backed securities may, and frequently do, have less favorable collateral, credit risk or other underwriting characteristics than government or government-sponsored mortgage-backed securities and have wider variances in a number of terms including interest rate, term, size, purpose and borrower characteristics.Privately issued pools more frequently include second mortgages, high loan-to-value mortgages and manufactured housing loans.The coupon rates and maturities of the underlying mortgage loans in a private-label mortgage-backed securities pool may vary to a greater extent than those included in a government guaranteed pool, and the pool may include subprime mortgage loans (loans made to borrowers with weakened credit histories or with a lower capacity to make timely payments on their loans).For these reasons, the loans underlying these securities have had in many cases higher default rates than those loans that meet government underwriting requirements. Adjustable-Rate Mortgage-Related Securities. Because the interest rates on the mortgages underlying ARMs reset periodically, yields of such portfolio securities will gradually align themselves to reflect changes in market rates. Unlike fixed-rate mortgages, which generally decline in value during periods of rising interest rates, ARMs allow a Fund to participate in increases in interest rates through periodic adjustments in the coupons of the underlying mortgages, resulting in both higher current yields and low price fluctuations. Furthermore, if prepayments of principal are made on the underlying mortgages during periods of rising interest rates, a Fund may be able to reinvest such amounts in securities with a higher current rate of return. During periods of declining interest rates, of course, the coupon rates may readjust downward, resulting in lower yields to a Fund. Further, because of this feature, the value of ARMs is unlikely to rise during periods of declining interest rates to the same extent as fixed-rate instruments. The Investment Manager expects that the amount of privately issued mortgage-backed securities that may be purchased by a Fund will not exceed 10% of the value of the Fund’s total assets, and the securities of any one such issuer purchased by a Fund will not exceed 5% of the value of the Fund’s total assets. Other Mortgage-Related Securities. Other mortgage-related securities include securities other than those described above that directly or indirectly represent a participation in, or are secured by and payable from, mortgage loans on real property, including mortgage dollar rolls, CMO residuals or stripped mortgage-backed securities (“SMBS”). Other mortgage-related securities may be equity or debt securities issued by agencies or instrumentalities of the U.S. Government or by private originators of, or investors in, mortgage loans, including savings and loan associations, homebuilders, mortgage banks, commercial banks, investment banks, partnerships, trusts and special purpose entities of the foregoing. Mortgage Dollar Rolls.In forward roll transactions, also known as mortgage “dollar rolls,” a fund sells mortgage-backed securities for delivery in the current month and simultaneously contracts to repurchase substantially similar (same type, coupon and maturity) securities on a specified future date. A fund may enter into a mortgage dollar roll commitment with the intention of entering into an offsetting transaction whereby, rather than accepting delivery of the security on the specified future date, the fund sells the security and then agrees to repurchase a similar security at a later time. In this case, the fund forgoes interest on the security during the roll period and is compensated by the interest earned on the cash proceeds of the initial sale of the security and by the difference between the sale price and the lower repurchase price at the future date. At the time a fund enters into a mortgage dollar roll commitment, the fund will set aside cash or other appropriate liquid securities with a value at least equal to the fund’s obligation under the commitment. A fund’s liquidity and ability to manage its assets might be affected when it sets aside cash or portfolio securities to cover such commitments. Mortgage dollar rolls involve the risk that the market value of the securities the fund is obligated to repurchase under the agreement may decline below the repurchase price. In the event the buyer of securities under a 13 mortgage dollar roll files for bankruptcy or becomes insolvent, a fund’s use of proceeds of the dollar roll may be restricted pending a determination by the other party, or its trustee or receiver, whether to enforce the fund’s obligation to repurchase the securities. Forward roll transactions may have a leveraging effect on a fund, making the value of an investment in the fund more volatile and increasing the fund’s overall investment exposure. CMO Residuals.CMO residuals are mortgage securities issued by agencies or instrumentalities of the U.S. Government or by private originators of, or investors in, mortgage loans, including savings and loan associations, homebuilders, mortgage banks, commercial banks, investment banks and special purpose entities of the foregoing. The cash flow generated by the mortgage assets underlying a series of CMOs is applied first to make required payments of principal and interest on the CMOs and second to pay the related administrative expenses of the issuer. The residual in a CMO structure generally represents the interest in any excess cash flow remaining after making the foregoing payments. Each payment of such excess cash flow to a holder of the related CMO residual represents income and/or a return of capital. The amount of residual cash flow resulting from a CMO will depend on, among other things, the characteristics of the mortgage assets, the coupon rate of each class of CMO, prevailing interest rates, the amount of administrative expenses and the prepayment experience on the mortgage assets. In particular, the yield to maturity on CMO residuals is extremely sensitive to prepayments on the related underlying mortgage assets, in the same manner as an interest-only (“IO”) class of stripped mortgage-backed securities. In addition, if a series of a CMO includes a class that bears interest at an adjustable rate, the yield to maturity on the related CMO residual will also be extremely sensitive to changes in the level of the index upon which interest rate adjustments are based. As described below with respect to stripped mortgage-backed securities, in certain circumstances a Fund may fail to recoup fully its initial investment in a CMO residual. CMO residuals are generally purchased and sold by institutional investors through several investment banking firms acting as brokers or dealers. The CMO residual market has only very recently developed and CMO residuals currently may not have the liquidity of other more established securities trading in other markets. Transactions in CMO residuals are generally completed only after careful review of the characteristics of the securities in question. In addition, CMO residuals may, or, pursuant to an exemption therefrom, may not have been registered under the 1933 Act. CMO residuals, whether or not registered under the 1933 Act, may be subject to certain restrictions on transferability, and may be deemed “illiquid” and subject to a Fund’s limitations on investment in illiquid securities. Stripped Mortgage Backed Securities.Stripped mortgage backed securities (“SMBS”) are derivative multi-class mortgage securities. SMBS may be issued by agencies or instrumentalities of the U.S. Government, or by private originators of, or investors in, mortgage loans, including savings and loan associations, mortgage banks, commercial banks, investment banks and special purpose entities of the foregoing. SMBS are usually structured with two classes that receive different proportions of the interest and principal distributions on a pool of mortgage assets. A common type of SMBS will have one class receiving some of the interest and most of the principal from the mortgage assets, while the other class will receive most of the interest and the remainder of the principal. In the most extreme case, one class will receive all of the interest (the “IO” class), while the other class will receive all of the principal (the principal-only or “PO” class). The yield to maturity on IOs, POs and other mortgage securities that are purchased at a substantial premium or discount generally are extremely sensitive not only to changes in prevailing interest rates but also to the rate of principal payments (including prepayments) on the related underlying mortgage assets, and a rapid rate of principal payments may have a material adverse effect on such securities’ yield to maturity. If the underlying mortgage assets experience greater than anticipated prepayments of principal, a Fund may fail to fully recoup its initial investment in these securities even if the securities have received the highest rating by an NRSRO. 14 Although SMBS are purchased and sold by institutional investors through several investment banking firms acting as brokers or dealers, established trading markets have not developed and, accordingly, these securities may be deemed “illiquid” and subject to a Fund’s limitations on investment in illiquid securities. Other types of mortgage-related derivative securities include various types of structured securities with interest rates or, in some cases, principal payable at maturity that change positively or inversely in relation to one or more interest rates, financial indices or other financial indicators (“references prices”).A structured mortgage-backed security may be leveraged to the extent that the magnitude of any change in the interest rate or principal payable on the security is a multiple of the change in the reference price. Such securities may include interest only (“IO”) and principal only (“PO”) securities, floating rate and inverse floating rate securities, floating rate securities linked to the Cost of Funds Index (“COFI floaters”), floating rate securities that are subject to a maximum interest rate (“capped floaters”), dual index floaters (which are subject to depreciation in the event of an unfavorable change in the spread between two designated interest rates) and range floaters (the coupons on which are subject to reduction if a designated interest rate floats outside of a specified interest rate band or collar). These securities may be illiquid and their values may be very volatile. Risks Associated with Prepayments. Prepayments of principal of mortgage-related securities by mortgagors or mortgage foreclosures affect the average life of the mortgage-related securities in the Fund’s portfolio. Mortgage prepayments are affected by the level of interest rates and other factors, including general economic conditions and the underlying location and age of the mortgage. In periods of rising interest rates, the prepayment rate tends to decrease, lengthening the average life of a pool of mortgage-related securities. In periods of falling interest rates, the prepayment rate tends to increase, shortening the average life of a pool. Because prepayments of principal generally occur when interest rates are declining, it is likely that a Fund, to the extent that it retains the same percentage of debt securities, may have to reinvest the proceeds of prepayments at lower interest rates than those of its previous investments. If this occurs, a Fund’s yield will correspondingly decline. Thus, mortgage-related securities may have less potential for capital appreciation in periods of falling interest rates than other fixed income securities of comparable duration, although they may have a comparable risk of decline in market value in periods of rising interest rates. To the extent that a Fund purchases mortgage-related securities at a premium, unscheduled prepayments, which are made at par, result in a loss equal to any unamortized premium. Duration is one of the fundamental tools used by the Investment Manager or a Sub-Adviser in managing interest rate risks, including prepayment risks. Traditionally, a debt security’s “term to maturity” characterizes a security’s sensitivity to changes in interest rates “term to maturity,” however, measures only the time until a debt security provides its final payment, taking no account of pre-maturity payments. Most debt securities provide interest (“coupon”) payments in addition to a final (“par”) payment at maturity, and some securities have call provisions allowing the issuer to repay the instrument in full before maturity date, each of which affects the security’s response to interest rate changes. “Duration” is considered a more precise measure of interest rate risk than “term to maturity.” Determining duration may involve the Investment Manager’s or a Sub-Adviser’s estimates of future economic parameters, which may vary from actual future values. Fixed income securities with effective durations of three years are more responsive to interest rate fluctuations than those with effective durations of one year. For example, if interest rates rise by 1%, the value of securities having an effective duration of three years will generally decrease by approximately 3%. Asset-Backed Commercial Paper. The Government Money Fund and the Prime Money Fund (as a principal investment strategy) and the other Funds (as a non-principal investment strategy) may invest in asset-backed commercial paper(“ABCP”) and other Eligible Securities (as that term is defined below). ABCP is issued by structured investment vehicles or other conduits, and typically has an original term to maturity of up to 270 days.Payment is supported by cash flows from large pools of assets with large numbers of revolving obligors, such as motor vehicle installment sales contracts, installment loan contracts, leases of various types of real and personal property, and receivables from revolving credit (e.g., credit card) agreements. The structured investment vehicles or other conduits issuing the ABCP are sponsored by mortgage companies, investment banking firms, finance companies, hedge funds, private equity firms and special purpose finance entities. 15 The credit quality of most ABCP depends primarily on the credit quality of the underlying assets, how well the entity issuing the security is insulated from the credit risk of the originator (or any other affiliated entities), and the amount and quality of any credit support provided to the securities.Payments or distributions of principal and interest on ABCP depend primarily on the cash collections received from the underlying asset portfolio and the conduit’s ability to issue new ABCP.A fund investing in such securities may incur losses in the event or credit or market value deterioration in the underlying portfolio, mismatches in the timing of the cash flows of the underlying asset interests and the repayment obligations of maturing ABCP, or the conduit’s inability to issue new ABCP.To protect investors from such risks, payment may also be supportedwith various protections such ascredit enhancements, liquidity support, various forms of cash collateral accounts or letters of credit, and commercial paper stop-issuance and wind-down triggers.However there can be no guarantee that these protections will be sufficient to prevent losses to investors in ABCP. Some ABCP programs provide for an extension of the maturity date of the ABCP if, on the related maturity date, the conduit is unable to access sufficient liquidity through the issue of additional ABCP.This may delay the sale of the underlying collateral and a fund may incur a loss if the value of the collateral deteriorates during the extension period.Alternatively, if collateral for ABCP commercial paper deteriorates in value, the collateral may be required to be sold at inopportune times or at prices insufficient to repay the principal and interest on the ABCP.ABCP programs may provide for the issuance of subordinated notes as an additional form of credit enhancement.The subordinated notes are typically of a lower credit quality and have a higher risk of default. Asset-Backed Securities. The Limited Maturity Fund and the Full Maturity Fund (as a principal investment strategy) and all of the other Funds (as a non-principal investment strategy) may invest in asset-backed securities.These types of securities represent a director or indirect participation in, or are secured by and payable from, cash flows from pools of assets such as motor vehicle installment sales contracts, installment loan contracts, leases of various types of real and personal property, and receivables from revolving credit (e.g., credit card) agreements. Payment of principal and interest on asset-back securities may largely depend upon the cash flows generated by the assets backing the securities.In an effort to lessen the effect of failures by obligors on these underlying assets to make payments, such securities may contain elements of credit support. Credit support for asset-backed securities may be based on the underlying assets or credit enhancements provided by a third party.Credit support falls into two classes: liquidity protection and protection against ultimate default on the underlying assets. Liquidity protection refers to the provision of advances, generally by the entity administering the pool of assets, to ensure that scheduled payments on the underlying pool are made in a timely fashion. Protection against ultimate default ensures payment on at least a portion of the assets in the pool. This protection may be provided through guarantees, insurance policies, letters of credit obtained from third parties, various means of structuring the transaction, or a combination of such approaches. The degree of credit support provided on each issue is based generally on historical information respecting the level of credit risk associated with such payments. Delinquency or loss in excess of that anticipated could adversely affect the return on an investment in an asset-backed security. Asset-backed securities are subject to the risk of prepayment. Prepayments of principal of asset-backed securities affect the average life of the asset-backed securities in a Fund’s portfolio. Prepayments are affected by the level of interest rates and other factors, including general economic conditions. In periods of rising interest rates, the prepayment rate tends to decrease, lengthening the average life of a pool of asset-backed securities. In periods of falling interest rates, the prepayment rate tends to increase, shortening the average life of a pool. Reinvestment of prepayments may occur at higher or lower interest rates than the original investment, affecting the Fund’s yield. Thus, asset-backed securities may have less potential for capital appreciation in periods of falling interest rates than other fixed income securities of comparable duration, although they may have a comparable risk of decline in market value in periods of rising interest rates. The values of asset-backed securities are affected by, among other things, changes in the market’s perception of the asset backing the security, the creditworthiness of the servicing agent for the loan pool, the originator of the loans, or the financial institution providing any credit enhancement, and the exhaustion of any credit enhancement.In its capacity as purchaser of an asset-backed security, a fund would generally have no recourse to 16 the entity that originated the loans in the event of default by the borrower.Asset backed securities may present certain risks not relevant to mortgage-backed securities.Assets underlying asset-backed securities such as credit card receivables are generally unsecured, and debtors are entitled to the protection of various state and federal consumer protection laws, some of which provide a right of set-off that may reduce the balance owed. Asset-backed securities are relatively new and untested instruments and may be subject to greater risk of default during periods of economic downturn than other securities.In addition, the secondary market for asset-backed securities may not be as liquid as the market for other securities, which may result in difficulty in valuing asset-backed securities. Variable Rate Demand Notes. The California Money Fund and the California Bond Fund (as a principal investment strategy) and all of the other Funds except the Diversified Equity Fund and the Socially Responsible Equity Fund (as a non-principal investment strategy) may invest in variable rate demand notes (“VRDNs”). VRDNs are tax-exempt obligations that contain a floating or variable interest rate adjustment formula and an unconditional right of demand to receive payment of the unpaid principal balance plus accrued interest upon a short notice period prior to specified dates, generally at 30-, 60-, 90-, 180-, or 365-day intervals. The interest rates are generally adjustable at intervals ranging from daily to one year. Adjustment formulas are designed to maintain the market value of the VRDN at approximately the par value of the VRDN upon the adjustment date. The adjustments typically are based upon the prime rate of a bank or some other appropriate interest rate adjustment index. The Funds also may invest in VRDNs in the form of participation interests (“Participating VRDNs”) in variable rate tax-exempt obligations held by a financial institution, typically a commercial bank (“institution”). Participating VRDNs provide a Fund with a specified undivided interest (up to 100%) of the underlying obligation and the right to demand payment of the unpaid principal balance plus accrued interest on the Participating VRDNs from the institution upon a specified number of days’ notice, not to exceed seven. In addition, the Participating VRDN is backed by an irrevocable letter of credit or guaranty of the institution. A Fund has an undivided interest in the underlying obligation and thus participates on the same basis as the institution in such obligation except that the institution typically retains fees out of the interest paid on the obligation for servicing the obligation, providing the letter of credit and issuing the repurchase commitment. Participating VRDNs may be unrated or rated, and their creditworthiness may be a function of the creditworthiness of the issuer, the institution furnishing the irrevocable letter of credit, or both. Accordingly, these Funds may invest in such VRDNs, the issuers or underlying institutions of which the Investment Manager (or Sub-Adviser, if any) believes are creditworthy and satisfy the quality requirements of these Funds. The Investment Manager (or Sub-Adviser, if any) periodically monitors the creditworthiness of the issuer of such securities and the underlying institution. During periods of high inflation and periods of economic slowdown, together with the fiscal measures adopted by governmental authorities to attempt to deal with them, interest rates have varied widely. While the value of the underlying VRDN may change with changes in interest rates generally, the variable rate nature of the underlying VRDN should minimize changes in the value of the instruments. Accordingly, as interest rates decrease or increase, the potential for capital appreciation and the risk of potential capital depreciation is less than would be the case with a portfolio of fixed income securities. Some VRDNs have minimum or maximum rates, or maximum rates set by state law, which limit the degree to which interest on such VRDNs may fluctuate; to the extent they do, increases or decreases in value may be somewhat lesser than would be the case without such limits. Because the adjustment of interest rates on the VRDNs is made in relation to movements of various interest rate adjustment indices, the VRDNs are not comparable to long-term fixed-rate securities. Accordingly, interest rates on the VRDNs may be higher or lower than current market rates for fixed-rate obligations of comparable quality with similar maturities. Exchange-Traded Notes. The Multi-Asset Fund may invest in exchange-traded notes (“ETNs”) as a non-principal investment strategy. ETNs are unsecured debt obligations of investment banks which are traded on 17 exchanges and the returns of which are linked to the performance of market indices. In addition to trading ETNs on exchanges, investors may redeem ETNs directly with the issuer on a weekly basis, typically in a minimum amount of 50,000 units, or hold the ETNs until maturity. ETNs are riskier than ordinary unsecured debt securities and have no principal protection. The Fund will generally invest in ETNs which are linked to commodities indices. The Fund’s investment in an ETN may be influenced by many unpredictable factors, including highly volatile commodities prices, changes in supply and demand relationships, weather, agriculture, trade, changes in interest rates, and monetary and other governmental policies, action and inaction.Investing in ETNs is not equivalent to investing directly in index components or the relevant index itself. Because ETNs are debt securities, they possess credit risk; if the issuer has financial difficulties or goes bankrupt, the investor may not receive the return it was promised. Foreign Securities. The Multi-Asset Fund, the Corporate Bond Fund, the High Yield Bond Fund, the Full Maturity Fund, the Diversified Equity Fund, the Large Cap Value Fund, the Large Cap Growth Fund, and the Socially Responsible Equity Fund (as a principal investment strategy) and all other Funds except for the Government Bond Fund and the California Bond Fund (as a non-principal investment strategy) may invest in securities issued by companies organized or principally doing business in foreign countries and by governments of foreign countries.Each of the Limited Maturity Fund, the Full Maturity Fund, the Diversified Equity Fund and the Socially Responsible Equity Fund may invest up to 15% of its total assets, at the time of purchase, in U.S. dollar-denominated securities of non-U.S. companies. Each of the Limited Maturity Fund, the Full Maturity Fund, the Diversified Equity Fund and the Socially Responsible Equity Fund may invest in securities of certain Canadian issuers and securities purchased by means of sponsored American Depositary Receipts in an amount not to exceed 15% of the Fund’s total assets at the time of purchase, although it currently does not intend to do so. ADRs, EDRs and GDRs.Each Fund other than the Multi-Asset Fund and the U.S. Core Equity Fund makes its foreign investments by investing in American Depositary Receipts (“ADRs”).The Multi-Asset Fund may invest in ADRs, European Depositary Receipts (“EDRs”), Global Depositary Receipts (“GDRs”), other similar global instruments available in emerging markets, other securities convertible into securities of eligible issuers, and other types of foreign securities, and the U.S. Core Equity Fund may invest in ADRs and securities of foreign issuers registered on the NYSE or NASDAQ.ADRs, EDRs and GDRs may not necessarily be denominated in the same currency as the securities for which they may be exchanged. Generally, ADRs in registered form are publicly trades on exchanges or over-the-counter in the United States, and EDRs and other similar global instruments in bearer form are designed for use in European securities markets. ADRs may be sponsored by the foreign issuer or may be unsponsored. Unsponsored ADRs are organized independently and without the cooperation of the foreign issuer of the underlying securities. As a result, available information regarding the issuer may not be as current as for sponsored ADRs, and the prices of unsponsored ADRs may be more volatile than if they were sponsored by the issuers of the underlying securities. In addition, in a sponsored ADR arrangement the foreign issuer assumes the obligation to pay some or all of the depository’s transaction fees, whereas under an unsponsored arrangement the depository’s transaction fees are paid by the ADR holders.For purposes of a Fund’s investment policies, a Fund’s investments in ADRs, EDRs and similar instruments will be deemed to be investments in the equity securities representing the securities of foreign issuers into which they may be converted. Economic, Political and Social Factors.Certain foreign countries may be subject to a greater degree of economic, political and social instability than the United States. Such instability my result from, among other things, authoritarian governments or military involvement in political and economic decision making; popular unrest associated with demands for improved economic, political and social conditions; internal insurgencies; hostile relations with neighboring countries; and ethnic, religious and racial conflict. Economies in individual non-U.S. countries may differ favorably or unfavorably from the U.S. economy in such respects as growth of gross domestic product, rates of inflation, currency valuation, capital reinvestment, resource self-sufficiency and balance of payment position. Foreign investments also involve the possibility of expropriation, nationalization or confiscatory taxation; taxation of income earned in foreign nations (including, for example, withholding taxes on interest and dividends) or other taxes imposed with respect to investments in foreign nations; foreign exchange controls (which may include suspension of the ability to transfer currency from a given country and repatriation of investments); and default in foreign government securities. Such economic, political and social instability could 18 significantly disrupt the financial markets in such countries, the values of foreign investments, and the ability of the issuers in such countries to repay their obligations. The financial problems in global economies over the past several years, including the European sovereign debt crisis, may continue to cause high volatility in global financial markets.In addition, global economies are increasingly interconnected, which increases the possibilities that conditions in one country or region might adversely impact a different country or region.The severity or duration of these conditions may also be affected if one or more countries leave the euro currency or by other policy changes made by governments or quasi-governmental organizations. Foreign Securities Markets and Regulations.There is often less publicly available information about foreign issuers than those in the United States. Foreign companies are often not subject to uniform accounting, auditing and financial reporting standards comparable to those applicable to U.S. companies. In certain countries there is less government supervision and regulation of business and industry practices, stock exchanges, brokers and listed companies than in the United States. Further, the Funds may encounter difficulties in pursuing legal remedies or in obtaining judgments in foreign courts. Brokerage commissions, fees for custodial services and other costs relating to investments in other countries are generally greater than in the United States. Foreign markets have different clearance and settlement procedures from those in the United States, and certain markets have experienced times when settlements did not keep pace with the volume of securities transactions, which resulted in settlement difficulty. The inability of a Fund to make intended security purchases due to settlement difficulties could cause it to miss attractive investment opportunities. Any delay in selling a portfolio security due to settlement problems could result in loss to a Fund if the value of the portfolio security declined, or result in claims against a Fund if it had entered into a contract to sell the security. The securities markets of many of the countries in which the Funds may invest may also be smaller, less liquid and subject to greater price volatility than those in the United States.The less liquid a market, the more difficult it may be for a Fund to accurately price its portfolio securities or to dispose of such securities at desirable times. Foreign Currencies.Certain securities in which the Multi-Asset Fund invests may be denominated in foreign currencies, the values of which will be affected by changes in currency exchange rates and exchange control regulations, and costs will be incurred in connection with conversions between currencies. A change in the value of a foreign currency against the U.S. Dollar will result in a corresponding change in the U.S. Dollar value of the Fund’s securities denominated in the currency. Such changes also affect the Fund’s income and distributions to shareholders. The Fund may be affected either favorably or unfavorably by changes in the relative rates of exchange among the currencies of different nations, and the Fund may therefore engage in foreign currency hedging strategies. Such strategies, however, involve certain transaction costs and investment risks, including dependence upon the Investment Manager’s ability to predict movements in exchange rates. Currency exchange rates generally are determined by the forces of supply and demand in the foreign exchange markets and the relative merits of investments in different countries as viewed from an international perspective.Currency exchange rates can also be affected unpredictably by intervention by U.S. or foreign governments or central banks or by currency controls or political developments in the United States or abroad. Some countries in which the Funds may invest may also have fixed or managed currencies that are not freely convertible at market rates into the U.S. Dollar. Certain currencies may not be internationally traded. A number of these currencies have experienced steady devaluation relative to the U.S. Dollar, and such devaluations in the currencies may have a detrimental impact on a Fund. Many countries in which a Fund may invest have experienced substantial, and in some periods extremely high, rates of inflation for many years. Inflation and rapid fluctuation in inflation rates may have negative effects on certain economies and securities markets. Moreover, the economies of some countries may differ favorably or unfavorably from the U.S. economy in such respects as the rate of growth of gross domestic product, rate of inflation, capital reinvestment, resource self-sufficiency and balance of payments. Certain countries also limit the amount of foreign capital that can be invested in their 19 markets and local companies, creating a “foreign premium” on capital investments available to foreign investors such as the Funds. A Fund may pay a “foreign premium” to establish an investment position which it cannot later recoup because of changes in that country’s foreign investment laws. The Funds may endeavor to buy and sell foreign currencies on favorable terms. Some price spreads on currency exchange (to cover service charges) may be incurred, particularly when the Funds change investments from one country to another or when proceeds from the sale of shares in U.S. Dollars are used for the purchase of securities in foreign countries. The Funds may be affected either favorably or unfavorably by fluctuations in the relative rates of exchange between the currencies of different nations, and by exchange control regulations, as well as indigenous economic and political developments. The Investment Manager (and each Sub-Adviser, as relevant) considers at least annually the likelihood of the imposition by any foreign government of exchange control restrictions that would affect the liquidity of the Funds’ assets maintained with custodians in foreign countries, as well as the degree of risk from political acts of foreign governments to which such assets may be exposed. The Investment Manager (and each Sub-Adviser, as relevant) also considers the degree of risk attendant to holding portfolio securities in domestic and foreign securities depositories. Emerging Market Securities. The Multi-Asset Fund and the Corporate Bond Fund (as a principal investment strategy) and the Government Bond Fund, the California Bond Fund, the High Yield Bond Fund, the Large Cap Value Fund and the Large Cap Growth Fund (as a non-principal investment strategy) may invest in securities of companies in emerging markets. Many of the risks with respect to foreign investments are more pronounced for investments in developing or emerging market countries, such as many of the countries of Asia, Latin America, Eastern Europe, Africa, and the Middle East. Although there is no universally accepted definition, a developing country is generally considered to be a country which is in the initial stages of its industrialization cycle with a per capita gross national product of less than $8,000. The economies of many of these countries are heavily dependent upon international trade and are accordingly affected by protective trade barriers and economic conditions of their trading partners. The enactment by these trading partners of protectionist trade legislation could have a significant adverse effect upon the securities markets of such countries. Many of these countries may also have government exchange controls, currencies with no recognizable market value relative to the established currencies of western market economies, little or no experience in trading in securities, no financial reporting standards, a lack of a banking and securities infrastructure to handle such trading, and a legal tradition which does not recognize rights in private property. In certain of these countries, severe and persistent levels of inflation, including, in some cases, hyperinflation, have, in turn, led to high interest rates, extreme measures by governments to keep inflation in check, and a generally debilitating effect on economic growth. Although inflation in many countries has lessened, there is no guarantee it will remain at lower levels. The political history of certain of these countries has also been characterized by political uncertainty, intervention by the military in civilian and economic spheres (including expropriation, nationalization and confiscation of assets and property, and restrictions on foreign investments and on repatriation of capital invested) and political corruption. Such developments, if they were to reoccur, could reverse favorable trends toward market and economic reform, privatization, and removal of trade barriers, and result in significant disruption in securities markets. A number of these countries are highly dependent on foreign loans for their operation. There have been moratoria on, and reschedulings of, repayment with respect to many countries’ debts. Such events can restrict the flexibility of these debtor nations in the international markets and result in the imposition of onerous conditions on their economies. Hedge Funds. As a non-principal investment strategy, the Government Bond Fund, the Corporate Bond Fund, the California Bond Fund, the High Yield Bond Fund, the Multi-Asset Fund, the Large Cap Value Fund and the Large Cap Growth Fund may invest in private investment funds (“Hedge Funds”) managed by various investment managers (“Managers”) that use a variety of investment strategies, including investment in other Hedge Funds. By investing in Hedge Funds indirectly through a Fund, an investor indirectly bears a portion of the asset-based 20 fees, incentive-based allocations and other expenses borne by the Fund as an investor in Hedge Funds, in addition to the operating expenses of the Fund. The incentive-based allocations assessed by Managers and borne directly by the Fund may create an incentive for Managers to make investments that are riskier or more speculative than those that might have been made in the absence of incentive-based allocations. In addition, because an incentive-based allocation will generally be calculated on a basis that includes unrealized appreciation of a Hedge Fund’s assets, the allocation may be greater than if it were based solely on realized gains. Because the Managers value the Hedge Funds they manage, which directly affects the amount of incentive-based allocations they receive, Managers face a conflict of interest in performing such valuations. Each Manager will receive any incentive-based allocations to which it is entitled irrespective of the performance of the other Hedge Funds and the Fund generally. Accordingly, a Manager that manages a Hedge Fund with positive performance may receive incentive-based compensation from the Fund, which will be borne indirectly by the Fund’s shareholders, even if the Fund’s overall returns are negative. Various risks are associated with the securities and other instruments in which Hedge Funds may invest, their investment strategies and the specialized investment techniques they may use. Hedge Funds are not registered as investment companies under the 1940 Act. Therefore, the Fund, as an investor in Hedge Funds, will not have the benefit of the protections afforded by the 1940 Act to investors in registered investment companies, such as mutual funds. To the extent the Fund invests in a Hedge Fund that allows its investors to effect withdrawals only at certain specified times, the Fund may not be able to withdraw its investment in such Hedge Fund promptly after it has made a decision to do so, which may result in a loss and adversely affect the Fund’s investment return. To the extent the Fund invests in a Hedge Fund that is permitted to distribute securities in kind to investors making withdrawals, upon the Fund’s withdrawal of all or a portion of its interest in such Hedge Fund the Fund may receive securities that are illiquid or difficult to value. Short Sales. The Multi-Asset Fund may engage in short sales of securities as a non-principal part of its overall portfolio management strategy. A short sale is a transaction in which the Fund sells a security it does not own in anticipation that the market price of that security will decline. At the time a short sale is effected, the Fund incurs an obligation to replace the borrowed security at its price at the time the Fund purchases it for delivery to the lender. The price at such time may be more or less than the price at which the security was sold by the Fund. If the price of the security sold short increases between the time of the short sale and the time that the Fund replaces the borrowed security, the Fund will incur a loss; conversely, it the price declines, the Fund will realize a capital gain. The risk of loss is theoretically unlimited if the value of the security sold short continues to increase. Any gain will be decreased, and any loss increased, by the transaction costs incurred in effecting the short sale. Until the security is replaced, the Fund may be required to pay the lender amounts equal to any dividend or interest which accrues during the period of the loan. To borrow the security, the Fund may also be required to pay a premium, which would increase the cost of the security sold. The proceeds of the short sale will be retained by the broker, to the extent necessary to meet margin requirements, until the short position is closed. Until the Fund closes its short position or replaces the borrowed security, the Fund will (a) maintain cash or liquid securities at such levels that the amount so maintained plus the amount deposited with the broker as collateral will equal the current value of the security sold short, or (b) otherwise cover the Fund’s short position. Investment Company Shares. The Multi-Asset Fund (as a principal investment strategy) and all other Funds (as a non-principal investment strategy) may invest in shares of other investment companies, to the extent permitted by applicable law and subject to certain restrictions set forth in this SAI. Investment companies in which a Fund invests typically incur fees that are separate from those fees incurred directly by the Fund. The Funds’ purchase of such investment company securities results in the layering of expenses, such that shareholders would indirectly bear a proportionate share of the operating expenses of such investment companies, including advisory fees, in addition to paying Fund expenses. The Funds limit investments in securities issued by other investment companies in accordance with the 1940 Act and SEC rules. Generally, under the 1940 Act, a Fund may invest its assets in any investment company, as long as the Fund and its affiliated persons own no more than 3% of the outstanding voting stock of the acquired investment company. In addition, any acquisitions of investment company shares by any Affiliated Underlying Funds (i.e., the Funds in which the Multi-Asset Fund invests, which currently may include the Corporate Bond Fund, Government Bond Fund and High Yield Bond Fund) are subject 21 to the following restrictions: (a) no more than 5% of the Affiliated Underlying Fund’s total assets may be invested in any one investment company, and (b) an Affiliated Underlying Fund’s investments in all investment companies is limited to 10% of the Fund’s total assets. These restrictions may not apply to the Fund’s investments in money market mutual funds, if the Fund’s investments fall within the exceptions set forth under SEC rules. See “Investment Techniques and Risk Considerations – Multi-Asset Fund” above for more information about the restrictions applicable to acquisitions by the Multi-Asset Fund of shares of investment companies under the 1940 Act. Zero Coupon Bonds. The Money Market Funds (as a principal investment strategy), and the Bond Funds, the Multi-Asset Fund, the Large Cap Value Fund and the Large Cap Growth Fund (as a non-principal investment strategy) may invest in zero coupon securities, which are debt securities issued or sold at a discount from their face value and do not entitle the holder to any periodic payment of interest prior to maturity, a specified redemption date or a cash payment date. The securities are redeemed at face value on the specified maturity date. The amount of the discount varies depending on the time remaining until maturity or cash payment date, prevailing interest rates, liquidity of the security and perceived credit quality of the issuer. Zero coupon securities also may take the form of debt securities that have been stripped of their unmatured interest coupons, the coupons themselves and receipts or certificates representing interests in such stripped debt obligations and coupons. The market prices of zero coupon securities are generally more volatile than the market prices of interest-bearing securities and respond more to changes in interest rates than interest-bearing securities with similar maturities and credit qualities. The “original issue discount” on the zero coupon bonds must be included ratably in the income of the Fund as the income accrues even though payment has not been received. The Funds nevertheless intend to distribute amounts of cash equal to the currently accrued original issue discount, and this may require liquidating other securities at times the Funds might not otherwise do so and may result in capital loss. Pay-In-Kind Bonds. The Government Bond Fund, the Corporate Bond Fund, the California Bond Fund, the High Yield Bond Fund, the Multi-Asset Fund, the Large Cap Value Fund and the Large Cap Growth Fund may invest in pay-in-kind bonds as a non-principal investment strategy. These are securities which, at the issuer’s option, pay interest in either cash or additional securities for a specified period. Pay-in-kind bonds, like zero coupon bonds, are designed to give an issuer flexibility in managing cash flow. Pay-in-kind bonds are usually less volatile than zero coupon bonds, but more volatile than cash pay securities. REITs. The Bond Funds (excluding the Limited Maturity Fund and the Full Maturity Fund), the Multi-Asset Fund and the Equity Funds may invest in real estate investment trusts (“REITs”) as a non-principal investment strategy. REITs are trusts that invest primarily in commercial real estate or real estate-related loans. A REIT is not taxed on income distributed to its shareholders or unitholders if it complies with statutory requirements relating to its organization, ownership, assets and income, and with an additional statutory requirement that it distribute to its shareholders or unitholders at least 90% of its taxable income for each taxable year. Generally, REITs can be classified as Equity REITs, Mortgage REITs and Hybrid REITs. Equity REITs invest the majority of their assets directly in real property and derive their income primarily from rents and capital gains from appreciation realized through property sales. Mortgage REITs invest the majority of their assets in real estate mortgages and derive their income primarily from interest payments. Hybrid REITs combine the characteristics of both Equity and Mortgage REITs. By investing in REITs indirectly through a Fund, shareholders will bear not only the proportionate share of the expenses of the Fund, but also, indirectly, similar expenses of underlying REITs. A Fund may be subject to certain risks associated with the direct investments of the REITs. REITs may be affected by changes in their underlying properties and by defaults by borrowers or tenants. Mortgage REITs may be affected by the quality of the credit extended. Furthermore, REITs are dependent on specialized management skills. Some REITs may have limited diversification and may be subject to risks inherent in financing a limited number of properties. REITs depend generally on their ability to generate cash flow to make distributions to shareholders or unitholders, and may be subject to defaults by borrowers and to self-liquidations. In addition, a REIT may fail to qualify for its expected tax treatment under the Code or may fail to maintain exemption from registration under the 1940 Act. 22 Privatizations. As a non-principal investment strategy, the Bond Funds (excluding the Limited Maturity Fund and the Full Maturity Fund), the Multi-Asset Fund and the Equity Funds may invest in “privatizations” – foreign governmental programs of selling interests in government-owned or -controlled enterprises – which may represent opportunities for significant capital appreciation. The ability of U.S. entities, such as these Funds, to participate in privatizations may be limited by local law, or the terms for their participation may be less advantageous than for local investors. There can be no assurance that privatization programs will be successful. Special Situations. As a non-principal investment strategy, the Bond Funds (excluding the Limited Maturity Fund and the Full Maturity Fund), the Multi-Asset Fund and the Equity Funds may invest in “special situations” – joint ventures, cooperatives, partnerships, private placements, unlisted securities and similar vehicles. Such Funds believe that carefully selected special situations could enhance their capital appreciation potential. The Funds also may invest in certain types of vehicles or derivative securities that represent indirect investments in foreign markets or securities in which it is impracticable for the Funds to invest directly. Investments in special situations may be illiquid, as determined by the Investment Manager (or Sub-Adviser, if any) based on criteria reviewed by the Board. Forward Foreign Currency Contracts. As a non-principal investment strategy, the Bond Funds (excluding the Limited Maturity Fund and the Full Maturity Fund), the Multi-Asset Fund and the Equity Funds may enter into forward foreign currency contracts. A forward contract involves an obligation to purchase or sell a specific currency amount at a future date, agreed upon by the parties, at a price set at the time of the contract. The Funds may enter into contracts to sell, for a fixed amount of U.S. Dollars or other appropriate currency, the amount of foreign currency approximately equal to the value of some or all of the securities of the Funds denominated in such foreign currency.Forward currency contracts are traded directly between currency traders (usually large commercial banks) and their customers.The cost to a Fund of engaging in such contracts varies with factors such as the currency involved, the length of the contract period and the market conditions then prevailing.Because such contracts are entered into on a principal basis, no fees or commissions are involved. By entering into forward foreign currency contracts, the Funds will seek to protect the value of their investment securities against a decline in the value of a currency. However, these forward foreign currency contracts will not eliminate fluctuations in the underlying prices of the securities. Rather, they simply establish a rate of exchange which one can obtain at some future point in time. Although such contracts tend to minimize the risk of loss due to a decline in the value of the hedged currency, they also tend to limit any potential gain which might result should the value of such currency increase. At the maturity of a forward contract, a Fund may either sell a portfolio security and make delivery of the foreign currency, or it may retain the security and terminate its contractual obligation to deliver the foreign currency by purchasing an “offsetting” contract with the same currency trader, obligating it to purchase, on the same maturity date, the same amount of the foreign currency. These Funds may realize gains or losses from currency transactions. If a Fund engages in a forward currency contract with respect to particular securities, the precise matching of forward currency contract amounts and the value of the securities involved generally will not be possible because the value of such securities, measured in the non-U.S. currency, will change after the contract has been established.Thus a Fund might need to purchase or sell non-U.S. currencies in the spot (cash) market to the extent such non-U.S. currencies are not covered by forward currency contracts. Pursuant to Section 18 of the 1940 Act and SEC staff interpretations thereunder, for forwards that are not contractually required to “cash settle,” a Fund must cover its open positions by segregating liquid assets equal to the contracts’ full notional value. For forwards that are contractually required to cash settle, however, a Fund is permitted to set aside liquid assets in an amount equal to the Fund’s daily marked-to-market (net) obligation (i.e., the Fund’s daily net liability, if any) rather than the notional value. Municipal Securities. The California Money Fund and the California Bond Fund (as a principal investment strategy) and the Government Money Fund, the Prime Money Fund, the Government Bond Fund, the Corporate Bond Fund, the High Yield Bond Fund, the Multi-Asset Fund, the Large Cap Value Fund and the Large Cap 23 Growth Fund (as a non-principal investment strategy) may invest in municipal securities. Municipal securities consist of (1) debt obligations issued by state and local governments or by public authorities to obtain funds to be used for a wide variety of public facilities, for refunding outstanding obligations, for general operating expenses, for lending such funds to other public institutions and facilities, and in anticipation of the receipt of revenue or the issuance of other obligations, and (2) certain private activity and industrial development bonds issued by or on behalf of public authorities to obtain funds to provide for the construction, equipment, repair or improvement of privately operated facilities. The two principal classifications of municipal securities are “general obligation” securities and “limited obligation” or “revenue” securities.General debt obligation securities are backed by the taxing power of the issuing municipality. Accordingly, the capacity of the issuer of a general obligation bond as to the timely payment of interest and the repayment of principal when due is affected by the issuer’s maintenance of its tax base.Revenue obligations are backed by the revenue of a project or facility (for example, tolls from a toll bridge) or class of facilities, or in some cases from the proceeds of a special excise tax or other specific revenue source.Accordingly, the timely payment of interest and the repayment of principal in accordance with the terms of the revenue security is a function of the economic viability of the facility or revenue source.Revenue securities include private activity bonds and industrial development obligations which are not payable from the unrestricted revenues of the issuer.The payment of principal and interest on private activity and industrial development obligations generally depends solely on the ability of the revenues generated by the use of the specified facilities. Municipal securities may also include “moral obligation” bonds, which are normally issued by special purpose public authorities.If the issuer of moral obligation bonds is unable to meet its debt service obligations from current revenues, it may draw on a reserve fund the restoration of which is a moral commitment but not a legal obligations of the state or municipality which created the issuer. Municipal Leases. The California Money Fund, the California Bond Fund and the High Yield Bond Fund may invest in municipal lease obligations – instruments, or participations in instruments, issued in connection with lease obligations or installment purchase contract obligations of municipalities. Although municipal lease obligations do not constitute general obligations of the issuing municipality, a lease obligation is ordinarily backed by the municipality’s covenant to budget for, appropriate funds for, and make the payments due under the lease obligation. Specifically, in the state of California there are often legal covenants to budget for, appropriate funds for, and make the payments due under the lease obligation. However, certain lease obligations contain “non-appropriation” clauses, which provide that the municipality has no obligation to make lease or installment purchase payments in future years if the project is not available for use and occupancy. Municipal leases will be treated as liquid only if they satisfy criteria set forth in guidelines established by the Board, and there can be no assurance that a market will exist or continue to exist for any municipal lease obligation. Municipal Notes. Municipal notes consist of general obligation notes, tax anticipation notes (notes sold to finance working capital needs of the issuer in anticipation of receiving taxes on a future date), revenue anticipation notes (notes sold to provide needed cash prior to receipt of expected non-tax revenues from a specific source), bond anticipation notes, tax and revenue anticipation notes, certificates of indebtedness, demand notes, and construction loan notes. The maturities of the instruments at the time of issue will generally range from 90 days to 397 days. Private Activity and Industrial Development Bonds. The California Money Fund, the California Bond Fund and the High Yield Bond Fund may purchase certain private activity or industrial development bonds, the interest paid on which is exempt from federal income tax. These bonds are issued by or on behalf of public authorities to raise money to finance various privately-owned or -operated facilities for business and manufacturing, housing and pollution control. These bonds are also used to finance public facilities such as airports, mass transit systems, ports, parking or sewage or solid waste disposal facilities, as well as certain other categories. The payment of the principal and interest on such bonds is secured primarily by revenues derived from loan repayments or lease payments by entity owning or operating the facility, which may or may not be guaranteed by a parent company or otherwise secured.Such bonds generally are not secured by a pledge of the taxing power of the issuer of the bonds, and therefore depend on the revenue of a private entity.The continued ability of such an entity to generate sufficient revenues for the payment of principal and interest on such bonds may be affected by many factors, 24 including the size of the entity, its capital structure, demand for its products or services, competition, general economic conditions, government regulation and the extent of the entity’s dependence on revenues from the operation of the particular facility being financed, and may be dependent solely on the revenues generated by the use of the facility. Derivatives.Certain Funds may use various types of derivatives (“Financial Instruments”) as non-principal investment strategies for various reasons, including as a substitute for other investments, to attempt to enhance a portfolio’s total return or yield, or to hedge or otherwise alter the investment characteristics of a portfolio.Except as otherwise provided in its prospectus, this SAI or by applicable law, each such Fund may purchase and sell any type of Financial Instrument, including those which may become available in the future as the Investment Manager or a Sub-Adviser develops new techniques and as new Financial Instruments or other techniques are developed.As with any other investment or investment technique, any such Fund may choose not to make use of derivatives for a variety of reasons (including cost considerations), and there can be no assurance that any derivatives strategy employed will be successful. The use of Financial Instruments may be limited by applicable law and any applicable regulations of the SEC, the Commodity Futures Trading Commission (“CFTC”), or the exchanges on which some Financial Instruments may be traded.In addition, recent legislation calls for new regulation of the derivatives markets.The extent and impact of the regulation is not yet known and may not be known for some time.Any new regulations could adversely affect the value, availability, and performance of derivative instruments, may make them more costly, and may limit or restrict their use by a Fund. Summary of Certain Risks. The use of Financial Instruments involves special considerations and risks, certain of which are summarized below, and may result in losses to a fund. In general, the use of Financial Instruments may increase the volatility of a fund and may involve a small investment of cash relative to the magnitude of the risk or exposure assumed. Even a small investment in derivatives may magnify or otherwise increase investment losses to a fund. As noted above, there can be no assurance that any derivatives strategy will succeed. • Financial Instruments are subject to the risk that the market value of the derivative itself or the market value of underlying instruments will change in a way adverse to a fund’s interest. Many Financial Instruments are complex, and successful use of them depends in part upon an adviser’s ability to forecast correctly future market trends and other financial or economic factors or the value of the underlying security, index, interest rate or currency. Even if the adviser’s forecasts are correct, other factors may cause distortions or dislocations in the markets that result in unsuccessful transactions. Financial Instruments may behave in unexpected ways, especially in abnormal or volatile market conditions. • A fund may be required to maintain assets as “cover,” maintain segregated accounts, post collateral or make margin payments when it takes positions in Financial Instruments.Assets that are segregated or used as cover, margin or collateral may be required to be in the form of cash or liquid securities, and typically may not be sold while the position in the Financial Instrument is open unless they are replaced with other appropriate assets. If markets move against a fund’s position, the fund may be required to maintain or post additional assets and may have to dispose of existing investments to obtain assets acceptable as collateral or margin. This may prevent it from pursuing its investment objective. Assets that are segregated or used as cover, margin or collateral typically are invested, and these investments are subject to risk and may result in losses to a fund. These losses may be substantial, and may be in addition to losses incurred by using the Financial Instrument in question. If a fund is unable to close out its positions, it may be required to continue to maintain such assets or accounts or make such payments until the positions expire or mature, and the fund will continue to be subject to investment risk on the assets. Segregation, cover, margin and collateral requirements may impair a fund’s ability to sell a portfolio security or make an investment at a time when it would otherwise be favorable to do so, or require the fund to sell a portfolio security or close out a derivatives position at a disadvantageous time or price. 25 • A fund’s ability to close out or unwind a position in a Financial Instrument prior to expiration or maturity depends on the existence of a liquid market or, in the absence of such a market, the ability and willingness of the other party to the transaction (the “counterparty”) to enter into a transaction closing out the position. If there is no market or a fund is not successful in its negotiations, the fund may not be able to sell or unwind the derivative position at a particular time or at an anticipated price. This may also be the case if the counterparty to the Financial Instrument becomes insolvent. A fund may be required to make delivery of portfolio securities or other assets underlying a Financial Instrument in order to close out a position or to sell portfolio securities or assets at a disadvantageous time or price in order to obtain cash to close out the position. While the position remains open, a fund continues to be subject to investment risk on the Financial Instrument. A fund may or may not be able to take other actions or enter into other transactions, including hedging transactions, to limit or reduce its exposure to the Financial Instrument. • Certain Financial Instruments transactions may have a leveraging effect on a fund, and adverse changes in the value of the underlying security, index, interest rate, currency or other instrument or measure can result in losses substantially greater than the amount invested in the Financial Instrument itself. When a fund engages in transactions that have a leveraging effect, the value of the fund is likely to be more volatile and all other risks also are likely to be compounded. This is because leverage generally magnifies the effect of any increase or decrease in the value of an asset and creates investment risk with respect to a larger pool of assets than a fund would otherwise have. Certain Financial Instruments have the potential for unlimited loss, regardless of the size of the initial investment. • Many Financial Instruments may be difficult to value or may be valued subjectively. Inaccurate valuations can result in increased payment requirements to counterparties or a loss of value to a fund. • Liquidity risk exists when a particular Financial Instrument is difficult to purchase or sell. If a derivative transaction is particularly large or if the relevant market is illiquid, a fund may be unable to initiate a transaction or liquidate a position at an advantageous time or price. Certain Financial Instruments, including certain over-the-counter (or “OTC”) options and swaps, may be considered illiquid and therefore subject to a fund’s limitation on investments in illiquid securities. • In a hedging transaction there may be imperfect correlation, or even no correlation, between the identity, price or price movements of a Financial Instrument and the identity, price or price movements of the investments being hedged. This lack of correlation may cause the hedge to be unsuccessful and may result in a fund incurring substantial losses and/or not achieving anticipated gains. • Hedging strategies can reduce opportunity for gain by offsetting the positive effect of favorable price movements. Even if the strategy works as intended, a fund might be in a better position had it not attempted to hedge at all. • Financial Instruments transactions used for non-hedging purposes may result in losses which would not be offset by increases in the value of portfolio securities or declines in the cost of securities to be acquired. If a fund enters into a derivatives transaction as an alternative to purchasing or selling other investments or in order to obtain desired exposure to an index or market, the fund will be exposed to the same risks as are incurred in purchasing or selling the other investments directly, as well as the risks of the derivatives transaction itself. • Certain Financial Instruments transactions involve the risk of loss resulting from the insolvency or bankruptcy of the counterparty or the failure by the counterparty to make required payments or otherwise comply with the terms of the contract. In the event of default by a counterparty, a fund may have contractual remedies pursuant to the agreements related to the transaction, which may be limited by applicable law in the case of the counterparty’s bankruptcy. 26 • Certain Financial Instruments transactions, including certain options, swaps, forward contracts, and certain options on foreign currencies, are not entered into or traded on exchanges or in markets regulated by the CFTC or the SEC. Instead, such OTC derivatives are entered into directly by the counterparties and may be traded only through financial institutions acting as market makers. Many of the protections afforded to exchange participants will not be available to participants in OTC derivatives transactions. For example, OTC derivatives transactions are not subject to the guarantee of an exchange or clearinghouse and as a result a fund bears greater risk of default by the counterparties to such transactions. Information available on counterparty creditworthiness may be incomplete or outdated, thus reducing the ability to anticipate counterparty defaults. • Swap contracts involve special risks. Swaps may in some cases be illiquid. In the absence of a central exchange or market for swap transactions, they may be difficult to trade or value, especially in the event of market disruptions. The swap market is a relatively new market and is largely unregulated. It is possible that developments in the swap market, including potential government regulation, could adversely affect a fund’s ability to terminate existing swap agreements or to realize amounts to be received under such agreements. Credit default swaps involve additional risks. For example, credit default swaps increase credit risk since a fund has exposure to both the issuer of the referenced obligation (typically a debt obligation) and the counterparty to the credit default swap. • Financial Instruments involve operational risk. There may be incomplete or erroneous documentation or inadequate collateral or margin, or transactions may fail to settle. The risk of operational failures may be higher for OTC derivatives transactions. For derivatives not guaranteed by an exchange, a fund may have only contractual remedies in the event of a counterparty default, and there may be delays, costs, disagreements as to the meaning of contractual terms and litigation, in enforcing those remedies. • Financial Instruments transactions conducted outside the United States may not be conducted in the same manner as those entered into on U.S. exchanges, and may be subject to different margin, exercise, settlement or expiration procedures. Many of the risks of OTC derivatives transactions are also applicable to derivatives transactions conducted outside the United States. Derivatives transactions conducted outside the United States also are subject to the risks affecting foreign securities, currencies and other instruments. • Financial Instruments involving currency are subject to additional risks. Currency related transactions may be negatively affected by government exchange controls, blockages, and manipulations. Exchange rates may be influenced by factors extrinsic to a country’s economy. Also, there is no systematic reporting of last sale information with respect to foreign currencies. As a result, the information on which trading in currency derivatives is based may not be as complete as, and may be delayed beyond, comparable data for other transactions. • Use of Financial Instruments involves transaction costs, which may be significant. Use of Financial Instruments also may increase the amount of taxable income to shareholders, including in a fund that invests largely in municipal securities. Swap Agreements. The Government Bond Fund, the Corporate Bond Fund, the California Bond Fund, the High Yield Bond Fund, the Multi-Asset Fund, the Large Cap Value Fund and the Large Cap Growth Fund may invest in swap agreements as a non-principal investment strategy. A swap is a financial instrument that typically involves the exchange of cash flows between two parties on specified dates (settlement dates), where the cash flows are based on agreed-upon measures such as prices, interest rates or indices. The nominal amount on which these cash flows are calculated is called the notional amount. Swaps are individually negotiated and structured to include exposure to a variety of different types of investments or market factors, such as interest rates, foreign currency rates, mortgage securities, corporate borrowing rates, security prices, indices or inflation rates. 27 Swap agreements may increase or decrease the overall volatility of the investments of a Fund and its share price. The performance of swap agreements may be affected by a change in the specific interest rate, currency, or other factors that determine the amounts of payments due to and from the Fund. If a swap agreement calls for payments by the Fund, the Fund must be prepared to make such payments when due. In addition, if the counterparty’s creditworthiness declines, the value of a swap agreement would be likely to decline, potentially resulting in losses. Generally, a swap agreement has a fixed maturity date that is agreed upon by the parties. The agreement can be terminated before the maturity date only under limited circumstances, such as default by one of the parties or insolvency, among others, and can be transferred by a party only with the prior written consent of the other party. The Fund may be able to eliminate its exposure under a swap agreement either by assignment or by other disposition, or by entering into an offsetting swap agreement with the same party or a similarly creditworthy party. If the counterparty is unable to meet its obligations under the contract, declares bankruptcy, defaults or becomes insolvent, the Fund may not be able to recover the money it expected to receive under the contract. A swap agreement can be a form of leverage, which can magnify the Fund’s gains or losses. In order to reduce the risk associated with leveraging, the Fund will cover its current obligations under swap agreements according to guidelines established by the SEC. If the Fund enters into a swap agreement on a net basis, it will segregate assets with a daily value at least equal to the excess, if any, of the Fund’s accrued obligations under the swap agreement over the accrued amount the Fund is entitled to receive under the agreement. If the Fund enters into a swap agreement on other than a net basis, it will segregate assets with a value equal to the full amount of the Fund’s accrued obligations under the agreement. Equity Swaps. In a typical equity swap, one party agrees to pay another party the return on a stock, stock index or basket of stocks in return for a specified interest rate. By entering into an equity index swap, for example, the index receiver can gain exposure to stocks making up the index of securities without actually purchasing those stocks. Equity index swaps involve not only the risk associated with investment in the securities represented in the index, but also the risk that the performance of such securities, including dividends, will not exceed the return on the interest rate that the Fund will be committed to pay. Interest Rate Swaps. Interest rate swaps are financial instruments that involve the exchange of one type of interest rate cash flow for another type of interest rate cash flow on specified dates in the future. Some of the different types of interest rate swaps are “fixed-for floating rate swaps,” “termed basis swaps” and “index amortizing swaps.” Fixed-for floating rate swaps involve the exchange of fixed interest rate cash flows for floating rate cash flows. Termed basis swaps entail cash flows to both parties based on floating interest rates, where the interest rate indices are different. Index amortizing swaps are typically fixed-for floating swaps where the notional amount changes if certain conditions are met. Like a traditional investment in a debt security, a Fund could lose money by investing in an interest rate swap if interest rates change adversely. For example, if the Fund enters into a swap where it agrees to exchange a floating rate of interest for a fixed rate of interest, the Fund may have to pay more money than it receives. Similarly, if the Fund enters into a swap where it agrees to exchange a fixed rate of interest for a floating rate of interest, the Fund may receive less money than it has agreed to pay. Options on Securities, Securities Indices and Currencies. As a non-principal investment strategy, each of the Bond Funds, the Multi-Asset Fund and the Equity Funds may purchase put and call options on securities in which it has invested, on foreign currencies represented in its portfolio and on any securities index based in whole or in part on securities in which that Fund may invest. These Funds also may enter into closing sales transactions in order to realize gains or minimize losses on options they have purchased. The Limited Maturity Fund, the Full Maturity Fund, the Diversified Equity Fund and the Socially Responsible Equity Fund may enter into such option transactions only as part of a hedging strategy. 28 Each of these Funds normally will purchase call options in anticipation of an increase in the market value of securities of the type in which it may invest or a positive change in the currency in which such securities are denominated. The purchase of a call option would entitle a Fund, in return for the premium paid, to purchase specified securities or a specified amount of a foreign currency at a specified price during the option period. Each of these Funds normally will purchase put options in anticipation of a decrease in the market value of securities of the type in which it may invest or a negative change in the currency in which such securities are denominated. The purchase of a put option would entitle a Fund, in return for the premium paid, to sell specified securities or a specified amount of a foreign currency at a specified price during the option period.Puts and calls on indices are similar to puts and calls on securities, except that all settlements are in cash and gain or loss depends on changes in the index and the amount of cash is equal to the difference between the closing price of the index and the exercise price times a specified multiple which determines the total dollar value for each point of such difference. Each of these Funds may purchase and sell options traded on U.S. and foreign exchanges. Although a Fund will generally purchase only those options for which there appears to be an active secondary market, there can be no assurance that a liquid secondary market on an exchange will exist for any particular option or at any particular time. For some options, no secondary market on an exchange may exist. In such event, it might not be possible to effect closing transactions in particular options, with the result that a Fund would have to exercise its options in order to realize any profit and would incur transaction costs upon the purchase or sale of the underlying securities. Secondary markets on an exchange may not exist or may not be liquid for a variety of reasons including: (i) insufficient trading interest in certain options; (ii) restrictions on opening transactions or closing transactions imposed by an exchange; (iii) trading halts, suspensions or other restrictions may be imposed with respect to particular classes or series of options; (iv) unusual or unforeseen circumstances which interrupt normal operations on an exchange; (v) inadequate facilities of an exchange or the Options Clearing Corporation to handle current trading volume at all times; or (vi) discontinuance in the future by one or more exchanges for economic or other reasons, of trading of options (or of a particular class or series of options), in which event the secondary market on that exchange (or in that class or series of options) would cease to exist, although outstanding options on that exchange that had been issued by the Options Clearing Corporation as a result of trades on that exchange would continue to be exercisable in accordance with their terms. Although these Funds do not currently intend to do so, they may, in the future, write (i.e., sell) covered put and call options on securities, securities indices and currencies in which they may invest. A covered call option involves a Fund’s giving another party, in return for a premium, the right to buy specified securities owned by that Fund at a specified future date and price set at the time of the contract. A covered call option serves as a partial hedge against a price decline of the underlying security. However, by writing a covered call option, a Fund gives up the opportunity, while the option is in effect, to realize gain from any price increase (above the option exercise price) in the underlying security. In addition, a Fund’s ability to sell the underlying security is limited while the option is in effect unless that Fund effects a closing purchase transaction.A covered put option gives the holder of the option the right to sell the underlying security to the Fund at the stated exercise price. A Fund will receive a premium for writing a put option but will be obligated for as long as the option is outstanding to purchase the underlying security at a price that may be higher than the market value of that security at the time of exercise. In order to “cover” put options it has written, a Fund will cause its custodian to segregate cash, cash equivalents, Government securities or other liquid equity or debt securities with at least the value of the exercise price of the put options. A Fund will not write put options if the aggregate value of the obligations underlying the put options exceeds 25% of that Fund’s total assets. Options on indices may, depending on circumstances, involve greater risk than options on securities.Because index options are settled in cash, when a Fund writes a call on an index it may not be able to provide in advance for its potential settlement obligations by acquiring and holding the underlying securities. The value of an option position will reflect, among other things, the current market value of the underlying investment, the time remaining until expiration, the relationship of the exercise price to the market price of the underlying investment, the historical price volatility of the underlying investment and general market conditions. 29 Options purchased by a fund that expire unexercised have no value, and the fund will realize a loss in the amount of the premium paid and any transaction costs. If an option written by a fund expires unexercised, the fund realizes a gain equal to the premium received at the time the option was written. Transaction costs must be included in these calculations. A fund may effectively terminate its right or obligation under an option by entering into a closing transaction. For example, a fund may terminate its obligation under a call or put option that it had written by purchasing an identical call or put option; this is known as a closing purchase transaction. Conversely, a fund may terminate a position in a put or call option it had purchased by writing an identical put or call option; this is known as a closing sale transaction. Closing transactions permit a fund to realize profits or limit losses on an option position prior to its exercise or expiration. There can be no assurance that it will be possible for a fund to enter into any closing transaction. There is no assurance that higher than anticipated trading activity or other unforeseen events might not, at times, render certain of the facilities of the Options Clearing Corporation inadequate, and result in the institution by an exchange of special procedures that may interfere with the timely execution of the Funds’ option orders. Futures and Options on Futures. The Government Bond Fund, the Corporate Bond Fund, the California Bond Fund, the High Yield Bond Fund, the Multi-Asset Fund, the U.S. Core Equity Fund, the Large Cap Value Fund and the Large Cap Growth Fund may invest in futures contracts and options on futures contracts as a non-principal investment strategy. Futures contracts provide for the future sale by one party and purchase by another party of a specified amount of a specific security or currency at a specified future time at a specified price. An option on a futures contract gives the purchaser the right, in exchange for a premium, to assume a position in a futures contract at a specified exercise price during the term of the option. Although some futures contracts call for making or taking delivery of the underlying securities, generally these obligations are closed out prior to delivery by offsetting purchases or sales of matching futures contracts (contracts traded on the same exchange, on the same underlying security or index, and with the same delivery month). If an offsetting purchase price is less than the original sale price, the Fund realizes a capital gain; if it is more, the Fund realizes a capital loss. Conversely, if an offsetting sale price is more than the original purchase price, a Fund realizes a capital gain; if it is less, the Fund realizes a capital loss. The transaction costs must also be included in these calculations. These Funds may use futures contracts and related options for bona fide hedging purposes, to offset changes in the value of securities held or expected to be acquired or be disposed of, to minimize fluctuations in foreign currencies, or to gain exposure to a particular market or instrument. These Funds will minimize the risk that they will be unable to close out a futures contract by only entering into futures contracts that are traded on national futures exchanges. An index futures contract is a bilateral agreement pursuant to which two parties agree to take or make delivery of an amount of cash equal to a specified dollar amount multiplied by the difference between the bond index value at the close of trading of the contract and the price at which the futures contract is originally struck. No physical delivery of the bonds comprising the index is made; generally contracts are closed out prior to their expiration date. In order to avoid leveraging and related risks, when one of the Funds invests in futures contracts, the Fund will cover positions by depositing an amount of cash or liquid securities equal to the market value of the futures positions held, less margin deposits, in a segregated account and that amount will be marked-to-market on a daily basis. There are risks associated with these activities, including the following: (1) the success of a hedging strategy may depend on an ability to predict movements in the prices of individual securities, fluctuations in markets and movements in interest rates, (2) there may be an imperfect or lack of correlation between the changes in market value of the securities held and the prices of futures and options on futures, (3) there may not be a liquid secondary market for a futures contract or option, (4) trading restrictions or limitations, or increases in initial margin requirements, may be imposed by an exchange, and (5) government regulations may restrict trading in futures contracts and options on futures. 30 The Funds may buy and sell futures contracts and related options to manage exposure to changing interest rates and securities prices. Some strategies reduce a Fund’s exposure to price fluctuations, while others tend to increase market exposure. Futures and options on futures can be volatile instruments and involve certain risks that could negatively impact a Fund’s return. No price is paid upon entering into futures contracts. Instead, a Fund would be required to deposit an amount of cash or U.S. Treasury securities known as “initial margin.” Subsequent payments, called “variation margin,” to and from the broker, would be made on a daily basis as the value of the future position varies (a process known as “marked-to-market”). The margin is in the nature of performance bond or good-faith deposit on a futures contract. Futures and options on futures are taxable instruments. Futures and options on futures are regulated by the CFTC.The Investment Manager and relevant Sub-Adviser have claimed exclusion from the definition of “commodity pool operator” under the Commodity Exchange Act, and therefore are not subject to registration or regulation as a pool operator under that Act. Repurchase Agreements. The Government Money Fund and the Prime Money Fund (as a principal investment strategy) and the California Money Fund, the Government Bond Fund, the Corporate Bond Fund, the California Bond Fund, the High Yield Bond Fund and the Multi-Asset Fund (as a non-principal investment strategy) may engage in repurchase agreements. The Limited Maturity Fund and the Full Maturity Fund may as a non-principal investment strategy enter into repurchase agreements involving the types of securities which are eligible for purchase by those Funds. The Funds expect that there will be no limitation upon the maturity of the securities underlying the repurchase agreements. Repurchase agreements, which may be viewed as a type of secured lending, typically involve the acquisition by a Fund of government securities or other securities from a selling financial institution such as a bank, savings and loan association or broker-dealer. The agreement provides that the Fund will sell back to the institution, and that the institution will repurchase, the underlying security (“collateral”) at a specified price and at a fixed time in the future, usually not more than seven days from the date of purchase. The Fund will receive interest from the institution until the time when the repurchase is to occur. Although such date is deemed to be the maturity date of a repurchase agreement, the maturities of securities subject to repurchase agreements are not subject to any limits and may exceed one year. The Investment Manager (or Sub-Adviser, if applicable) will enter into repurchase agreements on behalf of a Fund only with financial institutions deemed to present minimal risk of bankruptcy during the term of the agreement based on guidelines established and periodically reviewed by the Board. These guidelines currently permit the Funds to enter into repurchase agreements with any bank the Investment Manager (or Sub-Adviser, if any) may recommend if it determines such bank to be creditworthy. Repurchase agreements are considered to be loans collateralized by the underlying security. Repurchase agreements entered into by the Funds will provide that the underlying security at all times shall have a value at least equal to 102% of the price stated in the agreement. This underlying security will be marked-to-market daily. The Investment Manager (or Sub-Adviser, if any) will monitor compliance with this requirement. Under all repurchase agreements entered into by the Funds, the Custodian or its agent must take possession of the underlying collateral. However, if the seller defaults, the Funds could realize a loss on the sale of the underlying security to the extent the proceeds of the sale are less than the resale price. In addition, even though the Bankruptcy Code provides protection for most repurchase agreements, if the seller should be involved in bankruptcy or insolvency proceedings, the Funds may incur delays and costs in selling the security and may suffer a loss of principal and interest if the Funds are treated as unsecured creditors. Repurchase agreements, in some circumstances, may not be tax-exempt. None of these Funds, as a policy, will invest in repurchase agreements that do not mature within seven days if any such investment, together with any other illiquid assets held by the Fund, amount to more than 10% of its total assets. Investments in repurchase agreements may at times be substantial when, in the view of the Investment Manager or relevant Sub-Adviser, as applicable, liquidity or other considerations warrant. 31 Lending of Portfolio Securities. As a non-principal investment strategy, the Government Bond Fund, the Corporate Bond Fund, the California Bond Fund, the High Yield Bond Fund, the Multi-Asset Fund, the U.S. Core Equity Fund, the Large Cap Value Fund and the Large Cap Growth Fund may lend their portfolio securities in order to generate additional income. Such loans may be made to broker-dealers or other financial institutions whose creditworthiness is acceptable to the Investment Manager on behalf of the Funds. These loans would be required to be secured continuously by collateral, including cash, cash equivalents, irrevocable letters of credit, Government securities, or other high-grade liquid debt securities, maintained on a current basis (i.e., marked-to-market daily) at an amount at least equal to 100% of the market value of the securities loaned plus accrued interest. A Fund may pay reasonable administrative and custodial fees in connection with a loan and may pay a negotiated portion of the income earned on the cash to the borrower or placing broker. Loans are subject to termination at the option of a Fund or the borrower at any time. Upon such termination, that Fund is entitled to obtain the return of the securities loaned within five business days. For the duration of the loan, a Fund will continue to receive the equivalent of the interest or dividends paid by the issuer on the securities loaned, will receive proceeds from the investment of the collateral and will have the ability to recall securities in order to exercise voting rights with respect to those securities. As with other extensions of credit, there are risks of delay in recovery or even losses of rights in the securities loaned should the borrower of the securities fail financially. However, the loans will be made only to borrowers deemed by the Investment Manager (or Sub-Adviser, if any) to be creditworthy, and when, in the judgment of the Investment Manager (or Sub-Adviser, if any), the income which can be earned currently from such loans justifies the attendant risk. Standby Commitments and Put Transactions. The California Money Fund and the California Bond Fund (as a principal investment strategy) and the Government Money Fund, the Prime Money Fund, the Government Bond Fund, the Corporate Bond Fund, the High Yield Bond Fund, the Multi-Asset Fund,the Large Cap Value Fund and the Large Cap Growth Fund (as a non-principal investment strategy) may engage in standby commitments and put transactions. The Investment Manager and each Sub-Adviser has the authority to purchase securities at a price which would result in a yield to maturity lower than that generally offered by the seller at the time of purchase when these Funds can simultaneously acquire the right to sell the securities back to the seller, the issuer, or a third party (the “writer”) at an agreed-upon price at any time during a stated period or on a certain date. Such a right is generally denoted as a “standby commitment” or a “put.” The purpose of engaging in transactions involving puts is to maintain flexibility and liquidity to permit these Funds to meet redemptions and remain as fully invested as possible in municipal securities. The right to put the securities depends on the writer’s ability to pay for the securities at the time the put is exercised. The Funds will limit their put transactions to institutions which the Investment Manager (or Sub-Adviser, if any) believes present minimum credit risks, and the Investment Manager (or Sub-Adviser, if any) will use its best efforts to initially determine and continue to monitor the financial strength of the sellers of the puts by evaluating their financial statements and such other information as is available in the marketplace. It may, however, be difficult to monitor the financial strength of the writers because adequate current financial information may not be available. If any writer is unable to honor a put for financial reasons, the investing Fund would be a general creditor (i.e., on a parity with all other unsecured creditors) of the writer. Furthermore, particular provisions of the contract between the Fund and the writer may excuse the writer from repurchasing the securities under certain circumstances (e.g., provisions excusing the writer from repurchasing securities if there is a change in the published rating of the underlying securities or any similar event that has an adverse effect on the issuer’s credit, or provisions that puts will not be exercised except in certain special cases, such as to maintain portfolio liquidity). The Fund could, however, at any time sell the underlying portfolio security in the open market or wait until the portfolio security matures, at which time it should realize the full par value of the security. The securities purchased subject to a put may be sold to third persons at any time, even though the put is outstanding, but the put itself, unless it is an integral part of the security as originally issued, may not be marketable or otherwise assignable. Therefore, the put would have value only to the Fund. Sale of the securities to third parties or lapse of time with the put unexercised may terminate the right to put the securities. Prior to the 32 expiration of any put, the Fund could seek to negotiate terms for its extension. If such a renewal cannot be negotiated on terms satisfactory to the Fund, the Fund could, of course, sell the security. The maturity of the underlying security will generally be different from that of the put. Bank Obligations. The Money Market Funds and the Multi-Asset Fund (as a principal investment strategy) and all other Funds (as a non-principal investment strategy) may invest in all types of bank obligations, including bank notes, bankers’ acceptances, certificates of deposit, and interest-bearing time or other interest-bearing deposits in commercial or savings banks. Bank notes are unsecured promissory notes representing debt obligations that are issued by banks in large denominations. Bankers’ acceptances are bills of exchange or time drafts drawn on and accepted by commercial banks. Bankers’ acceptances are issued by corporations to finance the shipment and storage of goods. Maturities are generally six months or less. A certificate of deposit (a “CD”) is an interest-bearing instrument with a specific maturity. CDs are issued by banks and savings and loan institutions in exchange for the deposit of funds and normally can be traded in the secondary market prior to maturity. Time deposits are non-negotiable deposits maintained at a banking institution for a specified period of time at a specified interest rate. Certificates of deposit and time deposits with penalties for early withdrawal will be considered illiquid. U.S. commercial banks organized under federal law are supervised and examined by the Comptroller of the Currency and are required to be members of the Federal Reserve System and to be insured by the Federal Deposit Insurance Corporation (the “FDIC”). U.S. banks organized under state law are supervised and examined by state banking authorities, but are members of the Federal Reserve System only if they elect to join. Most state banks are insured by the FDIC (although such insurance may not be of material benefit to a fund, depending upon the principal amount of CDs of each held by the fund) and are subject to the federal examination and to a substantial body of federal law and regulation. As a result of federal and state laws and regulations, U.S. branches of U.S. banks are, among other things, generally required to maintain specified levels of reserves, and are subject to other supervision and regulation designed to promote financial soundness. Obligations of foreign branches of U.S. banks, such as CDs and time deposits, may be general obligations of the parent bank in addition to the issuing branch, or may be limited by the terms of a specific obligation and governmental regulation. Such obligations are subject to different risks than are those of U.S. banks or U.S. branches of foreign banks. These risks include foreign economic and political developments, foreign governmental restrictions that may adversely affect payment of principal and interest on the obligations, foreign exchange controls and foreign withholding and other taxes on interest income. Foreign branches of U.S. banks and foreign branches of foreign banks are not necessarily subject to the same or similar regulatory requirements that apply to U.S. banks, such as mandatory reserve requirements, loan limitations and accounting, auditing and financial recordkeeping requirements. In addition, less information may be publicly available about a foreign branch of a U.S. bank or about a foreign bank than about a U.S. bank. Obligations of U.S. branches of foreign banks may be general obligations of the parent bank, in addition to the issuing branch, or may be limited by the terms of a specific obligation and by federal and state regulation as well as governmental action in the country in which the foreign bank has its head office. A U.S. branch of a foreign bank with assets in excess of $1 billion may or may not be subject to reserve requirements imposed by the Federal Reserve System or by the state in which the branch is located if the branch is licensed in that state. In addition, branches licensed by the Comptroller of the Currency and branches licensed by certain states (“State Branches”) may or may not be required to: (a) pledge to the regulator, by depositing assets with a designated bank within the state; and (b) maintain assets within the state in an amount equal to a specified percentage of the aggregate amount of liabilities of the foreign bank payable at or through all of its agencies or branches within the state. The deposits of State Branches may not necessarily be insured by the FDIC. In addition, there may be less publicly available information about a U.S. branch of a foreign bank than about a U.S. bank. Eurodollar Certificates of Deposit and Foreign Securities. The Bond Funds, the Multi-Asset Fund and the Equity Funds may invest in Eurodollar certificates of deposit and foreign securities as a non-principal investment strategy. Before investing in Eurodollar certificates of deposit, the Investment Manager will consider their 33 marketability, possible restrictions on international currency transactions, and any regulations imposed by the domicile country of the foreign issuer. Eurodollar certificates of deposit may not be subject to the same regulatory requirements as certificates of deposit issued by U.S. banks, and associated income may be subject to the imposition of foreign taxes, including withholding taxes. Investments in securities of foreign issuers or securities principally traded overseas may involve certain special risks due to foreign economic, political, and legal developments, as described above. All such securities will be U.S. Dollar denominated. Tax Exempt Commercial Paper. The California Money Fund and the California Bond Fund (as a principal investment strategy), and all other Funds (as a non-principal investment strategy) may invest in tax-exempt commercial paper. Tax exempt commercial paper is an unsecured short-term obligation issued by a government or political sub-division. U.S. Government Agency and Instrumentality Obligations. The Government Money Fund, the Prime Money Fund, the Limited Maturity Fund, the Government Bond Fund, and the Full Maturity Fund (as a principal investment strategy), and all other Funds (as a non-principal investment strategy) may invest in U.S. Government agency and instrumentality obligations. Various agencies of the U.S. Government issue obligations, including but not limited to the Federal Home Loan Bank (“FHLB”), the Student Loan Marketing Association, the Private Export Funding Corporation (an entity established by the U.S. Treasury and the Export/Import Bank of the United States), Farmers Home Administration, Federal Farm Credit Bank, Federal Housing Administration, Ginnie Mae, Maritime Administration, Small Business Administration, and the Tennessee Valley Authority. The Funds may purchase securities guaranteed by Ginnie Mae which represent participation in Veterans Administration and Federal Housing Administration backed mortgage pools. Obligations of instrumentalities of the U.S. Government include securities issued by, among others, FHLB, Freddie Mac, Federal Intermediate Credit Banks, Federal Land Banks, Fannie Mae and the U.S. Postal Service. These obligations include securities supported by the full faith and credit of the U.S. Treasury (i.e., Ginnie Mae), securities supported by the right of the issuer to borrow from the U.S. Treasury (e.g., the Federal Home Loan Banks), securities supported by the discretionary authority of the U.S. government to purchase certain obligations of the agency (such as securities issued by Fannie Mae), and securities supported only by the credit of the instrumentality (such as securities issued by Freddie Mac). U.S. government securities include issues by non-governmental entities (like financial institutions) that carry direct guarantees from U.S. government agencies as part of government initiatives in response to market crises or otherwise.In the case of obligations not backed by the full faith and credit of the Unites States, a Fund must look principally to the agency or instrumentality issuing or guaranteed the obligation for ultimate repayment and may not be able to assert a claim against the United States itself in the event the agency or instrumentality does not meet its commitments.No government agencies or instrumentalities guarantees the market value of the securities it issues, and the market value such securities will fluctuate in response to changesin interest rates.Guarantees of principal by agencies or instrumentalities of the U.S. Government may be a guarantee of payment at the maturity of the obligation so that in the event of a default prior to maturity there might not be a market and thus no means of realizing the value of the obligation prior to maturity. U.S. Treasury Obligations. The Government Money Fund, the Prime Money Fund, the Limited Maturity Fund, the Government Bond Fund, and the Full Maturity Fund (as a principal investment strategy), and all other Funds (as a non-principal investment strategy) may invest in U.S. Treasury obligations, which consist of bills (maturity of one year or less), notes (maturity of one to ten years) and bonds (maturities generally greater than ten years) issued by the U.S. Treasury.The U.S. government does not guarantee the market value of Treasury securities, which fluctuate in response to changes in interest rates.The Funds may also invest in separately traded interest and principal component parts of such obligations, known as Separately Traded Registered Interest and Principal Securities (“STRIPS”), that are transferable through the federal book-entry system. STRIPS are sold as zero coupon securities, which means that they are sold at a substantial discount and redeemed at face value at their maturity date without interim cash payments of interest or principal. This discount is accreted over the life of the security, and such accretion will constitute the income earned on the security for both accounting and tax 34 purposes. Because of these features, such securities may be subject to greater interest rate volatility than interest paying investments. When-Issued Securities and Forward Commitments. The Money Market Funds, the Limited Maturity Fund, the Government Bond Fund, the Corporate Bond Fund, the California Bond Fund, the Full Maturity Fund, the High Yield Bond Fund, the Multi-Asset Fund, the Large Cap Value Fund and the Large Cap Growth Fund may invest in securities on a when-issued or forward commitment basis as a non-principal investment strategy. These investments involve the purchase of debt obligations on a when-issued basis, in which case delivery and payment normally take place within 45 days after the date of commitment to purchase. These securities are subject to market fluctuation due to changes in market interest rates, and it is possible that the market value at the time of settlement could be higher or lower than the purchase price if the general level of interest rates has changed; in that case there could be an unrealized loss at the time of delivery. Delivery of and payment for these securities may occur a month or more after the date of the purchase commitment. Each Fund will maintain with the custodian a separate account with liquid securities or cash in an amount at least equal to these commitments. The interest rate realized on these securities is fixed as of the purchase date, and no interest accrues to these Funds before settlement. Although the Funds generally purchase securities on a when-issued or forward commitment basis with the intention of actually acquiring securities for their portfolios, the Funds may dispose of a when-issued security or forward commitment prior to settlement if the Investment Manager (or Sub-Adviser, if any) deems it appropriate to do so. Because a Fund’s liquidity and ability to manage its portfolio holdings might be affected when it sets aside cash or portfolio securities to cover such purchase commitments, the Investment Manager and each Sub-Adviser, as applicable, expects that commitments to purchase when-issued securities and forward commitments will not exceed 10% of the value of a Fund’s total assets absent unusual market conditions. Borrowing Policy. The Funds may not borrow money except as a temporary measure for extraordinary purposes or for ordinary needs for overdraft protection, and then only in an amount up to 33 1/3% of the value of each Fund’s total assets (10% for the Limited Maturity Fund, the Full Maturity Fund, the Diversified Equity Fund and the Socially Responsible Equity Fund) in order to meet redemption requests without immediately selling any portfolio securities. For the purpose of the investment restriction for the Limited Maturity Fund, the Full Maturity Fund, the Diversified Equity Fund and the Socially Responsible Equity Fund, the use of options and futures transactions and the purchase of securities on a when-issued or delayed delivery basis will not be deemed the borrowing of money. A Fund will not borrow for leverage purposes or purchase securities or make investments while borrowings are outstanding.The Multi-Asset Fund’s Underlying Funds may be subject to different policies, other than the 33 1/3% percentage limitation. If for any reason the current value of the total assets of a Fund falls below an amount equal to three times the amount of indebtedness for money borrowed, the Fund will, within three days (not including Sundays and holidays), reduce its indebtedness to the extent necessary to meet that limitation. Any borrowings under this provision will not be collateralized. Concentration. None of the Funds may concentrate (i.e., invest more than 25% of a Fund’s net assets) in any industry or group of industries, except that a Fund may invest more than 25% of its net assets in the securities of other registered investment companies and securities that are issued or guaranteed by the U.S. Government or its agencies or instrumentalities. The Multi-Asset Fund will consider the investments of each Affiliated Underlying Fund, in addition to the direct investments by the Fund, to determine that in the aggregate no more than 25% of the Fund’s net assets is invested in any industry or group of industries. If the Multi-Asset Fund invests in any unaffiliated fund that is concentrated in any industry or group of industries, the Fund will also consider the investments of that unaffiliated fund to determine that in the aggregate no more than 25% of the Fund’s net assets is invested in any industry or group of industries. Generally, the Multi-Asset Fund expects that any such concentrated unaffiliated fund would be designed to track an index, which the Fund would use to determine the concentrated unaffiliated fund’s sector allocation. Because the Multi-Asset Fund has the ability to invest in concentrated funds, from time to time it may inadvertently become concentrated in an industry or group of industries, which will subject the Fund to losses arising from adverse developments with respect to that industry to a greater extent than if the Fund were not 35 concentrated. If the Multi-Asset Fund were to become inadvertently concentrated, the Fund will take corrective action to ensure compliance with its concentration policy. Securities Ratings.Credit ratings evaluate the safety of principal and interest payments of securities, not their market values. The rating of an issuer is also heavily weighted by past developments and does not necessarily reflect probable future conditions. There is frequently a lag between the time a rating is assigned and the time it is updated. As NRSROs may fail to timely change credit ratings of securities to reflect subsequent events, the Investment Manager or Sub-Adviser will also monitor issuers of such securities. In general, the ratings of NRSROs represent the opinions of these agencies as to the quality of securities that they rate. Such ratings, however, are relative and subjective, are not absolute standards of quality and do not evaluate the market value risk of the securities. These ratings will be used by the funds as initial criteria for the selection of portfolio securities, but the funds also will rely upon the independent advice of the advisers to evaluate potential investments. Among the factors that will be considered are the long-term ability of the issuer to pay principal and interest and general economic trends. Appendix A to this SAI contains further information concerning the rating categories of NRSROs and their significance. If, after purchase, the credit rating on a security is downgraded or the credit quality deteriorates, or if the maturity is extended, a fund’s portfolio managers will decide whether the security should be held or sold. Upon the occurrence of certain triggering events or defaults, the investors in a security held by a fund may become the holders of underlying assets. In that case, the fund may become the holder of securities that it could not otherwise purchase at a time when those assets may be difficult to sell or can be sold only at a loss. California Municipal Securities.Because the California Bond Fund and the California Money Fund invest primarily in California Municipal Securities, the value of their portfolio investments will be highly sensitive to events affecting the fiscal stability of the State of California (sometimes referred to in this section as the “State”) and its municipalities, authorities and other instrumentalities that issue such securities. The following information is based on information available as of the date of this SAI primarily from official statements and prospectuses relating to the State budget and securities offerings of the State, the latest of which is dated January 5, 2012. General Economic Conditions The economy of the State is the largest among the 50 states and one of the largest in the world. The diversified economy of the State has major components in high technology, trade, entertainment, agriculture, manufacturing, government, tourism, construction and services. Certain of the State’s significant industries, such as high technology, are sensitive to economic disruptions in their export markets. In 2008 and most of 2009, the State experienced what was the most significant economic downturn since the Great Depression of the 1930s. Since then, the State’s economy has grown slowly. As a result of continuing weakness in the State economy, State tax revenues declined precipitously, resulting in large budget gaps and occasional cash shortfalls. California followed the nation’s path through the recession and into the recovery. California labor markets deteriorated dramatically during the latter half of 2008 and the first six months of 2009, suffering their worst losses on record. Between June 2008 and June 2009, the State dropped nearly one million nonfarm jobs. These losses moderated as the year progressed and switched to very modest gains during 2010 and early 2011. The 2012-13 Governor's Budget dated January 5, 2012 (the "2012 Governor's Budget"), indicates that California is in the midst of an uneven economic recovery.Some sectors of the economy, including high technology and export markets, are doing well. Despite these areas of strength, economic conditions remain hampered by weak real estate markets, consumer confidence lingers at recessionary levels, and volatility in equity markets remains high.The State added 233,100 new jobs from November 2010 to November 2011, causing the unemployment rate to drop from 12.5% in November 2010 to 11.3% in November 2011 (the lowest rate since May 2009).In 2011, California personal income grew nearly $100 billion, the largest gain since 2006. 36 California’s geographic location subjects it to earthquake risks. It is impossible to predict the time, magnitude or location of a major earthquake or its effect on the California economy. In January 1994, a major earthquake struck the Los Angeles area, causing significant damage in a four county area. The possibility exists that another such earthquake could create a major dislocation of the California economy and significantly affect State and local governmental budgets. In addition, California is subject to periodic water shortages owing to drought conditions. In February 2009, the Governor proclaimed a state of emergency due to statewide drought conditions in California. In the proclamation, the Governor requested that urban water users reduce water use by 20%, and directed the Department of Water Resources to, among other things, cooperate with local water agencies to implement aggressive water conservation efforts, and facilitate water transfers to respond to emergency conditions which may arise. State Budgets 2010 Budget Act. The Governor’s Budget for the 2010-11 fiscal year was released in January 2010 (the “2010 Governor’s Budget”). The 2010 Governor's Budget projected that California was slowly emerging from the recession. While the recovery had begun, economic growth was very modest and high unemployment persisted. Baseline revenues fell by more than 20% from their peak, and they were expected to remain for several years approximately 30% lower than 2007-08 projections. Major components of this revenue decline were: capital gains taxes ($8 billion), income tax on wages ($6 billion), tax on other components of income ($7 billion), sales taxes ($11 billion), corporate taxes ($2 billion) and all other taxes ($1 billion). The 2010 Governor’s Budget proposed a combination of spending reductions, alternative funding, fund shifts and additional federal funds to close the $19.9 billion budget gap. This figure was comprised of a current year shortfall of $6.6 billion, a budget year shortfall of $12.3 billion, and a modest reserve of $1 billion. The 2010 Budget Act was passed by the Legislature and signed by Governor Arnold Schwarzenegger on October 8, 2010, the latest budget enactment in State history. The 2010 Budget Act projected revenues and transfers to the General Fund of $94.2 billion, with expenditures of $86.6 billion, leaving a balance on June 30, 2011 (after taking into account the negative beginning fund balance from June 30, 2010, of $6.3 billion) of $1.3 billion. The Budget proposed to resolve an estimated $19.3 billion budget gap with a combination of expenditure reductions (44% of solutions), federal funds (28% of solutions) and various other one-time receipts, loans and other solutions (28% of solutions). Whether the State would be able to receive all the projected receipts or achieve all the planned expenditure reductions depended on future actions at the State and federal level. Furthermore, Proposition 22, an initiative measure approved by the voters on November 2, 2010, prohibited the operation of certain parts of the 2010 Budget Act, with a negative effect of an estimated $850 million on the 2010-11 fiscal year and increased effects on future years. On November 10, 2010, the Legislative Analyst’s Office released a report projecting a possible budget deficit of $6.1 billion at the end of fiscal year 2010-11. In response, Governor Schwarzenegger announced on November 11, 2010, that he would declare a fiscal emergency and call a special session of the Legislature to begin on December 6, 2010 (the first day of the newly-elected Legislature), to address any estimated shortfall in the 2010-11 fiscal year. 2011 Governor's Budget.On November 2, 2010, the voters elected Edmund G. Brown, Jr. as Governor, to start a new term on January 3, 2011.The Governor’s Budget for the 2011-12 fiscal year was released on January 10, 2011 (the “2011 Governor’s Budget”).Although California had begun to recover, the 2011 Governor's Budget projected that it would be years before the more than 1 million lost jobs would be recovered. Baseline revenues were not projected to return to the 2007-08 level until 2013-14 and, even then, the Budget projected that revenues would be insufficient to pay for program services that the State had committed to provide.California was projected to face a budget gap of $25.4 billion in 2011-12. This gap was made up of a 2011 shortfall of $8.2 billion and a 2011-12 shortfall of $17.2 billion.Although the economic downturn had been the chief contributor to California's budget gap, the Budget noted that the State entered the recession with an existing structural budget deficit, meaning that revenues did not cover costs. This structural deficit continued, in part, because of an 37 overreliance on temporary remedies and savings proposals that did not materialize. Some actions adopted over the last decade, such as the Economic Recovery Bonds, added $2.9 billion to the projected budget gap in 2011-12. The 2011 Governor’s Budget proposed to close California's budget gap by significantly reforming State and local programs, substantially reducing State operations, and enacting spending cuts across all service areas. It included a major realignment of public safety programs from the State to local governments (the “Realignment”). The Realignment moves program and fiscal responsibility to the level of government that can best provide the service, eliminating duplication of effort, generating savings, and increasing flexibility.The Budget also maintained existing tax rates in effect for another five years, subject to voter approval. The Budget included $26.4 billion in spending cuts, revenues and other solutions to balance the budget in 2011-12 and into the future, and to provide for a reserve.The Budget reduced spending by $12.5 billion, and included substantial cuts to most major programs.The Budget also included one-time savings and borrowing measures.According to the Budget,$8.2 billion of the budget gap was one-time in nature. In May 2011, the Governor released a revised budget.The revised budget noted that most of the Governor’s spending cuts were approved by the State Legislature in March 2011, which had the effect of significantly reducing the size of the budget deficit.However, the revised budget noted that a sizable budget deficit remained.The revised budget reflected the positive economic data from the early months in 2011.It also reflected other changes such as required increased spending and adjustments made since January 2011 to keep the budget plan accurate and balanced. 2012 Governor’s Budget.The 2012 Governor’s Budget was released on January 5, 2012.The 2012 Governor’s Budget notes that California’s fiscal condition is improving.In 2011, the State faced a $26.6 billion shortfall and future estimated annual budget gaps of $20 billion.In 2012, the State faces a $9.2 billion budget problem and future annual budget gaps of $5 billion or less.The 2012 Governor’s Budget proposes a balanced solution by cutting more deeply into spending while also increasing revenues.The Governor will ask voters in November 2012 to approve an amendment to the State’s Constitution to prevent deep cuts to education and guarantee funding for public safety at the local level.While the passage of the 2011 Governor’s Budget made substantial progress in restoring fiscal stability to the State, the 2012 Governor’s Budget notes that major challenges and threats remain. According to the Budget, achieving savings and controlling costs, especially in the areas of health and human services and corrections, are particularly challenging.Last year, the Governor and the State Legislature agreed to approximately $5 billion in cuts to health and human services programs. Many of these cuts have already been implemented.However, court orders and delayed federal approval related to several budget-balancing cuts in the health and human services area have increased costs by nearly $2 billion.In corrections, the State is working to achieve compliance with a U.S. Supreme Court decision ordering California to reduce State prison overcrowding. The Governor’s administration has planned reforms to reduce the Department of Corrections and Rehabilitation’s budget by 18% — $1.1 billion in 2012-13 — and yield higher savings in the future. The 2012 Governor’s Budget projects that the State will end 2011-12 with a deficit of $4.1 billion. Absent corrective actions, it is projected that the State would spend $5.1 billion more than it takes in during 2012-13. In total, the State faces a $9.2 billion budget problem.As discussed below under “Deficit Solutions,” the Budget proposes a total of $10.3 billion in cuts and revenues to balance the budget and to rebuild a $1.1 billion reserve.As further described below, this $10.3 billion is comprised of $4.22 billion of expenditure reductions, $4.65 billion in revenue increases and $1.43 billion of other solutions. The Current Budget Gap. At the time Governor Brown released the 2011 Governor’s Budget, it was expected that the State would face a budget problem of less than $5 billion in 2012-13. A major contributor to this budget gap was the reduction in sales tax and vehicle license fee rates that went into effect on July 1, 2011.At the time of the revisions to the 2011 Governor’s Budget in May 2011, the State’s economy was gaining momentum, reflected in 38 rising revenue collections. Since then, two events have slowed that progress — the federal debt limit debate and the European fiscal crisis. Consequently, the 2012 Governor’s Budget predicts that the economic recovery from the recession will continue at a slow pace.The employment recovery from this recession has been weak and the Budget predicts that the State’s job level will not reach its pre-recession level until 2016. The slow jobs recovery, due in part to an ongoing slump in the housing market, continues to take its toll on State revenues.General Fund revenues are not projected to return to their 2007-08 level until 2014-15.According to the 2012 Governor’s Budget, accurately forecasting revenues and expenditures is particularly challenging now, given the level of economic uncertainty. The 2012 Governor’s Budget projects a 2012-13 budget problem of $9.2 billion. This is the result of several developments: the problem left over from the prior year is $1.9 billion worse than expected in June 2011; court orders and delayed federal approval related to several budget-balancing cuts in the health and human services area have increased costs by nearly $2 billion; national and international economic developments have pulled State revenues downward for 2011-12; and the elimination of redevelopment agencies, recently validated by the California Supreme Court, results in less General Fund savings in 2011-12 but significantly greater savings going forward, beginning in 2012-13. Deficit Solutions.The 2012 Governor’s Budget proposes a total of $10.3 billion in cuts and revenues to balance and to rebuild a $1.1 billion budget reserve. These proposals are estimated to eliminate future budget problems throughout the forecast period under current projections. This $10.3 billion is comprised of $4.22 billion of expenditure reductions, $4.65 billion in revenue increases and $1.43 billion of other solutions, including loan repayment extensions and unemployment insurance interest payments. In order to cut the deficit in 2011-12, the 2011 Governor’s Budget cut General Fund spending as a share of the economy to its lowest level since 1972-73. State Supplementary Payment grants were reduced to the level in effect in 1983. CalWORKs grants were reduced to below the level in effect in 1987. State support for its universities and courts was cut by about 25% and 20%, respectively. The Adult Day Health Care program, redevelopment agencies, Williamson Act subventions, Home-to-School Transportation, and the refundable child care and dependent tax credit were all eliminated. The Department of Corrections and Rehabilitation’s expenditures will be reduced by approximately 18% once the Realignment is fully implemented. K-14 education funding remains $9 billion below the funding level in 2007-08.The 2012 Governor’s Budget notes that the Governor is seeking additional tax revenues (as discussed below) to mitigate the need for the deepest of cuts; however, these revenues will not be sufficient to close the entire budget gap. In order to balance the budget, the following are a few of the largest spending cuts planned for 2012-13: refocusing CalWORKs and subsidized child care by increasing income support to working families and reducing assistance to families who are not meeting work requirements (savings of $1.4 billion); merging service delivery for those who are eligible for both Medi-Cal and Medicare (savings of $842 million); repealing, making permissive, or suspending many State mandates on local governments that are unnecessary and burdensome (savings of $828 million); eliminating supplemental funding for schools associated with the elimination of the sales tax on gasoline and making other Proposition 98 adjustments (savings of $544 million).Implementing many of these and other proposals will require months of lead time to generate budget savings. The Budget states that if these proposals were adopted on July 1, less than a full year of savings would be generated in 2012-13, and additional cuts would be needed. Similar to last year, the Budget assumes that a portion of its proposals will be adopted by the Legislature by March 1, 2012. The 2012 Governor’s Budget is also based on the assumed passage of the Governor’s constitutional amendment on the November 2012 ballot. This proposal will temporarily increase tax rates on the highest income Californians, and temporarily increase the sales and use tax rate by 0.5%. If the amendment is passed, these two provisions are expected to result in a revenue increase of $6.9 billion through 2012-13.The measure guarantees these new revenues to schools and constitutionally protects the Realignment funds for local public safety. 39 Constraints on the Budget Process. The Balanced Budget Amendment (“Proposition 58”), approved in March 2004 with the State’s Economic Recovery Bonds, requires the State to enact a balanced budget and establish a special reserve in the General Fund and restricts future borrowing to cover budget deficits. As a result of the provisions requiring the enactment of a balanced budget and restricting borrowing, the State would, in some cases, have to take more immediate actions to correct budgetary shortfalls. Proposition 58 requires the Legislature to pass a balanced budget and provides for mid-year adjustments in the event that the budget falls out of balance. The balanced budget determination is made by subtracting expenditures from all available resources, including prior-year balances. If the Governor determines that the State is facing substantial revenue shortfalls or spending deficiencies, the Governor is authorized to declare a fiscal emergency. The Governor would then be required to propose legislation to address the emergency and call the Legislature into special session to consider that legislation. If the Legislature fails to pass and send to the Governor legislation to address the budget fiscal emergency within 45 days, the Legislature would be prohibited from acting on any other bills or adjourning in joint recess until such legislation is passed. Proposition 58 also requires that a special reserve Budget Stabilization Account be established. The Budget Stabilization Account is funded by annual transfers of specified amounts from the General Fund, unless suspended or reduced by the Governor or until a specified maximum amount has been deposited. The Governor’s constitutional amendment, which will appear on the November 2012 ballot, would also strengthen the Budget Stabilization Account. Proposition 58 also prohibits the use of general obligation bonds, revenue bonds, and certain other forms of borrowing to cover fiscal year end budget deficits. The restriction does not apply to certain other types of borrowing, such as short-term borrowing to cover cash shortfalls in the General Fund (including revenue anticipation notes or revenue anticipation warrants currently used by the State), or inter-fund borrowings. Propositions 22 and 26, approved on November 2, 2010, further limit the State's fiscal flexibility.Proposition 22, called the "Local Taxpayer, Public Safety and Transportation Protection Act of 2010," supersedes some parts of Proposition 1A of 2004, prohibits any future action by the Legislature to take, reallocate or borrow money raised by local governments for local purposes, and prohibits changes in the allocation of property taxes among local governments designed to aid State finances.Proposition 26 specifies that a two-thirds vote of both houses of the Legislature is required for any increase in any tax on any taxpayer, eliminating the current practice where a tax increase coupled with a tax reduction is treated as being adopted by a majority vote.Furthermore, any increase in a fee beyond the amount needed to provide the specific service or benefit is deemed a tax requiring a two-thirds vote. Future Budgets.The 2012 Governor’s Budget characterizes the prospects for the national and California economies as guardedly positive.The national recovery regained momentum in the closing months of 2011.Labor markets and manufacturing activity have improved slowly, and exports are making solid improvements over 2010.According to the State, risks to the budget remain. The State faces a “wall of debt,” pension liabilities, other increasing annual obligations, and potential cost increases associated with the federal deficit.In addition to balancing the budget, Governor Brown is planning a path that is expected to meet California’s long-term fiscal challenges.This path includes pension reform, shrinking the State government, paying down the “wall of debt,” containing health care costs, investing in California’s universities and stabilizing funding for education.In addition, there is the prospect of a European financial crisis. It is still too early to know if protective measures of sufficient strength will be approved to minimize the economic fallout. The Budget assumes that at the very least, economic growth in Europe will slow in 2012, which will adversely affect U.S. exports. It cannot be predicted what actions will be taken in the future by the Legislature and the Governor to deal with changing State revenues and expenditures. The State budget will be affected by national and State economic conditions and other factors. 40 State Indebtedness General Obligation Bonds and Revenue Bonds. As of December 1, 2011, the State had approximately $93.5 billion aggregate principal of outstanding long-term general obligation bonds and revenue bonds. Including estimated interest of approximately $74.5 billion, the State’s debt service requirements for general obligation bonds and revenue bonds totaled nearly $167.9 billion. As of December 1, 2011, general obligation bond authorizations of approximately $35.3 billion remained unissued. A ballot measure is slated to be submitted to the voters at the statewide election on November 6, 2012, to approve the issuance of $11.14 billion in general obligation bonds for a wide variety of purposes relating to improvement of California’s water supply systems, drought relief, and groundwater protection. This legislation specifies that not more than one-half of the bonds may be sold before July 1, 2015. Additional bond measures may be included on future election ballots, but any proposed bond measure must first be approved by the Legislature or placed on the ballot through the initiative process. Ratings. As of January 10, 2011, the State’s general obligation bonds were rated A1 by Moody’s, A- by Standard & Poor’s, and A- by Fitch Ratings. It is not possible to determine whether, or the extent to which, Moody’s, Standard & Poor’s or Fitch Ratings will change such ratings in the future. Future Issuance Plans; General Fund Debt Ratio.In 2009 and 2010, over $35.07 billion of general obligation bonds, lease-revenue bonds and Proposition 1A bonds were sold. Although as of October 2011 bond issuance in the past two years had been at record levels, the size of future new money general obligation bond sales was expected to decrease as departments worked to better utilize existing bond cash balances. The State did not issue any general obligation or lease-revenue bonds in spring of 2011. In October 2011, the State Treasurer estimated that the State will issue a combined $15.5 billion of General Fund-backed bonds in 2011-12 and 2012-13. Using these assumptions for debt issuance, the State Treasurer estimated that debt service payments from the General Fund will increase by $95.8 million in 2011-12 and $535.6 million in 2012-13. California’s ratio of debt service to General Fund revenues was 7.1% in 2010-11. That figure is based on $6.8 billion in general obligation, lease revenue and Proposition 1A debt service payments versus $94.8 billion in General Fund revenues. As of October 2011, the State Treasurer estimates this ratio will be 7.8% in 2011-12. That estimate is based on $6.9 billion in debt service payments versus $88.5 billion in General Fund revenues (as projected by California’s Department of Finance).While General Fund debt service is estimated to increase only slightly in the budget year, General Fund debt service has been a fast-growing area of the budget.The State Treasurer expects this trend to continue through the end of this decade, with debt service projected to peak at $7.5 billion in 2019-20. Local Government The primary units of local government in California are the counties, ranging in population from 1,100 (Alpine) to approximately 10.4 million (Los Angeles). Counties are responsible for the provision of many basic services, including indigent healthcare, welfare, jails and public safety in unincorporated areas. There are also 482 incorporated cities and towns and thousands of other special districts formed for education, utilities and other services. The fiscal condition of local governments has been constrained since the enactment of “Proposition 13” in 1978 and later constitutional amendments, which reduced and limited the future growth of property taxes and limited the ability of local governments to impose “special taxes” (those devoted to a specific purpose) without two-thirds voter approval. Proposition 218, another initiative constitutional amendment enacted in 1996, further limited the ability of local governments to raise taxes, fees and other exactions. Counties, in particular, have had fewer options to raise revenues than many other local government entities, and have been required to maintain many services. According to the State, the 2004 Budget Act, related legislation and the enactment of Proposition 1A in 2004 and Proposition 22 in 2010 dramatically changed the State-local fiscal relationship. These constitutional and statutory changes implemented an agreement negotiated between the Governor and local government officials (the “State- 41 local agreement”) in connection with the 2004 Budget Act. One change relates to the reduction of the Vehicle License Fee (“VLF”) rate from 2% to 0.65% of the market value of the vehicle. In order to protect local governments, which had previously received all VLF revenues, the 1.35% reduction in VLF revenue to cities and counties from this rate change was backfilled (or offset) by an increase in the amount of property tax revenues they receive. This worked to the benefit of local governments because the backfill amount annually increases in proportion to the growth in property tax revenues, which has historically grown at a higher rate than VLF revenues, although property tax revenues have declined over the past two years. In 2012-13, the estimated value of the VLF backfill to local governments is $6 billion. As part of the State-local agreement, voters at the November 2004 election approved Proposition 1A of 2004 (also known as Senate Constitutional Amendment No. 4). Proposition 1A of 2004 amended the State Constitution to, among other things, reduce the Legislature’s authority over local government revenue sources by placing restrictions on the State’s access to local governments’ property, sales, and VLF revenues as of November 3, 2004. The Amended 2009 Budget Act authorized the State to exercise its authority under Proposition 1A of 2004 to borrow an amount equal to about 8% of local property tax revenues, or $1.9 billion, which must be repaid within three years. State law was also enacted to create a securitization mechanism for local governments to sell their right to receive the State’s payment obligations to a local government-operated joint powers agency. This joint powers authority sold bonds in a principal amount of $1.895 billion in November 2009 to pay the participating local governments their full property tax allocations when they normally would receive such allocations. Pursuant to Proposition 1A of 2004, the State is required to repay the local government borrowing (which in turn is to be used to repay the bonds of the joint powers agency) no later than June 30, 2013. The 2010 Budget Act includes $90.8 million for the interest payments that are expected to be incurred in that fiscal year to be paid from the General Fund.Proposition 22, adopted on November 2, 2010, supersedes Proposition 1A of 2004 and completely prohibits any future borrowing by the State from local government funds, and generally prohibits the Legislature from making changes in local government funding sources. Allocation of local transportation funds cannot be changed without an extensive process. The Proposition 1A borrowing done as part of the Amended 2009 Budget Act is not affected by Proposition 22. The 2011 Governor’s Budget included the Realignment, which moves public safety programs from the State to local governments. This Realignment moves program and fiscal responsibility to the level of government that can best provide the service, which is expected to eliminate duplication of effort, generate savings, and increase flexibility. The implementation of the Community Corrections Grant Program is expected to end the costly revolving door of lower-level offenders and parole violators through the State’s prisons. The Governor is sponsoring an initiative to provide Constitutional protection for the revenue dedicated to the Realignment. This initiative is also expected to protect local government against future costs imposed upon them, as well as provide mandate protection for the State. Constitutional, Legislative and Other Factors The State is subject to an annual appropriations limit imposed by Article XIII B of the State Constitution (the “Appropriations Limit”). The Appropriations Limit does not restrict appropriations to pay debt service on voter-authorized bonds. Article XIII B prohibits the State from spending “appropriations subject to limitation” in excess of the Appropriations Limit. “Appropriations subject to limitation” are authorizations to spend “proceeds of taxes,” which consist of tax revenues and certain other funds, including proceeds from regulatory licenses, user charges or other fees to the extent that such proceeds exceed “the cost reasonably borne by that entity in providing the regulation, product or service,” but “proceeds of taxes” exclude most State subventions to local governments, tax refunds and some benefit payments such as unemployment insurance. No limit is imposed on appropriations of funds which are not “proceeds of taxes,” such as reasonable user charges or fees and certain other non-tax funds. Various types of appropriations are excluded from the Appropriations Limit. 42 The State’s Appropriations Limit in each year is based on the Limit for the prior year, adjusted annually for changes in State per capita personal income and changes in population, and adjusted, when applicable, for any transfer of financial responsibility for providing services to or from another unit of government or any transfer of the financial source for the provisions of services from tax proceeds to non-tax proceeds. The Legislature has enacted legislation to implement Article XIII B which defines certain terms used in Article XIII B and sets forth the methods for determining the Appropriations Limit. California Government code Section 7912 requires an estimate of the Appropriations Limit to be included in the Governor’s Budget, and thereafter to be subject to the budget process and established in the Budget Act. In November 1988, voters of the State approved Proposition 98, a combined initiative constitutional amendment and statute called the “Classroom Instructional Improvement and Accountability Act.” Proposition 98 changed State funding of public education below the university level and the operation of the Appropriations Limit, primarily by guaranteeing K-14 education a minimum share of General Fund revenues. Proposition 98 permits the Legislature by two-thirds vote of both houses, with the Governor’s concurrence, to suspend the K-14 educations’ minimum funding guarantee for a one-year period. Proposition 98 also contains provisions transferring certain State tax revenues in excess of the Appropriations Limit to K-14 education. Because of the complexities of Article XIII B, the ambiguities and possible inconsistencies in its terms, the applicability of its exceptions and exemptions and the impossibility of predicting future appropriations, it is not possible to predict the impact of this or related legislation on the bonds in the portfolios of the California Bond Fund and the California Money Fund. Article XIII B and other Articles of the State Constitution were adopted as measures that qualified for the ballot pursuant to the State’s initiative process. Other Constitutional amendments affecting State and local taxes and appropriations have been proposed from time to time. If any such initiatives were adopted, the State could be pressured to provide additional financial assistance to local governments or appropriate revenues as mandated by such initiatives. Propositions such as Proposition 98 and others that may be adopted in the future may place increasing pressure on the State’s budget over future years, potentially reducing resources available for other State programs, especially to the extent the Article XIII B spending limit would restrain the State’s ability to fund such other programs by raising taxes. Effect of other State Laws on Bond Obligations. Some of the California Municipal Securities that the California Bond Fund and the California Money Fund can invest in may be obligations payable solely from the revenues of a specific institution or secured by specific properties. These are subject to provisions of California law that could adversely affect the holders of such obligations. For example, the revenues of California health care institutions may be adversely affected by State laws, and California law limits the remedies of a creditor secured by a mortgage or deed of trust on real property. Debt obligations payable solely from revenues of health care institutions may also be insured by the State but no guarantee exists that adequate reserve funds will be appropriated by the Legislature for such purpose. Litigation The State is a party to numerous legal proceedings, many of which normally occur as a result of governmental operations. In addition, the State is involved in certain other legal proceedings that, if decided against the State, might require the State to make significant future expenditures or might impair future revenue sources. Because of the prospective nature of these proceedings, it is not possible to predict the outcome of such litigation or to estimate the potential impact on the ability of the State to pay debt service costs on its obligations. 43 INVESTMENT RESTRICTIONS – MONEY MARKET FUNDS Except as otherwise noted with an asterisk (*), the restrictions of the Money Market Fund below are non-fundamental and can be changed as to a Money Market Fund by the Board without a vote of shareholders. The Money Market Funds may not: 1. *Subject to the provisions of Rule 2a-7 under the 1940 Act, purchase securities of any issuer (other than obligations of, or guaranteed by, the U.S. Government, its agencies or instrumentalities) if, as a result thereof, more than 5% of the value of its total assets would be invested in the securities of such issuer. 2. Purchase more than 10% of any class of securities of any issuer. All debt securities and all preferred stocks are each considered as one class. 3. *Concentrate 25% or more of the value of its total assets in any one industry or group of industries; provided, however, that a Fund may invest up to 100% of its assets in certificates of deposit or bankers’ acceptances issued by domestic branches of U.S. banks and U.S. branches of foreign banks (which the Fund has determined to be subject to the same regulation as U.S. banks), or obligations of, or guaranteed by, the U.S. Government, its agencies or instrumentalities in accordance with its investment objective and policies. As to the California Money Fund, this restriction does not apply to municipal securities in any of the following categories: public housing; general obligations of states and localities; state and local finance authorities or municipal utilities systems. 4. Enter into repurchase agreements if, as a result thereof, more than 10% of its net assets valued at the time of the transaction would be subject to repurchase agreements maturing in more than seven days and invested in securities restricted as to disposition under the federal securities laws (except commercial paper issued under Section 4(2) of the 1933 Act). The Money Market Funds will invest no more than 5% of their net assets in illiquid securities. 5. *Invest in commodities or commodity contracts, futures contracts, real estate or real estate limited partnerships, although it may invest in securities which are secured by real estate and securities of issuers which invest or deal in real estate. 6. Invest for the purpose of exercising control or management of another issuer. 7. Purchase securities of other investment companies, except in connection with a merger, consolidation, reorganization, or acquisition of assets, or as may otherwise be permitted by a Fund’s prospectus and the 1940 Act. 8. *Make loans to others (except through the purchase of debt obligations or repurchase agreements in accordance with its investment objectives and policies). 9. *Borrow money, except as a temporary measure for extraordinary or emergency purposes, and then only in an amount up to one-third of the value of its total assets in order to meet redemption requests without immediately selling any portfolio securities. A Fund will not borrow for leverage purposes or purchase securities or make investments while borrowings are outstanding. Any borrowings by a Fund will not be collateralized. If for any reason the current value of the total assets of a Fund falls below an amount equal to three times the amount of indebtedness for money borrowed, the Fund will, within three business days, reduce its indebtedness to the extent necessary to meet that limitation. 44 Write, purchase or sell puts, calls or combinations thereof except as otherwise noted in this SAI. Make short sales of securities or purchase any securities on margin, except to obtain such short-term credits as may be necessary for the clearance of transactions. *Underwrite securities issued by others, except to the extent it may be deemed to be an underwriter under the federal securities laws in connection with the disposition of securities from its investment portfolio. *Issue senior securities as defined in the 1940 Act. Invest in interests or leases in oil, gas or other mineral exploration or development programs. Except for restrictions (3), (4) and (9), if a percentage restriction is adhered to at the time of investment, a later increase in percentage resulting from a change in values or net or total assets will not be considered a violation of that restriction. The Money Market Funds will only purchase securities that the Investment Manager has determined, according to procedures approved by the Board and factors set forth in Rule 2a-7 under the 1940 Act, present minimal credit risk and are First Tier Securities (otherwise referred to as “Eligible Securities”). An Eligible Security is: a security with a remaining maturity of 397 days or less: (a) that is rated by an NRSRO (currently Moody’s, S&P, Fitch or, with respect to debt issued by banks, bank holding companies, United Kingdom building societies, broker-dealers and broker-dealers’ parent companies, and bank-supported debt) in one of the two highest rating categories for short-term debt obligations (two NRSROs are required but one rating suffices if only one NRSRO rates the security), or (b) that itself was unrated by any NRSRO, but was issued by an issuer that has outstanding a class of short-term debt obligations (or any security within that class) meeting the requirements of subparagraph 1(a) above that is of comparable priority and security; a security that at the time of issuance was a long-term security but has a remaining maturity of 397 days or less, and whose issuer received a rating within one of the two highest rating categories from the requisite NRSROs for short-term debt obligations with respect to a class of short-term debt obligations (or any security within that class) that is now comparable in priority and security with the subject security; a security that at the time of issuance was a long-term security but has a remaining maturity of 397 days or less, and whose issuer received a rating within one of the three highest rating categories from the requisite NRSROs for long-term debt obligations; or a security not rated by an NRSRO but deemed by the Investment Manager, pursuant to guidelines adopted by the Board of Trustees, to be of comparable quality to securities described in (1) and (2) above and to represent minimal credit risk. A First Tier Security is any Eligible Security, as defined above, that (1) carries (or if other relevant securities issued by its issuer carry) top NRSRO ratings from at least two NRSROs (a single top rating suffices if only one NRSRO rates the security), (2) has been determined by the Investment Manager, pursuant to guidelines adopted by the Board, to be of comparable quality to such a security, (3) is a security issued by a registered investment company that is a money market fund, or (4) is a U.S. Government security (a “Government Security”). Each Fund limits its investments in the First Tier Securities of any one issuer to no more than 5% of its total assets (repurchase agreements collateralized by non-Government Securities will be taken into account when making this calculation); provided, however, that (1) the California Money Fund may invest up to 25% of the value of its total assets without regard to this restriction as permitted by Rule 2a-7 under the 1940 Act, and (2) each of the Prime Money Fund and the Government Money Fund may invest up to 25% of the value of its total assets without regard to this restriction for a period of up to three business days as permitted by Rule 2a-7, provided that neither such Fund may invest in the securities of more than one issuer in accordance with the 45 foregoing proviso at any time. In addition, the underlying securities involved in repurchase agreements collateralized by non-Government securities will be First Tier Securities at the time the repurchase agreements are executed. INVESTMENT RESTRICTIONS – GOVERNMENT BOND FUND, CORPORATE BOND FUND, CALIFORNIA BOND FUND, HIGH YIELD BOND FUND, U.S. CORE EQUITY FUND, LARGE CAP VALUE FUND AND LARGE CAP GROWTH FUND FUNDAMENTAL POLICIES Except as otherwise indicated, the following investment limitations are fundamental policies of the Government Bond Fund, the Corporate Bond Fund, the California Bond Fund, the High Yield Bond Fund, the U.S. Core Equity Fund, the Large Cap Value Fund and the Large Cap Growth Fund and may not be changed without shareholder approval. No Fund may: 1. Other than the California Bond Fund, with respect to 75% of its total assets, (i) purchase the securities of any issuer (except securities issued or guaranteed by the United States Government, its agencies or instrumentalities) if, as a result, more than 5% of its total assets would be invested in the securities of such issuer; or (ii) acquire more than 10% of the outstanding voting securities of any one issuer. 2. Purchase any securities which would cause 25% or more of the total assets of the Fund to be invested in the securities of one or more issuers conducting their principal business activities in the same industry or group of industries, provided that this limitation does not apply to investments in obligations issued or guaranteed by the United States Government, its agencies or instrumentalities. 3. Borrow money in an amount exceeding 33 1/3% of the value of its total assets, provided that, for purposes of this limitation, investment strategies which either obligate a Fund to purchase securities or require a Fund to segregate assets are not considered to be borrowings.To the extent that a Fund’s borrowings exceed 5% of its total assets, (i) all borrowings will be repaid before making additional investments and any interest paid on such borrowing will reduce income; and (ii) asset coverage of at least 300% is required. 4. Make loans if, as a result, more than 33 1/3% of its total assets would be loaned to other parties, except that each Fund may (i) purchase or hold debt instruments in accordance with its investment objective and policies; (ii) enter into repurchase agreements; and (iii) lend its securities. 5. Purchase or sell real estate, physical commodities, or commodities contracts, except that each Fund may purchase (i) marketable securities issued by companies which own or invest in real estate (including real estate investment trusts), commodities, or commodities contracts; and (ii) commodities contracts relating to financial instruments, such as financial futures contracts and options on such contracts. 6. Issue senior securities (as defined in the 1940 Act) except as permitted by rule, regulation or order of the SEC. 7. Act as an underwriter of securities of other issuers except as it may be deemed an underwriter in selling a portfolio security. 8. Invest in interests in oil, gas, or other mineral exploration or development programs and oil, gas or mineral leases. 46 The foregoing percentages (other than the limitation on borrowing) will apply at the time of the purchase of a security and shall not be considered violated unless an excess or deficiency occurs immediately after or as a result of a purchase of such security. Except as otherwise indicated, these investment limitations and the investment limitations in the Prospectus are fundamental policies of the Trust and may not be changed without shareholder approval. NON-FUNDAMENTAL POLICIES The following policies of the Government Bond Fund, the Corporate Bond Fund, the California Bond Fund, the High Yield Bond Fund, the U.S. Core Equity Fund, the Large Cap Value Fund and the Large Cap Growth Fund are non-fundamental and may be changed by the Board without a vote of shareholders. No Fund may: 1. Pledge, mortgage or hypothecate assets except to secure borrowings permitted by the Fund’s fundamental limitation on borrowing. 2. Invest in companies for the purpose of exercising control. 3. Purchase securities on margin or effect short sales, except that each Fund may (i) obtain short-term credits as necessary for the clearance of security transactions; (ii) provide initial and variation margin payments in connection with transactions involving futures contracts and options on such contracts; and (iii) make short sales “against the box” or in compliance with the SEC’s position regarding the asset segregation requirements imposed by Section 18 of the 1940 Act. 4. Invest its assets in securities of any investment company, except as permitted by the 1940 Act or an order of exemption therefrom. 5. Purchase or hold securities that are illiquid or are otherwise not readily marketable (i.e., securities that cannot be disposed of for their approximate carrying value in seven days or less, which term includes repurchase agreements and time deposits maturing in more than seven days) if, in the aggregate, more than 15% of its net assets would be invested in illiquid securities. In addition, the U.S. Core Equity Fund may not purchase the stock or bonds of companies identified by the tobacco service of MSCI ESG Research.This service identifies those companies engaged in growing, processing or otherwise handling tobacco. If the U.S. Core Equity Fund holds any such securities of an issuer which is subsequently identified by MSCI as engaged in such activities, the securities will be sold within a reasonable time period, consistent with prudent investment practice. Each of the foregoing percentage limitations (except with respect to the limitation on investing in illiquid and not readily marketable securities) applies at the time of purchase. If, subsequent to a Fund’s purchase of an illiquid security, more than 15% of the Fund’s net assets are invested in illiquid securities because of changes in valuations, the Fund will, within a reasonable time, dispose of a portion of such holding so that the above set-forth limit will not be exceeded. These limitations are non-fundamental and may be changed by the Board without a vote of shareholders. 47 INVESTMENT RESTRICTIONS - LIMITED MATURITY FUND, FULL MATURITY FUND, DIVERSIFIED EQUITY FUND AND SOCIALLY RESPONSIBLE EQUITY FUND FUNDAMENTAL POLICIES Except as otherwise indicated, the following investment limitations are fundamental policies of the Limited Maturity Fund, the Full Maturity Fund, the Diversified Equity Fund and the Socially Responsible Equity Fund and may not be changed without shareholder approval. No Fund may: 1. Issue senior securities as defined in the 1940 Act or borrow money, except that a Fund may borrow from banks for temporary or emergency purposes (but not for investment) in an amount up to 10% of the value of its total assets (including the amount borrowed) less liabilities (not including the amount borrowed) at the time the borrowing was made. While any such borrowings exist for a Fund, it will not purchase securities. (However, a Fund which is authorized to do so by its investment policies may lend securities, enter into repurchase agreements without limit and reverse repurchase agreements in an amount not exceeding 10% of its total assets, purchase securities on a when-issued or delayed delivery basis and enter into forward foreign currency contracts.) 2. Purchase a security, other than government securities, if as a result of such purchase more than 5% of the value of the Fund’s assets would be invested in the securities of any one issuer, or the Fund would own more than 10% of the voting securities, or of any class of securities, of any one issuer, except that all of the investable assets of a Fund may be invested in another registered investment company having the same investment objective and substantially the same investment policies as the Fund. For purposes of this restriction, all outstanding indebtedness of an issuer is deemed to be a single class. 3. Purchase a security, other than government securities, if as a result of such purchase 25% or more of the value of the Fund’s total assets would be invested in the securities of issuers in any one industry or group of industries, except that all of the investable assets of a Fund may be invested in another registered investment company having the same investment objective and substantially the same investment policies as the Fund. 4. Purchase the securities (other than government securities) of an issuer having a record, together with predecessors, of less than three years’ continuous operations, if as a result of such purchase more than 5% of the value of the Fund’s total assets would be invested in such securities, except that this shall not prohibit a Fund from investing all of its investable assets in another registered investment company having the same investment objective and substantially the same investment policies as the Fund. 5. Make short sales of securities or purchase securities on margin, except for such short-term loans as are necessary for the clearance of purchases of securities. 6. Engage in the underwriting of securities except insofar as a Fund may be deemed an underwriter under the 1933 Act in disposing of a security and except that all of the investable assets of a Fund may be invested in another registered investment company having the same investment objective and substantially the same investment policies as the Fund. 7. Purchase or sell real estate or interests therein, or purchase oil, gas or other mineral leases, rights or royalty contracts or development programs, except that a Fund may invest in the securities of issuers engaged in the foregoing activities and may invest in securities secured by real estate or interests therein. 8. Make loans of money or securities, except through the purchase of permitted investments (including repurchase and reverse repurchase agreements) and through the loan of securities (in an amount not exceeding one-third of total assets) by any Fund. 48 9. Purchase or sell commodities or commodity contracts, except that the Fund may purchase and sell financial futures contracts and options on such contracts and may enter into forward foreign currency contracts and engage in the purchase and sale of foreign currency options and futures. Invest more than 5% of the value of a Fund’s total assets in warrants, including not more than 2% of such assets in warrants not listed on a U.S. stock exchange. (Rights and warrants attached to, received in exchange for, or as a distribution on, other securities are not subject to this restriction.) Pledge, hypothecate, mortgage or otherwise encumber its assets, except as necessary to secure permitted borrowings. (Collateral arrangements and initial margin with respect to permitted options on securities, financial futures contracts and related options, and arrangements incident to other permitted practices, are not deemed to be subject to this restriction.) The foregoing percentages (other than the limitation on borrowing) will apply at the time of the purchase of a security and will not be considered violated unless an excess or deficiency occurs immediately after or as a result of a purchase of such security. Except as otherwise indicated, these investment limitations and the goal of each Fund as set forth in the Prospectus are fundamental policies of the Funds and may not be changed without shareholder approval. Although the Fundamental Policies permit the Funds to enter into reverse repurchase agreements, the Funds do not currently intend to do so. Up to one-third of a Fund’s assets may be pledged to secure permitted borrowings by the Fund. NON-FUNDAMENTAL POLICIES The following policies of the Limited Maturity Fund, the Full Maturity Fund, the Diversified Equity Fund and the Socially Responsible Equity Fund are non-fundamental and may be changed by the Board without a vote of Fund shareholders. No Fund may: 1. Purchase or hold securities that are illiquid or are otherwise not readily marketable (i.e., securities that cannot be disposed of for their approximate carrying value in seven days or less, which term includes repurchase agreements and time deposits maturing in more than seven days) if, in the aggregate, more than 10% of its net assets would be invested in illiquid securities. (As a matter of non-fundamental policy, repurchase agreements maturing in more than seven days, certain time deposits and over-the-counter options are considered to be illiquid.) 2. Invest for the purpose of exercising control or management of another company except that all the investable assets of a Fund may be invested in another registered investment company having the same investment objective and substantially the same investment policies as the Fund. 3. Invest, under normal circumstances, less than 80% of the value of its net assets (plus borrowings for investment purposes) in a particular type of investment that is suggested by the Fund’s name. A Fund will notify its shareholders at least 60 days prior to any change in such policy. 4. Purchase the stock or bonds of companies identified by the tobacco service of the RiskMetrics Group Social Issues Services. This service identifies those companies engaged in growing, processing or otherwise handling tobacco. If a Fund holds any such securities of an issuer which is subsequently identified by RiskMetrics as engaged in such activities, the securities will be sold within a reasonable time period, consistent with prudent investment practice. 5. Borrow money in an amount exceeding 10% of its total assets. A Fund will not borrow money for leverage purposes. For the purpose of this investment restriction, the use of options and futures transactions and the purchase of securities on a when-issued or delayed delivery basis shall not be deemed 49 the borrowing of money. A Fund will not make additional investments while its borrowings exceed 5% of total assets. Each of the foregoing percentage limitations (except with respect to the limitations on borrowing and investing in illiquid and not readily marketable securities) applies at the time of purchase. If, subsequent to a Fund’s purchase of an illiquid security, more than 10% of the Fund’s net assets are invested in illiquid securities because of changes in valuations, the Fund will, within a reasonable time, dispose of a portion of such securities so that the limit will not be exceeded. These limitations are non-fundamental and may be changed by the Board without a vote of shareholders. INVESTMENT RESTRICTIONS – MULTI-ASSET FUND The following investment restrictions apply to the Multi-Asset Fund. The Multi-Asset Fund’s Underlying Funds are subject to different investment restrictions. FUNDAMENTAL POLICIES Except as otherwise indicated, the following investment limitations are fundamental policies of the Multi-Asset Fund and may not be changed without shareholder approval. The Multi-Asset Fund may not: 1. Change its classification from a diversified fund (which means that it may not, with respect to at least 75% of its total assets, invest more than 5% of its total assets invested in the securities of one issuer (and not more than 10% of the outstanding voting securities of such issuer), plus cash, Government securities, and securities of other investment companies) to a non-diversified fund. 2. Borrow money in an amount exceeding 33 1/3% of the value of its total assets, provided that, for purposes of this limitation, investment strategies which either obligate the Fund to purchase securities or require the Fund to segregate assets are not considered to be borrowings. The Fund may only borrow money from banks. To the extent that its borrowings exceed 5% of its total assets, (i) all borrowings will be repaid before making additional investments and any interest paid on such borrowing will reduce income; and (ii) asset coverage of at least 300% is required. 3. Make loans if, as a result, more than 33 1/3% of its total assets would be loaned to other parties, except that each Fund may (i) purchase or hold debt instruments in accordance with its investment objective and policies; (ii) enter into repurchase agreements; and (iii) lend its securities. 4. Purchase or sell real estate or physical commodities, except that the Fund may purchase marketable securities issued by companies which own or invest in real estate (including real estate investment trusts), or special situations, such as limited partnerships, that may invest in real estate or commodities. 5. Issue senior securities (as defined in the 1940 Act) except as permitted by rule, regulation or order of the SEC. 6. Act as an underwriter of securities of other issuers except as it may be deemed an underwriter in selling a portfolio security. 7. Invest in interests in oil, gas, or other mineral exploration or development programs and oil, gas or mineral leases. 8. Concentrate (i.e., invest more than 25% of the Fund’s net assets) in any industry or group of industries, except that the Fund may invest more than 25% of the Fund’s net assets in the securities of other 50 registered investment companies and securities that are issued or guaranteed by the U.S. Government or its agencies or instrumentalities. The foregoing percentages (other than the limitation on borrowing) will apply at the time of the purchase of a security and will not be considered violated unless an excess or deficiency occurs immediately after or as a result of a purchase of such security. NON-FUNDAMENTAL POLICIES The following policies of the Multi-Asset Fund are non-fundamental and may be changed by the Board without a vote of shareholders. The Multi-Asset Fund may not: 1. Pledge, mortgage or hypothecate assets except to secure borrowings permitted by the Fund’s fundamental limitation on borrowing, in an amount not exceeding 33 1/3% of the value of the Fund’s total assets. 2. Invest in companies for the purpose of exercising control. 3. Purchase or hold securities that are illiquid or are otherwise not readily marketable (i.e., securities that cannot be disposed of for their approximate carrying value in seven days or less, which term includes repurchase agreements and time deposits maturing in more than seven days) if, in the aggregate, more than 15% of its net assets would be invested in illiquid securities. Each of the foregoing percentage limitations (except with respect to the limitation on investing in illiquid and not readily marketable securities) applies at the time of purchase. If, subsequent to the Fund’s purchase of an illiquid security, more than 15% of the Fund’s net assets are invested in illiquid securities because of changes in valuations, the Fund will, within a reasonable time, dispose of a portion of such holding so that the above set-forth limit will not be exceeded. POLICIES OF AFFILIATED UNDERLYING FUNDS The investment restrictions applicable to the Affiliated Underlying Funds (i.e., the Corporate Bond Fund, Government Bond Fund and High Yield Bond Fund) are as set forth above under “Investment Restrictions – Equity and Bond Funds.”The Multi-Asset Fund looks to the holdings of the Affiliated Underlying Funds when ensuring compliance with its own investment restrictions. POLICIES OF UNAFFILIATED UNDERLYING FUNDS Each unaffiliated Underlying Fund has its own investment policies and may pursue investment strategies to the fullest extent permitted by the 1940 Act and such policies. For example, under the 1940 Act, a registered investment company may borrow money from a bank (in an amount not exceeding 33 1/3% of the value of its total assets), make loans (if less than 33 1/3% of its total assets would be loaned to other parties), purchase derivatives, enter into forward currency transactions, futures contracts, and options transactions, purchase restricted and illiquid securities, purchase securities on a when-issued or delayed delivery basis, enter into repurchase or reverse repurchase agreements, and engage in various other investment practices, all of which entail various risks. 51 MANAGEMENT OF THE TRUST The Trustees and officers of the Trust, their principal occupations during the past five years, and their affiliations, if any, with CNAM, the investment manager to the Funds, are set forth below. The persons listed below may have held other positions with their employers named below during the relevant periods. Certain officers of the Trust also serve as officers to one or more other mutual funds for which SEI Investments or its affiliates act as investment manager, administrator or distributor. None of the Trustees is an “interested person” of the Trust, as defined in the 1940 Act.Each Trustee may be referred to in this SAI as an “Independent Trustee.” INDEPENDENT TRUSTEES Name Address Age Position with the Trust Term of Office (1) and Length of Time Served Principal Occupation for the Past Five Years Number of Portfolios in Fund Complex(2) Overseen by Trustee Other Directorships Held by Trustee Irwin G. Barnet, Esq. (3) CNI Charter Funds 400 North Roxbury Drive | [
"As filed with the Securities and Exchange Commission on November 28, 2012 File Nos. 333–16093 811–07923 SECURITIES AND EXCHANGE COMMISSION Washington, D.C.20549 FORM N–1A REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 Post–Effective Amendment No.55 and REGISTRATION STATEMENT UNDER THE INVESTMENT COMPANY ACT OF 1940 Amendment No.56 CNI CHARTER FUNDS (Exact Name of Registrant as Specified in its Charter) 400 North Roxbury Drive Beverly Hills, California 90210 (Address of Principal Executive Office) (800) 708-8881 (Registrant’s Telephone Number, Including Area Code) William J. Souza, Esq. 400 North Roxbury Drive Beverly Hills, California 90210 (Name and Address of Agent for Service) It is proposed that this filing will become effective: [X] immediately upon filing pursuant to Rule 485(b) [] on (date), pursuant to Rule 485(b) [ ] 60 days after filing pursuant to Rule 485(a)(1) [] 75 days after filing pursuant to Rule 485(a)(2) [ ] on pursuant to Rule 485(a)(1) Please Send Copy of Communications to: MICHAEL GLAZER Bingham McCutchen LLP 355 South Grand Avenue, Suite 4400 Los Angeles, California 90071-3106 PROSPECTUS DATED NOVEMBER 28, 2012 Government Money Market Fund High Yield Bond Fund Servicing Class (CNIXX) Institutional Class (CNIHX) Class N (CNGXX) Servicing Class (CHYIX) Class S (CNFXX) Class N (CHBAX) Prime Money Market Fund Multi-Asset Fund Institutional Class (CNRPX) Institutional Class (CNIMX) Servicing Class (CNMXX) Servicing Class (CNIIX) Class N (CNPXX) Class N (CNIAX) Class S (CNSXX) U.S.",
"Core Equity Fund California Tax Exempt Money Market Fund Institutional Class (CNRUX) Servicing Class (CNTXX) Servicing Class (CNRVX) Class N (CNEXX) Class N (CNRWX) Class S (CEMXX) Diversified Equity Fund Limited Maturity Fixed Income Fund Institutional Class (AHDEX) Institutional Class (AHLFX) Class N (AHADX) Class N (AHALX) Large Cap Value Equity Fund Government Bond Fund Institutional Class (CNILX) Institutional Class (CNIGX) Servicing Class (CNLIX) Servicing Class (CNBIX) Class N (CVEAX) Class N (CGBAX) Large Cap Growth Equity Fund Corporate Bond Fund Servicing Class (CNGIX) Servicing Class (CNCIX) Class N (CLEAX) Class N (CCBAX) Socially Responsible Equity Fund California Tax Exempt Bond Fund Institutional Class (AHSRX) Servicing Class (CNTIX) Class N (AHRAX) Class N (CCTEX) Full Maturity Fixed Income Fund Institutional Class (AHFMX) Class N (AHAFX) table of contents Summaries 2 Government Money Market Fund (the “Government Money Fund”) 2 Prime Money Market Fund (the “Prime Money Fund”) 5 California Tax Exempt Money Market Fund (the “California Money Fund”) 8 Limited Maturity Fixed Income Fund (the “Limited Maturity Fund”) 11 Government Bond Fund 15 Corporate Bond Fund 18 California Tax Exempt Bond Fund 22 Full Maturity Fixed Income Fund (the “Full Maturity Fund”) 26 High Yield Bond Fund 30 Multi-Asset Fund 34 U.S.",
"Core Equity Fund 39 Diversified Equity Fund 42 Large Cap Value Equity Fund (the “Large Cap Value Fund”) 46 Large Cap Growth Equity Fund (the “Large Cap Growth Fund”) 49 Socially Responsible Equity Fund 52 More About the Funds 56 More About the Funds’ Risks 57 Management of the Funds 65 How to Buy, Sell and Exchange Shares 71 Dividends and Taxes 77 Financial Highlights 79 Important Terms to Know 83 Privacy Principles 84 For More Information Back Cover Mutual fund shares are not insured or guaranteed by the U.S. Government, the Federal Deposit Insurance Corporation or any other governmental agency. Mutual fund shares are not bank deposits, nor are they obligations of, or issued, endorsed or guaranteed by City National Bank. Investing in mutual funds involves risks, including possible loss of principal.",
"The Funds’ Statement of Additional Information (the “SAI”) has more detailed information on all subjects covered in this Prospectus. Investors seeking more in-depth explanations of the Funds should request the SAI and review it before purchasing shares. CNI CHARTER FUNDS | 1 summaries Government Money Fund INVESTMENT GOAL The Government Money Fund is a money market fund that seeks to preserve your principal and maintain a high degree of liquidity while providing current income. Also, the Government Money Fund seeks to maintain a $1.00 per share net asset value (“NAV”). FEES AND EXPENSES OF THE FUND The table below describes the fees and expenses you may pay if you buy and hold shares of the Government Money Fund. Annual Fund Operating Expenses (expenses that you pay each year as a percentage of the value of your investment) ServicingClass(1) Class N Class S Management Fees 0.26% 0.26% 0.26% Distribution (12b-1) Fee None 0.50% 0.50% Other Expenses Shareholder Servicing Fee 0.25% 0.25% 0.25% Other Fund Expenses 0.10% 0.10% 0.10% Total Other Expenses 0.35% 0.35% 0.35% Total Annual Fund Operating Expenses 0.61% 1.11% 1.11% (1) Effective November 28, 2012, the shares previously designated as Institutional Class shares were redesignated as Servicing Class shares. EXAMPLE This Example is intended to help you compare the cost of investing in the Government Money Fund with the cost of investing in other mutual funds. The Example assumes that you invest $10,000 in the Government Money Fund for the time periods indicated and then redeem all of your shares at the end of those periods.",
"The Example also assumes that your investment has a 5% return each year and that the Fund’s operating expenses remain the same. Although your actual costs may be higher or lower, based on these assumptions your costs would be: 1 Year 3 Years 5 Years 10 Years ServicingClass Class N Class S PRINCIPAL INVESTMENT STRATEGIES The Government Money Fund purchases liquid, high quality, short-term U.S. Government bonds and notes. The Fund invests at least 80% of its net assets (including borrowings for investment purposes) in U.S. Government securities. In particular, the Fund invests in U.S. Treasury obligations, obligations issued or guaranteed as to principal and interest by agencies or instrumentalities of the U.S. Government and repurchase agreements involving these obligations. Obligations issued or guaranteed by the U.S. Government or its agencies or instrumentalities in which the Government Money Fund invests consist principally of securities issued or guaranteed by Fannie Mae (formerly known as the Federal National Mortgage Association), the Federal Home Loan Bank (“FHLB”), Freddie Mac (formerly known as the Federal Home Loan Mortgage Corporation) and the Government National Mortgage Association (“Ginnie Mae”).",
"The securities held by the Fund must, in the opinion of City National Asset Management, Inc. (“CNAM”), the Fund’s investment adviser, present minimal credit risk. The Fund invests in compliance with the requirements of Rule 2a-7 under the Investment Company Act of 1940 relating to the credit quality, maturity, liquidity and diversification of investments for money market funds. CNI CHARTER FUNDS | 2 Using a top-down strategy and bottom-up security selection, CNAM seeks securities with an acceptable maturity that are marketable and liquid and offer competitive yields. CNAM also considers factors such as the anticipated level of interest rates and the maturity of individual securities relative to the maturity of the Fund as a whole.",
"PRINCIPAL RISKS OF INVESTING IN THE FUND As with any money market fund, there are risks to investing. Neither the Government Money Fund nor CNAM can guarantee that the Fund will meet its investment goal. Here are the principal risks to consider: No Guarantees – An investment in the Fund is not a deposit in a bank and is not insured or guaranteed by the Federal Deposit Insurance Corporation or any other government agency. Although the Fund seeks to preserve the value of your investment at an NAV of $1.00, it is possible to lose money by investing in the Fund. Additionally, you should be aware that a very small number of money market funds in other fund complexes have in the past “broken the buck,” which means that investors did not receive $1.00 per share for their investment in those funds, and any money market fund may do so in the future. The Effect of Interest Rates – The Fund’s yield typically moves in the same direction as movements in short-term interest rates, although it does not do so as quickly.",
"When interest rates are very low, the Fund’s expenses could absorb all or a significant portion of the Fund’s income, and, if the Fund’s expenses exceed the Fund’s income, the Fund may be unable to maintain its $1.00 share price without a subsidy by CNAM or its affiliates. Market Risk of Fixed Income Securities – The prices of fixed income securities respond to economic developments, particularly interest rate changes, as well as to perceptions about the creditworthiness of individual issuers, including governments. Generally, fixed income securities decrease in value if interest rates rise and increase in value if interest rates fall, with lower rated securities more volatile than higher rated securities. Credit – The Government Money Fund invests exclusively in securities that are rated, when the Fund buys them, in the highest short-term rating category, or if unrated, are of comparable quality in CNAM’s opinion.",
"However, it is possible that some issuers or other obligors will be unable to make the required payments on securities held by the Fund. Debt securities also go up or down in value based on the perceived creditworthiness of issuers or other obligors. If an obligor for a security held by the Fund fails to pay, otherwise defaults or is perceived to be less creditworthy, a security’s credit rating is downgraded (which could happen rapidly), or the credit quality or value of any underlying assets declines, the value of your investment in the Fund could decline significantly, particularly in certain market environments.",
"If the Fund enters into a financial contract (such as a repurchase agreement or reverse repurchase agreement) the Fund will be subject to the credit risk presented by the counterparty. Government-Sponsored Entities – The Fund invests in securities issued by government-sponsored entities, such as mortgage-related securities, which may not be guaranteed or insured by the U.S. Government and may only be supported by the credit of the issuing agency. Management – The Fund’s performance depends on the adviser’s skill in making appropriate investments. As a result, the Fund may underperform the money market or similar funds. Defensive Investments – During unusual economic or market conditions, or for temporary defensive or liquidity purposes, the Fund may invest 100% of its assets in cash or cash equivalents that would not ordinarily be consistent with the Fund’s investment goals.",
"Redemptions – The Fund may experience heavy redemptions, particularly during periods of declining or illiquid markets, that could cause the Fund to liquidate its assets at inopportune times or at a loss or depressed value and that could affect the Fund’s ability to maintain a $1.00 share price. Redemption risk is greater to the extent that the Fund has investors with large shareholdings, short investment horizons, or unpredictable cash flow needs.",
"PERFORMANCE The bar chart and the performance table that follow illustrate some of the risks and volatility of an investment in the Government Money Fund by showing changes in the Fund’s performance from year to year and by showing the Fund’s average annual total returns for 1, 5 and 10 years and since inception. Of course, the Fund’s past performance (before and after taxes) does not necessarily indicate how the Fund will perform in the future. Call 1-888-889-0799 or visit www.cnicharterfunds.com for the Fund’s most current 7-day yield or to obtain updated performance information. This bar chart shows the performance of the Government Money Fund’s Servicing Class (formerly designated as Institutional Class) shares based on a calendar year. CNI CHARTER FUNDS | 3 Best Quarter Worst Quarter 1.19% 0.00% Q4 2006 Q4 2011 This table shows the Government Money Fund’s average annual total returns for the periods ended December 31, 2011.",
"Average Annual Total Returns (for the periods ended December 31, 2011) One Year Five Years Ten Years Since Inception Inception Date Servicing Class 0.02% 1.31% 1.60% 2.05% 4/3/2000 Class N 0.01% 1.21% 1.44% 2.06% 6/21/1999 Class S 0.01% 1.12% 1.30% 1.85% 10/6/1999 INVESTMENT MANAGER City National Asset Management, Inc. PURCHASE AND SALE OF FUND SHARES The Government Money Fund has no minimum purchase or minimum shareholder account balance requirements; however, you will have to comply with the purchase and account balance minimums of your approved broker-dealer or other financial institution (each, an “Authorized Institution”). The Fund may require each Authorized Institution to meet certain aggregate investment levels before it may open an account with the Fund on behalf of its customers. Contact your Authorized Institution for more information. The shares of the Government Money Fund are redeemable. You may redeem your shares only through your Authorized Institution. To redeem shares of the Fund, you should contact your Authorized Institution and follow its procedures, including deadlines for receipt by the Authorized Institution of your share redemption instructions. Your Authorized Institution may charge a fee for its services, in addition to the fees charged by the Fund. TAX INFORMATION The Government Money Fund intends to make distributions that may be taxed as ordinary income or capital gains.",
"PAYMENTS TO BROKER-DEALERS AND OTHER FINANCIAL INTERMEDIARIES If you purchase the Government Money Fund through a broker-dealer or other financial intermediary (such as a bank), the Fund and its related companies may pay the intermediary for the sale of Fund shares and related services. These payments may create a conflict of interest by influencing the broker-dealer or other intermediary and your salesperson to recommend the Fund over another investment. Ask your salesperson or visit your financial intermediary’s web site for more information. CNI CHARTER FUNDS | 4 Prime Money Fund INVESTMENT GOAL The Prime Money Fund is a money market fund that seeks to provide current income through low-risk investments. Also, the Prime Money Fund seeks to maintain a $1.00 per share net asset value (“NAV”). FEES AND EXPENSES OF THE FUND The table below describes the fees and expenses you may pay if you buy and hold shares of the Prime Money Fund.",
"Annual Fund Operating Expenses (expenses that you pay each year as a percentage of the value of your investment) Institutional Class(1) Servicing Class(1) Class N Class S Management Fees 0.25% 0.25% 0.25% 0.25% Distribution (12b-1) Fee None None 0.50% 0.50% Other Expenses Shareholder Servicing Fee None 0.25% 0.25% 0.25% Other Fund Expenses 0.10%(2) 0.10% 0.10% 0.10% Total Other Expenses 0.10% 0.35% 0.35% 0.35% Total Annual Fund Operating Expenses 0.35% 0.60% 1.10% 1.10% (1) The current Institutional Class shares were initially offered November 28, 2012. Effective November 28, 2012, the shares previously designated as Institutional Class shares were redesignated as Servicing Class shares. Other Fund Expenses for Institutional Class shares are estimated based on the amounts for Servicing Class, Class N and Class S shares. EXAMPLE This Example is intended to help you compare the cost of investing in the Prime Money Fund with the cost of investing in other mutual funds. The Example assumes that you invest $10,000 in the Prime Money Fund for the time periods indicated and then redeem all of your shares at the end of those periods. The Example also assumes that your investment has a 5% return each year and that the Fund’s operating expenses remain the same. Although your actual costs may be higher or lower, based on these assumptions your costs would be: 1 Year 3 Years 5 Years 10 Years Institutional Class Servicing Class Class N Class S PRINCIPAL INVESTMENT STRATEGIES The Prime Money Fund purchases liquid, high quality, short-term debt securities in the form of U.S. dollar denominated money market instruments that, in the opinion of City National Asset Management, Inc. (“CNAM”), the Fund’s investment adviser, present minimal credit risk.",
"The Fund’s principal investments consist of commercial paper and short-term corporate obligations, obligations issued or guaranteed as to principal and interest by agencies or instrumentalities of the U.S. government, repurchase agreements involving those obligations. Obligations issued or guaranteed by the U.S. Government or its agencies or instrumentalities in which the Prime Money Fund invests consist principally of securities issued or guaranteed by Fannie Mae (formerly known as the Federal National Mortgage Association), the Federal Home Loan Bank (“FHLB”), Freddie Mac (formerly known as the Federal Home Loan Mortgage Corporation) and the Government National Mortgage Association (“Ginnie Mae”).",
"The Fund invests in compliance with the requirements of Rule 2a-7 under the Investment Company Act of 1940 relating to the credit quality, maturity, liquidity and diversification of investments for money market funds. CNI CHARTER FUNDS | 5 PRINCIPAL RISKS OF INVESTING IN THE FUND As with any money market fund, there are risks to investing. Neither the Prime Money Fund nor CNAM can guarantee that the Fund will meet its investment goal. Here are the principal risks to consider: No Guarantees – An investment in the Fund is not a deposit in a bank and is not insured or guaranteed by the Federal Deposit Insurance Corporation or any other government agency. Although the Fund seeks to preserve the value of your investment at an NAV of $1.00, it is possible to lose money by investing in the Fund.",
"Additionally, you should be aware that a very small number of money market funds in other fund complexes have in the past “broken the buck,” which means that investors did not receive $1.00 per share for their investment in those funds, and any money market fund may do so in the future. The Effect of Interest Rates – The Fund’s yield typically moves in the same direction as movements in short-term interest rates, although it does not do so as quickly. When interest rates are very low, the Fund’s expenses could absorb all or a significant portion of the Fund’s income, and, if the Fund’s expenses exceed the Fund’s income, the Fund may be unable to maintain its $1.00 share price without a subsidy by CNAM or its affiliates. Market Risk of Fixed Income Securities – The prices of fixed income securities respond to economic developments, particularly interest rate changes, as well as to perceptions about the creditworthiness of individual issuers, including governments.",
"Generally, fixed income securities decrease in value if interest rates rise and increase in value if interest rates fall, with lower rated securities more volatile than higher rated securities. Credit – The Prime Money Fund invests exclusively in securities that are rated, when the Fund buys them, in the highest short-term rating category, or if unrated, are of comparable quality in CNAM’s opinion. However, it is possible that some issuers or other obligors will be unable to make the required payments on securities held by the Fund. Debt securities also go up or down in value based on the perceived creditworthiness of issuers or other obligors.",
"If an obligor for a security held by the Fund fails to pay, otherwise defaults or is perceived to be less creditworthy, a security’s credit rating is downgraded (which could happen rapidly), or the credit quality or value of any underlying assets declines, the value of your investment in the Fund could decline significantly, particularly in certain market environments. If the Fund enters into a financial contract (such as a repurchase agreement or reverse repurchase agreement) the Fund will be subject to the credit risk presented by the counterparty. Financial Services Firms – The Fund invests in obligations of financial services firms, including those of banks.",
"Changes in economic conditions and government regulations can significantly affect these issuers. Government-Sponsored Entities – The Fund invests in securities issued by government-sponsored entities, such as mortgage-related securities, which may not be guaranteed or insured by the U.S. Government and may only be supported by the credit of the issuing agency. Management – The Fund’s performance depends on the adviser’s skill in making appropriate investments. As a result, the Fund may underperform the money market or similar funds.",
"Defensive Investments – During unusual economic or market conditions, or for temporary defensive or liquidity purposes, the Fund may invest 100% of its assets in cash or cash equivalents that would not ordinarily be consistent with the Fund’s investment goals. Redemptions – The Fund may experience heavy redemptions, particularly during periods of declining or illiquid markets, that could cause the Fund to liquidate its assets at inopportune times or at a loss or depressed value and that could affect the Fund’s ability to maintain a $1.00 share price. Redemption risk is greater to the extent that the Fund has investors with large shareholdings, short investment horizons, or unpredictable cash flow needs. PERFORMANCE The bar chart and the performance table that follow illustrate some of the risks and volatility of an investment in the Prime Money Fund by showing changes in the Fund’s performance from year to year and by showing the Fund’s average annual total returns for 1, 5 and 10 years and since inception. Of course, the Fund’s past performance (before and after taxes) does not necessarily indicate how the Fund will perform in the future. Call 1-888-889-0799 or visit www.cnicharterfunds.com for the Fund’s most current 7-day yield or to obtain updated performance information.",
"This bar chart shows the performance of the Prime Money Fund’s Servicing Class (formerly designated as Institutional Class) shares based on a calendar year. CNI CHARTER FUNDS | 6 Best Quarter Worst Quarter 1.20% 0.01% Q4 2006 Q4 2011 This table shows the Prime Money Fund’s average annual total returns for the periods ended December 31, 2011. Average Annual Total Returns (for the periods ended December 31, 2011) One Year Five Years Ten Years Since Inception Inception Date Servicing Class 0.05% 1.44% 1.68% 2.52% 3/23/1998 Class N 0.03% 1.32% 1.51% 2.05% 10/18/1999 Class S 0.01% 1.22% 1.36% 1.89% 10/26/1999 INVESTMENT MANAGER City National Asset Management, Inc. PURCHASE AND SALE OF FUND SHARES The minimum initial investment for Institutional Class shares is $1,000,000.",
"There is no minimum for subsequent investments in Institutional Class shares. The Fund reserves the right to change the minimum amount required to open an account without prior notice. The Fund may accept investments of smaller amounts at its discretion. The Fund has no minimum purchase or minimum shareholder account balance requirements for Servicing Class, Class N or Class S shares; however, you will have to comply with the purchase and account balance minimums of your approved broker-dealer or other financial institution (each, an “Authorized Institution”). The Fund may require each Authorized Institution to meet certain aggregate investment levels before it may open an account with the Fund on behalf of its customers.",
"Contact your Authorized Institution for more information. The shares of the Prime Money Fund are redeemable. You may redeem your shares only through your Authorized Institution. To redeem shares of the Fund, you should contact your Authorized Institution and follow its procedures, including deadlines for receipt by the Authorized Institution of your share redemption instructions. Your Authorized Institution may charge a fee for its services, in addition to the fees charged by the Fund. TAX INFORMATION The Prime Money Fund intends to make distributions that may be taxed as ordinary income or capital gains. PAYMENTS TO BROKER-DEALERS AND OTHER FINANCIAL INTERMEDIARIES If you purchase the Prime Money Fund through a broker-dealer or other financial intermediary (such as a bank), the Fund and its related companies may pay the intermediary for the sale of Fund shares and related services. These payments may create a conflict of interest by influencing the broker-dealer or other intermediary and your salesperson to recommend the Fund over another investment. Ask your salesperson or visit your financial intermediary’s web site for more information.",
"CNI CHARTER FUNDS | 7 California Money Fund INVESTMENT GOAL The California Money Fund is a money market fund that seeks to preserve your principal and maintain a high degree of liquidity while providing current income that is exempt from federal, and to the extent possible, California state personal income tax. Also, the California Money Fund seeks to maintain a $1.00 per share net asset value (“NAV”). FEES AND EXPENSES OF THE FUND The table below describes the fees and expenses you may pay if you buy and hold shares of the California Money Fund. Annual Fund Operating Expenses (expenses that you pay each year as a percentage of the value of your investment) ServicingClass(1) Class N Class S Management Fees 0.27% 0.27% 0.27% Distribution (12b-1) Fee None 0.50% 0.50% Other Expenses Shareholder Servicing Fee 0.25% 0.25% 0.25% Other Fund Expenses 0.10% 0.10% 0.10% Total Other Expenses 0.35% 0.35% 0.35% Total Annual Fund Operating Expenses 0.62% 1.12% 1.12% (1) Effective November 28, 2012, the shares previously designated as Institutional Class shares were redesignated as Servicing Class shares.",
"EXAMPLE This Example is intended to help you compare the cost of investing in the California Money Fund with the cost of investing in other mutual funds. The Example assumes that you invest $10,000 in the California Money Fund for the time periods indicated and then redeem all of your shares at the end of those periods. The Example also assumes that your investment has a 5% return each year and that the Fund’s operating expenses remain the same. Although your actual costs may be higher or lower, based on these assumptions your costs would be: 1 Year 3 Years 5 Years 10 Years ServicingClass Class N Class S PRINCIPAL INVESTMENT STRATEGIES The California Money Fund purchases liquid, high quality, short-term municipal money market securities issued by the State of California and its agencies, by various counties, cities and regional or special districts in California, and by various other sectors of the California municipal securities market. The Fund invests at least 80% of its net assets (including borrowings for investment purposes) in municipal obligations that pay interest which is expected to be exempt from federal and California state personal income tax and securities that pay interest which is not a preference item for purposes of the federal alternative minimum tax (the “AMT”).",
"This policy may not be changed without shareholder approval. Up to 20% of the Fund’s net assets may be invested in securities subject to the AMT, although City National Asset Management, Inc. (“CNAM”), the Fund’s investment adviser, does not currently intend to invest in such securities. The Fund also invests in high quality municipal bonds rated within the highest grade by nationally recognized statistical rating organizations such as Standard & Poor’s Ratings Services and/or Moody’s Investors Service, or equivalent quality (in CNAM’s opinion) for unrated securities, notes and tax exempt commercial paper. The securities held by the Fund must, in the opinion of CNAM, present minimal credit risk. The Fund invests in compliance with the requirements of Rule 2a-7 under the Investment Company Act of 1940 relating to the credit quality, maturity, liquidity and diversification of investments for money market funds. CNI CHARTER FUNDS | 8 PRINCIPAL RISKS OF INVESTING IN THE FUND As with any money market fund, there are risks to investing. Neither the California Money Fund nor CNAM can guarantee that the Fund will meet its investment goal.",
"Here are the principal risks to consider: No Guarantees – An investment in the Fund is not a deposit in a bank and is not insured or guaranteed by the Federal Deposit Insurance Corporation or any other government agency. Although the Fund seeks to preserve the value of your investment at an NAV of $1.00, it is possible to lose money by investing in the Fund. Additionally, you should be aware that a very small number of money market funds in other fund complexes have in the past “broken the buck,” which means that investors did not receive $1.00 per share for their investment in those funds, and any money market fund may do so in the future. California Risk Factors – The Fund may be subject to greater risks than other tax exempt money market funds that are diversified across issuers located in a number of states. The Fund is vulnerable to adverse economic, political or other events that may lessen the ability of California municipal securities issuers to pay interest and principal on their securities. Poor statewide or local economic results, changing political sentiments, legislation, policy changes or voter-based initiatives at the state or local level, erosion of the tax base or revenues of the state or one or more local governments, seismic or other natural disasters, or other economic or credit problems affecting the state generally or a particular issuer may reduce tax revenues and increase the expenses of California municipal issuers, making it more difficult for them to meet their obligations.",
"Actual or perceived erosion of the creditworthiness of California municipal issuers may also reduce the value of the Fund’s holdings. Municipal Obligations – U.S. state and local governments issuing municipal securities held by the Fund rely on taxes and revenues from private projects financed by municipal securities to pay interest and principal on municipal debt. The payment of principal and interest on these obligations may be adversely affected by a variety of factors at the state or local level, including poor statewide or local economic results, changing political sentiments, legislation, policy changes or voter-based initiatives, erosion of the tax base or revenues of the state or one or more local governments, natural disasters, or other economic or credit problems. Taxes – Although one of the Fund’s goals is to provide income exempt from federal and California state personal income taxes, some of its income may be subject to the AMT. If certain types of investments the Fund buys as tax-exempt are later ruled to be taxable, a portion of the Fund’s income could become taxable.",
"The Effect of Interest Rates – The Fund’s yield typically moves in the same direction as movements in short-term interest rates, although it does not do so as quickly. When interest rates are very low, the Fund’s expenses could absorb all or a significant portion of the Fund’s income, and, if the Fund’s expenses exceed the Fund’s income, the Fund may be unable to maintain its $1.00 share price without a subsidy by CNAM or its affiliates. Market Risk of Fixed Income Securities – The prices of fixed income securities respond to economic developments, particularly interest rate changes, as well as to perceptions about the creditworthiness of individual issuers, including governments.",
"Generally, fixed income securities decrease in value if interest rates rise and increase in value if interest rates fall, with lower rated securities more volatile than higher rated securities. Credit – The California Money Fund invests exclusively in securities that are rated, when the Fund buys them, in the highest short-term rating category, or if unrated, are of comparable quality in CNAM’s opinion. However, it is possible that some issuers or other obligors will be unable to make the required payments on securities held by the Fund. Debt securities also go up or down in value based on the perceived creditworthiness of issuers or other obligors. If an obligor for a security held by the Fund fails to pay, otherwise defaults or is perceived to be less creditworthy, a security’s credit rating is downgraded (which could happen rapidly), or the credit quality or value of any underlying assets declines, the value of your investment in the Fund could decline significantly, particularly in certain market environments. If the Fund enters into a financial contract (such as a repurchase agreement or reverse repurchase agreement) the Fund will be subject to the credit risk presented by the counterparty. Management – The Fund’s performance depends on the adviser’s skill in making appropriate investments. As a result, the Fund may underperform the money market or similar funds.",
"Defensive Investments – During unusual economic or market conditions, or for temporary defensive or liquidity purposes, the Fund may invest 100% of its assets in municipal obligations of issuers in states other than California or taxable money market securities. During such a period, the Fund may not achieve its investment goals. If the Fund makes defensive investments, it may generate taxable income. Redemptions – The Fund may experience heavy redemptions, particularly during periods of declining or illiquid markets, that could cause the Fund to liquidate its assets at inopportune times or at a loss or depressed value and that could affect the Fund’s ability to maintain a $1.00 share price. Redemption risk is greater to the extent that the Fund has investors with large shareholdings, short investment horizons, or unpredictable cash flow needs. CNI CHARTER FUNDS | 9 PERFORMANCE The bar chart and the performance table that follow illustrate some of the risks and volatility of an investment in the California Money Fund by showing changes in the Fund’s performance from year to year and by showing the Fund’s average annual total returns for 1, 5 and 10 years and since inception. Of course, the Fund’s past performance (before and after taxes) does not necessarily indicate how the Fund will perform in the future. Call 1-888-889-0799 or visit www.cnicharterfunds.com for the Fund’s most current 7-day yield or to obtain updated performance information.",
"This bar chart shows the performance of the California Money Fund’s Servicing Class (formerly designated as Institutional Class) shares based on a calendar year. Best Quarter Worst Quarter 0.77% 0.00% Q2 2007 Q4 2011 This table shows the California Money Fund’s average annual total returns for the periods ended December 31, 2011. Average Annual Total Returns (for the periods ended December 31, 2011) One Year Five Years Ten Years Since Inception Inception Date ServicingClass 0.02% 0.89% 1.11% 1.33% 4/3/2000 Class N 0.01% 0.78% 0.95% 1.22% 6/21/1999 Class S 0.01% 0.70% 0.81% 1.05% 11/12/1999 INVESTMENT MANAGER City National Asset Management, Inc. PURCHASE AND SALE OF FUND SHARES The California Money Fund has no minimum purchase or minimum shareholder account balance requirements; however, you will have to comply with the purchase and account balance minimums of your approved broker-dealer or other financial institution (each, an “Authorized Institution”). The Fund may require each Authorized Institution to meet certain aggregate investment levels before it may open an account with the Fund on behalf of its customers. Contact your Authorized Institution for more information. The shares of the California Money Fund are redeemable. You may redeem your shares only through your Authorized Institution. To redeem shares of the Fund, you should contact your Authorized Institution and follow its procedures, including deadlines for receipt by the Authorized Institution of your share redemption instructions.",
"Your Authorized Institution may charge a fee for its services, in addition to the fees charged by the Fund. TAX INFORMATION The California Money Fund intends to distribute income that is exempt from regular federal and California state income taxes. A portion of the Fund’s distributions may be subject to such taxes or to the AMT. PAYMENTS TO BROKER-DEALERS AND OTHER FINANCIAL INTERMEDIARIES If you purchase the California Money Fund through a broker-dealer or other financial intermediary (such as a bank), the Fund and its related companies may pay the intermediary for the sale of Fund shares and related services.",
"These payments may create a conflict of interest by influencing the broker-dealer or other intermediary and your salesperson to recommend the Fund over another investment. Ask your salesperson or visit your financial intermediary’s web site for more information. CNI CHARTER FUNDS | 10 Limited Maturity Fund INVESTMENT GOAL The Limited Maturity Fund seeks to provide a high level of current income, consistent with the preservation of capital and liquidity. FEES AND EXPENSES OF THE FUND The table below describes the fees and expenses you may pay if you buy and hold shares of the Limited Maturity Fund. Annual Fund Operating Expenses (expenses that you pay each year as a percentage of the value of your investment) Institutional Class Class N Management Fees 0.50% 0.50% Distribution (12b-1) Fee None 0.25% Other Expenses Shareholder Servicing Fee None 0.25% Other Fund Expenses 0.17% 0.17% Total Other Expenses 0.17% 0.42% Total Annual Fund Operating Expenses 0.67% 1.17% Fee Waiver and/or Expense Reimbursement(1) (0.00)% (0.25)% Total Annual Fund Operating Expenses After Fee Waiver and/or Expense Reimbursement 0.67% 0.92% (1) City National Asset Management, Inc., the Fund’s investment adviser (“CNAM”), has contractually agreed to waive the shareholder servicing fees for Class N shares until January 28, 2014.",
"Prior to that date, this arrangement may be terminated without penalty by the Fund’s Board of Trustees upon 60 days’ written notice to CNAM, and it will terminate automatically upon the termination of the shareholder services agreement between CNAM and the Fund. Any shareholder servicing fees waived by CNAM pursuant to this arrangement will not be eligible for reimbursement by the Fund to CNAM. EXAMPLE This Example is intended to help you compare the cost of investing in the Limited Maturity Fund with the cost of investing in other mutual funds. The Example assumes that you invest $10,000 in the Fund for the time periods indicated and then redeem all of your shares at the end of those periods. The Example also assumes that your investment has a 5% return each year and that the Fund’s operating expenses remain the same.",
"Although your actual costs may be higher or lower, based on these assumptions your costs would be: 1 Year 3 Years 5 Years 10 Years Institutional Class Class N PORTFOLIO TURNOVER The Fund pays transaction costs, such as commissions, when it buys and sells securities (or “turns over” its portfolio). A higher portfolio turnover rate may indicate higher transaction costs and may result in higher taxes when Fund shares are held in a taxable account. These costs, which are not reflected in annual fund operating expenses or in the example, affect the Fund’s performance. During the most recent fiscal year, the Fund’s portfolio turnover rate was 50% of the average value of its portfolio. CNI CHARTER FUNDS | 11 PRINCIPAL INVESTMENT STRATEGIES At least 80% of the Limited Maturity Fund’s net assets (including borrowings for investment purposes) consists of fixed income securities either issued or guaranteed by the U.S. Government or its agencies or instrumentalities, money market instruments and non-convertible fixed income securities (i.e., bonds which cannot be converted into stock) of U.S. companies.",
"For purposes of the Fund’s 80% policy, fixed income securities of U.S. companies include securities issued by an issuer that is domiciled in the United States; conducts a majority of its business in the United States; or is listed in the Barclays Capital Intermediate U.S. Government/Credit Index (the “Index”) at the time of purchase, or will be listed in the Index. The Fund invests in securities having one of the four highest ratings of either Moody’s Investors Service (at least Baa) or Standard & Poor’s (at least BBB). The Fund may retain a security after it has been downgraded to any ratingbelow the minimum credit rating if City National Asset Management, Inc. (“CNAM”), the Fund’s investment adviser, determines that doing so is in the best interests of the Fund. The fixed income securities in which the Fund invests may have fixed, variable or floating interest rates, as well as varying principal repayment and interest rate reset terms.",
"Fixed income securities issued or guaranteed by the U.S. Government or its agencies or instrumentalities in which the Limited Maturity Fund invests consist principally of mortgage-backed or asset-backed securities issued or guaranteed by Fannie Mae (formerly known as the Federal National Mortgage Association), the Federal Home Loan Bank (“FHLB”), Freddie Mac (formerly known as the Federal Home Loan Mortgage Corporation) and the Government National Mortgage Association (“Ginnie Mae”). At least 80% of the Limited Maturity Fund’s net assets consists of fixed income securities with “limited maturity.” This investment strategy may be changed at any time, with 60 days’ prior notice to shareholders. CNAM considers “limited maturity” to mean a maturity of less than five years.",
"There is no limit on the maturities of individual securities. CNAM actively manages the average duration of the Fund’s portfolio and determines which securities to purchase or sell in accordance with its analysis of prevailing interest rates and yields, the quality and value of particular securities, and the comparative risks and returns of alternative investments. PRINCIPAL RISKS OF INVESTING IN THE FUND As with any mutual fund, there are risks to investing. Neither the Limited Maturity Fund nor CNAM can guarantee that the Fund will meet its investment goal. The Fund will expose you to risks that could cause you to lose money. Here are the principal risks to consider: The Effect of Interest Rates – The Fund’s yield typically moves in the same direction as movements in short-term interest rates, although it does not do so as quickly. Market Risk of Fixed Income Securities – The prices of fixed income securities respond to economic developments, particularly interest rate changes, as well as to perceptions about the creditworthiness of individual issuers, including governments. Generally, fixed income securities decrease in value if interest rates rise and increase in value if interest rates fall, with lower rated securities more volatile than higher rated securities.",
"The duration of these securities affects risk as well, with longer term securities generally more volatile than shorter term securities. Issuers – The Fund may be adversely affected if the issuers of securities that the Fund holds do not make their principal or interest payments on time. Government-Sponsored Entities – The Fund invests in securities issued by government-sponsored entities which may not be guaranteed or insured by the U.S. Government and may only be supported by the credit of the issuing agency. Prepayments – As a general rule, prepayments of the principal of the loans underlying mortgage-backed or other pass-through securities increase during a period of falling interest rates and decrease during a period of rising interest rates. In periods of declining interest rates, as a result of prepayments the Fund may be required to reinvest its assets in securities with lower interest rates. In periods of increasing interest rates, the securities subject to prepayment risk held by the Fund may exhibit price characteristics of longer-term debt securities. Extension – Rising interest rates can cause the average maturity of the Fund’s holdings of mortgage-backed and other pass-through securities to lengthen unexpectedly due to a drop in prepayments.",
"This would increase the sensitivity of the Fund to rising rates and the potential for price declines of portfolio securities. Rating Agencies – A credit rating is not an absolute standard of quality, but rather a general indicator that reflects only the view of the originating rating agency. If a rating agency revises downward or withdraws its rating of a security in which the Fund invests, that security may become less liquid or may lose value. Management – The Fund’s performance depends on the portfolio managers’ skill in making appropriate investments. As a result, the Fund may underperform the fixed income market or similar funds. Defensive Investments – During unusual economic or market conditions, or for temporary defensive or liquidity purposes, the Fund may invest 100% of its assets in cash or cash equivalents that would not ordinarily be consistent with the Fund’s investment goals. CNI CHARTER FUNDS | 12 PERFORMANCE The bar chart and the performance table that follow illustrate some of the risks and volatility of an investment in the Limited Maturity Fund by showing changes in the Fund’s performance from year to year and by showing the Fund’s average annual total returns for 1, 5 and 10 years and since inception. Of course, the Fund’s past performance (before and after taxes) does not necessarily indicate how the Fund will perform in the future.",
"Call 1-888-889-0799 or visit www.cnicharterfunds.com to obtain updated performance information. This bar chart shows the performance of the Limited Maturity Fund’s Institutional Class shares based on a calendar year. Best Quarter Worst Quarter 3.13% (1.33)% Q4 2008 Q2 2004 This table shows the average annual total returns of each class of the Limited Maturity Fund for the periods ended December 31, 2011. The table also shows how the Fund’s performance compares with the returns of indexes comprised of investments similar to those held by the Fund. Average Annual Total Returns (for the periods ended December 31, 2011) One Year Five Years Ten Years Since Inception(1) Institutional Class Return Before Taxes 1.64% 3.77% 3.15% 4.90% Return After Taxes on Distributions 1.16% 2.82% 2.22% 3.33% Return After Taxes on Distributions and Sale of Fund Shares 1.06% 2.66% 2.15% 3.27% Class N Return Before Taxes 1.29% 3.49% 2.96% 4.82% BofA Merrill Lynch 1-3 Year US Treasury Index (Reflects no deduction for fees, expenses or taxes) 1.55% 3.69% 3.25% 5.40% BofA Merrill Lynch US 3-Month Treasury Bill Index (Reflects no deduction for fees, expenses or taxes) 0.10% 1.48% 1.95% 4.00% (1) Performance for “Since Inception” for all classes is shown for periods beginning October 22, 1988, which is the date the predecessor to the Limited Maturity Fund (the “Predecessor Fund”) commenced operations. On September 30, 2005, the Predecessor Fund reorganized into the Fund.",
"The performance results for Institutional Class shares of the Fund before September 30, 2005, reflect the performance of the Predecessor Fund’s Class I shares. Class A shares of the Predecessor Fund, the predecessor to the Class N shares of the Fund, commenced operations on October 22, 2004. The performance results for Class N shares of the Fund for the period of October 22, 2004 to September 29, 2005, reflect the performance of the Predecessor Fund’s Class A shares. The performance results for Class N shares of the Fund for the period of October 22, 1988 to October 21, 2004, reflect the performance of the Predecessor Fund’s Class I shares. The performance of the Predecessor Fund’s Class I shares has not been adjusted to reflect the higher Rule 12b-1 fees and expenses applicable to the Fund’s Class N shares. If it had, the performance of the Fund’s Class N shares would have been lower than that shown.",
"For each index shown the measurement period used in computing the returns of the index for the “Since Inception” period begins on October 31, 1988. After-tax returns are calculated using the historical highest individual federal marginal income tax rates and do not reflect the impact of state and local taxes. Actual after-tax returns depend on an investor’s tax situation and may differ from those shown. The performance of Institutional Class shares does not reflect Class N shares’ Rule 12b-1 fees and expenses. After-tax returns for Class N shares will vary from the after-tax returns shown above for Institutional Class shares. The after-tax returns shown are not relevant to investors who hold their Fund shares through tax-deferred arrangements, such as 401(k) plans or individual retirement accounts.",
"CNI CHARTER FUNDS | 13 INVESTMENT MANAGER City National Asset Management, Inc. PORTFOLIO MANAGERS Paul C. Single and William C. Miller, Jr. of CNAM have served as portfolio managers for the Fund since 2005. PURCHASE AND SALE OF FUND SHARES The minimum initial investment for Institutional Class shares is $1,000,000. The minimum initial investment for Class N shares is $1,000. There is no minimum for subsequent investments in Institutional Class shares or Class N shares. The Fund reserves the right to change the minimum amount required to open an account or to add to an existing account without prior notice. The Fund may accept investments of smaller amounts at its discretion; however, your financial institution or financial professional may establish higher minimum investment requirements than the Fund and may also independently charge you transaction fees and additional amounts in return for its services. The shares of the Limited Maturity Fund are redeemable.",
"You may redeem some or all of your shares on any day the NYSE is open for regular session trading. The Fund ordinarily pays redemption proceeds on the business day following the redemption of your shares. However, the Fund reserves the right to make payment within seven days of the redemption request. Redemption proceeds will be sent to you via check to your address of record or will be wired to your bank via the instructions on your account. TAX INFORMATION The Limited Maturity Fund intends to make distributions that may be taxed as ordinary income or capital gains. PAYMENTS TO BROKER-DEALERS AND OTHER FINANCIAL INTERMEDIARIES If you purchase the Limited Maturity Fund through a broker-dealer or other financial intermediary (such as a bank), the Fund and its related companies may pay the intermediary for the sale of Fund shares and related services. These payments may create a conflict of interest by influencing the broker-dealer or other intermediary and your salesperson to recommend the Fund over another investment. Ask your salesperson or visit your financial intermediary’s web site for more information.",
"CNI CHARTER FUNDS | 14 Government Bond Fund INVESTMENT GOAL The Government Bond Fund seeks to provide current income (as the primary component of a total return intermediate duration strategy) by investing primarily in U.S. Government securities. FEES AND EXPENSES OF THE FUND The table below describes the fees and expenses you may pay if you buy and hold shares of the Government Bond Fund. Annual Fund Operating Expenses (expenses that you pay each year as a percentage of the value of your investment) Institutional Class(1) Servicing Class(1) Class N Management Fees 0.43% 0.43% 0.43% Distribution (12b-1) Fee None None 0.25% Other Expenses Shareholder Servicing Fee None 0.25% 0.25% Other Fund Expenses 0.10%(2) 0.10% 0.10% Total Other Expenses 0.10% 0.35% 0.35% Total Annual Fund Operating Expenses 0.53% 0.78% 1.03% Institutional Class shares were initially offered in December, 2011. Effective December 19, 2011, the shares previously designated as Institutional Class shares were redesignated as Servicing Class shares. Other Fund Expenses for Institutional Class shares are estimated based on the amounts for Servicing Class shares and Class N shares. EXAMPLE This Example is intended to help you compare the cost of investing in the Government Bond Fund with the cost of investing in other mutual funds.",
"The Example assumes that you invest $10,000 in the Government Bond Fund for the time periods indicated and then redeem all of your shares at the end of those periods. The Example also assumes that your investment has a 5% return each year and that the Fund’s operating expenses remain the same. Although your actual costs may be higher or lower, based on these assumptions your costs would be: 1 Year 3 Years 5 Years 10 Years Institutional Class Servicing Class Class N PORTFOLIO TURNOVER The Government Bond Fund pays transaction costs, such as commissions, when it buys and sells securities (or “turns over” its portfolio). A higher portfolio turnover rate may indicate higher transaction costs and may result in higher taxes when Fund shares are held in a taxable account. These costs, which are not reflected in annual fund operating expenses or in the example, affect the Fund’s performance.",
"During the most recent fiscal year, the Fund’s portfolio turnover rate was 86% of the average value of its portfolio. PRINCIPAL INVESTMENT STRATEGIES At least 80% of the Government Bond Fund’s net assets (including borrowings for investment purposes) consists of U.S. Government securities either issued or guaranteed by the U.S. Government or its agencies or instrumentalities. The Fund may also purchase prime quality, conforming mortgage-backed securities issued by the U.S. Government or Fannie Mae (formerly known as the Federal National Mortgage Association), the Federal Home Loan Bank (“FHLB”), Freddie Mac (formerly known as the Federal Home Loan Mortgage Corporation) or the Governmant National Mortgage Association (“Ginnie Mae”) whose maturity and duration are consistent with an intermediate term strategy. The Fund typically invests in securities rated investment-grade by Standard & Poor’s, Moody’s Investors Services and/or Fitch Ratings, or unrated securities considered to be of equivalent quality by City National Asset Management, Inc. (“CNAM”), the Fund’s investment adviser. CNI CHARTER FUNDS | 15 CNAM actively manages the average duration of the Fund’s portfolio in accordance with its expectations of interest rate changes as driven by economic trends.",
"The average duration of the Fund’s portfolio typically ranges from two to six years, but may vary due to unusually large purchases or redemptions of the Fund’s shares. The Government Bond Fund may also invest in the shares of money market mutual funds whose objectives are consistent with those of the Fund. PRINCIPAL RISKS OF INVESTING IN THE FUND As with any mutual fund, there are risks to investing. Neither the Government Bond Fund nor CNAM can guarantee that the Fund will meet its investment goal. The Fund will expose you to risks that could cause you to lose money. Here are the principal risks to consider: The Effect of Interest Rates – The Fund’s yield typically moves in the same direction as movements in short-term interest rates, although it does not do so as quickly. Market Risk of Fixed Income Securities – The prices of fixed income securities respond to economic developments, particularly interest rate changes, as well as to perceptions about the creditworthiness of individual issuers, including governments.",
"Generally, fixed income securities decrease in value if interest rates rise and increase in value if interest rates fall, with lower rated securities more volatile than higher rated securities. The duration of these securities affects risk as well, with longer term securities generally more volatile than shorter term securities. Government-Sponsored Entities – The Fund invests in securities issued by government-sponsored entities which may not be guaranteed or insured by the U.S. Government and may only be supported by the credit of the issuing agency. Issuers – The Fund may be adversely affected if the issuers of securities that the Fund holds do not make their principal or interest payments on time. Prepayments – As a general rule, prepayments of the principal of the loans underlying mortgage-backed or other pass-through securities increase during a period of falling interest rates and decrease during a period of rising interest rates. In periods of declining interest rates, as a result of prepayments the Fund may be required to reinvest its assets in securities with lower interest rates. In periods of increasing interest rates, the securities subject to prepayment risk held by the Fund may exhibit price characteristics of longer-term debt securities.",
"Extension – Rising interest rates can cause the average maturity of the Fund’s holdings of mortgage-backed and other pass-through securities to lengthen unexpectedly due to a drop in prepayments. This would increase the sensitivity of the Fund to rising rates and the potential for price declines of portfolio securities. Rating Agencies – A credit rating is not an absolute standard of quality, but rather a general indicator that reflects only the view of the originating rating agency. If a rating agency revises downward or withdraws its rating of a security in which the Fund invests, that security may become less liquid or may lose value. Management – The Fund’s performance depends on the portfolio managers’ skill in making appropriate investments. As a result, the Fund may underperform the fixed income market or similar funds. Defensive Investments – During unusual economic or market conditions, or for temporary defensive or liquidity purposes, the Fund may invest 100% of its assets in cash or cash equivalents that would not ordinarily be consistent with the Fund’s investment goals. PERFORMANCE The bar chart and the performance table that follow illustrate some of the risks and volatility of an investment in the Government Bond Fund by showing changes in the Fund’s performance from year to year and by showing the Fund’s average annual total returns for 1, 5 and 10 years.",
"Of course, the Fund’s past performance (before and after taxes) does not necessarily indicate how the Fund will perform in the future. Call 1-888-889-0799 or visit www.cnicharterfunds.com to obtain updated performance information. This bar chart shows the performance of the Government Bond Fund’s Servicing Class (formerly designated as Institutional Class) shares based on a calendar year. Best Quarter Worst Quarter 4.20% (1.39)% Q3 2002 Q2 2004 CNI CHARTER FUNDS | 16 This table shows the average annual total returns of each class of the Government Bond Fund for the periods ended December 31, 2011. The table also shows how the Fund’s performance compares with the returns of indices comprised of investments similar to those held by the Fund.",
"Average Annual Total Returns (for the periods ended December 31, 2011) One Year Five Years Ten Years Inception Date Servicing Class 1/14/2000 Return Before Taxes 3.85% 4.04% 3.68% Return After Taxes on Distributions 3.18% 2.90% 2.46% Return After Taxes on Distributions and Sale of Fund Shares 2.51% 2.78% 2.44% Class N 4/13/2000 Return Before Taxes 3.58% 3.77% 3.45% Barclays Capital U.S. 1-5 Year Government Bond Index (1) (Reflects no deduction for fees, expenses or taxes) 3.21% 4.76% 4.05% Barclays Capital U.S. Intermediate Government Bond Index (Reflects no deduction for fees, expenses or taxes) 6.08% 5.86% 4.89% Previously, the Fund’s performance was compared to the Barclays Capital U.S. Intermediate Government Bond Index as its primary benchmark. CNAM has elected to compare the Fund’s performance to the Barclays Capital U.S. 1-5 Year Government Bond Index as CNAM believes this is the most appropriate index for comparison to the Fund’s performance. After-tax returns are calculated using the historical highest individual federal marginal income tax rates and do not reflect the impact of state and local taxes. Actual after-tax returns depend on an investor’s tax situation and may differ from those shown.",
"The performance of Servicing Class shares does not reflect Class N shares’ Rule 12b-1 fees and expenses. After-tax returns for Class N shares and Institutional Class shares will vary from the after-tax returns shown above for Servicing Class shares. The after-tax returns shown are not relevant to investors who hold their Fund shares through tax-deferred arrangements, such as 401(k) plans or individual retirement accounts. INVESTMENT MANAGER City National Asset Management, Inc. PORTFOLIO MANAGERS Paul C. Single and Robert Harder have served as portfolio managers for the Government Bond Fund since 2003 and June 2010, respectively. PURCHASE AND SALE OF FUND SHARES The minimum initial investment for Institutional Class shares is $1,000,000. There is no minimum for subsequent investments in Institutional Class shares. The Fund reserves the right to change the minimum amount required to open an account without prior notice. The Fund may accept investments of smaller amounts at its discretion. There are no minimum purchase or minimum shareholder account balance requirements for Servicing Class or Class N shares; however, you will have to comply with the purchase and account balance minimums of your approved broker-dealer or other financial institution (each, an “Authorized Institution”).",
"The Fund may require each Authorized Institution to meet certain aggregate investment levels before it may open an account with the Fund on behalf of its customers. Contact your Authorized Institution for more information. The shares of the Government Bond Fund are redeemable. You may redeem your shares only through your Authorized Institution. To redeem shares of the Fund, you should contact your Authorized Institution and follow its procedures, including deadlines for receipt by the Authorized Institution of your share redemption instructions. Your Authorized Institution may charge a fee for its services, in addition to the fees charged by the Fund.",
"TAX INFORMATION The Government Bond Fund intends to make distributions that may be taxed as ordinary income or capital gains. PAYMENTS TO BROKER-DEALERS AND OTHER FINANCIAL INTERMEDIARIES If you purchase the Government Bond Fund through a broker-dealer or other financial intermediary (such as a bank), the Fund and its related companies may pay the intermediary for the sale of Fund shares and related services. These payments may create a conflict of interest by influencing the broker-dealer or other intermediary and your salesperson to recommend the Fund over another investment. Ask your salesperson or visit your financial intermediary’s web site for more information. CNI CHARTER FUNDS | 17 Corporate Bond Fund INVESTMENT GOAL The Corporate Bond Fund seeks to provide current income (as the primary component of a total return intermediate duration strategy) by investing in a diversified portfolio of fixed income securities. FEES AND EXPENSES OF THE FUND The table below describes the fees and expenses you may pay if you buy and hold shares of the Corporate Bond Fund. Annual Fund Operating Expenses (expenses that you pay each year as a percentage of the value of your investment) Servicing Class(1) Class N Management Fees 0.40% 0.40% Distribution (12b-1) Fee None 0.25% Other Expenses Shareholder Servicing Fee 0.25% 0.25% Other Fund Expenses 0.11% 0.11% Total Other Expenses 0.36% 0.36% Total Annual Fund Operating Expenses(2) 0.76% 1.01% Effective December 19, 2011, the shares previously designated as Institutional Class shares were redesignated as Servicing Class shares.",
"Includes “Acquired Fund Fees and Expenses” incurred indirectly by the Fund due to investments in other investment companies and pooled investment vehicles. The Total Annual Fund Operating Expenses above do not correlate to the ratio of expenses to average net assets given in the financial highlights (which reflects the Fund’s operating expenses but not “Acquired Fund Fees and Expenses”). EXAMPLE This Example is intended to help you compare the cost of investing in the Corporate Bond Fund with the cost of investing in other mutual funds. The Example assumes that you invest $10,000 in the Corporate Bond Fund for the time periods indicated and then redeem all of your shares at the end of those periods.",
"The Example also assumes that your investment has a 5% return each year and that the Fund’s operating expenses remain the same. Although your actual costs may be higher or lower, based on these assumptions your costs would be: 1 Year 3 Years 5 Years 10 Years Servicing Class Class N PORTFOLIO TURNOVER The Corporate Bond Fund pays transaction costs, such as commissions, when it buys and sells securities (or “turns over” its portfolio). A higher portfolio turnover rate may indicate higher transaction costs and may result in higher taxes when Fund shares are held in a taxable account. These costs, which are not reflected in annual fund operating expenses or in the example, affect the Fund’s performance. During the most recent fiscal year, the Fund’s portfolio turnover rate was 40% of the average value of its portfolio. CNI CHARTER FUNDS | 18 PRINCIPAL INVESTMENT STRATEGIES At least 80% of the Corporate Bond Fund’s net assets (including borrowings for investment purposes) consists of investment grade corporate notes, bonds and debentures that are nationally traded and corporate issues of domestic and international companies (including emerging market companies) denominated in U.S. dollars. The Fund may also purchase mortgage-backed and asset-backed instruments whose maturities and durations are consistent with an intermediate term strategy.",
"City National Asset Management, Inc. (“CNAM”), the Fund’s investment adviser, actively manages the average duration of the portfolio in accordance with its expectations of interest rate changes as driven by economic trends. The average duration of the Fund’s portfolio typically ranges from two to six years, but may vary due to unusually large purchases or redemptions of the Fund’s shares. CNAM typically invests in corporate issues with a minimum credit rating from Moody’s Investors Service or Standard & Poor’s of Baa or BBB, mortgage-backed and asset-backed instruments with a minimum rating of Aa or AA and corporate commercial paper issued by issuers with a minimum credit rating of P1 or A1.",
"The Fund may retain a security after it has been downgraded to any ratingbelow the minimum credit rating if CNAM determines that doing so is in the best interests of the Fund. The Fund may also invest in the shares of money market mutual funds whose objectives are consistent with those of the Fund. PRINCIPAL RISKS OF INVESTING IN THE FUND As with any mutual fund, there are risks to investing. Neither the Corporate Bond Fund nor CNAM can guarantee that the Fund will meet its investment goal. The Fund will expose you to risks that could cause you to lose money.",
"Here are the principal risks to consider: The Effect of Interest Rates – The Fund’s yield typically moves in the same direction as movements in short-term interest rates, although it does not do so as quickly. Market Risk of Fixed Income Securities – The prices of fixed income securities respond to economic developments, particularly interest rate changes, as well as to perceptions about the creditworthiness of individual issuers, including governments. Generally, fixed income securities decrease in value if interest rates rise and increase in value if interest rates fall, with lower rated securities more volatile than higher rated securities. The duration of these securities affects risk as well, with longer term securities generally more volatile than shorter term securities. Issuers – The Fund may be adversely affected if the issuers of securities that the Fund holds do not make their principal or interest payments on time. Prepayments – As a general rule, prepayments of the principal of the loans underlying mortgage-backed or other pass-through securities increase during a period of falling interest rates and decrease during a period of rising interest rates.",
"In periods of declining interest rates, as a result of prepayments the Fund may be required to reinvest its assets in securities with lower interest rates. In periods of increasing interest rates, the securities subject to prepayment risk held by the Fund may exhibit price characteristics of longer-term debt securities. Extension – Rising interest rates can cause the average maturity of the Fund’s holdings of mortgage-backed and other pass-through securities to lengthen unexpectedly due to a drop in prepayments. This would increase the sensitivity of the Fund to rising rates and the potential for price declines of portfolio securities. Rating Agencies – A credit rating is not an absolute standard of quality, but rather a general indicator that reflects only the view of the originating rating agency.",
"If a rating agency revises downward or withdraws its rating of a security in which the Fund invests, that security may become less liquid or may lose value. Foreign Securities – Foreign investments tend to be more volatile than domestic securities, and are subject to risks that are not typically associated with domestic securities (e.g., changes in currency rates and exchange control regulations, future political and economic developments and the possibility of seizure or nationalization of companies, or the imposition of withholding taxes on income). Emerging Market Securities – Many of the risks with respect to foreign investments are more pronounced for investments in developing or emerging market countries.",
"Emerging market countries may have government exchange controls, more volatile currency exchange rates, less market regulation, and less developed securities markets and legal systems. Their economies also depend heavily upon international trade and may be adversely affected by protective trade barriers and economic conditions of their trading partners. Management – The Fund’s performance depends on the portfolio managers’ skill in making appropriate investments. As a result, the Fund may underperform the fixed income market or similar funds. Defensive Investments – During unusual economic or market conditions, or for temporary defensive or liquidity purposes, the Fund may invest 100% of its assets in cash or cash equivalents that would not ordinarily be consistent with the Fund’s investment goals. CNI CHARTER FUNDS | 19 PERFORMANCE The bar chart and the performance table that follow illustrate some of the risks and volatility of an investment in the Corporate Bond Fund by showing changes in the Fund’s performance from year to year and by showing the Fund’s average annual total returns for 1, 5 and 10 years. Of course, the Fund’s past performance (before and after taxes) does not necessarily indicate how the Fund will perform in the future.",
"Call 1-888-889-0799 or visit www.cnicharterfunds.com to obtain updated performance information. This bar chart shows the performance of the Corporate Bond Fund’s Servicing Class (formerly designated as Institutional Class) shares based on a calendar year. Best Quarter Worst Quarter 4.40% (2.84)% Q2 2009 Q3 2008 This table shows the average annual total returns of each class of the Corporate Bond Fund for the periods ended December 31, 2011. The table also shows how the Fund’s performance compares with the returns of indices comprised of companies similar to those held by the Fund.",
"Average Annual Total Returns (for the periods ended December 31, 2011) One Year Five Years Ten Years Inception Date Servicing Class 1/14/2000 Return Before Taxes 2.22% 4.63% 4.32% Return After Taxes on Distributions 1.16% 3.28% 2.85% Return After Taxes on Distributions and Sale of Fund Shares 1.53% 3.17% 2.83% Class N 4/13/2000 Return Before Taxes 1.96% 4.36% 4.07% Barclays Capital U.S. Corporate 1-5 A3 or Higher, 2% Issuer Constrained Index (1) (Reflects no deduction for fees, expenses or taxes) 3.24% 5.10% 4.77% Barclays Capital U.S. Intermediate Corporate Bond Index (Reflects no deduction for fees, expenses or taxes) 5.52% 6.26% 5.86% Previously, the Fund’s performance was compared to the Barclays Capital U.S. Intermediate Corporate Bond Index as its primary benchmark. CNAM has elected to compare the Fund’s performance to the Barclays Capital U.S. Corporate 1-5 A3 or Higher, 2% Issuer Constrained Index as CNAM believes this is the most appropriate index for comparison to the Fund’s performance. After-tax returns are calculated using the historical highest individual federal marginal income tax rates and do not reflect the impact of state and local taxes. Actual after-tax returns depend on an investor’s tax situation and may differ from those shown.",
"The performance of Servicing Class shares does not reflect Class N shares’ Rule 12b-1 fees and expenses. After-tax returns for Class N shares will vary from the after-tax returns shown above for Servicing Class shares. The after-tax returns shown are not relevant to investors who hold their Fund shares through tax-deferred arrangements, such as 401(k) plans or individual retirement accounts. CNI CHARTER FUNDS | 20 INVESTMENT MANAGER City National Asset Management, Inc. PORTFOLIO MANAGERS William C. Miller and Robert Harder have served as portfolio managers for the Corporate Bond Fund since 2001 and June 2010, respectively. PURCHASE AND SALE OF FUND SHARES The Corporate Bond Fund has no minimum purchase or minimum shareholder account balance requirements; however, you will have to comply with the purchase and account balance minimums of your approved broker-dealer or other financial institution (each, an “Authorized Institution”).",
"The Fund may require each Authorized Institution to meet certain aggregate investment levels before it may open an account with the Fund on behalf of its customers. Contact your Authorized Institution for more information. The shares of the Corporate Bond Fund are redeemable. You may redeem your shares only through your Authorized Institution. To redeem shares of the Fund, you should contact your Authorized Institution and follow its procedures, including deadlines for receipt by the Authorized Institution of your share redemption instructions. Your Authorized Institution may charge a fee for its services, in addition to the fees charged by the Fund. TAX INFORMATION The Corporate Bond Fund intends to make distributions that may be taxed as ordinary income or capital gains. PAYMENTS TO BROKER-DEALERS AND OTHER FINANCIAL INTERMEDIARIES If you purchase the Corporate Bond Fund through a broker-dealer or other financial intermediary (such as a bank), the Fund and its related companies may pay the intermediary for the sale of Fund shares and related services.",
"These payments may create a conflict of interest by influencing the broker-dealer or other intermediary and your salesperson to recommend the Fund over another investment. Ask your salesperson or visit your financial intermediary’s web site for more information. CNI CHARTER FUNDS | 21 California Tax Exempt Bond Fund INVESTMENT GOAL The California Tax Exempt Bond Fund seeks to provide current income exempt from federal and California state income tax (as the primary component of a total return strategy) by investing primarily in California municipal bonds.",
"FEES AND EXPENSES OF THE FUND The table below describes the fees and expenses you may pay if you buy and hold shares of the California Tax Exempt Bond Fund. Annual Fund Operating Expenses (expenses that you pay each year as a percentage of the value of your investment) Servicing Class(1) Class N Management Fees 0.27% 0.27% Distribution (12b-1) Fee None 0.25% Other Expenses Shareholder Servicing Fee 0.25% 0.25% Other Fund Expenses 0.11% 0.11% Total Other Expenses 0.36% 0.36% Total Annual Fund Operating Expenses(2) 0.63% 0.88% Effective December 19, 2011, the shares previously designated as Institutional Class shares were redesignated as Servicing Class shares.",
"Includes “Acquired Fund Fees and Expenses” incurred indirectly by the Fund due to investments in other investment companies and pooled investment vehicles. The Total Annual Fund Operating Expenses above do not correlate to the ratio of expenses to average net assets given in the financial highlights (which reflects the Fund’s operating expenses but not “Acquired Fund Fees and Expenses”). EXAMPLE This Example is intended to help you compare the cost of investing in the California Tax Exempt Bond Fund with the cost of investing in other mutual funds. The Example assumes that you invest $10,000 in the California Tax Exempt Bond Fund for the time periods indicated and then redeem all of your shares at the end of those periods. The Example also assumes that your investment has a 5% return each year and that the Fund’s operating expenses remain the same.",
"Although your actual costs may be higher or lower, based on these assumptions your costs would be: 1 Year 3 Years 5 Years 10 Years Servicing Class Class N PORTFOLIO TURNOVER The California Tax Exempt Bond Fund pays transaction costs, such as commissions, when it buys and sells securities (or “turns over” its portfolio). A higher portfolio turnover rate may indicate higher transaction costs and may result in higher taxes when Fund shares are held in a taxable account. These costs, which are not reflected in annual fund operating expenses or in the example, affect the Fund’s performance. During the most recent fiscal year, the Fund’s portfolio turnover rate was 26% of the average value of its portfolio. CNI CHARTER FUNDS | 22 PRINCIPAL INVESTMENT STRATEGIES The California Tax Exempt Bond Fund invests at least 80% of its net assets (including borrowings for investment purposes) in intermediate-term, high quality municipal bonds and notes, the interest from which is expected to be exempt from federal and California state personal income taxes.",
"This policy may not be changed without shareholder approval. The municipal bond obligations in which the Fund invests consist of general obligation bonds, revenue bonds, notes and obligations issued by the State of California and its agencies and by various counties, cities and regional or special districts in California. The Fund may also invest in short-term tax exempt commercial paper, floating rate notes or shares of money market mutual funds whose objectives are consistent with the Fund’s objectives (i.e., money market funds that invest primarily in securities the interest from which is expected to be exempt from federal and California state personal income taxes). City National Asset Management, Inc. (“CNAM”), the Fund’s investment adviser, actively manages the average duration of the Fund’s portfolio in accordance with its expectations of interest rate changes as driven by economic trends. The average duration of the Fund’s portfolio typically ranges from three to eight years, but may vary due to unusually large purchases or redemptions of the Fund’s shares. The Fund typically invests in issues with a minimum credit rating from Moody’s Investors Service or Standard & Poor’s of Baa or BBB, issues carrying credit enhancements such as insurance by the major bond insurance companies with an underlying minimum credit rating of Baa or BBB, and short term notes with a rating from Moody’s of MIG1 or VMIG1 or from Standard & Poor’s of SP1 or A1.",
"The Fund may retain a security after it has been downgraded to any ratingbelow the minimum credit rating if CNAM determines that doing so is in the best interests of the Fund. PRINCIPAL RISKS OF INVESTING IN THE FUND As with any mutual fund, there are risks to investing. Neither the California Tax Exempt Bond Fund nor CNAM can guarantee that the Fund will meet its investment goal. The Fund will expose you to risks that could cause you to lose money. Here are the principal risks to consider: The Effect of Interest Rates – The Fund’s yield typically moves in the same direction as movements in short-term interest rates, although it does not do so as quickly.",
"Market Risk of Fixed Income Securities – The prices of fixed income securities respond to economic developments, particularly interest rate changes, as well as to perceptions about the creditworthiness of individual issuers, including governments. Generally, fixed income securities decrease in value if interest rates rise and increase in value if interest rates fall, with lower rated securities more volatile than higher rated securities. The duration of these securities affects risk as well, with longer term securities generally more volatile than shorter term securities. California Risk Factors – The Fund may be subject to greater risks than other tax exempt bond funds that are diversified across issuers located in a number of states. The Fund is vulnerable to adverse economic, political or other events that may lessen the ability of California municipal securities issuers to pay interest and principal on their securities. Poor statewide or local economic results, changing political sentiments, legislation, policy changes or voter-based initiatives at the state or local level, erosion of the tax base or revenues of the state or one or more local governments, seismic or other natural disasters, or other economic or credit problems affecting the state generally or a particular issuer may reduce tax revenues and increase the expenses of California municipal issuers, making it more difficult for them to meet their obligations.",
"Actual or perceived erosion of the creditworthiness of California municipal issuers may also reduce the value of the Fund’s holdings. Municipal Obligations – U.S. state and local governments issuing municipal securities held by the Fund rely on taxes and revenues from private projects financed by municipal securities to pay interest and principal on municipal debt. The payment of principal and interest on these obligations may be adversely affected by a variety of factors at the state or local level, including poor statewide or local economic results, changing political sentiments, legislation, policy changes or voter-based initiatives, erosion of the tax base or revenues of the state or one or more local governments, natural disasters, or other economic or credit problems. Underlying Funds – To the extent the Fund invests in other funds, the risks associated with investing in the Fund are closely related to the risks associated with the securities and other investments held by the underlying funds.",
"The ability of the Fund to achieve its investment goal depends in part upon the ability of the underlying funds to achieve their investment goals. The underlying funds may not achieve their investment goals. In addition, by investing in the Fund, shareholders indirectly bear fees and expenses charged by the underlying funds in addition to the Fund’s direct fees and expenses. Non-diversification – The Fund is non-diversified, which means that it may invest in the securities of relatively few issuers. As a result, the Fund may be more susceptible to adverse events affecting those issuers and may experience increased volatility. Rating Agencies – A credit rating is not an absolute standard of quality, but rather a general indicator that reflects only the view of the originating rating agency.",
"If a rating agency revises downward or withdraws its rating of a security in which the Fund invests, that security may become less liquid or may lose value. Management – The Fund’s performance depends on the portfolio managers’ skill in making appropriate investments. As a result, the Fund may underperform the fixed income market or similar funds. CNI CHARTER FUNDS | 23 Defensive Investments – During unusual economic or market conditions, or for temporary defensive or liquidity purposes, the Fund may invest 100% of its assets in municipal obligations of issuers in states other than California or in cash or cash equivalents (including taxable money market securities). During such a period, the Fund may not achieve its investment goals. If the Fund makes defensive investments, it may generate taxable income.",
"PERFORMANCE The bar chart and the performance table that follow illustrate some of the risks and volatility of an investment in the California Tax Exempt Bond Fund by showing changes in the Fund’s performance from year to year and by showing the Fund’s average annual total returns for 1, 5 and 10 years. Of course, the Fund’s past performance (before and after taxes) does not necessarily indicate how the Fund will perform in the future. Call 1-888-889-0799 or visit www.cnicharterfunds.com to obtain updated performance information. This bar chart shows the performance of the California Tax Exempt Bond Fund’s Servicing Class (formerly designated as Institutional Class) shares based on a calendar year.",
"Best Quarter Worst Quarter 4.45% (1.85)% Q3 2009 Q2 2004 This table shows the average annual total returns of each class of the California Tax Exempt Bond Fund for the periods ended December 31, 2011. The table also shows how the Fund’s performance compares with the returns of an index comprised of investments similar to those held by the Fund. Average Annual Total Returns (for the periods ended December 31, 2011) One Year Five Years Ten Years Inception Date Servicing Class 1/14/2000 Return Before Taxes 6.16% 4.20% 3.93% Return After Taxes on Distributions 6.03% 4.16% 3.82% Return After Taxes on Distributions and Sale of Fund Shares 5.08% 4.03% 3.76% Class N 4/13/2000 Return Before Taxes 5.88% 3.93% 3.67% Barclays Capital CA Intermediate-Short Municipal Index (Reflects no deduction for fees, expenses or taxes) 7.10% 5.16% 4.52% After-tax returns are calculated using the historical highest individual federal marginal income tax rates and do not reflect the impact of state and local taxes. Actual after-tax returns depend on an investor’s tax situation and may differ from those shown. The performance of Servicing Class shares does not reflect Class N shares’ Rule 12b-1 fees and expenses. After-tax returns for Class N shares will vary from the after-tax returns shown above for Servicing Class shares.",
"The after-tax returns shown are not relevant to investors who hold their Fund shares through tax-deferred arrangements, such as 401(k) plans or individual retirement accounts. CNI CHARTER FUNDS | 24 INVESTMENT MANAGER City National Asset Management, Inc. PORTFOLIO MANAGERS Gregory Kaplan and Kathleen Meyer have served as portfolio managers for the California Tax Exempt Bond Fund since November 2009 and June 2010, respectively. PURCHASE AND SALE OF FUND SHARES The California Tax Exempt Bond Fund has no minimum purchase or minimum shareholder account balance requirements; however, you will have to comply with the purchase and account balance minimums of your approved broker-dealer or other financial institution (each, an “Authorized Institution”). The Fund may require each Authorized Institution to meet certain aggregate investment levels before it may open an account with the Fund on behalf of its customers.",
"Contact your Authorized Institution for more information. The shares of the California Tax Exempt Bond Fund are redeemable. You may redeem your shares only through your Authorized Institution. To redeem shares of the Fund, you should contact your Authorized Institution and follow its procedures, including deadlines for receipt by the Authorized Institution of your share redemption instructions. Your Authorized Institution may charge a fee for its services, in addition to the fees charged by the Fund. TAX INFORMATION The California Tax Exempt Bond Fund intends to distribute income that is exempt from regular federal and California state income taxes. A portion of the Fund’s distributions may be subject to such taxes or to the federal alternative minimum tax. PAYMENTS TO BROKER-DEALERS AND OTHER FINANCIAL INTERMEDIARIES If you purchase the California Tax Exempt Bond Fund through a broker-dealer or other financial intermediary (such as a bank), the Fund and its related companies may pay the intermediary for the sale of Fund shares and related services. These payments may create a conflict of interest by influencing the broker-dealer or other intermediary and your salesperson to recommend the Fund over another investment.",
"Ask your salesperson or visit your financial intermediary’s web site for more information. CNI CHARTER FUNDS | 25 Full Maturity Fund INVESTMENT GOAL The Full Maturity Fund seeks to provide a high level of current income, consistent with the preservation of capital. FEES AND EXPENSES OF THE FUND The table below describes the fees and expenses you may pay if you buy and hold shares of the Full Maturity Fund. Annual Fund Operating Expenses (expenses that you pay each year as a percentage of the value of your investment) Institutional Class Class N Management Fees 0.50% 0.50% Distribution (12b-1) Fee None 0.25% Other Expenses Shareholder Servicing Fee None 0.25% Other Fund Expenses 0.17% 0.17% Total Other Expenses 0.17% 0.42% Total Annual Fund Operating Expenses 0.67% 1.17% Fee Waiver and/or Expense Reimbursement(1) (0.00)% (0.25)% Total Annual Fund Operating Expenses After Fee Waiver and/or Expense Reimbursement 0.67% 0.92% (1) City National Asset Management, Inc., the Fund’s investment adviser (“CNAM”), has contractually agreed to waive the shareholder servicing fees for Class N until January 28, 2014. Prior to that date, this arrangement may be terminated without penalty by the Fund’s Board of Trustees upon 60 days’ written notice to CNAM, and it will terminate automatically upon the termination of the shareholder services agreement between CNAM and the Fund.",
"Any shareholder servicing fees waived by CNAM pursuant to this arrangement will not be eligible for reimbursement by the Fund to CNAM. EXAMPLE This Example is intended to help you compare the cost of investing in the Full Maturity Fund with the cost of investing in other mutual funds. The Example assumes that you invest $10,000 in the Fund for the time periods indicated and then redeem all of your shares at the end of those periods. The Example also assumes that your investment has a 5% return each year and that the Fund’s operating expenses remain the same. Although your actual costs may be higher or lower, based on these assumptions your costs would be: 1 Year 3 Years 5 Years 10 Years Institutional Class Class N PORTFOLIO TURNOVER The Fund pays transaction costs, such as commissions, when it buys and sells securities (or “turns over” its portfolio).",
"A higher portfolio turnover rate may indicate higher transaction costs and may result in higher taxes when Fund shares are held in a taxable account. These costs, which are not reflected in annual fund operating expenses or in the example, affect the Fund’s performance. During the most recent fiscal year, the Fund’s portfolio turnover rate was 43% of the average value of its portfolio. PRINCIPAL INVESTMENT STRATEGIES At least 80% of the Full Maturity Fund’s net assets (including borrowings for investment purposes) consists of fixed income securities either issued or guaranteed by the U.S. Government or its agencies or instrumentalities, money market instruments, non-convertible fixed income securities (i.e., bonds which cannot be converted into stock) of U.S. companies and U.S. dollar-denominated debt obligations issued by foreign governments and corporations. The Fund invests at least 80% of its net assets in securities having one of the three highest ratings of either Moody’s Investors Service or Standard & Poor’s (at least A-). The Fund may also invest up to 20% of its total assets in securities with a minimum credit rating from Moody’s or Standard & Poor’s of Baa3 or BBB-, respectively, or which, if unrated, are determined by CNI CHARTER FUNDS | 26 a sub-adviser to be of comparable quality.",
"The Fund may retain a security after it has been downgraded to any ratingbelow the minimum credit rating if City National Asset Management, Inc. (“CNAM”), the Fund’s investment adviser, determines that doing so is in the best interests of the Fund. The fixed income securities in which the Fund invests may have fixed, variable or floating interest rates, as well as varying principal repayment and interest rate reset terms. Fixed income securities issued or guaranteed by the U.S. Government or its agencies or instrumentalities in which the Full Maturity Fund invests consist principally of mortgage-backed or asset-backed securities issued or guaranteed by Fannie Mae (formerly known as the Federal National Mortgage Association), the Federal Home Loan Bank (“FHLB”), Freddie Mac (formerly known as the Federal Home Loan Mortgage Corporation) and the Government National Mortgage Association (“Ginnie Mae”).",
"In certain cases, securities issued by government-sponsored agencies may not be guaranteed or insured by the U.S. Government. At least 80% of the Full Maturity Fund’s net assets consists of fixed income securities with “full duration.” This investment strategy may be changed at any time, with 60 days’ prior notice to shareholders. CNAM considers “full duration” to mean duration ranging from that of the bonds included in the Barclays Capital U.S. Intermediate Government/Credit Bond Index, which had an average duration of 3.94 years as of September 30, 2011, to that of the bonds included in the Barclays Capital U.S. Aggregate Bond Index, which had an average duration of 4.96 years as of September 30, 2011. Duration is a weighted measure of the length of time required to receive the present value of future payments, both interest and principal, from a fixed income security.",
"Each of the Fund’s sub-advisers actively manages the average duration of the portion of the Fund’s investments that it manages and determines which securities to purchase or sell in accordance with its individual analysis of prevailing interest rates and yields, the quality and value of particular securities, and the comparative risks and returns of alternative investments. The maturities of the securities held by the Fund are generally less than five years. PRINCIPAL RISKS OF INVESTING IN THE FUND As with any mutual fund, there are risks to investing. None of the Full Maturity Fund, CNAM and the Fund’s sub-advisers can guarantee that the Fund will meet its investment goal. The Fund will expose you to risks that could cause you to lose money.",
"Here are the principal risks to consider: The Effect of Interest Rates – The Fund’s yield typically moves in the same direction as movements in short-term interest rates, although it does not do so as quickly. Market Risk of Fixed Income Securities – The prices of fixed income securities respond to economic developments, particularly interest rate changes, as well as to perceptions about the creditworthiness of individual issuers, including governments. Generally, fixed income securities decrease in value if interest rates rise and increase in value if interest rates fall, with lower rated securities more volatile than higher rated securities. The duration of these securities affects risk as well, with longer term securities generally more volatile than shorter term securities. Issuers – The Fund may be adversely affected if the issuers of securities that the Fund holds do not make their principal or interest payments on time. Government-Sponsored Entities – The Fund invests in securities issued by government-sponsored entities which may not be guaranteed or insured by the U.S. Government and may only be supported by the credit of the issuing agency.",
"Prepayments – As a general rule, prepayments of the principal of the loans underlying mortgage-backed or other pass-through securities increase during a period of falling interest rates and decrease during a period of rising interest rates. In periods of declining interest rates, as a result of prepayments the Fund may be required to reinvest its assets in securities with lower interest rates. In periods of increasing interest rates, the securities subject to prepayment risk held by the Fund may exhibit price characteristics of longer-term debt securities. Extension – Rising interest rates can cause the average maturity of the Fund’s holdings of mortgage-backed and other pass-through securities to lengthen unexpectedly due to a drop in prepayments.",
"This would increase the sensitivity of the Fund to rising rates and the potential for price declines of portfolio securities. Rating Agencies – A credit rating is not an absolute standard of quality, but rather a general indicator that reflects only the view of the originating rating agency. If a rating agency revises downward or withdraws its rating of a security in which the Fund invests, that security may become less liquid or may lose value. Foreign Securities – Foreign investments tend to be more volatile than domestic securities, and are subject to risks that are not typically associated with domestic securities (e.g., changes in currency rates and exchange control regulations, future political and economic developments and the possibility of seizure or nationalization of companies, or the imposition of withholding taxes on income).",
"Sub-Adviser Allocation – The Fund’s performance is affected by CNAM’s decisions concerning how much of the Fund’s portfolio to allocate for management by each of the Fund’s sub-advisers. Management – The Fund’s performance depends on the portfolio managers’ skill in making appropriate investments. As a result, the Fund may underperform the fixed income market or similar funds. Defensive Investments – During unusual economic or market conditions, or for temporary defensive or liquidity purposes, the Fund may invest 100% of its assets in cash or cash equivalents that would not ordinarily be consistent with the Fund’s investment goals. CNI CHARTER FUNDS | 27 PERFORMANCE The bar chart and the performance table that follow illustrate some of the risks and volatility of an investment in the Full Maturity Fund by showing changes in the Fund’s performance from year to year and by showing the Fund’s average annual total returns for 1, 5 and 10 years and since inception.",
"Of course, the Fund’s past performance (before and after taxes) does not necessarily indicate how the Fund will perform in the future. Call 1-888-889-0799 or visit www.cnicharterfunds.com to obtain updated performance information. This bar chart shows the performance of the Full Maturity Fund’s Institutional Class shares based on a calendar year. Best Quarter Worst Quarter 4.14% (2.43)% Q3 2009 Q2 2004 This table shows the average annual total returns of each class of the Full Maturity Fund for the periods ended December 31, 2011. The table also shows how the Fund’s performance compares with the returns of indexes comprised of investments similar to those held by the Fund. Average Annual Total Returns ( for the periods ended December 31, 2011) One Year Five Years Ten Years Since Inception(1) Institutional Class Return Before Taxes 5.87% 5.55% 4.98% 5.92% Return After Taxes on Distributions 4.64% 4.11% 3.46% 4.00% Return After Taxes on Distributions and Sale of Fund Shares 4.05% 3.93% 3.39% 3.96% Class N Return Before Taxes 5.61% 5.28% 4.77% 5.83% Barclays Capital U.S. Intermediate Government/Credit Bond Index (Reflects no deduction for fees, expenses or taxes) 5.80% 5.88% 5.20% 6.70% Barclays Capital U.S.",
"Aggregate Bond Index (Reflects no deduction for fees, expenses or taxes) 7.84% 6.50% 5.78% 7.24% (1) Performance for “Since Inception” for all classes is shown for periods beginning October 20, 1988, which is the date the predecessor to the Full Maturity Fund (the “Predecessor Fund”) commenced operations. On September 30, 2005, the Predecessor Fund reorganized into the Fund. The performance results for Institutional Class shares of the Fund before September 30, 2005, reflect the performance of the Predecessor Fund’s Class I shares. Class A shares of the Predecessor Fund, the predecessor to the Class N shares of the Fund, commenced operations on May 11, 2004. The performance results for Class N shares of the Fund for the period of May 11, 2004, to September 29, 2005, reflect the performance of the Predecessor Fund’s Class A shares. The performance results for Class N shares of the Fund for the period of October 20, 1988 to May 11, 2004, reflect the performance of the Predecessor Fund’s Class I shares. The performance of the Predecessor Fund’s Class I shares has not been adjusted to reflect the higher Rule 12b-1 fees and expenses applicable to the Fund’s Class N shares.",
"If it had, the performance of the Fund’s Class N shares would have been lower than that shown. For each index shown the measurement period used in computing the returns of the index for the “Since Inception” period begins on October 31, 1988. After-tax returns are calculated using the historical highest individual federal marginal income tax rates and do not reflect the impact of state and local taxes. Actual after-tax returns depend on an investor’s tax situation and may differ from those shown. The performance of Institutional Class shares does not reflect Class N shares’ Rule 12b-1 fees and expenses. After-tax returns for Class N shares will vary from the after-tax returns shown above for Institutional Class shares. The after-tax returns shown are not relevant to investors who hold their Fund shares through tax-deferred arrangements, such as 401(k) plans or individual retirement accounts. CNI CHARTER FUNDS | 28 INVESTMENT MANAGER City National Asset Management, Inc. SUB-ADVISERS Baird Advisors (“Baird”) Boyd Watterson Asset Management, LLC (“Boyd Watterson”) PORTFOLIO MANAGERS Daniel A. Tranchita and Gary A. Elfe of Baird have served as portfolio managers for the Fund (or the Predecessor Fund, as applicable) since 2000.",
"Justin C. Waggoner of Boyd Watterson has served as portfolio manager for the Fund since 2007. PURCHASE AND SALE OF FUND SHARES The minimum initial investment for Institutional Class shares is $1,000,000. The minimum initial investment for Class N shares is $1,000. There is no minimum for subsequent investments in Institutional Class shares or Class N shares. The Fund reserves the right to change the minimum amount required to open an account or to add to an existing account without prior notice. The Fund may accept investments of smaller amounts at its discretion; however, your financial institution or financial professional may establish higher minimum investment requirements than the Fund and may also independently charge you transaction fees and additional amounts in return for its services. The shares of the Full Maturity Fund are redeemable. You may redeem some or all of your shares on any day the NYSE is open for regular session trading. The Fund ordinarily pays redemption proceeds on the business day following the redemption of your shares.",
"However, the Fund reserves the right to make payment within seven days of the redemption request. Redemption proceeds will be sent to you via check to your address of record or will be wired to your bank via the instructions on your account. TAX INFORMATION The Full Maturity Fund intends to make distributions that may be taxed as ordinary income or capital gains. PAYMENTS TO BROKER-DEALERS AND OTHER FINANCIAL INTERMEDIARIES If you purchase the Full Maturity Fund through a broker-dealer or other financial intermediary (such as a bank), the Fund and its related companies may pay the intermediary for the sale of Fund shares and related services. These payments may create a conflict of interest by influencing the broker-dealer or other intermediary and your salesperson to recommend the Fund over another investment. Ask your salesperson or visit your financial intermediary’s web site for more information. CNI CHARTER FUNDS | 29 High Yield Bond Fund INVESTMENT GOAL The High Yield Bond Fund seeks to maximize total return by investing primarily in fixed income securities rated below investment grade (i.e., “junk bonds”). FEES AND EXPENSES OF THE FUND The table below describes the fees and expenses you may pay if you buy and hold shares of the High Yield Bond Fund.",
"Annual Fund Operating Expenses (expenses that you pay each year as a percentage of the value of your investment) Institutional Class(1) Servicing Class(1) Class N Management Fees 0.75% 0.75% 0.75% Distribution (12b-1) Fee None None 0.30% Other Expenses Shareholder Servicing Fee None 0.25% 0.25% Other Fund Expenses 0.10%(2) 0.10% 0.10% Total Other Expenses 0.10% 0.35% 0.35% Total Annual Fund Operating Expenses 0.85% 1.10% 1.40% Institutional Class shares were initially offered in December, 2011. Effective December 19, 2011, the shares previously designated as Institutional Class shares were redesignated as Servicing Class shares. Other Fund Expenses for Institutional Class shares are estimated based on the amounts for Servicing Class shares and Class N shares.",
"EXAMPLE This Example is intended to help you compare the cost of investing in the High Yield Bond Fund with the cost of investing in other mutual funds. The Example assumes that you invest $10,000 in the High Yield Bond Fund for the time periods indicated and then redeem all of your shares at the end of those periods. The Example also assumes that your investment has a 5% return each year and that the Fund’s operating expenses remain the same. Although your actual costs may be higher or lower, based on these assumptions your costs would be: 1 Year 3 Years 5 Years 10 Years Institutional Class Servicing Class Class N PORTFOLIO TURNOVER The High Yield Bond Fund pays transaction costs, such as commissions, when it buys and sells securities (or “turns over” its portfolio).",
"A higher portfolio turnover rate may indicate higher transaction costs and may result in higher taxes when Fund shares are held in a taxable account. These costs, which are not reflected in annual fund operating expenses or in the example, affect the Fund’s performance. During the most recent fiscal year, the Fund’s portfolio turnover rate was 56% of the average value of its portfolio. CNI CHARTER FUNDS | 30 PRINCIPAL INVESTMENT STRATEGIES At least 80% of the High Yield Bond Fund’s net assets (including borrowings for investment purposes) consists of fixed income securities rated below investment grade (commonly referred to as “junk bonds”). In particular, the Fund invests in corporate bonds and debentures, convertible securities (securities that may be exchanged, at the option of the holder, for equity securities), preferred securities, zero coupon obligations and debt securities that are issued by U.S. and foreign governments. The Fund’s sub-adviser seeks to invest in securities that offer a high current yield as well as total return potential.",
"In an effort to control risks, the sub-adviser purchases investments diversified across issuers, industries and sectors. The average maturity of the Fund’s investments varies, and there is no limit on the maturity of any security held by the Fund. The Fund invests in fixed income securities rated at least CCC by Standard & Poor’s or Caa2 by Moody’s Investors Service at the time of investment. The Fund may retain a security after it has been downgraded to any ratingbelow the minimum credit rating if City National Asset Management, Inc. (“CNAM”), the Fund’s investment adviser, determines that doing so is in the best interests of the Fund. PRINCIPAL RISKS OF INVESTING IN THE FUND As with any mutual fund, there are risks to investing. None of the High Yield Bond Fund, City National Asset Management, Inc. (“CNAM”), the Fund’s investment adviser, and the Fund’s sub-adviser can guarantee that the Fund will meet its investment goal.",
"The Fund will expose you to risks that could cause you to lose money. Here are the principal risks to consider: The Effect of Interest Rates – The Fund’s yield typically moves in the same direction as movements in short-term interest rates, although it does not do so as quickly. Market Risk of Fixed Income Securities – The prices of fixed income securities respond to economic developments, particularly interest rate changes, as well as to perceptions about the creditworthiness of individual issuers, including governments. Generally, fixed income securities decrease in value if interest rates rise and increase in value if interest rates fall, with lower rated securities more volatile than higher rated securities. The duration of these securities affects risk as well, with longer term securities generally more volatile than shorter term securities. Interest Rate Risk of Preferred Securities – Like fixed income securities, preferred stock generally decreases in value if interest rates rise and increases in value if interest rates fall. Convertible Securities – Convertible securities tend to be subordinate to other debt securities issued by the same issuer. Also, issuers of convertible securities are often not as strong financially as issuers with higher credit ratings. Convertible securities generally provide yields higher than the underlying stocks, but generally lower than comparable non-convertible securities.",
"Issuers – The Fund may be adversely affected if the issuers of securities that the Fund holds do not make their principal or interest payments on time. High Yield (“Junk”) Bonds – High yield bonds involve greater risks of default, downgrade, or price declines and are more volatile than investment grade securities. Issuers of high yield bonds may be more susceptible than other issuers to economic downturns and are subject to a greater risk that the issuer may not be able to pay interest or dividends and ultimately to repay principal upon maturity. Discontinuation of these payments could have a substantial adverse effect on the market value of the security. Prepayments – As a general rule, prepayments of the principal of the loans underlying mortgage-backed or other pass-through securities increase during a period of falling interest rates and decrease during a period of rising interest rates. In periods of declining interest rates, as a result of prepayments the Fund may be required to reinvest its assets in securities with lower interest rates. In periods of increasing interest rates, the securities subject to prepayment risk held by the Fund may exhibit price characteristics of longer-term debt securities. Extension – Rising interest rates can cause the average maturity of the Fund’s holdings of mortgage-backed or other pass-through securities to lengthen unexpectedly due to a drop in prepayments. This would increase the sensitivity of the Fund to rising rates and the potential for price declines of portfolio securities.",
"Rating Agencies – A credit rating is not an absolute standard of quality, but rather a general indicator that reflects only the view of the originating rating agency. If a rating agency revises downward or withdraws its rating of a security in which the Fund invests, that security may become less liquid or may lose value. Foreign Securities – Foreign investments tend to be more volatile than domestic securities, and are subject to risks that are not typically associated with domestic securities (e.g., changes in currency rates and exchange control regulations, unfavorable political and economic developments and the possibility of seizure or nationalization of companies, or the imposition of withholding taxes on income). Management – The Fund’s performance depends on the portfolio manager’s skill in making appropriate investments.",
"As a result, the Fund may underperform the fixed income market or similar funds. Defensive Investments – During unusual economic or market conditions, or for temporary defensive or liquidity purposes, the Fund may invest 100% of its assets in cash or cash equivalents that would not ordinarily be consistent with the Fund’s investment goals. CNI CHARTER FUNDS | 31 PERFORMANCE The bar chart and the performance table that follow illustrate some of the risks and volatility of an investment in the High Yield Bond Fund by showing changes in the Fund’s performance from year to year and by showing the Fund’s average annual total returns for 1, 5 and 10 years. Of course, the Fund’s past performance (before and after taxes) does not necessarily indicate how the Fund will perform in the future. Call 1-888-889-0799 or visit www.cnicharterfunds.com to obtain updated performance information. This bar chart shows the performance of the High Yield Bond Fund’s Servicing Class (formerly designated as Institutional Class) shares based on a calendar year. Best Quarter Worst Quarter 18.73% (19.69)% Q2 2009 Q4 2008 This table shows the average annual total returns of each class of the High Yield Bond Fund for the periods ended December 31, 2011.",
"The table also shows how the Fund’s performance compares with the returns of an index comprised of investments similar to those held by the Fund. Average Annual Total Returns (for the periods ended December 31, 2011) One Year Five Years Ten Years Inception Date Servicing Class 1/14/2000 Return Before Taxes 5.88% 6.94% 7.79% Return After Taxes on Distributions 2.84% 3.75% 4.64% Return After Taxes on Distributions and Sale of Fund Shares 3.79% 3.97% 4.73% Class N 1/14/2000 Return Before Taxes 5.56% 6.62% 7.47% Citigroup High Yield Market Capped Index (Reflects no deduction for fees, expenses or taxes) 5.75% 7.18% 8.82% After-tax returns are calculated using the historical highest individual federal marginal income tax rates and do not reflect the impact of state and local taxes.",
"Actual after-tax returns depend on an investor’s tax situation and may differ from those shown. The performance of the Servicing Class shares does not reflect the Class N shares’ Rule 12b-1 fees and expenses. After-tax returns for Class N shares and Institutional Class shares will vary from the after-tax returns shown above for Servicing Class shares. The after-tax returns shown are not relevant to investors who hold their Fund shares through tax-deferred arrangements, such as 401(k) plans or individual retirement accounts. INVESTMENT MANAGER City National Asset Management, Inc. SUB-ADVISER Guggenheim Partners Investment Management, LLC (“Guggenheim”) PORTFOLIO MANAGERS Jeffrey Abrams and Kevin Gundersen, CFA of Guggenheim have served as portfolio managers of the High Yield Bond Fund since November 2011. CNI CHARTER FUNDS | 32 PURCHASE AND SALE OF FUND SHARES The minimum initial investment for Institutional Class shares is $1,000,000.",
"There is no minimum for subsequent investments in Institutional Class shares. The Fund reserves the right to change the minimum amount required to open an account without prior notice. The Fund may accept investments of smaller amounts at its discretion. There are no minimum purchase or minimum shareholder account balance requirements for Servicing Class or Class N shares; however, you will have to comply with the purchase and account balance minimums of your approved broker-dealer or other financial institution (each, an “Authorized Institution”). The Fund may require each Authorized Institution to meet certain aggregate investment levels before it may open an account with the Fund on behalf of its customers.",
"Contact your Authorized Institution for more information. The shares of the High Yield Bond Fund are redeemable. You may redeem your shares only through your Authorized Institution. To redeem shares of the Fund, you should contact your Authorized Institution and follow its procedures, including deadlines for receipt by the Authorized Institution of your share redemption instructions. Your Authorized Institution may charge a fee for its services, in addition to the fees charged by the Fund. TAX INFORMATION The High Yield Bond Fund intends to make distributions that may be taxed as ordinary income or capital gains. PAYMENTS TO BROKER-DEALERS AND OTHER FINANCIAL INTERMEDIARIES If you purchase the High Yield Bond Fund through a broker-dealer or other financial intermediary (such as a bank), the Fund and its related companies may pay the intermediary for the sale of Fund shares and related services. These payments may create a conflict of interest by influencing the broker-dealer or other intermediary and your salesperson to recommend the Fund over another investment. Ask your salesperson or visit your financial intermediary’s web site for more information. CNI CHARTER FUNDS | 33 Multi-Asset Fund INVESTMENT GOAL The Multi-Asset Fund seeks to generate a positive total return in excess of inflation in a manner consistent with capital preservation in all market environments.",
"FEES AND EXPENSES OF THE FUND The table below describes the fees and expenses you may pay if you buy and hold shares of the Multi-Asset Fund. Annual Fund Operating Expenses (expenses that you pay each year as a percentage of the value of your investment) Institutional Class(1) Servicing Class(1) Class N Management Fees 0.50% 0.50% 0.50% Distribution (12b-1) Fee None None 0.25% Other Expenses Shareholder Servicing Fee None 0.25% 0.25% Other Fund Expenses 0.10%(2) 0.10% 0.10% Total Other Expenses 0.10% 0.35% 0.35% Acquired Fund Fees and Expenses 0.39% 0.39% 0.39% Total Annual Fund Operating Expenses(3) 0.99% 1.24% 1.49% Institutional Class shares were initially offered in December, 2011. Effective December 19, 2011, the shares previously designated as Institutional Class shares were redesignated as Servicing Class shares. Other Fund Expenses for Institutional Class shares are estimated based on the amounts for Servicing Class shares and Class N shares.",
"Includes “Acquired Fund Fees and Expenses” incurred indirectly by the Fund due to investments in other investment companies and pooled investment vehicles. The Total Annual Fund Operating Expenses above do not correlate to the ratio of expenses to average net assets given in the financial highlights (which reflects the Fund’s operating expenses but not “Acquired Fund Fees and Expenses”). EXAMPLE This Example is intended to help you compare the cost of investing in the Multi-Asset Fund with the cost of investing in other mutual funds. The Example assumes that you invest $10,000 in the Multi-Asset Fund for the time periods indicated and then redeem all of your shares at the end of those periods. The Example also assumes that your investment has a 5% return each year and that the Fund’s operating expenses remain the same. Although your actual costs may be higher or lower, based on these assumptions your costs would be: 1 Year 3 Years 5 Years 10 Years Institutional Class Servicing Class Class N PORTFOLIO TURNOVER The Multi-Asset Fund pays transaction costs, such as commissions, when it buys and sells securities (or “turns over” its portfolio).",
"A higher portfolio turnover rate may indicate higher transaction costs and may result in higher taxes when Fund shares are held in a taxable account. These costs, which are not reflected in annual fund operating expenses or in the example, affect the Fund’s performance. During the most recent fiscal year, the Fund’s portfolio turnover rate was 67% of the average value of its portfolio. CNI CHARTER FUNDS | 34 PRINCIPAL INVESTMENT STRATEGIES The Multi-Asset Fund is a “fund of funds” and pursues its investment objective by investing all or a principal portion of its assets in other mutual funds or exchange-traded funds (“underlying funds”). These underlying funds will include other funds in the CNI Charter Funds family, like the Corporate Bond Fund, the Government Bond Fund and the High Yield Bond Fund, which are also managed by City National Asset Management, Inc. (“CNAM”), the Fund’s investment adviser, as well as unaffiliated funds. The Multi-Asset Fund invests in a diversified portfolio, consisting of direct investments in the following asset classes and investments in underlying funds which invest in these asset classes: • Common and preferred equity securities of U.S. and foreign companies (including emerging market companies) of all industries, market capitalizations and investment characteristics; and • The following types of fixed income securities, which are not limited with respect to maturity (although the average maturity of the Fund’s portfolio of direct investments in fixed income securities typically ranges from two to seven years): • Corporate debt securities of U.S. and foreign companies (including emerging market companies) of all ratings (including below-investment grade ratings (commonly referred to as “junk bonds”)), consisting of bonds, notes, convertible securities, mortgage-backed and asset-backed instruments, corporate commercial paper, debentures, convertible and preferred securities and zero coupon obligations; • Inflation-indexed bonds issued both by U.S. and foreign governments and corporations; • Money market investments; • Repurchase agreements with respect to fixed income instruments issued by U.S. and foreign issuers; • Debt securities issued by U.S. states or local governments or their subdivisions, agencies, authorities and other government-sponsored enterprises; and • Obligations of foreign governments, including governments of emerging market countries, or their subdivisions, agencies and government-sponsored enterprises.",
"The Multi-Asset Fund invests in these securities and investments in proportions which reflect CNAM’s judgment regarding the potential returns and risks of each asset class. CNAM considers a number of factors when making these allocations, including economic conditions and monetary factors, inflation and interest rate levels and trends, investor confidence and technical stock market measures. CNAM purchases and sells portfolio securities based on a variety of valuation factors, including but not limited to expected return, expected risk, yield and price and earnings multiples, as well as analysis of various economic measures and statistics. PRINCIPAL RISKS OF INVESTING IN THE FUND As with any mutual fund, there are risks to investing. Neither the Multi-Asset Fund nor CNAM can guarantee that the Fund will meet its investment goal.",
"The Fund will expose you to risks that could cause you to lose money. Here are the principal risks to consider: Allocation – The Multi-Asset Fund’s performance depends on CNAM’s ability to anticipate correctly the relative potential returns and risks of the asset classes in which the Fund directly or indirectly invests. Underlying Funds – The risks associated with investing in the Fund are closely related to the risks associated with the securities and other investments held by the underlying funds. The ability of the Fund to achieve its investment goal depends in part upon the ability of the underlying funds to achieve their investment goals. The underlying funds may not achieve their investment goals.",
"In addition, by investing in the Fund, shareholders indirectly bear fees and expenses charged by the underlying funds in addition to the Fund’s direct fees and expenses. Market Risk of Equity Securities – By investing directly or indirectly in stocks, the Fund may expose you to a sudden decline in the share price of a particular portfolio holding or to an overall decline in the stock market. In addition, the Fund’s principal market segment may underperform other segments or the market as a whole.",
"The value of your investment in the Fund will fluctuate daily and cyclically based on movements in the stock market and the activities of individual companies in the Fund’s portfolio. Market Risk of Fixed Income Securities – The prices of fixed income securities respond to economic developments, particularly interest rate changes, as well as to perceptions about the creditworthiness of individual issuers, including governments. Generally, fixed income securities decrease in value if interest rates rise and increase in value if interest rates fall, with lower rated securities more volatile than higher rated securities. The duration of these securities affects risk as well, with longer term securities generally more volatile than shorter term securities. CNI CHARTER FUNDS | 35 Rating Agencies – A credit rating is not an absolute standard of quality, but rather a general indicator that reflects only the view of the originating rating agency.",
"If a rating agency revises downward or withdraws its rating of a security in which the Fund or an underlying fund invests, that security may become less liquid or may lose value. Interest Rate Risk of Preferred Securities – Like fixed income securities, preferred stock generally decreases in value if interest rates rise and increases in value if interest rates fall. High Yield (“Junk”) Bonds – High yield bonds held by the underlying funds involve greater risks of default, downgrade, or price declines and are more volatile than investment grade securities. Issuers of high yield bonds may be more susceptible than other issuers to economic downturns and are subject to a greater risk that the issuer may not be able to pay interest or dividends and ultimately to repay principal upon maturity.",
"Discontinuation of these payments could have a substantial adverse effect on the market value of the security. Municipal Obligations – U.S. state and local governments issuing municipal securities held by the underlying funds rely on taxes and revenues from private projects financed by municipal securities to pay interest and principal on municipal debt. The payment of principal and interest on these obligations may be adversely affected by a variety of factors at the state or local level, including poor statewide or local economic results, changing political sentiments, legislation, policy changes or voter-based initiatives, erosion of the tax base or revenues of the state or one or more local governments, natural disasters, or other economic or credit problems. Foreign government obligations are also subject to similar risks.",
"Foreign Securities – Foreign investments held by the underlying funds tend to be more volatile than domestic securities, and are subject to risks that are not typically associated with domestic securities (e.g., changes in currency rates and exchange control regulations, unfavorable political and economic developments and the possibility of seizure or nationalization of companies, or the imposition of withholding taxes on income). Emerging Market Securities – Many of the risks with respect to foreign investments are more pronounced for investments in developing or emerging market countries.",
"Emerging market countries may have government exchange controls, more volatile currency exchange rates, less market regulation, and less developed securities markets and legal systems. Their economies also depend heavily upon international trade and may be adversely affected by protective trade barriers and economic conditions of their trading partners. Management – The Fund’s performance depends on the portfolio managers’ skill in making appropriate investments. As a result, the Fund may underperform the markets in which it invests or similar funds. Defensive Investments – During unusual economic or market conditions, or for temporary defensive or liquidity purposes, the Fund or one or more underlying funds may invest 100% of its assets in cash or cash equivalents that would not ordinarily be consistent with its investment goals. PERFORMANCE The bar chart and the performance table that follow illustrate some of the risks and volatility of an investment in the Multi-Asset Fund by showing changes in the Fund’s performance from year to year and by showing the Fund’s average annual total returns for 1 year and since inception. Of course, the Fund’s past performance (before and after taxes) does not necessarily indicate how the Fund will perform in the future.",
"Call 1-888-889-0799 or visit www.cnicharterfunds.com to obtain updated performance information. This bar chart shows the performance of the Multi-Asset Fund’s Servicing Class (formerly designated as Institutional Class) shares based on a calendar year. Best Quarter Worst Quarter 9.17% (9.81)% Q3 2010 Q3 2011 CNI CHARTER FUNDS | 36 This table shows the average annual total returns of each class of the Multi-Asset Fund for the periods ended December 31, 2011. The table also shows how the Fund’s performance compares to various broad-based securities market indexes and the Consumer Price Index (“CPI”) plus 500 basis points. Average Annual Total Returns (for the periods ended December 31, 2011) One Year Since Inception Inception Date Servicing Class 10/1/2007 Return Before Taxes (4.99)% (0.06)% Return After Taxes on Distributions (5.49)% (0.76)% Return After Taxes on Distributions and Sale of Fund Shares (3.24)% (0.45)% Class N 10/1/2007 Return Before Taxes (5.32)% (0.32)% Barclays Capital U.S. TIPS Index (1) (Reflects no deduction for fees, expenses or taxes) 13.56% 7.85% 60/40 hybrid of the following two indexes:(1) S&P 500 Index Barclays Capital U.S. Intermediate Government/Credit Bond Index (Reflects no deduction for fees, expenses or taxes) 3.86% 1.38% CPI + 500 Basis Points (Reflects no deduction for fees, expenses or taxes) 8.10% 6.96% S&P 500 Index (Reflects no deduction for fees, expenses or taxes) 2.11% (2.32)% Previously, the Fund’s performance was compared to the Consumer Price Index plus 500 basis points (CPI + 500 basis points) and the S&P 500 Index as its primary benchmarks.",
"CNAM has elected to compare the Fund’s performance to the Barclays Capital U.S. TIPS Index and a hybrid index consisting of 60% S&P 500 Index and 40% Barclays Capital U.S. Intermediate Government/Credit Index, in addition to the CPI + 500 Basis Points, as CNAM believes these are the most appropriate measures for comparison to the Fund’s performance. After-tax returns are calculated using the historical highest individual federal marginal income tax rates and do not reflect the impact of state and local taxes.",
"Actual after-tax returns depend on an investor’s tax situation and may differ from those shown. The performance of Servicing Class shares does not reflect Class N shares’ Rule 12b-1 fees and expenses. After-tax returns for Class N shares and Institutional Class shares will vary from the after-tax returns shown above for Servicing Class shares. The after-tax returns shown are not relevant to investors who hold their Fund shares through tax-deferred arrangements, such as 401(k) plans or individual retirement accounts. INVESTMENT MANAGER City National Asset Management, Inc. PORTFOLIO MANAGERS Bruce Simon, William C. Miller and Otis “Tres” Heald have served as portfolio managers for the Multi-Asset Fund since February 2011, the Fund’s inception in October 2007, and June 2010, respectively. PURCHASE AND SALE OF FUND SHARES The minimum initial investment for Institutional Class shares is $1,000,000.",
"There is no minimum for subsequent investments in Institutional Class shares. The Fund reserves the right to change the minimum amount required to open an account without prior notice. The Fund may accept investments of smaller amounts at its discretion. There are no minimum purchase or minimum shareholder account balance requirements for Servicing Class or Class N shares; however, you will have to comply with the purchase and account balance minimums of your approved broker-dealer or other financial institution (each, an “Authorized Institution”). The Fund may require each Authorized Institution to meet certain aggregate investment levels before it may open an account with the Fund on behalf of its customers. Contact your Authorized Institution for more information.",
"The shares of the Multi-Asset Fund are redeemable. You may redeem your shares only through your Authorized Institution. To redeem shares of the Multi-Asset Fund, you should contact your Authorized Institution and follow its procedures, including deadlines for receipt by the Authorized Institution of your share redemption instructions. Your Authorized Institution may charge a fee for its services, in addition to the fees charged by the Fund. CNI CHARTER FUNDS | 37 TAX INFORMATION The Multi-Asset Fund intends to make distributions that may be taxed as ordinary income or capital gains. PAYMENTS TO BROKER-DEALERS AND OTHER FINANCIAL INTERMEDIARIES If you purchase the Multi-Asset Fund through a broker-dealer or other financial intermediary (such as a bank), the Fund and its related companies may pay the intermediary for the sale of Fund shares and related services. These payments may create a conflict of interest by influencing the broker-dealer or other intermediary and your salesperson to recommend the Fund over another investment. Ask your salesperson or visit your financial intermediary’s web site for more information.",
"CNI CHARTER FUNDS | 38 U.S. Core Equity Fund INVESTMENT GOAL The U.S. Core Equity Fund seeks to provide long-term capital appreciation. FEES AND EXPENSES OF THE FUND The table below describes the fees and expenses you may pay if you buy and hold shares of the U.S. Core Equity Fund. Annual Fund Operating Expenses (expenses that you pay each year as a percentage of the value of your investment) Institutional Class Servicing Class Class N Management Fees 0.40% 0.40% 0.40% Distribution (12b-1) Fee None None 0.25% Other Expenses(1) Shareholder Servicing Fee None 0.25% 0.25% Other Fund Expenses 0.15% 0.15% 0.15% Total Other Expenses 0.15% 0.40% 0.40% Total Annual Fund Operating Expenses 0.55% 0.80% 1.05% “Other Expenses” are based on estimated amounts for the current fiscal year. EXAMPLE This example is intended to help you compare the cost of investing in the U.S. Core Equity Fund with the cost of investing in other mutual funds.",
"The Example assumes that you invest $10,000 in the U.S. Core Equity Fund for the time periods indicated and then redeem all of your shares at the end of those periods. The example also assumes that your investment has a 5% return each year and that the Fund’s operating expenses remain the same. Although your actual costs may be higher or lower, based on these assumptions your costs would be: 1 Year 3 Years Institutional Class Servicing Class Class N PORTFOLIO TURNOVER The U.S.",
"Core Equity Fund pays transaction costs, such as commissions, when it buys and sells securities (or “turns over” its portfolio). A higher portfolio turnover rate may indicate higher transaction costs and may result in higher taxes when Fund shares are held in a taxable account. These costs, which are not reflected in annual fund operating expenses or in the example, affect the Fund’s performance. CNI CHARTER FUNDS | 39 PRINCIPAL INVESTMENT STRATEGIES At least 80% of the U.S. Core Equity Fund’s net assets (including borrowings for investment purposes) consists of common stock of large and middle capitalization corporations domiciled in the United States.",
"For this purpose, City National Asset Management, Inc. (“CNAM”), the Fund’s investment adviser, considers a large capitalization corporation and a middle capitalization corporation to be a corporation with a market capitalization satisfying Standard & Poor’s eligibility criteria, at the time of investment, for inclusion in the S&P 500 Index (currently $4 billion or greater) and the S&P Midcap 400 Index (currently $1 billion to $4.4 billion), respectively. CNAM uses a multifactor investment approach employing a combination of macroeconomic, quantitative and fundamental analyses to select companies with share price growth potential that may not be recognized by the market at large.",
"Macroeconomic analysis evaluates investment themes, geopolitical events, monetary and fiscal policy and global economic trends. Quantitative analysis seeks to measure the value of securities by using mathematical and statistical modeling and research. Fundamental analysis of a security involves measuring its intrinsic value by examining related economic, financial and other factors, such as the overall economy and industry conditions, and the financial condition and management of the issuer. In selecting securities for the Fund, CNAM utilizes proprietary industry and stock selection models to determine which industries and companies it believes are likely to provide superior risk adjusted returns.",
"CNAM also employs a proprietary company analysis framework to evaluate individual securities by examining fundamental data such as management quality, revenue and earnings growth, profitability, market share, cash flow and balance sheet strength. CNAM seeks to manage the portfolio’s risk characteristics to be similar to those of the S&P 500 Index. CNAM constructs the portfolio to closely resemble the S&P 500 Index with respect to factors such as market capitalization, earnings per share growth rates, return on equity, price to earnings, price to book and other commonly recognized portfolio characteristics. CNAM may determine to sell a security under several circumstances, including but not limited to when its target value is realized, the company’s earnings deteriorate, or more attractive investment alternatives are identified. PRINCIPAL RISKS OF INVESTING IN THE FUND As with any mutual fund, there are risks to investing. Neither the U.S.",
"Core Equity Fund nor CNAM can guarantee that the Fund will meet its investment goal. The Fund will expose you to risks that could cause you to lose money. Here are the principal risks to consider: Market Risk of Equity Securities – By investing in common stocks, the Fund may expose you to a sudden decline in the share price of a particular portfolio holding or to an overall decline in the stock market. In addition, the Fund’s principal market segment may underperform other segments or the market as a whole. The market may also undervalue the stocks held by the Fund. Additionally, a rise in interest rates may result in a decline in the equity market.",
"The value of your investment in the Fund will fluctuate daily based on movements in the stock market and the activities of individual companies in the Fund’s portfolio. Investment Style – CNAM primarily uses a core equity style to select investments for the Fund and will often choose equities that it considers to be “growth at a reasonable price” (GARP). These styles may fall out of favor, may underperform other styles and may cause volatility in the Fund’s share price. Management – The Fund’s performance depends on the portfolio managers’ skill in making appropriate investments. As a result, the Fund may underperform the equity market or similar funds. Medium Capitalization (Mid-Cap) Companies – Investments in mid-cap companies may involve greater risks than investments in larger, more established companies, such as limited product lines, markets and financial or managerial resources. In addition, the securities of mid-cap companies may have greater price volatility and less liquidity than the securities of larger capitalized companies. Defensive Investments – During unusual economic or market conditions, or for temporary defensive or liquidity purposes, the Fund may invest up to 100% of its assets in cash or cash equivalents that would not ordinarily be consistent with the Fund’s investment goals.",
"PERFORMANCE The Fund is new and it does not have a full calendar year performance record to compare against other mutual funds or broad measures of securities market performance such as indices. Performance information will be available after the Fund has been in operation for one calendar year. CNI CHARTER FUNDS | 40 INVESTMENT MANAGER City National Asset Management, Inc. PORTFOLIO MANAGERS Otis “Tres” Heald and Thomas A. Galvin have served as portfolio managers for the U.S. Core Equity Fund since its inception in November 2012. PURCHASE AND SALE OF FUND SHARES The minimum initial investment for Institutional Class shares is $1,000,000. There is no minimum for subsequent investments in Institutional Class shares. The Fund reserves the right to change the minimum amount required to open an account without prior notice. The Fund may accept investments of smaller amounts at its discretion. There are no minimum purchase or minimum shareholder account balance requirements for Servicing Class or Class N shares; however, you will have to comply with the purchase and account balance minimums of your approved broker-dealer or other financial institution (each, an “Authorized Institution”).",
"The Fund may require each Authorized Institution to meet certain aggregate investment levels before it may open an account with the Fund on behalf of its customers. Contact your Authorized Institution for more information . The shares of the U.S. Core Equity Fund are redeemable. You may redeem your shares only through your Authorized Institution. To redeem shares of the Fund, you should contact your Authorized Institution and follow its procedures, including deadlines for receipt by the Authorized Institution of your share redemption instructions. Your Authorized Institution may charge a fee for its services, in addition to the fees charged by the Fund.",
"TAX INFORMATION The U.S. Core Equity Fund intends to make distributions that may be taxed as ordinary income or capital gains. PAYMENTS TO BROKER-DEALERS AND OTHER FINANCIAL INTERMEDIARIES If you purchase the U.S. Core Equity Fund through a broker-dealer or other financial intermediary (such as a bank), the Fund and its related companies may pay the intermediary for the sale of Fund shares and related services. These payments may create a conflict of interest by influencing the broker-dealer or other intermediary and your salesperson to recommend the Fund over another investment.",
"Ask your salesperson or visit your financial intermediary’s web site for more information. CNI CHARTER FUNDS | 41 Diversified Equity Fund INVESTMENT GOAL The Diversified Equity Fund seeks to provide long-term capital growth. FEES AND EXPENSES OF THE FUND The table below describes the fees and expenses you may pay if you buy and hold shares of the Diversified Equity Fund. Annual Fund Operating Expenses (expenses that you pay each year as a percentage of the value of your investment) Institutional Class Class N Management Fees 0.75% 0.75% Distribution (12b-1) Fee None 0.25% Other Expenses Shareholder Servicing Fee None 0.25% Other Fund Expenses 0.15% 0.15% Total Other Expenses 0.15% 0.40% Total Annual Fund Operating Expenses 0.90% 1.40% Fee Waiver and/or Expense Reimbursement(1)(2) (0.10)% (0.35)% Total Annual Fund Operating Expenses After Fee Waiver and/or Expense Reimbursement 0.80% 1.05% (1) City National Asset Management, Inc., the Fund’s investment adviser (“CNAM”), has contractually agreed to waive a portion of the annual management fee payable to it by the Fund, thereby reducing the annual management fee from 0.75% of average daily net assets to 0.65% of average daily net assets.",
"This limitation will be in effect until January 28, 2014. Prior to that date, this arrangement may be terminated without penalty by the Fund’s Board of Trustees upon 60 days’ written notice to CNAM, and it will terminate automatically upon the termination of the investment management agreement between CNAM and the Fund. Any management fees waived by CNAM pursuant to this arrangement will not be eligible for reimbursement by the Fund to CNAM. (2) CNAM has contractually agreed to limit shareholder servicing fees for Class N to 0.15% until January 28, 2014. Prior to that date, this arrangement may be terminated without penalty by the Fund’s Board of Trustees upon 60 days’ written notice to CNAM, and it will terminate automatically upon the termination of the shareholder services agreement between CNAM and the Fund.",
"Any shareholder servicing fees waived by CNAM pursuant to this arrangement will not be eligible for reimbursement by the Fund to CNAM. EXAMPLE This Example is intended to help you compare the cost of investing in the Diversified Equity Fund with the cost of investing in other mutual funds. The Example assumes that you invest $10,000 in the Fund for the time periods indicated and then redeem all of your shares at the end of those periods. The Example also assumes that your investment has a 5% return each year and that the Fund’s operating expenses remain the same.",
"Although your actual costs may be higher or lower, based on these assumptions your costs would be: 1 Year 3 Years 5 Years 10 Years Institutional Class Class N PORTFOLIO TURNOVER The Fund pays transaction costs, such as commissions, when it buys and sells securities (or “turns over” its portfolio). A higher portfolio turnover rate may indicate higher transaction costs and may result in higher taxes when Fund shares are held in a taxable account. These costs, which are not reflected in annual fund operating expenses or in the example, affect the Fund’s performance. During the most recent fiscal year, the Fund’s portfolio turnover rate was 112% of the average value of its portfolio.",
"CNI CHARTER FUNDS | 42 PRINCIPAL INVESTMENT STRATEGIES At least 80% of the Diversified Equity Fund’s net assets (including borrowings for investment purposes) consists of common stocks of large-capitalization U.S. companies that are diversified among various industries and market sectors. For this purpose, City National Asset Management, Inc. (“CNAM”), the Fund’s investment adviser, considers a large-capitalization company to be a company with a market capitalization satisfying Standard & Poor’s eligibility criteria for inclusion in the S&P 500 Index at the time of investment (currently $4 billion or greater). This investment strategy may be changed at any time, with 60 days’ prior notice to shareholders. CNAM manages a portion of the Diversified Equity Fund's assets by replicating the holdings of the S&P 500 Index other than tobacco-related companies. The investments of the remainder of the Fund are typically equity securities that a sub-adviser believes have one or more of the following characteristics: a price significantly below the intrinsic value of the issuer; favorable prospects for earnings growth; above average return on equity and dividend yield; and sound overall financial condition of the issuer.",
"Up to 20% of the Diversified Equity Fund’s net assets may consist of equity securities, consisting primarily of common stock, of mid-capitalization companies. For this purpose, CNAM considers a mid-capitalization company to be a company with a market capitalization satisfying Standard & Poor’s eligibility criteria for inclusion in the S&P Midcap 400 Index at the time of investment (currently $1 billion to $4.4 billion). In addition to investing in U.S. corporations, the Fund invests in U.S. dollar denominated sponsored American Depositary Receipts of foreign corporations.",
"The Fund’s sub-advisers may buy and sell securities in the Fund’s portfolio frequently, which may result in higher transaction costs and produce capital gains and losses. The Fund’s sub-advisers may determine to sell a security when its target value is realized, its earnings deteriorate, changing circumstances affect the original reasons for the security’s purchase, or more attractive investment alternatives are identified. PRINCIPAL RISKS OF INVESTING IN THE FUND As with any mutual fund, there are risks to investing. None of the Diversified Equity Fund, CNAM and the Fund’s sub-advisers can guarantee that the Fund will meet its investment goal. The Fund will expose you to risks that could cause you to lose money. Here are the principal risks to consider: Market Risk of Equity Securities – By investing in common stocks, the Fund may expose you to a sudden decline in the share price of a particular portfolio holding or to an overall decline in the stock market.",
"In addition, the Fund’s principal market segment may underperform other segments or the market as a whole. The value of your investment in the Fund will fluctuate daily and cyclically based on movements in the stock market and the activities of individual companies in the Fund’s portfolio. Index Risk –The performance of the portion of the Fund designed to replicate the S&P 500 Index may not exactly match the performance of the Index. That portion of the Fund does not hold every stock contained in the Index and the performance of the stocks held in the Fund may not track exactly the performance of the stocks held in the Index.",
"Furthermore, unlike the Index, the Fund incurs management fees, 12b-1 fees (for Class N shares only), administrative expenses and transaction costs in trading stocks. Medium Capitalization (Mid-Cap) Companies – Investments in mid-cap companies may involve greater risks than investments in larger, more established companies, such as limited product lines, markets and financial or managerial resources. In addition, the securities of mid-cap companies may have greater price volatility and less liquidity than the securities of larger capitalized companies. Foreign Investments (American Depositary Receipts) – Foreign investments tend to be more volatile than domestic securities, and are subject to risks that are not typically associated with domestic securities (e.g., unfavorable political and economic developments and the possibility of seizure or nationalization of companies, or the imposition of withholding taxes on income). The Fund invests in U.S. dollar denominated American Depositary Receipts of foreign companies (“ADRs”) which are sponsored by the foreign issuers. ADRs are subject to the risks of changes in currency or exchange rates (which affect the value of the issuer even though ADRs are denominated in U.S. dollars) and the risks of investing in foreign securities.",
"Sub-Adviser Allocation –The Fund’s performance is affected by CNAM’s decisions concerning how much of the Fund’s portfolio to allocate for management by each of the Fund’s sub-advisers. Management – The Fund’s performance depends on the portfolio managers’ skill in making appropriate investments. As a result, the Fund may underperform the equity market or similar funds. Defensive Investments – During unusual economic or market conditions, or for temporary defensive or liquidity purposes, the Fund may invest 100% of its assets in cash or cash equivalents that would not ordinarily be consistent with the Fund’s investment goals.",
"CNI CHARTER FUNDS | 43 PERFORMANCE The bar chart and the performance table that follow illustrate some of the risks and volatility of an investment in the Diversified Equity Fund by showing changes in the Fund’s performance from year to year and by showing the Fund’s average annual total returns for 1, 5 and 10 years and since inception. Of course, the Fund’s past performance (before and after taxes) does not necessarily indicate how the Fund will perform in the future. Call 1-888-889-0799 or visit www.cnicharterfunds.com to obtain updated performance information. This bar chart shows the performance of the Diversified Equity Fund’s Institutional Class shares based on a calendar year. Best Quarter Worst Quarter 16.06% (23.29)% Q2 2003 Q4 2008 This table shows the average annual total returns of each class of the Diversified Equity Fund for the periods ended December 31, 2011. The table also shows how the Fund’s performance compares with the returns of an index comprised of companies similar to those held by the Fund. Average Annual Total Returns (for the periods ended December 31, 2011) One Year Five Years Ten Years Since Inception(1) Institutional Class Return Before Taxes (6.96)% (3.48)% 1.98% 8.55% Return After Taxes on Distributions (7.02)% (4.12)% 1.32% 6.04% Return After Taxes on Distributions and Sale of Fund Shares (4.44)% (2.98)% 1.62% 6.14% Class N Return Before Taxes (7.18)% (3.71)% 1.75% 8.45% S&P 500 Index (Reflects no deduction for fees, expenses or taxes) 2.11% (0.25)% 2.92% 9.09% Performance for “Since Inception” for all classes is shown for periods beginning October 20, 1988, which is the date the predecessor to the Diversified Equity Fund (the “Predecessor Fund”) commenced operations.",
"On September 30, 2005, the Predecessor Fund reorganized into the Fund. The performance results for Institutional Class shares of the Fund before September 30, 2005, reflect the performance of the Predecessor Fund’s Class I shares. Class A shares of the Predecessor Fund, the predecessor to the Class N shares of the Fund, commenced operations on December 30, 2002. The performance results for Class N shares of the Fund for the period of December 30, 2002, to September 29, 2005, reflect the performance of the Predecessor Fund’s Class A shares. The performance results for Class N shares of the Fund for the period of October 20, 1988 to December 30, 2002, reflect the performance of the Predecessor Fund’s Class I shares. The performance of the Predecessor Fund’s Class I Shares has not been adjusted to reflect the higher Rule 12b-1 fees and expenses applicable to the Fund’s Class N shares.",
"If it had, the performance of the Fund’s Class N shares would have been lower than that shown. For the index shown the measurement period used in computing the returns of the index for the “Since Inception” period begins on October 31, 1988. After-tax returns are calculated using the historical highest individual federal marginal income tax rates and do not reflect the impact of state and local taxes. Actual after-tax returns depend on an investor’s tax situation and may differ from those shown. The performance of Institutional Class shares does not reflect Class N shares’ Rule 12b-1 fees and expenses. After-tax returns for Class N shares will vary from the after-tax returns shown above for Institutional Class shares. The after-tax returns shown are not relevant to investors who hold their Fund shares through tax-deferred arrangements, such as 401(k) plans or individual retirement accounts.",
"CNI CHARTER FUNDS | 44 INVESTMENT MANAGER City National Asset Management, Inc. SUB-ADVISERS SKBA Capital Management, LLC (“SKBA”) Turner Investments, L.P. (“Turner”) PORTFOLIO MANAGERS Thomas Kuo and Dimitry Kirtsman of CNAM have served as portfolio managers for the Fund since March 2012. Andrew W. Bischel, Kenneth J. Kaplan, Joshua J. Rothé and Shelley H. Mann of SKBA have served as portfolio managers for the Fund since 2006. Robert E. Turner of Turner has served as portfolio manager for the Fund since 2008. PURCHASE AND SALE OF FUND SHARES The minimum initial investment for Institutional Class shares is $1,000,000. The minimum initial investment for Class N shares is $1,000. There is no minimum for subsequent investments in Institutional Class shares or Class N shares. The Fund reserves the right to change the minimum amount required to open an account or to add to an existing account without prior notice. The Fund may accept investments of smaller amounts at its discretion; however, your financial institution or financial professional may establish higher minimum investment requirements than the Fund and may also independently charge you transaction fees and additional amounts in return for its services. The shares of the Diversified Equity Fund are redeemable.",
"You may redeem some or all of your shares on any day the NYSE is open for regular session trading. The Fund ordinarily pays redemption proceeds on the business day following the redemption of your shares. However, the Fund reserves the right to make payment within seven days of the redemption request. Redemption proceeds will be sent to you via check to your address of record or will be wired to your bank via the instructions on your account. TAX INFORMATION The Diversified Equity Fund intends to make distributions that may be taxed as ordinary income or capital gains. PAYMENTS TO BROKER-DEALERS AND OTHER FINANCIAL INTERMEDIARIES If you purchase the Diversified Equity Fund through a broker-dealer or other financial intermediary (such as a bank), the Fund and its related companies may pay the intermediary for the sale of Fund shares and related services. These payments may create a conflict of interest by influencing the broker-dealer or other intermediary and your salesperson to recommend the Fund over another investment. Ask your salesperson or visit your financial intermediary’s web site for more information. CNI CHARTER FUNDS | 45 Large Cap Value Fund INVESTMENT GOAL The Large Cap Value Fund seeks to provide capital appreciation and moderate income consistent with current returns available in the marketplace by investing in large U.S. corporations and U.S. dollar denominated American Depositary Receipts of large foreign corporations which are undervalued. FEES AND EXPENSES OF THE FUND The table below describes the fees and expenses you may pay if you buy and hold shares of the Large Cap Value Fund.",
"Annual Fund Operating Expenses (expenses that you pay each year as a percentage of the value of your investment) Institutional Class(1) Servicing Class(1) Class N Management Fees 0.62% 0.62% 0.62% Distribution (12b-1) Fee None None 0.25% Other Expenses Shareholder Servicing Fee None 0.25% 0.25% Other Fund Expenses 0.10%(2) 0.10% 0.10% Total Other Expenses 0.10% 0.35% 0.35% Total Annual Fund Operating Expenses 0.72% 0.97% 1.22% Institutional Class shares were initially offered in December, 2011. Effective December 19, 2011, the shares previously designated as Institutional Class shares were redesignated as Servicing Class shares. Other Fund Expenses for Institutional Class shares are estimated based on the amounts for Servicing Class shares and Class N shares. EXAMPLE This Example is intended to help you compare the cost of investing in the Large Cap Value Fund with the cost of investing in other mutual funds. The Example assumes that you invest $10,000 in the Large Cap Value Fund for the time periods indicated and then redeem all of your shares at the end of those periods.",
"The Example also assumes that your investment has a 5% return each year and that the Fund’s operating expenses remain the same. Although your actual costs may be higher or lower, based on these assumptions your costs would be: 1 Year 3 Years 5 Years 10 Years Institutional Class Servicing Class Class N PORTFOLIO TURNOVER The Large Cap Value Fund pays transaction costs, such as commissions, when it buys and sells securities (or “turns over” its portfolio). A higher portfolio turnover rate may indicate higher transaction costs and may result in higher taxes when Fund shares are held in a taxable account. These costs, which are not reflected in annual fund operating expenses or in the example, affect the Fund’s performance. During the most recent fiscal year, the Fund’s portfolio turnover rate was 43% of the average value of its portfolio. CNI CHARTER FUNDS | 46 PRINCIPAL INVESTMENT STRATEGIES At least 80% of the Large Cap Value Fund’s net assets (including borrowings for investment purposes) consists of common stock of large U.S. corporations and U.S. dollar denominated American Depositary Receipts of large foreign corporations which are undervalued. For this purpose, City National Asset Management, Inc. (“CNAM”), the Fund’s investment adviser, considers a large corporation to be a company with a market capitalization similar to the market capitalizations of the companies in the S&P 500 Value Index at the time of investment (currently $1 billion to $369 billion). CNAM uses a combination of quantitative and fundamental analysis to select companies with share price growth potential that may not be recognized by the market at large.",
"Quantitative analysis seeks to measure the value of securities by using mathematical and statistical modeling and research. Fundamental analysis of a security involves measuring its intrinsic value by examining related economic, financial and other factors, such as the overall economy and industry conditions, and the financial condition and management of the issuer. Although the Fund is not an index fund, CNAM seeks to manage the portfolio’s overall risk characteristics to be similar to those of the S&P 500 Value Index. CNAM may determine to sell a security when its target value is realized, its earnings deteriorate, changing circumstances affect the original reasons for the security’s purchase, or more attractive investment alternatives are identified. PRINCIPAL RISKS OF INVESTING IN THE FUND As with any mutual fund, there are risks to investing. Neither the Large Cap Value Fund nor CNAM can guarantee that the Fund will meet its investment goal.",
"The Fund will expose you to risks that could cause you to lose money. Here are the principal risks to consider: Market Risk of Equity Securities – By investing in common stocks, the Fund may expose you to a sudden decline in the share price of a particular portfolio holding or to an overall decline in the stock market. In addition, the Fund’s principal market segment may underperform other segments or the market as a whole. The value of your investment in the Fund will fluctuate daily and cyclically based on movements in the stock market and the activities of individual companies in the Fund’s portfolio. Investment Style – CNAM primarily uses a value style to select investments for the Fund. This style may fall out of favor, may underperform other styles and may increase the volatility of the Fund’s share price. Management – The Fund’s performance depends on the portfolio managers’ skill in making appropriate investments.",
"As a result, the Fund may underperform the equity market or similar funds. Foreign Investments (American Depositary Receipts) – Foreign investments tend to be more volatile than domestic securities, and are subject to risks that are not typically associated with domestic securities (e.g., unfavorable political and economic developments and the possibility of seizure or nationalization of companies, or the imposition of withholding taxes on income).",
"The Fund invests in U.S. dollar denominated American Depositary Receipts of foreign companies (“ADRs”) which are sponsored by the foreign issuers. ADRs are subject to the risks of changes in currency or exchange rates (which affect the value of the issuer even though ADRs are denominated in U.S. dollars) and the risks of investing in foreign securities. Defensive Investments – During unusual economic or market conditions, or for temporary defensive or liquidity purposes, the Fund may invest 100% of its assets in cash or cash equivalents that would not ordinarily be consistent with the Fund’s investment goals. PERFORMANCE The bar chart and the performance table that follow illustrate some of the risks and volatility of an investment in the Large Cap Value Fund by showing changes in the Fund’s performance from year to year and by showing the Fund’s average annual total returns for 1, 5 and 10 years. Of course, the Fund’s past performance (before and after taxes) does not necessarily indicate how the Fund will perform in the future.",
"Call 1-888-889-0799 or visit www.cnicharterfunds.com to obtain updated performance information. This bar chart shows the performance of the Large Cap Value Fund’s Servicing Class (formerly designated as Institutional Class) shares based on a calendar year. Best Quarter Worst Quarter 18.81% (20.90)% Q2 2003 Q4 2008 CNI CHARTER FUNDS | 47 This table shows the average annual total returns of each class of the Large Cap Value Fund for the periods ended December 31, 2011. The table also shows how the Fund’s performance compares with the returns of an index comprised of companies similar to those held by the Fund. Average Annual Total Returns (for the periods ended December 31, 2011) One Year Five Years Ten Years Inception Date Servicing Class 1/14/2000 Return Before Taxes (1.78)% (2.61)% 3.19% Return After Taxes on Distributions (1.99)% (3.22)% 2.46% Return After Taxes on Distributions and Sale of Fund Shares (0.87)% (2.43)% 2.50% Class N 4/13/2000 Return Before Taxes (2.04)% (2.89)% 2.91% S&P 500 Value Index (Reflects no deduction for fees, expenses or taxes) (0.48)% (2.96)% 3.52% After-tax returns are calculated using the historical highest individual federal marginal income tax rates and do not reflect the impact of state and local taxes. Actual after-tax returns depend on an investor’s tax situation and may differ from those shown. The performance of Servicing Class shares does not reflect Class N shares’ Rule 12b-1 fees and expenses.",
"After-tax returns for Class N shares and Institutional Class shares will vary from the after-tax returns shown above for Servicing Class shares. The after-tax returns shown are not relevant to investors who hold their Fund shares through tax-deferred arrangements, such as 401(k) plans or individual retirement accounts. INVESTMENT MANAGER City National Asset Management, Inc. PORTFOLIO MANAGERS Steve Decker and Max Sasso have served as portfolio managers for the Large Cap Value Fund since June 2010. PURCHASE AND SALE OF FUND SHARES The minimum initial investment for Institutional Class shares is $1,000,000. There is no minimum for subsequent investments in Institutional Class shares.",
"The Fund reserves the right to change the minimum amount required to open an account without prior notice. The Fund may accept investments of smaller amounts at its discretion. There are no minimum purchase or minimum shareholder account balance requirements for Servicing Class or Class N shares; however, you will have to comply with the purchase and account balance minimums of your approved broker-dealer or other financial institution (each, an “Authorized Institution”). The Fund may require each Authorized Institution to meet certain aggregate investment levels before it may open an account with the Fund on behalf of its customers. Contact your Authorized Institution for more information. The shares of the Large Cap Value Fund are redeemable. You may redeem your shares only through your Authorized Institution. To redeem shares of the Fund, you should contact your Authorized Institution and follow its procedures, including deadlines for receipt by the Authorized Institution of your share redemption instructions.",
"Your Authorized Institution may charge a fee for its services, in addition to the fees charged by the Fund. TAX INFORMATION The Large Cap Value Fund intends to make distributions that may be taxed as ordinary income or capital gains. PAYMENTS TO BROKER-DEALERS AND OTHER FINANCIAL INTERMEDIARIES If you purchase the Large Cap Value Fund through a broker-dealer or other financial intermediary (such as a bank), the Fund and its related companies may pay the intermediary for the sale of Fund shares and related services. These payments may create a conflict of interest by influencing the broker-dealer or other intermediary and your salesperson to recommend the Fund over another investment. Ask your salesperson or visit your financial intermediary’s web site for more information. CNI CHARTER FUNDS | 48 Large Cap Growth Fund INVESTMENT GOAL The Large Cap Growth Fund seeks to provide capital appreciation by investing in large U.S. corporations and U.S. dollar denominated American Depositary Receipts of large foreign corporations with the potential for growth.",
"FEES AND EXPENSES OF THE FUND The table below describes the fees and expenses you may pay if you buy and hold shares of the Large Cap Growth Fund. Annual Fund Operating Expenses (expenses that you pay each year as a percentage of the value of your investment) Servicing Class(1) Class N Management Fees 0.65% 0.65% Distribution (12b-1) Fee None 0.25% Other Expenses Shareholder Servicing Fee 0.25% 0.25% Other Fund Expenses 0.10% 0.10% Total Other Expenses 0.35% 0.35% Total Annual Fund Operating Expenses 1.00% 1.25% Effective December 19, 2011, the shares previously designated as Institutional Class shares were redesignated as Servicing Class shares. EXAMPLE This Example is intended to help you compare the cost of investing in the Large Cap Growth Fund with the cost of investing in other mutual funds. The Example assumes that you invest $10,000 in the Large Cap Growth Fund for the time periods indicated and then redeem all of your shares at the end of those periods. The Example also assumes that your investment has a 5% return each year and that the Fund’s operating expenses remain the same.",
"Although your actual costs may be higher or lower, based on these assumptions your costs would be: 1 Year 3 Years 5 Years 10 Years Servicing Class Class N PORTFOLIO TURNOVER The Large Cap Growth Fund pays transaction costs, such as commissions, when it buys and sells securities (or “turns over” its portfolio). A higher portfolio turnover rate may indicate higher transaction costs and may result in higher taxes when Fund shares are held in a taxable account. These costs, which are not reflected in annual fund operating expenses or in the example, affect the Fund’s performance.",
"During the most recent fiscal year, the Fund’s portfolio turnover rate was 82% of the average value of its portfolio. CNI CHARTER FUNDS | 49 PRINCIPAL INVESTMENT STRATEGIES At least 80% of the Large Cap Growth Fund’s net assets (including borrowings for investment purposes) consists of common stock of large U.S. corporations and U.S. dollar denominated American Depositary Receipts of large foreign corporations. For this purpose, City National Asset Management, Inc. (“CNAM”), the Fund’s investment adviser, considers a large corporation to be a company with a market capitalization similar to the market capitalizations of the companies in the S&P 500 Growth Index at the time of investment (currently $1 billion to $296 billion). CNAM uses a combination of quantitative and fundamental analysis to select companies with share price growth potential that may not be recognized by the market at large. Quantitative analysis seeks to measure the value of securities by using mathematical and statistical modeling and research.",
"Fundamental analysis of a security involves measuring its intrinsic value by examining related economic, financial and other factors, such as the overall economy and industry conditions, and the financial condition and management of the issuer. Although the Fund is not an index fund, CNAM seeks to manage the portfolio’s overall risk characteristics to be similar to those of the S&P 500 Growth Index. CNAM may determine to sell a security when its target value is realized, its earnings deteriorate, changing circumstances affect the original reasons for the security’s purchase, or more attractive investment alternatives are identified. PRINCIPAL RISKS OF INVESTING IN THE FUND As with any mutual fund, there are risks to investing.",
"Neither the Large Cap Growth Fund nor CNAM can guarantee that the Fund will meet its investment goal. The Fund will expose you to risks that could cause you to lose money. Here are the principal risks to consider: Market Risk of Equity Securities – By investing in common stocks, the Fund may expose you to a sudden decline in the share price of a particular portfolio holding or to an overall decline in the stock market. In addition, the Fund’s principal market segment may underperform other segments or the market as a whole. The value of your investment in the Fund will fluctuate daily and cyclically based on movements in the stock market and the activities of individual companies in the Fund’s portfolio. Investment Style – CNAM primarily uses a growth style to select investments for the Fund.",
"This style may fall out of favor, may underperform other styles and may increase the volatility of the Fund’s share price. Management – The Fund’s performance depends on the portfolio managers’ skill in making appropriate investments. As a result, the Fund may underperform the equity market or similar funds. Foreign Investments (American Depositary Receipts) – Foreign investments tend to be more volatile than domestic securities, and are subject to risks that are not typically associated with domestic securities (e.g., unfavorable political and economic developments and the possibility of seizure or nationalization of companies, or the imposition of withholding taxes on income).",
"The Fund invests in U.S. dollar denominated American Depositary Receipts of foreign companies (“ADRs”) which are sponsored by the foreign issuers. ADRs are subject to the risks of changes in currency or exchange rates (which affect the value of the issuer even though ADRs are denominated in U.S. dollars) and the risks of investing in foreign securities. Defensive Investments – During unusual economic or market conditions, or for temporary defensive or liquidity purposes, the Fund may invest 100% of its assets in cash or cash equivalents that would not ordinarily be consistent with the Fund’s investment goals. PERFORMANCE The bar chart and the performance table that follow illustrate some of the risks and volatility of an investment in the Large Cap Growth Fund by showing changes in the Fund’s performance from year to year and by showing the Fund’s average annual total returns for 1, 5 and 10 years. Of course, the Fund’s past performance (before and after taxes) does not necessarily indicate how the Fund will perform in the future. Call 1-888-889-0799 or visit www.cnicharterfunds.com to obtain updated performance information. This bar chart shows the performance of the Large Cap Growth Fund’s Servicing Class (formerly designated as Institutional Class) shares based on a calendar year.",
"Best Quarter Worst Quarter 14.32% (20.40)% Q2 2009 Q4 2008 CNI CHARTER FUNDS | 50 This table shows the average annual total returns of each class of the Large Cap Growth Fund for the periods ended December 31, 2011. The table also shows how the Fund’s performance compares with the returns of an index comprised of companies similar to those held by the Fund. Average Annual Total Returns (for the periods ended December 31, 2011) One Year Five Years Ten Years Inception Date Servicing Class 1/14/2000 Return Before Taxes (4.02)% 0.60% 1.63% Return After Taxes on Distributions (4.05)% 0.44% 1.51% Return After Taxes on Distributions and Sale of Fund Shares (2.57)% 0.42% 1.32% Class N 3/28/2000 Return Before Taxes (4.26)% 0.34% 1.37% S&P 500 Growth Index (Reflects no deduction for fees, expenses or taxes) 4.65% 2.38% 2.13% After-tax returns are calculated using the historical highest individual federal marginal income tax rates and do not reflect the impact of state and local taxes.",
"Actual after-tax returns depend on an investor’s tax situation and may differ from those shown. The performance of Servicing Class shares does not reflect Class N shares’ Rule 12b-1 fees and expenses. After-tax returns for Class N shares will vary from the after-tax returns shown above for Servicing Class shares. The after-tax returns shown are not relevant to investors who hold their Fund shares through tax-deferred arrangements, such as 401(k) plans or individual retirement accounts. INVESTMENT MANAGER City National Asset Management, Inc. PORTFOLIO MANAGERS Otis “Tres” Heald and Joseph Querriera have served as portfolio managers for the Large Cap Growth Fund since June 2010. PURCHASE AND SALE OF FUND SHARES The Large Cap Growth Fund has no minimum purchase or minimum shareholder account balance requirements; however, you will have to comply with the purchase and account balance minimums of your approved broker-dealer or other financial institution (each, an “Authorized Institution”). The Fund may require each Authorized Institution to meet certain aggregate investment levels before it may open an account with the Fund on behalf of its customers.",
"Contact your Authorized Institution for more information. The shares of the Large Cap Growth Fund are redeemable. You may redeem your shares only through your Authorized Institution. To redeem shares of the Large Cap Growth Fund, you should contact your Authorized Institution and follow its procedures, including deadlines for receipt by the Authorized Institution of your share redemption instructions. Your Authorized Institution may charge a fee for its services, in addition to the fees charged by the Fund. TAX INFORMATION The Large Cap Growth Fund intends to make distributions that may be taxed as ordinary income or capital gains. PAYMENTS TO BROKER-DEALERS AND OTHER FINANCIAL INTERMEDIARIES If you purchase the Large Cap Growth Fund through a broker-dealer or other financial intermediary (such as a bank), the Fund and its related companies may pay the intermediary for the sale of Fund shares and related services. These payments may create a conflict of interest by influencing the broker-dealer or other intermediary and your salesperson to recommend the Fund over another investment.",
"Ask your salesperson or visit your financial intermediary’s web site for more information. CNI CHARTER FUNDS | 51 Socially Responsible Equity Fund INVESTMENT GOAL The Socially Responsible Equity Fund seeks to provide long-term capital growth. FEES AND EXPENSES OF THE FUND The table below describes the fees and expenses you may pay if you buy and hold shares of the Socially Responsible Equity Fund. Annual Fund Operating Expenses (expenses that you pay each year as a percentage of the value of your investment) Institutional Class Class N Management Fees 0.75% 0.75% Distribution (12b-1) Fee None 0.25% Other Expenses Shareholder Servicing Fee None 0.25% Other Fund Expenses 0.14% 0.14% Total Other Expenses 0.14% 0.39% Total Annual Fund Operating Expenses 0.89% 1.39% Fee Waiver and/or Expense Reimbursement(1) (0.00)% (0.25)% Total Annual Fund Operating Expenses After Fee Waiver and/or Expense Reimbursement 0.89% 1.14% (1) City National Asset Management, Inc., the Fund’s investment adviser (“CNAM”), has contractually agreed to waive the shareholder servicing fees for Class N until January 28, 2014. Prior to that date, this arrangement may be terminated without penalty by the Fund’s Board of Trustees upon 60 days’ written notice to CNAM, and it will terminate automatically upon the termination of the shareholder services agreement between CNAM and the Fund. Any shareholder servicing fees waived by CNAM pursuant to this arrangement will not be eligible for reimbursement by the Fund to CNAM. EXAMPLE This Example is intended to help you compare the cost of investing in the Socially Responsible Equity Fund with the cost of investing in other mutual funds.",
"The Example assumes that you invest $10,000 in the Fund for the time periods indicated and then redeem all of your shares at the end of those periods. The Example also assumes that your investment has a 5% return each year and that the Fund’s operating expenses remain the same. Although your actual costs may be higher or lower, based on these assumptions your costs would be: 1 Year 3 Years 5 Years 10 Years Institutional Class Class N PORTFOLIO TURNOVER The Fund pays transaction costs, such as commissions, when it buys and sells securities (or “turns over” its portfolio). A higher portfolio turnover rate may indicate higher transaction costs and may result in higher taxes when Fund shares are held in a taxable account. These costs, which are not reflected in annual fund operating expenses or in the example, affect the Fund’s performance. During the most recent fiscal year, the Fund’s portfolio turnover rate was 22% of the average value of its portfolio. CNI CHARTER FUNDS | 52 PRINCIPAL INVESTMENT STRATEGIES At least 80% of the Socially Responsible Equity Fund’s net assets (including borrowings for investment purposes) consists of common stocks of U.S. issuers that meet certain socially responsible criteria.",
"This investment strategy may be changed at any time, with 60 days’ prior notice to shareholders. Up to 50% of the Fund’s net assets may consist of securities of mid-cap companies. For this purpose, City National Asset Management, Inc. (“CNAM”), the Fund’s investment adviser, considers a mid-capitalization company to be a company satisfying Standard & Poor’s eligibility criteria for inclusion in the S&P 400 Midcap Index at the time of investment (currently $1 billion to $4.4 billion).",
"In addition to investing in U.S. corporations, the Fund invests in U.S. dollar denominated American Depositary Receipts of foreign corporations. In selecting investments, the Socially Responsible Equity Fund’s sub-adviser considers social criteria such as an issuer’s community relations, corporate governance, diversity, employee relations, environmental impact and sustainability, human rights record, and product safety. Using both quantitative and qualitative data, the Fund’s sub-adviser also evaluates an issuer’s involvement in specific revenue-generating activities to determine whether the issuer’s involvement was meaningful or simply incidental with respect to that activity. The Fund’s sub-adviser applies vigorous valuation screens that identify issuers for further in-depth fundamental analysis for potential inclusion in the Fund. The investment strategy typically emphasizes securities that the sub-adviser believes have one or more of the following characteristics: a price significantly below the intrinsic value of the issuer; below average price to sales and price to cash flow ratios; and sound overall financial condition of the issuer. The Fund’s sub-adviser may determine to sell a security when its target value is realized, its earnings deteriorate, changing circumstances affect the original reasons for the security’s purchase, or more attractive investment alternatives are identified. The Fund seeks to avoid investing in any issuer that derives more than 5% of its total revenue from tobacco, alcohol, gambling, abortion or weaponry (whether sold to consumers or the military), or that is involved in nuclear power.",
"Because information on an issuer’s involvement in those activities may not be publicly available, it is possible that the Fund’s holdings may include an issuer that does not meet its criteria for socially responsible investing. When the sub-adviser discovers that a holding does not meet its criteria for socially responsible investing, it will divest that holding as soon as reasonably practicable. PRINCIPAL RISKS OF INVESTING IN THE FUND As with any mutual fund, there are risks to investing. None of the Socially Responsible Equity Fund, CNAM and the Fund’s sub-adviser can guarantee that the Fund will meet its investment goal. The Fund will expose you to risks that could cause you to lose money. Here are the principal risks to consider: Market Risk of Equity Securities – By investing in common stocks, the Fund may expose you to a sudden decline in the share price of a particular portfolio holding or to an overall decline in the stock market.",
"In addition, the Fund’s principal market segment may underperform other segments or the market as a whole. The value of your investment in the Fund will fluctuate daily and cyclically based on movements in the stock market and the activities of individual companies in the Fund’s portfolio. Medium Capitalization (Mid-Cap) Companies – Investments in mid-cap companies may involve greater risks than investments in larger, more established companies, such as limited product lines, markets and financial or managerial resources.",
"In addition, the securities of mid-cap companies may have greater price volatility and less liquidity than the securities of larger capitalized companies. Foreign Investments (American Depositary Receipts) – Foreign investments tend to be more volatile than domestic securities, and are subject to risks that are not typically associated with domestic securities (e.g., unfavorable political and economic developments and the possibility of seizure or nationalization of companies, or the imposition of withholding taxes on income). The Fund invests in U.S. dollar denominated American Depositary Receipts of foreign companies (“ADRs”) which are sponsored by the foreign issuers. ADRs are subject to the risks of changes in currency or exchange rates (which affect the value of the issuer even though ADRs are denominated in U.S. dollars) and the risks of investing in foreign securities. Investment Style – The Fund’s sub-adviser primarily uses a value style to select investments for the Fund.",
"This style may fall out of favor, may underperform other styles and may increase the volatility of the Fund’s share price. Management – The Fund’s performance depends on the portfolio managers’ skill in making appropriate investments. As a result, the Fund may underperform the equity market or similar funds. Defensive Investments – During unusual economic or market conditions, or for temporary defensive or liquidity purposes, the Fund may invest 100% of its assets in cash or cash equivalents that would not ordinarily be consistent with the Fund’s investment goals. CNI CHARTER FUNDS | 53 PERFORMANCE The bar chart and the performance table that follow illustrate some of the risks and volatility of an investment in the Socially Responsible Equity Fund by showing changes in the Fund’s performance from year to year and by showing the Fund’s average annual total returns for 1 and 5 years and since inception. Of course, the Fund’s past performance (before and after taxes) does not necessarily indicate how the Fund will perform in the future.",
"Call 1-888-889-0799 or visit www.cnicharterfunds.com to obtain updated performance information. This bar chart shows the performance of the Socially Responsible Equity Fund’s Institutional Class shares based on a calendar year. Best Quarter Worst Quarter 18.47% (25.79)% Q2 2009 Q4 2008 This table shows the average annual total returns of each class of the Socially Responsible Equity Fund for the periods ended December 31, 2011. The table also shows how the Fund’s performance compares with the returns of indexes comprised of companies similar to those held by the Fund. Average Annual Total Returns (for the periods ended December 31, 2011) One Year Five Years Since Inception(1) Institutional Class Return Before Taxes (1.55)% (2.02)% 1.24% Return After Taxes on Distributions (1.76)% (2.40)% 0.87% Return After Taxes on Distributions and Sale of Fund Shares (0.73)% (1.74)% 1.03% Class N Return Before Taxes (1.80)% (2.27)% 1.00% MSCI KLD 400 Social Index (Reflects no deduction for fees, expenses or taxes) 1.60% 0.21% 2.38% Russell 1000® Value Index (Reflects no deduction for fees, expenses or taxes) 0.39% (2.64)% 1.95% (1) Performance for “Since Inception” for all classes is shown for periods beginning January 3, 2005, which is the date the predecessor to the Socially Responsible Equity Fund (the “Predecessor Fund”) commenced operations.",
"On September 30, 2005, the Predecessor Fund reorganized into the Fund. The performance results for Institutional Class shares of the Fund before September 30, 2005, reflect the performance of the Predecessor Fund’s Class I shares. Class A shares of the Predecessor Fund, the predecessor to the Class N shares of the Fund, commenced operations on August 12, 2005. The performance results for Class N shares of the Fund for the period of August 12, 2005, to September 29, 2005, reflect the performance of the Predecessor Fund’s Class A shares. The performance results for Class N shares of the Fund for the period of January 3, 2005 to August 12, 2005, reflect the performance of the Predecessor Fund’s Class I shares.",
"The performance of the Predecessor Fund’s Class I shares has not been adjusted to reflect the higher Rule 12b-1 fees and expenses applicable to the Fund’s Class N shares. If it had, the performance of the Fund’s Class N shares would have been lower than that shown. For the index shown the measurement period used in computing the returns of the index for the “Since Inception” period begins on December 31, 2004. After-tax returns are calculated using the historical highest individual federal marginal income tax rates and do not reflect the impact of state and local taxes.",
"Actual after-tax returns depend on an investor’s tax situation and may differ from those shown. The performance of Institutional Class shares does not reflect Class N shares’ Rule 12b-1 fees and expenses. After-tax returns for Class N shares will vary from the after-tax returns shown above for Institutional Class shares. The after-tax returns shown are not relevant to investors who hold their Fund shares through tax-deferred arrangements, such as 401(k) plans or individual retirement accounts. CNI CHARTER FUNDS | 54 INVESTMENT MANAGER City National Asset Management, Inc. SUB-ADVISER SKBA Capital Management, LLC (“SKBA”) PORTFOLIO MANAGERS Andrew W. Bischel, Kenneth J. Kaplan, Joshua J. Rothé and Shelley H. Mann of SKBA have served as portfolio managers for the Fund (or the Predecessor Fund, as applicable) since 2004.",
"PURCHASE AND SALE OF FUND SHARES The minimum initial investment for Institutional Class shares is $1,000,000. The minimum initial investment for Class N shares is $1,000. There is no minimum for subsequent investments in Institutional Class shares or Class N shares. The Fund reserves the right to change the minimum amount required to open an account or to add to an existing account without prior notice. The Fund may accept investments of smaller amounts at its discretion; however, your financial institution or financial professional may establish higher minimum investment requirements than the Fund and may also independently charge you transaction fees and additional amounts in return for its services. The shares of the Socially Responsible Equity Fund are redeemable. You may redeem some or all of your shares on any day the NYSE is open for regular session trading. The Fund ordinarily pays redemption proceeds on the business day following the redemption of your shares. However, the Fund reserves the right to make payment within seven days of the redemption request.",
"Redemption proceeds will be sent to you via check to your address of record or will be wired to your bank via the instructions on your account. TAX INFORMATION The Socially Responsible Equity Fund intends to make distributions that may be taxed as ordinary income or capital gains. PAYMENTS TO BROKER-DEALERS AND OTHER FINANCIAL INTERMEDIARIES If you purchase the Socially Responsible Equity Fund through a broker-dealer or other financial intermediary (such as a bank), the Fund and its related companies may pay the intermediary for the sale of Fund shares and related services. These payments may create a conflict of interest by influencing the broker-dealer or other intermediary and your salesperson to recommend the Fund over another investment.",
"Ask your salesperson or visit your financial intermediary’s web site for more information. CNI CHARTER FUNDS | 55 more about the funds For ease of reference, this Prospectus refers to certain sub-groups of the CNI Charter Funds as follows: • Money Market Funds – Government Money Fund, Prime Money Fund and California Money Fund • Bond Funds – Limited Maturity Fund, Government Bond Fund, Corporate Bond Fund, California Tax Exempt Bond Fund, Full Maturity Fund and High Yield Bond Fund • Equity Funds – U.S. Core Equity Fund, Diversified Equity Fund, Large Cap Value Fund, Large Cap Growth Fund and Socially Responsible Equity Fund • Funds – Money Market Funds, Bond Funds, Multi-Asset Fund and Equity Funds In addition, this Prospectus refers to City National Asset Management, Inc., the Funds’ investment adviser, as “CNAM”. The goal of each Fund can only be changed with shareholder approval.",
"For all Funds other than the California Money Market Fund and the California Tax Exempt Bond Fund, any policy to invest at least 80% of a Fund’s net assets in specific types of investments may be changed by the Funds’ Board of Trustees upon at least 60 days’ notice to shareholders. If you wish to learn more about each Fund’s principal investments and other securities in which each Fund may invest, please review the SAI.",
"More about the Money Market Funds MORE ABOUT THE PRINCIPAL INVESTMENT STRATEGIES MATURITY Each Money Market Fund invests in securities that, at the time of purchase, have remaining maturities of 397 days or less. Each Money Market Fund maintains a weighted average maturity of not more than 60 days in accordance with applicable regulations. In addition, each Money Market Fund must comply with rules with respect to the Fund’s weighted average life. If, after purchase, the maturity on a security is extended, CNAM or the Board of Trustees (if required by applicable regulations) will decide whether the security should be held or sold. LIQUIDITY Each Money Market Fund must follow strict rules with respect to the liquidity of its portfolio securities, including, as applicable, daily and weekly liquidity requirements.",
"In addition, a Money Market Fund may not purchase illiquid securities if, as a result of the acquisition, more than 5% of the Fund’s total assets would be invested in illiquid securities. Illiquid securities are those that, as determined by CNAM, may not be disposed of in the ordinary course of business within seven days at approximately the value ascribed to them by the Fund. Securities that are deemed liquid at the time of purchase by a Fund may become illiquid following purchase. More about the Bond Funds CNAM periodically reviews the creditworthiness of issuers held by the Bond Funds. CNAM’s credit analysis process includes not only a review of the rating agencies’ assigned ratings but also a review of the specific factors central to those ratings assessments, as well as the factors that could cause a change in the assigned ratings. CNAM and the applicable sub-advisers consider duration, among other factors, in selecting fixed income securities for the Bond Funds. Duration is a weighted measure of the length of time required to receive the present value of future payments, both interest and principal, from a fixed income security.",
"More about the Multi-Asset Fund MORE ABOUT THE PRINCIPAL INVESTMENT STRATEGIES The Multi-Asset Fund is a “fund of funds,” a term used to describe mutual funds that pursue their investment objectives by investing all or substantial portions of their assets in other mutual funds or other types of funds. The cost of investing in the Fund is generally higher than the cost of investing in a mutual fund that invests solely in individual stocks and bonds. By investing in the Fund, an investor indirectly bears fees and expenses charged by the underlying funds in addition to the Fund’s direct fees and expenses. In addition, the use of a fund of funds structure could affect the timing, amount and character of distributions to the Fund’s shareholders and may therefore increase the amount of taxes payable by shareholders.",
"The underlying funds in which the Fund may invest include other funds in the CNI Charter Funds family (“affiliated” funds) as well as funds unaffiliated with CNI Charter Funds (“unaffiliated” funds). More about the Large Cap Value Fund and the Large Cap Growth Fund The Funds’ Board of Trustees decided to close the Large Cap Value Fund and the Large Cap Growth Fund on or about January 3, 2013. In connection with the closing of the Funds, the Board of Trustees has directed CNAM to liquidate the Funds’ portfolio holdings in an orderly manner and to invest the proceeds in money market and other short CNI CHARTER FUNDS | 56 term instruments.",
"The Board of Trustees approved payment of the initial installment of the Funds’ annual capital gains distributions on November 21, 2012, to shareholders of record as of November 19, 2012, and a second capital gains distribution, if necessary, on December 28, 2012, to shareholders of record as of December 26, 2012. Shareholders of the Large Cap Value Fund and the Large Cap Growth Fund may redeem their shares at any time before the Funds close. Existing shareholders of either Fund may continue to exchange into the same Class of other series of the CNI Charter Funds family pursuant to procedures set forth in the Prospectus.",
"The Funds anticipate that a substantial number of shareholders, many of whom are clients of City National Securities, Inc. or City National Bank or are participants in City National Bank retirement plans, will redeem their shares of the Funds before December 31, 2012. At the closing date the remaining assets of the Funds will be liquidated and paid to any shareholders who have not redeemed their Fund shares by that date. INFORMATION ABOUT AFFILIATED UNDERLYING FUNDS The Multi-Asset Fund intends to invest a portion of its assets in the Corporate Bond Fund, Government Bond Fund, and High Yield Bond Fund, each of which is managed by CNAM. Descriptions of each of these Funds’ principal investment strategies and principal investment risks are included in this Prospectus. Additional information about these Funds’ investments and related risks may be found in the SAI.",
"INFORMATION ABOUT UNAFFILIATED UNDERLYING FUNDS The Multi-Asset Fund also intends to invest in unaffiliated exchange-traded funds and mutual funds which invest in various types of securities. Detailed descriptions of these funds’ principal investment strategies and principal investment risks may be found in the prospectuses for the respective unaffiliated underlying funds. INFORMATION ABOUT BONDS In selecting the Multi-Asset Fund’s investments in fixed income securities, CNAM considers, but does not impose requirements with respect to, duration. Duration is a weighted measure of the length of time required to receive the present value of future payments, both interest and principal, from a fixed income security.",
"Under normal circumstances, the Fund’s investments in fixed income securities consist primarily of fixed rate bonds with maturities of ten years or less. Portfolio Holdings A description of the Funds’ policies and procedures with respect to the disclosure of portfolio holdings is available in the SAI. more about the funds’ risks PRINCIPAL RISKS OF THE FUNDS Here are the principal risks that apply to the Money Market Funds: No Guarantees (Money Market Funds) – An investment in a Money Market Fund is not a deposit in a bank and is not insured or guaranteed by the Federal Deposit Insurance Corporation, the Federal Reserve Board or any other government agency. Although each Money Market Fund seeks to preserve the value of your investment at an NAV of $1.00, it is possible to lose money by investing in a Money Market Fund. Additionally, you should be aware that a very small number of money market funds in other fund complexes have in the past “broken the buck,” which means that investors did not receive $1.00 per share for their investment in those funds, and any money market fund may do so in the future. You should be aware that CNAM and its affiliates are under no obligation to provide financial support to the Fund or take other measures to ensure that you receive $1.00 per share for your investment in the Fund.",
"You should not invest in the Fund with the expectation that any such action will be taken. You should also be aware that CNAM and its affiliates have from time to time voluntarily waived, and as of the date of this Prospectus are continuing to waive, fees in order to support the Money Market Funds' yields, but are under no obligation to continue to do so, and may terminate any such waivers at any time. The Effect of Interest Rates (Money Market Funds) – A Money Market Fund’s yield is affected by short-term interest rate changes.",
"When rates decline, a Money Market Fund’s yield will typically fall, but less quickly than prevailing market rates. When rates increase, a Money Market Fund’s yield will typically rise, but not as quickly as market rates. When interest rates are very low, the Fund’s expenses could absorb all or a significant portion of the Fund’s income, and, if the Fund’s expenses exceed the Fund’s income, the Fund may be unable to maintain its $1.00 share price. From time to time, CNAM and its affiliates may reimburse or otherwise reduce the Fund’s expenses or CNAM may waive a portion of its management fee in an effort to maintain a net asset value of $1.00 per share, for the purpose of avoiding a negative yield.",
"Any such expense reimbursements, reductions or waivers are voluntary and temporary and may be terminated by CNAM or its affiliates at any time without notice. The recent adoption of more stringent regulations governing the management of money market funds could have a negative effect on the Fund’s yield. Under these new regulations, the Fund may be required to maintain greater liquidity based on characteristics and anticipated liquidity needs of its shareholders and the Fund may have a lower yield than money market funds with a different shareholder base. CNI CHARTER FUNDS | 57 Market Risk of Fixed Income Securities (Money Market Funds) – By investing in fixed income securities, a Fund may expose you to declines in a holding’s value. The prices of fixed income securities respond to economic developments, particularly interest rate changes, as well as to perceptions about the creditworthiness of individual issuers, including governments. Generally, fixed income securities decrease in value if interest rates rise and increase in value if interest rates fall, with lower rated securities more volatile than higher rated securities. Credit (Money Market Funds) – Each Money Market Fund invests exclusively in securities that are rated, when the Fund buys them, in the highest short-term rating category, or if unrated, are of comparable quality in CNAM’s opinion.",
"However, it is possible that some issuers or other obligors will be unable to make the required payments on securities held by a Fund. Debt securities also go up or down in value based on the perceived creditworthiness of issuers or other obligors. If an obligor for a security held by a Fund fails to pay, otherwise defaults or is perceived to be less creditworthy, a security’s credit rating is downgraded (which could happen rapidly), or the credit quality or value of any underlying assets declines, the value of your investment in the Fund could decline significantly, particularly in certain market environments. If a Fund enters into a financial contract (such as a repurchase agreement or reverse repurchase agreement) the Fund will be subject to the credit risk presented by the counterparty.",
"Upon the occurrence of certain triggering events or defaults on a security held by the Fund, or if the portfolio managers believe that an obligor of such a security may have difficulty meeting its obligations, the Fund may obtain a new or restructured security or underlying assets. In that case, the Fund may become the holder of securities or assets that it could not otherwise purchase or might not otherwise hold (for example, because they are of lower quality or are subordinated to other obligations of the issuer) at a time when those assets may be difficult to sell or can be sold only at a loss. In addition, the Fund may incur expenses to protect the Fund’s interest in securities experiencing these events. Any of these events may cause you to lose money.",
"If, after purchase, the credit rating on a security is downgraded by one or more rating agencies or the credit quality deteriorates, CNAM or the Board of Trustees (where required by applicable regulations) will decide whether the security should be held or sold. Management (Money Market Funds) – A Fund’s performance depends on the adviser’s skill in making appropriate investments. As a result, a Fund may underperform similar funds or to the money market. Defensive Investments (Money Market Funds) – The securities in which each Fund invests, and the strategies described in this Prospectus, are those that a Fund uses under normal conditions. During unusual economic or market conditions, or for temporary defensive or liquidity purposes, a Fund may invest up to 100% of its assets in cash or cash equivalents that would not ordinarily be consistent with the Fund’s investment goals. No Fund is required or expected to take such a defensive posture.",
"But if used, such a stance may help a Fund minimize or avoid losses during adverse market, economic or political conditions. Redemptions (Money Market Funds) – Each Fund may experience periods of heavy redemptions that could cause the Fund to liquidate its assets at inopportune times or at a loss or depressed value, particularly during periods of declining or illiquid markets. Redemption risk is greater to the extent that the Fund has investors with large shareholdings, short investment horizons, or unpredictable cash flow needs. In addition, redemption risk is heightened during periods of overall market turmoil. The redemption by one or more large shareholders of their holdings in the Fund could cause the remaining shareholders in the Fund to lose money. Further, if one decision maker has control of Fund shares owned by separate Fund shareholders, the decision maker may cause redemptions by those shareholders, which may further increase the Fund’s redemption risk.",
"If the Fund is forced to liquidate its assets under unfavorable conditions or at inopportune times, the Fund’s ability to maintain a stable $1.00 share price may be affected. In addition, the Fund may suspend redemptions when permitted by applicable regulations. Government-Sponsored Entities (Prime Money Fund, Government Money Fund)– The Funds may invest in securities issued by government-sponsored entities consisting principally of Fannie Mae, FHLB, Freddie Mac and Ginnie Mae, which securities may not be guaranteed or insured by the U.S. Government and may only be supported by the credit of the issuing agency. Fannie Mae guarantees full and timely payment of all interest and principal of its pass-through securities, and Freddie Mac guarantees timely payment of interest and ultimate collection of principal of its pass-through securities, but such securities are not backed by the full faith and credit of the U.S. Government. Similarly, FHLB securities are not backed by the U.S. Government. The principal and interest on Ginnie Mae pass-through securities are guaranteed by Ginnie Mae and backed by the full faith and credit of the U.S. Government.",
"To meet its obligations under a guarantee, Ginnie Mae is authorized to borrow from the U.S. Treasury with no limitations as to amount. Financial Services Firms (Prime Money Fund) – Financial services firms, like banks, depend upon being able to obtain funds at reasonable costs and upon liquidity in the capital and credit markets to finance lending and other operations. As a result, these firms generally are sensitive to changes in money market and general economic conditions. For instance, when a bank’s borrowers experience financial difficulties, their failure to repay the bank will adversely affect the bank’s financial situation. Financial services firms are highly regulated. Decisions by regulators may limit the loans banks make and the interest rates and fees they charge, and may reduce bank profitability. California Risk Factors (California Money Fund) – The Fund may be subject to greater risks than other tax exempt funds that are diversified across issuers located in a number CNI CHARTER FUNDS | 58 of states. Because the Fund concentrates its investments in California municipal securities, it is vulnerable to economic, political or other developments that may lessen the ability of California municipal securities issuers to pay interest and principal on their securities. Poor statewide or local economic results, changing political sentiments, legislation, policy changes or voter-based initiatives at the state or local level, erosion of the tax base or revenues of the state or one or more local governments, seismic or other natural disasters, or other economic or credit problems affecting the state generally or a particular issuer may reduce tax revenues and increase the expenses of California municipal issuers, making it more difficult for them to meet their obligations.",
"Actual or perceived erosion of the creditworthiness of California municipal issuers may also reduce the value of the holdings of the Fund. California municipal securities issuers rely on taxes and, to some extent, revenues from private projects financed by municipal securities to pay interest and principal on their securities. See the SAI for more detailed information regarding California developments. In addition, although one of the goals of the Fund is to provide income exempt from federal and California state personal income taxes, some of the Fund’s income may be subject to the AMT. Municipal Obligations (California Money Fund) – U.S. state and local governments rely on taxes and, to some extent, revenues from private projects financed by municipal securities to pay interest and principal on municipal debt. Poor statewide or local economic results, changing political sentiments, legislation, policy changes or voter-based initiatives at the state or local level, erosion of the tax base or revenues of the state or one or more local governments, natural disasters, or other economic or credit problems affecting the state generally or a particular issuer may reduce tax revenues and increase the expenses of municipal issuers, making it more difficult for them to meet their obligations. Here are the principal risks that apply to the Bond Funds: The Effect of Interest Rates (Bond Funds) – A Fund’s yield is affected by short-term interest rate changes. When rates decline, a Fund’s yield will typically fall, but less quickly than prevailing market rates. When rates increase, a Fund’s yield will typically rise, but not as quickly as market rates.",
"Market Risk of Fixed Income Securities (Bond Funds) – By investing directly or indirectly in fixed income securities, a Fund may expose you to declines in a holding’s value. The prices of fixed income securities respond to economic developments, particularly interest rate changes, as well as to perceptions about the creditworthiness of individual issuers, including governments. Generally, fixed income securities decrease in value if interest rates rise and increase in value if interest rates fall, with lower rated securities more volatile than higher rated securities. The duration of these securities affects risk as well, with longer term securities generally more volatile than shorter term securities.",
"Duration is a weighted measure of the length of time required to receive the present value of future payments, both interest and principal, from a fixed income security. Rating Agencies (Bond Funds) – A credit rating is not an absolute standard of quality, but rather a general indication that reflects only the view of the originating rating agency from which an explanation of the significance of its ratings may be obtained. There is no assurance that a particular rating will continue for any given period of time or that any such rating will not be revised downward or withdrawn entirely if, in the judgment of the agency establishing the rating, circumstances so warrant.",
"A downward revision or withdrawal of such ratings may have an effect on the liquidity or market price of the securities in which the Fund invests. Management (Bond Funds) – A Fund’s performance depends on the portfolio managers’ skill in making appropriate investments. As a result, a Fund may underperform the fixed income market or similar funds. Defensive Investments (Bond Funds) – The securities in which each Fund invests, and the strategies described in this Prospectus, are those that a Fund uses under normal conditions. During unusual economic or market conditions, or for temporary defensive or liquidity purposes, a Fund may invest up to 100% of its assets in cash or cash equivalents that would not ordinarily be consistent with the Fund’s investment goals. No Fund is required or expected to take such a defensive posture. But if used, such a stance may help a Fund minimize or avoid losses during adverse market, economic or political conditions. Issuers (Bond Funds) – Changes in the financial condition of issuers may adversely affect the value of the Funds’ securities. Economic or political changes may also adversely affect the ability of issuers to repay principal and to make interest payments on securities owned by the Funds. Prepayments (Limited Maturity Fund, Government Bond Fund, Corporate Bond Fund, Full Maturity Fund, High Yield Bond Fund) – The principal of the loans underlying mortgage-backed or other pass-through securities may be prepaid at any time.",
"As a general rule, prepayments increase during a period of falling interest rates and decrease during a period of rising interest rates. As a result of prepayments, in periods of declining interest rates a Fund may be required to reinvest its assets in securities with lower interest rates. In periods of increasing interest rates, prepayments generally may decline, with the effect that the securities subject to prepayment risk held by a Fund may exhibit price characteristics of longer-term debt securities. Extension (Limited Maturity Fund, Government Bond Fund, Corporate Bond Fund, Full Maturity Fund, High Yield Bond Fund) – Rising interest rates can cause the average maturity of a Fund’s holdings of mortgage-backed or other pass-through securities to lengthen unexpectedly due to a drop in prepayments.",
"This would increase the sensitivity of a Fund to rising rates and the potential for price declines of portfolio securities. Extending the average life of a mortgage-backed or other pass-through security increases the risk of depreciation due to future increases in market interest rates. For these reasons, mortgage-backed and other pass-through securities may be less effective than other types of U.S. Government securities as a means of “locking in” interest rates. CNI CHARTER FUNDS | 59 Government-Sponsored Entities (Government Bond Fund, Limited Maturity Fund, Full Maturity Fund) – The Funds may invest in securities issued by government-sponsored entities consisting principally of Fannie Mae, FHLB, Freddie Mac and Ginnie Mae, which securities may not be guaranteed or insured by the U.S. Government and may only be supported by the credit of the issuing agency. Fannie Mae guarantees full and timely payment of all interest and principal of its pass-through securities, and Freddie Mac guarantees timely payment of interest and ultimate collection of principal of its pass-through securities, but such securities are not backed by the full faith and credit of the U.S. Government.",
"Similarly, FHLB securities are not backed by the U.S. Government. The principal and interest on Ginnie Mae pass-through securities are guaranteed by Ginnie Mae and backed by the full faith and credit of the U.S. Government. To meet its obligations under a guarantee, Ginnie Mae is authorized to borrow from the U.S. Treasury with no limitations as to amount. Sub-Adviser Allocation (Full Maturity Fund) – CNAM divides the Fund’s investment portfolio into various “sleeves,” each of which is managed by one of the Fund’s sub-advisers. From time to time, CNAM adjusts the size of these sleeves based on a variety of factors, including the sleeves’ relative performance.",
"Accordingly, the Fund’s performance is affected by CNAM’s decisions concerning how much of the Fund’s portfolio it allocates for management by each of the Fund’s sub-advisers. Municipal Obligations (California Tax Exempt Bond Fund) – U.S. state and local governments rely on taxes and, to some extent, revenues from private projects financed by municipal securities to pay interest and principal on municipal debt. Poor statewide or local economic results, changing political sentiments, legislation, policy changes or voter-based initiatives at the state or local level, erosion of the tax base or revenues of the state or one or more local governments, natural disasters, or other economic or credit problems affecting the state generally or a particular issuer may reduce tax revenues and increase the expenses of municipal issuers, making it more difficult for them to meet their obligations. For the California Tax Exempt Bond Fund, please also see the discussion entitled “California Risk Factors” below. Foreign Securities (Corporate Bond Fund, Full Maturity Fund, High Yield Bond Fund)– Foreign investments tend to be more volatile than domestic securities, and are subject to risks that are not typically associated with domestic securities.",
"For example, such investments may be adversely affected by changes in currency rates and exchange control regulations, unfavorable political and economic developments and the possibility of seizure or nationalization of companies, or the imposition of withholding taxes on income. Foreign markets tend to be more volatile than the U.S. market due to economic and political instability and regulatory conditions in some countries. Emerging Market Securities (Corporate Bond Fund) – Many of the risks with respect to foreign investments are more pronounced for investments in developing or emerging market countries, such as Russia and many of the countries of Asia, Latin America, Eastern Europe, Africa, and the Middle East. The economies of many of these countries depend heavily upon international trade and are accordingly affected by protective trade barriers and economic conditions of their trading partners.",
"The enactment by these trading partners of protectionist trade legislation could have a significant adverse effect upon the securities markets of such countries. Many of these countries may also have government exchange controls, currencies with no recognizable market value relative to the established currencies of western market economies, little or no experience in trading in securities, no financial reporting standards, a lack of a banking and securities infrastructure to handle such trading, and a legal tradition which does not recognize rights in private property.",
"Interest Rate Risk of Preferred Stock (High Yield Bond Fund) – Preferred stock is issued with a fixed par value and pays dividends based on a percentage of that par value at a fixed rate. As with fixed income securities, which also make fixed payments, the market value of preferred stock is sensitive to changes in interest rates. Preferred stock generally decreases in value if interest rates rise and increases in value if interest rates fall. Convertible Securities (High Yield Bond Fund)– Convertible securities tend to be subordinate to other debt securities issued by the same issuer. Also, issuers of convertible securities are often not as strong financially as issuers with higher credit ratings. Convertible securities generally provide yields higher than the underlying stocks, but generally lower than comparable non-convertible securities. Because of this higher yield, convertible securities generally sell at a price above their “conversion value,” which is the current market value of the stock to be received upon conversion. The difference between this conversion value and the price of convertible securities will vary over time depending on changes in the value of the underlying common stocks and interest rates. High Yield (“Junk”) Bonds (High Yield Bond Fund) – High yield bonds involve greater risks of default or downgrade and are more volatile than investment grade securities.",
"High yield bonds involve a greater risk of price declines than investment grade securities due to actual or perceived changes in an issuer’s creditworthiness. In addition, issuers of high yield bonds may be more susceptible than other issuers to economic downturns, which may result in a weakened capacity of the issuer to make principal or interest payments. High yield bonds are subject to a greater risk that the issuer may not be able to pay interest or dividends and ultimately to repay principal upon maturity. Discontinuation of these payments could have a substantial adverse effect on the market value of the security. The High Yield Bond Fund may invest in unrated securities. Lower rated securities and unrated equivalents are speculative and may be in default. Market Risk of Equity Securities (High Yield Bond Fund) – By investing directly or indirectly in stocks, the Fund may expose you to a sudden decline in a holding’s share price or an overall decline in the stock market. In addition, the value of your investment will fluctuate on a day-to-day and a cyclical basis with movements in the stock market, as well CNI CHARTER FUNDS | 60 as in response to the activities of individual companies.",
"In addition, individual companies may report poor results or be negatively affected by industry and/or economic trends and developments. The rights of a company’s common stockholders to dividends and upon liquidation of the company generally are subordinated (i.e., rank lower) to those of preferred stockholders, bondholders and other creditors of the issuer. The Fund is also subject to the risk that its principal equity market segment may underperform other equity market segments or the market as a whole. California Risk Factors (California Tax Exempt Bond Fund) – The Fund may be subject to greater risks than other tax exempt funds that are diversified across issuers located in a number of states. Because the Fund concentrates its investments in California municipal securities, it is vulnerable to economic, political or other developments that may lessen the ability of California municipal securities issuers to pay interest and principal on their securities. Poor statewide or local economic results, changing political sentiments, legislation, policy changes or voter-based initiatives at the state or local level, erosion of the tax base or revenues of the state or one or more local governments, seismic or other natural disasters, or other economic or credit problems affecting the state generally or a particular issuer may reduce tax revenues and increase the expenses of California municipal issuers, making it more difficult for them to meet their obligations.",
"Actual or perceived erosion of the creditworthiness of California municipal issuers may also reduce the value of the holdings of the Fund. California municipal securities issuers rely on taxes and, to some extent, revenues from private projects financed by municipal securities to pay interest and principal on their securities. See the SAI for more detailed information regarding California developments. In addition, although one of the goals of the Fund is to provide income exempt from federal and California state personal income taxes, some of the Fund’s income may be subject to the AMT. Non-diversification (California Tax Exempt Bond Fund) – The Fund is non-diversified, which means that it may invest in the securities of relatively few issuers. As a result, the Fund may be more susceptible to a single adverse economic or regulatory occurrence affecting one or more of these issuers, and may experience increased volatility due to its investments in those securities.",
"In addition, the Fund will be more susceptible to factors which adversely affect issuers of California obligations than a mutual fund which does not have as great a concentration in California municipal obligations. Here are the principal risks that apply to the Multi-Asset Fund: Allocation – Performance depends on the ability of the Fund’s investment manager to anticipate correctly the relative potential returns and risks of the asset classes in which the Fund directly or indirectly invests. For example, the Fund’s relative investment performance would suffer if only a small portion of its assets were allocated to stocks during a significant stock market advance, and its absolute investment performance would suffer if a major portion of its assets were allocated to stocks during a market decline. Management – The Fund’s performance depends on the portfolio managers’ skill in making appropriate investments. As a result, the Fund may underperform the fixed income or equity markets, as applicable, or similar funds. Market Risk of Equity Securities – By investing directly or indirectly in stocks, the Fund may expose you to a sudden decline in a holding’s share price or an overall decline in the stock market.",
"In addition, as with any stock fund, the value of your investment will fluctuate on a day-to-day and a cyclical basis with movements in the stock market, as well as in response to the activities of individual companies. In addition, individual companies may report poor results or be negatively affected by industry and/or economic trends and developments. The rights of a company’s common stockholders to dividends and upon liquidation of the company generally are subordinated (i.e., rank lower) to those of preferred stockholders, bondholders and other creditors of the issuer. Market Risk of Fixed Income Securities – By investing directly or indirectly in fixed income securities, the Fund may expose you to declines in a holding’s value. The prices of fixed income securities respond to economic developments, particularly interest rate changes, as well as to perceptions about the creditworthiness of individual issuers, including governments.",
"Generally, fixed income securities decrease in value if interest rates rise and increase in value if interest rates fall, with lower rated securities more volatile than higher rated securities. The duration of these securities affects risk as well, with longer term securities generally more volatile than shorter term securities. Duration is a weighted measure of the length of time required to receive the present value of future payments, both interest and principal, from a fixed income security. Rating Agencies – A credit rating is not an absolute standard of quality, but rather a general indication that reflects only the view of the originating rating agency from which an explanation of the significance of its ratings may be obtained.",
"There is no assurance that a particular rating will continue for any given period of time or that any such rating will not be revised downward or withdrawn entirely if, in the judgment of the agency establishing the rating, circumstances so warrant. A downward revision or withdrawal of such ratings may have an effect on the liquidity or market price of the securities in which the Fund invests.",
"Foreign Securities – Foreign investments tend to be more volatile than domestic securities, and are subject to risks that are not typically associated with domestic securities. For example, such investments may be adversely affected by changes in currency rates and exchange control regulations, unfavorable political and economic developments and the possibility of seizure or nationalization of companies, or the imposition of withholding taxes on income.",
"Foreign markets tend to be more volatile than the U.S. market due to economic and political instability and regulatory conditions in some countries. CNI CHARTER FUNDS | 61 Defensive Investments – The securities in which the Fund invests, and the strategies described in this Prospectus, are those that the Fund uses under normal conditions. During unusual economic or market conditions, or for temporary defensive or liquidity purposes, the Fund may invest up to 100% of its assets in cash or cash equivalents that would not ordinarily be consistent with the Fund’s investment goals. The Fund is not required or expected to take such a defensive posture. But if used, such a stance may help the Fund minimize or avoid losses during adverse market, economic or political conditions. The Fund’s underlying funds may have similar policies.",
"Underlying Funds – Because the Fund invests a significant portion of its assets in underlying funds, the risks associated with investing in the Fund are closely related to the risks associated with the securities and other investments held by the underlying funds. The ability of the Fund to achieve its investment goal depends in part upon the ability of the underlying funds to achieve their investment goals. There can be no assurance that the investment goal of any underlying fund will be achieved. Interest Rate Risk of Preferred Stock – Preferred stock is issued with a fixed par value and pays dividends based on a percentage of that par value at a fixed rate.",
"As with fixed income securities, which also make fixed payments, the market value of preferred stock is sensitive to changes in interest rates. Preferred stock generally decreases in value if interest rates rise and increases in value if interest rates fall. High Yield (“Junk”) Bonds – High yield bonds involve greater risks of default or downgrade and are more volatile than investment grade securities. High yield bonds involve a greater risk of price declines than investment grade securities due to actual or perceived changes in an issuer’s creditworthiness. In addition, issuers of high yield bonds may be more susceptible than other issuers to economic downturns, which may result in a weakened capacity of the issuer to make principal or interest payments. High yield bonds are subject to a greater risk that the issuer may not be able to pay interest or dividends and ultimately to repay principal upon maturity. Discontinuation of these payments could have a substantial adverse effect on the market value of the security. There is no lower limit on the ratings of high yield securities that may be purchased or held by the Fund or an underlying fund. In addition, the Fund may invest directly or indirectly in unrated securities. Lower rated securities and unrated equivalents are speculative and may be in default.",
"Municipal Obligations – U.S. state and local governments rely on taxes and, to some extent, revenues from private projects financed by municipal securities to pay interest and principal on municipal debt. Poor statewide or local economic results, changing political sentiments, legislation, policy changes or voter-based initiatives at the state or local level, erosion of the tax base or revenues of the state or one or more local governments, natural disasters, or other economic or credit problems affecting the state generally or a particular issuer may reduce tax revenues and increase the expenses of municipal issuers, making it more difficult for them to meet their obligations.",
"Foreign government obligations are also subject to similar risks that the issuer of the obligations may be unable or unwilling to repay principal or interest when due. Emerging Market Securities – The Fund’s direct or indirect investments in foreign securities may include investments in emerging markets. Many of the risks with respect to foreign investments are more pronounced for investments in developing or emerging market countries, such as Russia and many of the countries of Asia, Latin America, Eastern Europe, Africa, and the Middle East. The economies of many of these countries depend heavily upon international trade and are accordingly affected by protective trade barriers and economic conditions of their trading partners. The enactment by these trading partners of protectionist trade legislation could have a significant adverse effect upon the securities markets of such countries. Many of these countries may also have government exchange controls, currencies with no recognizable market value relative to the established currencies of western market economies, little or no experience in trading in securities, no financial reporting standards, a lack of a banking and securities infrastructure to handle such trading, and a legal tradition which does not recognize rights in private property. Here are the principal risks that apply to the Equity Funds: Market Risk of Equity Securities (Equity Funds) – By investing directly or indirectly in stocks, a Fund may expose you to a sudden decline in a holding’s share price or an overall decline in the stock market.",
"In addition, as with any stock fund, the value of your investment will fluctuate on a day-to-day and a cyclical basis with movements in the stock market, as well as in response to the activities of individual companies. In addition, individual companies may report poor results or be negatively affected by industry and/or economic trends and developments. The rights of a company’s common stockholders to dividends and upon liquidation of the company generally are subordinated (i.e., rank lower) to those of preferred stockholders, bondholders and other creditors of the issuer. Management (Equity Funds) – A Fund’s performance depends on the portfolio managers’ skill in making appropriate investments.",
"As a result, a Fund may underperform the equity market or similar funds. Foreign Investments (American Depositary Receipts) (Large Cap Value Fund, Large Cap Growth Fund, Diversified Equity Fund and Socially Responsible Equity Fund) – Foreign investments tend to be more volatile than domestic securities, and are subject to risks that are not typically associated with domestic securities. For example, such investments may be adversely affected by unfavorable political and economic developments and the possibility of seizure or nationalization of companies, or the imposition of withholding taxes on income. Foreign markets tend to be more volatile than the U.S. market due to economic and political instability and regulatory conditions in some countries. The Funds invest in U.S. dollar denominated American Depositary Receipts of foreign companies (“ADRs”) which are sponsored by the foreign CNI CHARTER FUNDS | 62 issuers. ADRs are receipts typically issued by a U.S. bank or trust company evidencing its ownership of the underlying foreign securities, and are subject to the risks of changes in currency or exchange rates (which affect the value of the issuer even though ADRs are denominated in U.S. dollars) and the risks of investment in foreign securities.",
"Defensive Investments (Equity Funds) – The securities in which each Fund invests, and the strategies described in this Prospectus, are those that a Fund uses under normal conditions. During unusual economic or market conditions, or for temporary defensive or liquidity purposes, a Fund may invest up to 100% of its assets in cash or cash equivalents that would not ordinarily be consistent with the Fund’s investment goals. No Fund is required or expected to take such a defensive posture. But if used, such a stance may help a Fund minimize or avoid losses during adverse market, economic or political conditions. Investment Style (U.S. Core Equity Fund, Large Cap Value Fund, Large Cap Growth Fund and Socially Responsible Equity Fund) – A core equity style is primarily used to select investments for the U.S.",
"Core Equity Fund, a growth style is primarily used to select investments for the Large Cap Growth Fund and a value style is primarily used to select investments for the Large Cap Value Fund and Socially Responsible Equity Fund. These styles may fall out of favor, may underperform other styles and may increase the volatility of a Fund’s share price. Medium Capitalization (Mid-Cap) Companies (U.S. Core Equity Fund, Diversified Equity Fund, Socially Responsible Equity Fund) – The Funds invest from time to time in mid-cap companies. Investments in mid-cap companies may involve greater risks than investments in larger, more established companies, such as limited product lines, markets and financial or managerial resources.",
"In addition, the securities of mid-cap companies may have few market makers, wider spreads between their quoted bid and asked prices, and lower trading volume, resulting in greater price volatility and less liquidity than the securities of larger capitalized companies. Sub-Adviser Allocation (Diversified Equity Fund) – CNAM divides the Fund’s investment portfolio into various “sleeves,” each of which is managed by one of the Fund’s sub-advisers. From time to time, CNAM adjusts the size of these sleeves based on a variety of factors, including the sleeves’ relative performance. Accordingly, the Fund’s performance is affected by CNAM’s decisions concerning how much of the Fund’s portfolio it allocates for management by each of the Fund’s sub-advisers. NON-PRINCIPAL INVESTMENT STRATEGIES AND RELATED RISKS OF THE FUNDS The following risks of the Funds referred to below are related to non-principal investment strategies of those Funds. These risks are in addition to the principal risks of the Funds discussed above. Sector Concentration (All Funds) – From time to time a Fund may invest a significant portion of its total assets in various industries in one or more sectors of the economy.",
"To the extent a Fund’s assets are invested in a sector of the economy, the Fund will be subject to market and economic factors affecting companies in that sector. Portfolio Turnover (All Funds) – Each Fund will sell a security when its portfolio managers believe it is appropriate to do so, regardless of how long a Fund has owned that security. Buying and selling securities generally involves some expense to a Fund, such as commissions paid to brokers and other transaction costs. By selling a security, a Fund may realize taxable capital gains that it will subsequently distribute to shareholders. Generally speaking, the higher a Fund’s annual portfolio turnover, the greater its brokerage costs and the greater the likelihood that it will realize taxable capital gains. On the other hand, a Fund may from time to time realize commission costs in order to engage in tax minimization strategies if the result is a greater enhancement to the value of a Fund share than the transaction cost to achieve it. Increased brokerage costs may adversely affect a Fund’s performance.",
"Also, unless you are a tax-exempt investor or you purchase shares through a tax-deferred account, the distribution of capital gains may affect your after-tax return. The Multi-Asset Fund’s underlying funds may have similar policies. Annual portfolio turnover of 100% or more is considered high. Municipal Obligations (Government Money Fund, Prime Money Fund) – U.S. state and local governments rely on taxes and, to some extent, revenues from private projects financed by municipal securities to pay interest and principal on municipal debt. Poor statewide or local economic results, changing political sentiments, legislation, policy changes or voter-based initiatives at the state or local level, erosion of the tax base or revenues of the state or one or more local governments, natural disasters, or other economic or credit problems affecting the state generally or a particular issuer may reduce tax revenues and increase the expenses of municipal issuers, making it more difficult for them to meet their obligations.",
"Foreign government obligations are also subject to similar risks that the issuer of the obligations may be unable or unwilling to repay principal or interest when due. Tobacco-Free Investments (Limited Maturity Fund, Full Maturity Fund, U.S. Core Equity Fund, Diversified Equity Fund, Socially Responsible Equity Fund) – The Funds follow a guideline of restricting investment in securities of tobacco-related companies through the research of MSCI ESG Research. Commodities (Multi-Asset Fund) – The Fund may invest a portion of its assets in exchange-traded notes or exchange-traded funds that are linked to commodities or commodities indexes. The Fund’s direct or indirect exposure to the commodities markets may subject the Fund to greater volatility than investments in traditional securities. The value of commodity-linked instruments may be affected by changes in overall market movements, commodity index volatility, changes in interest rates, or risks affecting a particular industry CNI CHARTER FUNDS | 63 or commodity, such as drought, floods, weather, livestock disease, embargoes, tariffs and international economic, political and regulatory developments.",
"Foreign Currencies (Multi-Asset Fund) – The Fund’s direct or indirect investments in securities denominated in foreign currencies are subject to currency risk, which means that the value of those securities can change significantly when foreign currencies strengthen or weaken relative to the U.S. Dollar. The Fund may invest in foreign currencies to hedge against the risks of variation in currency exchange rates relative to the U.S. Dollar. Such strategies, however, involve certain transaction costs and investment risks, including dependence upon the ability of CNAM to predict movements in exchange rates.",
"Some countries in which the Fund may directly or indirectly invest may have fixed or managed currencies that are not freely convertible at market rates into the U.S. Dollar. Certain currencies may not be internationally traded. Many countries in which the Fund may invest have experienced substantial, and in some periods extremely high, rates of inflation for many years. Inflation and rapid fluctuation in inflation rates may have negative effects on certain economies and securities markets. Moreover, the economies of some countries may differ favorably or unfavorably from the U.S. economy in such respects as the rate of growth of gross domestic product, rate of inflation, capital reinvestment, resource self-sufficiency and balance of payments.",
"Hedge Funds (Multi-Asset Fund) – The Fund may invest up to 10% of its net assets in private investment funds (“Hedge Funds”) managed by various investment managers (“Managers”) that use a variety of investment strategies, including investment in other Hedge Funds. By investing in Hedge Funds indirectly through the Fund, an investor indirectly bears a portion of the asset-based fees, incentive-based allocations and other expenses borne by the Fund as an investor in Hedge Funds, in addition to the operating expenses of the Fund. The incentive-based allocations assessed by Managers and borne directly by the Fund may create an incentive for Managers to make investments that are riskier or more speculative than those that might have been made in the absence of incentive-based allocations. Because the Managers value the Hedge Funds they manage, which directly affects the amount of incentive-based allocations they receive, Managers face a conflict of interest in performing such valuations.",
"Various risks are associated with the securities and other instruments in which Hedge Funds may invest, their investment strategies and the specialized investment techniques they may use. Hedge Funds are not registered as investment companies under the Investment Company Act of 1940, as amended (the “Investment Company Act”). Therefore, the Fund, as an investor in Hedge Funds, does not have the benefit of the protections afforded by the Investment Company Act to investors in registered investment companies, such as mutual funds. To the extent the Fund invests in a Hedge Fund that allows its investors to effect withdrawals only at certain specified times, the Fund may not be able to withdraw its investment in such Hedge Fund promptly after it has made a decision to do so, which may result in a loss and adversely affect the Fund’s investment return. To the extent the Fund invests in a Hedge Fund that is permitted to distribute securities in kind to investors making withdrawals, upon the Fund’s withdrawal of all or a portion of its interest in such Hedge Fund the Multi-Asset Fund may receive securities that are illiquid or difficult to value.",
"The Fund considers its investments in Hedge Funds to be illiquid. Inflation-Indexed Bonds (Multi-Asset Fund) – The Fund may invest in inflation-indexed bonds. Inflation-indexed bonds may react differently than other fixed income securities to changes in interest rates. Because interest rates on inflation-indexed bonds are adjusted for inflation, the values of these bonds are not materially affected by inflation expectations. Therefore, the values of inflation-indexed bonds are anticipated to change in response to changes in “real” interest rates, which represent nominal (stated) interest rates reduced by the expected impact of inflation. Generally, the value of an inflation-protected security falls when real interest rates rise and rises when real interest rates fall. Real Estate-Related Investments (Multi-Asset Fund) – Because the Fund may invest a portion of its assets directly or indirectly in securities of companies principally engaged in the real estate industry and other real estate related investments, the Fund’s performance may be linked to the performance of the real estate markets.",
"Property values may fall due to increasing vacancies or declining rents resulting from economic, legal, cultural or technological developments. Investments in real estate companies may also subject the Fund to the risks associated with the direct ownership of real estate. Real estate companies are subject to legislative or regulatory changes, adverse market conditions and increased competition. The general performance of the real estate industry has historically been cyclical and particularly sensitive to economic downturns. Changes in prevailing real estate values and rental income, interest rates and changing demographics may affect the value of securities of issuers in the real estate industry. Repurchase Agreements (Multi-Asset Fund) – The Fund may invest in repurchase agreements. Repurchase agreements are agreements under which securities are acquired from a securities dealer or bank subject to resale on an agreed upon date and at an agreed upon price which includes principal and interest.",
"Under all repurchase agreements entered into by the Fund, the Fund’s custodian or its agent must take possession of the underlying collateral. However, if the seller defaults, the Fund could realize a loss on the sale of the underlying security to the extent the proceeds of the sale are less than the resale price. In addition, even though the U.S. Bankruptcy Code provides protection for most repurchase agreements, if the seller should be involved in bankruptcy or insolvency proceedings, the Fund may incur delays and costs in selling the security and may suffer a loss of principal and interest if the Fund is treated as an unsecured creditor.",
"The Fund may also invest in repurchase agreements collateralized by securities issued by foreign issuers, which are also subject to the risks associated with foreign securities discussed above under “Principal Risks of the Funds.” CNI CHARTER FUNDS | 64 management of the funds INVESTMENT MANAGER CNAM provides the Funds with investment management services. CNAM’s address is City National Center, 400 North Roxbury Drive, Beverly Hills, California 90210. CNAM is a wholly owned subsidiary of City National Bank (“CNB”), a federally chartered commercial bank founded in the early 1950s, with approximately $6.0 billion in assets under management as of December 31, 2011. CNB is itself a wholly owned subsidiary of City National Corporation, a New York Stock Exchange listed company. CNB has provided trust and fiduciary services, including investment management services, to individuals and businesses for over 50 years. CNB currently provides investment management services to individuals, pension and profit sharing plans, endowments and foundations.",
"As of December 31, 2011, CNB and its affiliates had approximately $54.5 billion in assets under administration, which includes $31.3 billion in assets under management. Subject to the oversight of the Board of Trustees, CNAM has complete discretion as to the purchase and sale of investments for the Funds it directly manages, consistent with each such Fund’s investment objective, policies and restrictions. CNAM is responsible for the evaluation, selection and monitoring of the sub-advisers of the Full Maturity Fund, High Yield Bond Fund, Diversified Equity Fund and Socially Responsible Equity Fund (collectively, the “Sub-advised Funds”). CNAM selects sub-advisers based on a variety of factors, including investment style, performance record and the characteristics of each sub-adviser’s typical investments. The assets of the Full Maturity Fund and the Diversified Equity Fund are divided into various sleeves and CNAM is responsible for allocating the assets among the sub-advisers in accordance with their specific investment styles.",
"The sub-advisers manage the Sub-advised Funds’ investments and are responsible for making all investment decisions and placing orders to purchase and sell securities for these Funds. Subject to the oversight of CNAM and the Board of Trustees, the sub-advisers have complete discretion as to the purchase and sale of investments for these Funds consistent with each Fund’s investment objective, policies and restrictions. CNAM received a fee from each Fund for its investment management services at the annual rates set forth in the table below for the fiscal year ended September 30, 2011. Each annual rate is stated as a percentage of the average annual net assets of the Fund. These fees reflect fee waivers or reimbursements of fees waived by CNAM in prior years.",
"The sub-advisers are compensated out of the investment management fees paid to CNAM. Government Money Market Fund 0.05% Prime Money Market Fund 0.14% California Tax Exempt Money Market Fund 0.08% Limited Maturity Fund 0.50% Government Bond Fund 0.36% Corporate Bond Fund 0.40% California Tax Exempt Bond Fund 0.16% Full Maturity Fund 0.50% High Yield Bond Fund 0.66% Multi-Asset Fund 0.50% Diversified Equity Fund 0.75% Large Cap Value Equity Fund 0.62% Large Cap Growth Equity Fund 0.65% Socially Responsible Equity Fund 0.75% CNAM has voluntarily agreed to limit its fees or reimburse expenses to the extent necessary to keep total annual fund operating expenses (excluding taxes, interest, brokerage commissions, acquired fund fees and expenses, and extraordinary expenses) at or below the levels set forth in the table below.",
"Any fee reductions or reimbursements may be repaid to CNAM within three years after they occur if such repayments can be achieved within a Fund’s expense limit in effect at the time such expenses were incurred and if certain other conditions are satisfied. CNI CHARTER FUNDS | 65 Institutional Class Servicing Class Class N Class S Government Money Market Fund N/A 0.63% 0.85% 1.05% Prime Money Market Fund 0.38% 0.63% 0.85% 1.05% California Tax Exempt Money Market Fund N/A 0.55% 0.78% 0.98% Limited Maturity Fund* 1.00% N/A 1.25% N/A Government Bond Fund 0.55% 0.80% 1.05% N/A Corporate Bond Fund N/A 0.80% 1.05% N/A California Tax Exempt Bond Fund N/A 0.60% 0.85% N/A Full Maturity Fund* 1.00% N/A 1.25% N/A High Yield Bond Fund 0.85% 1.10% 1.40% N/A Multi-Asset Fund 1.25% 1.50% 1.75% N/A U.S.",
"Core Equity Fund 0.70% 0.95% 1.20% N/A Diversified Equity Fund* 1.25% N/A 1.50% N/A Large Cap Value Equity Fund 0.75% 1.00% 1.25% N/A Large Cap Growth Equity Fund N/A 1.05% 1.30% N/A Socially Responsible Equity Fund* 1.25% N/A 1.50% N/A * With respect to the Limited Maturity Fund, Full Maturity Fund, Diversified Equity Fund and Socially Responsible Equity Fund, CNAM has contractually agreed to limit its fees and reimburse expenses to the extent necessary to keep total annual fund operating expenses (excluding taxes, interest, brokerage commissions, acquired fund fees and expenses, and extraordinary expenses) at or below the levels set forth above until January 28, 2013. CNAM has determined that it will continue to limit its fees and reimburse expenses after January 28, 2013, but that it will do so on a voluntary, rather than contractual, basis. A discussion regarding the basis for the Board of Trustees’ approval of the Funds’ investment advisory agreement with CNAM is available in the Funds’ Annual Report for the fiscal year ended September 30, 2011. SUB-ADVISERS AND PORTFOLIO MANAGERS Following is certain information about the individuals employed by or associated with CNAM or the relevant sub-adviser who are primarily responsible for the day-to-day management of each Fund’s investment portfolio (the “Portfolio Managers”), if any, and in the case of the Sub-advised Funds, certain information about the sub-advisers.",
"The SAI contains additional information about the sub-advisers and the Portfolio Managers, including the Portfolio Managers’ compensation, other accounts managed by the Portfolio Managers, and the Portfolio Managers’ ownership of securities in the Funds. MONEY MARKET FUNDS All investment decisions for the Money Market Funds are made by CNAM’s Fixed Income Team of investment professionals, all of whom take an active part in the decision-making process. LIMITED MATURITY FUND Paul C. Single and William C. Miller, Jr. serve as portfolio managers for the Limited Maturity Fund. Paul C. Single is Senior Vice President and Director – Fixed Income Investments of CNAM. Mr. Single has over 26 years of institutional investment management experience and specializes in investment grade taxable fixed income securities. Prior to joining CNB in 2002, Mr. Single was a principal and portfolio manager of Wells Capital Management. William C. Miller, Jr. is Senior Vice President and Director – Fixed Income Investments of CNAM. Mr. Miller has over 13 years of investment management experience and specializes in the research, analysis, and selection of fixed income securities. Prior to joining CNB in 2001, Mr. Miller was an Investment Officer with Fiduciary Trust International of California and from 1995 to 1998, was an Associate with Pacific Investment Management Company. Mr. Miller, a Chartered Financial Analyst, holds a bachelor’s degree with a concentration in Finance from California State University, Fullerton.",
"GOVERNMENT BOND FUND Paul C. Single and Robert Harder serve as portfolio managers for the Government Bond Fund. Information about Mr. Single’s background and experience is provided above under “Limited Maturity Fund.” Robert Harder is Senior Vice President and Senior Portfolio Manager of CNAM and specializes in the research, analysis, selection and trading of fixed income securities. Mr. Harder has over 15 years of investment management experience. Prior to joining CNB in 2005, he served as a portfolio manager and relationship manager at Wells Capital Management, the registered investment adviser group at Wells Fargo Bank. Prior to joining Wells Fargo, Mr. Harder served as supervisor of investment performance for Wilshire Associates Incorporated. Mr.",
"Harder holds a bachelor’s degree in History from UCLA. CNI CHARTER FUNDS | 66 CORPORATE BOND FUND William C. Miller and Robert Harder serve as portfolio managers for the Corporate Bond Fund. Information about Mr. Miller’s background and experience is provided above under “Limited Maturity Fund.” Information about Mr. Harder’s background and experience is provided above under “Government Bond Fund.” CALIFORNIA TAX EXEMPT BOND FUND Gregory Kaplan and Kathleen Meyer serve as portfolio managers for the California Tax Exempt Bond Fund. Gregory Kaplan serves as Senior Vice President and Director – Fixed Income Investments of CNAM. Mr. Kaplan has over 20 years of experience in the financial industry. Prior to joining CNAM, he served as vice president and portfolio manager for Robertson Stephens Asset Management. Mr. Kaplan is a Chartered Financial Analyst and holds an MBA in Finance from The Pamplin School of Business at Virginia Tech, and a BS in Finance from Rutgers University.",
"Kathleen Meyer is Senior Vice President and Senior Portfolio Manager of CNAM, where she focuses on research, analysis, selection, and trading of tax-exempt fixed income securities. Ms. Meyer has over 25 years of experience in the investment industry. Prior to joining CNB in 2008, she served as senior vice president and senior portfolio manager at U.S. Trust. She has also served as vice president and tax-exempt high-net-worth specialist at Merrill Lynch, vice president and portfolio manager at First Interstate Bank, and portfolio manager at E. F. Hutton. Ms. Meyer holds a bachelor’s degree from Arizona State University. FULL MATURITY FUND Baird Advisors (“Baird”).",
"Baird, an institutional fixed income department within Robert W. Baird & Co., Inc., currently serves as sub-adviser to a portion of the Full Maturity Fund. Baird is located at 777 East Wisconsin Avenue, Suite 2500, Milwaukee, Wisconsin 53202. Baird also provides management services to pension plans, non-profit organizations and individuals. Daniel A. Tranchita and Gary A. Elfe have primary responsibility for managing Baird’s portion of the Full Maturity Fund. Mr. Tranchita has been a Managing Director and Senior Portfolio Manager at Baird since 2000, and previously served as Senior Vice President and Senior Portfolio Manager of Firstar Investment Research & Management Company, LLC (“Firstar”) from 1989 to 2000. Mr. Elfe has been a Managing Director and Senior Portfolio Manager at Baird since 2000, and previously served as Senior Vice President and Senior Portfolio Manager at Firstar from 1978 to 2000.",
"As Baird utilizes a team-oriented investment approach, Mary Ellen Stanek (Chief Investment Officer), Charlie Groeschell, Warren Pierson, Jay Schwister, Sharon deGuzman and Jeff Schrom are also involved in portfolio analysis and in security transactions for Baird’s portion of the Full Maturity Fund. Boyd Watterson Asset Management, LLC (“Boyd Watterson”). Boyd Watterson currently serves as sub-adviser to a portion of the Full Maturity Fund. Boyd Watterson is located at 1801 East 9th Street, Suite 1400, Cleveland, Ohio 44114. It was organized in 1928 and provides equity and fixed income investment management services to individuals and institutions, and as of December 31, 2010 had $4.6 billion in total firm assets under management. Day-to-day management of the portion of the Full Maturity Fund managed by Boyd Watterson is the responsibility of its Fixed Income Group, which establishes Boyd Watterson’s fixed income investment strategy. Justin C. Waggoner (Vice President) has primary responsibility for managing Boyd Watterson’s portion of the Fund, and has been employed by Boyd Watterson since 2007. Discussions regarding the bases for the Board of Trustees’ approvals of the sub-advisory agreements with Baird and Boyd Watterson are available in the Funds’ Annual Report for the fiscal year ended September 30, 2011.",
"HIGH YIELD BOND FUND Guggenheim Partners Investment Management, LLC (“Guggenheim”). Guggenheim currently serves as the High Yield Bond Fund’s sub-adviser, providing investment advisory and portfolio management services pursuant to a sub-advisory agreement with CNAM. Guggenheim’s headquarters are located at 100 Wilshire Boulevard, Santa Monica, California 90401, but its High Yield investment team is primarily located at 135 East 57th Street, 6th Floor, New York, New York 10022. Guggenheim provides investment advisory services to institutional clients including public pensions, corporate pensions, foundations, insurance companies and family offices, and as of June 30, 2012, managed or sub-managed $8.3 billion in assets. Guggenheim is an indirect subsidiary of Guggenheim Partners, LLC, a global diversified financial services firm which offers capital markets services, portfolio and risk management expertise, wealth management, investment management and family office services.",
"The High Yield Bond Fund is managed by Jeffrey Abrams, a Senior Managing Director and Portfolio Manager at Guggenheim. Mr. Abrams is a portfolio manager for Guggenheim’s Corporate Credit Strategies and is a member of the Investment Committee. He has been with Guggenheim Partners since May 2002. During his career at the firm, Mr. Abrams has been a senior analyst covering the food and beverage sectors, then subsequently led an industry team focused on investing across the leveraged credit markets in a number of industries, including financial institutions, retail, food and beverage, and consumer products. Prior to joining Guggenheim, Mr. Abrams worked in the Leveraged Finance CNI CHARTER FUNDS | 67 Group at Bear Stearns, where he focused on various leveraged debt transactions across multiple industries.",
"Mr. Abrams received his BBA in Finance and a B.A. in History from Emory University. Kevin Gundersen, CFA, Managing Director, is the secondary portfolio manager for the High Yield Bond Fund. Mr. Gundersen is a portfolio manager for Guggenheim’s Corporate Credit Strategies and is a member of the Investment Committee. He has been with Guggenheim Partners since December 2002. During his career at the firm, Mr. Gundersen has been an analyst covering a variety of sectors, and subsequently led an industry team that focused on investing across the capital structure in the media, telecommunications and technology sectors.",
"Prior to joining Guggenheim, Mr. Gundersen worked at GeoTrust, a technology company focused on eCommerce security solutions. Mr. Gundersen received his A.B. from Harvard University. Scott Minerd, Chief Investment Officer, and Patrick Mitchell, a Senior Managing Director at Guggenheim, are responsible for the day-to day overview and strategic direction of the High Yield Bond Fund. Mr. Minerd joined Guggenheim Capital, LLC in 1998. Mr. Minerd is Chief Investment Officer of Guggenheim and a Managing Partner of Guggenheim Partners, LLC.",
"He was formerly a Managing Director with Credit Suisse First Boston in charge of trading and risk management for the Fixed Income Credit Trading Group. Previously, Mr. Minerd was Morgan Stanley’s London based European Capital Markets Products Trading and Risk Manager. Mr. Minerd earned a B.S. in Economics from the Wharton School, University of Pennsylvania, Philadelphia, and has completed graduate work at the University of Chicago Graduate School of Business and the Wharton School, University of Pennsylvania. Mr. Mitchell joined Guggenheim in 2009, with more than 30 years of experience in portfolio management, commercial banking, research and investments. Previously, Mr. Mitchell was a Managing Director at Maple Stone Capital Management (2007 to 2008) and Metropolitan West Financial, LLC (2000 to 2006). During the 1990s, Mr. Mitchell managed portfolios for the California State Teachers’ Retirement System (the last four years as the Chief Investment Officer).",
"Mr. Mitchell received an MBA from Idaho State University and a Bachelor of Science in Business from the University of Idaho. A discussion regarding the basis of the Board of Trustees’ approval of CNAM’s sub-advisory agreement with Guggenheim is available in the Funds’ Annual Report for the fiscal year ended September 30, 2011. MULTI-ASSET FUND Bruce Simon, William C. Miller and Otis “Tres” Heald serve as portfolio managers for the Multi-Asset Fund. Bruce Simon is Chief Investment Officer of CNAM.",
"Mr. Simon has over 25 years of experience in the investment industry. Prior to joining CNB in 2011, Mr. Simon served as Chief Investment Officer and a Managing Director at Ballentine Partners, an investment management firm, for three years. Prior to that, from 2002 to 2006, Mr. Simon served as Chief Investment Officer and a Managing Director at Morgan Stanley’s private wealth management division. Mr. Simon, a Chartered Financial Analyst, holds an MBA in Applied Economics from George Washington University and a bachelor’s degree from Penn State University. Information about Mr. Miller’s background and experience is provided above under “Limited Maturity Fund.” Otis “Tres” Heald is Senior Vice President and Director – Equity Investments of CNAM. Mr. Heald has over 20 years of experience and focuses on fundamental equity research. Prior to joining CNB in 2002, Mr. Heald served as SVP and market investment executive for Bank of America Capital Management, and was president of a mutual fund company. Mr. Heald, a Chartered Financial Analyst, holds a master’s degree in business administration from the University of Southern California. U.S.",
"CORE EQUITY FUND Otis “Tres” Heald and Thomas A. Galvin serve as portfolio managers for the U.S. Core Equity Fund. Information about Mr. Heald’s background and experience is provided above under “Multi-Asset Fund.” Thomas A. Galvin is Senior Vice President of CNAM and Director of U.S. Equity Research of Rochdale Investment Management (“Rochdale”), a wholly-owned subsidiary of CNB. Mr. Galvin has 29 years of equity investment experience. Prior to joining CNAM and Rochdale in 2012, Mr. Galvin served as Managing Partner at Galvin Asset Management, which he founded in 2007. Prior to founding Galvin Asset Management, he was a Senior Portfolio Manager and Director of Research at UBS Global Asset Management, from 2006 to 2007. From 1991 to 2006, Mr. Galvin was with Forstmann – Leff Associates, where he held a number of positions including Chief Investment Officer and Director of Research. Mr. Galvin earned an M.B.A. in Finance and Investments from Fordham University and a B.A. in Economics with a minor in Accounting from Queens College. DIVERSIFIED EQUITY FUND CNAM.",
"CNAM manages a portion of the Diversified Equity Fund. Thomas Kuo and Dimitry Kirtsman are the portfolio managers for CNAM's portion of the Fund. Thomas Kuo is a Vice President and Portfolio Manager for CNAM. Mr. Kuo has over 10 years of experience in the investment management industry, with most of his time spent in the field of equity research, analysis and portfolio management. Mr. Kuo joined CNB in 2000. Mr. Kuo, a Chartered Financial Analyst, holds a bachelor’s degree in business administration, with an emphasis in Finance, from California State Polytechnic University in Pomona. CNI CHARTER FUNDS | 68 Dimitry Kirtsman is a Vice President and Quantitative Research Analyst for CNAM.",
"Mr. Kirtsman has over nine years of experience in the areas of investment and economic research. Prior to joining CNB in 2008, Mr. Kirtsman served as an Economist for Countrywide Financial, where he specialized in economic research and econometric modeling. Mr. Kirtsman earned a Bachelor’s degree in Business Economics from the University of California, Santa Barbara and a Master’s Degree in Economics from the University of Texas, Austin. SKBA Capital Management, LLC (“SKBA”). SKBA serves as sub-adviser to a portion of the Diversified Equity Fund. SKBA is located at 44 Montgomery Street, Suite 3500, San Francisco, California 94104. SKBA provides investment advisory services to a variety of clients. All SKBA client accounts are managed by an investment strategy team led by Andrew W. Bischel (CEO and Chief Investment Officer).",
"The strategy team for SKBA’s portion of the Diversified Equity Fund meets at least weekly to discuss and decide which securities should be added to or sold from the portfolio. The members of the strategy team are Mr. Bischel, Kenneth J. Kaplan (Chairman), Josh J. Rothé (President and Director of Equity Research) and Shelley H. Mann (Senior Vice President and Director of Trading). Each of these individuals has been with SKBA for at least the last five years. Turner Investments, L.P. (“Turner”). Turner serves as sub-adviser to a portion of the Diversified Equity Fund. Turner is located at 1205 Westlakes Dr., Suite 100, Berwyn, Pennsylvania 19312, and is employee-owned.",
"Turner has been providing investment advisory services to clients such as pension funds, foundations, public companies, other asset managers, financial advisors, and individuals since 1990. Day-to-day management of Turner’s portion of the Diversified Equity Fund is the responsibility of Turner’s Growth Equity Investment Team, which is led by Robert Turner, CFA. Mr. Turner is Chairman and Chief Investment Officer of Turner and co-founded the firm in 1990. He was previously Senior Investment Manager with Meridian Investment Company, and has 30 years of investment experience. Turner takes a team approach to investment management. Mr. Turner is the lead portfolio manager for the large cap growth equity strategy and is supported by a team of 24 investment professionals who provide fundamental, industry-focused research for all of the firm’s growth equity strategies. As the lead portfolio manager, Mr. Turner is the final decision maker for all purchase and sale decisions. Discussions regarding the bases for the Board of Trustees’ approvals of the sub-advisory agreements with SKBA and Turner are available in the Funds’ Annual Report for the fiscal period ended September 30, 2011.",
"Previous Sub-adviser, AMBS Investment Counsel, LLC (“AMBS”) served as a sub-adviser to the Diversified Equity Fund until September 15, 2011. Upon its termination, the assets of the Fund being managed by AMBS were allocated among SKBA and Turner for management. LARGE CAP VALUE FUND Steve Decker and Max Sasso serve as portfolio managers for the Large Cap Value Fund. Steve Decker is Senior Vice President and Senior Portfolio Manager of CNAM.",
"Mr. Decker has almost 15 years of experience in portfolio management and equity analysis. Prior to joining CNB in 2001, Mr. Decker was founding partner and portfolio manager at Palladian Capital, and senior equity analyst for the Farmers Insurance Group’s in-house investment division. Mr. Decker, a Chartered Financial Analyst, holds a master’s degree in business administration from the Marshall School of Business at the University of Southern California, and a bachelor’s degree from the University of Utah. Max Sasso is Vice President and Senior Portfolio Manager of CNAM, where he specializes in the research, analysis, and selection of securities for the firm’s domestic equity strategies. Mr. Sasso has over 14 years of experience in the investment management industry. He joined CNB in 1997. Mr. Sasso holds a master’s degree in business administration from Columbia University Graduate School of Business in New York and a bachelor’s degree from UCLA.",
"LARGE CAP GROWTH FUND Otis “Tres” Heald and Joseph Querriera serve as portfolio managers for the Large Cap Growth Fund. Information about Mr. Heald’s background and experience is provided above under “Multi-Asset Fund.” Joseph Querriera is Vice President and Senior Portfolio Manager of CNAM, where he focuses on the non-bank financial sector. Mr. Querriera has over ten years of experience in investment analysis and portfolio management. Prior to joining CNB in 2004, he served as second vice president and portfolio manager at Northern Trust. Mr. Querriera, a Chartered Financial Analyst, holds a master’s degree in business administration from the University of Southern California and a bachelor’s degree in business administration, with an emphasis in Finance, from California State Polytechnic University in Pomona. SOCIALLY RESPONSIBLE EQUITY FUND SKBA.SKBA serves as sub-adviser to the Socially Responsible Equity Fund. Information about SKBA is included above under “Diversified Equity Fund.” The strategy team for the Socially Responsible Equity Fund includes Andrew W. Bischel, Kenneth J. Kaplan, Josh J. Rothé and Shelley H. Mann.",
"Information about these individuals is included above under “Diversified Equity Fund.” A discussion regarding the basis for the Board of Trustees’ approval of CNAM’s sub-advisory agreement with SKBA is available in the Funds’ Annual Report for the fiscal year ended September 30, 2011. CNI CHARTER FUNDS | 69 ALL FUNDS Under current law, the appointment of a new sub-adviser generally would require the approval of a Fund’s shareholders. However, the Trust has received an exemptive order from the SEC which permits CNAM, subject to certain conditions required by the SEC, to retain an unaffiliated sub-adviser, or terminate or replace a sub-adviser to any of the Funds, with the approval of the Board of Trustees but without obtaining shareholder approval. Shareholders of a Fund will be notified of any change in any such sub-advisers and be provided with information regarding any new sub-adviser. This exemption does not apply to any sub-adviser affiliated with CNAM.",
"An order from the SEC granting this exemption benefits shareholders by enabling the Funds to operate in a less costly and more efficient manner. CNAM has the ultimate responsibility to monitor any sub-advisers and recommend their hiring, termination and replacement. CNAM may also terminate any sub-adviser and assume direct responsibility for the portfolio management of that Fund with the approval of the Board of Trustees, but without obtaining shareholder approval. ADMINISTRATOR SEI Investments Global Funds Services (the “Administrator”) serves as administrator and fund accountant to the Funds. The Administrator is located at One Freedom Valley Drive, Oaks, Pennsylvania 19456. DISTRIBUTOR SEI Investments Distribution Co. (the “Distributor”) serves as the Funds’ distributor pursuant to a distribution agreement with the Funds.",
"The Distributor is located at One Freedom Valley Drive, Oaks, Pennsylvania 19456 and can be reached at 1-888-889-0799. DISTRIBUTION OF FUND SHARES The Funds have adopted plans for their Class N and Class S shares, where applicable, under Rule 12b-1 of the Investment Company Act. The plans allow the Money Market Funds to pay to the Distributor distribution fees of 0.50% of average daily net assets for the sale and distribution of their Class N and Class S shares, and all other Funds to pay to the Distributor distribution fees of 0.25% of average daily net assets for the sale and distribution of their Class N shares (0.30% for Class N shares of the High Yield Bond Fund). The Distributor pays some or all of such distribution fees to broker-dealers and other financial intermediaries (primarily CNB and its affiliates) as compensation for providing distribution-related services.",
"Because the distribution fees are paid out of the Funds’ assets on an ongoing basis, over time these fees will increase the cost of your investment and may cost you more than paying other types of sales charges. The Distributor may, from time to time in its sole discretion, institute one or more promotional incentive programs for dealers, which will be paid for by the Distributor from any distribution fees it receives or from any other source available to it. Under any such program, the Distributor may provide cash or non-cash compensation as recognition for past sales or encouragement for future sales that may include the following: merchandise, travel expenses, prizes, meals, and lodgings, and gifts that do not exceed $100 per year, per individual. Institutional Class and Servicing Class shares of the Funds are not subject to distribution fees under these plans.",
"For the fiscal year ended September 30, 2011, affiliates of CNAM voluntarily waived distribution fees in the amounts set forth in the table below. Each of these waivers continues in effect as of the date of this Prospectus but may be terminated at any time. Class N Class S Government Money Market Fund 0.49% 0.48% Prime Money Market Fund 0.47% 0.46% California Tax Exempt Money Market Fund 0.49% 0.49% SHAREHOLDER SERVICING FEES The Funds are subject to shareholder service agreements that allow each Fund to pay fees of 0.25% of its average daily net assets for non-distribution services provided to shareholders of each Class of each Fund (except for Institutional Class shares). Because these fees are paid out of the Funds’ assets (continuously for Servicing Class shares), over time these fees will increase the cost of your investment. For the fiscal year ended September 30, 2011, affiliates of CNAM voluntarily waived shareholder servicing fees in the amounts set forth in the table below. Each of these waivers continues in effect as of the date of this Prospectus but may be terminated at any time.",
"Servicing Class(1) Class N Class S Government Money Market Fund 0.25% 0.25% 0.25% Prime Money Market Fund 0.25% 0.25% 0.25% California Tax Exempt Money Market Fund 0.25% 0.25% 0.25% (1) Effective November 28, 2012, the shares of the Government Money Market Fund, Prime Money Market Fund and California Tax Exempt Money Market Fund previously designated as Institutional Class shares were redesignated as Servicing Class shares. CNI CHARTER FUNDS | 70 how to buy, sell andexchange shares Here are the details you should know about how to purchase, sell (sometimes called “redeem”) and exchange shares. GENERAL INFORMATION Shares of all Funds are offered through approved broker-dealers or other financial institutions (each an “Authorized Institution”). If you purchase shares of a Fund through an Authorized Institution, your Authorized Institution is responsible for maintaining your individual account records, processing your order correctly and promptly, keeping you advised regarding the status of your individual account, confirming your transactions and ensuring that you receive copies of the Fund’s Summary Prospectus.",
"You will also generally have to address your correspondence or questions regarding the Fund to your Authorized Institution. The Limited Maturity Fund, the Full Maturity Fund, the Diversified Equity Fund and the Socially Responsible Equity Fund are offered directly as well as through Authorized Institutions. Institutional Class shares are intended for institutional investors. Institutional Class shares of Funds other than the Limited Maturity Fixed Income Fund, Full Maturity Fixed Income Fund, Diversified Equity Fund and Socially Responsible Equity Fund are available only to fiduciary, advisory, agency, custodial and other similar accounts maintained at City National Bank which meet the minimum initial investment requirements. Servicing Class shares are available only to other fiduciary, advisory, agency, custodial and other similar accounts maintained at City National Bank. Class N shares are intended for individual investors, partnerships, corporations, and other accounts.",
"Class S shares are retail shares of the Money Market Funds and are intended for investors who have funds on deposit with City National Bank. Not all Funds and classes are available in all states. PRICING OF FUND SHARES How and when we calculate each Fund’s net asset value per share (“NAV”) determines the price at which you will buy or sell shares. We calculate the NAV once each day at the following times: • Government Money Fund and Prime Money Fund – Usually at 3:00 p.m. Eastern time. • California Money Fund – Usually at 2:00 p.m. Eastern time. • All Other Funds – As of the close of trading on the New York Stock Exchange (the “NYSE”). The NYSE usually closes at 4:00 p.m. Eastern time on weekdays, except for holidays. Shares of the Equity Funds, Multi-Asset Fund and Bond Funds may be purchased or sold on any day that the NYSE is open for business. Shares of the Money Market Funds may be purchased or sold on any day that the NYSE and the Federal Reserve are open for business.",
"The Funds reserve the right to open for business on days the NYSE is closed due to an emergency or other unanticipated event, but the Federal Reserve Bank of New York is open. Shares of a Fund, however, cannot be purchased or sold by Federal Reserve wire on days when either the NYSE or the Federal Reserve is closed. On any business day when the Securities Industry and Financial Markets Association (“SIFMA”) recommends that the securities markets close early due to an emergency or other unanticipated event, each Money Market Fund and Bond Fund reserves the right to close early. If a Money Market Fund or Bond Fund does so, it will not grant same business day credit for purchase and redemption orders received after the Money Market Fund’s or Bond Fund’s closing time and credit will be given on the next business day. If the Fund or your Authorized Institution, as applicable, receives your purchase, redemption or exchange request in good order from you on a business day before 3:00 p.m. Eastern time for the Government Money Fund and the Prime Money Fund, before 2:00 p.m. Eastern time for the California Money Fund, and before the close of trading on the NYSE for all other Funds, we will price your order at that day’s NAV.",
"If the Funds or your Authorized Institution, as applicable, receives your request in good order on a business day from you after these times, we will price your order at the next day’s NAV. In some cases, however, you may have to transmit your request to your Authorized Institution by an earlier time in order for your request to be effective on the day of transmittal. “In good order” means that the Funds have received and processed your account application and have received all required information and documentation, including, as applicable, the information described under “Customer Identification and Verification” and “Anti-Money Laundering Program” below and any required signature guarantees. To ensure that your request is in good order, follow the directions for purchasing shares as described under “How to Buy Shares”.",
"CALCULATION OF NAV NAV for one share of a class of a Fund is the value of that share’s portion of the net assets (i.e., assets less liabilities) attributable to that class of that Fund. Shares of each Money Market Fund are priced at NAV, which is expected to remain constant at $1.00. We calculate the NAV of each class of each Fund by dividing the total net value of the assets attributable to the class by the number of outstanding shares of that class. We base the value of the investments of each Equity Fund, each Bond Fund, and the Multi-Asset Fund on their market values, usually the last price reported for each security before the close of the market that day. In the case of the Money Market Funds, securities are valued at amortized cost, which is expected to approximate market value. CNI CHARTER FUNDS | 71 A market price may not be available for securities that trade infrequently. If market prices are not readily available or considered to be unreliable by the Adviser, fair value prices may be determined by the Funds’ Fair Value Committee. The Fair Value Committee in good faith uses methods approved by and under the ultimate supervision of the Board of Trustees.",
"For instance, if trading in a security has been halted or suspended or a security has been delisted from a national exchange, a security has not been traded for an extended period of time, or a significant event with respect to a security occurs after the close of the market or exchange on which the security principally trades and before a Fund calculates its NAV, the Fair Value Committee will determine the security’s fair value. In determining the fair value of a security, the Fair Value Committee will consider the investment manager’s (or the relevant sub-adviser’s) valuation recommendation and information supporting the recommendation, including factors such as the type of security, last trade price, fundamental analytical data relating to the security, forces affecting the market in which the security is purchased and sold, the price and extent of public trading in similar securities of the issuer or comparable companies, and other relevant factors. Valuing securities at fair value involves greater reliance on judgment than valuation of securities based on readily available market quotations.",
"Any Fund that uses fair value to price securities may value those securities higher or lower than another fund using market quotations or fair value to price the same securities. There can be no assurance that a Fund could obtain the fair value assigned to a security if it were to sell the security at approximately the time at which that Fund determines its net asset value.",
"The Board of Trustees reviews all fair value determinations. Some of the Funds may invest in securities listed on foreign exchanges which may trade on Saturdays or on U.S. national business holidays when the NYSE is closed. Consequently, the NAV of a Fund’s shares may be significantly affected on any day when the Fund does not price its shares and when you are not able to purchase or redeem the Fund’s shares. Similarly, if an event materially affecting the value of foreign investments or foreign currency exchange rates occurs prior to the close of business of the NYSE but after the time their values are otherwise determined for a Fund, such investments or exchange rates will be valued at their fair value as discussed above. More details about how we calculate the NAV for each Fund may be found in the SAI. HOW TO BUY SHARES All Funds –To purchase shares of a Fund through an Authorized Institution, you should contact your Authorized Institution and follow its procedures, including acceptable methods of payment and deadlines for receipt by the Authorized Institution of your share purchase instructions.",
"Your Authorized Institution may establish higher minimum investment requirements than the Funds, and may charge a fee for its services, in addition to the fees charged by the Funds. A Fund may reject any purchase order (generally within one business day) if it is determined that accepting the order would not be in the best interest of the Fund or its shareholders. Limited Maturity Fund, Full Maturity Fund, Diversified Equity Fund and Socially Responsible Equity Fund – There are two additional ways to purchase shares of these Funds: By Mail– To open a new account, complete and sign an application. Applications are available by calling 1-800-445-1341. Make your check payable to the Fund in which you choose to invest.",
"The check must be drawn on a U.S. bank and payable in U.S. dollars. You will be required to include your full name, permanent street address, date of birth and taxpayer identification number. Send your completed application and check to: Regular Mail: CNI Charter Funds P.O. Box 2175 Milwaukee, WI 53201 Overnight Delivery: CNI Charter Funds 803 W. Michigan St. Milwaukee, WI 53233 To add to an existing account, make your check payable to the Fund in which you choose to invest. The check must be drawn on a U.S. bank. Please include your account number on the check and send your check to: Regular Mail: CNI Charter Funds P.O. Box 2175 Milwaukee, WI 53201 Overnight Delivery: CNI Charter Funds 803 W. Michigan St. Milwaukee, WI 53233 By Wire– If you are making an initial investment in a Fund, before you wire funds, please call us at 1-800-445-1341 to make arrangements with a telephone service representative to submit your completed application via mail, overnight delivery, or facsimile. You may then contact your bank to initiate the wire using the following wire instructions: UMB Bank, N.A. Kansas City, MO ABA# 101000695 For Credit to: CNI Charter Funds Account Number 9871879089 Further Credit: [Mutual Fund Name] [Shareholder name and account number] CNI CHARTER FUNDS | 72 If you wish to add to an existing account by Federal Funds wire payment, please call us at 1-800-445-1341, during business hours, to advise of your intent to wire funds.",
"This will ensure prompt and accurate credit to your account upon receipt of your wire. You may also make additional purchases via Electronic Funds Transfer from your checking/savings account if you elected the option on your account application. In order to participate in this option, your bank must be a member of the ACH network. Amounts sent by wire or electronic funds must be received by 4:00 p.m., Eastern time, in order to buy shares that day. The Funds do not impose charges for wire services, but your bank may impose such charges.",
"The Funds and UMB are not responsible for the consequences of delays resulting from the banking or Federal Reserve Wire System, or from incomplete wiring instructions. General– The Funds reserve the right to reject any purchase request, including a purchase request that may disrupt a Fund’s operation or performance as described below under “Customer Identification and Verification” and “Anti-Money Laundering Program.” The Funds will not be responsible for any loss of potential investment gains resulting from your inability to invest in a Fund because of the Fund’s rejection of a purchase request based on the Fund’s obligation to deter money laundering under Federal law or the Fund’s determination that the purchase request will disrupt the Fund’s operation.",
"When the Funds reject a purchase request, the funds received from the shareholder or account applicant will not be invested in the Funds. Instead, a check from the Funds for the full amount of the check received by the Funds will be returned to the shareholder or account applicant as soon as possible after receipt by the Funds’ transfer agent of the purchase request (generally within one business day). The return of funds to a shareholder or account applicant may be delayed as a result of the Funds’ compliance with Federal law relating to money laundering. The Funds do not accept payment in cash or money orders. The Funds also do not accept cashier’s checks in amounts of less than $10,000, except for the Limited Maturity Fund, the Full Maturity Fund, the Diversified Equity Fund and the Socially Responsible Fund, which do not accept any payment in cashier’s checks.",
"To prevent check fraud, the Funds will not accept third party checks, Treasury checks, credit card checks, bank drafts, traveler’s checks or starter checks for the purchase of shares. The Fund’s transfer agent may charge a $25.00 fee against a shareholder’s account, in addition to any loss sustained by the Funds, for any payment that is returned. It is the policy of the Funds not to accept applications under certain circumstances or in amounts considered disadvantageous to shareholders. The Funds reserve the right to reject any application. You must certify whether you are subject to withholding for failing to report income to the Internal Revenue Service.",
"The Funds may return investments received without a certified taxpayer identification number. FOREIGN INVESTORS The Funds do not generally accept investments by non-U.S. persons. HOW TO SELL SHARES All Funds – You may redeem some or all of your shares of the Equity Funds, Multi-Asset Fund or Bond Funds on any day the NYSE is open for regular session trading. Shares of the Money Market Funds may be redeemed on any day the NYSE and the Federal Reserve are open for business. If you purchased Fund shares through an Authorized Institution, you may sell your shares only through your Authorized Institution. To sell shares of a Fund, you should contact your Authorized Institution and follow its procedures. Your Authorized Institution may charge a fee for its services, in addition to the fees charged by the Funds. Redemption requests for the Equity Funds, Multi-Asset Fund and Bond Funds must be received by the Fund or your Authorized Institution before 4:00 p.m. Eastern Time or the Authorized Institution’s earlier applicable deadline. Redemption requests for the Government Money Fund and the Prime Money Fund must be received before 3:00 p.m. Eastern Time, and redemption requests for the California Money Fund must be received before 2:00 p.m. Eastern Time, or before the Authorized Institution’s earlier deadline.",
"As long as the Funds or their agents receive your redemption request in good order before the close of regular trading on the NYSE (usually 4:00 p.m., Eastern time) or the applicable deadline, your shares will be sold at that day’s NAV. A redemption request is in good order if it includes all required information and the Funds have a completed application on file. If the Funds receive your redemption request after the close of regular trading on the NYSE, your redemption request will be executed the next business day, and your shares will be sold at the next day’s NAV. Redemption proceeds may be withheld or delayed as required by anti-money laundering laws and regulations. Shares generally continue earning dividends until the next business day after your trade date. Normally, the Funds will make payment on your redemption request as promptly as possible after receiving your request, but it may take up to seven business days.",
"The Funds generally pay sale (redemption) proceeds in cash. However, under conditions where cash redemptions are detrimental to a Fund and its shareholders (e.g., the amount you are redeeming is large enough to affect a Fund’s operation), the Fund reserves the right to make redemptions in readily marketable securities rather than cash (a “redemption in kind”). If your shares were ever redeemed in kind, you would probably have to pay transaction costs to sell the securities distributed to you, as well as taxes on any capital gains from the sale as with any redemption. In addition, you would be subject to market exposure on securities received from a Fund CNI CHARTER FUNDS | 73 until you sold them.",
"By calling us before you attempt to redeem a large dollar amount, you are more likely to avoid in-kind or delayed payment of your redemption. The Funds may suspend redemptions or postpone payments of redemption proceeds for more than seven days during any period when the NYSE is closed for other than customary weekends or holidays; trading on the NYSE is restricted; there are emergency circumstances as determined by the SEC; or the SEC has by order permitted such suspension to protect shareholders of a Fund.",
"Limited Maturity Fund, Full Maturity Fund, Diversified Equity Fund and Socially Responsible Equity Fund – If you purchased shares of any of these Funds directly, you may redeem some or all of your shares in the following ways. Redemption proceeds will be sent to you via check to your address of record or will be wired to the bank via the instructions on your account. By Mail– Complete a written redemption request that includes the Fund’s name, your account number, each account owner’s name and address, the dollar amount or number of shares to be sold, and the signature of each owner as it appears on the account.",
"Send the written request to: Regular Mail: CNI Charter Funds P.O. Box 2175 Milwaukee, WI 53201 Overnight Delivery: CNI Charter Funds 803 W. Michigan St. Milwaukee, WI 53233 By Wire– You may only request payment of your redemption proceeds by wire if you have previously elected wire redemption privileges on your account application or a separate form. Wire requests are only available if your redemption is for $5,000 or more. To request a wire redemption, mail us your request (see “By Mail” above) or call us with your request (see “By Telephone” below). If you wish to make your wire request by telephone, however, you must have previously elected telephone redemption privileges on your account application or a separate form.",
"Telephone redemptions are not available for IRA accounts. By Telephone– You may only request payment of your redemption proceeds by telephone if you have previously elected telephone redemption privileges on your account application or a separate form. Telephone redemptions are not available for IRA accounts. To redeem shares by telephone, call us with your request at 1-800-445-1341. You will need to provide your account number, the exact name(s) in which the account is registered and taxpayer identification number. We may also require a password or additional forms of identification. Your proceeds will be mailed to you or wired to you (if you have elected wire redemption privileges – see “By Wire” above). General– The Funds require a signature guarantee when a redemption request will be payable to anyone other than the account owners of record, mailed to an address other than the address of record, or wired to a bank other than one previously authorized.",
"A signature guarantee is also required in the event that you add wiring instructions to your account after it was initially established. Special documentation may be required to redeem from certain types of accounts, such as trust, corporate, non-profit or retirement accounts. Please call us at 1-800-445-1341 before attempting to redeem from these types of accounts. If you have recently purchased shares by check, a Fund may withhold redemption proceeds until your purchase check has cleared, which may take up to 15 days from the date of purchase. HOW TO EXCHANGE SHARES All Funds – You may exchange shares of a Fund for the same class of shares of any other Fund in which you are eligible to invest on any business day. When you exchange shares, you are really selling your shares and buying other shares, so your sale price and purchase price will be based on the NAVs of the relevant Funds next calculated after we receive your exchange request.",
"Exchange instructions must be received before 3:00 p.m., Eastern time for the Government Money Fund and the Prime Money Fund, before 2:00 p.m. Eastern time for the California Money Fund, and before the close of trading on the NYSE for all other Funds. If you wish to exchange shares of a Fund that you purchased through an Authorized Institution, you should contact your Authorized Institution. Your Authorized Institution may charge you transaction fees and additional amounts for its services. Limited Maturity Fund, Full Maturity Fund, Diversified Equity Fund and Socially Responsible Equity Fund – If you wish to exchange between these Funds, you may transfer investments among existing accounts or you may open a new account to accept the exchange from an existing account. When requesting an exchange between these Funds, both accounts must be registered in the same name, with the same address and taxpayer identification number.",
"By Mail– Send a written request using the procedures for written redemption requests below. No signature guarantee is required. For further information, please call us at 1-800-445-1341. By Telephone– You must request telephone exchange privileges on your initial account application. To authorize telephone exchanges after establishing your Fund account, send a signed written request to: CNI Charter Funds P.O. Box 2175 Milwaukee, WI 53201 CNI CHARTER FUNDS | 74 To request an exchange, please call us at 1-800-445-1341.",
"Shares exchanged by telephone must have a value of $1,000 or more. Exchange instructions must be received before 4:00 p.m., Eastern time. INACTIVE AND LOST ACCOUNTS Please note that the value of your account may be transferred to the appropriate state if no activity occurs in the account within the time period specified by state law. Limited Maturity Fund, Full Maturity Fund, Diversified Equity Fund and Socially Responsible Equity Fund – A Fund will consider your account lost if correspondence to your address of record is returned as undeliverable on two consecutive occasions, unless the Fund determines your new address.",
"When an account is lost, all distributions on the account will be reinvested in additional Fund shares. In addition, the amount of any outstanding checks (unpaid for six months or more) or returned checks will be reinvested at the then-current NAV and the checks will be canceled. However, checks will not be reinvested into accounts with a zero balance. Unclaimed accounts may be subject to state escheatment laws, and no Fund (or its transfer agent) will be liable to the shareholders or their representatives for compliance with those laws in good faith. ADDITIONAL INFORMATION ABOUT TELEPHONE TRANSACTIONS You may give up some level of security by choosing to exchange or sell shares by telephone rather than by mail. To prevent unauthorized transactions in your account, the Funds or their services providers, as applicable, will employ reasonable procedures to confirm that telephone instructions are genuine. If the Funds or their service providers follow these procedures, neither the Funds nor their service providers will be liable for any loss, liability, cost or expense arising from unauthorized or fraudulent telephone instructions. Because you may be responsible for unauthorized telephone requests, you should verify the accuracy of each telephone transaction as soon as you receive your account statement and you should take precautions to keep confidential your account number and tax identification number. SIGNATURE GUARANTEE REQUIREMENTS To protect you and the Funds against fraud, signatures on certain requests must have a “signature guarantee.” A signature guarantee verifies the authenticity of your signature. You can obtain one from most banking institutions or securities brokers, but not from a notary public. For requests made in writing, a signature guarantee is required for any of the following: • Redemption requests for $50,000 or more; • Changes to a shareholder’s record name; • Redemption from an account for which the address or account registration has changed within the last 30 days; • Sending proceeds to any person, address, brokerage firm or bank account not on record; • Sending proceeds to an account with a different registration (name or ownership) from yours; and • Changes to telephone or wire redemption privileges and adding or changing bank instructions.",
"FREQUENT PURCHASES AND REDEMPTIONS OF FUND SHARES The Funds’ Board of Trustees has adopted policies and procedures with respect to frequent purchases and redemptions of Fund shares. The Funds discourage short-term or other excessive trading (such as market timing) into and out of the Funds because such trading may harm performance by disrupting portfolio management strategies and by increasing expenses. The Funds do not accommodate frequent purchases and redemptions of Fund shares, other than the Money Market Funds, and reserve the right to reject or cancel (generally within one business day of receipt of the purchase order) without any prior notice, any purchase or purchase portion of any exchange order, including transactions representing excessive trading and, as applicable, transactions accepted by any shareholder’s Authorized Institution. Money market funds are generally not effective vehicles for market timing activity since these types of funds seek to maintain a constant NAV of $1.00.",
"In addition, the risks of frequent trading are not generally applicable to money market funds because they are cash management vehicles which accommodate frequent inflows and outflows of cash. As a result, money market funds are managed to accommodate such cash flows, particularly when used as bank sweep vehicles (as the Money Market Funds are used), which generally eliminates the potential for disruptive trading. However, a money market fund may be used in conjunction with an exchange with a non-money market fund in order to facilitate market timing activity in the non-money market fund. With respect to exchanges between a Money Market Fund and any other non-money market Fund, frequent trading will be monitored in conjunction with the Funds’ frequent trading procedures as described below. The Money Market Funds reserve the right to reject or cancel (generally within one business day) without any prior notice, any purchase or purchase portion of any exchange order, including transactions representing excessive trading and transactions accepted by any shareholder’s Authorized Institution. A Money Market Fund may exercise such right in the event the Money Market Fund determines that a purchase or exchange order is disruptive to the portfolio management of the Money Market Fund or any other Fund.",
"The transfer agents for the Funds have procedures in place designed to detect and prevent market timing activity. CNAM also participates in the enforcement of the Funds’ market timing prevention policy by monitoring transaction activity in the Funds. CNAM and the transfer agents currently monitor for various patterns in trading activity CNI CHARTER FUNDS | 75 in client accounts, including omnibus accounts, such as a purchase and sale of shares of a Fund (a “round trip”) within 30 days, multiple round trips within several months, and four exchanges per quarter. These parameters are subject to change. Shareholders seeking to engage in excessive trading practices may use a variety of strategies to avoid detection and, despite the efforts of the Funds to prevent excessive trading, there is no guarantee that the Funds or their transfer agents will be able to identify such shareholders or curtail their trading practices. The ability of the Funds and their agents to detect and curtail excessive trading practices may also be limited by operational systems and technological limitations.",
"In addition, the Funds receive purchase, exchange and redemption orders through financial intermediaries and cannot always know or reasonably detect excessive trading which may be facilitated by these intermediaries. However, the Funds do attempt to review excessive trading at the omnibus level and work with each intermediary in enforcing the Funds’ policies and procedures if suspicious activity is detected. In addition, the Distributor has received assurances from each financial intermediary which sells shares of the Funds that it has procedures in place to monitor for excessive trading. If the Funds or their service providers find what they believe may be market timing activity in an omnibus account with respect to the Funds, they will contact management of the Funds, who will review the activity and determine what action, if any, the Funds will take.",
"Possible actions include contacting the financial intermediary and requesting assistance in identifying shareholders who may be engaging in market timing activity, and restricting or rejecting future purchase or exchange orders with respect to shareholders found to be engaging in such activity. There are no assurances that the Funds or their service providers will successfully identify all omnibus accounts engaged in excessive trading, or that intermediaries will properly administer their excessive trading monitoring policies. If you invest in the Funds through an intermediary, please read that firm’s materials carefully to learn of any other rules or fees that may apply. COMPLIANCE WITH APPLICABLE CUSTOMER IDENTIFICATION, VERIFICATION, AND ANTI-MONEY LAUNDERING REQUIREMENTS CUSTOMER IDENTIFICATION AND VERIFICATION To help the government fight the funding of terrorism and money laundering activities, Federal law requires all financial institutions to obtain, verify, and record information that identifies each person who opens an account.",
"What this means to you: when you open an account, you will be asked to provide certain information, which includes your name, address, date of birth, and other information that will serve as a basis to establish your identity. This information is subject to verification. The Funds are required by law to reject your investment if the required identifying information is not provided. In certain instances, a Fund, or an Authorized Institution on behalf of a Fund, may be required to collect documents pursuant to certain applicable legal obligations. Documents provided in connection with your application will be used solely to establish and verify your identity. Attempts to collect missing information required on the application will be performed by contacting you or, if applicable, your broker or Authorized Institution. If this information is unable to be obtained within a timeframe established in the sole discretion of the Funds, your application will be rejected. Upon receipt of your application in proper form (or upon receipt of all identifying information required on the application), your investment will be accepted and your order will be processed at the NAV next determined after receipt of your application in proper form. However, a Fund reserves the right to close your account if it is unable to verify your identity. Attempts to verify your identity will be performed within a timeframe established in the sole discretion of a Fund.",
"If a Fund is unable to verify your identity, the Fund reserves the right to liquidate your account at the then-current day’s price and remit proceeds to you via check. The Fund reserves the further right to hold your proceeds until clearance of your original check. In such an instance, you may be subject to a gain or loss on Fund shares and will be subject to corresponding tax implications. ANTI-MONEY LAUNDERING PROGRAM Customer identification and verification is part of the Funds’ overall obligation to deter money laundering under Federal law. The Funds have adopted an Anti-Money Laundering Compliance Program designed to prevent the Funds from being used for money laundering or the financing of terrorist activities. In this regard, the Funds reserve the right to: (i) refuse, cancel or rescind any purchase or exchange order; (ii) freeze any account and/or suspend account services; or (iii) involuntarily close your account in cases of threatening conduct or suspected fraudulent or illegal activity.",
"These actions will be taken when, in the sole discretion of Fund management, they are deemed to be in the best interest of the Funds or in cases when the Funds are requested or compelled to do so by governmental or law enforcement authority. If your account is closed at the request of governmental or law enforcement authority, you may not receive proceeds of the redemption if the Funds are required to withhold such proceeds. CNI CHARTER FUNDS | 76 dividends and taxes DIVIDENDS Money Market Funds. The Money Market Funds declare dividends each day the NAV is calculated, pay dividends monthly, and pay net capital gains, if any, at least once a year.",
"Following their fiscal year end (September 30), the Money Market Funds may make additional distributions to avoid the imposition of taxes. Your dividends begin to accrue on the day your purchase order is settled for shares bought before 3:00 p.m. Eastern time for the Government Money Fund and the Prime Money Fund, and before 2:00 p.m. Eastern time for the California Money Fund. The Money Market Funds will not credit you with dividends for shares on the day the Fund makes payment on your redemption request. Bond Funds. Each Bond Fund declares investment income daily and distributes it monthly as a dividend to shareholders. You will begin earning dividends on a Bond Fund on the business day your purchase order is settled. The Funds make distributions of capital gains, if any, at least annually. If you own Fund shares on a Bond Fund’s record date, you will be entitled to receive the distribution. Equity Funds and Multi-Asset Fund.",
"The Equity Funds and the Multi-Asset Fund declare and distribute investment income, if any, quarterly as a dividend to shareholders. The Equity Funds and the Multi-Asset Fund make distributions of capital gains, if any, at least annually. If you own Equity Fund or Multi-Asset Fund shares on the Equity Fund’s or the Multi-Asset Fund’s record date, you will be entitled to receive the distribution. Following their fiscal year end (September 30), the Funds may make additional distributions to avoid the imposition of a tax. Each Fund automatically reinvests your dividends and capital gains distributions in additional full or fractional shares, unless you instruct your Authorized Institution or the Fund, as applicable, in writing prior to the date of the dividend or distribution of your election to receive payment in cash. Your election will be effective for all dividends and distributions paid after your written notice is received.",
"To cancel your election, please send your written notice to your Authorized Institution or the Fund, as applicable. Proceeds from dividends or distributions will normally be wired on the business day after dividends or distributions are credited to your account. TAXES The following discussion is very general. Because each shareholder’s circumstances are different and special tax rules may apply, you should consult your tax adviser about your investment in a Fund. You will generally have to pay federal income taxes, as well as any state and local taxes, on distributions received from a Fund. If you sell Fund shares or exchange them for shares of another Fund, it is generally considered a taxable event. If, however, you sell or exchange shares of a Money Market Fund, you generally will not have any gain or loss on the sale or exchange so long as the Money Market Fund in which you invest maintains an NAV of $1.00.",
"The following table summarizes the tax status to you of certain transactions related to the Funds: TRANSACTION FEDERAL TAX STATUS Redemption or exchange of shares Usually capital gain or loss; long term only if shares owned more than one year Distributions of net capital gain (excess of net long-term capital gain over net short-term capital loss) Long-term capital gain Ordinary dividends (including distributions of net short-term capital gain) Ordinary income; certain dividends potentially taxable at long-term capital gain rates Exempt-interest dividends Exempt from regular federal income tax Distributions of net capital gain are taxable to you as long-term capital gain regardless of how long you have owned your shares. Certain dividends may be treated as “qualified dividend income,” which for noncorporate shareholders is taxed at reduced rates for taxable years beginning before January 1, 2013. “Qualified dividend income” generally is income derived by a Fund from dividends paid by U.S. corporations or certain foreign corporations that are either incorporated in a U.S. possession or eligible for tax benefits under certain U.S. income tax treaties. In addition, dividends received from foreign corporations may be treated as qualified dividend income if the stock with respect to which the dividends are paid is readily tradable on an established U.S. securities market. A portion of the dividends received from a Fund (but none of the Fund’s capital gain distributions) may qualify for the dividends-received deduction for corporate shareholders.",
"CNI CHARTER FUNDS | 77 Most distributions from the California Money Fund and the California Tax Exempt Bond Fund are expected to be exempt-interest dividends, which are exempt from regular federal income tax, but may be subject to state or local income taxes. Exempt-interest dividends from California municipal securities will also be exempt from California state personal income tax. Some exempt-interest dividends may be subject to the federal alternative minimum tax. The Funds other than the California Money Fund and the California Tax Exempt Bond Fund do not expect to be eligible to distribute any exempt-interest dividends. You may want to avoid buying shares of a Fund when the Fund is about to declare a dividend or distribution that is not declared on a daily basis, because it will be taxable to you even though it may effectively be a return of a portion of your investment. A Fund’s dividends and other distributions are generally treated as received by shareholders when they are paid.",
"However, if any dividend or distribution is declared by a Fund in October, November or December of any calendar year and payable to shareholders of record on a specified date in such a month but is actually paid during the following January, such dividend or distribution will be treated as received by each shareholder on December 31 of the year in which it was declared. After the end of the year, the Funds will provide you with information about the dividends and distributions you received and any redemptions of shares during the previous year. If you are neither a citizen nor a resident of the United States, certain dividends that you receive from a Fund may be subject to federal withholding tax.",
"To the extent that a Fund’s distributions consist of ordinary dividends or other payments that are subject to withholding, the Fund will withhold federal income tax at the rate of 30% (or such lower rate as may be determined in accordance with any applicable treaty). Most distributions from the California Money Fund and the California Tax Exempt Bond Fund are expected to be exempt-interest dividends, which are not subject to such withholding. Ordinary dividends that are reported by a Fund as “interest-related dividends” or “short-term capital gain dividends” are generally exempt from such withholding for taxable years of the Fund beginning before January 1, 2012. If you do not provide the Funds with your correct taxpayer identification number and any required certifications, you will be subject to backup withholding on your redemption proceeds (except for proceeds from redemptions of Money Market Fund shares), dividends (including exempt-interest dividends), and other distributions.",
"Backup withholding will not, however, be applied to payments that have been subject to the 30% withholding tax on shareholders who are neither citizens nor residents of the United States. The backup withholding rate is currently 28% and is scheduled to increase to 31% in 2013. Distributions derived from interest on U.S. government securities (but not distributions of gain from the sale of such securities) may be exempt from certain state and local taxes. Consult your tax adviser for restrictions and details. More information about taxes is contained in the Funds’ SAI. CNI CHARTER FUNDS | 78 financial highlights The following financial highlights tables are intended to help you understand the Funds’ financial performance. Information for the years or periods indicated below (with the exception of the six months ended March 31, 2012) has been audited by KPMG LLP, an independent registered public accounting firm, whose report, along with the Funds’ financial statements, are included in the Funds’ 2011 Annual Report (available upon request; see the back cover of this Prospectus). Information presented in the financial highlights tables is for a single CNI Fund share outstanding throughout the period or, if shorter, the period for a Fund’s operations. The total return figures in the tables represent the rate an investor would have earned (or lost) on an investment in the Fund (assuming reinvestment of all dividends and distributions).",
"For a Share Outstanding Throughout Each Period For the six months ended March 31, 2012 (Unaudited) and the year ended September 30, Net Asset Value Beginning of Period Net Investment Income† Dividends From Net Investment Income NetAsset Value End of Period Total Return‡ NetAssets End of Period(000) Ratio of Expensesto Average Net Assets(1)(2) Ratio Of Net Investment Income to Average Net Assets(1) Ratio of Expensesto Average Net Assets (Excluding Waivers & Recovered Fees)(1) Government Money Market Fund Servicing Class (commenced operations on April 3, 2000)* 2012 + $ 1.00 $ 0.000 ^ $ (0.000 )^ $ 1.00 0.01 % $ 102,623 0.11 % 0.01 % 0.60 % ^ )^ ^ )^ ) ) ) Class N (commenced operations on June 21, 1999) 2012 + $ 1.00 $ 0.000 ^ $ (0.000 )^ $ 1.00 0.01 % $ 2,683,416 0.11 % 0.01 % 1.10 % ^ )^ ^ )^ ) ) ) Class S (commenced operations on October 6, 1999) 2012 + $ 1.00 $ 0.000 ^ $ (0.000 )^ $ 1.00 0.01 % $ 277,506 0.11 % 0.01 % 1.10 % ^ )^ ^ )^ ) ) ) Prime Money Market Fund Servicing Class (commenced operations on March 23, 1998)* 2012 + $ 1.00 $ 0.000 ^ $ (0.000 )^ $ 1.00 0.01 % $ 513,612 0.20 % 0.02 % 0.60 % ) )* ) ) ) Class N (commenced operations on October 18, 1999) 2012 + $ 1.00 $ 0.000 ^ $ (0.000 )^ $ 1.00 0.01 % $ 394,070 0.21 % 0.01 % 1.10 % ^ )^ ^ )*^ ) ) ) Class S (commenced operations on October 26, 1999) 2012 + $ 1.00 $ 0.000 ^ $ (0.000 )^ $ 1.00 0.01 % $ 233,688 0.21 % 0.01 % 1.10 % ^ ^ ^ )*^ ) ) ) California Tax Exempt Money Market Fund Servicing Class (commenced operations on April 3, 2000)* 2012 + $ 1.00 $ 0.000 ^ $ (0.000 )^ $ 1.00 0.01 % $ 125,470 0.09 % 0.01 % 0.62 % ^ )^ ^ )*^ ) ) ) Class N (commenced operations on June 21, 1999) 2012 + $ 1.00 $ 0.000 ^ $ (0.000 )^ $ 1.00 0.01 % $ 685,393 0.09 % 0.01 % 1.12 % ^ )^ ^ )*^ ) ) ) Class S (commenced operations on November 12, 1999) 2012 + $ 1.00 $ 0.000 ^ $ (0.000 )^ $ 1.00 0.01 % $ 69,246 0.09 % 0.01 % 1.12 % ^ )^ ^ )*^ ) ) ) + For the six months ended March 31, 2012.",
"* Effective November 28, 2012, Institutional Class shares were redesignated as Servicing Class shares. This share class name change will have no impact on the Fund’s operation or investment policy. † Per share calculations are based on Average Shares outstanding throughout the period. ‡ Returns are for the period indicated and have not been annualized. Fee waivers are in effect; if they had not been in effect, performance would have been lower. Returns shown do not reflect the deduction of taxes that a shareholder would pay on fund distributions or the redemption of fund shares. ^ Amount represents less than $0.001. * Includes a realized capital gain distribution of less than $0.001. Annualized for periods less than one year. Ratio includes waivers and previously waived investment advisory fees recovered. The impact of the recovered fees may cause a higher net expense ratio.",
"CNI CHARTER FUNDS | 79 financial highlights For a Share Outstanding Throughout Each Period For the six months ended March 31, 2012 (Unaudited) and the year ended September 30, Net Asset Value Beginning of Period Net Investment Income† Net Realized and Unrealized Gains (Losses) on Securities† Dividends From Net Investment Income Distrib-utions From Realized Capital Gains Net Asset Value End of Period Total Return‡ Net Assets End of Period (000) Ratio Of Expenses to Average Net Assets(1)(2) Ratio of Net Investment Income to Average Net Assets(1) Ratio of Expenses to Average Net Assets (Excluding Waivers & Recovered Fees)(1) Portfolio Turnover Rate Limited Maturity Fixed Income Fund Institutional Class (commenced operations on October 22,1988) 2012 + $ 11.15 $ 0.06 $ 0.04 $ (0.06 ) $ — $ 11.19 0.94 % $ 33,101 0.69 % 1.15 % 0.69 % 15 % ) ) — 50 ) — ) — 98 ) ) — 79 ) — 76 Class N (commenced operations on October 22, 2004) 2012 + $ 11.15 $ 0.05 $ 0.04 $ (0.05 ) $ — $ 11.19 0.81 % $ 5,935 0.94 % 0.90 % 1.19 % 15 % ) ) — 50 ) — ) — 98 ) ) — 79 ) — 76 Government Bond Fund Servicing Class (commenced operations on January 14, 2000)* 2012 + $ 10.75 $ 0.05 $ (0.04 ) $ (0.08 ) $ (0.01 ) $ 10.67 0.06 % $ 122,376 0.75 % 0.96 % 0.78 % 27 % ) — 86 ) — 93 ) — 85 ) — 36 ) — 83 Class N (commenced operations on April 13, 2000) 2012 + $ 10.77 $ 0.04 $ (0.05 ) $ (0.06 ) $ (0.01 ) $ 10.69 (0.07 )% $ 2,887 1.01 % 0.71 % 1.03 % 27 % ) — 86 ) — 93 ) — 85 ) — 36 ) — 83 Corporate Bond Fund Servicing Class (commenced operations on January 14, 2000)* 2012 + $ 10.58 $ 0.13 $ 0.22 $ (0.13 ) $ (0.05 ) $ 10.75 3.28 % $ 118,337 0.75 % 2.39 % 0.76 % 20 % ) ) — 40 ) — 28 ) — 30 ) ) — 12 — ) — 30 Class N (commenced operations on April 13, 2000) 2012 + $ 10.59 $ 0.11 $ 0.22 $ (0.11 ) $ (0.05 ) $ 10.76 3.15 % $ 2,482 1.00 % 2.15 % 1.01 % 20 % ) ) — ) 40 ) — 28 ) — 30 ) ) — ) 12 ) — 30 California Tax Exempt Bond Fund Servicing Class (commenced operations on January 14, 2000)* 2012 + $ 10.67 $ 0.13 $ 0.11 $ (0.13 ) $ (0.07 ) $ 10.71 2.29 % $ 53,854 0.56 % 2.46 % 0.62 % 16 % ) ) 26 ) — 28 ) — 50 ) ) — 55 ) ) — 43 Class N (commenced operations on April 13, 2000) 2012 + $ 10.70 $ 0.12 $ 0.11 $ (0.12 ) $ (0.07 ) $ 10.74 2.16 % $ 4,655 0.81 % 2.21 % 0.87 % 16 % ) ) 26 ) — 28 ) — 50 ) ) — 55 — ) — 43 + For the six months ended March 31, 2012.",
"* Effective December 19, 2011, Institutional Class Shares were redesignated as Servicing Class Shares. This share class name change will have no impact on the Fund’s operation or investment policy. † Per share calculations are based on Average Shares outstanding throughout the period. ‡ Returns are for the period indicated and have not been annualized. Fee waivers are in effect; if they had not been in effect, performance would have been lower. Returns shown do not reflect the deduction of taxes that a shareholder would pay on fund distributions or the redemption of fund shares. Annualized for periods less than one year. Ratio includes waivers and previously waived investment advisory fees recovered. The impact of the recovered fees may cause a higher net expense ratio. Amounts designated as “—” are either $0 or have been rounded to $0.",
"CNI CHARTER FUNDS | 80 financial highlights For a Share Outstanding Throughout Each Period For the six months ended March 31, 2012 (Unaudited) and the year ended September 30, Net Asset Value Beginning of Period Net Investment Income† Net Realized and Unrealized Gains (Losses) on Securities† Dividends From Net Investment Income Distrib-utions From Realized Capital Gains Net Asset Value End of Period Total Return‡ Net Assets End of Period (000) Ratio Of Expenses To Average Net Assets(1)(2) Ratio of Net Investment Income to Average Net Assets(1) Ratio of Expenses to Average Net Assets (Excluding Waivers & Recovered Fees)(1) Portfolio Turnover Rate Full Maturity Fixed Income Fund Institutional Class (commenced operations on October 20, 1988) 2012 + $ 10.91 $ 0.13 $ 0.02 $ (0.13 ) $ (0.14 ) $ 10.79 1.45 % $ 44,793 0.68 % 2.36 % 0.68 % 42 % ) ) 43 ) ) 63 ) — 56 ) ) — 34 — ) — 55 Class N (commenced operations on May 11, 2004) 2012 + $ 10.90 $ 0.11 $ 0.04 $ (0.12 ) $ (0.14 ) $ 10.79 1.42 % $ 376 0.93 % 2.12 % 1.18 % 42 % ) ) 43 ) ) 63 ) — 56 ) ) — 34 — ) — 55 High Yield Bond Fund Servicing Class (commenced operations on January 14, 2000)* 2012 + $ 7.98 $ 0.33 $ 0.49 $ (0.33 ) $ — $ 8.47 10.45 % $ 64,059 1.06 % 8.08 % 1.09 % 29 % ) ) — 56 ) — 87 ) — 59 ) ) — ) 20 ) ) — 26 Class N (commenced operations on January 14, 2000) 2012 + $ 7.98 $ 0.32 $ 0.49 $ (0.32 ) $ — $ 8.47 10.29 % $ 33,493 1.36 % 7.82 % 1.39 % 29 % ) ) — 56 ) — 87 ) — 59 ) ) — ) 20 ) ) — 26 Multi-Asset Fund Servicing Class (commenced operations on October 1, 2007)* 2012 + $ 9.88 $ 0.12 $ 0.54 $ (0.11 ) $ — $ 10.43 6.73 % $ 8,442 0.84 % 2.29 % 0.84 % 35 % ) ) — ) 67 ) — 76 ) — 94 ) ) — ) Class N (commenced operations on October 1, 2007) 2012 + $ 9.88 $ 0.11 $ 0.53 $ (0.11 ) $ — $ 10.41 6.48 % $ 26,694 1.09 % 2.15 % 1.10 % 35 % ) ) — ) 67 ) — 76 ) — 94 ) ) — ) Diversified Equity Fund Institutional Class (commenced operations on October 20, 1988) 2012 + $ 11.33 $ 0.03 $ 2.58 $ (0.03 ) $ — $ 13.91 23.10 % $ 44,327 0.93 % 0.47 % 0.93 % 52 % ) ) — ) )** — ) )*** — ) 93 ) Class N (commenced operations on December 30, 2002) 2012 + $ 11.37 $ 0.01 $ 2.59 $ (0.02 ) $ — $ 13.95 22.86 % $ 4,731 1.18 % 0.20 % 1.43 % 52 % ) ) — ) ) — ) ) — ) 93 ) + For the six months ended March 31, 2012.",
"† Per share calculations are based on Average Shares outstanding throughout the period. ‡ Returns are for the period indicated and have not been annualized. Fee waivers are in effect; if they had not been in effect, performance would have been lower. Returns shown do not reflect the deduction of taxes that a shareholder would pay on fund distributions or the redemption of fund shares. * Effective December 19, 2011, Institutional Class Shares were redesignated as Servicing Class Shares. This share class name change will have no impact on the Fund’s operation or investment policy. ** Includes return of capital less than $0.01 per share. *** Includes return of capital of $0.01 per share. Annualized for periods less than one year. Ratio includes waivers and previously waived investment advisory fees recovered. The impact of the recovered fees may cause a higher net expense ratio.",
"Amounts designated as “—” are either $0 or have been rounded to $0.",
"CNI CHARTER FUNDS | 81 financial highlights For a Share Outstanding Throughout Each Period For the six months ended March 31, 2012 (Unaudited) and the year ended September 30, Net Asset Value Beginning of Period Net Investment Income (Loss)† Net Realized and Unrealized Gains (Losses) on Securities† Dividends From Net Investment Income Distrib-utions From Realized Capital Gains Net Asset Value End of Period Total Return‡ Net Assets End of Period (000) Ratio Of Expenses to Average Net Assets(1)(2) Ratio of Net Investment Income (Loss) to Average Net Assets(1) Ratio of Expenses to Average Net Assets (Excluding Waivers & Recovered Fees)(1) Portfolio Turnover Rate Large Cap Value Equity Fund Servicing Class (commenced operations on January 14, 2000)* 2012 + $ 7.41 $ 0.06 $ 1.60 $ (0.06 ) $ — $ 9.01 22.48 % $ 81,888 0.96 % 1.52 % 0.97 % 14 % ) ) — ) 43 ) — 26 ) ) — ) 18 ) 36 ) ) 24 Class N (commenced operations on April 13, 2000) 2012 + $ 7.40 $ 0.05 $ 1.59 $ (0.05 ) $ — $ 8.99 22.24 % $ 10,270 1.21 % 1.27 % 1.22 % 14 % ) ) — ) 43 ) — 26 ) ) — ) 18 ) 36 ) ) 24 Large Cap Growth Equity Fund Servicing Class (commenced operations on January 14, 2000)* 2012 + $ 7.44 $ 0.02 $ 1.90 $ (0.02 ) $ — $ 9.34 25.82 % $ 35,679 0.99 % 0.39 % 1.00 % 21 % ) ) — ) 82 ) — 61 ) ) — ) 12 ) ) — ) 26 ) — 30 Class N (commenced operations on March 28, 2000) 2012 + $ 7.35 $ 0.01 $ 1.88 $ — $ — $ 9.24 25.71 % $ 11,540 1.24 % 0.13 % 1.25 % 21 % ) ) )^ — ) ) 82 ) — 61 ) ) — ) 12 ) ) — ) 26 ) — 30 Socially Responsible Equity Fund Institutional Class (commenced operations on January 3, 2005) 2012 + $ 8.38 $ 0.07 $ 1.75 $ (0.07 ) $ — $ 10.13 21.74 % $ 78,259 0.90 % 1.50 % 0.90 % 14 % ) ) — ) 22 )** — 36 ) ) — ) 48 ) 41 ) ) 29 Class N (commenced operations on August 12, 2005) 2012 + $ 8.37 $ 0.07 $ 1.73 $ (0.06 ) $ — $ 10.11 21.53 % $ 24,439 1.15 % 1.49 % 1.40 % 14 % ) ) — ) 22 ) — 36 ) ) — ) 48 ) 41 ) ) 29 + For the six months ended March 31, 2012.",
"† Per share calculations are based on Average Shares outstanding throughout the period. ‡ Returns are for the period indicated and have not been annualized. Fee waivers are in effect; if they had not been in effect, performance would have been lower. Total return figures do not include applicable sales loads. Returns shown do not reflect the deduction of taxes that a shareholder would pay on fund distributions or the redemption of fund shares. * Effective December 19, 2011, Institutional Class Shares were redesignated as Servicing Class Shares. This share class name change will have no impact on the Fund’s operation or investment policy. ** Includes return of capital less than $0.01 per share. ^ Amount represents less than $0.01 per share. Annualized for periods less than one year. Ratio includes waivers and previously waived investment advisory fees recovered.",
"The impact of the recovered fees may cause a higher net expense ratio. Amounts designated as “—” are either $0 or have been rounded to $0. CNI CHARTER FUNDS | 82 important terms to know Barclays Capital CA Intermediate-Short Municipal Index — comprised of California state-specific municipal issues which have a fixed rate coupon, have between 1 and 10 years to maturity, an investment grade rating from Moody’s Investors Service or Standard & Poor’s (Baa3/BBB- or better), and are publicly registered. The individual issues must also have at least $7 million par outstanding and be part of a deal of $50 million or more. The composition of the Index is rebalanced monthly to include the universe of securities meeting the above criteria.",
"Barclays Capital U.S. 1-5 Year Government Bond Index — an unmanaged index that includes U.S. Treasury and agency securities with remaining maturities of one to five years. Barclays Capital U.S. Aggregate Bond Index — an unmanaged index generally representing fixed-rate, investment-grade government bonds, corporate debt securities, mortgage-backed securities, and asset-backed securities with minimum maturity dates of at least one year. Barclays Capital U.S. Corporate 1-5 A3 or Higher, 2% Issuer Constrained Index — comprised of fixed income securities issued by corporations which have between 1 and 5 years to maturity, with a rating of A3 or higher. Barclays Capital U.S. Intermediate Corporate Bond Index — comprised of nonconvertible fixed income securities issued by corporations which have a fixed rate coupon, have between 1 and 10 years to maturity, at least $250 million par outstanding, an investment grade rating from Moody’s Investors Service, Standard & Poor’s or Fitch Ratings (Baa3/BBB-/BBB- or better), and are publicly registered.",
"The composition of the Index is rebalanced monthly to include the universe of securities meeting the above criteria. Barclays Capital U.S. Intermediate Government Bond Index — comprised of nonconvertible securities issued by the U.S. government and U.S. government agencies which have a fixed rate coupon, between 1 and 10 years to maturity, and at least $250 million par outstanding. The composition of the Index is rebalanced monthly to include the universe of securities meeting the above criteria. Barclays Capital U.S. Intermediate Government/Credit Bond Index — a total return index comprised of investment grade corporate debt issues as well as debt issues of U.S. government agencies and the U.S. Treasury.",
"The debt issues all maintain maturities within a range of 1 to 10 years. Barclays Capital U.S. TIPS Index — an unmanaged market index comprised of all U.S. Treasury Inflation Protected Securities rated investment grade (Baa3 or better), have at least one year to final maturity, and at least $250 million par amount outstanding. Citigroup High Yield Market Capped Index — uses the same basic composition as the Citigroup High Yield Market Index (which is comprised of cash-pay, deferred-interest securities and Rule 144A bonds of issuers domiciled in the United States or Canada with a minimum maturity of at least one year, a minimum amount outstanding of $100 million, and a speculative-grade rating by both Moody’s Investor Service and Standard & Poor’s), but caps the total debt of each individual issuer at $5 billion par outstanding and delays the entry of “fallen angels,” or issuers recently downgraded from investment grade to high yield, into the Index.",
"CPI + 500 Basis Points — created by adding 5% to the annual percentage change in the Consumer Price Index (“CPI”). The CPI is an unmanaged index representing the rate of inflation of U.S. consumer prices as determined by the U.S. Bureau of Labor Statistics. Effective Yield — the interest rate, compounded weekly, you would receive if you kept your investment in a Fund for a year. Liquidity — the ability to turn investments into cash. BofA Merrill Lynch 1-3 Year US Treasury Index — a subset of the Merrill Lynch Treasury Master Index.",
"The maturity range on the securities included in the Index is from 1 to 3 years. This Index is available on a monthly basis in price-only and total return versions. The value was set at 100 on 12/31/1975. BofA Merrill Lynch US 3-Month Treasury Bill Index — comprised of a single issue purchased at the beginning of the month and held for a full month. Each month the Index is rebalanced and the issue selected is the outstanding Treasury Bill that matures closest to, but not beyond, three months from the rebalancing date.",
"MSCI KLD 400 Social Index — a free float-adjusted, market capitalization-weighted, common stock index of U.S. equities constructed using environmental, social and governance factors. In 2010, this index changed its name from the FTSE KLD 400 Social Index to the MSCI KLD 400 Social Index. Quality — the credit rating given to a security by a nationally recognized statistical rating organization. Russell 1000® Value Index — measures the performance of the large-cap value segment of the U.S. equity universe, including those Russell 1000 companies with lower price-to-book ratios and lower expected growth values. The Russell 1000® Value Index is constructed to provide a comprehensive and unbiased barometer for the large-cap value segment.",
"The Index is completely reconstituted annually to ensure new and growing equities are included and that the represented companies continue to reflect value characteristics. S&P 500® Growth Index — measures the performance of all of the stocks in the S&P 500® Index that have growth characteristics. A proprietary methodology is used to score constituents, which are weighted according to their market capitalization. S&P 500® Value Index — measures the performance of all of the stocks in the S&P 500® Index that have value characteristics. A proprietary methodology is used to score constituents, which are weighted according to their market capitalization. S&P 500® Index — a broad market-weighted average of U.S. blue-chip companies. Yield — the interest rate you would receive if you kept your investment in a Fund for a year. It is based on the current interest rate for a trailing seven-day period. CNI CHARTER FUNDS | 83 privacy principles CNI Charter Funds and its affiliates know our shareholders expect and rely upon us to maintain the confidentiality and privacy of all of the information about them in our possession and control.",
"Maintaining the trust and confidence of our shareholders is our highest priority. We have adopted and published the CNI Charter Funds Statement of Privacy Principles to guide our conduct when we collect, use, maintain or release shareholder information and to assist our shareholders and others to better understand our privacy practices in general and as they apply to nonpublic personal information in particular. Certain information regarding the Funds’ Privacy Principles is summarized below. We will obey all applicable laws respecting the privacy of nonpublic personal information and will comply with the obligations of the law respecting nonpublic personal information provided to us. We collect, use and retain the information, including nonpublic personal information, about our shareholders and prospective shareholders that we believe is necessary for us to understand and better meet their financial needs and requests, to administer and maintain their accounts, to provide them with our products and services, to anticipate their future needs, to protect them and us from fraud or unauthorized transactions, and to meet legal requirements. We may share information regarding our shareholders with our affiliates as permitted by law because some of our products and services are delivered through or in conjunction with our affiliates. We instruct our colleagues to limit the availability of all shareholder information within our organization to those colleagues responsible for servicing the needs of the shareholder and those colleagues who reasonably need such information to perform their duties and as required or permitted by law.",
"We do provide shareholder information, including nonpublic personal information, to our vendors and other outside service providers whom we use when appropriate or necessary to perform and enhance our shareholder services. When we provide shareholder information to anyone outside our organization, we only do so as required or permitted by law. We require all of our vendors and service providers who receive shareholder information from us to agree to maintain the information in confidence, to limit the use and dissemination of the information to the purpose for which it is provided and to abide by the law. To the extent permitted by law, we undertake to advise a shareholder of any government or other legal process served on us requiring disclosure of information about that shareholder. Except as stated above, we limit our disclosure of nonpublic personal information to third parties to the following circumstances: (i) when requested to do so by the shareholder; (ii) when necessary, in our opinion, to effect, administer, or enforce a shareholder initiated transaction; and (iii) when required or permitted to do so by law or regulation, including authorized requests from government agencies and if we are the victim of fraud or otherwise suffer loss caused by the unlawful act of the shareholder.",
"A full copy of the CNI Charter Funds’ Statement of Privacy Principles is available at www.cnicharterfunds.com. Should you have any questions regarding the Funds’ Privacy Principles, please contact your investment professional or the Funds at 1-888-889-0799. CNI CHARTER FUNDS | 84 for more information CNI CHARTER FUNDS Additional information is available free of charge in the Statement of Additional Information (“SAI”) for the Funds. The SAI is incorporated by reference (legally considered part of this document). In the Annual Report for the Funds, you will find a discussion of the market conditions and investment strategies that significantly affected the Funds’ performance during their last fiscal year. Additional information about the Funds’ investments is available in the Funds’ Annual and Semi-Annual Reports.",
"To receive a free copy of this Prospectus, the SAI, or the Annual and Semi-Annual Reports, please visit the Funds’ website at www.cnicharterfunds.com or contact: SEI Investments Distribution Co. One Freedom Valley Drive Oaks, Pennsylvania 19456 1-888-889-0799 To reduce expenses, we may mail only one copy of the Funds’ Prospectus and each Annual and Semi-Annual Report to those addresses shared by two or more accounts. If you wish to receive individual copies of these documents, please call us at 1-888-889-0799 (or contact your Authorized Institution, as applicable). We will begin sending you individual copies 30 days after receiving your request. Information about the Funds may be reviewed and copied: • at the SEC’s Public Reference Room in Washington, D.C. at 1-202-551-8090; • on the EDGAR database on the SEC’s website at www.sec.gov; or • by written request (including duplication fee) to the Public Reference Section of the SEC, Washington, D.C. 20549-6009 or by electronic request at publicinfo@sec.gov.",
"For the current seven-day yield, or if you have questions about the Funds, please call 1-888-889-0799. A description of the Funds’ policies and procedures with respect to the disclosure of the Funds’ portfolio securities is available in the SAI. The Funds’ Investment Company Act file number: 811-07923. CNI-PS-018-0500 Government Money Market Fund Prime Money Market Fund California Tax Exempt Money Market Fund Limited Maturity Fixed Income Fund Government Bond Fund Corporate Bond Fund California Tax Exempt Bond Fund Full Maturity Fixed Income Fund High Yield Bond Fund Multi-Asset Fund U.S. Core Equity Fund Diversified Equity Fund Large Cap Value Equity Fund Large Cap Growth Equity Fund Socially Responsible Equity Fund STATEMENT OF ADDITIONAL INFORMATION CNI CHARTER FUNDS 400 North Roxbury Drive, Beverly Hills, California 90210 GOVERNMENT MONEY MARKET FUND ServicingClass (CNIXX) Class N (CNGXX) Class S (CNFXX) PRIME MONEY MARKET FUND Institutional Class (CNRPX) ServicingClass (CNMXX) Class N (CNPXX) Class S (CNSXX) CALIFORNIA TAX EXEMPT MONEY MARKET FUND ServicingClass (CNTXX) Class N (CNEXX) Class S (CEMXX) LIMITED MATURITY FIXED INCOME FUND Institutional Class (AHLFX) Class N (AHALX) GOVERNMENT BOND FUND Institutional Class (CNIGX) Servicing Class (CNBIX) Class N (CGBAX) CORPORATE BOND FUND Servicing Class (CNCIX) Class N (CCBAX) CALIFORNIA TAX EXEMPT BOND FUND Servicing Class (CNTIX) Class N (CCTEX) FULL MATURITY FIXED INCOME FUND Institutional Class (AHFMX) Class N (AHAFX) HIGH YIELD BOND FUND Institutional Class (CNIHX) Servicing Class (CHYIX) Class N (CHBAX) MULTI-ASSET FUND Institutional Class (CNIMX) Servicing Class (CNIIX) Class N (CNIAX) U.S. CORE EQUITY FUND Institutional Class (CNRUX) Servicing Class (CNRVX) Class N (CNRWX) DIVERSIFIED EQUITY FUND Institutional Class (AHDEX) Class N (AHADX) LARGE CAP VALUE EQUITY FUND Institutional Class (CNILX) Servicing Class (CNLIX) Class N (CVEAX) LARGE CAP GROWTH EQUITY FUND Servicing Class (CNGIX) Class N (CLEAX) SOCIALLY RESPONSIBLE EQUITY FUND Institutional Class (AHSRX) Class N (AHRAX) November 28, 2012 CNI-SX-007-0500 Mutual fund shares are not insured or guaranteed by the U.S. Government, the Federal Deposit Insurance Corporation or any other governmental agency.",
"Mutual fund shares are not bank deposits, nor are they obligations of, or issued, endorsed or guaranteed by City National Bank (“CNB”). Investing in mutual funds and other securities involves risks, including possible loss of principal. This Statement of Additional Information (“SAI”) is not a prospectus. It should be read in conjunction with the prospectus dated November 28, 2012, which may be amended from time to time (the “Prospectus”), for the Government Money Market Fund (the “Government Money Fund”), the Prime Money Market Fund (the “Prime Money Fund”), the California Tax Exempt Money Market Fund (the “California Money Fund”), the Limited Maturity Fixed Income Fund (the “Limited Maturity Fund”), the Government Bond Fund, the Corporate Bond Fund, the California Tax Exempt Bond Fund (the “California Bond Fund”), the Full Maturity Fixed Income Fund (the “Full Maturity Fund”), the High Yield Bond Fund, the Multi-Asset Fund, the U.S.",
"Core Equity Fund, the Diversified Equity Fund, the Large Cap Value Equity Fund (the “Large Cap Value Fund”), the Large Cap Growth Equity Fund (the “Large Cap Growth Fund”) and the Socially Responsible Equity Fund. The U.S. Core Equity Fund, the Diversified Equity Fund, the Large Cap Growth Fund, the Large Cap Value Fund and the Socially Responsible Equity Fund are referred to herein as the “Equity Funds.” The Limited Maturity Fund, the Government Bond Fund, the Corporate Bond Fund, the California Bond Fund, the Full Maturity Fund and the High Yield Bond Fund are referred to herein as the “Bond Funds.” The Government Money Fund, the Prime Money Fund and the California Money Fund are referred to herein as the “Money Market Funds.” The Equity Funds, the Bond Funds, the Money Market Funds and the Multi-Asset Fund are referred to herein as the “Funds.” Each Fund is a series of CNI Charter Funds (the “Trust”), an open-end, management investment company.",
"Audited financial statements for each of the Funds contained in the Annual Report to Shareholders of the Trust for the fiscal year ended September 30, 2011, are incorporated herein by reference. To obtain a free copy of the above-referenced Prospectus or Annual Report for the Trust, please call 1-888-889-0799 or visit www.cnicharterfunds.com. TABLE OF CONTENTS THE FUNDS 1 INVESTMENT TECHNIQUES AND RISK CONSIDERATIONS 2 INVESTMENT RESTRICTIONS 44 MANAGEMENT OF THE TRUST 52 PORTFOLIO TRANSACTIONS 74 DISTRIBUTIONS AND TAXES 77 SHARE PRICE CALCULATION 86 DISTRIBUTION PLAN 88 SHAREHOLDER SERVICES AGREEMENT 89 EXPENSES 92 CODES OF ETHICS 92 DISCLOSURE OF PORTFOLIO HOLDINGS 92 PROXY VOTING 94 GENERAL INFORMATION 94 CONTROL PERSONS AND PRINCIPAL HOLDERS OF SECURITIES 95 PERFORMANCE INFORMATION 107 PURCHASE AND REDEMPTION OF SHARES OTHER INFORMATION 111 FINANCIAL STATEMENTS 111 APPENDIX A – RATINGS OF INVESTMENT SECURITIES A-1 APPENDIX B – PROXY VOTING POLICIES B-1 i THE FUNDS The various classes of shares of each Fund commenced operations on the following dates: Fund Institutional Class Servicing Class Class N Class S Government Money Fund N/A 4/3/00 6/21/99 10/6/99 Prime Money Fund 11/28/12 3/23/98 10/18/99 10/26/99 California Money Fund N/A 4/3/00 6/21/99 11/12/99 Limited Maturity Fund(1) 11/22/88 N/A 10/22/04 N/A Government Bond Fund 12/19/11 1/14/00 4/13/00 N/A Corporate Bond Fund N/A 1/14/00 4/13/00 N/A California Bond Fund N/A 1/14/00 4/13/00 N/A Full Maturity Fund(1) 10/20/88 N/A 5/11/04 N/A High Yield Bond Fund 12/19/11 1/14/00 1/14/00 N/A Multi-Asset Fund 12/19/11 10/1/07 10/1/07 N/A U.S.",
"Core Equity Fund 11/30/12 11/30/12 11/30/12 N/A Diversified Equity Fund(1) 10/20/88 N/A 12/30/02 N/A Large Cap Value Fund 12/19/11 1/14/00 4/13/00 N/A Large Cap Growth Fund N/A 1/14/00 3/28/00 N/A Socially Responsible Equity Fund(1) 1/3/05 N/A 8/12/05 N/A For each of the Limited Maturity Fund, the Full Maturity Fund, the Diversified Equity Fund and the Socially Responsible Equity Fund, the inception dates shown above reflect the inception date of the corresponding share class of its Predecessor Fund, as defined below. Each of the Limited Maturity Fund, the Full Maturity Fund, the Diversified Equity Fund and the Socially Responsible Equity Fund commenced operations on September 30, 2005, the date of the acquisition of the assets and liabilities of each corresponding series (each a “Predecessor Fund” and collectively the “Predecessor Funds”) of AHA Investment Funds, Inc., a registered investment company organized on March 14, 1988.",
"As of the date of the acquisition, all of the holders of issued and outstanding Class A and Class I shares of each Predecessor Fund received Class A and Institutional Class shares, as applicable, of the corresponding Fund. Each Fund has the same investment objective, policies and strategies as the corresponding Predecessor Fund. As compared to the Funds, the Predecessor Funds had a different board of directors and some different service providers. In addition, the Predecessor Funds’ fiscal year ended June 30, while the Funds’ fiscal year ends September 30. Effective January 31, 2008, Class A shares of the Funds were redesignated as Class N shares, except that Class A shares of the Predecessor Funds were redesignated as Class N shares effective October 17, 2007.",
"There were no changes to the rights, fees or expenses of the Class A shares or services provided to Class A shareholders in connection with the change of designation to Class N. Effective December 19, 2011, the then-existing Institutional Class shares of each of the Government Bond Fund, Corporate Bond Fund, California Bond Fund, High Yield Bond Fund, Multi-Asset Fund, Large Cap Value Fund and Large Cap Growth Fund were redesignated as Servicing Class shares.There were no changes to the rights, fees or expenses of the Institutional Class shares or services provided to Institutional Class shareholders in connection with the change of designation to Servicing Class.The current Institutional Class shares of the Government Bond Fund, High Yield Bond Fund, Multi-Asset Fund and Large Cap Value Fund were initially offered in December 2011.",
"Effective November 28, 2012, the then-existing Institutional Class shares of each of the Government Money Market Fund, Prime Money Market Fund and California Tax Exempt Money Market Fund were redesignated as 1 Servicing Class shares.There were no changes to the rights, fees or expenses of the Institutional Class shares or services provided to Institutional Class shareholders in connection with the change of designation to Servicing Class.The current Institutional Class shares of the Prime Money Market Fund were initially offered in November 28, 2012. Each Fund (other than the California Bond Fund) is a diversified fund, which means that it may not, with respect to 75% of its total assets, invest more than 5% of its total assets in the securities of one issuer and in not more than 10% of the outstanding voting securities of an issuer.These limits do not apply to cash, Government securities, and securities of other investment companies. The California Bond Fund is a non-diversified fund, which means it is not subject to the diversification requirements described above. However, the California Bond Fund intends to diversify its assets to the extent necessary to qualify for tax treatment as a regulated investment company under the Internal Revenue Code of 1986, as amended (the “Code”).",
"City National Asset Management, Inc. (“CNAM” or the “Investment Manager”) serves as investment manager to the Funds. As the investment adviser, CNAM allocates portions of the assets of the Full Maturity Fund, the High Yield Bond Fund, the Diversified Equity Fund and the Socially Responsible Equity Fund among one or more of Guggenheim Partners Investment Management, LLC (“Guggenheim”), Robert W. Baird & Co. Incorporated (“Baird”), SKBA Capital Management, LLC (“SKBA”), Boyd Watterson Asset Management LLC (“Boyd Watterson”) and Turner Investments, L.P. (“Turner”) (each a “Sub-Adviser” and collectively the “Sub-Advisers”) and any other sub-adviser which it may engage, subject to approval by the Trust’s Board of Trustees. Each of the Sub-Advisers serves as a sub-adviser to one or more of the Funds, as described more fully below. INVESTMENT TECHNIQUES AND RISK CONSIDERATIONS The Prospectus describes the principal and material non-principal strategies and risks of investing in each Fund. This SAI provides additional information about the Funds’ principal strategies and risks and further describes non-principal strategies and risks of the Funds that an investor should also consider.",
"In recent years, the equity and debt capital markets in the United States and internationally have experienced unprecedented volatility. This caused a significant decline in the value and liquidity of many securities. These market conditions may continue or get worse. Because the situation is unprecedented and widespread, it may be unusually difficult to identify both risks and opportunities using past models of the interplay of market forces, or to predict the duration of these events. MONEY MARKET FUNDS Government Money Fund. It is a fundamental policy of the Government Money Fund to invest, under normal conditions, only in (1) U.S. Treasury obligations, (2) obligations issued or guaranteed as to principal and interest by the agencies or instrumentalities of the U.S. Government, and (3) repurchase agreements involving these obligations.",
"Prime Money Fund. The Prime Money Fund invests generally in the following types of U.S. Dollar-denominated money market instruments, which are deemed to mature in 397 days or less in accordance with federal securities regulations and which CNAM has determined present minimal credit risk: • Commercial paper, including asset-backed commercial paper, rated in the highest rating category by Moody’s Investors Service, Inc. (“Moody’s”), Standard and Poor’s Corporation (“S&P”), Fitch Ratings (“Fitch”), or any other nationally recognized statistical rating organization (“NRSRO”); or commercial paper or notes of issuers with an unsecured debt issue outstanding currently rated in the highest rating category by any NRSRO where the obligation is on the same or a higher level of priority and collateralized to the same extent as the rated issue. 2 • Other corporate obligations such as publicly traded bonds, debentures, and notes rated in the highest rating category by any NRSRO and other similar securities which, if unrated by any NRSRO, are determined by the Investment Manager, using guidelines approved by the Board of Trustees of the Trust (the “Board of Trustees” or the “Board”), to be at least equal in quality to one or more of the above referenced securities. • Obligations of, or guaranteed by, the U.S. or Canadian governments, their agencies or instrumentalities. • Repurchase agreements involving obligations that are suitable for investment under the categories listed above. • Certificates of deposit, time deposits, notes and bankers’ acceptances of U.S. domestic banks (including their foreign branches), Canadian chartered banks, U.S. branches of foreign banks and foreign branches of foreign banks having total assets of $5 billion or greater.",
"California Money Fund. It is a fundamental policy of the California Money Fund to invest, under normal conditions, at least 80% of its net assets in municipal securities that pay interest that, in the opinion of bond counsel, is exempt from federal and California state personal income tax and that is not a preference item for purposes of the federal alternative minimum tax (the “AMT”). These constitute municipal obligations of the State of California and its political subdivisions of municipal authorities and municipal obligations issued by territories or possessions of the United States. The California Money Fund may invest, under normal conditions, up to 20% of its net assets in (1) municipal securities the interest on which is a preference item for purposes of the AMT (although the California Money Fund has no present intention of investing in such securities), and (2) taxable investments. The California Money Fund will not invest 25% or more of its total assets in municipal securities the interest on which is derived from revenues of similar type projects. This restriction does not apply to municipal securities in any of the following categories: public housing authorities, general obligations of states and localities, state and local housing finance authorities, or municipal utilities systems.",
"Money Market Fund Risks. The Money Market Funds will invest in securities which the Investment Manager has determined, according to procedures approved by the Board and factors set forth under Rule 2a-7 under the Investment Company Act of 1940, as amended (the “1940 Act”), to present minimal credit risk. The ratings assigned to commercial paper and other corporate obligations, as well as the guidelines approved by the Board, are intended to enable the Investment Manager to minimize the credit risk with respect to the securities in the Money Market Funds’ portfolios, but there can be no absolute assurance that the Investment Manager will be successful in this regard. If issuer defaults nevertheless occur representing a sufficiently large portion of a Money Market Fund’s portfolio, the Money Market Fund may be unable to maintain stable net asset values of $1.00 per share.",
"CALIFORNIA BOND FUND The California Bond Fund invests in obligations either issued by or on behalf of states, territories and possessions of the United States and the District of Columbia and their political subdivisions, agencies, authorities and instrumentalities, including industrial development bonds, as well as obligations of certain agencies and instrumentalities of the U.S. Government – in each case that pay interest that, in the opinion of bond counsel to the issuer, is exempt from federal income tax (“Municipal Securities”) or exempt from federal and California personal income tax (“California Municipal Securities”). Thus, this Fund generally will have a lower return than if it primarily purchases higher yielding taxable securities. Generally, the value of the Municipal Securities and California Municipal Securities held by this Fund will fluctuate inversely with interest rates.",
"The California Bond Fund is a “non-diversified” investment company under the 1940 Act. However, the Fund is subject to diversification requirements under the Code, which means that, with respect to 50% of its total assets, it 3 may not invest more than 5% of its total assets in the securities of any one issuer (other than the U.S. Government). The balance of its total assets may be invested in as few as two issuers. Thus, up to 25% of the Fund’s total assets may be invested in the securities of any one issuer.",
"For purposes of this limitation, a security is considered to be issued by the governmental entity (or entities) the assets and revenues of which back the security, or, with respect to an industrial development bond, that is backed only by the assets and revenues of a non-governmental user, by such non-governmental user. In certain circumstances, the guarantor of a guaranteed security also may be considered to be an issuer in connection with such guarantee. By investing in a portfolio of municipal securities, a shareholder in the California Bond Fund enjoys greater diversification than an investor holding a single municipal security.",
"The investment return on a non-diversified portfolio, however, typically is dependent upon the performance of a smaller number of issuers relative to the number of issuers held in a diversified portfolio. If the financial condition or market assessment of certain issuers changes, this Fund’s policy of acquiring large positions in the obligations of a relatively small number of issuers may affect the value of its portfolio to a greater extent than if its portfolio were fully diversified. MULTI-ASSET FUND The Multi-Asset Fund invests primarily in shares of other open-end and closed-end investment companies (each, an “Underlying Fund”), including affiliated funds (i.e., the Money Market Funds, Bond Funds and Equity Funds) to the extent permitted by applicable law and subject to certain restrictions set forth in this SAI. The affiliated funds in which the Multi-Asset Fund intends to invest a portion of its assets are the Corporate Bond Fund, Government Bond Fund and High Yield Bond Fund (together, the “Affiliated Underlying Funds”), each of which is managed by the Investment Manager.",
"Generally, under the 1940 Act and Securities and Exchange Commission (“SEC”) rules adopted pursuant to the 1940 Act, the Multi-Asset Fund’s acquisition of the securities of affiliated and unaffiliated funds is subject to the following guidelines and restrictions: • The Multi-Asset Fund may own an unlimited amount of any affiliated fund’s voting securities. • The Multi-Asset Fund and its “affiliated persons” may own no more than 3% of an unaffiliated fund’s voting securities, subject to the following restrictions: • the Multi-Asset Fund and the Underlying Fund, in the aggregate, may not charge a sales load greater than the limits set forth in Rule 2830(d)(3) of the Conduct Rules of the Financial Industry Regulatory Authority, Inc. (“FINRA”) applicable to funds of funds; • the Underlying Fund is not obligated to redeem more than 1% of its total outstanding securities during any period less than 30 days; and • the purchase or acquisition of the Underlying Fund is made pursuant to an arrangement with the Underlying Fund or its principal underwriter whereby the Multi-Asset Fund is obligated either to (i) seek instructions from its shareholders regarding the voting of all proxies with respect to the Underlying Fund and to vote in accordance with such instructions, or (ii) to vote the shares of the Underlying Fund held by the Multi-Asset Fund in the same proportion as the vote of all other shareholders of the Underlying Fund.",
"• The sales load and distribution fees paid by the Multi-Asset Fund with respect to an Underlying Fund, aggregated with any distribution fees of the Multi-Asset Fund, may not be excessive under FINRA rules. • Any Underlying Fund must have a policy that prohibits it from acquiring any securities of registered open-end funds or registered unit investment trusts in reliance on certain sections of the 1940 Act. Underlying Funds typically incur fees that are separate from those fees incurred directly by the Multi-Asset Fund. The Multi-Asset Fund’s purchase of such investment company securities results in the layering of expenses as 4 Multi-Asset Fund shareholders would indirectly bear a proportionate share of the operating expenses of such investment companies, including advisory fees, in addition to paying Fund expenses.",
"Under certain circumstances an open-end investment company in which the Multi-Asset Fund invests may determine to make payment of a redemption by the Multi-Asset Fund wholly or in part by a distribution in kind of securities from its portfolio, instead of in cash. As a result, the Multi-Asset Fund may hold such securities until the Investment Manager determines it is appropriate to dispose of them. Such disposition will impose additional costs on the Fund. Investment decisions by the investment advisers to the registered investment companies in which the Fund invests are made independently of the Multi-Asset Fund. At any particular time, one Underlying Fund may be purchasing shares of an issuer whose shares are being sold by another Underlying Fund.",
"As a result, under these circumstances the Multi-Asset Fund indirectly would incur certain transactional costs without accomplishing any investment purpose. PERMITTED INVESTMENTS Investments by the Funds may include the following types of securities. With respect to the Multi-Asset Fund, references in this section to investments by a Fund include the Multi-Asset Fund’s “direct” investments as well as its “indirect” investments (i.e., investments by its Underlying Funds). Equity Securities. The Equity Funds and the Multi-Asset Fund will (as a principal investment strategy), and the Bond Funds may (as a non-principal investment strategy), invest in equity securities. Equity securities represent ownership interests in a company or corporation, and include common stock, preferred stock, warrants and other rights to acquire such instruments. Holders of equity securities are not creditors of the issuer and, in the event the issuer is liquidated, would be entitled to their pro rata share of the issuer’s asset, if any, after creditors (including the holders of fixed income securities and senior equity securities) are paid. Investments in equity securities in general are subject to market risks and fluctuation in value due to earnings, economic conditions and other factors that may cause their prices to fluctuate over time.",
"The value of convertible equity securities is also affected by prevailing interest rates, the credit quality of the issuer and any call provisions. Fluctuations in the values of equity securities in which a Fund invests will cause the net asset value of the Fund to fluctuate. Investments in small or middle capitalization companies involve greater risk than is customarily associated with larger, more established companies due to the greater business risks of small size, limited markets and financial resources, narrow product lines and the frequent lack of depth of management. The securities of small- or medium-sized companies are often traded over-the-counter, and may not be traded in volumes typical of securities traded on a national securities exchange. Consequently, the securities of smaller companies may have limited market stability and may be subject to more abrupt or erratic market movements than securities of larger, more established companies or the market averages in general.",
"Preferred stock is a blend of the characteristics of a bond and common stock. It can offer the higher yield of a bond and has priority over common stock in equity ownership, but does not have the seniority of a bond and, unlike common stock, it ordinarily does not have voting rights and its participation in the issuer’s growth may be limited. Preferred stock has preference over common stock in the receipt of dividends and in any residual assets after payment to creditors should the issuer be dissolved. Although the dividend is set at a fixed annual rate, in some circumstances it can be changed or omitted by the issuer.The market prices of preferred stocks are subject to changes in interest rates and are more sensitive to changes in the issuer’s creditworthiness than are the prices of debt securities. Warrants and rights permit, but do not obligate, their holder to subscribe for other securities.Warrants and rights are subject to the same market risk as stocks, but may be more volatile in price.In addition, the value of a warrant or right does not necessarily change with the value of the underlying securities and will cease to have value if it is not exercised prior to its expiration date.",
"5 Fixed Income Securities. The Money Market Funds, the Bond Funds and the Multi-Asset Fund will (as a principal investment strategy), and the Equity Funds may (as a non-principal investment strategy), invest in fixed income securities. Fixed income securities are debt obligations issued by the U.S. Government and its agencies, corporations, municipalities and other borrowers. The market values of the Funds’ fixed income investments will change in response to interest rate changes and other factors. During periods of falling interest rates, the values of outstanding fixed income securities generally rise. Conversely, during periods of rising interest rates, the values of such securities generally decline. These fluctuations will generally be greater for longer-term securities than for shorter-term securities. Investors should recognize that, in periods of declining interest rates, the returns of the Funds which invest in debt securities will tend to be somewhat higher than prevailing market rates, and in periods of rising interest rates, the returns of the Funds which invest in debt securities will tend to be somewhat lower.",
"Also, when interest rates are falling, the inflow of net new money to the Funds from the continuous sale of their shares will likely be invested in portfolio instruments producing lower yields than the balance of the portfolios, thereby reducing these Funds’ current returns. In periods of rising interest rates, the opposite can be expected to occur. Changes in the ability of an issuer to make payments of interest and principal when due, in the market’s perception of the issuer’s creditworthiness, and in the rating of any fixed income security by NRSROs also affect the market value of that issuer’s debt securities. Changes in the value of portfolio securities will not necessarily affect cash income derived from these securities, but will affect the Funds’ net asset values.",
"See attached Appendix A for a discussion of fixed income ratings. These Funds’ performance also may be affected by changes in market or economic conditions and other circumstances affecting the financial services industry. Government regulation of banks, savings and loan associations, and finance companies may limit both the amounts and types of loans and other financial commitments these entities can make and the interest rates and fees they can charge. The profitability of the financial services industry, which is largely dependent on the availability and cost of capital funds, has fluctuated in response to volatility in interest rate levels. In addition, the financial services industry is subject to risks resulting from general economic conditions and the potential exposure to credit losses.",
"ETFs. The Multi-Asset Fund will (as a principal investment strategy), and the Government Bond Fund, the Corporate Bond Fund, the California Bond Fund, the High Yield Bond Fund, the U.S. Core Equity Fund, the Large Cap Value Fund and the Large Cap Growth Fund may (as a non-principal investment strategy), invest in exchange-traded funds (“ETFs”), which are registered investment companies that generally seek to track the performance of specific indices.",
"ETFs, such as Barclays Global Investors’ iShares funds, Standard & Poor’s Depository Receipts (“SPDRs”), NASDAQ-100 Index Tracking Stock (“NASDAQ 100s”) and Dow Jones DIAMONDS (“Diamonds”), may be organized as open-end funds or as unit investment trusts (“UITs”). Their shares are listed on stock exchanges and can be traded throughout the day at market-determined prices. iShares, SPDRs, NASDAQ 100s and DIAMONDS are listed on the American Stock Exchange. An ETF generally issues index-based investments in aggregations of 50,000 shares known as “Creation Units” in exchange for a “Portfolio Deposit” consisting of (a) a portfolio of securities substantially similar to the component securities (“Index Securities”) of the applicable index (the “Index”), (b) a cash payment equal to a pro rata portion of the dividends accrued on the ETF’s portfolio securities since the last dividend payment by the ETF, net of expenses and liabilities, and (c) a cash payment or credit (“Balancing Amount”) designed to equalize the net asset value of the Index and the net asset value of a Portfolio Deposit.",
"Shares of ETFs are not individually redeemable, except upon termination of the ETF. To redeem shares of an ETF, an investor must accumulate enough shares of the ETF to reconstitute a Creation Unit. The liquidity of small holdings of ETF shares, therefore, will depend upon the existence of a secondary market for such shares. Upon redemption of a Creation Unit, the portfolio will receive Index Securities and cash identical to the Portfolio Deposit required of an investor wishing to purchase a Creation Unit that day. The price of ETF shares is based upon (but not necessarily identical to) the value of the securities held by the ETF.",
"Accordingly, the level of risk involved in the purchase or sale of ETF shares is similar to the risk involved in 6 the purchase or sale of traditional common stock, with the exception that the pricing mechanism for ETF shares is based on a basket of stocks. Disruptions in the markets for the securities underlying ETF shares purchased or sold by the Fund could result in losses on such shares. There is no assurance that the requirements of the national securities exchanges necessary to maintain the listing of shares of any ETF will continue to be met. A Fund’s investments in any ETF may be limited by the 1940 Act and SEC rules.See “Investment Company Shares” below. Corporate Bonds.",
"The Government Money Fund, the Prime Money Fund, the Limited Maturity Fund, the Corporate Bond Fund, the Full Maturity Fund and the High Yield Bond Fund (as a principal investment strategy) and the California Money Fund, the Government Bond Fund, the California Bond Fund, the Multi-Asset Fund and the Equity Funds (as a non-principal investment strategy) may invest in corporate bonds. Corporations issue bonds and notes to raise money for working capital or for capital expenditures such as plant construction, equipment purchases and expansion. In return for the money loaned to the corporation by shareholders, the corporation promises to pay bondholders interest and to repay the principal amount of the bond or note. Low Grade, High Yield Debt. The High Yield Bond Fund will (as a principal investment strategy), and the Government Bond Fund, the Corporate Bond Fund, the California Bond Fund, the Multi-Asset Fund, the Large Cap Value Fund and the Large Cap Growth Fund may (as a non-principal investment strategy), invest in low grade, high yield debt.",
"There is no bottom limit on the ratings of high yield securities that may be purchased or held by the Funds. In addition, those Funds may invest in unrated securities. Lower rated securities are defined as securities below the fourth highest rating category by an NRSRO, as discussed in Appendix A. Such obligations are speculative and may be in default. Fixed income securities are subject to the risk of an issuer’s ability to meet principal and interest payments on the obligation (credit risk), and may also be subject to price volatility due to such factors as interest rate sensitivity, market perception of the creditworthiness of the issuer and general market liquidity (market risk). Lower rated or unrated (i.e., high yield) securities are more likely to react to developments affecting market and credit risk than are more highly rated securities, which primarily react to movements in the general level of interest rates.Like all fixed income securities, the market values of high yield securities tend to vary inversely with the level of interest rates.",
"Yields and market values of high yield securities will fluctuate over time, reflecting not only changing interest rates but the market’s perception of credit quality and the outlook for economic growth. When economic conditions appear to be deteriorating, medium to lower rated securities may decline in value due to heightened concern over credit quality, regardless of prevailing interest rates. The risk of loss because of default by issuers of high yield securities is generally greater because medium and lower rated securities generally are unsecured and frequently subordinated to the prior payment of senior indebtedness.Investors should carefully consider the relative risks of investing in high yield securities and understand that such securities are not generally meant for short-term investing.",
"Adverse economic developments can disrupt the market for high yield securities and severely affect the ability of issuers, especially highly leveraged issuers, to service their debt obligations or to repay their obligations upon maturity, which may lead to a higher incidence of default on such securities. In addition, the secondary market for high yield securities, which is concentrated in relatively few market makers, may not be as liquid as the secondary market for more highly rated securities. As a result, a Fund’s adviser could find it more difficult to sell these securities or may be able to sell the securities only at prices lower than if such securities were widely traded. Furthermore, the Trust may experience difficulty in valuing certain securities at certain times. Prices realized upon the sale of such lower rated or unrated securities, under these circumstances, may be less than the prices used in calculating the Fund’s net asset value. Prices for high yield securities may be affected by legislative and regulatory developments. These laws could adversely affect a Fund’s net asset value and investment practices, the secondary market value for high yield securities, the financial condition of issuers of these securities and the value of outstanding high yield securities.",
"7 Lower rated or unrated debt obligations also present risks based on payment expectations. If an issuer calls the obligations for redemption, a Fund may have to replace the security with a lower yielding security, resulting in a decreased return for investors. If the Fund experiences unexpected net redemptions, it may be forced to sell its higher rated securities, resulting in a decline in the overall credit quality of the Fund’s investment portfolio and increasing the exposure of the Fund to the risks of high yield securities. Subsequent to its purchase by a Fund, an issue of securities may cease to be rated or its rating may be reduced below the minimum required for purchase by the Fund.Neither such event will require sale of the securities by the Fund, although the Investment Manager (or the relevant Sub-adviser) will consider the event in determining whether the Fund should continue to hold the security.",
"Variable and Floating Rate Instruments. The Money Market Funds, the Limited Maturity Fund and the Full Maturity Fund (as a principal investment strategy) and the Bond Funds (excluding the Limited Maturity Fund and the Full Maturity Fund), the Multi-Asset Fund and the Equity Funds (as a non-principal investment strategy) may invest in variable and floating rate instruments. Certain of the obligations purchased by the Funds may carry variable or floating rates of interest and may involve a conditional or unconditional demand feature. Such obligations may include variable amount master demand notes that permit the indebtedness thereunder to vary in addition to providing for periodic adjustments in the interest rate. Such instruments bear interest at rates which are not fixed, but which vary with changes in specified market rates or indices. The interest rates on these securities may be reset daily, weekly, quarterly or at some other interval, and may have a floor or ceiling on interest rate changes.",
"There is a risk that the current interest rate on such obligations may not accurately reflect existing market interest rates. While such instruments may provide a Fund with a certain degree of protection against rising interest rates, the Fund will participate in any declines in interest rates as well.A demand instrument with a demand notice period exceeding seven days may be considered illiquid if there is no secondary market for such security.The absence of an active secondary market with respect to particular variable and floating rate instruments could make it difficult for a Fund to dispose of a variable or floating rate note if the issuer defaults on its payment obligation or during periods that the Fund is not entitled to exercise its demand rights. Convertible Securities and Warrants.",
"The High Yield Bond Fund (as a principal investment strategy) and the remaining Bond Funds, the Multi-Asset Fund and the Equity Funds may (as a non-principal investment strategy) invest in convertible securities and warrants. A convertible security is a fixed income security (a debt instrument or a preferred stock) which may be converted at a stated price or stated rate within a specified period of time into a certain quantity of the common stock of the same or a different issuer. Convertible securities are senior to common stock in an issuer’s capital structure, but are usually subordinated to similar non-convertible securities. While providing a fixed income stream (generally higher in yield than the income derivable from common stock but lower than that afforded by a similar nonconvertible security), a convertible security also affords an investor the opportunity, through its conversion feature, to participate in the capital appreciation attendant upon a market price advance in the convertible security’s underlying common stock. Although to a lesser extent than with fixed income securities generally, the market value of convertible securities tends to decline as interest rates increase and, conversely, tends to increase as interest rates decline.",
"In addition, because of the conversion feature, the market value of convertible securities tends to vary with fluctuations in the market value of the underlying common stocks and, therefore, also will react to variations in the general market for equity securities.A significant feature of convertible securities is that as the market price of the underlying common stock declines, convertible securities tend to trade increasingly on a yield basis, and so they may not experience market value declines to the same extent as the underlying common stock.When the market price of the underlying common stock increases, the prices of the convertible securities tend to rise as a reflection of the value of the underlying common stock. A warrant gives the holder a right to purchase at any time during a specified period a predetermined number of shares of common stock at a fixed price. Unlike convertible debt securities or preferred stock, warrants do not pay 8 fixed dividends. Investments in warrants involve certain risks, including the possible lack of a liquid market for resale of the warrants, potential price fluctuations as a result of speculation or other factors, and failure of the price of the underlying security to reach or have reasonable prospects of reaching a level at which the warrant can be prudently exercised (in which event the warrant may expire without being exercised, resulting in a loss of the Fund’s entire investment therein). Neither the Diversified Equity Fund nor the Socially Responsible Equity Fund may invest more than 5% of the value of the Fund’s total assets in warrants, including not more than 2% of such assets in warrants not listed on a U.S. stock exchange.",
"Rights and warrants attached to, received in exchange for, or as a distribution on, other securities are not subject to this restriction. Commercial Paper and Other Short-Term Corporate Obligations. Each of the Money Market Funds, the Bond Funds and the Multi-Asset Fund may invest in commercial paper as a non-principal investment strategy. Commercial paper is a short-term, unsecured promissory note issued to finance short-term credit needs. Other short-term corporate obligations include variable amount master demand notes, which are obligations that permit a Fund to invest at varying rates of interest pursuant to direct arrangements between the Fund, as lender, and the borrower.",
"These notes permit daily changes in the amounts borrowed. Because they are direct lending arrangements between the lender and borrower, such instruments generally will not be traded, and there generally is no established secondary market for these obligations, although they are redeemable at face value, plus accrued interest, at any time. If these obligations are not secured by letters of credit or other credit support arrangements, a Fund’s right to redeem its investment depends on the ability of the borrower to pay principal and interest on demand. The value of commercial paper and other securities in the Funds’ portfolios may be adversely affected by the inability of the issuers (or related supporting institutions) to make principal or interest payments on the obligations in a timely manner.",
"Such obligations frequently are not rated by credit rating agencies. Section 4(2) Commercial Paper. The Money Market Funds (as a principal investment strategy) and the other Funds (as a non-principal investment strategy) may invest in Section 4(2) commercial paper. Section 4(2) commercial paper is issued in reliance on an exemption from registration under Section 4(2) of the Securities Act of 1933, as amended (the “1933 Act”). Any resale of such commercial paper must be in an exempt transaction, usually to an institutional investor through the issuer or investment dealers who make a market in such commercial paper. Commercial paper and short-term notes will consist of issues rated at the time of purchase “A-2” or higher by Standard & Poor’s Ratings Services, “Prime-1” or “Prime-2” by Moody’s Investors Service, Inc., or similarly rated by another NRSRO or if unrated, will be determined by the Investment Manager (or the relevant Sub-Adviser) to be of comparable quality. These rating symbols are described in Appendix A. Illiquid Securities. The Funds may invest in illiquid securities as a non-principal investment strategy. Historically, illiquid securities have included securities subject to contractual or legal restrictions on resale because they have not been registered under the 1933 Act, securities which are otherwise not readily marketable and repurchase agreements having a maturity of longer than seven days.",
"Restricted securities are securities that may not be sold freely to the public absent registration under the 1933 Act, or an exemption from registration. Rule 144A under the 1933 Act establishes a safe harbor from the registration requirements of the 1933 Act for resales of certain securities to qualified institutional buyers. Institutional markets for restricted securities sold pursuant to Rule 144A in many cases provide both readily ascertainable values for restricted securities and the ability to liquidate an investment to satisfy share redemption orders. Such markets might include automated systems for the trading, clearance and settlement of unregistered securities of domestic and foreign issuers, such as the PORTAL System sponsored by NASDAQ. An insufficient number of qualified buyers interested in purchasing Rule 144A eligible restricted securities, however, could adversely affect the marketability of such portfolio securities and result in a Fund’s inability to dispose of such securities promptly or at favorable prices.",
"The Board has delegated the function of making day-to-day determinations of liquidity to the Investment Manager (or Sub-Adviser, if any) pursuant to guidelines approved by the Board. The Investment Manager (or Sub-Adviser, if any) will take into account a number of factors in reaching liquidity decisions, including, but not limited to: (1) 9 the frequency of trades for the security, (2) the number of dealers willing and ready to purchase and sell the security, (3) whether any dealers have agreed to make a market in the security, (4) the number of other potential purchasers for the security, and (5) the nature of the securities and the nature of the marketplace trades. To the extent that the Investment Manager (or Sub-Adviser, if any), pursuant to the guidelines approved by the Board, determines a Rule 144A eligible security to be liquid, such a security would not be subject to a Fund’s percentage limit on illiquid securities investment.",
"No Money Market Fund will purchase illiquid securities, including time deposits and repurchase agreements maturing in more than seven days, if, as a result of the purchase, more than 5% of the Fund’s net assets valued at the time of the transaction are invested in such securities. No Equity Fund or Bond Fund will purchase illiquid securities, including time deposits and repurchase agreements maturing in more than seven days, if, as a result of the purchase, more than 15% of the Fund’s net assets (10% of the value of its net assets for the Limited Maturity Fund, the Full Maturity Fund, the Diversified Equity Fund and the Socially Responsible Equity Fund) valued at the time of the transaction are invested in such securities. Each Fund will monitor the level of liquidity and take appropriate action, if necessary, to attempt to maintain adequate liquidity. The investment policy on the purchase of illiquid securities is non-fundamental. Mortgage-Related Securities and Derivative Securities.",
"The Government Money Fund, the Limited Maturity Fund, the Government Bond Fund and the Full Maturity Fund (as a principal investment strategy) and all of the other Funds (as a non-principal investment strategy) may invest in mortgage-related securities. A mortgage-related security is an interest in a pool of mortgage loans and can be considered a derivative security. Most mortgage-related securities are pass-through securities, which means that investors receive payments consisting of a pro rata share of both principal and interest (less servicing and other fees), as well as unscheduled prepayments, as mortgages in the underlying mortgage pool are paid off by the borrowers.",
"Different types of these mortgage-related securities are subject to different combinations of prepayment, extension, interest rate and other market risks. Certain mortgage-related securities are subject to high volatility. The Funds use these securities in an effort to enhance return and as a means to make certain investments not otherwise available to the Funds. If a Fund purchases mortgage-backed securities that are “subordinated” to other interests in the same mortgage pool, the Fund as a holder of those securities may only receive payments after the pool’s obligations to other investors have been satisfied. An unexpectedly high rate of defaults on the mortgages held by a mortgage pool may limit substantially the pool’s ability to make payments of principal or interest to the Fund as a holder of such subordinated securities, reducing the values of those securities or in some cases rendering them worthless; the risk of such defaults is generally higher in the case of mortgage pools that include so-called “subprime” mortgages. An unexpectedly high or low rate of prepayments on a pool’s underlying mortgages may have similar effects on subordinated securities.",
"A mortgage pool may issue securities subject to various levels of subordination; the risk of non-payment affects securities at each level, although the risk is greater in the case of more highly subordinated securities. In general, mortgage loan repayments may be adversely affected by matters such as a general economic turndown, high unemployment, a general slowdown in the real estate market, a drop in the market prices of real estate, or an increase in interest rates resulting in high mortgage payments by holders of adjustable rate mortgages.Forexample, the value of mortgage-related securities has been adversely affected by the recent disruptions in the credit markets, the increase in the default rate on prime and subprime residential mortgages, and the overall decrease in residential home prices from the price levels reached during the 2003-2007 time period.It is possible that, as a result of these and other circumstances, the value of mortgage-related securities will continue to be adversely affected for some time.Because prepayment rates of individual pools vary widely, it is not possible to accurately predict the average life of a particular pool.Common practice is to assume that prepayments will result in an average life ranging from two to ten years for pools of fixed-rate 30-year mortgages.Pools of mortgages with other maturities or different characteristics will have varying average life assumptions.",
"Agency Mortgage-Related Securities. The dominant issuers or guarantors of mortgage-related securities today are the Government National Mortgage Association (“Ginnie Mae”), Fannie Mae (formerly known as the Federal 10 National Mortgage Association) and Freddie Mac (formerly known as the Federal Home Loan Mortgage Corporation). Ginnie Mae creates pass-through securities from pools of government-guaranteed or -insured (Federal Housing Administration or Veterans Administration) mortgages. Fannie Mae and Freddie Mac issue pass-through securities from pools of conventional and federally insured and/or guaranteed residential mortgages. The principal and interest on Ginnie Mae pass-through securities are guaranteed by Ginnie Mae and backed by the full faith and credit of the U.S. Government. Fannie Mae guarantees full and timely payment of all interest and principal, and Freddie Mac guarantees timely payment of interest and ultimate collection of principal of its pass-through securities. Securities from Fannie Mae and Freddie Mac are not backed by the full faith and credit of the U.S. Government but are generally considered to offer minimal credit risks. The yields provided by these mortgage-related securities have historically exceeded the yields on other types of U.S. Government securities with comparable “lives” largely due to the risks associated with prepayment on the underlying mortgages.",
"Adjustable rate mortgage securities (“ARMs”) are pass-through securities representing interests in pools of mortgage loans with adjustable interest rates determined in accordance with a predetermined interest rate index and which may be subject to certain limits. The adjustment feature of ARMs tends to lessen their interest rate sensitivity. Mortgage-Related Securities – Ginnie Mae. Ginnie Mae is a wholly owned corporate instrumentality of the U.S. Government within the Department of Housing and Urban Development. The National Housing Act of 1934, as amended (the “Housing Act”), authorizes Ginnie Mae to guarantee the timely payment of the principal of, and interest on, securities that are based on and backed by a pool of specified mortgage loans. For these types of securities to qualify for a Ginnie Mae guarantee, the underlying collateral must be mortgages insured by the Federal Housing Administration (the “FHA”) under the Housing Act (“FHA Loans”), or Title V of the Housing Act of 1949, as amended (“VA Loans”), or be pools of other eligible mortgage loans. The Housing Act provides that the full faith and credit of the U.S. Government is pledged to the payment of all amounts that may be required to be paid under any guarantee.",
"In order to meet its obligations under a guarantee, Ginnie Mae is authorized to borrow from the U.S. Treasury with no limitations as to amount. Ginnie Mae pass-through securities may represent a proportionate interest in one or more pools of the following types of mortgage loans: (1) fixed-rate level payment mortgage loans; (2) fixed-rate graduated payment mortgage loans; (3) fixed-rate growing equity mortgage loans; (4) fixed-rate mortgage loans secured by manufactured (mobile) homes; (5) mortgage loans on multifamily residential properties under construction; (6) mortgage loans on completed multifamily projects; (7) fixed-rate mortgage loans as to which escrowed funds are used to reduce the borrower’s monthly payments during the early years of the mortgage loans (“buydown” mortgage loans); (8) mortgage loans that provide for adjustments on payments based on periodic changes in interest rates or in other payment terms of the mortgage loans; and (9) mortgage-backed serial notes.",
"Mortgage-Related Securities – Fannie Mae. Fannie Mae is a federally chartered and privately owned corporation established under the Federal National Mortgage Association Charter Act. Fannie Mae was originally organized in 1938 as a U.S. Government agency to add greater liquidity to the mortgage market. Fannie Mae was transformed into a private sector corporation by legislation enacted in 1968. Fannie Mae provides funds to the mortgage market primarily by purchasing home mortgage loans from local lenders, thereby providing them with funds for additional lending. Fannie Mae acquires funds to purchase loans from investors that may not ordinarily invest in mortgage loans directly, thereby expanding the total amount of funds available for housing.",
"Each Fannie Mae pass-through security represents a proportionate interest in one or more pools of FHA Loans, VA Loans or conventional mortgage loans (that is, mortgage loans that are not insured or guaranteed by any U.S. Government agency). The loans contained in those pools consist of one or more of the following: (1) fixed-rate level payment mortgage loans; (2) fixed-rate growing equity mortgage loans; (3) fixed-rate graduated payment mortgage loans; (4) variable-rate mortgage loans; (5) other adjustable-rate mortgage loans; and (6) fixed-rate mortgage loans secured by multifamily projects.",
"11 On September 7, 2008, the Federal Housing Finance Agency (“FHFA”) was appointed as the conservator of Freddie Mac and Fannie Mae for an indefinite period. In accordance with the Federal Housing Finance Regulatory Reform Act of 2008 and the Federal Housing Enterprises Financial Safety and Soundness Act of 1992, as conservator, the FHFA will control and oversee these entities until the FHFA deems them financially sound and solvent. During the conservatorship, each entity’s obligations are expected to be paid in the normal course of business. Although no express guarantee exists for the debt or mortgage-backed securities issued by these entities, the U.S. Department of Treasury, through a secured lending credit facility and a senior preferred stock purchase agreement, has attempted to enhance the ability of the entities to meet their obligations. Mortgage-Related Securities – Freddie Mac.",
"Freddie Mac is a corporate instrumentality of the United States established by the Emergency Home Finance Act of 1970, as amended. Freddie Mac was organized primarily for the purpose of increasing the availability of mortgage credit to finance needed housing. The operations of Freddie Mac currently consist primarily of the purchase of first lien, conventional, residential mortgage loans and participation interests in mortgage loans and the resale of the mortgage loans in the form of mortgage-backed securities. The mortgage loans underlying Freddie Mac securities typically consist of fixed-rate or adjustable-rate mortgage loans with original terms to maturity of between 10 and 30 years, substantially all of which are secured by first liens on one-to-four-family residential properties or multifamily projects.",
"Each mortgage loan must include whole loans, participation interests in whole loans and undivided interests in whole loans and participation in another Freddie Mac security. See the discussion of Fannie Mae in the previous section for information about the 2008 appointment of FHFA as the conservator of Freddie Mac. Privately Issued Mortgage-Related Securities. Mortgage-related securities offered by private issuers include pass-through securities comprised of pools of conventional residential mortgage loans; mortgage-backed bonds which are considered to be obligations of the institution issuing the bonds and are collateralized by mortgage loans; and bonds and “CMOs” collateralized by mortgage-related securities issued by Ginnie Mae, Fannie Mae, Freddie Mac or by pools of conventional mortgages, multifamily or commercial mortgage loans. Each class of a CMO is issued at a specific fixed or floating coupon rate and has a stated maturity or final distribution date.",
"Principal prepayments on the collateral pool may cause the various classes of a CMO to be retired substantially earlier than their stated maturities or final distribution dates. The principal of and interest on the collateral pool may be allocated among the several classes of a CMO in a number of different ways. Generally, the purpose of the allocation of the cash flow of a CMO to the various classes is to obtain a more predictable cash flow to some of the individual tranches than exists with the underlying collateral of the CMO. As a general rule, the more predictable the cash flow is on a CMO tranche, the lower the anticipated yield will be on that tranche at the time of issuance relative to prevailing market yields on mortgage-related securities. Certain classes of CMOs may have priority over others with respect to the receipt of prepayments on the mortgages.",
"Parallel pay CMOs are structured to provide payments of principal on each payment date to more than one class. These simultaneous payments are taken into account in calculating the stated maturity date or final distribution date of each class which, like the other CMO structures, must be retired by its stated maturity date or final distribution date, but may be retired earlier. Planned amortization class CMOs (“PAC Bonds”) are parallel pay CMOs that generally require payments of a specified amount of principal on each payment date; the required principal payment on PAC Bonds have the highest priority after interest has been paid to all classes. Privately issued mortgage-related securities generally offer a higher rate of interest (but greater credit and interest rate risk) than U.S. Government and agency mortgage-related securities because they offer no direct or indirect governmental guarantees. Many issuers or servicers of mortgage-related securities guarantee or provide insurance for timely payment of interest and principal, however. Some mortgage-related securities are offered through private placements that are restricted as to further sale and there may be a limited market for such securities, 12 especially when there is a perceived weakness in the mortgage and real estate market sectors.Without an active trading market, mortgage-backed securities held in a Fund’s portfolio may be particularly difficult to value because of the complexities involved in assessing the value of the underlying mortgage loans.",
"In addition, privately issued mortgage-related securities are not subject to the underwriting requirements for the underlying mortgages that are applicable to mortgage-backed securities that have a government or government-sponsored entity guarantee.As a result, the mortgage loans underlying private mortgage-backed securities may, and frequently do, have less favorable collateral, credit risk or other underwriting characteristics than government or government-sponsored mortgage-backed securities and have wider variances in a number of terms including interest rate, term, size, purpose and borrower characteristics.Privately issued pools more frequently include second mortgages, high loan-to-value mortgages and manufactured housing loans.The coupon rates and maturities of the underlying mortgage loans in a private-label mortgage-backed securities pool may vary to a greater extent than those included in a government guaranteed pool, and the pool may include subprime mortgage loans (loans made to borrowers with weakened credit histories or with a lower capacity to make timely payments on their loans).For these reasons, the loans underlying these securities have had in many cases higher default rates than those loans that meet government underwriting requirements. Adjustable-Rate Mortgage-Related Securities.",
"Because the interest rates on the mortgages underlying ARMs reset periodically, yields of such portfolio securities will gradually align themselves to reflect changes in market rates. Unlike fixed-rate mortgages, which generally decline in value during periods of rising interest rates, ARMs allow a Fund to participate in increases in interest rates through periodic adjustments in the coupons of the underlying mortgages, resulting in both higher current yields and low price fluctuations. Furthermore, if prepayments of principal are made on the underlying mortgages during periods of rising interest rates, a Fund may be able to reinvest such amounts in securities with a higher current rate of return. During periods of declining interest rates, of course, the coupon rates may readjust downward, resulting in lower yields to a Fund. Further, because of this feature, the value of ARMs is unlikely to rise during periods of declining interest rates to the same extent as fixed-rate instruments.",
"The Investment Manager expects that the amount of privately issued mortgage-backed securities that may be purchased by a Fund will not exceed 10% of the value of the Fund’s total assets, and the securities of any one such issuer purchased by a Fund will not exceed 5% of the value of the Fund’s total assets. Other Mortgage-Related Securities. Other mortgage-related securities include securities other than those described above that directly or indirectly represent a participation in, or are secured by and payable from, mortgage loans on real property, including mortgage dollar rolls, CMO residuals or stripped mortgage-backed securities (“SMBS”). Other mortgage-related securities may be equity or debt securities issued by agencies or instrumentalities of the U.S. Government or by private originators of, or investors in, mortgage loans, including savings and loan associations, homebuilders, mortgage banks, commercial banks, investment banks, partnerships, trusts and special purpose entities of the foregoing.",
"Mortgage Dollar Rolls.In forward roll transactions, also known as mortgage “dollar rolls,” a fund sells mortgage-backed securities for delivery in the current month and simultaneously contracts to repurchase substantially similar (same type, coupon and maturity) securities on a specified future date. A fund may enter into a mortgage dollar roll commitment with the intention of entering into an offsetting transaction whereby, rather than accepting delivery of the security on the specified future date, the fund sells the security and then agrees to repurchase a similar security at a later time. In this case, the fund forgoes interest on the security during the roll period and is compensated by the interest earned on the cash proceeds of the initial sale of the security and by the difference between the sale price and the lower repurchase price at the future date. At the time a fund enters into a mortgage dollar roll commitment, the fund will set aside cash or other appropriate liquid securities with a value at least equal to the fund’s obligation under the commitment.",
"A fund’s liquidity and ability to manage its assets might be affected when it sets aside cash or portfolio securities to cover such commitments. Mortgage dollar rolls involve the risk that the market value of the securities the fund is obligated to repurchase under the agreement may decline below the repurchase price. In the event the buyer of securities under a 13 mortgage dollar roll files for bankruptcy or becomes insolvent, a fund’s use of proceeds of the dollar roll may be restricted pending a determination by the other party, or its trustee or receiver, whether to enforce the fund’s obligation to repurchase the securities. Forward roll transactions may have a leveraging effect on a fund, making the value of an investment in the fund more volatile and increasing the fund’s overall investment exposure.",
"CMO Residuals.CMO residuals are mortgage securities issued by agencies or instrumentalities of the U.S. Government or by private originators of, or investors in, mortgage loans, including savings and loan associations, homebuilders, mortgage banks, commercial banks, investment banks and special purpose entities of the foregoing. The cash flow generated by the mortgage assets underlying a series of CMOs is applied first to make required payments of principal and interest on the CMOs and second to pay the related administrative expenses of the issuer. The residual in a CMO structure generally represents the interest in any excess cash flow remaining after making the foregoing payments.",
"Each payment of such excess cash flow to a holder of the related CMO residual represents income and/or a return of capital. The amount of residual cash flow resulting from a CMO will depend on, among other things, the characteristics of the mortgage assets, the coupon rate of each class of CMO, prevailing interest rates, the amount of administrative expenses and the prepayment experience on the mortgage assets. In particular, the yield to maturity on CMO residuals is extremely sensitive to prepayments on the related underlying mortgage assets, in the same manner as an interest-only (“IO”) class of stripped mortgage-backed securities.",
"In addition, if a series of a CMO includes a class that bears interest at an adjustable rate, the yield to maturity on the related CMO residual will also be extremely sensitive to changes in the level of the index upon which interest rate adjustments are based. As described below with respect to stripped mortgage-backed securities, in certain circumstances a Fund may fail to recoup fully its initial investment in a CMO residual. CMO residuals are generally purchased and sold by institutional investors through several investment banking firms acting as brokers or dealers. The CMO residual market has only very recently developed and CMO residuals currently may not have the liquidity of other more established securities trading in other markets. Transactions in CMO residuals are generally completed only after careful review of the characteristics of the securities in question. In addition, CMO residuals may, or, pursuant to an exemption therefrom, may not have been registered under the 1933 Act. CMO residuals, whether or not registered under the 1933 Act, may be subject to certain restrictions on transferability, and may be deemed “illiquid” and subject to a Fund’s limitations on investment in illiquid securities. Stripped Mortgage Backed Securities.Stripped mortgage backed securities (“SMBS”) are derivative multi-class mortgage securities. SMBS may be issued by agencies or instrumentalities of the U.S. Government, or by private originators of, or investors in, mortgage loans, including savings and loan associations, mortgage banks, commercial banks, investment banks and special purpose entities of the foregoing.",
"SMBS are usually structured with two classes that receive different proportions of the interest and principal distributions on a pool of mortgage assets. A common type of SMBS will have one class receiving some of the interest and most of the principal from the mortgage assets, while the other class will receive most of the interest and the remainder of the principal. In the most extreme case, one class will receive all of the interest (the “IO” class), while the other class will receive all of the principal (the principal-only or “PO” class). The yield to maturity on IOs, POs and other mortgage securities that are purchased at a substantial premium or discount generally are extremely sensitive not only to changes in prevailing interest rates but also to the rate of principal payments (including prepayments) on the related underlying mortgage assets, and a rapid rate of principal payments may have a material adverse effect on such securities’ yield to maturity. If the underlying mortgage assets experience greater than anticipated prepayments of principal, a Fund may fail to fully recoup its initial investment in these securities even if the securities have received the highest rating by an NRSRO.",
"14 Although SMBS are purchased and sold by institutional investors through several investment banking firms acting as brokers or dealers, established trading markets have not developed and, accordingly, these securities may be deemed “illiquid” and subject to a Fund’s limitations on investment in illiquid securities. Other types of mortgage-related derivative securities include various types of structured securities with interest rates or, in some cases, principal payable at maturity that change positively or inversely in relation to one or more interest rates, financial indices or other financial indicators (“references prices”).A structured mortgage-backed security may be leveraged to the extent that the magnitude of any change in the interest rate or principal payable on the security is a multiple of the change in the reference price.",
"Such securities may include interest only (“IO”) and principal only (“PO”) securities, floating rate and inverse floating rate securities, floating rate securities linked to the Cost of Funds Index (“COFI floaters”), floating rate securities that are subject to a maximum interest rate (“capped floaters”), dual index floaters (which are subject to depreciation in the event of an unfavorable change in the spread between two designated interest rates) and range floaters (the coupons on which are subject to reduction if a designated interest rate floats outside of a specified interest rate band or collar). These securities may be illiquid and their values may be very volatile. Risks Associated with Prepayments. Prepayments of principal of mortgage-related securities by mortgagors or mortgage foreclosures affect the average life of the mortgage-related securities in the Fund’s portfolio. Mortgage prepayments are affected by the level of interest rates and other factors, including general economic conditions and the underlying location and age of the mortgage.",
"In periods of rising interest rates, the prepayment rate tends to decrease, lengthening the average life of a pool of mortgage-related securities. In periods of falling interest rates, the prepayment rate tends to increase, shortening the average life of a pool. Because prepayments of principal generally occur when interest rates are declining, it is likely that a Fund, to the extent that it retains the same percentage of debt securities, may have to reinvest the proceeds of prepayments at lower interest rates than those of its previous investments. If this occurs, a Fund’s yield will correspondingly decline. Thus, mortgage-related securities may have less potential for capital appreciation in periods of falling interest rates than other fixed income securities of comparable duration, although they may have a comparable risk of decline in market value in periods of rising interest rates.",
"To the extent that a Fund purchases mortgage-related securities at a premium, unscheduled prepayments, which are made at par, result in a loss equal to any unamortized premium. Duration is one of the fundamental tools used by the Investment Manager or a Sub-Adviser in managing interest rate risks, including prepayment risks. Traditionally, a debt security’s “term to maturity” characterizes a security’s sensitivity to changes in interest rates “term to maturity,” however, measures only the time until a debt security provides its final payment, taking no account of pre-maturity payments. Most debt securities provide interest (“coupon”) payments in addition to a final (“par”) payment at maturity, and some securities have call provisions allowing the issuer to repay the instrument in full before maturity date, each of which affects the security’s response to interest rate changes. “Duration” is considered a more precise measure of interest rate risk than “term to maturity.” Determining duration may involve the Investment Manager’s or a Sub-Adviser’s estimates of future economic parameters, which may vary from actual future values.",
"Fixed income securities with effective durations of three years are more responsive to interest rate fluctuations than those with effective durations of one year. For example, if interest rates rise by 1%, the value of securities having an effective duration of three years will generally decrease by approximately 3%. Asset-Backed Commercial Paper. The Government Money Fund and the Prime Money Fund (as a principal investment strategy) and the other Funds (as a non-principal investment strategy) may invest in asset-backed commercial paper(“ABCP”) and other Eligible Securities (as that term is defined below). ABCP is issued by structured investment vehicles or other conduits, and typically has an original term to maturity of up to 270 days.Payment is supported by cash flows from large pools of assets with large numbers of revolving obligors, such as motor vehicle installment sales contracts, installment loan contracts, leases of various types of real and personal property, and receivables from revolving credit (e.g., credit card) agreements. The structured investment vehicles or other conduits issuing the ABCP are sponsored by mortgage companies, investment banking firms, finance companies, hedge funds, private equity firms and special purpose finance entities.",
"15 The credit quality of most ABCP depends primarily on the credit quality of the underlying assets, how well the entity issuing the security is insulated from the credit risk of the originator (or any other affiliated entities), and the amount and quality of any credit support provided to the securities.Payments or distributions of principal and interest on ABCP depend primarily on the cash collections received from the underlying asset portfolio and the conduit’s ability to issue new ABCP.A fund investing in such securities may incur losses in the event or credit or market value deterioration in the underlying portfolio, mismatches in the timing of the cash flows of the underlying asset interests and the repayment obligations of maturing ABCP, or the conduit’s inability to issue new ABCP.To protect investors from such risks, payment may also be supportedwith various protections such ascredit enhancements, liquidity support, various forms of cash collateral accounts or letters of credit, and commercial paper stop-issuance and wind-down triggers.However there can be no guarantee that these protections will be sufficient to prevent losses to investors in ABCP. Some ABCP programs provide for an extension of the maturity date of the ABCP if, on the related maturity date, the conduit is unable to access sufficient liquidity through the issue of additional ABCP.This may delay the sale of the underlying collateral and a fund may incur a loss if the value of the collateral deteriorates during the extension period.Alternatively, if collateral for ABCP commercial paper deteriorates in value, the collateral may be required to be sold at inopportune times or at prices insufficient to repay the principal and interest on the ABCP.ABCP programs may provide for the issuance of subordinated notes as an additional form of credit enhancement.The subordinated notes are typically of a lower credit quality and have a higher risk of default.",
"Asset-Backed Securities. The Limited Maturity Fund and the Full Maturity Fund (as a principal investment strategy) and all of the other Funds (as a non-principal investment strategy) may invest in asset-backed securities.These types of securities represent a director or indirect participation in, or are secured by and payable from, cash flows from pools of assets such as motor vehicle installment sales contracts, installment loan contracts, leases of various types of real and personal property, and receivables from revolving credit (e.g., credit card) agreements. Payment of principal and interest on asset-back securities may largely depend upon the cash flows generated by the assets backing the securities.In an effort to lessen the effect of failures by obligors on these underlying assets to make payments, such securities may contain elements of credit support. Credit support for asset-backed securities may be based on the underlying assets or credit enhancements provided by a third party.Credit support falls into two classes: liquidity protection and protection against ultimate default on the underlying assets. Liquidity protection refers to the provision of advances, generally by the entity administering the pool of assets, to ensure that scheduled payments on the underlying pool are made in a timely fashion.",
"Protection against ultimate default ensures payment on at least a portion of the assets in the pool. This protection may be provided through guarantees, insurance policies, letters of credit obtained from third parties, various means of structuring the transaction, or a combination of such approaches. The degree of credit support provided on each issue is based generally on historical information respecting the level of credit risk associated with such payments. Delinquency or loss in excess of that anticipated could adversely affect the return on an investment in an asset-backed security. Asset-backed securities are subject to the risk of prepayment. Prepayments of principal of asset-backed securities affect the average life of the asset-backed securities in a Fund’s portfolio.",
"Prepayments are affected by the level of interest rates and other factors, including general economic conditions. In periods of rising interest rates, the prepayment rate tends to decrease, lengthening the average life of a pool of asset-backed securities. In periods of falling interest rates, the prepayment rate tends to increase, shortening the average life of a pool. Reinvestment of prepayments may occur at higher or lower interest rates than the original investment, affecting the Fund’s yield.",
"Thus, asset-backed securities may have less potential for capital appreciation in periods of falling interest rates than other fixed income securities of comparable duration, although they may have a comparable risk of decline in market value in periods of rising interest rates. The values of asset-backed securities are affected by, among other things, changes in the market’s perception of the asset backing the security, the creditworthiness of the servicing agent for the loan pool, the originator of the loans, or the financial institution providing any credit enhancement, and the exhaustion of any credit enhancement.In its capacity as purchaser of an asset-backed security, a fund would generally have no recourse to 16 the entity that originated the loans in the event of default by the borrower.Asset backed securities may present certain risks not relevant to mortgage-backed securities.Assets underlying asset-backed securities such as credit card receivables are generally unsecured, and debtors are entitled to the protection of various state and federal consumer protection laws, some of which provide a right of set-off that may reduce the balance owed. Asset-backed securities are relatively new and untested instruments and may be subject to greater risk of default during periods of economic downturn than other securities.In addition, the secondary market for asset-backed securities may not be as liquid as the market for other securities, which may result in difficulty in valuing asset-backed securities. Variable Rate Demand Notes.",
"The California Money Fund and the California Bond Fund (as a principal investment strategy) and all of the other Funds except the Diversified Equity Fund and the Socially Responsible Equity Fund (as a non-principal investment strategy) may invest in variable rate demand notes (“VRDNs”). VRDNs are tax-exempt obligations that contain a floating or variable interest rate adjustment formula and an unconditional right of demand to receive payment of the unpaid principal balance plus accrued interest upon a short notice period prior to specified dates, generally at 30-, 60-, 90-, 180-, or 365-day intervals. The interest rates are generally adjustable at intervals ranging from daily to one year. Adjustment formulas are designed to maintain the market value of the VRDN at approximately the par value of the VRDN upon the adjustment date. The adjustments typically are based upon the prime rate of a bank or some other appropriate interest rate adjustment index. The Funds also may invest in VRDNs in the form of participation interests (“Participating VRDNs”) in variable rate tax-exempt obligations held by a financial institution, typically a commercial bank (“institution”).",
"Participating VRDNs provide a Fund with a specified undivided interest (up to 100%) of the underlying obligation and the right to demand payment of the unpaid principal balance plus accrued interest on the Participating VRDNs from the institution upon a specified number of days’ notice, not to exceed seven. In addition, the Participating VRDN is backed by an irrevocable letter of credit or guaranty of the institution. A Fund has an undivided interest in the underlying obligation and thus participates on the same basis as the institution in such obligation except that the institution typically retains fees out of the interest paid on the obligation for servicing the obligation, providing the letter of credit and issuing the repurchase commitment.",
"Participating VRDNs may be unrated or rated, and their creditworthiness may be a function of the creditworthiness of the issuer, the institution furnishing the irrevocable letter of credit, or both. Accordingly, these Funds may invest in such VRDNs, the issuers or underlying institutions of which the Investment Manager (or Sub-Adviser, if any) believes are creditworthy and satisfy the quality requirements of these Funds. The Investment Manager (or Sub-Adviser, if any) periodically monitors the creditworthiness of the issuer of such securities and the underlying institution. During periods of high inflation and periods of economic slowdown, together with the fiscal measures adopted by governmental authorities to attempt to deal with them, interest rates have varied widely. While the value of the underlying VRDN may change with changes in interest rates generally, the variable rate nature of the underlying VRDN should minimize changes in the value of the instruments.",
"Accordingly, as interest rates decrease or increase, the potential for capital appreciation and the risk of potential capital depreciation is less than would be the case with a portfolio of fixed income securities. Some VRDNs have minimum or maximum rates, or maximum rates set by state law, which limit the degree to which interest on such VRDNs may fluctuate; to the extent they do, increases or decreases in value may be somewhat lesser than would be the case without such limits. Because the adjustment of interest rates on the VRDNs is made in relation to movements of various interest rate adjustment indices, the VRDNs are not comparable to long-term fixed-rate securities.",
"Accordingly, interest rates on the VRDNs may be higher or lower than current market rates for fixed-rate obligations of comparable quality with similar maturities. Exchange-Traded Notes. The Multi-Asset Fund may invest in exchange-traded notes (“ETNs”) as a non-principal investment strategy. ETNs are unsecured debt obligations of investment banks which are traded on 17 exchanges and the returns of which are linked to the performance of market indices. In addition to trading ETNs on exchanges, investors may redeem ETNs directly with the issuer on a weekly basis, typically in a minimum amount of 50,000 units, or hold the ETNs until maturity. ETNs are riskier than ordinary unsecured debt securities and have no principal protection. The Fund will generally invest in ETNs which are linked to commodities indices. The Fund’s investment in an ETN may be influenced by many unpredictable factors, including highly volatile commodities prices, changes in supply and demand relationships, weather, agriculture, trade, changes in interest rates, and monetary and other governmental policies, action and inaction.Investing in ETNs is not equivalent to investing directly in index components or the relevant index itself. Because ETNs are debt securities, they possess credit risk; if the issuer has financial difficulties or goes bankrupt, the investor may not receive the return it was promised.",
"Foreign Securities. The Multi-Asset Fund, the Corporate Bond Fund, the High Yield Bond Fund, the Full Maturity Fund, the Diversified Equity Fund, the Large Cap Value Fund, the Large Cap Growth Fund, and the Socially Responsible Equity Fund (as a principal investment strategy) and all other Funds except for the Government Bond Fund and the California Bond Fund (as a non-principal investment strategy) may invest in securities issued by companies organized or principally doing business in foreign countries and by governments of foreign countries.Each of the Limited Maturity Fund, the Full Maturity Fund, the Diversified Equity Fund and the Socially Responsible Equity Fund may invest up to 15% of its total assets, at the time of purchase, in U.S. dollar-denominated securities of non-U.S. companies.",
"Each of the Limited Maturity Fund, the Full Maturity Fund, the Diversified Equity Fund and the Socially Responsible Equity Fund may invest in securities of certain Canadian issuers and securities purchased by means of sponsored American Depositary Receipts in an amount not to exceed 15% of the Fund’s total assets at the time of purchase, although it currently does not intend to do so. ADRs, EDRs and GDRs.Each Fund other than the Multi-Asset Fund and the U.S.",
"Core Equity Fund makes its foreign investments by investing in American Depositary Receipts (“ADRs”).The Multi-Asset Fund may invest in ADRs, European Depositary Receipts (“EDRs”), Global Depositary Receipts (“GDRs”), other similar global instruments available in emerging markets, other securities convertible into securities of eligible issuers, and other types of foreign securities, and the U.S. Core Equity Fund may invest in ADRs and securities of foreign issuers registered on the NYSE or NASDAQ.ADRs, EDRs and GDRs may not necessarily be denominated in the same currency as the securities for which they may be exchanged. Generally, ADRs in registered form are publicly trades on exchanges or over-the-counter in the United States, and EDRs and other similar global instruments in bearer form are designed for use in European securities markets. ADRs may be sponsored by the foreign issuer or may be unsponsored.",
"Unsponsored ADRs are organized independently and without the cooperation of the foreign issuer of the underlying securities. As a result, available information regarding the issuer may not be as current as for sponsored ADRs, and the prices of unsponsored ADRs may be more volatile than if they were sponsored by the issuers of the underlying securities. In addition, in a sponsored ADR arrangement the foreign issuer assumes the obligation to pay some or all of the depository’s transaction fees, whereas under an unsponsored arrangement the depository’s transaction fees are paid by the ADR holders.For purposes of a Fund’s investment policies, a Fund’s investments in ADRs, EDRs and similar instruments will be deemed to be investments in the equity securities representing the securities of foreign issuers into which they may be converted. Economic, Political and Social Factors.Certain foreign countries may be subject to a greater degree of economic, political and social instability than the United States. Such instability my result from, among other things, authoritarian governments or military involvement in political and economic decision making; popular unrest associated with demands for improved economic, political and social conditions; internal insurgencies; hostile relations with neighboring countries; and ethnic, religious and racial conflict. Economies in individual non-U.S. countries may differ favorably or unfavorably from the U.S. economy in such respects as growth of gross domestic product, rates of inflation, currency valuation, capital reinvestment, resource self-sufficiency and balance of payment position.",
"Foreign investments also involve the possibility of expropriation, nationalization or confiscatory taxation; taxation of income earned in foreign nations (including, for example, withholding taxes on interest and dividends) or other taxes imposed with respect to investments in foreign nations; foreign exchange controls (which may include suspension of the ability to transfer currency from a given country and repatriation of investments); and default in foreign government securities. Such economic, political and social instability could 18 significantly disrupt the financial markets in such countries, the values of foreign investments, and the ability of the issuers in such countries to repay their obligations. The financial problems in global economies over the past several years, including the European sovereign debt crisis, may continue to cause high volatility in global financial markets.In addition, global economies are increasingly interconnected, which increases the possibilities that conditions in one country or region might adversely impact a different country or region.The severity or duration of these conditions may also be affected if one or more countries leave the euro currency or by other policy changes made by governments or quasi-governmental organizations. Foreign Securities Markets and Regulations.There is often less publicly available information about foreign issuers than those in the United States. Foreign companies are often not subject to uniform accounting, auditing and financial reporting standards comparable to those applicable to U.S. companies. In certain countries there is less government supervision and regulation of business and industry practices, stock exchanges, brokers and listed companies than in the United States. Further, the Funds may encounter difficulties in pursuing legal remedies or in obtaining judgments in foreign courts. Brokerage commissions, fees for custodial services and other costs relating to investments in other countries are generally greater than in the United States.",
"Foreign markets have different clearance and settlement procedures from those in the United States, and certain markets have experienced times when settlements did not keep pace with the volume of securities transactions, which resulted in settlement difficulty. The inability of a Fund to make intended security purchases due to settlement difficulties could cause it to miss attractive investment opportunities. Any delay in selling a portfolio security due to settlement problems could result in loss to a Fund if the value of the portfolio security declined, or result in claims against a Fund if it had entered into a contract to sell the security. The securities markets of many of the countries in which the Funds may invest may also be smaller, less liquid and subject to greater price volatility than those in the United States.The less liquid a market, the more difficult it may be for a Fund to accurately price its portfolio securities or to dispose of such securities at desirable times. Foreign Currencies.Certain securities in which the Multi-Asset Fund invests may be denominated in foreign currencies, the values of which will be affected by changes in currency exchange rates and exchange control regulations, and costs will be incurred in connection with conversions between currencies.",
"A change in the value of a foreign currency against the U.S. Dollar will result in a corresponding change in the U.S. Dollar value of the Fund’s securities denominated in the currency. Such changes also affect the Fund’s income and distributions to shareholders. The Fund may be affected either favorably or unfavorably by changes in the relative rates of exchange among the currencies of different nations, and the Fund may therefore engage in foreign currency hedging strategies. Such strategies, however, involve certain transaction costs and investment risks, including dependence upon the Investment Manager’s ability to predict movements in exchange rates. Currency exchange rates generally are determined by the forces of supply and demand in the foreign exchange markets and the relative merits of investments in different countries as viewed from an international perspective.Currency exchange rates can also be affected unpredictably by intervention by U.S. or foreign governments or central banks or by currency controls or political developments in the United States or abroad. Some countries in which the Funds may invest may also have fixed or managed currencies that are not freely convertible at market rates into the U.S. Dollar.",
"Certain currencies may not be internationally traded. A number of these currencies have experienced steady devaluation relative to the U.S. Dollar, and such devaluations in the currencies may have a detrimental impact on a Fund. Many countries in which a Fund may invest have experienced substantial, and in some periods extremely high, rates of inflation for many years. Inflation and rapid fluctuation in inflation rates may have negative effects on certain economies and securities markets. Moreover, the economies of some countries may differ favorably or unfavorably from the U.S. economy in such respects as the rate of growth of gross domestic product, rate of inflation, capital reinvestment, resource self-sufficiency and balance of payments. Certain countries also limit the amount of foreign capital that can be invested in their 19 markets and local companies, creating a “foreign premium” on capital investments available to foreign investors such as the Funds. A Fund may pay a “foreign premium” to establish an investment position which it cannot later recoup because of changes in that country’s foreign investment laws.",
"The Funds may endeavor to buy and sell foreign currencies on favorable terms. Some price spreads on currency exchange (to cover service charges) may be incurred, particularly when the Funds change investments from one country to another or when proceeds from the sale of shares in U.S. Dollars are used for the purchase of securities in foreign countries. The Funds may be affected either favorably or unfavorably by fluctuations in the relative rates of exchange between the currencies of different nations, and by exchange control regulations, as well as indigenous economic and political developments. The Investment Manager (and each Sub-Adviser, as relevant) considers at least annually the likelihood of the imposition by any foreign government of exchange control restrictions that would affect the liquidity of the Funds’ assets maintained with custodians in foreign countries, as well as the degree of risk from political acts of foreign governments to which such assets may be exposed. The Investment Manager (and each Sub-Adviser, as relevant) also considers the degree of risk attendant to holding portfolio securities in domestic and foreign securities depositories.",
"Emerging Market Securities. The Multi-Asset Fund and the Corporate Bond Fund (as a principal investment strategy) and the Government Bond Fund, the California Bond Fund, the High Yield Bond Fund, the Large Cap Value Fund and the Large Cap Growth Fund (as a non-principal investment strategy) may invest in securities of companies in emerging markets. Many of the risks with respect to foreign investments are more pronounced for investments in developing or emerging market countries, such as many of the countries of Asia, Latin America, Eastern Europe, Africa, and the Middle East. Although there is no universally accepted definition, a developing country is generally considered to be a country which is in the initial stages of its industrialization cycle with a per capita gross national product of less than $8,000. The economies of many of these countries are heavily dependent upon international trade and are accordingly affected by protective trade barriers and economic conditions of their trading partners. The enactment by these trading partners of protectionist trade legislation could have a significant adverse effect upon the securities markets of such countries.",
"Many of these countries may also have government exchange controls, currencies with no recognizable market value relative to the established currencies of western market economies, little or no experience in trading in securities, no financial reporting standards, a lack of a banking and securities infrastructure to handle such trading, and a legal tradition which does not recognize rights in private property. In certain of these countries, severe and persistent levels of inflation, including, in some cases, hyperinflation, have, in turn, led to high interest rates, extreme measures by governments to keep inflation in check, and a generally debilitating effect on economic growth. Although inflation in many countries has lessened, there is no guarantee it will remain at lower levels. The political history of certain of these countries has also been characterized by political uncertainty, intervention by the military in civilian and economic spheres (including expropriation, nationalization and confiscation of assets and property, and restrictions on foreign investments and on repatriation of capital invested) and political corruption. Such developments, if they were to reoccur, could reverse favorable trends toward market and economic reform, privatization, and removal of trade barriers, and result in significant disruption in securities markets.",
"A number of these countries are highly dependent on foreign loans for their operation. There have been moratoria on, and reschedulings of, repayment with respect to many countries’ debts. Such events can restrict the flexibility of these debtor nations in the international markets and result in the imposition of onerous conditions on their economies. Hedge Funds. As a non-principal investment strategy, the Government Bond Fund, the Corporate Bond Fund, the California Bond Fund, the High Yield Bond Fund, the Multi-Asset Fund, the Large Cap Value Fund and the Large Cap Growth Fund may invest in private investment funds (“Hedge Funds”) managed by various investment managers (“Managers”) that use a variety of investment strategies, including investment in other Hedge Funds.",
"By investing in Hedge Funds indirectly through a Fund, an investor indirectly bears a portion of the asset-based 20 fees, incentive-based allocations and other expenses borne by the Fund as an investor in Hedge Funds, in addition to the operating expenses of the Fund. The incentive-based allocations assessed by Managers and borne directly by the Fund may create an incentive for Managers to make investments that are riskier or more speculative than those that might have been made in the absence of incentive-based allocations. In addition, because an incentive-based allocation will generally be calculated on a basis that includes unrealized appreciation of a Hedge Fund’s assets, the allocation may be greater than if it were based solely on realized gains. Because the Managers value the Hedge Funds they manage, which directly affects the amount of incentive-based allocations they receive, Managers face a conflict of interest in performing such valuations. Each Manager will receive any incentive-based allocations to which it is entitled irrespective of the performance of the other Hedge Funds and the Fund generally.",
"Accordingly, a Manager that manages a Hedge Fund with positive performance may receive incentive-based compensation from the Fund, which will be borne indirectly by the Fund’s shareholders, even if the Fund’s overall returns are negative. Various risks are associated with the securities and other instruments in which Hedge Funds may invest, their investment strategies and the specialized investment techniques they may use. Hedge Funds are not registered as investment companies under the 1940 Act. Therefore, the Fund, as an investor in Hedge Funds, will not have the benefit of the protections afforded by the 1940 Act to investors in registered investment companies, such as mutual funds. To the extent the Fund invests in a Hedge Fund that allows its investors to effect withdrawals only at certain specified times, the Fund may not be able to withdraw its investment in such Hedge Fund promptly after it has made a decision to do so, which may result in a loss and adversely affect the Fund’s investment return.",
"To the extent the Fund invests in a Hedge Fund that is permitted to distribute securities in kind to investors making withdrawals, upon the Fund’s withdrawal of all or a portion of its interest in such Hedge Fund the Fund may receive securities that are illiquid or difficult to value. Short Sales. The Multi-Asset Fund may engage in short sales of securities as a non-principal part of its overall portfolio management strategy. A short sale is a transaction in which the Fund sells a security it does not own in anticipation that the market price of that security will decline. At the time a short sale is effected, the Fund incurs an obligation to replace the borrowed security at its price at the time the Fund purchases it for delivery to the lender. The price at such time may be more or less than the price at which the security was sold by the Fund. If the price of the security sold short increases between the time of the short sale and the time that the Fund replaces the borrowed security, the Fund will incur a loss; conversely, it the price declines, the Fund will realize a capital gain.",
"The risk of loss is theoretically unlimited if the value of the security sold short continues to increase. Any gain will be decreased, and any loss increased, by the transaction costs incurred in effecting the short sale. Until the security is replaced, the Fund may be required to pay the lender amounts equal to any dividend or interest which accrues during the period of the loan. To borrow the security, the Fund may also be required to pay a premium, which would increase the cost of the security sold. The proceeds of the short sale will be retained by the broker, to the extent necessary to meet margin requirements, until the short position is closed.",
"Until the Fund closes its short position or replaces the borrowed security, the Fund will (a) maintain cash or liquid securities at such levels that the amount so maintained plus the amount deposited with the broker as collateral will equal the current value of the security sold short, or (b) otherwise cover the Fund’s short position. Investment Company Shares. The Multi-Asset Fund (as a principal investment strategy) and all other Funds (as a non-principal investment strategy) may invest in shares of other investment companies, to the extent permitted by applicable law and subject to certain restrictions set forth in this SAI. Investment companies in which a Fund invests typically incur fees that are separate from those fees incurred directly by the Fund. The Funds’ purchase of such investment company securities results in the layering of expenses, such that shareholders would indirectly bear a proportionate share of the operating expenses of such investment companies, including advisory fees, in addition to paying Fund expenses. The Funds limit investments in securities issued by other investment companies in accordance with the 1940 Act and SEC rules. Generally, under the 1940 Act, a Fund may invest its assets in any investment company, as long as the Fund and its affiliated persons own no more than 3% of the outstanding voting stock of the acquired investment company. In addition, any acquisitions of investment company shares by any Affiliated Underlying Funds (i.e., the Funds in which the Multi-Asset Fund invests, which currently may include the Corporate Bond Fund, Government Bond Fund and High Yield Bond Fund) are subject 21 to the following restrictions: (a) no more than 5% of the Affiliated Underlying Fund’s total assets may be invested in any one investment company, and (b) an Affiliated Underlying Fund’s investments in all investment companies is limited to 10% of the Fund’s total assets.",
"These restrictions may not apply to the Fund’s investments in money market mutual funds, if the Fund’s investments fall within the exceptions set forth under SEC rules. See “Investment Techniques and Risk Considerations – Multi-Asset Fund” above for more information about the restrictions applicable to acquisitions by the Multi-Asset Fund of shares of investment companies under the 1940 Act. Zero Coupon Bonds. The Money Market Funds (as a principal investment strategy), and the Bond Funds, the Multi-Asset Fund, the Large Cap Value Fund and the Large Cap Growth Fund (as a non-principal investment strategy) may invest in zero coupon securities, which are debt securities issued or sold at a discount from their face value and do not entitle the holder to any periodic payment of interest prior to maturity, a specified redemption date or a cash payment date. The securities are redeemed at face value on the specified maturity date.",
"The amount of the discount varies depending on the time remaining until maturity or cash payment date, prevailing interest rates, liquidity of the security and perceived credit quality of the issuer. Zero coupon securities also may take the form of debt securities that have been stripped of their unmatured interest coupons, the coupons themselves and receipts or certificates representing interests in such stripped debt obligations and coupons. The market prices of zero coupon securities are generally more volatile than the market prices of interest-bearing securities and respond more to changes in interest rates than interest-bearing securities with similar maturities and credit qualities. The “original issue discount” on the zero coupon bonds must be included ratably in the income of the Fund as the income accrues even though payment has not been received.",
"The Funds nevertheless intend to distribute amounts of cash equal to the currently accrued original issue discount, and this may require liquidating other securities at times the Funds might not otherwise do so and may result in capital loss. Pay-In-Kind Bonds. The Government Bond Fund, the Corporate Bond Fund, the California Bond Fund, the High Yield Bond Fund, the Multi-Asset Fund, the Large Cap Value Fund and the Large Cap Growth Fund may invest in pay-in-kind bonds as a non-principal investment strategy. These are securities which, at the issuer’s option, pay interest in either cash or additional securities for a specified period. Pay-in-kind bonds, like zero coupon bonds, are designed to give an issuer flexibility in managing cash flow.",
"Pay-in-kind bonds are usually less volatile than zero coupon bonds, but more volatile than cash pay securities. REITs. The Bond Funds (excluding the Limited Maturity Fund and the Full Maturity Fund), the Multi-Asset Fund and the Equity Funds may invest in real estate investment trusts (“REITs”) as a non-principal investment strategy. REITs are trusts that invest primarily in commercial real estate or real estate-related loans. A REIT is not taxed on income distributed to its shareholders or unitholders if it complies with statutory requirements relating to its organization, ownership, assets and income, and with an additional statutory requirement that it distribute to its shareholders or unitholders at least 90% of its taxable income for each taxable year. Generally, REITs can be classified as Equity REITs, Mortgage REITs and Hybrid REITs. Equity REITs invest the majority of their assets directly in real property and derive their income primarily from rents and capital gains from appreciation realized through property sales.",
"Mortgage REITs invest the majority of their assets in real estate mortgages and derive their income primarily from interest payments. Hybrid REITs combine the characteristics of both Equity and Mortgage REITs. By investing in REITs indirectly through a Fund, shareholders will bear not only the proportionate share of the expenses of the Fund, but also, indirectly, similar expenses of underlying REITs. A Fund may be subject to certain risks associated with the direct investments of the REITs. REITs may be affected by changes in their underlying properties and by defaults by borrowers or tenants.",
"Mortgage REITs may be affected by the quality of the credit extended. Furthermore, REITs are dependent on specialized management skills. Some REITs may have limited diversification and may be subject to risks inherent in financing a limited number of properties. REITs depend generally on their ability to generate cash flow to make distributions to shareholders or unitholders, and may be subject to defaults by borrowers and to self-liquidations. In addition, a REIT may fail to qualify for its expected tax treatment under the Code or may fail to maintain exemption from registration under the 1940 Act. 22 Privatizations. As a non-principal investment strategy, the Bond Funds (excluding the Limited Maturity Fund and the Full Maturity Fund), the Multi-Asset Fund and the Equity Funds may invest in “privatizations” – foreign governmental programs of selling interests in government-owned or -controlled enterprises – which may represent opportunities for significant capital appreciation.",
"The ability of U.S. entities, such as these Funds, to participate in privatizations may be limited by local law, or the terms for their participation may be less advantageous than for local investors. There can be no assurance that privatization programs will be successful. Special Situations. As a non-principal investment strategy, the Bond Funds (excluding the Limited Maturity Fund and the Full Maturity Fund), the Multi-Asset Fund and the Equity Funds may invest in “special situations” – joint ventures, cooperatives, partnerships, private placements, unlisted securities and similar vehicles. Such Funds believe that carefully selected special situations could enhance their capital appreciation potential. The Funds also may invest in certain types of vehicles or derivative securities that represent indirect investments in foreign markets or securities in which it is impracticable for the Funds to invest directly.",
"Investments in special situations may be illiquid, as determined by the Investment Manager (or Sub-Adviser, if any) based on criteria reviewed by the Board. Forward Foreign Currency Contracts. As a non-principal investment strategy, the Bond Funds (excluding the Limited Maturity Fund and the Full Maturity Fund), the Multi-Asset Fund and the Equity Funds may enter into forward foreign currency contracts. A forward contract involves an obligation to purchase or sell a specific currency amount at a future date, agreed upon by the parties, at a price set at the time of the contract. The Funds may enter into contracts to sell, for a fixed amount of U.S.",
"Dollars or other appropriate currency, the amount of foreign currency approximately equal to the value of some or all of the securities of the Funds denominated in such foreign currency.Forward currency contracts are traded directly between currency traders (usually large commercial banks) and their customers.The cost to a Fund of engaging in such contracts varies with factors such as the currency involved, the length of the contract period and the market conditions then prevailing.Because such contracts are entered into on a principal basis, no fees or commissions are involved. By entering into forward foreign currency contracts, the Funds will seek to protect the value of their investment securities against a decline in the value of a currency. However, these forward foreign currency contracts will not eliminate fluctuations in the underlying prices of the securities. Rather, they simply establish a rate of exchange which one can obtain at some future point in time.",
"Although such contracts tend to minimize the risk of loss due to a decline in the value of the hedged currency, they also tend to limit any potential gain which might result should the value of such currency increase. At the maturity of a forward contract, a Fund may either sell a portfolio security and make delivery of the foreign currency, or it may retain the security and terminate its contractual obligation to deliver the foreign currency by purchasing an “offsetting” contract with the same currency trader, obligating it to purchase, on the same maturity date, the same amount of the foreign currency. These Funds may realize gains or losses from currency transactions. If a Fund engages in a forward currency contract with respect to particular securities, the precise matching of forward currency contract amounts and the value of the securities involved generally will not be possible because the value of such securities, measured in the non-U.S. currency, will change after the contract has been established.Thus a Fund might need to purchase or sell non-U.S. currencies in the spot (cash) market to the extent such non-U.S. currencies are not covered by forward currency contracts.",
"Pursuant to Section 18 of the 1940 Act and SEC staff interpretations thereunder, for forwards that are not contractually required to “cash settle,” a Fund must cover its open positions by segregating liquid assets equal to the contracts’ full notional value. For forwards that are contractually required to cash settle, however, a Fund is permitted to set aside liquid assets in an amount equal to the Fund’s daily marked-to-market (net) obligation (i.e., the Fund’s daily net liability, if any) rather than the notional value. Municipal Securities. The California Money Fund and the California Bond Fund (as a principal investment strategy) and the Government Money Fund, the Prime Money Fund, the Government Bond Fund, the Corporate Bond Fund, the High Yield Bond Fund, the Multi-Asset Fund, the Large Cap Value Fund and the Large Cap 23 Growth Fund (as a non-principal investment strategy) may invest in municipal securities.",
"Municipal securities consist of (1) debt obligations issued by state and local governments or by public authorities to obtain funds to be used for a wide variety of public facilities, for refunding outstanding obligations, for general operating expenses, for lending such funds to other public institutions and facilities, and in anticipation of the receipt of revenue or the issuance of other obligations, and (2) certain private activity and industrial development bonds issued by or on behalf of public authorities to obtain funds to provide for the construction, equipment, repair or improvement of privately operated facilities. The two principal classifications of municipal securities are “general obligation” securities and “limited obligation” or “revenue” securities.General debt obligation securities are backed by the taxing power of the issuing municipality. Accordingly, the capacity of the issuer of a general obligation bond as to the timely payment of interest and the repayment of principal when due is affected by the issuer’s maintenance of its tax base.Revenue obligations are backed by the revenue of a project or facility (for example, tolls from a toll bridge) or class of facilities, or in some cases from the proceeds of a special excise tax or other specific revenue source.Accordingly, the timely payment of interest and the repayment of principal in accordance with the terms of the revenue security is a function of the economic viability of the facility or revenue source.Revenue securities include private activity bonds and industrial development obligations which are not payable from the unrestricted revenues of the issuer.The payment of principal and interest on private activity and industrial development obligations generally depends solely on the ability of the revenues generated by the use of the specified facilities.",
"Municipal securities may also include “moral obligation” bonds, which are normally issued by special purpose public authorities.If the issuer of moral obligation bonds is unable to meet its debt service obligations from current revenues, it may draw on a reserve fund the restoration of which is a moral commitment but not a legal obligations of the state or municipality which created the issuer. Municipal Leases. The California Money Fund, the California Bond Fund and the High Yield Bond Fund may invest in municipal lease obligations – instruments, or participations in instruments, issued in connection with lease obligations or installment purchase contract obligations of municipalities.",
"Although municipal lease obligations do not constitute general obligations of the issuing municipality, a lease obligation is ordinarily backed by the municipality’s covenant to budget for, appropriate funds for, and make the payments due under the lease obligation. Specifically, in the state of California there are often legal covenants to budget for, appropriate funds for, and make the payments due under the lease obligation. However, certain lease obligations contain “non-appropriation” clauses, which provide that the municipality has no obligation to make lease or installment purchase payments in future years if the project is not available for use and occupancy. Municipal leases will be treated as liquid only if they satisfy criteria set forth in guidelines established by the Board, and there can be no assurance that a market will exist or continue to exist for any municipal lease obligation.",
"Municipal Notes. Municipal notes consist of general obligation notes, tax anticipation notes (notes sold to finance working capital needs of the issuer in anticipation of receiving taxes on a future date), revenue anticipation notes (notes sold to provide needed cash prior to receipt of expected non-tax revenues from a specific source), bond anticipation notes, tax and revenue anticipation notes, certificates of indebtedness, demand notes, and construction loan notes.",
"The maturities of the instruments at the time of issue will generally range from 90 days to 397 days. Private Activity and Industrial Development Bonds. The California Money Fund, the California Bond Fund and the High Yield Bond Fund may purchase certain private activity or industrial development bonds, the interest paid on which is exempt from federal income tax. These bonds are issued by or on behalf of public authorities to raise money to finance various privately-owned or -operated facilities for business and manufacturing, housing and pollution control. These bonds are also used to finance public facilities such as airports, mass transit systems, ports, parking or sewage or solid waste disposal facilities, as well as certain other categories. The payment of the principal and interest on such bonds is secured primarily by revenues derived from loan repayments or lease payments by entity owning or operating the facility, which may or may not be guaranteed by a parent company or otherwise secured.Such bonds generally are not secured by a pledge of the taxing power of the issuer of the bonds, and therefore depend on the revenue of a private entity.The continued ability of such an entity to generate sufficient revenues for the payment of principal and interest on such bonds may be affected by many factors, 24 including the size of the entity, its capital structure, demand for its products or services, competition, general economic conditions, government regulation and the extent of the entity’s dependence on revenues from the operation of the particular facility being financed, and may be dependent solely on the revenues generated by the use of the facility.",
"Derivatives.Certain Funds may use various types of derivatives (“Financial Instruments”) as non-principal investment strategies for various reasons, including as a substitute for other investments, to attempt to enhance a portfolio’s total return or yield, or to hedge or otherwise alter the investment characteristics of a portfolio.Except as otherwise provided in its prospectus, this SAI or by applicable law, each such Fund may purchase and sell any type of Financial Instrument, including those which may become available in the future as the Investment Manager or a Sub-Adviser develops new techniques and as new Financial Instruments or other techniques are developed.As with any other investment or investment technique, any such Fund may choose not to make use of derivatives for a variety of reasons (including cost considerations), and there can be no assurance that any derivatives strategy employed will be successful. The use of Financial Instruments may be limited by applicable law and any applicable regulations of the SEC, the Commodity Futures Trading Commission (“CFTC”), or the exchanges on which some Financial Instruments may be traded.In addition, recent legislation calls for new regulation of the derivatives markets.The extent and impact of the regulation is not yet known and may not be known for some time.Any new regulations could adversely affect the value, availability, and performance of derivative instruments, may make them more costly, and may limit or restrict their use by a Fund. Summary of Certain Risks.",
"The use of Financial Instruments involves special considerations and risks, certain of which are summarized below, and may result in losses to a fund. In general, the use of Financial Instruments may increase the volatility of a fund and may involve a small investment of cash relative to the magnitude of the risk or exposure assumed. Even a small investment in derivatives may magnify or otherwise increase investment losses to a fund. As noted above, there can be no assurance that any derivatives strategy will succeed. • Financial Instruments are subject to the risk that the market value of the derivative itself or the market value of underlying instruments will change in a way adverse to a fund’s interest. Many Financial Instruments are complex, and successful use of them depends in part upon an adviser’s ability to forecast correctly future market trends and other financial or economic factors or the value of the underlying security, index, interest rate or currency.",
"Even if the adviser’s forecasts are correct, other factors may cause distortions or dislocations in the markets that result in unsuccessful transactions. Financial Instruments may behave in unexpected ways, especially in abnormal or volatile market conditions. • A fund may be required to maintain assets as “cover,” maintain segregated accounts, post collateral or make margin payments when it takes positions in Financial Instruments.Assets that are segregated or used as cover, margin or collateral may be required to be in the form of cash or liquid securities, and typically may not be sold while the position in the Financial Instrument is open unless they are replaced with other appropriate assets.",
"If markets move against a fund’s position, the fund may be required to maintain or post additional assets and may have to dispose of existing investments to obtain assets acceptable as collateral or margin. This may prevent it from pursuing its investment objective. Assets that are segregated or used as cover, margin or collateral typically are invested, and these investments are subject to risk and may result in losses to a fund. These losses may be substantial, and may be in addition to losses incurred by using the Financial Instrument in question. If a fund is unable to close out its positions, it may be required to continue to maintain such assets or accounts or make such payments until the positions expire or mature, and the fund will continue to be subject to investment risk on the assets. Segregation, cover, margin and collateral requirements may impair a fund’s ability to sell a portfolio security or make an investment at a time when it would otherwise be favorable to do so, or require the fund to sell a portfolio security or close out a derivatives position at a disadvantageous time or price. 25 • A fund’s ability to close out or unwind a position in a Financial Instrument prior to expiration or maturity depends on the existence of a liquid market or, in the absence of such a market, the ability and willingness of the other party to the transaction (the “counterparty”) to enter into a transaction closing out the position.",
"If there is no market or a fund is not successful in its negotiations, the fund may not be able to sell or unwind the derivative position at a particular time or at an anticipated price. This may also be the case if the counterparty to the Financial Instrument becomes insolvent. A fund may be required to make delivery of portfolio securities or other assets underlying a Financial Instrument in order to close out a position or to sell portfolio securities or assets at a disadvantageous time or price in order to obtain cash to close out the position. While the position remains open, a fund continues to be subject to investment risk on the Financial Instrument. A fund may or may not be able to take other actions or enter into other transactions, including hedging transactions, to limit or reduce its exposure to the Financial Instrument. • Certain Financial Instruments transactions may have a leveraging effect on a fund, and adverse changes in the value of the underlying security, index, interest rate, currency or other instrument or measure can result in losses substantially greater than the amount invested in the Financial Instrument itself.",
"When a fund engages in transactions that have a leveraging effect, the value of the fund is likely to be more volatile and all other risks also are likely to be compounded. This is because leverage generally magnifies the effect of any increase or decrease in the value of an asset and creates investment risk with respect to a larger pool of assets than a fund would otherwise have. Certain Financial Instruments have the potential for unlimited loss, regardless of the size of the initial investment. • Many Financial Instruments may be difficult to value or may be valued subjectively. Inaccurate valuations can result in increased payment requirements to counterparties or a loss of value to a fund. • Liquidity risk exists when a particular Financial Instrument is difficult to purchase or sell. If a derivative transaction is particularly large or if the relevant market is illiquid, a fund may be unable to initiate a transaction or liquidate a position at an advantageous time or price.",
"Certain Financial Instruments, including certain over-the-counter (or “OTC”) options and swaps, may be considered illiquid and therefore subject to a fund’s limitation on investments in illiquid securities. • In a hedging transaction there may be imperfect correlation, or even no correlation, between the identity, price or price movements of a Financial Instrument and the identity, price or price movements of the investments being hedged. This lack of correlation may cause the hedge to be unsuccessful and may result in a fund incurring substantial losses and/or not achieving anticipated gains. • Hedging strategies can reduce opportunity for gain by offsetting the positive effect of favorable price movements. Even if the strategy works as intended, a fund might be in a better position had it not attempted to hedge at all. • Financial Instruments transactions used for non-hedging purposes may result in losses which would not be offset by increases in the value of portfolio securities or declines in the cost of securities to be acquired. If a fund enters into a derivatives transaction as an alternative to purchasing or selling other investments or in order to obtain desired exposure to an index or market, the fund will be exposed to the same risks as are incurred in purchasing or selling the other investments directly, as well as the risks of the derivatives transaction itself. • Certain Financial Instruments transactions involve the risk of loss resulting from the insolvency or bankruptcy of the counterparty or the failure by the counterparty to make required payments or otherwise comply with the terms of the contract.",
"In the event of default by a counterparty, a fund may have contractual remedies pursuant to the agreements related to the transaction, which may be limited by applicable law in the case of the counterparty’s bankruptcy. 26 • Certain Financial Instruments transactions, including certain options, swaps, forward contracts, and certain options on foreign currencies, are not entered into or traded on exchanges or in markets regulated by the CFTC or the SEC. Instead, such OTC derivatives are entered into directly by the counterparties and may be traded only through financial institutions acting as market makers. Many of the protections afforded to exchange participants will not be available to participants in OTC derivatives transactions. For example, OTC derivatives transactions are not subject to the guarantee of an exchange or clearinghouse and as a result a fund bears greater risk of default by the counterparties to such transactions.",
"Information available on counterparty creditworthiness may be incomplete or outdated, thus reducing the ability to anticipate counterparty defaults. • Swap contracts involve special risks. Swaps may in some cases be illiquid. In the absence of a central exchange or market for swap transactions, they may be difficult to trade or value, especially in the event of market disruptions. The swap market is a relatively new market and is largely unregulated. It is possible that developments in the swap market, including potential government regulation, could adversely affect a fund’s ability to terminate existing swap agreements or to realize amounts to be received under such agreements. Credit default swaps involve additional risks. For example, credit default swaps increase credit risk since a fund has exposure to both the issuer of the referenced obligation (typically a debt obligation) and the counterparty to the credit default swap.",
"• Financial Instruments involve operational risk. There may be incomplete or erroneous documentation or inadequate collateral or margin, or transactions may fail to settle. The risk of operational failures may be higher for OTC derivatives transactions. For derivatives not guaranteed by an exchange, a fund may have only contractual remedies in the event of a counterparty default, and there may be delays, costs, disagreements as to the meaning of contractual terms and litigation, in enforcing those remedies. • Financial Instruments transactions conducted outside the United States may not be conducted in the same manner as those entered into on U.S. exchanges, and may be subject to different margin, exercise, settlement or expiration procedures.",
"Many of the risks of OTC derivatives transactions are also applicable to derivatives transactions conducted outside the United States. Derivatives transactions conducted outside the United States also are subject to the risks affecting foreign securities, currencies and other instruments. • Financial Instruments involving currency are subject to additional risks. Currency related transactions may be negatively affected by government exchange controls, blockages, and manipulations. Exchange rates may be influenced by factors extrinsic to a country’s economy. Also, there is no systematic reporting of last sale information with respect to foreign currencies. As a result, the information on which trading in currency derivatives is based may not be as complete as, and may be delayed beyond, comparable data for other transactions. • Use of Financial Instruments involves transaction costs, which may be significant.",
"Use of Financial Instruments also may increase the amount of taxable income to shareholders, including in a fund that invests largely in municipal securities. Swap Agreements. The Government Bond Fund, the Corporate Bond Fund, the California Bond Fund, the High Yield Bond Fund, the Multi-Asset Fund, the Large Cap Value Fund and the Large Cap Growth Fund may invest in swap agreements as a non-principal investment strategy. A swap is a financial instrument that typically involves the exchange of cash flows between two parties on specified dates (settlement dates), where the cash flows are based on agreed-upon measures such as prices, interest rates or indices. The nominal amount on which these cash flows are calculated is called the notional amount. Swaps are individually negotiated and structured to include exposure to a variety of different types of investments or market factors, such as interest rates, foreign currency rates, mortgage securities, corporate borrowing rates, security prices, indices or inflation rates. 27 Swap agreements may increase or decrease the overall volatility of the investments of a Fund and its share price. The performance of swap agreements may be affected by a change in the specific interest rate, currency, or other factors that determine the amounts of payments due to and from the Fund.",
"If a swap agreement calls for payments by the Fund, the Fund must be prepared to make such payments when due. In addition, if the counterparty’s creditworthiness declines, the value of a swap agreement would be likely to decline, potentially resulting in losses. Generally, a swap agreement has a fixed maturity date that is agreed upon by the parties. The agreement can be terminated before the maturity date only under limited circumstances, such as default by one of the parties or insolvency, among others, and can be transferred by a party only with the prior written consent of the other party.",
"The Fund may be able to eliminate its exposure under a swap agreement either by assignment or by other disposition, or by entering into an offsetting swap agreement with the same party or a similarly creditworthy party. If the counterparty is unable to meet its obligations under the contract, declares bankruptcy, defaults or becomes insolvent, the Fund may not be able to recover the money it expected to receive under the contract. A swap agreement can be a form of leverage, which can magnify the Fund’s gains or losses. In order to reduce the risk associated with leveraging, the Fund will cover its current obligations under swap agreements according to guidelines established by the SEC. If the Fund enters into a swap agreement on a net basis, it will segregate assets with a daily value at least equal to the excess, if any, of the Fund’s accrued obligations under the swap agreement over the accrued amount the Fund is entitled to receive under the agreement. If the Fund enters into a swap agreement on other than a net basis, it will segregate assets with a value equal to the full amount of the Fund’s accrued obligations under the agreement. Equity Swaps.",
"In a typical equity swap, one party agrees to pay another party the return on a stock, stock index or basket of stocks in return for a specified interest rate. By entering into an equity index swap, for example, the index receiver can gain exposure to stocks making up the index of securities without actually purchasing those stocks. Equity index swaps involve not only the risk associated with investment in the securities represented in the index, but also the risk that the performance of such securities, including dividends, will not exceed the return on the interest rate that the Fund will be committed to pay. Interest Rate Swaps.",
"Interest rate swaps are financial instruments that involve the exchange of one type of interest rate cash flow for another type of interest rate cash flow on specified dates in the future. Some of the different types of interest rate swaps are “fixed-for floating rate swaps,” “termed basis swaps” and “index amortizing swaps.” Fixed-for floating rate swaps involve the exchange of fixed interest rate cash flows for floating rate cash flows. Termed basis swaps entail cash flows to both parties based on floating interest rates, where the interest rate indices are different. Index amortizing swaps are typically fixed-for floating swaps where the notional amount changes if certain conditions are met. Like a traditional investment in a debt security, a Fund could lose money by investing in an interest rate swap if interest rates change adversely. For example, if the Fund enters into a swap where it agrees to exchange a floating rate of interest for a fixed rate of interest, the Fund may have to pay more money than it receives. Similarly, if the Fund enters into a swap where it agrees to exchange a fixed rate of interest for a floating rate of interest, the Fund may receive less money than it has agreed to pay. Options on Securities, Securities Indices and Currencies.",
"As a non-principal investment strategy, each of the Bond Funds, the Multi-Asset Fund and the Equity Funds may purchase put and call options on securities in which it has invested, on foreign currencies represented in its portfolio and on any securities index based in whole or in part on securities in which that Fund may invest. These Funds also may enter into closing sales transactions in order to realize gains or minimize losses on options they have purchased.",
"The Limited Maturity Fund, the Full Maturity Fund, the Diversified Equity Fund and the Socially Responsible Equity Fund may enter into such option transactions only as part of a hedging strategy. 28 Each of these Funds normally will purchase call options in anticipation of an increase in the market value of securities of the type in which it may invest or a positive change in the currency in which such securities are denominated. The purchase of a call option would entitle a Fund, in return for the premium paid, to purchase specified securities or a specified amount of a foreign currency at a specified price during the option period. Each of these Funds normally will purchase put options in anticipation of a decrease in the market value of securities of the type in which it may invest or a negative change in the currency in which such securities are denominated. The purchase of a put option would entitle a Fund, in return for the premium paid, to sell specified securities or a specified amount of a foreign currency at a specified price during the option period.Puts and calls on indices are similar to puts and calls on securities, except that all settlements are in cash and gain or loss depends on changes in the index and the amount of cash is equal to the difference between the closing price of the index and the exercise price times a specified multiple which determines the total dollar value for each point of such difference.",
"Each of these Funds may purchase and sell options traded on U.S. and foreign exchanges. Although a Fund will generally purchase only those options for which there appears to be an active secondary market, there can be no assurance that a liquid secondary market on an exchange will exist for any particular option or at any particular time. For some options, no secondary market on an exchange may exist. In such event, it might not be possible to effect closing transactions in particular options, with the result that a Fund would have to exercise its options in order to realize any profit and would incur transaction costs upon the purchase or sale of the underlying securities. Secondary markets on an exchange may not exist or may not be liquid for a variety of reasons including: (i) insufficient trading interest in certain options; (ii) restrictions on opening transactions or closing transactions imposed by an exchange; (iii) trading halts, suspensions or other restrictions may be imposed with respect to particular classes or series of options; (iv) unusual or unforeseen circumstances which interrupt normal operations on an exchange; (v) inadequate facilities of an exchange or the Options Clearing Corporation to handle current trading volume at all times; or (vi) discontinuance in the future by one or more exchanges for economic or other reasons, of trading of options (or of a particular class or series of options), in which event the secondary market on that exchange (or in that class or series of options) would cease to exist, although outstanding options on that exchange that had been issued by the Options Clearing Corporation as a result of trades on that exchange would continue to be exercisable in accordance with their terms.",
"Although these Funds do not currently intend to do so, they may, in the future, write (i.e., sell) covered put and call options on securities, securities indices and currencies in which they may invest. A covered call option involves a Fund’s giving another party, in return for a premium, the right to buy specified securities owned by that Fund at a specified future date and price set at the time of the contract. A covered call option serves as a partial hedge against a price decline of the underlying security. However, by writing a covered call option, a Fund gives up the opportunity, while the option is in effect, to realize gain from any price increase (above the option exercise price) in the underlying security. In addition, a Fund’s ability to sell the underlying security is limited while the option is in effect unless that Fund effects a closing purchase transaction.A covered put option gives the holder of the option the right to sell the underlying security to the Fund at the stated exercise price. A Fund will receive a premium for writing a put option but will be obligated for as long as the option is outstanding to purchase the underlying security at a price that may be higher than the market value of that security at the time of exercise. In order to “cover” put options it has written, a Fund will cause its custodian to segregate cash, cash equivalents, Government securities or other liquid equity or debt securities with at least the value of the exercise price of the put options. A Fund will not write put options if the aggregate value of the obligations underlying the put options exceeds 25% of that Fund’s total assets.",
"Options on indices may, depending on circumstances, involve greater risk than options on securities.Because index options are settled in cash, when a Fund writes a call on an index it may not be able to provide in advance for its potential settlement obligations by acquiring and holding the underlying securities. The value of an option position will reflect, among other things, the current market value of the underlying investment, the time remaining until expiration, the relationship of the exercise price to the market price of the underlying investment, the historical price volatility of the underlying investment and general market conditions. 29 Options purchased by a fund that expire unexercised have no value, and the fund will realize a loss in the amount of the premium paid and any transaction costs. If an option written by a fund expires unexercised, the fund realizes a gain equal to the premium received at the time the option was written.",
"Transaction costs must be included in these calculations. A fund may effectively terminate its right or obligation under an option by entering into a closing transaction. For example, a fund may terminate its obligation under a call or put option that it had written by purchasing an identical call or put option; this is known as a closing purchase transaction. Conversely, a fund may terminate a position in a put or call option it had purchased by writing an identical put or call option; this is known as a closing sale transaction. Closing transactions permit a fund to realize profits or limit losses on an option position prior to its exercise or expiration. There can be no assurance that it will be possible for a fund to enter into any closing transaction. There is no assurance that higher than anticipated trading activity or other unforeseen events might not, at times, render certain of the facilities of the Options Clearing Corporation inadequate, and result in the institution by an exchange of special procedures that may interfere with the timely execution of the Funds’ option orders. Futures and Options on Futures.",
"The Government Bond Fund, the Corporate Bond Fund, the California Bond Fund, the High Yield Bond Fund, the Multi-Asset Fund, the U.S. Core Equity Fund, the Large Cap Value Fund and the Large Cap Growth Fund may invest in futures contracts and options on futures contracts as a non-principal investment strategy. Futures contracts provide for the future sale by one party and purchase by another party of a specified amount of a specific security or currency at a specified future time at a specified price. An option on a futures contract gives the purchaser the right, in exchange for a premium, to assume a position in a futures contract at a specified exercise price during the term of the option.",
"Although some futures contracts call for making or taking delivery of the underlying securities, generally these obligations are closed out prior to delivery by offsetting purchases or sales of matching futures contracts (contracts traded on the same exchange, on the same underlying security or index, and with the same delivery month). If an offsetting purchase price is less than the original sale price, the Fund realizes a capital gain; if it is more, the Fund realizes a capital loss. Conversely, if an offsetting sale price is more than the original purchase price, a Fund realizes a capital gain; if it is less, the Fund realizes a capital loss. The transaction costs must also be included in these calculations. These Funds may use futures contracts and related options for bona fide hedging purposes, to offset changes in the value of securities held or expected to be acquired or be disposed of, to minimize fluctuations in foreign currencies, or to gain exposure to a particular market or instrument.",
"These Funds will minimize the risk that they will be unable to close out a futures contract by only entering into futures contracts that are traded on national futures exchanges. An index futures contract is a bilateral agreement pursuant to which two parties agree to take or make delivery of an amount of cash equal to a specified dollar amount multiplied by the difference between the bond index value at the close of trading of the contract and the price at which the futures contract is originally struck. No physical delivery of the bonds comprising the index is made; generally contracts are closed out prior to their expiration date. In order to avoid leveraging and related risks, when one of the Funds invests in futures contracts, the Fund will cover positions by depositing an amount of cash or liquid securities equal to the market value of the futures positions held, less margin deposits, in a segregated account and that amount will be marked-to-market on a daily basis.",
"There are risks associated with these activities, including the following: (1) the success of a hedging strategy may depend on an ability to predict movements in the prices of individual securities, fluctuations in markets and movements in interest rates, (2) there may be an imperfect or lack of correlation between the changes in market value of the securities held and the prices of futures and options on futures, (3) there may not be a liquid secondary market for a futures contract or option, (4) trading restrictions or limitations, or increases in initial margin requirements, may be imposed by an exchange, and (5) government regulations may restrict trading in futures contracts and options on futures. 30 The Funds may buy and sell futures contracts and related options to manage exposure to changing interest rates and securities prices.",
"Some strategies reduce a Fund’s exposure to price fluctuations, while others tend to increase market exposure. Futures and options on futures can be volatile instruments and involve certain risks that could negatively impact a Fund’s return. No price is paid upon entering into futures contracts. Instead, a Fund would be required to deposit an amount of cash or U.S. Treasury securities known as “initial margin.” Subsequent payments, called “variation margin,” to and from the broker, would be made on a daily basis as the value of the future position varies (a process known as “marked-to-market”). The margin is in the nature of performance bond or good-faith deposit on a futures contract. Futures and options on futures are taxable instruments. Futures and options on futures are regulated by the CFTC.The Investment Manager and relevant Sub-Adviser have claimed exclusion from the definition of “commodity pool operator” under the Commodity Exchange Act, and therefore are not subject to registration or regulation as a pool operator under that Act. Repurchase Agreements. The Government Money Fund and the Prime Money Fund (as a principal investment strategy) and the California Money Fund, the Government Bond Fund, the Corporate Bond Fund, the California Bond Fund, the High Yield Bond Fund and the Multi-Asset Fund (as a non-principal investment strategy) may engage in repurchase agreements.",
"The Limited Maturity Fund and the Full Maturity Fund may as a non-principal investment strategy enter into repurchase agreements involving the types of securities which are eligible for purchase by those Funds. The Funds expect that there will be no limitation upon the maturity of the securities underlying the repurchase agreements. Repurchase agreements, which may be viewed as a type of secured lending, typically involve the acquisition by a Fund of government securities or other securities from a selling financial institution such as a bank, savings and loan association or broker-dealer. The agreement provides that the Fund will sell back to the institution, and that the institution will repurchase, the underlying security (“collateral”) at a specified price and at a fixed time in the future, usually not more than seven days from the date of purchase.",
"The Fund will receive interest from the institution until the time when the repurchase is to occur. Although such date is deemed to be the maturity date of a repurchase agreement, the maturities of securities subject to repurchase agreements are not subject to any limits and may exceed one year. The Investment Manager (or Sub-Adviser, if applicable) will enter into repurchase agreements on behalf of a Fund only with financial institutions deemed to present minimal risk of bankruptcy during the term of the agreement based on guidelines established and periodically reviewed by the Board. These guidelines currently permit the Funds to enter into repurchase agreements with any bank the Investment Manager (or Sub-Adviser, if any) may recommend if it determines such bank to be creditworthy. Repurchase agreements are considered to be loans collateralized by the underlying security. Repurchase agreements entered into by the Funds will provide that the underlying security at all times shall have a value at least equal to 102% of the price stated in the agreement.",
"This underlying security will be marked-to-market daily. The Investment Manager (or Sub-Adviser, if any) will monitor compliance with this requirement. Under all repurchase agreements entered into by the Funds, the Custodian or its agent must take possession of the underlying collateral. However, if the seller defaults, the Funds could realize a loss on the sale of the underlying security to the extent the proceeds of the sale are less than the resale price. In addition, even though the Bankruptcy Code provides protection for most repurchase agreements, if the seller should be involved in bankruptcy or insolvency proceedings, the Funds may incur delays and costs in selling the security and may suffer a loss of principal and interest if the Funds are treated as unsecured creditors. Repurchase agreements, in some circumstances, may not be tax-exempt. None of these Funds, as a policy, will invest in repurchase agreements that do not mature within seven days if any such investment, together with any other illiquid assets held by the Fund, amount to more than 10% of its total assets. Investments in repurchase agreements may at times be substantial when, in the view of the Investment Manager or relevant Sub-Adviser, as applicable, liquidity or other considerations warrant. 31 Lending of Portfolio Securities.",
"As a non-principal investment strategy, the Government Bond Fund, the Corporate Bond Fund, the California Bond Fund, the High Yield Bond Fund, the Multi-Asset Fund, the U.S. Core Equity Fund, the Large Cap Value Fund and the Large Cap Growth Fund may lend their portfolio securities in order to generate additional income. Such loans may be made to broker-dealers or other financial institutions whose creditworthiness is acceptable to the Investment Manager on behalf of the Funds. These loans would be required to be secured continuously by collateral, including cash, cash equivalents, irrevocable letters of credit, Government securities, or other high-grade liquid debt securities, maintained on a current basis (i.e., marked-to-market daily) at an amount at least equal to 100% of the market value of the securities loaned plus accrued interest. A Fund may pay reasonable administrative and custodial fees in connection with a loan and may pay a negotiated portion of the income earned on the cash to the borrower or placing broker. Loans are subject to termination at the option of a Fund or the borrower at any time. Upon such termination, that Fund is entitled to obtain the return of the securities loaned within five business days. For the duration of the loan, a Fund will continue to receive the equivalent of the interest or dividends paid by the issuer on the securities loaned, will receive proceeds from the investment of the collateral and will have the ability to recall securities in order to exercise voting rights with respect to those securities.",
"As with other extensions of credit, there are risks of delay in recovery or even losses of rights in the securities loaned should the borrower of the securities fail financially. However, the loans will be made only to borrowers deemed by the Investment Manager (or Sub-Adviser, if any) to be creditworthy, and when, in the judgment of the Investment Manager (or Sub-Adviser, if any), the income which can be earned currently from such loans justifies the attendant risk. Standby Commitments and Put Transactions. The California Money Fund and the California Bond Fund (as a principal investment strategy) and the Government Money Fund, the Prime Money Fund, the Government Bond Fund, the Corporate Bond Fund, the High Yield Bond Fund, the Multi-Asset Fund,the Large Cap Value Fund and the Large Cap Growth Fund (as a non-principal investment strategy) may engage in standby commitments and put transactions. The Investment Manager and each Sub-Adviser has the authority to purchase securities at a price which would result in a yield to maturity lower than that generally offered by the seller at the time of purchase when these Funds can simultaneously acquire the right to sell the securities back to the seller, the issuer, or a third party (the “writer”) at an agreed-upon price at any time during a stated period or on a certain date.",
"Such a right is generally denoted as a “standby commitment” or a “put.” The purpose of engaging in transactions involving puts is to maintain flexibility and liquidity to permit these Funds to meet redemptions and remain as fully invested as possible in municipal securities. The right to put the securities depends on the writer’s ability to pay for the securities at the time the put is exercised. The Funds will limit their put transactions to institutions which the Investment Manager (or Sub-Adviser, if any) believes present minimum credit risks, and the Investment Manager (or Sub-Adviser, if any) will use its best efforts to initially determine and continue to monitor the financial strength of the sellers of the puts by evaluating their financial statements and such other information as is available in the marketplace.",
"It may, however, be difficult to monitor the financial strength of the writers because adequate current financial information may not be available. If any writer is unable to honor a put for financial reasons, the investing Fund would be a general creditor (i.e., on a parity with all other unsecured creditors) of the writer. Furthermore, particular provisions of the contract between the Fund and the writer may excuse the writer from repurchasing the securities under certain circumstances (e.g., provisions excusing the writer from repurchasing securities if there is a change in the published rating of the underlying securities or any similar event that has an adverse effect on the issuer’s credit, or provisions that puts will not be exercised except in certain special cases, such as to maintain portfolio liquidity). The Fund could, however, at any time sell the underlying portfolio security in the open market or wait until the portfolio security matures, at which time it should realize the full par value of the security.",
"The securities purchased subject to a put may be sold to third persons at any time, even though the put is outstanding, but the put itself, unless it is an integral part of the security as originally issued, may not be marketable or otherwise assignable. Therefore, the put would have value only to the Fund. Sale of the securities to third parties or lapse of time with the put unexercised may terminate the right to put the securities. Prior to the 32 expiration of any put, the Fund could seek to negotiate terms for its extension.",
"If such a renewal cannot be negotiated on terms satisfactory to the Fund, the Fund could, of course, sell the security. The maturity of the underlying security will generally be different from that of the put. Bank Obligations. The Money Market Funds and the Multi-Asset Fund (as a principal investment strategy) and all other Funds (as a non-principal investment strategy) may invest in all types of bank obligations, including bank notes, bankers’ acceptances, certificates of deposit, and interest-bearing time or other interest-bearing deposits in commercial or savings banks.",
"Bank notes are unsecured promissory notes representing debt obligations that are issued by banks in large denominations. Bankers’ acceptances are bills of exchange or time drafts drawn on and accepted by commercial banks. Bankers’ acceptances are issued by corporations to finance the shipment and storage of goods. Maturities are generally six months or less. A certificate of deposit (a “CD”) is an interest-bearing instrument with a specific maturity. CDs are issued by banks and savings and loan institutions in exchange for the deposit of funds and normally can be traded in the secondary market prior to maturity. Time deposits are non-negotiable deposits maintained at a banking institution for a specified period of time at a specified interest rate. Certificates of deposit and time deposits with penalties for early withdrawal will be considered illiquid. U.S. commercial banks organized under federal law are supervised and examined by the Comptroller of the Currency and are required to be members of the Federal Reserve System and to be insured by the Federal Deposit Insurance Corporation (the “FDIC”).",
"U.S. banks organized under state law are supervised and examined by state banking authorities, but are members of the Federal Reserve System only if they elect to join. Most state banks are insured by the FDIC (although such insurance may not be of material benefit to a fund, depending upon the principal amount of CDs of each held by the fund) and are subject to the federal examination and to a substantial body of federal law and regulation. As a result of federal and state laws and regulations, U.S. branches of U.S. banks are, among other things, generally required to maintain specified levels of reserves, and are subject to other supervision and regulation designed to promote financial soundness. Obligations of foreign branches of U.S. banks, such as CDs and time deposits, may be general obligations of the parent bank in addition to the issuing branch, or may be limited by the terms of a specific obligation and governmental regulation. Such obligations are subject to different risks than are those of U.S. banks or U.S. branches of foreign banks.",
"These risks include foreign economic and political developments, foreign governmental restrictions that may adversely affect payment of principal and interest on the obligations, foreign exchange controls and foreign withholding and other taxes on interest income. Foreign branches of U.S. banks and foreign branches of foreign banks are not necessarily subject to the same or similar regulatory requirements that apply to U.S. banks, such as mandatory reserve requirements, loan limitations and accounting, auditing and financial recordkeeping requirements. In addition, less information may be publicly available about a foreign branch of a U.S. bank or about a foreign bank than about a U.S. bank. Obligations of U.S. branches of foreign banks may be general obligations of the parent bank, in addition to the issuing branch, or may be limited by the terms of a specific obligation and by federal and state regulation as well as governmental action in the country in which the foreign bank has its head office. A U.S. branch of a foreign bank with assets in excess of $1 billion may or may not be subject to reserve requirements imposed by the Federal Reserve System or by the state in which the branch is located if the branch is licensed in that state.",
"In addition, branches licensed by the Comptroller of the Currency and branches licensed by certain states (“State Branches”) may or may not be required to: (a) pledge to the regulator, by depositing assets with a designated bank within the state; and (b) maintain assets within the state in an amount equal to a specified percentage of the aggregate amount of liabilities of the foreign bank payable at or through all of its agencies or branches within the state. The deposits of State Branches may not necessarily be insured by the FDIC. In addition, there may be less publicly available information about a U.S. branch of a foreign bank than about a U.S. bank. Eurodollar Certificates of Deposit and Foreign Securities. The Bond Funds, the Multi-Asset Fund and the Equity Funds may invest in Eurodollar certificates of deposit and foreign securities as a non-principal investment strategy.",
"Before investing in Eurodollar certificates of deposit, the Investment Manager will consider their 33 marketability, possible restrictions on international currency transactions, and any regulations imposed by the domicile country of the foreign issuer. Eurodollar certificates of deposit may not be subject to the same regulatory requirements as certificates of deposit issued by U.S. banks, and associated income may be subject to the imposition of foreign taxes, including withholding taxes. Investments in securities of foreign issuers or securities principally traded overseas may involve certain special risks due to foreign economic, political, and legal developments, as described above. All such securities will be U.S. Dollar denominated. Tax Exempt Commercial Paper. The California Money Fund and the California Bond Fund (as a principal investment strategy), and all other Funds (as a non-principal investment strategy) may invest in tax-exempt commercial paper.",
"Tax exempt commercial paper is an unsecured short-term obligation issued by a government or political sub-division. U.S. Government Agency and Instrumentality Obligations. The Government Money Fund, the Prime Money Fund, the Limited Maturity Fund, the Government Bond Fund, and the Full Maturity Fund (as a principal investment strategy), and all other Funds (as a non-principal investment strategy) may invest in U.S. Government agency and instrumentality obligations. Various agencies of the U.S. Government issue obligations, including but not limited to the Federal Home Loan Bank (“FHLB”), the Student Loan Marketing Association, the Private Export Funding Corporation (an entity established by the U.S. Treasury and the Export/Import Bank of the United States), Farmers Home Administration, Federal Farm Credit Bank, Federal Housing Administration, Ginnie Mae, Maritime Administration, Small Business Administration, and the Tennessee Valley Authority.",
"The Funds may purchase securities guaranteed by Ginnie Mae which represent participation in Veterans Administration and Federal Housing Administration backed mortgage pools. Obligations of instrumentalities of the U.S. Government include securities issued by, among others, FHLB, Freddie Mac, Federal Intermediate Credit Banks, Federal Land Banks, Fannie Mae and the U.S. Postal Service. These obligations include securities supported by the full faith and credit of the U.S. Treasury (i.e., Ginnie Mae), securities supported by the right of the issuer to borrow from the U.S. Treasury (e.g., the Federal Home Loan Banks), securities supported by the discretionary authority of the U.S. government to purchase certain obligations of the agency (such as securities issued by Fannie Mae), and securities supported only by the credit of the instrumentality (such as securities issued by Freddie Mac). U.S. government securities include issues by non-governmental entities (like financial institutions) that carry direct guarantees from U.S. government agencies as part of government initiatives in response to market crises or otherwise.In the case of obligations not backed by the full faith and credit of the Unites States, a Fund must look principally to the agency or instrumentality issuing or guaranteed the obligation for ultimate repayment and may not be able to assert a claim against the United States itself in the event the agency or instrumentality does not meet its commitments.No government agencies or instrumentalities guarantees the market value of the securities it issues, and the market value such securities will fluctuate in response to changesin interest rates.Guarantees of principal by agencies or instrumentalities of the U.S. Government may be a guarantee of payment at the maturity of the obligation so that in the event of a default prior to maturity there might not be a market and thus no means of realizing the value of the obligation prior to maturity.",
"U.S. Treasury Obligations. The Government Money Fund, the Prime Money Fund, the Limited Maturity Fund, the Government Bond Fund, and the Full Maturity Fund (as a principal investment strategy), and all other Funds (as a non-principal investment strategy) may invest in U.S. Treasury obligations, which consist of bills (maturity of one year or less), notes (maturity of one to ten years) and bonds (maturities generally greater than ten years) issued by the U.S. Treasury.The U.S. government does not guarantee the market value of Treasury securities, which fluctuate in response to changes in interest rates.The Funds may also invest in separately traded interest and principal component parts of such obligations, known as Separately Traded Registered Interest and Principal Securities (“STRIPS”), that are transferable through the federal book-entry system.",
"STRIPS are sold as zero coupon securities, which means that they are sold at a substantial discount and redeemed at face value at their maturity date without interim cash payments of interest or principal. This discount is accreted over the life of the security, and such accretion will constitute the income earned on the security for both accounting and tax 34 purposes. Because of these features, such securities may be subject to greater interest rate volatility than interest paying investments. When-Issued Securities and Forward Commitments. The Money Market Funds, the Limited Maturity Fund, the Government Bond Fund, the Corporate Bond Fund, the California Bond Fund, the Full Maturity Fund, the High Yield Bond Fund, the Multi-Asset Fund, the Large Cap Value Fund and the Large Cap Growth Fund may invest in securities on a when-issued or forward commitment basis as a non-principal investment strategy. These investments involve the purchase of debt obligations on a when-issued basis, in which case delivery and payment normally take place within 45 days after the date of commitment to purchase.",
"These securities are subject to market fluctuation due to changes in market interest rates, and it is possible that the market value at the time of settlement could be higher or lower than the purchase price if the general level of interest rates has changed; in that case there could be an unrealized loss at the time of delivery. Delivery of and payment for these securities may occur a month or more after the date of the purchase commitment. Each Fund will maintain with the custodian a separate account with liquid securities or cash in an amount at least equal to these commitments. The interest rate realized on these securities is fixed as of the purchase date, and no interest accrues to these Funds before settlement.",
"Although the Funds generally purchase securities on a when-issued or forward commitment basis with the intention of actually acquiring securities for their portfolios, the Funds may dispose of a when-issued security or forward commitment prior to settlement if the Investment Manager (or Sub-Adviser, if any) deems it appropriate to do so. Because a Fund’s liquidity and ability to manage its portfolio holdings might be affected when it sets aside cash or portfolio securities to cover such purchase commitments, the Investment Manager and each Sub-Adviser, as applicable, expects that commitments to purchase when-issued securities and forward commitments will not exceed 10% of the value of a Fund’s total assets absent unusual market conditions. Borrowing Policy. The Funds may not borrow money except as a temporary measure for extraordinary purposes or for ordinary needs for overdraft protection, and then only in an amount up to 33 1/3% of the value of each Fund’s total assets (10% for the Limited Maturity Fund, the Full Maturity Fund, the Diversified Equity Fund and the Socially Responsible Equity Fund) in order to meet redemption requests without immediately selling any portfolio securities. For the purpose of the investment restriction for the Limited Maturity Fund, the Full Maturity Fund, the Diversified Equity Fund and the Socially Responsible Equity Fund, the use of options and futures transactions and the purchase of securities on a when-issued or delayed delivery basis will not be deemed the borrowing of money.",
"A Fund will not borrow for leverage purposes or purchase securities or make investments while borrowings are outstanding.The Multi-Asset Fund’s Underlying Funds may be subject to different policies, other than the 33 1/3% percentage limitation. If for any reason the current value of the total assets of a Fund falls below an amount equal to three times the amount of indebtedness for money borrowed, the Fund will, within three days (not including Sundays and holidays), reduce its indebtedness to the extent necessary to meet that limitation. Any borrowings under this provision will not be collateralized. Concentration. None of the Funds may concentrate (i.e., invest more than 25% of a Fund’s net assets) in any industry or group of industries, except that a Fund may invest more than 25% of its net assets in the securities of other registered investment companies and securities that are issued or guaranteed by the U.S. Government or its agencies or instrumentalities. The Multi-Asset Fund will consider the investments of each Affiliated Underlying Fund, in addition to the direct investments by the Fund, to determine that in the aggregate no more than 25% of the Fund’s net assets is invested in any industry or group of industries.",
"If the Multi-Asset Fund invests in any unaffiliated fund that is concentrated in any industry or group of industries, the Fund will also consider the investments of that unaffiliated fund to determine that in the aggregate no more than 25% of the Fund’s net assets is invested in any industry or group of industries. Generally, the Multi-Asset Fund expects that any such concentrated unaffiliated fund would be designed to track an index, which the Fund would use to determine the concentrated unaffiliated fund’s sector allocation.",
"Because the Multi-Asset Fund has the ability to invest in concentrated funds, from time to time it may inadvertently become concentrated in an industry or group of industries, which will subject the Fund to losses arising from adverse developments with respect to that industry to a greater extent than if the Fund were not 35 concentrated. If the Multi-Asset Fund were to become inadvertently concentrated, the Fund will take corrective action to ensure compliance with its concentration policy. Securities Ratings.Credit ratings evaluate the safety of principal and interest payments of securities, not their market values. The rating of an issuer is also heavily weighted by past developments and does not necessarily reflect probable future conditions. There is frequently a lag between the time a rating is assigned and the time it is updated.",
"As NRSROs may fail to timely change credit ratings of securities to reflect subsequent events, the Investment Manager or Sub-Adviser will also monitor issuers of such securities. In general, the ratings of NRSROs represent the opinions of these agencies as to the quality of securities that they rate. Such ratings, however, are relative and subjective, are not absolute standards of quality and do not evaluate the market value risk of the securities. These ratings will be used by the funds as initial criteria for the selection of portfolio securities, but the funds also will rely upon the independent advice of the advisers to evaluate potential investments. Among the factors that will be considered are the long-term ability of the issuer to pay principal and interest and general economic trends.",
"Appendix A to this SAI contains further information concerning the rating categories of NRSROs and their significance. If, after purchase, the credit rating on a security is downgraded or the credit quality deteriorates, or if the maturity is extended, a fund’s portfolio managers will decide whether the security should be held or sold. Upon the occurrence of certain triggering events or defaults, the investors in a security held by a fund may become the holders of underlying assets. In that case, the fund may become the holder of securities that it could not otherwise purchase at a time when those assets may be difficult to sell or can be sold only at a loss. California Municipal Securities.Because the California Bond Fund and the California Money Fund invest primarily in California Municipal Securities, the value of their portfolio investments will be highly sensitive to events affecting the fiscal stability of the State of California (sometimes referred to in this section as the “State”) and its municipalities, authorities and other instrumentalities that issue such securities. The following information is based on information available as of the date of this SAI primarily from official statements and prospectuses relating to the State budget and securities offerings of the State, the latest of which is dated January 5, 2012.",
"General Economic Conditions The economy of the State is the largest among the 50 states and one of the largest in the world. The diversified economy of the State has major components in high technology, trade, entertainment, agriculture, manufacturing, government, tourism, construction and services. Certain of the State’s significant industries, such as high technology, are sensitive to economic disruptions in their export markets.",
"In 2008 and most of 2009, the State experienced what was the most significant economic downturn since the Great Depression of the 1930s. Since then, the State’s economy has grown slowly. As a result of continuing weakness in the State economy, State tax revenues declined precipitously, resulting in large budget gaps and occasional cash shortfalls. California followed the nation’s path through the recession and into the recovery. California labor markets deteriorated dramatically during the latter half of 2008 and the first six months of 2009, suffering their worst losses on record. Between June 2008 and June 2009, the State dropped nearly one million nonfarm jobs. These losses moderated as the year progressed and switched to very modest gains during 2010 and early 2011.",
"The 2012-13 Governor's Budget dated January 5, 2012 (the \"2012 Governor's Budget\"), indicates that California is in the midst of an uneven economic recovery.Some sectors of the economy, including high technology and export markets, are doing well. Despite these areas of strength, economic conditions remain hampered by weak real estate markets, consumer confidence lingers at recessionary levels, and volatility in equity markets remains high.The State added 233,100 new jobs from November 2010 to November 2011, causing the unemployment rate to drop from 12.5% in November 2010 to 11.3% in November 2011 (the lowest rate since May 2009).In 2011, California personal income grew nearly $100 billion, the largest gain since 2006. 36 California’s geographic location subjects it to earthquake risks. It is impossible to predict the time, magnitude or location of a major earthquake or its effect on the California economy.",
"In January 1994, a major earthquake struck the Los Angeles area, causing significant damage in a four county area. The possibility exists that another such earthquake could create a major dislocation of the California economy and significantly affect State and local governmental budgets. In addition, California is subject to periodic water shortages owing to drought conditions. In February 2009, the Governor proclaimed a state of emergency due to statewide drought conditions in California. In the proclamation, the Governor requested that urban water users reduce water use by 20%, and directed the Department of Water Resources to, among other things, cooperate with local water agencies to implement aggressive water conservation efforts, and facilitate water transfers to respond to emergency conditions which may arise. State Budgets 2010 Budget Act. The Governor’s Budget for the 2010-11 fiscal year was released in January 2010 (the “2010 Governor’s Budget”).",
"The 2010 Governor's Budget projected that California was slowly emerging from the recession. While the recovery had begun, economic growth was very modest and high unemployment persisted. Baseline revenues fell by more than 20% from their peak, and they were expected to remain for several years approximately 30% lower than 2007-08 projections. Major components of this revenue decline were: capital gains taxes ($8 billion), income tax on wages ($6 billion), tax on other components of income ($7 billion), sales taxes ($11 billion), corporate taxes ($2 billion) and all other taxes ($1 billion). The 2010 Governor’s Budget proposed a combination of spending reductions, alternative funding, fund shifts and additional federal funds to close the $19.9 billion budget gap. This figure was comprised of a current year shortfall of $6.6 billion, a budget year shortfall of $12.3 billion, and a modest reserve of $1 billion. The 2010 Budget Act was passed by the Legislature and signed by Governor Arnold Schwarzenegger on October 8, 2010, the latest budget enactment in State history. The 2010 Budget Act projected revenues and transfers to the General Fund of $94.2 billion, with expenditures of $86.6 billion, leaving a balance on June 30, 2011 (after taking into account the negative beginning fund balance from June 30, 2010, of $6.3 billion) of $1.3 billion.",
"The Budget proposed to resolve an estimated $19.3 billion budget gap with a combination of expenditure reductions (44% of solutions), federal funds (28% of solutions) and various other one-time receipts, loans and other solutions (28% of solutions). Whether the State would be able to receive all the projected receipts or achieve all the planned expenditure reductions depended on future actions at the State and federal level. Furthermore, Proposition 22, an initiative measure approved by the voters on November 2, 2010, prohibited the operation of certain parts of the 2010 Budget Act, with a negative effect of an estimated $850 million on the 2010-11 fiscal year and increased effects on future years.",
"On November 10, 2010, the Legislative Analyst’s Office released a report projecting a possible budget deficit of $6.1 billion at the end of fiscal year 2010-11. In response, Governor Schwarzenegger announced on November 11, 2010, that he would declare a fiscal emergency and call a special session of the Legislature to begin on December 6, 2010 (the first day of the newly-elected Legislature), to address any estimated shortfall in the 2010-11 fiscal year. 2011 Governor's Budget.On November 2, 2010, the voters elected Edmund G. Brown, Jr. as Governor, to start a new term on January 3, 2011.The Governor’s Budget for the 2011-12 fiscal year was released on January 10, 2011 (the “2011 Governor’s Budget”).Although California had begun to recover, the 2011 Governor's Budget projected that it would be years before the more than 1 million lost jobs would be recovered.",
"Baseline revenues were not projected to return to the 2007-08 level until 2013-14 and, even then, the Budget projected that revenues would be insufficient to pay for program services that the State had committed to provide.California was projected to face a budget gap of $25.4 billion in 2011-12. This gap was made up of a 2011 shortfall of $8.2 billion and a 2011-12 shortfall of $17.2 billion.Although the economic downturn had been the chief contributor to California's budget gap, the Budget noted that the State entered the recession with an existing structural budget deficit, meaning that revenues did not cover costs. This structural deficit continued, in part, because of an 37 overreliance on temporary remedies and savings proposals that did not materialize.",
"Some actions adopted over the last decade, such as the Economic Recovery Bonds, added $2.9 billion to the projected budget gap in 2011-12. The 2011 Governor’s Budget proposed to close California's budget gap by significantly reforming State and local programs, substantially reducing State operations, and enacting spending cuts across all service areas. It included a major realignment of public safety programs from the State to local governments (the “Realignment”). The Realignment moves program and fiscal responsibility to the level of government that can best provide the service, eliminating duplication of effort, generating savings, and increasing flexibility.The Budget also maintained existing tax rates in effect for another five years, subject to voter approval. The Budget included $26.4 billion in spending cuts, revenues and other solutions to balance the budget in 2011-12 and into the future, and to provide for a reserve.The Budget reduced spending by $12.5 billion, and included substantial cuts to most major programs.The Budget also included one-time savings and borrowing measures.According to the Budget,$8.2 billion of the budget gap was one-time in nature.",
"In May 2011, the Governor released a revised budget.The revised budget noted that most of the Governor’s spending cuts were approved by the State Legislature in March 2011, which had the effect of significantly reducing the size of the budget deficit.However, the revised budget noted that a sizable budget deficit remained.The revised budget reflected the positive economic data from the early months in 2011.It also reflected other changes such as required increased spending and adjustments made since January 2011 to keep the budget plan accurate and balanced. 2012 Governor’s Budget.The 2012 Governor’s Budget was released on January 5, 2012.The 2012 Governor’s Budget notes that California’s fiscal condition is improving.In 2011, the State faced a $26.6 billion shortfall and future estimated annual budget gaps of $20 billion.In 2012, the State faces a $9.2 billion budget problem and future annual budget gaps of $5 billion or less.The 2012 Governor’s Budget proposes a balanced solution by cutting more deeply into spending while also increasing revenues.The Governor will ask voters in November 2012 to approve an amendment to the State’s Constitution to prevent deep cuts to education and guarantee funding for public safety at the local level.While the passage of the 2011 Governor’s Budget made substantial progress in restoring fiscal stability to the State, the 2012 Governor’s Budget notes that major challenges and threats remain.",
"According to the Budget, achieving savings and controlling costs, especially in the areas of health and human services and corrections, are particularly challenging.Last year, the Governor and the State Legislature agreed to approximately $5 billion in cuts to health and human services programs. Many of these cuts have already been implemented.However, court orders and delayed federal approval related to several budget-balancing cuts in the health and human services area have increased costs by nearly $2 billion.In corrections, the State is working to achieve compliance with a U.S. Supreme Court decision ordering California to reduce State prison overcrowding. The Governor’s administration has planned reforms to reduce the Department of Corrections and Rehabilitation’s budget by 18% — $1.1 billion in 2012-13 — and yield higher savings in the future.",
"The 2012 Governor’s Budget projects that the State will end 2011-12 with a deficit of $4.1 billion. Absent corrective actions, it is projected that the State would spend $5.1 billion more than it takes in during 2012-13. In total, the State faces a $9.2 billion budget problem.As discussed below under “Deficit Solutions,” the Budget proposes a total of $10.3 billion in cuts and revenues to balance the budget and to rebuild a $1.1 billion reserve.As further described below, this $10.3 billion is comprised of $4.22 billion of expenditure reductions, $4.65 billion in revenue increases and $1.43 billion of other solutions. The Current Budget Gap. At the time Governor Brown released the 2011 Governor’s Budget, it was expected that the State would face a budget problem of less than $5 billion in 2012-13. A major contributor to this budget gap was the reduction in sales tax and vehicle license fee rates that went into effect on July 1, 2011.At the time of the revisions to the 2011 Governor’s Budget in May 2011, the State’s economy was gaining momentum, reflected in 38 rising revenue collections.",
"Since then, two events have slowed that progress — the federal debt limit debate and the European fiscal crisis. Consequently, the 2012 Governor’s Budget predicts that the economic recovery from the recession will continue at a slow pace.The employment recovery from this recession has been weak and the Budget predicts that the State’s job level will not reach its pre-recession level until 2016. The slow jobs recovery, due in part to an ongoing slump in the housing market, continues to take its toll on State revenues.General Fund revenues are not projected to return to their 2007-08 level until 2014-15.According to the 2012 Governor’s Budget, accurately forecasting revenues and expenditures is particularly challenging now, given the level of economic uncertainty. The 2012 Governor’s Budget projects a 2012-13 budget problem of $9.2 billion.",
"This is the result of several developments: the problem left over from the prior year is $1.9 billion worse than expected in June 2011; court orders and delayed federal approval related to several budget-balancing cuts in the health and human services area have increased costs by nearly $2 billion; national and international economic developments have pulled State revenues downward for 2011-12; and the elimination of redevelopment agencies, recently validated by the California Supreme Court, results in less General Fund savings in 2011-12 but significantly greater savings going forward, beginning in 2012-13. Deficit Solutions.The 2012 Governor’s Budget proposes a total of $10.3 billion in cuts and revenues to balance and to rebuild a $1.1 billion budget reserve. These proposals are estimated to eliminate future budget problems throughout the forecast period under current projections. This $10.3 billion is comprised of $4.22 billion of expenditure reductions, $4.65 billion in revenue increases and $1.43 billion of other solutions, including loan repayment extensions and unemployment insurance interest payments. In order to cut the deficit in 2011-12, the 2011 Governor’s Budget cut General Fund spending as a share of the economy to its lowest level since 1972-73.",
"State Supplementary Payment grants were reduced to the level in effect in 1983. CalWORKs grants were reduced to below the level in effect in 1987. State support for its universities and courts was cut by about 25% and 20%, respectively. The Adult Day Health Care program, redevelopment agencies, Williamson Act subventions, Home-to-School Transportation, and the refundable child care and dependent tax credit were all eliminated. The Department of Corrections and Rehabilitation’s expenditures will be reduced by approximately 18% once the Realignment is fully implemented. K-14 education funding remains $9 billion below the funding level in 2007-08.The 2012 Governor’s Budget notes that the Governor is seeking additional tax revenues (as discussed below) to mitigate the need for the deepest of cuts; however, these revenues will not be sufficient to close the entire budget gap. In order to balance the budget, the following are a few of the largest spending cuts planned for 2012-13: refocusing CalWORKs and subsidized child care by increasing income support to working families and reducing assistance to families who are not meeting work requirements (savings of $1.4 billion); merging service delivery for those who are eligible for both Medi-Cal and Medicare (savings of $842 million); repealing, making permissive, or suspending many State mandates on local governments that are unnecessary and burdensome (savings of $828 million); eliminating supplemental funding for schools associated with the elimination of the sales tax on gasoline and making other Proposition 98 adjustments (savings of $544 million).Implementing many of these and other proposals will require months of lead time to generate budget savings. The Budget states that if these proposals were adopted on July 1, less than a full year of savings would be generated in 2012-13, and additional cuts would be needed.",
"Similar to last year, the Budget assumes that a portion of its proposals will be adopted by the Legislature by March 1, 2012. The 2012 Governor’s Budget is also based on the assumed passage of the Governor’s constitutional amendment on the November 2012 ballot. This proposal will temporarily increase tax rates on the highest income Californians, and temporarily increase the sales and use tax rate by 0.5%. If the amendment is passed, these two provisions are expected to result in a revenue increase of $6.9 billion through 2012-13.The measure guarantees these new revenues to schools and constitutionally protects the Realignment funds for local public safety. 39 Constraints on the Budget Process. The Balanced Budget Amendment (“Proposition 58”), approved in March 2004 with the State’s Economic Recovery Bonds, requires the State to enact a balanced budget and establish a special reserve in the General Fund and restricts future borrowing to cover budget deficits. As a result of the provisions requiring the enactment of a balanced budget and restricting borrowing, the State would, in some cases, have to take more immediate actions to correct budgetary shortfalls. Proposition 58 requires the Legislature to pass a balanced budget and provides for mid-year adjustments in the event that the budget falls out of balance.",
"The balanced budget determination is made by subtracting expenditures from all available resources, including prior-year balances. If the Governor determines that the State is facing substantial revenue shortfalls or spending deficiencies, the Governor is authorized to declare a fiscal emergency. The Governor would then be required to propose legislation to address the emergency and call the Legislature into special session to consider that legislation. If the Legislature fails to pass and send to the Governor legislation to address the budget fiscal emergency within 45 days, the Legislature would be prohibited from acting on any other bills or adjourning in joint recess until such legislation is passed. Proposition 58 also requires that a special reserve Budget Stabilization Account be established. The Budget Stabilization Account is funded by annual transfers of specified amounts from the General Fund, unless suspended or reduced by the Governor or until a specified maximum amount has been deposited. The Governor’s constitutional amendment, which will appear on the November 2012 ballot, would also strengthen the Budget Stabilization Account. Proposition 58 also prohibits the use of general obligation bonds, revenue bonds, and certain other forms of borrowing to cover fiscal year end budget deficits.",
"The restriction does not apply to certain other types of borrowing, such as short-term borrowing to cover cash shortfalls in the General Fund (including revenue anticipation notes or revenue anticipation warrants currently used by the State), or inter-fund borrowings. Propositions 22 and 26, approved on November 2, 2010, further limit the State's fiscal flexibility.Proposition 22, called the \"Local Taxpayer, Public Safety and Transportation Protection Act of 2010,\" supersedes some parts of Proposition 1A of 2004, prohibits any future action by the Legislature to take, reallocate or borrow money raised by local governments for local purposes, and prohibits changes in the allocation of property taxes among local governments designed to aid State finances.Proposition 26 specifies that a two-thirds vote of both houses of the Legislature is required for any increase in any tax on any taxpayer, eliminating the current practice where a tax increase coupled with a tax reduction is treated as being adopted by a majority vote.Furthermore, any increase in a fee beyond the amount needed to provide the specific service or benefit is deemed a tax requiring a two-thirds vote.",
"Future Budgets.The 2012 Governor’s Budget characterizes the prospects for the national and California economies as guardedly positive.The national recovery regained momentum in the closing months of 2011.Labor markets and manufacturing activity have improved slowly, and exports are making solid improvements over 2010.According to the State, risks to the budget remain. The State faces a “wall of debt,” pension liabilities, other increasing annual obligations, and potential cost increases associated with the federal deficit.In addition to balancing the budget, Governor Brown is planning a path that is expected to meet California’s long-term fiscal challenges.This path includes pension reform, shrinking the State government, paying down the “wall of debt,” containing health care costs, investing in California’s universities and stabilizing funding for education.In addition, there is the prospect of a European financial crisis. It is still too early to know if protective measures of sufficient strength will be approved to minimize the economic fallout.",
"The Budget assumes that at the very least, economic growth in Europe will slow in 2012, which will adversely affect U.S. exports. It cannot be predicted what actions will be taken in the future by the Legislature and the Governor to deal with changing State revenues and expenditures. The State budget will be affected by national and State economic conditions and other factors. 40 State Indebtedness General Obligation Bonds and Revenue Bonds. As of December 1, 2011, the State had approximately $93.5 billion aggregate principal of outstanding long-term general obligation bonds and revenue bonds. Including estimated interest of approximately $74.5 billion, the State’s debt service requirements for general obligation bonds and revenue bonds totaled nearly $167.9 billion. As of December 1, 2011, general obligation bond authorizations of approximately $35.3 billion remained unissued.",
"A ballot measure is slated to be submitted to the voters at the statewide election on November 6, 2012, to approve the issuance of $11.14 billion in general obligation bonds for a wide variety of purposes relating to improvement of California’s water supply systems, drought relief, and groundwater protection. This legislation specifies that not more than one-half of the bonds may be sold before July 1, 2015. Additional bond measures may be included on future election ballots, but any proposed bond measure must first be approved by the Legislature or placed on the ballot through the initiative process.",
"Ratings. As of January 10, 2011, the State’s general obligation bonds were rated A1 by Moody’s, A- by Standard & Poor’s, and A- by Fitch Ratings. It is not possible to determine whether, or the extent to which, Moody’s, Standard & Poor’s or Fitch Ratings will change such ratings in the future. Future Issuance Plans; General Fund Debt Ratio.In 2009 and 2010, over $35.07 billion of general obligation bonds, lease-revenue bonds and Proposition 1A bonds were sold. Although as of October 2011 bond issuance in the past two years had been at record levels, the size of future new money general obligation bond sales was expected to decrease as departments worked to better utilize existing bond cash balances.",
"The State did not issue any general obligation or lease-revenue bonds in spring of 2011. In October 2011, the State Treasurer estimated that the State will issue a combined $15.5 billion of General Fund-backed bonds in 2011-12 and 2012-13. Using these assumptions for debt issuance, the State Treasurer estimated that debt service payments from the General Fund will increase by $95.8 million in 2011-12 and $535.6 million in 2012-13. California’s ratio of debt service to General Fund revenues was 7.1% in 2010-11. That figure is based on $6.8 billion in general obligation, lease revenue and Proposition 1A debt service payments versus $94.8 billion in General Fund revenues. As of October 2011, the State Treasurer estimates this ratio will be 7.8% in 2011-12. That estimate is based on $6.9 billion in debt service payments versus $88.5 billion in General Fund revenues (as projected by California’s Department of Finance).While General Fund debt service is estimated to increase only slightly in the budget year, General Fund debt service has been a fast-growing area of the budget.The State Treasurer expects this trend to continue through the end of this decade, with debt service projected to peak at $7.5 billion in 2019-20.",
"Local Government The primary units of local government in California are the counties, ranging in population from 1,100 (Alpine) to approximately 10.4 million (Los Angeles). Counties are responsible for the provision of many basic services, including indigent healthcare, welfare, jails and public safety in unincorporated areas. There are also 482 incorporated cities and towns and thousands of other special districts formed for education, utilities and other services. The fiscal condition of local governments has been constrained since the enactment of “Proposition 13” in 1978 and later constitutional amendments, which reduced and limited the future growth of property taxes and limited the ability of local governments to impose “special taxes” (those devoted to a specific purpose) without two-thirds voter approval.",
"Proposition 218, another initiative constitutional amendment enacted in 1996, further limited the ability of local governments to raise taxes, fees and other exactions. Counties, in particular, have had fewer options to raise revenues than many other local government entities, and have been required to maintain many services. According to the State, the 2004 Budget Act, related legislation and the enactment of Proposition 1A in 2004 and Proposition 22 in 2010 dramatically changed the State-local fiscal relationship. These constitutional and statutory changes implemented an agreement negotiated between the Governor and local government officials (the “State- 41 local agreement”) in connection with the 2004 Budget Act. One change relates to the reduction of the Vehicle License Fee (“VLF”) rate from 2% to 0.65% of the market value of the vehicle. In order to protect local governments, which had previously received all VLF revenues, the 1.35% reduction in VLF revenue to cities and counties from this rate change was backfilled (or offset) by an increase in the amount of property tax revenues they receive.",
"This worked to the benefit of local governments because the backfill amount annually increases in proportion to the growth in property tax revenues, which has historically grown at a higher rate than VLF revenues, although property tax revenues have declined over the past two years. In 2012-13, the estimated value of the VLF backfill to local governments is $6 billion. As part of the State-local agreement, voters at the November 2004 election approved Proposition 1A of 2004 (also known as Senate Constitutional Amendment No. 4).",
"Proposition 1A of 2004 amended the State Constitution to, among other things, reduce the Legislature’s authority over local government revenue sources by placing restrictions on the State’s access to local governments’ property, sales, and VLF revenues as of November 3, 2004. The Amended 2009 Budget Act authorized the State to exercise its authority under Proposition 1A of 2004 to borrow an amount equal to about 8% of local property tax revenues, or $1.9 billion, which must be repaid within three years. State law was also enacted to create a securitization mechanism for local governments to sell their right to receive the State’s payment obligations to a local government-operated joint powers agency. This joint powers authority sold bonds in a principal amount of $1.895 billion in November 2009 to pay the participating local governments their full property tax allocations when they normally would receive such allocations. Pursuant to Proposition 1A of 2004, the State is required to repay the local government borrowing (which in turn is to be used to repay the bonds of the joint powers agency) no later than June 30, 2013.",
"The 2010 Budget Act includes $90.8 million for the interest payments that are expected to be incurred in that fiscal year to be paid from the General Fund.Proposition 22, adopted on November 2, 2010, supersedes Proposition 1A of 2004 and completely prohibits any future borrowing by the State from local government funds, and generally prohibits the Legislature from making changes in local government funding sources. Allocation of local transportation funds cannot be changed without an extensive process. The Proposition 1A borrowing done as part of the Amended 2009 Budget Act is not affected by Proposition 22. The 2011 Governor’s Budget included the Realignment, which moves public safety programs from the State to local governments. This Realignment moves program and fiscal responsibility to the level of government that can best provide the service, which is expected to eliminate duplication of effort, generate savings, and increase flexibility.",
"The implementation of the Community Corrections Grant Program is expected to end the costly revolving door of lower-level offenders and parole violators through the State’s prisons. The Governor is sponsoring an initiative to provide Constitutional protection for the revenue dedicated to the Realignment. This initiative is also expected to protect local government against future costs imposed upon them, as well as provide mandate protection for the State. Constitutional, Legislative and Other Factors The State is subject to an annual appropriations limit imposed by Article XIII B of the State Constitution (the “Appropriations Limit”). The Appropriations Limit does not restrict appropriations to pay debt service on voter-authorized bonds. Article XIII B prohibits the State from spending “appropriations subject to limitation” in excess of the Appropriations Limit.",
"“Appropriations subject to limitation” are authorizations to spend “proceeds of taxes,” which consist of tax revenues and certain other funds, including proceeds from regulatory licenses, user charges or other fees to the extent that such proceeds exceed “the cost reasonably borne by that entity in providing the regulation, product or service,” but “proceeds of taxes” exclude most State subventions to local governments, tax refunds and some benefit payments such as unemployment insurance. No limit is imposed on appropriations of funds which are not “proceeds of taxes,” such as reasonable user charges or fees and certain other non-tax funds. Various types of appropriations are excluded from the Appropriations Limit. 42 The State’s Appropriations Limit in each year is based on the Limit for the prior year, adjusted annually for changes in State per capita personal income and changes in population, and adjusted, when applicable, for any transfer of financial responsibility for providing services to or from another unit of government or any transfer of the financial source for the provisions of services from tax proceeds to non-tax proceeds.",
"The Legislature has enacted legislation to implement Article XIII B which defines certain terms used in Article XIII B and sets forth the methods for determining the Appropriations Limit. California Government code Section 7912 requires an estimate of the Appropriations Limit to be included in the Governor’s Budget, and thereafter to be subject to the budget process and established in the Budget Act. In November 1988, voters of the State approved Proposition 98, a combined initiative constitutional amendment and statute called the “Classroom Instructional Improvement and Accountability Act.” Proposition 98 changed State funding of public education below the university level and the operation of the Appropriations Limit, primarily by guaranteeing K-14 education a minimum share of General Fund revenues. Proposition 98 permits the Legislature by two-thirds vote of both houses, with the Governor’s concurrence, to suspend the K-14 educations’ minimum funding guarantee for a one-year period.",
"Proposition 98 also contains provisions transferring certain State tax revenues in excess of the Appropriations Limit to K-14 education. Because of the complexities of Article XIII B, the ambiguities and possible inconsistencies in its terms, the applicability of its exceptions and exemptions and the impossibility of predicting future appropriations, it is not possible to predict the impact of this or related legislation on the bonds in the portfolios of the California Bond Fund and the California Money Fund. Article XIII B and other Articles of the State Constitution were adopted as measures that qualified for the ballot pursuant to the State’s initiative process. Other Constitutional amendments affecting State and local taxes and appropriations have been proposed from time to time. If any such initiatives were adopted, the State could be pressured to provide additional financial assistance to local governments or appropriate revenues as mandated by such initiatives.",
"Propositions such as Proposition 98 and others that may be adopted in the future may place increasing pressure on the State’s budget over future years, potentially reducing resources available for other State programs, especially to the extent the Article XIII B spending limit would restrain the State’s ability to fund such other programs by raising taxes. Effect of other State Laws on Bond Obligations. Some of the California Municipal Securities that the California Bond Fund and the California Money Fund can invest in may be obligations payable solely from the revenues of a specific institution or secured by specific properties.",
"These are subject to provisions of California law that could adversely affect the holders of such obligations. For example, the revenues of California health care institutions may be adversely affected by State laws, and California law limits the remedies of a creditor secured by a mortgage or deed of trust on real property. Debt obligations payable solely from revenues of health care institutions may also be insured by the State but no guarantee exists that adequate reserve funds will be appropriated by the Legislature for such purpose. Litigation The State is a party to numerous legal proceedings, many of which normally occur as a result of governmental operations.",
"In addition, the State is involved in certain other legal proceedings that, if decided against the State, might require the State to make significant future expenditures or might impair future revenue sources. Because of the prospective nature of these proceedings, it is not possible to predict the outcome of such litigation or to estimate the potential impact on the ability of the State to pay debt service costs on its obligations. 43 INVESTMENT RESTRICTIONS – MONEY MARKET FUNDS Except as otherwise noted with an asterisk (*), the restrictions of the Money Market Fund below are non-fundamental and can be changed as to a Money Market Fund by the Board without a vote of shareholders. The Money Market Funds may not: 1. *Subject to the provisions of Rule 2a-7 under the 1940 Act, purchase securities of any issuer (other than obligations of, or guaranteed by, the U.S. Government, its agencies or instrumentalities) if, as a result thereof, more than 5% of the value of its total assets would be invested in the securities of such issuer.",
"2. Purchase more than 10% of any class of securities of any issuer. All debt securities and all preferred stocks are each considered as one class. 3. *Concentrate 25% or more of the value of its total assets in any one industry or group of industries; provided, however, that a Fund may invest up to 100% of its assets in certificates of deposit or bankers’ acceptances issued by domestic branches of U.S. banks and U.S. branches of foreign banks (which the Fund has determined to be subject to the same regulation as U.S. banks), or obligations of, or guaranteed by, the U.S. Government, its agencies or instrumentalities in accordance with its investment objective and policies.",
"As to the California Money Fund, this restriction does not apply to municipal securities in any of the following categories: public housing; general obligations of states and localities; state and local finance authorities or municipal utilities systems. 4. Enter into repurchase agreements if, as a result thereof, more than 10% of its net assets valued at the time of the transaction would be subject to repurchase agreements maturing in more than seven days and invested in securities restricted as to disposition under the federal securities laws (except commercial paper issued under Section 4(2) of the 1933 Act).",
"The Money Market Funds will invest no more than 5% of their net assets in illiquid securities. 5. *Invest in commodities or commodity contracts, futures contracts, real estate or real estate limited partnerships, although it may invest in securities which are secured by real estate and securities of issuers which invest or deal in real estate. 6. Invest for the purpose of exercising control or management of another issuer. 7. Purchase securities of other investment companies, except in connection with a merger, consolidation, reorganization, or acquisition of assets, or as may otherwise be permitted by a Fund’s prospectus and the 1940 Act. 8. *Make loans to others (except through the purchase of debt obligations or repurchase agreements in accordance with its investment objectives and policies).",
"9. *Borrow money, except as a temporary measure for extraordinary or emergency purposes, and then only in an amount up to one-third of the value of its total assets in order to meet redemption requests without immediately selling any portfolio securities. A Fund will not borrow for leverage purposes or purchase securities or make investments while borrowings are outstanding. Any borrowings by a Fund will not be collateralized. If for any reason the current value of the total assets of a Fund falls below an amount equal to three times the amount of indebtedness for money borrowed, the Fund will, within three business days, reduce its indebtedness to the extent necessary to meet that limitation.",
"44 Write, purchase or sell puts, calls or combinations thereof except as otherwise noted in this SAI. Make short sales of securities or purchase any securities on margin, except to obtain such short-term credits as may be necessary for the clearance of transactions. *Underwrite securities issued by others, except to the extent it may be deemed to be an underwriter under the federal securities laws in connection with the disposition of securities from its investment portfolio. *Issue senior securities as defined in the 1940 Act. Invest in interests or leases in oil, gas or other mineral exploration or development programs. Except for restrictions (3), (4) and (9), if a percentage restriction is adhered to at the time of investment, a later increase in percentage resulting from a change in values or net or total assets will not be considered a violation of that restriction.",
"The Money Market Funds will only purchase securities that the Investment Manager has determined, according to procedures approved by the Board and factors set forth in Rule 2a-7 under the 1940 Act, present minimal credit risk and are First Tier Securities (otherwise referred to as “Eligible Securities”). An Eligible Security is: a security with a remaining maturity of 397 days or less: (a) that is rated by an NRSRO (currently Moody’s, S&P, Fitch or, with respect to debt issued by banks, bank holding companies, United Kingdom building societies, broker-dealers and broker-dealers’ parent companies, and bank-supported debt) in one of the two highest rating categories for short-term debt obligations (two NRSROs are required but one rating suffices if only one NRSRO rates the security), or (b) that itself was unrated by any NRSRO, but was issued by an issuer that has outstanding a class of short-term debt obligations (or any security within that class) meeting the requirements of subparagraph 1(a) above that is of comparable priority and security; a security that at the time of issuance was a long-term security but has a remaining maturity of 397 days or less, and whose issuer received a rating within one of the two highest rating categories from the requisite NRSROs for short-term debt obligations with respect to a class of short-term debt obligations (or any security within that class) that is now comparable in priority and security with the subject security; a security that at the time of issuance was a long-term security but has a remaining maturity of 397 days or less, and whose issuer received a rating within one of the three highest rating categories from the requisite NRSROs for long-term debt obligations; or a security not rated by an NRSRO but deemed by the Investment Manager, pursuant to guidelines adopted by the Board of Trustees, to be of comparable quality to securities described in (1) and (2) above and to represent minimal credit risk.",
"A First Tier Security is any Eligible Security, as defined above, that (1) carries (or if other relevant securities issued by its issuer carry) top NRSRO ratings from at least two NRSROs (a single top rating suffices if only one NRSRO rates the security), (2) has been determined by the Investment Manager, pursuant to guidelines adopted by the Board, to be of comparable quality to such a security, (3) is a security issued by a registered investment company that is a money market fund, or (4) is a U.S. Government security (a “Government Security”). Each Fund limits its investments in the First Tier Securities of any one issuer to no more than 5% of its total assets (repurchase agreements collateralized by non-Government Securities will be taken into account when making this calculation); provided, however, that (1) the California Money Fund may invest up to 25% of the value of its total assets without regard to this restriction as permitted by Rule 2a-7 under the 1940 Act, and (2) each of the Prime Money Fund and the Government Money Fund may invest up to 25% of the value of its total assets without regard to this restriction for a period of up to three business days as permitted by Rule 2a-7, provided that neither such Fund may invest in the securities of more than one issuer in accordance with the 45 foregoing proviso at any time.",
"In addition, the underlying securities involved in repurchase agreements collateralized by non-Government securities will be First Tier Securities at the time the repurchase agreements are executed. INVESTMENT RESTRICTIONS – GOVERNMENT BOND FUND, CORPORATE BOND FUND, CALIFORNIA BOND FUND, HIGH YIELD BOND FUND, U.S. CORE EQUITY FUND, LARGE CAP VALUE FUND AND LARGE CAP GROWTH FUND FUNDAMENTAL POLICIES Except as otherwise indicated, the following investment limitations are fundamental policies of the Government Bond Fund, the Corporate Bond Fund, the California Bond Fund, the High Yield Bond Fund, the U.S. Core Equity Fund, the Large Cap Value Fund and the Large Cap Growth Fund and may not be changed without shareholder approval. No Fund may: 1. Other than the California Bond Fund, with respect to 75% of its total assets, (i) purchase the securities of any issuer (except securities issued or guaranteed by the United States Government, its agencies or instrumentalities) if, as a result, more than 5% of its total assets would be invested in the securities of such issuer; or (ii) acquire more than 10% of the outstanding voting securities of any one issuer.",
"2. Purchase any securities which would cause 25% or more of the total assets of the Fund to be invested in the securities of one or more issuers conducting their principal business activities in the same industry or group of industries, provided that this limitation does not apply to investments in obligations issued or guaranteed by the United States Government, its agencies or instrumentalities. 3. Borrow money in an amount exceeding 33 1/3% of the value of its total assets, provided that, for purposes of this limitation, investment strategies which either obligate a Fund to purchase securities or require a Fund to segregate assets are not considered to be borrowings.To the extent that a Fund’s borrowings exceed 5% of its total assets, (i) all borrowings will be repaid before making additional investments and any interest paid on such borrowing will reduce income; and (ii) asset coverage of at least 300% is required.",
"4. Make loans if, as a result, more than 33 1/3% of its total assets would be loaned to other parties, except that each Fund may (i) purchase or hold debt instruments in accordance with its investment objective and policies; (ii) enter into repurchase agreements; and (iii) lend its securities. 5. Purchase or sell real estate, physical commodities, or commodities contracts, except that each Fund may purchase (i) marketable securities issued by companies which own or invest in real estate (including real estate investment trusts), commodities, or commodities contracts; and (ii) commodities contracts relating to financial instruments, such as financial futures contracts and options on such contracts. 6.",
"Issue senior securities (as defined in the 1940 Act) except as permitted by rule, regulation or order of the SEC. 7. Act as an underwriter of securities of other issuers except as it may be deemed an underwriter in selling a portfolio security. 8. Invest in interests in oil, gas, or other mineral exploration or development programs and oil, gas or mineral leases. 46 The foregoing percentages (other than the limitation on borrowing) will apply at the time of the purchase of a security and shall not be considered violated unless an excess or deficiency occurs immediately after or as a result of a purchase of such security. Except as otherwise indicated, these investment limitations and the investment limitations in the Prospectus are fundamental policies of the Trust and may not be changed without shareholder approval. NON-FUNDAMENTAL POLICIES The following policies of the Government Bond Fund, the Corporate Bond Fund, the California Bond Fund, the High Yield Bond Fund, the U.S. Core Equity Fund, the Large Cap Value Fund and the Large Cap Growth Fund are non-fundamental and may be changed by the Board without a vote of shareholders.",
"No Fund may: 1. Pledge, mortgage or hypothecate assets except to secure borrowings permitted by the Fund’s fundamental limitation on borrowing. 2. Invest in companies for the purpose of exercising control. 3. Purchase securities on margin or effect short sales, except that each Fund may (i) obtain short-term credits as necessary for the clearance of security transactions; (ii) provide initial and variation margin payments in connection with transactions involving futures contracts and options on such contracts; and (iii) make short sales “against the box” or in compliance with the SEC’s position regarding the asset segregation requirements imposed by Section 18 of the 1940 Act.",
"4. Invest its assets in securities of any investment company, except as permitted by the 1940 Act or an order of exemption therefrom. 5. Purchase or hold securities that are illiquid or are otherwise not readily marketable (i.e., securities that cannot be disposed of for their approximate carrying value in seven days or less, which term includes repurchase agreements and time deposits maturing in more than seven days) if, in the aggregate, more than 15% of its net assets would be invested in illiquid securities. In addition, the U.S. Core Equity Fund may not purchase the stock or bonds of companies identified by the tobacco service of MSCI ESG Research.This service identifies those companies engaged in growing, processing or otherwise handling tobacco. If the U.S. Core Equity Fund holds any such securities of an issuer which is subsequently identified by MSCI as engaged in such activities, the securities will be sold within a reasonable time period, consistent with prudent investment practice. Each of the foregoing percentage limitations (except with respect to the limitation on investing in illiquid and not readily marketable securities) applies at the time of purchase.",
"If, subsequent to a Fund’s purchase of an illiquid security, more than 15% of the Fund’s net assets are invested in illiquid securities because of changes in valuations, the Fund will, within a reasonable time, dispose of a portion of such holding so that the above set-forth limit will not be exceeded. These limitations are non-fundamental and may be changed by the Board without a vote of shareholders. 47 INVESTMENT RESTRICTIONS - LIMITED MATURITY FUND, FULL MATURITY FUND, DIVERSIFIED EQUITY FUND AND SOCIALLY RESPONSIBLE EQUITY FUND FUNDAMENTAL POLICIES Except as otherwise indicated, the following investment limitations are fundamental policies of the Limited Maturity Fund, the Full Maturity Fund, the Diversified Equity Fund and the Socially Responsible Equity Fund and may not be changed without shareholder approval.",
"No Fund may: 1. Issue senior securities as defined in the 1940 Act or borrow money, except that a Fund may borrow from banks for temporary or emergency purposes (but not for investment) in an amount up to 10% of the value of its total assets (including the amount borrowed) less liabilities (not including the amount borrowed) at the time the borrowing was made. While any such borrowings exist for a Fund, it will not purchase securities. (However, a Fund which is authorized to do so by its investment policies may lend securities, enter into repurchase agreements without limit and reverse repurchase agreements in an amount not exceeding 10% of its total assets, purchase securities on a when-issued or delayed delivery basis and enter into forward foreign currency contracts.) 2. Purchase a security, other than government securities, if as a result of such purchase more than 5% of the value of the Fund’s assets would be invested in the securities of any one issuer, or the Fund would own more than 10% of the voting securities, or of any class of securities, of any one issuer, except that all of the investable assets of a Fund may be invested in another registered investment company having the same investment objective and substantially the same investment policies as the Fund.",
"For purposes of this restriction, all outstanding indebtedness of an issuer is deemed to be a single class. 3. Purchase a security, other than government securities, if as a result of such purchase 25% or more of the value of the Fund’s total assets would be invested in the securities of issuers in any one industry or group of industries, except that all of the investable assets of a Fund may be invested in another registered investment company having the same investment objective and substantially the same investment policies as the Fund. 4. Purchase the securities (other than government securities) of an issuer having a record, together with predecessors, of less than three years’ continuous operations, if as a result of such purchase more than 5% of the value of the Fund’s total assets would be invested in such securities, except that this shall not prohibit a Fund from investing all of its investable assets in another registered investment company having the same investment objective and substantially the same investment policies as the Fund.",
"5. Make short sales of securities or purchase securities on margin, except for such short-term loans as are necessary for the clearance of purchases of securities. 6. Engage in the underwriting of securities except insofar as a Fund may be deemed an underwriter under the 1933 Act in disposing of a security and except that all of the investable assets of a Fund may be invested in another registered investment company having the same investment objective and substantially the same investment policies as the Fund. 7.",
"Purchase or sell real estate or interests therein, or purchase oil, gas or other mineral leases, rights or royalty contracts or development programs, except that a Fund may invest in the securities of issuers engaged in the foregoing activities and may invest in securities secured by real estate or interests therein. 8. Make loans of money or securities, except through the purchase of permitted investments (including repurchase and reverse repurchase agreements) and through the loan of securities (in an amount not exceeding one-third of total assets) by any Fund. 48 9. Purchase or sell commodities or commodity contracts, except that the Fund may purchase and sell financial futures contracts and options on such contracts and may enter into forward foreign currency contracts and engage in the purchase and sale of foreign currency options and futures.",
"Invest more than 5% of the value of a Fund’s total assets in warrants, including not more than 2% of such assets in warrants not listed on a U.S. stock exchange. (Rights and warrants attached to, received in exchange for, or as a distribution on, other securities are not subject to this restriction.) Pledge, hypothecate, mortgage or otherwise encumber its assets, except as necessary to secure permitted borrowings. (Collateral arrangements and initial margin with respect to permitted options on securities, financial futures contracts and related options, and arrangements incident to other permitted practices, are not deemed to be subject to this restriction.) The foregoing percentages (other than the limitation on borrowing) will apply at the time of the purchase of a security and will not be considered violated unless an excess or deficiency occurs immediately after or as a result of a purchase of such security. Except as otherwise indicated, these investment limitations and the goal of each Fund as set forth in the Prospectus are fundamental policies of the Funds and may not be changed without shareholder approval.",
"Although the Fundamental Policies permit the Funds to enter into reverse repurchase agreements, the Funds do not currently intend to do so. Up to one-third of a Fund’s assets may be pledged to secure permitted borrowings by the Fund. NON-FUNDAMENTAL POLICIES The following policies of the Limited Maturity Fund, the Full Maturity Fund, the Diversified Equity Fund and the Socially Responsible Equity Fund are non-fundamental and may be changed by the Board without a vote of Fund shareholders. No Fund may: 1. Purchase or hold securities that are illiquid or are otherwise not readily marketable (i.e., securities that cannot be disposed of for their approximate carrying value in seven days or less, which term includes repurchase agreements and time deposits maturing in more than seven days) if, in the aggregate, more than 10% of its net assets would be invested in illiquid securities. (As a matter of non-fundamental policy, repurchase agreements maturing in more than seven days, certain time deposits and over-the-counter options are considered to be illiquid.)",
"2. Invest for the purpose of exercising control or management of another company except that all the investable assets of a Fund may be invested in another registered investment company having the same investment objective and substantially the same investment policies as the Fund. 3. Invest, under normal circumstances, less than 80% of the value of its net assets (plus borrowings for investment purposes) in a particular type of investment that is suggested by the Fund’s name. A Fund will notify its shareholders at least 60 days prior to any change in such policy. 4. Purchase the stock or bonds of companies identified by the tobacco service of the RiskMetrics Group Social Issues Services. This service identifies those companies engaged in growing, processing or otherwise handling tobacco.",
"If a Fund holds any such securities of an issuer which is subsequently identified by RiskMetrics as engaged in such activities, the securities will be sold within a reasonable time period, consistent with prudent investment practice. 5. Borrow money in an amount exceeding 10% of its total assets. A Fund will not borrow money for leverage purposes. For the purpose of this investment restriction, the use of options and futures transactions and the purchase of securities on a when-issued or delayed delivery basis shall not be deemed 49 the borrowing of money. A Fund will not make additional investments while its borrowings exceed 5% of total assets. Each of the foregoing percentage limitations (except with respect to the limitations on borrowing and investing in illiquid and not readily marketable securities) applies at the time of purchase. If, subsequent to a Fund’s purchase of an illiquid security, more than 10% of the Fund’s net assets are invested in illiquid securities because of changes in valuations, the Fund will, within a reasonable time, dispose of a portion of such securities so that the limit will not be exceeded.",
"These limitations are non-fundamental and may be changed by the Board without a vote of shareholders. INVESTMENT RESTRICTIONS – MULTI-ASSET FUND The following investment restrictions apply to the Multi-Asset Fund. The Multi-Asset Fund’s Underlying Funds are subject to different investment restrictions. FUNDAMENTAL POLICIES Except as otherwise indicated, the following investment limitations are fundamental policies of the Multi-Asset Fund and may not be changed without shareholder approval. The Multi-Asset Fund may not: 1. Change its classification from a diversified fund (which means that it may not, with respect to at least 75% of its total assets, invest more than 5% of its total assets invested in the securities of one issuer (and not more than 10% of the outstanding voting securities of such issuer), plus cash, Government securities, and securities of other investment companies) to a non-diversified fund. 2. Borrow money in an amount exceeding 33 1/3% of the value of its total assets, provided that, for purposes of this limitation, investment strategies which either obligate the Fund to purchase securities or require the Fund to segregate assets are not considered to be borrowings.",
"The Fund may only borrow money from banks. To the extent that its borrowings exceed 5% of its total assets, (i) all borrowings will be repaid before making additional investments and any interest paid on such borrowing will reduce income; and (ii) asset coverage of at least 300% is required. 3. Make loans if, as a result, more than 33 1/3% of its total assets would be loaned to other parties, except that each Fund may (i) purchase or hold debt instruments in accordance with its investment objective and policies; (ii) enter into repurchase agreements; and (iii) lend its securities. 4. Purchase or sell real estate or physical commodities, except that the Fund may purchase marketable securities issued by companies which own or invest in real estate (including real estate investment trusts), or special situations, such as limited partnerships, that may invest in real estate or commodities. 5. Issue senior securities (as defined in the 1940 Act) except as permitted by rule, regulation or order of the SEC. 6. Act as an underwriter of securities of other issuers except as it may be deemed an underwriter in selling a portfolio security.",
"7. Invest in interests in oil, gas, or other mineral exploration or development programs and oil, gas or mineral leases. 8. Concentrate (i.e., invest more than 25% of the Fund’s net assets) in any industry or group of industries, except that the Fund may invest more than 25% of the Fund’s net assets in the securities of other 50 registered investment companies and securities that are issued or guaranteed by the U.S. Government or its agencies or instrumentalities. The foregoing percentages (other than the limitation on borrowing) will apply at the time of the purchase of a security and will not be considered violated unless an excess or deficiency occurs immediately after or as a result of a purchase of such security. NON-FUNDAMENTAL POLICIES The following policies of the Multi-Asset Fund are non-fundamental and may be changed by the Board without a vote of shareholders.",
"The Multi-Asset Fund may not: 1. Pledge, mortgage or hypothecate assets except to secure borrowings permitted by the Fund’s fundamental limitation on borrowing, in an amount not exceeding 33 1/3% of the value of the Fund’s total assets. 2. Invest in companies for the purpose of exercising control. 3. Purchase or hold securities that are illiquid or are otherwise not readily marketable (i.e., securities that cannot be disposed of for their approximate carrying value in seven days or less, which term includes repurchase agreements and time deposits maturing in more than seven days) if, in the aggregate, more than 15% of its net assets would be invested in illiquid securities. Each of the foregoing percentage limitations (except with respect to the limitation on investing in illiquid and not readily marketable securities) applies at the time of purchase. If, subsequent to the Fund’s purchase of an illiquid security, more than 15% of the Fund’s net assets are invested in illiquid securities because of changes in valuations, the Fund will, within a reasonable time, dispose of a portion of such holding so that the above set-forth limit will not be exceeded. POLICIES OF AFFILIATED UNDERLYING FUNDS The investment restrictions applicable to the Affiliated Underlying Funds (i.e., the Corporate Bond Fund, Government Bond Fund and High Yield Bond Fund) are as set forth above under “Investment Restrictions – Equity and Bond Funds.”The Multi-Asset Fund looks to the holdings of the Affiliated Underlying Funds when ensuring compliance with its own investment restrictions.",
"POLICIES OF UNAFFILIATED UNDERLYING FUNDS Each unaffiliated Underlying Fund has its own investment policies and may pursue investment strategies to the fullest extent permitted by the 1940 Act and such policies. For example, under the 1940 Act, a registered investment company may borrow money from a bank (in an amount not exceeding 33 1/3% of the value of its total assets), make loans (if less than 33 1/3% of its total assets would be loaned to other parties), purchase derivatives, enter into forward currency transactions, futures contracts, and options transactions, purchase restricted and illiquid securities, purchase securities on a when-issued or delayed delivery basis, enter into repurchase or reverse repurchase agreements, and engage in various other investment practices, all of which entail various risks. 51 MANAGEMENT OF THE TRUST The Trustees and officers of the Trust, their principal occupations during the past five years, and their affiliations, if any, with CNAM, the investment manager to the Funds, are set forth below. The persons listed below may have held other positions with their employers named below during the relevant periods. Certain officers of the Trust also serve as officers to one or more other mutual funds for which SEI Investments or its affiliates act as investment manager, administrator or distributor.",
"None of the Trustees is an “interested person” of the Trust, as defined in the 1940 Act.Each Trustee may be referred to in this SAI as an “Independent Trustee.” INDEPENDENT TRUSTEES Name Address Age Position with the Trust Term of Office (1) and Length of Time Served Principal Occupation for the Past Five Years Number of Portfolios in Fund Complex(2) Overseen by Trustee Other Directorships Held by Trustee Irwin G. Barnet, Esq. (3) CNI Charter Funds 400 North Roxbury Drive"
] | 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 |
|
DIMOCK, District Judge. This is a motion to dismiss plaintiff’s third amended complaint. Plaintiff, Bernstein, suing as temporary receiver of the New York assets of the Red Star Line, a dissolved German limited liability company, and individually as its sole stockholder, seeks to recover property which he alleges he was forced to transfer in Nazi Germany in 1937. This action was originally instituted by plaintiff in his individual capacity only. He later moved to intervene as temporary New York receiver of the Red Star Line. The Court of Appeals of this Circuit ruled that a representative of the Red Star Line was a necessary party, but affirmed the denial of plaintiff’s motion to intervene on the ground that plaintiff lacked the license required by the regulations promulgated under Executive Order No. 8389, 12 U.S.C.A. § 95a note, issued under Section 5(b) of the Trading With the Enemy Act, 50 U.S.C.Ap*899pendix, § 5(b), for “the transfer, or withdrawal of, or other dealing in” German corporate property located in this country. Bernstein v. N. V. Nederlandsche-Amerikaansche, etc., 2 Cir., 173 F.2d 71, 76-78. The Court of Appeals also affirmed the dismissal of plaintiff’s second amended complaint on the ground that American courts would not pass upon the validity of the governmental acts of a foreign sovereign within its own territory, even if such acts were illegal under the foreign law, and that vague, general allegations of duress by unidentified private persons were insufficient to state a claim of nongovernmental duress. 173 F.2d 75-76. The Court of Appeals stated, however, that if plaintiff obtained the appropriate license he should be permitted to intervene and to file a third amended complaint which complied with the requirements stated in the court’s opinion for allegations of private duress. Plaintiff has filed a third amended complaint alleging the issuance of a license and designed to comply with the requirements of the Court of Appeals. Defendant, Holland-America Line, contends that neither the allegations with respect to the license which plaintiff alleges he has acquired from the Office of Alien Property during the time prescribed by the Court of Appeals nor the allegations with respect to the enforced transfer of the property comply with the requirements of the Court of Appeals, and moves to dismiss the complaint on those grounds. Third-party defendant, Chemical Bank & Trust Company, supporting defendant’s position, seeks the dismissal of the third-party complaint. I turn first to an examination of plaintiff’s license in the light of the requirements laid down by the Court of Appeals. That Court held in effect that the appointment of the receiver was invalid in the absence of a license, as would be his assertion of a claim against Holland-America Line, and added: “We accordingly hold that the appointment of the state receiver and his assertion in the United States District Court of his claim to blocked property must be validated by a license from the Treasury Department if he desires to proceed further.” It is obvious that the Court of Appeals intended to permit a nunc pro tunc validation of the appointment of the receiver if a proper license could be obtained. Defendants say that the license actually obtained would have been insufficient to justify the appointment of the receiver even if it had been issued prior to the appointment and that the license is insufficient to justify his assertion of a claim against the Holland-America Line on behalf of the Red Star Line. Defendants’ argument rests upon the assumption that the appointment of a temporary receiver is invalid unless the license permits the consummation of all of the powers with which the state statute endows the temporary receiver and the permanent receiver who will presumably succeed him. Since the license specifically prohibits the licensee from exercising the power given to the permanent receiver by section 977-b, subdivision 16, of the New York Civil Practice Act to distribute the assets which he collects to the creditors and stockholders of the corporation it is argued that the appointment is invalid. That subdivision provides that upon settlement of the receiver’s account the court must direct the payment of first, the costs and expenses and, second, the allowed claims of creditors and that the surplus shall be distributed to the stockholders. Plaintiff’s license provides: “Notwithstanding General Ruling No. 11A, as amended, a license is hereby issued removing the restrictions of Executive Order No. 8389, as amended, in so far as they may affect your assertion and enforcement, as temporary receiver under *900Section 977-b of the Civil Practice Act of the State of New York of the property and assets of Red Star Linie G.m.b.H., of claims of Red Star Linie G.m.b.H. to property in accordance with your power and authority under Section 977-b. This license is not intended, however, to permit you to acquire physical possession or title to the property or assets of Red Star Linie G.m.b.H. or to make any distribution of such assets to any persons deemed entitled thereto as a result of the receivership action. Any judgments which you may obtain and any property which you may acquire in execution of such judgments shall remain subject to the blocking controls and this Office reserves its right to vest at any stage if it should determine that such vesting action is appropriate.” In my opinion, the ultimate powers of the receiver are not so interrelated with the appointment of the temporary receiver that an appointment is invalid unless there is assurance that the receiver will be permitted to carry out all of his statutory powers. I am satisfied that the Court of Appeals required no more than the consent of the Treasury Department1 to the appointment of the receiver and to the assertion of the claim in the suit so that, having decided that, under the law of New York, it is not essential to the validity of the appointment of a temporary receiver that the receiver ultimately appointed have requisite federal authority to distribute the property, I hold that the complaint is sufficient insofar as the allegations with respect to the appointment and powers of the receiver are concerned. The combined practical effect of the power to sue and the limited license is that the receiver rather than the representative of the Office of Alien Property will attempt to establish the cause of action against the Holland-Ameriea Line on behalf of the Red Star Line. Whether the avails of any judgment obtained would go to the creditors and the plaintiff as stockholder of the Red Star Line or would go to the Office of Alien Property would depend upon further action of that Office with respect to the property.2 Defendant Holland-Ameriea Line asserts, without elaboration or citation of authority, that section 977-b of the New York Civil Practice Act cannot be utilized for the purpose of recovering assets for the benefit of the United States. I see no impediment in theory or practice to the seizure of the avails of the judgment by the Office of Alien Property if and when that is the determination of the executive. In view of my conclusion that plaintiff’s intervention as temporary receiver is now proper, I turn to provisions of the complaint which allege that the transfer of the property was the result of undue pressure exerted upon Bernstein. On this subject the Court of Appeals said, 173 F.2d 71, 76: “Because of our decision in the Van Heyghen case [Bernstein v. Van Heyghen Freres Societe Anonyme, 2 Cir., 163 F.2d 246, certiorari denied 332 U.S. 772, 68 S.Ct. 88, 92 L.Ed. 357] and the plaintiff’s former fiat allegations that the duress was caused by Nazi officials, any amendment must contain an allegation that the duress was not caused by the action of such officials and in addition should specify with reasonable detail the persons by whom, and the manner in which, the duress was exercised. The fact that statements were made to the plaintiff advising *901him of danger to the lives and property of himself and his family would not satisfy the test laid down in the Van Heyghen case, if in fact that danger flowed from the acts or threatened acts of Nazi officials. Nor would it show duress by anyone if the plaintiff’s lawyer or others merely conveyed to him their belief based upon an independent appraisal of conditions in Germany that there was danger to himself, his family, or his property, if he did not part with his stock.” For my present purposes the important statements made by the Court of Appeals in outlining the requirements of a valid complaint are the direction that any amendment “should specify with reasonable detail the persons by whom, and the manner in which, the duress was exercised” and the additional caution: “nor would it show duress by anyone if the plaintiff’s lawyer or others merely conveyed to him their belief based upon an independent appraisal of conditions in Germany that there was danger to himself, his family, or his property, if he did not part with his stock.” I gather from this statement that duress would not be made out even though it were pleaded that an informant who knew the facts told plaintiff that if he refused not only would he never get out of Germany alive but the lives of his family would be imperiled. I think that what the Court of Appeals had in mind, as distinguished from “independent appraisal”, was a statement made by someone interested in the result for the purpose of inducing action. The complaint contains no allegation of any statements made to Bernstein by anyone with an interest in the result until paragraph 24 where the complaint, for the first time, deals with statements by one Kollmar to Bernstein made after Holland-Ameriea had enlisted Kollmar’s interest to secure for itself the Red Star Line property. These allegations, expanded to recite facts incorporated by reference, are paraphrased in the next paragraph. The Holland-America Line was interested in acquiring two vessels of the Red Star Line and initiated efforts to secure them for itself knowing that Bernstein owned the line. At some time the Holland-Amei'ica Line approached Kollmar and one Boeger “and enlisted their interest to secure for itself the two vessels and other assets of the Red ,Star Line.” Thereafter and while Bernstein was serving a sentence in prison Kollmar told him that “he was now required to sign a document actually transferring” to Boeger his Red Star Line shares, which he had already irrevocably offered to transfer to Boeger. Kollmar further told Bernstein that refusal to sign the document of actual transfer would automatically destroy any hope of Bernstein’s getting out of Germany alive. Bernstein believed Kollmar’s statements to be true and signed the document solely by reason of the fear that unless he did so he would never get out of Germany alive and the lives of members of his family would be gravely imperiled. I believe that by these allegations plaintiff has met the requirements of the Court of Appeals. The fact that Holland-America enlisted Kollmar’s interest to secure the property for itself took Kollmar out of the “independent” class. From then on he was not a mere bearer of evil tidings. He had an interest in influencing Bernstein by the statements he made. The problem is made a little difficult by the fact that there is no allegation that Kollmar stated that he or anyone for whom he was acting had power to protect Bernstein if he signed or to harm him if he refused. It is hard to say that one threatens something over which he has no control but I think that this is a situation where, to make out a case of duress, it is not necessary to establish that the person sought to be charged threatened anything in the usual acceptance of the word. By fair intendment plaintiff has alleged that Kollmar, having an interest in getting Bernstein to sign, told Bernstein that some unspecified person or persons would harm him unless he *902signed. It is conceivable that Kollmar and his principal, Holland-America, were completely independent of the person or persons who would inflict this harm and that Kollmar proposed only to take advantage of Bernstein’s reaction to the news that someone else would harm him if he did not sign. The distinction between that situation and the conventional “threat” where the person charged with the duress has power to inflict the harm is so fine that I have been led to the conclusion above indicated that plaintiff has pleaded duress within the requirements of the Court of Appeals. In view of my conclusion that the allegations of the complaint set forth a claim in private duress, it is not now absolutely necessary for me to pass upon the effect of a State Department press release issued since the decision of the Court of Appeals and pleaded as part of the third amended complaint in what is evidently an attempt to reopen the door for proof of governmental duress. Since, however, most of the argument on this motion was directed to this point, and since it is unlikely that plaintiff will content himself with offering proof of private duress alone at the trial; I think it will be helpful to counsel if I set forth my view here. The Court of Appeals concluded that the legality of the acts of Nazi officials in Germany was not justiciable in American courts. This conclusion was based on its holding in a prior suit by this plaintiff, Bernstein v. Van Heygen Freres Societe Anonyme, 2 Cir., 163 F.2d 246, supra. In the Van Heygen case, the Court of Appeals indicated that, since this “acts of state” doctrine 3 is essentially a matter of international relations on which our Executive is the final authority, if our Executive indicated an affirmative intention to lift this commonly accepted judicial restraint, our courts would follow executive policy. Plaintiff has attached to his complaint a copy of a press release from the State Department which was issued more than a month after the decision of the Court of Appeals. This document contains a letter from the Acting Legal Adviser of the State Department. The letter, addressed to counsel for plaintiff in reference to this very action, states: “The policy of the Executive, with respect to claims asserted in the United States for the restitution of identifiable property (or compensation in lieu thereof) lost through force, coercion, or duress as a result of Nazi persecution in Germany, is to relieve American courts from any restraint upon the exercise of their jurisdiction to pass upon the validity of the acts of Nazi officials.” Defendants contend that the mandate of the Court of Appeals sets forth “the law of the case” and, therefore, precludes me from considering any changes in law or fact which have occurred since its issuance, including this state Department release. It is a well established doctrine that the mandate of an appellate court is binding on the lower court and that the lower court is powerless to redetermine any matters passed upon by the appellate court. The reason for such a rule is obvious — an appeal to an inferior tribunal from the decision of an appellate court cannot be permitted. In re Potts, 166 U.S. 263, 17 S.Ct. 520, 41 L.Ed. 994. This doctrine has been applied even to the extent of precluding a lower court from passing on newly discovered evidence without prior application for permission from the appellate court. Id. Although Rule 33 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., now empowers a federal trial court, in criminal cases, to take cognizance of newly discovered evidence in spite of the strict mandate rule, Harrison v. United States, 5 Cir., 191 F.2d 874, no such exception seems to exist in civil cases. The other situation closely analogous to the instant case is that of a clear change in law after *903the appellate decision. Higgins v. California Prune & Apricot Grower, 2 Cir., 3 F.2d 896, decided by the Court of Appeals of this Circuit, was such a case. In the Higgins case, the District Court had dismissed a bill for an injunction against a state court proceeding on the ground that it lacked jurisdiction. On appeal, the Court of Appeals reversed, 2 Cir., 282 F. 550. After the decision of the Court of Appeals, the Supreme Court of the United States, Kline v. Burke Const. Co., 260 U.S. 226, 43 S.Ct. 79, 67 L.Ed. 226, in a similar case, ruled that federal district courts do lack jurisdiction to enjoin state court proceedings. The District Court followed the law as stated by the Court of Appeals and granted an injunction, in spite of the decision of the Supreme Court. On the appeal, the Court of Appeals indicated approval of that action: “The District Court declined to consider the effect of that decision [of the Supreme Court], feeling bound by the mandate of this court, rightly, as we think.” Higgins v. California Prune & Apricot Grower, 2 Cir., 3 F.2d 896, 897. It seems to me that these decisions, which indicate that a lower court should refuse to depart from the ruling of an appellate court in the same case even though new evidence has been discovered or the law has been changed, invest the appellate court’s mandate with undue sanctity. I am constrained to follow them, however, and I can think of no substantial distinction between them and the case at bar where the change alleged has been a change in an executive ruling. Upon the trial, therefore, I shall refuse to consider the State Department’s press release unless plaintiff has, in the meantime, obtained from the Court of Appeals an amendment of its mandate, or instructions as to the interpretation of its mandate, which would make such consideration proper. Pursuant to the above quoted requirement of the Court of Appeals that any amendment of the complaint “must contain an allegation that the duress was not caused by the action of [Nazi] officials”, the third amended complaint alleges : “The duress under which plaintiff acted in executing said documents was not caused by the action of any Nazi officials.” I accept this as compliance with the mandate of the Court of Appeals in this respect and shall, on the present state of the pleadings, despite any other allegations in the complaint, refuse to consider official duress as a basis for recovery by the plaintiff. If, therefore, plaintiff desires to take advantage of any further directions of the Court of Appeals in this respect, a further amendment of the complaint will be necessary. Motion to dismiss denied.
. Jurisdiction over blocked property was transferred to the Office of Alien Property by Executive Order No. 9989, 50 U.S.C.A. Appendix, § 6 note, shortly after the decision of the Court of Appeals.
. General License No. 101, 18 F.R. 3687, issued by the Office of Alien Property on June 24, 1953, removed blocking controls on West German property. In view, however, of the prior expiration of the ninety-day period allowed by the Court of Appeals for acquisition of the license, I cannot give effect to this development.
. Underhill v. Hernandez, 168 U.S. 250, 18 S.Ct. 83, 42 L.Ed. 456; American Banana Co. v. United Fruit Co., 213 U.S. 347, 29 S.Ct. 511, 53 L.Ed. 826; Oetjen v. Central Leather Co., 246 U.S. 297, 38 S.Ct. 309, 62 L.Ed. 726. | 11-26-2022 | [
"DIMOCK, District Judge. This is a motion to dismiss plaintiff’s third amended complaint. Plaintiff, Bernstein, suing as temporary receiver of the New York assets of the Red Star Line, a dissolved German limited liability company, and individually as its sole stockholder, seeks to recover property which he alleges he was forced to transfer in Nazi Germany in 1937. This action was originally instituted by plaintiff in his individual capacity only. He later moved to intervene as temporary New York receiver of the Red Star Line. The Court of Appeals of this Circuit ruled that a representative of the Red Star Line was a necessary party, but affirmed the denial of plaintiff’s motion to intervene on the ground that plaintiff lacked the license required by the regulations promulgated under Executive Order No. 8389, 12 U.S.C.A.",
"§ 95a note, issued under Section 5(b) of the Trading With the Enemy Act, 50 U.S.C.Ap*899pendix, § 5(b), for “the transfer, or withdrawal of, or other dealing in” German corporate property located in this country. Bernstein v. N. V. Nederlandsche-Amerikaansche, etc., 2 Cir., 173 F.2d 71, 76-78. The Court of Appeals also affirmed the dismissal of plaintiff’s second amended complaint on the ground that American courts would not pass upon the validity of the governmental acts of a foreign sovereign within its own territory, even if such acts were illegal under the foreign law, and that vague, general allegations of duress by unidentified private persons were insufficient to state a claim of nongovernmental duress.",
"173 F.2d 75-76. The Court of Appeals stated, however, that if plaintiff obtained the appropriate license he should be permitted to intervene and to file a third amended complaint which complied with the requirements stated in the court’s opinion for allegations of private duress. Plaintiff has filed a third amended complaint alleging the issuance of a license and designed to comply with the requirements of the Court of Appeals. Defendant, Holland-America Line, contends that neither the allegations with respect to the license which plaintiff alleges he has acquired from the Office of Alien Property during the time prescribed by the Court of Appeals nor the allegations with respect to the enforced transfer of the property comply with the requirements of the Court of Appeals, and moves to dismiss the complaint on those grounds. Third-party defendant, Chemical Bank & Trust Company, supporting defendant’s position, seeks the dismissal of the third-party complaint.",
"I turn first to an examination of plaintiff’s license in the light of the requirements laid down by the Court of Appeals. That Court held in effect that the appointment of the receiver was invalid in the absence of a license, as would be his assertion of a claim against Holland-America Line, and added: “We accordingly hold that the appointment of the state receiver and his assertion in the United States District Court of his claim to blocked property must be validated by a license from the Treasury Department if he desires to proceed further.” It is obvious that the Court of Appeals intended to permit a nunc pro tunc validation of the appointment of the receiver if a proper license could be obtained. Defendants say that the license actually obtained would have been insufficient to justify the appointment of the receiver even if it had been issued prior to the appointment and that the license is insufficient to justify his assertion of a claim against the Holland-America Line on behalf of the Red Star Line. Defendants’ argument rests upon the assumption that the appointment of a temporary receiver is invalid unless the license permits the consummation of all of the powers with which the state statute endows the temporary receiver and the permanent receiver who will presumably succeed him. Since the license specifically prohibits the licensee from exercising the power given to the permanent receiver by section 977-b, subdivision 16, of the New York Civil Practice Act to distribute the assets which he collects to the creditors and stockholders of the corporation it is argued that the appointment is invalid.",
"That subdivision provides that upon settlement of the receiver’s account the court must direct the payment of first, the costs and expenses and, second, the allowed claims of creditors and that the surplus shall be distributed to the stockholders. Plaintiff’s license provides: “Notwithstanding General Ruling No. 11A, as amended, a license is hereby issued removing the restrictions of Executive Order No. 8389, as amended, in so far as they may affect your assertion and enforcement, as temporary receiver under *900Section 977-b of the Civil Practice Act of the State of New York of the property and assets of Red Star Linie G.m.b.H., of claims of Red Star Linie G.m.b.H. to property in accordance with your power and authority under Section 977-b. This license is not intended, however, to permit you to acquire physical possession or title to the property or assets of Red Star Linie G.m.b.H. or to make any distribution of such assets to any persons deemed entitled thereto as a result of the receivership action.",
"Any judgments which you may obtain and any property which you may acquire in execution of such judgments shall remain subject to the blocking controls and this Office reserves its right to vest at any stage if it should determine that such vesting action is appropriate.” In my opinion, the ultimate powers of the receiver are not so interrelated with the appointment of the temporary receiver that an appointment is invalid unless there is assurance that the receiver will be permitted to carry out all of his statutory powers. I am satisfied that the Court of Appeals required no more than the consent of the Treasury Department1 to the appointment of the receiver and to the assertion of the claim in the suit so that, having decided that, under the law of New York, it is not essential to the validity of the appointment of a temporary receiver that the receiver ultimately appointed have requisite federal authority to distribute the property, I hold that the complaint is sufficient insofar as the allegations with respect to the appointment and powers of the receiver are concerned. The combined practical effect of the power to sue and the limited license is that the receiver rather than the representative of the Office of Alien Property will attempt to establish the cause of action against the Holland-Ameriea Line on behalf of the Red Star Line.",
"Whether the avails of any judgment obtained would go to the creditors and the plaintiff as stockholder of the Red Star Line or would go to the Office of Alien Property would depend upon further action of that Office with respect to the property.2 Defendant Holland-Ameriea Line asserts, without elaboration or citation of authority, that section 977-b of the New York Civil Practice Act cannot be utilized for the purpose of recovering assets for the benefit of the United States. I see no impediment in theory or practice to the seizure of the avails of the judgment by the Office of Alien Property if and when that is the determination of the executive. In view of my conclusion that plaintiff’s intervention as temporary receiver is now proper, I turn to provisions of the complaint which allege that the transfer of the property was the result of undue pressure exerted upon Bernstein. On this subject the Court of Appeals said, 173 F.2d 71, 76: “Because of our decision in the Van Heyghen case [Bernstein v. Van Heyghen Freres Societe Anonyme, 2 Cir., 163 F.2d 246, certiorari denied 332 U.S. 772, 68 S.Ct. 88, 92 L.Ed.",
"357] and the plaintiff’s former fiat allegations that the duress was caused by Nazi officials, any amendment must contain an allegation that the duress was not caused by the action of such officials and in addition should specify with reasonable detail the persons by whom, and the manner in which, the duress was exercised. The fact that statements were made to the plaintiff advising *901him of danger to the lives and property of himself and his family would not satisfy the test laid down in the Van Heyghen case, if in fact that danger flowed from the acts or threatened acts of Nazi officials. Nor would it show duress by anyone if the plaintiff’s lawyer or others merely conveyed to him their belief based upon an independent appraisal of conditions in Germany that there was danger to himself, his family, or his property, if he did not part with his stock.” For my present purposes the important statements made by the Court of Appeals in outlining the requirements of a valid complaint are the direction that any amendment “should specify with reasonable detail the persons by whom, and the manner in which, the duress was exercised” and the additional caution: “nor would it show duress by anyone if the plaintiff’s lawyer or others merely conveyed to him their belief based upon an independent appraisal of conditions in Germany that there was danger to himself, his family, or his property, if he did not part with his stock.” I gather from this statement that duress would not be made out even though it were pleaded that an informant who knew the facts told plaintiff that if he refused not only would he never get out of Germany alive but the lives of his family would be imperiled.",
"I think that what the Court of Appeals had in mind, as distinguished from “independent appraisal”, was a statement made by someone interested in the result for the purpose of inducing action. The complaint contains no allegation of any statements made to Bernstein by anyone with an interest in the result until paragraph 24 where the complaint, for the first time, deals with statements by one Kollmar to Bernstein made after Holland-Ameriea had enlisted Kollmar’s interest to secure for itself the Red Star Line property. These allegations, expanded to recite facts incorporated by reference, are paraphrased in the next paragraph. The Holland-America Line was interested in acquiring two vessels of the Red Star Line and initiated efforts to secure them for itself knowing that Bernstein owned the line. At some time the Holland-Amei'ica Line approached Kollmar and one Boeger “and enlisted their interest to secure for itself the two vessels and other assets of the Red ,Star Line.” Thereafter and while Bernstein was serving a sentence in prison Kollmar told him that “he was now required to sign a document actually transferring” to Boeger his Red Star Line shares, which he had already irrevocably offered to transfer to Boeger.",
"Kollmar further told Bernstein that refusal to sign the document of actual transfer would automatically destroy any hope of Bernstein’s getting out of Germany alive. Bernstein believed Kollmar’s statements to be true and signed the document solely by reason of the fear that unless he did so he would never get out of Germany alive and the lives of members of his family would be gravely imperiled. I believe that by these allegations plaintiff has met the requirements of the Court of Appeals. The fact that Holland-America enlisted Kollmar’s interest to secure the property for itself took Kollmar out of the “independent” class. From then on he was not a mere bearer of evil tidings. He had an interest in influencing Bernstein by the statements he made. The problem is made a little difficult by the fact that there is no allegation that Kollmar stated that he or anyone for whom he was acting had power to protect Bernstein if he signed or to harm him if he refused. It is hard to say that one threatens something over which he has no control but I think that this is a situation where, to make out a case of duress, it is not necessary to establish that the person sought to be charged threatened anything in the usual acceptance of the word. By fair intendment plaintiff has alleged that Kollmar, having an interest in getting Bernstein to sign, told Bernstein that some unspecified person or persons would harm him unless he *902signed.",
"It is conceivable that Kollmar and his principal, Holland-America, were completely independent of the person or persons who would inflict this harm and that Kollmar proposed only to take advantage of Bernstein’s reaction to the news that someone else would harm him if he did not sign. The distinction between that situation and the conventional “threat” where the person charged with the duress has power to inflict the harm is so fine that I have been led to the conclusion above indicated that plaintiff has pleaded duress within the requirements of the Court of Appeals. In view of my conclusion that the allegations of the complaint set forth a claim in private duress, it is not now absolutely necessary for me to pass upon the effect of a State Department press release issued since the decision of the Court of Appeals and pleaded as part of the third amended complaint in what is evidently an attempt to reopen the door for proof of governmental duress.",
"Since, however, most of the argument on this motion was directed to this point, and since it is unlikely that plaintiff will content himself with offering proof of private duress alone at the trial; I think it will be helpful to counsel if I set forth my view here. The Court of Appeals concluded that the legality of the acts of Nazi officials in Germany was not justiciable in American courts. This conclusion was based on its holding in a prior suit by this plaintiff, Bernstein v. Van Heygen Freres Societe Anonyme, 2 Cir., 163 F.2d 246, supra. In the Van Heygen case, the Court of Appeals indicated that, since this “acts of state” doctrine 3 is essentially a matter of international relations on which our Executive is the final authority, if our Executive indicated an affirmative intention to lift this commonly accepted judicial restraint, our courts would follow executive policy. Plaintiff has attached to his complaint a copy of a press release from the State Department which was issued more than a month after the decision of the Court of Appeals.",
"This document contains a letter from the Acting Legal Adviser of the State Department. The letter, addressed to counsel for plaintiff in reference to this very action, states: “The policy of the Executive, with respect to claims asserted in the United States for the restitution of identifiable property (or compensation in lieu thereof) lost through force, coercion, or duress as a result of Nazi persecution in Germany, is to relieve American courts from any restraint upon the exercise of their jurisdiction to pass upon the validity of the acts of Nazi officials.” Defendants contend that the mandate of the Court of Appeals sets forth “the law of the case” and, therefore, precludes me from considering any changes in law or fact which have occurred since its issuance, including this state Department release. It is a well established doctrine that the mandate of an appellate court is binding on the lower court and that the lower court is powerless to redetermine any matters passed upon by the appellate court. The reason for such a rule is obvious — an appeal to an inferior tribunal from the decision of an appellate court cannot be permitted.",
"In re Potts, 166 U.S. 263, 17 S.Ct. 520, 41 L.Ed. 994. This doctrine has been applied even to the extent of precluding a lower court from passing on newly discovered evidence without prior application for permission from the appellate court. Id. Although Rule 33 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., now empowers a federal trial court, in criminal cases, to take cognizance of newly discovered evidence in spite of the strict mandate rule, Harrison v. United States, 5 Cir., 191 F.2d 874, no such exception seems to exist in civil cases.",
"The other situation closely analogous to the instant case is that of a clear change in law after *903the appellate decision. Higgins v. California Prune & Apricot Grower, 2 Cir., 3 F.2d 896, decided by the Court of Appeals of this Circuit, was such a case. In the Higgins case, the District Court had dismissed a bill for an injunction against a state court proceeding on the ground that it lacked jurisdiction. On appeal, the Court of Appeals reversed, 2 Cir., 282 F. 550. After the decision of the Court of Appeals, the Supreme Court of the United States, Kline v. Burke Const. Co., 260 U.S. 226, 43 S.Ct. 79, 67 L.Ed. 226, in a similar case, ruled that federal district courts do lack jurisdiction to enjoin state court proceedings.",
"The District Court followed the law as stated by the Court of Appeals and granted an injunction, in spite of the decision of the Supreme Court. On the appeal, the Court of Appeals indicated approval of that action: “The District Court declined to consider the effect of that decision [of the Supreme Court], feeling bound by the mandate of this court, rightly, as we think.” Higgins v. California Prune & Apricot Grower, 2 Cir., 3 F.2d 896, 897.",
"It seems to me that these decisions, which indicate that a lower court should refuse to depart from the ruling of an appellate court in the same case even though new evidence has been discovered or the law has been changed, invest the appellate court’s mandate with undue sanctity. I am constrained to follow them, however, and I can think of no substantial distinction between them and the case at bar where the change alleged has been a change in an executive ruling. Upon the trial, therefore, I shall refuse to consider the State Department’s press release unless plaintiff has, in the meantime, obtained from the Court of Appeals an amendment of its mandate, or instructions as to the interpretation of its mandate, which would make such consideration proper. Pursuant to the above quoted requirement of the Court of Appeals that any amendment of the complaint “must contain an allegation that the duress was not caused by the action of [Nazi] officials”, the third amended complaint alleges : “The duress under which plaintiff acted in executing said documents was not caused by the action of any Nazi officials.” I accept this as compliance with the mandate of the Court of Appeals in this respect and shall, on the present state of the pleadings, despite any other allegations in the complaint, refuse to consider official duress as a basis for recovery by the plaintiff. If, therefore, plaintiff desires to take advantage of any further directions of the Court of Appeals in this respect, a further amendment of the complaint will be necessary.",
"Motion to dismiss denied. . Jurisdiction over blocked property was transferred to the Office of Alien Property by Executive Order No. 9989, 50 U.S.C.A. Appendix, § 6 note, shortly after the decision of the Court of Appeals. . General License No. 101, 18 F.R. 3687, issued by the Office of Alien Property on June 24, 1953, removed blocking controls on West German property. In view, however, of the prior expiration of the ninety-day period allowed by the Court of Appeals for acquisition of the license, I cannot give effect to this development. . Underhill v. Hernandez, 168 U.S. 250, 18 S.Ct. 83, 42 L.Ed. 456; American Banana Co. v. United Fruit Co., 213 U.S. 347, 29 S.Ct. 511, 53 L.Ed. 826; Oetjen v. Central Leather Co., 246 U.S. 297, 38 S.Ct.",
"309, 62 L.Ed. 726."
] | https://www.courtlistener.com/api/rest/v3/opinions/8718613/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
EXHIBIT 10.1
Eighth Amendment to the Credit Agreement
dated as of April 30, 2018 among Energen Corporation, as Borrower, Wells Fargo Bank, National Association, as Administrative Agent, The Guarantor Signatory Hereto, and The Lenders Signatory Hereto
--------------------------------------------------------------------------------
Eighth Amendment to Credit Agreement
This Eighth Amendment to the Credit Agreement (this “Eighth Amendment”), dated as of April 30, 2018 (the “Eighth Amendment Effective Date”), is among Energen Corporation, a corporation formed under the laws of the State of Alabama (“Borrower”); the undersigned guarantor (the “Guarantor”, and together with Borrower, the “Credit Parties”); each of the Lenders party hereto; and Wells Fargo Bank, National Association, as administrative agent for the Lenders (in such capacity, together with its successors in such capacity, “Administrative Agent”). Recitals A. Borrower, Administrative Agent and the Lenders are parties to that certain Credit Agreement dated as of September 2, 2014 (as heretofore amended, modified, supplemented or restated, the “Credit Agreement”), pursuant to which the Lenders have, subject to the terms and conditions set forth therein, made certain credit available to and on behalf of Borrower. B. The parties hereto desire to enter into this Eighth Amendment to amend the Credit Agreement as set forth herein. C. Borrower has requested that IBERIABANK (the “Additional Lender”) becomes a Lender under the Credit Agreement with a Commitment in the amount shown on Annex I to the Credit Agreement (as amended hereby). D. The Lenders party hereto also desire to complete the April 1, 2018 Scheduled Redetermination as set forth herein. NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: Section 1.Defined Terms. Each capitalized term which is defined in the Credit Agreement, but which is not defined in this Eighth Amendment, shall have the meaning ascribed to such term in the Credit Agreement (as amended hereby). Unless otherwise indicated, all section references in this Eighth Amendment refer to the Credit Agreement.
Section 2.Amendments to the Credit Agreement. In reliance on the representations, warranties, covenants and agreements contained in this Eighth Amendment, and subject to the satisfaction of the conditions precedent set forth in Section 6 hereof, the Credit Agreement is hereby amended, effective as of the Eighth Amendment Effective Date, as follows:
2.1Amendments to Section 1.02.
(a)Each of the following definitions set forth in Section 1.02 is hereby amended and restated in its entirety to read as follows:
“Maturity Date” means April 30, 2023.
1
--------------------------------------------------------------------------------
(b)Each of the following definitions is added to Section 1.02 in the appropriate alphabetical order:
“Eighth Amendment Effective Date” shall mean April 30, 2018. 2.2Amendment to Section 2.07(e). Section 2.07(e) is hereby amended by replacing the reference to “April 1, 2018” appearing in clause (y) of the third sentence of Section 2.07(e) with “October 1, 2018”.
2.3Amendments to Section 3.03. Section 3.03 is hereby amended and restated in its entirety to read as follows:
Section 3.03 Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing: (i) the Administrative Agent or the Required Lenders determine (which determination shall be conclusive absent manifest error) that, because of changes arising on or after the Effective Date affecting the interbank LIBOR market, adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate for such Interest Period; or (ii) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or LIBO Rate, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period; then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by telephone, email or fax as promptly as practicable thereafter and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective, and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such Borrowing shall be made either as an ABR Borrowing or at an alternate rate of interest determined by the Required Lenders in good faith as their cost of funds. (b) Notwithstanding anything to the contrary set forth in the foregoing clause (a), if at any time the Administrative Agent determines (which determination shall be conclusive absent manifest error) that (i) the circumstances set forth in clause (a)(i) have arisen and such circumstances are unlikely to be temporary or (ii) the circumstances set forth in clause (a)(i) have not arisen but the supervisor or the administrator of the LIBO Rate or the LIBOR Market Index Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the LIBO Rate or the LIBOR Market
2
--------------------------------------------------------------------------------
Index Rate shall no longer be used for determining interest rates for loans in the syndicated loan market in the United States, then the Administrative Agent and the Borrower shall endeavor in good faith to establish an alternate rate of interest to the LIBO Rate and the LIBOR Market Index Rate that gives due consideration to the then prevailing market convention for determining a rate of interest for syndicated loans in the United States at such time, and shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable. Notwithstanding anything to the contrary in Section 12.02, such amendment shall become effective without any further action or consent of any other party to this Agreement so long as the Administrative Agent shall not have received, within five Business Days of the date notice of such alternate rate of interest is provided to the Lenders, a written notice from the Required Lenders stating that such Required Lenders object to such amendment. Until an alternate rate of interest shall be determined in accordance with this clause (b) (but, in the case of the circumstances described in clause (ii) of the first sentence of this Section 3.03(b), only to the extent the LIBO Rate for such Interest Period or the LIBOR Market Index Rate for any Swingline Loan is not available or published at such time on a current basis), (x) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective and (y) if any Borrowing Request requests a Eurodollar Borrowing or a Swingline Loan, such Borrowing or Swingline Loan shall be made as an ABR Borrowing; provided that, if such alternate rate of interest shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement. Section 3.Borrowing Base Redetermination. Subject to the satisfaction of the conditions precedent set forth in Section 6 hereof, Administrative Agent and the Lenders hereby agree that for the period from and including the Eighth Amendment Effective Date to but excluding the next Redetermination Date, the amount of the Borrowing Base shall be increased to $2,150,000,000 (the “April 2018 Redetermination”). Administrative Agent, the Lenders and Borrower agree that the foregoing constitutes the April 1, 2018 Scheduled Redetermination and that this Eighth Amendment shall constitute the New Borrowing Base Notice with respect to such Scheduled Redetermination. Notwithstanding the foregoing, the Borrowing Base may be subject to further redeterminations and adjustments from time to time pursuant to Section 2.07 or Section 8.12(c).
Section 4.Increase of Aggregate Commitment. Subject to the satisfaction of the conditions precedent set forth in Section 6 hereof:
4.1Each undersigned Increase Lender (each, an “Increasing Lender”) has agreed (i) to increase its Commitment under the Credit Agreement effective as of the Eighth Amendment Effective Date to the amount set forth opposite such Increasing Lender’s name on Annex I attached hereto under the caption “Commitment” and (ii) that it shall continue to be a party in all respects to the Credit Agreement and the other Loan Documents pursuant to Section 2.10(a)(viii) of the Credit Agreement.
3
--------------------------------------------------------------------------------
4.2The undersigned Additional Lender has agreed (i) to provide its Commitment under the Credit Agreement effective as of the Eighth Amendment Effective Date to the amount set forth opposite such Additional Lender’s name on Annex I attached hereto under the caption “Commitment” and (ii) that it shall, as of the Eighth Amendment Effective Date, be deemed a party in all respects to the Credit Agreement and the other Loan Documents pursuant to Section 2.10(a)(viii) of the Credit Agreement.
4.3The parties hereto hereby agree that this Eighth Amendment shall be deemed to constitute a Commitment Increase Certificate for purposes of Section 2.10(a)(v) of the Credit Agreement and an Additional Lender Certificate for purpose of Section 2.10(a)(vi) of the Credit Agreement.
4.4On the Eighth Amendment Effective Date, Annex I to the Credit Agreement will be replaced in its entirety with Annex I attached hereto pursuant to Section 2.10(a)(viii)(B).
4.5The parties hereto hereby agree the outstanding Revolving Loans, Swingline Loans and LC Exposure will be reallocated by the Administrative Agent on the Eighth Amendment Effective Date among the Lenders (including the Additional Lender and the Exiting Lenders (as defined below)), in accordance with their revised Applicable Percentages (or in the case of each Exiting Lender, adjusted to equal $0.00), and the Lenders (including the Additional Lender, but excluding the Exiting Lenders) shall make all payments and adjustments necessary to effect such reallocation.
4.6Each Lender (including, for the avoidance of doubt, each undersigned Lender that is not increasing its Commitment pursuant to Section 4.1 above and each Exiting Lender) hereby agrees that the Borrower shall not be required to make any break-funding payments which may otherwise be required under Section 5.02 of the Credit Agreement solely resulting from the increase in the Commitments effected pursuant to this Eighth Amendment; provided, that the Lenders’ waiver of such break-funding payments set forth in this Section 4.6 is a limited, one-time waiver, and nothing contained herein shall obligate the Administrative Agent or any Lender to grant any additional or future waiver with respect to, or in connection with, any provision of the Credit Agreement or any other Loan Document.
Section 5.Additional Lender. The Additional Lender hereby joins in, becomes a party to, and agrees to comply with and be bound by the terms and conditions of the Credit Agreement as a Lender thereunder and under each and every other Loan Document to which any Lender is required to be bound by the Credit Agreement, to the same extent as if the Additional Lender were an original signatory thereto. The Additional Lender hereby appoints and authorizes the Administrative Agent to take such action as the Administrative Agent on its behalf and to exercise such powers and discretion under the Credit Agreement as are delegated to the Administrative Agent by the terms thereof, together with such powers and discretion as are reasonably incidental thereto. The Additional Lender represents and warrants that (a) it has full power and authority, and has taken all action necessary, to execute and deliver this Eighth Amendment, to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (b) it has received a copy of the Credit Agreement and copies of the most recent financial statements delivered pursuant to Section 8.01 thereof, and such other documents and information as it has deemed appropriate to
4
--------------------------------------------------------------------------------
make its own credit analysis and decision to enter into this Eighth Amendment and to become a Lender on the basis of which it has made such analysis and decision independently and without reliance on the Administrative Agent or any other Lender, and (c) from and after the Eighth Amendment Effective Date, it shall be a party to and be bound by the provisions of the Credit Agreement and the other Loan Documents and have the rights and obligations of a Lender thereunder.
Section 6.Conditions Precedent. The effectiveness of this Eighth Amendment is subject to the following:
6.1.Administrative Agent shall have received executed counterparts of this Eighth Amendment from the Credit Parties and all Lenders (including the Additional Lender and all Exiting Lenders).
6.2.Administrative Agent shall have received a certificate of the Secretary or an Assistant Secretary of the Borrower and each Guarantor setting forth (i) resolutions of its board of directors (or comparable governing body) with respect to the authorization of the Borrower or such Guarantor to execute and deliver this Eighth Amendment and to enter into the transactions contemplated hereby (including, but not limited to, the extension of the Maturity Date), (ii) the officers of the Borrower or such Guarantor (y) who are authorized to sign the Loan Documents to which the Borrower or such Guarantor is a party and (z) who will, until replaced by another officer or officers duly authorized for that purpose, act as its representative for the purposes of signing documents and giving notices and other communications in connection with this Agreement and the transactions contemplated hereby, (iii) specimen signatures of such authorized officers, and (iv) the articles or certificate of incorporation and bylaws (or comparable organizational documents for any Credit Parties that are not corporations) of the Borrower and such Guarantor, certified as being true and complete. The Administrative Agent and the Lenders may conclusively rely on such certificate until the Administrative Agent receives notice in writing from the Borrower to the contrary.
6.3.Administrative Agent shall have received certificates of the appropriate State agencies with respect to the existence, qualification and good standing of the Borrower and each Guarantor.
6.4.To the extent requested by the Additional Lender joining into the Credit Agreement pursuant to this Eighth Amendment, the Administrative Agent shall have received a duly executed Note payable to such Additional Lender, dated as of Eighth Amendment Effective Date.
6.5.Administrative Agent shall have received from each party thereto duly executed counterparts (in such number as may be requested by the Administrative Agent) of all documents and instruments, including Uniform Commercial Code or other applicable personal property and financing statements and deeds of trust or amendments and supplements to existing deeds of trust securing the Credit Agreement, reasonably requested by the Administrative Agent to be filed, registered or recorded to create or continue, as applicable, the Liens granted by the Borrower and each Guarantor on Properties pursuant to the Security Instruments. In connection with the execution and delivery of such documents and instruments, the Administrative Agent shall be reasonably satisfied that the Security Instruments will, when such documents or instruments are properly recorded (or when applicable financing statements related thereto are properly filed or such other
5
--------------------------------------------------------------------------------
actions needed to perfect are taken) continue to perfect the first priority, perfected Liens (subject only to Excepted Liens and other Liens permitted by Section 9.03 of the Credit Agreement) on (A) at least 80% of the PV-9 of the Oil and Gas Properties evaluated in the most recent Reserve Report delivered pursuant to Section 8.11 of the Credit Agreement and (B) all other Property purported to be pledged as collateral pursuant to the Security Instruments.
6.6.Administrative Agent shall have received an opinion of (i) Bradley Arant Boult Cummings LLP in form and substance reasonably acceptable to the Administrative Agent and its counsel, and (ii) Locke Lord LLP in form and substance reasonably acceptable to the Administrative Agent and its counsel.
6.7.Administrative Agent shall have received all fees and other amounts due and payable to the Administrative Agent or any Lenders in connection with this Eighth Amendment.
6.8.Administrative Agent shall have received such other documents as Administrative Agent or special counsel to Administrative Agent may reasonably request.
Administrative Agent shall notify Borrower and the Lenders of the effectiveness of this Eighth Amendment, and such notice shall be conclusive and binding.
Section 7.Representations and Warranties; Etc. Each Credit Party hereby affirms: (a) that as of the date hereof, the representations and warranties of Borrower and Guarantor set forth in each Loan Document are true and correct in all material respects (or, if qualified by materiality or Material Adverse Effect, in all respects), except to the extent any such representations and warranties are expressly limited to an earlier date, in which case, on and as of the date hereof, such representations and warranties continue to be true and correct in all material respects (or, if qualified by materiality or Material Adverse Effect, in all respects) as of such specified earlier date and (b) that as of the date hereof, no Default or Event of Default has occurred and is continuing or would result from this Eighth Amendment.
Section 8.Miscellaneous.
8.1Confirmation and Effect. The provisions of the Credit Agreement (as amended by this Eighth Amendment) shall remain in full force and effect in accordance with its respective terms following the effectiveness of this Eighth Amendment. Each reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof”, “herein”, or words of like import shall mean and be a reference to the Credit Agreement, as amended hereby, and each reference to the Credit Agreement in any other document, instrument or agreement executed and/or delivered in connection with the Credit Agreement shall mean and be a reference to the Credit Agreement, as amended hereby. The execution, delivery and effectiveness of this Eighth Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents.
8.2Ratification and Affirmation of Credit Parties. Each of the Credit Parties hereby expressly (a) acknowledges the terms of this Eighth Amendment, (b) ratifies and affirms its
6
--------------------------------------------------------------------------------
obligations under the Guaranty Agreement and the other Loan Documents to which it is a party, (c) acknowledges, renews and extends its continued liability under the Guaranty Agreement and the other Loan Documents to which it is a party (in each case, as amended hereby), and (d) acknowledges and confirms that the amendments contemplated hereby shall not limit or impair any Liens securing the Indebtedness, each of which are hereby ratified, affirmed and extended to secure the Indebtedness after giving effect to this Eighth Amendment.
8.3Counterparts. This Eighth Amendment may be executed by one or more of the parties hereto in any number of separate counterparts, and all of such counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of this Eighth Amendment by facsimile or electronic (e.g. pdf) transmission shall be effective as delivery of a manually executed original counterpart hereof.
8.4No Oral Agreement. This written Eighth Amendment, the Credit Agreement and the other Loan Documents executed in connection herewith and therewith represent the final agreement between the parties and may not be contradicted by evidence of prior, contemporaneous, or unwritten oral agreements of the parties. There are no subsequent oral agreements between the parties.
8.5Governing Law. This Eighth Amendment (including, but not limited to, the validity and enforceability hereof) shall be governed by, and construed in accordance with, the laws of the State of New York.
8.6Severability. Any provision of this Eighth Amendment which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
8.7Loan Document. This Eighth Amendment shall constitute a “Loan Document” for all purposes under the other Loan Documents.
8.8Exiting Lender Consents. By its execution of this Eighth Amendment, Barclays Bank PLC and Morgan Stanley Bank, N.A. (each, an “Exiting Lender”, and collectively, the “Exiting Lenders”) each hereby (a) consents to this Eighth Amendment in its capacity as a Lender under the Credit Agreement solely for purposes of Section 12.02 of the Credit Agreement, and (b) acknowledges and agrees to Sections 4.4, 4.5 and 4.6 of this Eighth Amendment. Each of the parties hereto hereby agrees and confirms that after giving effect to Sections 4.4, 4.5 and 4.6 of this Eighth Amendment, each Exiting Lender’s Commitment shall be $0.00, each Exiting Lender’s Commitments to lend and all other obligations of each Exiting Lender under the Credit Agreement shall be terminated, and each Exiting Lender shall cease to be a Lender for all purposes under the Loan Documents. [signature pages follow]
7
--------------------------------------------------------------------------------
IN WITNESS WHEREOF, the parties hereto have caused this Eighth Amendment to be duly executed effective as of the date first written above. BORROWER: ENERGEN CORPORATION By: /S/ CHARLES W. PORTER, JR. Name: Charles W. Porter, Jr. Title: Vice President, Chief Financial Officer and Treasurer
GUARANTOR: ENERGEN RESOURCES CORPORATION By: /S/ CHARLES W. PORTER, JR. Name: Charles W. Porter, Jr. Title: Vice President, Chief Financial Officer and Treasurer
[SIGNATURE PAGE] [EIGHTH AMENDMENT TO THE CREDIT AGREEMENT] [ENERGEN CORPORATION]
--------------------------------------------------------------------------------
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent, Issuing Bank and Increasing Lender
By: /S/ COURTNEY KUBESCH Name: Courtney Kubesch Title: Director
[SIGNATURE PAGE] [EIGHTH AMENDMENT TO THE CREDIT AGREEMENT] [ENERGEN CORPORATION]
--------------------------------------------------------------------------------
BANK OF AMERICA, N.A., as Increasing Lender
By: /S/ PACE DOHERTY Name: Pace Doherty Title: Vice President
[SIGNATURE PAGE] [EIGHTH AMENDMENT TO THE CREDIT AGREEMENT] [ENERGEN CORPORATION]
--------------------------------------------------------------------------------
COMPASS BANK, as Increasing Lender
By: /S/ GABRIELA AZCARATE Name: Gabriela Azcarate Title: Vice President
[SIGNATURE PAGE] [EIGHTH AMENDMENT TO THE CREDIT AGREEMENT] [ENERGEN CORPORATION]
--------------------------------------------------------------------------------
JPMORGAN CHASE BANK, N.A., as Increasing Lender
By: /S/ JO LINDA PAPADAKIS Name: Jo Linda Papadakis Title: Authorized Officer
[SIGNATURE PAGE] [EIGHTH AMENDMENT TO THE CREDIT AGREEMENT] [ENERGEN CORPORATION]
--------------------------------------------------------------------------------
REGIONS BANK, as Increasing Lender
By: /S/ WILLIAM A. PHILIPP Name: William A. Philipp Title: Managing Director
[SIGNATURE PAGE] [EIGHTH AMENDMENT TO THE CREDIT AGREEMENT] [ENERGEN CORPORATION]
--------------------------------------------------------------------------------
INCREASE LENDERS: ABN AMRO CAPITAL USA, LLC,
as Lender
By: /S/ DARRELL HOLLEY Name: Darrell Holley Title: Managing Director
By: /S/ KELLY HALL Name: Kelly Hall Title: Director
[SIGNATURE PAGE] [EIGHTH AMENDMENT TO THE CREDIT AGREEMENT] [ENERGEN CORPORATION]
--------------------------------------------------------------------------------
CANADIAN IMPERIAL BANK OF COMMERCE, NEW YORK BRANCH, as Increasing Lender
By: /S/ TRUDY NELSON Name: Trudy Nelson Title: Authorized Signatory
By: /S/ DONOVAN BROUSSARD Name: Donovan Broussard Title: Authorized Signatory
[SIGNATURE PAGE] [EIGHTH AMENDMENT TO THE CREDIT AGREEMENT] [ENERGEN CORPORATION]
--------------------------------------------------------------------------------
MIZUHO BANK, LTD., as Increasing Lender
By: /S/ DONNA DEMAGISTRIS Name: Donna DeMagistris Title: Authorized Signatory
[SIGNATURE PAGE] [EIGHTH AMENDMENT TO THE CREDIT AGREEMENT] [ENERGEN CORPORATION]
--------------------------------------------------------------------------------
PNC BANK, NATIONAL ASSOCIATION, as Increasing Lender
By: /S/ JONATHAN LUCHANSKY Name: Jonathan Luchansky Title: Director
[SIGNATURE PAGE] [EIGHTH AMENDMENT TO THE CREDIT AGREEMENT] [ENERGEN CORPORATION]
--------------------------------------------------------------------------------
SUMITOMO MITSUI BANKING CORPORATION, as Increasing Lender
By: /S/ JAMES D. WEINSTEIN Name: James D. Weinstein Title: Managing Director
[SIGNATURE PAGE] [EIGHTH AMENDMENT TO THE CREDIT AGREEMENT] [ENERGEN CORPORATION]
--------------------------------------------------------------------------------
U.S. BANK NATIONAL ASSOCIATION, as Increasing Lender
By: /S/ NICHOLAS T. HANFORD Name: Nicholas T. Hanford Title: Vice President
[SIGNATURE PAGE] [EIGHTH AMENDMENT TO THE CREDIT AGREEMENT] [ENERGEN CORPORATION]
--------------------------------------------------------------------------------
BRANCH BANKING AND TRUST COMPANY, as Increasing Lender
By: /S/ KELLY GRAHAM Name: Kelly Graham Title: Vice President
[SIGNATURE PAGE] [EIGHTH AMENDMENT TO THE CREDIT AGREEMENT] [ENERGEN CORPORATION]
--------------------------------------------------------------------------------
BMO HARRIS BANK N. A., as Increasing Lender
By: /S/ MELISSA GUZMANN Name: Melissa Guzmann Title: Director
[SIGNATURE PAGE] [EIGHTH AMENDMENT TO THE CREDIT AGREEMENT] [ENERGEN CORPORATION]
--------------------------------------------------------------------------------
DNB CAPITAL LLC, as Increasing Lender
By: /S/ BYRON COOLEY Name: Byron Cooley Title: Senior Vice President
By: /S/ JAMES GRUBB Name: James Grubb Title: Vice President
[SIGNATURE PAGE] [EIGHTH AMENDMENT TO THE CREDIT AGREEMENT] [ENERGEN CORPORATION]
--------------------------------------------------------------------------------
ROYAL BANK OF CANADA, as Increasing Lender
By: /S/ KRISTAN SPIVEY Name: Kristan Spivey Title: Authorized Signatory
[SIGNATURE PAGE] [EIGHTH AMENDMENT TO THE CREDIT AGREEMENT] [ENERGEN CORPORATION]
--------------------------------------------------------------------------------
TORONTO DOMINION (NEW YORK) LLC, as Increasing Lender
By: /S/ ANNIE DORVAL Name: Annie Dorval Title: Authorized Signatory
[SIGNATURE PAGE] [EIGHTH AMENDMENT TO THE CREDIT AGREEMENT] [ENERGEN CORPORATION]
--------------------------------------------------------------------------------
BOKF, NA DBA BANK OF OKLAHOMA, as Increasing Lender
By: /S/ JOHN KRENGER Name: John Krenger Title: Vice President
[SIGNATURE PAGE] [EIGHTH AMENDMENT TO THE CREDIT AGREEMENT] [ENERGEN CORPORATION]
--------------------------------------------------------------------------------
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as Increasing Lender
By: /S/ JUDITH E. SMITH Name: Judith E. Smith Title: Authorized Signatory
By: /S/ SZYMON ORDYS Name: Szymon Ordys Title: Authorized Signatory
[SIGNATURE PAGE] [EIGHTH AMENDMENT TO THE CREDIT AGREEMENT] [ENERGEN CORPORATION]
--------------------------------------------------------------------------------
FIFTH THIRD BANK, as Increasing Lender
By: /S/ JUSTIN BELLAMY Name: Justin Bellamy Title: Director
[SIGNATURE PAGE] [EIGHTH AMENDMENT TO THE CREDIT AGREEMENT] [ENERGEN CORPORATION]
--------------------------------------------------------------------------------
SYNOVUS BANK, as Increasing Lender
By: /S/ CUSTIS PROCTER Name: Custis Procter Title: Corporate Banker
[SIGNATURE PAGE] [EIGHTH AMENDMENT TO THE CREDIT AGREEMENT] [ENERGEN CORPORATION]
--------------------------------------------------------------------------------
IBERIABANK as Additional Lender
By: /S/ BLAKELY NORRIS Name: Blakely Norris Title: Vice President
[SIGNATURE PAGE] [EIGHTH AMENDMENT TO THE CREDIT AGREEMENT] [ENERGEN CORPORATION]
--------------------------------------------------------------------------------
BARCLAYS BANK PLC, as Exiting Lender
By: /S/ SYDNEY G. DENNIS Name: Sydney G. Dennis Title: Director
[SIGNATURE PAGE] [EIGHTH AMENDMENT TO THE CREDIT AGREEMENT] [ENERGEN CORPORATION]
--------------------------------------------------------------------------------
MORGAN STANLEY BANK, N. A., as Exiting Lender
By: /S/ MATTHEW MEYERS Name: Matthew Meyers Title: Authorized Signatory
[SIGNATURE PAGE] [EIGHTH AMENDMENT TO THE CREDIT AGREEMENT] [ENERGEN CORPORATION]
--------------------------------------------------------------------------------
ANNEX I
Name of Lender Commitment Applicable Percentage Wells Fargo Bank, National Association $90,000,000.00 7.200000000% Bank of America, N.A $90,000,000.00 7.200000000% Compass Bank $90,000,000.00 7.200000000% JPMorgan Chase Bank $90,000,000.00 7.200000000% Regions Bank $90,000,000.00 7.200000000% Canadian Imperial Bank of Commerce, New York Branch $60,000,000.00 4.800000000% DNB Capital LLC $60,000,000.00 4.800000000% Mizuho Bank, Ltd. $60,000,000.00 4.800000000% PNC Bank, National Association $60,000,000.00 4.800000000% Sumitomo Mitsui Banking Corporation $60,000,000.00 4.800000000% U.S. Bank National Association $60,000,000.00 4.800000000% ABN Amro Capital USA LLC $50,000,000.00 4.000000000% BMO Harris Bank N.A. $50,000,000.00 4.000000000% Branch Banking and Trust Company $50,000,000.00 4.000000000% Royal Bank of Canada $50,000,000.00 4.000000000% Toronto Dominion (New York) LLC $50,000,000.00 4.000000000% Credit Suisse AG, Cayman Islands Branch $50,000,000.00 4.000000000% BOKF, NA dba Bank of Oklahoma $35,000,000.00 2.800000000% Synovus Bank $35,000,000.00 2.800000000% Fifth Third Bank $35,000,000.00 2.800000000% IBERIABANK $35,000,000.00 2.800000000% TOTAL $1,250,000,000.00 100.000000000%
Annex I to Energen Eighth Amendment to the Credit Agreement | [
"EXHIBIT 10.1 Eighth Amendment to the Credit Agreement dated as of April 30, 2018 among Energen Corporation, as Borrower, Wells Fargo Bank, National Association, as Administrative Agent, The Guarantor Signatory Hereto, and The Lenders Signatory Hereto -------------------------------------------------------------------------------- Eighth Amendment to Credit Agreement This Eighth Amendment to the Credit Agreement (this “Eighth Amendment”), dated as of April 30, 2018 (the “Eighth Amendment Effective Date”), is among Energen Corporation, a corporation formed under the laws of the State of Alabama (“Borrower”); the undersigned guarantor (the “Guarantor”, and together with Borrower, the “Credit Parties”); each of the Lenders party hereto; and Wells Fargo Bank, National Association, as administrative agent for the Lenders (in such capacity, together with its successors in such capacity, “Administrative Agent”). Recitals A. Borrower, Administrative Agent and the Lenders are parties to that certain Credit Agreement dated as of September 2, 2014 (as heretofore amended, modified, supplemented or restated, the “Credit Agreement”), pursuant to which the Lenders have, subject to the terms and conditions set forth therein, made certain credit available to and on behalf of Borrower.",
"B. The parties hereto desire to enter into this Eighth Amendment to amend the Credit Agreement as set forth herein. C. Borrower has requested that IBERIABANK (the “Additional Lender”) becomes a Lender under the Credit Agreement with a Commitment in the amount shown on Annex I to the Credit Agreement (as amended hereby). D. The Lenders party hereto also desire to complete the April 1, 2018 Scheduled Redetermination as set forth herein. NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: Section 1.Defined Terms. Each capitalized term which is defined in the Credit Agreement, but which is not defined in this Eighth Amendment, shall have the meaning ascribed to such term in the Credit Agreement (as amended hereby).",
"Unless otherwise indicated, all section references in this Eighth Amendment refer to the Credit Agreement. Section 2.Amendments to the Credit Agreement. In reliance on the representations, warranties, covenants and agreements contained in this Eighth Amendment, and subject to the satisfaction of the conditions precedent set forth in Section 6 hereof, the Credit Agreement is hereby amended, effective as of the Eighth Amendment Effective Date, as follows: 2.1Amendments to Section 1.02. (a)Each of the following definitions set forth in Section 1.02 is hereby amended and restated in its entirety to read as follows: “Maturity Date” means April 30, 2023. 1 -------------------------------------------------------------------------------- (b)Each of the following definitions is added to Section 1.02 in the appropriate alphabetical order: “Eighth Amendment Effective Date” shall mean April 30, 2018. 2.2Amendment to Section 2.07(e). Section 2.07(e) is hereby amended by replacing the reference to “April 1, 2018” appearing in clause (y) of the third sentence of Section 2.07(e) with “October 1, 2018”.",
"2.3Amendments to Section 3.03. Section 3.03 is hereby amended and restated in its entirety to read as follows: Section 3.03 Alternate Rate of Interest. (a) If prior to the commencement of any Interest Period for a Eurodollar Borrowing: (i) the Administrative Agent or the Required Lenders determine (which determination shall be conclusive absent manifest error) that, because of changes arising on or after the Effective Date affecting the interbank LIBOR market, adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate for such Interest Period; or (ii) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or LIBO Rate, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period; then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by telephone, email or fax as promptly as practicable thereafter and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective, and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such Borrowing shall be made either as an ABR Borrowing or at an alternate rate of interest determined by the Required Lenders in good faith as their cost of funds.",
"(b) Notwithstanding anything to the contrary set forth in the foregoing clause (a), if at any time the Administrative Agent determines (which determination shall be conclusive absent manifest error) that (i) the circumstances set forth in clause (a)(i) have arisen and such circumstances are unlikely to be temporary or (ii) the circumstances set forth in clause (a)(i) have not arisen but the supervisor or the administrator of the LIBO Rate or the LIBOR Market Index Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the LIBO Rate or the LIBOR Market 2 -------------------------------------------------------------------------------- Index Rate shall no longer be used for determining interest rates for loans in the syndicated loan market in the United States, then the Administrative Agent and the Borrower shall endeavor in good faith to establish an alternate rate of interest to the LIBO Rate and the LIBOR Market Index Rate that gives due consideration to the then prevailing market convention for determining a rate of interest for syndicated loans in the United States at such time, and shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable. Notwithstanding anything to the contrary in Section 12.02, such amendment shall become effective without any further action or consent of any other party to this Agreement so long as the Administrative Agent shall not have received, within five Business Days of the date notice of such alternate rate of interest is provided to the Lenders, a written notice from the Required Lenders stating that such Required Lenders object to such amendment.",
"Until an alternate rate of interest shall be determined in accordance with this clause (b) (but, in the case of the circumstances described in clause (ii) of the first sentence of this Section 3.03(b), only to the extent the LIBO Rate for such Interest Period or the LIBOR Market Index Rate for any Swingline Loan is not available or published at such time on a current basis), (x) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective and (y) if any Borrowing Request requests a Eurodollar Borrowing or a Swingline Loan, such Borrowing or Swingline Loan shall be made as an ABR Borrowing; provided that, if such alternate rate of interest shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement. Section 3.Borrowing Base Redetermination.",
"Subject to the satisfaction of the conditions precedent set forth in Section 6 hereof, Administrative Agent and the Lenders hereby agree that for the period from and including the Eighth Amendment Effective Date to but excluding the next Redetermination Date, the amount of the Borrowing Base shall be increased to $2,150,000,000 (the “April 2018 Redetermination”). Administrative Agent, the Lenders and Borrower agree that the foregoing constitutes the April 1, 2018 Scheduled Redetermination and that this Eighth Amendment shall constitute the New Borrowing Base Notice with respect to such Scheduled Redetermination. Notwithstanding the foregoing, the Borrowing Base may be subject to further redeterminations and adjustments from time to time pursuant to Section 2.07 or Section 8.12(c). Section 4.Increase of Aggregate Commitment. Subject to the satisfaction of the conditions precedent set forth in Section 6 hereof: 4.1Each undersigned Increase Lender (each, an “Increasing Lender”) has agreed (i) to increase its Commitment under the Credit Agreement effective as of the Eighth Amendment Effective Date to the amount set forth opposite such Increasing Lender’s name on Annex I attached hereto under the caption “Commitment” and (ii) that it shall continue to be a party in all respects to the Credit Agreement and the other Loan Documents pursuant to Section 2.10(a)(viii) of the Credit Agreement. 3 -------------------------------------------------------------------------------- 4.2The undersigned Additional Lender has agreed (i) to provide its Commitment under the Credit Agreement effective as of the Eighth Amendment Effective Date to the amount set forth opposite such Additional Lender’s name on Annex I attached hereto under the caption “Commitment” and (ii) that it shall, as of the Eighth Amendment Effective Date, be deemed a party in all respects to the Credit Agreement and the other Loan Documents pursuant to Section 2.10(a)(viii) of the Credit Agreement.",
"4.3The parties hereto hereby agree that this Eighth Amendment shall be deemed to constitute a Commitment Increase Certificate for purposes of Section 2.10(a)(v) of the Credit Agreement and an Additional Lender Certificate for purpose of Section 2.10(a)(vi) of the Credit Agreement. 4.4On the Eighth Amendment Effective Date, Annex I to the Credit Agreement will be replaced in its entirety with Annex I attached hereto pursuant to Section 2.10(a)(viii)(B). 4.5The parties hereto hereby agree the outstanding Revolving Loans, Swingline Loans and LC Exposure will be reallocated by the Administrative Agent on the Eighth Amendment Effective Date among the Lenders (including the Additional Lender and the Exiting Lenders (as defined below)), in accordance with their revised Applicable Percentages (or in the case of each Exiting Lender, adjusted to equal $0.00), and the Lenders (including the Additional Lender, but excluding the Exiting Lenders) shall make all payments and adjustments necessary to effect such reallocation. 4.6Each Lender (including, for the avoidance of doubt, each undersigned Lender that is not increasing its Commitment pursuant to Section 4.1 above and each Exiting Lender) hereby agrees that the Borrower shall not be required to make any break-funding payments which may otherwise be required under Section 5.02 of the Credit Agreement solely resulting from the increase in the Commitments effected pursuant to this Eighth Amendment; provided, that the Lenders’ waiver of such break-funding payments set forth in this Section 4.6 is a limited, one-time waiver, and nothing contained herein shall obligate the Administrative Agent or any Lender to grant any additional or future waiver with respect to, or in connection with, any provision of the Credit Agreement or any other Loan Document.",
"Section 5.Additional Lender. The Additional Lender hereby joins in, becomes a party to, and agrees to comply with and be bound by the terms and conditions of the Credit Agreement as a Lender thereunder and under each and every other Loan Document to which any Lender is required to be bound by the Credit Agreement, to the same extent as if the Additional Lender were an original signatory thereto. The Additional Lender hereby appoints and authorizes the Administrative Agent to take such action as the Administrative Agent on its behalf and to exercise such powers and discretion under the Credit Agreement as are delegated to the Administrative Agent by the terms thereof, together with such powers and discretion as are reasonably incidental thereto. The Additional Lender represents and warrants that (a) it has full power and authority, and has taken all action necessary, to execute and deliver this Eighth Amendment, to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (b) it has received a copy of the Credit Agreement and copies of the most recent financial statements delivered pursuant to Section 8.01 thereof, and such other documents and information as it has deemed appropriate to 4 -------------------------------------------------------------------------------- make its own credit analysis and decision to enter into this Eighth Amendment and to become a Lender on the basis of which it has made such analysis and decision independently and without reliance on the Administrative Agent or any other Lender, and (c) from and after the Eighth Amendment Effective Date, it shall be a party to and be bound by the provisions of the Credit Agreement and the other Loan Documents and have the rights and obligations of a Lender thereunder.",
"Section 6.Conditions Precedent. The effectiveness of this Eighth Amendment is subject to the following: 6.1.Administrative Agent shall have received executed counterparts of this Eighth Amendment from the Credit Parties and all Lenders (including the Additional Lender and all Exiting Lenders). 6.2.Administrative Agent shall have received a certificate of the Secretary or an Assistant Secretary of the Borrower and each Guarantor setting forth (i) resolutions of its board of directors (or comparable governing body) with respect to the authorization of the Borrower or such Guarantor to execute and deliver this Eighth Amendment and to enter into the transactions contemplated hereby (including, but not limited to, the extension of the Maturity Date), (ii) the officers of the Borrower or such Guarantor (y) who are authorized to sign the Loan Documents to which the Borrower or such Guarantor is a party and (z) who will, until replaced by another officer or officers duly authorized for that purpose, act as its representative for the purposes of signing documents and giving notices and other communications in connection with this Agreement and the transactions contemplated hereby, (iii) specimen signatures of such authorized officers, and (iv) the articles or certificate of incorporation and bylaws (or comparable organizational documents for any Credit Parties that are not corporations) of the Borrower and such Guarantor, certified as being true and complete. The Administrative Agent and the Lenders may conclusively rely on such certificate until the Administrative Agent receives notice in writing from the Borrower to the contrary.",
"6.3.Administrative Agent shall have received certificates of the appropriate State agencies with respect to the existence, qualification and good standing of the Borrower and each Guarantor. 6.4.To the extent requested by the Additional Lender joining into the Credit Agreement pursuant to this Eighth Amendment, the Administrative Agent shall have received a duly executed Note payable to such Additional Lender, dated as of Eighth Amendment Effective Date. 6.5.Administrative Agent shall have received from each party thereto duly executed counterparts (in such number as may be requested by the Administrative Agent) of all documents and instruments, including Uniform Commercial Code or other applicable personal property and financing statements and deeds of trust or amendments and supplements to existing deeds of trust securing the Credit Agreement, reasonably requested by the Administrative Agent to be filed, registered or recorded to create or continue, as applicable, the Liens granted by the Borrower and each Guarantor on Properties pursuant to the Security Instruments.",
"In connection with the execution and delivery of such documents and instruments, the Administrative Agent shall be reasonably satisfied that the Security Instruments will, when such documents or instruments are properly recorded (or when applicable financing statements related thereto are properly filed or such other 5 -------------------------------------------------------------------------------- actions needed to perfect are taken) continue to perfect the first priority, perfected Liens (subject only to Excepted Liens and other Liens permitted by Section 9.03 of the Credit Agreement) on (A) at least 80% of the PV-9 of the Oil and Gas Properties evaluated in the most recent Reserve Report delivered pursuant to Section 8.11 of the Credit Agreement and (B) all other Property purported to be pledged as collateral pursuant to the Security Instruments. 6.6.Administrative Agent shall have received an opinion of (i) Bradley Arant Boult Cummings LLP in form and substance reasonably acceptable to the Administrative Agent and its counsel, and (ii) Locke Lord LLP in form and substance reasonably acceptable to the Administrative Agent and its counsel. 6.7.Administrative Agent shall have received all fees and other amounts due and payable to the Administrative Agent or any Lenders in connection with this Eighth Amendment.",
"6.8.Administrative Agent shall have received such other documents as Administrative Agent or special counsel to Administrative Agent may reasonably request. Administrative Agent shall notify Borrower and the Lenders of the effectiveness of this Eighth Amendment, and such notice shall be conclusive and binding. Section 7.Representations and Warranties; Etc. Each Credit Party hereby affirms: (a) that as of the date hereof, the representations and warranties of Borrower and Guarantor set forth in each Loan Document are true and correct in all material respects (or, if qualified by materiality or Material Adverse Effect, in all respects), except to the extent any such representations and warranties are expressly limited to an earlier date, in which case, on and as of the date hereof, such representations and warranties continue to be true and correct in all material respects (or, if qualified by materiality or Material Adverse Effect, in all respects) as of such specified earlier date and (b) that as of the date hereof, no Default or Event of Default has occurred and is continuing or would result from this Eighth Amendment.",
"Section 8.Miscellaneous. 8.1Confirmation and Effect. The provisions of the Credit Agreement (as amended by this Eighth Amendment) shall remain in full force and effect in accordance with its respective terms following the effectiveness of this Eighth Amendment. Each reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof”, “herein”, or words of like import shall mean and be a reference to the Credit Agreement, as amended hereby, and each reference to the Credit Agreement in any other document, instrument or agreement executed and/or delivered in connection with the Credit Agreement shall mean and be a reference to the Credit Agreement, as amended hereby.",
"The execution, delivery and effectiveness of this Eighth Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents. 8.2Ratification and Affirmation of Credit Parties. Each of the Credit Parties hereby expressly (a) acknowledges the terms of this Eighth Amendment, (b) ratifies and affirms its 6 -------------------------------------------------------------------------------- obligations under the Guaranty Agreement and the other Loan Documents to which it is a party, (c) acknowledges, renews and extends its continued liability under the Guaranty Agreement and the other Loan Documents to which it is a party (in each case, as amended hereby), and (d) acknowledges and confirms that the amendments contemplated hereby shall not limit or impair any Liens securing the Indebtedness, each of which are hereby ratified, affirmed and extended to secure the Indebtedness after giving effect to this Eighth Amendment. 8.3Counterparts.",
"This Eighth Amendment may be executed by one or more of the parties hereto in any number of separate counterparts, and all of such counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of this Eighth Amendment by facsimile or electronic (e.g. pdf) transmission shall be effective as delivery of a manually executed original counterpart hereof. 8.4No Oral Agreement. This written Eighth Amendment, the Credit Agreement and the other Loan Documents executed in connection herewith and therewith represent the final agreement between the parties and may not be contradicted by evidence of prior, contemporaneous, or unwritten oral agreements of the parties. There are no subsequent oral agreements between the parties. 8.5Governing Law. This Eighth Amendment (including, but not limited to, the validity and enforceability hereof) shall be governed by, and construed in accordance with, the laws of the State of New York.",
"8.6Severability. Any provision of this Eighth Amendment which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. 8.7Loan Document. This Eighth Amendment shall constitute a “Loan Document” for all purposes under the other Loan Documents. 8.8Exiting Lender Consents. By its execution of this Eighth Amendment, Barclays Bank PLC and Morgan Stanley Bank, N.A. (each, an “Exiting Lender”, and collectively, the “Exiting Lenders”) each hereby (a) consents to this Eighth Amendment in its capacity as a Lender under the Credit Agreement solely for purposes of Section 12.02 of the Credit Agreement, and (b) acknowledges and agrees to Sections 4.4, 4.5 and 4.6 of this Eighth Amendment. Each of the parties hereto hereby agrees and confirms that after giving effect to Sections 4.4, 4.5 and 4.6 of this Eighth Amendment, each Exiting Lender’s Commitment shall be $0.00, each Exiting Lender’s Commitments to lend and all other obligations of each Exiting Lender under the Credit Agreement shall be terminated, and each Exiting Lender shall cease to be a Lender for all purposes under the Loan Documents. [signature pages follow] 7 -------------------------------------------------------------------------------- IN WITNESS WHEREOF, the parties hereto have caused this Eighth Amendment to be duly executed effective as of the date first written above.",
"BORROWER: ENERGEN CORPORATION By: /S/ CHARLES W. PORTER, JR. Name: Charles W. Porter, Jr. Title: Vice President, Chief Financial Officer and Treasurer GUARANTOR: ENERGEN RESOURCES CORPORATION By: /S/ CHARLES W. PORTER, JR. Name: Charles W. Porter, Jr.",
"Title: Vice President, Chief Financial Officer and Treasurer [SIGNATURE PAGE] [EIGHTH AMENDMENT TO THE CREDIT AGREEMENT] [ENERGEN CORPORATION] -------------------------------------------------------------------------------- WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent, Issuing Bank and Increasing Lender By: /S/ COURTNEY KUBESCH Name: Courtney Kubesch Title: Director [SIGNATURE PAGE] [EIGHTH AMENDMENT TO THE CREDIT AGREEMENT] [ENERGEN CORPORATION] -------------------------------------------------------------------------------- BANK OF AMERICA, N.A., as Increasing Lender By: /S/ PACE DOHERTY Name: Pace Doherty Title: Vice President [SIGNATURE PAGE] [EIGHTH AMENDMENT TO THE CREDIT AGREEMENT] [ENERGEN CORPORATION] -------------------------------------------------------------------------------- COMPASS BANK, as Increasing Lender By: /S/ GABRIELA AZCARATE Name: Gabriela Azcarate Title: Vice President [SIGNATURE PAGE] [EIGHTH AMENDMENT TO THE CREDIT AGREEMENT] [ENERGEN CORPORATION] -------------------------------------------------------------------------------- JPMORGAN CHASE BANK, N.A., as Increasing Lender By: /S/ JO LINDA PAPADAKIS Name: Jo Linda Papadakis Title: Authorized Officer [SIGNATURE PAGE] [EIGHTH AMENDMENT TO THE CREDIT AGREEMENT] [ENERGEN CORPORATION] -------------------------------------------------------------------------------- REGIONS BANK, as Increasing Lender By: /S/ WILLIAM A. PHILIPP Name: William A. Philipp Title: Managing Director [SIGNATURE PAGE] [EIGHTH AMENDMENT TO THE CREDIT AGREEMENT] [ENERGEN CORPORATION] -------------------------------------------------------------------------------- INCREASE LENDERS: ABN AMRO CAPITAL USA, LLC, as Lender By: /S/ DARRELL HOLLEY Name: Darrell Holley Title: Managing Director By: /S/ KELLY HALL Name: Kelly Hall Title: Director [SIGNATURE PAGE] [EIGHTH AMENDMENT TO THE CREDIT AGREEMENT] [ENERGEN CORPORATION] -------------------------------------------------------------------------------- CANADIAN IMPERIAL BANK OF COMMERCE, NEW YORK BRANCH, as Increasing Lender By: /S/ TRUDY NELSON Name: Trudy Nelson Title: Authorized Signatory By: /S/ DONOVAN BROUSSARD Name: Donovan Broussard Title: Authorized Signatory [SIGNATURE PAGE] [EIGHTH AMENDMENT TO THE CREDIT AGREEMENT] [ENERGEN CORPORATION] -------------------------------------------------------------------------------- MIZUHO BANK, LTD., as Increasing Lender By: /S/ DONNA DEMAGISTRIS Name: Donna DeMagistris Title: Authorized Signatory [SIGNATURE PAGE] [EIGHTH AMENDMENT TO THE CREDIT AGREEMENT] [ENERGEN CORPORATION] -------------------------------------------------------------------------------- PNC BANK, NATIONAL ASSOCIATION, as Increasing Lender By: /S/ JONATHAN LUCHANSKY Name: Jonathan Luchansky Title: Director [SIGNATURE PAGE] [EIGHTH AMENDMENT TO THE CREDIT AGREEMENT] [ENERGEN CORPORATION] -------------------------------------------------------------------------------- SUMITOMO MITSUI BANKING CORPORATION, as Increasing Lender By: /S/ JAMES D. WEINSTEIN Name: James D. Weinstein Title: Managing Director [SIGNATURE PAGE] [EIGHTH AMENDMENT TO THE CREDIT AGREEMENT] [ENERGEN CORPORATION] -------------------------------------------------------------------------------- U.S. BANK NATIONAL ASSOCIATION, as Increasing Lender By: /S/ NICHOLAS T. HANFORD Name: Nicholas T. Hanford Title: Vice President [SIGNATURE PAGE] [EIGHTH AMENDMENT TO THE CREDIT AGREEMENT] [ENERGEN CORPORATION] -------------------------------------------------------------------------------- BRANCH BANKING AND TRUST COMPANY, as Increasing Lender By: /S/ KELLY GRAHAM Name: Kelly Graham Title: Vice President [SIGNATURE PAGE] [EIGHTH AMENDMENT TO THE CREDIT AGREEMENT] [ENERGEN CORPORATION] -------------------------------------------------------------------------------- BMO HARRIS BANK N. A., as Increasing Lender By: /S/ MELISSA GUZMANN Name: Melissa Guzmann Title: Director [SIGNATURE PAGE] [EIGHTH AMENDMENT TO THE CREDIT AGREEMENT] [ENERGEN CORPORATION] -------------------------------------------------------------------------------- DNB CAPITAL LLC, as Increasing Lender By: /S/ BYRON COOLEY Name: Byron Cooley Title: Senior Vice President By: /S/ JAMES GRUBB Name: James Grubb Title: Vice President [SIGNATURE PAGE] [EIGHTH AMENDMENT TO THE CREDIT AGREEMENT] [ENERGEN CORPORATION] -------------------------------------------------------------------------------- ROYAL BANK OF CANADA, as Increasing Lender By: /S/ KRISTAN SPIVEY Name: Kristan Spivey Title: Authorized Signatory [SIGNATURE PAGE] [EIGHTH AMENDMENT TO THE CREDIT AGREEMENT] [ENERGEN CORPORATION] -------------------------------------------------------------------------------- TORONTO DOMINION (NEW YORK) LLC, as Increasing Lender By: /S/ ANNIE DORVAL Name: Annie Dorval Title: Authorized Signatory [SIGNATURE PAGE] [EIGHTH AMENDMENT TO THE CREDIT AGREEMENT] [ENERGEN CORPORATION] -------------------------------------------------------------------------------- BOKF, NA DBA BANK OF OKLAHOMA, as Increasing Lender By: /S/ JOHN KRENGER Name: John Krenger Title: Vice President [SIGNATURE PAGE] [EIGHTH AMENDMENT TO THE CREDIT AGREEMENT] [ENERGEN CORPORATION] -------------------------------------------------------------------------------- CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as Increasing Lender By: /S/ JUDITH E. SMITH Name: Judith E. Smith Title: Authorized Signatory By: /S/ SZYMON ORDYS Name: Szymon Ordys Title: Authorized Signatory [SIGNATURE PAGE] [EIGHTH AMENDMENT TO THE CREDIT AGREEMENT] [ENERGEN CORPORATION] -------------------------------------------------------------------------------- FIFTH THIRD BANK, as Increasing Lender By: /S/ JUSTIN BELLAMY Name: Justin Bellamy Title: Director [SIGNATURE PAGE] [EIGHTH AMENDMENT TO THE CREDIT AGREEMENT] [ENERGEN CORPORATION] -------------------------------------------------------------------------------- SYNOVUS BANK, as Increasing Lender By: /S/ CUSTIS PROCTER Name: Custis Procter Title: Corporate Banker [SIGNATURE PAGE] [EIGHTH AMENDMENT TO THE CREDIT AGREEMENT] [ENERGEN CORPORATION] -------------------------------------------------------------------------------- IBERIABANK as Additional Lender By: /S/ BLAKELY NORRIS Name: Blakely Norris Title: Vice President [SIGNATURE PAGE] [EIGHTH AMENDMENT TO THE CREDIT AGREEMENT] [ENERGEN CORPORATION] -------------------------------------------------------------------------------- BARCLAYS BANK PLC, as Exiting Lender By: /S/ SYDNEY G. DENNIS Name: Sydney G. Dennis Title: Director [SIGNATURE PAGE] [EIGHTH AMENDMENT TO THE CREDIT AGREEMENT] [ENERGEN CORPORATION] -------------------------------------------------------------------------------- MORGAN STANLEY BANK, N. A., as Exiting Lender By: /S/ MATTHEW MEYERS Name: Matthew Meyers Title: Authorized Signatory [SIGNATURE PAGE] [EIGHTH AMENDMENT TO THE CREDIT AGREEMENT] [ENERGEN CORPORATION] -------------------------------------------------------------------------------- ANNEX I Name of Lender Commitment Applicable Percentage Wells Fargo Bank, National Association $90,000,000.00 7.200000000% Bank of America, N.A $90,000,000.00 7.200000000% Compass Bank $90,000,000.00 7.200000000% JPMorgan Chase Bank $90,000,000.00 7.200000000% Regions Bank $90,000,000.00 7.200000000% Canadian Imperial Bank of Commerce, New York Branch $60,000,000.00 4.800000000% DNB Capital LLC $60,000,000.00 4.800000000% Mizuho Bank, Ltd. $60,000,000.00 4.800000000% PNC Bank, National Association $60,000,000.00 4.800000000% Sumitomo Mitsui Banking Corporation $60,000,000.00 4.800000000% U.S. Bank National Association $60,000,000.00 4.800000000% ABN Amro Capital USA LLC $50,000,000.00 4.000000000% BMO Harris Bank N.A.",
"$50,000,000.00 4.000000000% Branch Banking and Trust Company $50,000,000.00 4.000000000% Royal Bank of Canada $50,000,000.00 4.000000000% Toronto Dominion (New York) LLC $50,000,000.00 4.000000000% Credit Suisse AG, Cayman Islands Branch $50,000,000.00 4.000000000% BOKF, NA dba Bank of Oklahoma $35,000,000.00 2.800000000% Synovus Bank $35,000,000.00 2.800000000% Fifth Third Bank $35,000,000.00 2.800000000% IBERIABANK $35,000,000.00 2.800000000% TOTAL $1,250,000,000.00 100.000000000% Annex I to Energen Eighth Amendment to the Credit Agreement"
] | https://github.com/TheAtticusProject/cuad | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
|
Case 7:19-cv-00075-HL Document 1-3 Filed 05/24/19 Page 1 of 2
AO 440 (Rev. 06/12) Summons in a Civil Action
UNITED STATES DISTRICT COURT for the Middle District __________ District of of __________ Georgia
TYLER MONCUS ) ) ) ) Plaintiff(s) ) ) v. Civil Action No. ) LASALLE MANAGEMENT COMPANY, LLC D/B/A ) LASALLE CORRECTIONS, LASALLE SOUTHEAST, ) LLC, CGL/LASALLE IRWIN PROPERTIES, LLC, ) CGL IRWIN PROPERTIES, LLC, et al ) Defendant(s) )
SUMMONS IN A CIVIL ACTION
To: (Defendant’s name and address) LASALLE MANAGEMENT COMPANY, LLC D/B/A LASALLE CORRECTIONS C/O WILLIAM K. MCCONNELL, AGENT FOR SERVICE OF PROCESS 192 BASTILLE, SUITE 200 RUSTON, LA 71270
A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney, whose name and address are: BRENT J. SAVAGE SAVAGE, TURNER, DURHAM, PINCKNEY & SAVAGE POST OFFICE BOX 10600 SAVANNAH, GA 31412
If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.
CLERK OF COURT
Date: Signature of Clerk or Deputy Clerk Case 7:19-cv-00075-HL Document 1-3 Filed 05/24/19 Page 2 of 2
AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)
Civil Action No.
PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))
This summons for (name of individual and title, if any) was received by me on (date) .
’ I personally served the summons on the individual at (place) on (date) ; or
’ I left the summons at the individual’s residence or usual place of abode with (name) , a person of suitable age and discretion who resides there, on (date) , and mailed a copy to the individual’s last known address; or
’ I served the summons on (name of individual) , who is designated by law to accept service of process on behalf of (name of organization) on (date) ; or
’ I returned the summons unexecuted because ; or
’ Other (specify): .
My fees are $ for travel and $ for services, for a total of $ 0.00 .
I declare under penalty of perjury that this information is true.
Date: Server’s signature
Printed name and title
Server’s address
Additional information regarding attempted service, etc:
Print Save As... Reset | 2019-05-24 | [
"Case 7:19-cv-00075-HL Document 1-3 Filed 05/24/19 Page 1 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action UNITED STATES DISTRICT COURT for the Middle District __________ District of of __________ Georgia TYLER MONCUS ) ) ) ) Plaintiff(s) ) ) v. Civil Action No. ) LASALLE MANAGEMENT COMPANY, LLC D/B/A ) LASALLE CORRECTIONS, LASALLE SOUTHEAST, ) LLC, CGL/LASALLE IRWIN PROPERTIES, LLC, ) CGL IRWIN PROPERTIES, LLC, et al ) Defendant(s) ) SUMMONS IN A CIVIL ACTION To: (Defendant’s name and address) LASALLE MANAGEMENT COMPANY, LLC D/B/A LASALLE CORRECTIONS C/O WILLIAM K. MCCONNELL, AGENT FOR SERVICE OF PROCESS 192 BASTILLE, SUITE 200 RUSTON, LA 71270 A lawsuit has been filed against you. Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed.",
"R. Civ. P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney, whose name and address are: BRENT J. SAVAGE SAVAGE, TURNER, DURHAM, PINCKNEY & SAVAGE POST OFFICE BOX 10600 SAVANNAH, GA 31412 If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.",
"CLERK OF COURT Date: Signature of Clerk or Deputy Clerk Case 7:19-cv-00075-HL Document 1-3 Filed 05/24/19 Page 2 of 2 AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2) Civil Action No. PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l)) This summons for (name of individual and title, if any) was received by me on (date) . ’ I personally served the summons on the individual at (place) on (date) ; or ’ I left the summons at the individual’s residence or usual place of abode with (name) , a person of suitable age and discretion who resides there, on (date) , and mailed a copy to the individual’s last known address; or ’ I served the summons on (name of individual) , who is designated by law to accept service of process on behalf of (name of organization) on (date) ; or ’ I returned the summons unexecuted because ; or ’ Other (specify): . My fees are $ for travel and $ for services, for a total of $ 0.00 .",
"I declare under penalty of perjury that this information is true. Date: Server’s signature Printed name and title Server’s address Additional information regarding attempted service, etc: Print Save As... Reset"
] | https://www.courtlistener.com/api/rest/v3/recap-documents/184091108/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DETAILED ACTION
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, 2021 has been entered.
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 16 is rejected under 35 U.S.C. 103 as being unpatentable over Hammons et al. (US 2010/0036346). With reference to claim 16, Hammons et al. (hereinafter “Hammons”) discloses an absorbent article (abstract) having a wearer-facing side and a garment-facing side, (figure 23B) the article comprising: a. a topsheet (20) on the wearer-facing side (figure 23B); b. a backsheet (30);
Noel et al. (hereinafter “Noel”) discloses an absorbent core (col. 11, lines 3-15) including multiple layers (42,46,48) wherein at least one of the layers (46) includes superabsorbent polymer material as set forth in col. 13, lines 4-15. The superabsorbent polymer material may be included in particulate form as set forth in col. 16, line 59 to col. 17, line 1. Hammons provides the article with at least one channel (300) disposed within the core that is substantially free of absorbent material (see figure 23B and [0152]). Hammons also includes a visual signal (301) viewable from the wearer-facing side of the absorbent article [0155], the visual signal comprising color imparted to a color imparted portion of the secondary topsheet as set forth in [0155] where Hammons states that the channel color and/or second color can be printed or appear on a layer underlying the topsheet such that a color is visible through the topsheet when the absorbent article is viewed from the body facing side of the absorbent article Hammons discloses that the color imparted portion corresponds with at least one channel (i.e., channel can have at least a portion in which the color differs) as set forth in [0155]. The difference between Hammons and claim 16 is the explicit recitation that the absorbent article includes an acquisition layer between the core and the topsheet and As previously discussed, Hammons provides he article with a secondary topsheet (220) located between the topsheet and the core as set forth in [0047] and as shown in figure 23B. As set forth in the instant specification, the acquisition layer is the equivalent of a secondary topsheet which may include various materials known in the art (see page 19, lines 29-30. Hammons discloses that the secondary topsheet can be virtually any web material [0126]. It would have been obvious to one of ordinary skill in the art to equate the secondary topsheet of Hammons as an acquisition layer because the instant specification acknowledges that the acquisition layer is commonly referred to an acquisition layer and because both Hammons and the instant application recognize that this secondary topsheet may be made from virtually any type of material. Additionally, the instant specification acknowledges that tissue layers have enhanced capillarity distribution properties (page 20, lines 25-26) and Hammons discloses that the secondary topsheet may be a tissue as set forth in [0126]. With respect to the at least one channel being viewable from the wearer-facing side of the absorbent article, it would have been obvious to one of ordinary skill in the art to provide at least one channel being viewable from the wearer-facing side of the absorbent article as claimed because Hammons discloses that the channel itself is colored [0155] and that the color is visible through the topsheet [0155]. As such, the color, and therefore the channel, as the channel is the colored portion would [AltContent: arrow][AltContent: textbox (absorbent core)] PNG media_image1.png 755 952 media_image1.png Greyscale
Further, it would have been obvious to one of ordinary skill in the art to provide at least one channel being viewable from the wearer-facing side of the absorbent article in order to reinforce effective communication and highlight structurally modified zones and to provide further evidence to the wearer of the article performance as taught by Hammons in the last 6 lines of [0155]. Claims 18 and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Hammons et al. (US 2010/0036346) and further in view of Roe et al. (US 2014/0163506)
With reference to claim 18, teaches the invention substantially as claimed as set forth in the rejection of claim 16. Hammons discloses an absorbent article wherein the absorbent core includes multiple layers including a core wrap layer as set forth in as provided through the incorporation [0204] of Noel et al. (US 5,439,458) in [0162]; Noel discloses an absorbent core (col. 11, lines 3-15) including multiple layers (42,46,48) and which the core also includes a core wrap material (72) as set forth in col. 25, lines 8-17. Roe teaches an analogous absorbent article that also includes a core wrap material having a first (16) substrate and a second (16’) substrate as shown in figure 5. The first substrate is bonded to the second substrate within the at least one channel to form a channel bond (26) as shown in figure 5. It would have been obvious to one of ordinary skill in the art to provide the core and/or core wrap of Hammons with the specific bonds as taught by Roe in order to provide the core with advantageous channels with increased integrity as taught by Roe in [0086]. With reference to claim 21, teaches the invention substantially as claimed as set forth in the rejection of claim 16. The difference between Hammons and claim 21 is the provision that the at least one channel comprises a pair of channels extending lengthwise in a longitudinal Roe teaches an analogous absorbent article that includes a pair of channels (26,26’) extending lengthwise in a longitudinal direction of the absorbent article as shown in figure 1. It would have been obvious to one of ordinary skill in the art to provide the core and/or core wrap of Hammons with the channels as taught by Roe in order to improve the flexibility of the core as taught by Roe in [0080]. With respect to the visual signal, Hammons discloses that the article includes a visual signal (301) comprising color imparted to a color imparted portion which corresponds with at least one channel (i.e., channel can have at least a portion in which the color differs) as set forth in [0155]. It would have been obvious to one of ordinary skill in the art to provide the visual signal to the pair of channels in their respective shape(s) as taught by Roe because Hammons recognizes that the color imparted area should correspond to the channels and Roe provides the channels as a pair with longitudinally curved features as claimed.
Double Patenting The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); 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 nonstatutory 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 § 2146 et seq. 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).
Claims 1, 3-4 and 6-21 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 2, 9-10 and12-13 and of U.S. Patent No. 10,864,119. Although the claims at issue are not identical, they are not patentably distinct from each other because both the instant application and U.S. Patent No. 10,864,119 are directed to an absorbent article including a visual signal that is visible on a wearer-facing side of the article. The limitations of claim 1 of the instant application can be found in claims 1 and 6-7 of U.S. Patent No. 10,864,119. The limitations of claim 3 of the instant application can be found in claim 1 of U.S. Patent No. 10,864,119. The limitations of claim 4 of the instant application can be found in claim 1 of U.S. Patent No. 10,864,119. The limitations of claim 6 of the instant application can be found in claim 2 of U.S. Patent No. 10,864,119.
The limitations of claim 21 of the instant application can be found in claim 10 of U.S. Patent No. 10,864,119.
Response to Arguments Applicant’s arguments with respect to claims 16, 18 and 21 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 The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. US 2014/0296815 to Takken et al. is considered relevant for the teaching of embossed channel patterns being readily visible from the topsheet surface [0028]. Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHELE M KIDWELL whose telephone number is (571)272-4935. The examiner can normally be reached on Monday-Friday, 7AM-4PM EST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Tatyana Zalukaeva can be reached on 571-272-1115. 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.
/MICHELE M KIDWELL/Primary Examiner, Art Unit 3781 | 2021-03-17T06:38:52 | [
"DETAILED ACTION 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, 2021 has been entered. 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 16 is rejected under 35 U.S.C. 103 as being unpatentable over Hammons et al. (US 2010/0036346). With reference to claim 16, Hammons et al. (hereinafter “Hammons”) discloses an absorbent article (abstract) having a wearer-facing side and a garment-facing side, (figure 23B) the article comprising: a. a topsheet (20) on the wearer-facing side (figure 23B); b. a backsheet (30); Noel et al. (hereinafter “Noel”) discloses an absorbent core (col. 11, lines 3-15) including multiple layers (42,46,48) wherein at least one of the layers (46) includes superabsorbent polymer material as set forth in col. 13, lines 4-15. The superabsorbent polymer material may be included in particulate form as set forth in col. 16, line 59 to col. 17, line 1. Hammons provides the article with at least one channel (300) disposed within the core that is substantially free of absorbent material (see figure 23B and [0152]). Hammons also includes a visual signal (301) viewable from the wearer-facing side of the absorbent article [0155], the visual signal comprising color imparted to a color imparted portion of the secondary topsheet as set forth in [0155] where Hammons states that the channel color and/or second color can be printed or appear on a layer underlying the topsheet such that a color is visible through the topsheet when the absorbent article is viewed from the body facing side of the absorbent article Hammons discloses that the color imparted portion corresponds with at least one channel (i.e., channel can have at least a portion in which the color differs) as set forth in [0155].",
"The difference between Hammons and claim 16 is the explicit recitation that the absorbent article includes an acquisition layer between the core and the topsheet and As previously discussed, Hammons provides he article with a secondary topsheet (220) located between the topsheet and the core as set forth in [0047] and as shown in figure 23B. As set forth in the instant specification, the acquisition layer is the equivalent of a secondary topsheet which may include various materials known in the art (see page 19, lines 29-30. Hammons discloses that the secondary topsheet can be virtually any web material [0126]. It would have been obvious to one of ordinary skill in the art to equate the secondary topsheet of Hammons as an acquisition layer because the instant specification acknowledges that the acquisition layer is commonly referred to an acquisition layer and because both Hammons and the instant application recognize that this secondary topsheet may be made from virtually any type of material. Additionally, the instant specification acknowledges that tissue layers have enhanced capillarity distribution properties (page 20, lines 25-26) and Hammons discloses that the secondary topsheet may be a tissue as set forth in [0126].",
"With respect to the at least one channel being viewable from the wearer-facing side of the absorbent article, it would have been obvious to one of ordinary skill in the art to provide at least one channel being viewable from the wearer-facing side of the absorbent article as claimed because Hammons discloses that the channel itself is colored [0155] and that the color is visible through the topsheet [0155]. As such, the color, and therefore the channel, as the channel is the colored portion would [AltContent: arrow][AltContent: textbox (absorbent core)] PNG media_image1.png 755 952 media_image1.png Greyscale Further, it would have been obvious to one of ordinary skill in the art to provide at least one channel being viewable from the wearer-facing side of the absorbent article in order to reinforce effective communication and highlight structurally modified zones and to provide further evidence to the wearer of the article performance as taught by Hammons in the last 6 lines of [0155]. Claims 18 and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Hammons et al.",
"(US 2010/0036346) and further in view of Roe et al. (US 2014/0163506) With reference to claim 18, teaches the invention substantially as claimed as set forth in the rejection of claim 16. Hammons discloses an absorbent article wherein the absorbent core includes multiple layers including a core wrap layer as set forth in as provided through the incorporation [0204] of Noel et al. (US 5,439,458) in [0162]; Noel discloses an absorbent core (col. 11, lines 3-15) including multiple layers (42,46,48) and which the core also includes a core wrap material (72) as set forth in col. 25, lines 8-17. Roe teaches an analogous absorbent article that also includes a core wrap material having a first (16) substrate and a second (16’) substrate as shown in figure 5.",
"The first substrate is bonded to the second substrate within the at least one channel to form a channel bond (26) as shown in figure 5. It would have been obvious to one of ordinary skill in the art to provide the core and/or core wrap of Hammons with the specific bonds as taught by Roe in order to provide the core with advantageous channels with increased integrity as taught by Roe in [0086]. With reference to claim 21, teaches the invention substantially as claimed as set forth in the rejection of claim 16.",
"The difference between Hammons and claim 21 is the provision that the at least one channel comprises a pair of channels extending lengthwise in a longitudinal Roe teaches an analogous absorbent article that includes a pair of channels (26,26’) extending lengthwise in a longitudinal direction of the absorbent article as shown in figure 1. It would have been obvious to one of ordinary skill in the art to provide the core and/or core wrap of Hammons with the channels as taught by Roe in order to improve the flexibility of the core as taught by Roe in [0080]. With respect to the visual signal, Hammons discloses that the article includes a visual signal (301) comprising color imparted to a color imparted portion which corresponds with at least one channel (i.e., channel can have at least a portion in which the color differs) as set forth in [0155]. It would have been obvious to one of ordinary skill in the art to provide the visual signal to the pair of channels in their respective shape(s) as taught by Roe because Hammons recognizes that the color imparted area should correspond to the channels and Roe provides the channels as a pair with longitudinally curved features as claimed. Double Patenting The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s).",
"See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); 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 nonstatutory 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 § 2146 et seq. 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). Claims 1, 3-4 and 6-21 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 2, 9-10 and12-13 and of U.S. Patent No. 10,864,119. Although the claims at issue are not identical, they are not patentably distinct from each other because both the instant application and U.S. Patent No. 10,864,119 are directed to an absorbent article including a visual signal that is visible on a wearer-facing side of the article. The limitations of claim 1 of the instant application can be found in claims 1 and 6-7 of U.S. Patent No.",
"10,864,119. The limitations of claim 3 of the instant application can be found in claim 1 of U.S. Patent No. 10,864,119. The limitations of claim 4 of the instant application can be found in claim 1 of U.S. Patent No. 10,864,119. The limitations of claim 6 of the instant application can be found in claim 2 of U.S. Patent No. 10,864,119. The limitations of claim 21 of the instant application can be found in claim 10 of U.S. Patent No. 10,864,119. Response to Arguments Applicant’s arguments with respect to claims 16, 18 and 21 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 The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.",
"US 2014/0296815 to Takken et al. is considered relevant for the teaching of embossed channel patterns being readily visible from the topsheet surface [0028]. Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHELE M KIDWELL whose telephone number is (571)272-4935. The examiner can normally be reached on Monday-Friday, 7AM-4PM EST. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Tatyana Zalukaeva can be reached on 571-272-1115. 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. /MICHELE M KIDWELL/Primary Examiner, Art Unit 3781"
] | 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 |
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 1-4, 7-14, 17-19 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. There is no support in the disclosure for all organic solvents. Claim Rejections - 35 USC § 103 The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 1-4, 7-10 and 17-19 are rejected under 35 U.S.C. 103 as being unpatentable over Giulio Cesareo et al (U. S. Patent Application: 2017/0190583, here after 583), and Yuka Niwayama et al (U. S. Patent: 10081735, here after 735). Claims 1 and 19 are rejected. 583 teaches a method for manufacturing a film, comprising: a liquid composition preparation step of preparing a liquid composition including an electroconductive agent, the electroconductive agent having thinned graphite (thickness of 0.34nm -50nm) in which layers of graphite are thinned and which has a bulk density of less than 0.05 g/cm3(2.1 g/L) [abstract, 0086, 0087], an elastomer (silicone rubber which has Tg of -125C) and an organic solvent [0038, 0041], and a dispersant(surfactant) which is a polymer surfactant having an organic salt structure which as anion and cation ion-bonded, sodium naphthalene or sodium benzenesulfonate [0051]; a treatment step of pressurizing the liquid composition and causing the liquid composition to pass through a nozzle (pressurizing fluid through a microfluidic channel or neck makes it as nozzle) [0051-0059]; and
a hardening step(drying) of coating a substrate with the treated liquid composition and hardening a coated film, wherein the film is electroconductive [0037- 0038, and 0091, 0075]. Although 583 doesn’t teach everything in one embodiment, however it is to skill of an ordinary person to combine them to have limitation of claim 1. Therefore, it would have been obvious to one of ordinary skill in the art at the time of the invention was made to have a method of making a conductive film as 583 teaches and have liquid composition comprising solvent, elastomer and thinned graphene pressurized through a microchannel, because it is obvious to combine the embodiment and obtain elastomer with thinned graphene Nano-platelets dispersed in it with expectation of success. Although 583 does not teach the treatment of fluid comprising pressurizing the liquid composition and causing the liquid composition to pass through a nozzle (microfluidic channel) an exfoliation [0087], and not delamination, however it is in fact delamination where interlayer delamination of the thinned graphite happens as the pressure is 200 MPa [0087]. Although 583 does not specifically teaches repeating delamination processor more than 2 and less than 4, however teaches the delamination treatment of pressurizing the liquid composition and causing the liquid composition to pass through the nozzle is performed more than one times and according to the amount of size reduction required [0056, 0061]. Therefore, it would have been obvious to one of ordinary skill in the art at the time of the invention was made to have a method of making a film as 583 teaches where the delaminatation process repeated for 3-4 times, because 583 teaches to repeat it to obtain desired size reduction in absence of criticality. 735 teaches measuring conductivity of coating (resistivity) by depositing on flexible (stretchable and bendable) polyimide substrate [column 15 lines 2-10]. Therefore, it would have been obvious to one of ordinary skill in the art at the time of the invention was made to have a method of making a film as 583 teaches where the measuring of conductivity (resistivity) is done on a flexible substrate, because 735 teaches flexible polyimide substrate is also suitable for measurement of conductivity/resistivity of conductive coatings. Claim 2 is rejected as 583 teaches the dispersion is pumped at high pressure through a micro-channel or neck having a transverse section of less than 500 um, wherein graphite particles are subjected to shear stresses and are caused to collide [0020, 0056]. Therefor it is considered as the shape of nozzle is collision type nozzle (also see 0059-0060). Claims 3-4 are rejected as 583 taches in exfoliation (the delamination treatment) step, the liquid composition is pressurized with a pressure of more than 35 MPa (or 200 MPa) and is caused to pass through the microchannel (nozzle) [0087, 0057, and 0023]. Claim 7-8 are rejected. Although 583 does not clearly teach the treatment is done by using a wet jet. However, the teaches crushing (milling) while pressurizing the fluid (wet) through a microchannel (or neck) which considered as Jet. Furthermore, in paragraph 0060, discussed an apparatus which is a wet milling (also 0087). Claims 9-10 are receded as 583 teaches the thinned graphite is a powder with an average particle diameter (lateral size) of more than 45 um [abstract]. Claims 17-18 are rejected. 583 teaches the limitation of claim 1, and 583 teaches the amount of graphene is up to 40% by weight (considering 35% by weight and 65% elastomer, then we have 53 part by mass when the solid content of elastomer is 100). Claims 11-14 are rejected under 35 U.S.C. 103 as being unpatentable over Giulio Cesareo et al (U. S. Patent Application: 2017/0190583, here after 583), Yuka Niwayama et al (U. S. Patent: 10081735, here after 735), further in view of Afshin Ebrahimi et al (Japanese Patent: 2015-000841, here after 841). Claims 11-12 are rejected. 583 teaches the thinned graphite layer is intercalated [abstract, 0078], and teaches making intercalated graphite with different methods [0045], but does not teach using supercritical fluid. 841 teaches a method of making thinned graphite layer(graphene) [0021] comprising bringing an intercalant in a supercritical state or a subcritical state into contact with the graphite and causing the intercalant to enter between the layers of the graphite; and a gasification step of gasifying(vaporizing) the intercalant that has entered between the layers of the graphite [00321-0032]. Therefore, it would have been obvious to one of ordinary skill in the art at the time of the invention was made to have a method of making an electroconductive film as 583 teaches and make thinned graphite layer by method of 841, because it is suitable method of making thinned graphite layers(graphene). Claims 13-14 are rejected as 841 teaches the graphite is expanded graphite [0013, 0025]. Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over Giulio Cesareo et al (U. S. Patent Application: 2017/0190583, here after 583), and Yuka Niwayama et al (U. S. Patent: 10081735, here after 735), further in view of B. Chen et al (Chinese Patent: 105819438, here after 438). Claim 20 is rejected. 438 teaches solvents are such as NMP [0041], but does not teach butyl cellosolve acetate. 438 teaches making thin graphite (graphene) by applying high shear force when the solvent is NMP or butyl cellosolve acetate[abstract]. Therefore, it would have been obvious to one of ordinary skill in the art at the time of the invention was made to have a method of making an electroconductive film as 583 teaches, where the solvent is butyl cellosolve acetate, because it is suitable solvent for applying high shear force to graphite and make it thinned. Response to Arguments Applicant's arguments filed 05/13/22 have been fully considered but they are not persuasive. The applicant argues 438 does not teach organic salt. However, sodium benzenesulfonate and sodium naphthalene sulfonate are organic salts. 438 also teaches using organic solvents a s well as water (see claim rejection above). 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 TABASSOM TADAYYON ESLAMI whose telephone number is (571)270-1885. The examiner can normally be reached M-F 9:30-6. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Michael Cleveland can be reached on 5712721418. 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.
/TABASSOM TADAYYON ESLAMI/Primary Examiner, Art Unit 1712 | 2022-05-29T11:42:28 | [
"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 . 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 1-4, 7-14, 17-19 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. There is no support in the disclosure for all organic solvents. Claim Rejections - 35 USC § 103 The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains.",
"Patentability shall not be negated by the manner in which the invention was made. Claims 1-4, 7-10 and 17-19 are rejected under 35 U.S.C. 103 as being unpatentable over Giulio Cesareo et al (U. S. Patent Application: 2017/0190583, here after 583), and Yuka Niwayama et al (U. S. Patent: 10081735, here after 735). Claims 1 and 19 are rejected. 583 teaches a method for manufacturing a film, comprising: a liquid composition preparation step of preparing a liquid composition including an electroconductive agent, the electroconductive agent having thinned graphite (thickness of 0.34nm -50nm) in which layers of graphite are thinned and which has a bulk density of less than 0.05 g/cm3(2.1 g/L) [abstract, 0086, 0087], an elastomer (silicone rubber which has Tg of -125C) and an organic solvent [0038, 0041], and a dispersant(surfactant) which is a polymer surfactant having an organic salt structure which as anion and cation ion-bonded, sodium naphthalene or sodium benzenesulfonate [0051]; a treatment step of pressurizing the liquid composition and causing the liquid composition to pass through a nozzle (pressurizing fluid through a microfluidic channel or neck makes it as nozzle) [0051-0059]; and a hardening step(drying) of coating a substrate with the treated liquid composition and hardening a coated film, wherein the film is electroconductive [0037- 0038, and 0091, 0075]. Although 583 doesn’t teach everything in one embodiment, however it is to skill of an ordinary person to combine them to have limitation of claim 1.",
"Therefore, it would have been obvious to one of ordinary skill in the art at the time of the invention was made to have a method of making a conductive film as 583 teaches and have liquid composition comprising solvent, elastomer and thinned graphene pressurized through a microchannel, because it is obvious to combine the embodiment and obtain elastomer with thinned graphene Nano-platelets dispersed in it with expectation of success. Although 583 does not teach the treatment of fluid comprising pressurizing the liquid composition and causing the liquid composition to pass through a nozzle (microfluidic channel) an exfoliation [0087], and not delamination, however it is in fact delamination where interlayer delamination of the thinned graphite happens as the pressure is 200 MPa [0087].",
"Although 583 does not specifically teaches repeating delamination processor more than 2 and less than 4, however teaches the delamination treatment of pressurizing the liquid composition and causing the liquid composition to pass through the nozzle is performed more than one times and according to the amount of size reduction required [0056, 0061]. Therefore, it would have been obvious to one of ordinary skill in the art at the time of the invention was made to have a method of making a film as 583 teaches where the delaminatation process repeated for 3-4 times, because 583 teaches to repeat it to obtain desired size reduction in absence of criticality.",
"735 teaches measuring conductivity of coating (resistivity) by depositing on flexible (stretchable and bendable) polyimide substrate [column 15 lines 2-10]. Therefore, it would have been obvious to one of ordinary skill in the art at the time of the invention was made to have a method of making a film as 583 teaches where the measuring of conductivity (resistivity) is done on a flexible substrate, because 735 teaches flexible polyimide substrate is also suitable for measurement of conductivity/resistivity of conductive coatings. Claim 2 is rejected as 583 teaches the dispersion is pumped at high pressure through a micro-channel or neck having a transverse section of less than 500 um, wherein graphite particles are subjected to shear stresses and are caused to collide [0020, 0056]. Therefor it is considered as the shape of nozzle is collision type nozzle (also see 0059-0060). Claims 3-4 are rejected as 583 taches in exfoliation (the delamination treatment) step, the liquid composition is pressurized with a pressure of more than 35 MPa (or 200 MPa) and is caused to pass through the microchannel (nozzle) [0087, 0057, and 0023].",
"Claim 7-8 are rejected. Although 583 does not clearly teach the treatment is done by using a wet jet. However, the teaches crushing (milling) while pressurizing the fluid (wet) through a microchannel (or neck) which considered as Jet. Furthermore, in paragraph 0060, discussed an apparatus which is a wet milling (also 0087). Claims 9-10 are receded as 583 teaches the thinned graphite is a powder with an average particle diameter (lateral size) of more than 45 um [abstract].",
"Claims 17-18 are rejected. 583 teaches the limitation of claim 1, and 583 teaches the amount of graphene is up to 40% by weight (considering 35% by weight and 65% elastomer, then we have 53 part by mass when the solid content of elastomer is 100). Claims 11-14 are rejected under 35 U.S.C. 103 as being unpatentable over Giulio Cesareo et al (U. S. Patent Application: 2017/0190583, here after 583), Yuka Niwayama et al (U. S. Patent: 10081735, here after 735), further in view of Afshin Ebrahimi et al (Japanese Patent: 2015-000841, here after 841). Claims 11-12 are rejected. 583 teaches the thinned graphite layer is intercalated [abstract, 0078], and teaches making intercalated graphite with different methods [0045], but does not teach using supercritical fluid.",
"841 teaches a method of making thinned graphite layer(graphene) [0021] comprising bringing an intercalant in a supercritical state or a subcritical state into contact with the graphite and causing the intercalant to enter between the layers of the graphite; and a gasification step of gasifying(vaporizing) the intercalant that has entered between the layers of the graphite [00321-0032]. Therefore, it would have been obvious to one of ordinary skill in the art at the time of the invention was made to have a method of making an electroconductive film as 583 teaches and make thinned graphite layer by method of 841, because it is suitable method of making thinned graphite layers(graphene). Claims 13-14 are rejected as 841 teaches the graphite is expanded graphite [0013, 0025]. Claim 20 is rejected under 35 U.S.C.",
"103 as being unpatentable over Giulio Cesareo et al (U. S. Patent Application: 2017/0190583, here after 583), and Yuka Niwayama et al (U. S. Patent: 10081735, here after 735), further in view of B. Chen et al (Chinese Patent: 105819438, here after 438). Claim 20 is rejected. 438 teaches solvents are such as NMP [0041], but does not teach butyl cellosolve acetate. 438 teaches making thin graphite (graphene) by applying high shear force when the solvent is NMP or butyl cellosolve acetate[abstract]. Therefore, it would have been obvious to one of ordinary skill in the art at the time of the invention was made to have a method of making an electroconductive film as 583 teaches, where the solvent is butyl cellosolve acetate, because it is suitable solvent for applying high shear force to graphite and make it thinned. Response to Arguments Applicant's arguments filed 05/13/22 have been fully considered but they are not persuasive. The applicant argues 438 does not teach organic salt.",
"However, sodium benzenesulfonate and sodium naphthalene sulfonate are organic salts. 438 also teaches using organic solvents a s well as water (see claim rejection above). 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 TABASSOM TADAYYON ESLAMI whose telephone number is (571)270-1885. The examiner can normally be reached M-F 9:30-6. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Michael Cleveland can be reached on 5712721418. 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. /TABASSOM TADAYYON ESLAMI/Primary Examiner, Art Unit 1712"
] | https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-06-05.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DETAILED ACTION This action is made in response to the arguments filed on July 20, 2022. This action is made final. Claims 1-15 and 17-20 are pending. Claim 16 has been cancelled. Claims 1, 17, and 20 are independent claims. The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Information Disclosure Statement The information disclosure statement filed August 9, 2022 fails to comply with the provisions of 37 CFR 1.97, 1.98 and MPEP § 609 because a legible copy of each foreign patent, each publication which caused it to be listed, other than US patent and US Patent application publications has not been provided. Furthermore, a concise explanation of relevance and a copy of the translation have not been provided. It has been placed in the application file, but the information referred to therein has not been considered as to the merits. Applicant is advised that the date of any re-submission of any item of information contained in this information disclosure statement or the submission of any missing element(s) will be the date of submission for purposes of determining compliance with the requirements based on the time of filing the statement, including all certification requirements for statements under 37 CFR 1.97(e). See MPEP § 609.05(a).
Response to Arguments Applicant’s arguments have been fully considered but are not persuasive. Applicant argues the previously cited Wedekind does not relate to “frozen area and non-frozen area” and further does not describe “a threshold of the proportion of a display area of frozen area to a display area of a table area” and, therefore, fails to suggest a condition to adjust the proportion of the display area of a frozen area to a display area of a table area. However, the examiner respectfully disagrees. As a first matter, Applicant argues “Wedekind fails to describe anything about a threshold of the proportion of a display area of a frozen display area to a display area of a table area”. However, the claims as currently presented do not require the “threshold” as being a proportion of a display area of a frozen display area to a display area of the table area. Rather, the claim merely recites it being “a proportion threshold”. Accordingly, where the art teaches comparing a proportion of a frozen area to a table area to any proportion threshold, then it meets the claim limitation. Wedekind is directed to a system and method for optimizing display of data in spreadsheets and tables wherein various row/column heights/widths may be increased or decreased. Wedekind teaches a determining a size of a tabular display (i.e. table area) and further determining the size of each column/row (i.e., display area). Wedekind further teaches an iterative process in which the size of the columns/rows of an initial table (i.e. proportion of display area to table) are compared to a new size of the columns/rows of an ideal/best size (i.e., proportion of area compared to proportion threshold) of the tabular display such that an optimization operation occurs wherein one column/row is increased while another is decreased in accordance with the ideal/best size, as illustrated in at least Figs. 3 and 5-7 of Wedekind. While Wedekind fails to explicitly teach a frozen and non-frozen area, Buczek teaches a method in which any column/row can be frozen or non-frozen. Accordingly, it would have been obvious to modify Wedekind in view of Buczek with a reasonable expectation of success. One would have been motivated to make such a modification to permit a user to easily identify and maintain fixed column/row data to assist with understanding tabular data. As such, for at least the above stated reasons, the previous grounds of rejection are maintained. 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.
Claim(s) 1, 2, 4, 6, 8-11, 16-18, and 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Wedekind (USPPN: 2009/0083614; hereinafter Wedekind) in further view of Buczek (USPPN: 2008/0082938; hereinafter Buczek). As to claim 1, Wedekind teaches A table processing method (e.g., see Title), comprising: determining a proportion of a display area of a [frozen] area to a display area of a table 5area, wherein the table area comprises the [frozen] area and a [non-frozen] area (e.g., see Abstract, Figs. 5-7, [0021] teaching determining the size of a tabular display having a plurality of rows/columns of a table area); and in a case where the proportion is larger than a proportion threshold, shrinking the display area of the [frozen] area and enlarging a display area of the [non-frozen] area, wherein a proportion of the shrunk display area of the [frozen] area to the display area of the table area is equal to the proportion threshold (e.g., see Figs. 5-7, [0013], [0021]-[0024], [0034], [0042] teaching performing optimization operations when the initial size of the tabular display is greater than the best size, wherein the optimization operation includes shrinking one area of the table while increasing another area of the table to match the best size). While Wedekind teaches adjusting individual rows/columns (i.e., areas) of a table, Wedekind fails to teach the areas as being a frozen area and non-frozen area. However, in the same field of endeavor of graphical user interfaces of spreadsheet content, Buczek teaches a frozen area and a non-frozen area (e.g., see Abstract, Figs. 4-5, [0019], [0029] wherein selective rows/columns can be frozen and/or non-frozen). Accordingly, it would have been obvious to modify Wedekind in view of Buczek with a reasonable expectation of success. One would have been motivated to make such a modification to permit a user to selectively view heading information to assist with understanding tabular data (e.g., see [0006] of Buczek).
As to claim 2, the rejection of claim 1 is incorporated. Wedekind-Buczek further teaches wherein shrinking the display area of the frozen area and enlarging the display area of the non-frozen area comprise: moving a divider line between the display area of the frozen area and the display area of the non-frozen area from a first position in the display area of the table area to a second position 15in the display area of the table area, wherein the first position is a position corresponding to the proportion, and the second position is a position corresponding to the proportion threshold; and adjusting the display area of the frozen area and the display area of the non-frozen area according to the moved divider line (e.g., see Figs. 5-7 of Wedekind wherein the shrinking/enlarging of the different areas includes moving a divider line between the two areas from a first position to a second position, wherein the first position is the initial position (i.e., proportion) and the second position is the optimal position (i.e., proportion threshold). See also Buczek above teaching selectively assigning rows/columns to be frozen or non-frozen).
As to claim 4, the rejection of claim 1 is incorporated. Wedekind fail to teach acquiring an input unfreezing instruction; and unfreezing the frozen area according to the unfreezing instruction. However, in the same field of endeavor of graphical user interfaces of spreadsheet content, Buczek teaches further comprising: acquiring an input unfreezing instruction; and unfreezing the frozen area according to the unfreezing instruction (e.g., see [0022] wherein a user can selectively unfreeze a column/row and the respective area becomes unfrozen). Accordingly, it would have been obvious to modify Wedekind in view of Buczek with a reasonable expectation of success. One would have been motivated to make such a modification to permit a user to selectively view heading information to assist with understanding tabular data (e.g., see [0006] of Buczek).
30 As to claim 6, the rejection of claim 2 is incorporated. Wedekind fail to teach acquiring an input unfreezing instruction; and unfreezing the frozen area according to the unfreezing instruction. However, in the same field of endeavor of graphical user interfaces of spreadsheet content, Buczek teaches further comprising: acquiring an input unfreezing instruction; and unfreezing the frozen area according to the unfreezing instruction (e.g., see [0022] wherein a user can selectively unfreeze a column/row and the respective area becomes unfrozen). Accordingly, it would have been obvious to modify Wedekind in view of Buczek with a reasonable expectation of success. One would have been motivated to make such a modification to permit a user to selectively view heading information to assist with understanding tabular data (e.g., see [0006] of Buczek).
As to claim 8, the rejection of claim 3 is incorporated. *** further teaches further comprising: acquiring an input unfreezing instruction; and unfreezing the frozen area according to the unfreezing instruction.
As to claim 9, the rejection of claim 1 is incorporated. Wedekind fails to teach wherein the frozen area is a data area selected from the table area by a user, and the display area of the table area is an area of the table area currently displayed in a screen. However, in the same field of endeavor of graphical user interfaces of spreadsheet content, Buczek teaches wherein the frozen area is a data area selected from the table area by a user, and the display area of the table area is an area of the table area currently displayed in a screen (e.g., see Abstract, Figs. 4-5, [0019], [0029] wherein a user can selectively freeze a column/row from a displayed table area). Accordingly, it would have been obvious to modify Wedekind in view of Buczek with a reasonable expectation of success. One would have been motivated to make such a modification to permit a user to selectively view heading information to assist with understanding tabular data (e.g., see [0006] of Buczek).
20 As to claim 10, the rejection of claim 1 is incorporated. Wedekind further teaches wherein in a case where the proportion is less than or equal to the proportion threshold, the display area of the frozen area and the display area of the non-frozen area are not changed in size (e.g., see Fig. 3, [0044], [0045] wherein if the tabular display is not modified if the dimensions are optimal or near-optimal. See also Buczek above teaching selectively assigning rows/columns to be frozen or non-frozen).
As to claim 11, the rejection of claim 2 is incorporated. Wedekind further teaches wherein in a case where the proportion is less than or equal to the proportion threshold, the display area of the frozen area and the display area of the non-frozen area are not changed in size (e.g., see Fig. 3, [0044], [0045] wherein if the tabular display is not modified if the dimensions are optimal or near-optimal. See also Buczek above teaching selectively assigning rows/columns to be frozen or non-frozen).
As to claim 16, the claim is directed to the apparatus implementing the method of claim 1 and is similarly rejected.
As to claims 17 and 18, the claims are directed to the electronic device implementing the method of claims 1-2 and further recites a memory; a processor (e.g., see Fig. 1 of Wedekind) and is similarly rejected. As to claim 20, the claim is directed to the non-transitory medium implementing the method of claim 1 and is similarly rejected.
Claim(s) 3, 12, and 19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Wedekind and Buczek, as applied above, and in further view of Thangappan (USPPN: 2013/0086464; hereinafter Thangappan).20Asaaa As to claim 3, the rejection of claim 2 is incorporated. Buczek teaches monitoring a movement operation of the scroll[bar], and in the display area of the frozen area, correspondingly displaying, according to the movement operation, content contained in the frozen area (e.g., see [0021] wherein a frozen area can be navigated in response to a scroll operation). While Buczek teaches scrolling a frozen area in response to a scroll operation and further teaches a scroll indicator, Wedekind-Buczek fail to explicitly teach a scrollbar. While the use of a scrollbar is widely well-known, for the purposes of compact prosecution and in the same field of endeavor of graphical user interfaces for spreadsheet content Thangappan additionally teaches wherein the display area of the frozen area comprising a scrollbar, and the method further comprising: monitoring a movement operation of the scrollbar, and in the display area of the frozen area, correspondingly displaying, according to the movement operation, content contained in the frozen area (e.g., see Figs. 2-4, [0044] teaching scrolling of a frozen area in response to movement of a scrollbar). Accordingly, it would have been obvious to modify Wedekind-Buczek in view of Thangappan with a reasonable expectation of success. One would have been motivated to make such a modification to allow a user to easily comprehend and navigate large data sets (e.g., see [0012] of Thangappan).
As to claim 12, the rejection of claim 3 is incorporated. Wedekind further teaches wherein in a case where the proportion is less than or equal to the proportion threshold, the display area of the frozen area and the display area of the non-frozen area are not changed in size (e.g., see Fig. 3, [0044], [0045] wherein if the tabular display is not modified if the dimensions are optimal or near-optimal. See also Buczek above teaching selectively assigning rows/columns to be frozen or non-frozen).
As to claim 19, the claim is directed to the electronic device implementing the method of claim 3 and is similarly rejected.
Claim(s) 5 and 7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Wedekind and Buczek, as applied above, and in further view of Guttman et al. (USPN: 6,988,241; hereinafter Guttman).20Asaaa As to claim 5, the rejection of claim 4 is incorporated. Wedekind-Buczek fail to teach further comprising: in a case where an instruction to close a target table is monitored, freezing the frozen24 US.350293351.01area which is unfrozen again. However, in the same field of endeavor of graphical user interfaces for spreadsheet content, Guttman teaches in a case where an instruction to close a target table is monitored, freezing the frozen24 US.350293351.01area which is unfrozen again (e.g., see Fig. 16b, 21:65-67, 37:20-37 wherein upon closing, only changes that are saved are applied. In other words, if a user does not save the spreadsheet settings, such as unfreezing an area, the changes are not applied to the next opening, which is consistent with page 12 of Applicant’s originally filed specification. See Buczek teaching freezing and unfreezing operations). Accordingly, it would have been obvious to modify Wedekind-Buczek in view of Guttman with a reasonable expectation of success. One would have been motivated to make such a modification to allow a user to easily save or not save desired settings to be applied in future accesses to the document.
As to claim 7, the rejection of claim 6 is incorporated. Wedekind-Buczek fail to teach further comprising: in a case where an instruction to close a target table is monitored, freezing the frozen24 US.350293351.01area which is unfrozen again. However, in the same field of endeavor of graphical user interfaces for spreadsheet content, Guttman teaches in a case where an instruction to close a target table is monitored, freezing the frozen24 US.350293351.01area which is unfrozen again (e.g., see Fig. 16b, 21:65-67, 37:20-37 wherein upon closing, only changes that are saved are applied. In other words, if a user does not save the spreadsheet settings, such as unfreezing an area, the changes are not applied to the next opening, which is consistent with page 12 of Applicant’s originally filed specification. See Buczek teaching freezing and unfreezing operations). Accordingly, it would have been obvious to modify Wedekind-Buczek in view of Guttman with a reasonable expectation of success. One would have been motivated to make such a modification to allow a user to easily save or not save desired settings to be applied in future accesses to the document.
Claim(s) 13 and 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Wedekind and Buczek, as applied above, and in further view of Gao et al. (USPPN: 2005/0154974; hereinafter Gao). As to claim 13, the rejection of claim 1 is incorporated. While Wedekind teaches adjusting the display areas based on a proportion of the display area, Wedekind-Buczek fail to teach wherein determining the proportion of the display area of the frozen area to the display area of the table area comprises: determining the proportion of the display area of the frozen area to the display area of the table area according to a number of lines comprised in the display area of the frozen area 5and a number of lines comprised in the display area of the table area, wherein the number of lines is a number of rows or a number of columns. However, in the same field of endeavor of graphical user interfaces for spreadsheet content, Gao teaches wherein determining the proportion of the display area of the frozen area to the display area of the table area comprises: determining the proportion of the display area of the frozen area to the display area of the table area according to a number of lines comprised in the display area of the frozen area 5and a number of lines comprised in the display area of the table area, wherein the number of lines is a number of rows or a number of columns (e.g., see Figs. 3, 5a, 6a, [0037], [0038] wherein the proportion of the display area includes determining the number or rows/columns to be displayed). Accordingly, it would have been obvious to modify Wedekind-Buczek with Gao with a reasonable expectation of success. One would have been motivated to make such a modification to display information that is relevant to a user on small display areas (e.g., see [0007] of Gao).
As to claim 14, the rejection of claim 2 is incorporated. While Wedekind teaches adjusting the display areas based on a proportion of the display area, Wedekind-Buczek fail to teach wherein determining the proportion of the display area of the frozen area to the display area of the table area comprises: determining the proportion of the display area of the frozen area to the display area of the table area according to a number of lines comprised in the display area of the frozen area 5and a number of lines comprised in the display area of the table area, wherein the number of lines is a number of rows or a number of columns. However, in the same field of endeavor of graphical user interfaces for spreadsheet content, Gao teaches wherein determining the proportion of the display area of the frozen area to the display area of the table area comprises: determining the proportion of the display area of the frozen area to the display area of the table area according to a number of lines comprised in the display area of the frozen area 5and a number of lines comprised in the display area of the table area, wherein the number of lines is a number of rows or a number of columns (e.g., see Figs. 3, 5a, 6a, [0037], [0038] wherein the proportion of the display area includes determining the number or rows/columns to be displayed). Accordingly, it would have been obvious to modify Wedekind-Buczek with Gao with a reasonable expectation of success. One would have been motivated to make such a modification to display information that is relevant to a user on small display areas (e.g., see [0007] of Gao).
Claim(s) 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Wedekind, Buczek, and Thangappan, as applied above, and in further view of Gao et al. (USPPN: 2005/0154974; hereinafter Gao).
15 As to claim 15, the rejection of claim 3 is incorporated. While Wedekind teaches adjusting the display areas based on a proportion of the display area, Wedekind-Buczek fail to teach wherein determining the proportion of the display area of the frozen area to the display area of the table area comprises: determining the proportion of the display area of the frozen area to the display area of the table area according to a number of lines comprised in the display area of the frozen area 5and a number of lines comprised in the display area of the table area, wherein the number of lines is a number of rows or a number of columns. However, in the same field of endeavor of graphical user interfaces for spreadsheet content, Gao teaches wherein determining the proportion of the display area of the frozen area to the display area of the table area comprises: determining the proportion of the display area of the frozen area to the display area of the table area according to a number of lines comprised in the display area of the frozen area 5and a number of lines comprised in the display area of the table area, wherein the number of lines is a number of rows or a number of columns (e.g., see Figs. 3, 5a, 6a, [0037], [0038] wherein the proportion of the display area includes determining the number or rows/columns to be displayed). Accordingly, it would have been obvious to modify Wedekind-Buczek-Thangappan with Gao with a reasonable expectation of success. One would have been motivated to make such a modification to display information that is relevant to a user on small display areas (e.g., see [0007] of Gao).
It is noted that any citation to specific pages, columns, lines, or figures in the prior art references and any interpretation of the references should not be considered to be limiting in any way. “The use of patents as references is not limited to what the patentees describe as their own inventions or to the problems with which they are concerned. They are part of the literature of the art, relevant for all they contain.” In re Heck, 699 F.2d 1331, 1332-33, 216 USPQ 1038, 1039 (Fed. Cir. 1983) (quoting In re Lemelson, 397 F.2d 1006, 1009, 158 USPQ 275, 277 (CCPA 1968)). Further, a reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill the art, including nonpreferred embodiments. Merck & Co. v. Biocraft Laboratories, 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir.), cert. denied, 493 U.S. 975 (1989). See also Upsher-Smith Labs. v. Pamlab, LLC, 412 F.3d 1319, 1323, 75 USPQ2d 1213, 1215 (Fed. Cir. 2005); Celeritas Technologies Ltd. v. Rockwell International Corp., 150 F.3d 1354, 1361, 47 USPQ2d 1516, 1522-23 (Fed. Cir. 1998).
Conclusion THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a). A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action. In the interests of compact prosecution, Applicant is invited to contact Examiner via electronic media pursuant to USPTO policy outlined MPEP § 502.03. All electronic communication must be authorized in writing. Applicant may wish to file an Internet Communications Authorization Form PTO/SB/439. Applicant may wish to request an interview using the Interview Practice website: http://www.uspto.gov/patent/laws-and-regulations/interview-practice. Applicant is reminded Internet e-mail may not be used for communication for matters under 35 U.S.C. § 132 or which otherwise require a signature. A reply to an Office action may NOT be communicated by Applicant to the USPTO via Internet e-mail. If such a reply is submitted by Applicant via Internet e-mail, a paper copy will be placed in the appropriate patent application file with an indication that the reply is NOT ENTERED. See MPEP § 502.03(II). Any inquiry concerning this communication or earlier communications from the examiner should be directed to STELLA HIGGS whose telephone number is 571-270-5891 and whose electronic mail address is Stella.Higgs@uspto.gov. The examiner can normally be reached on Monday through Thursday and alternating Fridays 7:30am to 4:30pm. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, RENEE CHAVEZ can be reached at (571) 270-1104. 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.
/Stella Higgs/Primary Examiner, Art Unit 2179 | 2022-11-15T21:33:41 | [
"DETAILED ACTION This action is made in response to the arguments filed on July 20, 2022. This action is made final. Claims 1-15 and 17-20 are pending. Claim 16 has been cancelled. Claims 1, 17, and 20 are independent claims. The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Information Disclosure Statement The information disclosure statement filed August 9, 2022 fails to comply with the provisions of 37 CFR 1.97, 1.98 and MPEP § 609 because a legible copy of each foreign patent, each publication which caused it to be listed, other than US patent and US Patent application publications has not been provided.",
"Furthermore, a concise explanation of relevance and a copy of the translation have not been provided. It has been placed in the application file, but the information referred to therein has not been considered as to the merits. Applicant is advised that the date of any re-submission of any item of information contained in this information disclosure statement or the submission of any missing element(s) will be the date of submission for purposes of determining compliance with the requirements based on the time of filing the statement, including all certification requirements for statements under 37 CFR 1.97(e). See MPEP § 609.05(a). Response to Arguments Applicant’s arguments have been fully considered but are not persuasive.",
"Applicant argues the previously cited Wedekind does not relate to “frozen area and non-frozen area” and further does not describe “a threshold of the proportion of a display area of frozen area to a display area of a table area” and, therefore, fails to suggest a condition to adjust the proportion of the display area of a frozen area to a display area of a table area. However, the examiner respectfully disagrees. As a first matter, Applicant argues “Wedekind fails to describe anything about a threshold of the proportion of a display area of a frozen display area to a display area of a table area”. However, the claims as currently presented do not require the “threshold” as being a proportion of a display area of a frozen display area to a display area of the table area. Rather, the claim merely recites it being “a proportion threshold”.",
"Accordingly, where the art teaches comparing a proportion of a frozen area to a table area to any proportion threshold, then it meets the claim limitation. Wedekind is directed to a system and method for optimizing display of data in spreadsheets and tables wherein various row/column heights/widths may be increased or decreased. Wedekind teaches a determining a size of a tabular display (i.e. table area) and further determining the size of each column/row (i.e., display area). Wedekind further teaches an iterative process in which the size of the columns/rows of an initial table (i.e. proportion of display area to table) are compared to a new size of the columns/rows of an ideal/best size (i.e., proportion of area compared to proportion threshold) of the tabular display such that an optimization operation occurs wherein one column/row is increased while another is decreased in accordance with the ideal/best size, as illustrated in at least Figs.",
"3 and 5-7 of Wedekind. While Wedekind fails to explicitly teach a frozen and non-frozen area, Buczek teaches a method in which any column/row can be frozen or non-frozen. Accordingly, it would have been obvious to modify Wedekind in view of Buczek with a reasonable expectation of success. One would have been motivated to make such a modification to permit a user to easily identify and maintain fixed column/row data to assist with understanding tabular data. As such, for at least the above stated reasons, the previous grounds of rejection are maintained. 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. Claim(s) 1, 2, 4, 6, 8-11, 16-18, and 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Wedekind (USPPN: 2009/0083614; hereinafter Wedekind) in further view of Buczek (USPPN: 2008/0082938; hereinafter Buczek).",
"As to claim 1, Wedekind teaches A table processing method (e.g., see Title), comprising: determining a proportion of a display area of a [frozen] area to a display area of a table 5area, wherein the table area comprises the [frozen] area and a [non-frozen] area (e.g., see Abstract, Figs. 5-7, [0021] teaching determining the size of a tabular display having a plurality of rows/columns of a table area); and in a case where the proportion is larger than a proportion threshold, shrinking the display area of the [frozen] area and enlarging a display area of the [non-frozen] area, wherein a proportion of the shrunk display area of the [frozen] area to the display area of the table area is equal to the proportion threshold (e.g., see Figs. 5-7, [0013], [0021]-[0024], [0034], [0042] teaching performing optimization operations when the initial size of the tabular display is greater than the best size, wherein the optimization operation includes shrinking one area of the table while increasing another area of the table to match the best size).",
"While Wedekind teaches adjusting individual rows/columns (i.e., areas) of a table, Wedekind fails to teach the areas as being a frozen area and non-frozen area. However, in the same field of endeavor of graphical user interfaces of spreadsheet content, Buczek teaches a frozen area and a non-frozen area (e.g., see Abstract, Figs. 4-5, [0019], [0029] wherein selective rows/columns can be frozen and/or non-frozen). Accordingly, it would have been obvious to modify Wedekind in view of Buczek with a reasonable expectation of success. One would have been motivated to make such a modification to permit a user to selectively view heading information to assist with understanding tabular data (e.g., see [0006] of Buczek). As to claim 2, the rejection of claim 1 is incorporated. Wedekind-Buczek further teaches wherein shrinking the display area of the frozen area and enlarging the display area of the non-frozen area comprise: moving a divider line between the display area of the frozen area and the display area of the non-frozen area from a first position in the display area of the table area to a second position 15in the display area of the table area, wherein the first position is a position corresponding to the proportion, and the second position is a position corresponding to the proportion threshold; and adjusting the display area of the frozen area and the display area of the non-frozen area according to the moved divider line (e.g., see Figs.",
"5-7 of Wedekind wherein the shrinking/enlarging of the different areas includes moving a divider line between the two areas from a first position to a second position, wherein the first position is the initial position (i.e., proportion) and the second position is the optimal position (i.e., proportion threshold). See also Buczek above teaching selectively assigning rows/columns to be frozen or non-frozen). As to claim 4, the rejection of claim 1 is incorporated. Wedekind fail to teach acquiring an input unfreezing instruction; and unfreezing the frozen area according to the unfreezing instruction. However, in the same field of endeavor of graphical user interfaces of spreadsheet content, Buczek teaches further comprising: acquiring an input unfreezing instruction; and unfreezing the frozen area according to the unfreezing instruction (e.g., see [0022] wherein a user can selectively unfreeze a column/row and the respective area becomes unfrozen). Accordingly, it would have been obvious to modify Wedekind in view of Buczek with a reasonable expectation of success. One would have been motivated to make such a modification to permit a user to selectively view heading information to assist with understanding tabular data (e.g., see [0006] of Buczek). 30 As to claim 6, the rejection of claim 2 is incorporated. Wedekind fail to teach acquiring an input unfreezing instruction; and unfreezing the frozen area according to the unfreezing instruction.",
"However, in the same field of endeavor of graphical user interfaces of spreadsheet content, Buczek teaches further comprising: acquiring an input unfreezing instruction; and unfreezing the frozen area according to the unfreezing instruction (e.g., see [0022] wherein a user can selectively unfreeze a column/row and the respective area becomes unfrozen). Accordingly, it would have been obvious to modify Wedekind in view of Buczek with a reasonable expectation of success. One would have been motivated to make such a modification to permit a user to selectively view heading information to assist with understanding tabular data (e.g., see [0006] of Buczek). As to claim 8, the rejection of claim 3 is incorporated. *** further teaches further comprising: acquiring an input unfreezing instruction; and unfreezing the frozen area according to the unfreezing instruction. As to claim 9, the rejection of claim 1 is incorporated.",
"Wedekind fails to teach wherein the frozen area is a data area selected from the table area by a user, and the display area of the table area is an area of the table area currently displayed in a screen. However, in the same field of endeavor of graphical user interfaces of spreadsheet content, Buczek teaches wherein the frozen area is a data area selected from the table area by a user, and the display area of the table area is an area of the table area currently displayed in a screen (e.g., see Abstract, Figs.",
"4-5, [0019], [0029] wherein a user can selectively freeze a column/row from a displayed table area). Accordingly, it would have been obvious to modify Wedekind in view of Buczek with a reasonable expectation of success. One would have been motivated to make such a modification to permit a user to selectively view heading information to assist with understanding tabular data (e.g., see [0006] of Buczek). 20 As to claim 10, the rejection of claim 1 is incorporated. Wedekind further teaches wherein in a case where the proportion is less than or equal to the proportion threshold, the display area of the frozen area and the display area of the non-frozen area are not changed in size (e.g., see Fig. 3, [0044], [0045] wherein if the tabular display is not modified if the dimensions are optimal or near-optimal. See also Buczek above teaching selectively assigning rows/columns to be frozen or non-frozen).",
"As to claim 11, the rejection of claim 2 is incorporated. Wedekind further teaches wherein in a case where the proportion is less than or equal to the proportion threshold, the display area of the frozen area and the display area of the non-frozen area are not changed in size (e.g., see Fig. 3, [0044], [0045] wherein if the tabular display is not modified if the dimensions are optimal or near-optimal. See also Buczek above teaching selectively assigning rows/columns to be frozen or non-frozen).",
"As to claim 16, the claim is directed to the apparatus implementing the method of claim 1 and is similarly rejected. As to claims 17 and 18, the claims are directed to the electronic device implementing the method of claims 1-2 and further recites a memory; a processor (e.g., see Fig. 1 of Wedekind) and is similarly rejected. As to claim 20, the claim is directed to the non-transitory medium implementing the method of claim 1 and is similarly rejected. Claim(s) 3, 12, and 19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Wedekind and Buczek, as applied above, and in further view of Thangappan (USPPN: 2013/0086464; hereinafter Thangappan).20Asaaa As to claim 3, the rejection of claim 2 is incorporated. Buczek teaches monitoring a movement operation of the scroll[bar], and in the display area of the frozen area, correspondingly displaying, according to the movement operation, content contained in the frozen area (e.g., see [0021] wherein a frozen area can be navigated in response to a scroll operation).",
"While Buczek teaches scrolling a frozen area in response to a scroll operation and further teaches a scroll indicator, Wedekind-Buczek fail to explicitly teach a scrollbar. While the use of a scrollbar is widely well-known, for the purposes of compact prosecution and in the same field of endeavor of graphical user interfaces for spreadsheet content Thangappan additionally teaches wherein the display area of the frozen area comprising a scrollbar, and the method further comprising: monitoring a movement operation of the scrollbar, and in the display area of the frozen area, correspondingly displaying, according to the movement operation, content contained in the frozen area (e.g., see Figs. 2-4, [0044] teaching scrolling of a frozen area in response to movement of a scrollbar).",
"Accordingly, it would have been obvious to modify Wedekind-Buczek in view of Thangappan with a reasonable expectation of success. One would have been motivated to make such a modification to allow a user to easily comprehend and navigate large data sets (e.g., see [0012] of Thangappan). As to claim 12, the rejection of claim 3 is incorporated. Wedekind further teaches wherein in a case where the proportion is less than or equal to the proportion threshold, the display area of the frozen area and the display area of the non-frozen area are not changed in size (e.g., see Fig. 3, [0044], [0045] wherein if the tabular display is not modified if the dimensions are optimal or near-optimal. See also Buczek above teaching selectively assigning rows/columns to be frozen or non-frozen).",
"As to claim 19, the claim is directed to the electronic device implementing the method of claim 3 and is similarly rejected. Claim(s) 5 and 7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Wedekind and Buczek, as applied above, and in further view of Guttman et al. (USPN: 6,988,241; hereinafter Guttman).20Asaaa As to claim 5, the rejection of claim 4 is incorporated. Wedekind-Buczek fail to teach further comprising: in a case where an instruction to close a target table is monitored, freezing the frozen24 US.350293351.01area which is unfrozen again. However, in the same field of endeavor of graphical user interfaces for spreadsheet content, Guttman teaches in a case where an instruction to close a target table is monitored, freezing the frozen24 US.350293351.01area which is unfrozen again (e.g., see Fig. 16b, 21:65-67, 37:20-37 wherein upon closing, only changes that are saved are applied.",
"In other words, if a user does not save the spreadsheet settings, such as unfreezing an area, the changes are not applied to the next opening, which is consistent with page 12 of Applicant’s originally filed specification. See Buczek teaching freezing and unfreezing operations). Accordingly, it would have been obvious to modify Wedekind-Buczek in view of Guttman with a reasonable expectation of success. One would have been motivated to make such a modification to allow a user to easily save or not save desired settings to be applied in future accesses to the document. As to claim 7, the rejection of claim 6 is incorporated. Wedekind-Buczek fail to teach further comprising: in a case where an instruction to close a target table is monitored, freezing the frozen24 US.350293351.01area which is unfrozen again.",
"However, in the same field of endeavor of graphical user interfaces for spreadsheet content, Guttman teaches in a case where an instruction to close a target table is monitored, freezing the frozen24 US.350293351.01area which is unfrozen again (e.g., see Fig. 16b, 21:65-67, 37:20-37 wherein upon closing, only changes that are saved are applied. In other words, if a user does not save the spreadsheet settings, such as unfreezing an area, the changes are not applied to the next opening, which is consistent with page 12 of Applicant’s originally filed specification. See Buczek teaching freezing and unfreezing operations). Accordingly, it would have been obvious to modify Wedekind-Buczek in view of Guttman with a reasonable expectation of success.",
"One would have been motivated to make such a modification to allow a user to easily save or not save desired settings to be applied in future accesses to the document. Claim(s) 13 and 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Wedekind and Buczek, as applied above, and in further view of Gao et al. (USPPN: 2005/0154974; hereinafter Gao). As to claim 13, the rejection of claim 1 is incorporated. While Wedekind teaches adjusting the display areas based on a proportion of the display area, Wedekind-Buczek fail to teach wherein determining the proportion of the display area of the frozen area to the display area of the table area comprises: determining the proportion of the display area of the frozen area to the display area of the table area according to a number of lines comprised in the display area of the frozen area 5and a number of lines comprised in the display area of the table area, wherein the number of lines is a number of rows or a number of columns.",
"However, in the same field of endeavor of graphical user interfaces for spreadsheet content, Gao teaches wherein determining the proportion of the display area of the frozen area to the display area of the table area comprises: determining the proportion of the display area of the frozen area to the display area of the table area according to a number of lines comprised in the display area of the frozen area 5and a number of lines comprised in the display area of the table area, wherein the number of lines is a number of rows or a number of columns (e.g., see Figs. 3, 5a, 6a, [0037], [0038] wherein the proportion of the display area includes determining the number or rows/columns to be displayed). Accordingly, it would have been obvious to modify Wedekind-Buczek with Gao with a reasonable expectation of success. One would have been motivated to make such a modification to display information that is relevant to a user on small display areas (e.g., see [0007] of Gao).",
"As to claim 14, the rejection of claim 2 is incorporated. While Wedekind teaches adjusting the display areas based on a proportion of the display area, Wedekind-Buczek fail to teach wherein determining the proportion of the display area of the frozen area to the display area of the table area comprises: determining the proportion of the display area of the frozen area to the display area of the table area according to a number of lines comprised in the display area of the frozen area 5and a number of lines comprised in the display area of the table area, wherein the number of lines is a number of rows or a number of columns. However, in the same field of endeavor of graphical user interfaces for spreadsheet content, Gao teaches wherein determining the proportion of the display area of the frozen area to the display area of the table area comprises: determining the proportion of the display area of the frozen area to the display area of the table area according to a number of lines comprised in the display area of the frozen area 5and a number of lines comprised in the display area of the table area, wherein the number of lines is a number of rows or a number of columns (e.g., see Figs.",
"3, 5a, 6a, [0037], [0038] wherein the proportion of the display area includes determining the number or rows/columns to be displayed). Accordingly, it would have been obvious to modify Wedekind-Buczek with Gao with a reasonable expectation of success. One would have been motivated to make such a modification to display information that is relevant to a user on small display areas (e.g., see [0007] of Gao). Claim(s) 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Wedekind, Buczek, and Thangappan, as applied above, and in further view of Gao et al. (USPPN: 2005/0154974; hereinafter Gao). 15 As to claim 15, the rejection of claim 3 is incorporated.",
"While Wedekind teaches adjusting the display areas based on a proportion of the display area, Wedekind-Buczek fail to teach wherein determining the proportion of the display area of the frozen area to the display area of the table area comprises: determining the proportion of the display area of the frozen area to the display area of the table area according to a number of lines comprised in the display area of the frozen area 5and a number of lines comprised in the display area of the table area, wherein the number of lines is a number of rows or a number of columns. However, in the same field of endeavor of graphical user interfaces for spreadsheet content, Gao teaches wherein determining the proportion of the display area of the frozen area to the display area of the table area comprises: determining the proportion of the display area of the frozen area to the display area of the table area according to a number of lines comprised in the display area of the frozen area 5and a number of lines comprised in the display area of the table area, wherein the number of lines is a number of rows or a number of columns (e.g., see Figs.",
"3, 5a, 6a, [0037], [0038] wherein the proportion of the display area includes determining the number or rows/columns to be displayed). Accordingly, it would have been obvious to modify Wedekind-Buczek-Thangappan with Gao with a reasonable expectation of success. One would have been motivated to make such a modification to display information that is relevant to a user on small display areas (e.g., see [0007] of Gao). It is noted that any citation to specific pages, columns, lines, or figures in the prior art references and any interpretation of the references should not be considered to be limiting in any way. “The use of patents as references is not limited to what the patentees describe as their own inventions or to the problems with which they are concerned. They are part of the literature of the art, relevant for all they contain.” In re Heck, 699 F.2d 1331, 1332-33, 216 USPQ 1038, 1039 (Fed.",
"Cir. 1983) (quoting In re Lemelson, 397 F.2d 1006, 1009, 158 USPQ 275, 277 (CCPA 1968)). Further, a reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill the art, including nonpreferred embodiments. Merck & Co. v. Biocraft Laboratories, 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir. ), cert. denied, 493 U.S. 975 (1989). See also Upsher-Smith Labs. v. Pamlab, LLC, 412 F.3d 1319, 1323, 75 USPQ2d 1213, 1215 (Fed. Cir. 2005); Celeritas Technologies Ltd. v. Rockwell International Corp., 150 F.3d 1354, 1361, 47 USPQ2d 1516, 1522-23 (Fed. Cir. 1998). Conclusion THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a). A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action.",
"In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action. In the interests of compact prosecution, Applicant is invited to contact Examiner via electronic media pursuant to USPTO policy outlined MPEP § 502.03. All electronic communication must be authorized in writing. Applicant may wish to file an Internet Communications Authorization Form PTO/SB/439. Applicant may wish to request an interview using the Interview Practice website: http://www.uspto.gov/patent/laws-and-regulations/interview-practice. Applicant is reminded Internet e-mail may not be used for communication for matters under 35 U.S.C.",
"§ 132 or which otherwise require a signature. A reply to an Office action may NOT be communicated by Applicant to the USPTO via Internet e-mail. If such a reply is submitted by Applicant via Internet e-mail, a paper copy will be placed in the appropriate patent application file with an indication that the reply is NOT ENTERED. See MPEP § 502.03(II). Any inquiry concerning this communication or earlier communications from the examiner should be directed to STELLA HIGGS whose telephone number is 571-270-5891 and whose electronic mail address is Stella.Higgs@uspto.gov. The examiner can normally be reached on Monday through Thursday and alternating Fridays 7:30am to 4:30pm. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, RENEE CHAVEZ can be reached at (571) 270-1104. 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. /Stella Higgs/Primary Examiner, Art Unit 2179"
] | https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-11-20.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DETAILED ACTION Terminal Disclaimer The terminal disclaimer filed on 17 March 2022 disclaiming the terminal portion of any patent granted on this application which would extend beyond the expiration date of any patent granted on co-pending application 17/024,847 has been reviewed and is accepted. The terminal disclaimer has been recorded. Allowable Subject Matter Claims 1-11 are allowed. The following is an examiner’s statement of reasons for allowance: with respect to claim 1, the prior art fails to teach, or fairly suggest, the cleaning limitations recited therein, when taken in conjunction with the remaining limitations of claim 1. Claims 2-11 are allowed by virtue of their dependency from claim 1. Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.” Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to DION R FERGUSON whose telephone number is (571)270-7566. The examiner can normally be reached Monday-Friday, 5:30 a.m. - 4:00 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, Timothy Dole can be reached on 571-272-2229. 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.
/DION R. FERGUSON/Primary Examiner, Art Unit 2848 | 2022-04-01T11:53:23 | [
"DETAILED ACTION Terminal Disclaimer The terminal disclaimer filed on 17 March 2022 disclaiming the terminal portion of any patent granted on this application which would extend beyond the expiration date of any patent granted on co-pending application 17/024,847 has been reviewed and is accepted. The terminal disclaimer has been recorded. Allowable Subject Matter Claims 1-11 are allowed. The following is an examiner’s statement of reasons for allowance: with respect to claim 1, the prior art fails to teach, or fairly suggest, the cleaning limitations recited therein, when taken in conjunction with the remaining limitations of claim 1. Claims 2-11 are allowed by virtue of their dependency from claim 1.",
"Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.” Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to DION R FERGUSON whose telephone number is (571)270-7566. The examiner can normally be reached Monday-Friday, 5:30 a.m. - 4:00 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, Timothy Dole can be reached on 571-272-2229.",
"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. /DION R. FERGUSON/Primary Examiner, Art Unit 2848"
] | https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-04-03.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
115 S1167 IS: Airplane Kids In Transit Safety Act of 2017 U.S. Senate 2017-05-17 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.
II 115th CONGRESS1st Session S. 1167 IN THE SENATE OF THE UNITED STATES May 17, 2017 Mr. Schatz (for himself and Mr. Moran) introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation A BILL To require the Administrator of the Federal Aviation Administration to evaluate and consider revising regulations relating to emergency medical equipment requirements for passenger aircraft. 1.Short title This Act may be cited as the Airplane Kids In Transit Safety Act of 2017 or the Airplane KITS Act. 2.Emergency medical equipment on passenger aircraft (a)In generalNot later than 1 year after the date of the enactment of this Act, the Administrator of the Federal Aviation Administration shall evaluate and revise, as appropriate, the regulations under part 121 of title 14, Code of Federal Regulations, regarding the emergency medical equipment requirements, including the contents of first-aid kits, applicable to all certificate holders operating passenger aircraft under that part. (b)ConsiderationsIn carrying out subsection (a), the Administrator shall consider whether the minimum contents of approved emergency medical kits, including approved first-aid kits, include appropriate medications and equipment to meet the emergency medical needs of children. | 05-17-2017 | [
"115 S1167 IS: Airplane Kids In Transit Safety Act of 2017 U.S. Senate 2017-05-17 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. II 115th CONGRESS1st Session S. 1167 IN THE SENATE OF THE UNITED STATES May 17, 2017 Mr. Schatz (for himself and Mr. Moran) introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation A BILL To require the Administrator of the Federal Aviation Administration to evaluate and consider revising regulations relating to emergency medical equipment requirements for passenger aircraft. 1.Short title This Act may be cited as the Airplane Kids In Transit Safety Act of 2017 or the Airplane KITS Act. 2.Emergency medical equipment on passenger aircraft (a)In generalNot later than 1 year after the date of the enactment of this Act, the Administrator of the Federal Aviation Administration shall evaluate and revise, as appropriate, the regulations under part 121 of title 14, Code of Federal Regulations, regarding the emergency medical equipment requirements, including the contents of first-aid kits, applicable to all certificate holders operating passenger aircraft under that part. (b)ConsiderationsIn carrying out subsection (a), the Administrator shall consider whether the minimum contents of approved emergency medical kits, including approved first-aid kits, include appropriate medications and equipment to meet the emergency medical needs of children."
] | https://www.govinfo.gov/content/pkg/BILLS-115s1167is/xml/BILLS-115s1167is.xml | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Exhibit 32 CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION -OXLEY ACT OF 2002 In connection with the quarterly report of Ralcorp Holdings, Inc. (the "Company") on Form 10-Q for the period ended December 31, 2011, as filed with the Securities and Exchange Commission on the date hereof (the "Report"), I, Kevin J. Hunt Chief Executive Officer of the Company, and I, Scott Monette, Chief Financial Officer, certify, to the best of my knowledge, pursuant to 18 U.S.C. § 1350, as adopted pursuant to § 906 of the Sarbanes-Oxley Act of 2002, that: The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. /s/ K. J. Hunt /s/ S. Monette K. J. Hunt S.Monette Chief Executive Officer Chief Financial Officer Ralcorp Holdings, Inc. Ralcorp Holdings, Inc. Date:February 9, 2012 A signed original of this written statement required by Section 906 has been provided to Ralcorp Holdings, Inc. and will be retained by Ralcorp Holdings, Inc. and furnished to the Securities and Exchange Commission or its staff upon request. | [
"Exhibit 32 CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION -OXLEY ACT OF 2002 In connection with the quarterly report of Ralcorp Holdings, Inc. (the \"Company\") on Form 10-Q for the period ended December 31, 2011, as filed with the Securities and Exchange Commission on the date hereof (the \"Report\"), I, Kevin J. Hunt Chief Executive Officer of the Company, and I, Scott Monette, Chief Financial Officer, certify, to the best of my knowledge, pursuant to 18 U.S.C. § 1350, as adopted pursuant to § 906 of the Sarbanes-Oxley Act of 2002, that: The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. /s/ K. J.",
"Hunt /s/ S. Monette K. J. Hunt S.Monette Chief Executive Officer Chief Financial Officer Ralcorp Holdings, Inc. Ralcorp Holdings, Inc. Date:February 9, 2012 A signed original of this written statement required by Section 906 has been provided to Ralcorp Holdings, Inc. and will be retained by Ralcorp Holdings, Inc. and furnished to the Securities and Exchange Commission or its staff upon request."
] | 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 |
|
Madsen, C.J. ¶1 The question in this case has been certified to us from the United States District Court for the Eastern District of Washington: Whether a public library, consistent with Article I, § 5 of the Washington Constitution, may filter Internet access for all patrons without disabling Web sites containing constitutionally-protected speech upon the request of an adult library patron.[1] We conclude that a library can, subject to the limitations set forth in this opinion, filter Internet access for all patrons, including adults, without violating article I, section 5 of the Washington State Constitution. FACTS ¶2 The facts summarized here are taken from the district court’s order granting in part and denying in part defendant North Central Regional Library District’s (NCRL) motion for certification. Bradburn v. N. Cent. Reg’l Library *794Dist., CV-06-0327-EFS, Order Granting and Den. in Part Def.’s Mot. for Cert. and Holding in Abeyance the Mots. for Summ. J. (E.D. Wa. Sept. 30, 2008) (hereinafter Order). ¶3 NCRL is an intercounty rural library district with 28 branch libraries, established in 1960 by citizens of Chelan, Douglas, Ferry, Grant, and Okanogan Counties. Its mission is to promote reading and lifelong learning. It is also committed to support of public education, with 26 school districts operating within its area. In 14 of these districts, the branch libraries act as de facto school libraries. NCRL is managed and controlled by a board of trustees that is responsible for its policies. ¶4 NCRL maintains a collection of more than 675,000 books and other materials that are available to its patrons at the branch libraries, by order through its web site, or by mail order. The branch libraries vary in size from 701 square feet of public area to 12,000 square feet, with an average of 2,865 square feet. Only one branch has a wall or partition separating the children’s section of the library from the rest of it. Twenty of the branches are staffed by one librarian. ¶5 NCRL provides public Internet access in all of its branches in furtherance of its mission and to meet the diverse needs and interests of its patrons. This access is subject to two policies, the Collection Development Policy and the Internet Public Use Policy. NCRL’s director and the director of public services interpret and apply these policies. ¶6 NCRL’s Collection Development Policy states: The North Central Regional Library District’s Board of Trustees recognizes that the library was created to serve all of the people within the District’s service area, regardless of race, age, creed, or political persuasions. The Board of Trustees further recognizes that within the District’s service area there are individuals and groups with widely disparate and diverse interests, cultural backgrounds, and needs. The Board of Trustees, therefore, declares as a matter of policy that: *7951. The Collection Development Policy is based on and reflects the District’s mission, goals, and values as stated in the current Strategic Plan. 2. Library materials shall be selected and retained in the library on the basis of their value for the interest, information, and enlightenment of all the people of the community in conformance with the District’s mission. Some of the factors which will be considered in adding to or removing materials from the library collection shall include: present collection composition, collection development objectives, interest, demand, timeliness, audience, significance of subject, diversity of viewpoint, effective expression, and limitation of budget and facilities. No library materials shall be excluded because of the race, nationality, political, religious, or social views of the author. Not all materials will be suitable for all members of the community. The District shall be responsive to public suggestion of titles and subjects to be included in the library collection. Gifts of materials may be accepted with the understanding that the same standards of selection are applied to gifts as to materials acquired by purchase, and that any gifts may be discarded at the District’s discretion. To ensure a vital collection of continuing value to the community, materials that are not well used may be withdrawn. The Director is responsible to the Board of Trustees for collection development. The Director may delegate collection development activities to members of the staff who are qualified by reason of education and training. 3. The Board of Trustees believes that reading, listening to, and viewing library materials are individual, private matters. While individuals are free to select or to reject materials for themselves, they cannot restrict the freedom of others to read, view, or inquire. The Board of Trustees recognizes that parents have the primary responsibility to guide and direct the reading and viewing of their own minor children. The Board of Trustees recognizes the right of individuals to question materials in the District collection. A library customer *796questioning material in the collection is encouraged to talk with designated members of the staff concerning such material. To formally state his or her opinion and receive a written response, a customer may submit the form provided for that purpose. Order at 8-9. ¶7 NCRL’s Internet Public Use Policy states: The mission of the North Central Regional Library is to promote reading and lifelong learning. Internet access is offered as one of many information resources supporting that mission. The Internet is currently an unregulated medium. While the Internet offers access to materials that are enriching to users of all ages, the Internet also enables access to some materials that may be offensive, disturbing, or illegal. There is no guarantee that information obtained through the Internet is accurate or that individuals are who they represent themselves to be. The library district recognizes that it cannot fully control the amount of material accessible through the Internet but will take reasonable steps to apply to the Internet the selection criteria stated in the Collection Development Guidelines and Procedures. All Internet access on NCRL library computers is filtered. The library district does not host customer e-mail accounts or provide access to chat rooms. The library district cannot guarantee privacy for individuals using library public access computers to search the Internet and computer screens may be visible to people of all ages, backgrounds, and sensibilities. Customers are requested to exercise appropriate discretion in viewing materials or submitting sensitive personal information. Minors, in particular, are discouraged from sharing personal information online. Hacking and other unlawful online activities are prohibited. The District’s director is responsible for establishing procedures to carry out this policy. Id. at 9-10. ¶8 In October 2006, following its earlier use of other software, NCRL implemented the “FortiGuard Web Filtering Service,” a widely used filtering service. Using propri*797etary algorithms and human review, FortiGuard sorts web sites into 76 categories based upon predominant content. The database catalogues over 43 million web sites and over 2 billion individual web pages. It is continually updated. Anyone can ask FortiGuard to review its classification of a particular site or page by using an electronic form available on the Fortinet site. ¶9 A “FortiGate unit,” which acts as an intermediary between a computer’s browser and the server, is installed at each of NCRL’s 28 branches. All Internet traffic on NCRL’s public computers is routed through one of these units, which filters content. ¶10 NCRL’s FortiGuard filter is configured to block the following of the 76 categories that can be blocked using the FortiGuard system: Hacking: Websites that depict illicit activities surrounding the unauthorized modification or access to programs, computers, equipment and websites. Proxy Avoidance: Websites that provide information or tools on how to bypass Internet access controls and browse the Web anonymously, includes anonymous proxy servers. Phishing: Counterfeit web pages that duplicate legitimate business webpages for the purpose of eliciting financial, personal or other private information from the users. Adult Materials: Mature content websites (18+ years and over) that feature or promote sexuality, strip clubs, sex shops, etc. excluding sex education, without the intent to sexually arouse. Gambling: Sites that cater to gambling activities such as betting, lotteries, casinos, including gaming information, instruction, and statistics. Nudity and Risqu[é]: Mature content websites (18+ years and over) that depict the human body in full or partial nudity without the intent to sexually arouse. Pornography: Mature content websites (18+ years and over) which present or display sexual acts with the intent to sexually arouse and excite. Web Chat: Websites that promote Web chat services. *798Instant Messaging: Websites that allow users to communicate in “real-time” over the Internet. Malware: Sites that are infected with destructive or malicious software, specifically designed to damage, disrupt, attack or manipulate computer systems without the user’s consent, such as virus or trojan horse. Spyware: Sites that host software that is covertly downloaded to a user’s machine, to collect information and monitor user activity, including spyware, adware, etc. Id. at 11-12. ¶11 NCRL also blocks the “Image Search,” “Video Search,” and “Spam” classifications, certain specific image search web sites, and the “personals” section of craigslist.org. NCRL also initially blocked but subsequently unblocked access to youtube.com, myspace.com, and craigslist.org (except for the “personals” section). ¶12 In addition, to qualify for certain federal funding, i.e., discounted Internet access and grants available to state libraries, NCRL is required to certify its compliance with the Children’s Internet Protection Act (CIPA), Pub. L. No. 106-554, 114 Stat. 2763A-335 (codified at 20 U.S.C. § 6777, 20 U.S.C. § 9134, former 47 U.S.C. 254(h) (2004)). As explained in United States v. American Library Ass’n, 539 U.S. 194, 123 S. Ct. 2297, 156 L. Ed. 2d 221 (2003) (hereinafter A.L.A.), CIPA requires libraries to employ measures that prohibit access by minors to depictions that are obscene, child pornography, or otherwise harmful to minors. ¶13 NCRL also has a policy that its Internet filter not be disabled at the request of an adult patron. This means that if material is appropriately blocked under the Internet Use Policy, it is not unblocked upon request. However, if the material is erroneously blocked, it can be unblocked upon request. ¶14 Plaintiffs Sarah Bradburn, Pearl Cherrington, and Charles Heinlen are patrons of NCRL who use or have used computers that NCRL has made available to access the *799Internet. Each claims that access to certain web sites was blocked by NCRL’s Internet filter. Plaintiff Second Amendment Foundation (SAF) is a Washington nonprofit corporation dedicated to issues associated with the constitutional right to keep and bear firearms, with about 1,000 members in the counties served by NCRL. SAF has a web site and sponsors on-line publications, including Women and Guns. SAF was advised by a member or members that access to its publication www.womenandguns was blocked on NCRL’s computers. Prior to this lawsuit, NCRL had not received any report that this site was blocked and does not contend that it should be blocked. It is not presently blocked. SAF is concerned about possible future blocking. ¶15 Plaintiffs brought suit against NCRL, challenging the filtering policy’s constitutionality and, in particular, NCRL’s decision that it would not disable the filter at the request of an adult (except in the case of a site’s being blocked when it did not in fact fall within a prohibited category such as spyware, gambling, or pornography). ANALYSIS ¶16 Certified questions from federal court are questions of law that we review de novo. In re F5 Networks, Inc., 166 Wn.2d 229, 236, 207 P.3d 433 (2009). We do not consider the legal issues in the abstract but instead consider them based on the certified record that the federal court provides. RCW 2.60.030(2); St. Paul Fire & Marine Ins. Co. v. Onvia, Inc., 165 Wn.2d 122, 126, 196 P.3d 664 (2008). ¶17 The plaintiffs claim that NCRL’s Internet filtering policy is overbroad and, more specifically, so overbroad as to rise to the level of a prior restraint in violation of article I, section 5. They also contend that the filtering policy is an impermissible content-based restriction on speech. NCRL maintains that use of the FortiGuard filter makes it possible to provide its patrons access to vast amounts of constitutionally protected material while ensuring that *800on-line resources are aligned with its mission and collection policy, the interests of public education are advanced, and a safe and appropriate environment for staff and patrons is maintained. NCKL maintains that its filtering policy is constitutional under article I, section 5. Overbreadth and Prior Restraint ¶18 Article I, section 5 of the Washington State Constitution provides that “[e]very person may freely speak, write and publish on all subjects, being responsible for the abuse of that right.” The plaintiffs present an analysis of the six nonexclusive Gunwall2 factors to show that article I, section 5 is more protective of speech than the First Amendment to the United States Constitution. This analysis applies to determine whether an independent state constitutional analysis is appropriate, however, and it is already settled that article I, section 5 is subject to independent interpretation. Ino Ino, Inc. v. City of Bellevue, 132 Wn.2d 103, 115, 937 P.2d 154, 943 P.2d 1358 (1997). This does not mean that the state provision always affords greater protection than the First Amendment, however. Id. For example, no greater protection is afforded to obscenity, speech in nonpublic forums, commercial speech, and false or defamatory statements. Id. at 116 (citing State v. Reece, 110 Wn.2d 766, 778, 757 P.2d 947 (1988); City of Seattle v. Huff, 111 Wn.2d 923, 926, 767 P.2d 572 (1989); Nat’l Fed’n of Retired Persons v. Ins. Comm’r, 120 Wn.2d 101, 119, 838 P.2d 680 (1992); Richmond v. Thompson, 130 Wn.2d 368, 382, 922 P.2d 1343 (1996)). ¶19 In some contexts, however, greater protection is afforded under article I, section 5. We have recognized, for example, that when applying a time, place, and manner test to a restriction on speech in a public forum, the restriction can be imposed consistent with article I, section 5 only upon the showing of a “compelling state interest,” rather than the “substantial governmental interest” that is sufficient under *801the First Amendment. Bering v. SHARE, 106 Wn.2d 212, 234, 721 P.2d 918 (1986). In addition, unlike the First Amendment, article I, section 5 categorically prohibits prior restraints on constitutionally protected speech. Voters Educ. Comm. v. Pub. Disclosure Comm’n, 161 Wn.2d 470, 493-94, 166 P.3d 1174 (2007). ¶20 The plaintiffs say that article I, section 5 is also more protective in cases involving overbreadth, but the cases they cite do not support this conclusion. Rather, the cited cases state the principle that article I, section 5 is less tolerant than the First Amendment of overbroad restrictions if they rise to the level of a prior restraint. O’Day v. King County, 109 Wn.2d 796, 803-04, 749 P.2d 142 (1988); Ino Ino, 132 Wn.2d at 117; cf. Voters Educ. Comm., 161 Wn.2d at 494 (also cited by the plaintiffs, discussing whether challenged laws rose to the level of a prior restraint as a result of vagueness). ¶21 Moreover, although the plaintiffs assert there is greater protection under the state provision, in the broadest sense, they have not offered any explanation of why, absent a level akin to a prior restraint, overbroad provisions should be treated any differently under article I, section 5 than under the First Amendment, or what independent analysis should apply to their claim of a content-based restriction. In fact, many of the cases upon which the plaintiffs rely were decided under the First Amendment and the plaintiffs particularly urge that we follow the analysis in Mainstream Loudoun v. Board of Trustees, 2 F. Supp. 2d 783, 795 (E.D. Va. 1998) (Mainstream Loudoun I) and Mainstream Loudoun v. Board of Trustees, 24 F. Supp. 2d 552 (E.D. Va. 1998) (Mainstream Loudoun II), decided under a federal constitutional analysis. Accordingly, in deciding whether the filtering policy suffers from overbreadth under article I, section 5, our analytical approach aligns with the approach taken under the First Amendment. ¶22 The first question here is whether, as the plaintiffs claim, NCRL’s filtering policy acts as a prior restraint *802in violation of article I, section 5. A prior restraint seeks to prohibit future speech rather than to punish speech that has occurred. Voters Educ. Comm., 161 Wn.2d at 494. A prior restraint is an official restriction imposed on speech or another form of expression in advance of its occurrence. Sanders v. City of Seattle, 160 Wn.2d 198, 224, 156 P.3d 874 (2007); see Soundgarden v. Eikenberry, 123 Wn.2d 750, 764, 871 P.2d 1050 (1994). ¶23 NCRL maintains that its policy is neither a prior restraint nor its functional equivalent. Rather, it is an operational rule that applies in the same way as any other collection decision by NCRL managers. ¶24 We first note that the plaintiffs’ complaint is that they are prevented from accessing the speech of others in violation of article I, section 5. The First Amendment protects the right to receive information and ideas. Kleindienst v. Mandel, 408 U.S. 753, 762-63, 92 S. Ct. 2576, 33 L. Ed. 2d 683 (1972); see Voters Educ. Comm., 161 Wn.2d at 483 (acknowledging that under the First Amendment, free speech includes the fundamental counterpart of the right to receive information). We believe that a comparable right exists under article I, section 5. ¶25 There are very few appellate cases involving Internet filters and free speech issues, and no cases decided under article I, section 5. However, A.L.A. involved First Amendment challenges to CIPA. Among other things, the United States Supreme Court considered whether the Internet filtering required by CIPA constitutes a prior restraint. The plurality in A.L.A. termed it a mistake to extend “prior restraint to the context of public libraries’ collection decisions. A library’s decision to use filtering software is a collection decision, not a restraint on private speech.” A.L.A., 539 U.S. at 209 n.4. We similarly agree that NCRL’s filtering policy does not constitute a prior restraint within the meaning of article I, section 5. ¶26 As the plurality in A.L.A. explained, a public library selects what it will collect and make available to its patrons. “Public libraries pursue the worthy missions of *803facilitating learning and cultural enrichment.” Id. at 203. A public library “provides Internet access . . . for the same reasons it offers other library resources: to facilitate research, learning, and recreational pursuits by furnishing materials of requisite and appropriate quality.” Id. at 206. “To fulfill their traditional missions, public libraries must have broad discretion to decide what material to provide to their patrons.” Id. at 204. ¶27 This discretion is not unlimited. In Board of Education v. Pico, 457 U.S. 853, 102 S. Ct. 2799, 73 L. Ed. 2d 435 (1982) (plurality opinion), an action seeking injunctive relief was brought with regard to removal of certain books from school libraries.3 The plurality took great pains to point out that the action did “not involve the acquisition of books,” saying that “nothing in our decision today affects in any way the discretion of a local school board to choose books to add to the libraries of their schools.” Id. at 862, 871. The plurality added, however, that the “discretion may not be exercised in a narrowly partisan or political manner.” Id. at 870. ¶28 We agree with the observations made in A.L.A. and conclude that a library’s decision about what materials to make available to its patrons does not constitute a prior restraint. NCRL’s filtering policy does not prevent any speech and in particular it does not ban or attempt to ban online speech before it occurs. Rather, it is a standard for making determinations about what will be included in the collection available to NCRL’s patrons. ¶29 The plaintiffs maintain, however, that NCRL’s policy is overbroad and in fact is so overbroad that it rises to the level of a prior restraint that violates article I, section 5 because it restricts access to a substantial amount of pro*804tected speech. There are necessarily two inquiries that must be made: whether the policy suffers from overbreadth, and, if so, whether the overbreadth rises to the level of a prior restraint. As explained, only in the latter instance is article I, section 5 “less tolerant” than the First Amendment. As also explained, our article I, section 5 analysis of overbreadth follows the analysis under the First Amendment. ¶30 In general, a law is unconstitutionally over-broad if constitutionally protected free speech activities are swept within its prohibitions. State v. Johnston, 156 Wn.2d 355, 127 P.3d 707 (2006). The plaintiffs contend that an overbreadth problem results from categorizations that fail to track constitutional requirements, filtering errors, and NCRL’s policy of blocking entire web sites when a single page is deemed harmful to minors. ¶31 Initially, we agree with NCRL that the Mainstream Loudoun cases are of little value in light of the Court’s decision in A.L.A., contrary to the plaintiffs’ heavy reliance on these cases. For example, the court in the Mainstream Loudoun cases applied a forum analysis and concluded that a library is a limited public forum, determined that strict scrutiny applies in deciding whether Internet filtering is constitutional, and concluded that the closest analogy to the decision to filter Internet content is removal of library materials rather than selection of library materials as additions to the library’s collection. Mainstream Loudoun I, 2 F. Supp. 2d at 793-94, 795; Mainstream Loudoun II, 24 F. Supp. 2d at 561-63. ¶32 However, all of these conclusions are at odds with the decision in A.L.A. A majority of the Court in A.L.A. agreed that public forum analysis is inappropriate in determining whether a library can constitutionally filter certain Internet content. A.L.A., 539 U.S. at 205-07 (plurality) (concluding that public forum analysis is not applicable to Internet access in a public library); id. at 215-16 (Breyer, J., concurring) (agreeing with plurality on this point). A ma*805jority of the Court also agreed that strict scrutiny does not apply. The plurality stated that [a] library’s need to exercise judgment in making collection decisions depends on its traditional role in identifying suitable and worthwhile material; it is no less entitled to play that role when it collects material from the Internet than when it collects material from any other source. Most libraries already exclude pornography from their print collections because they deem it inappropriate for inclusion. We do not subject these decisions to heightened scrutiny; it would make little sense to treat libraries’ judgments to block online pornography any differently, when these judgments are made for just the same reason. Id. at 208. In Justice Breyer’s concurrence he agreed that strict scrutiny is too rigid a test to apply in this context. Id. at 217 (Breyer, J., concurring).4 ¶33 Finally, a majority of the Court acknowledged the discretion that libraries exercise when selecting material and treated filtering policies as pertaining to collection of materials, not removal of materials after once having been selected. In his concurrence, Justice Breyer observed that “libraries often properly engage in the selection of materials, either as a matter of necessity (i.e., due to the scarcity of resources) or by design (i.e., in accordance with collection development policies).” Id. (Breyer, J., concurring). Significantly, the plurality observed that it is not constitutionally relevant that when selecting books a library makes an affirmative decision to acquire them for its collection but that when filtering the Internet a library does not review every web site that it makes available. “A library’s need to exercise judgment in making collection decisions depends on its traditional role in identifying suitable and worthwhile material; it is no less entitled to play that role when it collects material from the Internet than when it collects material from any other source.” Id. at *806208. Because of the sheer quantity of material on the Internet and the rapidity with which it changes, libraries cannot possibly review the material item by item to determine what should be included and what should not. Id. The only way it could make such determinations would be to exclude “an enormous amount of valuable information that it lacks the capacity to review. Given that tradeoff, it is entirely reasonable for public libraries to reject that approach and instead exclude certain categories of content, without making individualized judgments that everything they do make available has requisite and appropriate quality.” Id. ¶34 Thus, NCRL’s filtering policy, when applied, is not comparable to removal of items from NCRL’s collection, but rather acquisition of materials to add to its collection. NCRL has made the only kind of realistic choice of materials that is possible without unduly and unnecessarily curtailing the information available to a bare trickle — or a few drops — of the vast river of information available on the Internet. ¶35 Because so much of Mainstream Loudoun is no longer sound, we find it of little assistance in addressing the certified question before us. ¶36 The foundations of the plaintiffs’ overbreadth challenge are the presumption that a public library must make accessible all constitutional speech on the Internet and the contention that a policy that applies so broadly that it excludes any constitutionally protected speech violates article I, section 5. But a public library has no obligation to make available any and all constitutionally protected material, and the goal of libraries has never, as the plurality in A.L.A. noted, been to provide “ ‘universal coverage.’ ’’A.L.A., 539 U.S. at 204 (quoting Am. Library Ass’n v. United States, 201 F. Supp. 2d 401, 421 (E.D. Pa. 2002)). Rather, “ ‘[t]he librarian’s responsibility ... is to separate out the gold from the garbage, not to preserve everything.’ ” Id. (quoting William A. Katz, Collection Development: The Selection of Materials for Libraries 6 (1980)). “ ‘It is the aim of *807the selector to give the public, not everything it wants, but the best that it will read or use to advantage.’ ” Id. (quoting Francis K.W. Drury, Book Selection xi (1930)). ¶37 The principle that a library has no obligation to provide universal coverage of all constitutionally protected speech applies to Internet access just as it does to the printed word in books, periodicals, and other material physically collected and made available to patrons. “The Internet is simply another method for making information available in a . . . library’ ” and “is ‘no more than a technological extension of the book stack.’ ” A.L.A., 539 U.S. at 207 (quoting S. Rep. No. 106-141, at ¶7 (1999)). Just as it is entitled to exercise its acknowledged discretion in amassing a collection of printed materials physically placed on the shelves in order to carry out its mission, it is entitled to exercise discretion when it comes to Internet access involving its facilities and equipment. ¶38 The discretion that public libraries enjoy in selecting materials for their collections is not merely a function of what a library can afford in terms of costs and space, contrary to the position taken in Mainstream Loudoun I, 2 F. Supp. 2d at 795. Even if one were to assume a public library with unlimited funds and space, that library would be under no obligation to make all constitutionally protected printed materials available. For example, regardless of its resources a library need not place pornographic materials on its shelves, although such materials are constitutionally protected. It need not place children’s comic books on its shelves, although these, too, are constitutionally protected. As another example, if a private collector offered a library a collection of books at an attractive set price for the entire collection and the library purchased the collection, it would not have to include all of the books in its own collection and would not have to make them all available to its patrons. ¶39 In any event, it is simply not true that there are no costs or physical restrictions attendant to access to the Internet via a public library. Although generally purchase *808of Internet access includes all of the Internet’s free sites, making the Internet accessible to patrons requires devoted library space and frequently scarce computer terminals and resources. ¶40 Given the traditional and necessary discretion lodged in public libraries with respect to acquisition of materials, we do not agree that the overbreadth doctrine applies to a public library’s decisions about what materials to place in its collections. For example, if a public library decides, in accord with its written policies, not to acquire pornography for its collection, can it be said that its policies are unconstitutionally overbroad? To the contrary, exclusion of this type of constitutionally protected speech is within the discretion that libraries traditionally enjoy. We do not believe there is any good reason to treat the material available on the Internet any differently. ¶41 In short, a library simply does not have to include all constitutionally protected materials in its collection and it follows that no overbreadth problem necessarily results under article I, section 5 as a result of a public library’s Internet filtering policy under which access to certain categories of constitutionally protected materials is denied. ¶42 Next, turning to the plaintiffs’ overbreadth claim based on filtering errors, NCRL concedes that its filter on some occasions incorrectly includes inoffensive web sites in the prohibited categories, a circumstance known as “overblocking.” This means that the filter blocks web sites that do not actually fall within the categories that the filter is intended to block. The parties make vastly different statements about the degree of overblocking. The plaintiffs claim that their expert’s study shows that the filter has an error rate of 11 and 23.6 percent. The plaintiffs’ expert determined that of 100,000 randomly selected .com domains, FortiGuard blocked 536 web pages as pornography or adult materials and 64 were blocked in error, and the expert concluded this resulted in an error rate of 11.9 percent. Of 100,000 .org domains, 207 web pages were *809blocked as pornography or adult materials and 49 were blocked in error, for an error rate of 23.6 percent. ¶43 On the other hand, NCRL’s expert conducted a study of URLs (uniform resource locators) actually visited or requested during a week in August 2007. Of 60,000 URLs, 2,180 were blocked and of these, 289 complete web pages were blocked, with 20 blocked in error; 1406 “helper images” (“little images that are parts of web pages”) were blocked, with 744 blocked in error; 194 “other images” were blocked, with 24 blocked in error; and 110 URLs were not “ratable,” i.e., the expert could not determine whether they were correctly blocked. Order at 15. ¶44 Regardless of the disparities, as the plurality in A.L.A. concluded, even if any constitutional issue is implicated by overblocking, it is “dispelled” if the material that is erroneously blocked is easily unblocked upon the request of an adult. A.L.A., 539 U.S. at 209. Like the plurality in A.L.A., we conclude under article I, section 5, that if material that is blocked when it does not fall within the categories that are supposed to be blocked may be unblocked upon request, no overbreadth problem would exist. Because there would be no unconstitutional overbreadth, it follows there would be no overbreadth rising to the level of a prior restraint. ¶45 Here, if a library patron wants to access a web site or page that has been blocked by FortiGuard, he or she may send an e-mail to NCRL administrators asking for a manual override of the block. The site or page is reviewed to ascertain whether allowing access would accord with NCRL’s mission, its policy, and CIPA requirements. If not, the request is denied. If the request is approved, access will be allowed on all of NCRL’s public access computers. ¶46 Between October 1, 2007, and February 20, 2008, NCRL received 92 requests to unblock access, of which 90 were automated. NCRL responded to 8 within an hour, to another 19 within the same day, to another 29 the next day, to another 20 within three days, and to another 5 more than three days after the request. There is no evidence about the *810remaining 11 requests. Since October 1, 2007, NCRL unblocked sites in response to 12 requests. Among other things, sites that were erroneously blocked as “Pornography,” “Gambling,” and “Malware” were unblocked upon request. ¶47 Because adults can request and obtain unblocking of erroneously blocked sites, we conclude that on this record no overbreadth problem exists under article I, section 5 as a result of overblocking. ¶48 The plaintiffs next contend that an overbreadth problem results when entire web sites are blocked rather than just the specific pages that contain material within the prohibited categories. This claim is similar to the over-blocking claim, i.e., a claim that material is blocked that should not be blocked because it does not fall within a prohibited category. It differs in that at least a part of what is on the blocked site falls within one of the categories that the filter is designed to block. ¶49 Again, the crux of the issue is NCRL’s discretion regarding what will be added to its collection. Given that a public library simply has no obligation to include all types of constitutionally protected printed material in its collection, and is not, for example, required to include a book with three pages of pornography and three hundred pages that are not pornographic, it does not have to include access to an Internet site that contains some matter falling within a prohibited category even if other matter on the site does not. We do not believe an overbreadth problem occurs under article I, section 5 when the filter blocks sites containing matter falling within one of the prohibited categories, even if other material on the site does not. ¶50 Finally, the plaintiffs contend that the filtering policy is an overbroad restriction on adult speech because, they assert, no person can access on-line material that NCRL decides is inappropriate for a child. The plaintiffs rely on Butler v. Michigan, 352 U.S. 380, 382-83, 77 S. Ct. 524, 1 L. Ed. 2d 412 (1957), where the United States Supreme Court overturned a conviction under a law criminalizing the *811distribution of literature that could have a “potentially deleterious influence upon youth.” The Court stated that the government may not “reduce the adult population ... to reading only what is fit for children.” Id. at 383. In Adams v. Hinkle, 51 Wn.2d 763, 779-80, 322 P.2d 844 (1958), our court followed Butler and invalidated a statute prohibiting the sale of comic books in part because the statute limited adults’ access to this type of speech. ¶51 Although the plaintiffs would make it appear that NCRL’s filtering policy presents the same kind of restriction as condemned in these cases, there are significant differences. Most importantly, just as a public library has discretion to make content-based decisions about which magazines and books to include in its collection, it has discretion to make decisions about Internet content. A public library can decide that it will not include pornography and other adult materials in its collection in accord with its mission and policies and, as explained, no unconstitutionality necessarily results. It can make the same choices about Internet access. ¶52 We do not believe this case presents circumstances analogous to those in Butler and Adams. Rather, it concerns a public library’s collection policies. A public library does not come readily to mind as having been a source of pornography and other adult material before the advent of the Internet (and the current dispute), and should not be forced to become one just because it makes Internet access available to its patrons. As the plurality in A.L.A. observed, “Most libraries already exclude pornography from their print collections because they deem it inappropriate for inclusion.” A.L.A., 539 U.S. at 208. It makes “little sense” to treat libraries’ decisions to block access to “online pornography any differently, when these judgments are made for just the same reason.” Id. ¶53 We conclude that no overbreadth in violation of article I, section 5 occurs as a result of NCRL’s choice to block Internet access to pornography, adult materials, and nudity/risqué materials. *812Content-based restrictions ¶54 The plaintiffs also argue that NCRL’s filtering policy constitutes an unconstitutional content-based restriction under article I, section 5. According to the plaintiffs, any content-based restriction is presumptively invalid and ordinarily upheld only if it is meets the strict scrutiny standard of review. ¶55 Contrary to the plaintiffs’ apparent position, not all content-based standards are presumptively invalid or reviewed under a strict scrutiny standard. The plurality in A.L.A. explained that the Court held in “analogous contexts that the Government has broad discretion to make content-based judgments in deciding what private speech to make available to the public.” Id. at 204. In National Endowment for Arts v. Finley, 524 U.S. 569, 118 S. Ct. 2168, 141 L. Ed. 2d 500 (1998), the Court upheld an arts funding program requiring the National Endowment for the Arts (NEA) to make funding decisions using content-based criteria. The Court observed that “[a]ny content-based considerations that may be taken into account in the grant-making process are a consequence of the nature of arts funding.” Id. at 585. It also said that “[t]he very assumption of the NEA is that grants will be awarded according to the artistic worth of competing applicants and absolute neutrality is simply inconceivable.” Id. (internal quotation marks and cites omitted); see also Ark. Educ. Television Comm’n v. Forbes, 523 U.S. 666, 672-73, 118 S. Ct. 1633, 140 L. Ed. 2d 875 (1998) (public television’s editorial decisions regarding private speech presented to viewers). These cases demonstrate, contrary to the plaintiffs’ argument, that not all content-based distinctions must be subjected to strict scrutiny. ¶56 A public library necessarily considers content when making collection decisions and must do so to fulfill its mission; content-based considerations in selecting materials are part and parcel of the traditional role served by a public library. For this reason, the Court in A.L.A. *813declined to apply a public forum analysis to assess CIPA’s filtering requirements and declined to apply strict scrutiny. We agree that under article I, section 5 a public forum analysis does not apply in this context. ¶57 Generally, when a free speech challenge arises in regard to activity on property owned and controlled by the government, a court will engage in a “forum analysis” to determine the level of judicial scrutiny that applies. We have adopted the federal analysis for determining whether public property is a public forum, and federal case law is persuasive, though not binding. Sanders, 160 Wn.2d at 208. Internet access in a public library is not a traditional public forum. As the plurality in A.L.A. explained, this resource did not exist until recently and has not “ ‘immemorially been held in trust for the use of the public, and, time out of mind, . . . been used for purposes of assembly, communication of thoughts between citizens and discussing public questions.’ ” A.L.A., 539 U.S. at 205 (alteration in original) (quoting Int'l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 679, 112 S. Ct. 2701, 120 L. Ed. 2d 541 (1992)). Traditional forum analysis does not extend beyond its historical confines. Id. at 206; Sanders, 160 Wn.2d at 209 (applying test for traditional public forum under article I, section 5). ¶58 In addition, a public forum may exist where the government makes an affirmative decision to open up its property for use as a public forum. A.L.A., 539 U.S. at 206 (citing Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 802, 105 S. Ct. 3429, 87 L. Ed. 2d 567 (1985)). So long as the government holds government property open to the public as a place for expressive activity, the same analysis applies as applies to a traditional public forum. Sanders, 160 Wn.2d at 210. The Court in A.L.A. concluded that Internet access in a public library is not a designated public forum because “[a] public library does not acquire Internet terminals in order to create a public forum for Web publishers to express themselves, any more than it collects books in order to provide a public forum for the authors of *814the books to speak.” A.L.A., 539 U.S. at 206. Rather than providing Internet access to encourage private speakers’ diversities of view, it offers Internet access for the same reasons that other library resources are offered: “to facilitate research, learning, and recreational pursuits by furnishing materials of requisite and appropriate quality.” Id. ¶59 The United States Court of Appeals for the Third and Sixth Circuits have held, however, that a library is a limited public forum insofar as the library must permit the public to exercise the right to receive information and ideas consistent with the nature of the library as a place for reading, writing, and quiet contemplation. See Neinast v. Bd. of Trs., 346 F.3d 585, 591 (6th Cir. 2003); Kreimer v. Bureau of Police, 958 F.2d 1242, 1259 (3d Cir. 1992). But not all aspects of a library are a limited public forum, the Sixth Circuit explained in Neinast. That court held that the high level of scrutiny applicable to a public forum does not apply to a library regulation requiring a patron to wear shoes because the regulation did not directly impact the right to receive information. Neinast, 346 F.3d at 591-92. ¶60 The premise that not all aspects of a particular government property are treated the same under a forum analysis is also exemplified by Illinois Dunesland Preservation Society v. Illinois Department of Natural Resources, 587 F. Supp. 2d 1012 (E.D. Ill. 2008), aff’d on other grounds, 584 F.3d 719 (7th Cir. 2009). There, the court held that although a state park itself was unquestionably a traditional public forum, a display rack in the park was not a public forum because it was created to facilitate the recreational pursuit of park visitors and provide useful information for them — in essence a “mini-library of resources for the public” with respect to which the department of natural resources made editorial judgments about what to include. Id. at 1019-20, 1018 n.6;5 see also Pleasant Grove City v. Summum, 555 U.S. 460, 129 S. Ct. 1125, 1137-38, 172 L. Ed. *8152d 853 (2009) (concluding that although parks are a traditional public forum, monuments placed in them are not subject to forum analysis). ¶61 The limited public forum analysis in Neinast and Kreimer relate to the patrons’ right to receive information, which is effectively equated to the right to express oneself in a public forum. But even assuming the right to receive information implicates forum analysis as the Third and Sixth Circuits concluded, and that this right exists with respect to a public library, it would still exist only with respect to the materials that are actually in a library’s collection. A patron would not have a right to receive information in a public library if that information was not part of the library’s collection. And a patron does not have the constitutional right to force a public library to acquire a particular book or type of book. Analogously, this right would not exist with respect to Internet sites that have not been added to a library’s collection. Accordingly, even under the limited public forum analysis addressed in Neinast and Kreimer, collection decisions about Internet materials are not an aspect of a public library subject to public forum analysis. ¶62 For purposes of article I, section 5, we agree with the Court in A.L.A. that Internet access in a public library — in terms of what may be offered and what may be blocked by Internet filtering — is not subject to public forum analysis and the strict scrutiny that accompanies such a classification, whether as a traditional, designated, or limited public forum. ¶63 Given the traditional and historical role of a public library, and the discretion necessarily entailed to make content-based judgments about what to include in its collection, we conclude that article I, section 5 is not violated by a public library’s Internet filtering policy if it is reasonable when measured in light of the library’s mission and policies, and is viewpoint neutral. ¶64 It appears to us that NCRL’s filtering policy is reasonable and accords with its mission and these policies *816and is viewpoint neutral. It appears that no article I, section 5 content-based violation exists in this case. NCRL’s essential mission is to promote reading and lifelong learning. As NCRL maintains, it is reasonable to impose restrictions on Internet access in order to maintain an environment that is conducive to study and contemplative thought. ¶65 NCRL points out that more than half of its branches serve as the de facto school library for local school districts. Article IX, section 1 establishes education as the State’s highest priority. While the Internet provides opportunities for educational enrichment, exposure to unfiltered Internet access on demand by adults in these branches is not suited to the education of children. NCRL has documented instances of sexually explicit content displayed on its computers and printed from them despite the FortiGuard filtering, which NCRL says can be expected to increase if the filter can be disabled upon request. ¶66 Children are not the only patrons who might be adversely affected by unlimited Internet access in the public libraries. Even adults may find such exposure ill-suited to their use and enjoyment of a public library as a place for reading and contemplative thought. As NCRL says, limited restrictions on Internet access may help to minimize circumstances that staff and other patrons, including adults, may find threatening, hostile, or disruptive. ¶67 NCRL maintains that patrons have practical alternatives when access to a particular kind of on-line content is blocked, including access to image databases through NCRL’s home page and searches using Google’s main search engine at Google.com, which is not blocked. NCRL also points out, for example, that it has unblocked casino-related sites at the request of patrons with interests other than illegal wagering.6 NCRL also points out that it has a large number of print volumes available and a mail order program that is also available for obtaining some material that may be blocked under the filtering policy. *817¶68 The filtering policy appears to us, as NCRL contends, to be a reasonable measure that sets minimal restrictions on Internet access so that the Internet is used by all of NCRL’s patrons in a way that advances the duty of education and fulfills NCRL’s mission and traditional role. ¶69 The filtering policy is neutral in application, applying to all patrons alike. It is viewpoint neutral because it makes no distinctions based on the perspective of the speaker. See generally Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 804, 104 S. Ct. 2118, 80 L. Ed. 2d 772 (1984) (describing the viewpoint neutrality requirement as forbidding the government from regulating speech in ways that favor some viewpoints or ideas at the expense of others). ¶70 While we would conclude, on this record, that the filtering policy does not violate article I, section 5, we recognize that applying this constitutional provision according to the legal principles we delineate in this opinion to the facts of this case is a matter for the federal court. CONCLUSION ¶71 A public library has traditionally and historically enjoyed broad discretion to select materials to add to its collection of printed materials for its patrons’ use. We conclude that the same discretion must be afforded a public library to choose what materials from millions of Internet sites it will add to its collection and make available to its patrons. A public library has never been required to include all constitutionally protected speech in its collection and has traditionally had the authority, for example, to legitimately decline to include adult-oriented material such as pornography in its collection. This same discretion continues to exist with respect to Internet materials. ¶72 The plaintiffs’ claims of overbreadth, prior restraint, and that NCRL’s Internet filtering policy is an impermissible content-based restriction all fail to account for this traditional and long-standing discretion to select what *818materials will be included in a public library’s collection. We conclude that on the factual record presented to us in the district court’s order on certification, the filtering policy suffers from none of the constitutional infirmities under article I, section 5 claimed by the plaintiffs. However, we acknowledge that the federal court will apply the legal guidelines we set forth in this opinion to the facts of the case. ¶73 In response to the question certified by the United States District Court for the Eastern District of Washington, we answer that in accord with our analysis in this opinion a public library may, consistent with article I, section 5 of the Washington State Constitution, filter Internet access for all patrons without disabling the filter to allow access to web sites containing constitutionally protected speech upon the request of an adult library patron. C. Johnson, Alexander, Owens, and Fairhurst, JJ., concur.
The defendant, North Central Regional Library District (NCRL), suggests that the question is better understood if read to mean: Whether a public library, consistent with Article I, § 5 of the Washington Constitution, may filter Internet access for all patrons without disabling the filter to allow access to Web sites containing constitutionally-protected speech upon the request of an adult library patron. We agree that the added language better conveys the issue in the case because NCRL has no ability (or authority) to disable the web sites themselves. Rather, the issue concerns the patrons’ access to web sites via NCRL’s computer terminals. With this clarification, we address the certified question.
State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986).
The books had been characterized in a press release as “ ‘anti-American, anti-Christian, and anti-Sem[i]tic, and just plain filthy.’ ’’Pico, 457 U.S. at 857. The plurality concluded that “local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books and seek their removal to ‘prescribe what shall be orthodox.’ ” Id. at 872 (quoting W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 642, 63 S. Ct. 1178, 87 L. Ed. 2d 1628 (1943)).
Justice Breyer would have applied a heightened level of scrutiny, but not strict scrutiny. A.L.A., 539 U.S. at 216-17 (Breyer, J., concurring).
The Seventh Circuit agreed that the government did not have to make the display rack available to exhibit any and all pamphlets that interest groups wanted to place in it. Ill. Dunesland Pres. Soc’y, 584 F.3d at 725.
NCRL says that it has declined to unblock freelotto.com, which hosts gambling, but has allowed access to oregonlotto.com, which does not. | 08-12-2021 | [
"Madsen, C.J. ¶1 The question in this case has been certified to us from the United States District Court for the Eastern District of Washington: Whether a public library, consistent with Article I, § 5 of the Washington Constitution, may filter Internet access for all patrons without disabling Web sites containing constitutionally-protected speech upon the request of an adult library patron. [1] We conclude that a library can, subject to the limitations set forth in this opinion, filter Internet access for all patrons, including adults, without violating article I, section 5 of the Washington State Constitution. FACTS ¶2 The facts summarized here are taken from the district court’s order granting in part and denying in part defendant North Central Regional Library District’s (NCRL) motion for certification. Bradburn v. N. Cent. Reg’l Library *794Dist., CV-06-0327-EFS, Order Granting and Den. in Part Def.’s Mot.",
"for Cert. and Holding in Abeyance the Mots. for Summ. J. (E.D. Wa. Sept. 30, 2008) (hereinafter Order). ¶3 NCRL is an intercounty rural library district with 28 branch libraries, established in 1960 by citizens of Chelan, Douglas, Ferry, Grant, and Okanogan Counties. Its mission is to promote reading and lifelong learning. It is also committed to support of public education, with 26 school districts operating within its area. In 14 of these districts, the branch libraries act as de facto school libraries. NCRL is managed and controlled by a board of trustees that is responsible for its policies.",
"¶4 NCRL maintains a collection of more than 675,000 books and other materials that are available to its patrons at the branch libraries, by order through its web site, or by mail order. The branch libraries vary in size from 701 square feet of public area to 12,000 square feet, with an average of 2,865 square feet. Only one branch has a wall or partition separating the children’s section of the library from the rest of it. Twenty of the branches are staffed by one librarian. ¶5 NCRL provides public Internet access in all of its branches in furtherance of its mission and to meet the diverse needs and interests of its patrons.",
"This access is subject to two policies, the Collection Development Policy and the Internet Public Use Policy. NCRL’s director and the director of public services interpret and apply these policies. ¶6 NCRL’s Collection Development Policy states: The North Central Regional Library District’s Board of Trustees recognizes that the library was created to serve all of the people within the District’s service area, regardless of race, age, creed, or political persuasions. The Board of Trustees further recognizes that within the District’s service area there are individuals and groups with widely disparate and diverse interests, cultural backgrounds, and needs. The Board of Trustees, therefore, declares as a matter of policy that: *7951. The Collection Development Policy is based on and reflects the District’s mission, goals, and values as stated in the current Strategic Plan. 2. Library materials shall be selected and retained in the library on the basis of their value for the interest, information, and enlightenment of all the people of the community in conformance with the District’s mission. Some of the factors which will be considered in adding to or removing materials from the library collection shall include: present collection composition, collection development objectives, interest, demand, timeliness, audience, significance of subject, diversity of viewpoint, effective expression, and limitation of budget and facilities. No library materials shall be excluded because of the race, nationality, political, religious, or social views of the author. Not all materials will be suitable for all members of the community. The District shall be responsive to public suggestion of titles and subjects to be included in the library collection. Gifts of materials may be accepted with the understanding that the same standards of selection are applied to gifts as to materials acquired by purchase, and that any gifts may be discarded at the District’s discretion.",
"To ensure a vital collection of continuing value to the community, materials that are not well used may be withdrawn. The Director is responsible to the Board of Trustees for collection development. The Director may delegate collection development activities to members of the staff who are qualified by reason of education and training. 3. The Board of Trustees believes that reading, listening to, and viewing library materials are individual, private matters. While individuals are free to select or to reject materials for themselves, they cannot restrict the freedom of others to read, view, or inquire. The Board of Trustees recognizes that parents have the primary responsibility to guide and direct the reading and viewing of their own minor children. The Board of Trustees recognizes the right of individuals to question materials in the District collection. A library customer *796questioning material in the collection is encouraged to talk with designated members of the staff concerning such material. To formally state his or her opinion and receive a written response, a customer may submit the form provided for that purpose. Order at 8-9.",
"¶7 NCRL’s Internet Public Use Policy states: The mission of the North Central Regional Library is to promote reading and lifelong learning. Internet access is offered as one of many information resources supporting that mission. The Internet is currently an unregulated medium. While the Internet offers access to materials that are enriching to users of all ages, the Internet also enables access to some materials that may be offensive, disturbing, or illegal. There is no guarantee that information obtained through the Internet is accurate or that individuals are who they represent themselves to be. The library district recognizes that it cannot fully control the amount of material accessible through the Internet but will take reasonable steps to apply to the Internet the selection criteria stated in the Collection Development Guidelines and Procedures.",
"All Internet access on NCRL library computers is filtered. The library district does not host customer e-mail accounts or provide access to chat rooms. The library district cannot guarantee privacy for individuals using library public access computers to search the Internet and computer screens may be visible to people of all ages, backgrounds, and sensibilities. Customers are requested to exercise appropriate discretion in viewing materials or submitting sensitive personal information. Minors, in particular, are discouraged from sharing personal information online. Hacking and other unlawful online activities are prohibited. The District’s director is responsible for establishing procedures to carry out this policy. Id.",
"at 9-10. ¶8 In October 2006, following its earlier use of other software, NCRL implemented the “FortiGuard Web Filtering Service,” a widely used filtering service. Using propri*797etary algorithms and human review, FortiGuard sorts web sites into 76 categories based upon predominant content. The database catalogues over 43 million web sites and over 2 billion individual web pages. It is continually updated. Anyone can ask FortiGuard to review its classification of a particular site or page by using an electronic form available on the Fortinet site. ¶9 A “FortiGate unit,” which acts as an intermediary between a computer’s browser and the server, is installed at each of NCRL’s 28 branches. All Internet traffic on NCRL’s public computers is routed through one of these units, which filters content.",
"¶10 NCRL’s FortiGuard filter is configured to block the following of the 76 categories that can be blocked using the FortiGuard system: Hacking: Websites that depict illicit activities surrounding the unauthorized modification or access to programs, computers, equipment and websites. Proxy Avoidance: Websites that provide information or tools on how to bypass Internet access controls and browse the Web anonymously, includes anonymous proxy servers. Phishing: Counterfeit web pages that duplicate legitimate business webpages for the purpose of eliciting financial, personal or other private information from the users.",
"Adult Materials: Mature content websites (18+ years and over) that feature or promote sexuality, strip clubs, sex shops, etc. excluding sex education, without the intent to sexually arouse. Gambling: Sites that cater to gambling activities such as betting, lotteries, casinos, including gaming information, instruction, and statistics. Nudity and Risqu[é]: Mature content websites (18+ years and over) that depict the human body in full or partial nudity without the intent to sexually arouse. Pornography: Mature content websites (18+ years and over) which present or display sexual acts with the intent to sexually arouse and excite. Web Chat: Websites that promote Web chat services. *798Instant Messaging: Websites that allow users to communicate in “real-time” over the Internet. Malware: Sites that are infected with destructive or malicious software, specifically designed to damage, disrupt, attack or manipulate computer systems without the user’s consent, such as virus or trojan horse. Spyware: Sites that host software that is covertly downloaded to a user’s machine, to collect information and monitor user activity, including spyware, adware, etc.",
"Id. at 11-12. ¶11 NCRL also blocks the “Image Search,” “Video Search,” and “Spam” classifications, certain specific image search web sites, and the “personals” section of craigslist.org. NCRL also initially blocked but subsequently unblocked access to youtube.com, myspace.com, and craigslist.org (except for the “personals” section). ¶12 In addition, to qualify for certain federal funding, i.e., discounted Internet access and grants available to state libraries, NCRL is required to certify its compliance with the Children’s Internet Protection Act (CIPA), Pub. L. No. 106-554, 114 Stat. 2763A-335 (codified at 20 U.S.C. § 6777, 20 U.S.C. § 9134, former 47 U.S.C. 254(h) (2004)).",
"As explained in United States v. American Library Ass’n, 539 U.S. 194, 123 S. Ct. 2297, 156 L. Ed. 2d 221 (2003) (hereinafter A.L.A. ), CIPA requires libraries to employ measures that prohibit access by minors to depictions that are obscene, child pornography, or otherwise harmful to minors. ¶13 NCRL also has a policy that its Internet filter not be disabled at the request of an adult patron. This means that if material is appropriately blocked under the Internet Use Policy, it is not unblocked upon request. However, if the material is erroneously blocked, it can be unblocked upon request. ¶14 Plaintiffs Sarah Bradburn, Pearl Cherrington, and Charles Heinlen are patrons of NCRL who use or have used computers that NCRL has made available to access the *799Internet. Each claims that access to certain web sites was blocked by NCRL’s Internet filter. Plaintiff Second Amendment Foundation (SAF) is a Washington nonprofit corporation dedicated to issues associated with the constitutional right to keep and bear firearms, with about 1,000 members in the counties served by NCRL.",
"SAF has a web site and sponsors on-line publications, including Women and Guns. SAF was advised by a member or members that access to its publication www.womenandguns was blocked on NCRL’s computers. Prior to this lawsuit, NCRL had not received any report that this site was blocked and does not contend that it should be blocked. It is not presently blocked. SAF is concerned about possible future blocking. ¶15 Plaintiffs brought suit against NCRL, challenging the filtering policy’s constitutionality and, in particular, NCRL’s decision that it would not disable the filter at the request of an adult (except in the case of a site’s being blocked when it did not in fact fall within a prohibited category such as spyware, gambling, or pornography). ANALYSIS ¶16 Certified questions from federal court are questions of law that we review de novo. In re F5 Networks, Inc., 166 Wn.2d 229, 236, 207 P.3d 433 (2009). We do not consider the legal issues in the abstract but instead consider them based on the certified record that the federal court provides. RCW 2.60.030(2); St. Paul Fire & Marine Ins.",
"Co. v. Onvia, Inc., 165 Wn.2d 122, 126, 196 P.3d 664 (2008). ¶17 The plaintiffs claim that NCRL’s Internet filtering policy is overbroad and, more specifically, so overbroad as to rise to the level of a prior restraint in violation of article I, section 5. They also contend that the filtering policy is an impermissible content-based restriction on speech. NCRL maintains that use of the FortiGuard filter makes it possible to provide its patrons access to vast amounts of constitutionally protected material while ensuring that *800on-line resources are aligned with its mission and collection policy, the interests of public education are advanced, and a safe and appropriate environment for staff and patrons is maintained.",
"NCKL maintains that its filtering policy is constitutional under article I, section 5. Overbreadth and Prior Restraint ¶18 Article I, section 5 of the Washington State Constitution provides that “[e]very person may freely speak, write and publish on all subjects, being responsible for the abuse of that right.” The plaintiffs present an analysis of the six nonexclusive Gunwall2 factors to show that article I, section 5 is more protective of speech than the First Amendment to the United States Constitution. This analysis applies to determine whether an independent state constitutional analysis is appropriate, however, and it is already settled that article I, section 5 is subject to independent interpretation. Ino Ino, Inc. v. City of Bellevue, 132 Wn.2d 103, 115, 937 P.2d 154, 943 P.2d 1358 (1997). This does not mean that the state provision always affords greater protection than the First Amendment, however. Id.",
"For example, no greater protection is afforded to obscenity, speech in nonpublic forums, commercial speech, and false or defamatory statements. Id. at 116 (citing State v. Reece, 110 Wn.2d 766, 778, 757 P.2d 947 (1988); City of Seattle v. Huff, 111 Wn.2d 923, 926, 767 P.2d 572 (1989); Nat’l Fed’n of Retired Persons v. Ins. Comm’r, 120 Wn.2d 101, 119, 838 P.2d 680 (1992); Richmond v. Thompson, 130 Wn.2d 368, 382, 922 P.2d 1343 (1996)). ¶19 In some contexts, however, greater protection is afforded under article I, section 5. We have recognized, for example, that when applying a time, place, and manner test to a restriction on speech in a public forum, the restriction can be imposed consistent with article I, section 5 only upon the showing of a “compelling state interest,” rather than the “substantial governmental interest” that is sufficient under *801the First Amendment. Bering v. SHARE, 106 Wn.2d 212, 234, 721 P.2d 918 (1986). In addition, unlike the First Amendment, article I, section 5 categorically prohibits prior restraints on constitutionally protected speech. Voters Educ. Comm. v. Pub. Disclosure Comm’n, 161 Wn.2d 470, 493-94, 166 P.3d 1174 (2007).",
"¶20 The plaintiffs say that article I, section 5 is also more protective in cases involving overbreadth, but the cases they cite do not support this conclusion. Rather, the cited cases state the principle that article I, section 5 is less tolerant than the First Amendment of overbroad restrictions if they rise to the level of a prior restraint. O’Day v. King County, 109 Wn.2d 796, 803-04, 749 P.2d 142 (1988); Ino Ino, 132 Wn.2d at 117; cf. Voters Educ. Comm., 161 Wn.2d at 494 (also cited by the plaintiffs, discussing whether challenged laws rose to the level of a prior restraint as a result of vagueness). ¶21 Moreover, although the plaintiffs assert there is greater protection under the state provision, in the broadest sense, they have not offered any explanation of why, absent a level akin to a prior restraint, overbroad provisions should be treated any differently under article I, section 5 than under the First Amendment, or what independent analysis should apply to their claim of a content-based restriction. In fact, many of the cases upon which the plaintiffs rely were decided under the First Amendment and the plaintiffs particularly urge that we follow the analysis in Mainstream Loudoun v. Board of Trustees, 2 F. Supp.",
"2d 783, 795 (E.D. Va. 1998) (Mainstream Loudoun I) and Mainstream Loudoun v. Board of Trustees, 24 F. Supp. 2d 552 (E.D. Va. 1998) (Mainstream Loudoun II), decided under a federal constitutional analysis. Accordingly, in deciding whether the filtering policy suffers from overbreadth under article I, section 5, our analytical approach aligns with the approach taken under the First Amendment. ¶22 The first question here is whether, as the plaintiffs claim, NCRL’s filtering policy acts as a prior restraint *802in violation of article I, section 5. A prior restraint seeks to prohibit future speech rather than to punish speech that has occurred.",
"Voters Educ. Comm., 161 Wn.2d at 494. A prior restraint is an official restriction imposed on speech or another form of expression in advance of its occurrence. Sanders v. City of Seattle, 160 Wn.2d 198, 224, 156 P.3d 874 (2007); see Soundgarden v. Eikenberry, 123 Wn.2d 750, 764, 871 P.2d 1050 (1994). ¶23 NCRL maintains that its policy is neither a prior restraint nor its functional equivalent. Rather, it is an operational rule that applies in the same way as any other collection decision by NCRL managers. ¶24 We first note that the plaintiffs’ complaint is that they are prevented from accessing the speech of others in violation of article I, section 5. The First Amendment protects the right to receive information and ideas. Kleindienst v. Mandel, 408 U.S. 753, 762-63, 92 S. Ct. 2576, 33 L. Ed.",
"2d 683 (1972); see Voters Educ. Comm., 161 Wn.2d at 483 (acknowledging that under the First Amendment, free speech includes the fundamental counterpart of the right to receive information). We believe that a comparable right exists under article I, section 5. ¶25 There are very few appellate cases involving Internet filters and free speech issues, and no cases decided under article I, section 5. However, A.L.A. involved First Amendment challenges to CIPA. Among other things, the United States Supreme Court considered whether the Internet filtering required by CIPA constitutes a prior restraint. The plurality in A.L.A. termed it a mistake to extend “prior restraint to the context of public libraries’ collection decisions. A library’s decision to use filtering software is a collection decision, not a restraint on private speech.” A.L.A., 539 U.S. at 209 n.4.",
"We similarly agree that NCRL’s filtering policy does not constitute a prior restraint within the meaning of article I, section 5. ¶26 As the plurality in A.L.A. explained, a public library selects what it will collect and make available to its patrons. “Public libraries pursue the worthy missions of *803facilitating learning and cultural enrichment.” Id. at 203. A public library “provides Internet access . . . for the same reasons it offers other library resources: to facilitate research, learning, and recreational pursuits by furnishing materials of requisite and appropriate quality.” Id. at 206. “To fulfill their traditional missions, public libraries must have broad discretion to decide what material to provide to their patrons.” Id. at 204. ¶27 This discretion is not unlimited. In Board of Education v. Pico, 457 U.S. 853, 102 S. Ct. 2799, 73 L. Ed.",
"2d 435 (1982) (plurality opinion), an action seeking injunctive relief was brought with regard to removal of certain books from school libraries.3 The plurality took great pains to point out that the action did “not involve the acquisition of books,” saying that “nothing in our decision today affects in any way the discretion of a local school board to choose books to add to the libraries of their schools.” Id. at 862, 871. The plurality added, however, that the “discretion may not be exercised in a narrowly partisan or political manner.” Id. at 870. ¶28 We agree with the observations made in A.L.A. and conclude that a library’s decision about what materials to make available to its patrons does not constitute a prior restraint. NCRL’s filtering policy does not prevent any speech and in particular it does not ban or attempt to ban online speech before it occurs.",
"Rather, it is a standard for making determinations about what will be included in the collection available to NCRL’s patrons. ¶29 The plaintiffs maintain, however, that NCRL’s policy is overbroad and in fact is so overbroad that it rises to the level of a prior restraint that violates article I, section 5 because it restricts access to a substantial amount of pro*804tected speech. There are necessarily two inquiries that must be made: whether the policy suffers from overbreadth, and, if so, whether the overbreadth rises to the level of a prior restraint. As explained, only in the latter instance is article I, section 5 “less tolerant” than the First Amendment. As also explained, our article I, section 5 analysis of overbreadth follows the analysis under the First Amendment. ¶30 In general, a law is unconstitutionally over-broad if constitutionally protected free speech activities are swept within its prohibitions. State v. Johnston, 156 Wn.2d 355, 127 P.3d 707 (2006).",
"The plaintiffs contend that an overbreadth problem results from categorizations that fail to track constitutional requirements, filtering errors, and NCRL’s policy of blocking entire web sites when a single page is deemed harmful to minors. ¶31 Initially, we agree with NCRL that the Mainstream Loudoun cases are of little value in light of the Court’s decision in A.L.A., contrary to the plaintiffs’ heavy reliance on these cases. For example, the court in the Mainstream Loudoun cases applied a forum analysis and concluded that a library is a limited public forum, determined that strict scrutiny applies in deciding whether Internet filtering is constitutional, and concluded that the closest analogy to the decision to filter Internet content is removal of library materials rather than selection of library materials as additions to the library’s collection. Mainstream Loudoun I, 2 F. Supp. 2d at 793-94, 795; Mainstream Loudoun II, 24 F. Supp. 2d at 561-63. ¶32 However, all of these conclusions are at odds with the decision in A.L.A. A majority of the Court in A.L.A.",
"agreed that public forum analysis is inappropriate in determining whether a library can constitutionally filter certain Internet content. A.L.A., 539 U.S. at 205-07 (plurality) (concluding that public forum analysis is not applicable to Internet access in a public library); id. at 215-16 (Breyer, J., concurring) (agreeing with plurality on this point). A ma*805jority of the Court also agreed that strict scrutiny does not apply. The plurality stated that [a] library’s need to exercise judgment in making collection decisions depends on its traditional role in identifying suitable and worthwhile material; it is no less entitled to play that role when it collects material from the Internet than when it collects material from any other source. Most libraries already exclude pornography from their print collections because they deem it inappropriate for inclusion. We do not subject these decisions to heightened scrutiny; it would make little sense to treat libraries’ judgments to block online pornography any differently, when these judgments are made for just the same reason. Id. at 208.",
"In Justice Breyer’s concurrence he agreed that strict scrutiny is too rigid a test to apply in this context. Id. at 217 (Breyer, J., concurring).4 ¶33 Finally, a majority of the Court acknowledged the discretion that libraries exercise when selecting material and treated filtering policies as pertaining to collection of materials, not removal of materials after once having been selected. In his concurrence, Justice Breyer observed that “libraries often properly engage in the selection of materials, either as a matter of necessity (i.e., due to the scarcity of resources) or by design (i.e., in accordance with collection development policies).” Id.",
"(Breyer, J., concurring). Significantly, the plurality observed that it is not constitutionally relevant that when selecting books a library makes an affirmative decision to acquire them for its collection but that when filtering the Internet a library does not review every web site that it makes available. “A library’s need to exercise judgment in making collection decisions depends on its traditional role in identifying suitable and worthwhile material; it is no less entitled to play that role when it collects material from the Internet than when it collects material from any other source.” Id. at *806208. Because of the sheer quantity of material on the Internet and the rapidity with which it changes, libraries cannot possibly review the material item by item to determine what should be included and what should not. Id. The only way it could make such determinations would be to exclude “an enormous amount of valuable information that it lacks the capacity to review.",
"Given that tradeoff, it is entirely reasonable for public libraries to reject that approach and instead exclude certain categories of content, without making individualized judgments that everything they do make available has requisite and appropriate quality.” Id. ¶34 Thus, NCRL’s filtering policy, when applied, is not comparable to removal of items from NCRL’s collection, but rather acquisition of materials to add to its collection. NCRL has made the only kind of realistic choice of materials that is possible without unduly and unnecessarily curtailing the information available to a bare trickle — or a few drops — of the vast river of information available on the Internet. ¶35 Because so much of Mainstream Loudoun is no longer sound, we find it of little assistance in addressing the certified question before us. ¶36 The foundations of the plaintiffs’ overbreadth challenge are the presumption that a public library must make accessible all constitutional speech on the Internet and the contention that a policy that applies so broadly that it excludes any constitutionally protected speech violates article I, section 5.",
"But a public library has no obligation to make available any and all constitutionally protected material, and the goal of libraries has never, as the plurality in A.L.A. noted, been to provide “ ‘universal coverage.’ ’’A.L.A., 539 U.S. at 204 (quoting Am. Library Ass’n v. United States, 201 F. Supp. 2d 401, 421 (E.D. Pa. 2002)). Rather, “ ‘[t]he librarian’s responsibility ... is to separate out the gold from the garbage, not to preserve everything.’ ” Id. (quoting William A. Katz, Collection Development: The Selection of Materials for Libraries 6 (1980)). “ ‘It is the aim of *807the selector to give the public, not everything it wants, but the best that it will read or use to advantage.’ ” Id. (quoting Francis K.W.",
"Drury, Book Selection xi (1930)). ¶37 The principle that a library has no obligation to provide universal coverage of all constitutionally protected speech applies to Internet access just as it does to the printed word in books, periodicals, and other material physically collected and made available to patrons. “The Internet is simply another method for making information available in a . . . library’ ” and “is ‘no more than a technological extension of the book stack.’ ” A.L.A., 539 U.S. at 207 (quoting S. Rep. No. 106-141, at ¶7 (1999)). Just as it is entitled to exercise its acknowledged discretion in amassing a collection of printed materials physically placed on the shelves in order to carry out its mission, it is entitled to exercise discretion when it comes to Internet access involving its facilities and equipment. ¶38 The discretion that public libraries enjoy in selecting materials for their collections is not merely a function of what a library can afford in terms of costs and space, contrary to the position taken in Mainstream Loudoun I, 2 F. Supp. 2d at 795. Even if one were to assume a public library with unlimited funds and space, that library would be under no obligation to make all constitutionally protected printed materials available.",
"For example, regardless of its resources a library need not place pornographic materials on its shelves, although such materials are constitutionally protected. It need not place children’s comic books on its shelves, although these, too, are constitutionally protected. As another example, if a private collector offered a library a collection of books at an attractive set price for the entire collection and the library purchased the collection, it would not have to include all of the books in its own collection and would not have to make them all available to its patrons. ¶39 In any event, it is simply not true that there are no costs or physical restrictions attendant to access to the Internet via a public library.",
"Although generally purchase *808of Internet access includes all of the Internet’s free sites, making the Internet accessible to patrons requires devoted library space and frequently scarce computer terminals and resources. ¶40 Given the traditional and necessary discretion lodged in public libraries with respect to acquisition of materials, we do not agree that the overbreadth doctrine applies to a public library’s decisions about what materials to place in its collections. For example, if a public library decides, in accord with its written policies, not to acquire pornography for its collection, can it be said that its policies are unconstitutionally overbroad? To the contrary, exclusion of this type of constitutionally protected speech is within the discretion that libraries traditionally enjoy. We do not believe there is any good reason to treat the material available on the Internet any differently. ¶41 In short, a library simply does not have to include all constitutionally protected materials in its collection and it follows that no overbreadth problem necessarily results under article I, section 5 as a result of a public library’s Internet filtering policy under which access to certain categories of constitutionally protected materials is denied.",
"¶42 Next, turning to the plaintiffs’ overbreadth claim based on filtering errors, NCRL concedes that its filter on some occasions incorrectly includes inoffensive web sites in the prohibited categories, a circumstance known as “overblocking.” This means that the filter blocks web sites that do not actually fall within the categories that the filter is intended to block. The parties make vastly different statements about the degree of overblocking. The plaintiffs claim that their expert’s study shows that the filter has an error rate of 11 and 23.6 percent. The plaintiffs’ expert determined that of 100,000 randomly selected .com domains, FortiGuard blocked 536 web pages as pornography or adult materials and 64 were blocked in error, and the expert concluded this resulted in an error rate of 11.9 percent. Of 100,000 .org domains, 207 web pages were *809blocked as pornography or adult materials and 49 were blocked in error, for an error rate of 23.6 percent.",
"¶43 On the other hand, NCRL’s expert conducted a study of URLs (uniform resource locators) actually visited or requested during a week in August 2007. Of 60,000 URLs, 2,180 were blocked and of these, 289 complete web pages were blocked, with 20 blocked in error; 1406 “helper images” (“little images that are parts of web pages”) were blocked, with 744 blocked in error; 194 “other images” were blocked, with 24 blocked in error; and 110 URLs were not “ratable,” i.e., the expert could not determine whether they were correctly blocked. Order at 15. ¶44 Regardless of the disparities, as the plurality in A.L.A. concluded, even if any constitutional issue is implicated by overblocking, it is “dispelled” if the material that is erroneously blocked is easily unblocked upon the request of an adult. A.L.A., 539 U.S. at 209. Like the plurality in A.L.A., we conclude under article I, section 5, that if material that is blocked when it does not fall within the categories that are supposed to be blocked may be unblocked upon request, no overbreadth problem would exist. Because there would be no unconstitutional overbreadth, it follows there would be no overbreadth rising to the level of a prior restraint. ¶45 Here, if a library patron wants to access a web site or page that has been blocked by FortiGuard, he or she may send an e-mail to NCRL administrators asking for a manual override of the block.",
"The site or page is reviewed to ascertain whether allowing access would accord with NCRL’s mission, its policy, and CIPA requirements. If not, the request is denied. If the request is approved, access will be allowed on all of NCRL’s public access computers. ¶46 Between October 1, 2007, and February 20, 2008, NCRL received 92 requests to unblock access, of which 90 were automated. NCRL responded to 8 within an hour, to another 19 within the same day, to another 29 the next day, to another 20 within three days, and to another 5 more than three days after the request. There is no evidence about the *810remaining 11 requests.",
"Since October 1, 2007, NCRL unblocked sites in response to 12 requests. Among other things, sites that were erroneously blocked as “Pornography,” “Gambling,” and “Malware” were unblocked upon request. ¶47 Because adults can request and obtain unblocking of erroneously blocked sites, we conclude that on this record no overbreadth problem exists under article I, section 5 as a result of overblocking. ¶48 The plaintiffs next contend that an overbreadth problem results when entire web sites are blocked rather than just the specific pages that contain material within the prohibited categories. This claim is similar to the over-blocking claim, i.e., a claim that material is blocked that should not be blocked because it does not fall within a prohibited category.",
"It differs in that at least a part of what is on the blocked site falls within one of the categories that the filter is designed to block. ¶49 Again, the crux of the issue is NCRL’s discretion regarding what will be added to its collection. Given that a public library simply has no obligation to include all types of constitutionally protected printed material in its collection, and is not, for example, required to include a book with three pages of pornography and three hundred pages that are not pornographic, it does not have to include access to an Internet site that contains some matter falling within a prohibited category even if other matter on the site does not.",
"We do not believe an overbreadth problem occurs under article I, section 5 when the filter blocks sites containing matter falling within one of the prohibited categories, even if other material on the site does not. ¶50 Finally, the plaintiffs contend that the filtering policy is an overbroad restriction on adult speech because, they assert, no person can access on-line material that NCRL decides is inappropriate for a child. The plaintiffs rely on Butler v. Michigan, 352 U.S. 380, 382-83, 77 S. Ct. 524, 1 L. Ed.",
"2d 412 (1957), where the United States Supreme Court overturned a conviction under a law criminalizing the *811distribution of literature that could have a “potentially deleterious influence upon youth.” The Court stated that the government may not “reduce the adult population ... to reading only what is fit for children.” Id. at 383. In Adams v. Hinkle, 51 Wn.2d 763, 779-80, 322 P.2d 844 (1958), our court followed Butler and invalidated a statute prohibiting the sale of comic books in part because the statute limited adults’ access to this type of speech. ¶51 Although the plaintiffs would make it appear that NCRL’s filtering policy presents the same kind of restriction as condemned in these cases, there are significant differences.",
"Most importantly, just as a public library has discretion to make content-based decisions about which magazines and books to include in its collection, it has discretion to make decisions about Internet content. A public library can decide that it will not include pornography and other adult materials in its collection in accord with its mission and policies and, as explained, no unconstitutionality necessarily results. It can make the same choices about Internet access. ¶52 We do not believe this case presents circumstances analogous to those in Butler and Adams. Rather, it concerns a public library’s collection policies. A public library does not come readily to mind as having been a source of pornography and other adult material before the advent of the Internet (and the current dispute), and should not be forced to become one just because it makes Internet access available to its patrons. As the plurality in A.L.A. observed, “Most libraries already exclude pornography from their print collections because they deem it inappropriate for inclusion.” A.L.A., 539 U.S. at 208.",
"It makes “little sense” to treat libraries’ decisions to block access to “online pornography any differently, when these judgments are made for just the same reason.” Id. ¶53 We conclude that no overbreadth in violation of article I, section 5 occurs as a result of NCRL’s choice to block Internet access to pornography, adult materials, and nudity/risqué materials. *812Content-based restrictions ¶54 The plaintiffs also argue that NCRL’s filtering policy constitutes an unconstitutional content-based restriction under article I, section 5. According to the plaintiffs, any content-based restriction is presumptively invalid and ordinarily upheld only if it is meets the strict scrutiny standard of review.",
"¶55 Contrary to the plaintiffs’ apparent position, not all content-based standards are presumptively invalid or reviewed under a strict scrutiny standard. The plurality in A.L.A. explained that the Court held in “analogous contexts that the Government has broad discretion to make content-based judgments in deciding what private speech to make available to the public.” Id. at 204. In National Endowment for Arts v. Finley, 524 U.S. 569, 118 S. Ct. 2168, 141 L. Ed. 2d 500 (1998), the Court upheld an arts funding program requiring the National Endowment for the Arts (NEA) to make funding decisions using content-based criteria. The Court observed that “[a]ny content-based considerations that may be taken into account in the grant-making process are a consequence of the nature of arts funding.” Id. at 585.",
"It also said that “[t]he very assumption of the NEA is that grants will be awarded according to the artistic worth of competing applicants and absolute neutrality is simply inconceivable.” Id. (internal quotation marks and cites omitted); see also Ark. Educ. Television Comm’n v. Forbes, 523 U.S. 666, 672-73, 118 S. Ct. 1633, 140 L. Ed. 2d 875 (1998) (public television’s editorial decisions regarding private speech presented to viewers). These cases demonstrate, contrary to the plaintiffs’ argument, that not all content-based distinctions must be subjected to strict scrutiny. ¶56 A public library necessarily considers content when making collection decisions and must do so to fulfill its mission; content-based considerations in selecting materials are part and parcel of the traditional role served by a public library.",
"For this reason, the Court in A.L.A. *813declined to apply a public forum analysis to assess CIPA’s filtering requirements and declined to apply strict scrutiny. We agree that under article I, section 5 a public forum analysis does not apply in this context. ¶57 Generally, when a free speech challenge arises in regard to activity on property owned and controlled by the government, a court will engage in a “forum analysis” to determine the level of judicial scrutiny that applies. We have adopted the federal analysis for determining whether public property is a public forum, and federal case law is persuasive, though not binding. Sanders, 160 Wn.2d at 208. Internet access in a public library is not a traditional public forum.",
"As the plurality in A.L.A. explained, this resource did not exist until recently and has not “ ‘immemorially been held in trust for the use of the public, and, time out of mind, . . . been used for purposes of assembly, communication of thoughts between citizens and discussing public questions.’ ” A.L.A., 539 U.S. at 205 (alteration in original) (quoting Int'l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 679, 112 S. Ct. 2701, 120 L. Ed. 2d 541 (1992)). Traditional forum analysis does not extend beyond its historical confines. Id. at 206; Sanders, 160 Wn.2d at 209 (applying test for traditional public forum under article I, section 5).",
"¶58 In addition, a public forum may exist where the government makes an affirmative decision to open up its property for use as a public forum. A.L.A., 539 U.S. at 206 (citing Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 802, 105 S. Ct. 3429, 87 L. Ed. 2d 567 (1985)). So long as the government holds government property open to the public as a place for expressive activity, the same analysis applies as applies to a traditional public forum.",
"Sanders, 160 Wn.2d at 210. The Court in A.L.A. concluded that Internet access in a public library is not a designated public forum because “[a] public library does not acquire Internet terminals in order to create a public forum for Web publishers to express themselves, any more than it collects books in order to provide a public forum for the authors of *814the books to speak.” A.L.A., 539 U.S. at 206. Rather than providing Internet access to encourage private speakers’ diversities of view, it offers Internet access for the same reasons that other library resources are offered: “to facilitate research, learning, and recreational pursuits by furnishing materials of requisite and appropriate quality.” Id.",
"¶59 The United States Court of Appeals for the Third and Sixth Circuits have held, however, that a library is a limited public forum insofar as the library must permit the public to exercise the right to receive information and ideas consistent with the nature of the library as a place for reading, writing, and quiet contemplation. See Neinast v. Bd.",
"of Trs., 346 F.3d 585, 591 (6th Cir. 2003); Kreimer v. Bureau of Police, 958 F.2d 1242, 1259 (3d Cir. 1992). But not all aspects of a library are a limited public forum, the Sixth Circuit explained in Neinast. That court held that the high level of scrutiny applicable to a public forum does not apply to a library regulation requiring a patron to wear shoes because the regulation did not directly impact the right to receive information. Neinast, 346 F.3d at 591-92. ¶60 The premise that not all aspects of a particular government property are treated the same under a forum analysis is also exemplified by Illinois Dunesland Preservation Society v. Illinois Department of Natural Resources, 587 F. Supp. 2d 1012 (E.D. Ill. 2008), aff’d on other grounds, 584 F.3d 719 (7th Cir. 2009).",
"There, the court held that although a state park itself was unquestionably a traditional public forum, a display rack in the park was not a public forum because it was created to facilitate the recreational pursuit of park visitors and provide useful information for them — in essence a “mini-library of resources for the public” with respect to which the department of natural resources made editorial judgments about what to include. Id. at 1019-20, 1018 n.6;5 see also Pleasant Grove City v. Summum, 555 U.S. 460, 129 S. Ct. 1125, 1137-38, 172 L. Ed. *8152d 853 (2009) (concluding that although parks are a traditional public forum, monuments placed in them are not subject to forum analysis). ¶61 The limited public forum analysis in Neinast and Kreimer relate to the patrons’ right to receive information, which is effectively equated to the right to express oneself in a public forum. But even assuming the right to receive information implicates forum analysis as the Third and Sixth Circuits concluded, and that this right exists with respect to a public library, it would still exist only with respect to the materials that are actually in a library’s collection.",
"A patron would not have a right to receive information in a public library if that information was not part of the library’s collection. And a patron does not have the constitutional right to force a public library to acquire a particular book or type of book. Analogously, this right would not exist with respect to Internet sites that have not been added to a library’s collection. Accordingly, even under the limited public forum analysis addressed in Neinast and Kreimer, collection decisions about Internet materials are not an aspect of a public library subject to public forum analysis. ¶62 For purposes of article I, section 5, we agree with the Court in A.L.A. that Internet access in a public library — in terms of what may be offered and what may be blocked by Internet filtering — is not subject to public forum analysis and the strict scrutiny that accompanies such a classification, whether as a traditional, designated, or limited public forum. ¶63 Given the traditional and historical role of a public library, and the discretion necessarily entailed to make content-based judgments about what to include in its collection, we conclude that article I, section 5 is not violated by a public library’s Internet filtering policy if it is reasonable when measured in light of the library’s mission and policies, and is viewpoint neutral. ¶64 It appears to us that NCRL’s filtering policy is reasonable and accords with its mission and these policies *816and is viewpoint neutral.",
"It appears that no article I, section 5 content-based violation exists in this case. NCRL’s essential mission is to promote reading and lifelong learning. As NCRL maintains, it is reasonable to impose restrictions on Internet access in order to maintain an environment that is conducive to study and contemplative thought. ¶65 NCRL points out that more than half of its branches serve as the de facto school library for local school districts. Article IX, section 1 establishes education as the State’s highest priority. While the Internet provides opportunities for educational enrichment, exposure to unfiltered Internet access on demand by adults in these branches is not suited to the education of children. NCRL has documented instances of sexually explicit content displayed on its computers and printed from them despite the FortiGuard filtering, which NCRL says can be expected to increase if the filter can be disabled upon request. ¶66 Children are not the only patrons who might be adversely affected by unlimited Internet access in the public libraries.",
"Even adults may find such exposure ill-suited to their use and enjoyment of a public library as a place for reading and contemplative thought. As NCRL says, limited restrictions on Internet access may help to minimize circumstances that staff and other patrons, including adults, may find threatening, hostile, or disruptive. ¶67 NCRL maintains that patrons have practical alternatives when access to a particular kind of on-line content is blocked, including access to image databases through NCRL’s home page and searches using Google’s main search engine at Google.com, which is not blocked.",
"NCRL also points out, for example, that it has unblocked casino-related sites at the request of patrons with interests other than illegal wagering.6 NCRL also points out that it has a large number of print volumes available and a mail order program that is also available for obtaining some material that may be blocked under the filtering policy. *817¶68 The filtering policy appears to us, as NCRL contends, to be a reasonable measure that sets minimal restrictions on Internet access so that the Internet is used by all of NCRL’s patrons in a way that advances the duty of education and fulfills NCRL’s mission and traditional role. ¶69 The filtering policy is neutral in application, applying to all patrons alike. It is viewpoint neutral because it makes no distinctions based on the perspective of the speaker. See generally Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 804, 104 S. Ct. 2118, 80 L. Ed. 2d 772 (1984) (describing the viewpoint neutrality requirement as forbidding the government from regulating speech in ways that favor some viewpoints or ideas at the expense of others). ¶70 While we would conclude, on this record, that the filtering policy does not violate article I, section 5, we recognize that applying this constitutional provision according to the legal principles we delineate in this opinion to the facts of this case is a matter for the federal court.",
"CONCLUSION ¶71 A public library has traditionally and historically enjoyed broad discretion to select materials to add to its collection of printed materials for its patrons’ use. We conclude that the same discretion must be afforded a public library to choose what materials from millions of Internet sites it will add to its collection and make available to its patrons. A public library has never been required to include all constitutionally protected speech in its collection and has traditionally had the authority, for example, to legitimately decline to include adult-oriented material such as pornography in its collection. This same discretion continues to exist with respect to Internet materials. ¶72 The plaintiffs’ claims of overbreadth, prior restraint, and that NCRL’s Internet filtering policy is an impermissible content-based restriction all fail to account for this traditional and long-standing discretion to select what *818materials will be included in a public library’s collection. We conclude that on the factual record presented to us in the district court’s order on certification, the filtering policy suffers from none of the constitutional infirmities under article I, section 5 claimed by the plaintiffs. However, we acknowledge that the federal court will apply the legal guidelines we set forth in this opinion to the facts of the case.",
"¶73 In response to the question certified by the United States District Court for the Eastern District of Washington, we answer that in accord with our analysis in this opinion a public library may, consistent with article I, section 5 of the Washington State Constitution, filter Internet access for all patrons without disabling the filter to allow access to web sites containing constitutionally protected speech upon the request of an adult library patron. C. Johnson, Alexander, Owens, and Fairhurst, JJ., concur. The defendant, North Central Regional Library District (NCRL), suggests that the question is better understood if read to mean: Whether a public library, consistent with Article I, § 5 of the Washington Constitution, may filter Internet access for all patrons without disabling the filter to allow access to Web sites containing constitutionally-protected speech upon the request of an adult library patron.",
"We agree that the added language better conveys the issue in the case because NCRL has no ability (or authority) to disable the web sites themselves. Rather, the issue concerns the patrons’ access to web sites via NCRL’s computer terminals. With this clarification, we address the certified question. State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986). The books had been characterized in a press release as “ ‘anti-American, anti-Christian, and anti-Sem[i]tic, and just plain filthy.’ ’’Pico, 457 U.S. at 857. The plurality concluded that “local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books and seek their removal to ‘prescribe what shall be orthodox.’ ” Id. at 872 (quoting W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 642, 63 S. Ct. 1178, 87 L. Ed. 2d 1628 (1943)). Justice Breyer would have applied a heightened level of scrutiny, but not strict scrutiny. A.L.A., 539 U.S. at 216-17 (Breyer, J., concurring). The Seventh Circuit agreed that the government did not have to make the display rack available to exhibit any and all pamphlets that interest groups wanted to place in it. Ill. Dunesland Pres. Soc’y, 584 F.3d at 725.",
"NCRL says that it has declined to unblock freelotto.com, which hosts gambling, but has allowed access to oregonlotto.com, which does not."
] | https://www.courtlistener.com/api/rest/v3/opinions/4714363/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Case 6:17-cv-06788-FPG-MJP Document 150 Filed 01/13/21 Page 1 of 1
January 13, 2021 John D. Esterhay JEsterhay@perkinscoie.com D. +1.858.720.5758 F. +1.858.720.5858
VIA CM/ECF
Honorable Mark W. Pedersen Western District of New York Kenneth B. Keating Federal Building 100 State Street, Room 2330 Rochester, New York 14614
Re: ValveTech, Inc. v. Aerojet Rocketdyne, Inc. Case No.: 6:17-cv-06788-FPG-MWP
Dear Magistrate Judge Pedersen:
Pursuant to the Court’s procedures for raising discovery disputes, and the December 18, 2020 Amended Scheduling Order which set both a February 12, 2021 deadline for close of fact discovery and a January 13, 2021 deadline for filing motions to compel discovery (Dkt. No. 149 ¶ 3), Plaintiff ValveTech submits this letter to inform the Court there are outstanding discovery issues that have not yet been resolved, including: (1) Defendant Aerojet has not yet provided any deposition dates for depositions noticed by ValveTech, including those compelled by the Court’s October 16, 2020 Decision and Order (Dkt. No. 139); (2) Defendant Aerojet has not yet completed its document discovery production compelled by that order; and (3) ValveTech has timely served additional discovery to which Aerojet has not yet made an objection.
ValveTech hopes that these issues will be resolved through continuing discussions between counsel, but files this letter motion to both inform the Court of these issues, given the rapidly approaching close of fact discovery, and also to comply with the Court’s deadline for motions to compel. ValveTech is willing and available to discuss any of these issues further with the Court if the Court requests, otherwise ValveTech would prefer to raise these issues further only after it is apparent no further negotiation with Aerojet is possible.
Respectfully submitted,
John D. Esterhay
JDE:ar
cc: Counsel of record (via CM/ECF) | 2021-01-13 | [
"Case 6:17-cv-06788-FPG-MJP Document 150 Filed 01/13/21 Page 1 of 1 January 13, 2021 John D. Esterhay JEsterhay@perkinscoie.com D. +1.858.720.5758 F. +1.858.720.5858 VIA CM/ECF Honorable Mark W. Pedersen Western District of New York Kenneth B. Keating Federal Building 100 State Street, Room 2330 Rochester, New York 14614 Re: ValveTech, Inc. v. Aerojet Rocketdyne, Inc. Case No. : 6:17-cv-06788-FPG-MWP Dear Magistrate Judge Pedersen: Pursuant to the Court’s procedures for raising discovery disputes, and the December 18, 2020 Amended Scheduling Order which set both a February 12, 2021 deadline for close of fact discovery and a January 13, 2021 deadline for filing motions to compel discovery (Dkt. No. 149 ¶ 3), Plaintiff ValveTech submits this letter to inform the Court there are outstanding discovery issues that have not yet been resolved, including: (1) Defendant Aerojet has not yet provided any deposition dates for depositions noticed by ValveTech, including those compelled by the Court’s October 16, 2020 Decision and Order (Dkt. No. 139); (2) Defendant Aerojet has not yet completed its document discovery production compelled by that order; and (3) ValveTech has timely served additional discovery to which Aerojet has not yet made an objection. ValveTech hopes that these issues will be resolved through continuing discussions between counsel, but files this letter motion to both inform the Court of these issues, given the rapidly approaching close of fact discovery, and also to comply with the Court’s deadline for motions to compel.",
"ValveTech is willing and available to discuss any of these issues further with the Court if the Court requests, otherwise ValveTech would prefer to raise these issues further only after it is apparent no further negotiation with Aerojet is possible. Respectfully submitted, John D. Esterhay JDE:ar cc: Counsel of record (via CM/ECF)"
] | https://www.courtlistener.com/api/rest/v3/recap-documents/157932327/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN
GARRETT PHIPPS,
Plaintiff,
V. Case No. 3:18-cv-1019-JDP
NANCY A BERRYHILL, Acting Commissioner of Social Security,
Defendant.
ORDER ON THE PARTIES' JOINT MOTION FOR REMAND FOR FURTHER PROCEEDINGS PURSUANT TO SENTENCE FOUR OF 42 U.S.C. § 405(g)
Pursuant to the power of this Court to enter a judgment affirming, modifying or
reversing the Commissioner's decision with remand in Social Security actions under
sentence four of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), and in light
of the parties' joint motion to remand this action, this Court now, upon substantive
review, hereby enters a judgment under sentence four of 42 U.S.C. § 405(g) reversing
the Commissioner's decision with a remand of the cause to the Commissioner according
to the following terms. See Shalala v. Schaefer, 509 U.S. 292, 296 (1993); Melkonyan v .
Sullivan, 501 U.S. 89, 97-98 (1991).
The parties agree that, on remand, an Administrative Law Judge (ALJ) will hold
a new administrative hearing and issue a new decision. The ALJ will proceed through
the sequential disability evaluation process as appropriate, reconsider Plaintiff's subjective complaints, reconsider the residual functional capacity finding, and issue a
new decision. If warranted, the ALJ will obtain supplemental vocational expert
testimony.
SO ORDERED this 1-'f J)/ day of ,;{-1'/1/1,.. 2019.
Honora)ames D. Petersen United States District Judge | 2019-04-24 | [
"IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN GARRETT PHIPPS, Plaintiff, V. Case No. 3:18-cv-1019-JDP NANCY A BERRYHILL, Acting Commissioner of Social Security, Defendant. ORDER ON THE PARTIES' JOINT MOTION FOR REMAND FOR FURTHER PROCEEDINGS PURSUANT TO SENTENCE FOUR OF 42 U.S.C. § 405(g) Pursuant to the power of this Court to enter a judgment affirming, modifying or reversing the Commissioner's decision with remand in Social Security actions under sentence four of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), and in light of the parties' joint motion to remand this action, this Court now, upon substantive review, hereby enters a judgment under sentence four of 42 U.S.C.",
"§ 405(g) reversing the Commissioner's decision with a remand of the cause to the Commissioner according to the following terms. See Shalala v. Schaefer, 509 U.S. 292, 296 (1993); Melkonyan v . Sullivan, 501 U.S. 89, 97-98 (1991). The parties agree that, on remand, an Administrative Law Judge (ALJ) will hold a new administrative hearing and issue a new decision. The ALJ will proceed through the sequential disability evaluation process as appropriate, reconsider Plaintiff's subjective complaints, reconsider the residual functional capacity finding, and issue a new decision. If warranted, the ALJ will obtain supplemental vocational expert testimony. SO ORDERED this 1-'f J)/ day of ,;{-1'/1/1,.. 2019. Honora)ames D. Petersen United States District Judge"
] | https://www.courtlistener.com/api/rest/v3/recap-documents/67465581/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
781 F.2d 903 *U.S.v.Rorie 85-8495 United States Court of Appeals,Eleventh Circuit. 12/30/85
1 N.D.Ga.
AFFIRMED
2 ---------------
* Fed.R.App.P. 34(a); 11th Cir. R. 23. | 08-23-2011 | [
"781 F.2d 903 *U.S.v.Rorie 85-8495 United States Court of Appeals,Eleventh Circuit. 12/30/85 1 N.D.Ga. AFFIRMED 2 --------------- * Fed.R.App.P. 34(a); 11th Cir. R. 23."
] | https://www.courtlistener.com/api/rest/v3/opinions/463425/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
STATE OF MICHIGAN
COURT OF APPEALS
SPECTRUM HEALTH HOSPITALS, MARY UNPUBLISHED FREE BED REHABILITATION HOSPITAL, and December 11, 2018 MARY FREE BED MEDICAL GROUP
Plaintiffs-Appellants,
v No. 341353 Kent Circuit Court GEICO GENERAL INSURANCE COMPANY LC No. 17-001462-NF and GEICO INDEMNITY COMPANY,
Defendants-Appellees.
Before: M. J. KELLY, P.J., and METER and O’BRIEN, JJ.
PER CURIAM.
Plaintiffs appeal as of right the trial court’s order granting defendants’ motion for summary disposition under MCR 2.116(C)(10). This case arises from a single-car accident in the early-morning hours of April 10, 2016. Before the accident, the driver—Armando Mendoza—was traveling at a high rate of speed and lost control, resulting in the crash. Mendoza was driving a Pontiac Grand Prix titled to Elizabeth Serba but used almost exclusively by Elizabeth’s daughter, Emily Serba. Mendoza suffered serious injuries in the accident, which were treated by plaintiffs. Defendants insured Mendoza’s parents at the time of the accident. Plaintiffs brought this suit against defendants to collect personal protection insurance (PIP) benefits on Mendoza’s behalf. After the Michigan Supreme Court decided Covenant Med Ctr, Inc v State Farm Mut Auto Ins Co, 500 Mich. 191; 895 NW2d 490 (2017), Mendoza assigned plaintiffs his rights to pursue payment of his medical bills from defendants. The trial court found that there was no question of material fact that, on the night of the accident, Mendoza knowingly took the Grand Prix without authorization, so MCL 500.3113(a) barred plaintiffs’ recovery. This appeal followed. We affirm.
Mendoza suffered a traumatic brain injury in the April 10, 2016 crash that affects his memory. Mendoza cannot remember any of the events leading up to his taking the Grand Prix and the ensuing crash. As a result, we can only discern the events that led to Mendoza’s taking the Grand Prix by piecing together the testimony of persons that interacted with Mendoza in the days and nights leading up to the accident.
-1- Lake Serba, Elizabeth’s son, testified that he and Mendoza were friends and that Mendoza was staying with him in the days leading up to the accident. Lake explained that Mendoza was in high school and on spring break, and Lake lived at home while taking college classes. Lake lived with Joseph Serba (his father), Elizabeth (his mother), Emily (his sister), Logan Serba (his brother), and Shane (his cousin). The Serba family kept four cars at their house: Joseph drove a 2012 Impala, Elizabeth drove a Dodge Caravan, Emily drove a 2005 Grand Prix, and Lake drove a 2001 Impala. Both Joseph and Elizabeth testified that it was customary for members of the family to ask one another for permission before using the other family member’s car.
According to Lake, in the days leading up to the accident, he allowed Mendoza to use his 2001 Impala to drive their friend, Vivian Bjork, home from Lake’s house. Bjork lived “about half a mile, maybe” from Lake. Lake testified that Mendoza asked Lake permission to use Lake’s car to drive her home, and Lake gave Mendoza permission. Lake was aware that, at that time, Mendoza did not have a driver’s license. Lake testified that Mendoza put gas in his car’s tank after taking Bjork home.
Bjork confirmed that Mendoza drove her home from the Serbas’ residence the day before the accident, but her testimony differed from Lake’s in many respects. According to Bjork, Lake was asleep and Mendoza told her that he would take her home. Mendoza used one of the Serbas’ vehicles and grabbed the keys from the counter. Bjork believed the car was the Grand Prix. Lake testified, however, that he was not aware of any time that Mendoza drove the Grand Prix before the accident, and that he never gave Mendoza permission to use any car other than the 2001 Impala. But Lake admitted that he never had a conversation with Mendoza about restricting Mendoza’s use of Lake’s family’s vehicles.
Lake also testified that the night before the accident—April 9, 2016—Lake and Mendoza went to Kalamazoo using Lake’s car, and Lake allowed Mendoza to drive back. After they got home, they went into the basement where Lake’s brother, Logan, sleeps. Lake went to bed while Mendoza stayed up playing video games with Logan. Lake did not have any further discussions with Mendoza. Logan recalled that, on the night before the accident, Mendoza and Lake returned to the Serbas’ home late at night, Lake went to bed, and Mendoza stayed up playing video games with Logan. According to Logan, later in the night, Mendoza asked him to drive “to pick up some girls from a party,” but Logan said no. About 15 minutes later, Mendoza again asked Logan to take him to pick up the girls, and Logan again said no. Logan then went to bed. According to Logan, Mendoza never asked permission to use one of the family’s cars.
Joseph testified that he was asleep at home before the accident, but Mendoza never asked him to use any of the family’s vehicles. According to Joseph, even if Mendoza had, the answer would have been no. Similarly, Elizabeth testified that she was asleep at home before the accident and that Mendoza never asked her to use the Grand Prix. Emily, like her parents, testified that she was home before the accident, that Mendoza never asked her to use her car, and that if he did, she would have said no.
It is undisputed that in the early morning hours of April 10, 2016, Mendoza took the Grand Prix to pick up four girls and give them a ride home. Kaitlin Keeler was one of four girls that Mendoza picked up that night. All four girls were together. Mendoza arrived in a car that
-2- Keeler did not recognize. Keeler testified that she and her friends asked Mendoza “like how he got there, like whose vehicle it was, and he told [them] that it was his friend Lake’s and that Lake said he could take it but he didn’t want to come with because Lake was already asleep.” At 3:42 a.m., Mendoza was driving the Grand Prix at a high rate of speed and lost control. In the ensuing crash, all of the occupants of the vehicle suffered injuries.
Various people testified that, in the months after the accident, Mendoza told them that Logan gave him permission to use the Grand Prix. Megan Parker, Mendoza’s girlfriend at the time of the accident, testified that Mendoza told her “a million times that he got permission from . . . Logan to drive the car.” Rabi Eid, Mendoza’s father, testified that, after the accident, Mendoza told him that he had permission to use the Grand Prix on the night of the accident. Rabi also testified that Elizabeth “confirmed” this to Rabi at the hospital, and told him that the permission came from Logan.1 Maricela Eid, Mendoza’s mother, testified that it was her understanding that Logan gave Mendoza permission to use the Grand Prix on the night of the accident.
After discovery, defendants moved for summary disposition. As relevant to this appeal, defendants argued that plaintiffs could not collect PIP benefits because Mendoza was barred from doing so under MCL 500.3113(a). That statute bars recovery of PIP benefits to a person that “willing operates . . . a motor vehicle . . . that was taken unlawfully” so long as the person “knew or should have known that the motor vehicle . . . was taken unlawfully.” MCL 500.3113(a). According to defendants, everyone with personal knowledge of whether Mendoza had permission to take the Grand Prix testified that the taking was unauthorized, with the exception of Mendoza who could not remember. Defendants concluded that, based on this evidence, there was no question of fact that the taking was unauthorized—and therefore unlawful—so plaintiffs’ claim was barred by MCL 500.3113(a).
In response, plaintiffs argued that there was a question of fact whether Mendoza had permission to take the Grand Prix on the night of the accident. First, plaintiffs contended that Keeler’s testimony that Mendoza said he had permission to take the Grand Prix created a question of fact. Next, plaintiffs asserted that there was a question whether Mendoza had ongoing permission to take the Serbas’ vehicles because (1) Mendoza used the Serbas’ vehicles on several occasions in the days leading up to the accident and (2) Lake never had a conversation with Mendoza about restricting his use of those vehicles. Plaintiffs further argued that Mendoza’s filling up Lake’s gas tank after dropping Bjork at home created a question of fact about Mendoza’s ongoing permissive use because it suggested that he “had taken the Serbas’ vehicles frequently.”
Plaintiff also contended that, even if Mendoza did not have permission, defendants failed to establish that he knew or should have known that he lacked permission as required by MCL 500.3113(a). Plaintiffs asserted that Keeler’s testimony “demonstrates that [Mendoza] believed he had permission to take the vehicle.” Plaintiffs also argued that Mendoza’s use of the Serbas’
1 Also according to Rabi, at some point in the months before the accident, Rabi saw Mendoza driving Lake’s Impala.
-3- vehicles in the days before the accident made it reasonable for him to believe that he had permission to use the Grand Prix on the night of the accident.
In anticipation that defendants would argue that Keeler’s testimony was inadmissible hearsay, plaintiffs gave three counterarguments. First, they argued that Keeler’s testimony was not hearsay—meaning that it was not submitted to prove the truth of the matter asserted—but rather was submitted to show “that [Mendoza] believed he had permission to take the vehicle.” Second, plaintiffs asserted that Keeler’s testimony fell under MRE 803(3) because it went to Mendoza’s state of mind. Lastly, plaintiffs argued that Keeler’s statement would fall under the catch-all hearsay exceptions in MRE 803(24) or MRE 804(b)(7).
In a supplemental brief, plaintiffs contended that the testimonies of Parker, Rabi, and Maricela created an issue as to Logan’s credibility and thus precluded summary disposition. According to plaintiffs, this testimony was not hearsay because it was offered for impeachment purposes. Plaintiffs also argued that Parker’s, Rabi’s, and Maricela’s testimonies were admissible for the same reasons that Keeler’s testimony was admissible.
Following a hearing, the trial court, in a written opinion and order, granted defendants’ motion. The trial court concluded that Keeler’s testimony about what Mendoza said before the accident was “blatant hearsay” that was “not an indication of any relevant state of mind,” so MRE 803(3) could not apply. The trial court similarly concluded that Keeler’s statement could not fall under the catch-all exceptions to hearsay because Mendoza’s statement to Keeler “was self-serving” and thus lacked the “circumstantial guarantees of trustworthiness.” The trial court also rejected plaintiffs’ argument that Mendoza had “open permission” to use the Serba family’s vehicles because there was only evidence that he had used them a total of three times. The trial court found that “[t]his does not suggest any kind of continuing or open permission” to use any of the family’s vehicles. The trial court concluded that “the only reasonable conclusion based on the evidence is that the Grand Prix was knowingly taken that night by [Mendoza] without authority,” so there was no genuine issue of material fact that Mendoza violated MCL 500.3113(a) and was barred from recovery.
On appeal, plaintiffs argue that, for various reasons, the trial court erred by concluding that there was no genuine question of material fact and that MCL 500.3113(a) barred their recovery. We disagree. Appellate courts review de novo a trial court’s grant of summary disposition. Innovation Ventures v Liquid Mfg, 499 Mich. 491, 506; 885 NW2d 861 (2016). The trial court granted defendants’ summary disposition under MCR 2.116(C)(10). In Maiden v Rozwood, 461 Mich. 109, 120; 597 NW2d 817 (1999), our Supreme Court explained the standard for a motion under MCR 2.116(C)(10) as follows:
A motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint. In evaluating a motion for summary disposition brought under this subsection, a trial court considers affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the motion. Where the proffered evidence fails to establish a genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of law.
-4- A genuine issue of material fact exists when, after viewing the evidence in a light most favorable to the nonmoving party, reasonable minds could differ on the issue. Allison v AEW Capital Mgt, LLP, 481 Mich. 419, 425; 751 NW2d 8 (2008). Only substantively admissible evidence can create a genuine issue of fact under MCR 2.116(C)(10). See Maiden, 461 Mich. at 123.
Plaintiffs are attempting to collect PIP benefits on Mendoza’s behalf from defendants. Mendoza assigned his rights to collect PIP benefits to plaintiffs. “An assignee stands in the position of the assignor, possessing the same rights and being subject to the same defenses.” Burkhardt v Bailey, 260 Mich. App. 636, 653; 680 NW2d 453 (2004). It follows that if Mendoza is barred from recovery, then plaintiffs are also barred.
At issue here is MCL 500.3113(a), which bars recovery for PIP benefits if, at the time of the accident, “[t]he person was willingly operating or willingly using a motor vehicle or motorcycle that was taken unlawfully, and the person knew or should have known that the motor vehicle or motorcycle was taken unlawfully.” In Spectrum Health Hosps v Farm Bureau Mut Ins Co of Mich, 492 Mich. 503, 516-517; 821 NW2d 117 (2012), our Supreme Court interpreted “taken unlawfully”2 in the context of MCL 500.3113(a):
In determining the Legislature’s intended meaning of the phrase “taken unlawfully,” we must accord the phrase its plain and ordinary meaning, and we may consult dictionary definitions because the no-fault act does not define the phrase. The word “unlawful” commonly means “not lawful; contrary to law; illegal,” and the word “take” is commonly understood as “to get into one’s hands or possession by voluntary action.” When the words are considered together, the plain meaning of the phrase “taken unlawfully” readily embraces a situation in which an individual gains possession of a vehicle contrary to Michigan law. [Citations omitted.]
The Spectrum Court went on to explain two examples of a taking “contrary to Michigan law”:
The Michigan Penal Code contains several statutes that prohibit “takings,” including two that prohibit “joyriding,” MCL 750.413 and MCL 750.414. MCL 750.413 states that “[a]ny person who shall, wilfully and without authority, take possession of and drive or take away . . . any motor vehicle, belonging to another, shall be guilty of a felony . . . .” Similarly, MCL 750.414 provides in pertinent part that “[a]ny person who takes or uses without authority any motor vehicle without intent to steal the same, or who is a party to such unauthorized taking or using, is guilty of a misdemeanor . . . .” Thus, both joyriding statutes make it
2 While the operative language in MCL 500.3113(a)—“taken unlawfully”—has not changed since Spectrum, other parts of that statute have changed. When Spectrum was decided, MCL 500.3113(a) stated that a person was not entitled to PIP benefits if he or she “was using a motor vehicle or motorcycle which he or she had taken unlawfully, unless the person reasonably believed that he or she was entitled to take and use the vehicle.” MCL 500.3113(a), later amended by 2014 PA 489 (2015).
-5- unlawful to take any motor vehicle without authority, effectively defining an unlawful taking of a vehicle as that which is unauthorized. [Spectrum, 492 Mich. at 517-518 (citations omitted).]
Here, like the Court in Spectrum, we must determine whether plaintiff took the car unlawfully, meaning “without authority.” Id. We agree with the trial court that here is no question of fact that Mendoza’s taking of the Grand Prix was unauthorized. Every member of the Serba household that interacted with Mendoza on the night of the accident or may have had authority to allow Mendoza to take the Grand Prix testified that they did not give Mendoza permission to take the Grand Prix on the night of the accident.3 Thus, there is no question that Mendoza did not have express permission to take the Grand Prix on the night of the accident.
Plaintiffs contend that Mendoza’s use of the Serbas’ vehicles in the days and months leading up to the night of the accident gave Mendoza ongoing or implied permission to take the Grand Prix on the night of the accident. We agree with defendants that this argument is conjecture because it is entirely speculative. Conjecture is an explanation consistent with known facts, but not deducible from them as a reasonable inference. Libralter Plastics, Inc v Chubb Group of Ins Cos, 199 Mich. App. 482, 486; 502 NW2d 742 (1993). Plaintiffs’ argument is arguably consistent with the known facts, but there is simply no way to reasonably infer that Mendoza had “ongoing permission” to use the Grand Prix on the night of the accident. For instance, there is no evidence that Mendoza routinely took and used the Grand Prix and that the Serbas knew but did not object to it. And other evidence actually cuts against plaintiffs’ argument. All of the Serba family testified that Emily was very protective of her car and would generally not let others drive it. They also testified that they would ask each other permission before using another family member’s car. Based on this evidence, it is unreasonable to infer that Mendoza—a guest at the Serba residence—had ongoing permission to use any car he wanted, let alone the Grand Prix that Emily would not let others drive. Plaintiffs’ “ongoing permission” argument is therefore conjecture, and conjecture cannot create a genuine issue of material fact. See id.
Even addressing plaintiffs’ ongoing-permission argument, it is unconvincing. In the light most favorable to plaintiffs, Mendoza used a Serba vehicle on three occasions before the accident: once a few months before the accident with Lake, once to drive Bjork home, and once the night before the accident when he and Lake were returning from Kalamazoo. We conclude that Mendoza’s use of the Serbas’ vehicles was so limited that no reasonable juror could conclude that Mendoza had ongoing permission to use them. More importantly, no reasonable juror could conclude that Mendoza had implied or ongoing permission to use the Grand Prix because nothing supports that Mendoza ever had permission to use that car; only Bjork testified that Mendoza used the Grand Prix, and she testified that it was on one occasion and he did so without asking. Because nothing in the record supports that Mendoza had ongoing permission to
3 While Keeler, Parker, and Rabi testified that Mendoza told each of them that he was given permission, their testimonies were hearsay—as will be explained in detail later—and therefore substantively inadmissible. See MRE 801(c); Maiden, 461 Mich. at 123.
-6- use the Grand Prix, reasonable minds cannot differ that his taking of the Grand Prix on the night of the accident was unauthorized.4
While this would seem to be the end of the inquiry into whether the Grand Prix was “taken unlawfully” under MCL 500.3113(a), it does not. While the Spectrum Court stated that the joyriding statutes, MCL 750.413 and MCL 750.414, “effectively defin[e] an unlawful taking of a vehicle as that which is unauthorized,” Spectrum, 492 Mich. at 517-518, our Supreme Court later clarified that those statutes’ mens rea elements must also be satisfied to bar recovery under MCL 500.3113(a), see Rambin v Allstate Ins Co, 495 Mich. 316, 331-334; 852 NW2d 34 (2014). In other words, defendants must not only prove that Mendoza took the Grand Prix without permission, but that he took the Grand Prix in violation of a statute. See id. at 333 (explaining that the “plaintiff’s argument that he did not unlawfully take the motorcycle under MCL 500.3113 is subject to the criminal statute that prohibits an unlawful taking”).
MCL 750.413 states:
Any person who shall, wilfully and without authority, take possession of and drive or take away, and any person who shall assist in or be a party to such taking possession, driving or taking away of any motor vehicle, belonging to another, shall be guilty of a felony, punishable by imprisonment in the state prison for not more than 5 years.
And MCL 750.414 states, in relevant part:
Any person who takes or uses without authority any motor vehicle without intent to steal the same, or who is a party to such unauthorized taking or using, is guilty of a misdemeanor punishable by imprisonment for not more than 2 years or a fine of not more than $1,500.00.
To have violated MCL 750.413, Mendoza must have taken possession of and driven the Grand Prix “wilfully.” As for MCL 750.414, our Supreme Court in Rambin, 495 Mich. at 332, held that it “requires a showing of knowingly taking without authority . . . .” So to have violated MCL
4 Plaintiffs point out that Lake testified that Mendoza filled his car tank with gas after he dropped off Bjork, and contends that this is evidence that Mendoza “drove the Serbas’ vehicles frequently.” This contention is clearly speculation, see Libralter Plastics, Inc, 199 Mich. App. at 486, as it was just as likely that Mendoza filled up Lake’s gas tank because he was appreciative of Lake’s allowing Mendoza to stay with him. Plaintiffs also point out that Lake never had a conversation with Mendoza about restricting Mendoza’s use of the vehicles, and contends that this supports that Mendoza had ongoing permission to use the Serbas’ vehicles. But that Lake never told Mendoza that Mendoza could not use Lake’s family’s vehicles without permission is of little consequence. People cannot go around taking other people’s property without some type of permission. Lake did not need to spell this out for Mendoza.
-7- 750.414, Mendoza must have taken the Grand Prix knowing that he was doing so without authority.
Under the facts of this case, no reasonable juror could conclude that Mendoza did not know that he took the Grand Prix without authority, so there is no question that he knowingly took the car without authority. As explained, no one expressly gave Mendoza authority to take the Grand Prix on the night of the accident. And Mendoza’s use of the Serba family’s vehicles was not so pervasive for him to reasonably believe that he had ongoing permission to take and use them. Again, in the light most favorable to plaintiffs, Mendoza used a Serba vehicle on three occasions before the accident. In two of those instances, Lake was in the car with Mendoza and Mendoza was driving Lake’s car. In the other instance, either Mendoza drove Bjork home in the Grand Prix (as Bjork testified) but no one gave him permission, or Mendoza drove Bjork home in the 2001 Impala with Lake’s permission (as Lake testified). Either way, it would not support that Mendoza had implied permission to take Grand Prix on the night of the accident. Accepting Bjork’s testimony, Mendoza took the Grand Prix without permission when he drove her home, which would not support that Mendoza reasonably believed that he had permission to take it again. Accepting Lake’s testimony, Mendoza had permission to take Lake’s car to drive Bjork home, which simply cannot support that Mendoza believed he had ongoing permission to take the Grand Prix. In short, no reasonable juror could conclude that, because Mendoza used a Serba vehicle three times before the accident, he believed that he had permission to take the Grand Prix at three o’clock in the morning on the night of the accident, and so he knew that his taking of the Grand Prix was unauthorized.5 And because Mendoza knowingly took the Grand Prix without authorization, he took it in violation of MCL 750.414, which in turn satisfies the “taken unlawfully” requirement in MCL 500.3113(a).
For the reasons explained in the previous paragraph, we conclude that reasonable minds could not disagree that Mendoza “knew or should have known” that the Grand Prix was taken unlawfully—since he was the one that knowingly took it without authorization—and so the requirement in MCL 500.3113(a) that “the person knew or should have known that the motor vehicle . . . was taken unlawfully” is satisfied.
On appeal, plaintiffs contend that Keeler’s testimony creates a question of fact to both elements of MCL 500.3113(a). The trial court ruled that Keeler’s testimony was inadmissible hearsay, and therefore could not create a question of fact. See Maiden, 461 Mich. at 123. We
5 Plaintiffs contend that the trial court “turn[ed] the burden of proof on its head” because defendants had the burden of proving that Mendoza knew he was taking the Grand Prix without permission, and defendants necessarily could not carry this burden because Mendoza could not remember the events before the accident. But if this case went before a factfinder, he or she would be faced with the same evidence as this Court is now. Namely, even though Mendoza cannot remember the details of the night of the accident, could Mendoza have believed that he had permission to use the Grand Prix based on the evidence that the parties can produce? As explained, based on the evidence presented, reasonable minds could not disagree that Mendoza knew he did not have permission to take the Grand Prix.
-8- agree with the trial court that Keeler’s testimony was inadmissible hearsay. And although the trial court did not explicitly rule that Parker’s, Rabi’s, or Maricela’s testimonies were inadmissible hearsay, we conclude that they were.
Keeler’s relevant testimony—that Mendoza told her that Lake gave him permission to take the Grand Prix—is clearly hearsay. Under MRE 801(c), “ ‘Hearsay’ is a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Keeler’s testimony is thus inadmissible to establish that Lake told Mendoza that he could take the Grand Prix on the night of the accident.
Plaintiffs contend that Keeler’s testimony is not hearsay if they use it to prove that Mendoza believed he had permission to take the Grand Prix on the night of the accident. But Keeler’s statement does not tend to prove that Mendoza believed that he had permission to take the Grand Prix unless the substantive fact of Mendoza’s statement is true. If Lake gave Mendoza permission—as Keeler testified that Mendoza said—then Mendoza would have reason to believe that he had permission to take the Grand Prix. Conversely, if Lake did not give Mendoza permission, then, regardless of what Mendoza said, he would have no reason to believe that he had permission to take the Grand Prix.6 In short, the underlying substantive fact of Mendoza’s statement to Keeler must be true for that statement to be probative of whether Mendoza believed he had permission to take the Grand Prix. And because Mendoza’s statement to Keeler is inadmissible to prove the substantive fact of that statement, see MRE 801(c), Keeler’s testimony of what Mendoza told her cannot be probative of what Mendoza believed. As a result, the only way that Mendoza’s statement to Keeler would be admissible is if it fell under one of the exceptions to hearsay. See MRE 802.
Plaintiffs argue that Mendoza’s statement to Keeler falls under the state-of-mind exception to hearsay in MRE 803(3), which states:
6 Plaintiffs propose a third route: Mendoza believed that the statement was true, so it is probative of what he believed. Plaintiffs’ argument can be condensed to this: because Mendoza believed what he said, plaintiffs can use Mendoza’s stated belief to prove Mendoza’s belief. This is clearly hearsay. See MRE 801(c). Relatedly, MRE 803(3) appears to categorize a declarant’s statement of belief to prove the declarant’s belief as inadmissible hearsay. See MRE 803(3) (stating that it does not apply to “a statement of . . . belief to prove the fact . . . believed”). The reason for this is explained in People v Moorer, 262 Mich. App. 64, 73-74; 683 NW2d 736 (2004): “The exclusion of ‘statements of memory or belief to prove the fact remembered or believed’ is necessary to avoid the virtual destruction of the hearsay rule which would otherwise result from allowing state of mind, provable by a hearsay statement, to serve as the basis for an inference of the happening of the event which produced the state of mind.” [Quoting FRE 803(3), Advisory Committee’s Note, 56 FRD 183, 305.]
-9- A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.
Keeler testified that she and her friends asked Mendoza “like how he got there, like whose vehicle it was, and he told [them] that it was his friend Lake’s and that Lake said he could take it but he didn’t want to come with because Lake was already asleep.” In People v Hackney, 183 Mich. App. 516, 527 n 2; 455 NW2d 358 (1990), this Court explained that “a statement explaining a past sequence of events (from the standpoint of the declarant at the time of the statement)” are excluded under MRE 803(3) as a statement of “memory or belief to prove the fact remembered or believed . . . .” Because Mendoza’s statement to Keeler was about past events and did not relate to Mendoza’s “then existing state of mind, emotion, sensation, or physical condition,” it does not fall under MRE 803(3). See People v Moorer, 262 Mich. App. 64, 73; 683 NW2d 736 (2004) (“These statements relate to past events and are specifically excluded under MRE 803(3) as statements of ‘memory or belief to prove the fact remembered or believed . . . .’ They therefore do not fall within the parameters of MRE 803(3).”).
Plaintiffs also argue that Mendoza’s statement to Keeler is admissible under the catch-all exceptions to hearsay, MRE 803(24) and MRE 804(b)(7). Plaintiffs further argue that, for the same reasons that Mendoza’s statement to Keeler is admissible under these exceptions, the hearsay statements in the testimonies of Parker, Rabi, and Maricela are also admissible under these exceptions.
Under MRE 803(24):7
A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact, (B) the statement is more probative on the point for which it is offered than any other evidence that the proponent can procure through reasonable efforts, and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of the statement makes known to the adverse party, sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant.
As summed up in People v Katt, 468 Mich. 272, 279; 662 NW2d 12 (2003):
7 The language of MRE 803(24) is identical to the language of MRE 804(b)(7), and because plaintiffs do not offer differing analyses for the two rules, we do not differentiate between them.
-10- [E]vidence offered under MRE 803(24) must satisfy four elements to be admissible: (1) it must have circumstantial guarantees of trustworthiness equal to the categorical exceptions, (2) it must tend to establish a material fact, (3) it must be the most probative evidence on that fact that the offering party could produce through reasonable efforts, and (4) its admission must serve the interests of justice. Also, the offering party must give advance notice of intent to introduce the evidence.
The requirements of MRE 803(24) “are stringent and will rarely be met.” People v Douglas, 496 Mich. 557, 576; 852 NW2d 587 (2014) (quotation marks and citation omitted).
There is no argument regarding the second element: whether Mendoza had or believed he had permission to use the Grand Prix is, at this point, the material fact in this case. But plaintiffs fail to satisfy the third element. Namely, the witnesses’ hearsay statements that plaintiffs seek to admit are not the most probative evidence of whether Mendoza had permission to use the Grand Prix that plaintiffs can produce. The third element “essentially creates a ‘best evidence’ requirement,” which “is a high bar and will effectively limit use of the residual exception to exceptional circumstances.” Katt, 468 Mich. at 293.
As stated, the fact that plaintiffs seek to establish with the hearsay statements is whether Mendoza had or believed he had permission to use the Grand Prix. The members of the Serba family all had first-hand knowledge of whether one of them gave Mendoza permission to use the Grand Prix. Each member of the Serba family testified that he or she did not give Mendoza permission, which is probative of the fact whether Mendoza had or believed he had permission to use the Grand Prix. As explained in Katt, “nonhearsay evidence on a material fact will nearly always have more probative value than hearsay statements, because nonhearsay derives from firsthand knowledge. Thus, the residual exception normally will not be available if there is nonhearsay evidence on point.” Id. at 293. We conclude that the hearsay statements that plaintiffs seek to admit are not more probative than the Serba family members’ nonhearsay statements, and therefore the hearsay statements proffered by plaintiffs do not satisfy the third element of MRE 803(24).
Finally, in cursory fashion, plaintiffs argue that “if no exception applies, [Keeler], [Parker], Rabi, and Maricela’s testimony is admissible to impeach the credibility of the Serbas’ post-accident denial that [Mendoza] had permission to drive the Grand Prix.” In support of their argument, plaintiffs only cite a case for the proposition that substantively inadmissible evidence may still be admissible as impeachment evidence. See Merrow v Bofferding, 458 Mich. 617, 631; 581 NW2d 696 (1998). Plaintiffs do not provide any further explanation for why this creates a genuine issue of fact thereby avoiding summary disposition. By failing to do so, plaintiff abandoned this argument. See Blackburne & Brown Mortg Co v Ziomek, 264 Mich. App. 615, 619; 692 NW2d 388 (2004) (“Insufficiently briefed issues are deemed abandoned on appeal.”) (Quotation marks and citation omitted.)
Ultimately, because Keeler’s, Parker’s, Rabi’s, and Maricella’s hearsay testimony is not substantively admissible, plaintiffs cannot use that evidence to create a question of fact. And because there is no genuine issue of material fact and MCL 500.3113(a) is satisfied, Mendoza— and therefore plaintiffs, Burkhardt, 260 Mich. App. at 653—is barred from recovery, and
-11- defendants were entitled to summary disposition as a matter of law. The trial court properly granted the defendants’ motion for summary disposition under MCR 2.116(C)(10) and dismissed plaintiffs’ complaint.
Affirmed.
/s/ Michael J. Kelly /s/ Patrick M. Meter /s/ Colleen A. O’Brien
-12- | 12-12-2018 | [
"STATE OF MICHIGAN COURT OF APPEALS SPECTRUM HEALTH HOSPITALS, MARY UNPUBLISHED FREE BED REHABILITATION HOSPITAL, and December 11, 2018 MARY FREE BED MEDICAL GROUP Plaintiffs-Appellants, v No. 341353 Kent Circuit Court GEICO GENERAL INSURANCE COMPANY LC No. 17-001462-NF and GEICO INDEMNITY COMPANY, Defendants-Appellees. Before: M. J. KELLY, P.J., and METER and O’BRIEN, JJ. PER CURIAM. Plaintiffs appeal as of right the trial court’s order granting defendants’ motion for summary disposition under MCR 2.116(C)(10). This case arises from a single-car accident in the early-morning hours of April 10, 2016. Before the accident, the driver—Armando Mendoza—was traveling at a high rate of speed and lost control, resulting in the crash.",
"Mendoza was driving a Pontiac Grand Prix titled to Elizabeth Serba but used almost exclusively by Elizabeth’s daughter, Emily Serba. Mendoza suffered serious injuries in the accident, which were treated by plaintiffs. Defendants insured Mendoza’s parents at the time of the accident. Plaintiffs brought this suit against defendants to collect personal protection insurance (PIP) benefits on Mendoza’s behalf. After the Michigan Supreme Court decided Covenant Med Ctr, Inc v State Farm Mut Auto Ins Co, 500 Mich. 191; 895 NW2d 490 (2017), Mendoza assigned plaintiffs his rights to pursue payment of his medical bills from defendants.",
"The trial court found that there was no question of material fact that, on the night of the accident, Mendoza knowingly took the Grand Prix without authorization, so MCL 500.3113(a) barred plaintiffs’ recovery. This appeal followed. We affirm. Mendoza suffered a traumatic brain injury in the April 10, 2016 crash that affects his memory. Mendoza cannot remember any of the events leading up to his taking the Grand Prix and the ensuing crash. As a result, we can only discern the events that led to Mendoza’s taking the Grand Prix by piecing together the testimony of persons that interacted with Mendoza in the days and nights leading up to the accident. -1- Lake Serba, Elizabeth’s son, testified that he and Mendoza were friends and that Mendoza was staying with him in the days leading up to the accident. Lake explained that Mendoza was in high school and on spring break, and Lake lived at home while taking college classes. Lake lived with Joseph Serba (his father), Elizabeth (his mother), Emily (his sister), Logan Serba (his brother), and Shane (his cousin).",
"The Serba family kept four cars at their house: Joseph drove a 2012 Impala, Elizabeth drove a Dodge Caravan, Emily drove a 2005 Grand Prix, and Lake drove a 2001 Impala. Both Joseph and Elizabeth testified that it was customary for members of the family to ask one another for permission before using the other family member’s car. According to Lake, in the days leading up to the accident, he allowed Mendoza to use his 2001 Impala to drive their friend, Vivian Bjork, home from Lake’s house. Bjork lived “about half a mile, maybe” from Lake.",
"Lake testified that Mendoza asked Lake permission to use Lake’s car to drive her home, and Lake gave Mendoza permission. Lake was aware that, at that time, Mendoza did not have a driver’s license. Lake testified that Mendoza put gas in his car’s tank after taking Bjork home. Bjork confirmed that Mendoza drove her home from the Serbas’ residence the day before the accident, but her testimony differed from Lake’s in many respects. According to Bjork, Lake was asleep and Mendoza told her that he would take her home. Mendoza used one of the Serbas’ vehicles and grabbed the keys from the counter. Bjork believed the car was the Grand Prix. Lake testified, however, that he was not aware of any time that Mendoza drove the Grand Prix before the accident, and that he never gave Mendoza permission to use any car other than the 2001 Impala. But Lake admitted that he never had a conversation with Mendoza about restricting Mendoza’s use of Lake’s family’s vehicles.",
"Lake also testified that the night before the accident—April 9, 2016—Lake and Mendoza went to Kalamazoo using Lake’s car, and Lake allowed Mendoza to drive back. After they got home, they went into the basement where Lake’s brother, Logan, sleeps. Lake went to bed while Mendoza stayed up playing video games with Logan. Lake did not have any further discussions with Mendoza. Logan recalled that, on the night before the accident, Mendoza and Lake returned to the Serbas’ home late at night, Lake went to bed, and Mendoza stayed up playing video games with Logan. According to Logan, later in the night, Mendoza asked him to drive “to pick up some girls from a party,” but Logan said no.",
"About 15 minutes later, Mendoza again asked Logan to take him to pick up the girls, and Logan again said no. Logan then went to bed. According to Logan, Mendoza never asked permission to use one of the family’s cars. Joseph testified that he was asleep at home before the accident, but Mendoza never asked him to use any of the family’s vehicles. According to Joseph, even if Mendoza had, the answer would have been no. Similarly, Elizabeth testified that she was asleep at home before the accident and that Mendoza never asked her to use the Grand Prix. Emily, like her parents, testified that she was home before the accident, that Mendoza never asked her to use her car, and that if he did, she would have said no.",
"It is undisputed that in the early morning hours of April 10, 2016, Mendoza took the Grand Prix to pick up four girls and give them a ride home. Kaitlin Keeler was one of four girls that Mendoza picked up that night. All four girls were together. Mendoza arrived in a car that -2- Keeler did not recognize. Keeler testified that she and her friends asked Mendoza “like how he got there, like whose vehicle it was, and he told [them] that it was his friend Lake’s and that Lake said he could take it but he didn’t want to come with because Lake was already asleep.” At 3:42 a.m., Mendoza was driving the Grand Prix at a high rate of speed and lost control. In the ensuing crash, all of the occupants of the vehicle suffered injuries. Various people testified that, in the months after the accident, Mendoza told them that Logan gave him permission to use the Grand Prix.",
"Megan Parker, Mendoza’s girlfriend at the time of the accident, testified that Mendoza told her “a million times that he got permission from . . . Logan to drive the car.” Rabi Eid, Mendoza’s father, testified that, after the accident, Mendoza told him that he had permission to use the Grand Prix on the night of the accident. Rabi also testified that Elizabeth “confirmed” this to Rabi at the hospital, and told him that the permission came from Logan.1 Maricela Eid, Mendoza’s mother, testified that it was her understanding that Logan gave Mendoza permission to use the Grand Prix on the night of the accident. After discovery, defendants moved for summary disposition. As relevant to this appeal, defendants argued that plaintiffs could not collect PIP benefits because Mendoza was barred from doing so under MCL 500.3113(a). That statute bars recovery of PIP benefits to a person that “willing operates . .",
". a motor vehicle . . . that was taken unlawfully” so long as the person “knew or should have known that the motor vehicle . . . was taken unlawfully.” MCL 500.3113(a). According to defendants, everyone with personal knowledge of whether Mendoza had permission to take the Grand Prix testified that the taking was unauthorized, with the exception of Mendoza who could not remember. Defendants concluded that, based on this evidence, there was no question of fact that the taking was unauthorized—and therefore unlawful—so plaintiffs’ claim was barred by MCL 500.3113(a). In response, plaintiffs argued that there was a question of fact whether Mendoza had permission to take the Grand Prix on the night of the accident. First, plaintiffs contended that Keeler’s testimony that Mendoza said he had permission to take the Grand Prix created a question of fact. Next, plaintiffs asserted that there was a question whether Mendoza had ongoing permission to take the Serbas’ vehicles because (1) Mendoza used the Serbas’ vehicles on several occasions in the days leading up to the accident and (2) Lake never had a conversation with Mendoza about restricting his use of those vehicles.",
"Plaintiffs further argued that Mendoza’s filling up Lake’s gas tank after dropping Bjork at home created a question of fact about Mendoza’s ongoing permissive use because it suggested that he “had taken the Serbas’ vehicles frequently.” Plaintiff also contended that, even if Mendoza did not have permission, defendants failed to establish that he knew or should have known that he lacked permission as required by MCL 500.3113(a). Plaintiffs asserted that Keeler’s testimony “demonstrates that [Mendoza] believed he had permission to take the vehicle.” Plaintiffs also argued that Mendoza’s use of the Serbas’ 1 Also according to Rabi, at some point in the months before the accident, Rabi saw Mendoza driving Lake’s Impala.",
"-3- vehicles in the days before the accident made it reasonable for him to believe that he had permission to use the Grand Prix on the night of the accident. In anticipation that defendants would argue that Keeler’s testimony was inadmissible hearsay, plaintiffs gave three counterarguments. First, they argued that Keeler’s testimony was not hearsay—meaning that it was not submitted to prove the truth of the matter asserted—but rather was submitted to show “that [Mendoza] believed he had permission to take the vehicle.” Second, plaintiffs asserted that Keeler’s testimony fell under MRE 803(3) because it went to Mendoza’s state of mind. Lastly, plaintiffs argued that Keeler’s statement would fall under the catch-all hearsay exceptions in MRE 803(24) or MRE 804(b)(7).",
"In a supplemental brief, plaintiffs contended that the testimonies of Parker, Rabi, and Maricela created an issue as to Logan’s credibility and thus precluded summary disposition. According to plaintiffs, this testimony was not hearsay because it was offered for impeachment purposes. Plaintiffs also argued that Parker’s, Rabi’s, and Maricela’s testimonies were admissible for the same reasons that Keeler’s testimony was admissible. Following a hearing, the trial court, in a written opinion and order, granted defendants’ motion. The trial court concluded that Keeler’s testimony about what Mendoza said before the accident was “blatant hearsay” that was “not an indication of any relevant state of mind,” so MRE 803(3) could not apply. The trial court similarly concluded that Keeler’s statement could not fall under the catch-all exceptions to hearsay because Mendoza’s statement to Keeler “was self-serving” and thus lacked the “circumstantial guarantees of trustworthiness.” The trial court also rejected plaintiffs’ argument that Mendoza had “open permission” to use the Serba family’s vehicles because there was only evidence that he had used them a total of three times. The trial court found that “[t]his does not suggest any kind of continuing or open permission” to use any of the family’s vehicles.",
"The trial court concluded that “the only reasonable conclusion based on the evidence is that the Grand Prix was knowingly taken that night by [Mendoza] without authority,” so there was no genuine issue of material fact that Mendoza violated MCL 500.3113(a) and was barred from recovery. On appeal, plaintiffs argue that, for various reasons, the trial court erred by concluding that there was no genuine question of material fact and that MCL 500.3113(a) barred their recovery. We disagree. Appellate courts review de novo a trial court’s grant of summary disposition. Innovation Ventures v Liquid Mfg, 499 Mich. 491, 506; 885 NW2d 861 (2016). The trial court granted defendants’ summary disposition under MCR 2.116(C)(10). In Maiden v Rozwood, 461 Mich. 109, 120; 597 NW2d 817 (1999), our Supreme Court explained the standard for a motion under MCR 2.116(C)(10) as follows: A motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint.",
"In evaluating a motion for summary disposition brought under this subsection, a trial court considers affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the motion. Where the proffered evidence fails to establish a genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of law.",
"-4- A genuine issue of material fact exists when, after viewing the evidence in a light most favorable to the nonmoving party, reasonable minds could differ on the issue. Allison v AEW Capital Mgt, LLP, 481 Mich. 419, 425; 751 NW2d 8 (2008). Only substantively admissible evidence can create a genuine issue of fact under MCR 2.116(C)(10). See Maiden, 461 Mich. at 123. Plaintiffs are attempting to collect PIP benefits on Mendoza’s behalf from defendants. Mendoza assigned his rights to collect PIP benefits to plaintiffs. “An assignee stands in the position of the assignor, possessing the same rights and being subject to the same defenses.” Burkhardt v Bailey, 260 Mich. App. 636, 653; 680 NW2d 453 (2004). It follows that if Mendoza is barred from recovery, then plaintiffs are also barred. At issue here is MCL 500.3113(a), which bars recovery for PIP benefits if, at the time of the accident, “[t]he person was willingly operating or willingly using a motor vehicle or motorcycle that was taken unlawfully, and the person knew or should have known that the motor vehicle or motorcycle was taken unlawfully.” In Spectrum Health Hosps v Farm Bureau Mut Ins Co of Mich, 492 Mich. 503, 516-517; 821 NW2d 117 (2012), our Supreme Court interpreted “taken unlawfully”2 in the context of MCL 500.3113(a): In determining the Legislature’s intended meaning of the phrase “taken unlawfully,” we must accord the phrase its plain and ordinary meaning, and we may consult dictionary definitions because the no-fault act does not define the phrase.",
"The word “unlawful” commonly means “not lawful; contrary to law; illegal,” and the word “take” is commonly understood as “to get into one’s hands or possession by voluntary action.” When the words are considered together, the plain meaning of the phrase “taken unlawfully” readily embraces a situation in which an individual gains possession of a vehicle contrary to Michigan law. [Citations omitted.] The Spectrum Court went on to explain two examples of a taking “contrary to Michigan law”: The Michigan Penal Code contains several statutes that prohibit “takings,” including two that prohibit “joyriding,” MCL 750.413 and MCL 750.414. MCL 750.413 states that “[a]ny person who shall, wilfully and without authority, take possession of and drive or take away . . . any motor vehicle, belonging to another, shall be guilty of a felony . . . .” Similarly, MCL 750.414 provides in pertinent part that “[a]ny person who takes or uses without authority any motor vehicle without intent to steal the same, or who is a party to such unauthorized taking or using, is guilty of a misdemeanor .",
". . .” Thus, both joyriding statutes make it 2 While the operative language in MCL 500.3113(a)—“taken unlawfully”—has not changed since Spectrum, other parts of that statute have changed. When Spectrum was decided, MCL 500.3113(a) stated that a person was not entitled to PIP benefits if he or she “was using a motor vehicle or motorcycle which he or she had taken unlawfully, unless the person reasonably believed that he or she was entitled to take and use the vehicle.” MCL 500.3113(a), later amended by 2014 PA 489 (2015). -5- unlawful to take any motor vehicle without authority, effectively defining an unlawful taking of a vehicle as that which is unauthorized. [Spectrum, 492 Mich. at 517-518 (citations omitted).] Here, like the Court in Spectrum, we must determine whether plaintiff took the car unlawfully, meaning “without authority.” Id. We agree with the trial court that here is no question of fact that Mendoza’s taking of the Grand Prix was unauthorized.",
"Every member of the Serba household that interacted with Mendoza on the night of the accident or may have had authority to allow Mendoza to take the Grand Prix testified that they did not give Mendoza permission to take the Grand Prix on the night of the accident.3 Thus, there is no question that Mendoza did not have express permission to take the Grand Prix on the night of the accident. Plaintiffs contend that Mendoza’s use of the Serbas’ vehicles in the days and months leading up to the night of the accident gave Mendoza ongoing or implied permission to take the Grand Prix on the night of the accident. We agree with defendants that this argument is conjecture because it is entirely speculative. Conjecture is an explanation consistent with known facts, but not deducible from them as a reasonable inference.",
"Libralter Plastics, Inc v Chubb Group of Ins Cos, 199 Mich. App. 482, 486; 502 NW2d 742 (1993). Plaintiffs’ argument is arguably consistent with the known facts, but there is simply no way to reasonably infer that Mendoza had “ongoing permission” to use the Grand Prix on the night of the accident. For instance, there is no evidence that Mendoza routinely took and used the Grand Prix and that the Serbas knew but did not object to it. And other evidence actually cuts against plaintiffs’ argument. All of the Serba family testified that Emily was very protective of her car and would generally not let others drive it. They also testified that they would ask each other permission before using another family member’s car. Based on this evidence, it is unreasonable to infer that Mendoza—a guest at the Serba residence—had ongoing permission to use any car he wanted, let alone the Grand Prix that Emily would not let others drive.",
"Plaintiffs’ “ongoing permission” argument is therefore conjecture, and conjecture cannot create a genuine issue of material fact. See id. Even addressing plaintiffs’ ongoing-permission argument, it is unconvincing. In the light most favorable to plaintiffs, Mendoza used a Serba vehicle on three occasions before the accident: once a few months before the accident with Lake, once to drive Bjork home, and once the night before the accident when he and Lake were returning from Kalamazoo. We conclude that Mendoza’s use of the Serbas’ vehicles was so limited that no reasonable juror could conclude that Mendoza had ongoing permission to use them. More importantly, no reasonable juror could conclude that Mendoza had implied or ongoing permission to use the Grand Prix because nothing supports that Mendoza ever had permission to use that car; only Bjork testified that Mendoza used the Grand Prix, and she testified that it was on one occasion and he did so without asking. Because nothing in the record supports that Mendoza had ongoing permission to 3 While Keeler, Parker, and Rabi testified that Mendoza told each of them that he was given permission, their testimonies were hearsay—as will be explained in detail later—and therefore substantively inadmissible.",
"See MRE 801(c); Maiden, 461 Mich. at 123. -6- use the Grand Prix, reasonable minds cannot differ that his taking of the Grand Prix on the night of the accident was unauthorized.4 While this would seem to be the end of the inquiry into whether the Grand Prix was “taken unlawfully” under MCL 500.3113(a), it does not. While the Spectrum Court stated that the joyriding statutes, MCL 750.413 and MCL 750.414, “effectively defin[e] an unlawful taking of a vehicle as that which is unauthorized,” Spectrum, 492 Mich. at 517-518, our Supreme Court later clarified that those statutes’ mens rea elements must also be satisfied to bar recovery under MCL 500.3113(a), see Rambin v Allstate Ins Co, 495 Mich. 316, 331-334; 852 NW2d 34 (2014). In other words, defendants must not only prove that Mendoza took the Grand Prix without permission, but that he took the Grand Prix in violation of a statute. See id.",
"at 333 (explaining that the “plaintiff’s argument that he did not unlawfully take the motorcycle under MCL 500.3113 is subject to the criminal statute that prohibits an unlawful taking”). MCL 750.413 states: Any person who shall, wilfully and without authority, take possession of and drive or take away, and any person who shall assist in or be a party to such taking possession, driving or taking away of any motor vehicle, belonging to another, shall be guilty of a felony, punishable by imprisonment in the state prison for not more than 5 years.",
"And MCL 750.414 states, in relevant part: Any person who takes or uses without authority any motor vehicle without intent to steal the same, or who is a party to such unauthorized taking or using, is guilty of a misdemeanor punishable by imprisonment for not more than 2 years or a fine of not more than $1,500.00. To have violated MCL 750.413, Mendoza must have taken possession of and driven the Grand Prix “wilfully.” As for MCL 750.414, our Supreme Court in Rambin, 495 Mich. at 332, held that it “requires a showing of knowingly taking without authority . . .",
".” So to have violated MCL 4 Plaintiffs point out that Lake testified that Mendoza filled his car tank with gas after he dropped off Bjork, and contends that this is evidence that Mendoza “drove the Serbas’ vehicles frequently.” This contention is clearly speculation, see Libralter Plastics, Inc, 199 Mich. App. at 486, as it was just as likely that Mendoza filled up Lake’s gas tank because he was appreciative of Lake’s allowing Mendoza to stay with him. Plaintiffs also point out that Lake never had a conversation with Mendoza about restricting Mendoza’s use of the vehicles, and contends that this supports that Mendoza had ongoing permission to use the Serbas’ vehicles. But that Lake never told Mendoza that Mendoza could not use Lake’s family’s vehicles without permission is of little consequence.",
"People cannot go around taking other people’s property without some type of permission. Lake did not need to spell this out for Mendoza. -7- 750.414, Mendoza must have taken the Grand Prix knowing that he was doing so without authority. Under the facts of this case, no reasonable juror could conclude that Mendoza did not know that he took the Grand Prix without authority, so there is no question that he knowingly took the car without authority. As explained, no one expressly gave Mendoza authority to take the Grand Prix on the night of the accident. And Mendoza’s use of the Serba family’s vehicles was not so pervasive for him to reasonably believe that he had ongoing permission to take and use them. Again, in the light most favorable to plaintiffs, Mendoza used a Serba vehicle on three occasions before the accident.",
"In two of those instances, Lake was in the car with Mendoza and Mendoza was driving Lake’s car. In the other instance, either Mendoza drove Bjork home in the Grand Prix (as Bjork testified) but no one gave him permission, or Mendoza drove Bjork home in the 2001 Impala with Lake’s permission (as Lake testified). Either way, it would not support that Mendoza had implied permission to take Grand Prix on the night of the accident. Accepting Bjork’s testimony, Mendoza took the Grand Prix without permission when he drove her home, which would not support that Mendoza reasonably believed that he had permission to take it again. Accepting Lake’s testimony, Mendoza had permission to take Lake’s car to drive Bjork home, which simply cannot support that Mendoza believed he had ongoing permission to take the Grand Prix. In short, no reasonable juror could conclude that, because Mendoza used a Serba vehicle three times before the accident, he believed that he had permission to take the Grand Prix at three o’clock in the morning on the night of the accident, and so he knew that his taking of the Grand Prix was unauthorized.5 And because Mendoza knowingly took the Grand Prix without authorization, he took it in violation of MCL 750.414, which in turn satisfies the “taken unlawfully” requirement in MCL 500.3113(a). For the reasons explained in the previous paragraph, we conclude that reasonable minds could not disagree that Mendoza “knew or should have known” that the Grand Prix was taken unlawfully—since he was the one that knowingly took it without authorization—and so the requirement in MCL 500.3113(a) that “the person knew or should have known that the motor vehicle .",
". . was taken unlawfully” is satisfied. On appeal, plaintiffs contend that Keeler’s testimony creates a question of fact to both elements of MCL 500.3113(a). The trial court ruled that Keeler’s testimony was inadmissible hearsay, and therefore could not create a question of fact. See Maiden, 461 Mich. at 123. We 5 Plaintiffs contend that the trial court “turn[ed] the burden of proof on its head” because defendants had the burden of proving that Mendoza knew he was taking the Grand Prix without permission, and defendants necessarily could not carry this burden because Mendoza could not remember the events before the accident. But if this case went before a factfinder, he or she would be faced with the same evidence as this Court is now. Namely, even though Mendoza cannot remember the details of the night of the accident, could Mendoza have believed that he had permission to use the Grand Prix based on the evidence that the parties can produce? As explained, based on the evidence presented, reasonable minds could not disagree that Mendoza knew he did not have permission to take the Grand Prix. -8- agree with the trial court that Keeler’s testimony was inadmissible hearsay. And although the trial court did not explicitly rule that Parker’s, Rabi’s, or Maricela’s testimonies were inadmissible hearsay, we conclude that they were.",
"Keeler’s relevant testimony—that Mendoza told her that Lake gave him permission to take the Grand Prix—is clearly hearsay. Under MRE 801(c), “ ‘Hearsay’ is a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Keeler’s testimony is thus inadmissible to establish that Lake told Mendoza that he could take the Grand Prix on the night of the accident. Plaintiffs contend that Keeler’s testimony is not hearsay if they use it to prove that Mendoza believed he had permission to take the Grand Prix on the night of the accident.",
"But Keeler’s statement does not tend to prove that Mendoza believed that he had permission to take the Grand Prix unless the substantive fact of Mendoza’s statement is true. If Lake gave Mendoza permission—as Keeler testified that Mendoza said—then Mendoza would have reason to believe that he had permission to take the Grand Prix. Conversely, if Lake did not give Mendoza permission, then, regardless of what Mendoza said, he would have no reason to believe that he had permission to take the Grand Prix.6 In short, the underlying substantive fact of Mendoza’s statement to Keeler must be true for that statement to be probative of whether Mendoza believed he had permission to take the Grand Prix. And because Mendoza’s statement to Keeler is inadmissible to prove the substantive fact of that statement, see MRE 801(c), Keeler’s testimony of what Mendoza told her cannot be probative of what Mendoza believed.",
"As a result, the only way that Mendoza’s statement to Keeler would be admissible is if it fell under one of the exceptions to hearsay. See MRE 802. Plaintiffs argue that Mendoza’s statement to Keeler falls under the state-of-mind exception to hearsay in MRE 803(3), which states: 6 Plaintiffs propose a third route: Mendoza believed that the statement was true, so it is probative of what he believed. Plaintiffs’ argument can be condensed to this: because Mendoza believed what he said, plaintiffs can use Mendoza’s stated belief to prove Mendoza’s belief. This is clearly hearsay. See MRE 801(c).",
"Relatedly, MRE 803(3) appears to categorize a declarant’s statement of belief to prove the declarant’s belief as inadmissible hearsay. See MRE 803(3) (stating that it does not apply to “a statement of . . . belief to prove the fact . . . believed”). The reason for this is explained in People v Moorer, 262 Mich. App. 64, 73-74; 683 NW2d 736 (2004): “The exclusion of ‘statements of memory or belief to prove the fact remembered or believed’ is necessary to avoid the virtual destruction of the hearsay rule which would otherwise result from allowing state of mind, provable by a hearsay statement, to serve as the basis for an inference of the happening of the event which produced the state of mind.” [Quoting FRE 803(3), Advisory Committee’s Note, 56 FRD 183, 305.] -9- A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.",
"Keeler testified that she and her friends asked Mendoza “like how he got there, like whose vehicle it was, and he told [them] that it was his friend Lake’s and that Lake said he could take it but he didn’t want to come with because Lake was already asleep.” In People v Hackney, 183 Mich. App. 516, 527 n 2; 455 NW2d 358 (1990), this Court explained that “a statement explaining a past sequence of events (from the standpoint of the declarant at the time of the statement)” are excluded under MRE 803(3) as a statement of “memory or belief to prove the fact remembered or believed . . .",
".” Because Mendoza’s statement to Keeler was about past events and did not relate to Mendoza’s “then existing state of mind, emotion, sensation, or physical condition,” it does not fall under MRE 803(3). See People v Moorer, 262 Mich. App. 64, 73; 683 NW2d 736 (2004) (“These statements relate to past events and are specifically excluded under MRE 803(3) as statements of ‘memory or belief to prove the fact remembered or believed . . .",
".’ They therefore do not fall within the parameters of MRE 803(3).”). Plaintiffs also argue that Mendoza’s statement to Keeler is admissible under the catch-all exceptions to hearsay, MRE 803(24) and MRE 804(b)(7). Plaintiffs further argue that, for the same reasons that Mendoza’s statement to Keeler is admissible under these exceptions, the hearsay statements in the testimonies of Parker, Rabi, and Maricela are also admissible under these exceptions. Under MRE 803(24):7 A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact, (B) the statement is more probative on the point for which it is offered than any other evidence that the proponent can procure through reasonable efforts, and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of the statement makes known to the adverse party, sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant. As summed up in People v Katt, 468 Mich. 272, 279; 662 NW2d 12 (2003): 7 The language of MRE 803(24) is identical to the language of MRE 804(b)(7), and because plaintiffs do not offer differing analyses for the two rules, we do not differentiate between them.",
"-10- [E]vidence offered under MRE 803(24) must satisfy four elements to be admissible: (1) it must have circumstantial guarantees of trustworthiness equal to the categorical exceptions, (2) it must tend to establish a material fact, (3) it must be the most probative evidence on that fact that the offering party could produce through reasonable efforts, and (4) its admission must serve the interests of justice. Also, the offering party must give advance notice of intent to introduce the evidence. The requirements of MRE 803(24) “are stringent and will rarely be met.” People v Douglas, 496 Mich. 557, 576; 852 NW2d 587 (2014) (quotation marks and citation omitted). There is no argument regarding the second element: whether Mendoza had or believed he had permission to use the Grand Prix is, at this point, the material fact in this case. But plaintiffs fail to satisfy the third element. Namely, the witnesses’ hearsay statements that plaintiffs seek to admit are not the most probative evidence of whether Mendoza had permission to use the Grand Prix that plaintiffs can produce.",
"The third element “essentially creates a ‘best evidence’ requirement,” which “is a high bar and will effectively limit use of the residual exception to exceptional circumstances.” Katt, 468 Mich. at 293. As stated, the fact that plaintiffs seek to establish with the hearsay statements is whether Mendoza had or believed he had permission to use the Grand Prix. The members of the Serba family all had first-hand knowledge of whether one of them gave Mendoza permission to use the Grand Prix. Each member of the Serba family testified that he or she did not give Mendoza permission, which is probative of the fact whether Mendoza had or believed he had permission to use the Grand Prix. As explained in Katt, “nonhearsay evidence on a material fact will nearly always have more probative value than hearsay statements, because nonhearsay derives from firsthand knowledge. Thus, the residual exception normally will not be available if there is nonhearsay evidence on point.” Id. at 293.",
"We conclude that the hearsay statements that plaintiffs seek to admit are not more probative than the Serba family members’ nonhearsay statements, and therefore the hearsay statements proffered by plaintiffs do not satisfy the third element of MRE 803(24). Finally, in cursory fashion, plaintiffs argue that “if no exception applies, [Keeler], [Parker], Rabi, and Maricela’s testimony is admissible to impeach the credibility of the Serbas’ post-accident denial that [Mendoza] had permission to drive the Grand Prix.” In support of their argument, plaintiffs only cite a case for the proposition that substantively inadmissible evidence may still be admissible as impeachment evidence. See Merrow v Bofferding, 458 Mich. 617, 631; 581 NW2d 696 (1998). Plaintiffs do not provide any further explanation for why this creates a genuine issue of fact thereby avoiding summary disposition. By failing to do so, plaintiff abandoned this argument. See Blackburne & Brown Mortg Co v Ziomek, 264 Mich. App.",
"615, 619; 692 NW2d 388 (2004) (“Insufficiently briefed issues are deemed abandoned on appeal.”) (Quotation marks and citation omitted.) Ultimately, because Keeler’s, Parker’s, Rabi’s, and Maricella’s hearsay testimony is not substantively admissible, plaintiffs cannot use that evidence to create a question of fact. And because there is no genuine issue of material fact and MCL 500.3113(a) is satisfied, Mendoza— and therefore plaintiffs, Burkhardt, 260 Mich. App. at 653—is barred from recovery, and -11- defendants were entitled to summary disposition as a matter of law.",
"The trial court properly granted the defendants’ motion for summary disposition under MCR 2.116(C)(10) and dismissed plaintiffs’ complaint. Affirmed. /s/ Michael J. Kelly /s/ Patrick M. Meter /s/ Colleen A. O’Brien -12-"
] | https://www.courtlistener.com/api/rest/v3/opinions/4349516/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Case 2:18-cv-00040-JPJ-PMS Document 50 Filed 12/30/19 Page 1 of 5 Pageid#: 610
CLERK'SOFFICE U.S.DISTRIGT COURT ATABINGDON,VA FILED IN THE UNITED STATESDISTRICT COURT 2E2 3C 2219 FOR THE W ESTERN DISTRICT OF W RGINIA BIG STO NE G AP D IW SIO N JULIt EY, L K : . Victoria B.Fom orthy,M other, . .
N extofkin and C o-adm inistrator E oftheEstateofJarrod'l' q y Fom orthy, Deceased;R pbertB .H ines,. 11, . Co-adm inistratorofiheEstateof JarrodT# Foxworthy,Deceased, N o.2:18-cv-40-JPJ-PM S Plaintiffs, JudgeJamesP.Jones V.
'UnitedStayesofAmerica Defqndants. . . ' $ î
ORDER ON PLM MTIFFS'PETITION FORAPPROVAL OF W RONGFUL DEATH SETTLEM EN T
. day cam e Pl TH IS aintiffsVictoriaFoxw orthy and Rèbel'tHines,Esq.,Co-A dm iliistratots
oftheEstateofJarrodTyFoxworthy,Deceased (Plaintiffs'decèdentisreferredtohereinas r
''M r.Foxworthy'd),inpersonandbycôtpsel,andDefendantUnitedStatesofAmerica,by counsel,and,pursuanttoViréiniaCodej8.01-55andFed.R.Civ.P.41,uponPlaintiffs'lotion forappiovalofw rongful-death settlem ent,and upon noticeto the statutory benefciaries,
Plaintiffs moved forapprovalofthe wrongful-death sçttlem ent.
ItappçaringtotheCourtthatthemattersagrded uportbythepartiesassetforth herein be, and the sam e hereby are,ratified,approved,and confirm ed.Specifically,itappearing to the
Courtthat:
1 Case 2:18-cv-00040-JPJ-PMS Document 50 Filed 12/30/19 Page 2 of 5 Pageid#: 611
A llparties required by law to be convened are convened orare deem ed convened by
theirsignaturesto thisOrderorby w ritten notice ofthe hearing.
' Thaton October28,2016 3o-yearoldJarrod Ty Foxworthy waspronounced deadafter
being strangled to death atU SP Leeprison by hiscellm ate.
ThatPlaintiffs VictoriaFoxw orthy and RobertHinesduly qualified a' s Co-
Adm inistratorsoftheEstate ofJarröd Ty Foxw orthy,Deceased,-in the CircuitCourtofLee J
County,Virginia,undertheprovisionsofVirginiaCodej64.2-454onM arch28,2016.
4. ThatPlaintiffsfiled the above-captioned wrongful-death action asserting claim s against
TheU nited StatesofAm erica pursuantto the FederalTortClaim s Act.
ThattheD efendantexpressed the intention to defend allclaim sasserted by Plaintiffs.
Thatneverthelejs,the D efendant,w ithoutadm itting any liability,butdistinctly denying
such,hasoffered to com prom ise the claim sofPlaintiffs arising outofthe death ofM r.
Foxw orthy.D efendanthasagreed to collectively pay V ictoria Foxworthy and RobertH ines,Co-
A dm inistratorsoftheEstate ofJarrod Ty Foxw orthy,Deceased,contingenyupon Courtapproval, '
cashintheamountofTwoHundredThousandDollars($2/00,000.00). fê1 .
ThatPlaintiffshaverepresentedtotheCourtthattheyaçcejttheofferoftheDefendant afterhaving considered a11factors involved.
K Thatthe settlem entisfairand reasonable underal1thecircum stances.
Thatthe Plaintiffshave represented to the Courtthat M r.Foxw orthy is sulwived by Case 2:18-cv-00040-JPJ-PMS Document 50 Filed 12/30/19 Page 3 of 5 Pageid#: 612
thefollowingstatutorybeneficiariesasdefinedbyVirginiaCodej8.01-53:
a.VictoriaFoxworthy(Jarrod'smother) DOB:(redacted) 576 G oose Creek Resort
NewporqN orth Carolina28570
b.TyFoxworthy(Jarrod'sfather) J
DOB:gredactedq 576 G oose Creek Resort
Newport,North Carolina28570
c.FalonFoxworthy(Jarrod'ssister) DOB:(redactedl 5200 Sum m itLane M anor,A pt. 324
Raleigh,N orth Carolina 27613
10. ThatPlaintiffsrepresentsthatfuneraland burialexpenseshave been paid by V ictori: and
Ty Foxworthy in theAmountof$9,596.00.They arecollectively entitledto reimbursementinthe
amountof$9,596.00to bepaid outofthesettlementproceeds.
Thepartiesrepresentthere are no liens in thism atter.
ltisORDERED thatareimbursementof$9,596.00bepaidoutofthesettlement proceeds to V ictoria and Ty Foxw orthy forfuneraland crem ation expenses.
3 Case 2:18-cv-00040-JPJ-PMS Document 50 Filed 12/30/19 Page 4 of 5 Pageid#: 613
Itappearingtothe CourtthatattorneysDavidRandolph Sm ith,TheLaw Officesof D avid Randolph Sm ith And A ssociates and John Jessee have provided valuable legalassistance
to the Plaintiffs in the prosecution ofthism atter,itishereby OR DERED thatD avid Randolph $ ' Smith& Associatesbe awarded :$50,000($47,000toDavidRandolph Smith& Associatesand $3,000toJohnJessee).Thesesumswillbepaidoutofthesettlementproceedsinthismatter; and,
ltfurtherappearing to the Courtthatcertain costsand reim bursable expenseshave been
incurred and advanced intheam ountof$1,922.36.ltishereby ORDERED thatDavidRandolph Sm ith & Assoçiatesbereimbursedforcostsadvancedin theamountof$731,99 andJohn Jessee, Esq.bereimbursed forcostsadvanced intheamountof $ 1,190.37which sumsare tobepaid outofthe settlem entproceeds in thism atter;and,
Itfurtherappearing to the Courtthatthe proposed distribution ofthe balance ofthe
settlementfunds($138.381.64afterpaymentofattorneys'fees,expensesandfuneralandburial expenses)itisORDERED that80% ($110.785.31)bepaidtoVictoriaandTyFoxworthy,parentsof thedeceased.and20% ($27,676.33)toFalonFoxworthy,sisterofthedeceased.
FindingthattenderofthesettlementfundsdetailedintheDisbursementsSheet(Exhibit1 toPlaintiffs'PetitionforApprovalofWrongful-DeathSettlement)hasbeenproperlymadeand acknow ledged,itisORDERED thattheD efendantand itsem ployees,independentcontractors,
is released and fully discharged from alIIiability forany and allclaim's,incltiding any claim for
attorneys'fees,costs,and interest,w hich m ay orcan be asserted againstD efendantsorany
employeesorindependentcontractors eithernow orin the pastemployed orretained by the
D efendant,arising outofthe death ofM r.Foxworthy.
4 Case 2:18-cv-00040-JPJ-PMS Document 50 Filed 12/30/19 Page 5 of 5 Pageid#: 614
A11sum ssetförth in the D isbursem entSheetconstitute dam ageson accountofpersonal
physicalinjuriesandphysicalsickness,withinthemeaningofSectionl04(a)(2)ofthelnternal Revenue Code of1986,asam ended.The entire paym entis com pensatory in nature to
com pensate the beneficiaries forthe lossofM r.Foxw orthy.
ORDERED,thatthiscasebedismissedwithprejudiceastoDefendant; I ORD ERED,thatthe Clerk ofthe Courtissue certified copiesofthis Orderto all
counsel.
Ex-rsltso this 3 > M dayof , 019.
J es P.Jones U .S.D ISTRICT COURT JUD GE
5 | 2019-12-30 | [
"Case 2:18-cv-00040-JPJ-PMS Document 50 Filed 12/30/19 Page 1 of 5 Pageid#: 610 CLERK'SOFFICE U.S.DISTRIGT COURT ATABINGDON,VA FILED IN THE UNITED STATESDISTRICT COURT 2E2 3C 2219 FOR THE W ESTERN DISTRICT OF W RGINIA BIG STO NE G AP D IW SIO N JULIt EY, L K : . Victoria B.Fom orthy,M other, . . N extofkin and C o-adm inistrator E oftheEstateofJarrod'l' q y Fom orthy, Deceased;R pbertB .H ines,. 11, . Co-adm inistratorofiheEstateof JarrodT# Foxworthy,Deceased, N o.2:18-cv-40-JPJ-PM S Plaintiffs, JudgeJamesP.Jones V. 'UnitedStayesofAmerica Defqndants. . . ' $ î ORDER ON PLM MTIFFS'PETITION FORAPPROVAL OF W RONGFUL DEATH SETTLEM EN T . day cam e Pl TH IS aintiffsVictoriaFoxw orthy and Rèbel'tHines,Esq.,Co-A dm iliistratots oftheEstateofJarrodTyFoxworthy,Deceased (Plaintiffs'decèdentisreferredtohereinas r ''M r.Foxworthy'd),inpersonandbycôtpsel,andDefendantUnitedStatesofAmerica,by counsel,and,pursuanttoViréiniaCodej8.01-55andFed.R.Civ.P.41,uponPlaintiffs'lotion forappiovalofw rongful-death settlem ent,and upon noticeto the statutory benefciaries, Plaintiffs moved forapprovalofthe wrongful-death sçttlem ent.",
"ItappçaringtotheCourtthatthemattersagrded uportbythepartiesassetforth herein be, and the sam e hereby are,ratified,approved,and confirm ed.Specifically,itappearing to the Courtthat: 1 Case 2:18-cv-00040-JPJ-PMS Document 50 Filed 12/30/19 Page 2 of 5 Pageid#: 611 A llparties required by law to be convened are convened orare deem ed convened by theirsignaturesto thisOrderorby w ritten notice ofthe hearing. ' Thaton October28,2016 3o-yearoldJarrod Ty Foxworthy waspronounced deadafter being strangled to death atU SP Leeprison by hiscellm ate. ThatPlaintiffs VictoriaFoxw orthy and RobertHinesduly qualified a' s Co- Adm inistratorsoftheEstate ofJarröd Ty Foxw orthy,Deceased,-in the CircuitCourtofLee J County,Virginia,undertheprovisionsofVirginiaCodej64.2-454onM arch28,2016. 4. ThatPlaintiffsfiled the above-captioned wrongful-death action asserting claim s against TheU nited StatesofAm erica pursuantto the FederalTortClaim s Act. ThattheD efendantexpressed the intention to defend allclaim sasserted by Plaintiffs. Thatneverthelejs,the D efendant,w ithoutadm itting any liability,butdistinctly denying such,hasoffered to com prom ise the claim sofPlaintiffs arising outofthe death ofM r. Foxw orthy.D efendanthasagreed to collectively pay V ictoria Foxworthy and RobertH ines,Co- A dm inistratorsoftheEstate ofJarrod Ty Foxw orthy,Deceased,contingenyupon Courtapproval, ' cashintheamountofTwoHundredThousandDollars($2/00,000.00). fê1 . ThatPlaintiffshaverepresentedtotheCourtthattheyaçcejttheofferoftheDefendant afterhaving considered a11factors involved.",
"K Thatthe settlem entisfairand reasonable underal1thecircum stances. Thatthe Plaintiffshave represented to the Courtthat M r.Foxw orthy is sulwived by Case 2:18-cv-00040-JPJ-PMS Document 50 Filed 12/30/19 Page 3 of 5 Pageid#: 612 thefollowingstatutorybeneficiariesasdefinedbyVirginiaCodej8.01-53: a.VictoriaFoxworthy(Jarrod'smother) DOB:(redacted) 576 G oose Creek Resort NewporqN orth Carolina28570 b.TyFoxworthy(Jarrod'sfather) J DOB:gredactedq 576 G oose Creek Resort Newport,North Carolina28570 c.FalonFoxworthy(Jarrod'ssister) DOB:(redactedl 5200 Sum m itLane M anor,A pt. 324 Raleigh,N orth Carolina 27613 10. ThatPlaintiffsrepresentsthatfuneraland burialexpenseshave been paid by V ictori: and Ty Foxworthy in theAmountof$9,596.00.They arecollectively entitledto reimbursementinthe amountof$9,596.00to bepaid outofthesettlementproceeds. Thepartiesrepresentthere are no liens in thism atter. ltisORDERED thatareimbursementof$9,596.00bepaidoutofthesettlement proceeds to V ictoria and Ty Foxw orthy forfuneraland crem ation expenses. 3 Case 2:18-cv-00040-JPJ-PMS Document 50 Filed 12/30/19 Page 4 of 5 Pageid#: 613 Itappearingtothe CourtthatattorneysDavidRandolph Sm ith,TheLaw Officesof D avid Randolph Sm ith And A ssociates and John Jessee have provided valuable legalassistance to the Plaintiffs in the prosecution ofthism atter,itishereby OR DERED thatD avid Randolph $ ' Smith& Associatesbe awarded :$50,000($47,000toDavidRandolph Smith& Associatesand $3,000toJohnJessee).Thesesumswillbepaidoutofthesettlementproceedsinthismatter; and, ltfurtherappearing to the Courtthatcertain costsand reim bursable expenseshave been incurred and advanced intheam ountof$1,922.36.ltishereby ORDERED thatDavidRandolph Sm ith & Assoçiatesbereimbursedforcostsadvancedin theamountof$731,99 andJohn Jessee, Esq.bereimbursed forcostsadvanced intheamountof $ 1,190.37which sumsare tobepaid outofthe settlem entproceeds in thism atter;and, Itfurtherappearing to the Courtthatthe proposed distribution ofthe balance ofthe settlementfunds($138.381.64afterpaymentofattorneys'fees,expensesandfuneralandburial expenses)itisORDERED that80% ($110.785.31)bepaidtoVictoriaandTyFoxworthy,parentsof thedeceased.and20% ($27,676.33)toFalonFoxworthy,sisterofthedeceased. FindingthattenderofthesettlementfundsdetailedintheDisbursementsSheet(Exhibit1 toPlaintiffs'PetitionforApprovalofWrongful-DeathSettlement)hasbeenproperlymadeand acknow ledged,itisORDERED thattheD efendantand itsem ployees,independentcontractors, is released and fully discharged from alIIiability forany and allclaim's,incltiding any claim for attorneys'fees,costs,and interest,w hich m ay orcan be asserted againstD efendantsorany employeesorindependentcontractors eithernow orin the pastemployed orretained by the D efendant,arising outofthe death ofM r.Foxworthy.",
"4 Case 2:18-cv-00040-JPJ-PMS Document 50 Filed 12/30/19 Page 5 of 5 Pageid#: 614 A11sum ssetförth in the D isbursem entSheetconstitute dam ageson accountofpersonal physicalinjuriesandphysicalsickness,withinthemeaningofSectionl04(a)(2)ofthelnternal Revenue Code of1986,asam ended.The entire paym entis com pensatory in nature to com pensate the beneficiaries forthe lossofM r.Foxw orthy. ORDERED,thatthiscasebedismissedwithprejudiceastoDefendant; I ORD ERED,thatthe Clerk ofthe Courtissue certified copiesofthis Orderto all counsel. Ex-rsltso this 3 > M dayof , 019. J es P.Jones U .S.D ISTRICT COURT JUD GE 5"
] | https://www.courtlistener.com/api/rest/v3/recap-documents/118578131/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
C. A. 2d Cir. Cer-tiorari denied. | 11-28-2022 | [
"C. A. 2d Cir. Cer-tiorari denied."
] | https://www.courtlistener.com/api/rest/v3/opinions/9251589/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Citation Nr: 1109360
Decision Date: 03/09/11 Archive Date: 03/17/11
DOCKET NO. 05-33 803 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida
THE ISSUE
Entitlement to an initial disability rating in excess of 20 percent for the period prior to April 23, 2010, and in excess of 40 percent for the period beginning April 23, 2010, for degenerative disc disease (DDD) of the thoracolumbar spine.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
K. Haddock, Associate Counsel
INTRODUCTION
The Veteran had active military service from February 2001 to April 2003.
The case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.
In connection with his appeal the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO in February 2008. A transcript of the hearing is associated with the claims file.
As in the November 2009 Board decision, the Board notes that the issues of entitlement to increased disability ratings for service-connected cervical spine and left knee disabilities have been raised by the record. These issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over these issues and they are referred to the AOJ for appropriate action.
REMAND
The Board finds that additional development is required before the Veteran's claim on appeal is decided.
In the November 2009 Board remand, the Board directed that the RO or the Appeals Management Center (AMC) undertake appropriate development to obtain any and all pertinent evidence identified, but not provided by the Veteran. In April 2010, VA received an authorized consent for release of medical records from the Veteran. In this authorization, the Veteran identified both a private physician and private facilities from which he had received treatment for his neck and back pain. There is no indication from the record that VA made an attempt to obtain these records.
For these reasons, the Board has concluded that the development conducted does not adequately comply with the directives of the November 2009 remand. The United States Court of Appeals for Veterans Claims (Court) has held that RO compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates another remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998).
Therefore, current treatment records from both the Veteran's private physician and the VA Medical Center should be obtained before a decision is rendered with regard to this issue.
Accordingly, this case is remanded to the RO or the AMC in Washington, D.C., for the following actions:
1. The RO or the AMC should undertake appropriate development to obtain any pertinent evidence identified, but not provided by the Veteran, to include any pertinent VA or private treatment records that are not already of record. If it is unable to obtain any such evidence, it should so inform the Veteran and his representative and request them to submit the outstanding evidence.
2. The RO or AMC should undertake any other development it determines to be warranted.
3. Then, the RO or the AMC should readjudicate the Veteran's claim on appeal based on a de novo review of the record. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the case is returned to the Board for further appellate action.
By this remand, the Board intimates no opinion as to any final outcome warranted.
The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999).
This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).
_________________________________________________
Shane A. Durkin
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) (2010). | 03-09-2011 | [
"Citation Nr: 1109360 Decision Date: 03/09/11 Archive Date: 03/17/11 DOCKET NO. 05-33 803 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial disability rating in excess of 20 percent for the period prior to April 23, 2010, and in excess of 40 percent for the period beginning April 23, 2010, for degenerative disc disease (DDD) of the thoracolumbar spine. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Haddock, Associate Counsel INTRODUCTION The Veteran had active military service from February 2001 to April 2003. The case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In connection with his appeal the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO in February 2008. A transcript of the hearing is associated with the claims file. As in the November 2009 Board decision, the Board notes that the issues of entitlement to increased disability ratings for service-connected cervical spine and left knee disabilities have been raised by the record. These issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ).",
"Therefore, the Board does not have jurisdiction over these issues and they are referred to the AOJ for appropriate action. REMAND The Board finds that additional development is required before the Veteran's claim on appeal is decided. In the November 2009 Board remand, the Board directed that the RO or the Appeals Management Center (AMC) undertake appropriate development to obtain any and all pertinent evidence identified, but not provided by the Veteran. In April 2010, VA received an authorized consent for release of medical records from the Veteran. In this authorization, the Veteran identified both a private physician and private facilities from which he had received treatment for his neck and back pain.",
"There is no indication from the record that VA made an attempt to obtain these records. For these reasons, the Board has concluded that the development conducted does not adequately comply with the directives of the November 2009 remand. The United States Court of Appeals for Veterans Claims (Court) has held that RO compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates another remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, current treatment records from both the Veteran's private physician and the VA Medical Center should be obtained before a decision is rendered with regard to this issue. Accordingly, this case is remanded to the RO or the AMC in Washington, D.C., for the following actions: 1. The RO or the AMC should undertake appropriate development to obtain any pertinent evidence identified, but not provided by the Veteran, to include any pertinent VA or private treatment records that are not already of record. If it is unable to obtain any such evidence, it should so inform the Veteran and his representative and request them to submit the outstanding evidence. 2.",
"The RO or AMC should undertake any other development it determines to be warranted. 3. Then, the RO or the AMC should readjudicate the Veteran's claim on appeal based on a de novo review of the record. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the case is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment.",
"The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). _________________________________________________ Shane A. Durkin 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) (2010)."
] | https://drive.google.com/drive/folders/12lAd8Os7VFeqbTKi4wcqJqODjHIn0-yQ?usp=sharing | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
CHESNUT, District Judge. The appeal from Referee Miller in this case presents the question as to whether Phillip N. Linthicum et al., by reason of a distraint proceeding for rent due them as landlords of the bankrupt prior to bankruptcy, secured a valid lien on certain property subsequently coming into the possession of the bankrupt trustee and by him sold. The claim is asserted as a secured claim to the extent of the proceeds of the sale made by the trustee of the chattels distrained on. The amount of rent due and unpaid to the claimant was $275 being for five months’ rent at $55.00 per month. The distraint was levied September 25, 1931. On September 29, 1931, the subsequent bankrupt executed a deed of trust for the benefit of creditors to one Thomas W. Simmons. On November 6, 1931, petition in bankruptcy was filed by Lee W. Noble and adjudication followed immediately. The Referee determined (see his certification for review filed November 9, 1933) that the distraint was valid and the claimant secured a lien thereby which was good as against the bankrupt trustee and when the latter sold the goods the claimant was entitled to the proceeds of sale. The trustee in bankruptcy has appealed from the order to this effect, passed by the Referee. Further relevant facts are stated in the Referee’s certificate.1 *734It appears that the property scheduled and listed in the inventory in the distraint proceedings had not been appraised up to the time of the bankruptcy but was afterwards appraised in the bankruptcy proceeding. The contention of the trustee before the Referee was that the distraint proceeding is invalid and does not constitute a properly secured claim. The Referee found, and it apparently is not disputed, that the original distraint warrant attached to the claim appears to be in the proper form and the inventory of goods and chattels was attached thereto. Apparently the only point stressed before the Referee in objection to the claim was that the distraint was ineffective on account of the fact that the property levied upon was not appraised in the distraint proceedings. No authority was cited to the Referee in support of this contention. The appeal from the Referee was duly set for hearing in open court but counsel for the respective parties did not personally appear, submitting the matter on brief written memoranda of argument. The brief on behalf of the trustee here stresses the contention that the lien was not valid because it would result in the ereati of a preference within four months prior to bankruptcy and must therefore fall. This, however, quite overlooks the provision of section 64b (5) of the Bankruptcy Act, as amended by Act May 27, 1926, now § 64b (7) (11 USCA § 104 (b) (7), which gives priority to payment of “debts owing to any person who by the laws of the States or the United States is entitled to priority.” In a number of federal decisions relating to Maryland distraint proceedings, it has been held in this court and in the Circuit Court of Appeals for this Circuit, that a validly created landlord’s distress against the goods of a tenant will be sustained in bankruptcy. The latest ease on the subject reviewing prior cases is Irving Trust Co. v. Burke (C. C. A. 4) 65 F.(2d) 730, 732, 88 A. L. R. 877, confirming on this point the case of In re Rosenstoek (D. C.) 1 F. Supp. 830, 831, where the pertinent authorities are also reviewed. The distraint in that case was, as here, issued within- four months prior to the bankruptcy. That point, therefore, needs no further discussion. As to the suggested invalidity of the dis*735traint by reason of the fact that the appraisal of the property distrained upon had not been had prior to the bankruptcy, no authority is cited by counsel for the trustee in support of his contention, and I know of none. The purpose of the appraisal which is undoubtedly contemplated and provided for by the Maryland Statutes (see Md. Code, art. 53, § 14) would seem to have relation not to the effect of the lien bnt to the subsequent sale of the goods. A somewhat similar point with regard to the alleged insufficiency of notice to the tenant as affecting- the validity of the lien obtained by the distress levied was considered by the Circuit Court of Appeals in the case of Irving Trust Co. v. Burke, 65 F.(2d) 730, 734, 88 A. L. R. 877, where it is pointed out on the authority of Keller v. Weber, 27 Md. 660, at page 666, that the notice is a preliminary to the sale, not to the distress on the regularity of which the right of possession of the goods depends, and the Circuit Court of Appeals adds: “Since there is no question of sale pursuant to the distraint in this ease, it follows that appellant had perfected a valid lien under the state law, irrespective of the sufficiency of the inventory, and is therefore entitled to a prior claim against the proceeds of the property on the demised premises.” This reasoning is likewise applicable to the point made that there was no appraisal prior to the bankruptcy. The appraisal is not a condition precedent to the levy of the distraint hut only to a subsequent sale thereunder. Prior to the statute of 2nd William & Mary, sess. 1, chap. 6 (vol. 2 Alexander’s British Statutes, p. 774) the landlord could not sell goods distrained hut could only hold them as a pledge until the rent was paid. 36 C. J. 578, 580; Tiffany Landlord & Tenant, 2061, 2063. The landlord’s power to sell was given by this statute which also provided for the appraisal of the goods and made it a condition precedent to the sale. The Maryland Code, art. 53, § 14, providing for appraisers is doubtless historically attributable to this statute. But the statute did not itself make a sale obligatory although if it was delayed for an unreasonable time the tenant might have a remedy against the landlord for consequential damages. This statute is in force in Maryland. State v. Timmons, 90 Md. 10, 44 A. 1003, 78 Am. St. Rep. 417; Cahill v. Lee, 55 Md. 319. As between the landlord and the tenant an agreement could be made postponing the sale but continuing the lien although if the sale was unreasonably delayed a bona fide purchaser of the goods distrained could get a valid title from the tenant. Lamotte v. Wisner, 51 Md. 559. Nothing appears in this ease to indicate that the delay in making the appraisal was for an unreasonable length of time or that the tenant, subsequently the bankrupt, made any objection to the delay; and it does not appear that the delay was such under the circumstances as to cause a reasonable inference that the distraint had been abandoned. For these reasons I confirm the Referee’s order.
To the Honorable, the Judges of Said Court: The Report of Edward T. Miller, Referee, to whom the above entitled ease was referred, respectfully shows: 1. That among the claims filed against the said bankrupt estate, there was one of Philip N. Linthicum et al., filed on Dec. 22, 1931, as a secured rent daim in the amount of Two Hundred Seventy-Five ($275.00) Dollars, basis of said daim being a distraint proceeding filed prior to the adjudication in bankruptcy, the said claim being hereto attached as “Exhibit #1.” 2. That subsequently on Oct. 16, 1933, William O. Dean, Trustee in the above entitled case, filed objections to the allowance of said claim as a secured claim, said objections being filed herewith as “Exhibit #2.” 3. That a hearing having been held in the matter on the 21st day of Oct. 1933, the Referee passed an Order allowing said daim as secured to the extent of the pro*734ceeds derived from the property distrained upon, this order being attached hereto as “Exhibit #3.” 4. That on the 3rd day of Nov. 1933, the said William O. Dean, Trustee, through Thomas W. Simmons, Esq., his Attorney, filed a petition for review of the Findings of the Referee in said matter, which is attached hereto as “Exhibit #4.” 5. The facts as disclosed by the hearing are as follows: The bankrupt, prior to the adjudication, rented a store property from the claimants, Philip N. Linthicum et al. at a monthly rental of Fifty-Five ($55.00) Dollai’s. On the 21st day of Sept. 1931, distraint proceedings were instituted before George W. James, J. P., for five months rent, totaling Two Hundred and Seventy-Five ($275.00) Dollars. A constable laid the distress on the 25th day of Sept. 1931, and scheduled certain fixtures and furnishings located on the rented premises. On the 29th day of Sept. 1931, Lee W. Noble made a Deed of Trust for the benefit of his creditors, in favor of Thomas W. Simmons, Esq. The property scheduled in the distraint proceedings had 'not been appraised. On Nov. 6th, 1931, as a result of a voluntary petition, the said Lee W. Noble was adjudged a bankrupt and the property in question was appraised in the bankruptcy proceeding and has subsequently been sold by the trustee in bankruptcy. The contention of the trustee is that the distraint proceeding is invalid and does not constitute a proper secured claim. The original distraint warrant attached to the Linthicum claim appears to be in the usual and proper form. The Inventory of Goods and Chattels is attached thereto. The Referee can find no authorities or law to justify the contention of the trustee that the distraint would not be effective on account of the fact that the property levied upon was not appraised in the distraint proceeding. Section 9 of Article 53 of the Code of Maryland prescribes that to distrain for rent, the Landlord or his agent may make oath before any officer of the County or State where the Landlord or Agent may reside who is qualified by law to administer oaths or affidavits and that the affidavit must specify the amount which said Landlord may claim to be due. The papers in this proceeding indicate that this requirement has been fully met. The only requirement relative to appraisement appears in Article 53, Section 14, which merely provides that not more than two appraisers shall be summoned and fixes the amount of their compensation. The Referee, therefore, passed the Order hereto attached and the papers are herewith forwarded for review as prayed. Edward T. Miller, Referee in Bankruptcy. November 8, 1933. | 07-25-2022 | [
"CHESNUT, District Judge. The appeal from Referee Miller in this case presents the question as to whether Phillip N. Linthicum et al., by reason of a distraint proceeding for rent due them as landlords of the bankrupt prior to bankruptcy, secured a valid lien on certain property subsequently coming into the possession of the bankrupt trustee and by him sold. The claim is asserted as a secured claim to the extent of the proceeds of the sale made by the trustee of the chattels distrained on. The amount of rent due and unpaid to the claimant was $275 being for five months’ rent at $55.00 per month. The distraint was levied September 25, 1931.",
"On September 29, 1931, the subsequent bankrupt executed a deed of trust for the benefit of creditors to one Thomas W. Simmons. On November 6, 1931, petition in bankruptcy was filed by Lee W. Noble and adjudication followed immediately. The Referee determined (see his certification for review filed November 9, 1933) that the distraint was valid and the claimant secured a lien thereby which was good as against the bankrupt trustee and when the latter sold the goods the claimant was entitled to the proceeds of sale. The trustee in bankruptcy has appealed from the order to this effect, passed by the Referee. Further relevant facts are stated in the Referee’s certificate.1 *734It appears that the property scheduled and listed in the inventory in the distraint proceedings had not been appraised up to the time of the bankruptcy but was afterwards appraised in the bankruptcy proceeding.",
"The contention of the trustee before the Referee was that the distraint proceeding is invalid and does not constitute a properly secured claim. The Referee found, and it apparently is not disputed, that the original distraint warrant attached to the claim appears to be in the proper form and the inventory of goods and chattels was attached thereto. Apparently the only point stressed before the Referee in objection to the claim was that the distraint was ineffective on account of the fact that the property levied upon was not appraised in the distraint proceedings. No authority was cited to the Referee in support of this contention.",
"The appeal from the Referee was duly set for hearing in open court but counsel for the respective parties did not personally appear, submitting the matter on brief written memoranda of argument. The brief on behalf of the trustee here stresses the contention that the lien was not valid because it would result in the ereati of a preference within four months prior to bankruptcy and must therefore fall. This, however, quite overlooks the provision of section 64b (5) of the Bankruptcy Act, as amended by Act May 27, 1926, now § 64b (7) (11 USCA § 104 (b) (7), which gives priority to payment of “debts owing to any person who by the laws of the States or the United States is entitled to priority.” In a number of federal decisions relating to Maryland distraint proceedings, it has been held in this court and in the Circuit Court of Appeals for this Circuit, that a validly created landlord’s distress against the goods of a tenant will be sustained in bankruptcy. The latest ease on the subject reviewing prior cases is Irving Trust Co. v. Burke (C. C. A.",
"4) 65 F.(2d) 730, 732, 88 A. L. R. 877, confirming on this point the case of In re Rosenstoek (D. C.) 1 F. Supp. 830, 831, where the pertinent authorities are also reviewed. The distraint in that case was, as here, issued within- four months prior to the bankruptcy. That point, therefore, needs no further discussion. As to the suggested invalidity of the dis*735traint by reason of the fact that the appraisal of the property distrained upon had not been had prior to the bankruptcy, no authority is cited by counsel for the trustee in support of his contention, and I know of none.",
"The purpose of the appraisal which is undoubtedly contemplated and provided for by the Maryland Statutes (see Md. Code, art. 53, § 14) would seem to have relation not to the effect of the lien bnt to the subsequent sale of the goods. A somewhat similar point with regard to the alleged insufficiency of notice to the tenant as affecting- the validity of the lien obtained by the distress levied was considered by the Circuit Court of Appeals in the case of Irving Trust Co. v. Burke, 65 F.(2d) 730, 734, 88 A. L. R. 877, where it is pointed out on the authority of Keller v. Weber, 27 Md.",
"660, at page 666, that the notice is a preliminary to the sale, not to the distress on the regularity of which the right of possession of the goods depends, and the Circuit Court of Appeals adds: “Since there is no question of sale pursuant to the distraint in this ease, it follows that appellant had perfected a valid lien under the state law, irrespective of the sufficiency of the inventory, and is therefore entitled to a prior claim against the proceeds of the property on the demised premises.” This reasoning is likewise applicable to the point made that there was no appraisal prior to the bankruptcy.",
"The appraisal is not a condition precedent to the levy of the distraint hut only to a subsequent sale thereunder. Prior to the statute of 2nd William & Mary, sess. 1, chap. 6 (vol. 2 Alexander’s British Statutes, p. 774) the landlord could not sell goods distrained hut could only hold them as a pledge until the rent was paid. 36 C. J. 578, 580; Tiffany Landlord & Tenant, 2061, 2063. The landlord’s power to sell was given by this statute which also provided for the appraisal of the goods and made it a condition precedent to the sale.",
"The Maryland Code, art. 53, § 14, providing for appraisers is doubtless historically attributable to this statute. But the statute did not itself make a sale obligatory although if it was delayed for an unreasonable time the tenant might have a remedy against the landlord for consequential damages. This statute is in force in Maryland. State v. Timmons, 90 Md. 10, 44 A. 1003, 78 Am. St. Rep. 417; Cahill v. Lee, 55 Md. 319. As between the landlord and the tenant an agreement could be made postponing the sale but continuing the lien although if the sale was unreasonably delayed a bona fide purchaser of the goods distrained could get a valid title from the tenant. Lamotte v. Wisner, 51 Md. 559. Nothing appears in this ease to indicate that the delay in making the appraisal was for an unreasonable length of time or that the tenant, subsequently the bankrupt, made any objection to the delay; and it does not appear that the delay was such under the circumstances as to cause a reasonable inference that the distraint had been abandoned.",
"For these reasons I confirm the Referee’s order. To the Honorable, the Judges of Said Court: The Report of Edward T. Miller, Referee, to whom the above entitled ease was referred, respectfully shows: 1. That among the claims filed against the said bankrupt estate, there was one of Philip N. Linthicum et al., filed on Dec. 22, 1931, as a secured rent daim in the amount of Two Hundred Seventy-Five ($275.00) Dollars, basis of said daim being a distraint proceeding filed prior to the adjudication in bankruptcy, the said claim being hereto attached as “Exhibit #1.” 2.",
"That subsequently on Oct. 16, 1933, William O. Dean, Trustee in the above entitled case, filed objections to the allowance of said claim as a secured claim, said objections being filed herewith as “Exhibit #2.” 3. That a hearing having been held in the matter on the 21st day of Oct. 1933, the Referee passed an Order allowing said daim as secured to the extent of the pro*734ceeds derived from the property distrained upon, this order being attached hereto as “Exhibit #3.” 4. That on the 3rd day of Nov. 1933, the said William O. Dean, Trustee, through Thomas W. Simmons, Esq., his Attorney, filed a petition for review of the Findings of the Referee in said matter, which is attached hereto as “Exhibit #4.” 5. The facts as disclosed by the hearing are as follows: The bankrupt, prior to the adjudication, rented a store property from the claimants, Philip N. Linthicum et al. at a monthly rental of Fifty-Five ($55.00) Dollai’s.",
"On the 21st day of Sept. 1931, distraint proceedings were instituted before George W. James, J. P., for five months rent, totaling Two Hundred and Seventy-Five ($275.00) Dollars. A constable laid the distress on the 25th day of Sept. 1931, and scheduled certain fixtures and furnishings located on the rented premises. On the 29th day of Sept. 1931, Lee W. Noble made a Deed of Trust for the benefit of his creditors, in favor of Thomas W. Simmons, Esq. The property scheduled in the distraint proceedings had 'not been appraised. On Nov. 6th, 1931, as a result of a voluntary petition, the said Lee W. Noble was adjudged a bankrupt and the property in question was appraised in the bankruptcy proceeding and has subsequently been sold by the trustee in bankruptcy. The contention of the trustee is that the distraint proceeding is invalid and does not constitute a proper secured claim.",
"The original distraint warrant attached to the Linthicum claim appears to be in the usual and proper form. The Inventory of Goods and Chattels is attached thereto. The Referee can find no authorities or law to justify the contention of the trustee that the distraint would not be effective on account of the fact that the property levied upon was not appraised in the distraint proceeding. Section 9 of Article 53 of the Code of Maryland prescribes that to distrain for rent, the Landlord or his agent may make oath before any officer of the County or State where the Landlord or Agent may reside who is qualified by law to administer oaths or affidavits and that the affidavit must specify the amount which said Landlord may claim to be due. The papers in this proceeding indicate that this requirement has been fully met.",
"The only requirement relative to appraisement appears in Article 53, Section 14, which merely provides that not more than two appraisers shall be summoned and fixes the amount of their compensation. The Referee, therefore, passed the Order hereto attached and the papers are herewith forwarded for review as prayed. Edward T. Miller, Referee in Bankruptcy. November 8, 1933."
] | https://www.courtlistener.com/api/rest/v3/opinions/7219500/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
792 F. Supp. 2d 806 (2011) STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., et al., Plaintiffs, v. Arnold LINCOW, et al., Defendants. Civil Action No. 05-5368. United States District Court, E.D. Pennsylvania. June 16, 2011. *807 Cy Goldberg, Matthew A. Moroney, Richard Michael Castagna, Warren Holland, Goldberg, Miller & Rubin, PC, Philadelphia, PA, for Plaintiffs. Jeffrey M. Lindy, Law Offices of Jeffrey M. Lindy, Joel W. Todd, Barry W. Krengel, Kenneth D. Albert, Michael D. Dolchin, Dolchin Slotkin & Todd PC, David J. Berney, Law Offices of David J. Berney, Kenneth E. Aaron, Weir & Partners, Jami B. Nimeroff, Brown Stone Nimeroff LLC, Jon C. Sirlin, Sirlin Gallogly & Lesser, PC, Stephen C. Baker, Drinker Biddle & Reath LLP, James T. Moughan, Britt, Hankins & Moughan, Julia Morrow, Friedman Schuman Applebaum Nemeroff, Stanley B. Cheiken, Jenkintown, PA, James C. Sargent, Jr., Maureen M. McBride, Brian H. Leinhauser, Law Offices of Lamb & McErlane, P.C., West Chester, PA, William J. Levant, Kaplin Stewart Meloff Reiter & Stein PC, Blue Bell, PA, Martin J. Pezzner, Peruto and Peruto, Bala Cynwyd, PA, Valentino F. DiGiorgio, III, Stradley Ronon Steven & Young LLP, Malvern, PA, Jonathan P. Boughrum, Montgomery, McCracken, Walker & Rhoads, LLP, Berwyn, PA, for Defendants. Charles Schwab, Philadelphia, PA, pro se. Howard Bashman, Willow Grove, PA, pro se.
MEMORANDUM EDUARDO C. ROBRENO, District Judge.
I. INTRODUCTION On March 26, 2009, judgment was entered in favor of Plaintiffs State Farm Mutual Automobile Insurance Company and State Farm Fire and Casualty Company ("Plaintiffs") against several defendants. (See doc. no. 593.) Pursuant to 28 U.S.C. § 636(b)(3), the Court referred "all matters concerning execution of the judgment" to Chief Magistrate Judge Rueter. (See doc. no. 843.) Asset discovery was undertaken, and one of the defendants, Arnold Lincow ("Defendant"), subsequently filed claims for exemption under 42 Pa. Cons.Stat. § 8124(b)(1)(ix). These claims seek to exempt from execution of judgment two separate individual retirement accounts ("IRAs") which contain funds that have been held in various other accounts. On August 24 and August 25, 2010, Judge Rueter conducted an evidentiary hearing on Defendant's claims. After inviting the parties to submit proposed findings of facts and conclusions of law, Judge Rueter issued a memorandum and order granting Defendant's claims for exemption. Plaintiffs object to Judge Rueter's ruling. For the reasons set forth below, Plaintiffs' objections will be overruled in part and sustained in part.
*808 II. BACKGROUND Defendant, in accordance with 42 Pa. Cons.Stat. § 8124(b)(1)(ix), seeks exemption from execution of Plaintiffs' judgment as to: (1) an AXA Equitable Accumulator IRA (the "AXA Account"); and (2) a TD Ameritrade IRA (the "TD Account"). Plaintiffs argue that Defendant did not adequately demonstrate his entitlement to the exemption. Defendant, of course, disagrees. However, while predicated on the sufficiency of the evidence presented before Judge Rueter, the parties' disagreement stems from their divergent interpretations of section 8124(b)(1). That statute provides that the following funds are exempt from the execution of a judgment: (ix) Any retirement or annuity fund provided for under section 401(a), 403(a) and (b), 408, 408A, 409 or 530 of the Internal Revenue Code of 1986 ..., the appreciation thereon, the income therefrom, the benefits or annuity payable thereunder and transfers and rollovers between such funds. This paragraph shall not apply to: . . . (B) Amounts contributed by the debtor to the retirement or annuity fund in excess of $15,000 within a one-year period. This shall not include amounts directly rolled over from other funds which are exempt from attachment under this subparagraph. 42 Pa. Cons. Stat. § 8124(b)(1)(ix). Plaintiffs contend that section 8124's "provided for under" language refers to tax qualification under the Internal Revenue Code provisions set forth in the statute, and that a party seeking the exemption must therefore prove that the relevant funds have consistently been qualified. See id. (exempting funds "provided for under [certain sections of the Internal Revenue Code] ... and transfers and rollovers between such funds" (emphasis added)); In re Willis, 07-11010, 2009 WL 2424548, at *11 (S.D.Fla.Bankr. Aug. 6, 2009) ("Under the IRC, IRA funds rolled over from a non-qualified account retain non-qualified status."). Defendant, on the other hand, urges that "`provided for under' is broader than `qualified under' and thus a non-qualified plan is exempt unless or until the IRS makes a determination that a plan is disqualified." (Def.'s Resp. to Pls.' Objections ¶ 24.)
III. DISCUSSION
A. Standard of Review
Broadly speaking, the Federal Magistrates Act "distinguishes between two categories of matters that a district judge can refer to a magistrate judge." Nat'l Labor Relations Bd. v. Frazier, 966 F.2d 812, 816 (3d Cir.1992). Namely, pretrial matters and dispositive matters. See id.; 28 U.S.C. § 636(b)(1)(A) (stating a magistrate judge may "determine any pretrial matter... except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information made by the defendant, to suppress evidence in a criminal case, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action"). Pretrial matters, which magistrate judges may decide, are reviewed under a clearly erroneous standard. See 28 U.S.C. § 636(b)(1)(A). Dispositive matters, by contrast, may only be resolved by way of a report and recommendation which is reviewed de novo. Id. § 636(b)(1)(B). Here, Judge Rueter resolved Defendant's claims of exemption under a referral invoking the additional duties clause in section 636(b)(3). See id. § 636(b)(3) ("A magistrate judge may be *809 assigned such additional duties as are not inconsistent with the Constitution and laws of the United States."). Under these circumstances, the appropriate standard of review is determined by reference to whether the case more closely resembles a pretrial matter or one of the dispositive matters in the statute which can be so characterized by virtue of their "preclusive effect on the parties." Frazier, 966 F.2d at 816. Notwithstanding Defendant's attempts to analogize the parties' dispute to a routine pretrial discovery matter, this case plainly calls for de novo review because resolution of Defendant's claim will finally adjudicate the parties' rights and obligations with respect to the funds for which Defendant seeks exemption. Thus, the Court applies de novo review to Judge Rueter's memorandum and order.
B. Application
As noted, Plaintiffs argue that Defendant failed to introduce sufficient evidence to support Judge Rueter's decision because Defendant failed to show that the funds in the two IRAs were continuously tax qualified.[1]See Alliance Home of Carlisle v. Bd. of Assessment Appeals, 591 Pa. 436, 919 A.2d 206, 225 (2007) (noting that, as a general matter, there is an "affirmative burden" on the party seeking an exemption "to prove entitlement to exemption"); Navistar Fin. Corp. v. Hrobuchak, No. 08-959, 2009 WL 483123, at *1-2 (M.D.Pa. Feb. 25, 2009) (indicating that the party claiming an exemption under section 8124(b)(1)(ix) must prove an entitlement to it). Defendant, acknowledging that he had the "burden to prove that his IRA accounts fall within the purview of the Exemption Statute," (Def.'s Resp. to Pls.' Objections ¶ 6), argues he is not required to demonstrate tax qualification to prove that the exemption applies. Instead, according to Defendant, he met his burden of demonstrating that the exemption applies because (1) the funds are kept in an account provided for in one of the sections of the Internal Revenue Code listed in section 8124; and (2) there is no evidence of a determination that the account is (or that prior accounts from which the funds derived were) disqualified.
1. Legal Standard for Section 8124's Statutory Exemption
After acknowledging the parties' competing statutory interpretations, Judge Rueter found it unnecessary to definitively resolve this underlying legal dispute because he found that "Lincow sufficiently proved that the IRAs are exempt under the statute, and State Farm did not prove that an exception to that exemption is applicable." State Farm Mut. Auto. Ins. Co. v. Lincow, No. 05-5368, 2010 WL 4909582, at *2 (E.D.Pa. Nov. 30, 2010); see also id. at *8. While the Court appreciates Judge Rueter's careful recitation of the facts and efforts to resolve the case on less contentious grounds, the Court disagrees with Judge Rueter's conclusion that resolving the parties' disagreement over the statute's meaning is unnecessary to disposition of Defendant's claims. This inquiry, after all, is intimately tied to the parties' respective burdens of proof. If Plaintiffs are correct, Defendant would have to introduce evidence supporting the conclusion that the funds in the IRAs were continuously tax qualified. See 42 Pa. Cons.Stat. § 8124(b)(1)(ix); In re Willis, 2009 WL 2424548, at *11. If Defendant is correct, *810 by contrast, qualification would be presumed absent any evidence submitted by Plaintiffs to the contrary. Unfortunately, there is scant caselaw addressing whether tax qualification is a prerequisite to exemption under section 8124(b)(1)(ix). Defendant points to First Options of Chicago, Inc. v. Kaplan (In re Kaplan), 162 B.R. 684 (Bankr.E.D.Pa. 1993), in which the bankruptcy court opined that "the Pennsylvania legislature intentionally avoided the use of the federal terms `qualified' and `plan'" in section 8124 and noted that "[section 8124] appears to have been drafted to include even plans which are not technically `tax qualified' within its scope." Id. at 696-97. Plaintiffs, on the other hand, ask the Court to interpret the statute according to the rules of statutory construction whereby "[w]ords and phrases shall be construed according to rules of grammar and according to their common and approved usage." 1 Pa. Cons.Stat. § 1903. Applying this mode of interpretation, Plaintiffs urge, the term "provided for under" in section 8124 naturally refers to the conditions set forth in the relevant Internal Revenue Code sections being met. The Court agrees with this latter construction. While the meaning of "provided for under" is somewhat ambiguous, cf. Gladwell v. Reinhart (In re Reinhart), 362 Fed.Appx. 919, 922-23 (10th Cir.2010) (certifying a similar question to the Utah Supreme Court), reference to the term's common and approved usage provides helpful guidance. Generally speaking, the word "provided" refers to a condition being met. See Webster's II New Riverside University Dictionary 948 (1984). Since the statute lists a series of provisions in the Internal Revenue Code under which the funds at issue must be "provided for," the Court concludes that the statute requires the conditions set forth in those sections to be met for the exemption to apply. After all, if a plan were not required to meet the Internal Revenue Code's conditions for qualification in the listed sections, there would be no need for the statute to refer to them at all. Moreover, notwithstanding the Kaplan court's suggestion that the statute is broad enough to exempt non-qualified funds, its holding that the exemption applied was based on the fact that the plan at issue had previously been found to be qualified by the IRS. See Kaplan, 162 B.R. at 697-98. Further, it conditioned its ruling on the plan's continuing tax qualification. See id. Thus, as the district court reviewing the bankruptcy court's decision explained, the bankruptcy court's holding in Kaplan was "in substance, based upon two IRS determinations that the Plan was tax qualified." Kaplan v. First Options of Chi., Inc., 189 B.R. 882, 890 (E.D.Pa.1995). And, as the reviewing court clarified in construing the same statute, a plan "should be tax qualified in order to be exempt from the bankruptcy estate." Id.; see First Options of Chi., Inc. v. Kaplan, 198 B.R. 91, 93 (E.D.Pa.1996) ("[T]he language of the Pennsylvania exemption statute required a plan to be tax-qualified in order for it to be found exempt under th[e] statute."). For these reasons, the Court concludes that section 8124(b)(1)(ix)'s exemption is contingent on tax qualification and that Defendant therefore bore the burden of demonstrating that the funds in the IRAs were qualified. With this in mind, the Court turns to assess the conclusions reached with respect to the two accounts at issue.
2. The AXA Account
As to the AXA Account, Judge Rueter concluded that "the evidence supports the conclusion that the funds in the AXA [Account] have been held in qualified plans and rolled over, numerous times, into the *811 AXA [Account]." Lincow, 2010 WL 4909582, at *6. Judge Rueter found as much because (1) Defendant, the trustee of the plans, testified that he believed the plans were qualified; (2) there was no evidence the IRS took any action against the IRA or that tax benefits were otherwise disallowed; (3) the officials who prepared tax returns testified that there were no irregularities with respect to the plan; and (4) Plaintiffs failed to show that the accounts were not qualified. See id. at *4, *6. While the Court will not second-guess credibility determinations made by Judge Rueter following an evidentiary hearing, Judge Rueter appears to have placed the burden on Plaintiffs to demonstrate that the funds were not qualified. See, e.g., id. at *4 ("State Farm has failed to show that such a break in the chain occurred."); see also id. at *6 ("No evidence was presented that the tax documents for the plans were not filed."). Because section 8124's exemption is contingent on tax qualification, this was an error; it was Defendant's burden to show that the funds in the AXA Account were qualified, not Plaintiffs' burden to prove that they were not. See supra Part III.B.1. Nevertheless, because the Court does not have the benefit of having heard the testimony firsthand and because Judge Rueter's decision appears to have largely rested on a misapprehension of the burden of proof, the Court will remand this matter for further proceedings. On remand, Judge Rueter should determine whether the evidence presented before him sufficed to satisfy Defendant's burden of establishing the exemption's applicability to the AXA Account,[2] and shall prepare a report and recommendation for the Court to that effect.
3. The TD Account
With respect to the TD Account, Judge Rueter considered and rejected Plaintiffs' claims that the funds were not qualified due to certain excess contributions Defendant allegedly made. See Lincow, 2010 WL 4909582, at *8. Judge Rueter did so by examining the records produced, and crediting Defendant's testimony concerning whether he made the contributions at issue. See id. ("This notation supports Lincow's testimony that he did not make a contribution in this amount ...."); id. ("Lincow testified that he did not make any contributions to this IRA in 1990.... The evidence shows that Lincow did not make a contribution of stock to this IRA in 1990."). Having carefully reviewed the evidentiary record, the Court agrees with Judge Rueter that the evidence showed the funds were qualified and that the alleged disqualifying contributions were not made. Plaintiffs' objections are therefore overruled with respect to the TD Account.
IV. CONCLUSION For the reasons explained above, Plaintiffs' objections will be overruled in part and sustained in part. Judge Rueter's memorandum will be vacated to the extent it orders the AXA Account exempt from execution, and Judge Rueter is respectfully directed to prepare a report and recommendation concerning disposition of the exemption claimed for the AXA Account. An appropriate Order will follow.
*812 ORDER
AND NOW, this 16th day of June, 2011, it is hereby ORDERED that Plaintiffs' objections (doc. no. 1070) to Judge Rueter's memorandum and order (doc. no. 1068) are SUSTAINED in part and OVERRULED in part as follows: 1) Plaintiffs' objections are OVERRULED with respect to the TD Ameritrade IRA Account; 2) Plaintiffs' objections are SUSTAINED with respect to the AXA Equitable IRA Account. Judge Rueter's memorandum is hereby VACATED to the extent it orders the AXA Equitable IRA Account exempt from execution of the judgment; 3) Judge Rueter shall prepare a report and recommendation concerning Defendant's exemption claim for the AXA Equitable IRA Account. AND IT IS SO ORDERED. NOTES [1] In addition, Plaintiffs object to (1) David Pozzi's testimony regarding the AXA Account's tax qualification; (2) Judge Rueter's refusal to apply an adverse inference to missing documentary evidence pertaining to the AXA Account; and (3) Judge Rueter's alleged lack of ruling concerning excess contributions to the AXA Account. Given the Court's disposition, it is unnecessary to address these contentions at this time. [2] Of course, it is within Judge Rueter's discretion to determine whether to consider additional evidence or to prepare the report and recommendation based on the evidence and testimony from the August 2010 evidentiary hearing. | 10-30-2013 | [
"792 F. Supp. 2d 806 (2011) STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., et al., Plaintiffs, v. Arnold LINCOW, et al., Defendants. Civil Action No. 05-5368. United States District Court, E.D. Pennsylvania. June 16, 2011. *807 Cy Goldberg, Matthew A. Moroney, Richard Michael Castagna, Warren Holland, Goldberg, Miller & Rubin, PC, Philadelphia, PA, for Plaintiffs. Jeffrey M. Lindy, Law Offices of Jeffrey M. Lindy, Joel W. Todd, Barry W. Krengel, Kenneth D. Albert, Michael D. Dolchin, Dolchin Slotkin & Todd PC, David J. Berney, Law Offices of David J. Berney, Kenneth E. Aaron, Weir & Partners, Jami B. Nimeroff, Brown Stone Nimeroff LLC, Jon C. Sirlin, Sirlin Gallogly & Lesser, PC, Stephen C. Baker, Drinker Biddle & Reath LLP, James T. Moughan, Britt, Hankins & Moughan, Julia Morrow, Friedman Schuman Applebaum Nemeroff, Stanley B. Cheiken, Jenkintown, PA, James C. Sargent, Jr., Maureen M. McBride, Brian H. Leinhauser, Law Offices of Lamb & McErlane, P.C., West Chester, PA, William J. Levant, Kaplin Stewart Meloff Reiter & Stein PC, Blue Bell, PA, Martin J. Pezzner, Peruto and Peruto, Bala Cynwyd, PA, Valentino F. DiGiorgio, III, Stradley Ronon Steven & Young LLP, Malvern, PA, Jonathan P. Boughrum, Montgomery, McCracken, Walker & Rhoads, LLP, Berwyn, PA, for Defendants.",
"Charles Schwab, Philadelphia, PA, pro se. Howard Bashman, Willow Grove, PA, pro se. MEMORANDUM EDUARDO C. ROBRENO, District Judge. I. INTRODUCTION On March 26, 2009, judgment was entered in favor of Plaintiffs State Farm Mutual Automobile Insurance Company and State Farm Fire and Casualty Company (\"Plaintiffs\") against several defendants. (See doc. no. 593.) Pursuant to 28 U.S.C. § 636(b)(3), the Court referred \"all matters concerning execution of the judgment\" to Chief Magistrate Judge Rueter. (See doc. no. 843.) Asset discovery was undertaken, and one of the defendants, Arnold Lincow (\"Defendant\"), subsequently filed claims for exemption under 42 Pa. Cons.Stat. § 8124(b)(1)(ix).",
"These claims seek to exempt from execution of judgment two separate individual retirement accounts (\"IRAs\") which contain funds that have been held in various other accounts. On August 24 and August 25, 2010, Judge Rueter conducted an evidentiary hearing on Defendant's claims. After inviting the parties to submit proposed findings of facts and conclusions of law, Judge Rueter issued a memorandum and order granting Defendant's claims for exemption. Plaintiffs object to Judge Rueter's ruling. For the reasons set forth below, Plaintiffs' objections will be overruled in part and sustained in part.",
"*808 II. BACKGROUND Defendant, in accordance with 42 Pa. Cons.Stat. § 8124(b)(1)(ix), seeks exemption from execution of Plaintiffs' judgment as to: (1) an AXA Equitable Accumulator IRA (the \"AXA Account\"); and (2) a TD Ameritrade IRA (the \"TD Account\"). Plaintiffs argue that Defendant did not adequately demonstrate his entitlement to the exemption. Defendant, of course, disagrees. However, while predicated on the sufficiency of the evidence presented before Judge Rueter, the parties' disagreement stems from their divergent interpretations of section 8124(b)(1). That statute provides that the following funds are exempt from the execution of a judgment: (ix) Any retirement or annuity fund provided for under section 401(a), 403(a) and (b), 408, 408A, 409 or 530 of the Internal Revenue Code of 1986 ..., the appreciation thereon, the income therefrom, the benefits or annuity payable thereunder and transfers and rollovers between such funds. This paragraph shall not apply to: .",
". . (B) Amounts contributed by the debtor to the retirement or annuity fund in excess of $15,000 within a one-year period. This shall not include amounts directly rolled over from other funds which are exempt from attachment under this subparagraph. 42 Pa. Cons. Stat. § 8124(b)(1)(ix). Plaintiffs contend that section 8124's \"provided for under\" language refers to tax qualification under the Internal Revenue Code provisions set forth in the statute, and that a party seeking the exemption must therefore prove that the relevant funds have consistently been qualified. See id. (exempting funds \"provided for under [certain sections of the Internal Revenue Code] ... and transfers and rollovers between such funds\" (emphasis added)); In re Willis, 07-11010, 2009 WL 2424548, at *11 (S.D.Fla.Bankr. Aug. 6, 2009) (\"Under the IRC, IRA funds rolled over from a non-qualified account retain non-qualified status.\").",
"Defendant, on the other hand, urges that \"`provided for under' is broader than `qualified under' and thus a non-qualified plan is exempt unless or until the IRS makes a determination that a plan is disqualified.\" (Def. 's Resp. to Pls.' Objections ¶ 24.) III. DISCUSSION A. Standard of Review Broadly speaking, the Federal Magistrates Act \"distinguishes between two categories of matters that a district judge can refer to a magistrate judge.\" Nat'l Labor Relations Bd. v. Frazier, 966 F.2d 812, 816 (3d Cir.1992). Namely, pretrial matters and dispositive matters. See id. ; 28 U.S.C.",
"§ 636(b)(1)(A) (stating a magistrate judge may \"determine any pretrial matter... except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information made by the defendant, to suppress evidence in a criminal case, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action\"). Pretrial matters, which magistrate judges may decide, are reviewed under a clearly erroneous standard. See 28 U.S.C. § 636(b)(1)(A). Dispositive matters, by contrast, may only be resolved by way of a report and recommendation which is reviewed de novo. Id. § 636(b)(1)(B). Here, Judge Rueter resolved Defendant's claims of exemption under a referral invoking the additional duties clause in section 636(b)(3).",
"See id. § 636(b)(3) (\"A magistrate judge may be *809 assigned such additional duties as are not inconsistent with the Constitution and laws of the United States.\"). Under these circumstances, the appropriate standard of review is determined by reference to whether the case more closely resembles a pretrial matter or one of the dispositive matters in the statute which can be so characterized by virtue of their \"preclusive effect on the parties.\" Frazier, 966 F.2d at 816. Notwithstanding Defendant's attempts to analogize the parties' dispute to a routine pretrial discovery matter, this case plainly calls for de novo review because resolution of Defendant's claim will finally adjudicate the parties' rights and obligations with respect to the funds for which Defendant seeks exemption.",
"Thus, the Court applies de novo review to Judge Rueter's memorandum and order. B. Application As noted, Plaintiffs argue that Defendant failed to introduce sufficient evidence to support Judge Rueter's decision because Defendant failed to show that the funds in the two IRAs were continuously tax qualified. [1]See Alliance Home of Carlisle v. Bd. of Assessment Appeals, 591 Pa. 436, 919 A.2d 206, 225 (2007) (noting that, as a general matter, there is an \"affirmative burden\" on the party seeking an exemption \"to prove entitlement to exemption\"); Navistar Fin. Corp. v. Hrobuchak, No. 08-959, 2009 WL 483123, at *1-2 (M.D.Pa.",
"Feb. 25, 2009) (indicating that the party claiming an exemption under section 8124(b)(1)(ix) must prove an entitlement to it). Defendant, acknowledging that he had the \"burden to prove that his IRA accounts fall within the purview of the Exemption Statute,\" (Def. 's Resp. to Pls.' Objections ¶ 6), argues he is not required to demonstrate tax qualification to prove that the exemption applies. Instead, according to Defendant, he met his burden of demonstrating that the exemption applies because (1) the funds are kept in an account provided for in one of the sections of the Internal Revenue Code listed in section 8124; and (2) there is no evidence of a determination that the account is (or that prior accounts from which the funds derived were) disqualified. 1. Legal Standard for Section 8124's Statutory Exemption After acknowledging the parties' competing statutory interpretations, Judge Rueter found it unnecessary to definitively resolve this underlying legal dispute because he found that \"Lincow sufficiently proved that the IRAs are exempt under the statute, and State Farm did not prove that an exception to that exemption is applicable.\" State Farm Mut. Auto. Ins. Co. v. Lincow, No. 05-5368, 2010 WL 4909582, at *2 (E.D.Pa.",
"Nov. 30, 2010); see also id. at *8. While the Court appreciates Judge Rueter's careful recitation of the facts and efforts to resolve the case on less contentious grounds, the Court disagrees with Judge Rueter's conclusion that resolving the parties' disagreement over the statute's meaning is unnecessary to disposition of Defendant's claims. This inquiry, after all, is intimately tied to the parties' respective burdens of proof. If Plaintiffs are correct, Defendant would have to introduce evidence supporting the conclusion that the funds in the IRAs were continuously tax qualified.",
"See 42 Pa. Cons.Stat. § 8124(b)(1)(ix); In re Willis, 2009 WL 2424548, at *11. If Defendant is correct, *810 by contrast, qualification would be presumed absent any evidence submitted by Plaintiffs to the contrary. Unfortunately, there is scant caselaw addressing whether tax qualification is a prerequisite to exemption under section 8124(b)(1)(ix). Defendant points to First Options of Chicago, Inc. v. Kaplan (In re Kaplan), 162 B.R. 684 (Bankr.E.D.Pa. 1993), in which the bankruptcy court opined that \"the Pennsylvania legislature intentionally avoided the use of the federal terms `qualified' and `plan'\" in section 8124 and noted that \"[section 8124] appears to have been drafted to include even plans which are not technically `tax qualified' within its scope.\" Id. at 696-97. Plaintiffs, on the other hand, ask the Court to interpret the statute according to the rules of statutory construction whereby \"[w]ords and phrases shall be construed according to rules of grammar and according to their common and approved usage.\" 1 Pa. Cons.Stat.",
"§ 1903. Applying this mode of interpretation, Plaintiffs urge, the term \"provided for under\" in section 8124 naturally refers to the conditions set forth in the relevant Internal Revenue Code sections being met. The Court agrees with this latter construction. While the meaning of \"provided for under\" is somewhat ambiguous, cf. Gladwell v. Reinhart (In re Reinhart), 362 Fed.Appx. 919, 922-23 (10th Cir.2010) (certifying a similar question to the Utah Supreme Court), reference to the term's common and approved usage provides helpful guidance. Generally speaking, the word \"provided\" refers to a condition being met. See Webster's II New Riverside University Dictionary 948 (1984). Since the statute lists a series of provisions in the Internal Revenue Code under which the funds at issue must be \"provided for,\" the Court concludes that the statute requires the conditions set forth in those sections to be met for the exemption to apply. After all, if a plan were not required to meet the Internal Revenue Code's conditions for qualification in the listed sections, there would be no need for the statute to refer to them at all. Moreover, notwithstanding the Kaplan court's suggestion that the statute is broad enough to exempt non-qualified funds, its holding that the exemption applied was based on the fact that the plan at issue had previously been found to be qualified by the IRS.",
"See Kaplan, 162 B.R. at 697-98. Further, it conditioned its ruling on the plan's continuing tax qualification. See id. Thus, as the district court reviewing the bankruptcy court's decision explained, the bankruptcy court's holding in Kaplan was \"in substance, based upon two IRS determinations that the Plan was tax qualified.\" Kaplan v. First Options of Chi., Inc., 189 B.R. 882, 890 (E.D.Pa.1995). And, as the reviewing court clarified in construing the same statute, a plan \"should be tax qualified in order to be exempt from the bankruptcy estate.\"",
"Id. ; see First Options of Chi., Inc. v. Kaplan, 198 B.R. 91, 93 (E.D.Pa.1996) (\"[T]he language of the Pennsylvania exemption statute required a plan to be tax-qualified in order for it to be found exempt under th[e] statute.\"). For these reasons, the Court concludes that section 8124(b)(1)(ix)'s exemption is contingent on tax qualification and that Defendant therefore bore the burden of demonstrating that the funds in the IRAs were qualified. With this in mind, the Court turns to assess the conclusions reached with respect to the two accounts at issue. 2. The AXA Account As to the AXA Account, Judge Rueter concluded that \"the evidence supports the conclusion that the funds in the AXA [Account] have been held in qualified plans and rolled over, numerous times, into the *811 AXA [Account].\" Lincow, 2010 WL 4909582, at *6. Judge Rueter found as much because (1) Defendant, the trustee of the plans, testified that he believed the plans were qualified; (2) there was no evidence the IRS took any action against the IRA or that tax benefits were otherwise disallowed; (3) the officials who prepared tax returns testified that there were no irregularities with respect to the plan; and (4) Plaintiffs failed to show that the accounts were not qualified.",
"See id. at *4, *6. While the Court will not second-guess credibility determinations made by Judge Rueter following an evidentiary hearing, Judge Rueter appears to have placed the burden on Plaintiffs to demonstrate that the funds were not qualified. See, e.g., id. at *4 (\"State Farm has failed to show that such a break in the chain occurred. \"); see also id. at *6 (\"No evidence was presented that the tax documents for the plans were not filed.\").",
"Because section 8124's exemption is contingent on tax qualification, this was an error; it was Defendant's burden to show that the funds in the AXA Account were qualified, not Plaintiffs' burden to prove that they were not. See supra Part III.B.1. Nevertheless, because the Court does not have the benefit of having heard the testimony firsthand and because Judge Rueter's decision appears to have largely rested on a misapprehension of the burden of proof, the Court will remand this matter for further proceedings. On remand, Judge Rueter should determine whether the evidence presented before him sufficed to satisfy Defendant's burden of establishing the exemption's applicability to the AXA Account,[2] and shall prepare a report and recommendation for the Court to that effect. 3. The TD Account With respect to the TD Account, Judge Rueter considered and rejected Plaintiffs' claims that the funds were not qualified due to certain excess contributions Defendant allegedly made. See Lincow, 2010 WL 4909582, at *8.",
"Judge Rueter did so by examining the records produced, and crediting Defendant's testimony concerning whether he made the contributions at issue. See id. (\"This notation supports Lincow's testimony that he did not make a contribution in this amount ....\"); id. (\"Lincow testified that he did not make any contributions to this IRA in 1990.... The evidence shows that Lincow did not make a contribution of stock to this IRA in 1990.\"). Having carefully reviewed the evidentiary record, the Court agrees with Judge Rueter that the evidence showed the funds were qualified and that the alleged disqualifying contributions were not made. Plaintiffs' objections are therefore overruled with respect to the TD Account. IV. CONCLUSION For the reasons explained above, Plaintiffs' objections will be overruled in part and sustained in part.",
"Judge Rueter's memorandum will be vacated to the extent it orders the AXA Account exempt from execution, and Judge Rueter is respectfully directed to prepare a report and recommendation concerning disposition of the exemption claimed for the AXA Account. An appropriate Order will follow. *812 ORDER AND NOW, this 16th day of June, 2011, it is hereby ORDERED that Plaintiffs' objections (doc. no. 1070) to Judge Rueter's memorandum and order (doc. no. 1068) are SUSTAINED in part and OVERRULED in part as follows: 1) Plaintiffs' objections are OVERRULED with respect to the TD Ameritrade IRA Account; 2) Plaintiffs' objections are SUSTAINED with respect to the AXA Equitable IRA Account. Judge Rueter's memorandum is hereby VACATED to the extent it orders the AXA Equitable IRA Account exempt from execution of the judgment; 3) Judge Rueter shall prepare a report and recommendation concerning Defendant's exemption claim for the AXA Equitable IRA Account. AND IT IS SO ORDERED.",
"NOTES [1] In addition, Plaintiffs object to (1) David Pozzi's testimony regarding the AXA Account's tax qualification; (2) Judge Rueter's refusal to apply an adverse inference to missing documentary evidence pertaining to the AXA Account; and (3) Judge Rueter's alleged lack of ruling concerning excess contributions to the AXA Account. Given the Court's disposition, it is unnecessary to address these contentions at this time.",
"[2] Of course, it is within Judge Rueter's discretion to determine whether to consider additional evidence or to prepare the report and recommendation based on the evidence and testimony from the August 2010 evidentiary hearing."
] | https://www.courtlistener.com/api/rest/v3/opinions/2169923/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DETAILED ACTION Response to Amendment 1. This Office Action is in response to Amendment filed on 03/14/2022. Claims 1, 6-7, 16-18, 20-21, 23 and 25 have been amended.
Claims 9-15 have been previously canceled.
Claims 2-5, 8, 19, 22, 24 and 26-27 have been remained. Claims 1-8 and 16-27 are currently pending in the application. Examiner’s Statement of Reasons for Allowance 2. Claims 1-8 and 16-27 are allowed. 3. The following is an examiner’s statement of reasons or allowance Claims 1-8 and 16-27 are allowed in the previous Office action including in the Allowable Subject Matters mailed on 02/22/2022. Conclusion 4. Any inquiry concerning this communication or earlier communications from the examiner should be directed to Phuc T. Dang whose telephone number is 571-272-1776. The examiner can normally be reached on 8:00 am-5:00 pm. If attempts to reach the examiner by telephone are unsuccessful, the examiner's supervisor, Thao Le can be reached on 571-272-1708. 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.
/PHUC T DANG/Primary Examiner, Art Unit 2892 | 2022-04-25T20:00:37 | [
"DETAILED ACTION Response to Amendment 1. This Office Action is in response to Amendment filed on 03/14/2022. Claims 1, 6-7, 16-18, 20-21, 23 and 25 have been amended. Claims 9-15 have been previously canceled. Claims 2-5, 8, 19, 22, 24 and 26-27 have been remained. Claims 1-8 and 16-27 are currently pending in the application. Examiner’s Statement of Reasons for Allowance 2. Claims 1-8 and 16-27 are allowed. 3. The following is an examiner’s statement of reasons or allowance Claims 1-8 and 16-27 are allowed in the previous Office action including in the Allowable Subject Matters mailed on 02/22/2022. Conclusion 4. Any inquiry concerning this communication or earlier communications from the examiner should be directed to Phuc T. Dang whose telephone number is 571-272-1776. The examiner can normally be reached on 8:00 am-5:00 pm. If attempts to reach the examiner by telephone are unsuccessful, the examiner's supervisor, Thao Le can be reached on 571-272-1708.",
"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. /PHUC T DANG/Primary Examiner, Art Unit 2892"
] | https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-04-17.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Yesawich, Jr., J. Appeal from an amended judgment of the Supreme Court (McDermott, J.), entered August 5, 1986 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to prohibit respondent from acting in excess of its jurisdiction or, alternatively, to direct it to render a decision with regard to petitioner’s conceptual site plan application. Petitioner owns an irrevocable option to purchase approximately 20 acres of land in the Town of Colonie, Albany County, upon which it seeks to construct a 206-unit apartment complex. Toward that end, as required by Colonie Town Code § 190-29, petitioner submitted a conceptual site plan to the Town’s Engineering and Planning Services Department for approval. At respondent’s December 17, 1985 meeting, submission of the plan was noted and further action deferred pending review and comment from other town agencies. Although the bulk of the parcel is zoned residence B-3, permitting of 12 apartments per acre, a portion thereof is zoned A-2, precluding location thereon of buildings and parking areas. Apparently in an effort to comply with this prohibition, petitioner presented revised concept plans to respondent at its January 21, 1986 meeting. Environmental and zoning concerns expressed at that time by area residents prompted respondent to refer these plans to the local school district, the town’s highway safety committee and the fire department for review. After respondent’s members took a field trip to the proposed site, it was suggested that petitioner revise its concept plan to provide more orderly building access and parking layout, reduce the number of units and address various other concerns. Three alternate plans were thereafter submitted to respondent at its February 25, 1986 meeting. A legal issue bearing on how access was to be obtained to the proposed apartment development came to light and was referred to the Town Attorney for an opinion. *971While that issue was still under consideration, petitioner, by letter dated March 31, 1986 to the Town Clerk, requested a certificate stating that the date of submission of the preliminary plat of the proposed apartment complex was December 17, 1985 and that no action had been taken. The Town Attorney, responding, informed petitioner the certificate would not be forthcoming since the project did not fall within the mandatory 45-day period of Town Law § 274-a (2). Petitioner then commenced this CPLR article 78 proceeding contending that respondent lacked jurisdiction to review its site plan proposals because they contemplated "residential use”; alternatively, an order compelling respondent to render a decision with respect to the submitted plans was sought. Supreme Court rejected both arguments and this appeal followed. The premise of petitioner’s jurisdictional argument is that the proposed project involves a "residential use” of land, that respondent is only authorized to review and approve commercial and industrial uses, and that in any event "commercial use”—a term not defined in the Town Code—should be construed to exclude apartment complexes from its definition. Colonie Town Code § 190-29 (A) requires respondent to review and approve all newly constructed sites for, inter alia, "commercial * * * use”. Notwithstanding the apartment units envisioned are designed to be utilized solely as residences, ultimately to be either leased or sold, that does not, as Supreme Court concluded, render respondent’s perception of the entire apartment project as a commercial use an arbitrary or capricious interpretation of that phrase. Indeed, petitioner concedes there is neither statutory nor case law authority for the proposition it advances, i.e., that, for zoning purposes, development of an apartment complex of the magnitude proposed constitutes a "residential use”. Rather, arguing by analogy, petitioner points to cases construing restrictive covenants for "residential purposes” which held that development of an apartment complex was not violative of the limitation (see, Bennett v Petrino, 235 NY 474); the similarity is tenuous at best. Also misplaced is petitioner’s effort to extrapolate a controlling definition of "commercial use”—one inhibiting respondent’s jurisdiction to review petitioner’s site plan—from Town Code § 157-3. As respondent aptly notes, that section, popularly known as the "Town of Colonie Sign Law”, is completely irrelevant. *972To the extent respondent is charged with construing provisions of the Town Code, its reading thereof, unless irrational or unreasonable, is to be upheld (see, Matter of Aboud v Wallace, 94 AD2d 874, 875). Its view that an apartment complex with over 200 units with all its attendant demographic and environmental concerns constitutes a commercial use of this land is hardly irrational (see, 3 Anderson, American Law of Zoning § 18.09, at 236-237 [3d ed]). It is also worth noting that respondent’s interpretation here is not an arbitrary and aberrant one, and that it has uniformly construed its statutory mandate to include a review of apartment complex development proposals. With respect to the alternative relief requested by petitioner, namely an order directing respondent to render a decision on petitioner’s conceptual site plan application, respondent persuasively argues that in the context of its review procedure, Town Law § 274-a (2), insofar as it requires a planning board to render a decision within 45 days after either an application for site plan approval has been filed or a hearing thereon has been held, relates to final site development plans. The Town of Colonie enacted a three-phase review procedure for site development plans. Town Code § 190-30 requires submission of a concept development plan with a flexible design concept that may be readily changed as deemed necessary "prior to the work required for a detailed final site plan”. Town Code § 190-31 enumerates the various requirements for final site plans, which are significantly more stringent than those required for concept submission. A review of the plans submitted and the record makes it quite clear that the plans petitioner tendered to respondent on December 17, 1985 were not final site plans. Accordingly, the 45-day time limit imposed by Town Law § 274-a (2) was not triggered at that juncture and petitioner’s demand for certification was properly denied. Nevertheless, the suggestion that respondent be enjoined to render a decision on petitioner’s conceptual site plan application does have merit. By demanding that relief, petitioner unequivocally signified its desire to have respondent treat its concept submission as its final site plan, and that it is either not amenable to additional changes in its concept design or that it deems further delay on respondent’s part unjustifiable. In either event, petitioner is entitled to have a decision on its project within 45 days as prescribed by Town Law § 274-a (2). Judgment reversed, on the law and the facts, without costs, and petition granted to the extent that respondent is directed *973to render a decision on petitioner’s conceptual site plan within 45 days after service of a copy of the order to be entered upon this decision with notice of entry. Casey, J. P., Weiss, Mikoll, Yesawich, Jr., and Harvey, JJ., concur. | 01-13-2022 | [
"Yesawich, Jr., J. Appeal from an amended judgment of the Supreme Court (McDermott, J. ), entered August 5, 1986 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to prohibit respondent from acting in excess of its jurisdiction or, alternatively, to direct it to render a decision with regard to petitioner’s conceptual site plan application. Petitioner owns an irrevocable option to purchase approximately 20 acres of land in the Town of Colonie, Albany County, upon which it seeks to construct a 206-unit apartment complex. Toward that end, as required by Colonie Town Code § 190-29, petitioner submitted a conceptual site plan to the Town’s Engineering and Planning Services Department for approval. At respondent’s December 17, 1985 meeting, submission of the plan was noted and further action deferred pending review and comment from other town agencies.",
"Although the bulk of the parcel is zoned residence B-3, permitting of 12 apartments per acre, a portion thereof is zoned A-2, precluding location thereon of buildings and parking areas. Apparently in an effort to comply with this prohibition, petitioner presented revised concept plans to respondent at its January 21, 1986 meeting. Environmental and zoning concerns expressed at that time by area residents prompted respondent to refer these plans to the local school district, the town’s highway safety committee and the fire department for review. After respondent’s members took a field trip to the proposed site, it was suggested that petitioner revise its concept plan to provide more orderly building access and parking layout, reduce the number of units and address various other concerns. Three alternate plans were thereafter submitted to respondent at its February 25, 1986 meeting.",
"A legal issue bearing on how access was to be obtained to the proposed apartment development came to light and was referred to the Town Attorney for an opinion. *971While that issue was still under consideration, petitioner, by letter dated March 31, 1986 to the Town Clerk, requested a certificate stating that the date of submission of the preliminary plat of the proposed apartment complex was December 17, 1985 and that no action had been taken.",
"The Town Attorney, responding, informed petitioner the certificate would not be forthcoming since the project did not fall within the mandatory 45-day period of Town Law § 274-a (2). Petitioner then commenced this CPLR article 78 proceeding contending that respondent lacked jurisdiction to review its site plan proposals because they contemplated \"residential use”; alternatively, an order compelling respondent to render a decision with respect to the submitted plans was sought. Supreme Court rejected both arguments and this appeal followed. The premise of petitioner’s jurisdictional argument is that the proposed project involves a \"residential use” of land, that respondent is only authorized to review and approve commercial and industrial uses, and that in any event \"commercial use”—a term not defined in the Town Code—should be construed to exclude apartment complexes from its definition. Colonie Town Code § 190-29 (A) requires respondent to review and approve all newly constructed sites for, inter alia, \"commercial * * * use”.",
"Notwithstanding the apartment units envisioned are designed to be utilized solely as residences, ultimately to be either leased or sold, that does not, as Supreme Court concluded, render respondent’s perception of the entire apartment project as a commercial use an arbitrary or capricious interpretation of that phrase. Indeed, petitioner concedes there is neither statutory nor case law authority for the proposition it advances, i.e., that, for zoning purposes, development of an apartment complex of the magnitude proposed constitutes a \"residential use”. Rather, arguing by analogy, petitioner points to cases construing restrictive covenants for \"residential purposes” which held that development of an apartment complex was not violative of the limitation (see, Bennett v Petrino, 235 NY 474); the similarity is tenuous at best. Also misplaced is petitioner’s effort to extrapolate a controlling definition of \"commercial use”—one inhibiting respondent’s jurisdiction to review petitioner’s site plan—from Town Code § 157-3. As respondent aptly notes, that section, popularly known as the \"Town of Colonie Sign Law”, is completely irrelevant. *972To the extent respondent is charged with construing provisions of the Town Code, its reading thereof, unless irrational or unreasonable, is to be upheld (see, Matter of Aboud v Wallace, 94 AD2d 874, 875).",
"Its view that an apartment complex with over 200 units with all its attendant demographic and environmental concerns constitutes a commercial use of this land is hardly irrational (see, 3 Anderson, American Law of Zoning § 18.09, at 236-237 [3d ed]). It is also worth noting that respondent’s interpretation here is not an arbitrary and aberrant one, and that it has uniformly construed its statutory mandate to include a review of apartment complex development proposals. With respect to the alternative relief requested by petitioner, namely an order directing respondent to render a decision on petitioner’s conceptual site plan application, respondent persuasively argues that in the context of its review procedure, Town Law § 274-a (2), insofar as it requires a planning board to render a decision within 45 days after either an application for site plan approval has been filed or a hearing thereon has been held, relates to final site development plans.",
"The Town of Colonie enacted a three-phase review procedure for site development plans. Town Code § 190-30 requires submission of a concept development plan with a flexible design concept that may be readily changed as deemed necessary \"prior to the work required for a detailed final site plan”. Town Code § 190-31 enumerates the various requirements for final site plans, which are significantly more stringent than those required for concept submission. A review of the plans submitted and the record makes it quite clear that the plans petitioner tendered to respondent on December 17, 1985 were not final site plans. Accordingly, the 45-day time limit imposed by Town Law § 274-a (2) was not triggered at that juncture and petitioner’s demand for certification was properly denied. Nevertheless, the suggestion that respondent be enjoined to render a decision on petitioner’s conceptual site plan application does have merit. By demanding that relief, petitioner unequivocally signified its desire to have respondent treat its concept submission as its final site plan, and that it is either not amenable to additional changes in its concept design or that it deems further delay on respondent’s part unjustifiable. In either event, petitioner is entitled to have a decision on its project within 45 days as prescribed by Town Law § 274-a (2). Judgment reversed, on the law and the facts, without costs, and petition granted to the extent that respondent is directed *973to render a decision on petitioner’s conceptual site plan within 45 days after service of a copy of the order to be entered upon this decision with notice of entry.",
"Casey, J. P., Weiss, Mikoll, Yesawich, Jr., and Harvey, JJ., concur."
] | https://www.courtlistener.com/api/rest/v3/opinions/5894413/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Response to argument Although the office indicated allowability of claims 15, 18-20, 33 and 34, the allowability is withdrawn after further consideration. DETAILED ACTION Claim Rejections - 35 USC § 102 The following is a quotation of the appropriate paragraphs of pre-AIA 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 –
(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of application for patent in the United States.
Claim(s) 15, 18-20 is/are rejected under pre-AIA 35 U.S.C. 35 USC § 102(b) as being anticipated by Toms et al ( US Pub 20060173362 ).
Regarding claim 15, Toms teaches a method, comprising: obtaining, by processor circuitry([0060], computer), contrast enhanced image data of tissue of interest, wherein the contrast enhanced image data is generated by a computed tomography imaging scanner emitting poly-energetic x-ray radiation ([0065] k-edge imaging); quantifying, by the processor circuitry([0060], computer), an amount t ( [0014], The effective amount of quantum dots delivered is no less than a threshold concentration of quantum dots.) of contrast material( [0071], optical nanoparticles) for the scar tissue in the tissue of interest( [0071], peripheral tissue of inflamed and/or neoplastic tissue); generating, by the processor circuitry, a signal indicative of a recommendation([0070], used for surgical navigation and guidance ) to further ablate the tissue of interest( [0070], Examples of the
Regarding claim 18, Toms in view of van der Weide and Bae teaches the method of claim 15, wherein the contrast enhanced imaging data includes at least one of computed tomography contrast enhanced imaging data or x-ray contrast enhanced imaging data (Toms, [0090], water soluble quantum dots has demonstrated their ability to be imaged in micromolar concentrations by computed tomography). Regarding claim 19, Toms in view of van der Weide and Bae teaches the method of claim 15, wherein the contrast material includes a nano-particle contrast material targeted to at least one of the scar tissue (Toms, [0071], peripheral tissue of inflamed and/or neoplastic tissue). Regarding claim 20, Toms in view of van der Weide and Bae teaches the method of claim 19, wherein the nano-particles include one or more of bismuth, gold, or gadolinium nano-particles (Toms, [0068], gadolinium).
Claim Rejections - 35 USC § 103 The following is a quotation of pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action: (a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the
Claims 1, 10-14 are rejected under pre-AIA 35 U.S.C. 35 USC § 103(a) as being unpatentable over Toms et al ( US Pub 20060173362 ) in view of Bae ("Intravenous Contrast Medium Administration and Scan Timing at CT: Considerations and Approaches", 2010) Regarding claim 1, Toms teaches an analyzer, comprising: a quantifier, comprising processor circuitry ([0060], computer), configured to quantify an amount ( [0014], The effective amount of quantum dots delivered is no less than a threshold concentration of quantum dots.) of contrast material( [0071], optical nanoparticles) representing for tissue of interest( [0071], peripheral tissue of inflamed and/or neoplastic tissue) in contrast enhanced imaging data generated by a computed tomography imaging scanner( [0009], utilizing computed tomography (CT) to image the optical nanoparticles) emitting poly-energetic x-ray radiation ([0065] k-edge imaging) ; a comparator, comprising the processor circuity, configured to compare a quantified amount ([0014], conjugating the quantum dots with peptides and nucleic acids and administering the mixture) with a pre-determined threshold ([0014], The effective amount of quantum dots delivered is no less than a threshold concentration of quantum dots.); and a recommender, comprising processor circuitry ([0060], computer), configured to generate a signal indicative of a recommendation([0070], used for surgical navigation and guidance ) to further ablate the tissue of interest( [0070], Examples of the surgical procedures include a … ablation ) in response to the quantified amount of the contrast material not satisfying a pre-determined threshold when there is the recommendation, wherein the recommender generates the signal based on a result of Toms does not expressly teach further comprising: a comparator including the one or more processors configured to compare the quantified amount with the pre-determined threshold; wherein the recommender generates the signal based on a result of the comparison and one or more rules. However, Bae teaches to compare the quantified amount (page 53, left paragraph, amount of administered contrast medium) with the pre-determined threshold (page53, left paragraph, should be sufficiently high or adjusted to patient’s body weight … thresholds of 50–150 HU should be consistently reached.) ; wherein the recommender generates the signal based on a result of the comparison and one or more rules (page53, left paragraph, reach a predetermined threshold enhancement). it would have obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine the teaching of Toms with that of Bae, by substituting Toms’ quantum dot counting with the contrast medium amount as taught be Bae, and using Bae’s enhanced image to guide the surgical operation in Toms. One of ordinary skill would have been motivated to do such combination in order “to reach a predetermined threshold enhancement”) (Bae, page53, left paragraph).
Regarding claim 10, Toms in view of Bae teaches the analyzer of claim 1, wherein the contrast enhanced imaging data include computed tomography contrast enhanced imaging data (Toms, [0090], water soluble quantum dots has demonstrated their ability to be imaged in micromolar concentrations by computed tomography). 11, Toms in view of Bae teaches the analyzer of claim 1, wherein the contrast enhanced imaging data include x-ray contrast enhanced imaging data (Toms, [0090], water soluble quantum dots in multiple x-ray imaging techniques) Regarding claim 12, Toms in view of Bae teaches the analyzer of claim 1, wherein the ablation is one or more of radio frequency (Toms, [0070], radiofrequency Ablation) or cryogenic ablation. Regarding claim 13, Toms in view of Bae teaches the analyzer of claim 1, wherein the tissue of interest is cardiac tissue (Toms, [0126], intracardiac injection). Regarding claim 14, Toms in view of Bae teaches the analyzer of claim 1, wherein the tissue of interest is a tumor (Toms, [0010], imaging a neoplasm (e.g., tumor)).
Claim 25 is rejected under pre-AIA 35 U.S.C. 35 USC § 103(a) as being unpatentable over Toms et al Regarding claim 25, Toms in view of van der Weide and Bae teaches the analyzer of claim 1, wherein the recommender is configured to generate a signal indicative of a recommendation when there is the recommendation([0070], used for surgical navigation and guidance ). Toms does not expressly teach the recommender is configured not to generate a signal indicative of a recommendation when there is no recommendation. However, official notice is taken that the limitation is a double negative statement, i.e. “not to …. When there is no…”, and it is general knowledge, as well as common sense, that such double negative is equivalent to a positive, which is already taught by Toms. Therefore it is would have obvious to one of ordinary skill in the art before the effective filing date of the claimed invention not to generate a signal indicative of a recommendation when there is no recommendation, with motivation following logical reasoning of human beings and common sense.
Claims 26-34 are rejected under pre-AIA 35 U.S.C. 35 USC § 103(a) as being unpatentable over Toms et al and Bae, further in view of Vires (“Block-copolymer-stabilized iodinated emulsions for use as CT contrast agents", 2010)
Regarding claim 26, Toms in view of Bae teaches the analyzer of claim 1. Toms and Bae does not expressly teach a combiner, comprising the processor circuitry, configured to combine a contrast image representing the contrast material of the tissue of interest and a structural image of the tissue of interest, wherein a combination of the images is visually presented. However, Vires teaches combine a contrast image representing the contrast material of the tissue of interest (A 12 min after injection in Fig. 5) and a structural image of the tissue of interest (A Before injection in Fig. 5) wherein the combination image is visually presented (Fig. 5). It would have been obvious to one of ordinary still in the art to display the images generated in Toms by combining them following the teaching of Vires, since the claimed invention is merely a combination of old elements, and in the combination each element merely would have performed the same function as it did separately, and one of ordinary skill in the art before the effective filing date of claimed invention would have recognized that the results of the combination were predictable. Regarding claim 27, Toms in view of Bae and Vires teaches the analyzer of claim 26, wherein the contrast image represents a nano- particle contrast material targeted to at least one of the scar tissue (Toms, [0071], peripheral tissue of inflamed and/or neoplastic tissue). Regarding claim 28, Toms in view of Bae and Vires teaches the analyzer of claim 27, wherein the nano-particle contrast material includes one or more of bismuth, gold, or gadolinium nano-particles (Toms,[0068], gadolinium). 29, Toms in view of Bae and Vires teaches the analyzer of claim 26, wherein the quantified amount is presented along with the contrast enhanced image (Vires, Fig. 5). Regarding claim 30, Toms in view of Bae and Vires teaches the analyzer of claim 26, wherein the quantified amount is visually represented in a graph (Vires, Fig. 4, 6, 7). Regarding claim 31, Toms in view of Bae and Vires teaches the analyzer of claim 26, wherein the signal indicative of the recommendation is presented along with the contrast enhanced image (Vires, Fig. 5A). Regarding claim 32, Toms in view of Bae and Vires teaches the analyzer of claim 26, wherein the combiner is configured to generate a single imaging data by combining the contrast image representing the contrast material of the tissue of interest and the structural image of the tissue of interest (Vires, Fig. 5).
Claims 33 and 34 essentially recite the method steps executed by the analyzer of claims 31 and 32, therefore are also rejected.
Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to JIANGENG SUN whose telephone number is (571)272-3712. The examiner can normally be reached on 8am to 5pm, EST, M-F. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see https://ppair-my.uspto.gov/pair/PrivatePair. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
JIANGENG SUN Examiner Art Unit 2661
/Jiangeng Sun/Examiner, Art Unit 2661 | 2021-01-28T13:05:38 | [
"Response to argument Although the office indicated allowability of claims 15, 18-20, 33 and 34, the allowability is withdrawn after further consideration. DETAILED ACTION Claim Rejections - 35 USC § 102 The following is a quotation of the appropriate paragraphs of pre-AIA 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 – (b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of application for patent in the United States.",
"Claim(s) 15, 18-20 is/are rejected under pre-AIA 35 U.S.C. 35 USC § 102(b) as being anticipated by Toms et al ( US Pub 20060173362 ). Regarding claim 15, Toms teaches a method, comprising: obtaining, by processor circuitry([0060], computer), contrast enhanced image data of tissue of interest, wherein the contrast enhanced image data is generated by a computed tomography imaging scanner emitting poly-energetic x-ray radiation ([0065] k-edge imaging); quantifying, by the processor circuitry([0060], computer), an amount t ( [0014], The effective amount of quantum dots delivered is no less than a threshold concentration of quantum dots.) of contrast material( [0071], optical nanoparticles) for the scar tissue in the tissue of interest( [0071], peripheral tissue of inflamed and/or neoplastic tissue); generating, by the processor circuitry, a signal indicative of a recommendation([0070], used for surgical navigation and guidance ) to further ablate the tissue of interest( [0070], Examples of the Regarding claim 18, Toms in view of van der Weide and Bae teaches the method of claim 15, wherein the contrast enhanced imaging data includes at least one of computed tomography contrast enhanced imaging data or x-ray contrast enhanced imaging data (Toms, [0090], water soluble quantum dots has demonstrated their ability to be imaged in micromolar concentrations by computed tomography).",
"Regarding claim 19, Toms in view of van der Weide and Bae teaches the method of claim 15, wherein the contrast material includes a nano-particle contrast material targeted to at least one of the scar tissue (Toms, [0071], peripheral tissue of inflamed and/or neoplastic tissue). Regarding claim 20, Toms in view of van der Weide and Bae teaches the method of claim 19, wherein the nano-particles include one or more of bismuth, gold, or gadolinium nano-particles (Toms, [0068], gadolinium). Claim Rejections - 35 USC § 103 The following is a quotation of pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action: (a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the Claims 1, 10-14 are rejected under pre-AIA 35 U.S.C.",
"35 USC § 103(a) as being unpatentable over Toms et al ( US Pub 20060173362 ) in view of Bae (\"Intravenous Contrast Medium Administration and Scan Timing at CT: Considerations and Approaches\", 2010) Regarding claim 1, Toms teaches an analyzer, comprising: a quantifier, comprising processor circuitry ([0060], computer), configured to quantify an amount ( [0014], The effective amount of quantum dots delivered is no less than a threshold concentration of quantum dots.) of contrast material( [0071], optical nanoparticles) representing for tissue of interest( [0071], peripheral tissue of inflamed and/or neoplastic tissue) in contrast enhanced imaging data generated by a computed tomography imaging scanner( [0009], utilizing computed tomography (CT) to image the optical nanoparticles) emitting poly-energetic x-ray radiation ([0065] k-edge imaging) ; a comparator, comprising the processor circuity, configured to compare a quantified amount ([0014], conjugating the quantum dots with peptides and nucleic acids and administering the mixture) with a pre-determined threshold ([0014], The effective amount of quantum dots delivered is no less than a threshold concentration of quantum dots. ); and a recommender, comprising processor circuitry ([0060], computer), configured to generate a signal indicative of a recommendation([0070], used for surgical navigation and guidance ) to further ablate the tissue of interest( [0070], Examples of the surgical procedures include a … ablation ) in response to the quantified amount of the contrast material not satisfying a pre-determined threshold when there is the recommendation, wherein the recommender generates the signal based on a result of Toms does not expressly teach further comprising: a comparator including the one or more processors configured to compare the quantified amount with the pre-determined threshold; wherein the recommender generates the signal based on a result of the comparison and one or more rules.",
"However, Bae teaches to compare the quantified amount (page 53, left paragraph, amount of administered contrast medium) with the pre-determined threshold (page53, left paragraph, should be sufficiently high or adjusted to patient’s body weight … thresholds of 50–150 HU should be consistently reached.) ; wherein the recommender generates the signal based on a result of the comparison and one or more rules (page53, left paragraph, reach a predetermined threshold enhancement). it would have obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine the teaching of Toms with that of Bae, by substituting Toms’ quantum dot counting with the contrast medium amount as taught be Bae, and using Bae’s enhanced image to guide the surgical operation in Toms.",
"One of ordinary skill would have been motivated to do such combination in order “to reach a predetermined threshold enhancement”) (Bae, page53, left paragraph). Regarding claim 10, Toms in view of Bae teaches the analyzer of claim 1, wherein the contrast enhanced imaging data include computed tomography contrast enhanced imaging data (Toms, [0090], water soluble quantum dots has demonstrated their ability to be imaged in micromolar concentrations by computed tomography). 11, Toms in view of Bae teaches the analyzer of claim 1, wherein the contrast enhanced imaging data include x-ray contrast enhanced imaging data (Toms, [0090], water soluble quantum dots in multiple x-ray imaging techniques) Regarding claim 12, Toms in view of Bae teaches the analyzer of claim 1, wherein the ablation is one or more of radio frequency (Toms, [0070], radiofrequency Ablation) or cryogenic ablation.",
"Regarding claim 13, Toms in view of Bae teaches the analyzer of claim 1, wherein the tissue of interest is cardiac tissue (Toms, [0126], intracardiac injection). Regarding claim 14, Toms in view of Bae teaches the analyzer of claim 1, wherein the tissue of interest is a tumor (Toms, [0010], imaging a neoplasm (e.g., tumor)). Claim 25 is rejected under pre-AIA 35 U.S.C. 35 USC § 103(a) as being unpatentable over Toms et al Regarding claim 25, Toms in view of van der Weide and Bae teaches the analyzer of claim 1, wherein the recommender is configured to generate a signal indicative of a recommendation when there is the recommendation([0070], used for surgical navigation and guidance ). Toms does not expressly teach the recommender is configured not to generate a signal indicative of a recommendation when there is no recommendation. However, official notice is taken that the limitation is a double negative statement, i.e.",
"“not to …. When there is no…”, and it is general knowledge, as well as common sense, that such double negative is equivalent to a positive, which is already taught by Toms. Therefore it is would have obvious to one of ordinary skill in the art before the effective filing date of the claimed invention not to generate a signal indicative of a recommendation when there is no recommendation, with motivation following logical reasoning of human beings and common sense. Claims 26-34 are rejected under pre-AIA 35 U.S.C.",
"35 USC § 103(a) as being unpatentable over Toms et al and Bae, further in view of Vires (“Block-copolymer-stabilized iodinated emulsions for use as CT contrast agents\", 2010) Regarding claim 26, Toms in view of Bae teaches the analyzer of claim 1. Toms and Bae does not expressly teach a combiner, comprising the processor circuitry, configured to combine a contrast image representing the contrast material of the tissue of interest and a structural image of the tissue of interest, wherein a combination of the images is visually presented. However, Vires teaches combine a contrast image representing the contrast material of the tissue of interest (A 12 min after injection in Fig.",
"5) and a structural image of the tissue of interest (A Before injection in Fig. 5) wherein the combination image is visually presented (Fig. 5). It would have been obvious to one of ordinary still in the art to display the images generated in Toms by combining them following the teaching of Vires, since the claimed invention is merely a combination of old elements, and in the combination each element merely would have performed the same function as it did separately, and one of ordinary skill in the art before the effective filing date of claimed invention would have recognized that the results of the combination were predictable.",
"Regarding claim 27, Toms in view of Bae and Vires teaches the analyzer of claim 26, wherein the contrast image represents a nano- particle contrast material targeted to at least one of the scar tissue (Toms, [0071], peripheral tissue of inflamed and/or neoplastic tissue). Regarding claim 28, Toms in view of Bae and Vires teaches the analyzer of claim 27, wherein the nano-particle contrast material includes one or more of bismuth, gold, or gadolinium nano-particles (Toms,[0068], gadolinium). 29, Toms in view of Bae and Vires teaches the analyzer of claim 26, wherein the quantified amount is presented along with the contrast enhanced image (Vires, Fig.",
"5). Regarding claim 30, Toms in view of Bae and Vires teaches the analyzer of claim 26, wherein the quantified amount is visually represented in a graph (Vires, Fig. 4, 6, 7). Regarding claim 31, Toms in view of Bae and Vires teaches the analyzer of claim 26, wherein the signal indicative of the recommendation is presented along with the contrast enhanced image (Vires, Fig. 5A). Regarding claim 32, Toms in view of Bae and Vires teaches the analyzer of claim 26, wherein the combiner is configured to generate a single imaging data by combining the contrast image representing the contrast material of the tissue of interest and the structural image of the tissue of interest (Vires, Fig. 5). Claims 33 and 34 essentially recite the method steps executed by the analyzer of claims 31 and 32, therefore are also rejected. Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to JIANGENG SUN whose telephone number is (571)272-3712. The examiner can normally be reached on 8am to 5pm, EST, M-F.",
"Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see https://ppair-my.uspto.gov/pair/PrivatePair. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. JIANGENG SUN Examiner Art Unit 2661 /Jiangeng Sun/Examiner, Art Unit 2661"
] | https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-01-31.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Johnson, J. In February, 1819, the complainant married Mrs. Hop*6kins, the relict of Geo. W. Hopkins, who died intestate, and he charges in his bill in substance : — That by a partition of his estate, only one-sixth of the personal estate, being an equal portion with *each of her children, was allotted to the widow, instead of one-third to which she was entitled by law, and deeds executed by her, on the 19th December, 1818, by which, in effect, she confirmed it, and reserving to herself only a life estate in the portion allotted to her, were procured and obtained from her, by the fraud and covin of the defendant Ferdinand Hopkins, Sen., and upon his representation that the property in the negroes, which constituted the bulk of the personal estate, was, in himself, were fraudulent and void as to the widow. But if not, that her deeds, of the 19th December, 1818, were a fraud upon his marital rights, and therefore void. The answer of Ferdinand Hopkins, Sen., positively and unequivocally repels the allegation of fraud, on his part, and states that during the revolutionary war, his father David Hopkins, gave to himself and his brother Newton Hopkins, the stock from which these negroes descended, in trust that they would divide them equally between themselves, and their brother G. W. Hopkins the intestate, and a sister, Mary; which had been done to the entire satisfaction of all parties. That the intestate took the exclusive possession of those allotted to him, in 1798 or ’9, and continued in possession of them, up to the time of his death, and that they remained in possession of his widow up to the time of the partition, and that he never had at any time, pretended any claim to, or interest in the negroes. In connection with this subject, it appears that the defendant Ferdinand Hopkins, Sen., had by deed dated the 30th December, 1799, conveyed to G. W. Hopkins, his portion of the negroes, given by their father, and upon the partition of his negroes amongst his children and widow, on the 19th December, 1818, he conveyed to each child (with the exception of Mrs. Glenn, who seems to have been forgotten), the portion of these negroes allotted to them, reciting that the title was in himself. This deed was found by the complainant, amongst the papers of G. W. Hopkins, after bill filed. In relation to this matter, he states in his answer that the deed to George W. Hopkins, of 1199, had been forgotten both by himself and the widow, when the deeds of 1818, were executed, and that it was done to avoid any question about his rights. He denies, also, unequivocally, that he exercised any influence over Mrs. Hopkins, to procure her* to execute the deeds of the 19th December 1818, by which reserving a life estate, she relinquishes her interest to her children, and avers that it was done wholly of her own accord. On the death- of George W. Hopkins, in 1805, his widow and the defendant Ferdinand Hopkins, Sen., administered on his estate ; and in the inventory made by them and returned to the Ordinary’s Office, these negroes are included : and it is also worthy of remark, that in the deeds from Mrs. Hopkins, of the 19th December 1818, written by F. H., Sen. it is recited that the negroes and other property therein contained, are a part of the estate of George W. Hopkins. Thus much I have collected from the documents before me, and I will now proceed to extract from the parol testimony what relates to their questions. William Hughes a witness for the defendant, stated that before Mrs. Hopkins made the deeds of the 19th December, 1818, she stated in a conversation with him, that “ she intended to convey her property to her *7children, but wished to reserve a life estate in herselfand he had another conversation with her after the conveyance was executed, but she did not then speak of its particular provisions. Ephraim Lyles, another witness, states that he was twice sent for to write this deed ; upon his going, he advised Mrs. Hopkins “to send for the defendant, Ferdinand Hopkins, Sen. , and when he came, the witness being informed that the right of the property was in him, suggested to him, that he ought to convey it from himself, and that Mrs. Hopkins then executed the deeds to her children.” She- acted, says this witness, against the advice of the defendant, Ferdinand Hopkins, Sen. He advised her, “to hold the staff in her own hands.” Opposed to this, is the evidence of Mrs. Terry, to whom Mrs. Hopkins stated, about a year before her marriage with the complainant, that the title of these negroes was in the defendant Ferdinand Hopkins, Sen., and that he had frequently “ urged her to make the titles to her own children,” and that they were to be so made. Afterwards she complained that it was a hardship, as she had had so much trouble in raising the negroes, and could not now call one of them her own. Burr Head also states, that shortly after the division of the negroes, *he heard her express much dissatisfaction concerning one which had fallen to her daughter Mrs. Grlenn, which she had raised about the house, and wanted, and Mrs. Grlenn would not exchange with her. But expressed no dissatisfaction about the deeds. These are the leading facts connected with this question, and they leave in my mind no doubt that the defendant, Ferdinand Hopkins, Sen., acted with perfect fairness in this transaction. The entire absence of any interest on his part, — his never having pretended any claim — his returning them in the inventory, as a part of the estate of Gb W. Hopkins — his advice to Mrs. Hopkins, “to hold the staff in her own hand” — are all utterly inconsistent with a design on his part, to use an improper influence over Mrs. Hopkins, in any disposition she might think proper to make of her interest, in this part of the estate: and his account of his having forgotten the deed to Gb W. Hopkins, made in the partition on the 30th December, 1199, is the only rational solution of the incongruity arising' from his having executed the subsequent deed of 1818. It follows then that the deeds executed by Mrs. Hopkins to her children were voluntary on her part, and binding. The Chancellor has so decided, and so far as that question is concerned the appeal must be dismissed. 2. The second question arising out of this state of the facts, is whether supposing the deeds voluntary, on the part of Mrs. Hopkins, they are a fraud on the marital rights of the complainant, and therefore void. The fortune of the intended wife is most frequently a weighty consideration and a strong inducement to the marriage contract, and the happiness of both the parties may, in a good degree depend on the observance of good faith, with respect tó it; and the genereral rule, very clearly, is that if pending a treaty of marriage, the intended wife makes a secret voluntary disposition of her property, and the marriage is a fraud upon the martial rights of the husband, and void. In Hunt & Matthews, 1 Vern. 408, a widow before she married again, disposed of the greater part of her estate, for the benefit of her children by her first mar*8riage, and it became a question whether that disposition was void as to second husband, who had married her a* short time after; and it was held that it was not — the Court deeming it a conscientious thing in the wife to provide for such children, before she placed herself in the power of a second husband. And I remember that that rule is stated in the case of Jones v. Cole, brought up to this Court, from New-berry some time ago, but not yet reported, when the husband also had notice. But Roper, in his treatise on the laws arising from the relation of husband and wife (page 162) questions, and I think with much show of reasoning, the propriety of allowing this case, as an exception, to the general rule laid down in Strathmore v. Bowes, 1 Ves. Jun. 28, & Havard v. Hooker, 2 Ch. Rep. 81. The objection he remarks, is not, to the object of the settlement. The fault is, the fraud committed by it, on the second husband, and it would seem that, as to him the effect must be precisely the same, whether the disposition was in favor of the children or others. This case however steers clear of this difficulty. There is in the first place no proof that the the treaty of marriage was on foot at the time these deeds were executed. They are dated on the 19th of December, 1818, and the marriage was not solemnized until some time in the month of February following ; a period too long necessarily to authorize the inference that the treaty of marriage was then pending. But a conclusive circumstance is that the complainant had notice of these deeds, before his marriage. The witness Lyles, told him of the deeds — Emanuel Allen informed him that the negroes were generally considered as the property of the defendant Ferdinand Hopkins, Son. ; and in the Chancellor’s decree of 1825, it is said he approved and applauded it. If the fortune was the inducement to seek the marriage, this would have furnished a reasonable ground to have broken it off, and he will not be permitted now to complain of a circumstance which was known to him before he was committed. 3. At the time of the intermarriage between the complainant and Mrs. Hopkins, she had possession of two negroes, Daniel and Betty, which the complainant claims, in virtue of his marital rights,—the defendants on the contrary claim them as part of the estate of George W. Hopkins. The circumstances connected with these claims, appear to me to admit of no doubt. .The evidence of Thomas Booker, *James Sanders, Daniel Glenn, Wm. Wright, William Hughes, Mrs. Head, Bennett Humphries, Loften Nunn, and Mrs. Nunn, make out beyond all contradiction, that Bird Booker, the father of Mrs Hopkins, gave to her, negro Will, during the lifetime of her first husband, George W. Hopkins, with an understanding, that he would have the right to take him back again, if he thought proper, on paying the value for him, or substituting other property in his place. Subsequently to the death of George W. Hopkins, and before the marriage of his widow, Bird Booker did take Will back, and put in his place a negro called Phill, who on being chastised a few days after, by the overseer, ran away and returned to Mr. Booker. About four years after, Mr. Booker sent to Mrs. Hopkins, Daniel and Betty, the negroes in controversy. Daniel was of less value than Will, and the witness says, that the additional negro Betty, was sent for the purpose of supplying this difference in value, and as a compensation for the loss of the services of Will, during the time he had him. The circumstances *9relied upon by the complainant, to show that Daniel and Betty was a gift directly to Mrs. Hopkins, by her father, are 1st., that neither they nor Will, were included in thé inventory of George W. Hopkins’ estate; and 2dly, that these negroes are given to her, by the will and testament of her said father, dated on October, 1818, and long after she had them in possession. If' as has been assumed, Bird Booker gave Will to Mrs. H., in the lifetime of her first husband, subject to the condition, that he should be restored upon his paying value, or substituting other property, the property in Will vested in Geo. W. H., subject to that condition, andMr. Booker was not at liberty to resume the property, without having first performed the condition — these rights devolved on the administrators of Geo. W. H. precisely to the same extent, and in the same condition as they existed in him, and no neglect, on the part of the administrators, to include Will in the inventory, nor the subsequent act of Mr. Booker, in disposing of the negroes substituted for Will, could vary them But these circumstances appear to me, to be reconcilable with the assumed state of facts. It was known that Mr. Booker had reserved the right to take back Will —probably his determination to do so, was known *at the time, and he was not, therefore, included in the inventory of Geo W. H. ’s estate ; improperly, I admit, but I can well conceive, that persons, intending to do what was right, might not well understand the character and the extent of his rights. Bird Booker had not made any formal transfer of the negroes, Daniel and Betty, and he might have thought it necessary to give them in his will, as confirmatory of what he had before done — a very common practice, and I cannot perceive any evil growing out of it. We are, therefore, of opinion, that Daniel and Betty must be regarded as part of the personal estate of Geo. W. H. and accounted for as such ; and the decree of the Circuit Court, in this respect, must be reversed 4. During the widowhood of Mrs. H., she purchased a tract of land situated in tJnion District, for $2,800, on a credit, and gave her note for payment. A part of this sum was paid by her, before her intermarriage with the complainant. During their coverture, the complainant himself paid, on account of this contract, the sum of $800, and subsequently to her death, $903 82, as appears by the Report of the Commissioner of July, 1831; and one question raised on the part of the defendant is, whether he is entitled to be reimbursed out of the lands, or her personal estate, for the sum paid by him during the coverture. Mrs. Terry died entitled to a personal estate, not reduced to possession by the complainant during their coverture, and after her death he administered on it. It is not questioned, that in his account of this estate, he is entitled to be credited with the amount paid on this contract, subsequently to her death. He was not personally liable, (Roper 74) and of course it must be charged to her estate. But the claim to be reimbursed the amount paid by him during the coverture, is clearly untenable. The husband takes the wife cum onere ; and during the coverture, the debts contracted by the wife are the debts of the husband, and that, whether she brings a fortune with her or not. A common-place view of this question will put it in the clearest point of view. A woman indebted takes a husband ; the law makes him liable, and he pays them — who is *10his debtor ? How will he exact payment of the wife ? She cannot be his debtor. On marriage, he is entitled to all her goods, *and an estate for her life, in her real estate. Her death cannot create a debt which, before, had no existence. This rule works, perhaps, somewhat harshly. A wife may owe large sums, and a corresponding estate may be in expectancy, which might not come in during her life, and it would seem a hardship that, if the husband paid the debts during the coverture, he should not be reimbursed. But it will be remembered that the husband takes the whole personal estate of the wife, and an estate for life, in her lands. In the treaty of marriage, circumspect persons look sometimes to the debtor and creditor sides of the account, and the apparent hardship vanishes when it is recollected that the act was voluntary. 5. It is contended, also, for the complainant, that he is entitled to compensation for raising the children.of G. W. Hopkins, and the young negroes belonging to the estate. This claim refers principally to Mrs. Terry’s administration of the estate during her widowhood. Mrs. Terry had possession, and the management of the whole estate, real and personal. In the account stated by the Commissioner, she is charged only with the proceeds of the crops sent to market, and is credited with all disbursements made on account of the estate, without distinguishing for what particular object, or for whose individual use. She herself raised no account against the children, or charge for raising the young negroes. But it is now brought up, for the first time, by the complainant. The annual income from the estate did not greatly exceed the necessary expenditures; and it is evident that Mrs. Terry herself, supposed that as they were all subsisting in common, and were all entitled to an equal distribution of the estate, there could be no great inequality in their expenditures; and none appears, from the evidence. But if that were not so, the children alone would have a right to complain; — not the complainant, because he is credited with every dollar that was disbursed on account of the estate, and what more would he have. Is it that he is entitled to compensation for Mrs. Terry’s care and trouble in attending to her own children before he married her ? I will not do him the injustice to believe that was intended. 6. It is claimed, also, for the complainant, that Ferdinand *Hopkins, Sr., ought to have been charged with the amount of a note due by H. Head and J. Kennedy, say $274; — but on what ground is not stated. It does appear, however, that he received §30 92 from H. Head on account of this note, which-is not accounted for. The Commissioner concludes that this amount was paid to the widow, because he has paid over to her all other moneys received by him, and the necessities of the estate required all its means, and because the widow managed it exclusively. Knowing the parties as I do, if I were left to form a conjecture, I should certainly concur with the Commissioner. But we cannot proceed upon conjecture. — Ferdinand Hopkins did receive this amount, and unless he can account for the payment by proof, he is chargeable with it. But, if it is desired, I think that the subject ought to be considered as open for further proof, if it can be furnished ; and the Commissioner is ordered to re-examine this item, if further evidence shall be offered by Mr. Hopkins. Eaves, for the plaintiff. Williams, contra. T. It is objected, also, that Ferdinand Hopkins, Jr., the son of Mrs. Terry, and one of the defendants, is not charged with $400 18j, received by him on account of the crops of 1816 and ’ll. He was of full age, it appears from the Commissioner’s Report, when he received $260, part of the amount, and the principal objection, on his part, to his liability to account, appears to have been that the plaintiff had not in his bill prayed an account against him. That is true, but in his answer, this defendant prays an account from the complainant, of the administration of the estate of G-. W. Hopkins, by his mother, the complainant’s intestate; and this charge, if it be allowed, is pro tanto, a legitimate set off against that demand, and is a matter directly put in issue by his own answer. He is, therefore, bound to render the account. His infancy, when he received a part of the sum, is doubtless a protection as to that, but we will not anticipate that he will, or that he should, avail himself of it. In order, therefore, that all the facts may appear, we have concluded to refer it back to the Commissioner to examine and report freely upon the subject, and it is so ordered. This view of the ease covers, I believe, all the questions *which have been raised by the motion on the part of the complainant, and embraces, also, all the grounds which have been specified by the defendant. And it is ordered and decreed that the decree of the Circuit Court be reformed according to the principles of this decree ; and that the Commissioner do state the accounts between the parties conformably thereto. Martin, J., (sitting for Harper, J.,) concurred. O’Neall, J.. having been of counsel for the defendant, gave no opinion. | 07-29-2022 | [
"Johnson, J. In February, 1819, the complainant married Mrs. Hop*6kins, the relict of Geo. W. Hopkins, who died intestate, and he charges in his bill in substance : — That by a partition of his estate, only one-sixth of the personal estate, being an equal portion with *each of her children, was allotted to the widow, instead of one-third to which she was entitled by law, and deeds executed by her, on the 19th December, 1818, by which, in effect, she confirmed it, and reserving to herself only a life estate in the portion allotted to her, were procured and obtained from her, by the fraud and covin of the defendant Ferdinand Hopkins, Sen., and upon his representation that the property in the negroes, which constituted the bulk of the personal estate, was, in himself, were fraudulent and void as to the widow. But if not, that her deeds, of the 19th December, 1818, were a fraud upon his marital rights, and therefore void. The answer of Ferdinand Hopkins, Sen., positively and unequivocally repels the allegation of fraud, on his part, and states that during the revolutionary war, his father David Hopkins, gave to himself and his brother Newton Hopkins, the stock from which these negroes descended, in trust that they would divide them equally between themselves, and their brother G. W. Hopkins the intestate, and a sister, Mary; which had been done to the entire satisfaction of all parties.",
"That the intestate took the exclusive possession of those allotted to him, in 1798 or ’9, and continued in possession of them, up to the time of his death, and that they remained in possession of his widow up to the time of the partition, and that he never had at any time, pretended any claim to, or interest in the negroes. In connection with this subject, it appears that the defendant Ferdinand Hopkins, Sen., had by deed dated the 30th December, 1799, conveyed to G. W. Hopkins, his portion of the negroes, given by their father, and upon the partition of his negroes amongst his children and widow, on the 19th December, 1818, he conveyed to each child (with the exception of Mrs. Glenn, who seems to have been forgotten), the portion of these negroes allotted to them, reciting that the title was in himself. This deed was found by the complainant, amongst the papers of G. W. Hopkins, after bill filed.",
"In relation to this matter, he states in his answer that the deed to George W. Hopkins, of 1199, had been forgotten both by himself and the widow, when the deeds of 1818, were executed, and that it was done to avoid any question about his rights. He denies, also, unequivocally, that he exercised any influence over Mrs. Hopkins, to procure her* to execute the deeds of the 19th December 1818, by which reserving a life estate, she relinquishes her interest to her children, and avers that it was done wholly of her own accord. On the death- of George W. Hopkins, in 1805, his widow and the defendant Ferdinand Hopkins, Sen., administered on his estate ; and in the inventory made by them and returned to the Ordinary’s Office, these negroes are included : and it is also worthy of remark, that in the deeds from Mrs. Hopkins, of the 19th December 1818, written by F. H., Sen. it is recited that the negroes and other property therein contained, are a part of the estate of George W. Hopkins. Thus much I have collected from the documents before me, and I will now proceed to extract from the parol testimony what relates to their questions.",
"William Hughes a witness for the defendant, stated that before Mrs. Hopkins made the deeds of the 19th December, 1818, she stated in a conversation with him, that “ she intended to convey her property to her *7children, but wished to reserve a life estate in herselfand he had another conversation with her after the conveyance was executed, but she did not then speak of its particular provisions. Ephraim Lyles, another witness, states that he was twice sent for to write this deed ; upon his going, he advised Mrs. Hopkins “to send for the defendant, Ferdinand Hopkins, Sen. , and when he came, the witness being informed that the right of the property was in him, suggested to him, that he ought to convey it from himself, and that Mrs. Hopkins then executed the deeds to her children.” She- acted, says this witness, against the advice of the defendant, Ferdinand Hopkins, Sen.",
"He advised her, “to hold the staff in her own hands.” Opposed to this, is the evidence of Mrs. Terry, to whom Mrs. Hopkins stated, about a year before her marriage with the complainant, that the title of these negroes was in the defendant Ferdinand Hopkins, Sen., and that he had frequently “ urged her to make the titles to her own children,” and that they were to be so made. Afterwards she complained that it was a hardship, as she had had so much trouble in raising the negroes, and could not now call one of them her own.",
"Burr Head also states, that shortly after the division of the negroes, *he heard her express much dissatisfaction concerning one which had fallen to her daughter Mrs. Grlenn, which she had raised about the house, and wanted, and Mrs. Grlenn would not exchange with her. But expressed no dissatisfaction about the deeds. These are the leading facts connected with this question, and they leave in my mind no doubt that the defendant, Ferdinand Hopkins, Sen., acted with perfect fairness in this transaction. The entire absence of any interest on his part, — his never having pretended any claim — his returning them in the inventory, as a part of the estate of Gb W. Hopkins — his advice to Mrs. Hopkins, “to hold the staff in her own hand” — are all utterly inconsistent with a design on his part, to use an improper influence over Mrs. Hopkins, in any disposition she might think proper to make of her interest, in this part of the estate: and his account of his having forgotten the deed to Gb W. Hopkins, made in the partition on the 30th December, 1199, is the only rational solution of the incongruity arising' from his having executed the subsequent deed of 1818. It follows then that the deeds executed by Mrs. Hopkins to her children were voluntary on her part, and binding. The Chancellor has so decided, and so far as that question is concerned the appeal must be dismissed.",
"2. The second question arising out of this state of the facts, is whether supposing the deeds voluntary, on the part of Mrs. Hopkins, they are a fraud on the marital rights of the complainant, and therefore void. The fortune of the intended wife is most frequently a weighty consideration and a strong inducement to the marriage contract, and the happiness of both the parties may, in a good degree depend on the observance of good faith, with respect tó it; and the genereral rule, very clearly, is that if pending a treaty of marriage, the intended wife makes a secret voluntary disposition of her property, and the marriage is a fraud upon the martial rights of the husband, and void.",
"In Hunt & Matthews, 1 Vern. 408, a widow before she married again, disposed of the greater part of her estate, for the benefit of her children by her first mar*8riage, and it became a question whether that disposition was void as to second husband, who had married her a* short time after; and it was held that it was not — the Court deeming it a conscientious thing in the wife to provide for such children, before she placed herself in the power of a second husband. And I remember that that rule is stated in the case of Jones v. Cole, brought up to this Court, from New-berry some time ago, but not yet reported, when the husband also had notice.",
"But Roper, in his treatise on the laws arising from the relation of husband and wife (page 162) questions, and I think with much show of reasoning, the propriety of allowing this case, as an exception, to the general rule laid down in Strathmore v. Bowes, 1 Ves. Jun. 28, & Havard v. Hooker, 2 Ch. Rep. 81. The objection he remarks, is not, to the object of the settlement. The fault is, the fraud committed by it, on the second husband, and it would seem that, as to him the effect must be precisely the same, whether the disposition was in favor of the children or others. This case however steers clear of this difficulty.",
"There is in the first place no proof that the the treaty of marriage was on foot at the time these deeds were executed. They are dated on the 19th of December, 1818, and the marriage was not solemnized until some time in the month of February following ; a period too long necessarily to authorize the inference that the treaty of marriage was then pending. But a conclusive circumstance is that the complainant had notice of these deeds, before his marriage. The witness Lyles, told him of the deeds — Emanuel Allen informed him that the negroes were generally considered as the property of the defendant Ferdinand Hopkins, Son. ; and in the Chancellor’s decree of 1825, it is said he approved and applauded it.",
"If the fortune was the inducement to seek the marriage, this would have furnished a reasonable ground to have broken it off, and he will not be permitted now to complain of a circumstance which was known to him before he was committed. 3. At the time of the intermarriage between the complainant and Mrs. Hopkins, she had possession of two negroes, Daniel and Betty, which the complainant claims, in virtue of his marital rights,—the defendants on the contrary claim them as part of the estate of George W. Hopkins. The circumstances connected with these claims, appear to me to admit of no doubt. .The evidence of Thomas Booker, *James Sanders, Daniel Glenn, Wm.",
"Wright, William Hughes, Mrs. Head, Bennett Humphries, Loften Nunn, and Mrs. Nunn, make out beyond all contradiction, that Bird Booker, the father of Mrs Hopkins, gave to her, negro Will, during the lifetime of her first husband, George W. Hopkins, with an understanding, that he would have the right to take him back again, if he thought proper, on paying the value for him, or substituting other property in his place. Subsequently to the death of George W. Hopkins, and before the marriage of his widow, Bird Booker did take Will back, and put in his place a negro called Phill, who on being chastised a few days after, by the overseer, ran away and returned to Mr. Booker. About four years after, Mr. Booker sent to Mrs. Hopkins, Daniel and Betty, the negroes in controversy. Daniel was of less value than Will, and the witness says, that the additional negro Betty, was sent for the purpose of supplying this difference in value, and as a compensation for the loss of the services of Will, during the time he had him.",
"The circumstances *9relied upon by the complainant, to show that Daniel and Betty was a gift directly to Mrs. Hopkins, by her father, are 1st., that neither they nor Will, were included in thé inventory of George W. Hopkins’ estate; and 2dly, that these negroes are given to her, by the will and testament of her said father, dated on October, 1818, and long after she had them in possession. If' as has been assumed, Bird Booker gave Will to Mrs. H., in the lifetime of her first husband, subject to the condition, that he should be restored upon his paying value, or substituting other property, the property in Will vested in Geo. W. H., subject to that condition, andMr. Booker was not at liberty to resume the property, without having first performed the condition — these rights devolved on the administrators of Geo. W. H. precisely to the same extent, and in the same condition as they existed in him, and no neglect, on the part of the administrators, to include Will in the inventory, nor the subsequent act of Mr. Booker, in disposing of the negroes substituted for Will, could vary them But these circumstances appear to me, to be reconcilable with the assumed state of facts.",
"It was known that Mr. Booker had reserved the right to take back Will —probably his determination to do so, was known *at the time, and he was not, therefore, included in the inventory of Geo W. H. ’s estate ; improperly, I admit, but I can well conceive, that persons, intending to do what was right, might not well understand the character and the extent of his rights. Bird Booker had not made any formal transfer of the negroes, Daniel and Betty, and he might have thought it necessary to give them in his will, as confirmatory of what he had before done — a very common practice, and I cannot perceive any evil growing out of it.",
"We are, therefore, of opinion, that Daniel and Betty must be regarded as part of the personal estate of Geo. W. H. and accounted for as such ; and the decree of the Circuit Court, in this respect, must be reversed 4. During the widowhood of Mrs. H., she purchased a tract of land situated in tJnion District, for $2,800, on a credit, and gave her note for payment. A part of this sum was paid by her, before her intermarriage with the complainant. During their coverture, the complainant himself paid, on account of this contract, the sum of $800, and subsequently to her death, $903 82, as appears by the Report of the Commissioner of July, 1831; and one question raised on the part of the defendant is, whether he is entitled to be reimbursed out of the lands, or her personal estate, for the sum paid by him during the coverture. Mrs. Terry died entitled to a personal estate, not reduced to possession by the complainant during their coverture, and after her death he administered on it. It is not questioned, that in his account of this estate, he is entitled to be credited with the amount paid on this contract, subsequently to her death.",
"He was not personally liable, (Roper 74) and of course it must be charged to her estate. But the claim to be reimbursed the amount paid by him during the coverture, is clearly untenable. The husband takes the wife cum onere ; and during the coverture, the debts contracted by the wife are the debts of the husband, and that, whether she brings a fortune with her or not. A common-place view of this question will put it in the clearest point of view.",
"A woman indebted takes a husband ; the law makes him liable, and he pays them — who is *10his debtor ? How will he exact payment of the wife ? She cannot be his debtor. On marriage, he is entitled to all her goods, *and an estate for her life, in her real estate. Her death cannot create a debt which, before, had no existence. This rule works, perhaps, somewhat harshly. A wife may owe large sums, and a corresponding estate may be in expectancy, which might not come in during her life, and it would seem a hardship that, if the husband paid the debts during the coverture, he should not be reimbursed.",
"But it will be remembered that the husband takes the whole personal estate of the wife, and an estate for life, in her lands. In the treaty of marriage, circumspect persons look sometimes to the debtor and creditor sides of the account, and the apparent hardship vanishes when it is recollected that the act was voluntary. 5. It is contended, also, for the complainant, that he is entitled to compensation for raising the children.of G. W. Hopkins, and the young negroes belonging to the estate. This claim refers principally to Mrs. Terry’s administration of the estate during her widowhood.",
"Mrs. Terry had possession, and the management of the whole estate, real and personal. In the account stated by the Commissioner, she is charged only with the proceeds of the crops sent to market, and is credited with all disbursements made on account of the estate, without distinguishing for what particular object, or for whose individual use. She herself raised no account against the children, or charge for raising the young negroes. But it is now brought up, for the first time, by the complainant. The annual income from the estate did not greatly exceed the necessary expenditures; and it is evident that Mrs. Terry herself, supposed that as they were all subsisting in common, and were all entitled to an equal distribution of the estate, there could be no great inequality in their expenditures; and none appears, from the evidence. But if that were not so, the children alone would have a right to complain; — not the complainant, because he is credited with every dollar that was disbursed on account of the estate, and what more would he have.",
"Is it that he is entitled to compensation for Mrs. Terry’s care and trouble in attending to her own children before he married her ? I will not do him the injustice to believe that was intended. 6. It is claimed, also, for the complainant, that Ferdinand *Hopkins, Sr., ought to have been charged with the amount of a note due by H. Head and J. Kennedy, say $274; — but on what ground is not stated. It does appear, however, that he received §30 92 from H. Head on account of this note, which-is not accounted for. The Commissioner concludes that this amount was paid to the widow, because he has paid over to her all other moneys received by him, and the necessities of the estate required all its means, and because the widow managed it exclusively. Knowing the parties as I do, if I were left to form a conjecture, I should certainly concur with the Commissioner.",
"But we cannot proceed upon conjecture. — Ferdinand Hopkins did receive this amount, and unless he can account for the payment by proof, he is chargeable with it. But, if it is desired, I think that the subject ought to be considered as open for further proof, if it can be furnished ; and the Commissioner is ordered to re-examine this item, if further evidence shall be offered by Mr. Hopkins. Eaves, for the plaintiff. Williams, contra. T. It is objected, also, that Ferdinand Hopkins, Jr., the son of Mrs. Terry, and one of the defendants, is not charged with $400 18j, received by him on account of the crops of 1816 and ’ll. He was of full age, it appears from the Commissioner’s Report, when he received $260, part of the amount, and the principal objection, on his part, to his liability to account, appears to have been that the plaintiff had not in his bill prayed an account against him.",
"That is true, but in his answer, this defendant prays an account from the complainant, of the administration of the estate of G-. W. Hopkins, by his mother, the complainant’s intestate; and this charge, if it be allowed, is pro tanto, a legitimate set off against that demand, and is a matter directly put in issue by his own answer. He is, therefore, bound to render the account. His infancy, when he received a part of the sum, is doubtless a protection as to that, but we will not anticipate that he will, or that he should, avail himself of it.",
"In order, therefore, that all the facts may appear, we have concluded to refer it back to the Commissioner to examine and report freely upon the subject, and it is so ordered. This view of the ease covers, I believe, all the questions *which have been raised by the motion on the part of the complainant, and embraces, also, all the grounds which have been specified by the defendant. And it is ordered and decreed that the decree of the Circuit Court be reformed according to the principles of this decree ; and that the Commissioner do state the accounts between the parties conformably thereto. Martin, J., (sitting for Harper, J.,) concurred. O’Neall, J.. having been of counsel for the defendant, gave no opinion."
] | https://www.courtlistener.com/api/rest/v3/opinions/7387980/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Notice of Pre-AIA or AIA Status Notice of Pre-AIA or AIA Status The present application is being examined under the pre-AIA first to invent provisions. DETAILED ACTION This communication is a final action in response to amendment filed on 10/25/2021. Claims 2-3, 5-14, 16-19 are pending. Response to Argument Applicant’s arguments presented on page 14 regarding claim objection and 112(a) rejection are moot in view of the amendment. The objection/rejections have been withdrawn.
Applicant’s argument regarding 101 rejection are not persuasive. Applicant argues on page 14 that claimed invention cover system or method where the file formats do not stay the same. Examiner respectfully disagree. Using claim 3 as a representative claim, the file format discussed in the claim are written as “converting … an expected demand information out of the top-down format into a discrete format …”. Applicant’s specification describes this conversion in 0094-0096, which states “The expected demand values generated … may be converted into integer. … The results of simple rounding are shown in Table 1D. … To eliminate double counting, the expected demand values may be converted out of top-down format into a discrete format. … in various embodiments each booking is allocated to the highest fare class that can claim it, as shown in Table 1E.” Table 1D and 1E are reproduced below. PNG media_image1.png 936 1123 media_image1.png Greyscale
PNG media_image2.png 884 1012 media_image2.png Greyscale
Therefore, when read in light of specification, converting into different format is meant to cover converting one number expression to another (e.g., converted into integer as in 0094). Furthermore, as shown in Table 1D and table 1E, data are both expressed in table format. In fact, Table 1E even uses the same “Fare Class” and “Expected Demand, Rounded (Top-Down)” column as table 1D. Therefore, it is clear that broadest reasonable interpretation of the claimed conversion from top-down format to discrete format covers situation where the same file format being used for the conversion. As a result, examiner’s interpretation that claimed invention covers using same file format between conversions is reasonable and analysis should proceed based on such interpretation. Because the file format in the present invention stays the same, the claims here are fundamentally different from example 42’s formats, which is described to be “cannot be consolidated due to format inconsistencies”. In the present claim, file format stay the same and therefore there is no inconsistencies and can be consolidated (as shown in Table 1E). Therefore, claims are not eligible based on similarity with example 42. Applicant asserts potential to further amend the claim so BRI of the claim to cover different file formats. Examiner notes that it appears the conversion is described in 0094-0096. As shown above, 0094-0096 shows using the same file format to convert numbers from top-down format to discrete format. Therefore, an amendment introducing limitations covering different formats between conversion may introduce new matter issue. Furthermore, it wouldn’t be apparently clear if different file format between conversion relates to a technical solution to a technical problem when 0094-0096 describe performing the solution using the same file format; as such, unlike example 42’s technical problem (formats inconsistencies), different file formats in present claim may potentially be an field of use.
Applicant then argues on page 14-15 related to example 39, particularly that the claim does not recite any mathematical relationships, formulas, or calculations. Examiner respectfully disagree. Again, using claim 3 as a representative claim, claim 3 includes at least the limitation of converting booking table into target class by remapping to form a remapped booking table. As shown above in the citation to 0094, the conversion includes converting number into integers. This conversion can be achieved, for example, “via simple rounding” (0094). Therefore, BRI of converting booking table covers using simple rounding to convert number into integer. This is a mathematical relationship. Therefore, for at least this reason, the claim recites a mathematical relationship. Examiner would also notes that claim 6, for example, specifically includes the limitation “in response to determining that the integer is negative, incrementing, by the processor, the integer in the bookings table …”. This describes the mathematical function of f(x) = x + N, ∀ x < 0, where N is an arbitrary positive number (increment). Again, examiner respectfully disagree with Applicant’s argument that claims do not recite any mathematical relationships/formula/calculations.
Applicant then argues on page 15 that claims are integrated into practical application because the claims include “the practical application of using algorithms with booking data in a bookings table to predict an outcome based on characteristics of the demand and classes”. Examiner respectfully disagree. As discussed in the previous office action in paragraphs 26-29, which is also substantially reproduced below, the claim includes various additional elements. However, among these additional elements that are related to “using algorithms with booking data in a bookings table to predict an outcome based on characteristics of the demand and classes” (additional element a, c-h as listed on paragraph 27 in previous action), they are merely using generic computer components as a tool to perform the abstract idea. In other words, while the claimed invention performs the activity of “using algorithms with booking data in a bookings table to predict an outcome based on characteristics of the demand and classes”, the invention merely does so by merely applying functions in a generic computer (e.g., using the language such as “by the processor”). Merely applying the abstract idea on a computer is not sufficient to integrate the abstract idea into practical application. Examiner would further notes that MPEP 2106.05 (a) II states that “However, it is important to keep in mind that an improvement in the abstract idea itself (e.g., a recited fundamental economic concept) is not an improvement in technology.” Here, the claimed algorithm that is being used to predict an outcome is an abstract idea (as analyzed in prong 1); therefore, its improvement (i.e. the claimed algorithm that’s novel over the cited prior art) is not an improvement to technology. As a result, examiner has appropriately analyzed the additional element as merely applying the abstract idea on a computer as opposed to an improvement to functioning of a computer or to another technical field. Applicant’s further arguments are based on similarity/dependency. Please refer to above paragraphs and rejection below. Claim Rejections - 35 USC § 101 35 U.S.C. 101 reads as follows: Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 2-3, 5-14, 16-19 are rejected under 35 USC 101 because the claimed invention is directed to an abstract idea without significantly more. Per step 1, these claims are all method claims, which are process Per step 2A, prong 1, the claim(s) recite(s) Claim 3 recites [stores] airline schedule data, airline route data, airline route plan data, airport terminal data and weather information; [airline reservation system] provides inventory based an output [of the forecasting system] accessing, a bookings table, wherein the bookings table contains information representing a net prime class seat booking for a flight, wherein the forecasting system includes the PCR module; wherein the PCR module allocates prime class bookings to a fare class wherein the net prime class seat booking occurred during a first time period, and wherein the net prime class seat booking equals prior prime class bookings subtracted from current prime class bookings; converting the net prime class seat booking for the flight into top-down format; applying an expectation maximization algorithm in iterative fashion to the booking table in top-down format to determine an unobscured demand for the fare classes, in response to the demand for the fare classes being obscured; determining a floor class for the net prime class seat booking in the bookings table; determining, a displacement class for the net prime class seat booking in the bookings table, wherein the displacement class is a lowest class that is both higher than the floor class that is closed, and currently open for bookings, and wherein the determining the displacement class further comprises: determining, if the floor class for the net prime class seat booking is closed; in response to the floor class being open for bookings, determining, that the floor class and the displacement class are the same class; and 2 4829-2151-2068Serial No. 13/791,711Docket No. 61330.00600 In response to the floor class being closed for bookings, determining the displacement class as the lowest class that is both higher than the floor class that is closed and open for bookings; determining, a target class for the net prime class seat booking in the bookings table, wherein the target class is the higher of the floor class and the displacement class; and converting, each of the bookings of the net prime class seat booking in the bookings table into the target class by remapping to form a remapped booking table; converting, by the processor, an expected demand information out of the top-down format into a discrete format to eliminate double counting; combining the remapped booking table with the expected demand information to provide input to the forecasting system; restricting a number of upper-class seats from being booked by a passenger; and opening based on the remapped booking table, additional lower-class seats for being booked by the passenger.
Claim 5 recites [stores] airline schedule data, airline route data, airline route plan data, airport terminal data and weather information; [PCR module] allocates prime class booking to fare classes accessing, a bookings table, wherein the bookings table contains information representing a net prime class seat booking for a flight,; [airline reservation system] provides inventory based an output [of the forecasting system] wherein the information representing the net prime class seat booking is an integer, wherein the net prime class seat booking occurred during a first time period, and wherein the net prime class seat booking equals prior prime class bookings subtracted from current prime class bookings; converting the net prime class seat booking for the flight into top-down format; applying an expectation maximization algorithm in iterative fashion to the bookings table in top-down format to determine an unobscured demand for the fare classes, in response to the demand of the fare classes being obscured; determining, a floor class for the net prime class seat booking in the bookings table; determining, a displacement class for the net prime class seat booking in the bookings table, wherein the displacement class is a lowest class that is both higher than the floor class that is closed, and currently open for bookings; 3 4829-2151-2068Serial No. 13/791,711 Docket No. 61330.00600 determining a target class for the net prime class seat booking in the bookings table, wherein the target class is the higher of the floor class and the displacement class; and converting, each of the bookings of the net prime class seat booking in the bookings table into the target class by remapping to form a remapped bookings table, wherein the remapping the net prime class seat booking further comprises: in response to determining that the integer is positive, decrementing, the integer in the bookings table representing a net prime class booking; and incrementing, a value in the bookings table representing bookings in the target class. Converting, by the processor, expected demand information out of the top-down format into a discrete format, to eliminate double counting; Combining the remapped booking table with the expected demand information to provide input Restricting based on the remapped booking table, a number of upper-class seats from being booked by a passenger; and Opening by the processor and based on the remapped booking table, additional lower-class seats for being booked by the passenger
Claim 10 recites accessing, a bookings table, wherein the bookings table contains information representing a net prime class seat booking for a flight, [PCR module] allocates prime class booking to fare classes [stores] airline schedule data, airline route data, airline route plan data, airport terminal data and weather information; [airline reservation system] provides inventory based an output [of the forecasting system] wherein the net prime class seat booking occurred during a first time period, and wherein the net prime class seat booking equals prior prime class bookings subtracted from current prime class bookings; converting the net prime class seat booking for the flight into top-down format; applying, an expectation maximization algorithm in iterative fashion to the bookings table in top-down format to determine an unobscured demand for the fare classes, in response to the demand of the fare classes being obscured; determining, a floor class for the net prime class seat booking in the bookings table; determining, a displacement class for the net prime class seat booking in the bookings table, wherein the displacement class is a lowest class that is both higher than the floor class that is closed, and currently open for bookings; determining, a target class for the net prime class seat booking in the bookings table, wherein the target class is the higher of the floor class and the displacement class; remapping, each of the bookings of the net prime class seat booking in the bookings table into the target class to form a remapped bookings table; and Converting, the remapped booking table into a historical booking table by remapping a historical booking table to form a remapped historical booking table; Converting expected demand information out of the top-down format into a discrete format, to eliminate double counting; combining, the remapped historical bookings table the expected demand information to provide input restricting based on the remapped historical booking table, a number of upper-class seats from being booked by a passenger opening based on the remapped historical booking table, additional lower-class seats for being booked by the passenger
Claim 13 recites accessing, a bookings table, wherein the bookings table contains information representing a net prime class seat booking for a flight, [PCR module] allocates prime class booking to fare classes [stores] airline schedule data, airline route data, airline route plan data, airport terminal data and weather information; [airline reservation system] provides inventory based an output [of the forecasting system] wherein the net prime class seat booking occurred during a first time period, and wherein the net prime class seat booking equals prior prime class bookings subtracted from current prime class bookings; converting the net prime class seat booking for the flight into top-down format; applying, an expectation maximization algorithm in iterative fashion to the bookings table in top-down format to determine an unobscured demand for the fare classes, in response to the demand for the fare classes being obscured; determining, a floor class for the net prime class seat booking in the bookings table; determining, a displacement class for the net prime class seat booking in the bookings table, wherein the displacement class is a lowest class that is both higher than the floor class that is closed, and currently open for bookings; determining, a target class for the net prime class seat booking in the bookings table, wherein the target class is the higher of the floor class and the displacement class; remapping, each of the bookings of the net prime class seat booking in the bookings table into the target class to form a remapped bookings table; accessing, the bookings table, wherein the bookings table further contains seat bookings for the flight, wherein the seat bookings occurred during the first time period, and wherein the seat bookings are grouped into a plurality of fare classes; determining, which fare classes in the plurality of fare classes have demand that is obscured; calculating, the unobscured demand for at least one fare class in the plurality of fare classes; 6 4829-2151-2068Serial No. 13/791,711 Docket No. 61330.00600 converting, the unobscured demand for the at least one fare class into integer values representing the seat bookings in the respective fare classes; and restricting based on the unbobsured bookings table, a number of upper-class seats from being booked by a passenger opening based on the unobsured bookings table, additional lower-class seats for being booked by the passenger
Claim 14 recites accessing, a bookings table, wherein the bookings table contains information representing a net prime class seat booking for a flight, [PCR module] allocates prime class booking to fare classes [stores] airline schedule data, airline route data, airline route plan data, airport terminal data and weather information; [airline reservation system] provides inventory based an output [of the forecasting system] wherein the net prime class seat booking occurred during a first time period, and wherein the net prime class seat booking equals prior prime class bookings subtracted from current prime class bookings; converting the net prime class seat booking for the flight into top-down format; applying, an expectation maximization algorithm in iterative fashion to the bookings table in top-down format to determine an unobscured demand for the fare classes, in response to the demand of the fare classes being obscured; determining, a floor class for the net prime class seat booking in the bookings table; determining, a displacement class for the net prime class seat booking in the bookings table, wherein the displacement class is a lowest class that is both higher than the floor class that is closed, and currently open for bookings; determining, a target class for the net prime class seat booking in the bookings table, wherein the target class is the higher of the floor class and the displacement class; remapping, each of the bookings of the net prime class seat booking in the bookings table into the target class to form a remapped bookings table; accessing, the remapped bookings table, 7 4829-2151-2068Serial No. 13/791,711 Docket No. 61330.00600 wherein the remapped bookings table further contains seat bookings for the flight and forecasted demand for the flight, and wherein at least one fare class in the plurality of fare classes is closed and contains no bookings; determining, and using the seat bookings and the forecasted demand, the monetary stimulation value of opening a closed class; determining, and using the seat bookings and the forecasted demand, the monetary dilution penalty of opening the closed class; and converting the monetary simulation value to the monetary dilution penalty to generate booking instructions converting expected demand information out of the top-down format into a discrete format to eliminate double counting; combining the booking instructions with the expected demand information to provide input to the forecasting system; restricting based on the remapped bookings table a number of upper-class seats from being booked by a passenger in an airline reservation system; opening based on the bookings table additional lower-class seats for being booked by the passenger Each of these recited limitations, in combination describe a series of steps to be performed by a commercial activity (forecasting ticket demands, making sales of these tickets, and process booking requests and restricting (closing) or opening booking classes for booking), which would be part of certain methods of organizing human activity. Therefore, the claims recite an abstract idea. This judicial exception is not integrated into a practical application. Overall, the independent claims 3, 5, 10, 13-14 includes several generic computer components that are named as “authentication server, modules, data repositories, forecasting system, reservation system. While bearing different names and being different components, these are all generic computer components described in high generality. Using claim 3 as an illustrative example, claim 3 includes the following additional elements: a) Communicating by a processor and via an authentication server, with an airline central data repository and a forecasting system by invoking logic within modules by passing parameters relating to requests for data; b) Wherein the authentication server receives authentication credentials, encrypts and decrypts the authentication credentials, authenticates the authentication credentials, and grants access rights according to pre-defined privileges associated with the authentication credentials c) Wherein the airline central data repository stores [data] d) Wherein the forecasting system exchange data with an airline reservation system, e) Wherein the airline reservation system provides inventory based on an output of the forecasting system f) [accessing], by the processor and via the authentication server, using a PCR module, [bookings table] within the airline central data repository g) Wherein the forecasting system includes the PCR module; h) [performing the abstract idea] by/using the processor and via the authentication server and the PCR module [having] a passenger in an airline reservation system As shown above, with the exception of the b, these additional elements are merely described by their names without further detail related to their particular structure, hence making them generic computer component discussed in high generality. Further, these components are invoked by instructing them to be used as a tool (e.g. “by”, “using”, “invoking”, “communicating”, “via”); note that for step c, while it’s not invoked with a word similar to “apply-it”, it nevertheless merely describe a data repository storing some types of data, which is still merely using the data repository as a tool as the plain meaning of the word repository includes “a central location in which data is stored and managed”. These instructions are nothing more than mere instructions to implement the abstract idea on computers that are equivalent to using the words “apply-it”. As per step b, the authentication server performs the steps of “receives authentication credentials, encrypts and decrypts the authentication credentials, authenticates the authentication credentials, and grants access rights according to pre-defined privileges associated with the authentication credentials”; however, these steps, other than providing proper access to functionality of the computer system, does not affect the core of the claimed invention; namely, the forecasting and optimization of the commercial activities (abstract idea). Therefore, step b is merely an extra-solution activity. Even viewed as a whole, these computer are merely invoked as a tool and perform extra-solution activities; these additional elements would not be sufficient to integrate the abstract idea into a practical application. Therefore, the claims are directed to an abstract idea. Other independent claims all recite similar additional elements and similar rationale that’s applied to claim 3 can be applied to them as well. Therefore, the claims are directed to an abstract idea.
The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception for at least the same analysis shown above for prong 2 as the prong 2 analysis would also apply in this instant case as well. Furthermore, as per additional element b analyzed above, Applicant’s own specification describes the additional element in 0044 of the specification as “Authentication server 130 may include any hardware and/or software suitably configured to receive authentication credentials, encrypt and decrypt credentials, authenticate credentials, and/or grant access rights according to pre-defined privileges associated with the credentials” and in 0041 and 0060 that “Practitioners will appreciate that client 110 may or may not be in direct contact with forecasting system 115” and “One skilled in the art will also appreciate that, for security reasons, any databases, systems, servers, or other components of system 101 may consist of … wherein each database or system includes any of various suitable security features, such as firewalls, access codes, encryption, decryption, …”. Therefore, as shown, Applicant’s specification demonstrate the steps performed by additional element b is merely well-understood routine security features that’s suitable to facilitate data access (0041). Still further, regarding the other additional elements, Applicant’s own specification describes various functions can for example be performed using a wide variety of off the shelf compute reprogramming languages (0060), which shows that these functions are widely prevalent. Further, previously cited prior art Belobaba shows a series of booking table operations that can be reproduced manually using nothing more than a Excel spreadsheet; a computer running Microsoft Excel, which is an off-the shelf program, can also show that these functions are well-understood and routine. Still further, the functions of calculating and adjusting booking tables as claimed are also similar to Flook’s performing repetitive calculation, which is noted in MPEP 2106.05(d) II as well-understood and routine. Therefore, the claims are not eligible.
As per dependent claims 2, 6-9, 11-12, 16-17, these claims includes additional rules to be followed by the commercial activity and further additional elements invoked similarly to the manner of “by a processor”. Therefore, these claims would still recite an abstract idea and for prong 2, be directed to an abstract idea because the additional element, even viewed in combination with the additional elements of independent claim, are still mere instruction to implement abstract idea on a computer. Step 2B would be similar to above.
Claim 18 includes various database optimization related operations, which can all be grouped into additional elements that are directed to extra-solution activity because they are mere additional operations to be performed beyond the solution of booking table and thus failing prong 2. Per step 2B, in 0059 of Applicant’s own specification describes these operations as some of the any known techniques, which would show that these are widely prevalent and in common use, and therefore being well-understood and routine. Therefore, claim 18 is ineligible. Claim 19 includes further abstract idea related to commercial activity of providing booking option for seats on an aircraft based on the remapped booking table; receiving a booking from the booking options for seat of the seats on the aircraft; and removing the availability of the seat from the booking options. The above limitations, in a combination, related to commercial activity of booking and managing inventory of seats, which would still be grouped into certain methods of organizing human activity. Therefore, claim 19 still recites abstract idea. Per prong 2, similar to claim 3’s processor, the additional element is also merely used in the manner of “by the processor”, which is mere instruction to implement the abstract idea on a computer similar to “apply-it”. Therefore, similar analysis can be performed with respect to claim 3 and claim 19 would still be ineligible.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a). A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action. Any inquiry concerning this communication or earlier communications from the examiner should be directed to GEORGE CHEN whose telephone number is (571)270-5499. The examiner can normally be reached Monday-Friday, 8:30 AM -5:00 PM Eastern. 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, Resha H Desai can be reached on 571-270-7792. 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.
GEORGE CHEN Primary Examiner Art Unit 3628
/GEORGE CHEN/Primary Examiner, Art Unit 3628 | 2021-11-24T07:43:42 | [
"Notice of Pre-AIA or AIA Status Notice of Pre-AIA or AIA Status The present application is being examined under the pre-AIA first to invent provisions. DETAILED ACTION This communication is a final action in response to amendment filed on 10/25/2021. Claims 2-3, 5-14, 16-19 are pending. Response to Argument Applicant’s arguments presented on page 14 regarding claim objection and 112(a) rejection are moot in view of the amendment. The objection/rejections have been withdrawn. Applicant’s argument regarding 101 rejection are not persuasive. Applicant argues on page 14 that claimed invention cover system or method where the file formats do not stay the same. Examiner respectfully disagree. Using claim 3 as a representative claim, the file format discussed in the claim are written as “converting … an expected demand information out of the top-down format into a discrete format …”.",
"Applicant’s specification describes this conversion in 0094-0096, which states “The expected demand values generated … may be converted into integer. … The results of simple rounding are shown in Table 1D. … To eliminate double counting, the expected demand values may be converted out of top-down format into a discrete format. … in various embodiments each booking is allocated to the highest fare class that can claim it, as shown in Table 1E.” Table 1D and 1E are reproduced below. PNG media_image1.png 936 1123 media_image1.png Greyscale PNG media_image2.png 884 1012 media_image2.png Greyscale Therefore, when read in light of specification, converting into different format is meant to cover converting one number expression to another (e.g., converted into integer as in 0094). Furthermore, as shown in Table 1D and table 1E, data are both expressed in table format.",
"In fact, Table 1E even uses the same “Fare Class” and “Expected Demand, Rounded (Top-Down)” column as table 1D. Therefore, it is clear that broadest reasonable interpretation of the claimed conversion from top-down format to discrete format covers situation where the same file format being used for the conversion. As a result, examiner’s interpretation that claimed invention covers using same file format between conversions is reasonable and analysis should proceed based on such interpretation. Because the file format in the present invention stays the same, the claims here are fundamentally different from example 42’s formats, which is described to be “cannot be consolidated due to format inconsistencies”. In the present claim, file format stay the same and therefore there is no inconsistencies and can be consolidated (as shown in Table 1E). Therefore, claims are not eligible based on similarity with example 42.",
"Applicant asserts potential to further amend the claim so BRI of the claim to cover different file formats. Examiner notes that it appears the conversion is described in 0094-0096. As shown above, 0094-0096 shows using the same file format to convert numbers from top-down format to discrete format. Therefore, an amendment introducing limitations covering different formats between conversion may introduce new matter issue. Furthermore, it wouldn’t be apparently clear if different file format between conversion relates to a technical solution to a technical problem when 0094-0096 describe performing the solution using the same file format; as such, unlike example 42’s technical problem (formats inconsistencies), different file formats in present claim may potentially be an field of use. Applicant then argues on page 14-15 related to example 39, particularly that the claim does not recite any mathematical relationships, formulas, or calculations.",
"Examiner respectfully disagree. Again, using claim 3 as a representative claim, claim 3 includes at least the limitation of converting booking table into target class by remapping to form a remapped booking table. As shown above in the citation to 0094, the conversion includes converting number into integers. This conversion can be achieved, for example, “via simple rounding” (0094). Therefore, BRI of converting booking table covers using simple rounding to convert number into integer. This is a mathematical relationship. Therefore, for at least this reason, the claim recites a mathematical relationship. Examiner would also notes that claim 6, for example, specifically includes the limitation “in response to determining that the integer is negative, incrementing, by the processor, the integer in the bookings table …”.",
"This describes the mathematical function of f(x) = x + N, ∀ x < 0, where N is an arbitrary positive number (increment). Again, examiner respectfully disagree with Applicant’s argument that claims do not recite any mathematical relationships/formula/calculations. Applicant then argues on page 15 that claims are integrated into practical application because the claims include “the practical application of using algorithms with booking data in a bookings table to predict an outcome based on characteristics of the demand and classes”. Examiner respectfully disagree. As discussed in the previous office action in paragraphs 26-29, which is also substantially reproduced below, the claim includes various additional elements. However, among these additional elements that are related to “using algorithms with booking data in a bookings table to predict an outcome based on characteristics of the demand and classes” (additional element a, c-h as listed on paragraph 27 in previous action), they are merely using generic computer components as a tool to perform the abstract idea. In other words, while the claimed invention performs the activity of “using algorithms with booking data in a bookings table to predict an outcome based on characteristics of the demand and classes”, the invention merely does so by merely applying functions in a generic computer (e.g., using the language such as “by the processor”). Merely applying the abstract idea on a computer is not sufficient to integrate the abstract idea into practical application.",
"Examiner would further notes that MPEP 2106.05 (a) II states that “However, it is important to keep in mind that an improvement in the abstract idea itself (e.g., a recited fundamental economic concept) is not an improvement in technology.” Here, the claimed algorithm that is being used to predict an outcome is an abstract idea (as analyzed in prong 1); therefore, its improvement (i.e. the claimed algorithm that’s novel over the cited prior art) is not an improvement to technology. As a result, examiner has appropriately analyzed the additional element as merely applying the abstract idea on a computer as opposed to an improvement to functioning of a computer or to another technical field. Applicant’s further arguments are based on similarity/dependency. Please refer to above paragraphs and rejection below. Claim Rejections - 35 USC § 101 35 U.S.C. 101 reads as follows: Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.",
"Claims 2-3, 5-14, 16-19 are rejected under 35 USC 101 because the claimed invention is directed to an abstract idea without significantly more. Per step 1, these claims are all method claims, which are process Per step 2A, prong 1, the claim(s) recite(s) Claim 3 recites [stores] airline schedule data, airline route data, airline route plan data, airport terminal data and weather information; [airline reservation system] provides inventory based an output [of the forecasting system] accessing, a bookings table, wherein the bookings table contains information representing a net prime class seat booking for a flight, wherein the forecasting system includes the PCR module; wherein the PCR module allocates prime class bookings to a fare class wherein the net prime class seat booking occurred during a first time period, and wherein the net prime class seat booking equals prior prime class bookings subtracted from current prime class bookings; converting the net prime class seat booking for the flight into top-down format; applying an expectation maximization algorithm in iterative fashion to the booking table in top-down format to determine an unobscured demand for the fare classes, in response to the demand for the fare classes being obscured; determining a floor class for the net prime class seat booking in the bookings table; determining, a displacement class for the net prime class seat booking in the bookings table, wherein the displacement class is a lowest class that is both higher than the floor class that is closed, and currently open for bookings, and wherein the determining the displacement class further comprises: determining, if the floor class for the net prime class seat booking is closed; in response to the floor class being open for bookings, determining, that the floor class and the displacement class are the same class; and 2 4829-2151-2068Serial No.",
"13/791,711Docket No. 61330.00600 In response to the floor class being closed for bookings, determining the displacement class as the lowest class that is both higher than the floor class that is closed and open for bookings; determining, a target class for the net prime class seat booking in the bookings table, wherein the target class is the higher of the floor class and the displacement class; and converting, each of the bookings of the net prime class seat booking in the bookings table into the target class by remapping to form a remapped booking table; converting, by the processor, an expected demand information out of the top-down format into a discrete format to eliminate double counting; combining the remapped booking table with the expected demand information to provide input to the forecasting system; restricting a number of upper-class seats from being booked by a passenger; and opening based on the remapped booking table, additional lower-class seats for being booked by the passenger. Claim 5 recites [stores] airline schedule data, airline route data, airline route plan data, airport terminal data and weather information; [PCR module] allocates prime class booking to fare classes accessing, a bookings table, wherein the bookings table contains information representing a net prime class seat booking for a flight,; [airline reservation system] provides inventory based an output [of the forecasting system] wherein the information representing the net prime class seat booking is an integer, wherein the net prime class seat booking occurred during a first time period, and wherein the net prime class seat booking equals prior prime class bookings subtracted from current prime class bookings; converting the net prime class seat booking for the flight into top-down format; applying an expectation maximization algorithm in iterative fashion to the bookings table in top-down format to determine an unobscured demand for the fare classes, in response to the demand of the fare classes being obscured; determining, a floor class for the net prime class seat booking in the bookings table; determining, a displacement class for the net prime class seat booking in the bookings table, wherein the displacement class is a lowest class that is both higher than the floor class that is closed, and currently open for bookings; 3 4829-2151-2068Serial No.",
"13/791,711 Docket No. 61330.00600 determining a target class for the net prime class seat booking in the bookings table, wherein the target class is the higher of the floor class and the displacement class; and converting, each of the bookings of the net prime class seat booking in the bookings table into the target class by remapping to form a remapped bookings table, wherein the remapping the net prime class seat booking further comprises: in response to determining that the integer is positive, decrementing, the integer in the bookings table representing a net prime class booking; and incrementing, a value in the bookings table representing bookings in the target class.",
"Converting, by the processor, expected demand information out of the top-down format into a discrete format, to eliminate double counting; Combining the remapped booking table with the expected demand information to provide input Restricting based on the remapped booking table, a number of upper-class seats from being booked by a passenger; and Opening by the processor and based on the remapped booking table, additional lower-class seats for being booked by the passenger Claim 10 recites accessing, a bookings table, wherein the bookings table contains information representing a net prime class seat booking for a flight, [PCR module] allocates prime class booking to fare classes [stores] airline schedule data, airline route data, airline route plan data, airport terminal data and weather information; [airline reservation system] provides inventory based an output [of the forecasting system] wherein the net prime class seat booking occurred during a first time period, and wherein the net prime class seat booking equals prior prime class bookings subtracted from current prime class bookings; converting the net prime class seat booking for the flight into top-down format; applying, an expectation maximization algorithm in iterative fashion to the bookings table in top-down format to determine an unobscured demand for the fare classes, in response to the demand of the fare classes being obscured; determining, a floor class for the net prime class seat booking in the bookings table; determining, a displacement class for the net prime class seat booking in the bookings table, wherein the displacement class is a lowest class that is both higher than the floor class that is closed, and currently open for bookings; determining, a target class for the net prime class seat booking in the bookings table, wherein the target class is the higher of the floor class and the displacement class; remapping, each of the bookings of the net prime class seat booking in the bookings table into the target class to form a remapped bookings table; and Converting, the remapped booking table into a historical booking table by remapping a historical booking table to form a remapped historical booking table; Converting expected demand information out of the top-down format into a discrete format, to eliminate double counting; combining, the remapped historical bookings table the expected demand information to provide input restricting based on the remapped historical booking table, a number of upper-class seats from being booked by a passenger opening based on the remapped historical booking table, additional lower-class seats for being booked by the passenger Claim 13 recites accessing, a bookings table, wherein the bookings table contains information representing a net prime class seat booking for a flight, [PCR module] allocates prime class booking to fare classes [stores] airline schedule data, airline route data, airline route plan data, airport terminal data and weather information; [airline reservation system] provides inventory based an output [of the forecasting system] wherein the net prime class seat booking occurred during a first time period, and wherein the net prime class seat booking equals prior prime class bookings subtracted from current prime class bookings; converting the net prime class seat booking for the flight into top-down format; applying, an expectation maximization algorithm in iterative fashion to the bookings table in top-down format to determine an unobscured demand for the fare classes, in response to the demand for the fare classes being obscured; determining, a floor class for the net prime class seat booking in the bookings table; determining, a displacement class for the net prime class seat booking in the bookings table, wherein the displacement class is a lowest class that is both higher than the floor class that is closed, and currently open for bookings; determining, a target class for the net prime class seat booking in the bookings table, wherein the target class is the higher of the floor class and the displacement class; remapping, each of the bookings of the net prime class seat booking in the bookings table into the target class to form a remapped bookings table; accessing, the bookings table, wherein the bookings table further contains seat bookings for the flight, wherein the seat bookings occurred during the first time period, and wherein the seat bookings are grouped into a plurality of fare classes; determining, which fare classes in the plurality of fare classes have demand that is obscured; calculating, the unobscured demand for at least one fare class in the plurality of fare classes; 6 4829-2151-2068Serial No.",
"13/791,711 Docket No. 61330.00600 converting, the unobscured demand for the at least one fare class into integer values representing the seat bookings in the respective fare classes; and restricting based on the unbobsured bookings table, a number of upper-class seats from being booked by a passenger opening based on the unobsured bookings table, additional lower-class seats for being booked by the passenger Claim 14 recites accessing, a bookings table, wherein the bookings table contains information representing a net prime class seat booking for a flight, [PCR module] allocates prime class booking to fare classes [stores] airline schedule data, airline route data, airline route plan data, airport terminal data and weather information; [airline reservation system] provides inventory based an output [of the forecasting system] wherein the net prime class seat booking occurred during a first time period, and wherein the net prime class seat booking equals prior prime class bookings subtracted from current prime class bookings; converting the net prime class seat booking for the flight into top-down format; applying, an expectation maximization algorithm in iterative fashion to the bookings table in top-down format to determine an unobscured demand for the fare classes, in response to the demand of the fare classes being obscured; determining, a floor class for the net prime class seat booking in the bookings table; determining, a displacement class for the net prime class seat booking in the bookings table, wherein the displacement class is a lowest class that is both higher than the floor class that is closed, and currently open for bookings; determining, a target class for the net prime class seat booking in the bookings table, wherein the target class is the higher of the floor class and the displacement class; remapping, each of the bookings of the net prime class seat booking in the bookings table into the target class to form a remapped bookings table; accessing, the remapped bookings table, 7 4829-2151-2068Serial No.",
"13/791,711 Docket No. 61330.00600 wherein the remapped bookings table further contains seat bookings for the flight and forecasted demand for the flight, and wherein at least one fare class in the plurality of fare classes is closed and contains no bookings; determining, and using the seat bookings and the forecasted demand, the monetary stimulation value of opening a closed class; determining, and using the seat bookings and the forecasted demand, the monetary dilution penalty of opening the closed class; and converting the monetary simulation value to the monetary dilution penalty to generate booking instructions converting expected demand information out of the top-down format into a discrete format to eliminate double counting; combining the booking instructions with the expected demand information to provide input to the forecasting system; restricting based on the remapped bookings table a number of upper-class seats from being booked by a passenger in an airline reservation system; opening based on the bookings table additional lower-class seats for being booked by the passenger Each of these recited limitations, in combination describe a series of steps to be performed by a commercial activity (forecasting ticket demands, making sales of these tickets, and process booking requests and restricting (closing) or opening booking classes for booking), which would be part of certain methods of organizing human activity. Therefore, the claims recite an abstract idea.",
"This judicial exception is not integrated into a practical application. Overall, the independent claims 3, 5, 10, 13-14 includes several generic computer components that are named as “authentication server, modules, data repositories, forecasting system, reservation system. While bearing different names and being different components, these are all generic computer components described in high generality. Using claim 3 as an illustrative example, claim 3 includes the following additional elements: a) Communicating by a processor and via an authentication server, with an airline central data repository and a forecasting system by invoking logic within modules by passing parameters relating to requests for data; b) Wherein the authentication server receives authentication credentials, encrypts and decrypts the authentication credentials, authenticates the authentication credentials, and grants access rights according to pre-defined privileges associated with the authentication credentials c) Wherein the airline central data repository stores [data] d) Wherein the forecasting system exchange data with an airline reservation system, e) Wherein the airline reservation system provides inventory based on an output of the forecasting system f) [accessing], by the processor and via the authentication server, using a PCR module, [bookings table] within the airline central data repository g) Wherein the forecasting system includes the PCR module; h) [performing the abstract idea] by/using the processor and via the authentication server and the PCR module [having] a passenger in an airline reservation system As shown above, with the exception of the b, these additional elements are merely described by their names without further detail related to their particular structure, hence making them generic computer component discussed in high generality.",
"Further, these components are invoked by instructing them to be used as a tool (e.g. “by”, “using”, “invoking”, “communicating”, “via”); note that for step c, while it’s not invoked with a word similar to “apply-it”, it nevertheless merely describe a data repository storing some types of data, which is still merely using the data repository as a tool as the plain meaning of the word repository includes “a central location in which data is stored and managed”. These instructions are nothing more than mere instructions to implement the abstract idea on computers that are equivalent to using the words “apply-it”. As per step b, the authentication server performs the steps of “receives authentication credentials, encrypts and decrypts the authentication credentials, authenticates the authentication credentials, and grants access rights according to pre-defined privileges associated with the authentication credentials”; however, these steps, other than providing proper access to functionality of the computer system, does not affect the core of the claimed invention; namely, the forecasting and optimization of the commercial activities (abstract idea).",
"Therefore, step b is merely an extra-solution activity. Even viewed as a whole, these computer are merely invoked as a tool and perform extra-solution activities; these additional elements would not be sufficient to integrate the abstract idea into a practical application. Therefore, the claims are directed to an abstract idea. Other independent claims all recite similar additional elements and similar rationale that’s applied to claim 3 can be applied to them as well. Therefore, the claims are directed to an abstract idea. The claim(s) does/do not include additional elements that are sufficient to amount to significantly more than the judicial exception for at least the same analysis shown above for prong 2 as the prong 2 analysis would also apply in this instant case as well. Furthermore, as per additional element b analyzed above, Applicant’s own specification describes the additional element in 0044 of the specification as “Authentication server 130 may include any hardware and/or software suitably configured to receive authentication credentials, encrypt and decrypt credentials, authenticate credentials, and/or grant access rights according to pre-defined privileges associated with the credentials” and in 0041 and 0060 that “Practitioners will appreciate that client 110 may or may not be in direct contact with forecasting system 115” and “One skilled in the art will also appreciate that, for security reasons, any databases, systems, servers, or other components of system 101 may consist of … wherein each database or system includes any of various suitable security features, such as firewalls, access codes, encryption, decryption, …”.",
"Therefore, as shown, Applicant’s specification demonstrate the steps performed by additional element b is merely well-understood routine security features that’s suitable to facilitate data access (0041). Still further, regarding the other additional elements, Applicant’s own specification describes various functions can for example be performed using a wide variety of off the shelf compute reprogramming languages (0060), which shows that these functions are widely prevalent. Further, previously cited prior art Belobaba shows a series of booking table operations that can be reproduced manually using nothing more than a Excel spreadsheet; a computer running Microsoft Excel, which is an off-the shelf program, can also show that these functions are well-understood and routine. Still further, the functions of calculating and adjusting booking tables as claimed are also similar to Flook’s performing repetitive calculation, which is noted in MPEP 2106.05(d) II as well-understood and routine.",
"Therefore, the claims are not eligible. As per dependent claims 2, 6-9, 11-12, 16-17, these claims includes additional rules to be followed by the commercial activity and further additional elements invoked similarly to the manner of “by a processor”. Therefore, these claims would still recite an abstract idea and for prong 2, be directed to an abstract idea because the additional element, even viewed in combination with the additional elements of independent claim, are still mere instruction to implement abstract idea on a computer. Step 2B would be similar to above. Claim 18 includes various database optimization related operations, which can all be grouped into additional elements that are directed to extra-solution activity because they are mere additional operations to be performed beyond the solution of booking table and thus failing prong 2. Per step 2B, in 0059 of Applicant’s own specification describes these operations as some of the any known techniques, which would show that these are widely prevalent and in common use, and therefore being well-understood and routine. Therefore, claim 18 is ineligible.",
"Claim 19 includes further abstract idea related to commercial activity of providing booking option for seats on an aircraft based on the remapped booking table; receiving a booking from the booking options for seat of the seats on the aircraft; and removing the availability of the seat from the booking options. The above limitations, in a combination, related to commercial activity of booking and managing inventory of seats, which would still be grouped into certain methods of organizing human activity. Therefore, claim 19 still recites abstract idea. Per prong 2, similar to claim 3’s processor, the additional element is also merely used in the manner of “by the processor”, which is mere instruction to implement the abstract idea on a computer similar to “apply-it”. Therefore, similar analysis can be performed with respect to claim 3 and claim 19 would still be ineligible. Conclusion THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a). A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action.",
"In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action. Any inquiry concerning this communication or earlier communications from the examiner should be directed to GEORGE CHEN whose telephone number is (571)270-5499. The examiner can normally be reached Monday-Friday, 8:30 AM -5:00 PM Eastern. 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, Resha H Desai can be reached on 571-270-7792. 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. GEORGE CHEN Primary Examiner Art Unit 3628 /GEORGE CHEN/Primary Examiner, Art Unit 3628"
] | https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-11-28.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Motion of Wyoming for leave to file a reply brief granted. Motion of the Solicitor General for divided argument granted. [For earlier order herein, see, e. g., ante, p. 1124.] | 11-28-2022 | [
"Motion of Wyoming for leave to file a reply brief granted. Motion of the Solicitor General for divided argument granted. [For earlier order herein, see, e. g., ante, p. 1124.]"
] | https://www.courtlistener.com/api/rest/v3/opinions/9146376/ | 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 Amendment 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 2/3/2021 has been entered. Claims 1-12 and 14-20 are presented for examination. Claim Rejections – 35 USC § 112(a) The following is a quotation of the 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. Claims 1-12 and 14-20 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for pre-AIA the inventor(s), at the time the application was filed, had possession of the claimed invention. Claim 1 recites “the network device … determines a sequence of inputs based on the order in which the first input and the second input are received.” Applicant alleges on page 7 of the reply that the amended limitations are supported by paras.[0023, 0031, 0032, 0034]. However, Examiner was unable to find support for the above feature in the cited paragraphs. For example, [0023] notes that a user can supply one or more inputs to a network. [0031] notes that as a user supplies a user input to a receptor, the network may obtain the input. However, there is no teaching in the above paragraphs that a server or network device will determine a sequence of inputs based on the order in which they are received. For example, it is also possible in the context of [0031] that even if inputs are supplied to the network in a particular order, that order may be irrelevant with respect to how the receiving network device determines a sequence of the inputs. [0032, 0034] refer to inputs, but does not mention determining a sequence based on an order of input reception. Claims 2-12 and 14-20 are rejected for failing to cure the deficiencies of their respective parent claims. Claim Rejections – 35 USC § 103 The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102 of this title, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made. Claims 1-8 and 18-20 are rejected under 35 U.S.C. 103 as being unpatentable over Gerhardt (US 2012/0280789) in view of Schlage (YouTube video, “How to Use Your Schlage .
Regarding claim 1, Gerhardt teaches a secure remote actuation system, comprising: a network (Fig. 4, [0040-0041, 0044] describes a network that connects a web service with a lock server and lock); a remote device communicatively coupled to the network via a wireless connection, the remote device comprising a user interface for receiving user inputs from a user ([0044], a lock is capable of communicating wirelessly with a lock server; [0046], the lock can include a keypad; see also [0072], which describes an interface/receiver for a wireless key device), wherein the remote device: receives a first user input from the user ([0046], a user can provide keypad command signals, one of which can be the “first user input”; [0122], a user can enter a pin code on a keypad; it is well known that such a pin can include multiple values/numbers, one of which can be the “first user input”; see also Fig. 23, which gives an example of a multi-digit pin), sends first signal via the network, wherein the first signal comprises a first input ([0046], the lock can include a keypad, which can relay command signals inputted by a user to a web service via the lock server to authenticate a user; naturally, this means there is a signal or indication of individual digits/elements of a pin code/keypad commands that are transmitted to the web service), receives a second user input from the user ([0046], a user can provide keypad command signals, one of which can be the “second user input”; [0122], a user can enter a pin code on a sends a second signal via the network, wherein the second signal comprises a second input ([0046], the lock can include a keypad, which can relay command signals inputted by a user to a web service via the lock server to authenticate a user; naturally, this means there is a signal or indication of individual digits/elements of a pin code/keypad commands that are transmitted to the web service); an electromechanical device, wherein the electromechanical device is communicatively coupled to the network ([0046] describes a lock capable of electronic communications/control and that is mechanical i.e., electromechanical; Fig. 3, [0039-0041] also describes the lock, which can for example insert or retract a bolt); and a network device communicatively coupled to the network (Fig. 4, [0040-0041] describes a web service connected via a network to the lock server and lock; [0010-0011], the web service and associated software is provided by a device i.e., the “network device,” as depicted in Fig. 4, and communicates to another device e.g., the lock and lock server, via the Internet; see [0053-0054, 0042], which describes a web server), wherein the network device: receives the first signal, comprising the first input, from the remote device via the network ([0046], the lock can include a keypad, which can relay command signals inputted by a user to a web service via the lock server to authenticate a user; naturally, this means there is a signal or indication of individual elements of a pin code/keypad commands that are transmitted to the web service);,
determines a sequence of inputs (Fig. 23, [0046, 0122], the web service authenticates the keypad input of the user, which can be a pin code or a sequence of numbers e.g., as shown in Fig. 23; naturally, to properly authenticate such a code, then web server must understand that sequence), and sends a command to the electromechanical device via the network, wherein the command causes the electromechanical device to actuate ([0046], the lock sends user command signals to the web service to authenticate the user; [0053-0054], such authentication means that the commands/request are sent to the web service; the web service determines the commands/request is valid; the web service issues a request that is passed to the lock server and that in turn actuates the lock; [0041], the web service routes commands to a lock after authentication; see also claim 1, which notes that the web service issues commands for receipt by the lock). However, Gerhardt does not expressly disclose the sending of the first signal while the user is using the user interface in response to the first user input; the sending of the second signal while the user is using the user interface in response to the second user input; the determination of the sequence of inputs based on the order in which the first input and the second input are received; the network device storing an acceptable sequence of inputs and one or more acceptable inputs; determines whether the sequence of inputs corresponds to the acceptable sequence of inputs, determines whether the first input matches at least one of the one or more In the same field of endeavor, Schlage teaches the sending of the first signal while the user is using the user interface in response to the first user input (0:55-1:15, Schlage teaches using a keypad interface to enter a code to access a lock; in response to the user input, the keypad interface flashes green, indicating that the lock has been released and can be opened; in other words, there is a period of time when the user is “using the user interface” i.e., finishing up entering a complete code into the interface and causing a change in an indicator on the interface to confirm that the authentication of the code was successful; during that period of time, in the context of Gerhardt, data is transmitted to the server to authenticate the user and to enable the unlocking of the lock; the video also indicates that a user typically will be using and engaging with the lock from the time they input the code to the time they open the lock; also, the above usage of the keypad interface to enter a complete code and gain access to the lock is naturally in response to the individual inputting of each of the pin numbers i.e., “using the user interface in response to the first user input”) the sending of the second signal while the user is using the user interface in response to the second user input (0:55-1:15, Schlage teaches using a keypad interface to enter a code to access a lock; in response to the user input, the keypad interface flashes green, indicating that the lock has been released and can be opened; in other words, there is a period of time when the user is “using the user interface” i.e., inputting a complete code into the interface and causing a change in an indicator on the interface to confirm that the authentication of the code was the determination of the sequence of inputs based on the order in which the first input and the second input are received (0:52-1:12, 2:00-2:12, as indicated in Schlage, a user inputs a pin code by individually pressing keypad buttons in a particular order; in the context of Gerhardt Fig. 23, [0046, 0122] as described above, this means that the web service would receive, identify and authenticate the entered pin code, which in turn is based on the order in which the user pressed the keypad buttons) It would have been obvious to a person of ordinary skill in the art before the effective filing date of the invention to have incorporated the sending of the first signal while the user is using the user interface in response to the first user input; the sending of the second signal while the user is using the user interface in response to the second user input; the determination of the sequence of inputs based on the order in which the first input and the second input are received as suggested in Schlage into Gerhardt because Gerhardt and Schlage pertain to analogous fields of technology. Both Gerhardt and Schlage pertain to a keypad being used to submit a code in order to unlock an electronic lock. In Schlage, a user uses the keypad until the code is authenticated and the lock is opened, and submits the code by pressing number buttons in a particular order. It would be desirable to incorporate these features into Gerhardt to enable the implementation of the Gerhardt lock e.g., see Schlage 0:52-1:12, 2:00-2:12.
determines whether the sequence of inputs corresponds to the acceptable sequence of inputs, determines whether the first input matches at least one of the one or more acceptable inputs, determines whether the second input matches at least one of the one or more acceptable inputs; the sending the command when the sequence of inputs corresponds to the acceptable sequence of inputs, the first input matches at least one of the one or more acceptable inputs, and the second input matches at least one of the one or more acceptable inputs. In the same field of endeavor, Awamoto teaches the network device storing an acceptable sequence of inputs and one or more acceptable inputs ([0088-0091], it is known for a user to enter credentials into a client device, and then to have the credentials e.g., password or pin code, sent to a server for matching with stored, valid password data i.e., “the acceptable sequence of inputs and one or more acceptable inputs”; the server then sends an authentication response to client, which allows access to protected items; a password naturally involves a sequence of inputs e.g., a sequence of letters or numbers) determines whether the sequence of inputs corresponds to the acceptable sequence of inputs ([0088-0091], it is known for a user to enter credentials into a client device, and then to have the credentials e.g., password or pin code, sent to a server for matching with stored, valid data; the server then sends an authentication response to client, which allows access to protected items; if the server is comparing an inputted password to a stored password, this means it is comparing a sequence of inputs i.e., a sequence of letters/numbers that form a password, with the stored password),
determines whether the second input matches at least one of the one or more acceptable inputs ([0088-0091], naturally, if the system as noted above is authenticating a pin code/password, the system determines that each digit of the pin code matches a digit/character in the stored, valid pin code/password); the sending the command when the sequence of inputs corresponds to the acceptable sequence of inputs ([0088-0091], it is known for a user to enter credentials into a client device, and then to have the credentials e.g., password, sent to a server for matching with stored, valid data; the server then sends an authentication response to client, which allows access to protected items), the first input matches at least one of the one or more acceptable inputs, and the second input matches at least one of the one or more acceptable inputs ([0088-0091], naturally, if the system as noted above is authenticating a pin code/password, the system determines that each digit of the pin code matches a digit/character in the stored, valid pin code/password). It would have been obvious to a person of ordinary skill in the art before the effective filing date of the invention to have incorporated the network device storing an acceptable sequence of inputs and one or more acceptable inputs determines whether the sequence of inputs corresponds to the acceptable sequence of inputs, determines whether the first input matches at least one of the one or more acceptable inputs, determines whether the second input matches at least one of the one or more acceptable inputs; the sending the command when the sequence of
Regarding claim 2, the combination of Gerhardt, Schlage and Awamoto teaches the invention as claimed in claim 1. The combination of Gerhardt, Schlage and Awamoto also teaches wherein the remote device further comprises one or more communication devices for sending the first signal and the second signal, via the network (Gerhardt [0046], the lock is a communication device that can transmit signals to a remote unit/locking server for forwarding to the web service).
Regarding claim 3, the combination of Gerhardt, Schlage and Awamoto teaches the invention as claimed in claim 2. The combination of Gerhardt, Schlage and Awamoto also teaches wherein said one or more communication devices wirelessly communicate with the network device (Gehardt [0046, 0044], as noted in Gerhardt [0044], the lock server includes a
Regarding claim 4, the combination of Gerhardt, Schlage and Awamoto teaches the invention as claimed in claim 1. The combination of Gerhardt, Schlage and Awamoto also teaches wherein the remote device further comprises a keypad (Gerhardt [0046], the lock can include a keypad).
Regarding claim 5, the combination of Gerhardt, Schlage and Awamoto teaches the invention as claimed in claim 4. The combination of Gerhardt, Schlage and Awamoto also teaches wherein the keypad wirelessly communicates data to the network device (Gehardt [0046, 0044], as noted in [0044], the lock server includes a remote control unit, which communicates wirelessly with the lock/keypad; thus, when the lock/keypad transmits data to the lock server for forwarding to the web service, it is transmitting wirelessly).
Regarding claim 6, the combination of Gerhardt, Schlage and Awamoto teaches the invention as claimed in claim 1. The combination of Gerhardt, Schlage and Awamoto also teaches wherein the remote device further comprises a camera (Gerhardt Fig. 32E, [0179], the lock can integrate an accessory component; Gerhardt [0187], the accessory component can be a camera).
Regarding claim 8, the combination of Gerhardt, Schlage and Awamoto teaches the invention as claimed in claim 1. The combination of Gerhardt, Schlage and Awamoto also teaches wherein the remote device further comprises a proximity detector (Gerhardt Fig. 17, [0094-0097], a detector can detect users; as noted in Gerhardt [0097, 0172, 0187, 0090, 0163], the detector can be a camera that is integrated into the locking system; for example, Gerhardt [0187] describes various possible components of a locking system, including possibly a camera; see also Gerhard [0046], which describes a keypad that detects user input i.e., it can detect the proximity of a person utilizing the keypad).
Regarding claim 18, the combination of Gerhardt, Schlage and Awamoto teaches the invention as claimed in claim 1. The combination of Gerhardt, Schlage and Awamoto also teaches wherein the network device comprises one or more memory units for storing: a history of user inputs; one or more input parameters; one or more access parameters; or a combination
Regarding claim 19, the combination of Gerhardt, Schlage and Awamoto teaches the invention as claimed in claim 1. The combination of Gerhardt, Schlage and Awamoto also teaches wherein the network device is operably connected to and controls the actionable device (Gerhardt [0046, 0052-0054, 0037-0039], claim 1, the lock mechanism sends user input data to the web service, which authenticates the data and thus causes the lock to be actuated; thus, the web service effectively controls the lock).
Regarding claim 20, the combination of Gerhardt, Schlage and Awamoto teaches the invention as claimed in claim 19. The combination of Gerhardt, Schlage and Awamoto also teaches wherein said electromechanical device is an access control device, an automated window, automated blinds, a ventilation system, a sprinkler system, a lighting element, an indoor positioning system, a door lock, a garage door motor, or a combination thereof (Gerhardt [0046] describes a lock capable of electronic communications/control and that is mechanical i.e., electromechanical; Gerhardt Fig. 3, [0039-0041] also describes the lock, which can for example insert or retract a bolt; such a lock can be considered to be an access control device).
Claims 9-12 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Gerhardt, Schlage and Awamoto, as applied in claim 6, and further in view of Masood (US 2014/0266604).
Regarding claim 9, the combination of Gerhardt, Schlage and Awamoto teaches the invention as claimed in claim 6. However, the combination of Gerhardt, Schlage and Awamoto does not expressly disclose wherein the camera further comprises a lens. In the same field of endeavor, Masood teaches wherein the camera further comprises a lens (Masood [0069], the camera includes a lens). It would have been obvious to a person of ordinary skill in the art before the effective filing date of the invention to have incorporated wherein the camera further comprises a lens as suggested in Masood into Gerhardt, Schlage and Awamoto because Gerhardt and Masood pertain to analogous fields of technology. Both Gerhardt and Awamoto relate to authentication/security systems that use keypads and cameras e.g., see Gerhardt Fig. 17, [0093-0097, 0172, 0187, 0090, 0163, 0046]. In Masood, the camera can include a lens and other features. It would be desirable to incorporate this feature into Gerhardt to enable the use of a camera e.g., see Masood [0069], the camera includes a lens.
Regarding claim 10, the combination of Gerhardt, Schlage, Awamoto and Masood teaches the invention as claimed in claim 9. The combination of Gerhardt, Schlage, Awamoto and Masood also teaches wherein the lens of the camera extends through an exterior of the remote device (Masood Figs. 2-3, [0069, 0065], the device has a housing 40 with exterior apertures; the cameras 64, 70 and their lenses fit through those apertures to reach the outside, thus they extend at least partially through the exterior of the housing/device).
In the same field of endeavor, Masood teaches wherein the remote device comprises one or more data connection ports (a “port” can be understood as “a connection point for a peripheral device” e.g., see definition of “port” in the American Heritage Dictionary, at https://www.ahdictionary.com/word/search.html?q=port; Fig. 4, [0067-0071] the diagram illustrates the interior of a keypad security device; the processor has a port/connection point to various items such as a memory or the touch controller for the keypad, as well as to network communications controllers; see also Figs. 2-3, which indicate that the above components are sealed in a housing; [0067] various components are connected to the DSP board 44, presumably or inherently via ports). It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to have incorporated wherein the remote device comprises one or more data connection ports as suggested in Masood into Gerhardt, Schlage and Awamoto because Gerhardt and Masood pertain to analogous fields of technology. Both Gerhardt and Masood relate to security access computing devices that can communicate with remote servers and receive user input. In Masood, the computing device is implemented using a board that connects with memory and a processor. It would be desirable to incorporate this feature into Gerhardt to enable the processing and communication capabilities of the security device described in Gerhardt e.g., see Masood Fig. 4, [0067-0071].
Regarding claim 16, the combination of Gerhardt, Schlage, Awamoto and Masood teaches the invention as claimed in claim 10. The combination of Gerhardt, Schlage, Awamoto and Masood also teaches wherein the camera is disposed within an interior of the remote input receptor device (Masood Figs. 2-3, [0069, 0065], as seen in Figs. 2 and 3, at least a portion of cameras 64 and 70 are nested within an interior space of the device).
Claims 14 and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Gerhardt, Schlage, Awamoto and Masood, as applied in claim 12, and further in view of Murchison (US 2007/0266081).
Regarding claim 14, the combination of Gerhardt, Schlage, Awamoto and Masood teaches the invention as claimed in claim 12. However, the combination of Gerhardt, Schlage, Awamoto and Masood does not expressly disclose wherein the network device comprises a software application to control said one or more acceptable inputs. In the same field of endeavor, Murchison teaches the network device comprises a software application to control said one or more acceptable inputs (Murchison [0008], the server manages secure code authorizations for the lock; Murchison [0006], the user can access a host server using the Internet and can manage access codes for the lock; the user can create codes and assign limitations to them; Murchison [0006-0007, 0014], the user and the system can control authorized codes; Murchison [0049] the user can access manage access remotely using a browser interface, which accesses the host system; Murchison Abstract refers to remote management interface software on the host server, which users can interact with). It would have been obvious to a person of ordinary skill in the art before the effective filing date of the invention to have incorporated wherein the network device comprises a software application to control said one or more acceptable inputs as suggested in Murchison into Gerhardt, Schlage, Awamoto and Masood because Gerhardt and Murchison pertain to analogous fields of technology. Both Gerhardt and Murchison relates to a keypad lock that interacts with a server and can authenticate users. Gerhardt [0112] further describes an offline mode, in which logic for authenticating a user can be contained in the lock itself, without requiring a constant connection with the server. Murchison also relates to a system in which authentication credentials can be stored at the lock e.g., see Murchison Abstract. In Murchison, a user can access an interface of the server to manage the credentials. It would be desirable to
Regarding claim 15, the combination of Gerhardt, Schlage, Awamoto, Masood and Murchison teaches the invention as claimed in claim 14. The combination of Gerhardt, Schlage, Awamoto, Masood and Murchison also teaches wherein said controlling of said one or more acceptable inputs comprises editing, adding, or deleting the one or more acceptable inputs, changing personal settings, altering system firmware, conducting diagnoses, or a combination thereof (Murchison Abstract, [0006], a user can create and manage access codes).
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over Gerhardt, Schlage, Awamoto and Masood, as applied in claim 16, and further in view of Kraus (US 2010/0283579).
Regarding claim 17, the combination of Gerhardt, Schlage, Awamoto and Masood teaches the invention as claimed in claim 16. However, the combination of Gerhardt, Schlage, Awamoto and Masood does not expressly disclose the remote device comprises a radio frequency transceiver, and wherein the radio frequency transceiver is a universal device capable of communicating with a plurality of other devices by reciprocating various radio frequency transmissions. In the same field of endeavor, Kraus teaches wherein the remote device comprises a radio frequency transceiver, and wherein the radio frequency transceiver is a universal device capable of communicating with a plurality of other devices by reciprocating various radio frequency transmissions (Fig. 4, [0074], Kraus teaches a keypad with an RF transceiver used to transmit It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to have incorporated wherein the remote device comprises a radio frequency transceiver, and wherein the radio frequency transceiver is a universal device capable of communicating with a plurality of other devices by reciprocating various radio frequency transmissions as suggested in Kraus into Gerhardt, Schlage, Awamoto and Masood because Gerhardt and Kraus pertain to analogous fields of technology. Gerhardt describes a keypad lock that can communicate wirelessly with a server e.g., see Gerhardt [0046]. Kraus also pertains to a keypad lock that can communicate wirelessly with a server. To facilitate this, the keypad lock includes a RF transceiver, which can allow it to connect to a mesh network and ultimately the Internet. It would be desirable to incorporate this feature into Murchison to enable the connection between the server and the lock and to obtain the benefits of using RF signals to connect the lock, such as lower power consumption e.g., see Kraus [0060] and Fig. 1, [0059]. Response to Arguments The Examiner acknowledges the Applicant's amendments to claims 1-12 and 14-20. Regarding independent claim 1, the Applicant alleges that the combination of references does not teach the amended limitation of “receives the first signal, comprising the first input, from the remote device via the network, receives the second signal, comprising the second input, from the remote device via the network, determines a sequence of inputs based on the order in which the first input and the second input are received.” Examiner has therefore rejected claim 1 More specifically, Gerhardt teaches sending keypad input e.g, a pin code, to a web service/server for authentication. As noted in Gerhardt and Schlage, a pin code can be made of multiple digits which are individually pressed in order on a keypad. (See Gerhardt Fig. 23, [046, 0122] and Schlage 2:00-2:12, 0:55-1:15, which shows a user pressing keypad digits one by one in order in order to submit a full code for authentication). When the web service of Gerhardt receives and authenticates a pin code, its identification of the inputted pin code is thus based on the order in which the user pressed the keys at the keypad i.e., “determines a sequence of inputs based on the order in which the first input and the second input are received.” Applicant further alleges that claims 2-12 and 14-20 are allowable in view of their dependency on claim 1. Claims 2-12 and 14-20 have been rejected as being taught by Gerhard, Awamoto, Schlage, Masood, Murchison and/or Kraus. Conclusion The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Sylvain (US 8,127,001) teaches entering a pin on a keypad using keys and transmitting it to a server for authentication e.g., see Sylvain col. 8, lines 33-61. Any inquiry concerning this communication or earlier communications from the examiner should be directed to ERIC YOON whose telephone number is (408)918-7581. The examiner can normally be reached on Monday-Friday, 8 am to 5 pm, PST. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor Jennifer To can be reached on 571-272-7212. 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.
/ERIC J YOON/Primary Examiner, Art Unit 2143 | 2021-03-16T06:28:10 | [
"DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Response to Amendment 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 2/3/2021 has been entered. Claims 1-12 and 14-20 are presented for examination. Claim Rejections – 35 USC § 112(a) The following is a quotation of the 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.",
"Claims 1-12 and 14-20 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for pre-AIA the inventor(s), at the time the application was filed, had possession of the claimed invention. Claim 1 recites “the network device … determines a sequence of inputs based on the order in which the first input and the second input are received.” Applicant alleges on page 7 of the reply that the amended limitations are supported by paras. [0023, 0031, 0032, 0034]. However, Examiner was unable to find support for the above feature in the cited paragraphs. For example, [0023] notes that a user can supply one or more inputs to a network. [0031] notes that as a user supplies a user input to a receptor, the network may obtain the input. However, there is no teaching in the above paragraphs that a server or network device will determine a sequence of inputs based on the order in which they are received. For example, it is also possible in the context of [0031] that even if inputs are supplied to the network in a particular order, that order may be irrelevant with respect to how the receiving network device determines a sequence of the inputs.",
"[0032, 0034] refer to inputs, but does not mention determining a sequence based on an order of input reception. Claims 2-12 and 14-20 are rejected for failing to cure the deficiencies of their respective parent claims. Claim Rejections – 35 USC § 103 The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102 of this title, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made. Claims 1-8 and 18-20 are rejected under 35 U.S.C.",
"103 as being unpatentable over Gerhardt (US 2012/0280789) in view of Schlage (YouTube video, “How to Use Your Schlage . Regarding claim 1, Gerhardt teaches a secure remote actuation system, comprising: a network (Fig. 4, [0040-0041, 0044] describes a network that connects a web service with a lock server and lock); a remote device communicatively coupled to the network via a wireless connection, the remote device comprising a user interface for receiving user inputs from a user ([0044], a lock is capable of communicating wirelessly with a lock server; [0046], the lock can include a keypad; see also [0072], which describes an interface/receiver for a wireless key device), wherein the remote device: receives a first user input from the user ([0046], a user can provide keypad command signals, one of which can be the “first user input”; [0122], a user can enter a pin code on a keypad; it is well known that such a pin can include multiple values/numbers, one of which can be the “first user input”; see also Fig.",
"23, which gives an example of a multi-digit pin), sends first signal via the network, wherein the first signal comprises a first input ([0046], the lock can include a keypad, which can relay command signals inputted by a user to a web service via the lock server to authenticate a user; naturally, this means there is a signal or indication of individual digits/elements of a pin code/keypad commands that are transmitted to the web service), receives a second user input from the user ([0046], a user can provide keypad command signals, one of which can be the “second user input”; [0122], a user can enter a pin code on a sends a second signal via the network, wherein the second signal comprises a second input ([0046], the lock can include a keypad, which can relay command signals inputted by a user to a web service via the lock server to authenticate a user; naturally, this means there is a signal or indication of individual digits/elements of a pin code/keypad commands that are transmitted to the web service); an electromechanical device, wherein the electromechanical device is communicatively coupled to the network ([0046] describes a lock capable of electronic communications/control and that is mechanical i.e., electromechanical; Fig. 3, [0039-0041] also describes the lock, which can for example insert or retract a bolt); and a network device communicatively coupled to the network (Fig. 4, [0040-0041] describes a web service connected via a network to the lock server and lock; [0010-0011], the web service and associated software is provided by a device i.e., the “network device,” as depicted in Fig.",
"4, and communicates to another device e.g., the lock and lock server, via the Internet; see [0053-0054, 0042], which describes a web server), wherein the network device: receives the first signal, comprising the first input, from the remote device via the network ([0046], the lock can include a keypad, which can relay command signals inputted by a user to a web service via the lock server to authenticate a user; naturally, this means there is a signal or indication of individual elements of a pin code/keypad commands that are transmitted to the web service);, determines a sequence of inputs (Fig. 23, [0046, 0122], the web service authenticates the keypad input of the user, which can be a pin code or a sequence of numbers e.g., as shown in Fig. 23; naturally, to properly authenticate such a code, then web server must understand that sequence), and sends a command to the electromechanical device via the network, wherein the command causes the electromechanical device to actuate ([0046], the lock sends user command signals to the web service to authenticate the user; [0053-0054], such authentication means that the commands/request are sent to the web service; the web service determines the commands/request is valid; the web service issues a request that is passed to the lock server and that in turn actuates the lock; [0041], the web service routes commands to a lock after authentication; see also claim 1, which notes that the web service issues commands for receipt by the lock).",
"However, Gerhardt does not expressly disclose the sending of the first signal while the user is using the user interface in response to the first user input; the sending of the second signal while the user is using the user interface in response to the second user input; the determination of the sequence of inputs based on the order in which the first input and the second input are received; the network device storing an acceptable sequence of inputs and one or more acceptable inputs; determines whether the sequence of inputs corresponds to the acceptable sequence of inputs, determines whether the first input matches at least one of the one or more In the same field of endeavor, Schlage teaches the sending of the first signal while the user is using the user interface in response to the first user input (0:55-1:15, Schlage teaches using a keypad interface to enter a code to access a lock; in response to the user input, the keypad interface flashes green, indicating that the lock has been released and can be opened; in other words, there is a period of time when the user is “using the user interface” i.e., finishing up entering a complete code into the interface and causing a change in an indicator on the interface to confirm that the authentication of the code was successful; during that period of time, in the context of Gerhardt, data is transmitted to the server to authenticate the user and to enable the unlocking of the lock; the video also indicates that a user typically will be using and engaging with the lock from the time they input the code to the time they open the lock; also, the above usage of the keypad interface to enter a complete code and gain access to the lock is naturally in response to the individual inputting of each of the pin numbers i.e., “using the user interface in response to the first user input”) the sending of the second signal while the user is using the user interface in response to the second user input (0:55-1:15, Schlage teaches using a keypad interface to enter a code to access a lock; in response to the user input, the keypad interface flashes green, indicating that the lock has been released and can be opened; in other words, there is a period of time when the user is “using the user interface” i.e., inputting a complete code into the interface and causing a change in an indicator on the interface to confirm that the authentication of the code was the determination of the sequence of inputs based on the order in which the first input and the second input are received (0:52-1:12, 2:00-2:12, as indicated in Schlage, a user inputs a pin code by individually pressing keypad buttons in a particular order; in the context of Gerhardt Fig.",
"23, [0046, 0122] as described above, this means that the web service would receive, identify and authenticate the entered pin code, which in turn is based on the order in which the user pressed the keypad buttons) It would have been obvious to a person of ordinary skill in the art before the effective filing date of the invention to have incorporated the sending of the first signal while the user is using the user interface in response to the first user input; the sending of the second signal while the user is using the user interface in response to the second user input; the determination of the sequence of inputs based on the order in which the first input and the second input are received as suggested in Schlage into Gerhardt because Gerhardt and Schlage pertain to analogous fields of technology. Both Gerhardt and Schlage pertain to a keypad being used to submit a code in order to unlock an electronic lock. In Schlage, a user uses the keypad until the code is authenticated and the lock is opened, and submits the code by pressing number buttons in a particular order. It would be desirable to incorporate these features into Gerhardt to enable the implementation of the Gerhardt lock e.g., see Schlage 0:52-1:12, 2:00-2:12. determines whether the sequence of inputs corresponds to the acceptable sequence of inputs, determines whether the first input matches at least one of the one or more acceptable inputs, determines whether the second input matches at least one of the one or more acceptable inputs; the sending the command when the sequence of inputs corresponds to the acceptable sequence of inputs, the first input matches at least one of the one or more acceptable inputs, and the second input matches at least one of the one or more acceptable inputs.",
"In the same field of endeavor, Awamoto teaches the network device storing an acceptable sequence of inputs and one or more acceptable inputs ([0088-0091], it is known for a user to enter credentials into a client device, and then to have the credentials e.g., password or pin code, sent to a server for matching with stored, valid password data i.e., “the acceptable sequence of inputs and one or more acceptable inputs”; the server then sends an authentication response to client, which allows access to protected items; a password naturally involves a sequence of inputs e.g., a sequence of letters or numbers) determines whether the sequence of inputs corresponds to the acceptable sequence of inputs ([0088-0091], it is known for a user to enter credentials into a client device, and then to have the credentials e.g., password or pin code, sent to a server for matching with stored, valid data; the server then sends an authentication response to client, which allows access to protected items; if the server is comparing an inputted password to a stored password, this means it is comparing a sequence of inputs i.e., a sequence of letters/numbers that form a password, with the stored password), determines whether the second input matches at least one of the one or more acceptable inputs ([0088-0091], naturally, if the system as noted above is authenticating a pin code/password, the system determines that each digit of the pin code matches a digit/character in the stored, valid pin code/password); the sending the command when the sequence of inputs corresponds to the acceptable sequence of inputs ([0088-0091], it is known for a user to enter credentials into a client device, and then to have the credentials e.g., password, sent to a server for matching with stored, valid data; the server then sends an authentication response to client, which allows access to protected items), the first input matches at least one of the one or more acceptable inputs, and the second input matches at least one of the one or more acceptable inputs ([0088-0091], naturally, if the system as noted above is authenticating a pin code/password, the system determines that each digit of the pin code matches a digit/character in the stored, valid pin code/password).",
"It would have been obvious to a person of ordinary skill in the art before the effective filing date of the invention to have incorporated the network device storing an acceptable sequence of inputs and one or more acceptable inputs determines whether the sequence of inputs corresponds to the acceptable sequence of inputs, determines whether the first input matches at least one of the one or more acceptable inputs, determines whether the second input matches at least one of the one or more acceptable inputs; the sending the command when the sequence of Regarding claim 2, the combination of Gerhardt, Schlage and Awamoto teaches the invention as claimed in claim 1. The combination of Gerhardt, Schlage and Awamoto also teaches wherein the remote device further comprises one or more communication devices for sending the first signal and the second signal, via the network (Gerhardt [0046], the lock is a communication device that can transmit signals to a remote unit/locking server for forwarding to the web service).",
"Regarding claim 3, the combination of Gerhardt, Schlage and Awamoto teaches the invention as claimed in claim 2. The combination of Gerhardt, Schlage and Awamoto also teaches wherein said one or more communication devices wirelessly communicate with the network device (Gehardt [0046, 0044], as noted in Gerhardt [0044], the lock server includes a Regarding claim 4, the combination of Gerhardt, Schlage and Awamoto teaches the invention as claimed in claim 1. The combination of Gerhardt, Schlage and Awamoto also teaches wherein the remote device further comprises a keypad (Gerhardt [0046], the lock can include a keypad). Regarding claim 5, the combination of Gerhardt, Schlage and Awamoto teaches the invention as claimed in claim 4.",
"The combination of Gerhardt, Schlage and Awamoto also teaches wherein the keypad wirelessly communicates data to the network device (Gehardt [0046, 0044], as noted in [0044], the lock server includes a remote control unit, which communicates wirelessly with the lock/keypad; thus, when the lock/keypad transmits data to the lock server for forwarding to the web service, it is transmitting wirelessly). Regarding claim 6, the combination of Gerhardt, Schlage and Awamoto teaches the invention as claimed in claim 1. The combination of Gerhardt, Schlage and Awamoto also teaches wherein the remote device further comprises a camera (Gerhardt Fig. 32E, [0179], the lock can integrate an accessory component; Gerhardt [0187], the accessory component can be a camera). Regarding claim 8, the combination of Gerhardt, Schlage and Awamoto teaches the invention as claimed in claim 1.",
"The combination of Gerhardt, Schlage and Awamoto also teaches wherein the remote device further comprises a proximity detector (Gerhardt Fig. 17, [0094-0097], a detector can detect users; as noted in Gerhardt [0097, 0172, 0187, 0090, 0163], the detector can be a camera that is integrated into the locking system; for example, Gerhardt [0187] describes various possible components of a locking system, including possibly a camera; see also Gerhard [0046], which describes a keypad that detects user input i.e., it can detect the proximity of a person utilizing the keypad). Regarding claim 18, the combination of Gerhardt, Schlage and Awamoto teaches the invention as claimed in claim 1. The combination of Gerhardt, Schlage and Awamoto also teaches wherein the network device comprises one or more memory units for storing: a history of user inputs; one or more input parameters; one or more access parameters; or a combination Regarding claim 19, the combination of Gerhardt, Schlage and Awamoto teaches the invention as claimed in claim 1. The combination of Gerhardt, Schlage and Awamoto also teaches wherein the network device is operably connected to and controls the actionable device (Gerhardt [0046, 0052-0054, 0037-0039], claim 1, the lock mechanism sends user input data to the web service, which authenticates the data and thus causes the lock to be actuated; thus, the web service effectively controls the lock). Regarding claim 20, the combination of Gerhardt, Schlage and Awamoto teaches the invention as claimed in claim 19. The combination of Gerhardt, Schlage and Awamoto also teaches wherein said electromechanical device is an access control device, an automated window, automated blinds, a ventilation system, a sprinkler system, a lighting element, an indoor positioning system, a door lock, a garage door motor, or a combination thereof (Gerhardt [0046] describes a lock capable of electronic communications/control and that is mechanical i.e., electromechanical; Gerhardt Fig.",
"3, [0039-0041] also describes the lock, which can for example insert or retract a bolt; such a lock can be considered to be an access control device). Claims 9-12 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Gerhardt, Schlage and Awamoto, as applied in claim 6, and further in view of Masood (US 2014/0266604). Regarding claim 9, the combination of Gerhardt, Schlage and Awamoto teaches the invention as claimed in claim 6. However, the combination of Gerhardt, Schlage and Awamoto does not expressly disclose wherein the camera further comprises a lens. In the same field of endeavor, Masood teaches wherein the camera further comprises a lens (Masood [0069], the camera includes a lens). It would have been obvious to a person of ordinary skill in the art before the effective filing date of the invention to have incorporated wherein the camera further comprises a lens as suggested in Masood into Gerhardt, Schlage and Awamoto because Gerhardt and Masood pertain to analogous fields of technology. Both Gerhardt and Awamoto relate to authentication/security systems that use keypads and cameras e.g., see Gerhardt Fig. 17, [0093-0097, 0172, 0187, 0090, 0163, 0046]. In Masood, the camera can include a lens and other features.",
"It would be desirable to incorporate this feature into Gerhardt to enable the use of a camera e.g., see Masood [0069], the camera includes a lens. Regarding claim 10, the combination of Gerhardt, Schlage, Awamoto and Masood teaches the invention as claimed in claim 9. The combination of Gerhardt, Schlage, Awamoto and Masood also teaches wherein the lens of the camera extends through an exterior of the remote device (Masood Figs. 2-3, [0069, 0065], the device has a housing 40 with exterior apertures; the cameras 64, 70 and their lenses fit through those apertures to reach the outside, thus they extend at least partially through the exterior of the housing/device). In the same field of endeavor, Masood teaches wherein the remote device comprises one or more data connection ports (a “port” can be understood as “a connection point for a peripheral device” e.g., see definition of “port” in the American Heritage Dictionary, at https://www.ahdictionary.com/word/search.html?q=port; Fig. 4, [0067-0071] the diagram illustrates the interior of a keypad security device; the processor has a port/connection point to various items such as a memory or the touch controller for the keypad, as well as to network communications controllers; see also Figs. 2-3, which indicate that the above components are sealed in a housing; [0067] various components are connected to the DSP board 44, presumably or inherently via ports). It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to have incorporated wherein the remote device comprises one or more data connection ports as suggested in Masood into Gerhardt, Schlage and Awamoto because Gerhardt and Masood pertain to analogous fields of technology.",
"Both Gerhardt and Masood relate to security access computing devices that can communicate with remote servers and receive user input. In Masood, the computing device is implemented using a board that connects with memory and a processor. It would be desirable to incorporate this feature into Gerhardt to enable the processing and communication capabilities of the security device described in Gerhardt e.g., see Masood Fig. 4, [0067-0071]. Regarding claim 16, the combination of Gerhardt, Schlage, Awamoto and Masood teaches the invention as claimed in claim 10. The combination of Gerhardt, Schlage, Awamoto and Masood also teaches wherein the camera is disposed within an interior of the remote input receptor device (Masood Figs. 2-3, [0069, 0065], as seen in Figs.",
"2 and 3, at least a portion of cameras 64 and 70 are nested within an interior space of the device). Claims 14 and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Gerhardt, Schlage, Awamoto and Masood, as applied in claim 12, and further in view of Murchison (US 2007/0266081). Regarding claim 14, the combination of Gerhardt, Schlage, Awamoto and Masood teaches the invention as claimed in claim 12. However, the combination of Gerhardt, Schlage, Awamoto and Masood does not expressly disclose wherein the network device comprises a software application to control said one or more acceptable inputs. In the same field of endeavor, Murchison teaches the network device comprises a software application to control said one or more acceptable inputs (Murchison [0008], the server manages secure code authorizations for the lock; Murchison [0006], the user can access a host server using the Internet and can manage access codes for the lock; the user can create codes and assign limitations to them; Murchison [0006-0007, 0014], the user and the system can control authorized codes; Murchison [0049] the user can access manage access remotely using a browser interface, which accesses the host system; Murchison Abstract refers to remote management interface software on the host server, which users can interact with).",
"It would have been obvious to a person of ordinary skill in the art before the effective filing date of the invention to have incorporated wherein the network device comprises a software application to control said one or more acceptable inputs as suggested in Murchison into Gerhardt, Schlage, Awamoto and Masood because Gerhardt and Murchison pertain to analogous fields of technology. Both Gerhardt and Murchison relates to a keypad lock that interacts with a server and can authenticate users. Gerhardt [0112] further describes an offline mode, in which logic for authenticating a user can be contained in the lock itself, without requiring a constant connection with the server. Murchison also relates to a system in which authentication credentials can be stored at the lock e.g., see Murchison Abstract. In Murchison, a user can access an interface of the server to manage the credentials. It would be desirable to Regarding claim 15, the combination of Gerhardt, Schlage, Awamoto, Masood and Murchison teaches the invention as claimed in claim 14.",
"The combination of Gerhardt, Schlage, Awamoto, Masood and Murchison also teaches wherein said controlling of said one or more acceptable inputs comprises editing, adding, or deleting the one or more acceptable inputs, changing personal settings, altering system firmware, conducting diagnoses, or a combination thereof (Murchison Abstract, [0006], a user can create and manage access codes). Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over Gerhardt, Schlage, Awamoto and Masood, as applied in claim 16, and further in view of Kraus (US 2010/0283579). Regarding claim 17, the combination of Gerhardt, Schlage, Awamoto and Masood teaches the invention as claimed in claim 16. However, the combination of Gerhardt, Schlage, Awamoto and Masood does not expressly disclose the remote device comprises a radio frequency transceiver, and wherein the radio frequency transceiver is a universal device capable of communicating with a plurality of other devices by reciprocating various radio frequency transmissions. In the same field of endeavor, Kraus teaches wherein the remote device comprises a radio frequency transceiver, and wherein the radio frequency transceiver is a universal device capable of communicating with a plurality of other devices by reciprocating various radio frequency transmissions (Fig. 4, [0074], Kraus teaches a keypad with an RF transceiver used to transmit It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to have incorporated wherein the remote device comprises a radio frequency transceiver, and wherein the radio frequency transceiver is a universal device capable of communicating with a plurality of other devices by reciprocating various radio frequency transmissions as suggested in Kraus into Gerhardt, Schlage, Awamoto and Masood because Gerhardt and Kraus pertain to analogous fields of technology.",
"Gerhardt describes a keypad lock that can communicate wirelessly with a server e.g., see Gerhardt [0046]. Kraus also pertains to a keypad lock that can communicate wirelessly with a server. To facilitate this, the keypad lock includes a RF transceiver, which can allow it to connect to a mesh network and ultimately the Internet. It would be desirable to incorporate this feature into Murchison to enable the connection between the server and the lock and to obtain the benefits of using RF signals to connect the lock, such as lower power consumption e.g., see Kraus [0060] and Fig. 1, [0059]. Response to Arguments The Examiner acknowledges the Applicant's amendments to claims 1-12 and 14-20. Regarding independent claim 1, the Applicant alleges that the combination of references does not teach the amended limitation of “receives the first signal, comprising the first input, from the remote device via the network, receives the second signal, comprising the second input, from the remote device via the network, determines a sequence of inputs based on the order in which the first input and the second input are received.” Examiner has therefore rejected claim 1 More specifically, Gerhardt teaches sending keypad input e.g, a pin code, to a web service/server for authentication.",
"As noted in Gerhardt and Schlage, a pin code can be made of multiple digits which are individually pressed in order on a keypad. (See Gerhardt Fig. 23, [046, 0122] and Schlage 2:00-2:12, 0:55-1:15, which shows a user pressing keypad digits one by one in order in order to submit a full code for authentication). When the web service of Gerhardt receives and authenticates a pin code, its identification of the inputted pin code is thus based on the order in which the user pressed the keys at the keypad i.e., “determines a sequence of inputs based on the order in which the first input and the second input are received.” Applicant further alleges that claims 2-12 and 14-20 are allowable in view of their dependency on claim 1. Claims 2-12 and 14-20 have been rejected as being taught by Gerhard, Awamoto, Schlage, Masood, Murchison and/or Kraus.",
"Conclusion The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Sylvain (US 8,127,001) teaches entering a pin on a keypad using keys and transmitting it to a server for authentication e.g., see Sylvain col. 8, lines 33-61. Any inquiry concerning this communication or earlier communications from the examiner should be directed to ERIC YOON whose telephone number is (408)918-7581. The examiner can normally be reached on Monday-Friday, 8 am to 5 pm, PST. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor Jennifer To can be reached on 571-272-7212. 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. /ERIC J YOON/Primary Examiner, Art Unit 2143"
] | 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 |
Exhibit 10.81 SECOND AMENDMENT TO INDUSTRIAL LEASE AGREEMENT THIS SECOND AMENDMENT TO INDUSTRIAL LEASE AGREEMENT (this “Second Amendment”) is dated as of December 28, 2007 by and between INDUSTRIAL PROPERTY FUND VI, LLC, a Delaware limited liability company (“Landlord”), as successor-in-interest to Industrial Developments International, Inc., a Delaware corporation (“IDI”), and PRIORITY FULFILLMENT SERVICES, INC., a Delaware corporation (“Tenant”). RECITALS IDI and Tenant previously entered into that certain Industrial Lease Agreement dated August 19, 2004, as amended by that certain First Amendment to Industrial Lease Agreement, dated December 22, 2004 (as amended, the “Lease”) for the lease of approximately 434,900 square feet of space, more commonly known as 8474 Market Place, Southaven Mississippi 38671 (the “Demised Premises”), located within Airways Distribution Center, DeSoto County, Mississippi. Landlord has succeeded to the interest of IDI under the Lease. Landlord and Tenant now desire to amend the Lease to, among other things, extend the Term. NOW, THEREFORE, for and in consideration of Ten and No/100 Dollars ($10.00) and other good and valuable consideration in hand paid by each party hereto to the other, the receipt and sufficiency of which are hereby acknowledged, the parties hereto do hereby agree as follows: 1. All capitalized terms used herein but undefined shall have the meaning as defined in the Lease. 2. The Expiration Date, as defined in Section 1(h) of the Lease, is hereby extended to December 31, 2010. As used herein, “Term” is hereby defined as the period commencing on the Lease Commencement Date and terminating on the Expiration Date, as extended hereby. 3. Beginning on January 1, 2008, the Annual Base Rent, as defined in Section 1(d) of the Lease, for the remainder of the Term as extended hereby shall be $1,278,606.00 per year payable in Monthly Base Rent Installments of $106,550.50 per month. 4. Special Stipulation 3 of Exhibit C of the Lease is hereby deleted in its entirety. The first sentence of Special Stipulation 4 of Exhibit C of the Lease is hereby amended and modified to replace the number “two (2)” with “one (1)” so that from and after the date hereof, Tenant shall only have one (1) option to extend the Term pursuant to Special Stipulation 4.
--------------------------------------------------------------------------------
5. Allowance for Tenant’s Changes. (a) Assuming Tenant either delivers to Landlord a Termination Waiver in accordance with the terms of Section 7 below or does not timely exercise the Termination Option (as defined below) such that it expires by its terms, Landlord shall reimburse Tenant for Tenant’s costs up to an amount equal to One Hundred Eight Thousand Seven Hundred Twenty Five and No/100 Dollars ($108,725.00) (the “Tenant Allowance”) which are incurred by Tenant in constructing any Tenant’s Changes which are completed on or before June 30, 2008 (the “Construction Completion Date”) in accordance with the terms of Section 18 of the Lease so long as, on or before the Construction Completion Date Tenant has met the following requirements (“Reimbursement Requirements”): (i) substantially completed the applicable Tenant’s Changes and received a certificate of occupancy (if required) from the applicable governing authority and delivered a copy of the same to Landlord; (ii) delivered to Landlord lien waivers and affidavits from Tenant’s contractor, all subcontractors, and all laborers or materials suppliers having performed any work at the Demised Premises relating to the applicable Tenant’s Changes, together with any other evidence reasonably required by Landlord to satisfy Landlord’s title insurer that there are no parties entitled to file a lien against the real property underlying the Project in connection with such work; and (iii) delivered to Landlord all invoices, receipts and other evidence reasonably required by Landlord to evidence the cost of the applicable Tenant’s Changes. (b) Any qualifying reimbursement amounts described above shall be paid by Landlord to Tenant within thirty (30) days after the later of (i) the Termination Option Expiration Date (as defined below) (including, without limitation, if the Termination Option Expiration Date is accelerated due to delivery by Tenant of a Termination Waiver in accordance with the terms of Section 7 below) or (ii) thirty (30) days after satisfaction of the Reimbursement Requirements. 6. Tenant utilizes the Demised Premises to provide logistical services (“Logistical Services”) for its client, Philip Morris USA Inc. (“PM USA”). Landlord hereby agrees to simultaneously deliver to PM USA, at the address below and otherwise in accordance with the terms of the Lease (a “PM USA Notice”), a copy of any notice to Tenant regarding any failure by Tenant to fulfill its obligations under the Lease which, with the giving of notice or the passage of time, or both, would constitute an Event of Default (a “Potential Event of Default”).
--------------------------------------------------------------------------------
PM USA Notice address: Philip Morris USA, Inc. 6601 West Broad Street Richmond, Virginia 23230 Attention: Manager of Marketing Services If a Potential Event of Default occurs, so long as PM USA has the assets, capitalization, tangible net worth (as defined in the Lease) and creditworthiness (collectively, the “Creditworthiness”) at least equal to the Creditworthiness of the Guarantor as of the Lease Date as determined by GAAP, PM USA shall have the right to cure any Potential Event of Default in the same manner and within the same time frames in which Tenant would be so entitled under the terms of the Lease, provided that, simultaneously with its causing such cure, PM USA delivers to Landlord a copy of the Lease Assignment Agreement attached hereto as Exhibit A (the “Assignment Document”) duly executed by all parties other than Landlord for whom signature blocks have been added, at which time, so long as all the terms and conditions required in Section 29 of the Lease for a Pre-Approved Assignment are met (other than the requirement of giving forty-five days prior written notice to Landlord), and no Event of Default then exists and is continuing, Tenant shall be deemed to have assigned its interest in the Lease to PM USA and PM USA shall be deemed to have assumed the obligations of Tenant under the Lease (excluding any obligations and liabilities of Tenant which have accrued prior to the PM USA Assignment) (the “PM USA Assignment”). Upon the Effective Date of a PM USA Assignment (as defined in the Assignment Document), Tenant’s right, title and interest in the Security Deposit shall be deemed assigned to PM USA. If the Security Deposit is then in the form of a Letter of Credit, PM USA shall, simultaneously with its delivery of the Assignment Document, cause a new Letter of Credit to be issued to Landlord in the same form as Tenant’s (after which, if, and to the extent not previously drawn upon pursuant to the terms of the Lease, Landlord shall return to Tenant its Letter of Credit). The PM USA Assignment shall be deemed effective on the Effective Date, provided that the Potential Event of Default has been cured, no Event of Default then exists and is continuing, and the Security Deposit has been fully replenished at the time of delivery of the Assignment Document; otherwise, the PM USA Assignment shall not be deemed effective. Tenant hereby irrevocably agrees to the terms of PM USA Assignment, and shall be deemed to have approved and consented to the PM USA Assignment as if it had executed the Assignment Document. From and after the Effective Date of a PM USA Assignment, PM USA shall become liable directly to Landlord for all obligations of Tenant under the Lease arising after the Effective Date, without, however, relieving Tenant or Guarantor of any liability thereunder. In the event Landlord declares Tenant in default under section 22(a)(vii) of the Lease, notwithstanding the lack of a cure period with respect to such default in the Lease, PM USA shall be entitled to a period of 10 days from receipt of a PM USA Notice with respect to such default to deliver a duly executed Assignment Document in order to effect a PM USA Assignment of the Lease. Upon the Effective Date of a PM USA Assignment, the default shall be deemed cured with respect to the Lease as assigned to PM USA; provided, however, that the 10-day period in favor of PM USA is not intended as and shall not be construed as a cure period in favor of Tenant with respect to such default should a PM USA Assignment not occur within such period.
--------------------------------------------------------------------------------
In addition to the foregoing, PM USA shall have the right to effect a PM USA Assignment at any time no Potential Event of Default or Event of Default exists and is continuing and so long as all the terms and conditions required in the Lease for a Pre-Approved Assignment are met (other than the requirement of giving forty-five days prior written notice to Landlord), by executing and delivering to Landlord, with a copy to Tenant, the Assignment Document, whereupon all of the provisions of the preceding paragraph shall apply. Tenant hereby waives any claims it may have against Landlord in connection with a PM USA Assignment, including without limitation any recognition by Landlord of PM USA as the Tenant under the Lease following delivery of the Assignment Document (even in the event Tenant notifies Landlord that it disputes the right of PM USA to cause the PM USA Assignment). Notwithstanding the foregoing, Tenant agrees that it will not amend or modify the Lease without the prior written consent of PM USA and Landlord agrees that it will not amend or modify the Lease unless Tenant provides Landlord with a copy of PM USA’s written consent thereto. Other than as specifically set forth herein PM USA shall not be deemed to have any interest whatsoever in the Lease, whether as a third party beneficiary or otherwise. In no event shall Landlord suffer any liability whatsoever for any failure to provide a PM USA Notice; provided however, the time periods related to the notice and cure provisions of the Lease shall not be deemed to commence unless and until a PM USA Notice has been given with respect to any particular Potential Event of Default. 7. Early Termination and Termination Payment. Provided that no Event of Default has occurred and is then continuing and no facts or circumstances exist, either at the time of Tenant’s notice to Landlord or on the date such termination would otherwise be effective, which, with the giving of notice or the passage of time, or both, would constitute an Event of Default, Tenant shall have the right to terminate this Lease effective on December 31, 2008 (the “Termination Option”). In order to exercise the Termination Option, Tenant must notify Landlord of such exercise on or before February 28, 2008 (such date, or any earlier date on which Tenant delivers to Landlord a Termination Waiver (as defined below), is referred to as the “Termination Option Expiration Date”), and together with such notice, provide written consent by PM USA of such exercise by Tenant of the Termination Option, and further, together with such notice Tenant shall deliver to Landlord an amount equal to One Hundred Thirteen Thousand Seventy Four and No/100 Dollars ($113,074.00) as an agreed-upon payment as liquidated damages. Tenant may at any time waive the Termination Option by written notice to Landlord (a “Termination Waiver”), and any such Termination Waiver shall be irrevocable, and, upon delivery of the Termination Waiver, the Termination Option shall expire and terminate and have no further effect. Nothing contained herein shall be deemed to relieve Tenant of its obligation to pay Rent through the effective date of such termination (in addition to the termination payment). In the event Tenant fails to exercise the Termination Option by February 28, 2008 (or Tenant fails to deliver the above-described written consent by PM USA or the termination payment by such date), Tenant shall be deemed to have waived the Termination Option. This Termination Option is personal to Priority Fulfillment Services, Inc. (or to PM USA in the event the Lease is
--------------------------------------------------------------------------------
assigned to PM USA pursuant to a PM USA Assignment) and shall become null and void upon the occurrence of an assignment of the Lease (other than a PM USA Assignment) or a sublet of all or a part of the Demised Premises. 8. Tenant is in possession of, and has accepted, the Demised Premises, and acknowledges that all the work to be performed by the Landlord in the Demised Premises as required by the terms of this Lease, if any, have been satisfactorily completed. Tenant further certifies that all conditions of the Lease required of Landlord as of this date have been fulfilled and there are no defenses or setoffs against the enforcement of the Lease by Landlord. 9. Tenant represents to Landlord that, to the best of its knowledge, as of the date hereof, Landlord is not in default of the Lease. 10. Except as amended hereby, the Lease shall be and remain in full force and effect and unchanged. As amended hereby, the Lease is hereby ratified and confirmed by Landlord and Tenant. To the extent the terms hereof are inconsistent with the terms of the Lease, the terms hereof shall control. 11. The submission of this Second Amendment to Tenant for examination or consideration does not constitute an offer to amend the Lease, and this Second Amendment shall become effective only upon the execution and delivery thereof by Landlord and Tenant. Execution and delivery of this Second Amendment by Tenant to Landlord constitutes an offer to amend the Lease on the terms contained herein. The offer by Tenant will be irrevocable until 6:00 p.m. Eastern time for fifteen (15) days after the date of execution of this Second Amendment by Tenant and delivery to Landlord.
--------------------------------------------------------------------------------
IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to be executed and sealed as of the date first written above.
LANDLORD: INDUSTRIAL PROPERTY FUND VI, LLC, a Delaware limited liability company By: Strategic Industrial Properties, I, LLC, a Delaware limited liability company, its sole member By: IDI Holdings III, LLC, a Delaware limited liability company, its managing member By: Name: Title:
TENANT: PRIORITY FULFILLMENT SERVICES, INC., a Delaware corporation By: Name: Title: Attest: Name: Title: [CORPORATE SEAL]
--------------------------------------------------------------------------------
Acknowledged and agreed: PHILIP MORRIS USA, INC. By: Name: Title: Attest: Name: Title:
[CORPORATE SEAL]
--------------------------------------------------------------------------------
GUARANTOR The capitalized terms of this Consent shall have the meaning as defined in the Second Amendment to which this Consent is attached, unless otherwise defined. The undersigned, being the Guarantor of the Lease under that certain Guaranty dated August 19, 2004, from Guarantor to Landlord, hereby consents to the Second Amendment, and acknowledges and reaffirms that the Guaranty is in full force and effect as it relates to the Lease, as amended by the Second Amendment.
Date: GUARANTOR: PFSWEB, INC., a Delaware corporation By: Name: Title: Attest: Name: Title: [CORPORATE SEAL] | [
"Exhibit 10.81 SECOND AMENDMENT TO INDUSTRIAL LEASE AGREEMENT THIS SECOND AMENDMENT TO INDUSTRIAL LEASE AGREEMENT (this “Second Amendment”) is dated as of December 28, 2007 by and between INDUSTRIAL PROPERTY FUND VI, LLC, a Delaware limited liability company (“Landlord”), as successor-in-interest to Industrial Developments International, Inc., a Delaware corporation (“IDI”), and PRIORITY FULFILLMENT SERVICES, INC., a Delaware corporation (“Tenant”). RECITALS IDI and Tenant previously entered into that certain Industrial Lease Agreement dated August 19, 2004, as amended by that certain First Amendment to Industrial Lease Agreement, dated December 22, 2004 (as amended, the “Lease”) for the lease of approximately 434,900 square feet of space, more commonly known as 8474 Market Place, Southaven Mississippi 38671 (the “Demised Premises”), located within Airways Distribution Center, DeSoto County, Mississippi. Landlord has succeeded to the interest of IDI under the Lease. Landlord and Tenant now desire to amend the Lease to, among other things, extend the Term. NOW, THEREFORE, for and in consideration of Ten and No/100 Dollars ($10.00) and other good and valuable consideration in hand paid by each party hereto to the other, the receipt and sufficiency of which are hereby acknowledged, the parties hereto do hereby agree as follows: 1.",
"All capitalized terms used herein but undefined shall have the meaning as defined in the Lease. 2. The Expiration Date, as defined in Section 1(h) of the Lease, is hereby extended to December 31, 2010. As used herein, “Term” is hereby defined as the period commencing on the Lease Commencement Date and terminating on the Expiration Date, as extended hereby. 3. Beginning on January 1, 2008, the Annual Base Rent, as defined in Section 1(d) of the Lease, for the remainder of the Term as extended hereby shall be $1,278,606.00 per year payable in Monthly Base Rent Installments of $106,550.50 per month. 4. Special Stipulation 3 of Exhibit C of the Lease is hereby deleted in its entirety.",
"The first sentence of Special Stipulation 4 of Exhibit C of the Lease is hereby amended and modified to replace the number “two (2)” with “one (1)” so that from and after the date hereof, Tenant shall only have one (1) option to extend the Term pursuant to Special Stipulation 4. -------------------------------------------------------------------------------- 5. Allowance for Tenant’s Changes. (a) Assuming Tenant either delivers to Landlord a Termination Waiver in accordance with the terms of Section 7 below or does not timely exercise the Termination Option (as defined below) such that it expires by its terms, Landlord shall reimburse Tenant for Tenant’s costs up to an amount equal to One Hundred Eight Thousand Seven Hundred Twenty Five and No/100 Dollars ($108,725.00) (the “Tenant Allowance”) which are incurred by Tenant in constructing any Tenant’s Changes which are completed on or before June 30, 2008 (the “Construction Completion Date”) in accordance with the terms of Section 18 of the Lease so long as, on or before the Construction Completion Date Tenant has met the following requirements (“Reimbursement Requirements”): (i) substantially completed the applicable Tenant’s Changes and received a certificate of occupancy (if required) from the applicable governing authority and delivered a copy of the same to Landlord; (ii) delivered to Landlord lien waivers and affidavits from Tenant’s contractor, all subcontractors, and all laborers or materials suppliers having performed any work at the Demised Premises relating to the applicable Tenant’s Changes, together with any other evidence reasonably required by Landlord to satisfy Landlord’s title insurer that there are no parties entitled to file a lien against the real property underlying the Project in connection with such work; and (iii) delivered to Landlord all invoices, receipts and other evidence reasonably required by Landlord to evidence the cost of the applicable Tenant’s Changes.",
"(b) Any qualifying reimbursement amounts described above shall be paid by Landlord to Tenant within thirty (30) days after the later of (i) the Termination Option Expiration Date (as defined below) (including, without limitation, if the Termination Option Expiration Date is accelerated due to delivery by Tenant of a Termination Waiver in accordance with the terms of Section 7 below) or (ii) thirty (30) days after satisfaction of the Reimbursement Requirements. 6. Tenant utilizes the Demised Premises to provide logistical services (“Logistical Services”) for its client, Philip Morris USA Inc. (“PM USA”). Landlord hereby agrees to simultaneously deliver to PM USA, at the address below and otherwise in accordance with the terms of the Lease (a “PM USA Notice”), a copy of any notice to Tenant regarding any failure by Tenant to fulfill its obligations under the Lease which, with the giving of notice or the passage of time, or both, would constitute an Event of Default (a “Potential Event of Default”).",
"-------------------------------------------------------------------------------- PM USA Notice address: Philip Morris USA, Inc. 6601 West Broad Street Richmond, Virginia 23230 Attention: Manager of Marketing Services If a Potential Event of Default occurs, so long as PM USA has the assets, capitalization, tangible net worth (as defined in the Lease) and creditworthiness (collectively, the “Creditworthiness”) at least equal to the Creditworthiness of the Guarantor as of the Lease Date as determined by GAAP, PM USA shall have the right to cure any Potential Event of Default in the same manner and within the same time frames in which Tenant would be so entitled under the terms of the Lease, provided that, simultaneously with its causing such cure, PM USA delivers to Landlord a copy of the Lease Assignment Agreement attached hereto as Exhibit A (the “Assignment Document”) duly executed by all parties other than Landlord for whom signature blocks have been added, at which time, so long as all the terms and conditions required in Section 29 of the Lease for a Pre-Approved Assignment are met (other than the requirement of giving forty-five days prior written notice to Landlord), and no Event of Default then exists and is continuing, Tenant shall be deemed to have assigned its interest in the Lease to PM USA and PM USA shall be deemed to have assumed the obligations of Tenant under the Lease (excluding any obligations and liabilities of Tenant which have accrued prior to the PM USA Assignment) (the “PM USA Assignment”).",
"Upon the Effective Date of a PM USA Assignment (as defined in the Assignment Document), Tenant’s right, title and interest in the Security Deposit shall be deemed assigned to PM USA. If the Security Deposit is then in the form of a Letter of Credit, PM USA shall, simultaneously with its delivery of the Assignment Document, cause a new Letter of Credit to be issued to Landlord in the same form as Tenant’s (after which, if, and to the extent not previously drawn upon pursuant to the terms of the Lease, Landlord shall return to Tenant its Letter of Credit). The PM USA Assignment shall be deemed effective on the Effective Date, provided that the Potential Event of Default has been cured, no Event of Default then exists and is continuing, and the Security Deposit has been fully replenished at the time of delivery of the Assignment Document; otherwise, the PM USA Assignment shall not be deemed effective. Tenant hereby irrevocably agrees to the terms of PM USA Assignment, and shall be deemed to have approved and consented to the PM USA Assignment as if it had executed the Assignment Document. From and after the Effective Date of a PM USA Assignment, PM USA shall become liable directly to Landlord for all obligations of Tenant under the Lease arising after the Effective Date, without, however, relieving Tenant or Guarantor of any liability thereunder.",
"In the event Landlord declares Tenant in default under section 22(a)(vii) of the Lease, notwithstanding the lack of a cure period with respect to such default in the Lease, PM USA shall be entitled to a period of 10 days from receipt of a PM USA Notice with respect to such default to deliver a duly executed Assignment Document in order to effect a PM USA Assignment of the Lease. Upon the Effective Date of a PM USA Assignment, the default shall be deemed cured with respect to the Lease as assigned to PM USA; provided, however, that the 10-day period in favor of PM USA is not intended as and shall not be construed as a cure period in favor of Tenant with respect to such default should a PM USA Assignment not occur within such period. -------------------------------------------------------------------------------- In addition to the foregoing, PM USA shall have the right to effect a PM USA Assignment at any time no Potential Event of Default or Event of Default exists and is continuing and so long as all the terms and conditions required in the Lease for a Pre-Approved Assignment are met (other than the requirement of giving forty-five days prior written notice to Landlord), by executing and delivering to Landlord, with a copy to Tenant, the Assignment Document, whereupon all of the provisions of the preceding paragraph shall apply. Tenant hereby waives any claims it may have against Landlord in connection with a PM USA Assignment, including without limitation any recognition by Landlord of PM USA as the Tenant under the Lease following delivery of the Assignment Document (even in the event Tenant notifies Landlord that it disputes the right of PM USA to cause the PM USA Assignment).",
"Notwithstanding the foregoing, Tenant agrees that it will not amend or modify the Lease without the prior written consent of PM USA and Landlord agrees that it will not amend or modify the Lease unless Tenant provides Landlord with a copy of PM USA’s written consent thereto. Other than as specifically set forth herein PM USA shall not be deemed to have any interest whatsoever in the Lease, whether as a third party beneficiary or otherwise. In no event shall Landlord suffer any liability whatsoever for any failure to provide a PM USA Notice; provided however, the time periods related to the notice and cure provisions of the Lease shall not be deemed to commence unless and until a PM USA Notice has been given with respect to any particular Potential Event of Default. 7.",
"Early Termination and Termination Payment. Provided that no Event of Default has occurred and is then continuing and no facts or circumstances exist, either at the time of Tenant’s notice to Landlord or on the date such termination would otherwise be effective, which, with the giving of notice or the passage of time, or both, would constitute an Event of Default, Tenant shall have the right to terminate this Lease effective on December 31, 2008 (the “Termination Option”). In order to exercise the Termination Option, Tenant must notify Landlord of such exercise on or before February 28, 2008 (such date, or any earlier date on which Tenant delivers to Landlord a Termination Waiver (as defined below), is referred to as the “Termination Option Expiration Date”), and together with such notice, provide written consent by PM USA of such exercise by Tenant of the Termination Option, and further, together with such notice Tenant shall deliver to Landlord an amount equal to One Hundred Thirteen Thousand Seventy Four and No/100 Dollars ($113,074.00) as an agreed-upon payment as liquidated damages. Tenant may at any time waive the Termination Option by written notice to Landlord (a “Termination Waiver”), and any such Termination Waiver shall be irrevocable, and, upon delivery of the Termination Waiver, the Termination Option shall expire and terminate and have no further effect. Nothing contained herein shall be deemed to relieve Tenant of its obligation to pay Rent through the effective date of such termination (in addition to the termination payment).",
"In the event Tenant fails to exercise the Termination Option by February 28, 2008 (or Tenant fails to deliver the above-described written consent by PM USA or the termination payment by such date), Tenant shall be deemed to have waived the Termination Option. This Termination Option is personal to Priority Fulfillment Services, Inc. (or to PM USA in the event the Lease is -------------------------------------------------------------------------------- assigned to PM USA pursuant to a PM USA Assignment) and shall become null and void upon the occurrence of an assignment of the Lease (other than a PM USA Assignment) or a sublet of all or a part of the Demised Premises. 8. Tenant is in possession of, and has accepted, the Demised Premises, and acknowledges that all the work to be performed by the Landlord in the Demised Premises as required by the terms of this Lease, if any, have been satisfactorily completed. Tenant further certifies that all conditions of the Lease required of Landlord as of this date have been fulfilled and there are no defenses or setoffs against the enforcement of the Lease by Landlord. 9. Tenant represents to Landlord that, to the best of its knowledge, as of the date hereof, Landlord is not in default of the Lease.",
"10. Except as amended hereby, the Lease shall be and remain in full force and effect and unchanged. As amended hereby, the Lease is hereby ratified and confirmed by Landlord and Tenant. To the extent the terms hereof are inconsistent with the terms of the Lease, the terms hereof shall control. 11. The submission of this Second Amendment to Tenant for examination or consideration does not constitute an offer to amend the Lease, and this Second Amendment shall become effective only upon the execution and delivery thereof by Landlord and Tenant. Execution and delivery of this Second Amendment by Tenant to Landlord constitutes an offer to amend the Lease on the terms contained herein. The offer by Tenant will be irrevocable until 6:00 p.m. Eastern time for fifteen (15) days after the date of execution of this Second Amendment by Tenant and delivery to Landlord.",
"-------------------------------------------------------------------------------- IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to be executed and sealed as of the date first written above. LANDLORD: INDUSTRIAL PROPERTY FUND VI, LLC, a Delaware limited liability company By: Strategic Industrial Properties, I, LLC, a Delaware limited liability company, its sole member By: IDI Holdings III, LLC, a Delaware limited liability company, its managing member By: Name: Title: TENANT: PRIORITY FULFILLMENT SERVICES, INC., a Delaware corporation By: Name: Title: Attest: Name: Title: [CORPORATE SEAL] -------------------------------------------------------------------------------- Acknowledged and agreed: PHILIP MORRIS USA, INC. By: Name: Title: Attest: Name: Title: [CORPORATE SEAL] -------------------------------------------------------------------------------- GUARANTOR The capitalized terms of this Consent shall have the meaning as defined in the Second Amendment to which this Consent is attached, unless otherwise defined. The undersigned, being the Guarantor of the Lease under that certain Guaranty dated August 19, 2004, from Guarantor to Landlord, hereby consents to the Second Amendment, and acknowledges and reaffirms that the Guaranty is in full force and effect as it relates to the Lease, as amended by the Second Amendment. Date: GUARANTOR: PFSWEB, INC., a Delaware corporation By: Name: Title: Attest: Name: Title: [CORPORATE SEAL]"
] | https://github.com/TheAtticusProject/cuad | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
|
WHIPPLE v. PHILLIPS AND SONS TRUCKING
Skip to Main Content
Accessibility Statement
Help Contact Us
e-payments Careers
Home Courts Decisions Programs News Legal Research Court Records Quick Links
OSCN Found Document:WHIPPLE v. PHILLIPS AND SONS TRUCKING
Previous Case
Top Of Index
This Point in Index
Citationize
Next Case
Print Only
WHIPPLE v. PHILLIPS AND SONS TRUCKING2020 OK 75Case Number: 118360Decided: 09/21/2020THE SUPREME COURT OF THE STATE OF OKLAHOMA
Cite as: 2020 OK 75, __ P.3d __
NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
SHARLA WHIPPLE, individually, NEXT OF KIN, & PERSONAL REPRESENTATIVE OF THE ESTATE OF TAYLOR RAY BORTH, deceased, Plaintiff/Petitioner,v.PHILLIPS AND SONS TRUCKING, LLC., a Domestic Corporation, JDC DRILLING, LLC., a Domestic Corporation, TITAN DRILLING, LLC., a Domestic Corporation, STEVE JERNIGAN, an Individual, BRADFORD G. BARBY, an Individual, STEVE POWLESS, an Individual, ROBERT L. SNYDER, an Individual, ROY ROUNDTREE, an Individual, ABEL GREGORY ORTEGA, an Individual, MATTHEW DOW HUGHES, an Individual, RAFAEL MARQUEZ, an Individual, GARY JENNINGS, an Individual, DEERING SAFETY CONSULTING LLC., a Domestic Corp., AARON DEERING, an Individual, Defendants/Respondents.
APPEAL FROM A CERTIFIED INTERLOCUTORY ORDER OFTHE DISTRICT COURT OF CANADIAN COUNTY Paul Hesse, Trial Court Judge
¶0 The petitioner's, Sharla Whipple's (petitioner/Whipple), twenty-three year old, unmarried son lost his life in a work related accident. Under the Workers Compensation Act, 85A O.S. Supp. 2014 §47, only a spouse, child, or legal guardian may file a Workers Compensation death benefit claim when a work related death occurs. Whipple's son had no spouse, child or legal guardian. Consequently, Whipple's only remedy was to file a wrongful death action in the District Court of Canadian County. However, the trial court granted partial summary judgment against Whipple, determining that her only remedy is limited to the Workers Compensation system, rather than the district court. Whipple appealed. We hold that the right of a parent as the next of kin to bring a wrongful death action when the decedent is an adult, unmarried, and childless, is established in the law pursuant to 12 O.S. 2011 §1053 and by art. 23 §7 of the Oklahoma Constitution. Therefore, the Legislative attempt to limit recovery for wrongful death pursuant to 85A O.S. Supp. 2014 §47 to a spouse, child or legal guardian dependent on the decedent is a nullity. The Okla. Const art. 23 §7 prohibits the abrogation of the right to recover for injuries resulting in death. The Legislature may limit the recovery, but may not eliminate the right to recover.
PETITION FOR CERTIORARI TO REVIEW CERTIFIED INTERLOCUTORY ORDER PREVIOUSLY GRANTED;TRIAL COURT REVERSED AND CAUSE REMANDED.
Jack Zurawik, Micah Felton, Timothy P. Clancy, Tulsa, Oklahoma, for Plaintiff/Petitioner. Don W. Danz, Rebecca S. Woodward, Tulsa, Oklahoma, for Defendants/Respondents.
KAUGER, J.: ¶1 The determinative issue on certiorari is whether a parent of an adult, unmarried, childless decedent killed in the course of employment may bring a wrongful death action in the district court. We hold that the right of a parent as the next of kin to bring a wrongful death action when the decedent is an adult, unmarried, and childless, is crystalized in the law pursuant to 12 O.S. 2011 §1053 and art. 23 §7 of the Oklahoma Constitution. Therefore, the Legislative attempt to deny recovery for wrongful death pursuant to 85A O.S. Supp. 2014 §47 to the mother of her unmarried childless son is unconstitutional. Her remedy lies in the District Court. FACTS ¶2 The plaintiff/petitioner, Sharla Whipple (mother), lost her adult, twenty-three year old, unmarried, childless son, Taylor Ray Borth (Borth) in a work related accident on October 6, 2016. Borth was crushed to death by a gin pole truck operated during an oilfield mud pump unloading procedure. At the time of his death, the Workers' Compensation Act, 85A O.S. Supp. 2014 §47 only allowed wrongful death benefits to a spouse, child, or legal guardian, if the guardian was dependent on the employee.1 ¶3 Therefore, the mother was forced to bring this action in the District Court. She alleged the wrongful death of her son, and that the employer "knew or should have known that the injury" to Bortch and that "the resulting death was substantially certain to occur." The employer filed a motion for summary judgment on May 29, 2019, arguing that the mother was attempting to avoid the workers compensation system. On July 25, 2019, the trial court granted summary judgment, in part, because it believed the mother's exclusive remedy was in the workers' compensation regime. The grant of summary judgment was in error because there is no provision for the mother to seek redress in the Workers Compensation system because of the statutory exclusion under 85A O.S. Supp. 2014 §47.2 ¶4 On October 2, 2019, the trial court certified its ruling as a certified interlocutory appeal. On October 25, 2019, the trial court stayed all further proceedings until the appeal was resolved. The same day, the mother filed her appeal in this Court. We granted certiorari to review the certified interlocutory order on March 25, 2020, and the briefing cycle was completed on July 27, 2020. THE RIGHT OF A PARENT AS NEXT OF KIN TO BRING AWRONGFUL DEATH ACTION WHEN THE DECEDENT IS AN ADULT, UNMARRIED, AND CHILDLESS, IS ESTABLISHED PURSUANT TO 12O.S. 2011 §1053 AND art. 23 §7 OF THE OKLAHOMA CONSTITUTION. THE LEGISLATIVE ATTEMPT TO DENY RECOVERY FOR WRONGFUL DEATH PURSUANT TO 85A O.S. Supp. 2014 §47 BY LIMITING IT TO A SPOUSE, CHILD, OR LEGAL GUARDIAN DEPENDENT ON THE DECEDENT IS UNCONSTITUTIONAL, LEAVING THE ONLY OPTION FOR RECOVERY IN THE DISTRICT COURT. ¶5 The employer argues that the Legislature has not abrogated the right of the mother to recover under the workers compensation provisions, but rather just limited any recoverable amount which is within its constitutional authority.3 The mother argues that limiting an amount of recovery to nothing is the equivalent to abrogating her right to bring an action for recovery. ¶6 The Okla. Const. art. 23, §7 provides: The right of action to recover damages for injuries resulting in death shall never be abrogated, and the amount recoverable shall not be subject to any statutory limitation, provided however, that the Legislature may provide an amount of compensation under the Workers' Compensation Law for death resulting from injuries suffered in employment covered by such law, in which case the compensation so provided shall be exclusive, and the Legislature may enact statutory limits on the amount recoverable in civil actions or claims against the state or any of its political subdivisions. (Emphasis supplied). The history of this Constitutional provision is quite clear and well chronicled. In Riley v. Brown and Root, Inc., 1992 OK 114, 836 P.2d 1298, the Court discussed art. 23 §7 in the context of applying a statute of repose. The Court recognized that this section was originally taken nearly verbatim from the New York Constitution and that it was amended in 1950 to add the provision allowing for some wrongful death actions to be governed by the Workers' Compensation Act. ¶7 The Riley Court said that "Section 7 had the effect of freezing into our law the right of action for wrongful death as it existed when the Constitution was adopted." The provision was intended to "crystalize and embody in the fundamental law of the state -- the law of the land -- the entire statutory right of action with its incidents." ¶8 Statutorily, the rights of wrongful death actions are found at 12 O.S. 2011 §§1051-1055. Section 1053(A) currently provides: A. When the death of one is caused by the wrongful act or omission of another, the personal representative of the former may maintain an action therefor against the latter, or his or her personal representative if he or she is also deceased, if the former might have maintained an action, had he or she lived, against the latter, or his or her representative, for an injury for the same act or omission. The action must be commenced within two (2) years. In Riley, supra., the Court also discussed the history of §1053, noting: ¶10 At the time of the Constitution's adoption, Section 4313 Oklahoma Statutes of 1893, was the only statute allowing for an action for wrongful death. Capitol Steel and Iron Co. v. Fuller, 206 Okl. 638, 245 P.2d 1134, 1137 (1952). With only slight modifications Section 4313 became the current 12 O.S. 1981 § 1053 . . . . At early common law and before Lord Campbell's Act, an action for personal injuries abated with the death of the injured person; no action for wrongful death existed. Haws v. Luethje, 503 P.2d 871, 873 (Okla. 1972). Now, a cause of action for wrongful death "accrues to the personal representative of the decedent solely by virtue of the statute." Haws, at 873. The action for wrongful death is not a separate and distinct tort, but is an action which [836 P.2d 1301] derives from the rights of the decedent. Whatever rights the decedent might have had in his life accrue to the personal representative at death, thus overcoming the common law barrier of death. ¶11 It is this right - the right of action provided by Section 1053 - that the Oklahoma Constitution protects. The constitutional provision does not create a right of action; rather it buttresses the statute which does so. In other words, the constitutional provision protects the right of action for wrongful death as provided by the legislature in Section 1053. ¶12 Article 23, Section 7 is meant to guarantee the individuals protected under Section 1053 the right to bring an action for wrongful death. See Roberts, 386 P.2d at 783. Our Section 1053, a form of the widely adopted Lord Campbell's Act, does away with the common law idea that an action died when the person who had suffered the injury died. Instead, the wrongful death statute leaves intact the rights of the deceased to now be asserted by a personal representative. Death is no longer a barrier to the assertion of these rights. Article 23, Section 7 says the legislature can never again reimpose the death of the injured person as an obstacle to an action by his survivors. (Footnotes omitted). ¶9 In Capitol Steel and Iron Co. v. Fuller, 1952 OK 209, ¶14, 231 P.2d 681, the Court in discussing the 1950 amendment to art. 23 §7, which expressly provided for work-related wrongful death actions to be brought under workers compensation laws, said: . . . The 1950 constitutional amendment did not authorize the Legislature to make a distinction in the applicability of any provision of the Workmen's Compensation Law based upon whether or not the injury resulted in death except as to the amount of recovery. Therefore, any provision contained in said House Bill No. 312 which makes such distinction is unconstitutional and void to that extent. For the same reason, any provision in said act which modifies the provisions of sections 1053 and 1054 of Title 12 O.S. 1941, except to `provide an amount of compensation under the Workmen's Compensation Law for death resulting from injuries suffered in employment covered by such law,' is also void. . . . In Hammons v. Muskogee Medical Center Authority, 1985 OK 22, ¶7, 697 P.2d 539 we said that art. 23 §7 "forbids elimination of the right to recover damages for injuries resulting in death." Hammons, supra, involved the issue of whether a provision of the then Political Subdivision Tort Claims Act, 55 O.S. Supp. 1979 §152, should apply retroactively. ¶10 In F.W. Woolworth Co., v. Todd, 1951 OK 36, ¶11, 231 P.2d 681, a case involving the validity of a release, we said regarding art. 23 §7, that the "words 'shall never be abrogated,' as there used, mean: Shall never be annulled or repealed by an authoritative act, that is, shall never be withdrawn or taken away by the authority which bestowed it, that is, the legislative act, or other legislative authority." What the Court expressed in Riley, Capital Steel, Hammons, Woolworth, supra, was far from novel. We have reiterated the history of the constitutional provision and its relationship to wrongful death actions many times over.4 ¶11 Because the cause of action for wrongful death is purely statutory, suit may be brought only by a person expressly authorized by statute to do so.5 Pursuant to 12 O.S. 2011 §1053, a decedent's representative may maintain an action against the tortfeasor, and if no personal representative has been appointed, the action may be brought by a surviving spouse or in their absence, next of kin.6 The former Workers' Compensation Act was compatible with the wrongful death statutes. Prior to the 2014 overhaul of workers compensation, if there were no surviving spouse or children, each parent, brothers, sisters, grandparents and grandchildren, if dependent, could receive death benefits.7 Where some pecuniary loss was shown by heirs at law, benefits were also recoverable.8 ¶12 Now, parents, brothers, sisters, grandparents and grandchildren have been stricken and only financially dependent legal guardians, if there is no surviving spouse or children, are allowed any benefits. Recovery for pecuniary loss is no longer available.9 We have had numerous cases in which the next of kin bringing a wrongful death action, was the parent of an adult, unmarried, childless decedent, just like the petitioner in this cause.10 Such a construction abrogates the right of action to recover for damages resulting in death. The amount of damages may be limited, but they cannot be eliminated. ¶13 We recently, reiterated in Farley v. City of Claremore, 2020 OK 30, 465 P.3d 1213, a case involving a surviving spouse who brought a district court action after she received a workers compensation commission death benefits award. We said: ¶43 Our 1994 opinion in Ouellette v. State Farm Mut. Auto. Ins. Co., involved a legal action by parents based upon the death of their child. Their child had a surviving spouse and surviving children. We explained the wrongful death statutes provided a remedy for a surviving spouse and surviving children, and if neither of these (spouse and surviving children) existed, then those who possessed status as statutory next of kin could bring the wrongful death action. . . . because wrongful death is not actionable absent a statute, the parents' quest for the damages they seek . . . must accord with the legislative wrongful-death recovery regime . . . A wrongful-death claim may be pressed only by persons authorized to bring it . . . if the decedent leave a surviving spouse and a child or children, the parents may not take as next of kin, . . they take as next of kin if the decedent leave neither issue nor a surviving spouse . . . . Ouellette, 1994 OK 79, 918 P.2d at 1366-1367, material omitted. In Ouellette we explained a wrongful-death claim may be brought by persons authorized by statute, e.g., the personal representative of the decedent and if none has been appointed, then by the widow, or where there is no widow, by the decedent's next of kin, with recovery inuring to the exclusive benefit of the surviving spouse and children, if any, or next of kin. . . . ¶46 The wrongful death cause of action pursuant to 12 O.S. §1053 created or authorized a survivable cause of death action with damages recovered by a surviving parent. Section 1053 defines the action as authorized when certain conditions are met including (1) wrongful death and (2) if the deceased has a judicially cognizable claim to maintain if living. . . . ¶48 Historically, the right to workers' compensation death benefits was statutorily created to be consistent with 12 O.S.§1053 and 84 O.S. §213 and the workers' compensation death benefits were treated as an exclusive statutory remedy substituted for the statutory wrongful death action guaranteed by an Oklahoma constitutional provision and approved by a vote of the People of Oklahoma. ¶14 Under the facts of this cause, the mother is left without any remedy in the District Court, unless she meets the very high burden of showing that she is also left without a remedy in the Workers' Compensation system because of the 2014 statutory changes. Constitutionally, she cannot be cut off from a remedy altogether. Accordingly, our only choice is to allow the mother to pursue her action for the wrongful death of her son in the District Court. CONCLUSION ¶15 In 1950, art. 23 §7 transferred work-related wrongful death claims to the purview of the workers compensation laws.11 However, the constitution contains a caveat that precludes the Legislature from ever abrogating the right to recover for wrongful death as it existed when art. 23 §7 was adopted.12 The right of a parent as the next of kin to bring a wrongful death action when the decedent was an adult, unmarried, and without children is established in the law pursuant to 12 O.S. 2011 §105313 and art. 23 §7. The Legislative attempt to limit recovery for wrongful death pursuant to 85A O.S. Supp. 2014 §47 to a spouse, child or legal guardian dependent on the decedent is unconstitutional.14 ¶16 This is an easy fix for the Legislature. All it needs to do to render 85A O.S. 2014 §47 enforceable and constitutional is to amend it to include the statutory heirs just as it did before the 2014 amendments. At this time to avoid the constitutional prohibition against abrogation of the right of action for death, is for this Mother is to bring her cause of action in the district court. PETITION FOR CERTIORARI TO REVIEW CERTIFIED INTERLOCUTORY ORDER PREVIOUSLY GRANTED;TRIAL COURT REVERSED AND CAUSE REMANDED. GURICH, C.J., KAUGER, EDMONDSON, COLBERT, AND COMBS, JJ., concur. WINCHESTER, KANE, and ROWE, JJ., dissent. DARBY, V.C.J., not voting.
FOOTNOTES
1 Title 85A O.S. Supp. 2014 §47 provides in pertinent part: A. Time of death. If death does not result within one (1) year from the date of the accident or within the first three (3) years of the period for compensation payments fixed by the compensation judgment, a rebuttable presumption shall arise that the death did not result from the injury. B. Common law spouse. A common law spouse shall not be entitled to benefits under this section unless he or she obtains an order from a court with competent jurisdiction ruling that a common law marriage existed between the decedent and the surviving spouse. C. Beneficiaries - Amounts. If an injury or occupational illness causes death, weekly income benefits shall be payable as follows: 1. If there is a surviving spouse, a lump-sum payment of One Hundred Thousand Dollars ($100,000.00) and seventy percent (70%) of the lesser of the deceased employee's average weekly wage and the state average weekly wage. In addition to the benefits theretofore paid or due, two (2) years' indemnity benefit in one lump sum shall be payable to a surviving spouse upon remarriage; 2. If there is a surviving spouse and a child or children, a lump-sum payment of Twenty-five Thousand Dollars ($25,000.00) and fifteen percent (15%) of the lesser of the deceased employee's average weekly wage and the state average weekly wage to each child. If there are more than two children, each child shall receive a pro rata share of Fifty Thousand Dollars ($50,000.00) and thirty percent (30%) of the deceased employee's average weekly wage; 3. If there is a child or children and no surviving spouse, a lump-sum payment of Twenty-five Thousand Dollars ($25,000.00) and fifty percent (50%) of the lesser of the deceased employee's average weekly wage and the state average weekly wage to each child. If there are more than two children, each child shall receive a pro rata share of one hundred percent (100%) of the lesser of the deceased employee's average weekly wage and the state average weekly wage. With respect to the lump-sum payment, if there are more than six children, each child shall receive a pro rata share of One Hundred Fifty Thousand Dollars ($150,000.00); 4. If there is no surviving spouse or children, each legal guardian, if financially dependent on the employee at the time of death, shall receive twenty-five percent (25%) of the lesser of the deceased employee's average weekly wage and the state average weekly wage until the earlier of death, becoming eligible for social security, obtaining full-time employment, or five (5) years from the date benefits under this section begin; and 5. The employer shall pay the actual funeral expenses, not exceeding the sum of Ten Thousand Dollars ($10,000.00). . . . The statute was amended in 2019, but relevant portions remain substantially unchanged.
2 Title 85A O.S. Supp. 2014 §47, see note 1, supra.
3 The employer also argues that the Court cannot procedurally consider a constitutional challenge to a statute because the Attorney General has not been notified pursuant to 12 O.S. Supp. 2016 §2024. It provides in pertinent part: D. INTERVENTION BY STATE OF OKLAHOMA. 1. In any action, suit, or proceeding to which the State of Oklahoma or any agency, officer, or employee thereof is not a party, wherein the constitutionality of any statute of this state affecting the public interest is drawn into question, the court shall certify such fact to the Attorney General, and shall permit the State of Oklahoma to intervene for presentation of evidence, if evidence is otherwise admissible in the case, and for argument on the question of constitutionality. The State of Oklahoma shall, subject to the applicable provisions of law, have all the rights of a party and be subject to all liabilities of a party as to court costs to the extent necessary for a proper presentation of the facts and law relating to the question of constitutionality. 2. Upon receipt of notice pursuant to paragraph 1 of this subsection or other actual notice that the constitutionality of any statute of this state affecting the public interest is drawn into question, the Attorney General shall immediately deliver a copy of the proceeding to the Speaker of the House of Representatives and the President Pro Tempore of the Senate who may intervene on behalf of their respective house of the Legislature and who shall be entitled to be heard. Intervention by the Speaker of the House of Representatives or President Pro Tempore of the Senate shall not constitute waiver of legislative immunity. Regardless of whether the trial court expressly notified the Attorney General, according to the petitioner, the Attorney General has been served with notice of this cause on multiple occasions and they have the mailing and delivery documentation should the Court desire it. The Attorney General has not responded with a request for intervention. We have previously held that, without question, the Attorney General must be served. Okla. Tax Commission v Smith, 1980 OK 74, ¶15, 610 P.2d 794. However, sometimes, even when the trial court or the parties did not serve notice to the Attorney General, the notice is given by this Court when the appeal is filed. See, Kelley v. Kelley, 2007 OK 100, ¶6, 175 P.3d 400 and Oklahoma City Urban Renewal Authority v. Medical Technology Research Authority of Oklahoma, 2000 OK 23, ¶6, 4 P.3d 677. The appellate filings reflect that copies were sent to the Attorney General and thus, the Attorney General had the opportunity to participate. Accordingly, this argument is without merit.
4 Riley v. Brown and Root, Inc., 1992 OK 114, ¶¶9-12, 836 P.2d 1298; Hughes Drilling Co. v. Crawford, 1985 OK 16, ¶¶4-8, 697 .2d 525; Parker v. National Zinc Co., 1965 OK 152, ¶17, 406 P.2D 493; Roberts v. Merrill, 1963 OK250, ¶¶8-17, 386 P.2d 780; Osmond v. Moody Construction Co., 1963 OK 171, ¶4, 409 P.2d 9; Capitol Steel and Iron Co. v. Fuller, 1952 OK 209, ¶¶4-13, 231 P.2d 681; F.W. Woolworth Co., v. Todd, 1951 OK 36, ¶¶10-13, 231 P.2d 681.
5 Hamilton By and Through Hamilton v. Vaden, 1986 OK 36, ¶7, 721 P.2d 412; Abel v. Tisdale, 1980 OK 161, ¶8, 619 P.2d 608; Potter v. Pure Oil Co., 1938 OK 278, ¶20, 78 P.2d 694.
6 Title 12 O.S. 2011 §1053, see page 7, supra. Title 12 O.S. 2011 §1054 provides: In all cases where the residence of the party whose death has been caused as set forth in the preceding section of this article is at the time of his death in any other state or Territory, or when, being a resident of this state, no personal representative is or has been appointed, the action provided in the said section may be brought by the widow, or where there is no widow, by the next of kin of such deceased. Title 12 O.S. 2011 §1051 provides: In addition to the causes of action which survive at common law, causes of action for mesne profits, or for an injury to the person, or to real or personal estate, or for any deceit or fraud, shall also survive; and the action may be brought, notwithstanding the death of the person entitled or liable to the same.
7 Title 85 O.S. 2011 §337 provided in pertinent part: A. If an injury or occupational disease causes death, weekly income benefits shall be payable in the amount and for the benefit of the persons following, subject to the maximum limits specified hereafter: 1. If there is a surviving spouse, to such surviving spouse who shall remain unmarried, seventy percent (70%) of the average weekly wages the deceased was earning. In no event shall this spousal weekly income benefit be diminished by the award to other beneficiaries. In addition to the benefits theretofore paid or due, two (2) years' indemnity benefit in one lump sum shall be payable to a surviving spouse upon remarriage; 2. If there is a surviving spouse and a child or children, fifteen percent (15%) of the average weekly wages the deceased was earning for each child. Where there are more than two such children, the income benefits payable for the benefit of all children shall be divided among all children, to share and share alike, subject to the maximum limits in subsection D of this section; 3. To the children, if there is no surviving spouse, fifty percent (50%) of the average weekly wages the deceased was earning for one child, and twenty percent (20%) of such wage for each additional child, divided among all children, to share and share alike, subject to the maximum limits in subsection D of this section; 4. The weekly income benefits payable for the benefit of any child under this section shall cease when the child dies, marries, or reaches the age of eighteen (18), unless the child is over eighteen (18) years of age and remains enrolled as a full-time student in high school or is being home-schooled in a high-school course approved by the Oklahoma Department of Education; or unless a child is over eighteen (18) years of age and is physically or mentally incapable of self-support; or unless the child is under the age of twenty three (23) and enrolled as a full-time student in any accredited institution of higher education or vocational or technology education; 5. If there is no surviving spouse or children, to each parent, if actually dependent, twenty-five percent (25%) of the average weekly wages the deceased was earning, subject to the maximum limits in subsection D of this section; 6. If there is no surviving spouse or children, to the brothers, sisters, grandparents and grandchildren, if actually dependent, twenty-five percent (25%) of the average weekly wages the deceased was earning to each such dependent. If there should be more than one of such dependents, the total income benefits payable for the benefit of such dependents shall be divided to share and share alike, subject to the maximum limits in subsection D of this section; . . .
8 Title 85 O.S. 2011 §337 provided in pertinent part: . . . E. Where some pecuniary loss may be shown by heirs-at-law of the deceased, as defined by the descent and distribution statutes of Oklahoma, who are otherwise not entitled to receive benefits under other provisions of this section, such heirs-at-law shall receive compensation for their pecuniary loss not to exceed an aggregate of Five Thousand Dollars ($5,000.00). . . .
9 Title 85A O.S. Sup. 2014 §47, see note 1, supra.
10 Rogers v. Worthan, 1970 OK 22, ¶2, 465 P.2d 431 [Decedent's mother recovered for wrongful death of adult, unmarried, childless son.]; Finefrock v. Rice, 1967 OK 61, ¶0, 426 P.2d 765 [Mother of deceased, adult, unmarried, childless son recovered wrongful death under workers compensation laws.]; Robberson Steel Company v. State Industrial Court, 1960 OK 163, 354 P.2d 11 [Parents of single, childless adult son recovered for wrongful death under workers compensation laws.] See also, West v. Board of County Commissioners of Pawnee County, 2011 OK 104, ¶0, 273 P.3d 31 [Father of unmarried, adult, mother of five brought wrongful death action.];Corvin v. State Industrial Court, 1965 OK 182, ¶2, 408 P.2d 322, [Father of deceased, unmarried, high school senor brought wrongful death action under workers compensation laws.]; H.L. Maness Truck Lines v. Lemmons, 1965 OK 181, 408 P.2d 288 [Parents of adult decedents were not allowed to bring wrongful death action under workers compensation laws only because the decedent's divorce had not been completed, thus leaving him a surviving spouse.]
11 The Okla. Const. art. 23 §7, pages 2-3, supra.
12 The Okla. Const. art. 23 §7, see pages 2-3, supra; Riley v. Brown and Root, Inc., see note 2, supra; Hughes Drilling Co. v. Crawford, see note 2, supra; Roberts v. Merrill, see note 2, supra; Osmond v. Moody Construction Co., see note 2, supra; Capitol Steel and Iron Co. v. Fuller, see note 2, supra; F.W. Woolworth Co., v. Todd, see note 2, supra.
13 Title 12 O.S. 2011 §1053, see pages 3-4, supra; The Okla. Const. art. 23 §7, pages 2-3, supra.
14 Title 85A O.S. Supp. 2014 §47, see note 1, supra.
Citationizer© Summary of Documents Citing This Document
Cite Name Level
None Found.
Citationizer: Table of Authority
Cite Name Level
1967 CO 136, 426 P.2d 765, 162 Colo. 403, Bradney v. PeopleCited Oklahoma Supreme Court Cases CiteNameLevel 1986 OK 36, 721 P.2d 412, 57 OBJ 1553, Hamilton By and Through Hamilton v. VadenDiscussed 1992 OK 114, 836 P.2d 1298, 63 OBJ 2142, Riley v. Brown and Root, Inc.Discussed at Length 1938 OK 278, 78 P.2d 694, 182 Okla. 509, POTTER v. PURE OIL CO.Discussed 1994 OK 79, 918 P.2d 1363, 65 OBJ 2222, Ouellette v. State Farm Mut. Auto. Ins. Co.Cited 1952 OK 209, 245 P.2d 1134, 206 Okla 638, CAPITOL STEEL & IRON CO. v. FULLERDiscussed at Length 1960 OK 163, 354 P.2d 211, ROBBERSON STEEL COMPANY v. STATE INDUSTRIAL COURTCited 1963 OK 171, 384 P.2d 908, SUMPTER v. LAWTON COOPERATIVE ASSOCIATIONCited 1963 OK 250, 386 P.2d 780, ROBERTS v. MERRILLCited 1965 OK 152, 406 P.2d 493, PARKER v. NATIONAL ZINC COMPANYDiscussed 1965 OK 181, 408 P.2d 288, H.L. MANESS TRUCK LINES v. LEMMONSDiscussed 1965 OK 182, 408 P.2d 322, CORVIN v. STATE INDUSTRIAL COURTDiscussed 1965 OK 171, 409 P.2d 9, OSMOND v. PAUL R. MOODY CONSTRUCTION CO.Cited 1967 OK 61, 426 P.2d 675, FINEFROCK v. RICECited 1970 OK 22, 465 P.2d 431, ROGERS v. WORTHANDiscussed 1972 OK 146, 503 P.2d 871, HAWS v. LUETHJECited 2007 OK 100, 175 P.3d 400, KELLEY v. KELLEYDiscussed 2011 OK 104, 273 P.3d 31, WEST v. BOARD OF COUNTY COMMISSIONERS OF PAWNEE COUNTYDiscussed 1980 OK 74, 610 P.2d 794, Oklahoma Tax Commission v. SmithDiscussed 1980 OK 161, 619 P.2d 608, Abel v. TisdaleDiscussed 2020 OK 30, 465 P.3d 1213, FARLEY v. CITY OF CLAREMOREDiscussed 2000 OK 23, 4 P.3d 677, 71 OBJ 929, Oklahoma City Urban Renewal Authority v. Medical Technology & Research Authority of OklahomaDiscussed 1951 OK 36, 231 P.2d 681, 204 Okla. 532, F. W. WOOLWORTH CO. v. TODDDiscussed at Length 1985 OK 16, 697 P.2d 525, Hughes Drilling Co. v. CrawfordCited 1985 OK 22, 697 P.2d 539, Hammons v. Muskogee Medical Center AuthorityDiscussed Title 12. Civil Procedure CiteNameLevel 12 O.S. 2024, InterventionCited 12 O.S. 1051, Additional Causes of ActionCited 12 O.S. 1053, Wrongful Death - Limitation of Actions - Damages - Death of an Unborn PersonDiscussed at Length 12 O.S. 1054, Cause of Action Brought by Widow or Next of KinCited Title 84. Wills and Succession CiteNameLevel 84 O.S. 213, Intestacy - Descent and DistributionCited Title 85. Workers' Compensation CiteNameLevel 85 O.S. 337, RepealedDiscussed Title 85A. Workers' Compensation CiteNameLevel 85A O.S. 47, Time of Death - Common Law Spouse - BeneficiariesDiscussed at Length
oscn
EMAIL: webmaster@oscn.net
Oklahoma Judicial Center
2100 N Lincoln Blvd.
Oklahoma City, OK 73105
courts
Supreme Court of Oklahoma Court of Criminal Appeals Court of Civil Appeals District Courts
decisions
New Decisions Supreme Court of Oklahoma Court of Criminal Appeals Court of Civil Appeals
programs
The Sovereignty Symposium Alternative Dispute Resolution Early Settlement Mediation Children's Court Improvement Program (CIP) Judicial Nominating Commission Certified Courtroom Interpreters Certified Shorthand Reporters Accessibility ADA
Contact Us Careers Accessibility ADA | 09-28-2020 | [
"WHIPPLE v. PHILLIPS AND SONS TRUCKING Skip to Main Content Accessibility Statement Help Contact Us e-payments Careers Home Courts Decisions Programs News Legal Research Court Records Quick Links OSCN Found Document:WHIPPLE v. PHILLIPS AND SONS TRUCKING Previous Case Top Of Index This Point in Index Citationize Next Case Print Only WHIPPLE v. PHILLIPS AND SONS TRUCKING2020 OK 75Case Number: 118360Decided: 09/21/2020THE SUPREME COURT OF THE STATE OF OKLAHOMA Cite as: 2020 OK 75, __ P.3d __ NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. SHARLA WHIPPLE, individually, NEXT OF KIN, & PERSONAL REPRESENTATIVE OF THE ESTATE OF TAYLOR RAY BORTH, deceased, Plaintiff/Petitioner,v.PHILLIPS AND SONS TRUCKING, LLC., a Domestic Corporation, JDC DRILLING, LLC., a Domestic Corporation, TITAN DRILLING, LLC., a Domestic Corporation, STEVE JERNIGAN, an Individual, BRADFORD G. BARBY, an Individual, STEVE POWLESS, an Individual, ROBERT L. SNYDER, an Individual, ROY ROUNDTREE, an Individual, ABEL GREGORY ORTEGA, an Individual, MATTHEW DOW HUGHES, an Individual, RAFAEL MARQUEZ, an Individual, GARY JENNINGS, an Individual, DEERING SAFETY CONSULTING LLC., a Domestic Corp., AARON DEERING, an Individual, Defendants/Respondents.",
"APPEAL FROM A CERTIFIED INTERLOCUTORY ORDER OFTHE DISTRICT COURT OF CANADIAN COUNTY Paul Hesse, Trial Court Judge ¶0 The petitioner's, Sharla Whipple's (petitioner/Whipple), twenty-three year old, unmarried son lost his life in a work related accident. Under the Workers Compensation Act, 85A O.S. Supp. 2014 §47, only a spouse, child, or legal guardian may file a Workers Compensation death benefit claim when a work related death occurs. Whipple's son had no spouse, child or legal guardian. Consequently, Whipple's only remedy was to file a wrongful death action in the District Court of Canadian County. However, the trial court granted partial summary judgment against Whipple, determining that her only remedy is limited to the Workers Compensation system, rather than the district court.",
"Whipple appealed. We hold that the right of a parent as the next of kin to bring a wrongful death action when the decedent is an adult, unmarried, and childless, is established in the law pursuant to 12 O.S. 2011 §1053 and by art. 23 §7 of the Oklahoma Constitution. Therefore, the Legislative attempt to limit recovery for wrongful death pursuant to 85A O.S. Supp. 2014 §47 to a spouse, child or legal guardian dependent on the decedent is a nullity. The Okla. Const art. 23 §7 prohibits the abrogation of the right to recover for injuries resulting in death. The Legislature may limit the recovery, but may not eliminate the right to recover. PETITION FOR CERTIORARI TO REVIEW CERTIFIED INTERLOCUTORY ORDER PREVIOUSLY GRANTED;TRIAL COURT REVERSED AND CAUSE REMANDED. Jack Zurawik, Micah Felton, Timothy P. Clancy, Tulsa, Oklahoma, for Plaintiff/Petitioner. Don W. Danz, Rebecca S. Woodward, Tulsa, Oklahoma, for Defendants/Respondents. KAUGER, J.: ¶1 The determinative issue on certiorari is whether a parent of an adult, unmarried, childless decedent killed in the course of employment may bring a wrongful death action in the district court. We hold that the right of a parent as the next of kin to bring a wrongful death action when the decedent is an adult, unmarried, and childless, is crystalized in the law pursuant to 12 O.S.",
"2011 §1053 and art. 23 §7 of the Oklahoma Constitution. Therefore, the Legislative attempt to deny recovery for wrongful death pursuant to 85A O.S. Supp. 2014 §47 to the mother of her unmarried childless son is unconstitutional. Her remedy lies in the District Court. FACTS ¶2 The plaintiff/petitioner, Sharla Whipple (mother), lost her adult, twenty-three year old, unmarried, childless son, Taylor Ray Borth (Borth) in a work related accident on October 6, 2016. Borth was crushed to death by a gin pole truck operated during an oilfield mud pump unloading procedure.",
"At the time of his death, the Workers' Compensation Act, 85A O.S. Supp. 2014 §47 only allowed wrongful death benefits to a spouse, child, or legal guardian, if the guardian was dependent on the employee.1 ¶3 Therefore, the mother was forced to bring this action in the District Court. She alleged the wrongful death of her son, and that the employer \"knew or should have known that the injury\" to Bortch and that \"the resulting death was substantially certain to occur.\" The employer filed a motion for summary judgment on May 29, 2019, arguing that the mother was attempting to avoid the workers compensation system. On July 25, 2019, the trial court granted summary judgment, in part, because it believed the mother's exclusive remedy was in the workers' compensation regime. The grant of summary judgment was in error because there is no provision for the mother to seek redress in the Workers Compensation system because of the statutory exclusion under 85A O.S.",
"Supp. 2014 §47.2 ¶4 On October 2, 2019, the trial court certified its ruling as a certified interlocutory appeal. On October 25, 2019, the trial court stayed all further proceedings until the appeal was resolved. The same day, the mother filed her appeal in this Court. We granted certiorari to review the certified interlocutory order on March 25, 2020, and the briefing cycle was completed on July 27, 2020. THE RIGHT OF A PARENT AS NEXT OF KIN TO BRING AWRONGFUL DEATH ACTION WHEN THE DECEDENT IS AN ADULT, UNMARRIED, AND CHILDLESS, IS ESTABLISHED PURSUANT TO 12O.S. 2011 §1053 AND art. 23 §7 OF THE OKLAHOMA CONSTITUTION. THE LEGISLATIVE ATTEMPT TO DENY RECOVERY FOR WRONGFUL DEATH PURSUANT TO 85A O.S.",
"Supp. 2014 §47 BY LIMITING IT TO A SPOUSE, CHILD, OR LEGAL GUARDIAN DEPENDENT ON THE DECEDENT IS UNCONSTITUTIONAL, LEAVING THE ONLY OPTION FOR RECOVERY IN THE DISTRICT COURT. ¶5 The employer argues that the Legislature has not abrogated the right of the mother to recover under the workers compensation provisions, but rather just limited any recoverable amount which is within its constitutional authority.3 The mother argues that limiting an amount of recovery to nothing is the equivalent to abrogating her right to bring an action for recovery. ¶6 The Okla. Const. art. 23, §7 provides: The right of action to recover damages for injuries resulting in death shall never be abrogated, and the amount recoverable shall not be subject to any statutory limitation, provided however, that the Legislature may provide an amount of compensation under the Workers' Compensation Law for death resulting from injuries suffered in employment covered by such law, in which case the compensation so provided shall be exclusive, and the Legislature may enact statutory limits on the amount recoverable in civil actions or claims against the state or any of its political subdivisions.",
"(Emphasis supplied). The history of this Constitutional provision is quite clear and well chronicled. In Riley v. Brown and Root, Inc., 1992 OK 114, 836 P.2d 1298, the Court discussed art. 23 §7 in the context of applying a statute of repose. The Court recognized that this section was originally taken nearly verbatim from the New York Constitution and that it was amended in 1950 to add the provision allowing for some wrongful death actions to be governed by the Workers' Compensation Act.",
"¶7 The Riley Court said that \"Section 7 had the effect of freezing into our law the right of action for wrongful death as it existed when the Constitution was adopted.\" The provision was intended to \"crystalize and embody in the fundamental law of the state -- the law of the land -- the entire statutory right of action with its incidents.\" ¶8 Statutorily, the rights of wrongful death actions are found at 12 O.S. 2011 §§1051-1055. Section 1053(A) currently provides: A. When the death of one is caused by the wrongful act or omission of another, the personal representative of the former may maintain an action therefor against the latter, or his or her personal representative if he or she is also deceased, if the former might have maintained an action, had he or she lived, against the latter, or his or her representative, for an injury for the same act or omission.",
"The action must be commenced within two (2) years. In Riley, supra., the Court also discussed the history of §1053, noting: ¶10 At the time of the Constitution's adoption, Section 4313 Oklahoma Statutes of 1893, was the only statute allowing for an action for wrongful death. Capitol Steel and Iron Co. v. Fuller, 206 Okl. 638, 245 P.2d 1134, 1137 (1952). With only slight modifications Section 4313 became the current 12 O.S.",
"1981 § 1053 . . . . At early common law and before Lord Campbell's Act, an action for personal injuries abated with the death of the injured person; no action for wrongful death existed. Haws v. Luethje, 503 P.2d 871, 873 (Okla. 1972). Now, a cause of action for wrongful death \"accrues to the personal representative of the decedent solely by virtue of the statute.\" Haws, at 873. The action for wrongful death is not a separate and distinct tort, but is an action which [836 P.2d 1301] derives from the rights of the decedent. Whatever rights the decedent might have had in his life accrue to the personal representative at death, thus overcoming the common law barrier of death. ¶11 It is this right - the right of action provided by Section 1053 - that the Oklahoma Constitution protects.",
"The constitutional provision does not create a right of action; rather it buttresses the statute which does so. In other words, the constitutional provision protects the right of action for wrongful death as provided by the legislature in Section 1053. ¶12 Article 23, Section 7 is meant to guarantee the individuals protected under Section 1053 the right to bring an action for wrongful death. See Roberts, 386 P.2d at 783. Our Section 1053, a form of the widely adopted Lord Campbell's Act, does away with the common law idea that an action died when the person who had suffered the injury died.",
"Instead, the wrongful death statute leaves intact the rights of the deceased to now be asserted by a personal representative. Death is no longer a barrier to the assertion of these rights. Article 23, Section 7 says the legislature can never again reimpose the death of the injured person as an obstacle to an action by his survivors. (Footnotes omitted). ¶9 In Capitol Steel and Iron Co. v. Fuller, 1952 OK 209, ¶14, 231 P.2d 681, the Court in discussing the 1950 amendment to art. 23 §7, which expressly provided for work-related wrongful death actions to be brought under workers compensation laws, said: . . . The 1950 constitutional amendment did not authorize the Legislature to make a distinction in the applicability of any provision of the Workmen's Compensation Law based upon whether or not the injury resulted in death except as to the amount of recovery.",
"Therefore, any provision contained in said House Bill No. 312 which makes such distinction is unconstitutional and void to that extent. For the same reason, any provision in said act which modifies the provisions of sections 1053 and 1054 of Title 12 O.S. 1941, except to `provide an amount of compensation under the Workmen's Compensation Law for death resulting from injuries suffered in employment covered by such law,' is also void. . . . In Hammons v. Muskogee Medical Center Authority, 1985 OK 22, ¶7, 697 P.2d 539 we said that art. 23 §7 \"forbids elimination of the right to recover damages for injuries resulting in death.\" Hammons, supra, involved the issue of whether a provision of the then Political Subdivision Tort Claims Act, 55 O.S.",
"Supp. 1979 §152, should apply retroactively. ¶10 In F.W. Woolworth Co., v. Todd, 1951 OK 36, ¶11, 231 P.2d 681, a case involving the validity of a release, we said regarding art. 23 §7, that the \"words 'shall never be abrogated,' as there used, mean: Shall never be annulled or repealed by an authoritative act, that is, shall never be withdrawn or taken away by the authority which bestowed it, that is, the legislative act, or other legislative authority.\" What the Court expressed in Riley, Capital Steel, Hammons, Woolworth, supra, was far from novel. We have reiterated the history of the constitutional provision and its relationship to wrongful death actions many times over.4 ¶11 Because the cause of action for wrongful death is purely statutory, suit may be brought only by a person expressly authorized by statute to do so.5 Pursuant to 12 O.S. 2011 §1053, a decedent's representative may maintain an action against the tortfeasor, and if no personal representative has been appointed, the action may be brought by a surviving spouse or in their absence, next of kin.6 The former Workers' Compensation Act was compatible with the wrongful death statutes. Prior to the 2014 overhaul of workers compensation, if there were no surviving spouse or children, each parent, brothers, sisters, grandparents and grandchildren, if dependent, could receive death benefits.7 Where some pecuniary loss was shown by heirs at law, benefits were also recoverable.8 ¶12 Now, parents, brothers, sisters, grandparents and grandchildren have been stricken and only financially dependent legal guardians, if there is no surviving spouse or children, are allowed any benefits.",
"Recovery for pecuniary loss is no longer available.9 We have had numerous cases in which the next of kin bringing a wrongful death action, was the parent of an adult, unmarried, childless decedent, just like the petitioner in this cause.10 Such a construction abrogates the right of action to recover for damages resulting in death. The amount of damages may be limited, but they cannot be eliminated. ¶13 We recently, reiterated in Farley v. City of Claremore, 2020 OK 30, 465 P.3d 1213, a case involving a surviving spouse who brought a district court action after she received a workers compensation commission death benefits award. We said: ¶43 Our 1994 opinion in Ouellette v. State Farm Mut.",
"Auto. Ins. Co., involved a legal action by parents based upon the death of their child. Their child had a surviving spouse and surviving children. We explained the wrongful death statutes provided a remedy for a surviving spouse and surviving children, and if neither of these (spouse and surviving children) existed, then those who possessed status as statutory next of kin could bring the wrongful death action. . . . because wrongful death is not actionable absent a statute, the parents' quest for the damages they seek . . . must accord with the legislative wrongful-death recovery regime . . . A wrongful-death claim may be pressed only by persons authorized to bring it . . . if the decedent leave a surviving spouse and a child or children, the parents may not take as next of kin, . .",
"they take as next of kin if the decedent leave neither issue nor a surviving spouse . . . . Ouellette, 1994 OK 79, 918 P.2d at 1366-1367, material omitted. In Ouellette we explained a wrongful-death claim may be brought by persons authorized by statute, e.g., the personal representative of the decedent and if none has been appointed, then by the widow, or where there is no widow, by the decedent's next of kin, with recovery inuring to the exclusive benefit of the surviving spouse and children, if any, or next of kin. . . . ¶46 The wrongful death cause of action pursuant to 12 O.S. §1053 created or authorized a survivable cause of death action with damages recovered by a surviving parent. Section 1053 defines the action as authorized when certain conditions are met including (1) wrongful death and (2) if the deceased has a judicially cognizable claim to maintain if living.",
". . . ¶48 Historically, the right to workers' compensation death benefits was statutorily created to be consistent with 12 O.S.§1053 and 84 O.S. §213 and the workers' compensation death benefits were treated as an exclusive statutory remedy substituted for the statutory wrongful death action guaranteed by an Oklahoma constitutional provision and approved by a vote of the People of Oklahoma. ¶14 Under the facts of this cause, the mother is left without any remedy in the District Court, unless she meets the very high burden of showing that she is also left without a remedy in the Workers' Compensation system because of the 2014 statutory changes. Constitutionally, she cannot be cut off from a remedy altogether.",
"Accordingly, our only choice is to allow the mother to pursue her action for the wrongful death of her son in the District Court. CONCLUSION ¶15 In 1950, art. 23 §7 transferred work-related wrongful death claims to the purview of the workers compensation laws.11 However, the constitution contains a caveat that precludes the Legislature from ever abrogating the right to recover for wrongful death as it existed when art. 23 §7 was adopted.12 The right of a parent as the next of kin to bring a wrongful death action when the decedent was an adult, unmarried, and without children is established in the law pursuant to 12 O.S. 2011 §105313 and art. 23 §7. The Legislative attempt to limit recovery for wrongful death pursuant to 85A O.S. Supp. 2014 §47 to a spouse, child or legal guardian dependent on the decedent is unconstitutional.14 ¶16 This is an easy fix for the Legislature. All it needs to do to render 85A O.S. 2014 §47 enforceable and constitutional is to amend it to include the statutory heirs just as it did before the 2014 amendments. At this time to avoid the constitutional prohibition against abrogation of the right of action for death, is for this Mother is to bring her cause of action in the district court. PETITION FOR CERTIORARI TO REVIEW CERTIFIED INTERLOCUTORY ORDER PREVIOUSLY GRANTED;TRIAL COURT REVERSED AND CAUSE REMANDED.",
"GURICH, C.J., KAUGER, EDMONDSON, COLBERT, AND COMBS, JJ., concur. WINCHESTER, KANE, and ROWE, JJ., dissent. DARBY, V.C.J., not voting. FOOTNOTES 1 Title 85A O.S. Supp. 2014 §47 provides in pertinent part: A. Time of death. If death does not result within one (1) year from the date of the accident or within the first three (3) years of the period for compensation payments fixed by the compensation judgment, a rebuttable presumption shall arise that the death did not result from the injury. B. Common law spouse. A common law spouse shall not be entitled to benefits under this section unless he or she obtains an order from a court with competent jurisdiction ruling that a common law marriage existed between the decedent and the surviving spouse. C. Beneficiaries - Amounts. If an injury or occupational illness causes death, weekly income benefits shall be payable as follows: 1. If there is a surviving spouse, a lump-sum payment of One Hundred Thousand Dollars ($100,000.00) and seventy percent (70%) of the lesser of the deceased employee's average weekly wage and the state average weekly wage. In addition to the benefits theretofore paid or due, two (2) years' indemnity benefit in one lump sum shall be payable to a surviving spouse upon remarriage; 2.",
"If there is a surviving spouse and a child or children, a lump-sum payment of Twenty-five Thousand Dollars ($25,000.00) and fifteen percent (15%) of the lesser of the deceased employee's average weekly wage and the state average weekly wage to each child. If there are more than two children, each child shall receive a pro rata share of Fifty Thousand Dollars ($50,000.00) and thirty percent (30%) of the deceased employee's average weekly wage; 3. If there is a child or children and no surviving spouse, a lump-sum payment of Twenty-five Thousand Dollars ($25,000.00) and fifty percent (50%) of the lesser of the deceased employee's average weekly wage and the state average weekly wage to each child. If there are more than two children, each child shall receive a pro rata share of one hundred percent (100%) of the lesser of the deceased employee's average weekly wage and the state average weekly wage. With respect to the lump-sum payment, if there are more than six children, each child shall receive a pro rata share of One Hundred Fifty Thousand Dollars ($150,000.00); 4.",
"If there is no surviving spouse or children, each legal guardian, if financially dependent on the employee at the time of death, shall receive twenty-five percent (25%) of the lesser of the deceased employee's average weekly wage and the state average weekly wage until the earlier of death, becoming eligible for social security, obtaining full-time employment, or five (5) years from the date benefits under this section begin; and 5. The employer shall pay the actual funeral expenses, not exceeding the sum of Ten Thousand Dollars ($10,000.00). . . . The statute was amended in 2019, but relevant portions remain substantially unchanged. 2 Title 85A O.S. Supp. 2014 §47, see note 1, supra. 3 The employer also argues that the Court cannot procedurally consider a constitutional challenge to a statute because the Attorney General has not been notified pursuant to 12 O.S. Supp. 2016 §2024. It provides in pertinent part: D. INTERVENTION BY STATE OF OKLAHOMA. 1.",
"In any action, suit, or proceeding to which the State of Oklahoma or any agency, officer, or employee thereof is not a party, wherein the constitutionality of any statute of this state affecting the public interest is drawn into question, the court shall certify such fact to the Attorney General, and shall permit the State of Oklahoma to intervene for presentation of evidence, if evidence is otherwise admissible in the case, and for argument on the question of constitutionality. The State of Oklahoma shall, subject to the applicable provisions of law, have all the rights of a party and be subject to all liabilities of a party as to court costs to the extent necessary for a proper presentation of the facts and law relating to the question of constitutionality. 2. Upon receipt of notice pursuant to paragraph 1 of this subsection or other actual notice that the constitutionality of any statute of this state affecting the public interest is drawn into question, the Attorney General shall immediately deliver a copy of the proceeding to the Speaker of the House of Representatives and the President Pro Tempore of the Senate who may intervene on behalf of their respective house of the Legislature and who shall be entitled to be heard. Intervention by the Speaker of the House of Representatives or President Pro Tempore of the Senate shall not constitute waiver of legislative immunity. Regardless of whether the trial court expressly notified the Attorney General, according to the petitioner, the Attorney General has been served with notice of this cause on multiple occasions and they have the mailing and delivery documentation should the Court desire it.",
"The Attorney General has not responded with a request for intervention. We have previously held that, without question, the Attorney General must be served. Okla. Tax Commission v Smith, 1980 OK 74, ¶15, 610 P.2d 794. However, sometimes, even when the trial court or the parties did not serve notice to the Attorney General, the notice is given by this Court when the appeal is filed. See, Kelley v. Kelley, 2007 OK 100, ¶6, 175 P.3d 400 and Oklahoma City Urban Renewal Authority v. Medical Technology Research Authority of Oklahoma, 2000 OK 23, ¶6, 4 P.3d 677. The appellate filings reflect that copies were sent to the Attorney General and thus, the Attorney General had the opportunity to participate. Accordingly, this argument is without merit. 4 Riley v. Brown and Root, Inc., 1992 OK 114, ¶¶9-12, 836 P.2d 1298; Hughes Drilling Co. v. Crawford, 1985 OK 16, ¶¶4-8, 697 .2d 525; Parker v. National Zinc Co., 1965 OK 152, ¶17, 406 P.2D 493; Roberts v. Merrill, 1963 OK250, ¶¶8-17, 386 P.2d 780; Osmond v. Moody Construction Co., 1963 OK 171, ¶4, 409 P.2d 9; Capitol Steel and Iron Co. v. Fuller, 1952 OK 209, ¶¶4-13, 231 P.2d 681; F.W. Woolworth Co., v. Todd, 1951 OK 36, ¶¶10-13, 231 P.2d 681.",
"5 Hamilton By and Through Hamilton v. Vaden, 1986 OK 36, ¶7, 721 P.2d 412; Abel v. Tisdale, 1980 OK 161, ¶8, 619 P.2d 608; Potter v. Pure Oil Co., 1938 OK 278, ¶20, 78 P.2d 694. 6 Title 12 O.S. 2011 §1053, see page 7, supra. Title 12 O.S. 2011 §1054 provides: In all cases where the residence of the party whose death has been caused as set forth in the preceding section of this article is at the time of his death in any other state or Territory, or when, being a resident of this state, no personal representative is or has been appointed, the action provided in the said section may be brought by the widow, or where there is no widow, by the next of kin of such deceased. Title 12 O.S.",
"2011 §1051 provides: In addition to the causes of action which survive at common law, causes of action for mesne profits, or for an injury to the person, or to real or personal estate, or for any deceit or fraud, shall also survive; and the action may be brought, notwithstanding the death of the person entitled or liable to the same. 7 Title 85 O.S. 2011 §337 provided in pertinent part: A. If an injury or occupational disease causes death, weekly income benefits shall be payable in the amount and for the benefit of the persons following, subject to the maximum limits specified hereafter: 1. If there is a surviving spouse, to such surviving spouse who shall remain unmarried, seventy percent (70%) of the average weekly wages the deceased was earning. In no event shall this spousal weekly income benefit be diminished by the award to other beneficiaries. In addition to the benefits theretofore paid or due, two (2) years' indemnity benefit in one lump sum shall be payable to a surviving spouse upon remarriage; 2. If there is a surviving spouse and a child or children, fifteen percent (15%) of the average weekly wages the deceased was earning for each child.",
"Where there are more than two such children, the income benefits payable for the benefit of all children shall be divided among all children, to share and share alike, subject to the maximum limits in subsection D of this section; 3. To the children, if there is no surviving spouse, fifty percent (50%) of the average weekly wages the deceased was earning for one child, and twenty percent (20%) of such wage for each additional child, divided among all children, to share and share alike, subject to the maximum limits in subsection D of this section; 4. The weekly income benefits payable for the benefit of any child under this section shall cease when the child dies, marries, or reaches the age of eighteen (18), unless the child is over eighteen (18) years of age and remains enrolled as a full-time student in high school or is being home-schooled in a high-school course approved by the Oklahoma Department of Education; or unless a child is over eighteen (18) years of age and is physically or mentally incapable of self-support; or unless the child is under the age of twenty three (23) and enrolled as a full-time student in any accredited institution of higher education or vocational or technology education; 5.",
"If there is no surviving spouse or children, to each parent, if actually dependent, twenty-five percent (25%) of the average weekly wages the deceased was earning, subject to the maximum limits in subsection D of this section; 6. If there is no surviving spouse or children, to the brothers, sisters, grandparents and grandchildren, if actually dependent, twenty-five percent (25%) of the average weekly wages the deceased was earning to each such dependent. If there should be more than one of such dependents, the total income benefits payable for the benefit of such dependents shall be divided to share and share alike, subject to the maximum limits in subsection D of this section; . . . 8 Title 85 O.S. 2011 §337 provided in pertinent part: . . . E. Where some pecuniary loss may be shown by heirs-at-law of the deceased, as defined by the descent and distribution statutes of Oklahoma, who are otherwise not entitled to receive benefits under other provisions of this section, such heirs-at-law shall receive compensation for their pecuniary loss not to exceed an aggregate of Five Thousand Dollars ($5,000.00).",
". . . 9 Title 85A O.S. Sup. 2014 §47, see note 1, supra. 10 Rogers v. Worthan, 1970 OK 22, ¶2, 465 P.2d 431 [Decedent's mother recovered for wrongful death of adult, unmarried, childless son. ]; Finefrock v. Rice, 1967 OK 61, ¶0, 426 P.2d 765 [Mother of deceased, adult, unmarried, childless son recovered wrongful death under workers compensation laws. ]; Robberson Steel Company v. State Industrial Court, 1960 OK 163, 354 P.2d 11 [Parents of single, childless adult son recovered for wrongful death under workers compensation laws.]",
"See also, West v. Board of County Commissioners of Pawnee County, 2011 OK 104, ¶0, 273 P.3d 31 [Father of unmarried, adult, mother of five brought wrongful death action. ];Corvin v. State Industrial Court, 1965 OK 182, ¶2, 408 P.2d 322, [Father of deceased, unmarried, high school senor brought wrongful death action under workers compensation laws. ]; H.L. Maness Truck Lines v. Lemmons, 1965 OK 181, 408 P.2d 288 [Parents of adult decedents were not allowed to bring wrongful death action under workers compensation laws only because the decedent's divorce had not been completed, thus leaving him a surviving spouse.]",
"11 The Okla. Const. art. 23 §7, pages 2-3, supra. 12 The Okla. Const. art. 23 §7, see pages 2-3, supra; Riley v. Brown and Root, Inc., see note 2, supra; Hughes Drilling Co. v. Crawford, see note 2, supra; Roberts v. Merrill, see note 2, supra; Osmond v. Moody Construction Co., see note 2, supra; Capitol Steel and Iron Co. v. Fuller, see note 2, supra; F.W. Woolworth Co., v. Todd, see note 2, supra. 13 Title 12 O.S. 2011 §1053, see pages 3-4, supra; The Okla. Const.",
"art. 23 §7, pages 2-3, supra. 14 Title 85A O.S. Supp. 2014 §47, see note 1, supra. Citationizer© Summary of Documents Citing This Document Cite Name Level None Found. Citationizer: Table of Authority Cite Name Level 1967 CO 136, 426 P.2d 765, 162 Colo. 403, Bradney v. PeopleCited Oklahoma Supreme Court Cases CiteNameLevel 1986 OK 36, 721 P.2d 412, 57 OBJ 1553, Hamilton By and Through Hamilton v. VadenDiscussed 1992 OK 114, 836 P.2d 1298, 63 OBJ 2142, Riley v. Brown and Root, Inc.Discussed at Length 1938 OK 278, 78 P.2d 694, 182 Okla. 509, POTTER v. PURE OIL CO.Discussed 1994 OK 79, 918 P.2d 1363, 65 OBJ 2222, Ouellette v. State Farm Mut. Auto. Ins. Co.Cited 1952 OK 209, 245 P.2d 1134, 206 Okla 638, CAPITOL STEEL & IRON CO. v. FULLERDiscussed at Length 1960 OK 163, 354 P.2d 211, ROBBERSON STEEL COMPANY v. STATE INDUSTRIAL COURTCited 1963 OK 171, 384 P.2d 908, SUMPTER v. LAWTON COOPERATIVE ASSOCIATIONCited 1963 OK 250, 386 P.2d 780, ROBERTS v. MERRILLCited 1965 OK 152, 406 P.2d 493, PARKER v. NATIONAL ZINC COMPANYDiscussed 1965 OK 181, 408 P.2d 288, H.L.",
"MANESS TRUCK LINES v. LEMMONSDiscussed 1965 OK 182, 408 P.2d 322, CORVIN v. STATE INDUSTRIAL COURTDiscussed 1965 OK 171, 409 P.2d 9, OSMOND v. PAUL R. MOODY CONSTRUCTION CO.Cited 1967 OK 61, 426 P.2d 675, FINEFROCK v. RICECited 1970 OK 22, 465 P.2d 431, ROGERS v. WORTHANDiscussed 1972 OK 146, 503 P.2d 871, HAWS v. LUETHJECited 2007 OK 100, 175 P.3d 400, KELLEY v. KELLEYDiscussed 2011 OK 104, 273 P.3d 31, WEST v. BOARD OF COUNTY COMMISSIONERS OF PAWNEE COUNTYDiscussed 1980 OK 74, 610 P.2d 794, Oklahoma Tax Commission v. SmithDiscussed 1980 OK 161, 619 P.2d 608, Abel v. TisdaleDiscussed 2020 OK 30, 465 P.3d 1213, FARLEY v. CITY OF CLAREMOREDiscussed 2000 OK 23, 4 P.3d 677, 71 OBJ 929, Oklahoma City Urban Renewal Authority v. Medical Technology & Research Authority of OklahomaDiscussed 1951 OK 36, 231 P.2d 681, 204 Okla. 532, F. W. WOOLWORTH CO. v. TODDDiscussed at Length 1985 OK 16, 697 P.2d 525, Hughes Drilling Co. v. CrawfordCited 1985 OK 22, 697 P.2d 539, Hammons v. Muskogee Medical Center AuthorityDiscussed Title 12.",
"Civil Procedure CiteNameLevel 12 O.S. 2024, InterventionCited 12 O.S. 1051, Additional Causes of ActionCited 12 O.S. 1053, Wrongful Death - Limitation of Actions - Damages - Death of an Unborn PersonDiscussed at Length 12 O.S. 1054, Cause of Action Brought by Widow or Next of KinCited Title 84. Wills and Succession CiteNameLevel 84 O.S. 213, Intestacy - Descent and DistributionCited Title 85. Workers' Compensation CiteNameLevel 85 O.S. 337, RepealedDiscussed Title 85A. Workers' Compensation CiteNameLevel 85A O.S. 47, Time of Death - Common Law Spouse - BeneficiariesDiscussed at Length oscn EMAIL: webmaster@oscn.net Oklahoma Judicial Center 2100 N Lincoln Blvd. Oklahoma City, OK 73105 courts Supreme Court of Oklahoma Court of Criminal Appeals Court of Civil Appeals District Courts decisions New Decisions Supreme Court of Oklahoma Court of Criminal Appeals Court of Civil Appeals programs The Sovereignty Symposium Alternative Dispute Resolution Early Settlement Mediation Children's Court Improvement Program (CIP) Judicial Nominating Commission Certified Courtroom Interpreters Certified Shorthand Reporters Accessibility ADA Contact Us Careers Accessibility ADA"
] | https://www.courtlistener.com/api/rest/v3/opinions/4570443/ | 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 . Information Disclosure Statement The information disclosure statement (IDS) submitted on 03/17/2022 has been considered and entered. Claims 1, 3-4, 7-13, 15-16 and 22 are allowed over the prior art of record. Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to AIYING ZHAO whose telephone number is (571)272-3326. The examiner can normally be reached on Monday to Friday, 8:30am-4:30pm EST. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner's supervisor, Khoa Huynh can be reached on 571-272-4888. 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
/AIYING ZHAO/Examiner, Art Unit 3732
/KHOA D HUYNH/Supervisory Patent Examiner, Art Unit 3732 | 2022-04-01T11:53:23 | [
"Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Information Disclosure Statement The information disclosure statement (IDS) submitted on 03/17/2022 has been considered and entered. Claims 1, 3-4, 7-13, 15-16 and 22 are allowed over the prior art of record. Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to AIYING ZHAO whose telephone number is (571)272-3326. The examiner can normally be reached on Monday to Friday, 8:30am-4:30pm EST. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.",
"If attempts to reach the examiner by telephone are unsuccessful, the examiner's supervisor, Khoa Huynh can be reached on 571-272-4888. 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 /AIYING ZHAO/Examiner, Art Unit 3732 /KHOA D HUYNH/Supervisory Patent Examiner, Art Unit 3732"
] | https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-04-03.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
In considering this case it is desirable to keep in view some of the elementary principles, bearing upon the questions involved, and which seem to us to be decisive of the merits of this appeal. A defense to the foreclosure of a purchase-money mortgage on the part of the mortgagor, alleged to have existed at the time of its inception, can only arise when fraud has been practiced by the mortgagee in procuring its execution, or there *Page 408 is a failure of consideration. Thus it is held that a purchaser of land who has given a bond and mortgage thereon to secure the purchase-money, and is in the undisturbed possession thereof, cannot resist the foreclosure of the mortgage on the mere ground of a defect of title, there being no allegation of fraud in the sale, nor eviction. (Abbott v. Allen, 2 Johns. Ch. 520;York v. Allen, 30 N.Y. 104.) In such case he is remitted for relief, if any he has, to the covenants contained in his deed, and if there are no such covenants he is remediless. (Banks v.Walker, 2 Sandf. Ch. 344; Parkinson v. Sherman, 74 N.Y. 88;Frost v. Raymond, 2 Caines', 188; Leggett v. McCarthy, 3 Edw. Ch. 124; Edwards v. Bodine, 26 Wend. 109.) "The rule (says Mr. Justice SWAYNE, in Peters v. Bowman, 98 U.S. 56), is founded in reason and justice. A different result would subvert the contract of the parties and substitute for it one which they did not make. In such cases the vendor, by his covenants, if there are such, agrees upon them, and not otherwise, to be responsible for defects of title. If there are no covenants, he assumes no responsibility, and the other party takes the risk. The vendee agrees to pay according to his contract, and secures payment by giving a lien upon the property." A purchaser of mortgaged premises who takes a deed thereof subject to the mortgage, and agrees to pay the same, is estopped from contesting the consideration or validity of the mortgage, and when the mortgage is given by his grantor to secure the purchase-money, such grantee cannot, so long as he remains in possession of the premises, defend against the mortgage because of failure of title. (Parkinson v. Sherman, supra; Ryerson v.Willis, 81 N.Y. 277.) The mortgagee's title cannot be questioned in defense of a bill for foreclosure. If he takes by virtue of his mortgage any estate whatever which is still subsisting, he is entitled to a decree and the court will not inquire what interest he has in the mortgaged estate. (Jones on Mort. § 1492.) The mortgage sought to be foreclosed in this action was given by Augustus Clark to Edward McDonnell in August, 1880, to secure the purchase-price of *Page 409 the mortgaged real estate conveyed by the mortgagees to the mortgagor at the same date. The property consisted of the real estate pertaining to a manufacturing establishment in the city of Amsterdam, and McDonnell's deed purported to convey an undivided third part of such estate to Clark, who, thereupon, took possession of such property, and, having become a member of the firm, continued to possess and enjoy it in common with the other owners, until December 3, 1883, when the whole property was transferred by Clark and his copartner to certain assignees for the benefit of their copartnership creditors. The property was, in March, 1884, sold and conveyed to the defendant Fales by the assignees, subject to all liens and incumbrances existing against it, and Fales subsequently entered into a written contract to sell and convey it to the defendant Consalus. The defendants, Clark, Fales and wife, and Consalus, interposed answers to the complaint and defended the action, but judgment having been rendered for the plaintiff upon the trial, the defendant Clark dropped out of the controversy, and appeals from the judgment were taken by Fales and wife and Consalus alone. The defendant Fales claims title to the property through Clark, and, inasmuch as he took it with full notice of all of the facts which then affected it, he, of course, took no greater or different interest than that possessed by his grantor. All claims set up in the several answers founded upon charges of fraud or misrepresentation by McDonnell, the mortgagee, upon Clark, the purchaser, at the time of the execution of the deed and mortgage, have been disposed of by the findings of the referee and no longer remain in the case as questions to be considered upon this appeal. The question here to be considered consists solely of that arising under the first count of the defendant Fales' answer. The allegations of this count are as follows: "That on or about August 14, 1880, Perry Kline, Thomas Harvey and Lucy McDonnell were partners doing business at Amsterdam, N.Y., under the firm name of McDonnell, Kline Co.; that as such partners they then *Page 410 owned and occupied the real estate described in the complaint, which had been purchased and paid for with the partnership funds of said firm and its predecessors; that at that time the legal title of one undivided third part of said real estate was nominally vested in one Edward McDonnell for the benefit of Lucy McDonnell; that at that time the said firm owed a large amount of debts exceeding $100,000, and their firm property at that time was not worth sufficient to pay the amount of such indebtedness, and said firm was in fact then insolvent; that said debts were equitable liens upon all of the partnership property then owned by said firm, including the real estate in question; that on or about said 14th day of August 1880, said Edward McDonnell agreed to sell his interest in said real estate, and the interest which the said Lucy McDonnell had owned in said firm property, to the defendant, Augustus Clark, for the consideration of $20,500, to be paid by said Clark to the said Edward McDonnell therefor, but the sale to be subject to the payment by said Clark of one-third of the partnership debts aforesaid; that in pursuance of said agreement said Edward McDonnell acquired the interest of said Lucy McDonnell in said firm property subject to the payment of the firm debts, and then and there conveyed and transferred such interest to the defendant Clark, who thereupon paid toward the purchase-price $10,500, and to secure the balance gave the mortgage mentioned in the complaint in this action." The answer then proceeds to state that Clark thereupon became a partner in said business with Kline and Harvey, and that subsequently, in 1882, Harvey sold out his interest to Clark and Kline, who continued the business until December, 1883, when, being insolvent, they made a general assignment of all their property to assignees for the benefit of their creditors; that on or about March, 1884, said assignees sold and conveyed said real estate, with other partnership property, to the defendant Francis A. Fales for $35,000, subject only to two mortgages, one for $25,000 and the other for $15,000; whereupon it alleged the title of said real estate became vested in Francis A. Fales free from any lien under the mortgage in suit. *Page 411 It was also alleged that the indebtedness of the old firm of McDonnell, Kline Co. had been renewed or extended by the succeeding firms to the amount of $110,000, and that at no time after August, 1880, was the interest of either partner in such partnership property worth anything over and above the payment of the partnership debts. The relief asked for was "that the title conveyed to said Fales be declared superior and prior to any lien or claim of the plaintiff under the mortgage set out in the complaint * * * and that said mortgage be removed from the record as a cloud upon the title of said Fales." It is not claimed that the facts set forth in this count constituted any defense to the mortgage so far as Clark, the mortgagor, is concerned, but the contention is that the defendant Fales, by his deed from the assignees, has acquired some other interest, which gives him an equitable defense to the mortgage. It will be observed that no claim is made that any covenants in McDonnell's deed to Clark have been broken, or that in fact there were any such covenants; and it conclusively appears in the case that Clark received, through McDonnell's deed, all of the property bargained for and the precise consideration for the obligation executed by him, which he contracted for. It also appeared that he then covenanted with McDonnell to pay all of the existing debts of the firm, the alleged continued existence of which now forms the sole foundation of the appellants' claim for relief. Thus the alleged equities, which are now invoked by the appellants to defeat the mortgage in suit, are precisely those which the mortgagor covenanted to extinguish, and subject to which covenant the appellants are now in possession of the property, claiming title thereto. In view of the authorities heretofore cited, it is difficult to see how any legal or equitable defense to the mortgage in question is presented by this answer; but if any there was, it seems to have been entirely removed by the findings of the referee founded upon satisfactory evidence negativing the material allegations upon which they are founded. Thus the referee *Page 412 finds that the original firm of McDonnell, Kline Co. was solvent at the time of the death of John McDonnell, as was also the second firm of the same name, at the time of the sale to Clark. He also finds that there was no proof that any of the debts of the old firm of McDonnell, Kline Co. were outstanding, as existing claims against it, at the time the mortgage in suit was given, and he negatives the allegation that Lucy McDonnell ever held the legal title to any part of the real estate in question, or that Edward McDonnell ever assumed payment of any firm debts, but finds that upon John McDonnell's death the real estate descended to his heirs-at-law, and was sold by virtue of the surrogate's order for the payment of his debts, and was purchased on such sale by one O'Bryan, who conveyed it to Edward McDonnell. He further finds that the property in question was sold by the assignees to the defendant Fales, in March, 1884, subject to all liens and incumbrances. These findings are fully supported by the evidence in the case and seem to dispose of the assumed equities upon which the appellants base their argument for a reversal of the judgment. There is no question made but that Edward McDonnell had the legal title to the property mortgaged at the time of his conveyance to Clark, and a consequent interest therein capable of being transferred by deed (Bliss v. Cottle, 32 Barb. 322;Wilson v. Wilson, 20 How. Pr. 41; Fairchild v. Fairchild,64 N.Y. 471), and there is just as little question but that such interest furnished a sufficient consideration for the bond given back, for the purchase-money and the mortgage executed to secure its payment. This mortgage was a valid and subsisting lien at the time of the conveyance to Fales upon the property described in it, for the sum therein mentioned, even though its object was liable thereafter, to be defeated by the exhaustion of the fund through the enforcement of prior liens, whether legal or equitable, affecting the property conveyed. It follows, as a necessary consequence from these facts, that the defendant Fales, having acquired title to the property in question, subject to all liens and *Page 413 incumbrances upon it, is not, and neither can his grantees be, at liberty to question the liability of the property mortgaged for the payment of the mortgage debt. Even if it was in the power of the assignees, as representatives of creditors, to question the lien of this mortgage, they never did so, and they transferred no right to do so to their grantees; but by making the deed subject to existing liens and incumbrances, impliedly withdrew such right from them, and made their title depend upon the payment of the mortgage. The transfer from the assignees to Fales conveyed simply an equity of redemption in the premises, and by the terms of their deed he took no greater interest in the property than such as remained after the extinguishment of the liens then resting upon it. (Eagle Fire Co. v. Lent, 6 Paige, 635.) The attempt of the appellants to clothe themselves with any supposed equities existing in favor of creditors, has, therefore, no foundation in the facts of the case, as there were no such equities existing, and even if there were, the defendants have not succeeded to them. But a further answer to the contention of the defendants is found in the fact that there are no such creditors asserting claims which antedate the execution of the deed and mortgage in suit. The debtor firms existing at that time, and previous thereto, were solvent, as found by the referee, at the date of McDonnell's deed, and the individual members of such firms had an interest in their assets, capable of being sold and conveyed, and of being made the subject of security for the payment of the purchase-price of the property. In so far as those interests became contributions to the capital of subsequent firms, formed to carry on the same business, they could only be used for that purpose, subject to the liens already existing upon them, and the creditors of such firms could acquire no right to contest the validity of such liens, except such as belonged to the firm itself. The attempted defense of the appellants is simply a claim that, at the time of McDonnell's deed to Clark, there were outstanding claims in favor of creditors, which might have been used in equity to extinguish McDonnell's legal title and *Page 414 thus produce a failure of consideration for the mortgage. This defense is not sustainable either in law or equity, or by the facts of the case. The judgments of the courts below should be affirmed, with costs against the appellants. All concur. Judgment affirmed. | 07-05-2016 | [
"In considering this case it is desirable to keep in view some of the elementary principles, bearing upon the questions involved, and which seem to us to be decisive of the merits of this appeal. A defense to the foreclosure of a purchase-money mortgage on the part of the mortgagor, alleged to have existed at the time of its inception, can only arise when fraud has been practiced by the mortgagee in procuring its execution, or there *Page 408 is a failure of consideration. Thus it is held that a purchaser of land who has given a bond and mortgage thereon to secure the purchase-money, and is in the undisturbed possession thereof, cannot resist the foreclosure of the mortgage on the mere ground of a defect of title, there being no allegation of fraud in the sale, nor eviction. (Abbott v. Allen, 2 Johns.",
"Ch. 520;York v. Allen, 30 N.Y. 104.) In such case he is remitted for relief, if any he has, to the covenants contained in his deed, and if there are no such covenants he is remediless. (Banks v.Walker, 2 Sandf. Ch. 344; Parkinson v. Sherman, 74 N.Y. 88;Frost v. Raymond, 2 Caines', 188; Leggett v. McCarthy, 3 Edw. Ch. 124; Edwards v. Bodine, 26 Wend. 109.) \"The rule (says Mr. Justice SWAYNE, in Peters v. Bowman, 98 U.S. 56), is founded in reason and justice. A different result would subvert the contract of the parties and substitute for it one which they did not make. In such cases the vendor, by his covenants, if there are such, agrees upon them, and not otherwise, to be responsible for defects of title. If there are no covenants, he assumes no responsibility, and the other party takes the risk. The vendee agrees to pay according to his contract, and secures payment by giving a lien upon the property.\"",
"A purchaser of mortgaged premises who takes a deed thereof subject to the mortgage, and agrees to pay the same, is estopped from contesting the consideration or validity of the mortgage, and when the mortgage is given by his grantor to secure the purchase-money, such grantee cannot, so long as he remains in possession of the premises, defend against the mortgage because of failure of title. (Parkinson v. Sherman, supra; Ryerson v.Willis, 81 N.Y. 277.) The mortgagee's title cannot be questioned in defense of a bill for foreclosure. If he takes by virtue of his mortgage any estate whatever which is still subsisting, he is entitled to a decree and the court will not inquire what interest he has in the mortgaged estate.",
"(Jones on Mort. § 1492.) The mortgage sought to be foreclosed in this action was given by Augustus Clark to Edward McDonnell in August, 1880, to secure the purchase-price of *Page 409 the mortgaged real estate conveyed by the mortgagees to the mortgagor at the same date. The property consisted of the real estate pertaining to a manufacturing establishment in the city of Amsterdam, and McDonnell's deed purported to convey an undivided third part of such estate to Clark, who, thereupon, took possession of such property, and, having become a member of the firm, continued to possess and enjoy it in common with the other owners, until December 3, 1883, when the whole property was transferred by Clark and his copartner to certain assignees for the benefit of their copartnership creditors. The property was, in March, 1884, sold and conveyed to the defendant Fales by the assignees, subject to all liens and incumbrances existing against it, and Fales subsequently entered into a written contract to sell and convey it to the defendant Consalus. The defendants, Clark, Fales and wife, and Consalus, interposed answers to the complaint and defended the action, but judgment having been rendered for the plaintiff upon the trial, the defendant Clark dropped out of the controversy, and appeals from the judgment were taken by Fales and wife and Consalus alone.",
"The defendant Fales claims title to the property through Clark, and, inasmuch as he took it with full notice of all of the facts which then affected it, he, of course, took no greater or different interest than that possessed by his grantor. All claims set up in the several answers founded upon charges of fraud or misrepresentation by McDonnell, the mortgagee, upon Clark, the purchaser, at the time of the execution of the deed and mortgage, have been disposed of by the findings of the referee and no longer remain in the case as questions to be considered upon this appeal.",
"The question here to be considered consists solely of that arising under the first count of the defendant Fales' answer. The allegations of this count are as follows: \"That on or about August 14, 1880, Perry Kline, Thomas Harvey and Lucy McDonnell were partners doing business at Amsterdam, N.Y., under the firm name of McDonnell, Kline Co.; that as such partners they then *Page 410 owned and occupied the real estate described in the complaint, which had been purchased and paid for with the partnership funds of said firm and its predecessors; that at that time the legal title of one undivided third part of said real estate was nominally vested in one Edward McDonnell for the benefit of Lucy McDonnell; that at that time the said firm owed a large amount of debts exceeding $100,000, and their firm property at that time was not worth sufficient to pay the amount of such indebtedness, and said firm was in fact then insolvent; that said debts were equitable liens upon all of the partnership property then owned by said firm, including the real estate in question; that on or about said 14th day of August 1880, said Edward McDonnell agreed to sell his interest in said real estate, and the interest which the said Lucy McDonnell had owned in said firm property, to the defendant, Augustus Clark, for the consideration of $20,500, to be paid by said Clark to the said Edward McDonnell therefor, but the sale to be subject to the payment by said Clark of one-third of the partnership debts aforesaid; that in pursuance of said agreement said Edward McDonnell acquired the interest of said Lucy McDonnell in said firm property subject to the payment of the firm debts, and then and there conveyed and transferred such interest to the defendant Clark, who thereupon paid toward the purchase-price $10,500, and to secure the balance gave the mortgage mentioned in the complaint in this action.\"",
"The answer then proceeds to state that Clark thereupon became a partner in said business with Kline and Harvey, and that subsequently, in 1882, Harvey sold out his interest to Clark and Kline, who continued the business until December, 1883, when, being insolvent, they made a general assignment of all their property to assignees for the benefit of their creditors; that on or about March, 1884, said assignees sold and conveyed said real estate, with other partnership property, to the defendant Francis A. Fales for $35,000, subject only to two mortgages, one for $25,000 and the other for $15,000; whereupon it alleged the title of said real estate became vested in Francis A. Fales free from any lien under the mortgage in suit. *Page 411 It was also alleged that the indebtedness of the old firm of McDonnell, Kline Co. had been renewed or extended by the succeeding firms to the amount of $110,000, and that at no time after August, 1880, was the interest of either partner in such partnership property worth anything over and above the payment of the partnership debts.",
"The relief asked for was \"that the title conveyed to said Fales be declared superior and prior to any lien or claim of the plaintiff under the mortgage set out in the complaint * * * and that said mortgage be removed from the record as a cloud upon the title of said Fales.\" It is not claimed that the facts set forth in this count constituted any defense to the mortgage so far as Clark, the mortgagor, is concerned, but the contention is that the defendant Fales, by his deed from the assignees, has acquired some other interest, which gives him an equitable defense to the mortgage. It will be observed that no claim is made that any covenants in McDonnell's deed to Clark have been broken, or that in fact there were any such covenants; and it conclusively appears in the case that Clark received, through McDonnell's deed, all of the property bargained for and the precise consideration for the obligation executed by him, which he contracted for.",
"It also appeared that he then covenanted with McDonnell to pay all of the existing debts of the firm, the alleged continued existence of which now forms the sole foundation of the appellants' claim for relief. Thus the alleged equities, which are now invoked by the appellants to defeat the mortgage in suit, are precisely those which the mortgagor covenanted to extinguish, and subject to which covenant the appellants are now in possession of the property, claiming title thereto. In view of the authorities heretofore cited, it is difficult to see how any legal or equitable defense to the mortgage in question is presented by this answer; but if any there was, it seems to have been entirely removed by the findings of the referee founded upon satisfactory evidence negativing the material allegations upon which they are founded.",
"Thus the referee *Page 412 finds that the original firm of McDonnell, Kline Co. was solvent at the time of the death of John McDonnell, as was also the second firm of the same name, at the time of the sale to Clark. He also finds that there was no proof that any of the debts of the old firm of McDonnell, Kline Co. were outstanding, as existing claims against it, at the time the mortgage in suit was given, and he negatives the allegation that Lucy McDonnell ever held the legal title to any part of the real estate in question, or that Edward McDonnell ever assumed payment of any firm debts, but finds that upon John McDonnell's death the real estate descended to his heirs-at-law, and was sold by virtue of the surrogate's order for the payment of his debts, and was purchased on such sale by one O'Bryan, who conveyed it to Edward McDonnell. He further finds that the property in question was sold by the assignees to the defendant Fales, in March, 1884, subject to all liens and incumbrances. These findings are fully supported by the evidence in the case and seem to dispose of the assumed equities upon which the appellants base their argument for a reversal of the judgment.",
"There is no question made but that Edward McDonnell had the legal title to the property mortgaged at the time of his conveyance to Clark, and a consequent interest therein capable of being transferred by deed (Bliss v. Cottle, 32 Barb. 322;Wilson v. Wilson, 20 How. Pr. 41; Fairchild v. Fairchild,64 N.Y. 471), and there is just as little question but that such interest furnished a sufficient consideration for the bond given back, for the purchase-money and the mortgage executed to secure its payment. This mortgage was a valid and subsisting lien at the time of the conveyance to Fales upon the property described in it, for the sum therein mentioned, even though its object was liable thereafter, to be defeated by the exhaustion of the fund through the enforcement of prior liens, whether legal or equitable, affecting the property conveyed. It follows, as a necessary consequence from these facts, that the defendant Fales, having acquired title to the property in question, subject to all liens and *Page 413 incumbrances upon it, is not, and neither can his grantees be, at liberty to question the liability of the property mortgaged for the payment of the mortgage debt. Even if it was in the power of the assignees, as representatives of creditors, to question the lien of this mortgage, they never did so, and they transferred no right to do so to their grantees; but by making the deed subject to existing liens and incumbrances, impliedly withdrew such right from them, and made their title depend upon the payment of the mortgage. The transfer from the assignees to Fales conveyed simply an equity of redemption in the premises, and by the terms of their deed he took no greater interest in the property than such as remained after the extinguishment of the liens then resting upon it.",
"(Eagle Fire Co. v. Lent, 6 Paige, 635.) The attempt of the appellants to clothe themselves with any supposed equities existing in favor of creditors, has, therefore, no foundation in the facts of the case, as there were no such equities existing, and even if there were, the defendants have not succeeded to them. But a further answer to the contention of the defendants is found in the fact that there are no such creditors asserting claims which antedate the execution of the deed and mortgage in suit. The debtor firms existing at that time, and previous thereto, were solvent, as found by the referee, at the date of McDonnell's deed, and the individual members of such firms had an interest in their assets, capable of being sold and conveyed, and of being made the subject of security for the payment of the purchase-price of the property. In so far as those interests became contributions to the capital of subsequent firms, formed to carry on the same business, they could only be used for that purpose, subject to the liens already existing upon them, and the creditors of such firms could acquire no right to contest the validity of such liens, except such as belonged to the firm itself.",
"The attempted defense of the appellants is simply a claim that, at the time of McDonnell's deed to Clark, there were outstanding claims in favor of creditors, which might have been used in equity to extinguish McDonnell's legal title and *Page 414 thus produce a failure of consideration for the mortgage. This defense is not sustainable either in law or equity, or by the facts of the case. The judgments of the courts below should be affirmed, with costs against the appellants.",
"All concur. Judgment affirmed."
] | https://www.courtlistener.com/api/rest/v3/opinions/3593677/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Van Vorst, J. — The case of The Real Estate and Trust Company agt. Keech (7 Hun, 253) is adverse to the defense of usury in this action. It is there held, that where a mortgagor paid to a holder of the mortgage $1,000 in addition to the lawful interest, to secure an extension of the time within which to pay the debt secured by the mortgage, that the security given for the original debt was not impaired by such payment, but the amount so paid should be applied as a payment on the mortgage debt. By the payment of $100, besides the lawful interest, the mortgagor secured an extension of the mortgage for three years. It is claimed by the counsel for the mortgagor that the extension postpones the payment of interest as well as principal for the period named. I think this is a strained and unnatural construction. The bond accompanying the mortgage requires the interest to be paid semi-annually. The receipt for the payment of the $100 does not refer to the bond. I think the time for the payment of interest remains unaltered; and there being a default in the payment of an installment, according to the terms of the bond, the action for foreclosure is properly brought, and there should be judgment for foreclosure and sale. | 01-09-2022 | [
"Van Vorst, J. — The case of The Real Estate and Trust Company agt. Keech (7 Hun, 253) is adverse to the defense of usury in this action. It is there held, that where a mortgagor paid to a holder of the mortgage $1,000 in addition to the lawful interest, to secure an extension of the time within which to pay the debt secured by the mortgage, that the security given for the original debt was not impaired by such payment, but the amount so paid should be applied as a payment on the mortgage debt. By the payment of $100, besides the lawful interest, the mortgagor secured an extension of the mortgage for three years. It is claimed by the counsel for the mortgagor that the extension postpones the payment of interest as well as principal for the period named. I think this is a strained and unnatural construction. The bond accompanying the mortgage requires the interest to be paid semi-annually. The receipt for the payment of the $100 does not refer to the bond. I think the time for the payment of interest remains unaltered; and there being a default in the payment of an installment, according to the terms of the bond, the action for foreclosure is properly brought, and there should be judgment for foreclosure and sale."
] | https://www.courtlistener.com/api/rest/v3/opinions/5470702/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Detailed Action
Amendment
1. This office action is in response to applicant’s amendments dated 1-7-22 and this office action is a final rejection. The present application is being examined under the pre-AIA first to invent provisions.
Double Patenting
2. The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); 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 nonstatutory double patenting et seq. 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 1-10, 21-28 and 30 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-29 of U.S. Patent No. 8,707,617. Although the claims at issue are not identical, they are not patentably distinct from each other because claims 1-29 are substantially similar to claims 1-10, 21-28 and 30 of the present application. Claims 1-10, 21-28 and 30 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-6 and 8-19 of copending Application No. 14/174,043 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because claims 1-6 and 8-19 of the ‘043 application are substantially similar to claims 1-10, 21-28 and 30 of the present application.
Claim Rejections - 35 USC § 103
3. The following is a quotation of pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action: (a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made. Claims 1-4, 8 and 10 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over U.S. Patent Application Publication No. 2005/0005510 to Brault et al. in view of U.S. Patent No. 4,567,732 to Landstrom et al. Referring to claim 1, Brault et al. discloses a greenhouse comprising, a crop growing section – see at 55 and between 50 and 102 in figure 2, a substantially enclosed chamber – see interior chamber formed by walls of the greenhouse – as seen for example in figure 5, capable of mixing outside air – from roof vents and/or from 84,85, and recirculated air – see via 60 and 81-102 in figure 2, the chamber formed by an outside wall of the greenhouse – see top and sidewalls of greenhouse in for example in figure 5, a partition wall – walls forming 50 as seen in figures 2 and 5, one or more side walls – any of the other sidewalls not considered the claimed outside wall of the greenhouse – see 4 sidewalls in figure 5, a floor – bottom of greenhouse as seen in figures 2 and 5, and a ceiling – at 25-26 not considered the outside wall – see at least two walls formed at 25,26 in figure 5, and/or 28 as seen in figures 2 and 5, a first vent in the outside wall to allow outside air to enter the substantially enclosed chamber – see at roof vents – at 86 and/or Referring to claim 2, Brault et al. as modified by Landstrom et al. further discloses the substantially enclosed chamber is part of a climate control system is capable of controlling one or more environmental conditions within the crop growing section of the greenhouse selected from air temperature, humidity, air pressure, and level of carbon dioxide – see for example paragraphs [0117] and [0122] of Brault et al. Referring to claim 3, Brault et al. as modified by Landstrom et al. does not disclose the first vent – at 84,85 and/or 86 of Brault et al., runs substantially the length of the outside wall of the greenhouse. However, it would have been obvious to one of ordinary skill in the art to take the device of Brault et al. as modified by Landstrom et al. and make the vents any desired length including the claimed entire length of the outside wall of the greenhouse, so as to yield the predictable result of increasing airflow and ensuring proper airflow in the device as desired.
Referring to claim 8, Brault et al. as modified by Landstrom et al. further discloses the climate control system further comprises fans – at 60, arranged to flow air into the plurality of tubes – see figures 1-2 and 4-5 of Brault et al. Referring to claim 10, Brault et al. as modified by Landstrom et al. further discloses the single louver is a planar shield – see at 85 in figure 4 of Brault et al. Claims 5-7 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Brault et al. as modified by Landstrom et al. as applied to claim 1 above, and further in view of U.S. Patent No. 3,824,909 to Horneff et al. Referring to claim 5, Brault et al. as modified by Landstrom et al. further discloses the climate control system further comprises a plurality of tubes that extend from the substantially enclosed chamber to distribute air throughout the crop growing section – see at 52-54, 62-63, 90-102 in figures 1-2 and 4-5 of Brault et al. Brault et al. as modified by Landstrom et al. does not disclose the tubes uniformly/evenly distribute air near the bottom of the growing section. Horneff et al. does disclose the tubes uniformly/evenly distribute air near the bottom of the growing section – see figures 1-4 and column 4 line 38 to column 7 line 14 discussing uniform flow in the entire section including the bottom of the section. Therefore it would have been obvious to one of ordinary skill in the art to take the device of Brault et al. as modified by Landstrom et al. and add the uniform distribution of air as disclosed by Horneff et al., so as to control the flow of air in the device to ensure that each portion of the section receives sufficient airflow.
Referring to claim 7, Brault et al. as modified by Landstrom et al. and Horneff et al. further discloses the plurality of tubes comprises 10 or more tubes – see multiple tubes – at 52-54, 62-63 and 90-102 in figures 1-2 and 4-5 of Brault et al. Claim 9 is rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Brault et al. as modified by Landstrom et al. as applied to claim 1 above, and further in view of U.S. Patent No. 3,274,730 to Bose. Referring to claim 9, Brault et al. as modified by Landstrom et al. does not disclose each of the plurality of tubes is below each of a plurality of growing tables or gutters in the crop growing section. Bose does disclose each of the plurality of tubes – at 36, is below each of a plurality of growing tables or gutters in the crop growing section – see at 33 in figure 3. Therefore it would have been obvious to one of ordinary skill in the art to take the device of Brault et al. as modified by Landstrom et al. and add the tubes below growing tables as disclosed by Bose, so as to ensure that the entire plant is more quickly disposed to the changes in the climate as controlled by the climatic controls. Claims 21-26, 28 and 30 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Brault et al. in view of Landstrom et al. and further in view of U.S. Patent No. 3,824,909 to Horneff et al. Referring to claims 21 and 28, Brault et al. discloses a greenhouse comprising, a crop growing section having a plurality of walls – see at 55 and between 50 and 102 in figure 2, a substantially enclosed chamber – see interior chamber formed by walls of the greenhouse – as
Referring to claim 23, Brault et al. as modified by Landstrom et al. and Horneff et al. does not disclose the first vent – at 84,85 and/or 86 of Brault et al., runs substantially the length of the outside wall of the greenhouse. However, it would have been obvious to one of ordinary skill in the art to take the device of Brault et al. as modified by Landstrom et al. and Horneff et al. and make the vents any desired length including the claimed entire length of the outside wall of the greenhouse, so as to yield the predictable result of increasing airflow and ensuring proper airflow in the device as desired. Referring to claim 24, Brault et al. as modified by Landstrom et al. and Horneff et al. further discloses the plurality of tubes comprises 5 or more tubes – see multiple tubes – at 52-54, 62-63 and 90-102 in figures 1-2 and 4-5 of Brault et al. Referring to claim 25, Brault et al. as modified by Landstrom et al. and Horneff et al. further discloses the plurality of tubes comprises 10 or more tubes – see multiple tubes – at 52-54, 62-63 and 90-102 in figures 1-2 and 4-5 of Brault et al. Referring to claim 26, Brault et al. as modified by Landstrom et al. and Horneff et al. further discloses the climate control system further comprises fans – at 60, arranged to flow air into the plurality of tubes – see figures 1-2 and 4-5 of Brault et al. Referring to claim 30, Brault et al. as modified by Landstrom et al. and Horneff et al. further discloses the or more louvers is/are a planar shield(s)– see at 85 in figure 4 of Brault et al. 27 is rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Brault et al. as modified by Landstrom et al. and Horneff et al. as applied to claim 21 above, and further in view of U.S. Patent No. 3,274,730 to Bose. Referring to claim 27, Brault et al. as modified by Landstrom et al. and Horneff et al. does not disclose each of the plurality of tubes is below each of a plurality of growing tables or gutters in the crop growing section. Bose does disclose each of the plurality of tubes – at 36, is below each of a plurality of growing tables or gutters in the crop growing section – see at 33 in figure 3. Therefore it would have been obvious to one of ordinary skill in the art to take the device of Brault et al. as modified by Landstrom et al. and Horneff et al. and add the tubes below growing tables as disclosed by Bose, so as to ensure that the entire plant is more quickly disposed to the changes in the climate as controlled by the climatic controls.
Response to Arguments
4. Regarding the non-statutory double patenting rejections of claims 1-10, 21-28 and 30, it is noted that applicant will address these rejections when no other claim rejections remain. Regarding the prior art rejections of claim 1, the Brault et al. reference US 2005/0005510 discloses the new claim limitations of the louver comprising a continuous surface – see at 85 in figure 4, where each vane of item 85 has a continuous surface. It is noted that applicant does not claim the louver is made of a single/only one continuous surface. Further, Brault et al. discloses the louver – at 85, is movable to control the air entering the enclosed chamber through the vents as seen in figures 2 and 5 and paragraphs [0113] thru [0121] which details closing the louver – at 85, allowing for increased air flow through items 53,54,102, into the enclosed chamber and Regarding the prior art rejections of claim 21, the Brault et al. reference discloses the one or more louvers – at 84,85, movable to block the air entering the chamber via the second vent – such as at 102 as seen in figures 2 and 5 and paragraphs [0113] thru [0121] which details the louver – at 85 can be moved to a position where the air goes out the outside wall and not through items 53,54 to item 102 and therefore provides a blocking/partial blocking feature of the air through the vent – at 102. Further, applicant does not provide specific arguments with respect to the Landstrom reference and the Horneff et al. reference US 3824909. Regarding the prior art rejections of 2-10, 22-28 and 30 applicant relies upon the same arguments with respect to parent claims 1 or 21 discussed earlier.
Conclusion
5. 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
6. Any inquiry concerning this communication or earlier communications from the examiner should be directed to DAVID J PARSLEY whose telephone number is (571)272-6890. The examiner can normally be reached Monday-Friday, 8am-4pm EST. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Peter Poon can be reached on (571) 272-6891. 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.
/DAVID J PARSLEY/Primary Examiner, Art Unit 3643 | 2022-02-17T10:27:58 | [
"Detailed Action Amendment 1. This office action is in response to applicant’s amendments dated 1-7-22 and this office action is a final rejection. The present application is being examined under the pre-AIA first to invent provisions. Double Patenting 2. The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed.",
"Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); 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 nonstatutory double patenting et seq. 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 1-10, 21-28 and 30 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-29 of U.S. Patent No.",
"8,707,617. Although the claims at issue are not identical, they are not patentably distinct from each other because claims 1-29 are substantially similar to claims 1-10, 21-28 and 30 of the present application. Claims 1-10, 21-28 and 30 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-6 and 8-19 of copending Application No. 14/174,043 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because claims 1-6 and 8-19 of the ‘043 application are substantially similar to claims 1-10, 21-28 and 30 of the present application.",
"Claim Rejections - 35 USC § 103 3. The following is a quotation of pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action: (a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made. Claims 1-4, 8 and 10 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over U.S. Patent Application Publication No. 2005/0005510 to Brault et al. in view of U.S. Patent No. 4,567,732 to Landstrom et al.",
"Referring to claim 1, Brault et al. discloses a greenhouse comprising, a crop growing section – see at 55 and between 50 and 102 in figure 2, a substantially enclosed chamber – see interior chamber formed by walls of the greenhouse – as seen for example in figure 5, capable of mixing outside air – from roof vents and/or from 84,85, and recirculated air – see via 60 and 81-102 in figure 2, the chamber formed by an outside wall of the greenhouse – see top and sidewalls of greenhouse in for example in figure 5, a partition wall – walls forming 50 as seen in figures 2 and 5, one or more side walls – any of the other sidewalls not considered the claimed outside wall of the greenhouse – see 4 sidewalls in figure 5, a floor – bottom of greenhouse as seen in figures 2 and 5, and a ceiling – at 25-26 not considered the outside wall – see at least two walls formed at 25,26 in figure 5, and/or 28 as seen in figures 2 and 5, a first vent in the outside wall to allow outside air to enter the substantially enclosed chamber – see at roof vents – at 86 and/or Referring to claim 2, Brault et al. as modified by Landstrom et al. further discloses the substantially enclosed chamber is part of a climate control system is capable of controlling one or more environmental conditions within the crop growing section of the greenhouse selected from air temperature, humidity, air pressure, and level of carbon dioxide – see for example paragraphs [0117] and [0122] of Brault et al.",
"Referring to claim 3, Brault et al. as modified by Landstrom et al. does not disclose the first vent – at 84,85 and/or 86 of Brault et al., runs substantially the length of the outside wall of the greenhouse. However, it would have been obvious to one of ordinary skill in the art to take the device of Brault et al. as modified by Landstrom et al. and make the vents any desired length including the claimed entire length of the outside wall of the greenhouse, so as to yield the predictable result of increasing airflow and ensuring proper airflow in the device as desired. Referring to claim 8, Brault et al. as modified by Landstrom et al.",
"further discloses the climate control system further comprises fans – at 60, arranged to flow air into the plurality of tubes – see figures 1-2 and 4-5 of Brault et al. Referring to claim 10, Brault et al. as modified by Landstrom et al. further discloses the single louver is a planar shield – see at 85 in figure 4 of Brault et al. Claims 5-7 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Brault et al. as modified by Landstrom et al.",
"as applied to claim 1 above, and further in view of U.S. Patent No. 3,824,909 to Horneff et al. Referring to claim 5, Brault et al. as modified by Landstrom et al. further discloses the climate control system further comprises a plurality of tubes that extend from the substantially enclosed chamber to distribute air throughout the crop growing section – see at 52-54, 62-63, 90-102 in figures 1-2 and 4-5 of Brault et al. Brault et al. as modified by Landstrom et al. does not disclose the tubes uniformly/evenly distribute air near the bottom of the growing section. Horneff et al. does disclose the tubes uniformly/evenly distribute air near the bottom of the growing section – see figures 1-4 and column 4 line 38 to column 7 line 14 discussing uniform flow in the entire section including the bottom of the section. Therefore it would have been obvious to one of ordinary skill in the art to take the device of Brault et al. as modified by Landstrom et al. and add the uniform distribution of air as disclosed by Horneff et al., so as to control the flow of air in the device to ensure that each portion of the section receives sufficient airflow. Referring to claim 7, Brault et al. as modified by Landstrom et al. and Horneff et al. further discloses the plurality of tubes comprises 10 or more tubes – see multiple tubes – at 52-54, 62-63 and 90-102 in figures 1-2 and 4-5 of Brault et al.",
"Claim 9 is rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Brault et al. as modified by Landstrom et al. as applied to claim 1 above, and further in view of U.S. Patent No. 3,274,730 to Bose. Referring to claim 9, Brault et al. as modified by Landstrom et al. does not disclose each of the plurality of tubes is below each of a plurality of growing tables or gutters in the crop growing section. Bose does disclose each of the plurality of tubes – at 36, is below each of a plurality of growing tables or gutters in the crop growing section – see at 33 in figure 3. Therefore it would have been obvious to one of ordinary skill in the art to take the device of Brault et al.",
"as modified by Landstrom et al. and add the tubes below growing tables as disclosed by Bose, so as to ensure that the entire plant is more quickly disposed to the changes in the climate as controlled by the climatic controls. Claims 21-26, 28 and 30 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Brault et al. in view of Landstrom et al. and further in view of U.S. Patent No. 3,824,909 to Horneff et al. Referring to claims 21 and 28, Brault et al. discloses a greenhouse comprising, a crop growing section having a plurality of walls – see at 55 and between 50 and 102 in figure 2, a substantially enclosed chamber – see interior chamber formed by walls of the greenhouse – as Referring to claim 23, Brault et al. as modified by Landstrom et al. and Horneff et al. does not disclose the first vent – at 84,85 and/or 86 of Brault et al., runs substantially the length of the outside wall of the greenhouse.",
"However, it would have been obvious to one of ordinary skill in the art to take the device of Brault et al. as modified by Landstrom et al. and Horneff et al. and make the vents any desired length including the claimed entire length of the outside wall of the greenhouse, so as to yield the predictable result of increasing airflow and ensuring proper airflow in the device as desired. Referring to claim 24, Brault et al. as modified by Landstrom et al. and Horneff et al. further discloses the plurality of tubes comprises 5 or more tubes – see multiple tubes – at 52-54, 62-63 and 90-102 in figures 1-2 and 4-5 of Brault et al. Referring to claim 25, Brault et al.",
"as modified by Landstrom et al. and Horneff et al. further discloses the plurality of tubes comprises 10 or more tubes – see multiple tubes – at 52-54, 62-63 and 90-102 in figures 1-2 and 4-5 of Brault et al. Referring to claim 26, Brault et al. as modified by Landstrom et al. and Horneff et al. further discloses the climate control system further comprises fans – at 60, arranged to flow air into the plurality of tubes – see figures 1-2 and 4-5 of Brault et al. Referring to claim 30, Brault et al. as modified by Landstrom et al. and Horneff et al. further discloses the or more louvers is/are a planar shield(s)– see at 85 in figure 4 of Brault et al. 27 is rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Brault et al. as modified by Landstrom et al.",
"and Horneff et al. as applied to claim 21 above, and further in view of U.S. Patent No. 3,274,730 to Bose. Referring to claim 27, Brault et al. as modified by Landstrom et al. and Horneff et al. does not disclose each of the plurality of tubes is below each of a plurality of growing tables or gutters in the crop growing section. Bose does disclose each of the plurality of tubes – at 36, is below each of a plurality of growing tables or gutters in the crop growing section – see at 33 in figure 3. Therefore it would have been obvious to one of ordinary skill in the art to take the device of Brault et al. as modified by Landstrom et al.",
"and Horneff et al. and add the tubes below growing tables as disclosed by Bose, so as to ensure that the entire plant is more quickly disposed to the changes in the climate as controlled by the climatic controls. Response to Arguments 4. Regarding the non-statutory double patenting rejections of claims 1-10, 21-28 and 30, it is noted that applicant will address these rejections when no other claim rejections remain. Regarding the prior art rejections of claim 1, the Brault et al. reference US 2005/0005510 discloses the new claim limitations of the louver comprising a continuous surface – see at 85 in figure 4, where each vane of item 85 has a continuous surface. It is noted that applicant does not claim the louver is made of a single/only one continuous surface.",
"Further, Brault et al. discloses the louver – at 85, is movable to control the air entering the enclosed chamber through the vents as seen in figures 2 and 5 and paragraphs [0113] thru [0121] which details closing the louver – at 85, allowing for increased air flow through items 53,54,102, into the enclosed chamber and Regarding the prior art rejections of claim 21, the Brault et al. reference discloses the one or more louvers – at 84,85, movable to block the air entering the chamber via the second vent – such as at 102 as seen in figures 2 and 5 and paragraphs [0113] thru [0121] which details the louver – at 85 can be moved to a position where the air goes out the outside wall and not through items 53,54 to item 102 and therefore provides a blocking/partial blocking feature of the air through the vent – at 102.",
"Further, applicant does not provide specific arguments with respect to the Landstrom reference and the Horneff et al. reference US 3824909. Regarding the prior art rejections of 2-10, 22-28 and 30 applicant relies upon the same arguments with respect to parent claims 1 or 21 discussed earlier. Conclusion 5. 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 6. Any inquiry concerning this communication or earlier communications from the examiner should be directed to DAVID J PARSLEY whose telephone number is (571)272-6890. The examiner can normally be reached Monday-Friday, 8am-4pm EST. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Peter Poon can be reached on (571) 272-6891. 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.",
"/DAVID J PARSLEY/Primary Examiner, Art Unit 3643"
] | 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 |
Petition for certification denied. | 07-25-2022 | [
"Petition for certification denied."
] | https://www.courtlistener.com/api/rest/v3/opinions/7296680/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
MICHAEL POONER, Plaintiff,
v. Civil Action No. ELH-18-1736
MARINER FINANCE, LLC, et al., Defendants. MEMORANDUM OPINION
Plaintiff Michael Pooner filed a collective action against his former employer, Mariner
Finance, LLC (“Mariner”), as well as Joshua Johnson, president and chief executive officer of
Mariner, and Michele Strohm, Assistant Vice President of Mariner. ECF 1 (the “Complaint”). He
alleges that defendants failed to compensate him for overtime, in violation of the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. § 201 et seq.; the Maryland Wage and Hour Law, Md. Code
(2016 Repl. Vol., 2017 Supp.), § 3-401 et seq. of the Labor & Employment Article (“L.E”)
(“MWHL”); and the Maryland Wage Payment and Collection Law, L.E. § 3-501 et seq.
(“MWPCL”).1 In addition to the unpaid overtime wages, plaintiff seeks “liquidated and statutory
damages pursuant to the FLSA, MWHL, and MWPCL” as well as attorneys’ fees and costs.
Id. ¶ 2.
Now pending is plaintiff’s motion for conditional certification of a collective action (ECF
17) (the “Motion”), supported by several exhibits. ECF 17-1 to ECF 17-9. Specifically, Pooner
seeks conditional certification under the FLSA of “a nationwide class of all account representatives
and customer service representatives employed by Mariner and any of its related affiliates, from
1 Maryland’s Wage and Hour Law is the State equivalent to the FLSA. Newell v. Runnels, 407 Md. 578, 649, 649 n. 34, 967 A.2d 729, 771, 771 n. 34 (2009). the three year period preceding the date of the filing of this Motion (December 3, 2015) through
the date that this Motion is granted, who have worked for Mariner as an account representative or
customer service representative.” ECF 17 at 9 (internal footnote omitted). Defendants oppose the
Motion (ECF 20), supported by exhibits. ECF 20-1 to ECF 20-4. Plaintiff replied. ECF 23.
The Motion is fully briefed, and no hearing is necessary to resolve it. See Local
Rule 105.6. For the reasons that follow, I shall deny the Motion, without prejudice.
I. Factual Allegations
From June 2016 through April 9, 2018, Pooner was employed by Mariner, a personal
finance company. ECF 1, ¶ 20. He worked as an account representative in Maryland at branches
located in Pikesville and Woodlawn. ECF 1, ¶¶ 20, 23. Mariner has at least 118 branches in at
least 21 states. See ECF 17-4; ECF 17-5. According to Pooner, more than fifty similarly situated
employees nationwide have worked for Mariner in the last three years as account representatives
or customer service representatives, and they did not receive overtime wages. Id. ¶ 17.
Plaintiff alleges that Johnson, as president and chief executive officer of Mariner, has
complete operational control of the company and authority over hours worked and amounts paid.
Id. ¶ 14. He also alleges that Strohm, the company’s assistant vice president, is responsible for
informing all Mariner employees of its employment policies and practices. Id. ¶ 15. Strohm also
allegedly schedules employee shifts, supervises payroll operations, and sets and supervises
employee clock-in and clock-out requirements and practices. Id. And, she allegedly has the
authority to hire and terminate Mariner employees. Id.
Pooner asserts that he was paid an hourly wage throughout his entire employment with
Mariner (id. ¶ 20), with a final hourly wage of $16.00. Id. ¶ 22. He also alleges that all customer
service representatives and account representatives (the “other representatives”) were paid an
2 hourly wage and were not salaried. Id. ¶ 21. As an account representative, Pooner assisted loan
applicants with the personal loan process. Id. ¶ 24. He also screened applicants, accepted
applications, gathered personal and financial information, and verified employment of applicants.
Id. ¶ 25. Further, he assessed applicants’ ability to repay a personal loan, and he was involved in
processing liens. Id. ¶¶ 26, 27.
Pooner claims that he and the other representatives were scheduled to work all of the hours
that Mariner’s branch locations were open. Id. ¶¶ 29, 32, 35. Specifically, Pooner and the other
representatives were scheduled to work from 9:00 a.m. to 5:00 p.m. on Mondays, Wednesdays,
and Fridays; from 9:00 a.m. to 7:00 p.m. on Tuesdays; and from 9:00 a.m. to 5:30 p.m. on Fridays.
Id. ¶¶ 28, 30, 31, 33, 34, 36. They had a half-hour break each day. Id. ¶¶ 28, 30, 34.
Although Pooner and the other representatives were scheduled to work precisely 40 hours
each week (id. ¶ 39), Pooner alleges that he and the other representatives routinely worked more
than their 40 scheduled hours, without overtime payment. Id. ¶ 40. For example, if the branch was
behind on collections at the end of the month, he and other representatives were asked to come
into work on Saturday. Id. ¶¶ 37-38. The Complaint alleges that three policies operating
“separately and . . . together” caused plaintiff and the other representatives to “frequently [work]
‘off-the-clock’ hours in amounts that are more than de minimis under prevailing interpretations of
the FLSA.” Id. ¶¶ 41, 50.
First, plaintiff alleges that each Mariner branch has a “‘cash box,’ in which select personnel
are assigned the duties of accepting cash and check payments received from borrowers.” Id. ¶ 42.
When borrowers arrived at the branch just before closing, Pooner and other representatives
assigned to the cash box were allegedly “required to spend time post-closing to handle the currency
and checks, and tend to ‘close out’ duties.” Id. ¶¶ 41-42. These activities typically required Pooner
3 and other representatives to remain at the branch for 15 to 30 minutes after closing. Moreover,
Pooner and these representatives then allegedly had to “drive to the bank to make the deposit,”
which was 10 minutes away. Id. ¶ 44. According to the Complaint, after closing, Pooner and
other representatives had to spend 30 to 45 minutes on cash box duties. Id. ¶ 45.
Second, Pooner alleges that defendants imposed “stringent sales requirements.” Id. ¶ 46.
Plaintiff and the other representatives were “required to generate at least one loan per day, or
generate five (5) loans per week.” Id. Because of “the pressure to service customers during normal
business hours,” including customers who arrived just before closing, and because of the “sales
driven focus,” plaintiff alleges that they sometimes had to remain past closing hours. Id. ¶ 47.
Third, Pooner alleges that defendants maintained a timekeeping system designed to
prevent and deter employees from accurately reporting overtime hours. Id. ¶ 48. Plaintiff and the
other representatives had to complete and submit their time sheets online by Friday at the end of
each pay period. Id. However, if a representative entered hours that would result in overtime
payment, the overtime hours would not be approved. Id. Therefore, they were required “to
deliberately underreport their actual hours of work.” Id. ¶ 49.
According to Pooner, defendants knew that plaintiff and the other representatives worked
more than 40 hours per week, but did not pay them for the overtime hours. Id. ¶ 51. Pooner alleges
that when he raised the issue of unpaid overtime with Strohm, she said it was “‘part of the job.’”
Id. ¶ 52. On another occasion, when Pooner allegedly told Strohm that he had “to stay over and
close loans,” she replied “‘good.’” Id. ¶ 53. Pooner alleges that defendants willfully violated the
FLSA by failing to pay him and other similarly situated employees for overtime hours. Id. ¶ 54.
4 II. Discussion
A.
Congress enacted the FLSA in 1938 “to protect all covered workers from substandard
wages and oppressive working hours, ‘labor conditions [that are] detrimental to the maintenance
of the minimum standard of living necessary for health, efficiency and general well-being of
workers.’” Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 739 (1981) (quoting 29
U.S.C. § 202(a)) (alterations in Barrentine); see Encino Motorcars, LLC v. Navarro, 579 U.S.___,
136 S. Ct. 2117, 2121 (2016); Morrison v. Cnty. of Fairfax, Va., 826 F.3d 758, 761 (4th Cir. 2016);
see also McFeeley v. Jackson Street Entertainment, LLC, 825 F.3d 235, 240 (4th Cir. 2016)
(“Congress enacted the FLSA to protect ‘the rights of those who toil, of those who sacrifice a full
measure of their freedom and talents to the use and profit of others.’”) (citations omitted).
In particular, “the FLSA requires employers to pay overtime to covered employees who
work more than 40 hours in a week.” Encino Motorcars, LLC v. Navarro, 584 U.S. ___, 138 S.
Ct. 1134, 1138 (2018) (citation omitted); see Perez v. Mortgage Bankers Ass’n, 575 U.S.___, 135
S. Ct. 1199, 1204 (2015); Integrity Staffing Solutions, Inc. v. Busk, 574 U.S. 27, ___, 135 S. Ct.
513, 516 (2014); see also Harbourt v. PPE Casino Resorts Md., LLC, 820 F.3d 655, 658 (4th Cir.
2016) (“The FLSA requires that employers pay employees the minimum hourly wage ‘for all hours
worked.’”) (quoting Perez v. Mountaire Farms, Inc., 650 F.3d 350, 363 (4th Cir. 2011)).
Moreover, the FLSA has established the “general rule that employers must compensate each
employee ‘at a rate not less than one and one-half times the regular rate’ for all overtime hours that
an employee works.” Darveau v. Detecon, Inc., 515 F.3d 334, 337 (4th Cir. 2008) (quoting 29
U.S.C. § 207(a)(1)).
5 Thus, the FLSA is now “best understood as the ‘minimum wage/maximum hour law.”
Trejo v. Ryman Hospitality Properties, Inc., 795 F.3d 442, 446 (4th Cir. 2015) (citation omitted).
The Fourth Circuit explained in Monahan v. Cnty. of Chesterfield, Va., 95 F.3d 1263, 1266-67 (4th
Cir. 1996): “The two central themes of the FLSA are its minimum wage and overtime
requirements. . . . The FLSA is clearly structured to provide workers with specific minimum
protections against excessive work hours and substandard wages.” (Internal quotations omitted).
“Under the FLSA, plaintiffs may maintain a collective action against their employer for
violations under the act pursuant to 29 U.S.C. § 216(b).” Quinteros v. Sparkle Cleaning, Inc., 532
F. Supp. 2d 762. 771 (D. Md. 2008). Section 216(b) “establishes an ‘opt-in’ scheme, whereby
potential plaintiffs must affirmatively notify the court of their intentions to be a party to the suit.”
Quinteros, 532 F. Supp. 2d at 771.
Section 216(b) states, in pertinent part:
An action . . . may be maintained against any employer . . . in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.
Pursuant to § 216(b), “[d]eterminations of the appropriateness of conditional collective
action certification and court-facilitated notice are left to the court’s discretion.” Syrja v. Westat,
Inc., 756 F. Supp. 2d 682, 686 (D. Md. 2010). Generally, when assessing whether to certify a
collective action pursuant to the FLSA, district courts in this circuit adhere to a two-stage process.
See, e.g., Butler v. DirectSAT USA, LLC, 876 F. Supp. 2d 560, 566 (D. Md. 2012); see also Blake
v. Broadway Servs., Inc., CCB-18-086, 2018 WL 4374915, at *3 (D. Md. Sept. 13, 2018); Radfar
v. Rockville Auto Grp. LLC, GJH-16-3082, 2018 WL 2972485, at *4 (D. Md. June 12, 2018);
6 Flores v. Unity Disposal & Recycling, LLC, GJH-15-196, 2015 WL 1523018, at *2-3 (D. Md. Apr.
2, 2015); Rawls v. Augustine Home Health Care, Inc., 244 F.R.D. 298, 300 (D. Md. 2007).
“In the first stage, commonly referred to as the notice stage, the court makes a threshold
determination of whether the plaintiffs have demonstrated that potential class members are
similarly situated, such that court-facilitated notice to putative class members would be
appropriate.” Butler, 876 F. Supp. 2d at 566 (internal quotations omitted). The second stage is
sometimes referred to as the decertification stage. Butler, 876 F. Supp. 2d at 566. “In the second
stage, following the conclusion of discovery, the court engages in a more stringent inquiry to
determine whether the plaintiff class is [in fact] similarly situated in accordance with the
requirements of § 216, and renders a final decision regarding the propriety of proceeding as a
collective action.” Syrja, 756 F. Supp. 2d at 686 (internal quotations and citations omitted)
(alterations in Syrja).
The Motion pertains only to the first step of conditional certification. See ECF 17. The
central question is whether plaintiffs “are similarly situated in a way that suggests they were
victims of a common policy, scheme, or plan that violated the FLSA.” Desmond v. Alliance, Inc.,
CCB-14-3499, 2015 WL 2165115, at *3 (D. Md. May 7, 2015). So long as “the plaintiffs have
offered enough evidence for the court to make such a determination, and if differences between
individuals (whether with the same job or different job titles) do not make clear that a collective
action would be unmanageable . . . a notice-stage certification is appropriate.” Id. (internal
citations omitted); cf. Syrja, 756 F. Supp. 2d at 688 (denying conditional certification because “the
adjudication of multiple claims . . . would require the parties, the Court, and perhaps eventually a
jury, to engage in an unmanageable assortment of individualized factual inquiries”).
7 At the first stage, to warrant conditional certification, a plaintiff need only show that the
proposed members of the collective are “similarly situated” within the meaning of
29 U.S.C. § 216(b). Camper v. Home Quality Mgmt. Inc., 200 F.R.D. 516, 519 (D. Md. 2000)
(citations omitted). ‘“[S]imilarly situated’ need not mean ‘identical.”’ Bouthner v. Cleveland
Const., Inc., RDB-11-0244, 2012 WL 738578, at *4 (D. Md. Mar. 5, 2012) (citation omitted).
Moreover, at the stage of conditional certification for FLSA collective actions, plaintiffs generally
must make “only a relatively modest factual showing” as to the existence of a common policy,
scheme, or plan that violates the FLSA. Butler, 876 F. Supp. 2d at 566; see Marroquin v. Canales,
236 F.R.D. 257, 259 (D. Md. 2006).
Indeed, “[b]ecause the court has minimal evidence [at this stage], this determination is
made using a fairly lenient standard, and typically results in conditional certification of a
representative class.” Calderon v. Geico General Ins. Co., RWT-10-1958, 2011 WL 98197, at *4
(D. Md. Jan. 12, 2011) (quoting Yeibyo v. E-Park of DC, Inc., DKC-07-1919, 2008 WL 182502,
at *7 (D. Md. Jan. 18, 2008)) (second alteration in Calderon). However, plaintiffs must provide
“more than vague allegations with meager factual support, but [they] need not enable the court to
reach a conclusive determination whether a class of similarly situated plaintiffs exists.” Randolph
v. PowerComm Const., Inc., 7 F. Supp. 3d 561, 576 (D. Md. 2014) (citing Mancia, CCB-08-0273,
2008 WL 4735344, at *2) (alteration in Randolph and internal quotations and citations omitted).
And, “[f]actual disputes do not negate the appropriateness of court facilitated notice.” Camper,
200 F.R.D. at 520 (citations omitted).
However, to make the requisite showing, “[m]ere allegations in the complaint are not
sufficient; some factual showing by affidavit or otherwise must be made.” Camper, 200 F.R.D. at
520. Notably, “[p]laintiffs may rely on ‘[a]ffidavits or other means,’ such as declarations and
8 deposition testimony.” Butler, 876 F. Supp. 2d at 567 (quoting Williams v. Long, 585 F. Supp. 2d
679, 684-85 (D. Md. 2008)) (alterations in Butler). Based on the submissions, the court
“determines whether there is sufficient evidence to reasonably determine that the proposed class
members are similarly situated enough to conditionally certify the collective action and provide
potential class members with initial notice of the action and the opportunity to ‘opt-in.’” Houston,
591 F. Supp. at 831.
B.
Pooner has submitted six exhibits in support of his allegations. These include Pooner’s
Declaration (ECF 17-1), which primarily repeats the allegations contained in the Complaint. He
also filed a copy of an email (ECF 17-2) from Strohm to six Mariner branches, dated April 25,
2017, discussing the cash box duties. Strohm stated, id. (original omission):
So questions have come up over the deposit being dropped after hours, I am ok with the employee dropping the deposit to leave a few minutes early to accommodate them for dropping the bag, if unable to leave early due to branch schedule etc….managers please comp the time within the same period if need be.
Contrary to plaintiff’s allegations, the email suggests that Mariner made efforts to ensure
that employees did not need to work extra time to complete their cashbox duties. Nor does the
email suggest that defendants would not pay overtime if an employee worked more than 40 hours
in a week. Moreover, this email was sent only to Strohm’s district, which contains six branches; it
was not a nationwide email sent to all Mariner branches. See ECF 20-1, ¶ 7.
Plaintiff also submitted the Declaration of Gregory B. Herbers, Esq. (ECF 17-3), an
associate attorney at Hoffman Employment Law, LLC, the firm representing plaintiff in this
matter. Herbers states that he prepared and compiled a list of Account Representative Job Postings
(ECF 17-4) and over 200 pages of job postings for 118 offices in 21 states. ECF 17-5, ¶ 2. The
postings describe the job duties, the minimum hiring requirements, physical requirements of the
9 job, and compensation. Id. Herbers states that nearly all of the job postings for 118 separate
Mariner offices had identical “Responsibilities, “Physical Demands,” and “Benefits” sections. Id.
That is, the job postings were substantially the same. Id.
In his Declaration, Herbers also states that he found anonymous employee reviews
(ECF 17-6) of Mariner on Indeed.com and Glassdoor.com. ECF 17-5, ¶ 3. Specifically, he found
nine reviews on Mariner’s overtime practices. Id. As discussed, infra, plaintiff relies on these
anonymous reviews to argue that Mariner has failed to pay overtime to similarly situated Mariner
employees around the country.
Defendants contend that courts in this district routinely deny nationwide certification in the
absence of evidence demonstrating that the same FLSA violation existed throughout the employer.
ECF 20 at 11. Moreover, they maintain that these courts have denied conditional certification in
several cases in which the plaintiffs provided more evidence of uncompensated overtime than
Pooner has provided here. Id.
In Mitchel v. Crosby Corp., DKC 10-2349, 2012 WL 4005535 (D. Md. Sept. 10, 2012),
four loan underwriters working at a facility in McLean, Virginia for the Federal Home Loan
Mortgage Corporation (“Freddie Mac”) sought conditional certification of a nationwide class of
loan underwriters. Id. at *1. The four plaintiffs submitted declarations stating that they had worked
more than 40 hours per week without overtime pay. Id. at *3. The plaintiffs further declared that
the defendant employers knew that their employees could not meet their quotas in a 40-hour
workweek. They also asserted that defendants were aware of the overtime work but nonetheless
instructed them not to report more than 40 hours per week. Id. at *3. Additionally, all four
plaintiffs asserted that they had personal knowledge of other underwriters who were not paid for
overtime hours. Nevertheless, the court denied their motion as to nationwide certification,
10 concluding that the plaintiffs had “offered no evidence of Defendants’ failure to pay overtime at
any other Freddie Mac facilities” and had therefore “failed to meet their burden with respect to
Defendants’ policies outside of the McClean, Virginia facility.” Id. Absent an evidentiary
showing that underwriters at other Freddie Mac facilities were improperly denied overtime pay,
the court refused to grant a nationwide class. Id.
Similarly, in Andrade v. Aerotek, Inc., CCB-08-2668, 2009 WL 2757099 (D. Md. Aug. 26,
2009), six recruiter trainees moved for conditional certification of a nationwide class of certain
recruiters for an international staffing services company with approximately 150 offices in the
United States. Four of the plaintiffs were located at the employer’s Charlotte, North Carolina
office, and the other two were located at two California offices. Id. at *2. In support of their
motion, plaintiffs relied on their own testimony in depositions as well as time sheets recording
hours worked each day. Id. at *4, n. 12. Because “all of the plaintiffs who have offered testimony
indicating the existence of this under-reporting policy were former employees of Aerotek’s
Charlotte office,” Judge Blake found sufficient evidence that the employees in that office were
subject to a common policy of underreporting work hours. Id. at *5. Judge Blake also concluded
that members of the Huntersville, North Carolina office were subject to that policy because the
policy of underreporting work hours was allegedly enforced by the same manager at both North
Carolina offices. Id. at *5, n. 13. However, the court refused to conditionally certify a nationwide
class because there existed “no evidence that Recruiter Trainees were discouraged from reporting
overtime while being made to work overtime in any Aerotek divisions” other than the Charlotte
and Huntersville offices. Id.
Defendants also point to Camper, 200 F.R.D. 516, in which Judge Blake denied
certification of a nationwide class of 1700 employees working across 47 nursing home facilities.
11 The eleven plaintiffs alleged that they frequently worked through their lunch breaks but were not
compensated for that time. Id. at 516. Plaintiffs provided evidence establishing that the defendant
employer had a nationwide “policy of automatically deducting a 30–minute unpaid daily lunch
break from the pay of all hourly employees who work at least six hours a day.” Id. at 520. They
also provided testimony from employees at one facility that their supervisors knew of their unpaid
work. Again, nationwide certification of a collective was denied, and conditional certification was
granted only as to the location in which plaintiffs offered evidence of personal knowledge of
overtime violations. It was not enough for plaintiffs to show that the employer maintained a
nationwide policy, when there was no evidence of knowledge
Notably, in each of these cases, the plaintiffs produced more evidence than Pooner has
here, yet collective certification for a nationwide class was still denied. As indicated, Pooner relies
on his own Declaration, an email from Strohm, job postings and job descriptions, and anonymous
online reviews of Mariner. He offers no declarations from other representatives at the two Mariner
branches at which he worked, nor from other branches of Mariner around the country. Indeed,
plaintiff asserts only that he “witnessed other account representatives similarly work over forty
hours in a workweek.” ECF 17-1, ¶ 7. But, he provides no evidence that these employees were
denied overtime compensation.
Nevertheless, plaintiff maintains that the anonymous reviews of Mariner (ECF 17-6), as
well as the job descriptions (ECF 17-4), suffice to establish that the representatives of Mariner
were subject to a common scheme of uncompensated overtime. ECF 17 at 14. Plaintiff contends
that his own Declaration is sufficient preliminary evidence that he and other representatives at
Mariner were subject to a common scheme of overtime violations. ECF 23 at 10. Plaintiff relies
on Williams v. ezStorage Corp., RDB-10-3335, 2011 WL 1539941, at *3 (D. Md. Apr. 21, 2011),
12 in which the court conditionally certified a case involving 45 separate locations of work based on
a single affidavit. In that case, the plaintiffs alleged that they were required to perform month-end
recordkeeping procedures without compensation. Id. at *1. Conditional certification was granted
because all “residential and relief managers” were subject to the same pay and work policies. Id.
at *3.
But, as even plaintiff acknowledges, the court in that case did not rely on the single affidavit
alone. See ECF 23 at 11. Rather, the affidavit was corroborated by the defendant’s stipulation that
“all Resident and Relief Managers [were] uniformly subject to the same policies, rules, pay
systems, hours, and benefits” and by sections of the defendant’s operations manual. ezStorage
Corp., 2011 WL 1539941, at *3.
Here, defendants have not stipulated to the existence of such a company-wide policy.
Nevertheless, plaintiff maintains that defendants provided a constructive stipulation when
Matthew Coogan, Human Resources Manager for Mariner stated in his Affidavit, ECF 23 at 11
(quoting ECF 20-1, ¶ 9):
“Mariner Finance’s policy is to discourage overtime but if a representative has to work ‘outside normal hours the branch may direct the employee to arrive late or leave early within the same work week in order to maintain a 40 hour work week. If a Mariner Finance representative works over 40 hours in a work week, the representative is compensated for those hours at 1.5 hours the hourly rate.”
However, Coogan’s statement contains no admission of wrongdoing or of an improper
policy. Coogan’s statement suggests that all account and customer service representatives are
subject to a similar method of overtime compensation, but there is no evidence that other
representatives worked overtime and were not compensated for it.
Plaintiff also claims that conditional certification is merited because “the production of
identical job descriptions can provide the basis for a finding of a group of similarly situated
13 employees for the purpose of conditional certification.” ECF 17 at 14 (citing Chin v. Tile Shop,
LLC, 57 F. Supp. 3d 1075 (D. Minn. 2014), and Shaia v. Harvest Management Sub, LLC, 306
F.R.D. 268 (N.D. Cal. 2015)). Pooner points to the similar job descriptions (ECF 17-4) for
Mariner’s account and customer service representatives at 118 separate offices. See also ECF 17-3,
¶ 2. He reasons that because the representatives were required to perform the same duties, which
allegedly cause the overtime hours, all representatives with those duties would be entitled to
overtime.
As indicated, plaintiff relies on, Chin, 57 F. Supp. 3d 1075, and Shaia, 306 F.R.D. 268, to
establish that identical or near identical job descriptions can suffice for conditional certification.
In those cases, the plaintiffs were misclassified as exempt under the FLSA, and used the similar
job descriptions to demonstrate that all employees with that position were misclassified. But,
Pooner’s case is not a misclassification case. Rather, it is an “off the clock” case in which the
plaintiff alleges that he worked off the clock without receiving overtime pay. As defendant notes,
“nothing in the job description [that] suggest[s] non-exempt representatives work overtime without
compensation.” ECF 20 at 16. Accordingly, plaintiff’s reliance on Chin and Shaia is misplaced,
and his argument is unavailing.
If the Court does not conditionally certify a nationwide class, Pooner asks the Court to
allow time for him to conduct discovery. ECF 23 at 16. Accordingly, the Court need not consider
whether Pooner has provided adequate evidence to warrant conditional certification of a narrower
class. See, e.g., Sjoblom v. Charter Commc’ns, LLC, No. 3:07-CV-0451-BBC, 2007 WL 4560541,
at *9 (W.D. Wis. Dec. 19, 2007) (allowing plaintiff additional time to file discovery materials in
support of conditional certification of a statewide or nationwide class). Accordingly, the parties
shall submit, jointly if possible, a draft scheduling order to the Court.
14 III. Conclusion
In the absence of some evidentiary showing of FLSA violations at other Mariner facilities,
the Court will not certify a nationwide class. For the foregoing reasons, plaintiff’s Motion shall be
denied, without prejudice. An Order follows.
Date: June 20, 2019 /s/ Ellen L. Hollander United States District Judge
15 | 2019-06-20 | [
"IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND MICHAEL POONER, Plaintiff, v. Civil Action No. ELH-18-1736 MARINER FINANCE, LLC, et al., Defendants. MEMORANDUM OPINION Plaintiff Michael Pooner filed a collective action against his former employer, Mariner Finance, LLC (“Mariner”), as well as Joshua Johnson, president and chief executive officer of Mariner, and Michele Strohm, Assistant Vice President of Mariner. ECF 1 (the “Complaint”). He alleges that defendants failed to compensate him for overtime, in violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq. ; the Maryland Wage and Hour Law, Md. Code (2016 Repl. Vol., 2017 Supp. ), § 3-401 et seq. of the Labor & Employment Article (“L.E”) (“MWHL”); and the Maryland Wage Payment and Collection Law, L.E. § 3-501 et seq. (“MWPCL”).1 In addition to the unpaid overtime wages, plaintiff seeks “liquidated and statutory damages pursuant to the FLSA, MWHL, and MWPCL” as well as attorneys’ fees and costs. Id.",
"¶ 2. Now pending is plaintiff’s motion for conditional certification of a collective action (ECF 17) (the “Motion”), supported by several exhibits. ECF 17-1 to ECF 17-9. Specifically, Pooner seeks conditional certification under the FLSA of “a nationwide class of all account representatives and customer service representatives employed by Mariner and any of its related affiliates, from 1 Maryland’s Wage and Hour Law is the State equivalent to the FLSA. Newell v. Runnels, 407 Md. 578, 649, 649 n. 34, 967 A.2d 729, 771, 771 n. 34 (2009). the three year period preceding the date of the filing of this Motion (December 3, 2015) through the date that this Motion is granted, who have worked for Mariner as an account representative or customer service representative.” ECF 17 at 9 (internal footnote omitted). Defendants oppose the Motion (ECF 20), supported by exhibits.",
"ECF 20-1 to ECF 20-4. Plaintiff replied. ECF 23. The Motion is fully briefed, and no hearing is necessary to resolve it. See Local Rule 105.6. For the reasons that follow, I shall deny the Motion, without prejudice. I. Factual Allegations From June 2016 through April 9, 2018, Pooner was employed by Mariner, a personal finance company. ECF 1, ¶ 20. He worked as an account representative in Maryland at branches located in Pikesville and Woodlawn. ECF 1, ¶¶ 20, 23. Mariner has at least 118 branches in at least 21 states. See ECF 17-4; ECF 17-5. According to Pooner, more than fifty similarly situated employees nationwide have worked for Mariner in the last three years as account representatives or customer service representatives, and they did not receive overtime wages. Id. ¶ 17.",
"Plaintiff alleges that Johnson, as president and chief executive officer of Mariner, has complete operational control of the company and authority over hours worked and amounts paid. Id. ¶ 14. He also alleges that Strohm, the company’s assistant vice president, is responsible for informing all Mariner employees of its employment policies and practices. Id. ¶ 15. Strohm also allegedly schedules employee shifts, supervises payroll operations, and sets and supervises employee clock-in and clock-out requirements and practices. Id. And, she allegedly has the authority to hire and terminate Mariner employees. Id. Pooner asserts that he was paid an hourly wage throughout his entire employment with Mariner (id. ¶ 20), with a final hourly wage of $16.00. Id. ¶ 22. He also alleges that all customer service representatives and account representatives (the “other representatives”) were paid an 2 hourly wage and were not salaried. Id.",
"¶ 21. As an account representative, Pooner assisted loan applicants with the personal loan process. Id. ¶ 24. He also screened applicants, accepted applications, gathered personal and financial information, and verified employment of applicants. Id. ¶ 25. Further, he assessed applicants’ ability to repay a personal loan, and he was involved in processing liens. Id. ¶¶ 26, 27. Pooner claims that he and the other representatives were scheduled to work all of the hours that Mariner’s branch locations were open. Id. ¶¶ 29, 32, 35. Specifically, Pooner and the other representatives were scheduled to work from 9:00 a.m. to 5:00 p.m. on Mondays, Wednesdays, and Fridays; from 9:00 a.m. to 7:00 p.m. on Tuesdays; and from 9:00 a.m. to 5:30 p.m. on Fridays.",
"Id. ¶¶ 28, 30, 31, 33, 34, 36. They had a half-hour break each day. Id. ¶¶ 28, 30, 34. Although Pooner and the other representatives were scheduled to work precisely 40 hours each week (id. ¶ 39), Pooner alleges that he and the other representatives routinely worked more than their 40 scheduled hours, without overtime payment. Id. ¶ 40. For example, if the branch was behind on collections at the end of the month, he and other representatives were asked to come into work on Saturday. Id. ¶¶ 37-38. The Complaint alleges that three policies operating “separately and . . . together” caused plaintiff and the other representatives to “frequently [work] ‘off-the-clock’ hours in amounts that are more than de minimis under prevailing interpretations of the FLSA.” Id. ¶¶ 41, 50. First, plaintiff alleges that each Mariner branch has a “‘cash box,’ in which select personnel are assigned the duties of accepting cash and check payments received from borrowers.” Id. ¶ 42.",
"When borrowers arrived at the branch just before closing, Pooner and other representatives assigned to the cash box were allegedly “required to spend time post-closing to handle the currency and checks, and tend to ‘close out’ duties.” Id. ¶¶ 41-42. These activities typically required Pooner 3 and other representatives to remain at the branch for 15 to 30 minutes after closing. Moreover, Pooner and these representatives then allegedly had to “drive to the bank to make the deposit,” which was 10 minutes away. Id. ¶ 44. According to the Complaint, after closing, Pooner and other representatives had to spend 30 to 45 minutes on cash box duties. Id. ¶ 45. Second, Pooner alleges that defendants imposed “stringent sales requirements.” Id. ¶ 46. Plaintiff and the other representatives were “required to generate at least one loan per day, or generate five (5) loans per week.” Id. Because of “the pressure to service customers during normal business hours,” including customers who arrived just before closing, and because of the “sales driven focus,” plaintiff alleges that they sometimes had to remain past closing hours.",
"Id. ¶ 47. Third, Pooner alleges that defendants maintained a timekeeping system designed to prevent and deter employees from accurately reporting overtime hours. Id. ¶ 48. Plaintiff and the other representatives had to complete and submit their time sheets online by Friday at the end of each pay period. Id. However, if a representative entered hours that would result in overtime payment, the overtime hours would not be approved. Id. Therefore, they were required “to deliberately underreport their actual hours of work.” Id. ¶ 49. According to Pooner, defendants knew that plaintiff and the other representatives worked more than 40 hours per week, but did not pay them for the overtime hours. Id. ¶ 51.",
"Pooner alleges that when he raised the issue of unpaid overtime with Strohm, she said it was “‘part of the job.’” Id. ¶ 52. On another occasion, when Pooner allegedly told Strohm that he had “to stay over and close loans,” she replied “‘good.’” Id. ¶ 53. Pooner alleges that defendants willfully violated the FLSA by failing to pay him and other similarly situated employees for overtime hours. Id. ¶ 54. 4 II. Discussion A. Congress enacted the FLSA in 1938 “to protect all covered workers from substandard wages and oppressive working hours, ‘labor conditions [that are] detrimental to the maintenance of the minimum standard of living necessary for health, efficiency and general well-being of workers.’” Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 739 (1981) (quoting 29 U.S.C. § 202(a)) (alterations in Barrentine); see Encino Motorcars, LLC v. Navarro, 579 U.S.___, 136 S. Ct. 2117, 2121 (2016); Morrison v. Cnty. of Fairfax, Va., 826 F.3d 758, 761 (4th Cir. 2016); see also McFeeley v. Jackson Street Entertainment, LLC, 825 F.3d 235, 240 (4th Cir. 2016) (“Congress enacted the FLSA to protect ‘the rights of those who toil, of those who sacrifice a full measure of their freedom and talents to the use and profit of others.’”) (citations omitted).",
"In particular, “the FLSA requires employers to pay overtime to covered employees who work more than 40 hours in a week.” Encino Motorcars, LLC v. Navarro, 584 U.S. ___, 138 S. Ct. 1134, 1138 (2018) (citation omitted); see Perez v. Mortgage Bankers Ass’n, 575 U.S.___, 135 S. Ct. 1199, 1204 (2015); Integrity Staffing Solutions, Inc. v. Busk, 574 U.S. 27, ___, 135 S. Ct. 513, 516 (2014); see also Harbourt v. PPE Casino Resorts Md., LLC, 820 F.3d 655, 658 (4th Cir. 2016) (“The FLSA requires that employers pay employees the minimum hourly wage ‘for all hours worked.’”) (quoting Perez v. Mountaire Farms, Inc., 650 F.3d 350, 363 (4th Cir.",
"2011)). Moreover, the FLSA has established the “general rule that employers must compensate each employee ‘at a rate not less than one and one-half times the regular rate’ for all overtime hours that an employee works.” Darveau v. Detecon, Inc., 515 F.3d 334, 337 (4th Cir. 2008) (quoting 29 U.S.C. § 207(a)(1)). 5 Thus, the FLSA is now “best understood as the ‘minimum wage/maximum hour law.” Trejo v. Ryman Hospitality Properties, Inc., 795 F.3d 442, 446 (4th Cir. 2015) (citation omitted). The Fourth Circuit explained in Monahan v. Cnty. of Chesterfield, Va., 95 F.3d 1263, 1266-67 (4th Cir. 1996): “The two central themes of the FLSA are its minimum wage and overtime requirements. . . . The FLSA is clearly structured to provide workers with specific minimum protections against excessive work hours and substandard wages.” (Internal quotations omitted).",
"“Under the FLSA, plaintiffs may maintain a collective action against their employer for violations under the act pursuant to 29 U.S.C. § 216(b).” Quinteros v. Sparkle Cleaning, Inc., 532 F. Supp. 2d 762. 771 (D. Md. 2008). Section 216(b) “establishes an ‘opt-in’ scheme, whereby potential plaintiffs must affirmatively notify the court of their intentions to be a party to the suit.” Quinteros, 532 F. Supp. 2d at 771. Section 216(b) states, in pertinent part: An action . .",
". may be maintained against any employer . . . in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought. Pursuant to § 216(b), “[d]eterminations of the appropriateness of conditional collective action certification and court-facilitated notice are left to the court’s discretion.” Syrja v. Westat, Inc., 756 F. Supp. 2d 682, 686 (D. Md. 2010). Generally, when assessing whether to certify a collective action pursuant to the FLSA, district courts in this circuit adhere to a two-stage process. See, e.g., Butler v. DirectSAT USA, LLC, 876 F. Supp.",
"2d 560, 566 (D. Md. 2012); see also Blake v. Broadway Servs., Inc., CCB-18-086, 2018 WL 4374915, at *3 (D. Md. Sept. 13, 2018); Radfar v. Rockville Auto Grp. LLC, GJH-16-3082, 2018 WL 2972485, at *4 (D. Md. June 12, 2018); 6 Flores v. Unity Disposal & Recycling, LLC, GJH-15-196, 2015 WL 1523018, at *2-3 (D. Md. Apr. 2, 2015); Rawls v. Augustine Home Health Care, Inc., 244 F.R.D. 298, 300 (D. Md. 2007). “In the first stage, commonly referred to as the notice stage, the court makes a threshold determination of whether the plaintiffs have demonstrated that potential class members are similarly situated, such that court-facilitated notice to putative class members would be appropriate.” Butler, 876 F. Supp. 2d at 566 (internal quotations omitted). The second stage is sometimes referred to as the decertification stage. Butler, 876 F. Supp.",
"2d at 566. “In the second stage, following the conclusion of discovery, the court engages in a more stringent inquiry to determine whether the plaintiff class is [in fact] similarly situated in accordance with the requirements of § 216, and renders a final decision regarding the propriety of proceeding as a collective action.” Syrja, 756 F. Supp. 2d at 686 (internal quotations and citations omitted) (alterations in Syrja). The Motion pertains only to the first step of conditional certification. See ECF 17. The central question is whether plaintiffs “are similarly situated in a way that suggests they were victims of a common policy, scheme, or plan that violated the FLSA.” Desmond v. Alliance, Inc., CCB-14-3499, 2015 WL 2165115, at *3 (D. Md. May 7, 2015).",
"So long as “the plaintiffs have offered enough evidence for the court to make such a determination, and if differences between individuals (whether with the same job or different job titles) do not make clear that a collective action would be unmanageable . . . a notice-stage certification is appropriate.” Id. (internal citations omitted); cf. Syrja, 756 F. Supp. 2d at 688 (denying conditional certification because “the adjudication of multiple claims . . . would require the parties, the Court, and perhaps eventually a jury, to engage in an unmanageable assortment of individualized factual inquiries”).",
"7 At the first stage, to warrant conditional certification, a plaintiff need only show that the proposed members of the collective are “similarly situated” within the meaning of 29 U.S.C. § 216(b). Camper v. Home Quality Mgmt. Inc., 200 F.R.D. 516, 519 (D. Md. 2000) (citations omitted). ‘“[S]imilarly situated’ need not mean ‘identical.”’ Bouthner v. Cleveland Const., Inc., RDB-11-0244, 2012 WL 738578, at *4 (D. Md. Mar. 5, 2012) (citation omitted). Moreover, at the stage of conditional certification for FLSA collective actions, plaintiffs generally must make “only a relatively modest factual showing” as to the existence of a common policy, scheme, or plan that violates the FLSA.",
"Butler, 876 F. Supp. 2d at 566; see Marroquin v. Canales, 236 F.R.D. 257, 259 (D. Md. 2006). Indeed, “[b]ecause the court has minimal evidence [at this stage], this determination is made using a fairly lenient standard, and typically results in conditional certification of a representative class.” Calderon v. Geico General Ins. Co., RWT-10-1958, 2011 WL 98197, at *4 (D. Md. Jan. 12, 2011) (quoting Yeibyo v. E-Park of DC, Inc., DKC-07-1919, 2008 WL 182502, at *7 (D. Md. Jan. 18, 2008)) (second alteration in Calderon). However, plaintiffs must provide “more than vague allegations with meager factual support, but [they] need not enable the court to reach a conclusive determination whether a class of similarly situated plaintiffs exists.” Randolph v. PowerComm Const., Inc., 7 F. Supp.",
"3d 561, 576 (D. Md. 2014) (citing Mancia, CCB-08-0273, 2008 WL 4735344, at *2) (alteration in Randolph and internal quotations and citations omitted). And, “[f]actual disputes do not negate the appropriateness of court facilitated notice.” Camper, 200 F.R.D. at 520 (citations omitted). However, to make the requisite showing, “[m]ere allegations in the complaint are not sufficient; some factual showing by affidavit or otherwise must be made.” Camper, 200 F.R.D. at 520. Notably, “[p]laintiffs may rely on ‘[a]ffidavits or other means,’ such as declarations and 8 deposition testimony.” Butler, 876 F. Supp.",
"2d at 567 (quoting Williams v. Long, 585 F. Supp. 2d 679, 684-85 (D. Md. 2008)) (alterations in Butler). Based on the submissions, the court “determines whether there is sufficient evidence to reasonably determine that the proposed class members are similarly situated enough to conditionally certify the collective action and provide potential class members with initial notice of the action and the opportunity to ‘opt-in.’” Houston, 591 F. Supp. at 831. B. Pooner has submitted six exhibits in support of his allegations. These include Pooner’s Declaration (ECF 17-1), which primarily repeats the allegations contained in the Complaint. He also filed a copy of an email (ECF 17-2) from Strohm to six Mariner branches, dated April 25, 2017, discussing the cash box duties. Strohm stated, id. (original omission): So questions have come up over the deposit being dropped after hours, I am ok with the employee dropping the deposit to leave a few minutes early to accommodate them for dropping the bag, if unable to leave early due to branch schedule etc….managers please comp the time within the same period if need be.",
"Contrary to plaintiff’s allegations, the email suggests that Mariner made efforts to ensure that employees did not need to work extra time to complete their cashbox duties. Nor does the email suggest that defendants would not pay overtime if an employee worked more than 40 hours in a week. Moreover, this email was sent only to Strohm’s district, which contains six branches; it was not a nationwide email sent to all Mariner branches. See ECF 20-1, ¶ 7. Plaintiff also submitted the Declaration of Gregory B. Herbers, Esq. (ECF 17-3), an associate attorney at Hoffman Employment Law, LLC, the firm representing plaintiff in this matter. Herbers states that he prepared and compiled a list of Account Representative Job Postings (ECF 17-4) and over 200 pages of job postings for 118 offices in 21 states.",
"ECF 17-5, ¶ 2. The postings describe the job duties, the minimum hiring requirements, physical requirements of the 9 job, and compensation. Id. Herbers states that nearly all of the job postings for 118 separate Mariner offices had identical “Responsibilities, “Physical Demands,” and “Benefits” sections. Id. That is, the job postings were substantially the same. Id. In his Declaration, Herbers also states that he found anonymous employee reviews (ECF 17-6) of Mariner on Indeed.com and Glassdoor.com. ECF 17-5, ¶ 3. Specifically, he found nine reviews on Mariner’s overtime practices. Id. As discussed, infra, plaintiff relies on these anonymous reviews to argue that Mariner has failed to pay overtime to similarly situated Mariner employees around the country. Defendants contend that courts in this district routinely deny nationwide certification in the absence of evidence demonstrating that the same FLSA violation existed throughout the employer. ECF 20 at 11. Moreover, they maintain that these courts have denied conditional certification in several cases in which the plaintiffs provided more evidence of uncompensated overtime than Pooner has provided here.",
"Id. In Mitchel v. Crosby Corp., DKC 10-2349, 2012 WL 4005535 (D. Md. Sept. 10, 2012), four loan underwriters working at a facility in McLean, Virginia for the Federal Home Loan Mortgage Corporation (“Freddie Mac”) sought conditional certification of a nationwide class of loan underwriters. Id. at *1. The four plaintiffs submitted declarations stating that they had worked more than 40 hours per week without overtime pay. Id. at *3. The plaintiffs further declared that the defendant employers knew that their employees could not meet their quotas in a 40-hour workweek. They also asserted that defendants were aware of the overtime work but nonetheless instructed them not to report more than 40 hours per week.",
"Id. at *3. Additionally, all four plaintiffs asserted that they had personal knowledge of other underwriters who were not paid for overtime hours. Nevertheless, the court denied their motion as to nationwide certification, 10 concluding that the plaintiffs had “offered no evidence of Defendants’ failure to pay overtime at any other Freddie Mac facilities” and had therefore “failed to meet their burden with respect to Defendants’ policies outside of the McClean, Virginia facility.” Id. Absent an evidentiary showing that underwriters at other Freddie Mac facilities were improperly denied overtime pay, the court refused to grant a nationwide class. Id.",
"Similarly, in Andrade v. Aerotek, Inc., CCB-08-2668, 2009 WL 2757099 (D. Md. Aug. 26, 2009), six recruiter trainees moved for conditional certification of a nationwide class of certain recruiters for an international staffing services company with approximately 150 offices in the United States. Four of the plaintiffs were located at the employer’s Charlotte, North Carolina office, and the other two were located at two California offices. Id.",
"at *2. In support of their motion, plaintiffs relied on their own testimony in depositions as well as time sheets recording hours worked each day. Id. at *4, n. 12. Because “all of the plaintiffs who have offered testimony indicating the existence of this under-reporting policy were former employees of Aerotek’s Charlotte office,” Judge Blake found sufficient evidence that the employees in that office were subject to a common policy of underreporting work hours. Id. at *5. Judge Blake also concluded that members of the Huntersville, North Carolina office were subject to that policy because the policy of underreporting work hours was allegedly enforced by the same manager at both North Carolina offices. Id.",
"at *5, n. 13. However, the court refused to conditionally certify a nationwide class because there existed “no evidence that Recruiter Trainees were discouraged from reporting overtime while being made to work overtime in any Aerotek divisions” other than the Charlotte and Huntersville offices. Id. Defendants also point to Camper, 200 F.R.D. 516, in which Judge Blake denied certification of a nationwide class of 1700 employees working across 47 nursing home facilities. 11 The eleven plaintiffs alleged that they frequently worked through their lunch breaks but were not compensated for that time.",
"Id. at 516. Plaintiffs provided evidence establishing that the defendant employer had a nationwide “policy of automatically deducting a 30–minute unpaid daily lunch break from the pay of all hourly employees who work at least six hours a day.” Id. at 520. They also provided testimony from employees at one facility that their supervisors knew of their unpaid work. Again, nationwide certification of a collective was denied, and conditional certification was granted only as to the location in which plaintiffs offered evidence of personal knowledge of overtime violations. It was not enough for plaintiffs to show that the employer maintained a nationwide policy, when there was no evidence of knowledge Notably, in each of these cases, the plaintiffs produced more evidence than Pooner has here, yet collective certification for a nationwide class was still denied. As indicated, Pooner relies on his own Declaration, an email from Strohm, job postings and job descriptions, and anonymous online reviews of Mariner. He offers no declarations from other representatives at the two Mariner branches at which he worked, nor from other branches of Mariner around the country.",
"Indeed, plaintiff asserts only that he “witnessed other account representatives similarly work over forty hours in a workweek.” ECF 17-1, ¶ 7. But, he provides no evidence that these employees were denied overtime compensation. Nevertheless, plaintiff maintains that the anonymous reviews of Mariner (ECF 17-6), as well as the job descriptions (ECF 17-4), suffice to establish that the representatives of Mariner were subject to a common scheme of uncompensated overtime. ECF 17 at 14. Plaintiff contends that his own Declaration is sufficient preliminary evidence that he and other representatives at Mariner were subject to a common scheme of overtime violations. ECF 23 at 10.",
"Plaintiff relies on Williams v. ezStorage Corp., RDB-10-3335, 2011 WL 1539941, at *3 (D. Md. Apr. 21, 2011), 12 in which the court conditionally certified a case involving 45 separate locations of work based on a single affidavit. In that case, the plaintiffs alleged that they were required to perform month-end recordkeeping procedures without compensation. Id. at *1. Conditional certification was granted because all “residential and relief managers” were subject to the same pay and work policies. Id. at *3.",
"But, as even plaintiff acknowledges, the court in that case did not rely on the single affidavit alone. See ECF 23 at 11. Rather, the affidavit was corroborated by the defendant’s stipulation that “all Resident and Relief Managers [were] uniformly subject to the same policies, rules, pay systems, hours, and benefits” and by sections of the defendant’s operations manual. ezStorage Corp., 2011 WL 1539941, at *3. Here, defendants have not stipulated to the existence of such a company-wide policy. Nevertheless, plaintiff maintains that defendants provided a constructive stipulation when Matthew Coogan, Human Resources Manager for Mariner stated in his Affidavit, ECF 23 at 11 (quoting ECF 20-1, ¶ 9): “Mariner Finance’s policy is to discourage overtime but if a representative has to work ‘outside normal hours the branch may direct the employee to arrive late or leave early within the same work week in order to maintain a 40 hour work week.",
"If a Mariner Finance representative works over 40 hours in a work week, the representative is compensated for those hours at 1.5 hours the hourly rate.” However, Coogan’s statement contains no admission of wrongdoing or of an improper policy. Coogan’s statement suggests that all account and customer service representatives are subject to a similar method of overtime compensation, but there is no evidence that other representatives worked overtime and were not compensated for it. Plaintiff also claims that conditional certification is merited because “the production of identical job descriptions can provide the basis for a finding of a group of similarly situated 13 employees for the purpose of conditional certification.” ECF 17 at 14 (citing Chin v. Tile Shop, LLC, 57 F. Supp. 3d 1075 (D. Minn. 2014), and Shaia v. Harvest Management Sub, LLC, 306 F.R.D.",
"268 (N.D. Cal. 2015)). Pooner points to the similar job descriptions (ECF 17-4) for Mariner’s account and customer service representatives at 118 separate offices. See also ECF 17-3, ¶ 2. He reasons that because the representatives were required to perform the same duties, which allegedly cause the overtime hours, all representatives with those duties would be entitled to overtime. As indicated, plaintiff relies on, Chin, 57 F. Supp. 3d 1075, and Shaia, 306 F.R.D. 268, to establish that identical or near identical job descriptions can suffice for conditional certification. In those cases, the plaintiffs were misclassified as exempt under the FLSA, and used the similar job descriptions to demonstrate that all employees with that position were misclassified. But, Pooner’s case is not a misclassification case. Rather, it is an “off the clock” case in which the plaintiff alleges that he worked off the clock without receiving overtime pay. As defendant notes, “nothing in the job description [that] suggest[s] non-exempt representatives work overtime without compensation.” ECF 20 at 16.",
"Accordingly, plaintiff’s reliance on Chin and Shaia is misplaced, and his argument is unavailing. If the Court does not conditionally certify a nationwide class, Pooner asks the Court to allow time for him to conduct discovery. ECF 23 at 16. Accordingly, the Court need not consider whether Pooner has provided adequate evidence to warrant conditional certification of a narrower class. See, e.g., Sjoblom v. Charter Commc’ns, LLC, No. 3:07-CV-0451-BBC, 2007 WL 4560541, at *9 (W.D.",
"Wis. Dec. 19, 2007) (allowing plaintiff additional time to file discovery materials in support of conditional certification of a statewide or nationwide class). Accordingly, the parties shall submit, jointly if possible, a draft scheduling order to the Court. 14 III. Conclusion In the absence of some evidentiary showing of FLSA violations at other Mariner facilities, the Court will not certify a nationwide class. For the foregoing reasons, plaintiff’s Motion shall be denied, without prejudice. An Order follows. Date: June 20, 2019 /s/ Ellen L. Hollander United States District Judge 15"
] | https://www.courtlistener.com/api/rest/v3/recap-documents/96028556/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Case: 1:17-md-02804-DAP Doc #: 1957-58 Filed: 07/23/19 1 of 3. PageID #: 128349
EXHIBIT 58 Case: 1:17-md-02804-DAP Doc #: 1957-58 Filed: 07/23/19 2 of 3. PageID #: 128350 Case: 1:17-md-02804-DAP Doc #: 1957-58 Filed: 07/23/19 3 of 3. PageID #: 128351 | 2019-07-23 | [
"Case: 1:17-md-02804-DAP Doc #: 1957-58 Filed: 07/23/19 1 of 3. PageID #: 128349 EXHIBIT 58 Case: 1:17-md-02804-DAP Doc #: 1957-58 Filed: 07/23/19 2 of 3. PageID #: 128350 Case: 1:17-md-02804-DAP Doc #: 1957-58 Filed: 07/23/19 3 of 3. PageID #: 128351"
] | https://www.courtlistener.com/api/rest/v3/recap-documents/120662992/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Case 3:19-mj-23473-MDD-JLS Document 58 Filed 10/23/20 PageID.516 Page 1 of 1
1 2 3 4 UNITED STATES DISTRICT COURT 5 SOUTHERN DISTRICT OF CALIFORNIA 6 7 UNITED STATES OF AMERICA, Case No.: 19mj23473-MDD-JLS 8 Plaintiff/Appellee, ORDER SETTING BRIEFING SCHEDULE 9 v. ON APPEAL
10 PEDRO VALENCIA-AYALA, 11 Defendant/Appellant. 12 13 On October 22, 2020, Defendant Pedro Valencia-Ayala, through counsel, filed a 14 Notice of Appeal to the District Court from the judgment of the Magistrate Judge entered 15 on October 21, 2020. The following briefing schedule is hereby imposed: 16 Defendant/Appellant shall file and serve his opening memorandum on or before 17 November 13, 2020. The memorandum shall include any and all documents relevant to 18 the determination of the issues raised on appeal. Plaintiff/Appellee shall file a responsive 19 memorandum on or before December 4, 2020. Defendant/Appellant may file an optional 20 reply on or before December 14, 2020. Upon the filing of the foregoing, the parties shall 21 await the further order of this Court. 22 IT IS SO ORDERED. 23 Dated: October 23, 2020 24 25 26 27 28
1 19mj23473 | 2020-10-23 | [
"Case 3:19-mj-23473-MDD-JLS Document 58 Filed 10/23/20 PageID.516 Page 1 of 1 1 2 3 4 UNITED STATES DISTRICT COURT 5 SOUTHERN DISTRICT OF CALIFORNIA 6 7 UNITED STATES OF AMERICA, Case No. : 19mj23473-MDD-JLS 8 Plaintiff/Appellee, ORDER SETTING BRIEFING SCHEDULE 9 v. ON APPEAL 10 PEDRO VALENCIA-AYALA, 11 Defendant/Appellant. 12 13 On October 22, 2020, Defendant Pedro Valencia-Ayala, through counsel, filed a 14 Notice of Appeal to the District Court from the judgment of the Magistrate Judge entered 15 on October 21, 2020. The following briefing schedule is hereby imposed: 16 Defendant/Appellant shall file and serve his opening memorandum on or before 17 November 13, 2020. The memorandum shall include any and all documents relevant to 18 the determination of the issues raised on appeal.",
"Plaintiff/Appellee shall file a responsive 19 memorandum on or before December 4, 2020. Defendant/Appellant may file an optional 20 reply on or before December 14, 2020. Upon the filing of the foregoing, the parties shall 21 await the further order of this Court. 22 IT IS SO ORDERED. 23 Dated: October 23, 2020 24 25 26 27 28 1 19mj23473"
] | https://www.courtlistener.com/api/rest/v3/recap-documents/149742813/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Gary J. This is an action by Henry P. Becker and Nathan Underwood, composing the firm of Becker & Underwood, to recover for the use of Benjamin W. Underwood and Eben Mathews, composing the firm of Underwood & Mathews, rebates on freights of wheat from Iowa, which the appellants had agreed to pay to the appellees. One of the defenses by the appellants is that such an agreement is against public policy and void at common law, and therefore the suit can not be maintained. In the uncertain state of the law in this State upon that question, it will not be here discussed, as perhaps before another trial it may be authoritatively settled by the Supreme Court. The facts were all before the Superior Court by a stipulation between the parties. The parties for whose use the suit is brought claim under an order in these words: “ Dixon, Ill., April 30, 1885. “To the Chicago & North-Western Railroad Company: You will please pay to the firm of Underwood & Mathews all claims and moneys due or to become due us, for overcharges or rebates on freight shipped over your railroad, which claims and moneys have been this day assigned to said Underwood & Mathews. (Signed) Beckeb & Undebwood.” And a part of the stipulation is, that Underwood & Mathews were, and still are, creditors of Becker & Underwood, and received said order as security therefor. This order was presented to the railway company before May 11, 1885, and they paid on it to Underwood & Mathews, rebates on wheat shipped during the months of January, February and March, 1885, $968.91. Afterward the railway company paid a subsequent assignee the money now in controversy, amounting, without interest, to $1,606.89, for rebates, but of that sum less than $150, if no error has been made in computation, is upon wheat shipped before the date of the order. The stipulation says that in the early part of the year 1885, the agreement for rebates was made; that the rebates paid by the railway company to the subsequent assignee, accrued to the appellees under that agreement. The agreement was without limit as to time, and by its own force, would continue until one or the other party rescinded it, or the business governed by it, ceased. The agreements of men in business are not to be held void for mistakes in grammar, but the fair construction of this order is that no such mistake was made. The appellees used the verb “ to ship ” in a past tense in order to express a past action. Fisher v. Minot, 10 Gray (Mass.), 260. Neither the firm giving nor the one taking the order could have supposed that the appellees were hypothecating all their future business with the railway to Underwood & Mathews. The order only covers money due or to become due on wheat that had been shipped when the order was drawn. To construe it as embracing future shipments takes from the appellees as a firm all right to receive any rebates from the appellants, whether accruing under the then existing agreement or otherwise, at least so long as any portion of their debt to Underwood & Mathews remained unpaid. The recovery of $1,940 is therefore unwarranted by the terms of the order. But there is another ground upon which the right to recover fails. Payment' to the subsequent assignee was a good defense against the appellees themselves. It would be good against the parties for whose use the suit was brought, so far and so far only as in equity they were the owners of the claim sued upon. How much the appellees still owed them at the time of the trial upon the debt that the order was given to secure does not appear. In any event there could not be a larger amount recovered than the appellees still owed upon the debt. The judgment must be reversed and the cause remanded. Reversed and remanded. | 07-24-2022 | [
"Gary J. This is an action by Henry P. Becker and Nathan Underwood, composing the firm of Becker & Underwood, to recover for the use of Benjamin W. Underwood and Eben Mathews, composing the firm of Underwood & Mathews, rebates on freights of wheat from Iowa, which the appellants had agreed to pay to the appellees. One of the defenses by the appellants is that such an agreement is against public policy and void at common law, and therefore the suit can not be maintained. In the uncertain state of the law in this State upon that question, it will not be here discussed, as perhaps before another trial it may be authoritatively settled by the Supreme Court. The facts were all before the Superior Court by a stipulation between the parties. The parties for whose use the suit is brought claim under an order in these words: “ Dixon, Ill., April 30, 1885. “To the Chicago & North-Western Railroad Company: You will please pay to the firm of Underwood & Mathews all claims and moneys due or to become due us, for overcharges or rebates on freight shipped over your railroad, which claims and moneys have been this day assigned to said Underwood & Mathews.",
"(Signed) Beckeb & Undebwood.” And a part of the stipulation is, that Underwood & Mathews were, and still are, creditors of Becker & Underwood, and received said order as security therefor. This order was presented to the railway company before May 11, 1885, and they paid on it to Underwood & Mathews, rebates on wheat shipped during the months of January, February and March, 1885, $968.91. Afterward the railway company paid a subsequent assignee the money now in controversy, amounting, without interest, to $1,606.89, for rebates, but of that sum less than $150, if no error has been made in computation, is upon wheat shipped before the date of the order. The stipulation says that in the early part of the year 1885, the agreement for rebates was made; that the rebates paid by the railway company to the subsequent assignee, accrued to the appellees under that agreement. The agreement was without limit as to time, and by its own force, would continue until one or the other party rescinded it, or the business governed by it, ceased.",
"The agreements of men in business are not to be held void for mistakes in grammar, but the fair construction of this order is that no such mistake was made. The appellees used the verb “ to ship ” in a past tense in order to express a past action. Fisher v. Minot, 10 Gray (Mass. ), 260. Neither the firm giving nor the one taking the order could have supposed that the appellees were hypothecating all their future business with the railway to Underwood & Mathews. The order only covers money due or to become due on wheat that had been shipped when the order was drawn. To construe it as embracing future shipments takes from the appellees as a firm all right to receive any rebates from the appellants, whether accruing under the then existing agreement or otherwise, at least so long as any portion of their debt to Underwood & Mathews remained unpaid. The recovery of $1,940 is therefore unwarranted by the terms of the order. But there is another ground upon which the right to recover fails.",
"Payment' to the subsequent assignee was a good defense against the appellees themselves. It would be good against the parties for whose use the suit was brought, so far and so far only as in equity they were the owners of the claim sued upon. How much the appellees still owed them at the time of the trial upon the debt that the order was given to secure does not appear. In any event there could not be a larger amount recovered than the appellees still owed upon the debt. The judgment must be reversed and the cause remanded.",
"Reversed and remanded."
] | https://www.courtlistener.com/api/rest/v3/opinions/6991636/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Citation Nr: 0300128
Decision Date: 01/06/03 Archive Date: 01/15/03
DOCKET NO. 97-32 429 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in
New York, New York
THE ISSUE
Entitlement to an extension of the delimiting date beyond
the basic period of eligibility for educational assistance
under Chapter 32, Title 38, United States Code.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
A. Shawkey, Counsel
INTRODUCTION
The veteran served on active duty from June 1985 to July
1987, and had six months and 14 days of prior active duty.
This appeal originates from a June 1997 rating decision of
the Atlanta, Georgia, RO that denied the veteran's request
for an extension of the delimiting date of his Chapter 32
educational benefits (the Post-Vietnam Era Veterans'
Education Assistance Program) (VEAP)). The appellant was
notified of this decision in June 1997. He submitted a
notice of disagreement with the decision in July 1997, and
a statement of the case was issued in September 1997. The
appellant perfected his appeal to the Board of Veterans'
Appeals (Board) in October 1997. During the pendency of
the appeal, the veteran relocated to New York, and the New
York, New York, RO assumed jurisdiction of his claims
file.
In May 2002, the veteran testified before the undersigned
Board Member at a hearing held at the New York RO; the
transcript of that hearing is of record. During the
hearing the veteran submitted additional evidence
consisting of tax records, school documents and a Federal
Stafford Loan Promissory Note-evidence over which the
veteran waived RO jurisdiction. (Parenthetically, the
Board notes that effective February 22, 2002, the
governing regulation, 38 C.F.R. § 20.1304, no longer
requires a written waiver of RO jurisdiction for the Board
to consider such evidence, in the first instance (see 67
Fed. Reg. 3099-3016 (January 23, 2002)). The Board will
consider such evidence in conjunction with the issue on
appeal.
FINDINGS OF FACT
1. The veteran's delimiting date in regard to Chapter 32
educational assistance benefits was July 11, 1997.
2. The veteran requested an extension of his delimiting
date in June 1997.
3. The veteran does not contend, and the evidence does
not show, that the veteran had a disability that made it
medically infeasible to pursue a program of education
prior to his delimiting date.
CONCLUSION OF LAW
The requirements for establishing entitlement to an
extension of the delimiting date beyond the basic period
of eligibility for educational assistance under Chapter
32, Title 38, United States Code, have not been met.
38 U.S.C.A. § 3232 (West 1991 & Supp. 2002); 38 C.F.R.
§ 21.5042 (2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duties to Notify and Assist
At the outset, the Board notes that during the pendency of
this appeal, the Veterans Claims Assistance Act of 2000
(VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was
signed into law. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A,
and 5107 (West Supp. 2002). This liberalizing law is
applicable to this appeal. See Karnas v. Derwinski, 1
Vet. App. 308, 312-13 (1991). To implement the provisions
of the law, the VA promulgated regulations published at 66
Fed. Reg. 45,620 (Aug. 29, 2001) (codified at 38 C.F.R. §§
3.102, 3.156(a), 3.159, 3.326(a) (2002)). The Act and its
implementing regulations essentially eliminate the concept
of the well-grounded claim. 38 U.S.C.A. § 5107(a) (West
Supp. 2002); 38 C.F.R. § 3.102 (2002). They also include
an enhanced duty on the part of VA to notify a claimant of
the information and evidence needed to substantiate a
claim. 38 U.S.C.A. § 5103 (West Supp. 2002); 38 C.F.R. §
3.159(b) (2002). In addition, they define the obligation
of VA with respect to its duty to assist the claimant in
obtaining evidence. 38 U.S.C.A. § 5103A (West Supp.
2002); 38 C.F.R. § 3.159(c) (2002).
Considering the record in light of the above, the Board
finds that the passage of the VCAA and its implementing
regulations does not prevent the Board from rendering a
decision on the appeal at this time, as all notification
and development action needed to render a fair decision
has been accomplished.
By the September 1997 Statement of the Case, the RO has
notified the veteran of the information and evidence
necessary to substantiate his claim. Thus, the Board
finds that the veteran has received sufficient notice of
the information and evidence needed to support his claim,
and has been provided ample opportunity to submit such
information and evidence. In view of the foregoing, and
because there is no indication that there is any
outstanding, existing evidence that is necessary for a
fair adjudication of the claim, the Board finds that the
statutory and regulatory requirement that VA notify a
claimant what evidence, if any, will be obtained by the
claimant and which evidence, if any, will be retrieved by
the VA, is not here at issue. See Quartuccio v. Principi,
16 Vet. App. 183 (2002) (addressing the duties imposed by
38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159).
The Board also finds that all necessary development has
been accomplished. The RO has made reasonable and
appropriate efforts to assist the veteran in obtaining the
evidence necessary to substantiate his claim. The veteran
has been afforded an opportunity to appear at a hearing,
and appeared at a hearing before the undersigned Board
Member in May 2002. The Board notes that neither the
veteran nor his representative has identified, and the
record does otherwise indicate, any existing pertinent
evidence that is necessary for a fair adjudication of the
claim that has not been obtained.
Under these circumstances, the Board finds that
adjudication of the claim at this juncture, without
directing or accomplishing any additional notification and
or development action, poses no risk of prejudice to the
parties. See, e.g., Bernard v. Brown, 4 Vet. App. 384,
394 (1993). The claim is ready to be considered on the
merits.
II. Background
In August and October 1987, the RO received VA Forms 22-
1990 (Application for Educational Benefits) completed by
the veteran requesting educational benefits for a program
beginning in September 1987 to become an Advanced
Motorcycle Technician. The program was offered by the
Clinton Technical Institute, Motorcycle Mechanics
Institute Campus.
The RO notified the veteran by letter dated in December
1987 that as of July 1988 his remaining entitlement in
educational assistance would be 13 months and 26 days and
that his entitlement had to be used before July 11, 1997.
A VA Enrollment Certification (VA Form 22-1999) shows that
the veteran had been enrolled full time at the Motorcycle
Mechanics Institute for the period from September 1987 to
July 1988 in a program to be an Advanced Motorcycle
Technician.
The RO informed the veteran in subsequent letters dated in
July 1988 and April 1990 that he had until July 11, 1997,
to use his entitlement.
Another VA Enrollment Certification (VA Form 22-1999)
shows that the veteran was enrolled full time for the
period from November 1989 to March 1990 in a program to be
a Motorcycle Mechanic at A.M.I., Inc.
In a March 1990 Report of Contact, a spokesperson from
A.M.I., Inc., informed VA that the veteran had been
terminated from the program on March 6, 1990, due to
excessive absences. This was confirmed by the school in
writing on VA Form 22-1999b (Notice of Change in Student
Status), dated in March 1990.
In June 1997, the veteran requested in writing that his
education benefits be extended due to the fact that he had
been incarcerated for six of the past ten years and was
not eligible for release until December 1999. He said he
had not been successful in having the Department of
Corrections approve the correspondence course of his
choice, mechanical engineering, and that upon his release
he intended to pursue that course.
In a June 1997 decision letter, the RO informed the
veteran that his request for an extension to his
delimiting date of Chapter 32 VEAP educational benefits
could not be granted since such an extension could only be
for a physical or mental disability and his circumstances
did not qualify him for an extension.
In his substantive appeal dated in November 1997, the
veteran asserted that there was no VA regulation that
prohibited extension of the delimiting date for Chapter 32
Educational benefits when a veteran was being unjustly
held and detained by a state agency not resulting from
willful misconduct, thereby preventing him or her from
initiating or completing a chosen program of education
within the applicable delimiting period.
During the veteran's May 2002 Board hearing, the veteran
testified that following his July 1987 discharge from
service, he went to school for one year beginning in
October 1987 using Chapter 32 benefits. He said that he
finished his schooling and did not use Chapter 32 benefits
again until 1990 when he went back to school for six
months. He said that in 1993 he was incarcerated and did
not get released until July 1998. He said that two weeks
following his release he went to work for the Department
of Welfare for New York City and has been there ever
since. At the hearing he submitted tax forms showing
proof of his employment. He also submitted a Federal
Stafford Loan Promissory Note along with an application
form, acceptance letter and other correspondence from the
Apex Technical School. The veteran said that he enrolled
at the Apex Technical School in February 2002 and was
taking an automotive course. He said that he made $13,800
a year and his school alone cost $13,000, so that paying
it himself would be a financial hardship. He said that he
wasn't alleging that his incarceration was a physical or
mental disability, but that physically he was unable to be
at school. He asked that consideration be given to the
fact that he had been out of prison for four years and was
improving his life in the sense that he had had no contact
with authorities of any kind, had been working at the same
job and was going to school.
II. Analysis
Educational assistance benefits under Chapter 32, Title
38, United States Code, are available to veterans for
qualified programs for a period of ten years following
separation from service. 38 U.S.C.A. § 3232(a) (West
1991). That ten-year period may be extended if a veteran
can show that he was prevented from initiating or pursuing
a program of education because of physical or mental
disability that was not the result of his own willful
misconduct. 38 U.S.C.A. § 3232(a)(2). The length of the
period of extension will be determined by the Secretary
based on the length of time the veteran was prevented from
initiating or completing such program of education. 38
U.S.C.A. § 3232(a)(2)(A); 38 C.F.R. § 21.5042(c).
To prevail in such a claim, the veteran must apply for the
extension in time for the VA to receive the application by
the later of one year from the last date of the delimiting
period, or one year from the termination date of the
period of the veteran's disability, and submit evidence
clearly establishing that his disability made pursuit of
his program medically infeasible during his original
period of eligibility. 38 U.S.C.A. § 3232(a)(2)(B); 38
C.F.R. § 21.5042(a), (b), (c)(3).
In this case, the veteran last served on active duty from
June 12, 1985, to July 10, 1987. Thus, his delimiting
date with regard to Chapter 32 educational assistance
benefits was July 11, 1997. The veteran submitted what
was construed by the RO as an application for an extension
of his delimiting date in June 1997, a little less than
one month prior to his delimiting date, and clearly within
the time period prescribed by law.
The question that thus remains is whether the veteran had
a disability that made it medically infeasible for him to
pursue his education prior to his delimiting date of July
11, 1997. However, the veteran has submitted no evidence
demonstrating that he suffered a disability which
interfered with his pursuit of education during his
original period of eligibility. In fact, the veteran
testified in May 2002 that he was not alleging that his
incarceration constituted a physical or mental disability;
rather, he asserted that his incarceration made it
physically impossible for him to continue his education
prior to the delimiting date in July 1997. In requesting
that the Board grant the benefits sought, he also asserted
and that there is no VA regulation prohibiting an
extension of delimiting date for Chapter 32 Educational
benefits when a veteran is being unjustly held and
detained by a state agency not resulting from willful
misconduct.
Notwithstanding the appellant's assertions, the Board must
emphasize that the pertinent legal authority governing
entitlement to the benefit sought is clear and specific,
and the Board is bound by it. As indicated above, the
pertinent statute and regulation allow for an extension of
the Chapter 32 delimiting date only in cases where a
physical or mental disability makes pursuit of the program
medically infeasible. See 38 U.S.C.A. § 3232(a)(2)(B); 38
C.F.R. § 21.5042(a), (b), (c)(3). Those provisions
effectively prohibit an extension for any other reason,
including incarceration. Thus, the Board must hold that
the veteran's contention that his incarceration physically
prevented him from obtaining schooling prior to his July
11, 1997, delimiting date does not constitute a physical
disability as contemplated in pertinent VA law and
regulation. While the appellant's assertions focus upon
the absence of any explicit prohibition for the action
sought, clearly, the Board cannot grant an extension of
the delimiting date in question on any basis other than
that explicitly authorized by the governing legal
authority.
Under these circumstances, the Board must conclude that
the statutory and regulatory criteria necessary to
establish an extension for educational assistance benefits
under Chapter 32 have not been met. As there is no legal
basis for a grant of the benefits sought, the appellant's
claim must be denied. See Sabonis v. Brown, 6 Vet. App.
426 (1994) (where the law is dispositive, the claim should
be denied on the basis of the absence of legal merit).
ORDER
Entitlement to an extension of the delimiting date beyond
the basic period of eligibility for educational assistance
under Chapter 32, Title 38, United States Code is denied.
JACQUELINE E. MONROE
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal
to the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required
to file a copy of your Notice of Appeal with VA's
General Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you. | 01-06-2003 | [
"Citation Nr: 0300128 Decision Date: 01/06/03 Archive Date: 01/15/03 DOCKET NO. 97-32 429 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York THE ISSUE Entitlement to an extension of the delimiting date beyond the basic period of eligibility for educational assistance under Chapter 32, Title 38, United States Code. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The veteran served on active duty from June 1985 to July 1987, and had six months and 14 days of prior active duty. This appeal originates from a June 1997 rating decision of the Atlanta, Georgia, RO that denied the veteran's request for an extension of the delimiting date of his Chapter 32 educational benefits (the Post-Vietnam Era Veterans' Education Assistance Program) (VEAP)). The appellant was notified of this decision in June 1997. He submitted a notice of disagreement with the decision in July 1997, and a statement of the case was issued in September 1997.",
"The appellant perfected his appeal to the Board of Veterans' Appeals (Board) in October 1997. During the pendency of the appeal, the veteran relocated to New York, and the New York, New York, RO assumed jurisdiction of his claims file. In May 2002, the veteran testified before the undersigned Board Member at a hearing held at the New York RO; the transcript of that hearing is of record. During the hearing the veteran submitted additional evidence consisting of tax records, school documents and a Federal Stafford Loan Promissory Note-evidence over which the veteran waived RO jurisdiction. (Parenthetically, the Board notes that effective February 22, 2002, the governing regulation, 38 C.F.R. § 20.1304, no longer requires a written waiver of RO jurisdiction for the Board to consider such evidence, in the first instance (see 67 Fed. Reg.",
"3099-3016 (January 23, 2002)). The Board will consider such evidence in conjunction with the issue on appeal. FINDINGS OF FACT 1. The veteran's delimiting date in regard to Chapter 32 educational assistance benefits was July 11, 1997. 2. The veteran requested an extension of his delimiting date in June 1997. 3. The veteran does not contend, and the evidence does not show, that the veteran had a disability that made it medically infeasible to pursue a program of education prior to his delimiting date. CONCLUSION OF LAW The requirements for establishing entitlement to an extension of the delimiting date beyond the basic period of eligibility for educational assistance under Chapter 32, Title 38, United States Code, have not been met. 38 U.S.C.A.",
"§ 3232 (West 1991 & Supp. 2002); 38 C.F.R. § 21.5042 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist At the outset, the Board notes that during the pendency of this appeal, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West Supp. 2002). This liberalizing law is applicable to this appeal. See Karnas v. Derwinski, 1 Vet.",
"App. 308, 312-13 (1991). To implement the provisions of the law, the VA promulgated regulations published at 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2002)). The Act and its implementing regulations essentially eliminate the concept of the well-grounded claim. 38 U.S.C.A. § 5107(a) (West Supp. 2002); 38 C.F.R. § 3.102 (2002). They also include an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim. 38 U.S.C.A. § 5103 (West Supp. 2002); 38 C.F.R. § 3.159(b) (2002). In addition, they define the obligation of VA with respect to its duty to assist the claimant in obtaining evidence. 38 U.S.C.A. § 5103A (West Supp. 2002); 38 C.F.R. § 3.159(c) (2002). Considering the record in light of the above, the Board finds that the passage of the VCAA and its implementing regulations does not prevent the Board from rendering a decision on the appeal at this time, as all notification and development action needed to render a fair decision has been accomplished. By the September 1997 Statement of the Case, the RO has notified the veteran of the information and evidence necessary to substantiate his claim.",
"Thus, the Board finds that the veteran has received sufficient notice of the information and evidence needed to support his claim, and has been provided ample opportunity to submit such information and evidence. In view of the foregoing, and because there is no indication that there is any outstanding, existing evidence that is necessary for a fair adjudication of the claim, the Board finds that the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by the VA, is not here at issue. See Quartuccio v. Principi, 16 Vet.",
"App. 183 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159). The Board also finds that all necessary development has been accomplished. The RO has made reasonable and appropriate efforts to assist the veteran in obtaining the evidence necessary to substantiate his claim. The veteran has been afforded an opportunity to appear at a hearing, and appeared at a hearing before the undersigned Board Member in May 2002. The Board notes that neither the veteran nor his representative has identified, and the record does otherwise indicate, any existing pertinent evidence that is necessary for a fair adjudication of the claim that has not been obtained. Under these circumstances, the Board finds that adjudication of the claim at this juncture, without directing or accomplishing any additional notification and or development action, poses no risk of prejudice to the parties.",
"See, e.g., Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The claim is ready to be considered on the merits. II. Background In August and October 1987, the RO received VA Forms 22- 1990 (Application for Educational Benefits) completed by the veteran requesting educational benefits for a program beginning in September 1987 to become an Advanced Motorcycle Technician. The program was offered by the Clinton Technical Institute, Motorcycle Mechanics Institute Campus. The RO notified the veteran by letter dated in December 1987 that as of July 1988 his remaining entitlement in educational assistance would be 13 months and 26 days and that his entitlement had to be used before July 11, 1997. A VA Enrollment Certification (VA Form 22-1999) shows that the veteran had been enrolled full time at the Motorcycle Mechanics Institute for the period from September 1987 to July 1988 in a program to be an Advanced Motorcycle Technician.",
"The RO informed the veteran in subsequent letters dated in July 1988 and April 1990 that he had until July 11, 1997, to use his entitlement. Another VA Enrollment Certification (VA Form 22-1999) shows that the veteran was enrolled full time for the period from November 1989 to March 1990 in a program to be a Motorcycle Mechanic at A.M.I., Inc. In a March 1990 Report of Contact, a spokesperson from A.M.I., Inc., informed VA that the veteran had been terminated from the program on March 6, 1990, due to excessive absences.",
"This was confirmed by the school in writing on VA Form 22-1999b (Notice of Change in Student Status), dated in March 1990. In June 1997, the veteran requested in writing that his education benefits be extended due to the fact that he had been incarcerated for six of the past ten years and was not eligible for release until December 1999. He said he had not been successful in having the Department of Corrections approve the correspondence course of his choice, mechanical engineering, and that upon his release he intended to pursue that course.",
"In a June 1997 decision letter, the RO informed the veteran that his request for an extension to his delimiting date of Chapter 32 VEAP educational benefits could not be granted since such an extension could only be for a physical or mental disability and his circumstances did not qualify him for an extension. In his substantive appeal dated in November 1997, the veteran asserted that there was no VA regulation that prohibited extension of the delimiting date for Chapter 32 Educational benefits when a veteran was being unjustly held and detained by a state agency not resulting from willful misconduct, thereby preventing him or her from initiating or completing a chosen program of education within the applicable delimiting period. During the veteran's May 2002 Board hearing, the veteran testified that following his July 1987 discharge from service, he went to school for one year beginning in October 1987 using Chapter 32 benefits.",
"He said that he finished his schooling and did not use Chapter 32 benefits again until 1990 when he went back to school for six months. He said that in 1993 he was incarcerated and did not get released until July 1998. He said that two weeks following his release he went to work for the Department of Welfare for New York City and has been there ever since. At the hearing he submitted tax forms showing proof of his employment. He also submitted a Federal Stafford Loan Promissory Note along with an application form, acceptance letter and other correspondence from the Apex Technical School. The veteran said that he enrolled at the Apex Technical School in February 2002 and was taking an automotive course.",
"He said that he made $13,800 a year and his school alone cost $13,000, so that paying it himself would be a financial hardship. He said that he wasn't alleging that his incarceration was a physical or mental disability, but that physically he was unable to be at school. He asked that consideration be given to the fact that he had been out of prison for four years and was improving his life in the sense that he had had no contact with authorities of any kind, had been working at the same job and was going to school. II. Analysis Educational assistance benefits under Chapter 32, Title 38, United States Code, are available to veterans for qualified programs for a period of ten years following separation from service. 38 U.S.C.A. § 3232(a) (West 1991).",
"That ten-year period may be extended if a veteran can show that he was prevented from initiating or pursuing a program of education because of physical or mental disability that was not the result of his own willful misconduct. 38 U.S.C.A. § 3232(a)(2). The length of the period of extension will be determined by the Secretary based on the length of time the veteran was prevented from initiating or completing such program of education. 38 U.S.C.A. § 3232(a)(2)(A); 38 C.F.R. § 21.5042(c). To prevail in such a claim, the veteran must apply for the extension in time for the VA to receive the application by the later of one year from the last date of the delimiting period, or one year from the termination date of the period of the veteran's disability, and submit evidence clearly establishing that his disability made pursuit of his program medically infeasible during his original period of eligibility. 38 U.S.C.A. § 3232(a)(2)(B); 38 C.F.R. § 21.5042(a), (b), (c)(3). In this case, the veteran last served on active duty from June 12, 1985, to July 10, 1987.",
"Thus, his delimiting date with regard to Chapter 32 educational assistance benefits was July 11, 1997. The veteran submitted what was construed by the RO as an application for an extension of his delimiting date in June 1997, a little less than one month prior to his delimiting date, and clearly within the time period prescribed by law. The question that thus remains is whether the veteran had a disability that made it medically infeasible for him to pursue his education prior to his delimiting date of July 11, 1997. However, the veteran has submitted no evidence demonstrating that he suffered a disability which interfered with his pursuit of education during his original period of eligibility. In fact, the veteran testified in May 2002 that he was not alleging that his incarceration constituted a physical or mental disability; rather, he asserted that his incarceration made it physically impossible for him to continue his education prior to the delimiting date in July 1997.",
"In requesting that the Board grant the benefits sought, he also asserted and that there is no VA regulation prohibiting an extension of delimiting date for Chapter 32 Educational benefits when a veteran is being unjustly held and detained by a state agency not resulting from willful misconduct. Notwithstanding the appellant's assertions, the Board must emphasize that the pertinent legal authority governing entitlement to the benefit sought is clear and specific, and the Board is bound by it. As indicated above, the pertinent statute and regulation allow for an extension of the Chapter 32 delimiting date only in cases where a physical or mental disability makes pursuit of the program medically infeasible. See 38 U.S.C.A. § 3232(a)(2)(B); 38 C.F.R. § 21.5042(a), (b), (c)(3). Those provisions effectively prohibit an extension for any other reason, including incarceration. Thus, the Board must hold that the veteran's contention that his incarceration physically prevented him from obtaining schooling prior to his July 11, 1997, delimiting date does not constitute a physical disability as contemplated in pertinent VA law and regulation. While the appellant's assertions focus upon the absence of any explicit prohibition for the action sought, clearly, the Board cannot grant an extension of the delimiting date in question on any basis other than that explicitly authorized by the governing legal authority.",
"Under these circumstances, the Board must conclude that the statutory and regulatory criteria necessary to establish an extension for educational assistance benefits under Chapter 32 have not been met. As there is no legal basis for a grant of the benefits sought, the appellant's claim must be denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (where the law is dispositive, the claim should be denied on the basis of the absence of legal merit). ORDER Entitlement to an extension of the delimiting date beyond the basic period of eligibility for educational assistance under Chapter 32, Title 38, United States Code is denied. JACQUELINE E. MONROE Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision.",
"We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled \"Appeal to the United States Court of Appeals for Veterans Claims.\" (1) A \"Notice of Disagreement filed on or after November 18, 1988\" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled \"Representation before VA,\" filing a \"Notice of Disagreement with respect to the claim on or after November 18, 1988\" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you."
] | https://drive.google.com/drive/folders/12lAd8Os7VFeqbTKi4wcqJqODjHIn0-yQ?usp=sharing | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
937 F.2d 609 Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.Charles HARDIWAY, also known as Joe also known as RickyMerriweather, Defendant-Appellant. No. 90-3625. United States Court of Appeals, Sixth Circuit. July 18, 1991.
1 Before RALPH B. GUY, Jr. and ALAN E. NORRIS, Circuit Judges, and FRIEDMAN, District Judge.*
ORDER
2 This cause having come on to be heard upon the record, the briefs and the oral argument of the parties, and upon due consideration thereof,
3 The court finds that no prejudicial error intervened in the judgment and proceedings in the district court, and it is therefore ORDERED that said judgment be and it hereby is affirmed.
* The Honorable Bernard A. Friedman, United States District Judge for the Eastern District of Michigan, sitting by designation | 08-23-2011 | [
"937 F.2d 609 Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.Charles HARDIWAY, also known as Joe also known as RickyMerriweather, Defendant-Appellant. No. 90-3625. United States Court of Appeals, Sixth Circuit. July 18, 1991. 1 Before RALPH B. GUY, Jr. and ALAN E. NORRIS, Circuit Judges, and FRIEDMAN, District Judge. * ORDER 2 This cause having come on to be heard upon the record, the briefs and the oral argument of the parties, and upon due consideration thereof, 3 The court finds that no prejudicial error intervened in the judgment and proceedings in the district court, and it is therefore ORDERED that said judgment be and it hereby is affirmed. * The Honorable Bernard A. Friedman, United States District Judge for the Eastern District of Michigan, sitting by designation"
] | https://www.courtlistener.com/api/rest/v3/opinions/564118/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Mr. Presiding Justice Shepard delivered the opinion op the Court. The Columbian Moorish Palace Company was a corporation organized for the exhibition of wax figures and optical illusions at the World’s Fair in Chicago. Four persons were its promoters, viz., the appellant and Messrs. Zeisler, Hoffman and Hamburger. The appellees, Castan Brothers, resided in Berlin, Germany, and were manufacturers and exhibitors of wax figures. In August, 1892, a written agreement between Castan Brothers and the said Moorish Palace Company, was entered into,' at Berlin, whereby the former sold to the latter for 183,260 reichmarks (equal to about §44,000), certain articles then contained in the Panopticon conducted by Castan Brothers in Hamburg, Germany, and certain other articles to be manufactured by Castan Brothers, to be paid for as follows: “ Clause 6. The terms of payment are as follows: One-half of the above mentioned total purchase price must be deposited by October 1,1892, at the Deutsche Bank, at Berlin, or at the National Bank of Illinois, at Chicago, and shall be paid over to Castan Brothers, on their delivery to the Columbian Moorish Palace Company of a document transferring to it the ownership in the articles situate at Hamburg and hereinabove mentioned. For the other half of the total purchase price, Castan Brothers agree to accept shares of the capital stock of the Columbian Moorish Palace Company, for their full nominal value, in the stead of payment. Said shares are to be deposited either at the Deutsche Bank, at Berlin, or at the National Bank of Illinois, at Chicago, for the benefit of Castan Brothers, with instructions to the banks, respectively, that the same are to be delivered to Castan Brothers as soon as the articles at Berlin and Hamburg are accepted by a trusted agent to be named by the company, and are delivered to the forwarding agent to be designated by the company, and the receipt of the forwarding agent shall serve to the respective banks as evidence of delivery. The said company herewith guarantees that the total capital stock issued by it is not larger than §300,000.” In September, 1892, the appellant was in Saxony, and on the tenth of that month received a cablegram from his Chicago banker, as follows: “ Chicago, September 9, 1892. Hilmar Stephany, Wittgen, Prussia, Saxony. Bond subscribers refuse going on Moorish Palace unless everybody gives up half stock. Hamburger, Hoffman, Zeisler consented. Cable authority likewise, otherwise everything lost. W asmausdobf.” Shortly after receiving the dispatch, the appellant went to Berlin to see Gastan Brothers, and he testified that he there said to them, among other things: “ I know you are deeply interested in this concern as contractors and stockholders, and that if I refuse to give up half of my stock, which I feel just now like doing, because I do not wish to be imposed upon, your investment, so far, which amounts to about 50,000 marks, will be lost to you. If I consent to give up half my stock, I must get some equivalent for it, because I have spent all my ready cash in the promotion of this enterprise, and I am now here without funds. How, if I am compelled to give up half my stock, I want some compensation for it. How, is it of sufficient interest to you to see the concern carried on ? Then we will make an agreement. * * * You have a contract for 200,000 marks. You have so far invested in buying materials about 50,000 marks, or 60,000 marks, which will be a dead loss to you unless the contract is carried out, and it simply depends on my say so whether the company will go on or the whole thing go up in smoke.” The result of the interview and conversation is stated by appellant as follows ; “ In talking over the matter we ultimately agreed that they would pay me 5,000 marks if I would consent to cancel half of my stock. I had $40,000 worth of stock at that time, face value.” The parties thereupon entered into the following writing: “We have bound ourselves to pay Mr. Hilmar Stephany the sum of 5,000 marks, only under the condition that the contract with the Columbian Moorish Palace Company of Chicago, requiring payment of the first installment in cash in the beginning of October of this year, will be punctually kept. Mr. Hilmar Stephany binds himself to return to Gastan Brothers the sum of 5,000 marks as soon as the stock of the above company reaches par. Hilmak Stephany. Gebkbedek Gastan. September 12, 1892.” And such writing formed the basis of the suit brought by appellant against the appellees, and from the judgment therein, in favor of the appellees, this appeal is prosecuted. No part of the 5,000 marks mentioned in the writing of September 12, 1892, was ever paid. In considering the effect of the -writing between the parties, it is necessary to read it in connection with the contract between Castan Brothers and the Moorish Palace Company. By the terms of that contract two payments were to be made, and only two, by the Palace Company: one of $22,000 in cash (one-half of 183,260 reichmarks), by a deposit of that amount at the Deutsche Bank, in Berlin, or at the National Bank of Illinois, in Chicago, “ by October 1,1892;” and the other, of an equal amount, at its nominal (par) value, of the capital stock of the Palace Company, when the bargained goods should be accepted by an agent of the company. By the terms of the writing between the parties to this suit, the appellees bound themselves to pay the 5,000 marks to the appellant, “ only under the condition that the contract with the Columbian Moorish Palace Company of Chicago, requiring payment of the first installment in cash in the beginning of October of this year, will be punctually kept.” Such condition refers, manifestly, to the cash payment of $22,000, to be deposited by the Palace Company, for the appellees, “ by October 1, 1892,” and its punctual payment was the essence of the promise to pay the 5,000 marks. The inquiry that ensues is, was such deposit made ? The deposit of $22,000 was made by the Palace Company on October 6, 1892, but upon conditions variant from those provided by the contract between Castan Brothers and the Palace Company. On September 13, 1892, the board of directors of the Palace Company adopted a. resolution, without the sanction or knowledge, Until subsequently, of Castan Brothers, as follows: “ Eesolved, That the secretary be, and he is hereby, instructed to notify Gastan Bros., at Berlin, that this company refuses to pay over to Gastan Bros, the sum of $22,000 or thereabouts, on October 1, 1892, but instead will deposit said sum of money, together with a certificate of 220 shares of the capital stock of this company, in the national Bank of Illinois, at Chicago. Such money and such certificate to be paid over and delivered, respectively, to said Castan Bros, upon the delivery by them of the articles purchased as described in the contract of August 18, 1892.” Such resolution, or its effect, was under instructions to the secretary of the Palace Company, communicated to Castan Brothers, with something like a request for their consent to the modification of the contract, from a deposit as payment to one as security. Probably after the letter of the secretary reached Castan Brothers, although not certainly so, they cabled to the Palace Company a dispatch, which was received on October 4th or 5th, 1892, as follows : “ Have ascertained deposit in national Bank of Illinois not made as promised in your letter. First make deposit, then talk about terms.” Subsequent to the receipt of that cablegram, the Palace Company deposited, on October 6, 1892, in the national Bank of Illinois, $22,000, upon the terms designated in its certificate of deposit, as follows: “The national Bank of Illinois certifies that it has received this date, namely, 6th October, 1892, from the Columbian Moorish Palace Company, the sum of twTenty-two thousand dollars, which sum is to be held by it as security for the payment to Castan Brothers of the sum of $22,000, as soon as they shall have delivered to the forwarding agent, to be designated by the Columbian Moorish Palace Company, the articles purchased and ordered by the Columbian Moorish Palace Company of Castan Brothers, as per contract of August 18, 1892.” It will be seen, by a comparison, that the terms recited in the certificate, are substantially like those in the resolu-. tion of the directors of the Palace Company, concerning the money being as security for payment to Castan Brothers, and not as payment itself. Apparently, Castan Brothers were paid one-half of the $22,000 some time in November, 1892, and the balance in February, 1898. We will not discuss the argument that the payment of $22,000 to Castan Brothers depended upon the tender by them of a bill of - sale of the articles contained in the Panopticon at Hamburg—or, in other words, that the tender of such bill of sale was a condition precedent to the payment being made, further than to say that before the time of payment had arrived the Palace Company had by resolution refused to make the deposit as a payment, and, further, that the Palace Company never appear to have made any such a claim. It is, also, doubtful if any tender of a bill of sale were otherwise necessary. It could have been no more than a formality at best. The first clause of the contract was, in itself, a bill of sale of the goods for future delivery, in January and February, 1893, and required nothing further than a delivery of the goods to vest a perfect title in possession to the bargained articles. Nor is it necessary, in the view we take of the case, to consider the question of consideration for the agreement by Castan Brothers to pay appellant 5,000 marks. We prefer to rest our decision upon the sole ground that, as between the appellant and Castan Brothers, the promise by the latter was but a conditional one, and that the condition was not performed. The facts that we' have stated need not be repeated. Where an obligation to pay money is dependent upon the action of a third person, over whom neither party to the obligation has control, such payment can not be exacted unless the specified act be performed. Miller v. Wilson, 37 Ill. App. 399. The condition here, that the Palace Company should punctually make the payment of $22,000, goes to the whole promise by the appellees, and the promise fell with the failure of the condition. The case of Cincinnati, S. & C. R. Co. v. Bensley, 51 Fed. Rep. 738, is in point, the opinion there being delivered by Mri Justice Brown, now of the United States Supreme Court. While there, as here, some “ fireside” equitable facts appear, they are not such as a court of law can enforce. The appellant, as shown by his own testimony, drove a sharp bargain with the appellees under the cover of circumstances, or a situation to which he held the key, and he can not complain in law if the appellees have chosen, as they were entitled to do, to stand upon the letter of their promise. The judgment of the Circuit Court in favor of the appellees was right. It will, therefore, be affirmed. | 07-24-2022 | [
"Mr. Presiding Justice Shepard delivered the opinion op the Court. The Columbian Moorish Palace Company was a corporation organized for the exhibition of wax figures and optical illusions at the World’s Fair in Chicago. Four persons were its promoters, viz., the appellant and Messrs. Zeisler, Hoffman and Hamburger. The appellees, Castan Brothers, resided in Berlin, Germany, and were manufacturers and exhibitors of wax figures. In August, 1892, a written agreement between Castan Brothers and the said Moorish Palace Company, was entered into,' at Berlin, whereby the former sold to the latter for 183,260 reichmarks (equal to about §44,000), certain articles then contained in the Panopticon conducted by Castan Brothers in Hamburg, Germany, and certain other articles to be manufactured by Castan Brothers, to be paid for as follows: “ Clause 6. The terms of payment are as follows: One-half of the above mentioned total purchase price must be deposited by October 1,1892, at the Deutsche Bank, at Berlin, or at the National Bank of Illinois, at Chicago, and shall be paid over to Castan Brothers, on their delivery to the Columbian Moorish Palace Company of a document transferring to it the ownership in the articles situate at Hamburg and hereinabove mentioned.",
"For the other half of the total purchase price, Castan Brothers agree to accept shares of the capital stock of the Columbian Moorish Palace Company, for their full nominal value, in the stead of payment. Said shares are to be deposited either at the Deutsche Bank, at Berlin, or at the National Bank of Illinois, at Chicago, for the benefit of Castan Brothers, with instructions to the banks, respectively, that the same are to be delivered to Castan Brothers as soon as the articles at Berlin and Hamburg are accepted by a trusted agent to be named by the company, and are delivered to the forwarding agent to be designated by the company, and the receipt of the forwarding agent shall serve to the respective banks as evidence of delivery. The said company herewith guarantees that the total capital stock issued by it is not larger than §300,000.” In September, 1892, the appellant was in Saxony, and on the tenth of that month received a cablegram from his Chicago banker, as follows: “ Chicago, September 9, 1892. Hilmar Stephany, Wittgen, Prussia, Saxony.",
"Bond subscribers refuse going on Moorish Palace unless everybody gives up half stock. Hamburger, Hoffman, Zeisler consented. Cable authority likewise, otherwise everything lost. W asmausdobf.” Shortly after receiving the dispatch, the appellant went to Berlin to see Gastan Brothers, and he testified that he there said to them, among other things: “ I know you are deeply interested in this concern as contractors and stockholders, and that if I refuse to give up half of my stock, which I feel just now like doing, because I do not wish to be imposed upon, your investment, so far, which amounts to about 50,000 marks, will be lost to you. If I consent to give up half my stock, I must get some equivalent for it, because I have spent all my ready cash in the promotion of this enterprise, and I am now here without funds. How, if I am compelled to give up half my stock, I want some compensation for it. How, is it of sufficient interest to you to see the concern carried on ?",
"Then we will make an agreement. * * * You have a contract for 200,000 marks. You have so far invested in buying materials about 50,000 marks, or 60,000 marks, which will be a dead loss to you unless the contract is carried out, and it simply depends on my say so whether the company will go on or the whole thing go up in smoke.” The result of the interview and conversation is stated by appellant as follows ; “ In talking over the matter we ultimately agreed that they would pay me 5,000 marks if I would consent to cancel half of my stock. I had $40,000 worth of stock at that time, face value.” The parties thereupon entered into the following writing: “We have bound ourselves to pay Mr. Hilmar Stephany the sum of 5,000 marks, only under the condition that the contract with the Columbian Moorish Palace Company of Chicago, requiring payment of the first installment in cash in the beginning of October of this year, will be punctually kept. Mr. Hilmar Stephany binds himself to return to Gastan Brothers the sum of 5,000 marks as soon as the stock of the above company reaches par.",
"Hilmak Stephany. Gebkbedek Gastan. September 12, 1892.” And such writing formed the basis of the suit brought by appellant against the appellees, and from the judgment therein, in favor of the appellees, this appeal is prosecuted. No part of the 5,000 marks mentioned in the writing of September 12, 1892, was ever paid. In considering the effect of the -writing between the parties, it is necessary to read it in connection with the contract between Castan Brothers and the Moorish Palace Company. By the terms of that contract two payments were to be made, and only two, by the Palace Company: one of $22,000 in cash (one-half of 183,260 reichmarks), by a deposit of that amount at the Deutsche Bank, in Berlin, or at the National Bank of Illinois, in Chicago, “ by October 1,1892;” and the other, of an equal amount, at its nominal (par) value, of the capital stock of the Palace Company, when the bargained goods should be accepted by an agent of the company.",
"By the terms of the writing between the parties to this suit, the appellees bound themselves to pay the 5,000 marks to the appellant, “ only under the condition that the contract with the Columbian Moorish Palace Company of Chicago, requiring payment of the first installment in cash in the beginning of October of this year, will be punctually kept.” Such condition refers, manifestly, to the cash payment of $22,000, to be deposited by the Palace Company, for the appellees, “ by October 1, 1892,” and its punctual payment was the essence of the promise to pay the 5,000 marks. The inquiry that ensues is, was such deposit made ? The deposit of $22,000 was made by the Palace Company on October 6, 1892, but upon conditions variant from those provided by the contract between Castan Brothers and the Palace Company.",
"On September 13, 1892, the board of directors of the Palace Company adopted a. resolution, without the sanction or knowledge, Until subsequently, of Castan Brothers, as follows: “ Eesolved, That the secretary be, and he is hereby, instructed to notify Gastan Bros., at Berlin, that this company refuses to pay over to Gastan Bros, the sum of $22,000 or thereabouts, on October 1, 1892, but instead will deposit said sum of money, together with a certificate of 220 shares of the capital stock of this company, in the national Bank of Illinois, at Chicago. Such money and such certificate to be paid over and delivered, respectively, to said Castan Bros, upon the delivery by them of the articles purchased as described in the contract of August 18, 1892.” Such resolution, or its effect, was under instructions to the secretary of the Palace Company, communicated to Castan Brothers, with something like a request for their consent to the modification of the contract, from a deposit as payment to one as security.",
"Probably after the letter of the secretary reached Castan Brothers, although not certainly so, they cabled to the Palace Company a dispatch, which was received on October 4th or 5th, 1892, as follows : “ Have ascertained deposit in national Bank of Illinois not made as promised in your letter. First make deposit, then talk about terms.” Subsequent to the receipt of that cablegram, the Palace Company deposited, on October 6, 1892, in the national Bank of Illinois, $22,000, upon the terms designated in its certificate of deposit, as follows: “The national Bank of Illinois certifies that it has received this date, namely, 6th October, 1892, from the Columbian Moorish Palace Company, the sum of twTenty-two thousand dollars, which sum is to be held by it as security for the payment to Castan Brothers of the sum of $22,000, as soon as they shall have delivered to the forwarding agent, to be designated by the Columbian Moorish Palace Company, the articles purchased and ordered by the Columbian Moorish Palace Company of Castan Brothers, as per contract of August 18, 1892.” It will be seen, by a comparison, that the terms recited in the certificate, are substantially like those in the resolu-. tion of the directors of the Palace Company, concerning the money being as security for payment to Castan Brothers, and not as payment itself. Apparently, Castan Brothers were paid one-half of the $22,000 some time in November, 1892, and the balance in February, 1898.",
"We will not discuss the argument that the payment of $22,000 to Castan Brothers depended upon the tender by them of a bill of - sale of the articles contained in the Panopticon at Hamburg—or, in other words, that the tender of such bill of sale was a condition precedent to the payment being made, further than to say that before the time of payment had arrived the Palace Company had by resolution refused to make the deposit as a payment, and, further, that the Palace Company never appear to have made any such a claim. It is, also, doubtful if any tender of a bill of sale were otherwise necessary. It could have been no more than a formality at best. The first clause of the contract was, in itself, a bill of sale of the goods for future delivery, in January and February, 1893, and required nothing further than a delivery of the goods to vest a perfect title in possession to the bargained articles. Nor is it necessary, in the view we take of the case, to consider the question of consideration for the agreement by Castan Brothers to pay appellant 5,000 marks.",
"We prefer to rest our decision upon the sole ground that, as between the appellant and Castan Brothers, the promise by the latter was but a conditional one, and that the condition was not performed. The facts that we' have stated need not be repeated. Where an obligation to pay money is dependent upon the action of a third person, over whom neither party to the obligation has control, such payment can not be exacted unless the specified act be performed. Miller v. Wilson, 37 Ill. App.",
"399. The condition here, that the Palace Company should punctually make the payment of $22,000, goes to the whole promise by the appellees, and the promise fell with the failure of the condition. The case of Cincinnati, S. & C. R. Co. v. Bensley, 51 Fed. Rep. 738, is in point, the opinion there being delivered by Mri Justice Brown, now of the United States Supreme Court. While there, as here, some “ fireside” equitable facts appear, they are not such as a court of law can enforce. The appellant, as shown by his own testimony, drove a sharp bargain with the appellees under the cover of circumstances, or a situation to which he held the key, and he can not complain in law if the appellees have chosen, as they were entitled to do, to stand upon the letter of their promise.",
"The judgment of the Circuit Court in favor of the appellees was right. It will, therefore, be affirmed."
] | https://www.courtlistener.com/api/rest/v3/opinions/6997900/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Exhibit 10.44
SUMMARY OF COMPENSATION ARRANGEMENTS
WITH NON-EMPLOYEE DIRECTORS
(Effective as of December 31, 2013)
The following summarizes the compensation and benefits received by the non-employee Directors of CryoLife as of December 31, 2013. It is intended to be a summary of compensation arrangements, and in no way is intended to provide any additional rights to any non-employee Director.
Annual Retainer and Committee Chair Fees
Each of the non-employee Directors of the Board of Directors of CryoLife receives an annual cash retainer of $40,000. Each committee chair also receives a fee in addition to the annual cash retainer in the amounts shown in the following table.
Annual Fees For Committee Chairs
Audit Committee
$ 15,000
Compensation Committee
$ 10,000
Nominating and Corporate Governance Committee
$ 7,500
Regulatory Affairs and Quality Assurance Policy Committee
$ 7,500
The Presiding Director also receives an additional $25,000 retainer paid in cash. CryoLife pays all cash retainers on a monthly basis. Currently, the Presiding Director is also the Chairman of the Nominating and Corporate Governance Committee and he does not receive any additional compensation for his position as Chairman of that committee.
Effective June 1, 2013, each committee member other than the Presiding Director also receives a fee, in addition to the annual cash retainer, in the amounts shown in the following table.
Annual Fees For Committee Members
Audit Committee
$ 7,500
Compensation Committee
$ 5,000
Nominating and Corporate Governance Committee
$ 3,750
Regulatory Affairs and Quality Assurance Policy Committee
$ 3,750
Restricted Stock Grants
Non-employee Directors of CryoLife are eligible for equity grants, which are generally made in May of each year. The annual equity portion of nonemployee Director compensation for fiscal 2013 was paid in the form of a grant of 10,000 shares of restricted stock. These shares were issued following the annual meeting of stockholders and vest on the first anniversary of issuance. The size and terms of the annual equity grant are subject to annual reevaluation by the Compensation Committee. If a Director ceases to serve as a Director for any reason, he will forfeit any unvested portion of the award. | [
"Exhibit 10.44 SUMMARY OF COMPENSATION ARRANGEMENTS WITH NON-EMPLOYEE DIRECTORS (Effective as of December 31, 2013) The following summarizes the compensation and benefits received by the non-employee Directors of CryoLife as of December 31, 2013. It is intended to be a summary of compensation arrangements, and in no way is intended to provide any additional rights to any non-employee Director. Annual Retainer and Committee Chair Fees Each of the non-employee Directors of the Board of Directors of CryoLife receives an annual cash retainer of $40,000. Each committee chair also receives a fee in addition to the annual cash retainer in the amounts shown in the following table. Annual Fees For Committee Chairs Audit Committee $ 15,000 Compensation Committee $ 10,000 Nominating and Corporate Governance Committee $ 7,500 Regulatory Affairs and Quality Assurance Policy Committee $ 7,500 The Presiding Director also receives an additional $25,000 retainer paid in cash. CryoLife pays all cash retainers on a monthly basis.",
"Currently, the Presiding Director is also the Chairman of the Nominating and Corporate Governance Committee and he does not receive any additional compensation for his position as Chairman of that committee. Effective June 1, 2013, each committee member other than the Presiding Director also receives a fee, in addition to the annual cash retainer, in the amounts shown in the following table. Annual Fees For Committee Members Audit Committee $ 7,500 Compensation Committee $ 5,000 Nominating and Corporate Governance Committee $ 3,750 Regulatory Affairs and Quality Assurance Policy Committee $ 3,750 Restricted Stock Grants Non-employee Directors of CryoLife are eligible for equity grants, which are generally made in May of each year. The annual equity portion of nonemployee Director compensation for fiscal 2013 was paid in the form of a grant of 10,000 shares of restricted stock. These shares were issued following the annual meeting of stockholders and vest on the first anniversary of issuance. The size and terms of the annual equity grant are subject to annual reevaluation by the Compensation Committee.",
"If a Director ceases to serve as a Director for any reason, he will forfeit any unvested portion of the award."
] | https://github.com/TheAtticusProject/cuad | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
|
PER CURIAM. | 07-24-2022 | [
"PER CURIAM."
] | https://www.courtlistener.com/api/rest/v3/opinions/7014271/ | 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 . Continued Examination Under 37 CFR 1.114 2. 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 05/13/2021 has been entered. Claim Rejections - 35 USC § 103 3. 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.
4. Claims 1, 3-4, 6-11, 13-14, 16-21, 24-27 and 30-34 are rejected under 35 U.S.C. 103 as being unpatentable over Lu et al. (US Patent Application Publication 2014/0126467 in view of Chen et al. (US Patent Application Publication 2014/0133317).
Regarding claims 1 and 11 Lu et al. discloses a network node/method configured to perform link adaptation, the network node comprising (see fig, 3 and 7): processing circuitry including a memory and a processor; the memory configured to store a channel quality measure, gain increment values, and a hysteresis value( see when the channel quality measure is greater than the first predetermined amount, perform a first outer loop adjustment process, the first outer loop adjustment process directed to determining link adaptation for a first data transmission transmitted to a wireless device ( see fig. 5, see [0037-38] The first outer loop 26-1 adjustment is based on CSI reports values. The link adaptation function 28-1 for the first subframe (SF.sub.1) performs link adaptation for downlink transmissions to the mobile terminal 16 scheduled for the first subframe (SF.sub.1) based on the SINR offset for the first subframe (SF.sub.1) from the outer loop 26-1 and CSI reports from the mobile terminal 16. Each CSI report includes a channel quality SINR for the downlink channel from the base station 14 to the mobile terminal 16. In general, MCS is selected such that the MCS increases (i.e., is more aggressive) as the sum of the channel quality SINR and the SINR offset increases and decreases (i.e., is less aggressive) as the sum of the channel quality SINR and the SINR offset decreases.)and when the channel quality measure is less than a second predetermined amount, perform a second outer loop adjustment process, the second outer loop adjustment process directed to determining link adaptation for a second data transmission to the wireless device ( see fig. 5, second outer loop adjustment, outer loop 26-2 adjustment is Lu et al. fail to specifically point out wherein the first data transmission is two code words and the first outer loop adjustment process uses a first increment to adjust a first gain to interference plus noise ratio (GINR) and uses a second increment to adjust a second GINR as claimed. Chen et al. teaches wherein the first data transmission is two code words and the first outer loop adjustment process uses a first increment to adjust a first gain to interference plus noise ratio (GINR) and uses a second increment to adjust a second GINR ( see fig. 7, GINR calculation ( reads on adjusting by increments), see [0100-101] the pre-switch transmission mode uses two adjusted GINR values ( incremented) for two codewords, the initial value for two code words can be calculated from Expression (13) GINR_Adj0=GINR_Adj1=GINR_Adj Expression (13). And second expression isused to calculate a second GINR ( GINR_Adj=(GINR_Adj0+GINR_Adj1)/2 Expression (14) ) ) .
Regarding Claims 3 and 13 Lu et al. in view of Chen et al. discloses everything as applied above (see claims 1 and 11). wherein the second outer loop adjustment process converges faster than the first outer loop adjustment process.( see [0050] Each of the outer loops 34-1 through 34-N.sub.SB is for a different subframe bundle. Each subframe bundle includes two or more of the subframes in the downlink frame structure (FIG. 2). The specific subframe bundles depend on the uplink and downlink configuration. Therefore the second outer loop will converge faster when smaller and or less processing is needed than the first outer loop. ) Regarding Claims 4 and 14 Lu et al. in view of Chen et al. discloses everything as applied above (see claims 1 and 11). Lu et al. fail to specifically point out wherein the first data transmission is one code word and the first outer loop adjustment process uses a first increment to adjust a gain to interference plus noise ratio (GINR) as claimed. However Chen et al. teaches wherein the first data transmission is one code word and the first outer loop adjustment process uses a first increment to adjust a gain to interference plus noise ratio (GINR)( see fig. 7, see [0095] Since space frequency block code (SFBC) [third mode] has only one codeword, its GINR outer-loop adjustment is Therefore it would have been obvious to one of ordinary skills in the art before the effective filing date of the claimed invention to combine Lu et al. invention with Chen et al. invention because Chen et al. invention provide various example techniques for the controller to determine the GINR adjusted value( see Chen et al. [0022]). Regarding Claims 6 and 16 Lu et al. in view of Chen et al. discloses everything as applied above (see claims 1 and 11). Lu et al. fail to specifically point out wherein the first data transmission is N code words, N being an integer greater than 2, the first outer loop adjustment process using a different increment to adjust a gain to interference plus noise ratio for each of the N code words as claimed. Chen et al. teaches wherein the first data transmission is N code words, N being an integer greater than 2, the first outer loop adjustment process using a different increment to adjust a gain to interference plus noise ratio for each of the N code words( see [0101] when a pre-switch transmission mode uses only one adjusted GINR value for either one codeword or two codewords and a post-switch transmission mode uses two adjusted GINR values for two codewords, after the switch a post-switch transmission mode is begun using the one adjusted GINR value acquired from the pre-switch transmission mode as both of the two adjusted GINR values for the post-switch transmission mode).
Regarding Claims 7, 17, 21, 23-24 and 29-30 Lu et al. discloses everything as applied above (see claims 1, 11, 21 and 27). Lu et al. fail to specifically point out wherein the first outer loop adjustment process comprises three loops and includes: in a first loop used for the first data transmission, when the first data transmission is a one code word transmission: determining an amount of a first increment to be applied to a first gain to interference plus noise ratio (GINR) corresponding to the one code word transmission; and determining based at least in part on the first GINR, at least one of a modulation and coding level to apply to the one code word; and in a second loop and a third loop used for the first data transmission, when the first data transmission is a two code word transmission: determining an amount of a second increment to be applied to a second GINR corresponding to a first of the two code words; determining based at least in part on the second GINR, at least one of a modulation and coding level to apply to the first of the two code words; determining an amount of a third increment to be applied to a third GINR corresponding to a second of the two code words; and determining based at least in part on the third GINR, at least one of a modulation and coding level to apply to the second of the two code words , incrementing a first gain to interference plus noise ratio (GINR) by the first gain increment and determining based at least in part on the wherein the first outer loop adjustment process converges faster than the second outer loop adjustment process.( see [0050] Each of the outer loops 34-1 through 34-N.sub.SB is for a different subframe bundle. Each subframe bundle includes two or more of the subframes in the downlink frame structure (FIG. 2). The specific subframe bundles depend on the uplink and downlink configuration. Therefore the second outer loop will converge faster when smaller and or less processing is needed than the first outer loop. ) Chen et al. teaches wherein the first outer loop adjustment process comprises three loops and include (see fig. 2 & 8, three mode loops): in a first loop used for the first data transmission, when the first data transmission is a one code word transmission( see [0097] the first mode (open loop MIMO which operates with cyclical diversity delay), GINR estimation for one codeword is required since both codewords experience the same channel condition.): Chen et al. teaches determining an amount of a first increment to be applied to a first gain to interference plus noise ratio (GINR) corresponding to the one code word transmission(see [0101] An another example, when the pre-switch transmission mode uses two adjusted GINR values for two codewords, and the post-switch transmission mode uses one adjusted GINR value for either one codeword or two codewords, the two adjusted GINR values are averaged to obtain the one adjusted GINR value for the post-switch transmission mode.) ; and Chen et al. teaches determining based at least in part on the first GINR, at least one of a modulation and coding level to apply to the one code word( see fig. 7-8, see Chen et al. teaches incrementing a first gain to interference plus noise ratio (GINR) by the first gain increment and determining based at least in part on the incremented first GINR at least one of a modulation and coding level to apply to data to be transmitted on a first codeword ( see fig. 7 and 9B, see[0090] Act 7-8 depicts the output of the resultant throughput value estimation, which can be used for both transmission switching and link adaptation algorithm performed by controller 36. Link adaptation, or adaptive coding and modulation (ACM), is employed by controller 36 for matching of the modulation, coding and other signal and protocol parameters to the conditions on the radio link (e.g., the pathloss, the interference due to signals coming from other transmitters, the sensitivity of the receiver, the available transmitter power margin, etc. this step is calculated after the GINR calculation). in a second loop and a third loop used for the first data transmission, when the first data transmission is a two code word transmission( see [0099] the second mode (open loop MIMO which operates without cyclical diversity delay), the GINR needs to be estimated separately for each code word, since they experience different channel conditions.):
determining based at least in part on the second GINR, at least one of a modulation and coding level to apply to the first of the two code words( see fig. 8, see [0108] the wireless terminal needs to report PMI, RI, and CQIs for two codewords. ); determining an amount of a third increment to be applied to a third GINR corresponding to a second of the two code words (see [0101] An another example, when the pre-switch transmission mode uses two adjusted GINR values for two codewords, and the post-switch transmission mode uses one adjusted GINR value for either one codeword or two codewords, the two adjusted GINR values are averaged to obtain the one adjusted GINR value for the post-switch transmission mode.) ; and determining based at least in part on the third GINR, at least one of a modulation and coding level to apply to the second of the two code words( see fig. 8, see [0108] the wireless terminal needs to report PMI, RI, and CQIs for two codewords. ). Therefore it would have been obvious to one of ordinary skills in the art before the effective filing date of the claimed invention to combine Lu et al. invention with Chen et al. invention because Chen et al. invention provide various example techniques for the controller to determine the GINR adjusted value( see Chen et al. [0022]). Claims 8 and 18 Lu et al. in view of Chen et al. discloses everything as applied above (see claims 7 and 17). Lu et al. fail to specifically point out wherein, when the first increment is not updated for a predetermined period of time, the first increment is updated with an average of the second and third increments as claimed. wherein, when the first increment is not updated for a predetermined period of time, the first increment is updated with an average of the second and third increments( see [0101] An another example, when the pre-switch transmission mode uses two adjusted GINR values for two codewords, and the post-switch transmission mode uses one adjusted GINR value for either one codeword or two codewords, the two adjusted GINR values are averaged to obtain the one adjusted GINR value for the post-switch transmission mode. ) . Therefore it would have been obvious to one of ordinary skills in the art before the effective filing date of the claimed invention to combine Lu et al. invention with Chen et al. invention because Chen et al. invention provide various example techniques for the controller to determine the GINR adjusted value( see Chen et al. [0022]). Regarding Claims 9 and 19 Lu et al. in view of Chen et al. discloses everything as applied above (see claims 7 and 17). Lu et al. fail to specifically point out wherein, when the second and third increments are not updated for a predetermined period of time, the second and third increments are updated with the first increment as claimed.
Therefore it would have been obvious to one of ordinary skills in the art before the effective filing date of the claimed invention to combine Lu et al. invention with Chen et al. invention because Chen et al. invention provide various example techniques for the controller to determine the GINR adjusted value( see Chen et al. [0022]). Regarding Claims 10 and 20 Lu et al. in view of Chen et al. discloses everything as applied above (see claims 1 and 11). Lu et al. fail to specifically point out wherein the second outer loop adjustment process comprises a single loop and includes, when the second data transmission is one of a one code word and two code word transmission: determining an amount of an increment to be applied to a gain to interference plus noise ratio (GINR); and determining based at least in part on the GINR, at least one of a modulation and coding level to apply to the second data transmission as claimed.
Therefore it would have been obvious to one of ordinary skills in the art before the effective filing date of the claimed invention to combine Lu et al. invention with Chen et al. invention because Chen et al. invention provide various example techniques for the controller to determine the GINR adjusted value( see Chen et al. [0022]). Regarding Claims 25 and 31 Lu et al. in view of Chen et al. discloses everything as applied above (see claims 21 and 27). Lu et al. fail to specifically point out wherein adjustment in the first outer loop is based on hybrid automatic repeat request (HARQ) feedback for the first code word during one of one and two code word transmission and adjustment in the second outer loop is based on HARQ feedback for the second code word during two code word transmission as claimed. Chen et al. teaches wherein adjustment in the first outer loop is based on hybrid automatic repeat request (HARQ) feedback for the first code word during one of one Therefore it would have been obvious to one of ordinary skills in the art before the effective filing date of the claimed invention to combine Lu et al. invention with Chen et al. invention because Chen et al. invention provide various example techniques for the controller to determine the GINR adjusted value( see Chen et al. [0022]). Regarding Claims 26 and 32 Lu et al. in view of Chen et al. discloses everything as applied above (see claims 21 and 27). Lu et al. fail to specifically point out wherein the first gain increment is selected to track channel conditions for both one code word and two code word transmissions when a signal to interference plus noise (SINR) is less than a threshold as claimed. Chen et al. teaches wherein the first gain increment is selected to track channel conditions for both one code word and two code word transmissions when a signal to interference plus noise (SINR) is less than a threshold( see [0078] n the first mode (open loop MIMO which operates with cyclical diversity delay), if the terminal speed value exceeds the terminal speed threshold T1, or if the throughput value for the respective branch Z is less than the second threshold T2, the transmit switch controller 40 continues with act 4-6(Z)) .
Regarding Claims 33-34 Lu et al. in view of Chen et al. discloses everything as applied above (see claims 1 and 11). wherein the first predetermined amount is a threshold plus a hysteresis value and the second predetermined amount is the threshold minus the hysteresis value (see fig. 6, SINR offset, (see fig. 5 and 9, see [0037] a SINR offset step-up size when increasing the SINR offset and a SINR offset step-down size when decreasing the SINR offset are a function of the target BLER. In one particular embodiment, the step-up size and the step-down size are defined as: Target BLER = 1 1 + SINR offset step - down size SINR offset step - up size. see also [0056] BLERs in the range of 0 to 10% for the first subframe group; the second subframe group have BLERs in the range of 10 to 20% the hysteresis value is the percentage range)
Response to Arguments 5. Applicant's arguments filed 5/13/2021 have been fully considered but they are not persuasive. In the remarks on pg. 11-12 of the amendment, the applicant contends that Lu et al. does not teach or suggest “wherein the first data transmission is two code words and the first outer loop adjustment process uses a first increment to adjust a first gain to Examiner respectfully disagrees Chen et al. teaches in fig. 7, GINR calculation ( reads on adjusting by increments), In [0100-101] the pre-switch transmission mode uses two adjusted GINR values ( incremented) for two codewords, the initial value for two code words can be calculated from Expression GINR_Adj0=GINR_Adj1=GINR_Adj Expression (13). And second expression is used to calculate a second GINR ( GINR_Adj=(GINR_Adj0+GINR_Adj1)/2 Expression (14) ) ) Therefore the limitation is not patentable distinct. In the remarks on pg. 12-14 of the amendment, the applicant contends that Lu et al. does not teach or suggest “incrementing a first gain to interference plus noise ratio (GINR) by the first gain increment and determining based at least in part on the incremented first GINR at least one of a modulation and coding level to apply to data to be transmitted on a first codeword” Examiner respectfully disagrees Chen et al. teaches in fig. 7, 9B, and [0090] Act 7-8 depicts the output of the resultant throughput value estimation, which can be used for both transmission switching and link adaptation algorithm performed by controller 36. Link adaptation, or adaptive coding and modulation (ACM), is employed by controller 36 for matching of the modulation, coding and other signal and protocol parameters to the conditions on the radio link (e.g., the pathloss, the interference due to signals coming from other transmitters, the sensitivity of the receiver, the available transmitter power margin, etc. this step is calculated after the GINR calculation. The modulation and coding steps after the GINR calculation. Therefore claim limitation is not patentable distinct. Conclusion 6. Any inquiry concerning this communication or earlier communications from the examiner should be directed to MON CHERI S DAVENPORT whose telephone number is (571)270-1803. The examiner can normally be reached on M to F 9am to 6pm. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Yemane Mesfin can be reached on (571) 272-3927. 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.
/YEMANE MESFIN/ Supervisory Patent Examiner, Art Unit 2462 | 2021-08-24T12:43:15 | [
"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 2. 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 05/13/2021 has been entered. Claim Rejections - 35 USC § 103 3. 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.",
"4. Claims 1, 3-4, 6-11, 13-14, 16-21, 24-27 and 30-34 are rejected under 35 U.S.C. 103 as being unpatentable over Lu et al. (US Patent Application Publication 2014/0126467 in view of Chen et al. (US Patent Application Publication 2014/0133317). Regarding claims 1 and 11 Lu et al. discloses a network node/method configured to perform link adaptation, the network node comprising (see fig, 3 and 7): processing circuitry including a memory and a processor; the memory configured to store a channel quality measure, gain increment values, and a hysteresis value( see when the channel quality measure is greater than the first predetermined amount, perform a first outer loop adjustment process, the first outer loop adjustment process directed to determining link adaptation for a first data transmission transmitted to a wireless device ( see fig.",
"5, see [0037-38] The first outer loop 26-1 adjustment is based on CSI reports values. The link adaptation function 28-1 for the first subframe (SF.sub.1) performs link adaptation for downlink transmissions to the mobile terminal 16 scheduled for the first subframe (SF.sub.1) based on the SINR offset for the first subframe (SF.sub.1) from the outer loop 26-1 and CSI reports from the mobile terminal 16. Each CSI report includes a channel quality SINR for the downlink channel from the base station 14 to the mobile terminal 16. In general, MCS is selected such that the MCS increases (i.e., is more aggressive) as the sum of the channel quality SINR and the SINR offset increases and decreases (i.e., is less aggressive) as the sum of the channel quality SINR and the SINR offset decreases. )and when the channel quality measure is less than a second predetermined amount, perform a second outer loop adjustment process, the second outer loop adjustment process directed to determining link adaptation for a second data transmission to the wireless device ( see fig.",
"5, second outer loop adjustment, outer loop 26-2 adjustment is Lu et al. fail to specifically point out wherein the first data transmission is two code words and the first outer loop adjustment process uses a first increment to adjust a first gain to interference plus noise ratio (GINR) and uses a second increment to adjust a second GINR as claimed. Chen et al. teaches wherein the first data transmission is two code words and the first outer loop adjustment process uses a first increment to adjust a first gain to interference plus noise ratio (GINR) and uses a second increment to adjust a second GINR ( see fig. 7, GINR calculation ( reads on adjusting by increments), see [0100-101] the pre-switch transmission mode uses two adjusted GINR values ( incremented) for two codewords, the initial value for two code words can be calculated from Expression (13) GINR_Adj0=GINR_Adj1=GINR_Adj Expression (13). And second expression isused to calculate a second GINR ( GINR_Adj=(GINR_Adj0+GINR_Adj1)/2 Expression (14) ) ) .",
"Regarding Claims 3 and 13 Lu et al. in view of Chen et al. discloses everything as applied above (see claims 1 and 11). wherein the second outer loop adjustment process converges faster than the first outer loop adjustment process. ( see [0050] Each of the outer loops 34-1 through 34-N.sub.SB is for a different subframe bundle. Each subframe bundle includes two or more of the subframes in the downlink frame structure (FIG. 2). The specific subframe bundles depend on the uplink and downlink configuration.",
"Therefore the second outer loop will converge faster when smaller and or less processing is needed than the first outer loop. ) Regarding Claims 4 and 14 Lu et al. in view of Chen et al. discloses everything as applied above (see claims 1 and 11). Lu et al. fail to specifically point out wherein the first data transmission is one code word and the first outer loop adjustment process uses a first increment to adjust a gain to interference plus noise ratio (GINR) as claimed. However Chen et al. teaches wherein the first data transmission is one code word and the first outer loop adjustment process uses a first increment to adjust a gain to interference plus noise ratio (GINR)( see fig.",
"7, see [0095] Since space frequency block code (SFBC) [third mode] has only one codeword, its GINR outer-loop adjustment is Therefore it would have been obvious to one of ordinary skills in the art before the effective filing date of the claimed invention to combine Lu et al. invention with Chen et al. invention because Chen et al. invention provide various example techniques for the controller to determine the GINR adjusted value( see Chen et al. [0022]). Regarding Claims 6 and 16 Lu et al. in view of Chen et al.",
"discloses everything as applied above (see claims 1 and 11). Lu et al. fail to specifically point out wherein the first data transmission is N code words, N being an integer greater than 2, the first outer loop adjustment process using a different increment to adjust a gain to interference plus noise ratio for each of the N code words as claimed. Chen et al. teaches wherein the first data transmission is N code words, N being an integer greater than 2, the first outer loop adjustment process using a different increment to adjust a gain to interference plus noise ratio for each of the N code words( see [0101] when a pre-switch transmission mode uses only one adjusted GINR value for either one codeword or two codewords and a post-switch transmission mode uses two adjusted GINR values for two codewords, after the switch a post-switch transmission mode is begun using the one adjusted GINR value acquired from the pre-switch transmission mode as both of the two adjusted GINR values for the post-switch transmission mode). Regarding Claims 7, 17, 21, 23-24 and 29-30 Lu et al.",
"discloses everything as applied above (see claims 1, 11, 21 and 27). Lu et al. fail to specifically point out wherein the first outer loop adjustment process comprises three loops and includes: in a first loop used for the first data transmission, when the first data transmission is a one code word transmission: determining an amount of a first increment to be applied to a first gain to interference plus noise ratio (GINR) corresponding to the one code word transmission; and determining based at least in part on the first GINR, at least one of a modulation and coding level to apply to the one code word; and in a second loop and a third loop used for the first data transmission, when the first data transmission is a two code word transmission: determining an amount of a second increment to be applied to a second GINR corresponding to a first of the two code words; determining based at least in part on the second GINR, at least one of a modulation and coding level to apply to the first of the two code words; determining an amount of a third increment to be applied to a third GINR corresponding to a second of the two code words; and determining based at least in part on the third GINR, at least one of a modulation and coding level to apply to the second of the two code words , incrementing a first gain to interference plus noise ratio (GINR) by the first gain increment and determining based at least in part on the wherein the first outer loop adjustment process converges faster than the second outer loop adjustment process.",
"( see [0050] Each of the outer loops 34-1 through 34-N.sub.SB is for a different subframe bundle. Each subframe bundle includes two or more of the subframes in the downlink frame structure (FIG. 2). The specific subframe bundles depend on the uplink and downlink configuration. Therefore the second outer loop will converge faster when smaller and or less processing is needed than the first outer loop. ) Chen et al. teaches wherein the first outer loop adjustment process comprises three loops and include (see fig. 2 & 8, three mode loops): in a first loop used for the first data transmission, when the first data transmission is a one code word transmission( see [0097] the first mode (open loop MIMO which operates with cyclical diversity delay), GINR estimation for one codeword is required since both codewords experience the same channel condition. ): Chen et al.",
"teaches determining an amount of a first increment to be applied to a first gain to interference plus noise ratio (GINR) corresponding to the one code word transmission(see [0101] An another example, when the pre-switch transmission mode uses two adjusted GINR values for two codewords, and the post-switch transmission mode uses one adjusted GINR value for either one codeword or two codewords, the two adjusted GINR values are averaged to obtain the one adjusted GINR value for the post-switch transmission mode.) ; and Chen et al. teaches determining based at least in part on the first GINR, at least one of a modulation and coding level to apply to the one code word( see fig. 7-8, see Chen et al. teaches incrementing a first gain to interference plus noise ratio (GINR) by the first gain increment and determining based at least in part on the incremented first GINR at least one of a modulation and coding level to apply to data to be transmitted on a first codeword ( see fig.",
"7 and 9B, see[0090] Act 7-8 depicts the output of the resultant throughput value estimation, which can be used for both transmission switching and link adaptation algorithm performed by controller 36. Link adaptation, or adaptive coding and modulation (ACM), is employed by controller 36 for matching of the modulation, coding and other signal and protocol parameters to the conditions on the radio link (e.g., the pathloss, the interference due to signals coming from other transmitters, the sensitivity of the receiver, the available transmitter power margin, etc. this step is calculated after the GINR calculation). in a second loop and a third loop used for the first data transmission, when the first data transmission is a two code word transmission( see [0099] the second mode (open loop MIMO which operates without cyclical diversity delay), the GINR needs to be estimated separately for each code word, since they experience different channel conditions. ): determining based at least in part on the second GINR, at least one of a modulation and coding level to apply to the first of the two code words( see fig.",
"8, see [0108] the wireless terminal needs to report PMI, RI, and CQIs for two codewords. ); determining an amount of a third increment to be applied to a third GINR corresponding to a second of the two code words (see [0101] An another example, when the pre-switch transmission mode uses two adjusted GINR values for two codewords, and the post-switch transmission mode uses one adjusted GINR value for either one codeword or two codewords, the two adjusted GINR values are averaged to obtain the one adjusted GINR value for the post-switch transmission mode.) ; and determining based at least in part on the third GINR, at least one of a modulation and coding level to apply to the second of the two code words( see fig.",
"8, see [0108] the wireless terminal needs to report PMI, RI, and CQIs for two codewords. ). Therefore it would have been obvious to one of ordinary skills in the art before the effective filing date of the claimed invention to combine Lu et al. invention with Chen et al. invention because Chen et al. invention provide various example techniques for the controller to determine the GINR adjusted value( see Chen et al. [0022]). Claims 8 and 18 Lu et al. in view of Chen et al. discloses everything as applied above (see claims 7 and 17).",
"Lu et al. fail to specifically point out wherein, when the first increment is not updated for a predetermined period of time, the first increment is updated with an average of the second and third increments as claimed. wherein, when the first increment is not updated for a predetermined period of time, the first increment is updated with an average of the second and third increments( see [0101] An another example, when the pre-switch transmission mode uses two adjusted GINR values for two codewords, and the post-switch transmission mode uses one adjusted GINR value for either one codeword or two codewords, the two adjusted GINR values are averaged to obtain the one adjusted GINR value for the post-switch transmission mode. ) . Therefore it would have been obvious to one of ordinary skills in the art before the effective filing date of the claimed invention to combine Lu et al. invention with Chen et al.",
"invention because Chen et al. invention provide various example techniques for the controller to determine the GINR adjusted value( see Chen et al. [0022]). Regarding Claims 9 and 19 Lu et al. in view of Chen et al. discloses everything as applied above (see claims 7 and 17). Lu et al. fail to specifically point out wherein, when the second and third increments are not updated for a predetermined period of time, the second and third increments are updated with the first increment as claimed. Therefore it would have been obvious to one of ordinary skills in the art before the effective filing date of the claimed invention to combine Lu et al. invention with Chen et al. invention because Chen et al. invention provide various example techniques for the controller to determine the GINR adjusted value( see Chen et al. [0022]).",
"Regarding Claims 10 and 20 Lu et al. in view of Chen et al. discloses everything as applied above (see claims 1 and 11). Lu et al. fail to specifically point out wherein the second outer loop adjustment process comprises a single loop and includes, when the second data transmission is one of a one code word and two code word transmission: determining an amount of an increment to be applied to a gain to interference plus noise ratio (GINR); and determining based at least in part on the GINR, at least one of a modulation and coding level to apply to the second data transmission as claimed. Therefore it would have been obvious to one of ordinary skills in the art before the effective filing date of the claimed invention to combine Lu et al.",
"invention with Chen et al. invention because Chen et al. invention provide various example techniques for the controller to determine the GINR adjusted value( see Chen et al. [0022]). Regarding Claims 25 and 31 Lu et al. in view of Chen et al. discloses everything as applied above (see claims 21 and 27). Lu et al. fail to specifically point out wherein adjustment in the first outer loop is based on hybrid automatic repeat request (HARQ) feedback for the first code word during one of one and two code word transmission and adjustment in the second outer loop is based on HARQ feedback for the second code word during two code word transmission as claimed.",
"Chen et al. teaches wherein adjustment in the first outer loop is based on hybrid automatic repeat request (HARQ) feedback for the first code word during one of one Therefore it would have been obvious to one of ordinary skills in the art before the effective filing date of the claimed invention to combine Lu et al. invention with Chen et al. invention because Chen et al. invention provide various example techniques for the controller to determine the GINR adjusted value( see Chen et al. [0022]). Regarding Claims 26 and 32 Lu et al.",
"in view of Chen et al. discloses everything as applied above (see claims 21 and 27). Lu et al. fail to specifically point out wherein the first gain increment is selected to track channel conditions for both one code word and two code word transmissions when a signal to interference plus noise (SINR) is less than a threshold as claimed. Chen et al. teaches wherein the first gain increment is selected to track channel conditions for both one code word and two code word transmissions when a signal to interference plus noise (SINR) is less than a threshold( see [0078] n the first mode (open loop MIMO which operates with cyclical diversity delay), if the terminal speed value exceeds the terminal speed threshold T1, or if the throughput value for the respective branch Z is less than the second threshold T2, the transmit switch controller 40 continues with act 4-6(Z)) .",
"Regarding Claims 33-34 Lu et al. in view of Chen et al. discloses everything as applied above (see claims 1 and 11). wherein the first predetermined amount is a threshold plus a hysteresis value and the second predetermined amount is the threshold minus the hysteresis value (see fig. 6, SINR offset, (see fig. 5 and 9, see [0037] a SINR offset step-up size when increasing the SINR offset and a SINR offset step-down size when decreasing the SINR offset are a function of the target BLER.",
"In one particular embodiment, the step-up size and the step-down size are defined as: Target BLER = 1 1 + SINR offset step - down size SINR offset step - up size. see also [0056] BLERs in the range of 0 to 10% for the first subframe group; the second subframe group have BLERs in the range of 10 to 20% the hysteresis value is the percentage range) Response to Arguments 5. Applicant's arguments filed 5/13/2021 have been fully considered but they are not persuasive. In the remarks on pg. 11-12 of the amendment, the applicant contends that Lu et al. does not teach or suggest “wherein the first data transmission is two code words and the first outer loop adjustment process uses a first increment to adjust a first gain to Examiner respectfully disagrees Chen et al. teaches in fig. 7, GINR calculation ( reads on adjusting by increments), In [0100-101] the pre-switch transmission mode uses two adjusted GINR values ( incremented) for two codewords, the initial value for two code words can be calculated from Expression GINR_Adj0=GINR_Adj1=GINR_Adj Expression (13). And second expression is used to calculate a second GINR ( GINR_Adj=(GINR_Adj0+GINR_Adj1)/2 Expression (14) ) ) Therefore the limitation is not patentable distinct.",
"In the remarks on pg. 12-14 of the amendment, the applicant contends that Lu et al. does not teach or suggest “incrementing a first gain to interference plus noise ratio (GINR) by the first gain increment and determining based at least in part on the incremented first GINR at least one of a modulation and coding level to apply to data to be transmitted on a first codeword” Examiner respectfully disagrees Chen et al. teaches in fig. 7, 9B, and [0090] Act 7-8 depicts the output of the resultant throughput value estimation, which can be used for both transmission switching and link adaptation algorithm performed by controller 36. Link adaptation, or adaptive coding and modulation (ACM), is employed by controller 36 for matching of the modulation, coding and other signal and protocol parameters to the conditions on the radio link (e.g., the pathloss, the interference due to signals coming from other transmitters, the sensitivity of the receiver, the available transmitter power margin, etc. this step is calculated after the GINR calculation.",
"The modulation and coding steps after the GINR calculation. Therefore claim limitation is not patentable distinct. Conclusion 6. Any inquiry concerning this communication or earlier communications from the examiner should be directed to MON CHERI S DAVENPORT whose telephone number is (571)270-1803. The examiner can normally be reached on M to F 9am to 6pm. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Yemane Mesfin can be reached on (571) 272-3927. 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. /YEMANE MESFIN/ Supervisory Patent Examiner, Art Unit 2462"
] | https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-08-29.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 .
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 21-30 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. Claim 21 recites “A method for connecting two dissimilar materials having different melting points”. However, the body of the claim does not refer back to the preamble and thus it is unclear as to which materials are to have different melting points. For the purpose of this examination, this limitation will be interpreted as any of the first through third materials.
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 21-30 are rejected under 35 U.S.C. 102a1 as being anticipated by Steel et al. (US 2017/0197274 A1). Regarding claim 21, Steel discloses: A method for connecting two dissimilar materials having different melting points [abstract, 0017], the method comprising: placing a first material [inserts (46); 0062-0068] within a groove [grooves (44)] of a second material [workpiece (40); 0053, 0056, 0058], the first material leaving at least a portion of the groove vacant [0066, 0070, 0072, and figure 5]; placing a third material [workpiece (42); 0066], directly upon the second material and over the groove [see figure 6], wherein the first and third materials are different materials of different composition [0068]; and using friction stir welding to heat the first and third materials to a temperature sufficient to plasticize the first and third materials within the groove and form a mixture of the first and third materials within the groove [0067]. Regarding claim 22, Steel discloses: wherein the first, second, and third materials are all different materials [materials (40, 42, 46) all have different shapes]. Regarding claim 23, Steel discloses: wherein said heating is controlled to prevent overheating [it is inherent that Steel prevents overheating because a satisfactory weld is produced]. Regarding claim 24, Steel discloses: wherein the first material is different than the second material [this is addressed in the rejection of claims 21 and 22 above]. Regarding claim 25, Steel discloses: wherein said groove defines a dovetail [0058]. Regarding claim 26, Steel discloses: wherein the third material is extruded into the groove [0070]. Regarding claim 27, Steel discloses: wherein the first material is loosely placed in the groove of the second material [0072]. Regarding claim 28, Steel discloses: wherein the first material is provided in the form of a bar within the groove of the second material [0062]. Regarding claim 29, Steel discloses: wherein the portion occupies either or both lateral edges of the first material [see figure 44]. Regarding claim 30, Steel discloses: wherein the third material fills at least some of the portion [0070].
Response to Arguments 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 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 CARLOS J GAMINO whose telephone number is (571)270-5826. The examiner can normally be reached M-F 9-6. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Keith Walker can be reached on 5712723458. 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.
/CARLOS J GAMINO/Examiner, Art Unit 1735 /ERIN B SAAD/Primary Examiner, Art Unit 1735 | 2022-09-02T11:07:03 | [
"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 21-30 are rejected under 35 U.S.C.",
"112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. Claim 21 recites “A method for connecting two dissimilar materials having different melting points”. However, the body of the claim does not refer back to the preamble and thus it is unclear as to which materials are to have different melting points.",
"For the purpose of this examination, this limitation will be interpreted as any of the first through third materials. 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 21-30 are rejected under 35 U.S.C. 102a1 as being anticipated by Steel et al.",
"(US 2017/0197274 A1). Regarding claim 21, Steel discloses: A method for connecting two dissimilar materials having different melting points [abstract, 0017], the method comprising: placing a first material [inserts (46); 0062-0068] within a groove [grooves (44)] of a second material [workpiece (40); 0053, 0056, 0058], the first material leaving at least a portion of the groove vacant [0066, 0070, 0072, and figure 5]; placing a third material [workpiece (42); 0066], directly upon the second material and over the groove [see figure 6], wherein the first and third materials are different materials of different composition [0068]; and using friction stir welding to heat the first and third materials to a temperature sufficient to plasticize the first and third materials within the groove and form a mixture of the first and third materials within the groove [0067]. Regarding claim 22, Steel discloses: wherein the first, second, and third materials are all different materials [materials (40, 42, 46) all have different shapes].",
"Regarding claim 23, Steel discloses: wherein said heating is controlled to prevent overheating [it is inherent that Steel prevents overheating because a satisfactory weld is produced]. Regarding claim 24, Steel discloses: wherein the first material is different than the second material [this is addressed in the rejection of claims 21 and 22 above]. Regarding claim 25, Steel discloses: wherein said groove defines a dovetail [0058]. Regarding claim 26, Steel discloses: wherein the third material is extruded into the groove [0070]. Regarding claim 27, Steel discloses: wherein the first material is loosely placed in the groove of the second material [0072].",
"Regarding claim 28, Steel discloses: wherein the first material is provided in the form of a bar within the groove of the second material [0062]. Regarding claim 29, Steel discloses: wherein the portion occupies either or both lateral edges of the first material [see figure 44]. Regarding claim 30, Steel discloses: wherein the third material fills at least some of the portion [0070]. Response to Arguments 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 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 CARLOS J GAMINO whose telephone number is (571)270-5826. The examiner can normally be reached M-F 9-6. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Keith Walker can be reached on 5712723458.",
"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. /CARLOS J GAMINO/Examiner, Art Unit 1735 /ERIN B SAAD/Primary Examiner, Art Unit 1735"
] | https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-09-11.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
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 . Amendment received on April 19, 2022 has been acknowledged. Claims 14-16 have been added. Therefore, claims 1-16 are pending.
Allowable Subject Matter Claims 1-16 are allowed. A statement of reasons for allowance for claims 1-16 can be found in office action dated 1/19/2022. Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to JENNIFER C CHIANG whose telephone number is (571)270-5613. The examiner can normally be reached Mon-Fri 10 AM- 6 PM EST. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, David P Angwin can be reached on (571) 270-3735. 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.
/JENNIFER C CHIANG/Primary Examiner, Art Unit 3754 | 2022-07-29T02:17:30 | [
"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 . Amendment received on April 19, 2022 has been acknowledged. Claims 14-16 have been added. Therefore, claims 1-16 are pending. Allowable Subject Matter Claims 1-16 are allowed. A statement of reasons for allowance for claims 1-16 can be found in office action dated 1/19/2022. Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to JENNIFER C CHIANG whose telephone number is (571)270-5613. The examiner can normally be reached Mon-Fri 10 AM- 6 PM EST. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.",
"If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, David P Angwin can be reached on (571) 270-3735. 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. /JENNIFER C CHIANG/Primary Examiner, Art Unit 3754"
] | https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-07-31.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
{¶ 20} I dissent because the record before us contains the contract clauses in question and, as a matter of law, R.C.1302.18(B) applies to them. The record indicates that the trial court did not apply that section, thus it erred as a matter of law. JUDGMENT ENTRY It is ordered that the judgment be affirmed and that appellee recover of appellant costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Washington County Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. Kline, P.J. Abele, J.: Concur in Judgment Opinion. Harsha, J.: Dissents with Dissenting Opinion. | 07-06-2016 | [
"{¶ 20} I dissent because the record before us contains the contract clauses in question and, as a matter of law, R.C.1302.18(B) applies to them. The record indicates that the trial court did not apply that section, thus it erred as a matter of law. JUDGMENT ENTRY It is ordered that the judgment be affirmed and that appellee recover of appellant costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Washington County Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. Kline, P.J. Abele, J.: Concur in Judgment Opinion. Harsha, J.: Dissents with Dissenting Opinion."
] | https://www.courtlistener.com/api/rest/v3/opinions/3716975/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Citation Nr: 0736251
Decision Date: 11/16/07 Archive Date: 11/26/07
DOCKET NO. 06-38 638 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Entitlement to service connection for residuals of a low back
injury (low back disability).
REPRESENTATION
Appellant represented by: Alabama Department of Veterans
Affairs
WITNESSES AT HEARING ON APPEAL
Appellant and his spouse
ATTORNEY FOR THE BOARD
Steven D. Reiss, Counsel
INTRODUCTION
The veteran served on active duty from May 1979 to July 1981.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a November 2005 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Montgomery, Alabama, that denied the veteran's claim of
service connection for low back disability.
In September 2007, the veteran and his spouse testified by
video conference at a hearing held before the undersigned
Veterans Law Judge.
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 veteran maintains that although he suffered a football
injury and had low back problems prior to service, service
connection is warranted because the condition was aggravated
due to a low back injury that occurred while he was on active
duty. In support, he points out that he was treated for low
back problems on numerous occasions during service and was
placed on a physical profile due to the disability. He also
reports having chronic low back disability since that time.
In denying the veteran's claim, the RO determined that he had
a low back disability that pre-existed and was not aggravated
by service. In this case, no low back disability was noted
at service entry. Further, consistent with the veteran's
statements and testimony, the service medical records confirm
that he received significant treatment for his low back
problems. These records show that he had marked tenderness
over the right posterior superior iliac spine with associated
lumbar spinal paravertebral muscle spasm. The records
further reflect that he was diagnosed as having lumbar spinal
derangement with paravertebral muscle spasm and prescribed
medications to treat the disability; he was also placed on
limited physical profile. The service records indicate,
however, that in the course of seeking treatment, he
acknowledged having a pre-service low back injury.
A veteran who served during a period of war, or during
peacetime service after December 31, 1946, is presumed to be
in sound condition when he entered into military service,
except for conditions noted on the entrance examination. 38
U.S.C.A. §§ 1111, 1132 (West 2002). Unless there is clear
and unmistakable evidence demonstrating the disability
existed before service and was not aggravated by service, VA
must presume that the veteran was sound at service entry as
to his back. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed.
Cir. 2004); VAOPGCPREC 3-2003 (2003), 69 Fed. Reg. 25,178
(2004).
In light of the above, and given the veteran's complaints of
a continuity of low back pathology since service, the Board
finds that he must be afforded a VA examination to determine
whether he has a low back disability that is related to or
had its onset during service. See McLendon v. Nicholson, 20
Vet. App. 79 (2006).
Finally, the claims file reflects that the veteran was
awarded disability benefits from the Social Security
Administration (SSA) due to his low back disability. To
date, only the decision awarding him these benefits has been
associated with the claims folder. On remand, VA must obtain
the medical evidence relied upon by the SSA in determining
his entitlement to disability benefits from that agency.
Accordingly, the case is REMANDED for the following action:
1. The AMC should obtain directly from
the SSA, complete copies of any medical
records that served as the basis for
its February 2006 decision. All
attempts to fulfill this development
must be documented in the claims file.
If the search for any such records
yields negative results, that should be
noted and the veteran must be informed
in writing.
2. After obtaining the above records,
the AMC should afford the veteran an
appropriate VA examination to determine
whether it is at least as likely as not
that he has a low back disability that
is related to or had its onset during
service. The claims folder should be
made available to and reviewed by the
examiner. The examiner should diagnose
all low back disabilities found to be
present, and opine whether it is at
least as likely as not that any low
back disability found to be present had
its onset in, or is related to service,
and in particular, to the documented
in-service complaints and treatment for
low back problems. In doing so, the
examiner should be aware of the
veteran's report of a continuity of
symptomatology since service and of
having a pre-service low back injury.
The rationale for any opinion expressed
should be provided in a legible report.
3. Then, the AMC should adjudicate the
veteran's claim. If the benefit sought
on appeal is not granted, the AMC
should issue a supplemental statement
of the case and provide the veteran and
his representative an opportunity to
respond.
The appellant has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate
action must be handled in an expeditious manner. See 38
U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).
_________________________________________________
MICHAEL E. KILCOYNE
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) (2007). | 11-16-2007 | [
"Citation Nr: 0736251 Decision Date: 11/16/07 Archive Date: 11/26/07 DOCKET NO. 06-38 638 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for residuals of a low back injury (low back disability). REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Steven D. Reiss, Counsel INTRODUCTION The veteran served on active duty from May 1979 to July 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, that denied the veteran's claim of service connection for low back disability.",
"In September 2007, the veteran and his spouse testified by video conference at a hearing held before the undersigned Veterans Law Judge. 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 veteran maintains that although he suffered a football injury and had low back problems prior to service, service connection is warranted because the condition was aggravated due to a low back injury that occurred while he was on active duty.",
"In support, he points out that he was treated for low back problems on numerous occasions during service and was placed on a physical profile due to the disability. He also reports having chronic low back disability since that time. In denying the veteran's claim, the RO determined that he had a low back disability that pre-existed and was not aggravated by service. In this case, no low back disability was noted at service entry. Further, consistent with the veteran's statements and testimony, the service medical records confirm that he received significant treatment for his low back problems. These records show that he had marked tenderness over the right posterior superior iliac spine with associated lumbar spinal paravertebral muscle spasm. The records further reflect that he was diagnosed as having lumbar spinal derangement with paravertebral muscle spasm and prescribed medications to treat the disability; he was also placed on limited physical profile. The service records indicate, however, that in the course of seeking treatment, he acknowledged having a pre-service low back injury.",
"A veteran who served during a period of war, or during peacetime service after December 31, 1946, is presumed to be in sound condition when he entered into military service, except for conditions noted on the entrance examination. 38 U.S.C.A. §§ 1111, 1132 (West 2002). Unless there is clear and unmistakable evidence demonstrating the disability existed before service and was not aggravated by service, VA must presume that the veteran was sound at service entry as to his back. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); VAOPGCPREC 3-2003 (2003), 69 Fed.",
"Reg. 25,178 (2004). In light of the above, and given the veteran's complaints of a continuity of low back pathology since service, the Board finds that he must be afforded a VA examination to determine whether he has a low back disability that is related to or had its onset during service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Finally, the claims file reflects that the veteran was awarded disability benefits from the Social Security Administration (SSA) due to his low back disability. To date, only the decision awarding him these benefits has been associated with the claims folder. On remand, VA must obtain the medical evidence relied upon by the SSA in determining his entitlement to disability benefits from that agency.",
"Accordingly, the case is REMANDED for the following action: 1. The AMC should obtain directly from the SSA, complete copies of any medical records that served as the basis for its February 2006 decision. All attempts to fulfill this development must be documented in the claims file. If the search for any such records yields negative results, that should be noted and the veteran must be informed in writing.",
"2. After obtaining the above records, the AMC should afford the veteran an appropriate VA examination to determine whether it is at least as likely as not that he has a low back disability that is related to or had its onset during service. The claims folder should be made available to and reviewed by the examiner. The examiner should diagnose all low back disabilities found to be present, and opine whether it is at least as likely as not that any low back disability found to be present had its onset in, or is related to service, and in particular, to the documented in-service complaints and treatment for low back problems. In doing so, the examiner should be aware of the veteran's report of a continuity of symptomatology since service and of having a pre-service low back injury. The rationale for any opinion expressed should be provided in a legible report.",
"3. Then, the AMC should adjudicate the veteran's claim. If the benefit sought on appeal is not granted, the AMC should issue a supplemental statement of the case and provide the veteran and his representative an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.",
"See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ MICHAEL E. KILCOYNE 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) (2007)."
] | https://drive.google.com/drive/folders/12lAd8Os7VFeqbTKi4wcqJqODjHIn0-yQ?usp=sharing | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
391 F. Supp. 2d 246 (2005) B & G INVESTMENT PARTNERS LP CORP., Plaintiff, v. Tommy G. THOMPSON, Secretary of the Department of Health and Human Services, Defendant. Civ.A. No. 03-2469(EGS). United States District Court, District of Columbia. September 29, 2005. *247 Jonathan C. Brumer, U.S. Department of Health & Human Services, Centers for Medicare & Medicaid Services Division, Washington, DC, Peter S. Smith, United States Attorney's Office, Civil Division, for defendant. Donna Kalani Thiel, Morgan Lewis & Bockius, Washington, DC, for plaintiff.
MEMORANDUM OPINION SULLIVAN, District Judge. Plaintiff B & G Investment Partners LP Corporation ("B & G") brings suit pursuant to the Social Security Act, 42 U.S.C. § 1395, et seq. and the Administrative Procedure Act ("APA"), 5 U.S.C. 551, et seq., against defendant, the Secretary of Health and Human Services, claiming that the agency's Provider Reimbursement Review Board's decision denying plaintiff reimbursement for rental and other expenses under Medicare was arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with the law. See 5 U.S.C. § 706(2)(A). Pending before the Court are cross-motions for summary judgment. Upon careful consideration of the parties' motions, the responses and replies thereto, the relevant statutory and case law, and the entire administrative record, the Court is persuaded that the defendant is entitled to summary judgment and plaintiff's Complaint will be DISMISSED WITH PREJUDICE. I. Background A. Statutory Background Medicare is the nation's federally-funded health insurance program for the elderly and disabled. See 42 U.S.C. § 1395, et seq. Part A of Medicare authorizes payment for certain health care services, including payment to skilled nursing facilities ("SNFs"). Under Part A, service providers enter into a "provider agreement" with the Secretary. 42 U.S.C. §§ 1395cc, x(u). A "fiscal intermediary," generally a private insurance company, reviews claims for reimbursement and administers payment to providers on behalf of the Secretary. 42 U.S.C. §§ 1395h(c)(1), 1395x(u). At the end of each fiscal year, the intermediary reviews each provider's cost report and issues a notice of program reimbursement ("NPR"), stating the amount of Medicare reimbursement owed to the provider. 42 C.F.R. §§ 413.20(a), 413.24(a), (f), 405.1803. If a provider disagrees with the Secretary's determination, issued by the intermediary, the provider may request a hearing before the Provider Reimbursement Review Board ("PRRB" or "Board"), assuming certain prerequisites are met, such as the amount in controversy. 42 U.S.C. § 1395oo(a); 42 C.F.R. §§ 405.1807, 405.1835. The Board may hold a hearing and issue a decision, which may in turn be reviewed by the Secretary's delegate, the Centers for Medicare and Medicaid Services ("CMS"), formerly HCFA, Administrator. 42 U.S.C. § 1395oo(f)(1); 42 C.F.R. 405.1875. The final decision of the *248 PRRB, or of the Secretary if he chooses to review the decision, may be challenged in a U.S. District Court with venue, pursuant to the APA. 42 U.S.C. § 1395oo(f)(1). 1. Reasonable Cost Reimbursement Under Medicare According to the defendant, during the time period at issue in this case, Medicare reimbursed providers on a "reasonable cost" basis. 42 U.S.C. § 1395f(b)(1). "Reasonable cost" is defined as "the cost actually incurred, excluding therefrom any part of incurred cost found to be unnecessary in the efficient delivery of needed health services ..." 42 U.S.C. § 1395x(v)(1)(A). The statute goes on to state that "reasonable cost" "shall be determined in accordance with regulations establishing the method or methods to be used, and the items to be included, in determining such costs..." Id. Not surprisingly, there are a host of regulations for determining "reasonable cost." 42 C.F.R. Part 413. Moreover, the Secretary has published interpretations of the laws and regulations in the Provider Reimbursement Manual ("PRM") in order to give providers guidance in how the various regulations are applied. 2. The Related Party Rule Under Medicare, providers may seek reimbursement for necessary and proper interest on capital indebtedness. 42 C.F.R. § 413.153(a)(1), (b), (c)(1). However, if a provider borrows from an entity related to the provider "through control, ownership, or personal relationship," the interest is not an allowable cost under the statute. Id. Similarly, "[c]osts applicable to services, facilities, and supplies furnished to ... [a] provider by organizations related to the provider by common ownership or control are includable in the allowable cost of the provider at the cost to the related organization," where "such cost ... [does] not exceed the price of comparable services, facilities, or supplies that could be purchased elsewhere." 42 C.F.R. § 413.17(a); PRM § 1000; see also PRM § 1005 ("[t]he related organization's costs include all reasonable costs, direct and indirect, incurred in the furnishing of services, facilities and supplies to the provider," and stating that "[t]he intent is to treat the costs incurred by the supplier as if they were incurred by the provider itself." Therefore, "if a cost would be unallowable if incurred by the provider itself, it would be similarly unallowable to the related organization."). The related party rule applies to rental expenses. See PRM § 1011.5 (noting that where "[a] provider ... lease[s] a facility from a related organization," that "the rent paid to the lessor by the provider is not allowable as cost," but "[t]he provider ... would include in its costs the costs of ownership of the facility," including depreciation, interest on the mortgage, real estate, and taxes). Under the regulations, a provider is "related" to another organization if "the provider to a significant extent is associated or affiliated with or has control of or is controlled by the organization furnishing the services, facilities, or supplies." 42 C.F.R. § 413.17(b)(1); see also PRM § 1002.1. "Control exists [where] an individual or an organization has the power, directly or indirectly, significantly to influence or direct the actions or policies of an organization or institution." 42 C.F.R. § 413.17(b)(3); see also PRM § 1004.3 ("The term `control' includes any kind of control whether or not it is legally enforceable and however it is exercisable or exercised. It is the reality of control which is decisive, not its form or the mode of its exercise."). The regulations also provide that an immediate family relationship creates *249 " an irrefutable presumption" of relatedness.[1] PRM § 1004. According to the PRM, the purpose of the related party rule is: "(1) to avoid the payment of a profit factor to ... [a] provider through the related organization (whether related by common ownership or control), and (2) to avoid payment of artificially inflated costs which may be generated from less than arm's length bargaining." PRM § 1000. The regulations provide the following exception to the related party rule: (d) Exception. (1) An exception is provided to this general principle if the provider demonstrates by convincing evidence to the satisfaction of the fiscal intermediary (or, if the provider has not nominated a fiscal intermediary, CMS) that (i) The supplying organization is a bona fide separate organization; (ii) A substantial part of its business activity of the type carried on with the provider is transacted with others than the provider and organizations related to the supplier by common ownership or control and there is an open, competitive market for the type of services, facilities, or supplies furnished by the organization; (iii) The services, facilities, or supplies are those that commonly are obtained by institutions such as the provider from other organizations and are not a basic element of patient care ordinarily furnished directly to patients by such institutions; and (iv) The charge to the provider is in line with the charge for such services, facilities, or supplies in the open market and no more than the charge made under comparable circumstances to others by the organization for such services, facilities, or supplies. (2) In such cases, the charge by the supplier to the provider for such services, facilities, or supplies is allowable as cost. 42 C.F.R. § 413.17(d); see also PRM § 1010. B. Factual Background Plaintiff B & G Partners is the successor to Advisors Nursing Home Group I Corporation, formerly known as Connecticut Subacute Corporation ("CSC"). In addition to CSC, there are several entities and persons relevant to an understanding of the instant case: 1. Continuing Health Properties, created in 1986, managed and operated three nursing homes: Subacute Center of Bristol f/k/a Forestville Health and Rehabilitation Center ("Forestville"), Brook Hollow Health Care Center ("Brook Hollow"), and Cedar Lane Rehabilitation Center ("Cedar Lane") until CSC took over in 1992. Plaintiff's Statement of Facts ("Pl.Facts") ¶¶ 28, 58. Continuing Health Properties was a wholly owned subsidiary of New MediCo Holding Co, Inc. ("New Medico"), a privately-held Massachusetts company, 100 percent of the stock of which was directly owned by Charles Brennick, Gerald Martin's cousin. A.R. 775. Barry *250 Portnoy was an attorney for New Medico. Pl. Facts ¶¶ 28-30. 2. Health and Retirement Properties Trust ("HRPT"), established in 1986, is a publicly traded company formed to invest in real estate, specifically health care facilities. Pl. Facts at ¶¶ 7,9. HRPT was sponsored by New MediCo/Continuing Health Properties, Greenery Rehabilitation, and HRPT Advisors. The Declaration of Trust that governs HRPT requires that a majority of the Board of Trustees be Independent Trustees. Barry Portnoy and Gerald Martin are HRPT Trustees and in addition there are three Independent Trustees. Pl. Facts at ¶¶ 13-18. 3. In 1986, HRPT purchased the three nursing homes from Continuing Health Properties and then leased them back to Continuing Health Properties. Pl. Facts ¶ 35. 4. HRPT Advisors, Inc. does the day-to-day work of HRPT, pursuant to an Advisory Agreement entered into in November of 1986. Pl. Facts at ¶ 11. HRPT Advisors is owned by Barry Portnoy and Gerald Martin. Pl. Facts at ¶¶ 11-12, 22. HRPT Advisors was "compensated at an annual rate equal to.7% of [HRPT's] real estate investments up to $250 million and .5% of such investments thereafter." A.R. 1269, 1304. 5. Beginning in 1992, and during the relevant time period, CSC operated the Forestville, Brook Hollow, and Cedar Lane nursing homes. Pl. Facts at ¶ 2. CSC is a closely-held corporation owned by Barry Portnoy and Gerald Martin. Id. at ¶ 3. Thus, Messrs. Portnoy and Martin (1) are two of the five managing trustees of HRPT (the lessor), (2) wholly own one of HRPT's sponsors, HRPT Advisors, the organization that "provide[s] management and administrative services with respect to the ownership of health care and related properties" to HRPT, and (3) wholly own CSC (the lessee).[2] Mr. Martin was also the President, CEO, Director, and controlling shareholder of Greenery, another sponsor of HRPT, and he was the Treasurer of HRPT; Mr. Portnoy was also a Director and shareholder of Greenery, and a partner in the law firm of Sullivan & Worcester, counsel to HRPT, HRPT Advisors, Greenery, New MediCo, Continuing Health, Mr. Martin and Charles Brennick, "and certain of their affiliates." A.R. 759, 771, 774. According to HRPT's Prospectus, "Messrs. Martin, Brennick and Portnoy jointly engage and/or have engaged in numerous business and investment transactions in the health care industry and in other businesses." A.R. 775. The HRPT Declaration of Trust provides that the Trustees have the absolute power over the business of the Trust, but that "Trustees are not and shall not be required personally to conduct the business of the Trust" and that the Trustees shall have the power to appoint, employ or contract with any Person (including one or more of themselves or any corporation, partnership, or trust in which one or more of them may be directors, officers, stockholders, partners or trustees) as the Trustees may deem necessary or proper for the transaction of the business of the Trust. The Trustees may therefore employ or *251 contract with such Person (herein referred to as [HRPT Advisors]) and, consistent with their ultimate responsibility as set forth in this Section 4.1, the Trustees may grant or delegate such authority to [HRPT Advisors] as the Trustees may in their sole discretion deem necessary or desirable without regard to whether such authority is normally granted or delegated by trustees. A.R. 716. In 1986, when HRPT and HRPT Advisors were created, HRPT purchased Continuing Health Properties for $32 million and then leased the facilities back to Continuing Health at a monthly rate calculated to result in annual net payments equal to 12.62% of the acquisition price of each property. See A.R. 173-74, 188, 756, 760. For the same period, the rent for the nursing homes leased to Greenery was 10% of the acquisition price. Id. As part of the arrangement between HRPT and its sponsors, Greenery signed a "stand-by" management agreement which provided that if Continuing Health experienced financial problems, Greenery would step in to manage Continuing Health and supply capital to keep it going; HRPT paid a fee to Greenery for this agreement. Pl. Mt. at 8; A.R. 145, 153, 757-58, 767. In 1992, HRPT's Board voted to end the leases with Continuing Health and to lease the three nursing homes to CSC. A.R. 144, 547, 777, 780, 790, 1124, 1195. CSC, owned by Martin and Portnoy, who also own HRPT Advisors, took over the operations, and the leases, of the nursing homes. HRPT provided CSC with an $8 million line of credit. A.R. 1200-02, 1210-11, 1213-14. All five of the members of HRPT's Board were present at the meeting when HRPT decided to replace Continuing Health with CSC; Martin and Portnoy participated in the discussions regarding how the Trustees should respond to Continuing Health's financial woes. A.R. 777-83, A.R. 145, 164, 172. C. Procedural History For fiscal years 1996 and 1997, the Forestville, Brook Hollow and Cedar Lane nursing facilities, owned by CSC, submitted cost reports to the fiscal intermediary, Anthem Blue Cross and Blue Shield of Connecticut ("Intermediary"). A.R. 9, 1422-1490. In a series of decisions, the Intermediary determined that CSC and HRPT were related parties and disallowed capital, interest, and rental expenses. A.R. 1363-67, 1373-74, 1377, 1381-82, 1411-12, 1414-15, 1425, 1498. 1. The Intermediary's Decisions In its position papers, the Intermediary explained that it had denied Medicare reimbursement for rent expenses for Forestville for FY 1997 and for all three facilities for FY 1996. A.R. 386-93, 490-99. The decisions first set out the relevant definitions under the regulations: Related to the provider means that the provider to a significant extent is associated or affiliated with, or has control of, or is controlled by, the organization furnishing the services, facilities, or supplies. PMR § 1002.1 Common ownership exists when an individual or individuals possess significant ownership or equity in the provider and the institution or organization serving the provider. PMR § 1002.2 Control exists where an individual or an organization has the power, directly or indirectly, significantly to influence or direct the actions or policies of an organization or institution. PMR § 1002.3 *252 A.R. 496-97.[3] The Intermediary then set out the guidelines for determining common ownership or control: 1. In determining whether a provider organization is related to a supplying organization, the tests of common ownership and control are to be applied separately. 2. If the elements of common ownership or control are not present in both organizations, the organizations are deemed not to be related. 3. The existence of an immediate family relationship will create an irrefutable presumption of relatedness through control or attribution of ownership or equity interests. A.R. 497. The Intermediary first concluded that there was common ownership between the Provider (CSC) and the supplier (HRPT) because Messrs. Martin and Portnoy collectively own 100% of CSC and, as owners of HRPT Advisors, they had a 4.1% ownership interest in HRPT. A.R. 497. In support of its conclusion, the Intermediary cites PMR section 1004.1, which indicates that even a "substantially low percentage of ownership could still constitute significant ownership." A.R. 498. The Intermediary also concluded that there was direct and/or indirect control between the parties. A.R. 498. The Intermediary noted Messrs. Portnoy and Martin, owners of CSC, made up 40% of HRPT's Board, and that HRPT's Declaration of Trust does not prohibit transactions between related parties or require that trustees with an interest in the transaction abstain from voting. Id. As for indirect control, the Intermediary found that Portnoy and Martin had indirect control of HRPT because they own HRPT Advisors, the organization which provides investment, management, and administrative services to HRPT. Id. These advisory services, the Intermediary noted, would include decisions on leasing of HRPT's properties. Id. Importantly, the Intermediary "concur[red] with the Provider that they should be reimbursed for some costs." Those costs would be limited to the cost of the related organization, i.e., HRPT. A.R. 499. The Intermediary noted, however, that "the Provider was requested to produce a complete analysis with supporting documentation of the actual costs to the related party. To date, this analysis has not been produced. The failure to produce this data, as required by CFR 413.24 ..., resulted in the Intermediary's disallowance of the Providers [sic] costs in total." Id. Finally, the Intermediary concluded, "If the Provider produces a complete analysis with supporting documentation of the actual costs to the related party, we would be willing to adjust the Providers cost reports to reflect those costs." Id. (emphasis added). Thus, even as late as August 2001, plaintiff was given an opportunity to provide documentation of the costs to HRPT of owning the nursing facilities. A.R. 490, 499. 2. The PRRB's Decision The nursing homes appealed to the Provider Reimbursement Review Board, and the PRRB scheduled a hearing. A.R. 1355, 1369-76, 1377-78, 1414-16. In anticipation of the hearing, the parties filed position papers with the PRRB, laying out *253 their respective positions. A.R. 383-93, 403-23, 490-99, 567-86, 601-02, 635-74. In a decision dated September 29, 2003, the PRRB found that the Intermediary's disallowance of the rental and capital-related expenses was correct. A.R. 6-15. The PRRB's decision essentially consolidated three appeals: the FY 1996 denial of capital and interest expenses for Forestville, the FY 1996 denial of rent expenses for all three nursing homes, and the FY 1997 denial of rent, capital and interest expenses for Forestville. A.R. 7. The PRRB set out the relevant framework in this manner: Under Medicare regulations, a provider is entitled to claim costs applicable to services, facilities, and supplies furnished to the provider by organizations related to the provider by common ownership or control at the cost to the related organization as long as the cost does not exceed the price of services or supplies that could be purchased elsewhere. The regulation at 42 C.F.R. § 413.17. However, there is an exception to this rule. 42 C.F.R. § 413.17(d)(1) provides that the charge made by the related supplier to the provider is allowable as "cost" provided the following criteria are met: (i) The supplying organization is a bona fide separate organization; (ii) A substantial part of its business activity is transacted with others than the provider and organizations related to the supplier and there is an open competitive market for the type of services furnished by the organization; (iii) The services are those that commonly are obtained by institutions such as the provider from other organizations and are not a basic element of direct patient care; (iv) The charge to the provider is in line with the charge of services in the open market by the supplier to the provider. A.R. 8. Next, the PRRB decision discussed the Providers' arguments as to why the Intermediary's decisions should be reversed. A.R. 10. First, the Providers argued that CSC and HRPT are not related parties because the regulations require a "significant" relationship between the parties in order for the rule to apply, and that in this case there was no showing of a "significant" relationship. Id. The Providers insisted with regard to common ownership that Martin and Portnoy's ownership interest in HRPT, 4.1%, was insufficient to meet the standard for common ownership. As for common control, the Providers maintained that HRPT was governed by its Board of Trustees a majority of which had to be independent trustees and that the Declaration of Trust explicitly provides that the transactions between the Trust and interested parties must be approved by a majority of the Trustees not so interested. Id. Second, the Providers alleged that even if the PRRB was to find that CSC and HRPT were related, the leases were actually negotiated in 1986 between unrelated parties Continuing Health and HRPT and thus, because CSC effectively assumed the leases on the same terms as had been negotiated between Continuing Health and HRPT, they were not related party leases. A.R. 11. Third, the Providers submitted that even if CSC and HRPT were found to be related parties, the exception should be applied because (a) the parties are bona fide separate organizations; (b) a substantial part of HRPT's business activity at all relevant times, 1986, 1992, and 1996 when it was audited, was conducted with organizations *254 with which it was not related, and, moreover, in 1986, when the lease was negotiated, Continuing Health would have had alternatives for obtaining financing; (c) that it is common for providers to lease, rather than own, health care facilities; and (d) charges to the Providers were "in line" with the charges for services, facilities or supplies on the open market. A.R. 11-12. After a summary of the Intermediary's findings, the PRRB found that the Providers and HRPT were related parties for purposes of the regulations. A.R. 13. The decision cited the relevant definitions: (b) Definitions. (1) Related to the provider. Related to the provider means that the provider to a significant extent is associated or affiliated with or has control of or is controlled by the organization furnishing the services, facilities, or supplies. (2) Common Ownership. Common ownership exists if an individual or individuals possess significant ownership or equity in the provider and the institution or organization serving the provider. (3) Control. Control exists if an individual or an organization has the power, directly or indirectly, significantly to influence or direct the actions or policies of an organization or institution. A.R. 13-14 (emphasis added). First, the PRRB reversed the Intermediary's finding of significant common ownership. Id. With regard to control, however, the Board did conclude that the Providers and HRPT were related parties. A.R. 14-15. Noting at the outset that "it can not look at the audited years, December 31, 1996 and 1997, in isolation[,]" the PRRB found the following factors to be relevant: (1) In 1986, when HRPT was created, it initially conducted business with its three sponsors (HRPT Advisors, Inc., Greenery and New MediCo [/Continuing Health]), all of which were owned by the Provider's shareholders and a relative who owned New MediCo. HRPT (through HRPT Advisors) created a stand-by management agreement whereby Greenery would be called on to manage Continuing Health (successor to New MediCo). Although never implemented, this agreement imposing an obligation is indicative of control. (2) The prospectus for HRPT indicates that substantially all of the Company's (HRPT's) operations will be conducted by HRPT Advisors (owned by the Provider's shareholders). Furthermore, the prospectus at Intermediary Exhibit 1, page 18, states that HRPT will be subject to various conflicts of interest arising out of its relationships with its sponsors and their affiliates. (3) The prospectus indicates that to the extent that the terms of the mortgage-financing, acquisition and lease of the Properties have been negotiated among related parties, they have not been determined on an arms-length basis. (4) The financial statements of HRPT indicate that HRPT Advisors, Inc. is considered to be affiliated with the Providers based on common ownership. A.R. 14. The Board explicitly rejected the Providers' argument that CSC had merely taken over the leases which were negotiated by unrelated parties. Id. The Board found that the principals of HRPT Advisors, Inc. (who are the Providers' shareholders) were in the position of dealing with themselves as owners of [CSC]. Specifically, the Providers' shareholders have indirect control of HRPT since they are also the owners of HRPT Advisors, Inc., which provides management and administrative services to HRPT. This makes *255 them responsible for providing advisory services to HRPT that would include decisions on the leasing of HRPT properties. The Board finds that a related party relationship existed between HRPT and its various affiliates at the time the original leases were signed and extended to the years at issue. A.R. 14-15 (emphasis added). The Board went on to find that the Providers were not qualified for the exception to the related party rule. A.R. 15. First, the PRRB found no evidence in the record to support the Providers' contention that a significant portion of their business activities were conducted with unrelated entities. Id. Moreover, the Board cited the Intermediary's survey, which disclosed that rental charges for the Forestville facility were far in excess of the average rental expenses for other skilled nursing facilities in Connecticut. A.R. 15; see also A.R. 476-77 (Intermediary's 1998 letter to Providers' counsel stating that it had "surveyed all of the [SNFs] which this office serves as the Fiscal Intermediary in the Hartford, Connecticut MSA and have found that the capital per diem average for FY 1996 is $13.78 and the average cost per square foot is $15.87 compared to the capital per diem of $38.24 and cost per square foot of $65.13 for Forestville Health for the same fiscal year"). Even recognizing that a rehabilitation facility might require a higher rental rate, the Board found that the Providers had not submitted any evidence to refute the finding that their rent was out of line with similar providers. A.R. 15. Moreover, the Board noted that the Providers had not submitted any evidence that they had negotiated with any other Real Estate Investment Trusts ("REITs") to find alternative financing or capital. Id. Finally, the Board concluded that the Providers had failed to provide any documentation of ownership costs, which would entitle them to some reimbursement, and thus, the Board was "precluded" from allowing any costs because the Providers had not complied with the regulations' record-keeping provisions, 42 C.F.R. §§ 413.20(a) and 413.24(a). A.R. 15. On November 24, 2003, the Administrator for the Centers for Medicare and Medicaid Services (formerly HCFA), declined to review the PRRB decision. A.R. 2. This lawsuit followed. II. Standard of Review Summary judgment is granted pursuant to Fed.R.Civ.P. 56 only when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The Court views the evidence in the light most favorable to the nonmoving party, according the party the benefit of all reasonable inferences. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Thus, in ruling on cross motions for summary judgment, the Court will grant summary judgment only if one of the moving parties is entitled to judgment as a matter of law upon material facts that are not in dispute. See Rhoads v. McFerran, 517 F.2d 66, 67 (2d Cir.1975). In a review of agency action pursuant to the APA, the Court must determine whether the challenged decision is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). In reviewing an agency's action, the Court must engage in a "thorough, probing, in-depth review" to determine "whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415-16, *256 91 S. Ct. 814, 28 L. Ed. 2d 136 (1971). However, while the Court's inquiry must be "searching and careful," the standard of review is also a highly deferential one; the agency's actions are "entitled to a presumption of regularity," and the Court cannot "substitute its judgment for that of the agency." Id. at 415-16, 91 S. Ct. 814. III. Discussion In this suit, plaintiff again argues that (1) the related party rule should not have been applied in this case; (2) if the related party rule applied, CSC should have qualified for the exception; and (3) even if the rule applied and the criteria for the exception were not met, the nursing homes should at least have been reimbursed for some reasonable rental, capital and interest expenses. These arguments will be discussed in turn. A. Whether the PRRB Correctly Applied the Related Party Rule Plaintiff maintains that there is no showing of significant control in this case.[4] Pl. Mot. at 18. Plaintiff contends that when the original leases were negotiated in 1986, Continuing Health and HRPT were not related, and thus, because CSC took over the same leases in 1992, there cannot be a finding of control. Id. They note that Continuing Health was a wholly owned subsidiary of New MediCo, which was owned by Charles Brennick, that neither Martin or Portnoy owned any portion of New MediCo, that neither Martin or Portnoy or any of HRPT's trustees were officers or directors of New MediCo or Continuing Health, and that none of New MediCo or Continuing Health's officers or directors held any positions with HRPT. Id. at 19. Plaintiff principally looks to Biloxi Reg'l Med. Ctr. v. Bowen, 835 F.2d 345 (D.C.Cir.1987), for support. In Biloxi, the U.S. Court of Appeals for this circuit considered a challenge to the PRRB's determination that the parties were related for purposes of Medicare reimbursement. Id. The district court granted summary judgment for the Secretary, but the appellate court reversed. Id. at 348-51. Plaintiff Biloxi Regional Medical Center ("Center") entered an agreement with the city and several other entities, including the American Medical Management Hospital Group ("AMM"), to assume operation of a hospital. Id. at 347. As part of the agreement, plaintiff took over a lease, with certain revisions, with the city which had provided the former hospital with a rent-free term of twenty-five years. Id. The agreement also designated AMM as the Center's management group and guarantor. Id. One revision to the lease required that the Center pay rent to the city at an amount established by an independent appraiser. Id. at 347-48. The Center did pay rent, at the rate established by the appraiser, and thereafter submitted a Medicare cost report to its fiscal intermediary. Id. at 348. The intermediary denied the rental costs on the grounds that the Center and the City were related by common control. Id. The PRRB affirmed, in part because the agreement provided that when the lease expired, the Center's proceeds would revert to the city. Id. The Board also noted that the mayor had the power to approve or reject candidates selected by AMM for *257 positions on the Center's Board of Directors, the city had agreed to assist the Center through bonds with financing a new facility, the agreement provided that the city would take title to all the Center's assets at the end of the lease, a statement in the agreement noted that it would be in the best interests of the city to leave the hospital to the new hospital (another signatory of the agreement), and the city's extension of the deadline by which the Center was to complete the new facility. Id. The district court found the fact that the city's mayor could approve or reject four members of the Center's Board as determinative on the issue of relatedness and granted summary judgment. Id. The Court of Appeals reversed, noting Our examination of the mayor's power convinces us that the City was willing to accept a very modest role, however. Although not dispositive, we note that the `control' envisioned by the District Court remained entirely potential; affidavits by the current and former mayors of the City indicate that they approved all the candidates selected by AMM without any independent investigation of their background. Id. at 351. Moreover, the court found that the mayor's power was limited to vetoing candidates for a minority number of the board's seats. Id. The court also found it "extremely unlikely" that any directors would seek to curry favor with the city in order to retain their positions, and noted that the intermediary's decision had relied on a regional office's determination that "any approval of Board Members by the Mayor of Biloxi is a mere formality as AMM does the actual selections." Id. at 351-52. The Court of Appeals went on to discuss the other factors relied upon by the PRRB and found them not probative of control. Id. at 352-53. The Biloxi court did state, however, "[w]e realize, of course, that the District Court was properly concerned not with the actual but with the potential ability of the City to influence the Center." Id. at 352 (emphasis added). In the instant case, the Court is convinced that the PRRB's decision is supported by sufficient evidence of control, as distinguished from the vague and remote elements of potential control found in the Biloxi case. Messrs. Portnoy and Martin had concrete opportunities to influence HRPT's decisions based on their ownership of HRPT Advisors, they had financial stakes in the agreements between HRPT and the Providers both as owners of CSC and as owners of HRPT Advisors, which, under the agreement with HRPT, was remunerated based on HRPT's profits, and they themselves were two of the five members of HRPT's Board of Directors. These factors fully support a conclusion that Portnoy and Martin had the "potential ability ... to influence" CSC and stand in stark contrast to the "mere formality" in Biloxi whereby the mayor could approve or reject a minority of board members suggested by the managing facility. See id. at 351-52. 1. The Stand-By Management Agreement Next, plaintiff contests each of the factors relied upon by the PRRB in its finding of control. Pl. Mot. at 22-32. For example, plaintiff insists that the stand-by management agreement between Greenery, HRPT, and Continuing Health was never implemented and was simply something required by HRPT's underwriters because New MediCo had emerged from bankruptcy several years prior. Id. at 22. The regulations provide, however, that control exists "if an individual or an organization has the power, directly or indirectly, significantly to influence or direct the actions or policies of an organization or *258 institution." PRM § 1002.3; see also Biloxi, 835 F.2d at 352 (stating that it is not the "actual" but rather the "potential" ability to influence that is the issue). The stand-by agreement that Greenery where Martin and Portnoy were directors would take over for Continuing Health if necessary, combined with Martin and Portnoy's roles at HRPT Advisors who would presumably be the ones to "advise" HRPT to end its contract with Continuing Health and allow Greenery to take over provides substantial evidence of at least the "potential" for significant influence. See id. Finally, while the familial relationship of cousin does not establish the "irrefutable presumption" of relatedness for purposes of the regulations, the Medicare regulations clearly recognize that familial relationships in supplier-provider transactions create at least the opportunity for influence. See PMR § 1004. Thus, it was not inappropriate for the PRRB to consider Brennick's ownership of New MediCo and Continuing Health and his role in the 1986 transaction with HRPT, given the fact that Martin and Brennick were cousins. This factor is all the more significant in light of HRPT's candid acknowledgment that "Messrs. Martin, Brennick and Portnoy jointly engage and/or have engaged in numerous business and investment transactions in the health care industry and in other businesses." A.R. 775. 2. The HRPT Prospectus Plaintiff submits that the PRRB incorrectly relied on HRPT's Prospectus and numerous statements in that document, such as "to the extent that the terms of the mortgage-financing, acquisition and lease of the Properties have been negotiated among related parties, they have not been determined on an arms-length basis." A.R. 14. Plaintiff argues that this is not an admission that the parties to the 1986 agreements were related, and, "most significantly," that because the Prospectus was prepared pursuant to the securities laws, not the Medicare reimbursement laws, the statements should not have been relied upon by PRRB. Pl. Mot. at 24-26. Plaintiff does not cite a single case or regulation, however, to support the notion that the PRRB cannot consider disclosures made for purposes of the securities laws as evidence of relatedness and control. It is clear from the Board's decision that it did not simply take HRPT's Prospectus as conclusive evidence or admission of relatedness for purposes of applying the related party rule, but instead considered the statements in the Prospectus in the context of the other evidence in the record, such as the Advisory Agreement, the lease agreement, and the financial data, to reach its conclusion that HRPT and CSC are related parties for purposes of the Medicare reimbursement laws. The Court finds that the Board's consideration and interpretation of the Prospectus is reasonable and supported by the record. See Consolo v. Fed. Mar. Comm'n, 383 U.S. 607, 620, 86 S. Ct. 1018, 16 L. Ed. 2d 131 (1966)(stating Supreme Court's holding that the APA gives a reviewing court the authority to set aside an agency's ruling only if it is found to be arbitrary, capricious, an abuse of discretion, or unsupported by substantial evidence); see also Universal Camera Corp. v. Nat'l Labor Relations Bd., 340 U.S. 474, 71 S. Ct. 456, 95 L. Ed. 456 (1951). 3. Indirect Control Through HRPT Advisors Plaintiff argues that the Declaration of Trust, declaring that the trustees have the ultimate control over the Trust and all transactions with an interested party must be approved by a majority of non-interested trustees, refute the PRRB's conclusion *259 that Portnoy and Martin had indirect control over HRPT. Pl. Mot. at 31-33. Reliance on the Declaration of Trust is a double-edged sword for plaintiff. That document also provides that "Trustees are not and shall not be required personally to conduct the business of the Trust" and that they may therefore "grant or delegate such authority to [HRPT Advisors] as the Trustees in their sole discretion deem necessary or desirable without regard to whether such authority is normally granted or delegated by Trustees." A.R. 716. The Declaration of Trust also explicitly provides that HRPT Advisors does not have to present any particular investment opportunities and even protects HRPT Advisors from taking advantage of such opportunities itself. A.R. 717. Thus, this is not a document that strictly protected HRPT from any self-dealing. Moreover, HRPT Advisors was remunerated through a formula that was based on HRPT's investments, providing an incentive to Martin and Portnoy to find high-paying rental investments. H.R. 773. Thus, they were potentially in the position of dealing with themselves and "essentially negotiating on both sides of the transaction." See Kidney Ctr. of Hollywood v. Shalala, 133 F.3d 78 (D.C.Cir.1998). In Kidney Center, the Court of Appeals reviewed a challenge to a determination by the HCFA Administrator, on behalf of the Secretary, that plaintiff health care provider was not entitled to reimbursement for certain costs under the related party regulation. After a series of transactions between a number of corporations, Management Investors and Grace corporations could each choose four of the eight directors of a third corporation, NMC Holding. Id. at 83. A number of officers and directors of the former corporation held the same positions with NMC Holding. Id. In its review, the court first noted the Secretary's guidelines in PMR § 1004.3, "[t]he term `control' includes any kind of control, whether or not it is legally enforceable and however it is exercisable or exercised. It is the reality of the control which is decisive, not its form or the mode of its exercise." The appellate court went on to find that there was certainly substantial evidence in the record supporting the Secretary's anterior determination that the Management Investors had the power significantly to influence the actions of both Old NMC and NMC Holding. That finding is itself sufficient to support the Secretary's conclusion that the firms were related by control. Because the Management Investors held key positions on the board and in the management of Old NMC, they were clearly in a position to influence the board to recommend, and the shareholders of Old NMC to approve, the transaction. The Management Investors also had the ability significantly to influence NMC Holding....
* * * * * * In addition, the chief negotiator for Old NMC (Dr. Hampers) was also one of the Management Investors in NMC Holding. He was essentially negotiating on both sides of the transaction. Id. at 85. The instant case regarding the transactions between HRPT, HRPT Advisors, HRPT's sponsors, and CSC, is analogous to the circumstances in Kidney Center. Here, like the Court of Appeals in that case, the Secretary's "reasonable interpretation is entitled to our deference." Id. (citation omitted). B. The Exception to the Related Party Rule Plaintiff contends that the PRRB erred in its conclusion that, even if HRPT *260 and CSC are related parties, the criteria for the exception found in 42 C.F.R. § 413.17(d) were not met. The first of the four criteria for qualifying for the exception, that the supplying organization is a bona fide organization, is not disputed. A.R. 15; Def. Mot. at 37. As to the second criterion, however, whether a substantial part of the supplying organization's business of the type carried on with the Provider is with unrelated organizations and there is an open, competitive market for the type of service supplied, plaintiff notes that the PRRB focused on the wrong analysis. Pl. Reply at 34-35. The PRRB concluded that "the Providers assert that a significant portion of their business activities were transacted with unrelated organizations. However, the Board finds that the record contained no evidence to support the Providers' assertions." A.R. 15 (emphasis added). Plaintiff maintains that it is HRPT's business activities, not CSC's, that should have been the focus of the analysis. The defendant appears to concede plaintiff's point. Def. Mot. at 37 ("To the extent that the PRRB focused on whether CSC transacted a substantial part of their business with unrelated organizations in resolving this issue, the Board arguably focused on an extraneous issue."). Nevertheless, the record appears to support a finding that plaintiff did not satisfy its burden to show by "convincing evidence to the satisfaction of the fiscal intermediary" that HRPT did a significant portion of its business with unrelated organizations and that there is an open and competitive market for the type of services provided by HRPT. 42 C.F.R. § 413.17(d)(1),(d)(1)(ii). The Intermediary concluded that in 1986, when the lease was negotiated, HRPT did not do a substantial part of its business with unrelated parties. A.R. 193. Moreover, the Intermediary found that there is not an open, competitive market for leasing nursing home facilities. See A.R. 193-94, 477 (Intermediary's experience that most skilled nursing facilities are owned, not leased.). Finally, the PRRB concluded that CSC had not submitted any evidence to show that they tried to negotiate with any unrelated REITs for financing or capital alternatives. A.R. 15. Finally, as to the fourth prong of the exception analysis, whether the charges to the Provider were "in line" with charges for those services on the open market, the PRRB cited a letter from the Intermediary citing the former Intermediary's survey that charges for the Forestville facility were several times higher than charges for comparable SNF facilities in the Hartford, Connecticut area. A.R. 15, 477. Plaintiff argues that this survey should be given no weight because it was not offered into evidence or produced or explained as part of the administrative proceedings. Pl. Mot. at 37. The regulations afford the plaintiff the opportunity to discover the underlying methodology or other information about the Intermediary's evidence. 42 C.F.R. § 405.1853(b). However, plaintiff does not submit evidence that they did so under the regulations. Plaintiff also maintains that it introduced "substantial evidence" that the rent under the leases to Continuing Health was at the market rate. Pl. Mot. at 36. But the evidence plaintiff cites is HRPT's own annual report, which is hardly objective evidence of open market rates. A.R. 1269. In fact, that document states [HRPT] has an agreement with [HRPT Advisors] whereby [HRPT Advisors] provides investment, management and administrative services to [HRPT]. [HRPT Advisors] is owned by Gerard M. Martin and Barry M. Portnoy, who also serve as Managing Trustees of the *261 Company. Messrs. Martin and Portnoy are principal shareholders of [CSC], Connecticut Subacute Corporation II, New Hampshire Subacute Corporation and Vermont Subacute Corporation (collectively the `Subacute Entities') and were formerly directors of Horizon/CMS Healthcare Corporation (`Horizon') and Greenery Rehabilitation Group, Inc. (`Greenery'), which merged with Horizon in 1994. Horizon and the Subacute Entities are lessees of [HRPT]. [HRPT] has extended a [$4 million] line of credit to CSC until June 30, 1997. At December 31, 1996, there was [$2,365,000] outstanding under this agreement. The lease and mortgage transactions with the Subacute Entities and Horizon are based on market terms and are generally similar to [HRPT's] lease and mortgage agreements with unaffiliated companies. The former president of [HRPT] is the president of the Subacute Entities. Mr. Portnoy is a partner in the law firm which provides legal services to [HRPT]. [HRPT Advisors] is the general partner of M & P, which provides management services for some of the [HRPT's] recently acquired medical office buildings. The property management fees paid to M & P are generally equal to three percent of gross rents from the managed properties. A.R. 1269. Under the regulations, it is plaintiff's burden to show convincing evidence that each of the four criterion are satisfied. The Court is unpersuaded by this evidence that the PRRB was erroneous in concluding that the plaintiff had not satisfied the fourth prong of the regulation that would have entitled it to be excepted from the related party rule. 42 C.F.R. § 413.17(d). While portions of the PRRB's analysis of the related party rule's exception under 42 C.F.R. § 413.17(d) may have been flawed, this Court does not need to reverse its decision if the record otherwise supports the conclusion and the outcome would not be different if the correct analysis had been applied. See, e.g., DSE, Inc. v. United States, 169 F.3d 21, 31 (holding that under the APA, agency decisions will not be set aside unless the plaintiff can demonstrate that it was prejudiced and that to do otherwise would be "empty formality"); Salt River Project Agric. Improvement and Power Dist. v. United States, 762 F.2d 1053, 1060-61 n. 8 (D.C.Cir.1985)(holding that "[w]hen an agency relies on a number of findings, one or more of which are erroneous, we must reverse and remand only when there is a significant chance that but for the errors the agency might have reached a different result" and that "[w]hen it is clear that based on the valid findings the agency would have reached the same ultimate result, we do not improperly invade the administrative province by affirming."). Here, particularly where plaintiff must satisfy all four criteria to meet the related party rules exception, the record supports the PRRB's conclusion and there is no reason to think that a different result would have been reached but for any errors cited by plaintiff. C. Whether CSC was Entitled to Some Reimbursement for Reasonable Costs After Application of the Related Party Rule Finally, plaintiff insists that even if the related party rule was correctly applied and it failed to qualify for the exception, CSC was still entitled to some reimbursement for costs. Apparently, the Intermediary and the Board both agreed that even after application of the related party rule, Providers can recover certain costs, such as costs to the related party. A.R. 15. According to the PRRB, the reason plaintiff was unable to recover any *262 costs is its failure "to submit any documentation of ownership costs," required under the Medicare regulations, 42 C.F.R. §§ 413.20(a) and 413.24(a). A.R. 15. The regulations provide that The provider must make available to the intermediary when requested adequate documentation to support the costs incurred by the related organization, including, when required, access to the related organization's books and records, attributable to supplies and services furnished to the provider. Such documentation must include an identification of the organization's total costs, the basis of allocation of direct and indirect costs to the provider, and other entities served. PMR § 1005. The record reflects that the Intermediary requested such documentation at least once and gave the Providers ample opportunity to provide that information. See, e.g., A.R. 476-77 (Letter dated August 19, 1998) ("Lastly, both of the Audited Financial Statements for Connecticut Subacute and for HRPT indicate that the rental arrangement is through a related party. With this information, please submit an analysis of the actual cost to the related party for depreciation on capital items. We will adjust to bring the rent expense onto Worksheet A-8-1 column 4 and the actual cost on column 5."). Plaintiff cites Richlands Med. Ass'n v. Harris, 651 F.2d 931 (4th Cir.1981) and submit that they are entitled to reimbursement rate at the level of the market rate in 1986, plus interest. This argument is unavailing for several reasons. First, as defendant persuasively argues, Richlands applied the incorrect standard of deference, may not be good law in the 4th Circuit, and is inconsistent with this Circuit's caselaw, such as Kidney Center, 133 F.3d at 86. See Def. Reply at 18-21 (citing numerous cases issued by the Supreme Court and the 4th Circuit Court of Appeals since Richlands that undermine Richland's holding). Perhaps more importantly, the PRRB's decision that plaintiff would recover no costs was based on plaintiff's failure to submit documentation of those costs and failure to comply with the record keeping provisions, not a disagreement that plaintiff would be entitled to cost reimbursement had it documented those costs. Plaintiff maintains that it submitted documentation of the Trust's depreciation of the facilities, and cites to a letter counsel sent to the Intermediary, attaching HRPT's financial information. Pl. Reply at 20 (citing A.R. 260-306). A reading of the letter, however, indicates that this documentation was only submitted for purposes of showing that the related party rule did not apply or, without admitting relatedness, to address why the exception of PMR § 1010 should apply. A.R. 260-262. Thus, it is perhaps not surprising that the Intermediary acknowledged receipt of that information, but again requested an analysis of the actual costs. A.R. 501, 564-65. In sum, the record supports the PRRB's conclusion that plaintiff had not complied with its duty to provide documentation necessary to support reimbursement. IV. Conclusion As this Court has said, "It is well settled ... that the Secretary's decisions interpreting the Medicare Act are entitled to `great deference.'" See Sentara-Hampton General Hosp. v. Sullivan, 980 F.2d 749, 755 (D.C.Cir.1992) (citation omitted). "Our limited role is to ensure that the Secretary's regulations are consistent with the statute, reasonably interpreted and consistently applied ... [and] to ensure that the findings in particular cases are not *263 arbitrary and capricious and are supported by substantial evidence." Villa View Community Hospital, Inc. v. Heckler, 728 F.2d 539, 543 (D.C.Cir.1984). We are not permitted to substitute our judgment for that of the agency. Lloyd Noland Hosp. and Clinic v. Heckler, 762 F.2d 1561, 1565 (11th Cir.1985). Nat'l Med. Enter., Inc. v. Shalala, 826 F. Supp. 558, 560-561 (D.D.C.1993). Nothing in the record persuades this Court that the Secretary acted arbitrarily or capriciously or that his decision was not supported by substantial evidence in concluding that CSC was not entitled to reimbursement. Therefore, defendant's motion is GRANTED and plaintiff's cross motion is DENIED and this case is DISMISSED WITH PREJUDICE. An appropriate Order accompanies this Memorandum Opinion. NOTES [1] For purposes of the regulations, "immediate family" means (1) husband and wife, (2) natural parent, child and sibling, (3) adopted child and adoptive parent, (4) step-parent, step-child, step-sister, and step-brother, (5) father-in-law, mother-in-law, sister-in-law, brother-in-law, son-in-law, and daughter-in-law, (6) grandparent or grandchild. PRM § 1004. [2] See A.R. 1300; see also A.R. 762 (HRPT Prospectus states "[s]ubstantially all of [HRPT's] operations, except investment decisions, will be conducted by [HRPT Advisors]"). [3] The Intermediary's position papers are substantially identical in their format and findings one for FY 1996 dealing with one nursing home and the other for FY 1997 dealing with three nursing homes. Thus, for convenience, the Court will cite to the latter. [4] Plaintiff's motion also makes arguments related to common ownership. Because the PRRB expressly found that there was insufficient evidence to support a finding of common ownership, and thus only the issue of control is before the Court, this opinion will focus on whether the Board correctly determined that there was significant control between the Providers and the supplier. | 10-30-2013 | [
"391 F. Supp. 2d 246 (2005) B & G INVESTMENT PARTNERS LP CORP., Plaintiff, v. Tommy G. THOMPSON, Secretary of the Department of Health and Human Services, Defendant. Civ.A. No. 03-2469(EGS). United States District Court, District of Columbia. September 29, 2005. *247 Jonathan C. Brumer, U.S. Department of Health & Human Services, Centers for Medicare & Medicaid Services Division, Washington, DC, Peter S. Smith, United States Attorney's Office, Civil Division, for defendant. Donna Kalani Thiel, Morgan Lewis & Bockius, Washington, DC, for plaintiff. MEMORANDUM OPINION SULLIVAN, District Judge. Plaintiff B & G Investment Partners LP Corporation (\"B & G\") brings suit pursuant to the Social Security Act, 42 U.S.C. § 1395, et seq. and the Administrative Procedure Act (\"APA\"), 5 U.S.C. 551, et seq., against defendant, the Secretary of Health and Human Services, claiming that the agency's Provider Reimbursement Review Board's decision denying plaintiff reimbursement for rental and other expenses under Medicare was arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with the law.",
"See 5 U.S.C. § 706(2)(A). Pending before the Court are cross-motions for summary judgment. Upon careful consideration of the parties' motions, the responses and replies thereto, the relevant statutory and case law, and the entire administrative record, the Court is persuaded that the defendant is entitled to summary judgment and plaintiff's Complaint will be DISMISSED WITH PREJUDICE. I. Background A. Statutory Background Medicare is the nation's federally-funded health insurance program for the elderly and disabled. See 42 U.S.C. § 1395, et seq. Part A of Medicare authorizes payment for certain health care services, including payment to skilled nursing facilities (\"SNFs\"). Under Part A, service providers enter into a \"provider agreement\" with the Secretary. 42 U.S.C. §§ 1395cc, x(u). A \"fiscal intermediary,\" generally a private insurance company, reviews claims for reimbursement and administers payment to providers on behalf of the Secretary. 42 U.S.C. §§ 1395h(c)(1), 1395x(u). At the end of each fiscal year, the intermediary reviews each provider's cost report and issues a notice of program reimbursement (\"NPR\"), stating the amount of Medicare reimbursement owed to the provider. 42 C.F.R.",
"§§ 413.20(a), 413.24(a), (f), 405.1803. If a provider disagrees with the Secretary's determination, issued by the intermediary, the provider may request a hearing before the Provider Reimbursement Review Board (\"PRRB\" or \"Board\"), assuming certain prerequisites are met, such as the amount in controversy. 42 U.S.C. § 1395oo(a); 42 C.F.R. §§ 405.1807, 405.1835. The Board may hold a hearing and issue a decision, which may in turn be reviewed by the Secretary's delegate, the Centers for Medicare and Medicaid Services (\"CMS\"), formerly HCFA, Administrator. 42 U.S.C. § 1395oo(f)(1); 42 C.F.R. 405.1875.",
"The final decision of the *248 PRRB, or of the Secretary if he chooses to review the decision, may be challenged in a U.S. District Court with venue, pursuant to the APA. 42 U.S.C. § 1395oo(f)(1). 1. Reasonable Cost Reimbursement Under Medicare According to the defendant, during the time period at issue in this case, Medicare reimbursed providers on a \"reasonable cost\" basis. 42 U.S.C. § 1395f(b)(1). \"Reasonable cost\" is defined as \"the cost actually incurred, excluding therefrom any part of incurred cost found to be unnecessary in the efficient delivery of needed health services ...\" 42 U.S.C.",
"§ 1395x(v)(1)(A). The statute goes on to state that \"reasonable cost\" \"shall be determined in accordance with regulations establishing the method or methods to be used, and the items to be included, in determining such costs...\" Id. Not surprisingly, there are a host of regulations for determining \"reasonable cost.\" 42 C.F.R. Part 413. Moreover, the Secretary has published interpretations of the laws and regulations in the Provider Reimbursement Manual (\"PRM\") in order to give providers guidance in how the various regulations are applied. 2. The Related Party Rule Under Medicare, providers may seek reimbursement for necessary and proper interest on capital indebtedness.",
"42 C.F.R. § 413.153(a)(1), (b), (c)(1). However, if a provider borrows from an entity related to the provider \"through control, ownership, or personal relationship,\" the interest is not an allowable cost under the statute. Id. Similarly, \"[c]osts applicable to services, facilities, and supplies furnished to ... [a] provider by organizations related to the provider by common ownership or control are includable in the allowable cost of the provider at the cost to the related organization,\" where \"such cost ... [does] not exceed the price of comparable services, facilities, or supplies that could be purchased elsewhere.\" 42 C.F.R. § 413.17(a); PRM § 1000; see also PRM § 1005 (\"[t]he related organization's costs include all reasonable costs, direct and indirect, incurred in the furnishing of services, facilities and supplies to the provider,\" and stating that \"[t]he intent is to treat the costs incurred by the supplier as if they were incurred by the provider itself.\" Therefore, \"if a cost would be unallowable if incurred by the provider itself, it would be similarly unallowable to the related organization.\").",
"The related party rule applies to rental expenses. See PRM § 1011.5 (noting that where \"[a] provider ... lease[s] a facility from a related organization,\" that \"the rent paid to the lessor by the provider is not allowable as cost,\" but \"[t]he provider ... would include in its costs the costs of ownership of the facility,\" including depreciation, interest on the mortgage, real estate, and taxes). Under the regulations, a provider is \"related\" to another organization if \"the provider to a significant extent is associated or affiliated with or has control of or is controlled by the organization furnishing the services, facilities, or supplies.\" 42 C.F.R. § 413.17(b)(1); see also PRM § 1002.1. \"Control exists [where] an individual or an organization has the power, directly or indirectly, significantly to influence or direct the actions or policies of an organization or institution.\"",
"42 C.F.R. § 413.17(b)(3); see also PRM § 1004.3 (\"The term `control' includes any kind of control whether or not it is legally enforceable and however it is exercisable or exercised. It is the reality of control which is decisive, not its form or the mode of its exercise.\"). The regulations also provide that an immediate family relationship creates *249 \" an irrefutable presumption\" of relatedness. [1] PRM § 1004. According to the PRM, the purpose of the related party rule is: \"(1) to avoid the payment of a profit factor to ... [a] provider through the related organization (whether related by common ownership or control), and (2) to avoid payment of artificially inflated costs which may be generated from less than arm's length bargaining.\"",
"PRM § 1000. The regulations provide the following exception to the related party rule: (d) Exception. (1) An exception is provided to this general principle if the provider demonstrates by convincing evidence to the satisfaction of the fiscal intermediary (or, if the provider has not nominated a fiscal intermediary, CMS) that (i) The supplying organization is a bona fide separate organization; (ii) A substantial part of its business activity of the type carried on with the provider is transacted with others than the provider and organizations related to the supplier by common ownership or control and there is an open, competitive market for the type of services, facilities, or supplies furnished by the organization; (iii) The services, facilities, or supplies are those that commonly are obtained by institutions such as the provider from other organizations and are not a basic element of patient care ordinarily furnished directly to patients by such institutions; and (iv) The charge to the provider is in line with the charge for such services, facilities, or supplies in the open market and no more than the charge made under comparable circumstances to others by the organization for such services, facilities, or supplies.",
"(2) In such cases, the charge by the supplier to the provider for such services, facilities, or supplies is allowable as cost. 42 C.F.R. § 413.17(d); see also PRM § 1010. B. Factual Background Plaintiff B & G Partners is the successor to Advisors Nursing Home Group I Corporation, formerly known as Connecticut Subacute Corporation (\"CSC\"). In addition to CSC, there are several entities and persons relevant to an understanding of the instant case: 1. Continuing Health Properties, created in 1986, managed and operated three nursing homes: Subacute Center of Bristol f/k/a Forestville Health and Rehabilitation Center (\"Forestville\"), Brook Hollow Health Care Center (\"Brook Hollow\"), and Cedar Lane Rehabilitation Center (\"Cedar Lane\") until CSC took over in 1992. Plaintiff's Statement of Facts (\"Pl.Facts\") ¶¶ 28, 58. Continuing Health Properties was a wholly owned subsidiary of New MediCo Holding Co, Inc. (\"New Medico\"), a privately-held Massachusetts company, 100 percent of the stock of which was directly owned by Charles Brennick, Gerald Martin's cousin. A.R.",
"775. Barry *250 Portnoy was an attorney for New Medico. Pl. Facts ¶¶ 28-30. 2. Health and Retirement Properties Trust (\"HRPT\"), established in 1986, is a publicly traded company formed to invest in real estate, specifically health care facilities. Pl. Facts at ¶¶ 7,9. HRPT was sponsored by New MediCo/Continuing Health Properties, Greenery Rehabilitation, and HRPT Advisors. The Declaration of Trust that governs HRPT requires that a majority of the Board of Trustees be Independent Trustees. Barry Portnoy and Gerald Martin are HRPT Trustees and in addition there are three Independent Trustees. Pl. Facts at ¶¶ 13-18. 3.",
"In 1986, HRPT purchased the three nursing homes from Continuing Health Properties and then leased them back to Continuing Health Properties. Pl. Facts ¶ 35. 4. HRPT Advisors, Inc. does the day-to-day work of HRPT, pursuant to an Advisory Agreement entered into in November of 1986. Pl. Facts at ¶ 11. HRPT Advisors is owned by Barry Portnoy and Gerald Martin. Pl. Facts at ¶¶ 11-12, 22. HRPT Advisors was \"compensated at an annual rate equal to.7% of [HRPT's] real estate investments up to $250 million and .5% of such investments thereafter.\" A.R. 1269, 1304. 5. Beginning in 1992, and during the relevant time period, CSC operated the Forestville, Brook Hollow, and Cedar Lane nursing homes. Pl.",
"Facts at ¶ 2. CSC is a closely-held corporation owned by Barry Portnoy and Gerald Martin. Id. at ¶ 3. Thus, Messrs. Portnoy and Martin (1) are two of the five managing trustees of HRPT (the lessor), (2) wholly own one of HRPT's sponsors, HRPT Advisors, the organization that \"provide[s] management and administrative services with respect to the ownership of health care and related properties\" to HRPT, and (3) wholly own CSC (the lessee). [2] Mr. Martin was also the President, CEO, Director, and controlling shareholder of Greenery, another sponsor of HRPT, and he was the Treasurer of HRPT; Mr. Portnoy was also a Director and shareholder of Greenery, and a partner in the law firm of Sullivan & Worcester, counsel to HRPT, HRPT Advisors, Greenery, New MediCo, Continuing Health, Mr. Martin and Charles Brennick, \"and certain of their affiliates.\" A.R.",
"759, 771, 774. According to HRPT's Prospectus, \"Messrs. Martin, Brennick and Portnoy jointly engage and/or have engaged in numerous business and investment transactions in the health care industry and in other businesses.\" A.R. 775. The HRPT Declaration of Trust provides that the Trustees have the absolute power over the business of the Trust, but that \"Trustees are not and shall not be required personally to conduct the business of the Trust\" and that the Trustees shall have the power to appoint, employ or contract with any Person (including one or more of themselves or any corporation, partnership, or trust in which one or more of them may be directors, officers, stockholders, partners or trustees) as the Trustees may deem necessary or proper for the transaction of the business of the Trust. The Trustees may therefore employ or *251 contract with such Person (herein referred to as [HRPT Advisors]) and, consistent with their ultimate responsibility as set forth in this Section 4.1, the Trustees may grant or delegate such authority to [HRPT Advisors] as the Trustees may in their sole discretion deem necessary or desirable without regard to whether such authority is normally granted or delegated by trustees.",
"A.R. 716. In 1986, when HRPT and HRPT Advisors were created, HRPT purchased Continuing Health Properties for $32 million and then leased the facilities back to Continuing Health at a monthly rate calculated to result in annual net payments equal to 12.62% of the acquisition price of each property. See A.R. 173-74, 188, 756, 760. For the same period, the rent for the nursing homes leased to Greenery was 10% of the acquisition price. Id. As part of the arrangement between HRPT and its sponsors, Greenery signed a \"stand-by\" management agreement which provided that if Continuing Health experienced financial problems, Greenery would step in to manage Continuing Health and supply capital to keep it going; HRPT paid a fee to Greenery for this agreement. Pl. Mt.",
"at 8; A.R. 145, 153, 757-58, 767. In 1992, HRPT's Board voted to end the leases with Continuing Health and to lease the three nursing homes to CSC. A.R. 144, 547, 777, 780, 790, 1124, 1195. CSC, owned by Martin and Portnoy, who also own HRPT Advisors, took over the operations, and the leases, of the nursing homes. HRPT provided CSC with an $8 million line of credit. A.R. 1200-02, 1210-11, 1213-14. All five of the members of HRPT's Board were present at the meeting when HRPT decided to replace Continuing Health with CSC; Martin and Portnoy participated in the discussions regarding how the Trustees should respond to Continuing Health's financial woes. A.R. 777-83, A.R. 145, 164, 172. C. Procedural History For fiscal years 1996 and 1997, the Forestville, Brook Hollow and Cedar Lane nursing facilities, owned by CSC, submitted cost reports to the fiscal intermediary, Anthem Blue Cross and Blue Shield of Connecticut (\"Intermediary\"). A.R.",
"9, 1422-1490. In a series of decisions, the Intermediary determined that CSC and HRPT were related parties and disallowed capital, interest, and rental expenses. A.R. 1363-67, 1373-74, 1377, 1381-82, 1411-12, 1414-15, 1425, 1498. 1. The Intermediary's Decisions In its position papers, the Intermediary explained that it had denied Medicare reimbursement for rent expenses for Forestville for FY 1997 and for all three facilities for FY 1996. A.R. 386-93, 490-99. The decisions first set out the relevant definitions under the regulations: Related to the provider means that the provider to a significant extent is associated or affiliated with, or has control of, or is controlled by, the organization furnishing the services, facilities, or supplies. PMR § 1002.1 Common ownership exists when an individual or individuals possess significant ownership or equity in the provider and the institution or organization serving the provider.",
"PMR § 1002.2 Control exists where an individual or an organization has the power, directly or indirectly, significantly to influence or direct the actions or policies of an organization or institution. PMR § 1002.3 *252 A.R. 496-97. [3] The Intermediary then set out the guidelines for determining common ownership or control: 1. In determining whether a provider organization is related to a supplying organization, the tests of common ownership and control are to be applied separately. 2. If the elements of common ownership or control are not present in both organizations, the organizations are deemed not to be related. 3. The existence of an immediate family relationship will create an irrefutable presumption of relatedness through control or attribution of ownership or equity interests.",
"A.R. 497. The Intermediary first concluded that there was common ownership between the Provider (CSC) and the supplier (HRPT) because Messrs. Martin and Portnoy collectively own 100% of CSC and, as owners of HRPT Advisors, they had a 4.1% ownership interest in HRPT. A.R. 497. In support of its conclusion, the Intermediary cites PMR section 1004.1, which indicates that even a \"substantially low percentage of ownership could still constitute significant ownership.\" A.R. 498. The Intermediary also concluded that there was direct and/or indirect control between the parties. A.R. 498. The Intermediary noted Messrs. Portnoy and Martin, owners of CSC, made up 40% of HRPT's Board, and that HRPT's Declaration of Trust does not prohibit transactions between related parties or require that trustees with an interest in the transaction abstain from voting. Id. As for indirect control, the Intermediary found that Portnoy and Martin had indirect control of HRPT because they own HRPT Advisors, the organization which provides investment, management, and administrative services to HRPT. Id. These advisory services, the Intermediary noted, would include decisions on leasing of HRPT's properties.",
"Id. Importantly, the Intermediary \"concur[red] with the Provider that they should be reimbursed for some costs.\" Those costs would be limited to the cost of the related organization, i.e., HRPT. A.R. 499. The Intermediary noted, however, that \"the Provider was requested to produce a complete analysis with supporting documentation of the actual costs to the related party. To date, this analysis has not been produced. The failure to produce this data, as required by CFR 413.24 ..., resulted in the Intermediary's disallowance of the Providers [sic] costs in total.\" Id. Finally, the Intermediary concluded, \"If the Provider produces a complete analysis with supporting documentation of the actual costs to the related party, we would be willing to adjust the Providers cost reports to reflect those costs.\" Id. (emphasis added).",
"Thus, even as late as August 2001, plaintiff was given an opportunity to provide documentation of the costs to HRPT of owning the nursing facilities. A.R. 490, 499. 2. The PRRB's Decision The nursing homes appealed to the Provider Reimbursement Review Board, and the PRRB scheduled a hearing. A.R. 1355, 1369-76, 1377-78, 1414-16. In anticipation of the hearing, the parties filed position papers with the PRRB, laying out *253 their respective positions. A.R. 383-93, 403-23, 490-99, 567-86, 601-02, 635-74. In a decision dated September 29, 2003, the PRRB found that the Intermediary's disallowance of the rental and capital-related expenses was correct. A.R. 6-15. The PRRB's decision essentially consolidated three appeals: the FY 1996 denial of capital and interest expenses for Forestville, the FY 1996 denial of rent expenses for all three nursing homes, and the FY 1997 denial of rent, capital and interest expenses for Forestville. A.R. 7. The PRRB set out the relevant framework in this manner: Under Medicare regulations, a provider is entitled to claim costs applicable to services, facilities, and supplies furnished to the provider by organizations related to the provider by common ownership or control at the cost to the related organization as long as the cost does not exceed the price of services or supplies that could be purchased elsewhere.",
"The regulation at 42 C.F.R. § 413.17. However, there is an exception to this rule. 42 C.F.R. § 413.17(d)(1) provides that the charge made by the related supplier to the provider is allowable as \"cost\" provided the following criteria are met: (i) The supplying organization is a bona fide separate organization; (ii) A substantial part of its business activity is transacted with others than the provider and organizations related to the supplier and there is an open competitive market for the type of services furnished by the organization; (iii) The services are those that commonly are obtained by institutions such as the provider from other organizations and are not a basic element of direct patient care; (iv) The charge to the provider is in line with the charge of services in the open market by the supplier to the provider. A.R.",
"8. Next, the PRRB decision discussed the Providers' arguments as to why the Intermediary's decisions should be reversed. A.R. 10. First, the Providers argued that CSC and HRPT are not related parties because the regulations require a \"significant\" relationship between the parties in order for the rule to apply, and that in this case there was no showing of a \"significant\" relationship. Id. The Providers insisted with regard to common ownership that Martin and Portnoy's ownership interest in HRPT, 4.1%, was insufficient to meet the standard for common ownership. As for common control, the Providers maintained that HRPT was governed by its Board of Trustees a majority of which had to be independent trustees and that the Declaration of Trust explicitly provides that the transactions between the Trust and interested parties must be approved by a majority of the Trustees not so interested.",
"Id. Second, the Providers alleged that even if the PRRB was to find that CSC and HRPT were related, the leases were actually negotiated in 1986 between unrelated parties Continuing Health and HRPT and thus, because CSC effectively assumed the leases on the same terms as had been negotiated between Continuing Health and HRPT, they were not related party leases. A.R.",
"11. Third, the Providers submitted that even if CSC and HRPT were found to be related parties, the exception should be applied because (a) the parties are bona fide separate organizations; (b) a substantial part of HRPT's business activity at all relevant times, 1986, 1992, and 1996 when it was audited, was conducted with organizations *254 with which it was not related, and, moreover, in 1986, when the lease was negotiated, Continuing Health would have had alternatives for obtaining financing; (c) that it is common for providers to lease, rather than own, health care facilities; and (d) charges to the Providers were \"in line\" with the charges for services, facilities or supplies on the open market. A.R. 11-12.",
"After a summary of the Intermediary's findings, the PRRB found that the Providers and HRPT were related parties for purposes of the regulations. A.R. 13. The decision cited the relevant definitions: (b) Definitions. (1) Related to the provider. Related to the provider means that the provider to a significant extent is associated or affiliated with or has control of or is controlled by the organization furnishing the services, facilities, or supplies. (2) Common Ownership. Common ownership exists if an individual or individuals possess significant ownership or equity in the provider and the institution or organization serving the provider. (3) Control. Control exists if an individual or an organization has the power, directly or indirectly, significantly to influence or direct the actions or policies of an organization or institution.",
"A.R. 13-14 (emphasis added). First, the PRRB reversed the Intermediary's finding of significant common ownership. Id. With regard to control, however, the Board did conclude that the Providers and HRPT were related parties. A.R. 14-15. Noting at the outset that \"it can not look at the audited years, December 31, 1996 and 1997, in isolation[,]\" the PRRB found the following factors to be relevant: (1) In 1986, when HRPT was created, it initially conducted business with its three sponsors (HRPT Advisors, Inc., Greenery and New MediCo [/Continuing Health]), all of which were owned by the Provider's shareholders and a relative who owned New MediCo. HRPT (through HRPT Advisors) created a stand-by management agreement whereby Greenery would be called on to manage Continuing Health (successor to New MediCo). Although never implemented, this agreement imposing an obligation is indicative of control. (2) The prospectus for HRPT indicates that substantially all of the Company's (HRPT's) operations will be conducted by HRPT Advisors (owned by the Provider's shareholders).",
"Furthermore, the prospectus at Intermediary Exhibit 1, page 18, states that HRPT will be subject to various conflicts of interest arising out of its relationships with its sponsors and their affiliates. (3) The prospectus indicates that to the extent that the terms of the mortgage-financing, acquisition and lease of the Properties have been negotiated among related parties, they have not been determined on an arms-length basis. (4) The financial statements of HRPT indicate that HRPT Advisors, Inc. is considered to be affiliated with the Providers based on common ownership. A.R. 14. The Board explicitly rejected the Providers' argument that CSC had merely taken over the leases which were negotiated by unrelated parties. Id. The Board found that the principals of HRPT Advisors, Inc. (who are the Providers' shareholders) were in the position of dealing with themselves as owners of [CSC]. Specifically, the Providers' shareholders have indirect control of HRPT since they are also the owners of HRPT Advisors, Inc., which provides management and administrative services to HRPT.",
"This makes *255 them responsible for providing advisory services to HRPT that would include decisions on the leasing of HRPT properties. The Board finds that a related party relationship existed between HRPT and its various affiliates at the time the original leases were signed and extended to the years at issue. A.R. 14-15 (emphasis added). The Board went on to find that the Providers were not qualified for the exception to the related party rule. A.R.",
"15. First, the PRRB found no evidence in the record to support the Providers' contention that a significant portion of their business activities were conducted with unrelated entities. Id. Moreover, the Board cited the Intermediary's survey, which disclosed that rental charges for the Forestville facility were far in excess of the average rental expenses for other skilled nursing facilities in Connecticut. A.R. 15; see also A.R.",
"476-77 (Intermediary's 1998 letter to Providers' counsel stating that it had \"surveyed all of the [SNFs] which this office serves as the Fiscal Intermediary in the Hartford, Connecticut MSA and have found that the capital per diem average for FY 1996 is $13.78 and the average cost per square foot is $15.87 compared to the capital per diem of $38.24 and cost per square foot of $65.13 for Forestville Health for the same fiscal year\"). Even recognizing that a rehabilitation facility might require a higher rental rate, the Board found that the Providers had not submitted any evidence to refute the finding that their rent was out of line with similar providers.",
"A.R. 15. Moreover, the Board noted that the Providers had not submitted any evidence that they had negotiated with any other Real Estate Investment Trusts (\"REITs\") to find alternative financing or capital. Id. Finally, the Board concluded that the Providers had failed to provide any documentation of ownership costs, which would entitle them to some reimbursement, and thus, the Board was \"precluded\" from allowing any costs because the Providers had not complied with the regulations' record-keeping provisions, 42 C.F.R. §§ 413.20(a) and 413.24(a). A.R. 15. On November 24, 2003, the Administrator for the Centers for Medicare and Medicaid Services (formerly HCFA), declined to review the PRRB decision. A.R. 2. This lawsuit followed.",
"II. Standard of Review Summary judgment is granted pursuant to Fed.R.Civ.P. 56 only when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The Court views the evidence in the light most favorable to the nonmoving party, according the party the benefit of all reasonable inferences. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Thus, in ruling on cross motions for summary judgment, the Court will grant summary judgment only if one of the moving parties is entitled to judgment as a matter of law upon material facts that are not in dispute. See Rhoads v. McFerran, 517 F.2d 66, 67 (2d Cir.1975). In a review of agency action pursuant to the APA, the Court must determine whether the challenged decision is \"arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.\"",
"5 U.S.C. § 706(2)(A). In reviewing an agency's action, the Court must engage in a \"thorough, probing, in-depth review\" to determine \"whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.\" See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415-16, *256 91 S. Ct. 814, 28 L. Ed. 2d 136 (1971). However, while the Court's inquiry must be \"searching and careful,\" the standard of review is also a highly deferential one; the agency's actions are \"entitled to a presumption of regularity,\" and the Court cannot \"substitute its judgment for that of the agency.\" Id. at 415-16, 91 S. Ct. 814. III. Discussion In this suit, plaintiff again argues that (1) the related party rule should not have been applied in this case; (2) if the related party rule applied, CSC should have qualified for the exception; and (3) even if the rule applied and the criteria for the exception were not met, the nursing homes should at least have been reimbursed for some reasonable rental, capital and interest expenses. These arguments will be discussed in turn. A.",
"Whether the PRRB Correctly Applied the Related Party Rule Plaintiff maintains that there is no showing of significant control in this case. [4] Pl. Mot. at 18. Plaintiff contends that when the original leases were negotiated in 1986, Continuing Health and HRPT were not related, and thus, because CSC took over the same leases in 1992, there cannot be a finding of control. Id. They note that Continuing Health was a wholly owned subsidiary of New MediCo, which was owned by Charles Brennick, that neither Martin or Portnoy owned any portion of New MediCo, that neither Martin or Portnoy or any of HRPT's trustees were officers or directors of New MediCo or Continuing Health, and that none of New MediCo or Continuing Health's officers or directors held any positions with HRPT.",
"Id. at 19. Plaintiff principally looks to Biloxi Reg'l Med. Ctr. v. Bowen, 835 F.2d 345 (D.C.Cir.1987), for support. In Biloxi, the U.S. Court of Appeals for this circuit considered a challenge to the PRRB's determination that the parties were related for purposes of Medicare reimbursement. Id. The district court granted summary judgment for the Secretary, but the appellate court reversed. Id. at 348-51. Plaintiff Biloxi Regional Medical Center (\"Center\") entered an agreement with the city and several other entities, including the American Medical Management Hospital Group (\"AMM\"), to assume operation of a hospital. Id. at 347.",
"As part of the agreement, plaintiff took over a lease, with certain revisions, with the city which had provided the former hospital with a rent-free term of twenty-five years. Id. The agreement also designated AMM as the Center's management group and guarantor. Id. One revision to the lease required that the Center pay rent to the city at an amount established by an independent appraiser. Id. at 347-48. The Center did pay rent, at the rate established by the appraiser, and thereafter submitted a Medicare cost report to its fiscal intermediary. Id. at 348.",
"The intermediary denied the rental costs on the grounds that the Center and the City were related by common control. Id. The PRRB affirmed, in part because the agreement provided that when the lease expired, the Center's proceeds would revert to the city. Id. The Board also noted that the mayor had the power to approve or reject candidates selected by AMM for *257 positions on the Center's Board of Directors, the city had agreed to assist the Center through bonds with financing a new facility, the agreement provided that the city would take title to all the Center's assets at the end of the lease, a statement in the agreement noted that it would be in the best interests of the city to leave the hospital to the new hospital (another signatory of the agreement), and the city's extension of the deadline by which the Center was to complete the new facility. Id.",
"The district court found the fact that the city's mayor could approve or reject four members of the Center's Board as determinative on the issue of relatedness and granted summary judgment. Id. The Court of Appeals reversed, noting Our examination of the mayor's power convinces us that the City was willing to accept a very modest role, however. Although not dispositive, we note that the `control' envisioned by the District Court remained entirely potential; affidavits by the current and former mayors of the City indicate that they approved all the candidates selected by AMM without any independent investigation of their background. Id.",
"at 351. Moreover, the court found that the mayor's power was limited to vetoing candidates for a minority number of the board's seats. Id. The court also found it \"extremely unlikely\" that any directors would seek to curry favor with the city in order to retain their positions, and noted that the intermediary's decision had relied on a regional office's determination that \"any approval of Board Members by the Mayor of Biloxi is a mere formality as AMM does the actual selections.\"",
"Id. at 351-52. The Court of Appeals went on to discuss the other factors relied upon by the PRRB and found them not probative of control. Id. at 352-53. The Biloxi court did state, however, \"[w]e realize, of course, that the District Court was properly concerned not with the actual but with the potential ability of the City to influence the Center.\" Id. at 352 (emphasis added). In the instant case, the Court is convinced that the PRRB's decision is supported by sufficient evidence of control, as distinguished from the vague and remote elements of potential control found in the Biloxi case. Messrs. Portnoy and Martin had concrete opportunities to influence HRPT's decisions based on their ownership of HRPT Advisors, they had financial stakes in the agreements between HRPT and the Providers both as owners of CSC and as owners of HRPT Advisors, which, under the agreement with HRPT, was remunerated based on HRPT's profits, and they themselves were two of the five members of HRPT's Board of Directors.",
"These factors fully support a conclusion that Portnoy and Martin had the \"potential ability ... to influence\" CSC and stand in stark contrast to the \"mere formality\" in Biloxi whereby the mayor could approve or reject a minority of board members suggested by the managing facility. See id. at 351-52. 1. The Stand-By Management Agreement Next, plaintiff contests each of the factors relied upon by the PRRB in its finding of control. Pl. Mot. at 22-32. For example, plaintiff insists that the stand-by management agreement between Greenery, HRPT, and Continuing Health was never implemented and was simply something required by HRPT's underwriters because New MediCo had emerged from bankruptcy several years prior. Id. at 22. The regulations provide, however, that control exists \"if an individual or an organization has the power, directly or indirectly, significantly to influence or direct the actions or policies of an organization or *258 institution.\" PRM § 1002.3; see also Biloxi, 835 F.2d at 352 (stating that it is not the \"actual\" but rather the \"potential\" ability to influence that is the issue).",
"The stand-by agreement that Greenery where Martin and Portnoy were directors would take over for Continuing Health if necessary, combined with Martin and Portnoy's roles at HRPT Advisors who would presumably be the ones to \"advise\" HRPT to end its contract with Continuing Health and allow Greenery to take over provides substantial evidence of at least the \"potential\" for significant influence. See id. Finally, while the familial relationship of cousin does not establish the \"irrefutable presumption\" of relatedness for purposes of the regulations, the Medicare regulations clearly recognize that familial relationships in supplier-provider transactions create at least the opportunity for influence. See PMR § 1004.",
"Thus, it was not inappropriate for the PRRB to consider Brennick's ownership of New MediCo and Continuing Health and his role in the 1986 transaction with HRPT, given the fact that Martin and Brennick were cousins. This factor is all the more significant in light of HRPT's candid acknowledgment that \"Messrs. Martin, Brennick and Portnoy jointly engage and/or have engaged in numerous business and investment transactions in the health care industry and in other businesses.\" A.R. 775. 2. The HRPT Prospectus Plaintiff submits that the PRRB incorrectly relied on HRPT's Prospectus and numerous statements in that document, such as \"to the extent that the terms of the mortgage-financing, acquisition and lease of the Properties have been negotiated among related parties, they have not been determined on an arms-length basis.\" A.R.",
"14. Plaintiff argues that this is not an admission that the parties to the 1986 agreements were related, and, \"most significantly,\" that because the Prospectus was prepared pursuant to the securities laws, not the Medicare reimbursement laws, the statements should not have been relied upon by PRRB. Pl. Mot. at 24-26. Plaintiff does not cite a single case or regulation, however, to support the notion that the PRRB cannot consider disclosures made for purposes of the securities laws as evidence of relatedness and control. It is clear from the Board's decision that it did not simply take HRPT's Prospectus as conclusive evidence or admission of relatedness for purposes of applying the related party rule, but instead considered the statements in the Prospectus in the context of the other evidence in the record, such as the Advisory Agreement, the lease agreement, and the financial data, to reach its conclusion that HRPT and CSC are related parties for purposes of the Medicare reimbursement laws. The Court finds that the Board's consideration and interpretation of the Prospectus is reasonable and supported by the record.",
"See Consolo v. Fed. Mar. Comm'n, 383 U.S. 607, 620, 86 S. Ct. 1018, 16 L. Ed. 2d 131 (1966)(stating Supreme Court's holding that the APA gives a reviewing court the authority to set aside an agency's ruling only if it is found to be arbitrary, capricious, an abuse of discretion, or unsupported by substantial evidence); see also Universal Camera Corp. v. Nat'l Labor Relations Bd., 340 U.S. 474, 71 S. Ct. 456, 95 L. Ed. 456 (1951). 3. Indirect Control Through HRPT Advisors Plaintiff argues that the Declaration of Trust, declaring that the trustees have the ultimate control over the Trust and all transactions with an interested party must be approved by a majority of non-interested trustees, refute the PRRB's conclusion *259 that Portnoy and Martin had indirect control over HRPT. Pl. Mot. at 31-33. Reliance on the Declaration of Trust is a double-edged sword for plaintiff. That document also provides that \"Trustees are not and shall not be required personally to conduct the business of the Trust\" and that they may therefore \"grant or delegate such authority to [HRPT Advisors] as the Trustees in their sole discretion deem necessary or desirable without regard to whether such authority is normally granted or delegated by Trustees.\"",
"A.R. 716. The Declaration of Trust also explicitly provides that HRPT Advisors does not have to present any particular investment opportunities and even protects HRPT Advisors from taking advantage of such opportunities itself. A.R. 717. Thus, this is not a document that strictly protected HRPT from any self-dealing. Moreover, HRPT Advisors was remunerated through a formula that was based on HRPT's investments, providing an incentive to Martin and Portnoy to find high-paying rental investments. H.R. 773. Thus, they were potentially in the position of dealing with themselves and \"essentially negotiating on both sides of the transaction.\" See Kidney Ctr. of Hollywood v. Shalala, 133 F.3d 78 (D.C.Cir.1998). In Kidney Center, the Court of Appeals reviewed a challenge to a determination by the HCFA Administrator, on behalf of the Secretary, that plaintiff health care provider was not entitled to reimbursement for certain costs under the related party regulation.",
"After a series of transactions between a number of corporations, Management Investors and Grace corporations could each choose four of the eight directors of a third corporation, NMC Holding. Id. at 83. A number of officers and directors of the former corporation held the same positions with NMC Holding. Id. In its review, the court first noted the Secretary's guidelines in PMR § 1004.3, \"[t]he term `control' includes any kind of control, whether or not it is legally enforceable and however it is exercisable or exercised. It is the reality of the control which is decisive, not its form or the mode of its exercise.\" The appellate court went on to find that there was certainly substantial evidence in the record supporting the Secretary's anterior determination that the Management Investors had the power significantly to influence the actions of both Old NMC and NMC Holding.",
"That finding is itself sufficient to support the Secretary's conclusion that the firms were related by control. Because the Management Investors held key positions on the board and in the management of Old NMC, they were clearly in a position to influence the board to recommend, and the shareholders of Old NMC to approve, the transaction. The Management Investors also had the ability significantly to influence NMC Holding.... * * * * * * In addition, the chief negotiator for Old NMC (Dr. Hampers) was also one of the Management Investors in NMC Holding.",
"He was essentially negotiating on both sides of the transaction. Id. at 85. The instant case regarding the transactions between HRPT, HRPT Advisors, HRPT's sponsors, and CSC, is analogous to the circumstances in Kidney Center. Here, like the Court of Appeals in that case, the Secretary's \"reasonable interpretation is entitled to our deference.\" Id. (citation omitted). B. The Exception to the Related Party Rule Plaintiff contends that the PRRB erred in its conclusion that, even if HRPT *260 and CSC are related parties, the criteria for the exception found in 42 C.F.R. § 413.17(d) were not met. The first of the four criteria for qualifying for the exception, that the supplying organization is a bona fide organization, is not disputed.",
"A.R. 15; Def. Mot. at 37. As to the second criterion, however, whether a substantial part of the supplying organization's business of the type carried on with the Provider is with unrelated organizations and there is an open, competitive market for the type of service supplied, plaintiff notes that the PRRB focused on the wrong analysis. Pl. Reply at 34-35. The PRRB concluded that \"the Providers assert that a significant portion of their business activities were transacted with unrelated organizations. However, the Board finds that the record contained no evidence to support the Providers' assertions.\" A.R. 15 (emphasis added). Plaintiff maintains that it is HRPT's business activities, not CSC's, that should have been the focus of the analysis.",
"The defendant appears to concede plaintiff's point. Def. Mot. at 37 (\"To the extent that the PRRB focused on whether CSC transacted a substantial part of their business with unrelated organizations in resolving this issue, the Board arguably focused on an extraneous issue.\"). Nevertheless, the record appears to support a finding that plaintiff did not satisfy its burden to show by \"convincing evidence to the satisfaction of the fiscal intermediary\" that HRPT did a significant portion of its business with unrelated organizations and that there is an open and competitive market for the type of services provided by HRPT. 42 C.F.R.",
"§ 413.17(d)(1),(d)(1)(ii). The Intermediary concluded that in 1986, when the lease was negotiated, HRPT did not do a substantial part of its business with unrelated parties. A.R. 193. Moreover, the Intermediary found that there is not an open, competitive market for leasing nursing home facilities. See A.R. 193-94, 477 (Intermediary's experience that most skilled nursing facilities are owned, not leased.). Finally, the PRRB concluded that CSC had not submitted any evidence to show that they tried to negotiate with any unrelated REITs for financing or capital alternatives.",
"A.R. 15. Finally, as to the fourth prong of the exception analysis, whether the charges to the Provider were \"in line\" with charges for those services on the open market, the PRRB cited a letter from the Intermediary citing the former Intermediary's survey that charges for the Forestville facility were several times higher than charges for comparable SNF facilities in the Hartford, Connecticut area. A.R. 15, 477. Plaintiff argues that this survey should be given no weight because it was not offered into evidence or produced or explained as part of the administrative proceedings. Pl. Mot. at 37.",
"The regulations afford the plaintiff the opportunity to discover the underlying methodology or other information about the Intermediary's evidence. 42 C.F.R. § 405.1853(b). However, plaintiff does not submit evidence that they did so under the regulations. Plaintiff also maintains that it introduced \"substantial evidence\" that the rent under the leases to Continuing Health was at the market rate. Pl. Mot. at 36. But the evidence plaintiff cites is HRPT's own annual report, which is hardly objective evidence of open market rates. A.R. 1269. In fact, that document states [HRPT] has an agreement with [HRPT Advisors] whereby [HRPT Advisors] provides investment, management and administrative services to [HRPT].",
"[HRPT Advisors] is owned by Gerard M. Martin and Barry M. Portnoy, who also serve as Managing Trustees of the *261 Company. Messrs. Martin and Portnoy are principal shareholders of [CSC], Connecticut Subacute Corporation II, New Hampshire Subacute Corporation and Vermont Subacute Corporation (collectively the `Subacute Entities') and were formerly directors of Horizon/CMS Healthcare Corporation (`Horizon') and Greenery Rehabilitation Group, Inc. (`Greenery'), which merged with Horizon in 1994. Horizon and the Subacute Entities are lessees of [HRPT]. [HRPT] has extended a [$4 million] line of credit to CSC until June 30, 1997. At December 31, 1996, there was [$2,365,000] outstanding under this agreement. The lease and mortgage transactions with the Subacute Entities and Horizon are based on market terms and are generally similar to [HRPT's] lease and mortgage agreements with unaffiliated companies.",
"The former president of [HRPT] is the president of the Subacute Entities. Mr. Portnoy is a partner in the law firm which provides legal services to [HRPT]. [HRPT Advisors] is the general partner of M & P, which provides management services for some of the [HRPT's] recently acquired medical office buildings. The property management fees paid to M & P are generally equal to three percent of gross rents from the managed properties. A.R. 1269. Under the regulations, it is plaintiff's burden to show convincing evidence that each of the four criterion are satisfied. The Court is unpersuaded by this evidence that the PRRB was erroneous in concluding that the plaintiff had not satisfied the fourth prong of the regulation that would have entitled it to be excepted from the related party rule. 42 C.F.R. § 413.17(d). While portions of the PRRB's analysis of the related party rule's exception under 42 C.F.R. § 413.17(d) may have been flawed, this Court does not need to reverse its decision if the record otherwise supports the conclusion and the outcome would not be different if the correct analysis had been applied.",
"See, e.g., DSE, Inc. v. United States, 169 F.3d 21, 31 (holding that under the APA, agency decisions will not be set aside unless the plaintiff can demonstrate that it was prejudiced and that to do otherwise would be \"empty formality\"); Salt River Project Agric. Improvement and Power Dist. v. United States, 762 F.2d 1053, 1060-61 n. 8 (D.C.Cir.1985)(holding that \"[w]hen an agency relies on a number of findings, one or more of which are erroneous, we must reverse and remand only when there is a significant chance that but for the errors the agency might have reached a different result\" and that \"[w]hen it is clear that based on the valid findings the agency would have reached the same ultimate result, we do not improperly invade the administrative province by affirming.\"). Here, particularly where plaintiff must satisfy all four criteria to meet the related party rules exception, the record supports the PRRB's conclusion and there is no reason to think that a different result would have been reached but for any errors cited by plaintiff. C. Whether CSC was Entitled to Some Reimbursement for Reasonable Costs After Application of the Related Party Rule Finally, plaintiff insists that even if the related party rule was correctly applied and it failed to qualify for the exception, CSC was still entitled to some reimbursement for costs.",
"Apparently, the Intermediary and the Board both agreed that even after application of the related party rule, Providers can recover certain costs, such as costs to the related party. A.R. 15. According to the PRRB, the reason plaintiff was unable to recover any *262 costs is its failure \"to submit any documentation of ownership costs,\" required under the Medicare regulations, 42 C.F.R. §§ 413.20(a) and 413.24(a). A.R. 15. The regulations provide that The provider must make available to the intermediary when requested adequate documentation to support the costs incurred by the related organization, including, when required, access to the related organization's books and records, attributable to supplies and services furnished to the provider. Such documentation must include an identification of the organization's total costs, the basis of allocation of direct and indirect costs to the provider, and other entities served.",
"PMR § 1005. The record reflects that the Intermediary requested such documentation at least once and gave the Providers ample opportunity to provide that information. See, e.g., A.R. 476-77 (Letter dated August 19, 1998) (\"Lastly, both of the Audited Financial Statements for Connecticut Subacute and for HRPT indicate that the rental arrangement is through a related party. With this information, please submit an analysis of the actual cost to the related party for depreciation on capital items. We will adjust to bring the rent expense onto Worksheet A-8-1 column 4 and the actual cost on column 5.\"). Plaintiff cites Richlands Med. Ass'n v. Harris, 651 F.2d 931 (4th Cir.1981) and submit that they are entitled to reimbursement rate at the level of the market rate in 1986, plus interest. This argument is unavailing for several reasons. First, as defendant persuasively argues, Richlands applied the incorrect standard of deference, may not be good law in the 4th Circuit, and is inconsistent with this Circuit's caselaw, such as Kidney Center, 133 F.3d at 86.",
"See Def. Reply at 18-21 (citing numerous cases issued by the Supreme Court and the 4th Circuit Court of Appeals since Richlands that undermine Richland's holding). Perhaps more importantly, the PRRB's decision that plaintiff would recover no costs was based on plaintiff's failure to submit documentation of those costs and failure to comply with the record keeping provisions, not a disagreement that plaintiff would be entitled to cost reimbursement had it documented those costs. Plaintiff maintains that it submitted documentation of the Trust's depreciation of the facilities, and cites to a letter counsel sent to the Intermediary, attaching HRPT's financial information. Pl. Reply at 20 (citing A.R. 260-306). A reading of the letter, however, indicates that this documentation was only submitted for purposes of showing that the related party rule did not apply or, without admitting relatedness, to address why the exception of PMR § 1010 should apply. A.R.",
"260-262. Thus, it is perhaps not surprising that the Intermediary acknowledged receipt of that information, but again requested an analysis of the actual costs. A.R. 501, 564-65. In sum, the record supports the PRRB's conclusion that plaintiff had not complied with its duty to provide documentation necessary to support reimbursement. IV. Conclusion As this Court has said, \"It is well settled ... that the Secretary's decisions interpreting the Medicare Act are entitled to `great deference.'\" See Sentara-Hampton General Hosp. v. Sullivan, 980 F.2d 749, 755 (D.C.Cir.1992) (citation omitted). \"Our limited role is to ensure that the Secretary's regulations are consistent with the statute, reasonably interpreted and consistently applied ... [and] to ensure that the findings in particular cases are not *263 arbitrary and capricious and are supported by substantial evidence.\"",
"Villa View Community Hospital, Inc. v. Heckler, 728 F.2d 539, 543 (D.C.Cir.1984). We are not permitted to substitute our judgment for that of the agency. Lloyd Noland Hosp. and Clinic v. Heckler, 762 F.2d 1561, 1565 (11th Cir.1985). Nat'l Med. Enter., Inc. v. Shalala, 826 F. Supp. 558, 560-561 (D.D.C.1993). Nothing in the record persuades this Court that the Secretary acted arbitrarily or capriciously or that his decision was not supported by substantial evidence in concluding that CSC was not entitled to reimbursement. Therefore, defendant's motion is GRANTED and plaintiff's cross motion is DENIED and this case is DISMISSED WITH PREJUDICE. An appropriate Order accompanies this Memorandum Opinion. NOTES [1] For purposes of the regulations, \"immediate family\" means (1) husband and wife, (2) natural parent, child and sibling, (3) adopted child and adoptive parent, (4) step-parent, step-child, step-sister, and step-brother, (5) father-in-law, mother-in-law, sister-in-law, brother-in-law, son-in-law, and daughter-in-law, (6) grandparent or grandchild.",
"PRM § 1004. [2] See A.R. 1300; see also A.R. 762 (HRPT Prospectus states \"[s]ubstantially all of [HRPT's] operations, except investment decisions, will be conducted by [HRPT Advisors]\"). [3] The Intermediary's position papers are substantially identical in their format and findings one for FY 1996 dealing with one nursing home and the other for FY 1997 dealing with three nursing homes. Thus, for convenience, the Court will cite to the latter. [4] Plaintiff's motion also makes arguments related to common ownership. Because the PRRB expressly found that there was insufficient evidence to support a finding of common ownership, and thus only the issue of control is before the Court, this opinion will focus on whether the Board correctly determined that there was significant control between the Providers and the supplier."
] | https://www.courtlistener.com/api/rest/v3/opinions/2476698/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
976 F.2d 169 Willie LeRoy JONES, Petitioner-Appellant,v.Edward W. MURRAY, Director of the Virginia Department ofCorrections, Respondent-Appellee.Virginia Trial Lawyers Association, Amicus Curiae.* No. 92-4009. United States Court of Appeals,Fourth Circuit. Argued Sept. 11, 1992.Decided Sept. 11, 1992.Certiorari Denied Sept. 15, 1992.See 113 S.Ct. 27.
Alan William Clarke, argued, Clarke & Clarke, Kilmarnock, Va., Gary S. Guzy, Washington, D.C., argued, for petitioner-appellant. Robert B. Condon, Asst. Atty. Gen., Office of the Attorney General, Richmond, Va., argued (Mary Sue Terry, Atty. Gen., on brief), for respondent-appellee. Christopher A. Meyer, argued, Virginia Trial Lawyers Ass'n, and Timothy M. Kaine, Mezzullo & McCandlish, Richmond, Va., argued, for amicus curiae. Before ERVIN, Chief Judge, and WIDENER and WILKINSON, Circuit Judges. OPINION WIDENER, Circuit Judge:
1 Willie LeRoy Jones appeals to this court the decision of the district court denying his motion for a stay of execution and his Rule 60(b) motion to set aside the district court's earlier judgment denying him a writ of habeas corpus. Jones seeks review of the decision denying him a writ of habeas corpus. He argues that as a result of a series of recent Supreme Court cases Virginia's death penalty statute is unconstitutional and attacks the constitutionality of the statute on a number of grounds. He has raised these claims in one form or another throughout his appeals. Jones therefore admits that he is not asserting any new claims. Brief of Appellant at 3. After a careful review of Jones's claims and the cases on which he relies, we hold that Virginia's death penalty statute is constitutional and therefore affirm the district court's denial of Jones's Rule 60(b) motion and his motion for a stay of execution.
I.
2 In January 1984, Jones was sentenced to death following convictions on two counts of capital murder in Virginia. Jones v. Commonwealth, 228 Va. 427, 323 S.E.2d 554, 557 (1984), cert. denied, 472 U.S. 1012, 105 S.Ct. 2713, 86 L.Ed.2d 728 (1985). He was found to have murdered an elderly couple and incinerated them in the course of a robbery. The horrible details are recited in the Virginia report and in our previous decision at 947 F.2d 1106. Because petitioner had no prior criminal record, the prosecutor did not argue future dangerousness. Jones was sentenced on the basis of the sole aggravating factor that his conduct in each murder was "outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated battery to the victim," as provided for in Virginia's capital punishment statute, Va.Code Ann. § 19.2-264.2. Jones, 323 S.E.2d at 564.
3 The conviction and sentences of death were upheld on appeal to the Virginia Supreme Court. Jones, 323 S.E.2d at 554. The United States Supreme Court denied review of that opinion. 472 U.S. 1012, 105 S.Ct. 2713, 86 L.Ed.2d 728 (1985). Jones then filed a Petition for a Writ of Habeas Corpus in the Virginia state courts. A plenary hearing was held by the Circuit Court of York County, Virginia, on April 22, 1986. Final order denying the petition in full was entered on September 9, 1986. An appeal to the Virginia Court was denied on June 15, 1987. Jones v. Bair, No. 86-1152 (June 15, 1987). The United States Supreme Court denied certiorari on November 19, 1987. Jones v. Bair, 484 U.S. 959, 108 S.Ct. 358, 98 L.Ed.2d 383 (1987).
4 Jones then filed a Petition for Writ of Habeas Corpus in the United States District Court for the Eastern District of Virginia. The Commonwealth moved to dismiss the petition and petitioner opposed its motion. The matter was referred to a Magistrate, who issued his Report and Recommendation on April 7, 1989. The parties objected to different portions of that report. The district court issued a final order dismissing the petition on January 4, 1990. Jones filed a motion pursuant to Fed.R.Civ.P. 59(e) to Alter or Amend the Judgment on January 10, 1990. That motion was denied by Order of April 9, 1990.
5 Jones filed a Notice of Appeal to the United States Court of Appeals for the Fourth Circuit on May 4, 1990. After briefing and oral argument on December 1, 1990, we affirmed the judgment of the district court on October 1, 1991. Jones v. Murray, 947 F.2d 1106 (4th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1591, 118 L.Ed.2d 308 (1992). He then filed a petition for rehearing with suggestion for rehearing en banc. We denied this petition on November 5, 1991. Jones then applied to the United States Supreme Court for a writ of certiorari. That petition was denied on April 6, 1992, --- U.S. ----, 112 S.Ct. 1591, 118 L.Ed.2d 308 (1992), and a petition for rehearing was denied on May 26, 1992. --- U.S. ----, 112 S.Ct. 2295, 119 L.Ed.2d 219 (1992).
6 On June 2, 1992, the York County Circuit Court held a hearing for the setting of an execution date. By an order dated June 9, 1992, the circuit court scheduled Jones's execution for September 15, 1992.
7 On August 10, 1992, Jones filed a second state habeas petition in the Circuit Court of York County, once again raising his claim that Virginia's vileness aggravating circumstance has been applied to him in an unconstitutionally vague manner. According to Jones, recent decisions of the United States Supreme Court, Stringer v. Black, --- U.S. ----, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992), and Sochor v. Florida, --- U.S. ----, 112 S.Ct. 2114, 119 L.Ed.2d 326 (1992), justified relitigation of his claim.
8 The Commonwealth filed a motion to dismiss on August 24, 1992, and the circuit court heard oral argument on August 27, 1992. On that same date, the circuit court dismissed the successive petition, finding that relitigation of the claim was procedurally barred under state law and that Jones, in any event, had failed to show that the Supreme Court cases upon which he relied warranted the extraordinary relief he sought.
9 Although the circuit court dismissed his successive petition on August 27th, Jones did not file an appeal in the Virginia Supreme Court until September 8, 1992. The Supreme Court of Virginia promptly requested the respondent to reply within three days, and granted Jones's request for oral argument, now scheduled for September 14, 1992.
10 On August 20, 1992, Jones filed a motion under Rule 60(b), Fed.R.Civ.P., in the United States District Court in Norfolk in which he raised the same claim he raised in state court. He also asked for a stay of execution.
11 On September 8, 1992, however, the district court denied Jones's motion because he had not exhausted his available state remedies given the pendency of his appeal to the Virginia Supreme Court. The court also denied his request for a stay of execution because it found Jones's constitutional challenge to the vileness criterion to be both procedurally barred and without merit as a matter of law.
II.
12 Jones's Rule 60(b) motion is rather unusual. It raises exactly the same grounds as his prior federal habeas petition, and the types of relief it seeks are those ordinarily sought in habeas petitions.
A.
13 We first assume that the papers are a petition for habeas corpus under 28 U.S.C. § 2254.
14 Section 2254(b) requires that a petitioner who seeks habeas corpus relief must first exhaust his state court remedies before applying to the federal courts for relief. Jones has not done so here. He appealed the York County Circuit Court's denial of his habeas petition to the Virginia Supreme Court on September 8, 1992. We have been informed that oral argument is scheduled before the court on September 14, 1992. Thus, petitioner has not exhausted his state court remedies within the meaning of section 2254(b).
15 Further, we note that there are no extraordinary circumstances in this case that would entitle Jones to be excused from the exhaustion requirement. Although petitioner cites his imminent execution date, he fails to adequately explain his delay in filing his second state habeas petition. Jones's execution date was set by the York County Circuit Court on June 9, 1992. However, Jones did not file his second state habeas petition until August 10, 1992, a delay of two full months. The United States Supreme Court had denied Jones's petition for a writ of certiorari on April 6, 1992. --- U.S. ----, 112 S.Ct. 1591, 118 L.Ed.2d 308 (1992). A principal case on which Jones relies, Stringer v. Black, --- U.S. ----, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992), had been decided on March 9, 1992, before the Supreme Court denied certiorari.1 The second case on which Jones relies, Sochor v. Florida, --- U.S. ----, 112 S.Ct. 2114, 119 L.Ed.2d 326 (1992), was decided on June 8, 1992, the day before his execution date was set. All of the cases on which Jones relies were decided at least two full months before he filed his second state habeas petition. This is yet another example of a petitioner who has waited until the eve of his execution to file a habeas corpus petition without a justifiable excuse for the delay, and we should not excuse such a petitioner from the section 2254(b) exhaustion requirement. We are of opinion that the district court was correct in denying Jones's motion for failure to exhaust his state remedies. See Jones, slip op. at 4-7.
B.
16 We next consider the papers as a successive habeas petition. See Jones, slip op. at 8-10. Jones admits in his brief that he is raising exactly the same constitutional challenges that he has raised in his prior habeas petitions. Brief of Appellant at 3. The Supreme Court recently established that before a reviewing court can reach the merits of a successive habeas petition, it must find "by clear and convincing evidence that but for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty under the applicable state law." Sawyer v. Whitley, --- U.S. ----, ----, 112 S.Ct. 2514, 2517, 120 L.Ed.2d 269 (1992). The constitutional error Jones alleges is that the vileness factor in Virginia's death penalty statute, as limited by the trial court judge's instructions, is unconstitutionally vague. Even if true, Jones's argument does not establish that no reasonable juror would have found him eligible for the death penalty. Under any conceivable construction of the statutory terms "aggravated battery" and "depravity of mind," it is apparent that Jones would not be able to prove by clear and convincing evidence that no reasonable juror would find him eligible for the death penalty. Therefore, we cannot reach the merits of Jones's habeas petition as a successive petition which might be considered on its merits because he has not met the standard set forth in Sawyer. Accordingly, we affirm the district court's denial of Jones's motion because it is a successive habeas petition that cannot be addressed on the merits. See Jones, slip op. at 8-10.
III.
17 Neither party argues that the new cases on which Jones relies create a new rule that cannot be applied retroactively in a collateral review of Jones's death sentence. Cf. Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (prohibiting retroactive application on collateral review of cases that announce new rules). Both sides agree that these cases are firmly grounded in Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980) (plurality opinion). See Stringer v. Black, --- U.S. ----, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992) (holding that application of Godfrey rules to weighing statute was not a new rule). Therefore, there is no procedural bar under Teague to the application of the new cases on which Jones relies.
IV.
18 We next assume that the papers are a legitimate Rule 60(b)(6) motion addressing the final judgment of the district court in the case we previously reviewed at 947 F.2d at 1106.
Rule 60(b) provides:
19 [T]he court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: ... (6) any other reason justifying relief from the operation of the judgment.2
20 Fed.R.Civ.P. 60(b). Jones argues that the reason that justifies relief in his case is that the cases on which he relies effect a change in the law that entitles him to relief.3
21 In a habeas corpus case in which the State of Maryland petitioned this court for relief under Rule 60(b) because of a change in the law, we held en banc that a change in the law was an insufficient basis for relief under Rule 60(b) under the facts of that case. Hall v. Warden, 364 F.2d 495 (4th Cir.1966) (en banc). We left open the question of whether a prisoner who seeks federal habeas relief can rely on a change in the law as a basis for relief under Rule 60(b)(6). Without deciding the issue, we will assume for purposes of this case that a prisoner under a sentence of death would be able to use a change in the law as a basis for relief under Rule 60(b)(6). As set forth in detail below, we are of opinion that the cases on which Jones relies do not effect a change in the law, so Hall would not control the outcome in this case in any event. We therefore proceed to the merits of Jones's Rule 60(b) motion.
Vagueness Claim
22 Jones argues that the vileness factor of Virginia's death penalty statute is unconstitutionally vague as applied to him.4 Section 19.2-264.2 of the Virginia Code prohibits the imposition of the death penalty unless the court or jury finds that the defendant's "conduct for which he stands charged was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated battery to the victim." Va.Code Ann. § 19.2-264.2. The Supreme Court of Virginia has construed aggravated battery to mean "a battery which, qualitatively and quantitatively, is more culpable than the minimum necessary to accomplish an act of murder." Smith v. Commonwealth, 219 Va. 455, 248 S.E.2d 135, 139 (1978), cert. denied, 441 U.S. 967, 99 S.Ct. 2419, 60 L.Ed.2d 1074 (1979). In Smith the Virginia Supreme Court also construed depravity of mind to mean "a degree of psychical debasement surpassing that inherent in the definition of ordinary legal malice and premeditation." 248 S.E.2d at 149. The jury in Jones's case was given these limiting instructions at Jones's request.
23 Jones argues that the United States Supreme Court's decision in Shell v. Mississippi, 498 U.S. 1, 111 S.Ct. 313, 112 L.Ed.2d 1 (1990) (per curiam), requires that the limiting instructions given in this case be held unconstitutionally vague. We addressed this same argument in our earlier opinion in this matter, but not Shell explicitly, and held that the depravity of mind and aggravated battery limiting instructions were constitutional and rejected counsel's arguments. 947 F.2d at 1118-19. The Shell decision stands for the proposition that when limiting instructions are used to cure a defect in a facially vague statute, the instructions must meet the specificity requirements of Godfrey. The instructions at issue in Shell consisted of nothing more than paraphrased dictionary definitions of heinous, atrocious, and cruel.5 See Webster's Third New International Dictionary (1971). They did not limit those who might be included as the persons sought to be punished under the statute. See Shell, 498 U.S. 1, 111 S.Ct. 313, 112 L.Ed.2d 1 (1990); see also Shell, (Justice Marshall concurring) (text in Westlaw). Under the Godfrey standard, for the sentencer to be adequately guided there must be a "principled way to distinguish [a] case[ ] in which the death penalty was imposed[ ] from the many cases in which it [is] not." Godfrey, 446 U.S. at 433, 100 S.Ct. at 1767. The Virginia limiting instructions for the two factors at issue here, aggravated battery and depravity of mind, make clear that something other than those factors that a juror might expect to find present in an ordinary murder must be present. Thus, the Supreme Court's concern in Godfrey that a juror of ordinary sensibility would find that any murder involved depravity of mind is not present here. The instructions clearly direct the jury away from that result by requiring that something extra be present, i.e., either force greater "than the minimum necessary to accomplish an act of murder" or "a degree of psychical debasement surpassing that inherent in the definition of ordinary legal malice and premeditation." We therefore conclude again that the limiting instructions given in Jones's trial were specific and provided adequate guidance to the jury. See 947 F.2d at 1119.
Improper Appellate Review Claim
24 Jones also argues that Virginia's death penalty statute is unconstitutional because it is phrased in the disjunctive. Thus, it is argued, the jury does not unanimously have to find one factor on which to rest its death sentence. However, in Virginia the determination as to which factor or factors the jury used can be made by a reviewing court. See 947 F.2d at 1116-17 (citing Coleman v. Thompson, 895 F.2d 139 (4th Cir.1990), aff'd on other grounds, --- U.S. ----, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)). Here, the Virginia Supreme Court found that Jones's sentences were based on the depravity of mind factor for the murder of Mr. Adkins and the depravity of mind and aggravated battery factors for Mrs. Adkins. Jones argues that a reviewing court's fact-finding is insufficient and that the determination of which factors the jury used must be made by the jury at sentencing. The Supreme Court has twice rejected similar arguments. In Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990), the Court stated that "[a]ny argument that the Constitution requires that a jury impose the sentence of death or make the findings prerequisite to imposition of such a sentence has been soundly rejected by prior decisions of this Court." Clemons, 494 U.S. at 745, 110 S.Ct. at 1446. Similarly, in Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), the Court rejected the petitioner's argument that a system in which the jury determines guilt and the judge imposes the sentence would be constitutional only if the jury decides which aggravating and mitigating factors are present in the case. Walton, 497 U.S. at ----, 110 S.Ct. at 3053. Of like effect are Cabana v. Bullock, 474 U.S. 376, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986) and Hildwin v. Florida, 490 U.S. 638, 109 S.Ct. 2055, 104 L.Ed.2d 728 (1989) (per curiam).
25 Jones argues, however, that Stringer and Sochor implicitly overrule these precedents and require that the jury must unanimously determine at sentencing the aggravating factors on which its sentence is based. We do not find that directive in either Sochor or Stringer. Indeed, the Sochor Court found that a reviewing court could cure errors in the weighing process that result from the weighing of an unconstitutional aggravating factor if the reviewing court undertakes an explicit harmless-error analysis which finds that the error was harmless beyond a reasonable doubt. The Stringer Court similarly required close appellate review when, under a weighing statutory scheme, there is the possibility that an impermissible aggravating circumstance may have infected the sentencing process. These holdings, however, cannot be said, as Jones contends, to have prohibited the finding by an appellate court of whether an aggravating factor has been proved. Rather, these opinions set forth the standard of review to be followed in States in which there is a weighing scheme, not that the absence of a weighing scheme under Virginia law has any effect one way or the other on our opinion.
26 A main flaw in each of Jones's arguments is that it assumes the unconstitutionality of Virginia's statute. Jones argues that Virginia's death penalty statute is unconstitutional because he claims that Stringer and Sochor are a flat prohibition on vague aggravating factors. Similarly, in order to invoke the scrutiny required of a reviewing court's decision under the Stringer and Sochor cases, some unconstitutional factor must have been weighed in the sentencing process. Yet Jones has been unable, first on review of his habeas petition and now on review of his Rule 60(b) motion, to show that Virginia's death penalty statute, given its limiting constructions, contains an unconstitutionally vague aggravating factor. We are thus of opinion that Stringer, Sochor, and Shell do not aid Jones in his cause.
27 There being no changes in the law with respect to the Virginia instructions, it was not error to refuse relief under Rule 60(b)(6) even if available.
28 Our mandate will issue forthwith.
29 The judgment of the district court denying habeas corpus relief to Jones, under Rule 60(b) or otherwise, is accordingly
30 AFFIRMED.
* The Amicus Curiae brief is allowed to be filed
1 Petitioner called the case to the attention of the Supreme Court in post-petition correspondence
2 At oral argument counsel stated the reliance was on 60(b)(6)
3 Jones's counsel argued at oral argument that although the cases were a change in the law that entitled him to relief under Rule 60(b)(6), the cases were not a "new rule" within the meaning of Teague. See Part III, supra
4 In his federal habeas petition Jones attacked the depravity of mind factor as unconstitutional on its face. This court rejected that argument, Jones v. Murray, 947 F.2d 1106, 1119 (4th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1591, 118 L.Ed.2d 308 (1992), and Jones has not pressed that claim in his Rule 60(b) motion
5 Specifically, the instructions at issue in Shell attempted to limit "especially heinous, atrocious or cruel" as follows: "[T]he word heinous means extremely wicked or shockingly evil; atrocious means outrageously wicked and vile; and cruel means to inflict a high degree of pain with indifference to, or even enjoyment of the suffering of others." Shell, 498 U.S. 1, 111 S.Ct. 313, 112 L.Ed.2d 1 (1990) (Marshall, J. concurring) (text in Westlaw). | 08-23-2011 | [
"976 F.2d 169 Willie LeRoy JONES, Petitioner-Appellant,v.Edward W. MURRAY, Director of the Virginia Department ofCorrections, Respondent-Appellee.Virginia Trial Lawyers Association, Amicus Curiae. * No. 92-4009. United States Court of Appeals,Fourth Circuit. Argued Sept. 11, 1992.Decided Sept. 11, 1992.Certiorari Denied Sept. 15, 1992.See 113 S.Ct. 27. Alan William Clarke, argued, Clarke & Clarke, Kilmarnock, Va., Gary S. Guzy, Washington, D.C., argued, for petitioner-appellant. Robert B. Condon, Asst. Atty. Gen., Office of the Attorney General, Richmond, Va., argued (Mary Sue Terry, Atty. Gen., on brief), for respondent-appellee. Christopher A. Meyer, argued, Virginia Trial Lawyers Ass'n, and Timothy M. Kaine, Mezzullo & McCandlish, Richmond, Va., argued, for amicus curiae. Before ERVIN, Chief Judge, and WIDENER and WILKINSON, Circuit Judges. OPINION WIDENER, Circuit Judge: 1 Willie LeRoy Jones appeals to this court the decision of the district court denying his motion for a stay of execution and his Rule 60(b) motion to set aside the district court's earlier judgment denying him a writ of habeas corpus. Jones seeks review of the decision denying him a writ of habeas corpus.",
"He argues that as a result of a series of recent Supreme Court cases Virginia's death penalty statute is unconstitutional and attacks the constitutionality of the statute on a number of grounds. He has raised these claims in one form or another throughout his appeals. Jones therefore admits that he is not asserting any new claims. Brief of Appellant at 3. After a careful review of Jones's claims and the cases on which he relies, we hold that Virginia's death penalty statute is constitutional and therefore affirm the district court's denial of Jones's Rule 60(b) motion and his motion for a stay of execution. I. 2 In January 1984, Jones was sentenced to death following convictions on two counts of capital murder in Virginia. Jones v. Commonwealth, 228 Va. 427, 323 S.E.2d 554, 557 (1984), cert. denied, 472 U.S. 1012, 105 S.Ct. 2713, 86 L.Ed.2d 728 (1985). He was found to have murdered an elderly couple and incinerated them in the course of a robbery. The horrible details are recited in the Virginia report and in our previous decision at 947 F.2d 1106. Because petitioner had no prior criminal record, the prosecutor did not argue future dangerousness.",
"Jones was sentenced on the basis of the sole aggravating factor that his conduct in each murder was \"outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated battery to the victim,\" as provided for in Virginia's capital punishment statute, Va.Code Ann. § 19.2-264.2. Jones, 323 S.E.2d at 564. 3 The conviction and sentences of death were upheld on appeal to the Virginia Supreme Court. Jones, 323 S.E.2d at 554. The United States Supreme Court denied review of that opinion. 472 U.S. 1012, 105 S.Ct. 2713, 86 L.Ed.2d 728 (1985). Jones then filed a Petition for a Writ of Habeas Corpus in the Virginia state courts. A plenary hearing was held by the Circuit Court of York County, Virginia, on April 22, 1986. Final order denying the petition in full was entered on September 9, 1986. An appeal to the Virginia Court was denied on June 15, 1987. Jones v. Bair, No.",
"86-1152 (June 15, 1987). The United States Supreme Court denied certiorari on November 19, 1987. Jones v. Bair, 484 U.S. 959, 108 S.Ct. 358, 98 L.Ed.2d 383 (1987). 4 Jones then filed a Petition for Writ of Habeas Corpus in the United States District Court for the Eastern District of Virginia. The Commonwealth moved to dismiss the petition and petitioner opposed its motion. The matter was referred to a Magistrate, who issued his Report and Recommendation on April 7, 1989. The parties objected to different portions of that report. The district court issued a final order dismissing the petition on January 4, 1990. Jones filed a motion pursuant to Fed.R.Civ.P. 59(e) to Alter or Amend the Judgment on January 10, 1990. That motion was denied by Order of April 9, 1990. 5 Jones filed a Notice of Appeal to the United States Court of Appeals for the Fourth Circuit on May 4, 1990. After briefing and oral argument on December 1, 1990, we affirmed the judgment of the district court on October 1, 1991.",
"Jones v. Murray, 947 F.2d 1106 (4th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1591, 118 L.Ed.2d 308 (1992). He then filed a petition for rehearing with suggestion for rehearing en banc. We denied this petition on November 5, 1991. Jones then applied to the United States Supreme Court for a writ of certiorari. That petition was denied on April 6, 1992, --- U.S. ----, 112 S.Ct. 1591, 118 L.Ed.2d 308 (1992), and a petition for rehearing was denied on May 26, 1992. --- U.S. ----, 112 S.Ct. 2295, 119 L.Ed.2d 219 (1992). 6 On June 2, 1992, the York County Circuit Court held a hearing for the setting of an execution date. By an order dated June 9, 1992, the circuit court scheduled Jones's execution for September 15, 1992. 7 On August 10, 1992, Jones filed a second state habeas petition in the Circuit Court of York County, once again raising his claim that Virginia's vileness aggravating circumstance has been applied to him in an unconstitutionally vague manner. According to Jones, recent decisions of the United States Supreme Court, Stringer v. Black, --- U.S. ----, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992), and Sochor v. Florida, --- U.S. ----, 112 S.Ct. 2114, 119 L.Ed.2d 326 (1992), justified relitigation of his claim. 8 The Commonwealth filed a motion to dismiss on August 24, 1992, and the circuit court heard oral argument on August 27, 1992.",
"On that same date, the circuit court dismissed the successive petition, finding that relitigation of the claim was procedurally barred under state law and that Jones, in any event, had failed to show that the Supreme Court cases upon which he relied warranted the extraordinary relief he sought. 9 Although the circuit court dismissed his successive petition on August 27th, Jones did not file an appeal in the Virginia Supreme Court until September 8, 1992. The Supreme Court of Virginia promptly requested the respondent to reply within three days, and granted Jones's request for oral argument, now scheduled for September 14, 1992. 10 On August 20, 1992, Jones filed a motion under Rule 60(b), Fed.R.Civ.P., in the United States District Court in Norfolk in which he raised the same claim he raised in state court. He also asked for a stay of execution.",
"11 On September 8, 1992, however, the district court denied Jones's motion because he had not exhausted his available state remedies given the pendency of his appeal to the Virginia Supreme Court. The court also denied his request for a stay of execution because it found Jones's constitutional challenge to the vileness criterion to be both procedurally barred and without merit as a matter of law. II. 12 Jones's Rule 60(b) motion is rather unusual. It raises exactly the same grounds as his prior federal habeas petition, and the types of relief it seeks are those ordinarily sought in habeas petitions.",
"A. 13 We first assume that the papers are a petition for habeas corpus under 28 U.S.C. § 2254. 14 Section 2254(b) requires that a petitioner who seeks habeas corpus relief must first exhaust his state court remedies before applying to the federal courts for relief. Jones has not done so here. He appealed the York County Circuit Court's denial of his habeas petition to the Virginia Supreme Court on September 8, 1992. We have been informed that oral argument is scheduled before the court on September 14, 1992. Thus, petitioner has not exhausted his state court remedies within the meaning of section 2254(b). 15 Further, we note that there are no extraordinary circumstances in this case that would entitle Jones to be excused from the exhaustion requirement.",
"Although petitioner cites his imminent execution date, he fails to adequately explain his delay in filing his second state habeas petition. Jones's execution date was set by the York County Circuit Court on June 9, 1992. However, Jones did not file his second state habeas petition until August 10, 1992, a delay of two full months. The United States Supreme Court had denied Jones's petition for a writ of certiorari on April 6, 1992. --- U.S. ----, 112 S.Ct. 1591, 118 L.Ed.2d 308 (1992). A principal case on which Jones relies, Stringer v. Black, --- U.S. ----, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992), had been decided on March 9, 1992, before the Supreme Court denied certiorari.1 The second case on which Jones relies, Sochor v. Florida, --- U.S. ----, 112 S.Ct. 2114, 119 L.Ed.2d 326 (1992), was decided on June 8, 1992, the day before his execution date was set. All of the cases on which Jones relies were decided at least two full months before he filed his second state habeas petition. This is yet another example of a petitioner who has waited until the eve of his execution to file a habeas corpus petition without a justifiable excuse for the delay, and we should not excuse such a petitioner from the section 2254(b) exhaustion requirement. We are of opinion that the district court was correct in denying Jones's motion for failure to exhaust his state remedies.",
"See Jones, slip op. at 4-7. B. 16 We next consider the papers as a successive habeas petition. See Jones, slip op. at 8-10. Jones admits in his brief that he is raising exactly the same constitutional challenges that he has raised in his prior habeas petitions. Brief of Appellant at 3. The Supreme Court recently established that before a reviewing court can reach the merits of a successive habeas petition, it must find \"by clear and convincing evidence that but for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty under the applicable state law.\" Sawyer v. Whitley, --- U.S. ----, ----, 112 S.Ct.",
"2514, 2517, 120 L.Ed.2d 269 (1992). The constitutional error Jones alleges is that the vileness factor in Virginia's death penalty statute, as limited by the trial court judge's instructions, is unconstitutionally vague. Even if true, Jones's argument does not establish that no reasonable juror would have found him eligible for the death penalty. Under any conceivable construction of the statutory terms \"aggravated battery\" and \"depravity of mind,\" it is apparent that Jones would not be able to prove by clear and convincing evidence that no reasonable juror would find him eligible for the death penalty. Therefore, we cannot reach the merits of Jones's habeas petition as a successive petition which might be considered on its merits because he has not met the standard set forth in Sawyer. Accordingly, we affirm the district court's denial of Jones's motion because it is a successive habeas petition that cannot be addressed on the merits.",
"See Jones, slip op. at 8-10. III. 17 Neither party argues that the new cases on which Jones relies create a new rule that cannot be applied retroactively in a collateral review of Jones's death sentence. Cf. Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (prohibiting retroactive application on collateral review of cases that announce new rules). Both sides agree that these cases are firmly grounded in Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980) (plurality opinion). See Stringer v. Black, --- U.S. ----, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992) (holding that application of Godfrey rules to weighing statute was not a new rule).",
"Therefore, there is no procedural bar under Teague to the application of the new cases on which Jones relies. IV. 18 We next assume that the papers are a legitimate Rule 60(b)(6) motion addressing the final judgment of the district court in the case we previously reviewed at 947 F.2d at 1106. Rule 60(b) provides: 19 [T]he court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: ... (6) any other reason justifying relief from the operation of the judgment.2 20 Fed.R.Civ.P. 60(b). Jones argues that the reason that justifies relief in his case is that the cases on which he relies effect a change in the law that entitles him to relief.3 21 In a habeas corpus case in which the State of Maryland petitioned this court for relief under Rule 60(b) because of a change in the law, we held en banc that a change in the law was an insufficient basis for relief under Rule 60(b) under the facts of that case.",
"Hall v. Warden, 364 F.2d 495 (4th Cir.1966) (en banc). We left open the question of whether a prisoner who seeks federal habeas relief can rely on a change in the law as a basis for relief under Rule 60(b)(6). Without deciding the issue, we will assume for purposes of this case that a prisoner under a sentence of death would be able to use a change in the law as a basis for relief under Rule 60(b)(6). As set forth in detail below, we are of opinion that the cases on which Jones relies do not effect a change in the law, so Hall would not control the outcome in this case in any event. We therefore proceed to the merits of Jones's Rule 60(b) motion. Vagueness Claim 22 Jones argues that the vileness factor of Virginia's death penalty statute is unconstitutionally vague as applied to him.4 Section 19.2-264.2 of the Virginia Code prohibits the imposition of the death penalty unless the court or jury finds that the defendant's \"conduct for which he stands charged was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated battery to the victim.\"",
"Va.Code Ann. § 19.2-264.2. The Supreme Court of Virginia has construed aggravated battery to mean \"a battery which, qualitatively and quantitatively, is more culpable than the minimum necessary to accomplish an act of murder.\" Smith v. Commonwealth, 219 Va. 455, 248 S.E.2d 135, 139 (1978), cert. denied, 441 U.S. 967, 99 S.Ct. 2419, 60 L.Ed.2d 1074 (1979). In Smith the Virginia Supreme Court also construed depravity of mind to mean \"a degree of psychical debasement surpassing that inherent in the definition of ordinary legal malice and premeditation.\" 248 S.E.2d at 149. The jury in Jones's case was given these limiting instructions at Jones's request.",
"23 Jones argues that the United States Supreme Court's decision in Shell v. Mississippi, 498 U.S. 1, 111 S.Ct. 313, 112 L.Ed.2d 1 (1990) (per curiam), requires that the limiting instructions given in this case be held unconstitutionally vague. We addressed this same argument in our earlier opinion in this matter, but not Shell explicitly, and held that the depravity of mind and aggravated battery limiting instructions were constitutional and rejected counsel's arguments. 947 F.2d at 1118-19. The Shell decision stands for the proposition that when limiting instructions are used to cure a defect in a facially vague statute, the instructions must meet the specificity requirements of Godfrey. The instructions at issue in Shell consisted of nothing more than paraphrased dictionary definitions of heinous, atrocious, and cruel.5 See Webster's Third New International Dictionary (1971). They did not limit those who might be included as the persons sought to be punished under the statute. See Shell, 498 U.S. 1, 111 S.Ct. 313, 112 L.Ed.2d 1 (1990); see also Shell, (Justice Marshall concurring) (text in Westlaw). Under the Godfrey standard, for the sentencer to be adequately guided there must be a \"principled way to distinguish [a] case[ ] in which the death penalty was imposed[ ] from the many cases in which it [is] not.\"",
"Godfrey, 446 U.S. at 433, 100 S.Ct. at 1767. The Virginia limiting instructions for the two factors at issue here, aggravated battery and depravity of mind, make clear that something other than those factors that a juror might expect to find present in an ordinary murder must be present. Thus, the Supreme Court's concern in Godfrey that a juror of ordinary sensibility would find that any murder involved depravity of mind is not present here. The instructions clearly direct the jury away from that result by requiring that something extra be present, i.e., either force greater \"than the minimum necessary to accomplish an act of murder\" or \"a degree of psychical debasement surpassing that inherent in the definition of ordinary legal malice and premeditation.\" We therefore conclude again that the limiting instructions given in Jones's trial were specific and provided adequate guidance to the jury. See 947 F.2d at 1119. Improper Appellate Review Claim 24 Jones also argues that Virginia's death penalty statute is unconstitutional because it is phrased in the disjunctive. Thus, it is argued, the jury does not unanimously have to find one factor on which to rest its death sentence.",
"However, in Virginia the determination as to which factor or factors the jury used can be made by a reviewing court. See 947 F.2d at 1116-17 (citing Coleman v. Thompson, 895 F.2d 139 (4th Cir.1990), aff'd on other grounds, --- U.S. ----, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)). Here, the Virginia Supreme Court found that Jones's sentences were based on the depravity of mind factor for the murder of Mr. Adkins and the depravity of mind and aggravated battery factors for Mrs. Adkins. Jones argues that a reviewing court's fact-finding is insufficient and that the determination of which factors the jury used must be made by the jury at sentencing. The Supreme Court has twice rejected similar arguments. In Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990), the Court stated that \"[a]ny argument that the Constitution requires that a jury impose the sentence of death or make the findings prerequisite to imposition of such a sentence has been soundly rejected by prior decisions of this Court.\"",
"Clemons, 494 U.S. at 745, 110 S.Ct. at 1446. Similarly, in Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), the Court rejected the petitioner's argument that a system in which the jury determines guilt and the judge imposes the sentence would be constitutional only if the jury decides which aggravating and mitigating factors are present in the case. Walton, 497 U.S. at ----, 110 S.Ct. at 3053. Of like effect are Cabana v. Bullock, 474 U.S. 376, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986) and Hildwin v. Florida, 490 U.S. 638, 109 S.Ct. 2055, 104 L.Ed.2d 728 (1989) (per curiam). 25 Jones argues, however, that Stringer and Sochor implicitly overrule these precedents and require that the jury must unanimously determine at sentencing the aggravating factors on which its sentence is based. We do not find that directive in either Sochor or Stringer.",
"Indeed, the Sochor Court found that a reviewing court could cure errors in the weighing process that result from the weighing of an unconstitutional aggravating factor if the reviewing court undertakes an explicit harmless-error analysis which finds that the error was harmless beyond a reasonable doubt. The Stringer Court similarly required close appellate review when, under a weighing statutory scheme, there is the possibility that an impermissible aggravating circumstance may have infected the sentencing process. These holdings, however, cannot be said, as Jones contends, to have prohibited the finding by an appellate court of whether an aggravating factor has been proved. Rather, these opinions set forth the standard of review to be followed in States in which there is a weighing scheme, not that the absence of a weighing scheme under Virginia law has any effect one way or the other on our opinion. 26 A main flaw in each of Jones's arguments is that it assumes the unconstitutionality of Virginia's statute.",
"Jones argues that Virginia's death penalty statute is unconstitutional because he claims that Stringer and Sochor are a flat prohibition on vague aggravating factors. Similarly, in order to invoke the scrutiny required of a reviewing court's decision under the Stringer and Sochor cases, some unconstitutional factor must have been weighed in the sentencing process. Yet Jones has been unable, first on review of his habeas petition and now on review of his Rule 60(b) motion, to show that Virginia's death penalty statute, given its limiting constructions, contains an unconstitutionally vague aggravating factor. We are thus of opinion that Stringer, Sochor, and Shell do not aid Jones in his cause. 27 There being no changes in the law with respect to the Virginia instructions, it was not error to refuse relief under Rule 60(b)(6) even if available.",
"28 Our mandate will issue forthwith. 29 The judgment of the district court denying habeas corpus relief to Jones, under Rule 60(b) or otherwise, is accordingly 30 AFFIRMED. * The Amicus Curiae brief is allowed to be filed 1 Petitioner called the case to the attention of the Supreme Court in post-petition correspondence 2 At oral argument counsel stated the reliance was on 60(b)(6) 3 Jones's counsel argued at oral argument that although the cases were a change in the law that entitled him to relief under Rule 60(b)(6), the cases were not a \"new rule\" within the meaning of Teague. See Part III, supra 4 In his federal habeas petition Jones attacked the depravity of mind factor as unconstitutional on its face. This court rejected that argument, Jones v. Murray, 947 F.2d 1106, 1119 (4th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct.",
"1591, 118 L.Ed.2d 308 (1992), and Jones has not pressed that claim in his Rule 60(b) motion 5 Specifically, the instructions at issue in Shell attempted to limit \"especially heinous, atrocious or cruel\" as follows: \"[T]he word heinous means extremely wicked or shockingly evil; atrocious means outrageously wicked and vile; and cruel means to inflict a high degree of pain with indifference to, or even enjoyment of the suffering of others.\" Shell, 498 U.S. 1, 111 S.Ct. 313, 112 L.Ed.2d 1 (1990) (Marshall, J. concurring) (text in Westlaw)."
] | https://www.courtlistener.com/api/rest/v3/opinions/591404/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
¶1 Quinn-Brintnall, J. — Robert L. MacNeven appeals his conviction of violating a postconviction no-contact *267order — domestic violence, arguing that the trial court violated his right to a timely trial under CrR 3.3 and that his attorney represented him ineffectively by failing to preserve his timely trial rights.1 Finding no error, we affirm and hold that a defendant cannot base a constitutional claim of ineffective assistance of counsel on an alleged violation of CrR 3.3. FACTS ¶2 On October 30, 2010, Olympia police officers found MacNeven in Corrine Sansom’s apartment in violation of a no-contact order entered on February 9, 2009. The order prohibiting contact between the two did not expire until February 9, 2014. ¶3 Following his arrest, the State charged MacNeven with violating a postconviction no-contact order — domestic violence. MacNeven was arraigned on November 16, 2010, and remained in custody. The court set a status hearing for January 12, 2011, with trial set for the week of January 18, 2011. At the January 12 status hearing, the State asked to continue the trial until January 31, noting that the ER 404(b) hearing set for January 10 had been continued and that proceeding to trial without first having that hearing would be pointless. The State asked that the ER 404(b) hearing be reset to January 24, and defense counsel agreed to the date over MacNeven’s opposition. The trial court found good cause and continued the trial until January 31. ¶4 On January 28, defense counsel asked that trial be reset for the week of February 7, based on MacNeven’s desire to retain a different attorney. Noting that MacNeven’s timely trial period would not expire until March, the trial court granted the continuance. ¶5 At the status hearing on February 2, the State asked that trial be set for February 8. Defense counsel asked for a *268third continuance of the trial date so that MacNeven could have additional time to retain counsel. The trial court denied defense counsel’s request. ¶6 On February 9, the State noted that MacNeven’s trial would need to be rescheduled because the primary trial scheduled to start the same day was ready. MacNeven was not in court, but defense counsel thought he would agree to a continuance, given his desire to continue the trial at the previous hearing. Defense counsel did not object to the rescheduling but agreed to speak with MacNeven before the next status hearing to clarify his position concerning any future continuances and his request for new counsel. The trial court found good cause to continue the trial, noting that the primary case was proceeding and that the court could not preside over two trials at once. ¶7 At a pretrial hearing on February 15, MacNeven complained that he had wanted additional time to get a new attorney. Trial began and ended on February 16, with a single witness testifying for the State. The jury found MacNeven guilty as charged, and it found by special verdict that he had twice previously violated the same no-contact order and that he and Sansom were members of the same family or household. The trial court imposed a standard range sentence of 14 months. DISCUSSION Timely Trial ¶8 MacNeven argues initially that the trial court was required to dismiss the charge against him after it violated his timely trial rights under CrR 3.3. Violations of CrR 3.3 are not constitutionally based and cannot be raised for the first time on appeal. State v. Smith, 104 Wn.2d 497, 508, 707 P.2d 1306 (1985). Moreover, MacNeven did not object to the continuance of his trial date under CrR 3.3, so the rule’s provisions prohibit him from raising this claim of trial court error on appeal. See CrR 3.3(d)(3) (failure to *269object, for any reason, within 10 days of trial setting and to request a trial date within the rule forecloses one’s right to object that trial was not set within the rule’s time limits); State v. Bobenhouse, 143 Wn. App. 315, 322, 177 P.3d 209 (2008) , aff’d on other grounds, 166 Wn.2d 881, 214 P.3d 907 (2009) . ¶9 In an apparent attempt to circumvent CrR 3.3(d)(3), MacNeven also argues that his attorney represented him ineffectively by failing to preserve his timely trial rights under CrR 3.3. To prevail on a constitutional claim of ineffective assistance of counsel, a defendant must show that his attorney’s performance was deficient and that the deficiency was prejudicial. State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987). Prejudice is shown if there is a reasonable probability that but for counsel’s unprofessional errors, the outcome of the proceeding would have been different. State v. Grier, 171 Wn.2d 17, 34, 246 P.3d 1260 (2011). ¶10 MacNeven argues that his attorney was ineffective in failing to (1) ascertain his position regarding the State’s request for a continuance on February 9, (2) ensure that he was in court on that date, and (3) preserve his right to a timely trial by filing a written objection to the February 16 trial date. MacNeven contends that these deficiencies were prejudicial because a proper objection would have resulted in the dismissal of his case. See CrR 3.3(h) (violation of time for trial requires dismissal with prejudice). ¶11 MacNeven is incorrect. Instead of dismissing his case, the trial court would have responded to a proper objection by resetting the trial date within the timely trial period or by determining whether there was good cause for a continuance. State v. Malone, 72 Wn. App. 429, 438, 864 P.2d 990 (1994). MacNeven cannot show that a proper objection would have changed the outcome of his case, and he cannot show the constitutional prejudice required to sustain his claim of ineffective assistance of counsel. *270¶12 Even if we were to review the merits of his argument, we would reject his claim. Allowing counsel time to prepare for trial is a valid basis for continuance, and scheduling conflicts also may be considered in granting continuances. State v. Flinn, 154 Wn.2d 193, 200, 110 P.3d 748 (2005). Moving for a continuance by or on behalf of a party waives that party’s objection to the requested delay. CrR 3.3(f)(2). Moreover, a trial court may grant a continuance on motion of the court or party where the administration of justice requires and the defendant will not be prejudiced in the presentation of his defense. CrR 3.3(f)(2). MacNeven demonstrated no such prejudice. ¶13 MacNeven’s complaints concern his attorney’s acquiescence to the State’s request for a continuance on February 9. The trial court granted this continuance because the primary trial scheduled for the same courtroom was ready to proceed. Even if counsel had objected, and even if MacNeven had been in court that day, there is no showing that a continuance would have prejudiced MacNeven in the presentation of his defense and it is more than likely that the trial court would have continued the trial for a week. Furthermore, the record shows that on February 2, MacNeven requested additional time to retain an attorney and complained on February 15 that he had not received more time. Finally, the continuance MacNeven and his attorney requested on January 28 extended the timely trial period to March 9. CrR 3.3(b)(5). The continuance to February 16 did not violate MacNeven’s right to a timely trial and his ineffective assistance of counsel claim necessarily fails. ¶14 Affirmed. Worswick, C.J., and Penoyar, J, concur.
MacNeven uses the terminology “speedy trial,” but his arguments are based on the timely trial provisions of CrR 3.3 rather than the constitutional speedy trial principles of the Sixth Amendment to the United States Constitution. | 08-12-2021 | [
"¶1 Quinn-Brintnall, J. — Robert L. MacNeven appeals his conviction of violating a postconviction no-contact *267order — domestic violence, arguing that the trial court violated his right to a timely trial under CrR 3.3 and that his attorney represented him ineffectively by failing to preserve his timely trial rights.1 Finding no error, we affirm and hold that a defendant cannot base a constitutional claim of ineffective assistance of counsel on an alleged violation of CrR 3.3. FACTS ¶2 On October 30, 2010, Olympia police officers found MacNeven in Corrine Sansom’s apartment in violation of a no-contact order entered on February 9, 2009. The order prohibiting contact between the two did not expire until February 9, 2014.",
"¶3 Following his arrest, the State charged MacNeven with violating a postconviction no-contact order — domestic violence. MacNeven was arraigned on November 16, 2010, and remained in custody. The court set a status hearing for January 12, 2011, with trial set for the week of January 18, 2011. At the January 12 status hearing, the State asked to continue the trial until January 31, noting that the ER 404(b) hearing set for January 10 had been continued and that proceeding to trial without first having that hearing would be pointless.",
"The State asked that the ER 404(b) hearing be reset to January 24, and defense counsel agreed to the date over MacNeven’s opposition. The trial court found good cause and continued the trial until January 31. ¶4 On January 28, defense counsel asked that trial be reset for the week of February 7, based on MacNeven’s desire to retain a different attorney. Noting that MacNeven’s timely trial period would not expire until March, the trial court granted the continuance.",
"¶5 At the status hearing on February 2, the State asked that trial be set for February 8. Defense counsel asked for a *268third continuance of the trial date so that MacNeven could have additional time to retain counsel. The trial court denied defense counsel’s request. ¶6 On February 9, the State noted that MacNeven’s trial would need to be rescheduled because the primary trial scheduled to start the same day was ready. MacNeven was not in court, but defense counsel thought he would agree to a continuance, given his desire to continue the trial at the previous hearing. Defense counsel did not object to the rescheduling but agreed to speak with MacNeven before the next status hearing to clarify his position concerning any future continuances and his request for new counsel.",
"The trial court found good cause to continue the trial, noting that the primary case was proceeding and that the court could not preside over two trials at once. ¶7 At a pretrial hearing on February 15, MacNeven complained that he had wanted additional time to get a new attorney. Trial began and ended on February 16, with a single witness testifying for the State. The jury found MacNeven guilty as charged, and it found by special verdict that he had twice previously violated the same no-contact order and that he and Sansom were members of the same family or household. The trial court imposed a standard range sentence of 14 months. DISCUSSION Timely Trial ¶8 MacNeven argues initially that the trial court was required to dismiss the charge against him after it violated his timely trial rights under CrR 3.3.",
"Violations of CrR 3.3 are not constitutionally based and cannot be raised for the first time on appeal. State v. Smith, 104 Wn.2d 497, 508, 707 P.2d 1306 (1985). Moreover, MacNeven did not object to the continuance of his trial date under CrR 3.3, so the rule’s provisions prohibit him from raising this claim of trial court error on appeal. See CrR 3.3(d)(3) (failure to *269object, for any reason, within 10 days of trial setting and to request a trial date within the rule forecloses one’s right to object that trial was not set within the rule’s time limits); State v. Bobenhouse, 143 Wn. App. 315, 322, 177 P.3d 209 (2008) , aff’d on other grounds, 166 Wn.2d 881, 214 P.3d 907 (2009) . ¶9 In an apparent attempt to circumvent CrR 3.3(d)(3), MacNeven also argues that his attorney represented him ineffectively by failing to preserve his timely trial rights under CrR 3.3. To prevail on a constitutional claim of ineffective assistance of counsel, a defendant must show that his attorney’s performance was deficient and that the deficiency was prejudicial.",
"State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987). Prejudice is shown if there is a reasonable probability that but for counsel’s unprofessional errors, the outcome of the proceeding would have been different. State v. Grier, 171 Wn.2d 17, 34, 246 P.3d 1260 (2011). ¶10 MacNeven argues that his attorney was ineffective in failing to (1) ascertain his position regarding the State’s request for a continuance on February 9, (2) ensure that he was in court on that date, and (3) preserve his right to a timely trial by filing a written objection to the February 16 trial date. MacNeven contends that these deficiencies were prejudicial because a proper objection would have resulted in the dismissal of his case. See CrR 3.3(h) (violation of time for trial requires dismissal with prejudice).",
"¶11 MacNeven is incorrect. Instead of dismissing his case, the trial court would have responded to a proper objection by resetting the trial date within the timely trial period or by determining whether there was good cause for a continuance. State v. Malone, 72 Wn. App. 429, 438, 864 P.2d 990 (1994). MacNeven cannot show that a proper objection would have changed the outcome of his case, and he cannot show the constitutional prejudice required to sustain his claim of ineffective assistance of counsel. *270¶12 Even if we were to review the merits of his argument, we would reject his claim. Allowing counsel time to prepare for trial is a valid basis for continuance, and scheduling conflicts also may be considered in granting continuances. State v. Flinn, 154 Wn.2d 193, 200, 110 P.3d 748 (2005). Moving for a continuance by or on behalf of a party waives that party’s objection to the requested delay.",
"CrR 3.3(f)(2). Moreover, a trial court may grant a continuance on motion of the court or party where the administration of justice requires and the defendant will not be prejudiced in the presentation of his defense. CrR 3.3(f)(2). MacNeven demonstrated no such prejudice. ¶13 MacNeven’s complaints concern his attorney’s acquiescence to the State’s request for a continuance on February 9. The trial court granted this continuance because the primary trial scheduled for the same courtroom was ready to proceed. Even if counsel had objected, and even if MacNeven had been in court that day, there is no showing that a continuance would have prejudiced MacNeven in the presentation of his defense and it is more than likely that the trial court would have continued the trial for a week. Furthermore, the record shows that on February 2, MacNeven requested additional time to retain an attorney and complained on February 15 that he had not received more time.",
"Finally, the continuance MacNeven and his attorney requested on January 28 extended the timely trial period to March 9. CrR 3.3(b)(5). The continuance to February 16 did not violate MacNeven’s right to a timely trial and his ineffective assistance of counsel claim necessarily fails. ¶14 Affirmed. Worswick, C.J., and Penoyar, J, concur. MacNeven uses the terminology “speedy trial,” but his arguments are based on the timely trial provisions of CrR 3.3 rather than the constitutional speedy trial principles of the Sixth Amendment to the United States Constitution."
] | https://www.courtlistener.com/api/rest/v3/opinions/4760942/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DETAILED ACTION Notice of Pre-AIA or AIA Status 1. The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Amendment
2. The amendment filed on 11/03/2021 has been entered into this application. New claims 142-145 have been added.
Continued Examination under 37 CFR 1.114
3. 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 11/03/2021 has been entered.
Election by Original Presentation
4. Newly submitted claims 121, 139-141 are directed to an invention that is independent or distinct from the invention originally claimed for the following reasons: See Requirement for Restriction/Election, dated 07/15/2020.
s 121, 139-141 are withdrawn from consideration as being directed to a non-elected invention. See 37 CFR 1.142(b) and MPEP § 821.03.
The amendment filed on 11/03/2021 canceling all claims drawn to the elected invention and presenting only claims drawn to a non-elected invention is non-responsive (MPEP § 821.03) and has not been entered. The remaining claims are not readable on the elected invention because see Requirement for Restriction/Election, dated 07/15/2020.
Since the above-mentioned amendment appears to be a bona fide attempt to reply, applicant is given a shortened statutory period of TWO (2) MONTHS from the mailing date of this notice within which to supply the omission or correction in order to avoid abandonment. EXTENSIONS OF THIS TIME PERIOD UNDER 37 CFR 1.136(a) ARE AVAILABLE but in no case can any extension carry the date for reply to this letter beyond the maximum period of SIX MONTHS set by statute (35 U.S.C. 133).
CLAIM INTERPRETATION
5. The following is a quotation of 35 U.S.C. 112(f): (f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph: An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
6. Use of the word “means” (or “step for”) in a claim with functional language creates a rebuttable presumption that the claim element is to be treated in accordance with 35 U.S.C. 112(f) (pre-AIA 35 U.S.C. 112, sixth paragraph). The presumption that 35 U.S.C. 112(f) (pre-AIA 35 U.S.C. 112, sixth paragraph) is invoked is rebutted when the function is recited with sufficient structure, material, or acts within the claim itself to entirely perform the recited function. Absence of the word “means” (or “step for”) in a claim creates a rebuttable presumption that the claim element is not to be treated in accordance with 35 U.S.C. 112(f) (pre-AIA 35 U.S.C. 112, sixth paragraph). The presumption that 35 U.S.C. 112(f) (pre-AIA 35 U.S.C. 112, sixth paragraph) is not invoked is rebutted when the claim element recites function but fails to recite sufficiently definite structure, material or acts to perform that function. Claim elements in this application that use the word “means” (or “step for”) are presumed to invoke 35 U.S.C. 112(f) except as otherwise indicated in an Office action. Similarly, claim elements that do not use the word “means” (or “step for”) are presumed not to invoke 35 U.S.C. 112(f) except as otherwise indicated in an Office action.
7. The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph: (A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function; (B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and (C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function. Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
8. This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitations use a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitations are: “a collimating element”, “a focusing element” and “optical elements” in claims 95-96. Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. For more information, see MPEP § 2173 et seq. and Supplementary Examination Guidelines for Determining Compliance With 35 U.S.C. 112 and for Treatment of Related Issues in Patent Applications, 76 FR 7162, 7167 (Feb. 9, 2011). Claim Rejections - 35 USC § 103 9. 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.
10. Claims 95, 97-104, 113-120, 128-136, 138 and 142-145 are rejected under 35 U.S.C. 103 as being unpatentable over “Intraoperative Raman Spectroscopy“, Neurosurgery Clinics of North America, (2017) by Brusatori Michelle et al (hereinafter Brusatory) in view of US Patent Pub. No. 2012/0105837 A1 by Ingber (hereinafter Ingbar).
Regarding Claim 95, Busatory teaches a Raman spectroscopic system (Title, Introduction) comprising: an excitation light source (Fig. 2 @ Laser) to radiate a light beam; a cuvette (Fig. 2 @ Sample, implicitly teaches a cuvette); at least one optical element (Fig. 2 @ Macro beam mirror) configured to direct the light beam into the cuvette through the bottom end of the cuvette (Fig. 2 @ Sample, implicitly teaches a cuvette and illustrates the bottom end of the cuvette) and onto a portion of a sample contained in the cuvette (Fig. 2 @ Sample); a Raman spectrometer comprising an entrance aperture (Fig. 2 @ slit), a collimating element (Fig. 2 @ Mirror), a transmission diffraction grating (Fig. 2 @ grating, i.e. the transmission diffraction grating), a focusing element (Fig. 2 @ mirror focusing CCD), and a detector array (Fig. 2 @ CCD); wherein the entrance aperture is configured to receive a Raman signal from the portion of the sample through the bottom end of the cuvette (Fig. 2, illustrates such configuration); the collimating element is configured to receive the Raman signal from the entrance aperture and direct the Raman signal to the transmission diffraction grating (Fig. 2, illustrates such configuration); (Fig. 2, illustrates such configuration. Inherently teaches grating disperse spectral band. Fig. 2: A grating is used to separate the different wavelengths of scattered light); and the focusing element is configured to focus the dispersed Raman signal to the detector array (Fig. 2, illustrates such configuration) but does not explicitly teach a cuvette comprising a top end, a bottom end, and at least one tapered wall extending longitudinally from the bottom end towards the top end, and the at least one tapered wall being configured to concentrate at least a portion of a sample to a central region on an interior surface of the bottom end.
However, Ingber teaches a cuvette (Fig. 2 @ 22, Abstract, Par. [0079] and Fig. 9F2, Par, [0105]) comprising a top end, a bottom end, and at least one tapered wall extending longitudinally from the bottom end towards the top end, and the at least one tapered wall being configured to concentrate at least a portion of a sample to a central region on an interior surface of the bottom end (Fig. 2 @ 22, Abstract, Par. [0096] and Fig. 9F2, Par, [0105], illustrates such configuration and implicitly teaches central region).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to modify Busatory by Ingber as taught above such that a cuvette comprising a top end, a bottom end, and at least one tapered wall extending longitudinally from the bottom end towards the top end, and the at least one tapered wall being configured to concentrate at least a portion of a sample to a central (Abstract, Par. [0009, 0079]).
Regarding Claim 97, Busatory as modified by Ingber teaches a method for detecting the presence or absence of at least one feature of a Raman signal indicative of the presence or absence of a target in a sample (Busatory, Introduction), the method comprising: concentrating a portion of the sample to a central region on an interior surface of a bottom end of a cuvette, the cuvette comprising a chamber, a top end, and the bottom end, wherein the at least one tapered wall extends longitudinally from the bottom end towards the top end at a tilt angle (Ingber, Fig. 2 @ 22, Abstract, Par. [0096] and Fig. 9F2, Par, [0105], illustrates such configuration) and is configured to concentrate at least the portion of the sample to the central region (See Claim 95 rejection); focusing a light beam to the central region (See Claim 95 rejection); directing a Raman signal from the central region to a Raman spectrometer (See Claim 95 rejection); and detecting the presence or absence of at least one feature of the Raman signal indicative of the presence or absence of the target in the sample (Busatory, Introduction). Regarding Claim 98, Busatory teaches wherein the detecting comprises analyzing a combination of at least three spectral bands of the Raman signal, the combination of spectral bands being selected from a group of spectral bands comprising 1, 630-650 cm-1, 715-735 cm-1, 950-979 cm-1, 990-1010 cm-1, 1115-1135 cm-1, 1155-1165 cm-1, 1160-1180 cm-1, 1200-1220 cm-1, 1240-1260 cm-1, 1290-1310 cm-1, 1315-1325 cm-1, 1330-1350 cm-1, 1410-1430 cm-1, 1440-1460 cm-1, 1570-1590 cm-1, 1600-1620 cm-1, and 1650-1670 cm-1 (Table 1).
Regarding Claim 99, Busatory teaches further comprising immobilizing the portion of the sample on the interior surface of the bottom end of the cuvette (Fig. 2, illustrates such configuration).
Regarding Claim 100, Busatory teaches wherein the detecting comprises detecting the presence or absence of at least one feature of the Raman signal indicative of the presence or absence of one or more markers or byproducts of the target (Page 3, Col 2, para. 1; Page 11, Col 2, line 3-7. Table 1). Regarding Claim 101, Busatory teaches wherein the target is a virus, a bacterium, or a parasite (Page 2, Col 1, 2, para 1. Examiner interprets as an intended use).
Regarding Claim 102, Busatory teaches wherein the one or more makers or byproducts (Page 3, Col 2, para. 1; Page 11, Col 2, line 3-7. Table 1) comprise a metabolite, a chemical, or a toxin (Page 2, Col 2, para 1, 2. Examiner interprets as an intended use).
Regarding Claim 103, Busatory teaches wherein the target is a cell, a tumor cells, a white blood cell, a protein, a lipid, an enzyme, a tissue, a normal tissue, a necrotic tissue, or a tissue constituent (Page 2, Col 2, para 1; Page 3, Col 2, para. 1. Examiner interprets as an intended use).
Regarding Claim 104, Busatory teaches wherein the detecting comprises detecting the presence or absence of at least one feature of the Raman signal indicative of the presence or absence of two or more targets in the sample (Introduction).
Regarding Claim 113, Busatory teaches a method for detecting the presence or absence of at least one feature of a Raman signal indicative of the presence or absence of a target in a sample (See Claim 95, 97 rejection), the method comprising: concentrating a portion of the sample onto an interior surface of a bottom end of a cuvette, the cuvette comprising a top end, the bottom end, and at least one tapered wall extending longitudinally from the bottom end towards the top end (See Claim 95, 97 rejection); focusing a light beam onto the portion of the sample on the interior surface of the bottom end of the cuvette (See Claim 95, 97 rejection); directing a Raman signal from the portion of the sample passing through the bottom end to a Raman spectrometer (See Claim 95, 97 rejection); and detecting the presence or absence of at least one feature of the Raman signal indicative of the presence or absence of the target in the sample (See Claim 95, 97 rejection).
Regarding Claim 114, Busatory teaches wherein the detecting comprises analyzing a combination of at least three spectral bands of the Raman signal, the combination of spectral bands being selected from a group of spectral bands comprising spectral bands 610-630 cm-1, 630-650 cm-1, 715-735 cm-1, 950-979 cm-1, 990-1010 cm-1, 1115-1135 cm-1, 1155-1165 cm-1, 1160-1180 cm-1, 1200-1220 cm-1, 1240-1260 cm-1, 1, 1315-1325 cm-1, 1330-1350 cm-1, 1410-1430 cm-1, 1440-1460 cm-1, 1570-1590 cm-1, 1600-1620 cm-1, and 1650-1670 cm-1 (Table 1).
Regarding Claim 115, Busatory teaches further comprising immobilizing the portion of the sample on the interior surface of the bottom end of the cuvette (See Claim 99 rejection). Regarding Claim 116, Busatory teaches wherein the detecting comprises detecting the presence or absence of at least one feature of the Raman signal indicative of the presence or absence of one or more markers or byproducts of the target (See Claim 100 rejection).
Regarding Claim 117, Busatory teaches wherein the target is a virus, a bacterium, or a parasite (See Claim 101 rejection). Regarding Claim 118, Busatory teaches wherein the one or more makers or byproducts comprise is a metabolite, a chemical, or a toxin (See Claim 102 rejection).
Regarding Claim 119, Busatory teaches wherein the target is a cell, a tumor cell, a white blood cell, a protein, a lipid, an enzyme, a tissue, a normal tissue, a necrotic tissue, or a tissue constituent (See Claim 103 rejection).
Regarding Claim 120, Busatory teaches wherein the detecting comprises detecting the presence or absence of at least one feature of the Raman signal indicative of the presence or absence of two or more targets in the sample (See Claim 104 rejection). Regarding Claim 128, Busatory teaches a method for performing an analysis on a sample within a cuvette (See Claim 97 rejection) comprising: concentrating a portion of the sample to a central region on an interior surface of a bottom end of the cuvette, the cuvette comprising a chamber, at least one tapered wall, a top end, and the bottom end, wherein the at least one tapered wall extends longitudinally from the bottom end towards the top end at a tilt angle (See Claim 97 rejection); focusing a light beam to the central region (See Claim 97 rejection); directing a Raman signal from the central region to a Raman spectrometer (See Claim 97 rejection); and analyzing the Raman signal (See Claim 97 rejection). Regarding Claim 129, Busatory teaches wherein the analyzing comprises analyzing a combination of at least three spectral bands of the Raman signal, the combination of spectral bands being selected from a group of spectral bands comprising spectral bands 610-630 cm-1, 630-650 cm-1, 715-735 cm-1, 950-979 cm-1, 990-1010 cm-1, 1115-1 135 cm-1, 1155-1165 cm-1, 1160-1180 cm-1, 1200-1220 cm-1, 1240-1260 cm-1, 1290-1310 cm-1, 1315-1325 cm-1, 1330-1350 cm-1, 1410-1430 cm-1, 1440-1460 cm-1, 1570-1590 cm-1, 1600-1620 cm-1, and 1650-1670 cm-1 (Table 1).
Regarding Claim 130, Busatory teaches further comprising immobilizing the portion of the sample on the interior surface of the bottom end of the cuvette (See Claim 99 rejection).
Regarding Claim 131, Busatory teaches wherein the detecting comprises detecting the presence or absence of at least one feature of the Raman signal indicative of the presence or absence of a target in the sample (See Claim 104 rejection).
Regarding Claim 132, Busatory teaches wherein the analyzing comprises detecting the presence or absence of at least one feature of the Raman signal indicative of the presence or absence of one or more markers or byproducts of the target (See Claim 100 rejection).
Regarding Claim 133, Busatory teaches wherein the target is a virus, a bacterium, or a parasite (See Claim 101 rejection).
Regarding Claim 134, Busatory teaches wherein the one or more makers or byproducts comprise a metabolite, a chemical, or a toxin (See Claim 102 rejection).
Regarding Claim 135, Busatory teaches wherein the target is a cell, a tumor cell, a white blood cell, a protein, a lipid, an enzyme, a tissue, a normal tissue, a necrotic tissue, or a tissue constituent (See Claim 103 rejection). Regarding Claim 136, Busatory teaches wherein the analyzing comprises detecting the presence or absence of at least one feature of the Raman signal indicative of the presence or absence of two or more targets in the sample (See Claim 104 rejection).
Regarding Claim 138, Busatory teaches a method for performing an analysis on a sample within a cuvette (See Claim 95, 97 rejection) comprising: concentrating a portion of the sample onto an interior surface of a bottom end of a cuvette, the cuvette comprising a top end, the bottom end, and at least one tapered wall extending longitudinally from the bottom end towards the top end (See Claim 95, 97 rejection); focusing a light beam onto the portion of the sample on the interior surface of the bottom end of the cuvette (See Claim 95, 97 rejection); directing a Raman signal from the portion of the sample passing through the bottom end to a Raman spectrometer (See Claim 95, 97 rejection); and analyzing the Raman signal (See Claim 95, 97 rejection).
Regarding Claim 142, Busatory teaches all the features of the claimed invention except wherein the tilt angle is equal to or less than 80 degrees.
However, Ingber teaches wherein the tilt angle is equal to or less than 80 degrees (Par. [0105]).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to modify Busatory by Ingber as taught above such that the tilt angle is equal to or less than 80 degrees is accomplished in order to allow for better coating and better striations of the light to assist with the optical analysis (Abstract, Par. [0009, 0079, 0105]).
Regarding Claim 143, Busatory teaches all the features of the claimed invention except wherein the tilt angle is from 9 degrees to 19 degrees.
However, Ingber teaches the concept of the tilt angle (Par. [0105]). (Abstract, Par. [0009, 0079, 0105]).
Still lacking limitation: tilt angle is from 9 degrees to 19 degrees.
However, it would have been obvious to one ordinary skill in the art at the time the invention was made to use optimum range. Since it has been held that where the general condition of a claim are disclosed in the prior art, discovering the optimum or working ranges involves only routine skill in the art. In re Aller, 105 USPQ 233. (MPEP 2144.05).
Regarding Claim 144, Busatory as modified by Ingber teaches wherein the tilt angle is equal to or less than 80 degrees (See Claim 142 rejection).
Regarding Claim 145, Busatory as modified by Ingber teaches wherein the tilt angle is from 9 degrees to 19 degrees (See Claim 143 rejection).
11. Claims 122-127 are rejected under 35 U.S.C. 103 as being unpatentable over “Intraoperative Raman Spectroscopy“, Neurosurgery Clinics of North America, (2017) by Brusatori Michelle et al (hereinafter Brusatory) in view of US Patent Pub. No. 2018/0080826 A1 by Silny et al (herein after Silny).
Regarding Claim 122, Busatory teaches wherein the detecting comprises analyzing a combination of at least three spectral bands of the Raman signal, the combination of spectral bands being selected from a group of spectral bands comprising spectral bands 610-630 cm-1, 630-650 cm-1, 715-735 cm-1, 950-979 cm-1, 990-1010 cm-1, 1115-1135 cm-1, 1155-1165 cm-1, 1160-1180 cm-1, 1200-1220 cm-1, 1240-1260 cm-1, 1290-1310 cm-1, 1315-1325 cm-1, 1330-1350 cm-1, 1410-1430 cm-1, 1440-1460 cm-1, 1570-1590 cm-1, 1600-1620 cm-1, and 1650-1670 cm-1 (Table 1).
Regarding Claim 123, Busatory teaches wherein the detecting comprises detecting the presence or absence of at least one feature of the Raman signal indicative of the presence or absence of one or more markers or byproducts of the target (See Claim 100 rejection).
Regarding Claim 124, Busatory teaches wherein the target is a virus, a bacterium, or a parasite (See Claim 101 rejection).
Regarding Claim 125, Busatory teaches wherein the one or more makers or byproducts comprise a metabolite, a chemical, or a toxin (See Claim 102 rejection).
Regarding Claim 126, Busatory teaches wherein the target is a cell, a tumor cell, a white blood cell, a protein, a lipid, an enzyme, a tissue, a normal tissue, a necrotic tissue, or a tissue constituent (See Claim 103 rejection). Regarding Claim 127, Busatory teaches wherein the detecting comprises detecting the presence or absence of at least one feature of the Raman signal indicative (See Claim 104 rejection). Allowable Subject Matter
12. Claims 96, 105-112 and 137 are allowed.
Reason for Allowance
13. The following is a statement of reasons for the indication of allowable subject matter: 14. As to Claim 96, the prior arts of record alone or in combination fails to teach or suggest the claimed “a focusing back reflector above the bottom end configured to reflect and focus light from the bottom end to a focal point on or above the bottom end”, along with all other limitations of claim 961. 15. As to Claims 105 and 137, the prior arts of record alone or in combination fails to teach or suggest the claimed “reflecting and focusing light from a focal point on or above the interior surface of the bottom end of the cuvette, the light comprising a portion of the light beam and a Raman signal from the portion of the sample, back to the focal point”, along with all other limitations of claims 105 and 137. 16. Brusatory (Intraoperative Raman Spectroscopy) teaches a Raman spectroscopic system but fails to teach the claimed limitations.
Response to Arguments
Applicant’s arguments filed on 11/03/2021 with respect to II. Claim Interpretation Under 35 U.S.C. § 112(f) (Argument, Page 24) have been fully considered but they are not persuasive.
The Applicant is advised to review M.P.E.P. § 2181(I): “If a claim limitation recites a term and associated functional language, the examiner should determine whether the claim limitation invokes 35 U.S.C. 112(f). Application of 35 U.S.C. 112(f) is driven by the claim language, not by applicant’s intent or mere statements to the contrary included in the specification or made during prosecution.
“Instead of using "means" in such cases, a substitute term acts as a generic placeholder for the term "means" and would not be recognized by one of ordinary skill in the art as being sufficiently definite structure for performing the claimed function. "The standard is whether the words of the claim are understood by persons of ordinary skill in the art to have a sufficiently definite meaning as the name for structure." Williamson, 792 F.3d at 1349, 115 USPQ2d at 1111; see also Greenberg v. Ethicon Endo-Surgery, Inc., 91 F.3d 1580, 1583, 39 USPQ2d 1783, 1786 (Fed. Cir. 1996)”.
3-prong analysis: (A) the claim limitation uses the term "means" or "step" or a term used as a substitute for "means" that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function; (B) the term "means" or "step" or the generic placeholder is modified by functional language, typically, but not always linked by the transition word "for" (e.g., "means for") or another linking word or phrase, such as "configured to" or "so that"; and (C) the term "means" or "step" or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Therefore, it is evident from the above discussion that the claim language recited “a collimating element”, “a focusing element” and “optical elements” in claims 95-96 are not the definite structure. Definite structure would be a “lens” for example.
Applicant’s arguments filed on 01/08/2021 with respect to III. Rejection Under 35 U.S.C. § 103 (Argument, Page 25 and 29) regarding a prima facie case of obviousness has not been established have been fully considered but they are not persuasive.
Since Office Action has shown that the combination of the cited references teaches or suggests each and every element of the amended claims, therefore, a prima facie case of obviousness has been established.
A. The Applicant argues that “a cuvette comprising ... at least one tapered wall ... configured to concentrate at least a portion of a sample to a central region on an interior surface of the bottom end;” and “at least one optical element configured to direct the light beam into the cuvette through the bottom end of the cuvette and onto the portion of the sample at the central region.” (emphases added). Brusatori fails to disclose or suggest at least these elements of amended claim 95 (Argument, Page 25-26).
The Examiner respectfully disagrees. Ingber teaches a cuvette (Fig. 2 @ 22, Abstract, Par. [0079] and Fig. 9F2, Par, [0105]) comprising a top end, a bottom end, and at least one tapered wall extending longitudinally from the bottom end towards the top end, and the at least one tapered wall being configured to concentrate at least a portion of a sample to a central region on an interior surface of the bottom end (Fig. 2 @ 22, Abstract, Par. [0096] and Fig. 9F2, Par, [0105], illustrates such configuration and implicitly teaches central region).
The Applicant argues that furthermore, none of the cited art discloses or teaches “at least one optical element configured to direct the light beam into the cuvette through the bottom end of the cuvette and onto the portion of the sample at the central region.” Both Brusatori and Lewis at best show radiating a light beam into a cuvette through a side wall of the cuvette. Ingber expressly teaches away from “direct[ing] the light beam into the cuvette through the bottom end of the cuvette (Argument, Page 26-27)”.
The Examiner respectful disagrees. Brusatori Fig. 2 @ Sample teaches the bottom end of the cuvette (Also see OA, Claim 95 rejection). Ingber reference is used to show a cuvette comprising a top end, a bottom end, and at least one tapered wall extending longitudinally from the bottom end towards the top end. In combination teaches (Also see OA, Claim 95 rejection).
B. Applicant’s argument regarding Claims 96, 105-112 and 137 (Argument, Page 28) is moot due to allowance.
C. Applicant’s argument regarding Claims 121 and 139 (Argument, Page 29) is moot due to the withdrawn from consideration as being directed to a non-elected invention (See OA, Page 2-3: Election by Original Presentation). Additional Prior Art The prior art made of record and not relied upon is considered pertinent to applicant’s disclosure. The reference listed teaches of other prior art method/system of cuvette. US Patent No. 4285906 A by Meltzer et al.
US Patent No. 2019/0162655 A1 by Neugebauer et al.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JAMIL AHMED whose telephone number is (571)272-1950. The examiner can normally be reached M-F: 9:00 AM - 5:00 PM. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Tarifur Chowdhury can be reached on 571-272-2287. 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.
/JAMIL AHMED/ Primary Examiner, Art Unit 2886 | 2021-11-19T14:23:34 | [
"DETAILED ACTION Notice of Pre-AIA or AIA Status 1. The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Amendment 2. The amendment filed on 11/03/2021 has been entered into this application. New claims 142-145 have been added. Continued Examination under 37 CFR 1.114 3. 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 11/03/2021 has been entered. Election by Original Presentation 4. Newly submitted claims 121, 139-141 are directed to an invention that is independent or distinct from the invention originally claimed for the following reasons: See Requirement for Restriction/Election, dated 07/15/2020. s 121, 139-141 are withdrawn from consideration as being directed to a non-elected invention.",
"See 37 CFR 1.142(b) and MPEP § 821.03. The amendment filed on 11/03/2021 canceling all claims drawn to the elected invention and presenting only claims drawn to a non-elected invention is non-responsive (MPEP § 821.03) and has not been entered. The remaining claims are not readable on the elected invention because see Requirement for Restriction/Election, dated 07/15/2020. Since the above-mentioned amendment appears to be a bona fide attempt to reply, applicant is given a shortened statutory period of TWO (2) MONTHS from the mailing date of this notice within which to supply the omission or correction in order to avoid abandonment. EXTENSIONS OF THIS TIME PERIOD UNDER 37 CFR 1.136(a) ARE AVAILABLE but in no case can any extension carry the date for reply to this letter beyond the maximum period of SIX MONTHS set by statute (35 U.S.C. 133).",
"CLAIM INTERPRETATION 5. The following is a quotation of 35 U.S.C. 112(f): (f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof. The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph: An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.",
"6. Use of the word “means” (or “step for”) in a claim with functional language creates a rebuttable presumption that the claim element is to be treated in accordance with 35 U.S.C. 112(f) (pre-AIA 35 U.S.C. 112, sixth paragraph). The presumption that 35 U.S.C. 112(f) (pre-AIA 35 U.S.C. 112, sixth paragraph) is invoked is rebutted when the function is recited with sufficient structure, material, or acts within the claim itself to entirely perform the recited function. Absence of the word “means” (or “step for”) in a claim creates a rebuttable presumption that the claim element is not to be treated in accordance with 35 U.S.C. 112(f) (pre-AIA 35 U.S.C. 112, sixth paragraph). The presumption that 35 U.S.C. 112(f) (pre-AIA 35 U.S.C. 112, sixth paragraph) is not invoked is rebutted when the claim element recites function but fails to recite sufficiently definite structure, material or acts to perform that function. Claim elements in this application that use the word “means” (or “step for”) are presumed to invoke 35 U.S.C. 112(f) except as otherwise indicated in an Office action.",
"Similarly, claim elements that do not use the word “means” (or “step for”) are presumed not to invoke 35 U.S.C. 112(f) except as otherwise indicated in an Office action. 7. The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C.",
"112, sixth paragraph: (A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function; (B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and (C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.",
"Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function. Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C.",
"112, sixth paragraph, except as otherwise indicated in an Office action. 8. This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitations use a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitations are: “a collimating element”, “a focusing element” and “optical elements” in claims 95-96. Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C.",
"112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. For more information, see MPEP § 2173 et seq. and Supplementary Examination Guidelines for Determining Compliance With 35 U.S.C. 112 and for Treatment of Related Issues in Patent Applications, 76 FR 7162, 7167 (Feb. 9, 2011). Claim Rejections - 35 USC § 103 9. 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. 10. Claims 95, 97-104, 113-120, 128-136, 138 and 142-145 are rejected under 35 U.S.C. 103 as being unpatentable over “Intraoperative Raman Spectroscopy“, Neurosurgery Clinics of North America, (2017) by Brusatori Michelle et al (hereinafter Brusatory) in view of US Patent Pub. No. 2012/0105837 A1 by Ingber (hereinafter Ingbar). Regarding Claim 95, Busatory teaches a Raman spectroscopic system (Title, Introduction) comprising: an excitation light source (Fig. 2 @ Laser) to radiate a light beam; a cuvette (Fig. 2 @ Sample, implicitly teaches a cuvette); at least one optical element (Fig.",
"2 @ Macro beam mirror) configured to direct the light beam into the cuvette through the bottom end of the cuvette (Fig. 2 @ Sample, implicitly teaches a cuvette and illustrates the bottom end of the cuvette) and onto a portion of a sample contained in the cuvette (Fig. 2 @ Sample); a Raman spectrometer comprising an entrance aperture (Fig. 2 @ slit), a collimating element (Fig. 2 @ Mirror), a transmission diffraction grating (Fig. 2 @ grating, i.e. the transmission diffraction grating), a focusing element (Fig. 2 @ mirror focusing CCD), and a detector array (Fig. 2 @ CCD); wherein the entrance aperture is configured to receive a Raman signal from the portion of the sample through the bottom end of the cuvette (Fig. 2, illustrates such configuration); the collimating element is configured to receive the Raman signal from the entrance aperture and direct the Raman signal to the transmission diffraction grating (Fig. 2, illustrates such configuration); (Fig. 2, illustrates such configuration.",
"Inherently teaches grating disperse spectral band. Fig. 2: A grating is used to separate the different wavelengths of scattered light); and the focusing element is configured to focus the dispersed Raman signal to the detector array (Fig. 2, illustrates such configuration) but does not explicitly teach a cuvette comprising a top end, a bottom end, and at least one tapered wall extending longitudinally from the bottom end towards the top end, and the at least one tapered wall being configured to concentrate at least a portion of a sample to a central region on an interior surface of the bottom end. However, Ingber teaches a cuvette (Fig. 2 @ 22, Abstract, Par. [0079] and Fig. 9F2, Par, [0105]) comprising a top end, a bottom end, and at least one tapered wall extending longitudinally from the bottom end towards the top end, and the at least one tapered wall being configured to concentrate at least a portion of a sample to a central region on an interior surface of the bottom end (Fig.",
"2 @ 22, Abstract, Par. [0096] and Fig. 9F2, Par, [0105], illustrates such configuration and implicitly teaches central region). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to modify Busatory by Ingber as taught above such that a cuvette comprising a top end, a bottom end, and at least one tapered wall extending longitudinally from the bottom end towards the top end, and the at least one tapered wall being configured to concentrate at least a portion of a sample to a central (Abstract, Par. [0009, 0079]). Regarding Claim 97, Busatory as modified by Ingber teaches a method for detecting the presence or absence of at least one feature of a Raman signal indicative of the presence or absence of a target in a sample (Busatory, Introduction), the method comprising: concentrating a portion of the sample to a central region on an interior surface of a bottom end of a cuvette, the cuvette comprising a chamber, a top end, and the bottom end, wherein the at least one tapered wall extends longitudinally from the bottom end towards the top end at a tilt angle (Ingber, Fig.",
"2 @ 22, Abstract, Par. [0096] and Fig. 9F2, Par, [0105], illustrates such configuration) and is configured to concentrate at least the portion of the sample to the central region (See Claim 95 rejection); focusing a light beam to the central region (See Claim 95 rejection); directing a Raman signal from the central region to a Raman spectrometer (See Claim 95 rejection); and detecting the presence or absence of at least one feature of the Raman signal indicative of the presence or absence of the target in the sample (Busatory, Introduction). Regarding Claim 98, Busatory teaches wherein the detecting comprises analyzing a combination of at least three spectral bands of the Raman signal, the combination of spectral bands being selected from a group of spectral bands comprising 1, 630-650 cm-1, 715-735 cm-1, 950-979 cm-1, 990-1010 cm-1, 1115-1135 cm-1, 1155-1165 cm-1, 1160-1180 cm-1, 1200-1220 cm-1, 1240-1260 cm-1, 1290-1310 cm-1, 1315-1325 cm-1, 1330-1350 cm-1, 1410-1430 cm-1, 1440-1460 cm-1, 1570-1590 cm-1, 1600-1620 cm-1, and 1650-1670 cm-1 (Table 1). Regarding Claim 99, Busatory teaches further comprising immobilizing the portion of the sample on the interior surface of the bottom end of the cuvette (Fig. 2, illustrates such configuration). Regarding Claim 100, Busatory teaches wherein the detecting comprises detecting the presence or absence of at least one feature of the Raman signal indicative of the presence or absence of one or more markers or byproducts of the target (Page 3, Col 2, para.",
"1; Page 11, Col 2, line 3-7. Table 1). Regarding Claim 101, Busatory teaches wherein the target is a virus, a bacterium, or a parasite (Page 2, Col 1, 2, para 1. Examiner interprets as an intended use). Regarding Claim 102, Busatory teaches wherein the one or more makers or byproducts (Page 3, Col 2, para. 1; Page 11, Col 2, line 3-7. Table 1) comprise a metabolite, a chemical, or a toxin (Page 2, Col 2, para 1, 2. Examiner interprets as an intended use). Regarding Claim 103, Busatory teaches wherein the target is a cell, a tumor cells, a white blood cell, a protein, a lipid, an enzyme, a tissue, a normal tissue, a necrotic tissue, or a tissue constituent (Page 2, Col 2, para 1; Page 3, Col 2, para. 1. Examiner interprets as an intended use). Regarding Claim 104, Busatory teaches wherein the detecting comprises detecting the presence or absence of at least one feature of the Raman signal indicative of the presence or absence of two or more targets in the sample (Introduction). Regarding Claim 113, Busatory teaches a method for detecting the presence or absence of at least one feature of a Raman signal indicative of the presence or absence of a target in a sample (See Claim 95, 97 rejection), the method comprising: concentrating a portion of the sample onto an interior surface of a bottom end of a cuvette, the cuvette comprising a top end, the bottom end, and at least one tapered wall extending longitudinally from the bottom end towards the top end (See Claim 95, 97 rejection); focusing a light beam onto the portion of the sample on the interior surface of the bottom end of the cuvette (See Claim 95, 97 rejection); directing a Raman signal from the portion of the sample passing through the bottom end to a Raman spectrometer (See Claim 95, 97 rejection); and detecting the presence or absence of at least one feature of the Raman signal indicative of the presence or absence of the target in the sample (See Claim 95, 97 rejection).",
"Regarding Claim 114, Busatory teaches wherein the detecting comprises analyzing a combination of at least three spectral bands of the Raman signal, the combination of spectral bands being selected from a group of spectral bands comprising spectral bands 610-630 cm-1, 630-650 cm-1, 715-735 cm-1, 950-979 cm-1, 990-1010 cm-1, 1115-1135 cm-1, 1155-1165 cm-1, 1160-1180 cm-1, 1200-1220 cm-1, 1240-1260 cm-1, 1, 1315-1325 cm-1, 1330-1350 cm-1, 1410-1430 cm-1, 1440-1460 cm-1, 1570-1590 cm-1, 1600-1620 cm-1, and 1650-1670 cm-1 (Table 1). Regarding Claim 115, Busatory teaches further comprising immobilizing the portion of the sample on the interior surface of the bottom end of the cuvette (See Claim 99 rejection). Regarding Claim 116, Busatory teaches wherein the detecting comprises detecting the presence or absence of at least one feature of the Raman signal indicative of the presence or absence of one or more markers or byproducts of the target (See Claim 100 rejection).",
"Regarding Claim 117, Busatory teaches wherein the target is a virus, a bacterium, or a parasite (See Claim 101 rejection). Regarding Claim 118, Busatory teaches wherein the one or more makers or byproducts comprise is a metabolite, a chemical, or a toxin (See Claim 102 rejection). Regarding Claim 119, Busatory teaches wherein the target is a cell, a tumor cell, a white blood cell, a protein, a lipid, an enzyme, a tissue, a normal tissue, a necrotic tissue, or a tissue constituent (See Claim 103 rejection). Regarding Claim 120, Busatory teaches wherein the detecting comprises detecting the presence or absence of at least one feature of the Raman signal indicative of the presence or absence of two or more targets in the sample (See Claim 104 rejection).",
"Regarding Claim 128, Busatory teaches a method for performing an analysis on a sample within a cuvette (See Claim 97 rejection) comprising: concentrating a portion of the sample to a central region on an interior surface of a bottom end of the cuvette, the cuvette comprising a chamber, at least one tapered wall, a top end, and the bottom end, wherein the at least one tapered wall extends longitudinally from the bottom end towards the top end at a tilt angle (See Claim 97 rejection); focusing a light beam to the central region (See Claim 97 rejection); directing a Raman signal from the central region to a Raman spectrometer (See Claim 97 rejection); and analyzing the Raman signal (See Claim 97 rejection). Regarding Claim 129, Busatory teaches wherein the analyzing comprises analyzing a combination of at least three spectral bands of the Raman signal, the combination of spectral bands being selected from a group of spectral bands comprising spectral bands 610-630 cm-1, 630-650 cm-1, 715-735 cm-1, 950-979 cm-1, 990-1010 cm-1, 1115-1 135 cm-1, 1155-1165 cm-1, 1160-1180 cm-1, 1200-1220 cm-1, 1240-1260 cm-1, 1290-1310 cm-1, 1315-1325 cm-1, 1330-1350 cm-1, 1410-1430 cm-1, 1440-1460 cm-1, 1570-1590 cm-1, 1600-1620 cm-1, and 1650-1670 cm-1 (Table 1). Regarding Claim 130, Busatory teaches further comprising immobilizing the portion of the sample on the interior surface of the bottom end of the cuvette (See Claim 99 rejection). Regarding Claim 131, Busatory teaches wherein the detecting comprises detecting the presence or absence of at least one feature of the Raman signal indicative of the presence or absence of a target in the sample (See Claim 104 rejection).",
"Regarding Claim 132, Busatory teaches wherein the analyzing comprises detecting the presence or absence of at least one feature of the Raman signal indicative of the presence or absence of one or more markers or byproducts of the target (See Claim 100 rejection). Regarding Claim 133, Busatory teaches wherein the target is a virus, a bacterium, or a parasite (See Claim 101 rejection). Regarding Claim 134, Busatory teaches wherein the one or more makers or byproducts comprise a metabolite, a chemical, or a toxin (See Claim 102 rejection). Regarding Claim 135, Busatory teaches wherein the target is a cell, a tumor cell, a white blood cell, a protein, a lipid, an enzyme, a tissue, a normal tissue, a necrotic tissue, or a tissue constituent (See Claim 103 rejection). Regarding Claim 136, Busatory teaches wherein the analyzing comprises detecting the presence or absence of at least one feature of the Raman signal indicative of the presence or absence of two or more targets in the sample (See Claim 104 rejection). Regarding Claim 138, Busatory teaches a method for performing an analysis on a sample within a cuvette (See Claim 95, 97 rejection) comprising: concentrating a portion of the sample onto an interior surface of a bottom end of a cuvette, the cuvette comprising a top end, the bottom end, and at least one tapered wall extending longitudinally from the bottom end towards the top end (See Claim 95, 97 rejection); focusing a light beam onto the portion of the sample on the interior surface of the bottom end of the cuvette (See Claim 95, 97 rejection); directing a Raman signal from the portion of the sample passing through the bottom end to a Raman spectrometer (See Claim 95, 97 rejection); and analyzing the Raman signal (See Claim 95, 97 rejection).",
"Regarding Claim 142, Busatory teaches all the features of the claimed invention except wherein the tilt angle is equal to or less than 80 degrees. However, Ingber teaches wherein the tilt angle is equal to or less than 80 degrees (Par. [0105]). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to modify Busatory by Ingber as taught above such that the tilt angle is equal to or less than 80 degrees is accomplished in order to allow for better coating and better striations of the light to assist with the optical analysis (Abstract, Par. [0009, 0079, 0105]).",
"Regarding Claim 143, Busatory teaches all the features of the claimed invention except wherein the tilt angle is from 9 degrees to 19 degrees. However, Ingber teaches the concept of the tilt angle (Par. [0105]). (Abstract, Par. [0009, 0079, 0105]). Still lacking limitation: tilt angle is from 9 degrees to 19 degrees. However, it would have been obvious to one ordinary skill in the art at the time the invention was made to use optimum range. Since it has been held that where the general condition of a claim are disclosed in the prior art, discovering the optimum or working ranges involves only routine skill in the art.",
"In re Aller, 105 USPQ 233. (MPEP 2144.05). Regarding Claim 144, Busatory as modified by Ingber teaches wherein the tilt angle is equal to or less than 80 degrees (See Claim 142 rejection). Regarding Claim 145, Busatory as modified by Ingber teaches wherein the tilt angle is from 9 degrees to 19 degrees (See Claim 143 rejection). 11. Claims 122-127 are rejected under 35 U.S.C. 103 as being unpatentable over “Intraoperative Raman Spectroscopy“, Neurosurgery Clinics of North America, (2017) by Brusatori Michelle et al (hereinafter Brusatory) in view of US Patent Pub. No. 2018/0080826 A1 by Silny et al (herein after Silny). Regarding Claim 122, Busatory teaches wherein the detecting comprises analyzing a combination of at least three spectral bands of the Raman signal, the combination of spectral bands being selected from a group of spectral bands comprising spectral bands 610-630 cm-1, 630-650 cm-1, 715-735 cm-1, 950-979 cm-1, 990-1010 cm-1, 1115-1135 cm-1, 1155-1165 cm-1, 1160-1180 cm-1, 1200-1220 cm-1, 1240-1260 cm-1, 1290-1310 cm-1, 1315-1325 cm-1, 1330-1350 cm-1, 1410-1430 cm-1, 1440-1460 cm-1, 1570-1590 cm-1, 1600-1620 cm-1, and 1650-1670 cm-1 (Table 1). Regarding Claim 123, Busatory teaches wherein the detecting comprises detecting the presence or absence of at least one feature of the Raman signal indicative of the presence or absence of one or more markers or byproducts of the target (See Claim 100 rejection).",
"Regarding Claim 124, Busatory teaches wherein the target is a virus, a bacterium, or a parasite (See Claim 101 rejection). Regarding Claim 125, Busatory teaches wherein the one or more makers or byproducts comprise a metabolite, a chemical, or a toxin (See Claim 102 rejection). Regarding Claim 126, Busatory teaches wherein the target is a cell, a tumor cell, a white blood cell, a protein, a lipid, an enzyme, a tissue, a normal tissue, a necrotic tissue, or a tissue constituent (See Claim 103 rejection). Regarding Claim 127, Busatory teaches wherein the detecting comprises detecting the presence or absence of at least one feature of the Raman signal indicative (See Claim 104 rejection). Allowable Subject Matter 12. Claims 96, 105-112 and 137 are allowed. Reason for Allowance 13.",
"The following is a statement of reasons for the indication of allowable subject matter: 14. As to Claim 96, the prior arts of record alone or in combination fails to teach or suggest the claimed “a focusing back reflector above the bottom end configured to reflect and focus light from the bottom end to a focal point on or above the bottom end”, along with all other limitations of claim 961. 15. As to Claims 105 and 137, the prior arts of record alone or in combination fails to teach or suggest the claimed “reflecting and focusing light from a focal point on or above the interior surface of the bottom end of the cuvette, the light comprising a portion of the light beam and a Raman signal from the portion of the sample, back to the focal point”, along with all other limitations of claims 105 and 137.",
"16. Brusatory (Intraoperative Raman Spectroscopy) teaches a Raman spectroscopic system but fails to teach the claimed limitations. Response to Arguments Applicant’s arguments filed on 11/03/2021 with respect to II. Claim Interpretation Under 35 U.S.C. § 112(f) (Argument, Page 24) have been fully considered but they are not persuasive. The Applicant is advised to review M.P.E.P. § 2181(I): “If a claim limitation recites a term and associated functional language, the examiner should determine whether the claim limitation invokes 35 U.S.C. 112(f). Application of 35 U.S.C.",
"112(f) is driven by the claim language, not by applicant’s intent or mere statements to the contrary included in the specification or made during prosecution. “Instead of using \"means\" in such cases, a substitute term acts as a generic placeholder for the term \"means\" and would not be recognized by one of ordinary skill in the art as being sufficiently definite structure for performing the claimed function. \"The standard is whether the words of the claim are understood by persons of ordinary skill in the art to have a sufficiently definite meaning as the name for structure.\" Williamson, 792 F.3d at 1349, 115 USPQ2d at 1111; see also Greenberg v. Ethicon Endo-Surgery, Inc., 91 F.3d 1580, 1583, 39 USPQ2d 1783, 1786 (Fed. Cir.",
"1996)”. 3-prong analysis: (A) the claim limitation uses the term \"means\" or \"step\" or a term used as a substitute for \"means\" that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function; (B) the term \"means\" or \"step\" or the generic placeholder is modified by functional language, typically, but not always linked by the transition word \"for\" (e.g., \"means for\") or another linking word or phrase, such as \"configured to\" or \"so that\"; and (C) the term \"means\" or \"step\" or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.",
"Therefore, it is evident from the above discussion that the claim language recited “a collimating element”, “a focusing element” and “optical elements” in claims 95-96 are not the definite structure. Definite structure would be a “lens” for example. Applicant’s arguments filed on 01/08/2021 with respect to III. Rejection Under 35 U.S.C. § 103 (Argument, Page 25 and 29) regarding a prima facie case of obviousness has not been established have been fully considered but they are not persuasive. Since Office Action has shown that the combination of the cited references teaches or suggests each and every element of the amended claims, therefore, a prima facie case of obviousness has been established. A.",
"The Applicant argues that “a cuvette comprising ... at least one tapered wall ... configured to concentrate at least a portion of a sample to a central region on an interior surface of the bottom end;” and “at least one optical element configured to direct the light beam into the cuvette through the bottom end of the cuvette and onto the portion of the sample at the central region.” (emphases added). Brusatori fails to disclose or suggest at least these elements of amended claim 95 (Argument, Page 25-26). The Examiner respectfully disagrees. Ingber teaches a cuvette (Fig. 2 @ 22, Abstract, Par. [0079] and Fig.",
"9F2, Par, [0105]) comprising a top end, a bottom end, and at least one tapered wall extending longitudinally from the bottom end towards the top end, and the at least one tapered wall being configured to concentrate at least a portion of a sample to a central region on an interior surface of the bottom end (Fig. 2 @ 22, Abstract, Par. [0096] and Fig. 9F2, Par, [0105], illustrates such configuration and implicitly teaches central region). The Applicant argues that furthermore, none of the cited art discloses or teaches “at least one optical element configured to direct the light beam into the cuvette through the bottom end of the cuvette and onto the portion of the sample at the central region.” Both Brusatori and Lewis at best show radiating a light beam into a cuvette through a side wall of the cuvette. Ingber expressly teaches away from “direct[ing] the light beam into the cuvette through the bottom end of the cuvette (Argument, Page 26-27)”.",
"The Examiner respectful disagrees. Brusatori Fig. 2 @ Sample teaches the bottom end of the cuvette (Also see OA, Claim 95 rejection). Ingber reference is used to show a cuvette comprising a top end, a bottom end, and at least one tapered wall extending longitudinally from the bottom end towards the top end. In combination teaches (Also see OA, Claim 95 rejection). B. Applicant’s argument regarding Claims 96, 105-112 and 137 (Argument, Page 28) is moot due to allowance. C. Applicant’s argument regarding Claims 121 and 139 (Argument, Page 29) is moot due to the withdrawn from consideration as being directed to a non-elected invention (See OA, Page 2-3: Election by Original Presentation). Additional Prior Art The prior art made of record and not relied upon is considered pertinent to applicant’s disclosure. The reference listed teaches of other prior art method/system of cuvette.",
"US Patent No. 4285906 A by Meltzer et al. US Patent No. 2019/0162655 A1 by Neugebauer et al. Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to JAMIL AHMED whose telephone number is (571)272-1950. The examiner can normally be reached M-F: 9:00 AM - 5:00 PM. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Tarifur Chowdhury can be reached on 571-272-2287. 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. /JAMIL AHMED/ Primary Examiner, Art Unit 2886"
] | https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-11-28.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
OPINION. Haeeon, Judge: This proceeding has been considered by this Court previously. See Eleanor M. Funk, 1 T. C. 890. It was submitted originally under a stipulation of facts, to which certain exhibits were, attached. The findings of fact, the opinion, and the conclusions of this Court in this proceeding in the original report which are found in 7 T. C. at page 890, were based solely upon the record which was submitted to this Court in this proceeding2 and were not based upon the record in the case of the petitioner’s husband, Wilfred J. Funk, which had been decided previously. In Funk v. Commissioner, supra, the Circuit Court made the following statement at page 803 of 163 Fed. (2d) : We do not hold here that the conclusions of the Tax Court would not be sustained on a proper record or upon adequate findings of fact. * * sfc * * * * Por the reasons stated the decision of the Tax Court will be reversed and the case remanded with directions for further proceedings not inconsistent with this opinion. Upon remandment of this proceeding, it was placed upon a calendar of this Court for trial in order that a “proper record” would be before this Court, from which it could make “adequate findings of fact.” Just before the date which was set for trial, counsel for both parties filed with this Court a stipulation in' which it was stipulated, in part, that: * * * The complete record in the case of Wilfred J. Funk v. Commissioner, Board of Tax Appeals (now the Tax Court of the United States) Docket No. 111193, hereinafter called the Wilfred J. Funk case (including, among other things, the pleadings, testimony of witnesses, exhibits, transcripts, minutes, and Memorandum Findings of Fact and Opinion of this Court which was entered on February 7, 1944). certified under seal of the Court, may be offered and received in evidence in this proceeding for all purposes without objection by either party, subject only to the right of either party to object to the receipt in evidence in this proceeding of the whole or any part of said record solely on the ground of relevancy or materiality * * *. It is further understood and agreed that petitioner thereafter by brief may note her objections, if any, solely on the ground of relevancy or materiality, to the receipt in evidence of the whole or any part of the record in the Wilfred J. Funk case and her exceptions, if any, to the correctness of the findings of fact contained in this Court’s Memorandum Findings of Fact and Opinion entered on February 7,1944 in the Wilfred J. Funk case. * * * The entire record in the Wilfred, J. Funk case was offered in evidence in this proceeding by the respondent and was admitted in evi-deuce, subject to the making of objections on brief by counsel for either party solely on the ground of relevancy and materiality. Respondent made no objections, but contended “that nothing less than the entire record in the Wilfred J. Funk case meets without equivocation the mandate of the Circuit Court of Appeals.” The petitioner, having reserved the right so to do, made several objections on brief to the receipt in evidence in this proceeding of certain portions of the record in the Wilfred J. Funk case on the ground that such portions of the record are irrelevant or immaterial. Careful consideration has been given to all of the objections of the petitioner, but they are now overruled. The record in this proceeding now comprises the stipulation of facts, with certain exhibits attached, which was originally submitted in this proceeding, and the entire record and the memorandum findings of fact and opinion in the proceeding of Wilfred J. Funk, Docket No. 111193. From the entire record, excepting the memorandum findings of fact and opinion, we have made findings of fact in this proceeding as set forth in the findings of fact, sufra. We have not considered the findings of fact which were made in the Wilfred J. Funk case, nor the opinion therein, which are set forth in the aforesaid memorandum findings of fact and opinion because different questions than are at issue in this proceeding were before the Board of Tax Appeals in the Wilfred J. Funk case. In considering the record, as now constituted, in this proceeding, we have observed much that is irrelevant and immaterial to the issues presented and have given such parts of the record no weight. On the other hand, we have found in our findings of fact all of the facts which we deem to be relevant and material to the issue which we must decide. The question to be decided is whether the income of four trusts, known as trusts A, B, C, and D, for the years 1938,1939,1940, and 1941 is taxable to the petitioner, as the respondent has determined, or to the trusts, as the petitioner contends. The respondent contends that the income of the trusts is taxable to the petitioner under section 22 (a) of the Internal Revenue Code and the Revenue Act of 1938 because she had unfettered command of the income and was free to elect to have it distributed to herself. He relies primarily upon Mallinckrodt v. Nunan, 146 Fed. (2d) 1, affirming 2 T. C. 1128; certiorari denied, 325 U. S. 892; Corliss v. Bowers, 281 U. S. 376; Jergens v. Commissioner, 136 Fed. (2d) 497; certiorari denied, 320 U. S. 784; Edgar R. Stix, 4 T. C. 1140; affd., 152 Fed. (2d) 562; and Annie Inman Grant, 11 T. C. 178; affd., 174 Fed. (2d) 891. The reasoning of the Circuit Court in the Mallinckrodt case, which the respondent deems to be controlling of the question, is quoted in the margin.3 The question, in' our opinion, turns upon the provision contained in each trust instrument which relates to the power of the trustee over trust income, which is quoted in full in the margin.4 We fail to find any ambiguity in the terms of the clause which sets forth the powers of the trustee over the income of the trusts. Whatever the motives of the grantor of these trusts may have been, the unambiguous and specific language of article first of each trust must control. Bunting v. Commissioner, 164 Fed. (2d) 443. The narrow question is whether or not the power given to Jthe trustee, Eleanor M. Funk, the petitioner in this proceeding, gave her control over the trusts’ income, so little fettered as to be regarded as less than complete command over the income, to enjoy at her own election, for purposes of the Federal income tax. The pertinent clause of the trust instruments gave the trustee discretion to pay to herself annually all or part of the annual net income of the trusts in accordance with her needs, "of which she shall he the sole judge? (Italics added.) It was said in Emery v. Commissioner, 156 Fed. (2d) 728, 730, that “the fact that the petitioner did not exercise her powers in her own favor during the taxable years does not make the income any less taxable to her.” The same is said here. The evidence in this proceeding is to the effect, and findings of fact have been made accordingly, that the petitioner had absolute control over the .trusts’ income; that she made distributions entirely by the exercise of her own discretion; that she took whatever she wanted each year,’and gave some of the rest to her husband in certain years; that what she distributed to him was determined solely by herself without any consideration of whether or not he had any need for the income; that the petitioner’s husband had no need for any of the distributions which she made to him in 1939,1940, and 1941; and that the sums which she did distribute to him were “gifts.” In short, the evidence shows that Eleanor M. Funk, trustee, followed to the letter the provisions in the trust instruments that she should distribute the trust income in her discretion, and that she should be the “sole judge” of how she would distribute the income. There is no evidence in this proceeding regarding the “necessities” of the petitioner’s husband, Wilfred J. Funk, as compared with the “necessities” of the petitioner, upon which any conclusion can be made as to “the minimum which a court would have compelled” her “to give” to her husband under the trusts. Lacking such evidence, the petitioner has failed to prove what amount of income of the trusts, if any, was not within her absolute control. Stix v. Commissioner, supra. As was said by the Circuit Court of Appeals for the Second Circuit in the Stix case, at page 563 of 152 Fed. (2d) 562: * * * Quite aside from whether a control, so little fettered, should ever be regarded as less than absolute, when taxes are in question, the taxpayers at bar failed to carry their burden of proof, for they did not show what part of the income they could have been compelled to pay to their sons; and how much, therefore, was not within their absolute control. We must conclude that, upon the record of this proceeding, the pertinent clause in the trust instruments gave petitioner a command over the disposition of the annual income of the trusts which was too little fettered to be regarded as less than absolute for purposes of taxation. We conclude, further, that the petitioner can not escape taxation on the income of the trusts without showing what she could have been compelled, by a court, to give to her husband. Stix v. Commissioner, supra. See, also, Corliss v. Bowers, supra; Helvering v. Stuart, 317 U. S. 154; Helvering v. Clifford, 309 U. S. 331; Harrison v. Schaffner, 312 U. S. 579; Mallinckrodt v. Nunan, supra; Jergens v. Commissioner, supra; Frank v. Commissioner, 145 Fed. (2d) 413; Busch v. Commissioner, 148 Fed. (2d) 798; Emery v. Commissioner, supra; Bunting v. Commissioner, supra; Grant v. Commissioner, supra. The respondent’s determinations are sustained. It follows from our holding above, that the petitioner understated her correct gross income for the years 1938 and 1939 by more than 25 per cent. Therefore, under section 275 (c) of the Internal Revenue Code, the assessment of the deficiencies for those years is not barred by the statute of limitations. O'Bryan v. Commissioner, 148 Fed. (2d) 456. Reviewed by the Court. Decisions will be entered for the respondent. Upon appeal from the decision of this Court to the Circuit Court of Appeals for the Third Circuit, argument was made by counsel that this Court, through one of its judges, had, by way of judicial notice, considered the record in a prior proceeding, that of the husband of the petitioner, Wilfred J. Funk, involving the same trusts and three of the same taxable years. That argument, based upon erroneous assumptions, gave rise to an issue in the appeal of this proceeding relating to judicial notice. The learned opinion of the Circuit Court on that issue gives complete reply to the arguments which counsel on appeal undertook to make. This Court did not, through any of its judges, take judicial notice of the record in the proceeding of Wilfred J. Funic, Docket No. 111,193, decided under an unprinted memorandum findings of fact and opinion which was entered on February 7, 1944, in its considerations of this proceeding, reported at 7 T. C. 890. We stated clearly at p. 898 of 7 T. C- “in the record in this case’'; and “on the record.” “We agree with the majority of the Tax Court that implications which fairly may be drawn from the opinions of the Supreme Court in Corliss v. Bowers, 281 U. S. 376, 378 * * *, Helvering v. Clifford, 309 U. S. 331 * * *, and other cases relative to the taxability of trust income to one having command over it, justify, if they do not compel, the conclusion that the undistributed net income of the trust in suit, during the years in question, was taxable to petitioner under § 22 (a). This, because the power of petitioner to receive this trust income each year, upon request, can be regarded as the equivalent of ownership of the income for purposes of taxation. In Harrison v. Schaffner, 312 U. S. 579, 580 * * *, the Supreme Court approved ‘the principle that the power to dispose of income is the equivalent of ownership of it and that the exercise of the power to procure its payment to another, whether to pay a debt or to make a gift, is within the reach of the statute taxing income “derived from any source whatever.” ’ It seems to us, as it did to the majority of the Tax Court, that it is the possession of power over the disposition of trust income which is of significance in determining whether, under § 22 (a), the income is taxable to the possessor of such power, and that logically it makes no difference whether the possessor is a grantor who retained the power or a beneficiary who acquired it from another. See Jergens v. Commissioner, supra, (p. 498 of 136 Fed. (2d) * * *). Since the trust income in suit was available to petitioner upon request in each of the taxable years involved, he had in each of those years the ‘realizable’ economic gain necessary to make the income taxable to him. See Helvering v. Stuart, 317 U. S. 154, 168, 169 * * *; Helvering v. Clifford, supra, at pp. 336, 337 of 309 U. S. * * * ; Helvering v. Gordon, 8 Cir., 87 Fed. (2d) 663, 667.” () WEST During my lifetime to hold, manage, sell, invest, and reinvest the same, to receive the income thereof and to pay therefrom all taxes, assessments, and other charges and expenses accruing thereon from year to year and properly chargeable thereto, and all expenses incident to the trust hereby created, and in her discretion to pay all or a part of the net income annually to me, or to herself, in accordance with our respective needs, of which she shall be the sole judge, and to accumulate and add to principal the balance of such income, if any. Any income so accumulated and added to principal by the Trustee shall become a part of the corpus of the trust and may not thereafter be distributed by the Trustee. | 09-09-2022 | [
"OPINION. Haeeon, Judge: This proceeding has been considered by this Court previously. See Eleanor M. Funk, 1 T. C. 890. It was submitted originally under a stipulation of facts, to which certain exhibits were, attached. The findings of fact, the opinion, and the conclusions of this Court in this proceeding in the original report which are found in 7 T. C. at page 890, were based solely upon the record which was submitted to this Court in this proceeding2 and were not based upon the record in the case of the petitioner’s husband, Wilfred J. Funk, which had been decided previously.",
"In Funk v. Commissioner, supra, the Circuit Court made the following statement at page 803 of 163 Fed. (2d) : We do not hold here that the conclusions of the Tax Court would not be sustained on a proper record or upon adequate findings of fact. * * sfc * * * * Por the reasons stated the decision of the Tax Court will be reversed and the case remanded with directions for further proceedings not inconsistent with this opinion.",
"Upon remandment of this proceeding, it was placed upon a calendar of this Court for trial in order that a “proper record” would be before this Court, from which it could make “adequate findings of fact.” Just before the date which was set for trial, counsel for both parties filed with this Court a stipulation in' which it was stipulated, in part, that: * * * The complete record in the case of Wilfred J. Funk v. Commissioner, Board of Tax Appeals (now the Tax Court of the United States) Docket No. 111193, hereinafter called the Wilfred J. Funk case (including, among other things, the pleadings, testimony of witnesses, exhibits, transcripts, minutes, and Memorandum Findings of Fact and Opinion of this Court which was entered on February 7, 1944). certified under seal of the Court, may be offered and received in evidence in this proceeding for all purposes without objection by either party, subject only to the right of either party to object to the receipt in evidence in this proceeding of the whole or any part of said record solely on the ground of relevancy or materiality * * *.",
"It is further understood and agreed that petitioner thereafter by brief may note her objections, if any, solely on the ground of relevancy or materiality, to the receipt in evidence of the whole or any part of the record in the Wilfred J. Funk case and her exceptions, if any, to the correctness of the findings of fact contained in this Court’s Memorandum Findings of Fact and Opinion entered on February 7,1944 in the Wilfred J. Funk case. * * * The entire record in the Wilfred, J. Funk case was offered in evidence in this proceeding by the respondent and was admitted in evi-deuce, subject to the making of objections on brief by counsel for either party solely on the ground of relevancy and materiality. Respondent made no objections, but contended “that nothing less than the entire record in the Wilfred J. Funk case meets without equivocation the mandate of the Circuit Court of Appeals.” The petitioner, having reserved the right so to do, made several objections on brief to the receipt in evidence in this proceeding of certain portions of the record in the Wilfred J. Funk case on the ground that such portions of the record are irrelevant or immaterial. Careful consideration has been given to all of the objections of the petitioner, but they are now overruled.",
"The record in this proceeding now comprises the stipulation of facts, with certain exhibits attached, which was originally submitted in this proceeding, and the entire record and the memorandum findings of fact and opinion in the proceeding of Wilfred J. Funk, Docket No. 111193. From the entire record, excepting the memorandum findings of fact and opinion, we have made findings of fact in this proceeding as set forth in the findings of fact, sufra. We have not considered the findings of fact which were made in the Wilfred J. Funk case, nor the opinion therein, which are set forth in the aforesaid memorandum findings of fact and opinion because different questions than are at issue in this proceeding were before the Board of Tax Appeals in the Wilfred J. Funk case.",
"In considering the record, as now constituted, in this proceeding, we have observed much that is irrelevant and immaterial to the issues presented and have given such parts of the record no weight. On the other hand, we have found in our findings of fact all of the facts which we deem to be relevant and material to the issue which we must decide. The question to be decided is whether the income of four trusts, known as trusts A, B, C, and D, for the years 1938,1939,1940, and 1941 is taxable to the petitioner, as the respondent has determined, or to the trusts, as the petitioner contends. The respondent contends that the income of the trusts is taxable to the petitioner under section 22 (a) of the Internal Revenue Code and the Revenue Act of 1938 because she had unfettered command of the income and was free to elect to have it distributed to herself.",
"He relies primarily upon Mallinckrodt v. Nunan, 146 Fed. (2d) 1, affirming 2 T. C. 1128; certiorari denied, 325 U. S. 892; Corliss v. Bowers, 281 U. S. 376; Jergens v. Commissioner, 136 Fed. (2d) 497; certiorari denied, 320 U. S. 784; Edgar R. Stix, 4 T. C. 1140; affd., 152 Fed. (2d) 562; and Annie Inman Grant, 11 T. C. 178; affd., 174 Fed. (2d) 891. The reasoning of the Circuit Court in the Mallinckrodt case, which the respondent deems to be controlling of the question, is quoted in the margin.3 The question, in' our opinion, turns upon the provision contained in each trust instrument which relates to the power of the trustee over trust income, which is quoted in full in the margin.4 We fail to find any ambiguity in the terms of the clause which sets forth the powers of the trustee over the income of the trusts.",
"Whatever the motives of the grantor of these trusts may have been, the unambiguous and specific language of article first of each trust must control. Bunting v. Commissioner, 164 Fed. (2d) 443. The narrow question is whether or not the power given to Jthe trustee, Eleanor M. Funk, the petitioner in this proceeding, gave her control over the trusts’ income, so little fettered as to be regarded as less than complete command over the income, to enjoy at her own election, for purposes of the Federal income tax. The pertinent clause of the trust instruments gave the trustee discretion to pay to herself annually all or part of the annual net income of the trusts in accordance with her needs, \"of which she shall he the sole judge? (Italics added.) It was said in Emery v. Commissioner, 156 Fed.",
"(2d) 728, 730, that “the fact that the petitioner did not exercise her powers in her own favor during the taxable years does not make the income any less taxable to her.” The same is said here. The evidence in this proceeding is to the effect, and findings of fact have been made accordingly, that the petitioner had absolute control over the .trusts’ income; that she made distributions entirely by the exercise of her own discretion; that she took whatever she wanted each year,’and gave some of the rest to her husband in certain years; that what she distributed to him was determined solely by herself without any consideration of whether or not he had any need for the income; that the petitioner’s husband had no need for any of the distributions which she made to him in 1939,1940, and 1941; and that the sums which she did distribute to him were “gifts.” In short, the evidence shows that Eleanor M. Funk, trustee, followed to the letter the provisions in the trust instruments that she should distribute the trust income in her discretion, and that she should be the “sole judge” of how she would distribute the income.",
"There is no evidence in this proceeding regarding the “necessities” of the petitioner’s husband, Wilfred J. Funk, as compared with the “necessities” of the petitioner, upon which any conclusion can be made as to “the minimum which a court would have compelled” her “to give” to her husband under the trusts. Lacking such evidence, the petitioner has failed to prove what amount of income of the trusts, if any, was not within her absolute control. Stix v. Commissioner, supra. As was said by the Circuit Court of Appeals for the Second Circuit in the Stix case, at page 563 of 152 Fed. (2d) 562: * * * Quite aside from whether a control, so little fettered, should ever be regarded as less than absolute, when taxes are in question, the taxpayers at bar failed to carry their burden of proof, for they did not show what part of the income they could have been compelled to pay to their sons; and how much, therefore, was not within their absolute control. We must conclude that, upon the record of this proceeding, the pertinent clause in the trust instruments gave petitioner a command over the disposition of the annual income of the trusts which was too little fettered to be regarded as less than absolute for purposes of taxation. We conclude, further, that the petitioner can not escape taxation on the income of the trusts without showing what she could have been compelled, by a court, to give to her husband.",
"Stix v. Commissioner, supra. See, also, Corliss v. Bowers, supra; Helvering v. Stuart, 317 U. S. 154; Helvering v. Clifford, 309 U. S. 331; Harrison v. Schaffner, 312 U. S. 579; Mallinckrodt v. Nunan, supra; Jergens v. Commissioner, supra; Frank v. Commissioner, 145 Fed. (2d) 413; Busch v. Commissioner, 148 Fed. (2d) 798; Emery v. Commissioner, supra; Bunting v. Commissioner, supra; Grant v. Commissioner, supra. The respondent’s determinations are sustained. It follows from our holding above, that the petitioner understated her correct gross income for the years 1938 and 1939 by more than 25 per cent. Therefore, under section 275 (c) of the Internal Revenue Code, the assessment of the deficiencies for those years is not barred by the statute of limitations. O'Bryan v. Commissioner, 148 Fed. (2d) 456. Reviewed by the Court. Decisions will be entered for the respondent. Upon appeal from the decision of this Court to the Circuit Court of Appeals for the Third Circuit, argument was made by counsel that this Court, through one of its judges, had, by way of judicial notice, considered the record in a prior proceeding, that of the husband of the petitioner, Wilfred J. Funk, involving the same trusts and three of the same taxable years. That argument, based upon erroneous assumptions, gave rise to an issue in the appeal of this proceeding relating to judicial notice.",
"The learned opinion of the Circuit Court on that issue gives complete reply to the arguments which counsel on appeal undertook to make. This Court did not, through any of its judges, take judicial notice of the record in the proceeding of Wilfred J. Funic, Docket No. 111,193, decided under an unprinted memorandum findings of fact and opinion which was entered on February 7, 1944, in its considerations of this proceeding, reported at 7 T. C. 890. We stated clearly at p. 898 of 7 T. C- “in the record in this case’'; and “on the record.” “We agree with the majority of the Tax Court that implications which fairly may be drawn from the opinions of the Supreme Court in Corliss v. Bowers, 281 U. S. 376, 378 * * *, Helvering v. Clifford, 309 U. S. 331 * * *, and other cases relative to the taxability of trust income to one having command over it, justify, if they do not compel, the conclusion that the undistributed net income of the trust in suit, during the years in question, was taxable to petitioner under § 22 (a).",
"This, because the power of petitioner to receive this trust income each year, upon request, can be regarded as the equivalent of ownership of the income for purposes of taxation. In Harrison v. Schaffner, 312 U. S. 579, 580 * * *, the Supreme Court approved ‘the principle that the power to dispose of income is the equivalent of ownership of it and that the exercise of the power to procure its payment to another, whether to pay a debt or to make a gift, is within the reach of the statute taxing income “derived from any source whatever.” ’ It seems to us, as it did to the majority of the Tax Court, that it is the possession of power over the disposition of trust income which is of significance in determining whether, under § 22 (a), the income is taxable to the possessor of such power, and that logically it makes no difference whether the possessor is a grantor who retained the power or a beneficiary who acquired it from another. See Jergens v. Commissioner, supra, (p. 498 of 136 Fed.",
"(2d) * * *). Since the trust income in suit was available to petitioner upon request in each of the taxable years involved, he had in each of those years the ‘realizable’ economic gain necessary to make the income taxable to him. See Helvering v. Stuart, 317 U. S. 154, 168, 169 * * *; Helvering v. Clifford, supra, at pp. 336, 337 of 309 U. S. * * * ; Helvering v. Gordon, 8 Cir., 87 Fed. (2d) 663, 667.” () WEST During my lifetime to hold, manage, sell, invest, and reinvest the same, to receive the income thereof and to pay therefrom all taxes, assessments, and other charges and expenses accruing thereon from year to year and properly chargeable thereto, and all expenses incident to the trust hereby created, and in her discretion to pay all or a part of the net income annually to me, or to herself, in accordance with our respective needs, of which she shall be the sole judge, and to accumulate and add to principal the balance of such income, if any. Any income so accumulated and added to principal by the Trustee shall become a part of the corpus of the trust and may not thereafter be distributed by the Trustee."
] | https://www.courtlistener.com/api/rest/v3/opinions/8138991/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Appeal from an order on reargument insofar as said order directs appellant to proceed to arbitration, stays appellant from proceeding with an action against respondent and another to recover damages for fraud, and directs that the issue as to the damages allegedly sustained by appellant be determined by the arbitrators in the arbitration proceeding. Appellant contended that there should be a preliminary trial of the issue of fraud. Order, insofar as appeal is taken, affirmed, with $10 costs and disbursements. No opinion. Wenzel, Acting P. J., Beldoek, Ughetta, Hallinan and Kleinfeld, JJ., concur. | 01-12-2022 | [
"Appeal from an order on reargument insofar as said order directs appellant to proceed to arbitration, stays appellant from proceeding with an action against respondent and another to recover damages for fraud, and directs that the issue as to the damages allegedly sustained by appellant be determined by the arbitrators in the arbitration proceeding. Appellant contended that there should be a preliminary trial of the issue of fraud. Order, insofar as appeal is taken, affirmed, with $10 costs and disbursements. No opinion. Wenzel, Acting P. J., Beldoek, Ughetta, Hallinan and Kleinfeld, JJ., concur."
] | https://www.courtlistener.com/api/rest/v3/opinions/5692572/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Ladner, J., The earnest argument of the eminent counsel for the exceptant has not convinced us that any error was made by the learned auditing judge, nor can we with profit add anything to his well-reasoned adjudication. The exceptions are dismissed and the adjudication is confirmed absolutely. | 06-25-2022 | [
"Ladner, J., The earnest argument of the eminent counsel for the exceptant has not convinced us that any error was made by the learned auditing judge, nor can we with profit add anything to his well-reasoned adjudication. The exceptions are dismissed and the adjudication is confirmed absolutely."
] | https://www.courtlistener.com/api/rest/v3/opinions/6381449/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Mount, J. In the year 1910, the city of Seattle began proceedings to condemn certain lots for park purposes. Among these were lots 6 and 7, block 1, Columbia Terrace addition, and lots 7, block 24, of Squire’s Lakeside addition. These lots were owned by Patrick Barker, who was made a party to the condemnation proceeding. Upon a trial of the condemnation case, Mr. Barker was awarded $2,200 for the lots in Columbia Terrace addition, and $1,013 for the lots in Squire’s Lakeside: addition. After these awards were made and the money paid into court, R. Sartori, who claimed to hold a mortgage lien on lot 7, block 4, above stated, for $1,000 and interest, and the Seattle National Bank, which claimed to hold a mortgage on the other two lots for $2,200 and interest, were brought into the case upon petition of the city. These parties thereupon set up their mortgages, claiming to be purchasers of the notes secured thereby, before maturity, for value, and in good faith, and petitioned the court for the application of the funds to the payment of their respective mortgage liens. Patrick Barker answered these petitions, denying execution of the instruments and alleging affirmatively that both were void for want of consideration. Upon issues thus made, the trial court was ■ of the opinion that Barker executed the notes and mortgages which were liens upon the premises covered by the respective mortgages, and that the petitioners were holders in good faith before maturity, and therefore entered orders directing the application of the funds remaining, after certain prior liens were paid, to the satisfaction of the petitioners’ claims. Mr. Barker has ap*262pealed from these orders. Both cases depend upon the same state of facts, and were tried as one. Appellant argues that the notes and mortgages given for their security are void, because they were executed without consideration passing to Mr. Barker. It may be true that no consideration passed, but the court found, and the evidence is clearly sufficient to show, that Mr. Barker executed the notes and mortgages. It is not disputed that Mr. Sartori and the Seattle National Bank acquired the paper for value before maturity, without notice of any defect or want of consideration between the makers and the original payee. It is clear, therefore, that these respondents are holders in due course, provided the paper is negotiable. Gray v. Boyle, 55 Wash. 578, 104 Pac. 828, 133 Am. St. 1042. In that case the court quoted the rule in such cases from Vallett v. Parker, 6 Wend. 615, as follows: “Wherever the statutes declare notes void, they are, and must be so, in the hands of every holder; but where they are adjudged by the court to be so, for failure, or the illegality of the consideration, they are void only in the hands of the original parties, or those who are chargeable with, or have had notice of, the consideration.” This is decisive of that question. It is next argued that the paper was not negotiable. The notes contain similar provisions. One of them recites: “Two years after date, without grace, for value received, I promise to pay to the order of H. P. Wolcott the sum of $1,000, with interest at the rate of nine per cent per annum from date until paid. Interest to be paid semi-annually, and if not so paid to bear interest after delinquency until paid at the rate of nine per cent per annum.” The notes were secured by mortgages which contain stipulations requiring the maker to pay, in addition to the principal debt and interest, such sums as the mortgagee'may be required to incur for insurance, taxes, assessments, and charges on the land, etc. It is argued, (1) that the provision in the notes renders them uncertain as to the amount *263to be paid at maturity, because, if the interest is not paid at certain fixed periods, such past-due interest bears interest; and (2) that the mortgages bearing the same date as the notes are assumed to have been made at the same time as the notes, and the two instruments must be construed as one contract, and therefore are entirely uncertain as to the amounts to be paid at maturity. Our statute, at § 3392, Rem. & Bal. Code, defines a negotiable instrument, and declares that it “must contain an unconditional promise or order to pay a sum certain in money.” The next section provides: “§ 3393. The sum payable is a sum certain within the meaning of this act, although it is to be paid — (1) with interest; or (2) by stated installments; or (3) by stated installments, with a provision that upon default in payment of any installment or of interest, the whole shall become due; or . . . (5). with costs of collection or an attorney’s fee, in case payment shall not be made at maturity.” It is apparent that the notes in this case were negotiable instruments within this rule, because they were in writing signed by the maker, and contain an unconditional promise to pay a sum certain in money. The fact that the interest was payable in installments does not render the notes uncertain, for the statute expressly provides that payments may be made by installments. This applies as well to interest as to the principal. The argument made by counsel, that an installment may not be paid when due and therefore the instrument would not show upon its face what amount would be due at maturity, would apply equally to the principal where payable by installments. There are cases which hold that notes like these are uncertain and therefore not negotiable, as for example, Cornish v. Woolverton, 32 Mont. 456, 81 Pac. 4, 108 Am. St. 598, and Davis v. Brady, 17 S. D. 511, 97 N. W. 719; but those were cases which were based upon statutory provisions unlike ours. Q We are satisfied that the provisions of the mortgages were not imported into the notes so as to render them non*264negotiable. The rule is well stated in Thorp v. Minedman, 123 Wis. 149, 101 N. W. 417, 107 Am. St. 1003, 68 L. R. A. 146, as follows: “The rule that instruments are to be construed together does not lead to this result. Construing together simply means that, if there be any provisions in one instrument limiting, explaining, or .otherwise affecting the provisions of another, they will be given effect as between the parties themselves and all persons charged with notice, so that the intent of the parties may be carried out, and the whole agreement actually made may be effectuated. This does not mean that the provisions of one instrument are imported bodily into another, contrary to the intent of the parties. They may be intended to be separate instruments, and to provide for entirely different things, as in the very case before us. The note is given as evidence of the debt and to fix the terms and time of payment.. It is usually complete in itself — a single, absolute obligation. The purpose of the mortgage is simply to pledge certain property as security for the payment of the note. The agreements which it' contains ordinarily have no bearing on the absolute engagements ■ of the note, but simply relate to the preservation of the security given by its terms; such as the payment of taxes, the insurance of houses, and the like. While the two instruments, will be construed together whenever the question as to the nature of the actual transaction becomes material, this does not mean that the mortgage becomes incorporated into the note, nor that the collateral agreements to pay the taxes, or to insure the property, or that the mortgagee might insure in case of default by the • mortgagor and have an additional lien therefor, become parts of the note. These agreements pertain to another subject, namely, the preservation intact of the mortgaged property. The promise to pay is one distinct agreement, and, if couched in proper terms, is negotiable. The pledge of real estate to secure that promise is. another distinct agreement, which ordinarily is not intended to affect in the least the promise to pay, but only to give a remedy for failure to carry out the promise to pay. The holder of the note may disregard the mortgage entirely, and sue and recover on his note; and the fact that a mortgage had been given with the note, *265containing all manner of agreements relating simply to the preservation of the security, will cut no figure.” See, also, Farmers’ Nat. Bank of Tecumseh v. McCall, 25 Old. 600, 106 Pac. 866; American Sav. Bank & Trust Co. v. Helgesen, 64 Wash. 54, 116 Pac. 837. It is next argued that the circumstances under which the respondents acquired the paper were sufficient to put them upon notice of the invalidity of the notes; (1) because the property mortgaged was not worth the face of the notes at the time the mortgages were given, and (2) that the notes were not indorsed by the payee, but were indorsed: “H. P. Walcott, H. W. Fisher, Trustee.” The evidence shows that Mr. Sartori looked at the location of the lot covered by his mortgage at the time he purchased the note, and was satisfied that the property was good for the amount of the note at that time. There is no evidence that the bank made any examination of the property, but the officers of the bank knew the payee and her trustee and relied upon the indorsement. The evidence also shows that H. W. Fisher was a trustee for the payee, and was authorized to make the indorsements as they were made. The only duty which devolved upon the purchasers was to inquire into the regularity of the indorsement, for this was the only thing upon the face of the notes which did not appear to be regular. The notes in all other respects were regular, and the purchasers were authorized to rely upon the face of the papers unless they had notice of some irregularity. There is nothing in the evidence to show any such notice. The judgment must therefore be affirmed. Dunbar, C. J., Parker, and Gose, JJ., concur. | 08-12-2021 | [
"Mount, J. In the year 1910, the city of Seattle began proceedings to condemn certain lots for park purposes. Among these were lots 6 and 7, block 1, Columbia Terrace addition, and lots 7, block 24, of Squire’s Lakeside addition. These lots were owned by Patrick Barker, who was made a party to the condemnation proceeding. Upon a trial of the condemnation case, Mr. Barker was awarded $2,200 for the lots in Columbia Terrace addition, and $1,013 for the lots in Squire’s Lakeside: addition. After these awards were made and the money paid into court, R. Sartori, who claimed to hold a mortgage lien on lot 7, block 4, above stated, for $1,000 and interest, and the Seattle National Bank, which claimed to hold a mortgage on the other two lots for $2,200 and interest, were brought into the case upon petition of the city.",
"These parties thereupon set up their mortgages, claiming to be purchasers of the notes secured thereby, before maturity, for value, and in good faith, and petitioned the court for the application of the funds to the payment of their respective mortgage liens. Patrick Barker answered these petitions, denying execution of the instruments and alleging affirmatively that both were void for want of consideration. Upon issues thus made, the trial court was ■ of the opinion that Barker executed the notes and mortgages which were liens upon the premises covered by the respective mortgages, and that the petitioners were holders in good faith before maturity, and therefore entered orders directing the application of the funds remaining, after certain prior liens were paid, to the satisfaction of the petitioners’ claims.",
"Mr. Barker has ap*262pealed from these orders. Both cases depend upon the same state of facts, and were tried as one. Appellant argues that the notes and mortgages given for their security are void, because they were executed without consideration passing to Mr. Barker. It may be true that no consideration passed, but the court found, and the evidence is clearly sufficient to show, that Mr. Barker executed the notes and mortgages. It is not disputed that Mr. Sartori and the Seattle National Bank acquired the paper for value before maturity, without notice of any defect or want of consideration between the makers and the original payee. It is clear, therefore, that these respondents are holders in due course, provided the paper is negotiable. Gray v. Boyle, 55 Wash. 578, 104 Pac. 828, 133 Am. St. 1042. In that case the court quoted the rule in such cases from Vallett v. Parker, 6 Wend.",
"615, as follows: “Wherever the statutes declare notes void, they are, and must be so, in the hands of every holder; but where they are adjudged by the court to be so, for failure, or the illegality of the consideration, they are void only in the hands of the original parties, or those who are chargeable with, or have had notice of, the consideration.” This is decisive of that question. It is next argued that the paper was not negotiable. The notes contain similar provisions. One of them recites: “Two years after date, without grace, for value received, I promise to pay to the order of H. P. Wolcott the sum of $1,000, with interest at the rate of nine per cent per annum from date until paid.",
"Interest to be paid semi-annually, and if not so paid to bear interest after delinquency until paid at the rate of nine per cent per annum.” The notes were secured by mortgages which contain stipulations requiring the maker to pay, in addition to the principal debt and interest, such sums as the mortgagee'may be required to incur for insurance, taxes, assessments, and charges on the land, etc. It is argued, (1) that the provision in the notes renders them uncertain as to the amount *263to be paid at maturity, because, if the interest is not paid at certain fixed periods, such past-due interest bears interest; and (2) that the mortgages bearing the same date as the notes are assumed to have been made at the same time as the notes, and the two instruments must be construed as one contract, and therefore are entirely uncertain as to the amounts to be paid at maturity.",
"Our statute, at § 3392, Rem. & Bal. Code, defines a negotiable instrument, and declares that it “must contain an unconditional promise or order to pay a sum certain in money.” The next section provides: “§ 3393. The sum payable is a sum certain within the meaning of this act, although it is to be paid — (1) with interest; or (2) by stated installments; or (3) by stated installments, with a provision that upon default in payment of any installment or of interest, the whole shall become due; or . . . (5). with costs of collection or an attorney’s fee, in case payment shall not be made at maturity.” It is apparent that the notes in this case were negotiable instruments within this rule, because they were in writing signed by the maker, and contain an unconditional promise to pay a sum certain in money.",
"The fact that the interest was payable in installments does not render the notes uncertain, for the statute expressly provides that payments may be made by installments. This applies as well to interest as to the principal. The argument made by counsel, that an installment may not be paid when due and therefore the instrument would not show upon its face what amount would be due at maturity, would apply equally to the principal where payable by installments. There are cases which hold that notes like these are uncertain and therefore not negotiable, as for example, Cornish v. Woolverton, 32 Mont. 456, 81 Pac. 4, 108 Am. St. 598, and Davis v. Brady, 17 S. D. 511, 97 N. W. 719; but those were cases which were based upon statutory provisions unlike ours. Q We are satisfied that the provisions of the mortgages were not imported into the notes so as to render them non*264negotiable. The rule is well stated in Thorp v. Minedman, 123 Wis. 149, 101 N. W. 417, 107 Am. St. 1003, 68 L. R. A. 146, as follows: “The rule that instruments are to be construed together does not lead to this result.",
"Construing together simply means that, if there be any provisions in one instrument limiting, explaining, or .otherwise affecting the provisions of another, they will be given effect as between the parties themselves and all persons charged with notice, so that the intent of the parties may be carried out, and the whole agreement actually made may be effectuated. This does not mean that the provisions of one instrument are imported bodily into another, contrary to the intent of the parties. They may be intended to be separate instruments, and to provide for entirely different things, as in the very case before us. The note is given as evidence of the debt and to fix the terms and time of payment.. It is usually complete in itself — a single, absolute obligation. The purpose of the mortgage is simply to pledge certain property as security for the payment of the note. The agreements which it' contains ordinarily have no bearing on the absolute engagements ■ of the note, but simply relate to the preservation of the security given by its terms; such as the payment of taxes, the insurance of houses, and the like. While the two instruments, will be construed together whenever the question as to the nature of the actual transaction becomes material, this does not mean that the mortgage becomes incorporated into the note, nor that the collateral agreements to pay the taxes, or to insure the property, or that the mortgagee might insure in case of default by the • mortgagor and have an additional lien therefor, become parts of the note.",
"These agreements pertain to another subject, namely, the preservation intact of the mortgaged property. The promise to pay is one distinct agreement, and, if couched in proper terms, is negotiable. The pledge of real estate to secure that promise is. another distinct agreement, which ordinarily is not intended to affect in the least the promise to pay, but only to give a remedy for failure to carry out the promise to pay. The holder of the note may disregard the mortgage entirely, and sue and recover on his note; and the fact that a mortgage had been given with the note, *265containing all manner of agreements relating simply to the preservation of the security, will cut no figure.” See, also, Farmers’ Nat. Bank of Tecumseh v. McCall, 25 Old. 600, 106 Pac. 866; American Sav. Bank & Trust Co. v. Helgesen, 64 Wash. 54, 116 Pac.",
"837. It is next argued that the circumstances under which the respondents acquired the paper were sufficient to put them upon notice of the invalidity of the notes; (1) because the property mortgaged was not worth the face of the notes at the time the mortgages were given, and (2) that the notes were not indorsed by the payee, but were indorsed: “H. P. Walcott, H. W. Fisher, Trustee.” The evidence shows that Mr. Sartori looked at the location of the lot covered by his mortgage at the time he purchased the note, and was satisfied that the property was good for the amount of the note at that time. There is no evidence that the bank made any examination of the property, but the officers of the bank knew the payee and her trustee and relied upon the indorsement. The evidence also shows that H. W. Fisher was a trustee for the payee, and was authorized to make the indorsements as they were made. The only duty which devolved upon the purchasers was to inquire into the regularity of the indorsement, for this was the only thing upon the face of the notes which did not appear to be regular. The notes in all other respects were regular, and the purchasers were authorized to rely upon the face of the papers unless they had notice of some irregularity.",
"There is nothing in the evidence to show any such notice. The judgment must therefore be affirmed. Dunbar, C. J., Parker, and Gose, JJ., concur."
] | https://www.courtlistener.com/api/rest/v3/opinions/4731255/ | 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 of the Application This Office Action is in response to applicant’s arguments filed on 1/10/22. Claims 5-7, 10, 13-15, 19-21 have been cancelled. Claims 1-4, 8-9, 11-12, 16-18, 22-24 are pending and examined herein. Applicant’s arguments have been fully considered but found not persuasive. The rejection of the last Office Action is maintained for reasons of record and repeated below for Applicant’s convenience.
Claim Rejections - 35 USC § 103 The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102 of this title, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows: 1. Determining the scope and contents of the prior art. 2. Ascertaining the differences between the prior art and the claims at issue.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1-4, 8-9, 11-12, 16-18, 22-24 are rejected under 35 U.S.C. 103 as being unpatentable over Ehud Marom et al. (US Patent Application 2014/0155363 A1, of record) in view of Hampton et al. (US Patent Application 2003/0211531 A1, of record). The instant claims are directed to a method of diagnosing and treating abiraterone-acetate-glucocorticoid sensitive metastatic castration resistant prostate cancer in a patient comprising: (1) diagnosing the patient as having abiraterone-acetate-glucocorticoid sensitive metastatic castration resistant prostate cancer when a level of NPY in a biological sample is not elevated relative to a control from a patient that does not have metastatic castration resistant prostate cancer; and (2) treating the diagnosed patient with abiraterone-acetate and glucocorticoid. Ehud Marom et al. teach that abiraterone acetate, sold under the brand name Zytiga, in combination with prednisone is well-known for the treatment of patients with metastatic castration-resistant prostate cancer (CRPC) (paragraph 0002). The Examiner notes that abiraterone-acetate and glucocorticoid, as taught by Ehud Marom et al., would have to be administered either concurrently or sequentially since they are two separate therapeutically active agents taught to be administered in combination with one another. However, Ehud Marom et al. fail to disclose detecting and comparing levels of NPY in tumor cells relative to a control, and administering the active agents when these levels are not elevated.
Therefore, it would have been prima facie obvious to a person of ordinary skill in the art, prior to the effective filing date of the claimed invention, to have compared NPY levels relative to a referenced value as a diagnostic and therapeutic tool, as taught by Hampton et al., in the method of treating metastatic castration-resistant prostate cancer by administering abiraterone acetate and prednisone in a patient in need thereof, as taught by Ehud Marom et al. A person of ordinary skill in the art would have been motivated to measure and use NPY levels as a diagnostic and therapeutic tool in the treatment of metastatic castration-resistant prostate cancer because Hampton et al. teaches that high expression of NPY levels in prostate cancer cells relative to a referenced standard is indicative of both prostate cancer progression. Therefore, by definition, if the measured .
Response to Arguments Applicant argues that Hampton does not teach the utility of NPY as a biomarker for any specific sub-type of prostate cancer, least of all abiraterone acetate-glucocorticoid sensitive mCRPC. Moreover, Hampton is silent on the prior treatment status of patients. Although Hampton suggests that elevated NPY is a useful biomarker for diagnosing the existence of prostate cancer, the instant claims require that the patient have an NPY level that is not elevated relative to the control. This lack of elevation is indicative of a patient who has AA-glucocorticoid sensitive mCRPC and who would be expected to benefit from treatment with AA and glucocorticoid. Hampton provides no teaching or suggestion concerning the diagnosis and treatment of a patient who has no observed elevation of NPY.
Conclusion THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a). A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not Any inquiry concerning this communication or earlier communications from the examiner should be directed to Yong S. Chong whose telephone number is (571)-272-8513. The examiner can normally be reached Monday to Friday: 9 am to 5 pm EST. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Kortney Klinkel, can be reached at (571)-270-5239. 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).
/Yong S. Chong/Primary Examiner, Art Unit 1627 | 2022-02-17T10:27:58 | [
"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 of the Application This Office Action is in response to applicant’s arguments filed on 1/10/22. Claims 5-7, 10, 13-15, 19-21 have been cancelled. Claims 1-4, 8-9, 11-12, 16-18, 22-24 are pending and examined herein. Applicant’s arguments have been fully considered but found not persuasive. The rejection of the last Office Action is maintained for reasons of record and repeated below for Applicant’s convenience. Claim Rejections - 35 USC § 103 The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102 of this title, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.",
"The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows: 1. Determining the scope and contents of the prior art. 2. Ascertaining the differences between the prior art and the claims at issue. 4. Considering objective evidence present in the application indicating obviousness or nonobviousness. Claims 1-4, 8-9, 11-12, 16-18, 22-24 are rejected under 35 U.S.C. 103 as being unpatentable over Ehud Marom et al. (US Patent Application 2014/0155363 A1, of record) in view of Hampton et al. (US Patent Application 2003/0211531 A1, of record). The instant claims are directed to a method of diagnosing and treating abiraterone-acetate-glucocorticoid sensitive metastatic castration resistant prostate cancer in a patient comprising: (1) diagnosing the patient as having abiraterone-acetate-glucocorticoid sensitive metastatic castration resistant prostate cancer when a level of NPY in a biological sample is not elevated relative to a control from a patient that does not have metastatic castration resistant prostate cancer; and (2) treating the diagnosed patient with abiraterone-acetate and glucocorticoid. Ehud Marom et al.",
"teach that abiraterone acetate, sold under the brand name Zytiga, in combination with prednisone is well-known for the treatment of patients with metastatic castration-resistant prostate cancer (CRPC) (paragraph 0002). The Examiner notes that abiraterone-acetate and glucocorticoid, as taught by Ehud Marom et al., would have to be administered either concurrently or sequentially since they are two separate therapeutically active agents taught to be administered in combination with one another. However, Ehud Marom et al. fail to disclose detecting and comparing levels of NPY in tumor cells relative to a control, and administering the active agents when these levels are not elevated.",
"Therefore, it would have been prima facie obvious to a person of ordinary skill in the art, prior to the effective filing date of the claimed invention, to have compared NPY levels relative to a referenced value as a diagnostic and therapeutic tool, as taught by Hampton et al., in the method of treating metastatic castration-resistant prostate cancer by administering abiraterone acetate and prednisone in a patient in need thereof, as taught by Ehud Marom et al. A person of ordinary skill in the art would have been motivated to measure and use NPY levels as a diagnostic and therapeutic tool in the treatment of metastatic castration-resistant prostate cancer because Hampton et al. teaches that high expression of NPY levels in prostate cancer cells relative to a referenced standard is indicative of both prostate cancer progression. Therefore, by definition, if the measured .",
"Response to Arguments Applicant argues that Hampton does not teach the utility of NPY as a biomarker for any specific sub-type of prostate cancer, least of all abiraterone acetate-glucocorticoid sensitive mCRPC. Moreover, Hampton is silent on the prior treatment status of patients. Although Hampton suggests that elevated NPY is a useful biomarker for diagnosing the existence of prostate cancer, the instant claims require that the patient have an NPY level that is not elevated relative to the control. This lack of elevation is indicative of a patient who has AA-glucocorticoid sensitive mCRPC and who would be expected to benefit from treatment with AA and glucocorticoid. Hampton provides no teaching or suggestion concerning the diagnosis and treatment of a patient who has no observed elevation of NPY. Conclusion THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).",
"A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not Any inquiry concerning this communication or earlier communications from the examiner should be directed to Yong S. Chong whose telephone number is (571)-272-8513. The examiner can normally be reached Monday to Friday: 9 am to 5 pm EST. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Kortney Klinkel, can be reached at (571)-270-5239.",
"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). /Yong S. Chong/Primary Examiner, Art Unit 1627"
] | 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 |
Mountain Valley Pipeline, LLC
v.
Easements to Construct, etc., et al.
Exhibit 18 to Complaint Map of MVP Parcel No. NC-AL-062.000
Case 1:21-cv-00047 Document 1-18 Filed 01/15/21 Page 1 of 4 Case 1:21-cv-00047 Document 1-18 Filed 01/15/21 Page 2 of 4 Case 1:21-cv-00047 Document 1-18 Filed 01/15/21 Page 3 of 4 Case 1:21-cv-00047 Document 1-18 Filed 01/15/21 Page 4 of 4 | 2021-01-15 | [
"Mountain Valley Pipeline, LLC v. Easements to Construct, etc., et al. Exhibit 18 to Complaint Map of MVP Parcel No. NC-AL-062.000 Case 1:21-cv-00047 Document 1-18 Filed 01/15/21 Page 1 of 4 Case 1:21-cv-00047 Document 1-18 Filed 01/15/21 Page 2 of 4 Case 1:21-cv-00047 Document 1-18 Filed 01/15/21 Page 3 of 4 Case 1:21-cv-00047 Document 1-18 Filed 01/15/21 Page 4 of 4"
] | https://www.courtlistener.com/api/rest/v3/recap-documents/158149189/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Citation Nr: 0903141
Decision Date: 01/29/09 Archive Date: 02/09/09
DOCKET NO. 97-27 046A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for bilateral hearing
loss.
2. Entitlement to service connection for tinnitus.
3. Entitlement to service connection for sinusitis.
4. Entitlement to service connection for a coccyx injury,
also claimed as secondary to a service-connected cervical
strain with osteophytes at C4-7, status post C6 bilateral
foraminotomies (cervical spine disability).
5. Entitlement to service connection for dizziness, also
claimed as secondary to a service-connected cervical spine
disability.
6. Entitlement to service connection for a left shoulder
disability, also claimed as secondary to a service-connected
cervical spine disability.
7. Entitlement to an increased rating for service-connected
major depressive disorder, currently rated as 50 percent
disabling.
8. Entitlement to separate compensable rating for a cervical
spine disability.
9. Entitlement to an effective date earlier than July 1,
1996, for the award of either a 40 or 60 percent disability
rating for a service-connected cervical spine disability.
REPRESENTATION
Appellant represented by: Sandra A. Booth, Attorney
ATTORNEY FOR THE BOARD
T. Adams, Associate Counsel
INTRODUCTION
The veteran served on active duty from April 1963 to May
1966. He also had two periods of active duty for training
from March 1985 to May 1985, and in July 1985.
This case is before the Board of Veterans' Appeals (Board)
from an April 2001 rating decision of the Department of
Veterans Affairs (VA) Regional Office in St. Petersburg,
Florida, which denied a separate compensable rating for the
veteran's service-connected cervical spine disability and
granted an increased rating of 30 percent for the same with
an effective date of July 1, 1996. In a March 2003 statement
of the case, the RO affirmed the April 2001 decision and also
denied entitlement to an effective date earlier than July 1,
1996, for the veteran's service-connected spine disability.
In July 2004, the RO granted an increased disability rating
of 60 percent, effective from July 1, 1996, but that decision
did not address the issue of whether the veteran was entitled
to an effective date up to one year earlier than July 1, 1996
for the 60 percent disability rating.
In an August 2005 decision, the Board denied entitlement to a
rating higher than 60 percent, entitlement to a separate
compensable rating, and entitlement to an effective date
earlier than July 1, 1996, for the veteran's service-
connected cervical spine disability. The veteran then
appealed to the Court. In a November 2007 memorandum
decision, the Court vacated and remanded the Board decision
and remanded the claims to the Board for readjudication in
accordance with the Order.
With respect to the earlier effective date claim, the Court
remanded the issue for the Board to consider whether the
veteran was entitled to a 40 percent disability rating within
one year prior to July 1, 1996. The Court remanded the issue
of entitlement to separate ratings for cervical strain
disability for the Board to apply the version of 38 C.F.R.
§ 4.71a that is most favorable to the veteran. However, the
Court did not address the issue of whether the veteran is
entitled to a separate compensable rating for his cervical
spine disability. The Board notes at this juncture that the
Court specifically stated that as the veteran did not make an
argument concerning the Board's denial of a disability rating
greater than 60 percent after July 1, 1996, the Court deemed
that issue abandoned on appeal and it appear to the Board
that the denial of a rating in excess of 60 percent remains
in effect, and that that issue is not on appeal.
This case is also on appeal from an April 2002 rating
decision of the Department of Veterans Affairs (VA) Regional
Office (RO) in St. Petersburg, Florida, which denied
entitlement to service connection for bilateral hearing loss,
tinnitus, sinusitis; a coccyx injury, dizziness, and a left
shoulder injury; and an increased rating for the veteran's
service-connected major depressive disorder rated as 30
percent disabling. A July 2005 rating decision increased the
rating for major depressive disorder to 50 percent, effective
February 20, 2001. However, as that grant does not represent
a total grant of benefits sought on appeal, this claim for
increase remains before the Board. AB v. Brown, 6 Vet.
App. 35 (1993).
The issues of entitlement to service connection for a coccyx
injury, dizziness, and a left shoulder disability are
remanded to the RO via the Appeals Management Center in
Washington, D.C.
FINDINGS OF FACT
1. The competent medical evidence does not demonstrate that
the veteran's bilateral hearing loss disability was incurred
in or aggravated by his active service or manifested to a
compensable degree within one year following his separation
from service.
2. The competent medical evidence does not demonstrate that
the veteran's tinnitus was incurred in or aggravated by his
active service or manifested to a compensable degree within
one year following his separation from service.
3. The competent medical evidence does not demonstrate that
the veteran's sinusitis was incurred in or aggravated by his
active service.
4. The veteran's major depressive disorder is manifested by
no more than impairment of short-term memory, disturbances of
motivation and mood, and difficulty in establishing and
maintaining effective work and social relationships.
5. The competent medical evidence indicates that the
veteran's service-connected cervical spine disability is
manifested by pain, muscle spasms, cervical radiculopathy,
numbness, paresthesias, and limitation of motion of the
cervical; symptoms that are duplicative or overlapping.
6. On September 11, 1992, the RO denied a rating higher than
20 percent for cervical strain with osteophytes at C4-7,
status post C6 bilateral foraminotomies. The veteran did not
appeal that decision.
7. On July 1, 1996, the RO received a new claim from the
veteran in which he requested an increased rating for his
cervical strain with osteophytes at C4-7, status post C6
bilateral foraminotomies. Based on later dated evidence, the
RO awarded an increased rating of 60 percent for the
disability, effective from July 1, 1996.
8. There is no medical evidence of record dated earlier than
July 1, 1996, which demonstrates that the veteran would be
entitled to either a 40 or 60 percent disability rating for
his service-connected cervical spine disability.
CONCLUSIONS OF LAW
1. Service connection for bilateral hearing loss is not
warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154,
5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159,
3.303, 3.304, 3.307, 3.309, 3.385 (2008).
2. Service connection for tinnitus is not warranted. 38
U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5103, 5103A, 5107
(West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307,
3.309 (2008).
3. Service connection for sinusitis is not warranted. 38
U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5103, 5103A, 5107
(West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2008).
4. The criteria for a rating in excess of 50 percent for a
major depressive disorder have not been met. 38 U.S.C.A.
§§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1,
4.2, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9434 (2008).
5. The claim of entitlement to a separate compensable
disability rating for a cervical spine disability is without
legal merit. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R.
§§ 4.14, 4.71a, DCs 5290 (effective prior to September 26,
2003) and 5293 (effective prior to and since September 23,
2002).
6. The criteria for an effective date earlier than July 1,
1996, for the assignment of either a 40 or 60 percent
disability rating for service-connected cervical spine
disability have not been met. 38 U.S.C.A. §§ 5101, 5103,
5107, 5110 (West 2002); 38 C.F.R. § 3.400 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Upon receipt of a complete or substantially complete
application, VA must notify the claimant and any
representative of any information, medical evidence, or lay
evidence not previously provided to VA that is necessary to
substantiate the claim. This notice requires VA to indicate
which portion of that information and evidence is to be
provided by the claimant and which portion VA will attempt to
obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103,
5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. § 3.159
(2008). The notice 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; and
(3) inform the claimant about the information and evidence
the claimant is expected to provide. Pelegrini v. Principi,
18 Vet. App. 112 (2004).
In addition, the notice requirements apply to all five
elements of a service-connection claim, including: (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. Further, 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.
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
Notice errors are presumed prejudicial unless VA shows that
the error did not affect the essential fairness of the
adjudication. To overcome the burden of prejudicial error,
VA must show (1) that any defect was cured by actual
knowledge on the part of the claimant; (2) that a reasonable
person could be expected to understand from the notice what
was needed; or, (3) that a benefit could not have been
awarded as a matter of law. Sanders v. Nicholson, 487 F.3d
881 (2007).
With respect to the veteran's claim for an effective date
earlier than July 1, 1996, for the assignment of either a 40
or 60 percent disability rating for the veteran's service-
connected cervical spine disability, the RO did not provide
the veteran with any notice of the information and evidence
necessary to substantiate his claim, nor did it inform him of
any information or evidence concerning earlier effective
dates, nor of any evidence and information that she was
expected to provide. The letter notifying him of the denial
of his claim additionally did not inform him of the
requirements of 38 C.F.R. § 4.71a, Diagnostic Codes 5290 and
5293. As a result, the notice provided to the veteran failed
to satisfy all of the requirements set forth in 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b). These errors are
presumed prejudicial unless the purpose of the notice
requirements was not frustrated. The purpose of the notice
requirements is not frustrated where it is demonstrated that
(1) any defect was cured by actual knowledge on the part of
the claimant, (2) that a reasonable person could be expected
to understand from the notice what was needed, or (3) that a
benefit could not have been awarded as a matter of law.
38 U.S.C.A. § 7261(b)(2); Sanders v. Nicholson, 487 F.3d 881
(2007); Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).
In this case, the Board finds that the notice errors were not
prejudicial because benefits could not have been awarded as a
matter of law. Because the veteran is not entitled to an
effective date earlier than July 1, 1996, for the assignment
of either a 40 or 60 percent disability rating for his
service-connected cervical spine disability as a matter of
law, he was not prejudiced by the any notice errors pursuant
to 38 U.S.C.A. § 5103(a) or the applicable case law. Sanders
v. Nicholson, 487 F.3d 881 (2007) (the purpose of § 5103(a)
notice is not frustrated and the claimant is not prejudiced
when the benefit sought cannot be awarded as a matter of
law); Valiao v. Principi, 17 Vet. App. 229 (2003)
(determining that a notice error was nonprejudicial where
appellant was not entitled to benefits as a matter of law).
In this case, there is no prejudice because the competent
medical evidence does not show that the veteran was entitled
to either a 40 or 60 percent rating prior to July 1, 1996.
Thus, a remand for further development could not possibly
change the outcome of the decision, and it is not prejudicial
to proceed to finally decide the issue discussed in this
decision. Valiao v. Principi, 17 Vet. App. 229 (2003).
For an increased-compensation claim, 38 U.S.C.A. § 5103(a)
requires, at a minimum, that VA notify the claimant that, to
substantiate a claim, the medical or lay evidence must show a
worsening or increase in severity of the disability, and the
effect that such worsening or increase 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
demonstrating a noticeable worsening or increase in severity
of the disability and the effect that worsening has on
employment and daily life (such as a specific measurement or
test result), VA must provide at least general notice of that
requirement. VA 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.
In May 2008, the veteran was notified of the evidence needed
to support his increased rating claim pursuant to Vazquez-
Flores v. Peake, 22 Vet. App. 37 (2008).
In April 2001, prior to the initial adjudication of the
claims, the veteran was notified of the evidence not of
record that was necessary to substantiate the claims. He was
told that he needed to provide the names of persons, agency,
or company who had additional records to help decide his
claims. He was informed that VA would attempt to obtain
review his claims and determine what additional information
was needed to process his claims, schedule a VA examination
if appropriate, obtain VA medical records, obtain service
records, and obtain private treatment reports as indicated.
There is no allegation from the veteran that he has any
evidence in his possession that is needed for a full and fair
adjudication of these claims.
While the veteran was not given notice of what type of
information and evidence he needed to substantiate a claim
for an increased rating, there is no prejudice in issuing a
final decision because the preponderance of the evidence is
against the claims for service connection. Any questions as
to the appropriate disability rating or effective date to be
assigned are moot. Dingess/Hartman v. Nicholson, 19 Vet.
App. 473 (2006).
Therefore, the Board finds that adequate notice was provided
to the appellant prior to the transfer and certification of
the veteran's case to the Board and complied with the
requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R.
§ 3.159(b).
Next, the statutes and regulations require that VA make
reasonable efforts to assist the claimant in obtaining
evidence necessary to substantiate a claim. VA's duty to
assist includes (1) obtaining records not in the custody of a
federal department or agency; (2) obtaining records in the
custody of a federal department or agency; (3) obtaining
service medical records or other records relevant to active
duty and VA or VA-authorized medical records; and, (4)
providing medical examinations or obtaining medical opinions
if necessary to decide the claim. 38 C.F.R. § 3.159(c).
VA has a duty to obtain a medical examination if the evidence
establishes (1) a current disability or persistent or
recurrent symptoms of a disability, (2) an in-service event,
injury, or disease, (3) current disability may be associated
with the in-service event, and (4) there is insufficient
evidence to make a decision on the claim. McLendon v.
Nicholson, 20 Vet. App. 79 (2006).
In this case, the veteran's service medical records and all
identified and authorized post-service medical records
relevant to the issues on appeal have been requested or
obtained. VA examinations pertinent to the veteran's claims
for service connection for sinusitis and rhinitis, tinnitus,
a right shoulder disability, and a facial and scalp rash were
obtained in July 2000, August 2000, and September 2000. VA
examinations with respect to the veteran's increased rating
claim were obtained in April 2001 and September 2007.
Therefore, the available records and medical evidence have
been obtained in order to make adequate determinations as to
these claims.
In sum, the Board finds the duty to assist and duty to notify
provisions have been fulfilled and no further action is
necessary under those provisions.
Service Connection
A claimant with active service may be granted service
connection for a disease or disability either incurred in or
aggravated by active military service. 38 U.S.C.A. §§ 1110,
1131; 38 C.F.R. §§ 3.303, 3.304. Service incurrence will be
presumed for certain chronic diseases, including organic
diseases of the nervous system such as tinnitus and
sensorineural hearing loss if manifest to a degree of 10
percent or more within one year after active service.
38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307,
3.309.
Active military, naval, or air service includes any period of
active duty training during which the individual concerned
was disabled or died from a disease or injury incurred in or
aggravated in line of duty, or any period of inactive duty
training during which the individual concerned was disabled
or died from injury incurred in or aggravated in line of
duty. 38 U.S.C.A. § 101(21), (24) (West 2002); 38 C.F.R.
§ 3.6(a), (d) (2008). Active duty training is, inter alia,
full-time duty in the Armed Forces performed by Reserves for
training purposes. 38 C.F.R. § 3.6(c)(1) (2008). Service
connection may be granted for disability resulting from
disease or injury incurred or aggravated while performing
active duty training, or from injury incurred or aggravated
while performing inactive duty training. 38 U.S.C.A.
§§ 101(24), 106, 1131 (West 2002). However, presumptive
periods do not apply to active duty training or inactive duty
training. Biggins v. Derwinski, 1 Vet. App. 474 (1991).
The disease entity for which service connection is sought
must be chronic as opposed to merely acute and transitory in
nature. For the showing of chronic disease in service, there
is required a combination of manifestations sufficient to
identify the disease entity and sufficient observation to
establish chronicity at the time as distinguished from merely
isolated findings or a diagnosis including the word chronic.
Continuity of symptomatology is required where the condition
noted during service is not, in fact, shown to be chronic or
where the diagnosis of chronicity may be legitimately
questioned. Where the fact of chronicity in service is not
adequately supported then a showing of continuity after
discharge is required to support the claim. 38 C.F.R.
§ 3.303(b).
Service connection may be granted for any disease diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
Service connection generally requires evidence of a current
disability with a relationship or connection to an injury or
disease or some other manifestation of the disability during
service. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000);
Mercado-Martinez v. West, 11 Vet. App. 415 (1998); Cuevas v.
Principi, 3 Vet. App. 542 (1992). Where the determinative
issue involves medical causation or a medical diagnosis,
there must be competent medical evidence to the effect that
the claim is plausible. Lay assertions of medical status do
not constitute competent medical evidence. Espiritu v.
Derwinski, 2 Vet. App. 492 (1992).
The record before the Board contains service medical records
and post-service medical records, which will be addressed as
pertinent. Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (a
discussion of all evidence by the Board is not required when
the Board has supported its decision with thorough reasons
and bases regarding the relevant evidence).
Bilateral Hearing Loss and Tinnitus
Based on a thorough review of the record, the Board finds
that the preponderance of the evidence is against the
veteran's claims for service connection for a bilateral
hearing loss and tinnitus.
Applicable regulations provide that impaired hearing shall be
considered a disability when the auditory thresholds in any
of the frequencies of 500, 1000, 2000, 3000, and 4000 Hz are
40 decibels or greater; the thresholds for at least three of
these frequencies are 26 decibels or greater; or when speech
recognition scores are 94 percent or less. 38 C.F.R. § 3.385
(2008).
The veteran's active duty service medical records contain
various audiology examinations, but are void of findings,
complaints, symptoms, or diagnoses of a bilateral hearing
loss or tinnitus. On entrance examination in February 1963,
pure tone threshold, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
10
5
-5
0
-5
LEFT
-5
-5
-5
-5
0
On separation examination in January 1966, pure tone
thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
10
10
10
5
0
LEFT
10
10
10
5
0
Service medical records from the veteran's period of active
duty for training are also void of findings, complaints,
symptoms, or diagnoses of bilateral hearing loss or tinnitus.
VA medical records dated in March 2000 reflect complaints of
tinnitus.
VA medical records dated in March 2000 reflect complaints of
bilateral hearing loss.
The veteran was afforded a VA audio examination in August
2001. The examiner noted that a January 1966 audiogram
reflected normal hearing bilaterally. He complained of
little difficulty hearing. He felt that he might have
selective hearing and that his hearing difficulties were more
related to an inability to pay attention to speakers. He
noted a history of military noise exposure while on a rifle
team. Additionally, he reported testing engines, while in
the military without the benefit of ear protection. He had a
significant occupational noise exposure from his work as an
auto mechanic for approximately fifteen years. Additionally,
he reported a history of recreational noise exposure, but
reported that he always used ear protection when hunting. On
examination, pure tone air conduction thresholds in the right
ear at 1000, 2000, 3000, and 4000 Hertz were 10, 10, 35, and
55, respectively, with an average of 28 decibels. The pure
tone air conduction thresholds in the left ear at the same
frequencies were 5, 10, 45, and 55 decibels, respectively,
with an average of 29 decibels. He was diagnosed with
essentially normal hearing through 2000 Hertz sloping to a
mild to moderate sensorineural hearing loss bilaterally. The
examiner noted that he reported significant occupational
noise exposure while being an automobile mechanic for over
fifteen years and therefore, the origin of his hearing loss
most likely occurred from the occupational noise exposure.
During a VA ear disease examination in March 2005 for an
assessment of vertigo, the veteran presented with complaints
of a ten-year history of tinnitus and complained of
associated hearing loss. It was noted that he never used
hearing devices and to spoken word he seemed to be very
adequate and did not relate to any injury to the ear. He
indicated that he was a member of a rifle team during
service, but that the noise trauma did not seem to be
excessive. He also indicated that he worked as a boat
mechanic with engines during which he wore earplugs. He
failed to find any treatment to abate the tinnitus and
indicated that he did not require hearing aids.
The veteran's post-service medical records are negative for
any diagnoses of bilateral hearing loss or tinnitus within
one year of separation from active duty. In fact, the
veteran's post-service medical records are negative for any
diagnoses of a bilateral hearing loss or tinnitus until many
years after separation from active service. A significant
lapse in time between service and post-service medical
treatment may be considered as part of the analysis of a
service connection claim. Maxson v. Gober, 230 F.3d 1330
(Fed. Cir. 2000). Further, while the competent medical
evidence shows that the veteran has bilateral hearing loss
and tinnitus, the record includes a competent medical opinion
which finds that his hearing loss is most likely due to
occupational noise exposure. There is no competent medical
opinion that relates his hearing loss or tinnitus to his
service. In addition, the service medical records are void
of any findings, symptoms, complaints, or diagnoses
attributable to a hearing loss or tinnitus. In the absence
of competent medical evidence linking any current bilateral
hearing loss or tinnitus to service, service connection must
be denied.
The Board recognizes the veteran's contentions as to the
diagnoses and relationship between his service and the
claimed disabilities. Lay statements are considered to be
competent evidence when describing the features or symptoms
of an injury or illness. Falzone v. Brown, 8 Vet. App. 398
(1995). As a layperson, however, he is not competent to
provide an opinion requiring medical knowledge, such as a
diagnosis, or an opinion relating to medical causation and
etiology that requires a clinical examination by a medical
professional. Espiritu v. Derwinski, 2 Vet. App. 492 (1992).
The Board acknowledges that the veteran is competent to give
evidence about what he experienced. Layno v. Brown, 6 Vet.
App. 465 (1994). Competency, however, must be distinguished
from weight and credibility, which are factual determinations
going to the probative value of the evidence. Rucker v.
Brown, 10 Vet. App. 67 (1997). As a result, his assertions
do not constitute competent medical evidence that his current
bilateral hearing loss or tinnitus are a result of his
service.
Accordingly, the Board finds that the preponderance of the
evidence is against the veteran's claims. The evidence does
not support a finding that any current bilateral hearing loss
or tinnitus were incurred in or aggravated by service, or
that any bilateral hearing loss or tinnitus manifested to a
compensable degree within one year following the veteran's
separation from active service. Therefore, service
connection for a bilateral hearing loss and tinnitus must be
denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.
App. 49 (1990).
Chronic Sinusitis
Based on a thorough review of the record, the Board finds
that the preponderance of the evidence is against the
veteran's claim for service connection for chronic sinusitis.
The veteran's active duty service medical records include
reports of February 1963 enlistment and January 1966
separation examinations which reflect normal clinical
evaluations of the sinuses. In reports of medical history
dated in February 1963 and January 1966, he denied having
sinusitis.
Service medical records from the veteran's period of active
duty for training include a March 1985 evaluation for allergy
symptoms. He described an eight to nine year history of
itching and tearing eyes, nasal congestion with rhinorrhea,
sinus headache, and occasional wheezing. Upon examination,
the impression was perennial allergic rhinoconjunctivitis
with documented allergies to mites, cat dander, Greerdust,
molds, and to a lesser extent trees, weeds, and grasses; and
an impression of right and left maxillary sinusitis. In May
1985, the impression was resolving maxillary sinusitis.
VA medical records dated in August 1990 reflect the veteran's
complaints of sinusitis. In October 1992, he was treated for
a sinus infection.
The veteran was afforded a VA nose, sinus, pharynx, and
larynx examination in August 2001. He indicated that his
condition began during service in 1985 during which time he
was exposed to extensive pigeon droppings over a twelve week
period while working in an office. Since that time, his
sinuses had been extremely sensitive. After an examination,
the examiner opined that it was unlikely that he had chronic
sinusitis, but more likely simple allergic rhinitis. The
examiner further opined that it was very unlikely that his
allergic rhinitis was service-connected and that it did not
relate to sensitization from exposure to pigeon droppings as
in the history of the present illness.
Recent VA treatment records July 2006 to January 2009 do not
reflect any treatment for sinusitis or any other sinus-
related condition.
While the competent medical evidence shows that the veteran
has been treated for sinusitis and allergic rhinitis, the
record includes a competent medical opinion which finds that
it is unlikely that he had chronic sinusitis and unlikely
that his allergic was related to his service. In the absence
of competent medical evidence linking any current sinusitis
to his service, service connection must be denied.
The Board recognizes the veteran's contentions as to the
diagnosis and relationship between his service and the
claimed disability. Lay statements are considered to be
competent evidence when describing the features or symptoms
of an injury or illness. Falzone v. Brown, 8 Vet. App. 398
(1995). As a layperson, however, he is not competent to
provide an opinion requiring medical knowledge, such as a
diagnosis, or an opinion relating to medical causation and
etiology that requires a clinical examination by a medical
professional. Espiritu v. Derwinski, 2 Vet. App. 492 (1992).
The Board acknowledges that the veteran is competent to give
evidence about what he experienced. Layno v. Brown, 6 Vet.
App. 465 (1994). Competency, however, must be distinguished
from weight and credibility, which are factual determinations
going to the probative value of the evidence. Rucker v.
Brown, 10 Vet. App. 67 (1997). As a result, his assertions
do not constitute competent medical evidence that his current
sinus condition is a result of his service.
Accordingly, the Board finds that the preponderance of the
evidence is against the veteran's claim. The evidence does
not support a finding that any current sinus condition was
incurred in or aggravated by service. Therefore, service
connection for sinusitis must be denied. 38 U.S.C.A.
§ 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Increased Rating
Disability ratings are determined by applying the criteria
set forth in the VA Schedule for Rating Disabilities found in
38 C.F.R. Part 4. The Board attempts to determine the extent
to which the veteran's service-connected disability adversely
affects the ability to function under the ordinary conditions
of daily life, and the assigned rating is based, as far as
practicable, upon the average impairment of earning capacity
in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1,
4.10 (2008).
Where there is a question as to which of two ratings shall be
applied, the higher rating 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 (2008). The Board will also consider
entitlement to staged ratings to compensate for times since
filing the claim when the disability may have been more
severe than at other times during the course of the claim on
appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v.
Mansfield, 21 Vet. App. 505 (2008).
Under the criteria of 38 C.F.R. § 4.130, Diagnostic Code
9434, a 50 percent disability rating is warranted for
occupational and social impairment with reduced reliability
and productivity due to such symptoms as: flattened affect;
circumstantial, circumlocutory, or stereotyped speech; panic
attacks more than once a week; difficulty in understanding
complex commands; impairment of short- and long-term memory
(e.g., retention of only highly learned material, forgetting
to complete tasks); impaired judgment; impaired abstract
thinking; disturbances of motivation and mood; and difficulty
in establishing and maintaining effective work and social
relationships.
A 70 percent rating is assigned when the psychiatric
condition produces occupational and social impairment, with
deficiencies in most areas, such as work, school, family
relations, judgment, thinking, or mood, due to such symptoms
as: suicidal ideation; obsessional rituals which interfere
with routine activities; speech intermittently illogical,
obscure, or irrelevant; near-continuous panic or depression
affecting the ability to function independently,
appropriately and effectively; impaired impulse control (such
as unprovoked irritability with periods of violence); spatial
disorientation; neglect of personal appearance and hygiene;
difficulty in adapting to stressful circumstances (including
work or a work-like setting); and an inability to establish
and maintain effective relationships.
A 100 percent rating is assigned when there is total
occupational or social impairment due to such symptoms as:
gross impairment in thought processes or communication;
persistent delusions or hallucinations; grossly inappropriate
behavior; persistent danger of hurting self or others;
intermittent inability to perform activities of daily living
(including maintenance of minimal personal hygiene); and
disorientation to time or place, memory loss for names of
close relatives, own occupation, or own name.
Based on a thorough review of the record, the Board finds
that the preponderance of the evidence is against the
veteran's claim for a rating in excess of 50 percent for
major depressive disorder at any time during the pendency of
this appeal.
VA medical records dated in July 2000 indicate that on mental
status examination, the veteran was alert, oriented, and
competent. He was not suicidal. He was diagnosed with
depression and assigned a Global Assessment of Functioning
(GAF) score of 50. In January 2001, he was depressed as a
result of orthopedic pain. He was alert, oriented, and
competent and was not suicidal. His diagnosis and GAF score
remained unchanged.
According to the American Psychiatric Association's
Diagnostic and Statistic Manual of Mental Disorders, Fourth
Edition (DSM-IV), a Global Assessment of Functioning (GAF)
score of 31-40 indicates some impairment in reality testing
or communication (e.g., speech is at times illogical,
obscure, or irrelevant) or major impairment in several areas,
such as work or school, family relations, judgment, thinking,
or mood (e.g., depressed man avoids friends, neglects family,
and is unable to work; child frequently beats up younger
children, is defiant at home, and is failing in school). A
GAF of 41-50 indicates serious symptoms (e.g., suicidal
ideation, severe obsessional rituals, frequent shoplifting)
or any serious impairment in social, occupational, or school
functioning (e.g., no friends, unable to keep a job). A GAF
score of 51-60 indicates moderate symptoms (e.g., flat affect
and circumstantial speech, occasional panic attacks) or
moderate difficulty in social, occupational, or school
functioning (e.g., few friends, conflicts with peer or co-
workers). A GAF score of 61 to 70 reflects some mild
symptoms (e.g., depressed mood and mild insomnia) or some
difficulty in social, occupational, or school functioning
(e.g., occasional truancy, or theft within the household),
but generally functioning pretty well, and having some
meaningful interpersonal relationships.
The veteran underwent a VA mental disorders examination in
April 2001. He indicated that when he took pain medication
for his service-connected cervical spine disability his work
performance was affected and that when he did not take his
medication, his anger level increased. He alleged that he
was fired when he became angry and grabbed another employee
by the throat. It was noted that he had not worked for three
years. On mental status exam, he was well-kept and cleanly
shaven. He was friendly, open, and conversational with a
sense of humor and appeared have above-average intelligence.
He denied current suicidal or homicidal thoughts. He was
well-oriented, alert, and logical. There was no indication
of any psychotic processes on examination. He reported that
he had short-term memory problems, a depressed mood, anxiety,
nightmares, and weight gain. He was diagnosed with a pain
disorder with both psychological factors and a general
chronic medical condition. He had a GAF score of 60. He had
moderate difficulty in his social and marital relationships
due to low frustration tolerance, increased anger, low self-
esteem, and decreased sex drive. He admitted that his pain
level increased due to psychosocial factors. The examiner
opined that he did not meet the diagnostic criteria for a
diagnosis of major depressive disorder, because the severity
of his depressive symptoms did not warrant that diagnosis.
Instead, his low mood appeared to be directly related to his
pain tolerance and influenced the subjective level of his
pain.
VA medical records dated in March 2002 reflect that the
veteran was doing well and received medication for treatment
of his disability. On examination, he was oriented time
three. Language and speech were goal-directed. Mood and
affect were normal and euthymic. He had no thought disorder
and associations were intact. Abnormal thoughts and
apophanous phenomena, perceptual distortions, and suicidal
ideations were absent. A GAF score was not provided. In
September 2002, he indicated that he was not doing very well
and had a variety of complaints. On examination he was
oriented times three and cognitively intact. Language and
speech were clear and goal-directed. Mood and affect were
normal and euthymic and associations were intact. Abnormal
thoughts, apophanous phenomena, and suicidal ideation were
absent. The impression was depression. A GAF score was not
provided.
VA medical records dated in January 2004 reflect that the
veteran fell and injured his coccyx and was irritable because
of his pain. On examination, he was casually dressed and
neatly groomed. His mood was irritable with an appropriate
affect. Speech was goal-directed. He was oriented and his
memory was intact. He denied suicidal and homicidal
ideations and intent. Insight and judgment were fair. He
was diagnosed with cyclothymia/dysthymia with a GAF score of
50. In February 2006, he refused psychotherapy and his wife
felt that he needed a mood stabilizer. He was casually
dressed and neatly groomed. Attention and concentration were
fair. Speech was goal directed, logical, and relevant. He
denied suicidal or homicidal intent or ideation. Insight and
judgment were fair. He was diagnosed with cyclothymia,
dysthymia and assigned a GAF score of 60.
The veteran was afforded a VA mental disorders examination in
September 2007. He complained that he became depressed while
attempting to help put up a fence and was physically unable
to do so because of the heat. He estimated that the
depression usually lasted four to five hours. He denied
experiencing anhedonia, stating that he would enjoy several
activities if he were in better health. There were no signs
or symptoms of mania. On examination, he was clean, neatly
groomed, and appropriately and casually dressed. Speech was
unremarkable, spontaneous, clear, and coherent. He was
attentive to the examiner. He affect was constricted and he
described his mood as irritated. He was oriented to person
and place, but not to time. His thought process and content
were unremarkable and he had no delusions or hallucinations.
He had no inappropriate behavior, obsessive or ritualistic
behavior, panic attacks, or homicidal or suicidal thoughts.
His impulse control was fair without episodes of violence.
He was able to maintain the minimum personal hygiene.
Remote, recent, and immediate memory were normal. It was
noted that he retired in 1998 due to his cervical condition.
He was diagnosed with major depressive disorder and assigned
a GAF score of 58. The examiner indicated that there was no
total occupational and social impairment due to mental
disorder signs and symptoms. There was no reduced reliability
and productivity due to mental disorder symptoms. There was
an occasional decrease in work efficiency and intermittent
periods of inability to perform occupational tasks due to
mental disorder signs and symptoms, but with generally
satisfactory functioning (routine behavior, self-care, and
conversation normal).
The Board finds that an evaluation in excess of 50 percent
for the veteran's service-connected major depressive disorder
is not warranted at any time during the pendency of this
appeal. The competent medical evidence shows that the
veteran's psychiatric disability was serious in July 2000 as
evidenced by a GAF score of 50. However, he was not suicidal
and there is no evidence of severe obsessional rituals or
serious impairment in social or occupational functioning. In
April 2001, his psychiatric disability had improved with a
GAF score of 60 indicative of only moderate symptoms. In
January 2004, he had a GAF score of 50 indicative of serious
symptoms. However, that was inconsistent with his denial of
suicidal ideations. In February 2006 and September 2007, he
had GAF scores of 60 and 58, respectively, which are
indicative of moderate symptoms. From July 2000 to September
2007, the veteran denied having any suicidal or homicidal
ideations, speech was goal-directed, insight and judgment
were fair, and he was well-oriented and alert. He denied
having any delusions and had only impairment of short-term
memory. There was no evidence of any inappropriate or
obsessive or ritualistic behavior. While he reported anger
management problems, there is no evidence of an impaired
impulse control. In addition, during the September 2007
examination the examiner noted that there was no total
occupational and social impairment due to the mental disorder
signs and symptoms. There was occasional decrease in work
efficiency and intermittent periods of inability to perform
occupational tasks due to mental disorder signs and symptoms,
but with generally satisfactory functioning. Here, the
evidence does not support a finding of any impairment caused
by suicidal ideation or obsessional rituals; speech
intermittently illogical, obscure, or irrelevant; near-
continuous panic or depression; impaired impulse control;
spatial disorientation; neglect of personal appearance and
hygiene; difficulty in adapting to stressful circumstances;
or inability to establish and maintain effective
relationships. Therefore, the Board finds that the competent
medical evidence does not support a rating greater than 50
percent for veteran's service-connected major depressive
disorder at any time during the pendency of this appeal.
The Board has also considered whether the record raises the
matter of an extra-schedular rating under 38 C.F.R.
§ 3.321(b)(1). In exceptional cases where schedular
evaluations are found to be inadequate, consideration of an
extra-schedular evaluation commensurate with the average
earning capacity impairment due exclusively to the service-
connected disability or disabilities may be made. The
governing norm in an exceptional case is a finding that the
case presents such an exceptional or unusual disability
picture with such related factors as marked interference with
employment or frequent periods of hospitalization as to
render impractical the application of the regular schedular
standards. 38 C.F.R. § 3.321(b)(1). There is no evidence
that the veteran has been hospitalized for treatment of his
psychiatric disability. Neither does the record reflect
marked interference with his employment solely due to his
service-connected disability. Rather, on VA examination in
April 2001 the veteran indicated that when he took pain
medication for his service-connected cervical spine
disability his work performance was affected and on VA
examination in September 2007 it was noted that he retired in
1998 due to his cervical spine disability. Here, the record
does not support a finding that the veteran is unemployed due
solely to his major depressive disorder. For these reasons,
the Board finds that referral for consideration of the
assignment of an extraschedular rating for this disability is
not warranted.
The Board recognizes the veteran's contentions as to the
severity of his major depressive disorder. Lay statements
are considered to be competent evidence when describing the
features or symptoms of an injury or illness. Falzone v.
Brown, 8 Vet. App. 398 (1995). As a layperson he is not
competent to provide opinions requiring medical knowledge,
such as whether the current symptoms satisfy diagnostic
criteria. Espiritu v. Derwinski, 2 Vet. App. 492 (1992).
The Board acknowledges that the veteran is competent to give
evidence about what he experienced. Layno v. Brown, 6 Vet.
App. 465 (1994). Competency must be distinguished from
weight and credibility, which are factual determinations
going to the probative value of the evidence. Rucker v.
Brown, 10 Vet. App. 67 (1997). Thus, his assertions are not
competent medical evidence that provides a basis for the
assignment of a rating in excess of 50 percent for a major
depressive disorder.
Accordingly, the Board finds that the preponderance of
evidence is against the veteran's claim for a rating in
excess of 50 percent for a major depressive disorder and his
claim is therefore denied. 38 U.S.C.A. § 5107(b); Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
Separate Rating for a Cervical Spine Disability
Disability ratings are determined by applying the criteria
set forth in the VA Schedule for Rating Disabilities (Rating
Schedule) found in 38 C.F.R. Part 4. The Board attempts to
determine the extent to which the veteran's service-connected
disability adversely affects the ability to function under
the ordinary conditions of daily life, and the assigned
rating is based, as far as practicable, upon the average
impairment of earning capacity in civil occupations.
38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10 (2008).
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. 38 C.F.R. § 4.7 (2008).
The Board will also consider entitlement to staged ratings to
compensate for times since filing the claim when the
disability may have been more severe than at other times
during the course of the claim on appeal. Fenderson v. West,
12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505
(2007).
The veteran contends that he is entitled to separate ratings
for his service-connected cervical spine disability under DC
5290 (effective prior to September 26, 2003) and DC 5293
(effective prior to and since September 23, 2002).
Specifically, he contends that he is entitled to separate
ratings for his cervical spine disability because he has
suffers from separate and distinct manifestations from the
same disability, including radiculopathy, muscle spasms,
pain, and numbness.
The veteran's cervical spine disability has been rated as 60
percent disabling under Diagnostic Codes 5290-5293 which
encompasses the criteria for ratings based on intervertebral
disc syndrome and limitation of cervical spine motion.
38 C.F.R. § 4.71a (2002, 2003). Hyphenated diagnostic codes
are used when a rating under one diagnostic code requires the
use of an additional diagnostic code to identify the basis
for the evaluation assigned. The additional code is shown
after the hyphen. 38 C.F.R. § 4.27 (2008).
Prior to September 26, 2003, a 10 percent rating was
warranted for slight limitation of motion of the cervical
spine, 20 percent rating was warranted for moderate
limitation of motion of the cervical spine, and a 30 percent
rating was warranted for severe limitation of motion of the
cervical spine. 38 C.F.R. § 4.71a, DC 5290 (2003).
Prior to September 23, 2002, intervertebral disc syndrome
(IDS) warranted a 10 percent rating when mild; a 20 percent
rating when moderate, with recurrent attacks; and a 40
percent rating when severe, with recurring attacks with
intermittent relief. Finally, a 60 percent rating was
warranted for IDS that was pronounced, with persistent
symptoms compatible with sciatic neuropathy with
characteristic pain and demonstrable muscle spasm, absent
ankle jerk, or other neurological findings appropriate to the
site of the diseased disc, intermittent relief. 38 C.F.R.
§ 4.71a, DC 5293 (2002).
Under DC 5293, the regulations for evaluation of IDS
effective September 23, 2002, and prior to September 26,
2003, IDS could be rated either on the basis of the total
duration of incapacitating episodes over the past 12 months
or by combining under 38 C.F.R. § 4.25 separate evaluations
of the chronic orthopedic and neurological manifestations,
along with evaluations for all other disabilities, whichever
method results in the higher evaluation. A 40 percent rating
is warranted where the evidence reveals incapacitating
episodes having a total duration of at least four weeks but
less than six during the past 12 months. A 60 percent rating
is warranted where the evidence reveals incapacitating
episodes having a total duration of at least six weeks during
the past 12 months. Incapacitating episodes are defined as
requiring bed rest prescribed by a physician and treatment by
a physician. The revised regulations effective September 26,
2003, provide that intervertebral disc syndrome is evaluated
either under the general rating formula or under the formula
for rating IDS based on incapacitating episodes, whichever
method results in the higher evaluation when all disabilities
are combined under 38 C.F.R. § 4.25.
As an initial matter, the Board finds that diagnostic codes
5290 (effective prior to September 26, 2003), or 5293
(effective prior to September 23, 2002 and since September
23, 2002) are equally unfavorable to the veteran's claim
because application of none of the pertinent criteria results
in a finding that a separate compensable rating for his
service-connected cervical spine disability is warranted.
The record before the Board contains service medical records
and post-service medical records, which will be addressed as
pertinent. Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (a
discussion of all evidence by the Board is not required when
the Board has supported its decision with thorough reasons
and bases regarding the relevant evidence).
The Board now turns to the issue of whether the veteran is
entitled to a separate compensable rating for a service-
connected cervical spine disability.
Based on a thorough review of the record, the Board finds
that the preponderance of the evidence is against the
veteran's claim for service connection for a separate
compensable rating for a service-connected cervical spine
disability.
VA treatment records dated from July 1995 to February 2008,
private medical records dated from April 1997 to March 2001,
VA examinations in September 1996, April 1997, March 1998,
September 2000, August 2001, September 2002, and May 2004
show that the veteran's cervical spine disability is
manifested by pain, muscle spasms, cervical radiculopathy,
numbness, paresthesias, and limitation of motion of the
cervical spine. On VA spine examination in September 2002,
the examiner diagnosed the veteran with cervical degenerative
disc disease without significant radiculopathy with
associated severe paraspinal muscle spasms and opined that
there were no spinal disorders that were unrelated to his
service-connected disability. Here, the competent medical
evidence shows that the manifestations of the veteran's
cervical spine disability are duplicative or overlapping.
While the veteran argues that he is entitled to separate
ratings for degenerative disc disease and limitation of
motion of his service-connected cervical spine disability the
Board finds that separate ratings under DCs 5290 and 5293 are
not warranted.
In a precedential opinion, the VA General Counsel has
determined that Diagnostic Code 5293 (interveterbral disc
syndrome) involves a loss of range of motion because the
nerve defects and resulting pain associated with injury to
the sciatic nerve may cause limitation of motion of the
cervical, thoracic, or lumbar veterbrae. VAOPGCREC 36-97
(Dec. 12, 1997), 63 Fed. Reg. 31262 (1998). In pertinent
part, VA General Counsel stated that:
DC 5293, codified at 38 C.F.R. § 4.71a, describes
disability due to IDS in terms of "symptoms compatible
with sciatic neuropathy with characteristic pain and
demonstrable muscle spasm, absent ankle jerk, or other
neurological findings appropriate to site of diseased
disc."
IDS is a group of signs and symptoms due to nerve root
irritation that commonly includes neck and arm or hand
pain the case of cervical disc disease. It may also
include scoliosis, paravertebral muscle spasm,
limitation of motion of the spine, tenderness over the
spine and neurologic findings corresponding to the level
of the disc." Id 2.
VAOPGCREC 36-97 (Dec. 12, 1997), Comment 2.
The VA General Counsel further stated that:
In evaluating a veteran's disability under DC 5293 based
upon symptomatology which includes limitation of motion,
the rating schedule indicates that consideration must be
given to 38 C.F.R. §§ 4.40 and 4.45, notwithstanding the
maximum rating available under a different diagnostic
code. Section 4.14 of title 38, Code of Federal
Regulations, state that the evaluation of the same
disability or manifestation under various diagnoses is
to be avoided. See also VAOPGCPREC 23-97, para 3. The
CVA has also indicated that the same symptomatology for
a particular condition should not be evaluated under
more than one diagnostic code. Esteban v. Brown, 6 Vet.
App. 259, 261-62 (1994). Section 4.7 of title 38, Code
of Federal Regulations, states that, "[w]here 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."
VAOPGCREC 36-97 (Dec. 12, 1997), Comment 5.
In conclusion, the VA General Counsel held that Diagnostic
Code (DC) 5293, intervertebral disc syndrome (IDS), involves
loss of range of motion because the nerve defects and
resulting pain associated with injury to the sciatic nerve
may cause limitation of motion of the cervical, thoracic, or
lumbar veterbrae.
The Board notes that the veteran's cervical spine disability
is rated as 60 percent disability which is the highest rating
for limitation of motion of the cervical spine. Where a
disability has been rated at the maximum level provided by
the diagnostic code under which it is rated, the
considerations of additional function loss due to pain do not
apply. VAOPGCPREC 36-97, 63 Fed. Reg. 31262 (1998), citing
Johnston v. Brown, 10 Vet. App. 80 (1997) (remand for
consideration of functional loss of range of motion of a
wrist due to pain inappropriate where rating currently
assigned for limitation of motion was maximum available under
the applied diagnostic code).
Diagnostic Code 5293 contemplates cervical radiculopathy
affecting the upper extremities, such as radicular pain with
functional limitations, muscle spasms, numbness,
paresthesias, and limitation of motion of the cervical spine.
Assigning separate ratings for the cervical spine disability
under Diagnostic Code 5290 and the neurologic aspects thereof
under Diagnostic Code 5293, would constitute pyramiding,
since the rating assigned under Diagnostic Code 5293
contemplates musculoskeletal as well as neurologic aspects of
the disability. In short, the 60 percent disability rating
contemplates musculoskeletal aspects of the cervical spine
disability with associated radiculopathy of the upper
extremities (particularly the effect neurologically-caused
pain has upon movement of the cervical spine, muscle spasms,
limitation of motion), as well as the neurologic aspects of
cervical spine disability (specifically the effect of
cervical radiculopathy affecting the upper extremities,
including numbness and paresthesias); and these are
duplicative of or overlap with each other such that to assign
separate ratings under Codes 5290 and 5293 would be
pyramiding. When symptoms of a disability are duplicative or
overlapping with the symptomatology of another condition,
there is no authority for the assignment of separate ratings
under each of the codes; a single rating must be assigned.
Esteban v. Brown, 6 Vet. App. 259; VAOPGCPREC 23-97 (July 1,
1997), 62 Fed. Reg. 63604 (1997); VAOPGCREC 9-98 (August 14,
1998), 63 Fed. Reg. 56704 (1998).
The Board finds that the veteran is not entitled to separate
rating for his service-connected cervical spine disability
under DCs 5290 (effective prior to September 26, 2003) and
5293 (effective prior to and since September 23, 2002)
because the assignment of separate ratings would amount to
pyramiding. Although the veteran asserts that he is entitled
to separate ratings for his cervical spine disability, the
Board is bound by the precedent opinions of VA's General
Counsel that prohibit the assignment of separate ratings for
manifestations of his cervical spine disability. 38 U.S.C.A.
§ 7104(c) (West 2002); 38 C.F.R. §§ 19.5, 20.101(a) (2008).
Accordingly, the Board finds that a separate rating for a
cervical spine disability is not warranted.
In a claim such as this, where the law and not the evidence
is dispositive, the claim must be denied because of the lack
of legal entitlement under the law. Sabonis v. Brown, 6 Vet.
App. 426 (1994). Therefore, the veteran's claim for a
separate compensable rating for a service-connected cervical
spine disability is denied.
Earlier Effective Date
In a November 2007 memorandum decision, the Court remanded
the issue of entitlement to an effective date earlier than
July 1, 1996, for a 60 percent rating for a service-connected
cervical spine disability (cervical strain with osteophytes
at C4-7, status post C6 bilateral foraminotomies) for the
Board to consider whether the veteran was entitled to a 40
percent disability rating under DC 5293 within the one year
prior to July 1, 1996.
The effective date of a grant of an increased rating is the
earliest date as of which it is factually ascertainable that
an increase in disability has occurred, if the claim is
received within a year from that date. Otherwise, the
effective date is the later of the date of increase in
disability or the date of receipt of the claim. 38 U.S.C.A.
§ 5110(b)(2) (West 2002); 38 C.F.R. § 3.400(o)(2) (2008);
Harper v. Brown, 10 Vet. App. 125 (1997).
A claim is a formal or informal communication, in writing,
requesting a determination of entitlement or evidencing a
belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p)
(2008).
Any communication or action, indicating an intent to apply
for one or more benefits under the laws administered by VA,
from a claimant, his duly authorized representative, a Member
of Congress, or some person acting as next friend of a
claimant who is not sui juris, may be considered an informal
claim. Such an informal claim must identify the benefit
sought. Upon receipt of an informal claim, if a formal claim
has not been filed, an application form will be forwarded to
the claimant for execution. If received within one year
after the date it was sent to the claimant, it will be
considered filed as of the date of receipt of the informal
claim. 38 C.F.R. § 3.155 (2008); Norris v. West, 12 Vet.
App. 413 (1999). However, 38 U.S.C.A. § 5110(b)(2) and
38 C.F.R. § 3.400(o)(2) are applicable only where the
increase precedes the claim, provided also that the claim is
received within one year after the increase. In these cases,
the Board must determine under the evidence of record the
earliest date that the increased rating was ascertainable.
Hazan v. Gober, 10 Vet. App. 511 (1997); Harper v. Brown, 10
Vet. App. 125 (1997); VAOPGCPREC 12- 98, 63 Fed. Reg. 56705
(1998).
An October 1985 RO decision granted service connection and
assigned a 20 percent disability rating for the veteran's
cervical spine disability, effective July 3, 1985. In a June
1986 rating decision, the RO assigned an effective date of
May 25, 1985, for the 20 percent disability rating. The RO
received a claim for an increased rating on July 31, 1996,
but denied a rating higher than 20 percent in a September
1996 rating decision. An April 2001 RO decision continued a
30 percent disability rating and an effective date of July 1,
1996. In a May 2001 notice of disagreement, the veteran
requested an increased rating and an "earlier onset" for
the 30 percent disability rating. A July 2004 RO decision
assigned a 60 percent disability rating, effective July 1,
1996. A July 2004 decision found that the October 1985
decision was clearly and unmistakably erroneous and assigned
a 30 percent disability rating for his service-connected
cervical spine disability, effective May 25, 1985, the date
medical evidence in support of the claim for the increased
rating was received. The RO also granted an increased rating
of 60 percent effective July 1, 1996. However, the July 2004
decision failed to address the issue of whether the veteran
was entitled to an effective date earlier than July 1, 1996,
for the award of a 60 percent disability rating. In an
August 2005 decision, the Board denied the veteran an
effective date earlier than July 1, 1996, for the rating for
the veteran's service-connected cervical spine disability.
Accordingly, the question before the Board is whether there
is an earlier date as of which entitlement to an increased
rating of 40 percent is factually ascertainable. The
question then is whether, based upon the evidence of record,
it is factually ascertainable that the veteran's cervical
spine disability increased in severity in the one year prior
to the appellant's July 1996 claim for an increased rating.
Therefore, the Board may consider the period from July 1,
1995 to July 1, 1996, to determine if a 40 percent rating was
warranted based on the July 1996 claim for increase. Any
ascertainable increase occurring prior to July 1995 would
require that the effective date be the date of claim in July
1996, and thus the claim for an earlier effective date than
July 1, 1996, would be denied. 38 C.F.R. § 38 C.F.R. § 3.400
(o)(2) (2008).
The RO initially rated the veteran's cervical spine
disability as 30 percent disabling under 38 C.F.R. § 4.71a,
Diagnostic Code 5290. A maximum rating of 30 percent is
warranted for limitation of motion of the cervical spine that
is severe. The Board now considers whether the veteran is
entitled to a higher rating of 40 percent for a cervical
spine disability prior to July 1, 1996 under DC 5293 for
intervertebral disc syndrome. Under this diagnostic code,
prior to September 23, 2002, a 40 percent rating was
warranted for severe intervertebral disc syndrome, with
recurring attacks with intermittent relief. A 60 percent
rating was warranted when the intervertebral disc syndrome
was pronounced, with persistent symptoms compatible with
sciatic neuropathy with characteristic pain and demonstrable
muscle spasm, absent ankle jerk, or other neurological
findings appropriate to the site of the diseased disc,
intermittent relief. 38 C.F.R. § 4.71a, DC 5293 (2002).
A July 1995 VA medical report notes complaints of chronic
neck pain. Neurological examination was 5/5 bilaterally in
the upper extremities. An August 1995 VA medical report
contains a finding of cervicalgia and notes complaints of
neck pain. A September 1995 VA medical report shows
complaints of burning, stabbing pain throughout the posterior
neck and right trapezius region. The veteran had reinjured
his neck the previous week. Range of motion was limited, but
sensory examination was grossly intact and strength was 5/5
throughout. Deep tendon reflexes were 2+ bilaterally. An
October 1995 VA medical report contains a notation of
cervical disc disease with radiculopathy. There are also
records relating to the diagnosis and treatment of carpal
tunnel syndrome. A November 1995 VA medical report notes a
possible cervical radiculopathy. A February 1996 VA medical
report notes complaints of constant back pain and restricted
movement in the cervical spine. An electromyelogram contains
a conclusion of a right C6 radiculopathy.
The Board finds that at no time in the year prior to July 1,
1996, was an increase in disability commensurate with a
rating of 40 percent factually ascertainable. There is no
competent evidence prior to July 1, 1996, and within one year
prior to the date of claim for increase, that the veteran had
severe intervertebral disc syndrome, with recurring attacks
with intermittent relief. Neither does the Board find that
an increase in disability commensurate with a rating of 60
percent was factually ascertainable. There is no competent
evidence prior to July 1, 1996, and within one year prior to
the date of claim for increase, that the veteran had
intervertebral disc syndrome was pronounced, with persistent
symptoms compatible with sciatic neuropathy with
characteristic pain and demonstrable muscle spasm, absent
ankle jerk, or other neurological findings appropriate to the
site of the diseased disc, intermittent relief. Accordingly,
there is no evidence which would establish that the veteran
was entitled to a rating of either 40 or 60 percent prior to
July 1, 1996.
As the evidence does not show that the veteran's service-
connected cervical spine disability met the criteria for
either a 40 percent or 60 percent rating prior to July 1,
1996, an earlier effective date for either a 40 percent or 60
percent evaluation is not warranted. Accordingly, the Board
finds that the preponderance of the evidence is against the
veteran's claim and the claim must be denied. 38 U.S.C.A.
§ 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
ORDER
Service connection for bilateral hearing loss is denied.
Service connection for tinnitus is denied.
Service connection for sinusitis is denied.
A rating in excess of 50 percent for a major depressive is
denied.
A separate rating for a cervical spine disability is denied.
An effective date earlier than July 1, 1996, for the award of
either a 40 or 60 percent disability rating for a service-
connected cervical spine disability is denied.
REMAND
Additional development is needed prior to the disposition of
the veteran's claims for service connection for a coccyx
injury, dizziness, and a left shoulder disability.
VA has a duty to assist claimants in the development of facts
pertinent to claims and VA must accomplish additional
development of the evidence if the record before it is
inadequate. 38 U.S.C.A. § 5103A. VA's duty to assist
includes a duty to provide a medical examination or obtain a
medical opinion when it is deemed necessary to make a
decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R.
§ 3.159(c)(4) (2008). The Board regrets the additional delay
that will result from this remand. Nevertheless, the Board
is constrained by the fact that proper adjudication of the
claims requires additional development.
The veteran alleges that he fell and injured his coccyx after
he became dizzy secondary to pain medication for his service-
connected cervical spine disability.
VA medical records dated in June 2006, the veteran described
fractured tailbone in 1996 and October 2003. A March 2004
report indicates that his broken tailbone from swinging on a
vine which broke and he fell hard to the ground. During a VA
spine examination in August 2001, he indicated that he fell
two years ago after he got dizzy and injured his coccyx, but
was told that the coccyx was not fractured. On examination,
no impairment to the coccyx was found. VA's duty to assist
includes a duty to provide a medical examination or obtain a
medical opinion where it is necessary to make a decision on
the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4)
(2008); Robinette v. Brown, 8 Vet. App. 69 (1995). It does
not appear that a VA examiner has been asked to render an
opinion as to whether the veteran had a coccyx injury related
to his service or service-connected cervical spine
disability, including whether he suffered a fall that was
related to the use of prescription medication for his
service-connected cervical spine disability. Accordingly, a
remand for a VA examination, and etiological opinion and
rationale addressing whether the veteran has a current coccyx
injury that is causally or etiologically related to his
service, or to the medication prescribed for his service-
connected cervical spine disability, is necessary.
The veteran also contends that he experiences dizziness
secondary to pain medication for his service-connected
cervical spine disability.
VA medical records reflect the veteran's complaints of and
treatment for dizziness.
The veteran was afforded a VA ear disease examination in
March 2005. Upon examination, the examiner could not offer
an opinion regarding the diagnosis of episodic vertigo and
indicated that any opinion would be pure speculation. The
final diagnosis was episodic vertigo of unknown etiology.
The examiner opined that a more definitive opinion was beyond
the scope of the examiner's knowledge to be more definitive,
but provided the "nonopinion" that the presence of his
cervical osteophytic and bilateral foraminotomies that had
been performed. While the veteran has been afforded a VA
examination, no examiner has yet opined as to whether the
veteran's dizziness is related to his service or to the use
of medication prescribed to treat his service-connected left
shoulder disability. VA's duty to assist includes a duty to
provide a medical examination or obtain a medical opinion
where it is necessary to make a decision on the claim.
38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) (2008);
Robinette v. Brown, 8 Vet. App. 69 (1995). While the veteran
in this case has already been afforded a VA examination, no
examiner has yet opined as to whether the veteran's dizziness
is related to his service or to the use of medication
prescribed to treat his service-connected left shoulder
disability. Accordingly, the Board finds that there are
additional questions that remain to be addressed and that a
remand for an additional examination and opinion is therefore
in order. In this regard, the examiner on remand should
specifically reconcile the opinion with the March 2005 VA
opinion and any other opinions of record.
Finally, the veteran contends that he fell and injured his
left shoulder due to dizziness caused by pain medication
taken for his service-connected cervical spine disability.
Alternatively, he contends that he fell and injured his left
shoulder as a result of prescribed medication for his
service-connected cervical spine disability.
VA medical records include a December 1994 EMG report which
indicates that the veteran fell on his left shoulder in
September 1994. Additional records reflect continued
complaints of left shoulder pain and a diagnosis of bursitis.
VA's duty to assist includes a duty to provide a medical
examination or obtain a medical opinion where it is necessary
to make a decision on the claim. 38 U.S.C.A. § 5103A(d);
38 C.F.R. § 3.159(c)(4) (2008); Robinette v. Brown, 8 Vet.
App. 69 (1995). It does not appear that a VA examiner has
been asked to render an opinion as to whether the veteran has
a left shoulder injury that is related to his service or to
the use of medication prescribed to treat his service-
connected left shoulder disability, a remand for a VA
examination, and etiological opinion and rationale addressing
whether the veteran has a left shoulder disability that is
causally or etiologically related to his service, or to the
medication prescribed for his service-connected cervical
spine disability, is necessary.
Accordingly, the case is REMANDED for the following action:
1. Schedule the veteran for a VA
examination to determine the nature and
etiology of any current coccyx disability.
The claims folder should be reviewed by
the examiner and that review should be
indicated in the examination report. The
rationale for all opinions must be
provided. Specifically, the examiner
should provide the following opinions:
(a) Diagnose any current coccyx
disability.
(b) Is it at least as likely as not
(50 percent probability or greater)
that any current coccyx disability was
incurred in or aggravated by the
veteran's service.
(c) Is it at least as likely as not
(50 percent probability or greater)
that any current coccyx disability is
due to a fall that is causally or
etiologically related to medication
prescribed to treat the veteran's
service-connected cervical spine
disability.
2. Schedule the veteran for a VA
examination to determine the nature and
etiology of any current dizziness. The
claims folder should be reviewed by the
examiner and that review should be
indicated in the examination report. The
examiner should specifically attempt to
reconcile the opinion with all other
opinions of record, including the March
2005 VA opinion. The rationale for all
opinions must be provided. Specifically,
the examiner should provide the following
opinions:
a) Diagnose any disability manifested
by dizziness.
b) Is it at least as likely as not (50
percent probability or greater) that
any current disability manifested by
dizziness was incurred in or aggravated
by the veteran's service.
c) Is it at least as likely as not (50
percent probability or greater) that
any current disability manifested by
dizziness is causally or etiologically
related to medication prescribed to
treat the veteran's service-connected
cervical spine disability.
3. Schedule the veteran for a VA
examination to determine the nature and
etiology of any current left shoulder
disability. The claims folder should be
reviewed by the examiner and that review
should be indicated in the examination
report. The rationale for all opinions
must be provided. Specifically, the
examiner should provide the following
opinions:
a) Diagnose any current left shoulder
disability.
b) Is it at least as likely as not (50
percent probability or greater) that
any current left shoulder disability
was incurred in or aggravated by the
veteran's service.
c) Is it at least as likely as not (50
percent probability or greater) that
any current left shoulder disability is
due to a fall that is causally or
etiologically related to medication
prescribed to treat the veteran's
service-connected cervical spine
disability.
4. Then, readjudicate the issues on
appeal. If the decision remains adverse
to the veteran, issue a supplemental
statement of the case and allow the
applicable time for response. Then,
return the case to the Board
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).
These claims must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or
the United States Court of Appeals for Veterans Claims for
development or other appropriate action must be handled in an
expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp.
2008).
______________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs | 01-29-2009 | [
"Citation Nr: 0903141 Decision Date: 01/29/09 Archive Date: 02/09/09 DOCKET NO. 97-27 046A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for sinusitis. 4. Entitlement to service connection for a coccyx injury, also claimed as secondary to a service-connected cervical strain with osteophytes at C4-7, status post C6 bilateral foraminotomies (cervical spine disability). 5. Entitlement to service connection for dizziness, also claimed as secondary to a service-connected cervical spine disability. 6. Entitlement to service connection for a left shoulder disability, also claimed as secondary to a service-connected cervical spine disability. 7. Entitlement to an increased rating for service-connected major depressive disorder, currently rated as 50 percent disabling.",
"8. Entitlement to separate compensable rating for a cervical spine disability. 9. Entitlement to an effective date earlier than July 1, 1996, for the award of either a 40 or 60 percent disability rating for a service-connected cervical spine disability. REPRESENTATION Appellant represented by: Sandra A. Booth, Attorney ATTORNEY FOR THE BOARD T. Adams, Associate Counsel INTRODUCTION The veteran served on active duty from April 1963 to May 1966. He also had two periods of active duty for training from March 1985 to May 1985, and in July 1985. This case is before the Board of Veterans' Appeals (Board) from an April 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida, which denied a separate compensable rating for the veteran's service-connected cervical spine disability and granted an increased rating of 30 percent for the same with an effective date of July 1, 1996.",
"In a March 2003 statement of the case, the RO affirmed the April 2001 decision and also denied entitlement to an effective date earlier than July 1, 1996, for the veteran's service-connected spine disability. In July 2004, the RO granted an increased disability rating of 60 percent, effective from July 1, 1996, but that decision did not address the issue of whether the veteran was entitled to an effective date up to one year earlier than July 1, 1996 for the 60 percent disability rating. In an August 2005 decision, the Board denied entitlement to a rating higher than 60 percent, entitlement to a separate compensable rating, and entitlement to an effective date earlier than July 1, 1996, for the veteran's service- connected cervical spine disability. The veteran then appealed to the Court. In a November 2007 memorandum decision, the Court vacated and remanded the Board decision and remanded the claims to the Board for readjudication in accordance with the Order. With respect to the earlier effective date claim, the Court remanded the issue for the Board to consider whether the veteran was entitled to a 40 percent disability rating within one year prior to July 1, 1996.",
"The Court remanded the issue of entitlement to separate ratings for cervical strain disability for the Board to apply the version of 38 C.F.R. § 4.71a that is most favorable to the veteran. However, the Court did not address the issue of whether the veteran is entitled to a separate compensable rating for his cervical spine disability. The Board notes at this juncture that the Court specifically stated that as the veteran did not make an argument concerning the Board's denial of a disability rating greater than 60 percent after July 1, 1996, the Court deemed that issue abandoned on appeal and it appear to the Board that the denial of a rating in excess of 60 percent remains in effect, and that that issue is not on appeal. This case is also on appeal from an April 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied entitlement to service connection for bilateral hearing loss, tinnitus, sinusitis; a coccyx injury, dizziness, and a left shoulder injury; and an increased rating for the veteran's service-connected major depressive disorder rated as 30 percent disabling. A July 2005 rating decision increased the rating for major depressive disorder to 50 percent, effective February 20, 2001.",
"However, as that grant does not represent a total grant of benefits sought on appeal, this claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The issues of entitlement to service connection for a coccyx injury, dizziness, and a left shoulder disability are remanded to the RO via the Appeals Management Center in Washington, D.C. FINDINGS OF FACT 1. The competent medical evidence does not demonstrate that the veteran's bilateral hearing loss disability was incurred in or aggravated by his active service or manifested to a compensable degree within one year following his separation from service. 2. The competent medical evidence does not demonstrate that the veteran's tinnitus was incurred in or aggravated by his active service or manifested to a compensable degree within one year following his separation from service. 3. The competent medical evidence does not demonstrate that the veteran's sinusitis was incurred in or aggravated by his active service.",
"4. The veteran's major depressive disorder is manifested by no more than impairment of short-term memory, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. 5. The competent medical evidence indicates that the veteran's service-connected cervical spine disability is manifested by pain, muscle spasms, cervical radiculopathy, numbness, paresthesias, and limitation of motion of the cervical; symptoms that are duplicative or overlapping. 6. On September 11, 1992, the RO denied a rating higher than 20 percent for cervical strain with osteophytes at C4-7, status post C6 bilateral foraminotomies. The veteran did not appeal that decision.",
"7. On July 1, 1996, the RO received a new claim from the veteran in which he requested an increased rating for his cervical strain with osteophytes at C4-7, status post C6 bilateral foraminotomies. Based on later dated evidence, the RO awarded an increased rating of 60 percent for the disability, effective from July 1, 1996. 8. There is no medical evidence of record dated earlier than July 1, 1996, which demonstrates that the veteran would be entitled to either a 40 or 60 percent disability rating for his service-connected cervical spine disability. CONCLUSIONS OF LAW 1. Service connection for bilateral hearing loss is not warranted. 38 U.S.C.A.",
"§§ 1101, 1110, 1112, 1113, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2008). 2. Service connection for tinnitus is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2008). 3. Service connection for sinusitis is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2008). 4.",
"The criteria for a rating in excess of 50 percent for a major depressive disorder have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9434 (2008). 5. The claim of entitlement to a separate compensable disability rating for a cervical spine disability is without legal merit. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.14, 4.71a, DCs 5290 (effective prior to September 26, 2003) and 5293 (effective prior to and since September 23, 2002). 6. The criteria for an effective date earlier than July 1, 1996, for the assignment of either a 40 or 60 percent disability rating for service-connected cervical spine disability have not been met.",
"38 U.S.C.A. §§ 5101, 5103, 5107, 5110 (West 2002); 38 C.F.R. § 3.400 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Upon receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. § 3.159 (2008). The notice 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; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App.",
"112 (2004). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (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. Further, 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law.",
"Sanders v. Nicholson, 487 F.3d 881 (2007). With respect to the veteran's claim for an effective date earlier than July 1, 1996, for the assignment of either a 40 or 60 percent disability rating for the veteran's service- connected cervical spine disability, the RO did not provide the veteran with any notice of the information and evidence necessary to substantiate his claim, nor did it inform him of any information or evidence concerning earlier effective dates, nor of any evidence and information that she was expected to provide. The letter notifying him of the denial of his claim additionally did not inform him of the requirements of 38 C.F.R. § 4.71a, Diagnostic Codes 5290 and 5293. As a result, the notice provided to the veteran failed to satisfy all of the requirements set forth in 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). These errors are presumed prejudicial unless the purpose of the notice requirements was not frustrated. The purpose of the notice requirements is not frustrated where it is demonstrated that (1) any defect was cured by actual knowledge on the part of the claimant, (2) that a reasonable person could be expected to understand from the notice what was needed, or (3) that a benefit could not have been awarded as a matter of law.",
"38 U.S.C.A. § 7261(b)(2); Sanders v. Nicholson, 487 F.3d 881 (2007); Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In this case, the Board finds that the notice errors were not prejudicial because benefits could not have been awarded as a matter of law. Because the veteran is not entitled to an effective date earlier than July 1, 1996, for the assignment of either a 40 or 60 percent disability rating for his service-connected cervical spine disability as a matter of law, he was not prejudiced by the any notice errors pursuant to 38 U.S.C.A. § 5103(a) or the applicable case law.",
"Sanders v. Nicholson, 487 F.3d 881 (2007) (the purpose of § 5103(a) notice is not frustrated and the claimant is not prejudiced when the benefit sought cannot be awarded as a matter of law); Valiao v. Principi, 17 Vet. App. 229 (2003) (determining that a notice error was nonprejudicial where appellant was not entitled to benefits as a matter of law). In this case, there is no prejudice because the competent medical evidence does not show that the veteran was entitled to either a 40 or 60 percent rating prior to July 1, 1996. Thus, a remand for further development could not possibly change the outcome of the decision, and it is not prejudicial to proceed to finally decide the issue discussed in this decision. Valiao v. Principi, 17 Vet. App. 229 (2003). For an increased-compensation claim, 38 U.S.C.A.",
"§ 5103(a) requires, at a minimum, that VA notify the claimant that, to substantiate a claim, the medical or lay evidence must show a worsening or increase in severity of the disability, and the effect that such worsening or increase 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 demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on employment and daily life (such as a specific measurement or test result), VA must provide at least general notice of that requirement.",
"VA 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. In May 2008, the veteran was notified of the evidence needed to support his increased rating claim pursuant to Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008). In April 2001, prior to the initial adjudication of the claims, the veteran was notified of the evidence not of record that was necessary to substantiate the claims. He was told that he needed to provide the names of persons, agency, or company who had additional records to help decide his claims. He was informed that VA would attempt to obtain review his claims and determine what additional information was needed to process his claims, schedule a VA examination if appropriate, obtain VA medical records, obtain service records, and obtain private treatment reports as indicated. There is no allegation from the veteran that he has any evidence in his possession that is needed for a full and fair adjudication of these claims. While the veteran was not given notice of what type of information and evidence he needed to substantiate a claim for an increased rating, there is no prejudice in issuing a final decision because the preponderance of the evidence is against the claims for service connection. Any questions as to the appropriate disability rating or effective date to be assigned are moot.",
"Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Therefore, the Board finds that adequate notice was provided to the appellant prior to the transfer and certification of the veteran's case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, the statutes and regulations require that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. VA's duty to assist includes (1) obtaining records not in the custody of a federal department or agency; (2) obtaining records in the custody of a federal department or agency; (3) obtaining service medical records or other records relevant to active duty and VA or VA-authorized medical records; and, (4) providing medical examinations or obtaining medical opinions if necessary to decide the claim. 38 C.F.R. § 3.159(c). VA has a duty to obtain a medical examination if the evidence establishes (1) a current disability or persistent or recurrent symptoms of a disability, (2) an in-service event, injury, or disease, (3) current disability may be associated with the in-service event, and (4) there is insufficient evidence to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App.",
"79 (2006). In this case, the veteran's service medical records and all identified and authorized post-service medical records relevant to the issues on appeal have been requested or obtained. VA examinations pertinent to the veteran's claims for service connection for sinusitis and rhinitis, tinnitus, a right shoulder disability, and a facial and scalp rash were obtained in July 2000, August 2000, and September 2000. VA examinations with respect to the veteran's increased rating claim were obtained in April 2001 and September 2007. Therefore, the available records and medical evidence have been obtained in order to make adequate determinations as to these claims. In sum, the Board finds the duty to assist and duty to notify provisions have been fulfilled and no further action is necessary under those provisions. Service Connection A claimant with active service may be granted service connection for a disease or disability either incurred in or aggravated by active military service. 38 U.S.C.A.",
"§§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service incurrence will be presumed for certain chronic diseases, including organic diseases of the nervous system such as tinnitus and sensorineural hearing loss if manifest to a degree of 10 percent or more within one year after active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Active military, naval, or air service includes any period of active duty training during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21), (24) (West 2002); 38 C.F.R.",
"§ 3.6(a), (d) (2008). Active duty training is, inter alia, full-time duty in the Armed Forces performed by Reserves for training purposes. 38 C.F.R. § 3.6(c)(1) (2008). Service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty training, or from injury incurred or aggravated while performing inactive duty training. 38 U.S.C.A. §§ 101(24), 106, 1131 (West 2002). However, presumptive periods do not apply to active duty training or inactive duty training. Biggins v. Derwinski, 1 Vet.",
"App. 474 (1991). The disease entity for which service connection is sought must be chronic as opposed to merely acute and transitory in nature. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Where the fact of chronicity in service is not adequately supported then a showing of continuity after discharge is required to support the claim. 38 C.F.R.",
"§ 3.303(b). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415 (1998); Cuevas v. Principi, 3 Vet. App. 542 (1992). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible. Lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The record before the Board contains service medical records and post-service medical records, which will be addressed as pertinent. Dela Cruz v. Principi, 15 Vet.",
"App. 143 (2001) (a discussion of all evidence by the Board is not required when the Board has supported its decision with thorough reasons and bases regarding the relevant evidence). Bilateral Hearing Loss and Tinnitus Based on a thorough review of the record, the Board finds that the preponderance of the evidence is against the veteran's claims for service connection for a bilateral hearing loss and tinnitus.",
"Applicable regulations provide that impaired hearing shall be considered a disability when the auditory thresholds in any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hz are 40 decibels or greater; the thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores are 94 percent or less. 38 C.F.R. § 3.385 (2008). The veteran's active duty service medical records contain various audiology examinations, but are void of findings, complaints, symptoms, or diagnoses of a bilateral hearing loss or tinnitus. On entrance examination in February 1963, pure tone threshold, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 -5 0 -5 LEFT -5 -5 -5 -5 0 On separation examination in January 1966, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 5 0 LEFT 10 10 10 5 0 Service medical records from the veteran's period of active duty for training are also void of findings, complaints, symptoms, or diagnoses of bilateral hearing loss or tinnitus.",
"VA medical records dated in March 2000 reflect complaints of tinnitus. VA medical records dated in March 2000 reflect complaints of bilateral hearing loss. The veteran was afforded a VA audio examination in August 2001. The examiner noted that a January 1966 audiogram reflected normal hearing bilaterally. He complained of little difficulty hearing. He felt that he might have selective hearing and that his hearing difficulties were more related to an inability to pay attention to speakers. He noted a history of military noise exposure while on a rifle team. Additionally, he reported testing engines, while in the military without the benefit of ear protection. He had a significant occupational noise exposure from his work as an auto mechanic for approximately fifteen years. Additionally, he reported a history of recreational noise exposure, but reported that he always used ear protection when hunting.",
"On examination, pure tone air conduction thresholds in the right ear at 1000, 2000, 3000, and 4000 Hertz were 10, 10, 35, and 55, respectively, with an average of 28 decibels. The pure tone air conduction thresholds in the left ear at the same frequencies were 5, 10, 45, and 55 decibels, respectively, with an average of 29 decibels. He was diagnosed with essentially normal hearing through 2000 Hertz sloping to a mild to moderate sensorineural hearing loss bilaterally. The examiner noted that he reported significant occupational noise exposure while being an automobile mechanic for over fifteen years and therefore, the origin of his hearing loss most likely occurred from the occupational noise exposure. During a VA ear disease examination in March 2005 for an assessment of vertigo, the veteran presented with complaints of a ten-year history of tinnitus and complained of associated hearing loss.",
"It was noted that he never used hearing devices and to spoken word he seemed to be very adequate and did not relate to any injury to the ear. He indicated that he was a member of a rifle team during service, but that the noise trauma did not seem to be excessive. He also indicated that he worked as a boat mechanic with engines during which he wore earplugs. He failed to find any treatment to abate the tinnitus and indicated that he did not require hearing aids. The veteran's post-service medical records are negative for any diagnoses of bilateral hearing loss or tinnitus within one year of separation from active duty. In fact, the veteran's post-service medical records are negative for any diagnoses of a bilateral hearing loss or tinnitus until many years after separation from active service.",
"A significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Further, while the competent medical evidence shows that the veteran has bilateral hearing loss and tinnitus, the record includes a competent medical opinion which finds that his hearing loss is most likely due to occupational noise exposure. There is no competent medical opinion that relates his hearing loss or tinnitus to his service. In addition, the service medical records are void of any findings, symptoms, complaints, or diagnoses attributable to a hearing loss or tinnitus. In the absence of competent medical evidence linking any current bilateral hearing loss or tinnitus to service, service connection must be denied. The Board recognizes the veteran's contentions as to the diagnoses and relationship between his service and the claimed disabilities.",
"Lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness. Falzone v. Brown, 8 Vet. App. 398 (1995). As a layperson, however, he is not competent to provide an opinion requiring medical knowledge, such as a diagnosis, or an opinion relating to medical causation and etiology that requires a clinical examination by a medical professional.",
"Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board acknowledges that the veteran is competent to give evidence about what he experienced. Layno v. Brown, 6 Vet. App. 465 (1994). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67 (1997). As a result, his assertions do not constitute competent medical evidence that his current bilateral hearing loss or tinnitus are a result of his service. Accordingly, the Board finds that the preponderance of the evidence is against the veteran's claims.",
"The evidence does not support a finding that any current bilateral hearing loss or tinnitus were incurred in or aggravated by service, or that any bilateral hearing loss or tinnitus manifested to a compensable degree within one year following the veteran's separation from active service. Therefore, service connection for a bilateral hearing loss and tinnitus must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).",
"Chronic Sinusitis Based on a thorough review of the record, the Board finds that the preponderance of the evidence is against the veteran's claim for service connection for chronic sinusitis. The veteran's active duty service medical records include reports of February 1963 enlistment and January 1966 separation examinations which reflect normal clinical evaluations of the sinuses. In reports of medical history dated in February 1963 and January 1966, he denied having sinusitis. Service medical records from the veteran's period of active duty for training include a March 1985 evaluation for allergy symptoms. He described an eight to nine year history of itching and tearing eyes, nasal congestion with rhinorrhea, sinus headache, and occasional wheezing. Upon examination, the impression was perennial allergic rhinoconjunctivitis with documented allergies to mites, cat dander, Greerdust, molds, and to a lesser extent trees, weeds, and grasses; and an impression of right and left maxillary sinusitis. In May 1985, the impression was resolving maxillary sinusitis.",
"VA medical records dated in August 1990 reflect the veteran's complaints of sinusitis. In October 1992, he was treated for a sinus infection. The veteran was afforded a VA nose, sinus, pharynx, and larynx examination in August 2001. He indicated that his condition began during service in 1985 during which time he was exposed to extensive pigeon droppings over a twelve week period while working in an office. Since that time, his sinuses had been extremely sensitive. After an examination, the examiner opined that it was unlikely that he had chronic sinusitis, but more likely simple allergic rhinitis. The examiner further opined that it was very unlikely that his allergic rhinitis was service-connected and that it did not relate to sensitization from exposure to pigeon droppings as in the history of the present illness.",
"Recent VA treatment records July 2006 to January 2009 do not reflect any treatment for sinusitis or any other sinus- related condition. While the competent medical evidence shows that the veteran has been treated for sinusitis and allergic rhinitis, the record includes a competent medical opinion which finds that it is unlikely that he had chronic sinusitis and unlikely that his allergic was related to his service. In the absence of competent medical evidence linking any current sinusitis to his service, service connection must be denied. The Board recognizes the veteran's contentions as to the diagnosis and relationship between his service and the claimed disability. Lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness. Falzone v. Brown, 8 Vet. App. 398 (1995).",
"As a layperson, however, he is not competent to provide an opinion requiring medical knowledge, such as a diagnosis, or an opinion relating to medical causation and etiology that requires a clinical examination by a medical professional. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board acknowledges that the veteran is competent to give evidence about what he experienced. Layno v. Brown, 6 Vet. App. 465 (1994). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67 (1997). As a result, his assertions do not constitute competent medical evidence that his current sinus condition is a result of his service.",
"Accordingly, the Board finds that the preponderance of the evidence is against the veteran's claim. The evidence does not support a finding that any current sinus condition was incurred in or aggravated by service. Therefore, service connection for sinusitis must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10 (2008). Where there is a question as to which of two ratings shall be applied, the higher rating 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 (2008). The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). Under the criteria of 38 C.F.R. § 4.130, Diagnostic Code 9434, a 50 percent disability rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned when the psychiatric condition produces occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and an inability to establish and maintain effective relationships.",
"A 100 percent rating is assigned when there is total occupational or social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); and disorientation to time or place, memory loss for names of close relatives, own occupation, or own name. Based on a thorough review of the record, the Board finds that the preponderance of the evidence is against the veteran's claim for a rating in excess of 50 percent for major depressive disorder at any time during the pendency of this appeal.",
"VA medical records dated in July 2000 indicate that on mental status examination, the veteran was alert, oriented, and competent. He was not suicidal. He was diagnosed with depression and assigned a Global Assessment of Functioning (GAF) score of 50. In January 2001, he was depressed as a result of orthopedic pain. He was alert, oriented, and competent and was not suicidal. His diagnosis and GAF score remained unchanged. According to the American Psychiatric Association's Diagnostic and Statistic Manual of Mental Disorders, Fourth Edition (DSM-IV), a Global Assessment of Functioning (GAF) score of 31-40 indicates some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing in school).",
"A GAF of 41-50 indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF score of 51-60 indicates moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peer or co- workers). A GAF score of 61 to 70 reflects some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and having some meaningful interpersonal relationships. The veteran underwent a VA mental disorders examination in April 2001. He indicated that when he took pain medication for his service-connected cervical spine disability his work performance was affected and that when he did not take his medication, his anger level increased. He alleged that he was fired when he became angry and grabbed another employee by the throat.",
"It was noted that he had not worked for three years. On mental status exam, he was well-kept and cleanly shaven. He was friendly, open, and conversational with a sense of humor and appeared have above-average intelligence. He denied current suicidal or homicidal thoughts. He was well-oriented, alert, and logical. There was no indication of any psychotic processes on examination. He reported that he had short-term memory problems, a depressed mood, anxiety, nightmares, and weight gain. He was diagnosed with a pain disorder with both psychological factors and a general chronic medical condition. He had a GAF score of 60. He had moderate difficulty in his social and marital relationships due to low frustration tolerance, increased anger, low self- esteem, and decreased sex drive. He admitted that his pain level increased due to psychosocial factors. The examiner opined that he did not meet the diagnostic criteria for a diagnosis of major depressive disorder, because the severity of his depressive symptoms did not warrant that diagnosis.",
"Instead, his low mood appeared to be directly related to his pain tolerance and influenced the subjective level of his pain. VA medical records dated in March 2002 reflect that the veteran was doing well and received medication for treatment of his disability. On examination, he was oriented time three. Language and speech were goal-directed. Mood and affect were normal and euthymic. He had no thought disorder and associations were intact. Abnormal thoughts and apophanous phenomena, perceptual distortions, and suicidal ideations were absent. A GAF score was not provided. In September 2002, he indicated that he was not doing very well and had a variety of complaints. On examination he was oriented times three and cognitively intact. Language and speech were clear and goal-directed. Mood and affect were normal and euthymic and associations were intact.",
"Abnormal thoughts, apophanous phenomena, and suicidal ideation were absent. The impression was depression. A GAF score was not provided. VA medical records dated in January 2004 reflect that the veteran fell and injured his coccyx and was irritable because of his pain. On examination, he was casually dressed and neatly groomed. His mood was irritable with an appropriate affect. Speech was goal-directed. He was oriented and his memory was intact. He denied suicidal and homicidal ideations and intent. Insight and judgment were fair. He was diagnosed with cyclothymia/dysthymia with a GAF score of 50. In February 2006, he refused psychotherapy and his wife felt that he needed a mood stabilizer. He was casually dressed and neatly groomed.",
"Attention and concentration were fair. Speech was goal directed, logical, and relevant. He denied suicidal or homicidal intent or ideation. Insight and judgment were fair. He was diagnosed with cyclothymia, dysthymia and assigned a GAF score of 60. The veteran was afforded a VA mental disorders examination in September 2007. He complained that he became depressed while attempting to help put up a fence and was physically unable to do so because of the heat. He estimated that the depression usually lasted four to five hours. He denied experiencing anhedonia, stating that he would enjoy several activities if he were in better health. There were no signs or symptoms of mania. On examination, he was clean, neatly groomed, and appropriately and casually dressed. Speech was unremarkable, spontaneous, clear, and coherent. He was attentive to the examiner. He affect was constricted and he described his mood as irritated.",
"He was oriented to person and place, but not to time. His thought process and content were unremarkable and he had no delusions or hallucinations. He had no inappropriate behavior, obsessive or ritualistic behavior, panic attacks, or homicidal or suicidal thoughts. His impulse control was fair without episodes of violence. He was able to maintain the minimum personal hygiene. Remote, recent, and immediate memory were normal. It was noted that he retired in 1998 due to his cervical condition. He was diagnosed with major depressive disorder and assigned a GAF score of 58. The examiner indicated that there was no total occupational and social impairment due to mental disorder signs and symptoms. There was no reduced reliability and productivity due to mental disorder symptoms. There was an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to mental disorder signs and symptoms, but with generally satisfactory functioning (routine behavior, self-care, and conversation normal).",
"The Board finds that an evaluation in excess of 50 percent for the veteran's service-connected major depressive disorder is not warranted at any time during the pendency of this appeal. The competent medical evidence shows that the veteran's psychiatric disability was serious in July 2000 as evidenced by a GAF score of 50. However, he was not suicidal and there is no evidence of severe obsessional rituals or serious impairment in social or occupational functioning. In April 2001, his psychiatric disability had improved with a GAF score of 60 indicative of only moderate symptoms.",
"In January 2004, he had a GAF score of 50 indicative of serious symptoms. However, that was inconsistent with his denial of suicidal ideations. In February 2006 and September 2007, he had GAF scores of 60 and 58, respectively, which are indicative of moderate symptoms. From July 2000 to September 2007, the veteran denied having any suicidal or homicidal ideations, speech was goal-directed, insight and judgment were fair, and he was well-oriented and alert. He denied having any delusions and had only impairment of short-term memory. There was no evidence of any inappropriate or obsessive or ritualistic behavior. While he reported anger management problems, there is no evidence of an impaired impulse control. In addition, during the September 2007 examination the examiner noted that there was no total occupational and social impairment due to the mental disorder signs and symptoms. There was occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to mental disorder signs and symptoms, but with generally satisfactory functioning.",
"Here, the evidence does not support a finding of any impairment caused by suicidal ideation or obsessional rituals; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression; impaired impulse control; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; or inability to establish and maintain effective relationships. Therefore, the Board finds that the competent medical evidence does not support a rating greater than 50 percent for veteran's service-connected major depressive disorder at any time during the pendency of this appeal.",
"The Board has also considered whether the record raises the matter of an extra-schedular rating under 38 C.F.R. § 3.321(b)(1). In exceptional cases where schedular evaluations are found to be inadequate, consideration of an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service- connected disability or disabilities may be made. The governing norm in an exceptional case is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). There is no evidence that the veteran has been hospitalized for treatment of his psychiatric disability. Neither does the record reflect marked interference with his employment solely due to his service-connected disability.",
"Rather, on VA examination in April 2001 the veteran indicated that when he took pain medication for his service-connected cervical spine disability his work performance was affected and on VA examination in September 2007 it was noted that he retired in 1998 due to his cervical spine disability. Here, the record does not support a finding that the veteran is unemployed due solely to his major depressive disorder. For these reasons, the Board finds that referral for consideration of the assignment of an extraschedular rating for this disability is not warranted. The Board recognizes the veteran's contentions as to the severity of his major depressive disorder. Lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness. Falzone v. Brown, 8 Vet. App. 398 (1995). As a layperson he is not competent to provide opinions requiring medical knowledge, such as whether the current symptoms satisfy diagnostic criteria.",
"Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board acknowledges that the veteran is competent to give evidence about what he experienced. Layno v. Brown, 6 Vet. App. 465 (1994). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67 (1997). Thus, his assertions are not competent medical evidence that provides a basis for the assignment of a rating in excess of 50 percent for a major depressive disorder. Accordingly, the Board finds that the preponderance of evidence is against the veteran's claim for a rating in excess of 50 percent for a major depressive disorder and his claim is therefore denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.",
"App. 49 (1990). Separate Rating for a Cervical Spine Disability Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A.",
"§ 1155; 38 C.F.R. §§ 4.1, 4.10 (2008). 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. 38 C.F.R. § 4.7 (2008). The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The veteran contends that he is entitled to separate ratings for his service-connected cervical spine disability under DC 5290 (effective prior to September 26, 2003) and DC 5293 (effective prior to and since September 23, 2002). Specifically, he contends that he is entitled to separate ratings for his cervical spine disability because he has suffers from separate and distinct manifestations from the same disability, including radiculopathy, muscle spasms, pain, and numbness.",
"The veteran's cervical spine disability has been rated as 60 percent disabling under Diagnostic Codes 5290-5293 which encompasses the criteria for ratings based on intervertebral disc syndrome and limitation of cervical spine motion. 38 C.F.R. § 4.71a (2002, 2003). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2008). Prior to September 26, 2003, a 10 percent rating was warranted for slight limitation of motion of the cervical spine, 20 percent rating was warranted for moderate limitation of motion of the cervical spine, and a 30 percent rating was warranted for severe limitation of motion of the cervical spine. 38 C.F.R. § 4.71a, DC 5290 (2003). Prior to September 23, 2002, intervertebral disc syndrome (IDS) warranted a 10 percent rating when mild; a 20 percent rating when moderate, with recurrent attacks; and a 40 percent rating when severe, with recurring attacks with intermittent relief.",
"Finally, a 60 percent rating was warranted for IDS that was pronounced, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, intermittent relief. 38 C.F.R. § 4.71a, DC 5293 (2002). Under DC 5293, the regulations for evaluation of IDS effective September 23, 2002, and prior to September 26, 2003, IDS could be rated either on the basis of the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 separate evaluations of the chronic orthopedic and neurological manifestations, along with evaluations for all other disabilities, whichever method results in the higher evaluation. A 40 percent rating is warranted where the evidence reveals incapacitating episodes having a total duration of at least four weeks but less than six during the past 12 months. A 60 percent rating is warranted where the evidence reveals incapacitating episodes having a total duration of at least six weeks during the past 12 months.",
"Incapacitating episodes are defined as requiring bed rest prescribed by a physician and treatment by a physician. The revised regulations effective September 26, 2003, provide that intervertebral disc syndrome is evaluated either under the general rating formula or under the formula for rating IDS based on incapacitating episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. As an initial matter, the Board finds that diagnostic codes 5290 (effective prior to September 26, 2003), or 5293 (effective prior to September 23, 2002 and since September 23, 2002) are equally unfavorable to the veteran's claim because application of none of the pertinent criteria results in a finding that a separate compensable rating for his service-connected cervical spine disability is warranted. The record before the Board contains service medical records and post-service medical records, which will be addressed as pertinent. Dela Cruz v. Principi, 15 Vet. App.",
"143 (2001) (a discussion of all evidence by the Board is not required when the Board has supported its decision with thorough reasons and bases regarding the relevant evidence). The Board now turns to the issue of whether the veteran is entitled to a separate compensable rating for a service- connected cervical spine disability. Based on a thorough review of the record, the Board finds that the preponderance of the evidence is against the veteran's claim for service connection for a separate compensable rating for a service-connected cervical spine disability. VA treatment records dated from July 1995 to February 2008, private medical records dated from April 1997 to March 2001, VA examinations in September 1996, April 1997, March 1998, September 2000, August 2001, September 2002, and May 2004 show that the veteran's cervical spine disability is manifested by pain, muscle spasms, cervical radiculopathy, numbness, paresthesias, and limitation of motion of the cervical spine. On VA spine examination in September 2002, the examiner diagnosed the veteran with cervical degenerative disc disease without significant radiculopathy with associated severe paraspinal muscle spasms and opined that there were no spinal disorders that were unrelated to his service-connected disability.",
"Here, the competent medical evidence shows that the manifestations of the veteran's cervical spine disability are duplicative or overlapping. While the veteran argues that he is entitled to separate ratings for degenerative disc disease and limitation of motion of his service-connected cervical spine disability the Board finds that separate ratings under DCs 5290 and 5293 are not warranted. In a precedential opinion, the VA General Counsel has determined that Diagnostic Code 5293 (interveterbral disc syndrome) involves a loss of range of motion because the nerve defects and resulting pain associated with injury to the sciatic nerve may cause limitation of motion of the cervical, thoracic, or lumbar veterbrae. VAOPGCREC 36-97 (Dec. 12, 1997), 63 Fed. Reg. 31262 (1998).",
"In pertinent part, VA General Counsel stated that: DC 5293, codified at 38 C.F.R. § 4.71a, describes disability due to IDS in terms of \"symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc.\" IDS is a group of signs and symptoms due to nerve root irritation that commonly includes neck and arm or hand pain the case of cervical disc disease. It may also include scoliosis, paravertebral muscle spasm, limitation of motion of the spine, tenderness over the spine and neurologic findings corresponding to the level of the disc.\"",
"Id 2. VAOPGCREC 36-97 (Dec. 12, 1997), Comment 2. The VA General Counsel further stated that: In evaluating a veteran's disability under DC 5293 based upon symptomatology which includes limitation of motion, the rating schedule indicates that consideration must be given to 38 C.F.R. §§ 4.40 and 4.45, notwithstanding the maximum rating available under a different diagnostic code. Section 4.14 of title 38, Code of Federal Regulations, state that the evaluation of the same disability or manifestation under various diagnoses is to be avoided. See also VAOPGCPREC 23-97, para 3. The CVA has also indicated that the same symptomatology for a particular condition should not be evaluated under more than one diagnostic code.",
"Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Section 4.7 of title 38, Code of Federal Regulations, states that, \"[w]here 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.\" VAOPGCREC 36-97 (Dec. 12, 1997), Comment 5. In conclusion, the VA General Counsel held that Diagnostic Code (DC) 5293, intervertebral disc syndrome (IDS), involves loss of range of motion because the nerve defects and resulting pain associated with injury to the sciatic nerve may cause limitation of motion of the cervical, thoracic, or lumbar veterbrae. The Board notes that the veteran's cervical spine disability is rated as 60 percent disability which is the highest rating for limitation of motion of the cervical spine.",
"Where a disability has been rated at the maximum level provided by the diagnostic code under which it is rated, the considerations of additional function loss due to pain do not apply. VAOPGCPREC 36-97, 63 Fed. Reg. 31262 (1998), citing Johnston v. Brown, 10 Vet. App. 80 (1997) (remand for consideration of functional loss of range of motion of a wrist due to pain inappropriate where rating currently assigned for limitation of motion was maximum available under the applied diagnostic code). Diagnostic Code 5293 contemplates cervical radiculopathy affecting the upper extremities, such as radicular pain with functional limitations, muscle spasms, numbness, paresthesias, and limitation of motion of the cervical spine. Assigning separate ratings for the cervical spine disability under Diagnostic Code 5290 and the neurologic aspects thereof under Diagnostic Code 5293, would constitute pyramiding, since the rating assigned under Diagnostic Code 5293 contemplates musculoskeletal as well as neurologic aspects of the disability. In short, the 60 percent disability rating contemplates musculoskeletal aspects of the cervical spine disability with associated radiculopathy of the upper extremities (particularly the effect neurologically-caused pain has upon movement of the cervical spine, muscle spasms, limitation of motion), as well as the neurologic aspects of cervical spine disability (specifically the effect of cervical radiculopathy affecting the upper extremities, including numbness and paresthesias); and these are duplicative of or overlap with each other such that to assign separate ratings under Codes 5290 and 5293 would be pyramiding.",
"When symptoms of a disability are duplicative or overlapping with the symptomatology of another condition, there is no authority for the assignment of separate ratings under each of the codes; a single rating must be assigned. Esteban v. Brown, 6 Vet. App. 259; VAOPGCPREC 23-97 (July 1, 1997), 62 Fed. Reg. 63604 (1997); VAOPGCREC 9-98 (August 14, 1998), 63 Fed. Reg. 56704 (1998). The Board finds that the veteran is not entitled to separate rating for his service-connected cervical spine disability under DCs 5290 (effective prior to September 26, 2003) and 5293 (effective prior to and since September 23, 2002) because the assignment of separate ratings would amount to pyramiding. Although the veteran asserts that he is entitled to separate ratings for his cervical spine disability, the Board is bound by the precedent opinions of VA's General Counsel that prohibit the assignment of separate ratings for manifestations of his cervical spine disability. 38 U.S.C.A.",
"§ 7104(c) (West 2002); 38 C.F.R. §§ 19.5, 20.101(a) (2008). Accordingly, the Board finds that a separate rating for a cervical spine disability is not warranted. In a claim such as this, where the law and not the evidence is dispositive, the claim must be denied because of the lack of legal entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). Therefore, the veteran's claim for a separate compensable rating for a service-connected cervical spine disability is denied. Earlier Effective Date In a November 2007 memorandum decision, the Court remanded the issue of entitlement to an effective date earlier than July 1, 1996, for a 60 percent rating for a service-connected cervical spine disability (cervical strain with osteophytes at C4-7, status post C6 bilateral foraminotomies) for the Board to consider whether the veteran was entitled to a 40 percent disability rating under DC 5293 within the one year prior to July 1, 1996.",
"The effective date of a grant of an increased rating is the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if the claim is received within a year from that date. Otherwise, the effective date is the later of the date of increase in disability or the date of receipt of the claim. 38 U.S.C.A. § 5110(b)(2) (West 2002); 38 C.F.R. § 3.400(o)(2) (2008); Harper v. Brown, 10 Vet. App. 125 (1997). A claim is a formal or informal communication, in writing, requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p) (2008). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris, may be considered an informal claim. Such an informal claim must identify the benefit sought.",
"Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year after the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (2008); Norris v. West, 12 Vet. App. 413 (1999). However, 38 U.S.C.A. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2) are applicable only where the increase precedes the claim, provided also that the claim is received within one year after the increase. In these cases, the Board must determine under the evidence of record the earliest date that the increased rating was ascertainable.",
"Hazan v. Gober, 10 Vet. App. 511 (1997); Harper v. Brown, 10 Vet. App. 125 (1997); VAOPGCPREC 12- 98, 63 Fed. Reg. 56705 (1998). An October 1985 RO decision granted service connection and assigned a 20 percent disability rating for the veteran's cervical spine disability, effective July 3, 1985. In a June 1986 rating decision, the RO assigned an effective date of May 25, 1985, for the 20 percent disability rating. The RO received a claim for an increased rating on July 31, 1996, but denied a rating higher than 20 percent in a September 1996 rating decision.",
"An April 2001 RO decision continued a 30 percent disability rating and an effective date of July 1, 1996. In a May 2001 notice of disagreement, the veteran requested an increased rating and an \"earlier onset\" for the 30 percent disability rating. A July 2004 RO decision assigned a 60 percent disability rating, effective July 1, 1996. A July 2004 decision found that the October 1985 decision was clearly and unmistakably erroneous and assigned a 30 percent disability rating for his service-connected cervical spine disability, effective May 25, 1985, the date medical evidence in support of the claim for the increased rating was received. The RO also granted an increased rating of 60 percent effective July 1, 1996. However, the July 2004 decision failed to address the issue of whether the veteran was entitled to an effective date earlier than July 1, 1996, for the award of a 60 percent disability rating. In an August 2005 decision, the Board denied the veteran an effective date earlier than July 1, 1996, for the rating for the veteran's service-connected cervical spine disability.",
"Accordingly, the question before the Board is whether there is an earlier date as of which entitlement to an increased rating of 40 percent is factually ascertainable. The question then is whether, based upon the evidence of record, it is factually ascertainable that the veteran's cervical spine disability increased in severity in the one year prior to the appellant's July 1996 claim for an increased rating. Therefore, the Board may consider the period from July 1, 1995 to July 1, 1996, to determine if a 40 percent rating was warranted based on the July 1996 claim for increase. Any ascertainable increase occurring prior to July 1995 would require that the effective date be the date of claim in July 1996, and thus the claim for an earlier effective date than July 1, 1996, would be denied. 38 C.F.R. § 38 C.F.R.",
"§ 3.400 (o)(2) (2008). The RO initially rated the veteran's cervical spine disability as 30 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5290. A maximum rating of 30 percent is warranted for limitation of motion of the cervical spine that is severe. The Board now considers whether the veteran is entitled to a higher rating of 40 percent for a cervical spine disability prior to July 1, 1996 under DC 5293 for intervertebral disc syndrome. Under this diagnostic code, prior to September 23, 2002, a 40 percent rating was warranted for severe intervertebral disc syndrome, with recurring attacks with intermittent relief. A 60 percent rating was warranted when the intervertebral disc syndrome was pronounced, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, intermittent relief.",
"38 C.F.R. § 4.71a, DC 5293 (2002). A July 1995 VA medical report notes complaints of chronic neck pain. Neurological examination was 5/5 bilaterally in the upper extremities. An August 1995 VA medical report contains a finding of cervicalgia and notes complaints of neck pain. A September 1995 VA medical report shows complaints of burning, stabbing pain throughout the posterior neck and right trapezius region. The veteran had reinjured his neck the previous week. Range of motion was limited, but sensory examination was grossly intact and strength was 5/5 throughout. Deep tendon reflexes were 2+ bilaterally.",
"An October 1995 VA medical report contains a notation of cervical disc disease with radiculopathy. There are also records relating to the diagnosis and treatment of carpal tunnel syndrome. A November 1995 VA medical report notes a possible cervical radiculopathy. A February 1996 VA medical report notes complaints of constant back pain and restricted movement in the cervical spine. An electromyelogram contains a conclusion of a right C6 radiculopathy. The Board finds that at no time in the year prior to July 1, 1996, was an increase in disability commensurate with a rating of 40 percent factually ascertainable. There is no competent evidence prior to July 1, 1996, and within one year prior to the date of claim for increase, that the veteran had severe intervertebral disc syndrome, with recurring attacks with intermittent relief.",
"Neither does the Board find that an increase in disability commensurate with a rating of 60 percent was factually ascertainable. There is no competent evidence prior to July 1, 1996, and within one year prior to the date of claim for increase, that the veteran had intervertebral disc syndrome was pronounced, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, intermittent relief. Accordingly, there is no evidence which would establish that the veteran was entitled to a rating of either 40 or 60 percent prior to July 1, 1996.",
"As the evidence does not show that the veteran's service- connected cervical spine disability met the criteria for either a 40 percent or 60 percent rating prior to July 1, 1996, an earlier effective date for either a 40 percent or 60 percent evaluation is not warranted. Accordingly, the Board finds that the preponderance of the evidence is against the veteran's claim and the claim must be denied. 38 U.S.C.A.",
"§ 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for bilateral hearing loss is denied. Service connection for tinnitus is denied. Service connection for sinusitis is denied. A rating in excess of 50 percent for a major depressive is denied. A separate rating for a cervical spine disability is denied. An effective date earlier than July 1, 1996, for the award of either a 40 or 60 percent disability rating for a service- connected cervical spine disability is denied. REMAND Additional development is needed prior to the disposition of the veteran's claims for service connection for a coccyx injury, dizziness, and a left shoulder disability.",
"VA has a duty to assist claimants in the development of facts pertinent to claims and VA must accomplish additional development of the evidence if the record before it is inadequate. 38 U.S.C.A. § 5103A. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion when it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) (2008). The Board regrets the additional delay that will result from this remand. Nevertheless, the Board is constrained by the fact that proper adjudication of the claims requires additional development. The veteran alleges that he fell and injured his coccyx after he became dizzy secondary to pain medication for his service- connected cervical spine disability. VA medical records dated in June 2006, the veteran described fractured tailbone in 1996 and October 2003. A March 2004 report indicates that his broken tailbone from swinging on a vine which broke and he fell hard to the ground.",
"During a VA spine examination in August 2001, he indicated that he fell two years ago after he got dizzy and injured his coccyx, but was told that the coccyx was not fractured. On examination, no impairment to the coccyx was found. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) (2008); Robinette v. Brown, 8 Vet. App. 69 (1995).",
"It does not appear that a VA examiner has been asked to render an opinion as to whether the veteran had a coccyx injury related to his service or service-connected cervical spine disability, including whether he suffered a fall that was related to the use of prescription medication for his service-connected cervical spine disability. Accordingly, a remand for a VA examination, and etiological opinion and rationale addressing whether the veteran has a current coccyx injury that is causally or etiologically related to his service, or to the medication prescribed for his service- connected cervical spine disability, is necessary. The veteran also contends that he experiences dizziness secondary to pain medication for his service-connected cervical spine disability. VA medical records reflect the veteran's complaints of and treatment for dizziness. The veteran was afforded a VA ear disease examination in March 2005. Upon examination, the examiner could not offer an opinion regarding the diagnosis of episodic vertigo and indicated that any opinion would be pure speculation.",
"The final diagnosis was episodic vertigo of unknown etiology. The examiner opined that a more definitive opinion was beyond the scope of the examiner's knowledge to be more definitive, but provided the \"nonopinion\" that the presence of his cervical osteophytic and bilateral foraminotomies that had been performed. While the veteran has been afforded a VA examination, no examiner has yet opined as to whether the veteran's dizziness is related to his service or to the use of medication prescribed to treat his service-connected left shoulder disability.",
"VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) (2008); Robinette v. Brown, 8 Vet. App. 69 (1995). While the veteran in this case has already been afforded a VA examination, no examiner has yet opined as to whether the veteran's dizziness is related to his service or to the use of medication prescribed to treat his service-connected left shoulder disability. Accordingly, the Board finds that there are additional questions that remain to be addressed and that a remand for an additional examination and opinion is therefore in order. In this regard, the examiner on remand should specifically reconcile the opinion with the March 2005 VA opinion and any other opinions of record.",
"Finally, the veteran contends that he fell and injured his left shoulder due to dizziness caused by pain medication taken for his service-connected cervical spine disability. Alternatively, he contends that he fell and injured his left shoulder as a result of prescribed medication for his service-connected cervical spine disability. VA medical records include a December 1994 EMG report which indicates that the veteran fell on his left shoulder in September 1994. Additional records reflect continued complaints of left shoulder pain and a diagnosis of bursitis. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) (2008); Robinette v. Brown, 8 Vet. App. 69 (1995). It does not appear that a VA examiner has been asked to render an opinion as to whether the veteran has a left shoulder injury that is related to his service or to the use of medication prescribed to treat his service- connected left shoulder disability, a remand for a VA examination, and etiological opinion and rationale addressing whether the veteran has a left shoulder disability that is causally or etiologically related to his service, or to the medication prescribed for his service-connected cervical spine disability, is necessary. Accordingly, the case is REMANDED for the following action: 1.",
"Schedule the veteran for a VA examination to determine the nature and etiology of any current coccyx disability. The claims folder should be reviewed by the examiner and that review should be indicated in the examination report. The rationale for all opinions must be provided. Specifically, the examiner should provide the following opinions: (a) Diagnose any current coccyx disability. (b) Is it at least as likely as not (50 percent probability or greater) that any current coccyx disability was incurred in or aggravated by the veteran's service. (c) Is it at least as likely as not (50 percent probability or greater) that any current coccyx disability is due to a fall that is causally or etiologically related to medication prescribed to treat the veteran's service-connected cervical spine disability. 2. Schedule the veteran for a VA examination to determine the nature and etiology of any current dizziness. The claims folder should be reviewed by the examiner and that review should be indicated in the examination report. The examiner should specifically attempt to reconcile the opinion with all other opinions of record, including the March 2005 VA opinion. The rationale for all opinions must be provided.",
"Specifically, the examiner should provide the following opinions: a) Diagnose any disability manifested by dizziness. b) Is it at least as likely as not (50 percent probability or greater) that any current disability manifested by dizziness was incurred in or aggravated by the veteran's service. c) Is it at least as likely as not (50 percent probability or greater) that any current disability manifested by dizziness is causally or etiologically related to medication prescribed to treat the veteran's service-connected cervical spine disability. 3. Schedule the veteran for a VA examination to determine the nature and etiology of any current left shoulder disability.",
"The claims folder should be reviewed by the examiner and that review should be indicated in the examination report. The rationale for all opinions must be provided. Specifically, the examiner should provide the following opinions: a) Diagnose any current left shoulder disability. b) Is it at least as likely as not (50 percent probability or greater) that any current left shoulder disability was incurred in or aggravated by the veteran's service. c) Is it at least as likely as not (50 percent probability or greater) that any current left shoulder disability is due to a fall that is causally or etiologically related to medication prescribed to treat the veteran's service-connected cervical spine disability. 4. Then, readjudicate the issues on appeal.",
"If the decision remains adverse to the veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp.",
"2008). ______________________________________________ Harvey P. Roberts 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 |
DECISION AND ORDER MYRON L. GORDON, District Judge. This memorandum will consider two motions. The defendants have moved for dismissal of the complaint, and the plaintiffs have moved that the action be maintained as a class action. The complaint charges that various practices and conditions in the Milwaukee county jail violate the constitutional rights of the plaintiffs. The grievances of the plaintiffs concern alleged inadequacies in relation to medical care, recreational facilities, sanitation, access to counsel, and also other jail conditions and practices. THE MOTION TO DISMISS The motion to dismiss is bottomed on the general principle that federal courts are reluctant to interfere with the conduct of prisons, except in unusual cases. Thus, in Bethea v. Crouse, 417 F.2d 504, 505 (10th Cir. 1969), the court said: “We have consistently adhered to the so-called ‘hands off’ policy in matters of prison administration according to which we have said that the basic responsibility for the control and management of penal institutions, including the discipline, treatment, and care of those confined, lies with the responsible administrative agency and is not subject to judicial review unless exercised in such a manner as to constitute clear abuse or caprice upon the part of prison officials.” A similar approach was adopted by this court in Medlock v. Burke, 285 F.Supp. 67 (E.D.Wis.1968). See also Banning v. Looney, 213 F.2d 771 (10th Cir. 1954), cert. denied, 348 U.S. 859, 75 S.Ct. 84, 99 L.Ed. 677 (1954); Wright v. Mc-Mann, 387 F.2d 519, 522-523 (2d Cir. 1967); Douglas v. Sigler, 386 F.2d 684, 688 (8th Cir. 1967). There are, however, a number of recent cases which demonstrate that federal courts can and should be open to consider charges like those made in this complaint. Only upon the submission of the plaintiffs’ proof will the court be able to determine whether the conditions complained about actually exist and are of such seriousness as to constitute a deprivation of federal constitutional protections. See Holt v. Sarver, 309 F.Supp. 362 (E.D.Ark.1970); Jordan v. Fitzharris, 257 F.Supp. 674 (N.D.Cal.1966). In 84 Harv.L.Rev.No. 2, p. 456 (December, 1970), the editors reviewed Holt and stated the following at page 458: “* * * Courts have traditionally been the institutions which protect individuals from unconstitutional action by government and its officials. Such protection is totally lost if the courts fail to effectively review administrative decisions made within prisons, since the low political visibility of prisons places virtually absolute power in the hands of prison personnel.” I conclude that the defendants Petersen and Wolke are not entitled to dismissal. However, a different ruling must apply to the other named defendants who are sued “individually and in their respective capacities as members of the Board of Supervisors of Milwaukee County”. Insofar as the board *542members are sued individually, the dismissal should be granted; insofar as they are sued as members of the board, dismissal should be denied. It is noted that damages are not specifically sought in this action. Pursuant to Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), this action could not have been maintained against a municipal corporation, and the plaintiffs have not sued the county board of supervisors. However, although individual members of the county board are named, the complaint alleges no improper conduct on the part of any individual member of the board. Instead, the gravamen of the complaint, as I construe it, is that members of the board, as a board, deprived the plaintiffs of certain rights secured by the Constitution. If the board failed to provide an adequate physical plant in which to house persons detained by the sheriff, such claim would not be sufficient to support this action against the members as individuals in the absence of an allegation as to individual action by such members. Abel v. Gousha, 313 F.Supp. 1030, 1031 (E.D.Wis.1970). THE CLASS ACTION MOTION With reference to the motion of the plaintiffs to maintain this action as a class action, it is my conclusion that such motion should not be granted. I doubt that adequate notice can reasonably be given to the members of the class. In the 20 years that I have served as a judicial officer in Wisconsin, I have had frequent occasions to visit the Milwaukee county jail to deal with individuals confined there. I take judicial notice of the fact that the turnover of detained persons at the county jail is great. Many individuals are held for only short periods of time, and many of them are transient as to their domicile. The posting of notices and the publication of notices in newspapers would not, in my opinion, adequately reach those persons whom the plaintiffs seek to have bound by this action. In Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 568 (2nd Cir. 1968), the court said: “While the Supreme Court has recognized that class actions represent an exception to the general rule under which only parties are bound by a judgment, the procedure adopted must conform to the requirements of due process and fairly insure the protection of absent parties who are to be bound. Hansberry v. Lee, 311 U.S. 32, 42, 61 S.Ct. 115, 85 L.Ed. 22 (1940). Notice, as an integral part of due process must be ‘reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’ Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950).” See also Pasquier v. Tarr, 318 F.Supp. 1350 (E.D.La.1970). In my opinion, the effort which would be required to give reasonable notice to those persons who would be affected by the judgment, were this a class action, would create more problems than it would solve. This is especially true because of the probability that many members of the proposed class do not have a fixed abode in this vicinity. I am also not satisfied that the three individual plaintiffs in this action are, in fact, truly representative of the members of the class for whom they would purport to act. Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22 (1940); Pelelas v. Caterpillar Tractor Co., 30 F.Supp. 173 (S.D.Ill.1939). I note that in the plaintiffs’ statement at the outset of its brief, it is asserted that on November 19, 1970, the court “sua sponte struck from the plaintiffs’ pleading and papers all references” to certain organizations. This statement is incorrect; the court did order stricken the names of organizations which are listed at the end of the complaint as *543groups which are “of counsel” to the lawyers who subscribed to the complaint. Now, therefore, it is ordered that the defendants’ motion for dismissal be and hereby is denied as to the defendants Petersen and Wolke and also as to those defendants sued in their capacities as members of the board of supervisors. It is further ordered that the defendants’ motion for dismissal be and hereby is granted as to those defendants sued in their individual capacities. It is further ordered that the plaintiffs’ motion to retain this action as a class action be and hereby is denied. | 11-26-2022 | [
"DECISION AND ORDER MYRON L. GORDON, District Judge. This memorandum will consider two motions. The defendants have moved for dismissal of the complaint, and the plaintiffs have moved that the action be maintained as a class action. The complaint charges that various practices and conditions in the Milwaukee county jail violate the constitutional rights of the plaintiffs. The grievances of the plaintiffs concern alleged inadequacies in relation to medical care, recreational facilities, sanitation, access to counsel, and also other jail conditions and practices. THE MOTION TO DISMISS The motion to dismiss is bottomed on the general principle that federal courts are reluctant to interfere with the conduct of prisons, except in unusual cases.",
"Thus, in Bethea v. Crouse, 417 F.2d 504, 505 (10th Cir. 1969), the court said: “We have consistently adhered to the so-called ‘hands off’ policy in matters of prison administration according to which we have said that the basic responsibility for the control and management of penal institutions, including the discipline, treatment, and care of those confined, lies with the responsible administrative agency and is not subject to judicial review unless exercised in such a manner as to constitute clear abuse or caprice upon the part of prison officials.” A similar approach was adopted by this court in Medlock v. Burke, 285 F.Supp.",
"67 (E.D.Wis.1968). See also Banning v. Looney, 213 F.2d 771 (10th Cir. 1954), cert. denied, 348 U.S. 859, 75 S.Ct. 84, 99 L.Ed. 677 (1954); Wright v. Mc-Mann, 387 F.2d 519, 522-523 (2d Cir. 1967); Douglas v. Sigler, 386 F.2d 684, 688 (8th Cir. 1967). There are, however, a number of recent cases which demonstrate that federal courts can and should be open to consider charges like those made in this complaint. Only upon the submission of the plaintiffs’ proof will the court be able to determine whether the conditions complained about actually exist and are of such seriousness as to constitute a deprivation of federal constitutional protections.",
"See Holt v. Sarver, 309 F.Supp. 362 (E.D.Ark.1970); Jordan v. Fitzharris, 257 F.Supp. 674 (N.D.Cal.1966). In 84 Harv.L.Rev.No. 2, p. 456 (December, 1970), the editors reviewed Holt and stated the following at page 458: “* * * Courts have traditionally been the institutions which protect individuals from unconstitutional action by government and its officials. Such protection is totally lost if the courts fail to effectively review administrative decisions made within prisons, since the low political visibility of prisons places virtually absolute power in the hands of prison personnel.” I conclude that the defendants Petersen and Wolke are not entitled to dismissal. However, a different ruling must apply to the other named defendants who are sued “individually and in their respective capacities as members of the Board of Supervisors of Milwaukee County”. Insofar as the board *542members are sued individually, the dismissal should be granted; insofar as they are sued as members of the board, dismissal should be denied. It is noted that damages are not specifically sought in this action.",
"Pursuant to Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), this action could not have been maintained against a municipal corporation, and the plaintiffs have not sued the county board of supervisors. However, although individual members of the county board are named, the complaint alleges no improper conduct on the part of any individual member of the board. Instead, the gravamen of the complaint, as I construe it, is that members of the board, as a board, deprived the plaintiffs of certain rights secured by the Constitution. If the board failed to provide an adequate physical plant in which to house persons detained by the sheriff, such claim would not be sufficient to support this action against the members as individuals in the absence of an allegation as to individual action by such members.",
"Abel v. Gousha, 313 F.Supp. 1030, 1031 (E.D.Wis.1970). THE CLASS ACTION MOTION With reference to the motion of the plaintiffs to maintain this action as a class action, it is my conclusion that such motion should not be granted. I doubt that adequate notice can reasonably be given to the members of the class. In the 20 years that I have served as a judicial officer in Wisconsin, I have had frequent occasions to visit the Milwaukee county jail to deal with individuals confined there. I take judicial notice of the fact that the turnover of detained persons at the county jail is great. Many individuals are held for only short periods of time, and many of them are transient as to their domicile. The posting of notices and the publication of notices in newspapers would not, in my opinion, adequately reach those persons whom the plaintiffs seek to have bound by this action. In Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 568 (2nd Cir. 1968), the court said: “While the Supreme Court has recognized that class actions represent an exception to the general rule under which only parties are bound by a judgment, the procedure adopted must conform to the requirements of due process and fairly insure the protection of absent parties who are to be bound. Hansberry v. Lee, 311 U.S. 32, 42, 61 S.Ct. 115, 85 L.Ed. 22 (1940).",
"Notice, as an integral part of due process must be ‘reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’ Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950).” See also Pasquier v. Tarr, 318 F.Supp. 1350 (E.D.La.1970). In my opinion, the effort which would be required to give reasonable notice to those persons who would be affected by the judgment, were this a class action, would create more problems than it would solve. This is especially true because of the probability that many members of the proposed class do not have a fixed abode in this vicinity. I am also not satisfied that the three individual plaintiffs in this action are, in fact, truly representative of the members of the class for whom they would purport to act. Hansberry v. Lee, 311 U.S. 32, 61 S.Ct.",
"115, 85 L.Ed. 22 (1940); Pelelas v. Caterpillar Tractor Co., 30 F.Supp. 173 (S.D.Ill.1939). I note that in the plaintiffs’ statement at the outset of its brief, it is asserted that on November 19, 1970, the court “sua sponte struck from the plaintiffs’ pleading and papers all references” to certain organizations. This statement is incorrect; the court did order stricken the names of organizations which are listed at the end of the complaint as *543groups which are “of counsel” to the lawyers who subscribed to the complaint. Now, therefore, it is ordered that the defendants’ motion for dismissal be and hereby is denied as to the defendants Petersen and Wolke and also as to those defendants sued in their capacities as members of the board of supervisors. It is further ordered that the defendants’ motion for dismissal be and hereby is granted as to those defendants sued in their individual capacities.",
"It is further ordered that the plaintiffs’ motion to retain this action as a class action be and hereby is denied."
] | https://www.courtlistener.com/api/rest/v3/opinions/8782704/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
299 U.S. 217 (1936) PUFAHL, RECEIVER, v. ESTATE OF ELVIRA J. PARKS, DECEASED. No. 18. Supreme Court of United States. Argued October 15, 1936. Decided December 7, 1936. CERTIORARI TO THE APPELLATE COURT, FIRST DISTRICT, OF ILLINOIS. *218 Mr. George P. Barse, with whom Mr. Otis F. Glenn was on the brief, for petitioner. *221 Mr. Franz W. Castle, with whom Messrs. Emmett J. McCarthy and Robert F. Carey were on the brief, for respondent. *220 MR. JUSTICE ROBERTS delivered the opinion of the Court. In this case we are concerned with the bearing of state law upon the enforcement of an assessment against the estate of a stockholder of a national bank. Elvira J. Parks died March 20, 1928, owning twelve shares of the capital stock of the Austin National Bank of Chicago. May 17, 1928, the Probate Court of Cook County, Illinois, granted letters testamentary to the executors named in her will, who filed an inventory and supplemental inventory in the probate court within one year of the date of the letters. March 30, 1931, the Comptroller of the Currency declared the bank insolvent, closed it, and appointed the petitioner receiver, and May 21, 1931, assessed all stockholders, including the executors of Elvira J. Parks, one hundred per cent. of the par value of their stock. The executors refused to honor the receiver's demand for payment, and on September 1, 1933, he filed his claim in the Probate Court for $1,327.17, the amount of the assessment with interest to the date of filing. January 13, 1934, the court disallowed the claim. The receiver appealed to the Circuit Court, where the case was tried de novo. That court, applying a state statute, disallowed the claim as against undistributed assets in the hands of executors inventoried within one year from the date of the grant of letters, because the claim did not accrue and was not presented to the Probate Court within that period, but allowed it as to assets not inventoried within the year. (From a stipulation filed in this court it appears that there are in the executors' possession inventoried assets in excess of the amount of petitioner's claim; that the estate is solvent; and that *222 there are no assets not inventoried within one year from the granting of the letters, or discovered after the expiration of that period.) The Appellate Court of the First District of Illinois affirmed the judgment. A certificate of importance, requisite for a review by the Supreme Court of the State, was refused. Certiorari was granted to resolve a conflict respecting the construction of relevant federal statutes. U.S.C. Tit. 12, § 64 is in part: "The stockholders of every national banking association shall be held individually responsible for all contracts, debts, and engagements of such association, each to the amount of his stock therein, at the par value thereof, in addition to the amount invested in such stock. . . ." Section 66 is: "Persons holding stock as executors, administrators, guardians, or trustees, shall not be personally subject to any liabilities as stockholders; but the estates and funds in their hands shall be liable in like manner and to the same extent as the testator, intestate, ward, or person interested in such trust funds would be, if living and competent to act and hold the stock in his own name." The petitioner asserts these sections give his claim a quality so superior to that of other contingent claims against a decedent's estate that it must be recognized by state tribunals without regard to limitations upon allowance imposed by state laws. The liability is imposed by the statute.[1] The original subscriber and likewise an immediate or remote vendee of the shares assumes a status, that of stockholder. The assumption of this status involves whatever conditions or burdens the federal statutes have imposed as incident to the holding of national bank shares. The contingent *223 obligation to pay an assessment is rendered absolute by the Comptroller's action in ordering one; whether that action be taken during the stockholder's life or after his death. From the moment of the Comptroller's order for assessment the bank's receiver has a claim which would support an action of debt at common law against a living stockholder, or the executor of a deceased stockholder. And if assessment be made after the estate of a deceased stockholder has been distributed the receiver may proceed to recover the amount from distributees or heirs, if, and to the extent, they are liable for debts of the estate under the law of the domicile.[2] The first clause of § 66 obviously was intended to exempt from personal liability the executor, administrator, guardian or trustee who holds stock as such fiduciary whether standing of record in his name or in that of the decedent, ward, or settlor. The second declares that the estate and funds in the hands of an executor shall be liable as the testator would have been if living, competent, and a stockholder of record. The question is whether this clause adds anything to the obligation of the decedent which is cast upon his estate by operation of law irrespective of § 66.[3] Does it impose upon the estate a liability differing from that which the law fastens upon the personal representative to discharge out of the estate, debts accruing before or after the decedent's death? We think that, as the first clause exonerates the fiduciary from personal liability, the second negatives the inference that the exoneration is to extend to the decedent's estate. This was the view taken by Judge Shipman in Davis v. Weed, 7 Fed. Cas. 186 (44 Conn. 569): "I do not think that section 5152 [§ 66] was intended to affect the liability for assessments of estates in process *224 of settlement. The principal object of the section was to prevent a personal liability from running against executors, administrators, trustees or guardians, who had purchased as trustees, or to whom had been transferred in their names as trustees national bank stocks for the benefit of the trust estates. Having by such purchase voluntarily entered into a contingent liability for assessments, it might be claimed that a judgment de bonis propriis could be rendered against them. The main object of the section was to prevent personal judgments being rendered against such persons in whom the stock stood on the books of the bank as trustees." The statute evidences no intent to prefer the assessment over other claims against the estate, or to exempt the receiver from the pursuit of the remedy prescribed by the local law for collection of claims of the same sort. Section 64 gives the receiver no lien for the amount of the assessment against the property of a living stockholder. The claim may only be recovered by suit or action. The judgment obtained is collectible like any other; it has no preference in distribution if the debtor's property be in the hands of a receiver, if he has made an assignment for the benefit of creditors, or become bankrupt. Section 66 makes a deceased stockholder's estate liable in like manner, and to the same extent, as he would have been if living. As no lien is created against the property of a living stockholder by § 64, § 66 imposes none against his estate.[4] The statute creates an unsecured and unpreferred claim against a decedent's estate. Where the assessment has *225 been made in the decedent's lifetime an accrued and provable debt exists against his estate; if made after his death a claim against the funds and assets of the estate accrues as of the date of assessment. Although the petitioner's demand is based upon a federal statute, he may enforce it only in conformity to the law of the forum governing the recovery of debts of like nature. He might have sued in a federal court. Notwithstanding the statute providing that the citizenship of a national bank, for purposes of federal jurisdiction, shall be as if it were a corporation of the state where it has its place of business, the receiver is an officer of the United States and, as such, entitled to sue for assessments in a federal court, irrespective of the citizenship of the parties or the amount in controversy.[5] If he elect so to do, R.S. 721 (28 U.S.C. § 725) governs the trial: "The laws of the several States, except where the Constitution, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply." In such a proceeding the state statute of limitations will be applied;[6] and it seems that the local substantive law governing property rights in stock will be observed.[7] Nor does the principle that the jurisdiction of courts of the United States cannot be defeated by a state's laws limiting redress of its own citizens to certain tribunals[8]*226 create such inconsistency or conflict as to require the overriding of the law of the state with respect to distribution of the estate of a decedent. Where, as here, a res has come into the possession and under the control of a state court, one having a right to go into the federal court, either by reason of diversity of citizenship, or because he is a federal officer, cannot obtain a judgment or decree entitling him to interfere with the administration of the res by the court having its possession. While he may not be denied his right to prosecute an action to judgment or a suit to final decree in the federal court, such judgment or decree can do no more than adjudicate the validity and amount of his claim. The marshalling of that claim with others, its priority, if any, in distribution, and all similar questions, are for the probate court upon presentation to it of the judgment or decree of the federal court.[9] Thus, though a receiver should resort to the United States District Court, he would need to present, in a probate court, any judgment obtained, if he desired payment from the assets under the control of the latter. The receiver may, as petitioner elected to do, prosecute his claim in a state court. If he does, at least in the absence of Congressional declaration to the contrary, the litigation will be governed by the common and statutory law of the state. Thus the local statute of limitations applies;[10] and the local law as to the extinguishment of the estate and the liability vel non of distributees controls.[11] If the state law requires a claim for an assessment to be prosecuted in an action of debt, the receiver cannot elect to bring some other form of action or to sue in equity; *227 conversely, if the law prescribes a suit in equity, the receiver cannot bring an action at law. And if under the state statutes demands against a decedent's estate must be proved in a probate court, the receiver cannot pursue some other form of action. This is not to say that a state may deny all remedy for the substantive right arising out of the federal statute (see Seabury v. Green, supra); it is merely to say that if the state does not discriminate against the receiver's claim in favor of others of equal dignity and like character, there is no warrant for exempting the claim from the effect of local statutes governing procedure or limiting the time for prosecution of action. The petitioner, having elected to prove his claim in the appropriate state court, is bound by the laws of Illinois as to the enforcement of such claims, provided those laws are nondiscriminatory and operate equally upon all claims of the class in which his belongs. The relevant statute is § 70 of the Illinois Administration Act[12] which provides that five classes of claims against decedents' estates shall be preferred in the order named, e.g., funeral expenses, costs of administration, widow's share, etc. The sixth class is: "Sixth. All other debts and demands of whatever kind without regard to quality or dignity, which shall be exhibited to the court within one year from granting of letters as aforesaid. "All claims and demands of whatever class not exhibited to the court within one year[13] from the granting of letters as aforesaid shall be forever barred as to property and estate of the deceased which has been inventoried or accounted for by the executor or administrator; and if the executor or administrator shall thereafter file any inventory listing other estate not previously inventoried or *228 accounted for, and shall cause notice to be published in the manner provided by Section 60 of this Act, or give such other notice as the court may direct, of a day fixed upon, which shall be not less than three months after the date of such first publication, for the filing and exhibiting of further claims against said decedent, all claims not exhibited to the court prior to the date so fixed shall be forever barred as to the property and estate listed in such inventory, and the amount remaining due on all claims exhibited to the court on or prior to the day so fixed upon as aforesaid, including those filed within one year from the granting of letters, shall be paid pro rata out of such subsequently inventoried estate, saving, however, to infants, persons of unsound mind and persons in the employment of the United States or of this State and residing outside of the United States, the term of one year after their respective disabilities are removed to exhibit their claims." In Illinois a creditor whose claim against a decedent's estate is not due may present it for allowance and settlement provided the liability of the decedent was absolute.[14] Contingent claims may not be proved.[15] Section 70 is not a general statute of limitations but a specific provision intended to facilitate the early settlement of estates.[16] It results that a claim not presented within the year, though not entitled to be paid from assets inventoried within the year, is not barred, but may be collected out *229 of assets subsequently discovered; and this is so whether the failure timely to present the claim was due to the creditor's negligence, or to the fact that the claim was contingent in character and did not become absolute by the happening of the contingency during the year.[17] If the claim is contingent, and the liability of the estate does not become absolute until after the expiration of the year, the creditor may recover from the distributees to the extent of the assets received by them respectively.[18] The claimant has only to present and prosecute his demand in the probate court, which has jurisdiction both of legal demands and those cognizable in equity.[19] While, therefore, the creditor need not resort to a court of law or equity to establish his claim, he may do so, since the jurisdiction of those courts over such claims has not been abolished.[20] He may present his claim to the probate court and, at the same time, proceed in equity in the circuit court for specific performance of the contract out of which the claim arises;[21] or present a mortgage note to *230 the probate court and bring suit in equity to foreclose the deed of trust securing it so as to share in estate assets for any deficiency in his security.[22] But whatever the forum in which he prosecutes his demand, no execution is issued upon the judgment or decree obtained. Whether the claim is presented to the probate court or litigated in some other, within the year, the judgment is that the claim be paid "in due course of administration," that is, by an order of distribution out of the proceeds of inventoried assets.[23] If judgment is recovered upon a demand, presented to the probate court or prosecuted at law or in equity after the expiration of the year, the judgment is special, that the claim be paid out of assets inventoried or discovered after the lapse of the year, like the common law judgment quando acciderint;[24] or that it be enforced against distributees.[25] The only bar to the recovery of such a judgment is the general statute of limitations.[26] A creditor cannot subject inventoried assets, undistributed and held by the administrator, to the payment of his claim by instituting, after the expiration of the year, and prosecuting to judgment, an action of debt against the administrator.[27] Nor can one who has failed to present his claim to the probate court, or to institute suit or action on it, within the year, resort to a court of equity *231 to have his demands paid out of undistributed inventoried assets.[28] It is apparent that the decision under review enforces the policy of the state evidenced by § 70 of the Administration Act as it has been uniformly applied to claims of like character. The petitioner relies on Mortimer v. Potter, 213 Ill. 178; 72 N.E. 817, but it is not in point. The claim of the receiver for an assessment in that case accrued after the estate had been fully administered and while the stock with respect to which assessment was levied was in the hands of a trustee to whom it was devised by the testator. Under the principles of Illinois law, as has been shown, such a devisee who received assets from the decedent's estate is liable for the assessment to the extent of those assets. The petitioner also cites Zimmerman v. Carpenter, 84 Fed. 747, as authority in his favor. In that case a circuit court of the United States entered a decree charging the assets in the hands of an executor with the amount of an assessment levied after the decedent's death. It is not clear from the opinion whether the court thought that § 66 creates a lien on estate assets from the date of the bank's failure or construed the section as creating a claim sui generis enforceable directly against assets in the possession of the executor and under the control of a state court of competent jurisdiction. As we have shown above, either theory is wrong. *232 In the absence of federal legislation giving priority to a claim for an assessment of stockholders' liability over other debts, or a lien upon the assets of a deceased stockholder's estate, or a special remedy, the claim is not entitled to distribution otherwise than as specified in a nondiscriminatory statute of the domicile. The judgment is Affirmed. MR. JUSTICE STONE took no part in the consideration or decision of this case. NOTES [1] McClaine v. Rankin, 197 U.S. 154, 161; Christopher v. Norvell, 201 U.S. 216, 225; McDonald v. Thompson, 184 U.S. 71, 73, 74; Forrest v. Jack, 294 U.S. 158, 162. [2] Matteson v. Dent, 176 U.S. 521; Forrest v. Jack, supra; Seabury v. Green, 294 U.S. 165. [3] Matteson v. Dent, supra. [4] In Witters v. Sowles, 32 Fed. 130, 140, and in Drain v. Stough, 61 F. (2d) 668 there are statements that the statute imposes a lien on estate assets. In Rankin v. Miller, 207 Fed. 602, 611 one ground of decision was that such a lien existed. So in Drake v. Dilatush, 16 F. Supp. 120, the District Court for Eastern Illinois by decree imposed a lien upon the assets of a decedent's estate held by the executor, under circumstances like those presented in the instant case. [5] Kennedy v. Gibson, 8 Wall. 498; Price v. Abbott, 17 Fed. 506; Armstrong v. Trautman, 36 Fed. 275; Brown v. Smith, 88 Fed. 565; Stephens v. Bernays, 41 Fed. 401, affirmed by C.C., 44 Fed. 642; Rankin v. Herod, 140 Fed. 661. See also United States v. Weitzel, 246 U.S. 533, 541. [6] McDonald v. Thompson, supra; McClaine v. Rankin, supra; Morgan v. Hamlet, 113 U.S. 449. [7] Keyser v. Hitz, 133 U.S. 138; Christopher v. Norvell, supra. [8] Suydam v. Broadnax, 14 Pet. 67; Union Bank v. Vaiden, 18 How. 503; Hyde v. Stone, 20 How. 170; Lawrence v. Nelson, 143 U.S. 215. [9] Yonley v. Lavender, 21 Wall. 276; Byers v. McAuley, 149 U.S. 608; Security Trust Co. v. Black River National Bank, 187 U.S. 211, 227. [10] McDonald v. Thompson, supra; McClaine v. Rankin, supra. [11] Matteson v. Dent, supra; Forrest v. Jack, supra; Seabury v. Green, supra. [12] Chapter 3, 171 § 70 Ill. Rev. Stats., 1935. [13] An earlier statute fixed the time at two years. Many of the Illinois cases cited arose under the prior law. [14] Cahill's Ill. Stat. 1923, Ch. 3 ¶ 68; Johnson v. Tryon, 78 Ill. App. 158; Dunnigan v. Stevens, 122 Ill. 396; 13 N.E. 651; Foreman Trust & Savings Bank v. Tauber, 348 Ill. 280; 180 N.E. 827. [15] Stone v. Clarke's Administrators, 40 Ill. 411; Dugger v. Oglesby, 99 Ill. 405; Mackin v. Haven, 187 Ill. 480; 58 N.E. 448; Union Trust Co. v. Shoemaker, 258 Ill. 564; 101 N.E. 1050; Chicago T. & T. Co. v. Fine Arts Bldg., 288 Ill. 142; 123 N.E. 300; Robison v. Harrington, 61 Ill. App. 543; Brown v. Rouse, 116 Ill. App. 513; Bocock v. Leet, 210 Ill. App. 402. [16] Waughop v. Bartlett, 165 Ill. 124; 46 N.E. 197; Durflinger v. Arnold, 329 Ill. 93; 160 N.E. 172. [17] Peacock v. Haven, 22 Ill. 23; Russell v. Hubbard, 59 Ill. 335; Shephard v. Rhodes, 60 Ill. 301; Shepard v. National Bank, 67 Ill. 292; Snydacker v. Swan Land Co., 154 Ill. 220; 40 N.E. 466; Union Trust Co. v. Shoemaker, 258 Ill. 564; 101 N.E. 1050; Chicago T. & T. Co. v. Fine Arts Bldg., 288 Ill. 142; 123 N.E. 300; People v. Small, 319 Ill. 437; 150 N.E. 435. [18] Snydacker v. Swan Land Co., 154 Ill. 220; 40 N.E. 466; Union Trust Co. v. Shoemaker, 258 Ill. 564; 101 N.E. 1050; Beebe v. Kirkpatrick, 321 Ill. 612; 152 N.E. 539; Durflinger v. Arnold, 329 Ill. 93; 160 N.E. 172; Whittemore v. Weber, 217 Ill. App. 628. [19] Hurd v. Slaten, 43 Ill. 348; Matter of Corrington, 124 Ill. 363; 16 N.E. 252; Matthews v. Kerfoot, 167 Ill. 313; 47 N.E. 859; Trego v. Cunningham's Estate, 267 Ill. 367; 108 N.E. 350; Pollock v. Cantlin, 253 Ill. App. 229; In re Estate of Kinsey, 261 Ill. App. 481. [20] Rosenthal v. Magee, 41 Ill. 370; Wells v. Miller, 45 Ill. 33; Mason v. Tiffany, 45 Ill. 392; Darling v. McDonald, 101 Ill. 370; Roberts v. Flatt, 142 Ill. 485; 32 N.E. 854; Bradwell v. Wilson, 158 Ill. 346; 42 N.E. 145. [21] Aldrich v. Aldrich, 287 Ill. 213, 224; 122 N.E. 472; Crawley v. Howe, 223 Ill. App. 394, 398. [22] Kittredge v. Nicholes, 162 Ill. 410, 412; 44 N.E. 742; Dyer v. Hall, 201 Ill. App. 183. [23] See the cases in Note 19. Welch v. Wallace, 8 Ill. 490; Peck v. Stevens, 10 Ill. 127; Bull v. Harris, 31 Ill. 487; Dye v. Noel, 85 Ill. 290. [24] Bradford v. Jones, 17 Ill. 93; Peacock v. Haven, 22 Ill. 23; Rosenthal v. Magee, 41 Ill. 370; Mulvey v. Johnson, 90 Ill. 457; Darling v. McDonald, 101 Ill. 370, 374. [25] Roberts v. Flatt, 142 Ill. 485; 32 N.E. 484; Union Trust Co. v. Shoemaker, 258 Ill. 564; 101 N.E. 1050. [26] Guy v. Gericks, 85 Ill. 428; Wilding v. Rhein, 12 Ill. App. 384. [27] Pearson v. McBean, 231 Ill. 536; 83 N.E. 173. [28] Strauss v. Phillips, 189 Ill. 9, 23; 59 N.E. 560; compare Blanchard v. Williamson, 70 Ill. 647. The petitioner cites cases to the effect that probate courts in Illinois act upon equitable principles. Some of these are collected in Note 13, supra, but they go only to the point that in probating claims against an estate those courts recognize equitable doctrines, and do not remit a creditor to a court of equity if his claim is equitable rather than legal. No statute or case has been found indicating that these tribunals have independent equity jurisdiction. | 04-28-2010 | [
"299 U.S. 217 (1936) PUFAHL, RECEIVER, v. ESTATE OF ELVIRA J. PARKS, DECEASED. No. 18. Supreme Court of United States. Argued October 15, 1936. Decided December 7, 1936. CERTIORARI TO THE APPELLATE COURT, FIRST DISTRICT, OF ILLINOIS. *218 Mr. George P. Barse, with whom Mr. Otis F. Glenn was on the brief, for petitioner. *221 Mr. Franz W. Castle, with whom Messrs. Emmett J. McCarthy and Robert F. Carey were on the brief, for respondent. *220 MR. JUSTICE ROBERTS delivered the opinion of the Court. In this case we are concerned with the bearing of state law upon the enforcement of an assessment against the estate of a stockholder of a national bank. Elvira J.",
"Parks died March 20, 1928, owning twelve shares of the capital stock of the Austin National Bank of Chicago. May 17, 1928, the Probate Court of Cook County, Illinois, granted letters testamentary to the executors named in her will, who filed an inventory and supplemental inventory in the probate court within one year of the date of the letters. March 30, 1931, the Comptroller of the Currency declared the bank insolvent, closed it, and appointed the petitioner receiver, and May 21, 1931, assessed all stockholders, including the executors of Elvira J. Parks, one hundred per cent. of the par value of their stock. The executors refused to honor the receiver's demand for payment, and on September 1, 1933, he filed his claim in the Probate Court for $1,327.17, the amount of the assessment with interest to the date of filing. January 13, 1934, the court disallowed the claim. The receiver appealed to the Circuit Court, where the case was tried de novo. That court, applying a state statute, disallowed the claim as against undistributed assets in the hands of executors inventoried within one year from the date of the grant of letters, because the claim did not accrue and was not presented to the Probate Court within that period, but allowed it as to assets not inventoried within the year.",
"(From a stipulation filed in this court it appears that there are in the executors' possession inventoried assets in excess of the amount of petitioner's claim; that the estate is solvent; and that *222 there are no assets not inventoried within one year from the granting of the letters, or discovered after the expiration of that period.) The Appellate Court of the First District of Illinois affirmed the judgment.",
"A certificate of importance, requisite for a review by the Supreme Court of the State, was refused. Certiorari was granted to resolve a conflict respecting the construction of relevant federal statutes. U.S.C. Tit. 12, § 64 is in part: \"The stockholders of every national banking association shall be held individually responsible for all contracts, debts, and engagements of such association, each to the amount of his stock therein, at the par value thereof, in addition to the amount invested in such stock. .",
". .\" Section 66 is: \"Persons holding stock as executors, administrators, guardians, or trustees, shall not be personally subject to any liabilities as stockholders; but the estates and funds in their hands shall be liable in like manner and to the same extent as the testator, intestate, ward, or person interested in such trust funds would be, if living and competent to act and hold the stock in his own name.\" The petitioner asserts these sections give his claim a quality so superior to that of other contingent claims against a decedent's estate that it must be recognized by state tribunals without regard to limitations upon allowance imposed by state laws. The liability is imposed by the statute.",
"[1] The original subscriber and likewise an immediate or remote vendee of the shares assumes a status, that of stockholder. The assumption of this status involves whatever conditions or burdens the federal statutes have imposed as incident to the holding of national bank shares. The contingent *223 obligation to pay an assessment is rendered absolute by the Comptroller's action in ordering one; whether that action be taken during the stockholder's life or after his death. From the moment of the Comptroller's order for assessment the bank's receiver has a claim which would support an action of debt at common law against a living stockholder, or the executor of a deceased stockholder. And if assessment be made after the estate of a deceased stockholder has been distributed the receiver may proceed to recover the amount from distributees or heirs, if, and to the extent, they are liable for debts of the estate under the law of the domicile. [2] The first clause of § 66 obviously was intended to exempt from personal liability the executor, administrator, guardian or trustee who holds stock as such fiduciary whether standing of record in his name or in that of the decedent, ward, or settlor. The second declares that the estate and funds in the hands of an executor shall be liable as the testator would have been if living, competent, and a stockholder of record. The question is whether this clause adds anything to the obligation of the decedent which is cast upon his estate by operation of law irrespective of § 66. [3] Does it impose upon the estate a liability differing from that which the law fastens upon the personal representative to discharge out of the estate, debts accruing before or after the decedent's death?",
"We think that, as the first clause exonerates the fiduciary from personal liability, the second negatives the inference that the exoneration is to extend to the decedent's estate. This was the view taken by Judge Shipman in Davis v. Weed, 7 Fed. Cas. 186 (44 Conn. 569): \"I do not think that section 5152 [§ 66] was intended to affect the liability for assessments of estates in process *224 of settlement. The principal object of the section was to prevent a personal liability from running against executors, administrators, trustees or guardians, who had purchased as trustees, or to whom had been transferred in their names as trustees national bank stocks for the benefit of the trust estates. Having by such purchase voluntarily entered into a contingent liability for assessments, it might be claimed that a judgment de bonis propriis could be rendered against them. The main object of the section was to prevent personal judgments being rendered against such persons in whom the stock stood on the books of the bank as trustees.\" The statute evidences no intent to prefer the assessment over other claims against the estate, or to exempt the receiver from the pursuit of the remedy prescribed by the local law for collection of claims of the same sort.",
"Section 64 gives the receiver no lien for the amount of the assessment against the property of a living stockholder. The claim may only be recovered by suit or action. The judgment obtained is collectible like any other; it has no preference in distribution if the debtor's property be in the hands of a receiver, if he has made an assignment for the benefit of creditors, or become bankrupt. Section 66 makes a deceased stockholder's estate liable in like manner, and to the same extent, as he would have been if living.",
"As no lien is created against the property of a living stockholder by § 64, § 66 imposes none against his estate. [4] The statute creates an unsecured and unpreferred claim against a decedent's estate. Where the assessment has *225 been made in the decedent's lifetime an accrued and provable debt exists against his estate; if made after his death a claim against the funds and assets of the estate accrues as of the date of assessment. Although the petitioner's demand is based upon a federal statute, he may enforce it only in conformity to the law of the forum governing the recovery of debts of like nature. He might have sued in a federal court. Notwithstanding the statute providing that the citizenship of a national bank, for purposes of federal jurisdiction, shall be as if it were a corporation of the state where it has its place of business, the receiver is an officer of the United States and, as such, entitled to sue for assessments in a federal court, irrespective of the citizenship of the parties or the amount in controversy. [5] If he elect so to do, R.S. 721 (28 U.S.C. § 725) governs the trial: \"The laws of the several States, except where the Constitution, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply.\" In such a proceeding the state statute of limitations will be applied;[6] and it seems that the local substantive law governing property rights in stock will be observed.",
"[7] Nor does the principle that the jurisdiction of courts of the United States cannot be defeated by a state's laws limiting redress of its own citizens to certain tribunals[8]*226 create such inconsistency or conflict as to require the overriding of the law of the state with respect to distribution of the estate of a decedent. Where, as here, a res has come into the possession and under the control of a state court, one having a right to go into the federal court, either by reason of diversity of citizenship, or because he is a federal officer, cannot obtain a judgment or decree entitling him to interfere with the administration of the res by the court having its possession. While he may not be denied his right to prosecute an action to judgment or a suit to final decree in the federal court, such judgment or decree can do no more than adjudicate the validity and amount of his claim.",
"The marshalling of that claim with others, its priority, if any, in distribution, and all similar questions, are for the probate court upon presentation to it of the judgment or decree of the federal court. [9] Thus, though a receiver should resort to the United States District Court, he would need to present, in a probate court, any judgment obtained, if he desired payment from the assets under the control of the latter. The receiver may, as petitioner elected to do, prosecute his claim in a state court. If he does, at least in the absence of Congressional declaration to the contrary, the litigation will be governed by the common and statutory law of the state. Thus the local statute of limitations applies;[10] and the local law as to the extinguishment of the estate and the liability vel non of distributees controls. [11] If the state law requires a claim for an assessment to be prosecuted in an action of debt, the receiver cannot elect to bring some other form of action or to sue in equity; *227 conversely, if the law prescribes a suit in equity, the receiver cannot bring an action at law. And if under the state statutes demands against a decedent's estate must be proved in a probate court, the receiver cannot pursue some other form of action.",
"This is not to say that a state may deny all remedy for the substantive right arising out of the federal statute (see Seabury v. Green, supra); it is merely to say that if the state does not discriminate against the receiver's claim in favor of others of equal dignity and like character, there is no warrant for exempting the claim from the effect of local statutes governing procedure or limiting the time for prosecution of action. The petitioner, having elected to prove his claim in the appropriate state court, is bound by the laws of Illinois as to the enforcement of such claims, provided those laws are nondiscriminatory and operate equally upon all claims of the class in which his belongs. The relevant statute is § 70 of the Illinois Administration Act[12] which provides that five classes of claims against decedents' estates shall be preferred in the order named, e.g., funeral expenses, costs of administration, widow's share, etc.",
"The sixth class is: \"Sixth. All other debts and demands of whatever kind without regard to quality or dignity, which shall be exhibited to the court within one year from granting of letters as aforesaid. \"All claims and demands of whatever class not exhibited to the court within one year[13] from the granting of letters as aforesaid shall be forever barred as to property and estate of the deceased which has been inventoried or accounted for by the executor or administrator; and if the executor or administrator shall thereafter file any inventory listing other estate not previously inventoried or *228 accounted for, and shall cause notice to be published in the manner provided by Section 60 of this Act, or give such other notice as the court may direct, of a day fixed upon, which shall be not less than three months after the date of such first publication, for the filing and exhibiting of further claims against said decedent, all claims not exhibited to the court prior to the date so fixed shall be forever barred as to the property and estate listed in such inventory, and the amount remaining due on all claims exhibited to the court on or prior to the day so fixed upon as aforesaid, including those filed within one year from the granting of letters, shall be paid pro rata out of such subsequently inventoried estate, saving, however, to infants, persons of unsound mind and persons in the employment of the United States or of this State and residing outside of the United States, the term of one year after their respective disabilities are removed to exhibit their claims.\"",
"In Illinois a creditor whose claim against a decedent's estate is not due may present it for allowance and settlement provided the liability of the decedent was absolute. [14] Contingent claims may not be proved. [15] Section 70 is not a general statute of limitations but a specific provision intended to facilitate the early settlement of estates. [16] It results that a claim not presented within the year, though not entitled to be paid from assets inventoried within the year, is not barred, but may be collected out *229 of assets subsequently discovered; and this is so whether the failure timely to present the claim was due to the creditor's negligence, or to the fact that the claim was contingent in character and did not become absolute by the happening of the contingency during the year.",
"[17] If the claim is contingent, and the liability of the estate does not become absolute until after the expiration of the year, the creditor may recover from the distributees to the extent of the assets received by them respectively. [18] The claimant has only to present and prosecute his demand in the probate court, which has jurisdiction both of legal demands and those cognizable in equity. [19] While, therefore, the creditor need not resort to a court of law or equity to establish his claim, he may do so, since the jurisdiction of those courts over such claims has not been abolished. [20] He may present his claim to the probate court and, at the same time, proceed in equity in the circuit court for specific performance of the contract out of which the claim arises;[21] or present a mortgage note to *230 the probate court and bring suit in equity to foreclose the deed of trust securing it so as to share in estate assets for any deficiency in his security. [22] But whatever the forum in which he prosecutes his demand, no execution is issued upon the judgment or decree obtained. Whether the claim is presented to the probate court or litigated in some other, within the year, the judgment is that the claim be paid \"in due course of administration,\" that is, by an order of distribution out of the proceeds of inventoried assets.",
"[23] If judgment is recovered upon a demand, presented to the probate court or prosecuted at law or in equity after the expiration of the year, the judgment is special, that the claim be paid out of assets inventoried or discovered after the lapse of the year, like the common law judgment quando acciderint;[24] or that it be enforced against distributees. [25] The only bar to the recovery of such a judgment is the general statute of limitations. [26] A creditor cannot subject inventoried assets, undistributed and held by the administrator, to the payment of his claim by instituting, after the expiration of the year, and prosecuting to judgment, an action of debt against the administrator. [27] Nor can one who has failed to present his claim to the probate court, or to institute suit or action on it, within the year, resort to a court of equity *231 to have his demands paid out of undistributed inventoried assets.",
"[28] It is apparent that the decision under review enforces the policy of the state evidenced by § 70 of the Administration Act as it has been uniformly applied to claims of like character. The petitioner relies on Mortimer v. Potter, 213 Ill. 178; 72 N.E. 817, but it is not in point. The claim of the receiver for an assessment in that case accrued after the estate had been fully administered and while the stock with respect to which assessment was levied was in the hands of a trustee to whom it was devised by the testator. Under the principles of Illinois law, as has been shown, such a devisee who received assets from the decedent's estate is liable for the assessment to the extent of those assets. The petitioner also cites Zimmerman v. Carpenter, 84 Fed. 747, as authority in his favor. In that case a circuit court of the United States entered a decree charging the assets in the hands of an executor with the amount of an assessment levied after the decedent's death.",
"It is not clear from the opinion whether the court thought that § 66 creates a lien on estate assets from the date of the bank's failure or construed the section as creating a claim sui generis enforceable directly against assets in the possession of the executor and under the control of a state court of competent jurisdiction. As we have shown above, either theory is wrong. *232 In the absence of federal legislation giving priority to a claim for an assessment of stockholders' liability over other debts, or a lien upon the assets of a deceased stockholder's estate, or a special remedy, the claim is not entitled to distribution otherwise than as specified in a nondiscriminatory statute of the domicile.",
"The judgment is Affirmed. MR. JUSTICE STONE took no part in the consideration or decision of this case. NOTES [1] McClaine v. Rankin, 197 U.S. 154, 161; Christopher v. Norvell, 201 U.S. 216, 225; McDonald v. Thompson, 184 U.S. 71, 73, 74; Forrest v. Jack, 294 U.S. 158, 162. [2] Matteson v. Dent, 176 U.S. 521; Forrest v. Jack, supra; Seabury v. Green, 294 U.S. 165. [3] Matteson v. Dent, supra. [4] In Witters v. Sowles, 32 Fed. 130, 140, and in Drain v. Stough, 61 F. (2d) 668 there are statements that the statute imposes a lien on estate assets. In Rankin v. Miller, 207 Fed. 602, 611 one ground of decision was that such a lien existed. So in Drake v. Dilatush, 16 F. Supp. 120, the District Court for Eastern Illinois by decree imposed a lien upon the assets of a decedent's estate held by the executor, under circumstances like those presented in the instant case. [5] Kennedy v. Gibson, 8 Wall. 498; Price v. Abbott, 17 Fed. 506; Armstrong v. Trautman, 36 Fed.",
"275; Brown v. Smith, 88 Fed. 565; Stephens v. Bernays, 41 Fed. 401, affirmed by C.C., 44 Fed. 642; Rankin v. Herod, 140 Fed. 661. See also United States v. Weitzel, 246 U.S. 533, 541. [6] McDonald v. Thompson, supra; McClaine v. Rankin, supra; Morgan v. Hamlet, 113 U.S. 449. [7] Keyser v. Hitz, 133 U.S. 138; Christopher v. Norvell, supra. [8] Suydam v. Broadnax, 14 Pet. 67; Union Bank v. Vaiden, 18 How. 503; Hyde v. Stone, 20 How. 170; Lawrence v. Nelson, 143 U.S. 215.",
"[9] Yonley v. Lavender, 21 Wall. 276; Byers v. McAuley, 149 U.S. 608; Security Trust Co. v. Black River National Bank, 187 U.S. 211, 227. [10] McDonald v. Thompson, supra; McClaine v. Rankin, supra. [11] Matteson v. Dent, supra; Forrest v. Jack, supra; Seabury v. Green, supra. [12] Chapter 3, 171 § 70 Ill. Rev. Stats., 1935. [13] An earlier statute fixed the time at two years. Many of the Illinois cases cited arose under the prior law. [14] Cahill's Ill. Stat. 1923, Ch. 3 ¶ 68; Johnson v. Tryon, 78 Ill. App. 158; Dunnigan v. Stevens, 122 Ill. 396; 13 N.E. 651; Foreman Trust & Savings Bank v. Tauber, 348 Ill. 280; 180 N.E. 827.",
"[15] Stone v. Clarke's Administrators, 40 Ill. 411; Dugger v. Oglesby, 99 Ill. 405; Mackin v. Haven, 187 Ill. 480; 58 N.E. 448; Union Trust Co. v. Shoemaker, 258 Ill. 564; 101 N.E. 1050; Chicago T. & T. Co. v. Fine Arts Bldg., 288 Ill. 142; 123 N.E. 300; Robison v. Harrington, 61 Ill. App. 543; Brown v. Rouse, 116 Ill. App. 513; Bocock v. Leet, 210 Ill. App. 402. [16] Waughop v. Bartlett, 165 Ill. 124; 46 N.E. 197; Durflinger v. Arnold, 329 Ill. 93; 160 N.E. 172. [17] Peacock v. Haven, 22 Ill. 23; Russell v. Hubbard, 59 Ill. 335; Shephard v. Rhodes, 60 Ill. 301; Shepard v. National Bank, 67 Ill. 292; Snydacker v. Swan Land Co., 154 Ill. 220; 40 N.E. 466; Union Trust Co. v. Shoemaker, 258 Ill. 564; 101 N.E.",
"1050; Chicago T. & T. Co. v. Fine Arts Bldg., 288 Ill. 142; 123 N.E. 300; People v. Small, 319 Ill. 437; 150 N.E. 435. [18] Snydacker v. Swan Land Co., 154 Ill. 220; 40 N.E. 466; Union Trust Co. v. Shoemaker, 258 Ill. 564; 101 N.E. 1050; Beebe v. Kirkpatrick, 321 Ill. 612; 152 N.E. 539; Durflinger v. Arnold, 329 Ill. 93; 160 N.E. 172; Whittemore v. Weber, 217 Ill. App. 628. [19] Hurd v. Slaten, 43 Ill. 348; Matter of Corrington, 124 Ill. 363; 16 N.E. 252; Matthews v. Kerfoot, 167 Ill. 313; 47 N.E. 859; Trego v. Cunningham's Estate, 267 Ill. 367; 108 N.E. 350; Pollock v. Cantlin, 253 Ill. App.",
"229; In re Estate of Kinsey, 261 Ill. App. 481. [20] Rosenthal v. Magee, 41 Ill. 370; Wells v. Miller, 45 Ill. 33; Mason v. Tiffany, 45 Ill. 392; Darling v. McDonald, 101 Ill. 370; Roberts v. Flatt, 142 Ill. 485; 32 N.E. 854; Bradwell v. Wilson, 158 Ill. 346; 42 N.E. 145. [21] Aldrich v. Aldrich, 287 Ill. 213, 224; 122 N.E. 472; Crawley v. Howe, 223 Ill. App. 394, 398. [22] Kittredge v. Nicholes, 162 Ill. 410, 412; 44 N.E. 742; Dyer v. Hall, 201 Ill. App. 183. [23] See the cases in Note 19. Welch v. Wallace, 8 Ill. 490; Peck v. Stevens, 10 Ill. 127; Bull v. Harris, 31 Ill. 487; Dye v. Noel, 85 Ill. 290. [24] Bradford v. Jones, 17 Ill. 93; Peacock v. Haven, 22 Ill. 23; Rosenthal v. Magee, 41 Ill. 370; Mulvey v. Johnson, 90 Ill. 457; Darling v. McDonald, 101 Ill. 370, 374. [25] Roberts v. Flatt, 142 Ill. 485; 32 N.E.",
"484; Union Trust Co. v. Shoemaker, 258 Ill. 564; 101 N.E. 1050. [26] Guy v. Gericks, 85 Ill. 428; Wilding v. Rhein, 12 Ill. App. 384. [27] Pearson v. McBean, 231 Ill. 536; 83 N.E. 173. [28] Strauss v. Phillips, 189 Ill. 9, 23; 59 N.E. 560; compare Blanchard v. Williamson, 70 Ill. 647. The petitioner cites cases to the effect that probate courts in Illinois act upon equitable principles. Some of these are collected in Note 13, supra, but they go only to the point that in probating claims against an estate those courts recognize equitable doctrines, and do not remit a creditor to a court of equity if his claim is equitable rather than legal. No statute or case has been found indicating that these tribunals have independent equity jurisdiction."
] | https://www.courtlistener.com/api/rest/v3/opinions/102718/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
187 B.R. 861 (1994) In re Anthony SICARI, a/k/a Sicari Salerno, a/k/a Anthony Salerno, Debtor. CONGRESS TALCOTT CORPORATION, Plaintiff, v. Anthony SICARI, Debtor-Defendant. Bankruptcy No. 92-31419. Adv. No. 92-7096. United States Bankruptcy Court, S.D. New York. September 14, 1994. *862 *863 *864 Todd Strassberg, Strassberg & Strassberg, P.C., New York City, for plaintiff. Jeffrey L. Sapir, White Plains, NY, for debtor-defendant. DECISION ON OBJECTION TO DISCHARGE PURSUANT TO 11 U.S.C. § 727(a)(2)(A) and § 727(a)(4)(A) JEREMIAH E. BERK, Bankruptcy Judge. Congress Talcott Corporation filed a complaint on November 5, 1992 seeking to bar debtor's discharge under 11 U.S.C. § 727(a)(2)(A) and § 727(a)(4)(A). Trial of this adversary proceeding commenced on June 28, 1993,[1] continued on September 27, 1993[2] and December 6, 1993[3], and concluded on December 7, 1993.[4] At the conclusion of Plaintiff's case, Defendant moved for dismissal on partial findings pursuant to Fed.R.Civ.P. 52(c) and Fed. R.Bankr.P. 7052. Opposition to the motion was filed by Plaintiff, and the motion was taken under advisement pending the submission of Defendant's case. This decision resolves that motion. For the reasons set out herein, I am satisfied that Plaintiff has sustained its burden of proof on its objections to discharge under both § 727(a)(2)(A) and § 727(a)(4)(A) of the Bankruptcy Code.
*865 FINDINGS OF FACT Introduction. Anthony Sicari (hereafter "Sicari"), filed an individual voluntary petition for relief under Chapter 11 of the Bankruptcy Code on June 9, 1992. On December 23, 1992 his case was converted to one under Chapter 7 liquidation. Plaintiff, a creditor of Sicari and his now-defunct corporation, filed an unsecured Proof of Claim herein on July 27, 1992 in the amount of $315,246.75, plus interest. Plaintiff's claim is based on a judgment entered on November 6, 1991 against Sicari and others in the New York State Supreme Court, New York County, in an action entitled Congress Talcott Corporation v. Anthony Sicari, Inc., Anthony Sicari, Emanuel Sicari and Rallye Motors, Inc.[5] The judgment, docketed in the Orange County Clerk's Office on November 14, 1991, arose from the sale of goods by Plaintiff to Anthony Sicari, Inc., and the personal guaranty thereof by Sicari individually. Plaintiff alleges that at a time when Sicari was insolvent he initiated a series of fraudulent transfers of his personal assets, that these transfers were made without fair consideration, were gratuitous or for inadequate consideration, and were made with intent to hinder, delay or defraud creditors. Plaintiff further alleges that Sicari intentionally concealed these transfers, failed to disclose them in his bankruptcy petition, failed to disclose his equitable interest in transferred assets, and that such failure constitutes a false oath in his bankruptcy case. Plaintiff claims that Sicari's discharge in bankruptcy should, therefore, be denied pursuant to both 11 U.S.C. § 727(a)(2)(A) and § 727(a)(4)(A). Background. In 1985, Sicari began the now-defunct Anthony Sicari, Inc. to design and manufacture ladies' garments. He operated the business from three plants in Walden, New Paltz and Kingston, New York, and maintained a showroom in Manhattan. Sicari owned and operated the business from its inception until its bankruptcy liquidation in 1992. At its peak, the corporation employed more than 300 persons. Plaintiff points to a number of prepetition asset transfers from Sicari to his relatives and to a friend. Esther Sicari is his wife, Diane Cagliuso is his sister-in-law, Santa Salerno is his mother and Emanuel Sicari is his uncle. All are "relatives" and "insiders" within the purview of 11 U.S.C. § 101(31)(A)(i). (V).[6] Tonia Cara, is a long-time friend of the Sicari family. Real property transfers were made by Sicari shortly before the entry of substantial judgments against him. Creditor Israel Discount Bank obtained a judgment for $4,110,882.55 against Sicari, his wife Esther and his uncle Emanuel on December 5, 1990 in the New York State Supreme Court. One week earlier, creditor Quaker Fabrics obtained a judgment for $515,552.07 against the same defendants. Sicari's testimony throughout this trial was often unpersuasive, sometimes confusing, evasive or nonresponsive. His alleged lack of knowledge of the many suspect asset transfers, lack of documentation and records relating to them, and his explanation of "mistakes" by others, at times seemed incredible, particularly in light of his prior experience in business and financial matters. Section 727(a)(2)(A) The Kingston property. On August 13, 1980 Sicari and his wife Esther acquired a commercial building, now known as 290-292 Fair Street, in the City of Kingston, New York (hereafter "Kingston property"), for approximately $47,000.00. (IV, Defendant's Exhibit I; III, 347). No significant improvements were made to the *866 property prior to its transfer by them. (III, 347). In February, 1983, Sicari and his wife established a "Clifford Shortterm Trust" for the benefit of their children. (V; Plaintiff's Exhibit 9).[7] Esther Sicari served as trustee of the Trust from that time until about 1990, when Sicari's sister-in-law, Diane Cagliuso, replaced her as trustee. (III, 344-45; II, 293; Plaintiff's Exhibit 9). Although Sicari testified that the Kingston property was conveyed to the Trust in 1983 (III, 336-37, 344, 347), the deed running from him and his wife to the Trust is dated August 24, 1990, and was recorded in the Ulster County Clerk's Office on October 22, 1990. (Plaintiff's Exhibit 1; II, 267). Edward Levine testified that based on his nine years of employment as Assessor for the City of Kingston and his examination of the City Assessment Roll, the market value of the Kingston property in either August or October, 1990, was $221,500.00. (I, 27-28). The tax stamps on the deed reflect a consideration of no more than $30,000.00. Sicari testified that he and his wife divested themselves of all interest in the Kingston property at the time of its transfer to the Trust. (III, 345, 350, 356). Plaintiff, however, contends that despite the apparent transfer to the Trust in 1990, Sicari retained an equitable interest in, and continued to exercise control over and to receive rental income from, the Kingston property. It is claimed, therefore, that the transfer to the Trust was a sham transaction made with intent to hinder, delay or defraud creditors, and that Sicari failed to disclose an equitable interest in the property in his bankruptcy schedules. Rental Income Tenant, Fredi Kletter. Fredi Kletter, a tenant of the Kingston property, testified that she had been conducting business there for nine years as Catskill Army Navy. Between May 10, 1991 and June 9, 1992, she paid $500.00 per month as rent for the premises. Kletter produced an unsigned "Lease Agreement" setting forth a term from March 1, 1991 to March 31, 1996, as the written agreement memorializing the rental agreement she had negotiated with someone named Irene Lawrence. (Plaintiff's Exhibit 7; I, 39-40). Kletter was unable to state whether Irene Lawrence represented the landlord, but testified that Lawrence maintained the property. (I, 34, 52). The unsigned lease bears the heading: "Anthony Sicari, 521 Main Street, New Paltz, N.Y. 12561, (914) 255-4550," and shows "Anthony & Esther Sicari" as the landlords. According to Kletter, this lease was not signed because changes were to be made to it and a new lease was to be drawn. (I, 51). Kletter did not know if the changes pertained to the name of the landlord(s). As far as she knew the new lease "was just going to be the same," and she acknowledged her own notation at the top of the lease agreement stating: "Spoke to Patty on 1-2-92 about not receiving lease not to worry about rent will honor this agreement." (I, 51-52). Kletter further testified that she never saw a new lease, that she could not recall whether she ever met the landlord, and that she made rent checks payable to whom required. (I, 52-53). Sicari could not explain why the lease, albeit unsigned, would contain a heading bearing his name, address and telephone number, and show his wife and him as landlords. (II, 286). He acknowledged, however, that Irene McGovern managed buildings he owned in the early 1990's, and that his secretary/bookkeeper, Patty Jacobsen, managed the Kingston property after January 1, 1990. (II, 291-92). Tenant Kletter further testified that she received a letter addressed "Dear Tenant," stating that "[e]ffective 5-11-92, all rental checks are payable to: Sicari-Clifford Trust, RD 1 box 611, Gardiner, N.Y. 12525. Thank You, Diane Cagliuso Trustee." (Plaintiff's Exhibit 8; I, 42). Thereafter, Kletter made her rent checks payable to the Sicari-Clifford *867 Trust. (Plaintiff's Exhibit 6, Ck. # 4133, dated 6-6, 1992; I, 44, 47). Twelve cancelled rent checks produced by Kletter cover the period from May, 1991 to April, 1992. (Plaintiff's Exhibit 6). Of those twelve checks, ten are payable to either "A. Sicari" or "Anthony Sicari," and two are payable to "A & E Sicari." Kletter testified that she made those checks payable as such pursuant to the provisions of the unsigned lease agreement. (I, 40). Thus, despite Sicari's testimony that the Kingston property had been transferred to the Trust in 1983, (1) its transfer is evidenced by a deed executed and recorded in 1990, and (2) after the deed transfer, Kletter continued to make rent checks payable to Sicari and his wife. Plaintiff established that two rent checks never found their way into the Trust account. Rent check No. 341 of Catskill Army Navy, dated October 8, 1991 and payable to "Anthony Sicari," was endorsed by Sicari and deposited in his wife's personal bank account. (Plaintiff's Exhibit 6; Plaintiff's Exhibit 30, 41; Plaintiff's Exhibit 33; II, 239, 270-71). Rent check No. 4063 of Catskill Army Navy, dated March 5, 1992 payable to "A. Sicari," was endorsed by Sicari and deposited in the personal bank account of Tonia Cara, a long-time family friend. (Plaintiff's Exhibits 6 and 32; II, 224-28). Rental Income Tenant, John and Beverly DeGasperis. John DeGasperis testified that he is employed by John Street Jewelers, a business owned by his wife, Beverly, and operated at the Kingston property. The premises are occupied pursuant to written lease; however, DeGasperis did not produce the lease and could not recall who is named thereon as landlord. DeGasperis produced nine rent checks for the Kingston property, dated from September 13, 1991 to June 15, 1992, all bearing his signature. The first six checks (the last of which is dated April 28, 1992) are payable to "Anthony Sicari, Inc." The remaining three checks, all dated in June, 1992, are payable to the "Sicari-Clifford Trust." Payment of rent by DeGasperis to the Sicari-Clifford Trust commencing in June, 1992 is consistent with another tenant, Catskill Army Navy, so doing that same month. Payment of rent by both tenants to the "Sicari-Clifford Trust" began the same month that Sicari filed his personal bankruptcy petition. Rental Income Tenant, Regina Heller. A rent check dated March 12, 1992 from Regina Heller, another tenant of the Kingston property, was deposited in Sicari's wife's personal bank account. This check was payable to "Anthony Sicari" and marked "Rent/Security 290 Fair." (Plaintiff's Exhibit 33; II, 267-68). Another check from Regina Heller is dated May 1, 1992, made payable to "Anthony Sicari," and marked "May Rent 290 Fair." It bears Sicari's endorsement and was deposited in the Trust bank account. (Plaintiff's Exhibit 31). The insurance proceeds check. In April, 1992 a check of Chubb Group of Insurance Companies in the amount of $45,552.00 was deposited to the Sicari-Clifford Trust bank account. The check was payable to "Anthony & Esther Sicari, The Money Store/Empire State Inc. & Key Bank of Eastern New York," and bears the endorsements of all payees. Sicari testified that the check represented insurance proceeds for damage sustained to the roof of his personal residence during an ice storm. He told his secretary/bookkeeper, Patty Jacobsen, that the check was for repair of his roof and that she should use it to pay the contractor in cash as the repair work progressed. (III, 394-95). Although Sicari did not personally transfer funds from the Trust or personally pay the contractor, he believes that $45,500.00, as shown on the invoice of Compact Air Systems, Ltd., the roof-repair contractor, was paid in cash to its owner, a Mr. Castro, by his secretary/bookkeeper. (III, 390-93; Defendants Exhibit P). The invoice of Compact Air Systems, Ltd. is dated May 22, 1992 and reflects an initial payment of $35,000.00. Additional payments are noted thereafter in the amount of $5,000.00 on May 26, $5,000.00 on May 29, and $500.00 on May 29, 1992. (Defendant's Exhibit P). *868 Sicari's secretary/bookkeeper, Patricia Jacobsen, testified that she "took care of the payments" to the roof-repair company and that the payments were made in cash. (IV, 454-456, 459-60; Defendant's Exhibit P). Jacobsen obtained the cash from Diane Cagliuso, trustee of the Sicari-Clifford Trust, who would "cash the checks . . . and give [Jacobsen] the money." (IV, 459). After deposit of the insurance proceeds check into the Trust bank account on April 29, 1992, the following checks were drawn on the Trust: May 7, 1992, Check No. 507 to the order of "Cash," $5,000.00, endorsed by Diane Cagliuso; May 8, 1992, Check No. 508 to the order of "Cash," $5,000.00, endorsed by Diane Cagliuso; May 11, 1992, Check No. 509 to the order of "Cash," $5,000.00, endorsed by Diane Cagliuso; May 12, 1992, Check No. 510 to the order of "Cash," $5,000.00, endorsed by Diane Cagliuso; May 14, 1992, Check No. 511 to the order of "Cash," $5,000.00, endorsed by Diane Cagliuso; May 18, 1992, Check No. 512 to the order of "Cash," $5,000.00, endorsed by Diane Cagliuso; May 21, 1992, Check No. 513 to the order of "Cash," $5,000.00, endorsed by Diane Cagliuso. These Trust account checks total $35,000.00. Sicari claims not to have known that the $45,552.00 insurance proceeds check was deposited to the Trust account. (II, 245). However, he acknowledged his endorsement on it and testified that the check was given to his secretary/bookkeeper to procure the remaining endorsements for deposit. Sicari could not explain why an insurance proceeds check covering damage to his personal residence would find its way into his children's Trust account. Nor did he offer any evidence to substantiate his claim that the total amount of the insurance proceeds check was either returned to him by the Trust or expended on his behalf. Payments apparently received by the roof-repair contractor total $45,500.00; withdrawals from the Trust account subsequent to the deposit of the insurance proceeds check total $35,000.00. Sicari failed to account for the remaining $10,500.00 of insurance proceeds which found its way into the Trust account. The Virgo Building. Sicari and his wife also owned real property located at 11-15 Main Street, New Paltz, New York, known as the "Virgo Building," which they had purchased in or about 1979. (II, 261; III, 313; Plaintiff's Exhibit 2). By deed dated August 22, 1990, Sicari and his wife transferred this property to their long-time friend Tonia Cara. The deed was recorded in the Ulster County Clerk's Office on September 25, 1990. (V; Plaintiff's Exhibit 2; III, 313). Sicari testified that he has known Tonia Cara for fifteen years as a friend of his mother and that he "sold" the Virgo Building to her in 1990 for $161,000. (II, 258-59, III, 316). Plaintiff contends that this transfer was a sham transaction, made without fair consideration during the pendency of Plaintiff's state court action against Sicari, and was effected with intent to hinder, delay or defraud creditors. Sicari explained that a $76,000 debt owing by him to Tonia Cara was "forgiven" in exchange for the transfer of the Virgo Building to her, and that another "approximately $76,000" was paid to his wife in cash, although he did not know when. (III, 314-318; 320). He did not account for the remaining $9,000 balance of the alleged $161,000 sale price. His trial testimony on this point was inconsistent with his pre-trial deposition testimony of February 3, 1993. (III, 324-27). At the deposition Sicari testified that payment of the $161,000 purchase price for transfer of the Virgo Building to Tonia Cara was made by satisfaction of the mortgage with Intercounty Bank, payment of a "small amount of money" owed to Cara for maintenance services and repair of the building, and payment of a check for "approximately $100,000." (III, 325-327; Plaintiff's Exhibit 30, 13-16). Sicari could not produce any records or documentation to substantiate receipt of payment for sale of the Virgo Building to Cara, claiming that he had none. (II, 264-65). Vincent Giordano, a tenant of the Virgo Building, testified that he and his wife have occupied an apartment there since August, 1991 pursuant to written lease. The Lease Agreement produced by Giordano covers a *869 term of two years commencing on August 1, 1991 and ending on July 31, 1993. The landlord is shown thereon as "Tonia Cara c/o Sicari," and bears a heading which states: "Anthony Sicari, 521 Main Street, New Paltz, N.Y. 12561. (914) 255-4550." (Plaintiff's Exhibit 18). Two signature pages are included in Giordano's copy of this lease. Page 3 bears the photocopied signatures of both tenants affixed on July 22, 1991, of Esther Sicari as landlord, and of Irene McGovern, Manager, as a witness. Page 4 bears photocopied signatures of both tenants affixed July 22, 1991, of Tonia F. Cara as landlord, and of Irene McGovern as witness. Giordano testified that he and his wife signed the lease in the "dress building" of Anthony Sicari, Inc., and when they gave the lease to "Irene, the property manager," Esther Sicari's signature appeared thereon as landlord. Two weeks later a copy of the lease was returned to the Giordanos. However, within a few days thereafter, Giordano received a new signature page with Tonia Cara's signature substituted for Esther Sicari's as landlord. (I, 84-94; Plaintiff's Exhibit 18). Tenant Giordano produced eleven cancelled checks in payment of security and rent for the period August, 1991 through May, 1992. All are payable to Tonia Cara. Giordano testified that one of two checks originally drawn for the first month's rent and security was made payable to Esther Sicari as directed by the property manager, Irene. (I, 100, 109). Giordano testified that these two checks were lost by the landlord, and replacements were issued payable to Tonia Cara. (I, 94; Plaintiff's Exhibit 19). One of the twelve rent checks was deposited in the Trust bank account on or about May 1, 1992. (Plaintiff's Exhibit 31; II, 259). Five of the rent checks were deposited in Sicari's wife's personal bank account between August 26, 1991 and December 11, 1991. (Plaintiff's Exhibit 33; II, 269-70). The Medical Building. Since 1987, Sicari owned jointly with his uncle, Emanuel Sicari, commercial property at 75 East Main Street, Walden, New York, known as the "Medical Building." (II, 246; Plaintiff's Exhibit 3). Vladimir Nabagiez, M.D. was a tenant of Medical Building and paid rent monthly. Sicari identified thirteen cancelled rent checks of Dr. Nabagiez, dated from May 1, 1991 to May 1, 1992. (Plaintiff's Exhibit 24; II, 246-47). Ten are payable to Anthony Sicari, Inc., and three are payable to Anthony Sicari individually. Eleven of these checks were deposited into the Trust bank account within the year preceding Sicari's bankruptcy filing. (Plaintiff's Exhibits 24, 31; II, 246-54). Plaintiff contends that the transfer of these rent checks to the Trust were made without fair consideration and good faith, that the Trust assets are, in actuality, the personal assets of Sicari, and that the transfers to the Trust within one year of Sicari's filing bankruptcy were made with intent to hinder, delay or defraud creditors. Widmark Farm. Sicari testified that he and his uncle, Emanuel, also owned property known as "Widmark Farm". Howard Widmark was a tenant of the property. Rental income of $600.00 from this tenant in the form of a postal money order for "Rent 11/15/91 to 12/15/91" was deposited to the Sicari-Clifford Trust bank account on November 26, 1991. The money order was endorsed "Anthony Sicari," with the Trust bank account number written beneath. (Plaintiff's Exhibit 31). Another Postal Money Order from Widmark payable to Anthony Sicari for "Rent 4/15/92 to 5/15/92" in the amount of $600.00 was deposited in the Trust bank account on or about May 1, 1992, approximately one month prior to Sicari's bankruptcy. (Plaintiff's Exhibit 31; II, 255). Upon the evidence presented, I am satisfied that within one year before bankruptcy Sicari transferred personal assets in an attempt to put them beyond the reach of the collection efforts of his creditors. Section 727(a)(4)(A) False oath or account. Plaintiff alleges that Sicari's failure to disclose various assets in his bankruptcy schedules constitutes a false oath under Code § 727(a)(4)(A). Plaintiff claims that Sicari's *870 transfer of personal assets to the Sicari-Clifford Trust created an equitable interest in the Trust which should have been listed in his bankruptcy schedules and that this omission constitutes a willful concealment of assets. Plaintiff further claims that deposit of rental income into bank accounts of his wife and Tonia Cara likewise created an equitable interest in those accounts which should have been listed in Sicari's bankruptcy schedules. Plaintiff also points to Sicari's failure to schedule his interest in "Sicari Associates" as further evidence of his attempt to conceal assets from his creditors. Sicari Associates is "an association" between Sicari and his uncle, Emanuel, which existed throughout the year preceding the filing of this bankruptcy case. Sicari owned ninety percent and Emanuel owned ten percent of Sicari Associates. The assets of Sicari Associates apparently include four parcels of real property, which parcels are separately listed in Sicari's bankruptcy schedules. (V). However, Sicari was obligated also to disclose his interest in Sicari Associates. Upon the evidence presented, I am satisfied that Sicari intentionally failed to disclose his interests in the Kingston and Virgo properties, the Trust bank account, the bank accounts of his wife and Tonia Cara and his interest in Sicari Associates.
DISCUSSION CODE SECTION 727(a)(2)(A) Code § 727(a)(2)(A) provides: (a) The court shall grant the debtor a discharge, unless (2) the debtor, with intent to hinder, delay, or defraud a creditor or an officer of the estate charged with custody of property under this title, has transferred, removed, destroyed, mutilated, or concealed, or has permitted to be transferred, removed, destroyed, mutilated, or concealed (A) property of the debtor, within one year before the date of the filing of the petition; . . . 11 U.S.C. § 727(a)(2)(A). To bar a debtor's discharge under § 727(a)(2), an objectant must prove that: (1) the act complained of was done at a time subsequent to one year before the date of the filing of the petition; (2) with actual intent to hinder, delay, or defraud a creditor or an officer of the estate charged with custody of property under the Bankruptcy Code; (3) that the act was that of the debtor or his duly authorized agent; and (4) that the act consisted of transferring, removing, destroying or concealing any of the debtor's property, or permitting any of these acts to be done. Baltic Linen Co., Inc. v. Rubin (In re Rubin), 12 B.R. 436, 441 (Bankr.S.D.N.Y. 1981); 4 Collier on Bankruptcy, ¶ 727.02[b] (15th ed. 1994). In furtherance of the principle of permitting the honest debtor a debt-free fresh start in life, objections to discharge are to be construed strictly against the objector and liberally in favor of the debtor. Bank of Pennsylvania v. Adlman (In re Adlman), 541 F.2d 999, 1003 (2d Cir.1976). The burden of proof on an objection to discharge lies with the objectant (Fed.R.Bankr.P. 4005), and each element of the objection must be established by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 111 S. Ct. 654, 112 L. Ed. 2d 755 (1991); Beaubouef v. Beaubouef (In re Beaubouef), 966 F.2d 174 (5th Cir.1992). However, when sufficient evidence is presented by the plaintiff to establish a prima facie case, the burden then shifts to the debtor to offer credible evidence in rebuttal. Devers v. Bank of Sheridan, Montana (In re Devers), 759 F.2d 751, 754 (9th Cir.1985); EFA Acceptance Corporation v. Cadarette (In re Cadarette), 601 F.2d 648, 650 (2nd Cir.1979); Continental Illinois National Bank and Trust Company of Chicago v. Bernard (In re Bernard), 99 B.R. 563, 570 (Bankr.S.D.N.Y.1989). Rental income from the Medical Building. Sicari holds a ninety percent ownership interest in the Medical Building, which he owns jointly with his uncle. Eleven rent checks, payable to either Anthony Sicari, Inc. or Anthony Sicari individually, dated between May 1, 1991 and May 1, 1992, were deposited to the Sicari-Clifford Trust account, in which Sicari claims to have held no *871 interest, within the year prior to his bankruptcy filing. (III, 423). Sicari claimed to have no knowledge that rent checks were deposited to the Sicari-Clifford Trust bank account. Rent checks were received at Sicari's business address, and Sicari had instructed his secretary/bookkeeper to deposit them. (III, 405-06). Sicari testified that his individual and corporate endorsements appearing on the rent checks, either in his name or that of Anthony Sicari, Inc., were in the handwriting of his secretary/bookkeeper, Patricia Jacobsen (II, 247), whom he had authorized to endorse checks in his name and to make deposits to his various bank accounts. (II, 284). Sicari explained that any erroneous deposits would be reconciled at the end of each month. (III, 407). He offered no evidence, however, to show the return of any rental income from the Trust account to his personal account. Although Sicari's accountant, Scott M. Stone, testified on his behalf, no testimony was elicited to support Sicari's claim that the rental income was returned to him from the Trust. Sicari did not explain why rental income belonging to him continued to find its way into the Trust bank account, month after month, even after he had learned of the "erroneous" deposits. Sicari's testimony that these rent deposits were returned to him by means of end-of-month reconciliations belies his denial of knowledge of the erroneous Trust deposits. Moreover, this testimony is inconsistent with his statement that he received no money from the Trust during the year prior to filing his bankruptcy petition. (III, 426). Clearly, if personal rental income deposited to the Sicari-Clifford Trust within the year prior to the bankruptcy filing was not returned to Sicari, a transfer of assets has, in fact, occurred within the proscribed one-year period.[8] The objectant to discharge must further establish that the act was that of the debtor or his duly authorized agent. Sicari testified that his secretary/bookkeeper endorsed the rent checks and made the deposits to his bank accounts. He further acknowledged that she did so with his authorization and at his specific instruction. (II, 284; III, 406). Sicari's claim of ignorance as to the conduct of his business affairs and the acts of his secretary/bookkeeper is unpersuasive. Sicari knew the rent checks were being deposited to incorrect bank accounts by virtue of his knowledge of the alleged month-end account reconciliations. Even after Sicari became aware of these "erroneous" rent-check deposits, it appears that they continued and that no steps were taken to assure that deposits would be made to the proper accounts in the future. To sustain its objection to discharge, Plaintiff must also show that at the time of the transfers Sicari had the requisite intent to hinder, delay or defraud his creditors. Actual intent is required, although fraudulent intent may be established by circumstantial evidence or by inferences drawn from a course of conduct. Devers v. Bank of Sheridan, Montana (In re Devers), 759 F.2d 751, 753-54 (9th Cir.1985). Because of the unlikelihood that a debtor will admit to a fraudulent intent, "the courts may deduce fraudulent intent from all the facts and circumstances of a case." Devers, at 754. Further, a debtor's reckless indifference to the truth has been held to be the equivalent of fraud for purposes of an objection to discharge under § 727. Diorio v. Kreisler-Borg Construction Co. (In re Diorio), 407 F.2d 1330 (2nd Cir.1969); MacLeod v. Arcuri (In re Arcuri), 116 B.R. 873, 883 (Bankr. S.D.N.Y.1990). Various factors are recognized as indicia of fraud under § 727(a)(2)(A). In Pavy v. Chastant (In re Chastant), 873 F.2d 89 (5th Cir.1989), the court, (citing In re Schmit, 71 B.R. 587 (Bankr.D.Minn.1987)), examined the following factors: (1) the lack or inadequacy of consideration; (2) the family, friendship or close associate relationship between the parties; (3) the retention of possession, benefit or use of the property in question;
*872 (4) the financial condition of the party sought to be charged both before and after the transaction in question; (5) the existence or cumulative effect of the pattern or series of transactions or course of conduct after the incurring of debt, onset of financial difficulties, or pendency or threat of suits by creditors; and (6) the general chronology of the events and transactions under inquiry. Chastant, 873 F.2d at 91. These factors are relevant here. First, there is no claim that the transfers of rental income to the Trust account were made for consideration; rather, the transfers are claimed to have been made by mistake. Although Sicari claims the rent moneys were returned to him by the Trust, he offered nothing to substantiate any repatriation of these funds. Additionally, this claim contradicts his testimony that he did not receive money from the Trust during the year prior to bankruptcy. (III, 426). I find that these transfers were gratuitously made. Second, the rental income was transferred to the Sicari-Clifford Trust for the benefit of Sicari's children. "A presumption of actual fraudulent intent necessary to bar a discharge arises when property is either transferred gratuitously or is transferred to relatives." In re Chastant, Id. at 91, (quoting In re Butler, 38 B.R. 884, 888 (Bankr.D.Kan.1984)). A transfer of property to relatives "will be subject to close scrutiny, and `the relationship of the parties in conjunction with other circumstances will often make the [plaintiff's] case compelling notwithstanding the absence of direct evidence of fraud.'" Loeber v. Loeber (In re Loeber), 12 B.R. 669 (Bankr.D.N.J.1981); Accord, In re Chastant, at 91. In In re Chastant, 873 F.2d 89, 91 (5th Cir.1989), where the debtor transferred property to a trust established "both gratuitously and for his children," the Court stated: [t]his creates a presumption of an intent to defraud establishing plaintiff's prima facie case and shifting to [debtor] the burden of demonstrating that he lacked fraudulent intent. Chastant, at 91. Upon debtor's failure to rebut this presumption, the Court denied discharge under § 727(a)(2)(A). Similarly, Sicari transferred property to the Trust for the benefit of his children without consideration. A presumption of fraudulent intent thus arises, shifting to Sicari the burden of establishing that he lacked such intent. Sicari claimed that the deposits of his personal rental income into the Trust account were mistakenly made and that these deposit errors were corrected by his secretary/bookkeeper and his accountant through a reconciliation of bank accounts at the end of each month. However, no bank statements, checks or deposit slips were produced to support his claim that these funds were ever returned to him. Curiously, although Sicari called his accountant as a witness, nothing was offered to verify Sicari's claim that reconciliation of accounts and repatriation of funds was ever made. Patricia Jacobsen, Sicari's secretary/bookkeeper, outlined the numerous and diverse duties encompassed by her employment, which included the collection and deposit of rent checks generated from the various Sicari properties. (IV, 448). Jacobsen acknowledged that she had authority to sign Sicari's name on checks for purposes of depositing them to bank accounts. When asked whose name she had authority to sign, Jacobsen responded, "Mr. Sicari's. To endorse the checks and deposit them." (IV, 449). Jacobsen acknowledged that checks were sometimes deposited to incorrect accounts and testified that the errors were corrected by the transfer of funds to the correct account. (IV, 450). No documentation was offered to support any transfers that might have corrected these "erroneous" deposits of Sicari's rental income. Jacobsen's testimony as to her duties and the authority delegated to her during her six years of employment as Sicari's secretary/bookkeeper was consistent with Sicari's testimony in that regard. No claim is made that Jacobsen acted without, or beyond the scope of, her authority. Considering the type of duties delegated by Sicari to her over the six-year employment, including the management *873 of his properties and the hiring of property managers and real estate agents, it must be concluded that Sicari held confidence in Jacobsen's ability to properly perform them. Surely Sicari had ample opportunity to observe, supervise and assess Jacobsen's performance. It must further be concluded that a long-time employee entrusted with management of numerous bank accounts and diverse rental properties possessed the ability to comprehend the importance of maintaining separate bank accounts and customary bank and other records. Further, if Sicari retained no control over the Sicari-Clifford Trust, as he now claims, no explanation was offered as to how or why his secretary/bookkeeper would have access to bank records so as to enable her to deposit Sicari's personal funds to the Trust account. Nor was anything offered to explain why Jacobsen would have repeatedly deposited Sicari's personal funds to the Trust account, nor why she would have continued to make these erroneous deposits after being informed by Sicari's accountant of the mistakes. Eleven separate monthly rent checks from the Medical Building for rent between May 1, 1991 and May 1, 1992, were "misdeposited" to the Trust bank account within the year prior to bankruptcy, although each check was made payable to either "Anthony Sicari" or "Anthony Sicari, Inc." The remaining factors which may evidence fraudulent intent also lead to the conclusion that Sicari transferred property with intent to hinder, delay or defraud his creditors. Inquiry is first made into whether Sicari retained possession, benefit or use of the property transferred. While Sicari claims that the numerous deposits of personal funds to the Sicari-Clifford Trust account were the result of "secretarial errors," he did not reveal why his secretary/bookkeeper had access to the Trust account at all. He further claimed that these "errors" were corrected by his accountant and his secretary/bookkeeper by means of month-end reconciliations, but had no records or bank statements to support this. The Trustee, Diane Cagliuso, who presumably would have made the correcting bank transfers, did not testify. Further, the $45,552 roof-repair insurance proceeds check payable to Sicari personally was also deposited to the Trust account by "mistake," while only $35,000 of it appears to have been paid out to the roofing contractor. No evidence was presented to substantiate Sicari's claim that the balance of the insurance proceeds of $10,552.00 was paid on his behalf or returned to him from the Trust. Although Sicari insists that he retained no interest in his children's Trust, the conclusion is inescapable that his personal funds went in and out of the Trust account on a regular basis. It defies credulity that this practice, continued over a period of time without any account-correction transfers being made, resulted from "secretarial error." Rather, I am satisfied that Sicari retained sufficient control over and use of the Sicari-Clifford Trust funds to support a finding of intent to hinder, delay or defraud creditors. The remaining factors indicative of fraudulent intent are the existence or cumulative effect of a pattern or series of transactions, or course of conduct, after the incurring of debt, onset of financial difficulties, or pendency or threat of suits by creditors, and the general chronology of events. In re Chastant, 873 F.2d at 91; EFA Acceptance Corporation v. Cadarette (In re Cadarette), 601 F.2d 648, 651 (2d Cir.1979). I am persuaded that Sicari transferred personal assets in an effort to place them beyond the reach and pending collection efforts of his creditors. Money judgments were entered against Sicari in November and December of 1990 in the New York State Supreme Court for $515,552.07 and $4,110,882.55. On September 25, 1990, a deed was recorded in Ulster County whereby Sicari and his wife transferred their Virgo Building property to Tonia Cara, a long-time family friend. No evidence was offered to substantiate payment of the alleged sale price of $161,000.00. Rather, Sicari claimed forgiveness of a $76,000.00 debt allegedly owing by him to Cara, and payment of the balance to his wife in cash as consideration for the "sale." No documentation was offered to substantiate the claimed antecedent debt owing to Cara or payment of any part of the sale price by Cara. *874 On October 22, 1990, a deed was recorded in Ulster County transferring the Kingston property from Sicari and his wife to the Sicari-Clifford Trust. Tax stamps on the deed into the Trust reveal a consideration of no more than $30,000. At the time of transfer, the market value of the property was $221,500.00. Likewise, rental income from the Medical Building found its way into the Trust account within one year of bankruptcy. And likewise, nothing was offered to support Sicari's claim that these funds were ultimately returned to him. These transfers reveal a continuing course of conduct which effectively placed substantial assets beyond the reach of Sicari's creditors, either by design or with such reckless indifference to the truth as to establish the intent necessary to sustain an objection to discharge under § 727(a)(2)(A). Sicari is a seasoned business person who has engaged in his own dress design and manufacturing business since 1985, operating three plants and a Manhattan showroom, and conducting domestic and international transactions in the hundreds of thousands of dollars. Considerations relating to assets, liabilities and complexity of the debtor's business have been held to be relevant, for example, in determining whether a debtor should be denied a discharge for failure to keep books of account. Goff v. Russell Company, 495 F.2d 199 (5th Cir.1974). In Goff, a merchant was held to a higher standard of care than an unsophisticated wage earner dealing primarily in cash, where adequacy of business records was at issue. Similarly, upon consideration of the complexity of Sicari's various business transactions, it is not unreasonable to expect him to have properly segregated personal, corporate, and trust funds. Further, it is not unreasonable to expect Sicari to have maintained adequate books of account with respect to various transactions involving his business and personal affairs, so as to enable him to substantiate his claim that mistakenly-deposited rent checks were repatriated to the proper accounts. Sicari's failure to do so supports a finding of reckless indifference sufficient to establish the requisite intent under § 727(a)(2)(A). Rental income from Widmark Farm. Sicari also owned commercial property known as Widmark Farm. Rental income generated by this property was likewise deposited to the Sicari-Clifford Trust bank account on November 26, 1991 and on May 11, 1992. The deposit of rental income from Widmark Farm to the Trust account parallels the events surrounding the diversion of rental income from the Medical Building to the Trust. These Trust account deposits likewise took place within one year of this bankruptcy. For the reasons set out above regarding the alleged "erroneously-deposited" Medical Building rental income, and considering the similarity of events and the pattern of the transactions, I am satisfied that Plaintiff has likewise here established the requisite intent under § 727(a)(2)(A). Sicari failed to present sufficient evidence in rebuttal. Plaintiff has thus sustained its burden of proof as to the Widmark Farm rent-check transfers. Insurance proceeds. The $45,552.00 insurance-proceeds check representing reimbursement for roof damage to Sicari's personal residence was deposited to the Trust account in April, 1992. Sicari acknowledged both his and his wife's endorsements on the check, but denied any knowledge that his secretary/bookkeeper, Patty Jacobsen, had deposited the check to the Trust account. (II, 245). He believes Jacobsen made payments in cash to the roofing contractor as Sicari had instructed. (III, 390-94; Defendant's Exhibit P). The roof-contractor's May 22, 1992 Invoice reflects a $35,000.00 payment on account, and payments thereafter on May 26 of $5,000.00, on May 29 of $5,000.00 and $500.00, for a total paid as of May 29, 1992 of $45,500.00. Jacobsen testified that she handled the insurance proceeds check and that she personally made the cash payments to the contractor. She stated that Diane Cagliuso, Trustee of the Sicari-Clifford Trust, gave her the cash to pay to the contractor. The contractor *875 would initial the invoice to show receipt of each cash payment. (IV, 455-56). No testimony was elicited from Jacobsen to explain why or how insurance proceeds for damage to Sicari's personal residence were deposited to his children's Trust account. Jacobsen testified that she did not report to Sicari where checks were deposited. She stated that the bank accounts were reconciled monthly by Sicari's accountant, and that when it was discovered that checks had been deposited to the wrong accounts, "correcting transfers" would be made the following month. The insurance proceeds check was diverted to the Trust account within two months of Sicari's bankruptcy filing. (Plaintiff's Exhibit 31, Bank records of M & T Bank for the Sicari-Clifford Trust account). This check did not belong to the Trust, but rather to Sicari and his wife, who jointly owned the insured premises. Although Sicari and Jacobsen testified that a total of $45,500.00 was paid in cash to the roofing contractor, withdrawals from the Trust account total only $35,000.00. No proof was offered to show that the remaining $10,552.00 held in the Trust account was either paid out on Sicari's behalf or returned to him. Accordingly, I find that $10,552.00 was transferred by Sicari's authorized agent, Jacobsen, to the Trust within one year his bankruptcy. Further, for the reasons previously discussed regarding diversion of the rental income, I likewise here find the requisite intent under Code § 727(a)(2)(A). Plaintiff, having thus established a prima facie case, the burden shifted to Sicari to offer credible evidence in rebuttal. Sicari failed to meet that burden. Transfer of the Kingston property and diversion of rental income. Sicari and his wife transferred the Kingston property to the Trust in 1990.[9] Sicari did not list any interest in the Kingston property in his bankruptcy schedules, and claimed to have retained no interest in the property after its transfer to the Trust. Plaintiff contends that this transfer was made for inadequate consideration and with intent to hinder, delay or defraud creditors. Plaintiff further contends that Sicari retained a secret interest in the property, continuing after the transfer to exercise control over and receive rental income from it. Plaintiff claims, therefore, that within the year prior to filing for bankruptcy, Sicari concealed his interest in the Kingston property and transferred rental income therefrom with intent to hinder, delay or defraud his creditors, constituting grounds for denial of his discharge under § 727(a)(2)(A). Since the transfer took place in 1990, more than one year prior to Sicari's bankruptcy, Plaintiff relies on the doctrine of "continuing concealment." Although § 727(a)(2)(A) proscribes transfers made within one year of bankruptcy, transfers made beyond that period may support an objection to discharge if it is found to be a continuing concealment. 4 Collier on Bankruptcy, ¶ 727.02[2]; Thibodeaux v. Olivier (In re Olivier), 819 F.2d 550, 555 (5th Cir.1987). Under this well-settled doctrine: . . . the concealment of an interest in an asset that continues, with the requisite intent, into the year before bankruptcy constitutes a form of concealment which occurs within the year before bankruptcy and, therefore, . . . such concealment is within the reach of section 727(a)(2)(A). In re Olivier, at 555. Concealment is not limited to physical secretion, but extends to other conduct, such as "placing assets beyond the reach of creditors or withholding knowledge thereof by failure or refusal to divulge owed information." 4 Collier on Bankruptcy, ¶ 727.02[6][b] (5th ed. 1994), citing In re Shoesmith, 135 F. 684 (7th Cir.1905), dism'd on appeal, 198 U.S. 582, 25 S. Ct. 804, 49 L. Ed. 1172 (1905); Continental Bank and *876 Trust Co. v. Winter, 153 F.2d 397 (2d Cir. 1946),[10]cert. denied, 329 U.S. 717, 67 S. Ct. 49, 91 L. Ed. 622 (1946). Further, "[w]hen a secret trust exists in favor of the debtor with respect to real property fraudulently conveyed more than one year before filing a petition . . ., his non-disclosure thereof constitutes a concealment of his property in fraud of creditors." 4 Collier on Bankruptcy, ¶ 727.02[b] (15th ed. 1994), citing In re Baxter, 27 F. Supp. 54 (S.D.N.Y.1939). In First Federated Life Insurance Co. v. Martin (In re Martin), 698 F.2d 883 (7th Cir.1983), creditors sought a denial of the debtor's discharge based on concealment of assets under § 727(a)(3). The creditors submitted proof of transfer of funds by the debtor to his father, with which the father purchased a condominium subsequently held by the Bank under a land trust for the benefit of the father. The note for the mortgage loan was signed by the debtor's parents. However, it was the debtor who subsequently lived in the condominium and paid its expenses. The Court found that the creditors had met their burden of going forward and that the burden then shifted to the debtor to produce evidence in rebuttal. Upon the debtor's failure to do so, the Court found the creditors had established a concealment of assets by the debtor, citing an earlier Seventh Circuit decision, In re Kauffman, 675 F.2d 127 (7th Cir.1981). In Kauffman, Id., the debtor transferred his house to his wife but continued to pay its expenses and listed it as a personal asset on personal financial statements. In rejecting the debtor's argument that the evidence failed to show the existence of a secret trust since the conveyance was recorded, the Court stated that "[a] concealment . . . need not be literally concealed. The transfer of title with attendant circumstances indicating that the bankrupt continues to use the property is sufficient to constitute a concealment." The Court, further, rejected the debtor's arguments that he retained no beneficial interest in the property and that there was no evidence of intent to hinder, delay or defraud creditors. The Court stated that intent "must be gleaned from inferences drawn from a course of conduct." (Citing In re Vecchione, 407 F. Supp. 609, 615 (E.D.N.Y. 1976)). The Court noted that "[t]he transfer was made specifically to avoid a judgment." Kauffman, at 128. The denial of the debtor's discharge was affirmed. In Sacklow v. Vecchione (In re Vecchione), 407 F. Supp. 609 (E.D.N.Y.1974), the Court reversed, as clearly erroneous, the Bankruptcy Court's finding that the debtors' transfers of property to their wives did not constitute fraudulent concealment of assets. The transfers to the wives included personal residences, automobiles, pension fund checks, and various other sums of moneys, including earnings. The plaintiff/appellant objected to discharges being granted, arguing that as soon as each of the debtors became financially obligated, he began a "systematic plan to nominally divest himself of assets through sham intra-family transfers." Vecchione, at 613. In considering the principle of continuing concealment of assets, the Court stated: Concealment . . . has been defined as the transfer to a third party of legal title to property with the retention of a secret interest by the bankrupt. If the transfer is absolute, even if it was in fraud of creditors, it cannot form a specification of objection [to discharge]. . . . The property must, in effect, be held in trust for the bankrupt. It matters not how long before the filing of the petition the suspect transfer occurred because the act of concealment is considered a continuous one. A concealment may be predicated on the retention by the bankrupt of an equitable interest in assets transferred to his wife. (citations omitted). Vecchione, at 614. Sicari transferred the Kingston property, a personal asset valued at approximately $221,500.00, to the Trust in 1990. Transfer tax stamps on the deed indicate a *877 consideration paid of $30,000.00. The transfer was effected approximately one month before entry of substantial money judgments against Sicari, but more than one year before his bankruptcy filing. Thus, in order to constitute grounds for denial of discharge under § 727(a)(2)(A), a continuing concealment must be found. Clearly, Sicari's transfer of the Kingston property to the Trust placed a valuable personal asset beyond the reach of his creditors. If the transfer were absolute, being time-barred, it could not form the basis for a § 727(a)(2)(A) objection. However, the transfer was not absolute, and Sicari, in fact, retained a continuing undisclosed interest in the Kingston property. Tenant Fredi Kletter produced an unsigned lease memorializing her initial agreement. The lease emanated from Sicari's office. (Plaintiff's Exhibit 7). The lease, running from March 1, 1991 to March 31, 1996, is for a term subsequent to the 1990 transfer of the Kingston property to the Trust. Sicari could not explain why this lease was drawn on his "letterhead" or why it showed him and his wife as landlords after they had transferred the property. (II, 286). However, his secretary/bookkeeper, Patty Jacobsen, managed the Kingston property most of the time after January, 1990. It was not until just prior to Sicari's bankruptcy filing that Kletter received a letter stating that, effective May 11, 1992, future rent checks should be payable to the Sicari-Clifford Trust. (Plaintiff's Exhibit 8). Of twelve cancelled rent checks produced by Kletter running from May, 1991 to April, 1992, ten were payable to "A. Sicari" or "Anthony Sicari," and two were payable to "A & E Sicari." One of these rent checks, dated October 8, 1991 and payable to Anthony Sicari, was endorsed by Sicari[11] and deposited to his wife's bank account. Another check, dated March 5, 1992 and payable to A. Sicari, was endorsed by Sicari and deposited to the account of Tonia Cara. Another tenant of the Kingston property, John DeGasperis, produced nine cancelled rent checks dated from September 13, 1991 to June 15, 1992. The three checks issued in June, 1992 are payable to the Sicari-Clifford Trust (which is consistent with tenant Kletter's also doing so in June, 1992). However, the six checks issued between September, 1991 and April, 1992 are payable to "Anthony Sicari Inc." One of them, dated March 1, 1992, was deposited to Tonia Cara's account. Another, dated April 28, 1992, was also not deposited to the Trust account. A check from another tenant of the Kingston property, Regina Heller, dated May 12, 1992 in the amount of $1,000.00, was deposited to Sicari's wife's account. The check is marked "Rent/Security 290 Fair" and is payable to Anthony Sicari. Endorsements are in the names of Anthony and Esther Sicari, with Esther's account number written beneath. Sicari's only explanation as to why so many rent checks generated by the Kingston property continued to be made payable to him, or to him and Esther, or to Anthony Sicari, Inc., rather than to the Sicari-Clifford Trust, was that it occurred through the mistake of the tenants. Similarly, Sicari claimed it was through mistake that the various tenants sent their rent checks to him, rather than to the Trustee of the Trust. Sicari offered nothing to show that these checks were ever forwarded on to the Trustee for deposit to the Trust account. Sicari's secretary/bookkeeper, Patty Jacobsen, processed these rent checks for deposit, and she had direct contact with the tenants. Moreover, it was not until May, 1992, one month prior to Sicari's bankruptcy filing, that notice was given to the tenants to pay their rent to the Trust. Further, Sicari had no explanation as to why rent checks payable to him and endorsed by him and his wife were deposited to his wife's bank account rather than to the Trust account. He also could not explain why some of the checks were deposited to Tonia Cara's account rather than to the Trust account. Sicari claimed that his accountant *878 reconciled the bank accounts, but no bank records were introduced to substantiate this claim. Although Sicari's accountant was called as a witness, no testimony was adduced to establish these alleged correcting bank transfers. Nor was the Trustee of the Trust, Diane Cagliuso, Sicari's sister-in-law, called to explain the alleged erroneous deposits of Trust rental income to other bank accounts, or to substantiate the alleged return of that money to the Trust. Nor was Sicari's wife, Esther, called to explain the deposits to her personal account of rental income belonging to the Trust. In United States v. Klupt, 475 F.2d 1015 (2d Cir.1973), the diversion of four assigned account receivable checks to another corporation controlled by the defendant was found to constitute concealment of assets of the debtor corporation, despite the later return of proceeds of the checks. Similarly, the deposit of seven assigned account receivable checks to debtor corporation's payroll account, instead of forwarding them to the factor, was found to constitute concealment of assets of the debtor. In In re Kauffman, 675 F.2d 127 (7th Cir.1981), the Court discussed the debtor's failure to offer credible evidence to rebut plaintiff's prima facie case, citing language from Baum v. Earl Millikin, Inc. (In re Baum), 359 F.2d 811 (7th Cir.1966) that the debtor's explanation "must consist of more than . . . [a] vague, indefinite, and uncorroborated hodgepodge of financial transactions." Baum, at 814. Further, the Martin Court stated: [i]t is clearly unsatisfactory to grant the debtor a discharge in a case such as this, where the debtor "stonewalls" the creditor and refuses to credibly explain to the court his puzzling or suspect transactions. The speculation of the bankruptcy judge or the creditors as to what may actually have been occurring is not an adequate substitute for a believable explanation by the debtor. The evidence in this case which could satisfactorily explain the events in question is far more likely to lie in the hands of a debtor than of the creditor. The debtor presumably knows why what is usually a simple matter (either the purchase of a condominium or an intrafamily gift) has taken on such a byzantine character. To the extent that the debtor can explain these events he has an obligation to come forward and do so he cannot abuse the bankruptcy process by obfuscating the true nature of his affairs and then refusing to provide a credible explanation. In re Martin, 698 F.2d 883, 888 (7th Cir. 1983). Commenting on the debtor's explanation of the transfer, the Court stated: Seldom has this Court observed witnesses whose credibility was lower. It was not so much that they appeared to be lying as it was that they seemed to be indifferent to the truth. In re Martin, at 885. Here, I am satisfied that Plaintiff has established a prima facie case under § 727(a)(2)(A). Plaintiff offered sufficient proof to establish that Sicari transferred legal title of the Kingston property to a trust for the benefit of his children, for inadequate consideration, while retaining a beneficial interest therein, and that he concealed this interest, and the income derived therefrom, from his creditors. Sicari failed to rebut Plaintiff's case with credible testimony or with any documentary evidence, such as bank statements, which should have been readily available to him. I find that Sicari transferred the Kingston property in 1990 to his children's Trust, just prior to the entry of substantial money judgments against him, with intent to hinder, delay or defraud his creditors, and that his concealment thereof continued through the time of filing bankruptcy. Moreover, having determined that Sicari retained a beneficial or equitable interest in the Kingston property, I find that he transferred rental income therefrom within a year prior to filing bankruptcy with intent to hinder, delay and defraud his creditors. Transfer of the Virgo Building, and diversion of rental income. The Virgo Building was transferred by Sicari and his wife to their long-time family friend, Tonia Cara, in 1990. Sicari testified that the sale price was $161,000.00. Sicari did not list any interest in this property in *879 his bankruptcy schedules, nor did he disclose the transfer thereof in his Statement of Financial Affairs. Plaintiff contends that this transfer, like the Kingston property transfer, was a sham, made without fair consideration or good faith, and with intent to hinder, delay or defraud creditors. It is claimed that Sicari retained a secret beneficial interest in the property after its transfer to Cara, in that he continued to exercise control over and to receive rental income from it. Plaintiff, therefore, claims that within the year prior to filing bankruptcy Sicari concealed his interest in the Virgo Building and transferred the rental income therefrom with intent to hinder, delay or defraud his creditors, thus warranting denial of his discharge under § 727(a)(2)(A). Plaintiff again invokes the doctrine of continuing concealment (previously discussed), as this transfer also was made more than one year prior to Sicari's bankruptcy. The deed conveying the Virgo Building to Cara is dated two days before the deed transferring the Kingston property to the Sicari-Clifford Trust, and both deeds were recorded within a month of each other. Both transfers occurred just prior to the entry of money judgments against Sicari totaling more than $4.6 million. Plaintiff claims that the Virgo Building was conveyed without fair consideration, alleging an assessed value at the time of transfer in 1990 in excess of $215,000. However, no testimony was offered to establish the assessed value of the property or to substantiate the allegation of inadequate consideration. Sicari testified that the sale price of the Virgo Building was $161,000, which was "paid" by forgiveness by Tonia Cara of a $76,000 debt owing to her from Sicari for building maintenance and construction services, and by payment of the balance in cash from Cara to his wife. Although Sicari claimed a journal was maintained to record Cara's services on a weekly basis, no journal was produced to substantiate the claimed antecedent debt. Further, Sicari failed to provide the date of payment by Cara to his wife of the balance of the sale price, and did not support his testimony of a $76,000 debt-forgiveness by any documentary proof whatsoever. Sicari's trial testimony regarding this transfer was inconsistent with that given at his February 3, 1993 pretrial deposition. At his deposition he testified that the $161,000 purchase price was paid by satisfaction of the mortgage with Intercounty Bank, payment of a "small amount of money" that he owed Cara for maintenance and repair of the building, and check for approximately $100,000. Again, no documentary evidence was produced to support this testimony. Tenant Vincent Giordano rented an apartment in the Virgo Building since August, 1991 under a two-year lease. (Plaintiff's Exhibit 18). This lease, drawn on Sicari's letterhead, shows the landlord as: "Tonia Cara c/o Sicari, 521 Main Street, New Paltz, NY 12561." The addresses for both Sicari and Cara are the same. Giordano's copy of the lease includes two signature pages. The first (Page 3) was executed by Giordano and his wife on July 22, 1991 at Sicari's "dress building," and Esther Sicari signed it as landlord. A few weeks later, Giordano received by mail a copy of a new signature page (Page 4 of Plaintiff's Exhibit 18) signed by Tonia Cara as landlord. Giordano also produced eleven cancelled checks in payment of security and rent for the Virgo Building from August, 1991 through May, 1992. Although all are payable to Tonia Cara, one of them was deposited in the Trust account and five were deposited in Sicari's wife's account. The transfer of the Virgo Building and diversion of the rental income it generated likewise supports a finding that Sicari engaged in a continuing pattern of conduct of transferring and concealing his personal assets with intent to hinder, delay and defraud his creditors. As enunciated in In re Vecchione, 407 F. Supp. 609, 618 (E.D.N.Y.1976), while a challenged asset-transfer alone might be considered innocent, "the totality of the situation [may be] such that the court is impelled to conclude that [the debtor has] retained [an] equitable interest . . ." in assets *880 transferred, and it is the "cumulative effect" of a course of conduct which may give rise to an inference of knowing and fraudulent intent. Though legal title has changed hands, Sicari continued to control, enjoy and benefit from the rental income from the Virgo Building. Sicari retained a secret, beneficial interest in this asset which he concealed from his creditors. That concealment, continuing into the year preceding his bankruptcy filing, must be inferred to have been done with intent to hinder, delay and defraud his creditors. As noted in Vecchione, 407 F. Supp. 609, 615 (E.D.N.Y.1976), [p]ersons whose intention it is to shield their assets from creditor attack while continuing to derive the equitable benefit of those assets rarely announce their purpose. Instead, if their intention is to be known, it must be gleaned from inferences drawn from a course of conduct. (citations omitted). The intent necessary to here sustain an objection to discharge under § 727(a)(2)(A) has been established. Sicari failed to put forth credible evidence to rebut Plaintiff's prima facie case, rather claiming ignorance of the transactions and mistake by others. CODE SECTION 727(a)(4)(A) Plaintiff alleges that Sicari made a false oath in his bankruptcy petition and schedules in that he failed to disclose various assets, either intentionally or with such reckless indifference to the truth, as to constitute fraud. Code § 727(a)(4)(A) provides: (a) The court shall grant the debtor a discharge, unless (4) the debtor knowingly and fraudulently, in or in connection with the case (A) made a false oath or account. . . . 11 U.S.C. § 727(a)(4)(A). A discharge under § 727 is a privilege, not a right (In re McManus, 112 B.R. 773, 775 (Bankr.E.D.Va.1990)), and may only be granted to the honest debtor (In re Tabibian, 289 F.2d 793, 794 (2d Cir.1961)). A debtor has "an affirmative duty to list all assets and fully answer the questions in the petition, and he does so under oath." Ray v. Graham (In re Graham), 111 B.R. 801, 806 (Bankr.E.D.Ark.1990). A material omission from a debtor's sworn statement of affairs or schedules presents grounds for denying a discharge under 11 U.S.C. § 727(a)(4)(A). Farmers Co-operative Association v. Strunk, 671 F.2d 391, 395 (10th Cir.1982); Chalik v. Moorefield (In re Chalik), 748 F.2d 616, 618 n. 3 (11th Cir.1984); First Federal Savings and Loan Assoc. of Raleigh v. Johnson (In re Johnson), 82 B.R. 801 (Bankr.E.D.N.C. 1988). The purpose of § 727(a)(4)(A) is, therefore, to insure that debtors provide reliable information to those with an interest in the administration of the debtor's estate. Creditors are entitled to truthful statements in a debtor's statement of financial affairs so that they may conduct their own investigations of those affairs. (Citing In re Ingle, 70 B.R. 979, 983 (Bankr.E.D.N.C. 1987)). In re Johnson, at 805. The debtor's complete disclosure is essential to the proper administration of the bankruptcy estate (In re Evans, 106 B.R. 722, 723 (Bankr.M.D.Fla. 1989)) and is a prerequisite to obtaining a discharge in bankruptcy (In re Montgomery, 86 B.R. 948, 956 (Bankr.N.D.Ind.1988)). To bar a discharge under § 727(a)(4)(A), plaintiff must establish that: (1) the debtor made a statement under oath, (2) such statement was false, (3) the debtor knew the statement was false, (4) the debtor made the statement with fraudulent intent, and (5) the statement related materially to the bankruptcy case. Williamson v. Fireman's Fund Insurance Co., 828 F.2d 249, 251 (4th Cir.1987). Plaintiff alleges that Sicari made false oaths in his bankruptcy Petition, Schedules and Statement of Financial Affairs by: (1) failing to list an equitable interest in the Sicari-Clifford Trust and the Kingston property transferred to it; (2) failing to list an equitable interest in bank accounts of his wife and of Tonia Cara; (3) failing to list an equitable interest in the Virgo Building *881 transferred to Tonia Cara; and (4) failing to list his ninety percent interest in Sicari Associates. Sicari declared under penalty of perjury that the information provided in his bankruptcy Petition, Schedules and Statement of Financial Affairs was true and correct. Such constitutes an oath and satisfies the first element of proof under § 727(a)(4)(A). Plaintiff also established that Sicari's statements were material to the bankruptcy case. Materiality is established if the oath "bears a relationship to the debtor's business transactions or estate, or concerns the discovery of assets, business dealings, or the existence and disposition of the debtor's property." Williamson v. Fireman's Fund Insurance Co., 828 F.2d 249, 251 (4th Cir. 1987); In re Johnson, 82 B.R. 801, 805 (Bankr.E.D.N.C.1988); See also, In re Chalik, 748 F.2d 616 (11th Cir.1984). Detriment or prejudice to a creditor is not an element of materiality. In re Robinson, 506 F.2d 1184, 1188 (2d Cir.1974). The alleged omissions from Sicari's bankruptcy Schedules and Statement of Financial Affairs satisfy the element of materiality. Sicari failed to disclose his interest in the Sicari-Clifford Trust. As previously discussed, in 1990, just prior to the entry of substantial money judgments against him, Sicari transferred the Kingston property to the Trust. The evidence supports a finding that the transfer was not absolute and that Sicari retained a secret, beneficial interest in the property. Failure to disclose his interest in the Kingston property and the rental income therefrom, constitutes a false oath within the purview of § 727(a)(4)(A). Sicari also failed to disclose any interest in the insurance proceeds for damage to his personal residence. Although the $45,552 insurance proceeds check was diverted to the Trust bank account, only $35,000 of it was withdrawn from the Trust account to pay for the repairs on Sicari's behalf. Sicari was obligated to account for and disclose the remaining $10,552 as an asset of this bankruptcy estate. His failure to do so also constitutes a false oath under § 727(a)(4)(A). Additionally, Sicari failed to list an interest in the Virgo Building and the rental income therefrom. Having previously determined that Sicari retained an interest in the Virgo Building and the rental income it generated after its transfer to Tonia Cara, he was required to disclose this interest in his bankruptcy Petition, Schedules and Statement of Financial Affairs. His failure to do so constitutes yet another false oath under § 727(a)(4)(A). In his Statement of Financial Affairs, Sicari declared that he made no transfers or gifts within the year immediately preceding his bankruptcy filing. From the evidence presented regarding the rental income from the various properties and insurance proceeds for damage to his personal residence, I am satisfied that this statement was false. Sicari also failed to schedule his ninety-percent interest in Sicari Associates, the "informal association" he maintained with his uncle, although he did disclose four parcels of real property owned by it. (Second Amended Pre-Trial Stipulation). He answered "None" to Question B-13 of his Schedule of Personal Property requiring disclosure of all "interests in partnerships or joint ventures." A debtor may not pick and choose among his assets and holdings so as to schedule only those which he may deem to be valuable, important or relevant. Rather, a debtor is obliged to completely and accurately list all property of every kind and nature, tangible and intangible, legal and equitable, which may comprise his bankruptcy estate, and to respond truthfully to all questions in the Schedules and Statement of Financial Affairs. "The determination of relevance and importance of the question is not for the debtor to make. It is the debtor's role simply to consider the question carefully and answer it completely and accurately." In re Mazzola, 4 B.R. 179, 182 (Bankr. D.Mass.1980). In In re Chalik, 748 F.2d 616 (11th Cir.1984), the Court affirmed the denial of the debtor's discharge based on his omission from his bankruptcy schedules of interests in certain corporations. The Court accepted the Bankruptcy Court's finding that while "there [was] no present indication that the *882 concealed information would have or could have revealed assets available for creditors . . . that circumstance does not excuse the concealment of information, which is necessary to the investigation of a debtor's financial condition." In re Mascolo, 505 F.2d 274, 277-78 (1st Cir.1974); In re Robinson, 506 F.2d 1184, 1188 (2d Cir.1974). See also, 4 Collier on Bankruptcy, ¶ 727.04 (15th ed. 1994). The denial of a discharge will not be avoided by debtor's assertion that omitted or falsely stated information concerned a "worthless business relationship or holding," such defense being categorized as "specious." In re Chalik, 748 F.2d 616, 618 (citing Diorio v. Kreisler-Borg Construction Co., 407 F.2d 1330 (2d Cir.1969)). Accordingly, Sicari's failure to disclose his interest in Sicari Associates constitutes a false oath under § 727(a)(4)(A). Plaintiff has also presented evidence sufficient to establish that Sicari knew the statements made in his bankruptcy Schedules and Statement of Financial Affairs were false. After transfer of the Kingston and Virgo properties, Sicari continued to be involved in the control and maintenance of those properties. Rental income from the properties continued to be received at his address by his representative and was diverted to various accounts in a manner inconsistent with the rent payments. Rental income from the Medical Building and the Widmark Farm property was diverted to his children's Trust. Sicari failed to offer credible evidence to rebut Plaintiff's prima facie case. It appears inescapable that, faced with impending collection efforts on money judgments exceeding $4.6 million, Sicari embarked on a scheme to transfer his assets and conceal the transfers from his creditors. Sicari neither disclosed these transfers nor scheduled the underlying assets in his bankruptcy case. Likewise, the evidence sufficiently establishes that Sicari made the false statements with fraudulent intent. His diversion of assets, secreting them from his creditors and failing to list them in his bankruptcy case are indicative of his fraudulent intent. Fraudulent intent may be established by circumstantial evidence or by inferences drawn from a course of conduct. Devers v. Bank of Sheridan, Montana (In re Devers), 759 F.2d 751, 753-54 (9th Cir.1985). Moreover, fraudulent intent may be inferred, for purposes of a § 727(a)(4)(A) objection, from a debtor's reckless indifference to or cavalier disregard of the truth. Diorio v. Kreisler-Borg Construction Co. (In re Diorio), 407 F.2d 1330, 1331 (2d Cir.1969); MacLeod v. Arcuri (In re Arcuri), 116 B.R. 873, 883 (Bankr.S.D.N.Y.1990); In re Gugliada, 20 B.R. 524 (Bankr.S.D.N.Y.1982). The cumulative effect of a number of false oaths by the debtor with respect to a variety of matters establishes a pattern of reckless and cavalier disregard for the truth. Community Bank of Homewood-Flossmoor v. Bailey (In re Bailey), 145 B.R. 919, 928 (Bankr. N.D.Ill.1992). Plaintiff has established a prima facie case under § 727(a)(4)(A). Sicari failed to offer credible evidence in rebuttal, and Plaintiff's objection to Sicari's discharge is, therefore, sustained on this ground as well.
CONCLUSIONS OF LAW 1. This Court has jurisdiction of the subject matter and the parties pursuant to 28 U.S.C. § 1334 and § 157(a). This is a core proceeding as provided by 28 U.S.C. § 157(b)(2)(J). 2. Plaintiff has sustained its burden of proving by a preponderance of the credible evidence that the debtor, with intent to hinder, delay or defraud creditors, transferred and concealed property of the debtor within one year prior to filing his bankruptcy petition, as proscribed by 11 U.S.C. § 727(a)(2)(A). 3. Plaintiff has sustained its burden of proving by a preponderance of the credible evidence that the debtor knowingly and fraudulently, in connection with this case, made a false oath or account, as proscribed by 11 U.S.C. § 727(a)(4)(A). 4. Accordingly, the debtor's discharge is denied under both 11 U.S.C. § 727(a)(2)(A) and § 727(a)(4)(A). NOTES [1] "I" refers to the June 28, 1993 transcript. [2] "II" refers to the September 27, 1993 transcript. [3] "III" refers to the December 6, 1993 transcript. [4] "IV" refers to the December 7, 1993 transcript. [5] A discrepancy exists between the caption of the action as stipulated by the parties in the Second Amended Pre-Trial Stipulation, and the caption which appears on the copy of the Judgment, incomplete as it is, attached to Plaintiff's Proof of Claim. A portion of the caption does not appear on the copy attached to the Proof of Claim; however, of those defendants' names appearing, the order of the defendants' names differs from the caption recited in the Second Amended Pre-trial Stipulation. [6] "V" refers to the Second Amended Pre-Trial Stipulation filed June 28, 1993. [7] Upon examination of Exhibit 9 entitled "Clifford Shortterm Trust For Child," the document appears to lack the signature of Esther Sicari, the acknowledgement of Anthony Sicari's signature, and the "Schedule A" purportedly describing the trust res. Nevertheless, by the Second Amended Pre-trial Stipulation the parties have agreed that a valid trust was created in 1983. [8] A deposit to a bank account is a transfer. 4 Collier on Bankruptcy, ¶ 727.02[5] (5th ed. 1994). [9] Sicari testified that the Kingston property was conveyed to the Sicari-Clifford Trust in 1983 when the Trust was created (III, 336-37, 344, 347). However, the deed from Sicari and his wife to the Trust is dated August 24, 1990 and was recorded on October 22, 1990, and Sicari identified both his and his wife's signatures thereon. [10] The Court there stated, "[p]roperty is concealed or permitted to be concealed within the meaning of those terms in the definition of the first act of bankruptcy in § 3, sub. a, when a person does, or permits to be done, anything with intent to hinder, delay or defraud his creditors which prevents, or tends to prevent the discovery of the property." [11] Although Sicari denied at trial that he endorsed this check, this testimony is inconsistent with his deposition testimony on February 3, 1993, in which he admitted his signature. (II, 287; Plaintiff's Exhibit 30, p. 41). | 10-30-2013 | [
"187 B.R. 861 (1994) In re Anthony SICARI, a/k/a Sicari Salerno, a/k/a Anthony Salerno, Debtor. CONGRESS TALCOTT CORPORATION, Plaintiff, v. Anthony SICARI, Debtor-Defendant. Bankruptcy No. 92-31419. Adv. No. 92-7096. United States Bankruptcy Court, S.D. New York. September 14, 1994. *862 *863 *864 Todd Strassberg, Strassberg & Strassberg, P.C., New York City, for plaintiff. Jeffrey L. Sapir, White Plains, NY, for debtor-defendant. DECISION ON OBJECTION TO DISCHARGE PURSUANT TO 11 U.S.C. § 727(a)(2)(A) and § 727(a)(4)(A) JEREMIAH E. BERK, Bankruptcy Judge.",
"Congress Talcott Corporation filed a complaint on November 5, 1992 seeking to bar debtor's discharge under 11 U.S.C. § 727(a)(2)(A) and § 727(a)(4)(A). Trial of this adversary proceeding commenced on June 28, 1993,[1] continued on September 27, 1993[2] and December 6, 1993[3], and concluded on December 7, 1993. [4] At the conclusion of Plaintiff's case, Defendant moved for dismissal on partial findings pursuant to Fed.R.Civ.P. 52(c) and Fed. R.Bankr.P. 7052. Opposition to the motion was filed by Plaintiff, and the motion was taken under advisement pending the submission of Defendant's case. This decision resolves that motion. For the reasons set out herein, I am satisfied that Plaintiff has sustained its burden of proof on its objections to discharge under both § 727(a)(2)(A) and § 727(a)(4)(A) of the Bankruptcy Code. *865 FINDINGS OF FACT Introduction.",
"Anthony Sicari (hereafter \"Sicari\"), filed an individual voluntary petition for relief under Chapter 11 of the Bankruptcy Code on June 9, 1992. On December 23, 1992 his case was converted to one under Chapter 7 liquidation. Plaintiff, a creditor of Sicari and his now-defunct corporation, filed an unsecured Proof of Claim herein on July 27, 1992 in the amount of $315,246.75, plus interest. Plaintiff's claim is based on a judgment entered on November 6, 1991 against Sicari and others in the New York State Supreme Court, New York County, in an action entitled Congress Talcott Corporation v. Anthony Sicari, Inc., Anthony Sicari, Emanuel Sicari and Rallye Motors, Inc.[5] The judgment, docketed in the Orange County Clerk's Office on November 14, 1991, arose from the sale of goods by Plaintiff to Anthony Sicari, Inc., and the personal guaranty thereof by Sicari individually. Plaintiff alleges that at a time when Sicari was insolvent he initiated a series of fraudulent transfers of his personal assets, that these transfers were made without fair consideration, were gratuitous or for inadequate consideration, and were made with intent to hinder, delay or defraud creditors. Plaintiff further alleges that Sicari intentionally concealed these transfers, failed to disclose them in his bankruptcy petition, failed to disclose his equitable interest in transferred assets, and that such failure constitutes a false oath in his bankruptcy case.",
"Plaintiff claims that Sicari's discharge in bankruptcy should, therefore, be denied pursuant to both 11 U.S.C. § 727(a)(2)(A) and § 727(a)(4)(A). Background. In 1985, Sicari began the now-defunct Anthony Sicari, Inc. to design and manufacture ladies' garments. He operated the business from three plants in Walden, New Paltz and Kingston, New York, and maintained a showroom in Manhattan. Sicari owned and operated the business from its inception until its bankruptcy liquidation in 1992. At its peak, the corporation employed more than 300 persons. Plaintiff points to a number of prepetition asset transfers from Sicari to his relatives and to a friend. Esther Sicari is his wife, Diane Cagliuso is his sister-in-law, Santa Salerno is his mother and Emanuel Sicari is his uncle. All are \"relatives\" and \"insiders\" within the purview of 11 U.S.C. § 101(31)(A)(i). (V). [6] Tonia Cara, is a long-time friend of the Sicari family. Real property transfers were made by Sicari shortly before the entry of substantial judgments against him.",
"Creditor Israel Discount Bank obtained a judgment for $4,110,882.55 against Sicari, his wife Esther and his uncle Emanuel on December 5, 1990 in the New York State Supreme Court. One week earlier, creditor Quaker Fabrics obtained a judgment for $515,552.07 against the same defendants. Sicari's testimony throughout this trial was often unpersuasive, sometimes confusing, evasive or nonresponsive. His alleged lack of knowledge of the many suspect asset transfers, lack of documentation and records relating to them, and his explanation of \"mistakes\" by others, at times seemed incredible, particularly in light of his prior experience in business and financial matters. Section 727(a)(2)(A) The Kingston property. On August 13, 1980 Sicari and his wife Esther acquired a commercial building, now known as 290-292 Fair Street, in the City of Kingston, New York (hereafter \"Kingston property\"), for approximately $47,000.00. (IV, Defendant's Exhibit I; III, 347). No significant improvements were made to the *866 property prior to its transfer by them.",
"(III, 347). In February, 1983, Sicari and his wife established a \"Clifford Shortterm Trust\" for the benefit of their children. (V; Plaintiff's Exhibit 9). [7] Esther Sicari served as trustee of the Trust from that time until about 1990, when Sicari's sister-in-law, Diane Cagliuso, replaced her as trustee. (III, 344-45; II, 293; Plaintiff's Exhibit 9). Although Sicari testified that the Kingston property was conveyed to the Trust in 1983 (III, 336-37, 344, 347), the deed running from him and his wife to the Trust is dated August 24, 1990, and was recorded in the Ulster County Clerk's Office on October 22, 1990. (Plaintiff's Exhibit 1; II, 267). Edward Levine testified that based on his nine years of employment as Assessor for the City of Kingston and his examination of the City Assessment Roll, the market value of the Kingston property in either August or October, 1990, was $221,500.00.",
"(I, 27-28). The tax stamps on the deed reflect a consideration of no more than $30,000.00. Sicari testified that he and his wife divested themselves of all interest in the Kingston property at the time of its transfer to the Trust. (III, 345, 350, 356). Plaintiff, however, contends that despite the apparent transfer to the Trust in 1990, Sicari retained an equitable interest in, and continued to exercise control over and to receive rental income from, the Kingston property. It is claimed, therefore, that the transfer to the Trust was a sham transaction made with intent to hinder, delay or defraud creditors, and that Sicari failed to disclose an equitable interest in the property in his bankruptcy schedules. Rental Income Tenant, Fredi Kletter. Fredi Kletter, a tenant of the Kingston property, testified that she had been conducting business there for nine years as Catskill Army Navy. Between May 10, 1991 and June 9, 1992, she paid $500.00 per month as rent for the premises. Kletter produced an unsigned \"Lease Agreement\" setting forth a term from March 1, 1991 to March 31, 1996, as the written agreement memorializing the rental agreement she had negotiated with someone named Irene Lawrence. (Plaintiff's Exhibit 7; I, 39-40).",
"Kletter was unable to state whether Irene Lawrence represented the landlord, but testified that Lawrence maintained the property. (I, 34, 52). The unsigned lease bears the heading: \"Anthony Sicari, 521 Main Street, New Paltz, N.Y. 12561, (914) 255-4550,\" and shows \"Anthony & Esther Sicari\" as the landlords. According to Kletter, this lease was not signed because changes were to be made to it and a new lease was to be drawn. (I, 51). Kletter did not know if the changes pertained to the name of the landlord(s). As far as she knew the new lease \"was just going to be the same,\" and she acknowledged her own notation at the top of the lease agreement stating: \"Spoke to Patty on 1-2-92 about not receiving lease not to worry about rent will honor this agreement.\"",
"(I, 51-52). Kletter further testified that she never saw a new lease, that she could not recall whether she ever met the landlord, and that she made rent checks payable to whom required. (I, 52-53). Sicari could not explain why the lease, albeit unsigned, would contain a heading bearing his name, address and telephone number, and show his wife and him as landlords. (II, 286). He acknowledged, however, that Irene McGovern managed buildings he owned in the early 1990's, and that his secretary/bookkeeper, Patty Jacobsen, managed the Kingston property after January 1, 1990. (II, 291-92). Tenant Kletter further testified that she received a letter addressed \"Dear Tenant,\" stating that \"[e]ffective 5-11-92, all rental checks are payable to: Sicari-Clifford Trust, RD 1 box 611, Gardiner, N.Y. 12525.",
"Thank You, Diane Cagliuso Trustee.\" (Plaintiff's Exhibit 8; I, 42). Thereafter, Kletter made her rent checks payable to the Sicari-Clifford *867 Trust. (Plaintiff's Exhibit 6, Ck. # 4133, dated 6-6, 1992; I, 44, 47). Twelve cancelled rent checks produced by Kletter cover the period from May, 1991 to April, 1992. (Plaintiff's Exhibit 6). Of those twelve checks, ten are payable to either \"A. Sicari\" or \"Anthony Sicari,\" and two are payable to \"A & E Sicari.\" Kletter testified that she made those checks payable as such pursuant to the provisions of the unsigned lease agreement. (I, 40). Thus, despite Sicari's testimony that the Kingston property had been transferred to the Trust in 1983, (1) its transfer is evidenced by a deed executed and recorded in 1990, and (2) after the deed transfer, Kletter continued to make rent checks payable to Sicari and his wife. Plaintiff established that two rent checks never found their way into the Trust account.",
"Rent check No. 341 of Catskill Army Navy, dated October 8, 1991 and payable to \"Anthony Sicari,\" was endorsed by Sicari and deposited in his wife's personal bank account. (Plaintiff's Exhibit 6; Plaintiff's Exhibit 30, 41; Plaintiff's Exhibit 33; II, 239, 270-71). Rent check No. 4063 of Catskill Army Navy, dated March 5, 1992 payable to \"A. Sicari,\" was endorsed by Sicari and deposited in the personal bank account of Tonia Cara, a long-time family friend. (Plaintiff's Exhibits 6 and 32; II, 224-28). Rental Income Tenant, John and Beverly DeGasperis. John DeGasperis testified that he is employed by John Street Jewelers, a business owned by his wife, Beverly, and operated at the Kingston property. The premises are occupied pursuant to written lease; however, DeGasperis did not produce the lease and could not recall who is named thereon as landlord. DeGasperis produced nine rent checks for the Kingston property, dated from September 13, 1991 to June 15, 1992, all bearing his signature. The first six checks (the last of which is dated April 28, 1992) are payable to \"Anthony Sicari, Inc.\" The remaining three checks, all dated in June, 1992, are payable to the \"Sicari-Clifford Trust.\"",
"Payment of rent by DeGasperis to the Sicari-Clifford Trust commencing in June, 1992 is consistent with another tenant, Catskill Army Navy, so doing that same month. Payment of rent by both tenants to the \"Sicari-Clifford Trust\" began the same month that Sicari filed his personal bankruptcy petition. Rental Income Tenant, Regina Heller. A rent check dated March 12, 1992 from Regina Heller, another tenant of the Kingston property, was deposited in Sicari's wife's personal bank account. This check was payable to \"Anthony Sicari\" and marked \"Rent/Security 290 Fair.\" (Plaintiff's Exhibit 33; II, 267-68). Another check from Regina Heller is dated May 1, 1992, made payable to \"Anthony Sicari,\" and marked \"May Rent 290 Fair.\" It bears Sicari's endorsement and was deposited in the Trust bank account.",
"(Plaintiff's Exhibit 31). The insurance proceeds check. In April, 1992 a check of Chubb Group of Insurance Companies in the amount of $45,552.00 was deposited to the Sicari-Clifford Trust bank account. The check was payable to \"Anthony & Esther Sicari, The Money Store/Empire State Inc. & Key Bank of Eastern New York,\" and bears the endorsements of all payees. Sicari testified that the check represented insurance proceeds for damage sustained to the roof of his personal residence during an ice storm. He told his secretary/bookkeeper, Patty Jacobsen, that the check was for repair of his roof and that she should use it to pay the contractor in cash as the repair work progressed. (III, 394-95).",
"Although Sicari did not personally transfer funds from the Trust or personally pay the contractor, he believes that $45,500.00, as shown on the invoice of Compact Air Systems, Ltd., the roof-repair contractor, was paid in cash to its owner, a Mr. Castro, by his secretary/bookkeeper. (III, 390-93; Defendants Exhibit P). The invoice of Compact Air Systems, Ltd. is dated May 22, 1992 and reflects an initial payment of $35,000.00. Additional payments are noted thereafter in the amount of $5,000.00 on May 26, $5,000.00 on May 29, and $500.00 on May 29, 1992. (Defendant's Exhibit P). *868 Sicari's secretary/bookkeeper, Patricia Jacobsen, testified that she \"took care of the payments\" to the roof-repair company and that the payments were made in cash. (IV, 454-456, 459-60; Defendant's Exhibit P). Jacobsen obtained the cash from Diane Cagliuso, trustee of the Sicari-Clifford Trust, who would \"cash the checks . .",
". and give [Jacobsen] the money.\" (IV, 459). After deposit of the insurance proceeds check into the Trust bank account on April 29, 1992, the following checks were drawn on the Trust: May 7, 1992, Check No. 507 to the order of \"Cash,\" $5,000.00, endorsed by Diane Cagliuso; May 8, 1992, Check No. 508 to the order of \"Cash,\" $5,000.00, endorsed by Diane Cagliuso; May 11, 1992, Check No. 509 to the order of \"Cash,\" $5,000.00, endorsed by Diane Cagliuso; May 12, 1992, Check No.",
"510 to the order of \"Cash,\" $5,000.00, endorsed by Diane Cagliuso; May 14, 1992, Check No. 511 to the order of \"Cash,\" $5,000.00, endorsed by Diane Cagliuso; May 18, 1992, Check No. 512 to the order of \"Cash,\" $5,000.00, endorsed by Diane Cagliuso; May 21, 1992, Check No. 513 to the order of \"Cash,\" $5,000.00, endorsed by Diane Cagliuso. These Trust account checks total $35,000.00. Sicari claims not to have known that the $45,552.00 insurance proceeds check was deposited to the Trust account. (II, 245). However, he acknowledged his endorsement on it and testified that the check was given to his secretary/bookkeeper to procure the remaining endorsements for deposit. Sicari could not explain why an insurance proceeds check covering damage to his personal residence would find its way into his children's Trust account. Nor did he offer any evidence to substantiate his claim that the total amount of the insurance proceeds check was either returned to him by the Trust or expended on his behalf.",
"Payments apparently received by the roof-repair contractor total $45,500.00; withdrawals from the Trust account subsequent to the deposit of the insurance proceeds check total $35,000.00. Sicari failed to account for the remaining $10,500.00 of insurance proceeds which found its way into the Trust account. The Virgo Building. Sicari and his wife also owned real property located at 11-15 Main Street, New Paltz, New York, known as the \"Virgo Building,\" which they had purchased in or about 1979. (II, 261; III, 313; Plaintiff's Exhibit 2). By deed dated August 22, 1990, Sicari and his wife transferred this property to their long-time friend Tonia Cara. The deed was recorded in the Ulster County Clerk's Office on September 25, 1990.",
"(V; Plaintiff's Exhibit 2; III, 313). Sicari testified that he has known Tonia Cara for fifteen years as a friend of his mother and that he \"sold\" the Virgo Building to her in 1990 for $161,000. (II, 258-59, III, 316). Plaintiff contends that this transfer was a sham transaction, made without fair consideration during the pendency of Plaintiff's state court action against Sicari, and was effected with intent to hinder, delay or defraud creditors. Sicari explained that a $76,000 debt owing by him to Tonia Cara was \"forgiven\" in exchange for the transfer of the Virgo Building to her, and that another \"approximately $76,000\" was paid to his wife in cash, although he did not know when. (III, 314-318; 320). He did not account for the remaining $9,000 balance of the alleged $161,000 sale price. His trial testimony on this point was inconsistent with his pre-trial deposition testimony of February 3, 1993. (III, 324-27).",
"At the deposition Sicari testified that payment of the $161,000 purchase price for transfer of the Virgo Building to Tonia Cara was made by satisfaction of the mortgage with Intercounty Bank, payment of a \"small amount of money\" owed to Cara for maintenance services and repair of the building, and payment of a check for \"approximately $100,000.\" (III, 325-327; Plaintiff's Exhibit 30, 13-16). Sicari could not produce any records or documentation to substantiate receipt of payment for sale of the Virgo Building to Cara, claiming that he had none. (II, 264-65). Vincent Giordano, a tenant of the Virgo Building, testified that he and his wife have occupied an apartment there since August, 1991 pursuant to written lease. The Lease Agreement produced by Giordano covers a *869 term of two years commencing on August 1, 1991 and ending on July 31, 1993.",
"The landlord is shown thereon as \"Tonia Cara c/o Sicari,\" and bears a heading which states: \"Anthony Sicari, 521 Main Street, New Paltz, N.Y. 12561. (914) 255-4550.\" (Plaintiff's Exhibit 18). Two signature pages are included in Giordano's copy of this lease. Page 3 bears the photocopied signatures of both tenants affixed on July 22, 1991, of Esther Sicari as landlord, and of Irene McGovern, Manager, as a witness. Page 4 bears photocopied signatures of both tenants affixed July 22, 1991, of Tonia F. Cara as landlord, and of Irene McGovern as witness.",
"Giordano testified that he and his wife signed the lease in the \"dress building\" of Anthony Sicari, Inc., and when they gave the lease to \"Irene, the property manager,\" Esther Sicari's signature appeared thereon as landlord. Two weeks later a copy of the lease was returned to the Giordanos. However, within a few days thereafter, Giordano received a new signature page with Tonia Cara's signature substituted for Esther Sicari's as landlord.",
"(I, 84-94; Plaintiff's Exhibit 18). Tenant Giordano produced eleven cancelled checks in payment of security and rent for the period August, 1991 through May, 1992. All are payable to Tonia Cara. Giordano testified that one of two checks originally drawn for the first month's rent and security was made payable to Esther Sicari as directed by the property manager, Irene. (I, 100, 109). Giordano testified that these two checks were lost by the landlord, and replacements were issued payable to Tonia Cara. (I, 94; Plaintiff's Exhibit 19). One of the twelve rent checks was deposited in the Trust bank account on or about May 1, 1992. (Plaintiff's Exhibit 31; II, 259).",
"Five of the rent checks were deposited in Sicari's wife's personal bank account between August 26, 1991 and December 11, 1991. (Plaintiff's Exhibit 33; II, 269-70). The Medical Building. Since 1987, Sicari owned jointly with his uncle, Emanuel Sicari, commercial property at 75 East Main Street, Walden, New York, known as the \"Medical Building.\" (II, 246; Plaintiff's Exhibit 3). Vladimir Nabagiez, M.D. was a tenant of Medical Building and paid rent monthly. Sicari identified thirteen cancelled rent checks of Dr. Nabagiez, dated from May 1, 1991 to May 1, 1992. (Plaintiff's Exhibit 24; II, 246-47). Ten are payable to Anthony Sicari, Inc., and three are payable to Anthony Sicari individually. Eleven of these checks were deposited into the Trust bank account within the year preceding Sicari's bankruptcy filing. (Plaintiff's Exhibits 24, 31; II, 246-54). Plaintiff contends that the transfer of these rent checks to the Trust were made without fair consideration and good faith, that the Trust assets are, in actuality, the personal assets of Sicari, and that the transfers to the Trust within one year of Sicari's filing bankruptcy were made with intent to hinder, delay or defraud creditors.",
"Widmark Farm. Sicari testified that he and his uncle, Emanuel, also owned property known as \"Widmark Farm\". Howard Widmark was a tenant of the property. Rental income of $600.00 from this tenant in the form of a postal money order for \"Rent 11/15/91 to 12/15/91\" was deposited to the Sicari-Clifford Trust bank account on November 26, 1991. The money order was endorsed \"Anthony Sicari,\" with the Trust bank account number written beneath. (Plaintiff's Exhibit 31). Another Postal Money Order from Widmark payable to Anthony Sicari for \"Rent 4/15/92 to 5/15/92\" in the amount of $600.00 was deposited in the Trust bank account on or about May 1, 1992, approximately one month prior to Sicari's bankruptcy. (Plaintiff's Exhibit 31; II, 255). Upon the evidence presented, I am satisfied that within one year before bankruptcy Sicari transferred personal assets in an attempt to put them beyond the reach of the collection efforts of his creditors.",
"Section 727(a)(4)(A) False oath or account. Plaintiff alleges that Sicari's failure to disclose various assets in his bankruptcy schedules constitutes a false oath under Code § 727(a)(4)(A). Plaintiff claims that Sicari's *870 transfer of personal assets to the Sicari-Clifford Trust created an equitable interest in the Trust which should have been listed in his bankruptcy schedules and that this omission constitutes a willful concealment of assets. Plaintiff further claims that deposit of rental income into bank accounts of his wife and Tonia Cara likewise created an equitable interest in those accounts which should have been listed in Sicari's bankruptcy schedules. Plaintiff also points to Sicari's failure to schedule his interest in \"Sicari Associates\" as further evidence of his attempt to conceal assets from his creditors. Sicari Associates is \"an association\" between Sicari and his uncle, Emanuel, which existed throughout the year preceding the filing of this bankruptcy case.",
"Sicari owned ninety percent and Emanuel owned ten percent of Sicari Associates. The assets of Sicari Associates apparently include four parcels of real property, which parcels are separately listed in Sicari's bankruptcy schedules. (V). However, Sicari was obligated also to disclose his interest in Sicari Associates. Upon the evidence presented, I am satisfied that Sicari intentionally failed to disclose his interests in the Kingston and Virgo properties, the Trust bank account, the bank accounts of his wife and Tonia Cara and his interest in Sicari Associates.",
"DISCUSSION CODE SECTION 727(a)(2)(A) Code § 727(a)(2)(A) provides: (a) The court shall grant the debtor a discharge, unless (2) the debtor, with intent to hinder, delay, or defraud a creditor or an officer of the estate charged with custody of property under this title, has transferred, removed, destroyed, mutilated, or concealed, or has permitted to be transferred, removed, destroyed, mutilated, or concealed (A) property of the debtor, within one year before the date of the filing of the petition; . . . 11 U.S.C. § 727(a)(2)(A).",
"To bar a debtor's discharge under § 727(a)(2), an objectant must prove that: (1) the act complained of was done at a time subsequent to one year before the date of the filing of the petition; (2) with actual intent to hinder, delay, or defraud a creditor or an officer of the estate charged with custody of property under the Bankruptcy Code; (3) that the act was that of the debtor or his duly authorized agent; and (4) that the act consisted of transferring, removing, destroying or concealing any of the debtor's property, or permitting any of these acts to be done. Baltic Linen Co., Inc. v. Rubin (In re Rubin), 12 B.R. 436, 441 (Bankr.S.D.N.Y.",
"1981); 4 Collier on Bankruptcy, ¶ 727.02[b] (15th ed. 1994). In furtherance of the principle of permitting the honest debtor a debt-free fresh start in life, objections to discharge are to be construed strictly against the objector and liberally in favor of the debtor. Bank of Pennsylvania v. Adlman (In re Adlman), 541 F.2d 999, 1003 (2d Cir.1976). The burden of proof on an objection to discharge lies with the objectant (Fed.R.Bankr.P. 4005), and each element of the objection must be established by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 111 S. Ct. 654, 112 L. Ed. 2d 755 (1991); Beaubouef v. Beaubouef (In re Beaubouef), 966 F.2d 174 (5th Cir.1992). However, when sufficient evidence is presented by the plaintiff to establish a prima facie case, the burden then shifts to the debtor to offer credible evidence in rebuttal. Devers v. Bank of Sheridan, Montana (In re Devers), 759 F.2d 751, 754 (9th Cir.1985); EFA Acceptance Corporation v. Cadarette (In re Cadarette), 601 F.2d 648, 650 (2nd Cir.1979); Continental Illinois National Bank and Trust Company of Chicago v. Bernard (In re Bernard), 99 B.R.",
"563, 570 (Bankr.S.D.N.Y.1989). Rental income from the Medical Building. Sicari holds a ninety percent ownership interest in the Medical Building, which he owns jointly with his uncle. Eleven rent checks, payable to either Anthony Sicari, Inc. or Anthony Sicari individually, dated between May 1, 1991 and May 1, 1992, were deposited to the Sicari-Clifford Trust account, in which Sicari claims to have held no *871 interest, within the year prior to his bankruptcy filing. (III, 423).",
"Sicari claimed to have no knowledge that rent checks were deposited to the Sicari-Clifford Trust bank account. Rent checks were received at Sicari's business address, and Sicari had instructed his secretary/bookkeeper to deposit them. (III, 405-06). Sicari testified that his individual and corporate endorsements appearing on the rent checks, either in his name or that of Anthony Sicari, Inc., were in the handwriting of his secretary/bookkeeper, Patricia Jacobsen (II, 247), whom he had authorized to endorse checks in his name and to make deposits to his various bank accounts.",
"(II, 284). Sicari explained that any erroneous deposits would be reconciled at the end of each month. (III, 407). He offered no evidence, however, to show the return of any rental income from the Trust account to his personal account. Although Sicari's accountant, Scott M. Stone, testified on his behalf, no testimony was elicited to support Sicari's claim that the rental income was returned to him from the Trust. Sicari did not explain why rental income belonging to him continued to find its way into the Trust bank account, month after month, even after he had learned of the \"erroneous\" deposits.",
"Sicari's testimony that these rent deposits were returned to him by means of end-of-month reconciliations belies his denial of knowledge of the erroneous Trust deposits. Moreover, this testimony is inconsistent with his statement that he received no money from the Trust during the year prior to filing his bankruptcy petition. (III, 426). Clearly, if personal rental income deposited to the Sicari-Clifford Trust within the year prior to the bankruptcy filing was not returned to Sicari, a transfer of assets has, in fact, occurred within the proscribed one-year period. [8] The objectant to discharge must further establish that the act was that of the debtor or his duly authorized agent. Sicari testified that his secretary/bookkeeper endorsed the rent checks and made the deposits to his bank accounts. He further acknowledged that she did so with his authorization and at his specific instruction. (II, 284; III, 406). Sicari's claim of ignorance as to the conduct of his business affairs and the acts of his secretary/bookkeeper is unpersuasive. Sicari knew the rent checks were being deposited to incorrect bank accounts by virtue of his knowledge of the alleged month-end account reconciliations. Even after Sicari became aware of these \"erroneous\" rent-check deposits, it appears that they continued and that no steps were taken to assure that deposits would be made to the proper accounts in the future. To sustain its objection to discharge, Plaintiff must also show that at the time of the transfers Sicari had the requisite intent to hinder, delay or defraud his creditors. Actual intent is required, although fraudulent intent may be established by circumstantial evidence or by inferences drawn from a course of conduct.",
"Devers v. Bank of Sheridan, Montana (In re Devers), 759 F.2d 751, 753-54 (9th Cir.1985). Because of the unlikelihood that a debtor will admit to a fraudulent intent, \"the courts may deduce fraudulent intent from all the facts and circumstances of a case.\" Devers, at 754. Further, a debtor's reckless indifference to the truth has been held to be the equivalent of fraud for purposes of an objection to discharge under § 727. Diorio v. Kreisler-Borg Construction Co. (In re Diorio), 407 F.2d 1330 (2nd Cir.1969); MacLeod v. Arcuri (In re Arcuri), 116 B.R. 873, 883 (Bankr. S.D.N.Y.1990).",
"Various factors are recognized as indicia of fraud under § 727(a)(2)(A). In Pavy v. Chastant (In re Chastant), 873 F.2d 89 (5th Cir.1989), the court, (citing In re Schmit, 71 B.R. 587 (Bankr.D.Minn.1987)), examined the following factors: (1) the lack or inadequacy of consideration; (2) the family, friendship or close associate relationship between the parties; (3) the retention of possession, benefit or use of the property in question; *872 (4) the financial condition of the party sought to be charged both before and after the transaction in question; (5) the existence or cumulative effect of the pattern or series of transactions or course of conduct after the incurring of debt, onset of financial difficulties, or pendency or threat of suits by creditors; and (6) the general chronology of the events and transactions under inquiry.",
"Chastant, 873 F.2d at 91. These factors are relevant here. First, there is no claim that the transfers of rental income to the Trust account were made for consideration; rather, the transfers are claimed to have been made by mistake. Although Sicari claims the rent moneys were returned to him by the Trust, he offered nothing to substantiate any repatriation of these funds. Additionally, this claim contradicts his testimony that he did not receive money from the Trust during the year prior to bankruptcy. (III, 426). I find that these transfers were gratuitously made. Second, the rental income was transferred to the Sicari-Clifford Trust for the benefit of Sicari's children. \"A presumption of actual fraudulent intent necessary to bar a discharge arises when property is either transferred gratuitously or is transferred to relatives.\" In re Chastant, Id.",
"at 91, (quoting In re Butler, 38 B.R. 884, 888 (Bankr.D.Kan.1984)). A transfer of property to relatives \"will be subject to close scrutiny, and `the relationship of the parties in conjunction with other circumstances will often make the [plaintiff's] case compelling notwithstanding the absence of direct evidence of fraud.'\" Loeber v. Loeber (In re Loeber), 12 B.R. 669 (Bankr.D.N.J.1981); Accord, In re Chastant, at 91. In In re Chastant, 873 F.2d 89, 91 (5th Cir.1989), where the debtor transferred property to a trust established \"both gratuitously and for his children,\" the Court stated: [t]his creates a presumption of an intent to defraud establishing plaintiff's prima facie case and shifting to [debtor] the burden of demonstrating that he lacked fraudulent intent.",
"Chastant, at 91. Upon debtor's failure to rebut this presumption, the Court denied discharge under § 727(a)(2)(A). Similarly, Sicari transferred property to the Trust for the benefit of his children without consideration. A presumption of fraudulent intent thus arises, shifting to Sicari the burden of establishing that he lacked such intent. Sicari claimed that the deposits of his personal rental income into the Trust account were mistakenly made and that these deposit errors were corrected by his secretary/bookkeeper and his accountant through a reconciliation of bank accounts at the end of each month. However, no bank statements, checks or deposit slips were produced to support his claim that these funds were ever returned to him.",
"Curiously, although Sicari called his accountant as a witness, nothing was offered to verify Sicari's claim that reconciliation of accounts and repatriation of funds was ever made. Patricia Jacobsen, Sicari's secretary/bookkeeper, outlined the numerous and diverse duties encompassed by her employment, which included the collection and deposit of rent checks generated from the various Sicari properties. (IV, 448). Jacobsen acknowledged that she had authority to sign Sicari's name on checks for purposes of depositing them to bank accounts. When asked whose name she had authority to sign, Jacobsen responded, \"Mr. Sicari's.",
"To endorse the checks and deposit them.\" (IV, 449). Jacobsen acknowledged that checks were sometimes deposited to incorrect accounts and testified that the errors were corrected by the transfer of funds to the correct account. (IV, 450). No documentation was offered to support any transfers that might have corrected these \"erroneous\" deposits of Sicari's rental income. Jacobsen's testimony as to her duties and the authority delegated to her during her six years of employment as Sicari's secretary/bookkeeper was consistent with Sicari's testimony in that regard. No claim is made that Jacobsen acted without, or beyond the scope of, her authority.",
"Considering the type of duties delegated by Sicari to her over the six-year employment, including the management *873 of his properties and the hiring of property managers and real estate agents, it must be concluded that Sicari held confidence in Jacobsen's ability to properly perform them. Surely Sicari had ample opportunity to observe, supervise and assess Jacobsen's performance. It must further be concluded that a long-time employee entrusted with management of numerous bank accounts and diverse rental properties possessed the ability to comprehend the importance of maintaining separate bank accounts and customary bank and other records. Further, if Sicari retained no control over the Sicari-Clifford Trust, as he now claims, no explanation was offered as to how or why his secretary/bookkeeper would have access to bank records so as to enable her to deposit Sicari's personal funds to the Trust account. Nor was anything offered to explain why Jacobsen would have repeatedly deposited Sicari's personal funds to the Trust account, nor why she would have continued to make these erroneous deposits after being informed by Sicari's accountant of the mistakes.",
"Eleven separate monthly rent checks from the Medical Building for rent between May 1, 1991 and May 1, 1992, were \"misdeposited\" to the Trust bank account within the year prior to bankruptcy, although each check was made payable to either \"Anthony Sicari\" or \"Anthony Sicari, Inc.\" The remaining factors which may evidence fraudulent intent also lead to the conclusion that Sicari transferred property with intent to hinder, delay or defraud his creditors. Inquiry is first made into whether Sicari retained possession, benefit or use of the property transferred. While Sicari claims that the numerous deposits of personal funds to the Sicari-Clifford Trust account were the result of \"secretarial errors,\" he did not reveal why his secretary/bookkeeper had access to the Trust account at all. He further claimed that these \"errors\" were corrected by his accountant and his secretary/bookkeeper by means of month-end reconciliations, but had no records or bank statements to support this. The Trustee, Diane Cagliuso, who presumably would have made the correcting bank transfers, did not testify. Further, the $45,552 roof-repair insurance proceeds check payable to Sicari personally was also deposited to the Trust account by \"mistake,\" while only $35,000 of it appears to have been paid out to the roofing contractor.",
"No evidence was presented to substantiate Sicari's claim that the balance of the insurance proceeds of $10,552.00 was paid on his behalf or returned to him from the Trust. Although Sicari insists that he retained no interest in his children's Trust, the conclusion is inescapable that his personal funds went in and out of the Trust account on a regular basis. It defies credulity that this practice, continued over a period of time without any account-correction transfers being made, resulted from \"secretarial error.\" Rather, I am satisfied that Sicari retained sufficient control over and use of the Sicari-Clifford Trust funds to support a finding of intent to hinder, delay or defraud creditors. The remaining factors indicative of fraudulent intent are the existence or cumulative effect of a pattern or series of transactions, or course of conduct, after the incurring of debt, onset of financial difficulties, or pendency or threat of suits by creditors, and the general chronology of events.",
"In re Chastant, 873 F.2d at 91; EFA Acceptance Corporation v. Cadarette (In re Cadarette), 601 F.2d 648, 651 (2d Cir.1979). I am persuaded that Sicari transferred personal assets in an effort to place them beyond the reach and pending collection efforts of his creditors. Money judgments were entered against Sicari in November and December of 1990 in the New York State Supreme Court for $515,552.07 and $4,110,882.55.",
"On September 25, 1990, a deed was recorded in Ulster County whereby Sicari and his wife transferred their Virgo Building property to Tonia Cara, a long-time family friend. No evidence was offered to substantiate payment of the alleged sale price of $161,000.00. Rather, Sicari claimed forgiveness of a $76,000.00 debt allegedly owing by him to Cara, and payment of the balance to his wife in cash as consideration for the \"sale.\" No documentation was offered to substantiate the claimed antecedent debt owing to Cara or payment of any part of the sale price by Cara. *874 On October 22, 1990, a deed was recorded in Ulster County transferring the Kingston property from Sicari and his wife to the Sicari-Clifford Trust. Tax stamps on the deed into the Trust reveal a consideration of no more than $30,000. At the time of transfer, the market value of the property was $221,500.00. Likewise, rental income from the Medical Building found its way into the Trust account within one year of bankruptcy. And likewise, nothing was offered to support Sicari's claim that these funds were ultimately returned to him. These transfers reveal a continuing course of conduct which effectively placed substantial assets beyond the reach of Sicari's creditors, either by design or with such reckless indifference to the truth as to establish the intent necessary to sustain an objection to discharge under § 727(a)(2)(A).",
"Sicari is a seasoned business person who has engaged in his own dress design and manufacturing business since 1985, operating three plants and a Manhattan showroom, and conducting domestic and international transactions in the hundreds of thousands of dollars. Considerations relating to assets, liabilities and complexity of the debtor's business have been held to be relevant, for example, in determining whether a debtor should be denied a discharge for failure to keep books of account. Goff v. Russell Company, 495 F.2d 199 (5th Cir.1974). In Goff, a merchant was held to a higher standard of care than an unsophisticated wage earner dealing primarily in cash, where adequacy of business records was at issue.",
"Similarly, upon consideration of the complexity of Sicari's various business transactions, it is not unreasonable to expect him to have properly segregated personal, corporate, and trust funds. Further, it is not unreasonable to expect Sicari to have maintained adequate books of account with respect to various transactions involving his business and personal affairs, so as to enable him to substantiate his claim that mistakenly-deposited rent checks were repatriated to the proper accounts. Sicari's failure to do so supports a finding of reckless indifference sufficient to establish the requisite intent under § 727(a)(2)(A). Rental income from Widmark Farm. Sicari also owned commercial property known as Widmark Farm. Rental income generated by this property was likewise deposited to the Sicari-Clifford Trust bank account on November 26, 1991 and on May 11, 1992. The deposit of rental income from Widmark Farm to the Trust account parallels the events surrounding the diversion of rental income from the Medical Building to the Trust. These Trust account deposits likewise took place within one year of this bankruptcy.",
"For the reasons set out above regarding the alleged \"erroneously-deposited\" Medical Building rental income, and considering the similarity of events and the pattern of the transactions, I am satisfied that Plaintiff has likewise here established the requisite intent under § 727(a)(2)(A). Sicari failed to present sufficient evidence in rebuttal. Plaintiff has thus sustained its burden of proof as to the Widmark Farm rent-check transfers. Insurance proceeds. The $45,552.00 insurance-proceeds check representing reimbursement for roof damage to Sicari's personal residence was deposited to the Trust account in April, 1992.",
"Sicari acknowledged both his and his wife's endorsements on the check, but denied any knowledge that his secretary/bookkeeper, Patty Jacobsen, had deposited the check to the Trust account. (II, 245). He believes Jacobsen made payments in cash to the roofing contractor as Sicari had instructed. (III, 390-94; Defendant's Exhibit P). The roof-contractor's May 22, 1992 Invoice reflects a $35,000.00 payment on account, and payments thereafter on May 26 of $5,000.00, on May 29 of $5,000.00 and $500.00, for a total paid as of May 29, 1992 of $45,500.00. Jacobsen testified that she handled the insurance proceeds check and that she personally made the cash payments to the contractor. She stated that Diane Cagliuso, Trustee of the Sicari-Clifford Trust, gave her the cash to pay to the contractor.",
"The contractor *875 would initial the invoice to show receipt of each cash payment. (IV, 455-56). No testimony was elicited from Jacobsen to explain why or how insurance proceeds for damage to Sicari's personal residence were deposited to his children's Trust account. Jacobsen testified that she did not report to Sicari where checks were deposited. She stated that the bank accounts were reconciled monthly by Sicari's accountant, and that when it was discovered that checks had been deposited to the wrong accounts, \"correcting transfers\" would be made the following month. The insurance proceeds check was diverted to the Trust account within two months of Sicari's bankruptcy filing. (Plaintiff's Exhibit 31, Bank records of M & T Bank for the Sicari-Clifford Trust account). This check did not belong to the Trust, but rather to Sicari and his wife, who jointly owned the insured premises. Although Sicari and Jacobsen testified that a total of $45,500.00 was paid in cash to the roofing contractor, withdrawals from the Trust account total only $35,000.00. No proof was offered to show that the remaining $10,552.00 held in the Trust account was either paid out on Sicari's behalf or returned to him. Accordingly, I find that $10,552.00 was transferred by Sicari's authorized agent, Jacobsen, to the Trust within one year his bankruptcy.",
"Further, for the reasons previously discussed regarding diversion of the rental income, I likewise here find the requisite intent under Code § 727(a)(2)(A). Plaintiff, having thus established a prima facie case, the burden shifted to Sicari to offer credible evidence in rebuttal. Sicari failed to meet that burden. Transfer of the Kingston property and diversion of rental income. Sicari and his wife transferred the Kingston property to the Trust in 1990. [9] Sicari did not list any interest in the Kingston property in his bankruptcy schedules, and claimed to have retained no interest in the property after its transfer to the Trust. Plaintiff contends that this transfer was made for inadequate consideration and with intent to hinder, delay or defraud creditors. Plaintiff further contends that Sicari retained a secret interest in the property, continuing after the transfer to exercise control over and receive rental income from it. Plaintiff claims, therefore, that within the year prior to filing for bankruptcy, Sicari concealed his interest in the Kingston property and transferred rental income therefrom with intent to hinder, delay or defraud his creditors, constituting grounds for denial of his discharge under § 727(a)(2)(A). Since the transfer took place in 1990, more than one year prior to Sicari's bankruptcy, Plaintiff relies on the doctrine of \"continuing concealment.\" Although § 727(a)(2)(A) proscribes transfers made within one year of bankruptcy, transfers made beyond that period may support an objection to discharge if it is found to be a continuing concealment.",
"4 Collier on Bankruptcy, ¶ 727.02[2]; Thibodeaux v. Olivier (In re Olivier), 819 F.2d 550, 555 (5th Cir.1987). Under this well-settled doctrine: . . . the concealment of an interest in an asset that continues, with the requisite intent, into the year before bankruptcy constitutes a form of concealment which occurs within the year before bankruptcy and, therefore, . . . such concealment is within the reach of section 727(a)(2)(A). In re Olivier, at 555. Concealment is not limited to physical secretion, but extends to other conduct, such as \"placing assets beyond the reach of creditors or withholding knowledge thereof by failure or refusal to divulge owed information.\" 4 Collier on Bankruptcy, ¶ 727.02[6][b] (5th ed. 1994), citing In re Shoesmith, 135 F. 684 (7th Cir.1905), dism'd on appeal, 198 U.S. 582, 25 S. Ct. 804, 49 L. Ed.",
"1172 (1905); Continental Bank and *876 Trust Co. v. Winter, 153 F.2d 397 (2d Cir. 1946),[10]cert. denied, 329 U.S. 717, 67 S. Ct. 49, 91 L. Ed. 622 (1946). Further, \"[w]hen a secret trust exists in favor of the debtor with respect to real property fraudulently conveyed more than one year before filing a petition . . ., his non-disclosure thereof constitutes a concealment of his property in fraud of creditors.\" 4 Collier on Bankruptcy, ¶ 727.02[b] (15th ed. 1994), citing In re Baxter, 27 F. Supp. 54 (S.D.N.Y.1939).",
"In First Federated Life Insurance Co. v. Martin (In re Martin), 698 F.2d 883 (7th Cir.1983), creditors sought a denial of the debtor's discharge based on concealment of assets under § 727(a)(3). The creditors submitted proof of transfer of funds by the debtor to his father, with which the father purchased a condominium subsequently held by the Bank under a land trust for the benefit of the father. The note for the mortgage loan was signed by the debtor's parents. However, it was the debtor who subsequently lived in the condominium and paid its expenses. The Court found that the creditors had met their burden of going forward and that the burden then shifted to the debtor to produce evidence in rebuttal. Upon the debtor's failure to do so, the Court found the creditors had established a concealment of assets by the debtor, citing an earlier Seventh Circuit decision, In re Kauffman, 675 F.2d 127 (7th Cir.1981). In Kauffman, Id., the debtor transferred his house to his wife but continued to pay its expenses and listed it as a personal asset on personal financial statements. In rejecting the debtor's argument that the evidence failed to show the existence of a secret trust since the conveyance was recorded, the Court stated that \"[a] concealment .",
". . need not be literally concealed. The transfer of title with attendant circumstances indicating that the bankrupt continues to use the property is sufficient to constitute a concealment.\" The Court, further, rejected the debtor's arguments that he retained no beneficial interest in the property and that there was no evidence of intent to hinder, delay or defraud creditors. The Court stated that intent \"must be gleaned from inferences drawn from a course of conduct.\" (Citing In re Vecchione, 407 F. Supp. 609, 615 (E.D.N.Y. 1976)).",
"The Court noted that \"[t]he transfer was made specifically to avoid a judgment.\" Kauffman, at 128. The denial of the debtor's discharge was affirmed. In Sacklow v. Vecchione (In re Vecchione), 407 F. Supp. 609 (E.D.N.Y.1974), the Court reversed, as clearly erroneous, the Bankruptcy Court's finding that the debtors' transfers of property to their wives did not constitute fraudulent concealment of assets. The transfers to the wives included personal residences, automobiles, pension fund checks, and various other sums of moneys, including earnings. The plaintiff/appellant objected to discharges being granted, arguing that as soon as each of the debtors became financially obligated, he began a \"systematic plan to nominally divest himself of assets through sham intra-family transfers.\" Vecchione, at 613. In considering the principle of continuing concealment of assets, the Court stated: Concealment . . .",
"has been defined as the transfer to a third party of legal title to property with the retention of a secret interest by the bankrupt. If the transfer is absolute, even if it was in fraud of creditors, it cannot form a specification of objection [to discharge]. . . . The property must, in effect, be held in trust for the bankrupt. It matters not how long before the filing of the petition the suspect transfer occurred because the act of concealment is considered a continuous one. A concealment may be predicated on the retention by the bankrupt of an equitable interest in assets transferred to his wife. (citations omitted). Vecchione, at 614. Sicari transferred the Kingston property, a personal asset valued at approximately $221,500.00, to the Trust in 1990.",
"Transfer tax stamps on the deed indicate a *877 consideration paid of $30,000.00. The transfer was effected approximately one month before entry of substantial money judgments against Sicari, but more than one year before his bankruptcy filing. Thus, in order to constitute grounds for denial of discharge under § 727(a)(2)(A), a continuing concealment must be found. Clearly, Sicari's transfer of the Kingston property to the Trust placed a valuable personal asset beyond the reach of his creditors. If the transfer were absolute, being time-barred, it could not form the basis for a § 727(a)(2)(A) objection.",
"However, the transfer was not absolute, and Sicari, in fact, retained a continuing undisclosed interest in the Kingston property. Tenant Fredi Kletter produced an unsigned lease memorializing her initial agreement. The lease emanated from Sicari's office. (Plaintiff's Exhibit 7). The lease, running from March 1, 1991 to March 31, 1996, is for a term subsequent to the 1990 transfer of the Kingston property to the Trust. Sicari could not explain why this lease was drawn on his \"letterhead\" or why it showed him and his wife as landlords after they had transferred the property.",
"(II, 286). However, his secretary/bookkeeper, Patty Jacobsen, managed the Kingston property most of the time after January, 1990. It was not until just prior to Sicari's bankruptcy filing that Kletter received a letter stating that, effective May 11, 1992, future rent checks should be payable to the Sicari-Clifford Trust. (Plaintiff's Exhibit 8). Of twelve cancelled rent checks produced by Kletter running from May, 1991 to April, 1992, ten were payable to \"A. Sicari\" or \"Anthony Sicari,\" and two were payable to \"A & E Sicari.\" One of these rent checks, dated October 8, 1991 and payable to Anthony Sicari, was endorsed by Sicari[11] and deposited to his wife's bank account.",
"Another check, dated March 5, 1992 and payable to A. Sicari, was endorsed by Sicari and deposited to the account of Tonia Cara. Another tenant of the Kingston property, John DeGasperis, produced nine cancelled rent checks dated from September 13, 1991 to June 15, 1992. The three checks issued in June, 1992 are payable to the Sicari-Clifford Trust (which is consistent with tenant Kletter's also doing so in June, 1992).",
"However, the six checks issued between September, 1991 and April, 1992 are payable to \"Anthony Sicari Inc.\" One of them, dated March 1, 1992, was deposited to Tonia Cara's account. Another, dated April 28, 1992, was also not deposited to the Trust account. A check from another tenant of the Kingston property, Regina Heller, dated May 12, 1992 in the amount of $1,000.00, was deposited to Sicari's wife's account. The check is marked \"Rent/Security 290 Fair\" and is payable to Anthony Sicari.",
"Endorsements are in the names of Anthony and Esther Sicari, with Esther's account number written beneath. Sicari's only explanation as to why so many rent checks generated by the Kingston property continued to be made payable to him, or to him and Esther, or to Anthony Sicari, Inc., rather than to the Sicari-Clifford Trust, was that it occurred through the mistake of the tenants. Similarly, Sicari claimed it was through mistake that the various tenants sent their rent checks to him, rather than to the Trustee of the Trust. Sicari offered nothing to show that these checks were ever forwarded on to the Trustee for deposit to the Trust account. Sicari's secretary/bookkeeper, Patty Jacobsen, processed these rent checks for deposit, and she had direct contact with the tenants. Moreover, it was not until May, 1992, one month prior to Sicari's bankruptcy filing, that notice was given to the tenants to pay their rent to the Trust. Further, Sicari had no explanation as to why rent checks payable to him and endorsed by him and his wife were deposited to his wife's bank account rather than to the Trust account.",
"He also could not explain why some of the checks were deposited to Tonia Cara's account rather than to the Trust account. Sicari claimed that his accountant *878 reconciled the bank accounts, but no bank records were introduced to substantiate this claim. Although Sicari's accountant was called as a witness, no testimony was adduced to establish these alleged correcting bank transfers. Nor was the Trustee of the Trust, Diane Cagliuso, Sicari's sister-in-law, called to explain the alleged erroneous deposits of Trust rental income to other bank accounts, or to substantiate the alleged return of that money to the Trust.",
"Nor was Sicari's wife, Esther, called to explain the deposits to her personal account of rental income belonging to the Trust. In United States v. Klupt, 475 F.2d 1015 (2d Cir.1973), the diversion of four assigned account receivable checks to another corporation controlled by the defendant was found to constitute concealment of assets of the debtor corporation, despite the later return of proceeds of the checks. Similarly, the deposit of seven assigned account receivable checks to debtor corporation's payroll account, instead of forwarding them to the factor, was found to constitute concealment of assets of the debtor. In In re Kauffman, 675 F.2d 127 (7th Cir.1981), the Court discussed the debtor's failure to offer credible evidence to rebut plaintiff's prima facie case, citing language from Baum v. Earl Millikin, Inc. (In re Baum), 359 F.2d 811 (7th Cir.1966) that the debtor's explanation \"must consist of more than . .",
". [a] vague, indefinite, and uncorroborated hodgepodge of financial transactions.\" Baum, at 814. Further, the Martin Court stated: [i]t is clearly unsatisfactory to grant the debtor a discharge in a case such as this, where the debtor \"stonewalls\" the creditor and refuses to credibly explain to the court his puzzling or suspect transactions. The speculation of the bankruptcy judge or the creditors as to what may actually have been occurring is not an adequate substitute for a believable explanation by the debtor. The evidence in this case which could satisfactorily explain the events in question is far more likely to lie in the hands of a debtor than of the creditor.",
"The debtor presumably knows why what is usually a simple matter (either the purchase of a condominium or an intrafamily gift) has taken on such a byzantine character. To the extent that the debtor can explain these events he has an obligation to come forward and do so he cannot abuse the bankruptcy process by obfuscating the true nature of his affairs and then refusing to provide a credible explanation. In re Martin, 698 F.2d 883, 888 (7th Cir.",
"1983). Commenting on the debtor's explanation of the transfer, the Court stated: Seldom has this Court observed witnesses whose credibility was lower. It was not so much that they appeared to be lying as it was that they seemed to be indifferent to the truth. In re Martin, at 885. Here, I am satisfied that Plaintiff has established a prima facie case under § 727(a)(2)(A). Plaintiff offered sufficient proof to establish that Sicari transferred legal title of the Kingston property to a trust for the benefit of his children, for inadequate consideration, while retaining a beneficial interest therein, and that he concealed this interest, and the income derived therefrom, from his creditors. Sicari failed to rebut Plaintiff's case with credible testimony or with any documentary evidence, such as bank statements, which should have been readily available to him. I find that Sicari transferred the Kingston property in 1990 to his children's Trust, just prior to the entry of substantial money judgments against him, with intent to hinder, delay or defraud his creditors, and that his concealment thereof continued through the time of filing bankruptcy. Moreover, having determined that Sicari retained a beneficial or equitable interest in the Kingston property, I find that he transferred rental income therefrom within a year prior to filing bankruptcy with intent to hinder, delay and defraud his creditors.",
"Transfer of the Virgo Building, and diversion of rental income. The Virgo Building was transferred by Sicari and his wife to their long-time family friend, Tonia Cara, in 1990. Sicari testified that the sale price was $161,000.00. Sicari did not list any interest in this property in *879 his bankruptcy schedules, nor did he disclose the transfer thereof in his Statement of Financial Affairs. Plaintiff contends that this transfer, like the Kingston property transfer, was a sham, made without fair consideration or good faith, and with intent to hinder, delay or defraud creditors. It is claimed that Sicari retained a secret beneficial interest in the property after its transfer to Cara, in that he continued to exercise control over and to receive rental income from it.",
"Plaintiff, therefore, claims that within the year prior to filing bankruptcy Sicari concealed his interest in the Virgo Building and transferred the rental income therefrom with intent to hinder, delay or defraud his creditors, thus warranting denial of his discharge under § 727(a)(2)(A). Plaintiff again invokes the doctrine of continuing concealment (previously discussed), as this transfer also was made more than one year prior to Sicari's bankruptcy. The deed conveying the Virgo Building to Cara is dated two days before the deed transferring the Kingston property to the Sicari-Clifford Trust, and both deeds were recorded within a month of each other. Both transfers occurred just prior to the entry of money judgments against Sicari totaling more than $4.6 million.",
"Plaintiff claims that the Virgo Building was conveyed without fair consideration, alleging an assessed value at the time of transfer in 1990 in excess of $215,000. However, no testimony was offered to establish the assessed value of the property or to substantiate the allegation of inadequate consideration. Sicari testified that the sale price of the Virgo Building was $161,000, which was \"paid\" by forgiveness by Tonia Cara of a $76,000 debt owing to her from Sicari for building maintenance and construction services, and by payment of the balance in cash from Cara to his wife. Although Sicari claimed a journal was maintained to record Cara's services on a weekly basis, no journal was produced to substantiate the claimed antecedent debt. Further, Sicari failed to provide the date of payment by Cara to his wife of the balance of the sale price, and did not support his testimony of a $76,000 debt-forgiveness by any documentary proof whatsoever.",
"Sicari's trial testimony regarding this transfer was inconsistent with that given at his February 3, 1993 pretrial deposition. At his deposition he testified that the $161,000 purchase price was paid by satisfaction of the mortgage with Intercounty Bank, payment of a \"small amount of money\" that he owed Cara for maintenance and repair of the building, and check for approximately $100,000. Again, no documentary evidence was produced to support this testimony. Tenant Vincent Giordano rented an apartment in the Virgo Building since August, 1991 under a two-year lease. (Plaintiff's Exhibit 18). This lease, drawn on Sicari's letterhead, shows the landlord as: \"Tonia Cara c/o Sicari, 521 Main Street, New Paltz, NY 12561.\" The addresses for both Sicari and Cara are the same. Giordano's copy of the lease includes two signature pages. The first (Page 3) was executed by Giordano and his wife on July 22, 1991 at Sicari's \"dress building,\" and Esther Sicari signed it as landlord. A few weeks later, Giordano received by mail a copy of a new signature page (Page 4 of Plaintiff's Exhibit 18) signed by Tonia Cara as landlord. Giordano also produced eleven cancelled checks in payment of security and rent for the Virgo Building from August, 1991 through May, 1992.",
"Although all are payable to Tonia Cara, one of them was deposited in the Trust account and five were deposited in Sicari's wife's account. The transfer of the Virgo Building and diversion of the rental income it generated likewise supports a finding that Sicari engaged in a continuing pattern of conduct of transferring and concealing his personal assets with intent to hinder, delay and defraud his creditors. As enunciated in In re Vecchione, 407 F. Supp. 609, 618 (E.D.N.Y.1976), while a challenged asset-transfer alone might be considered innocent, \"the totality of the situation [may be] such that the court is impelled to conclude that [the debtor has] retained [an] equitable interest . . .\"",
"in assets *880 transferred, and it is the \"cumulative effect\" of a course of conduct which may give rise to an inference of knowing and fraudulent intent. Though legal title has changed hands, Sicari continued to control, enjoy and benefit from the rental income from the Virgo Building. Sicari retained a secret, beneficial interest in this asset which he concealed from his creditors. That concealment, continuing into the year preceding his bankruptcy filing, must be inferred to have been done with intent to hinder, delay and defraud his creditors. As noted in Vecchione, 407 F. Supp. 609, 615 (E.D.N.Y.1976), [p]ersons whose intention it is to shield their assets from creditor attack while continuing to derive the equitable benefit of those assets rarely announce their purpose. Instead, if their intention is to be known, it must be gleaned from inferences drawn from a course of conduct. (citations omitted).",
"The intent necessary to here sustain an objection to discharge under § 727(a)(2)(A) has been established. Sicari failed to put forth credible evidence to rebut Plaintiff's prima facie case, rather claiming ignorance of the transactions and mistake by others. CODE SECTION 727(a)(4)(A) Plaintiff alleges that Sicari made a false oath in his bankruptcy petition and schedules in that he failed to disclose various assets, either intentionally or with such reckless indifference to the truth, as to constitute fraud.",
"Code § 727(a)(4)(A) provides: (a) The court shall grant the debtor a discharge, unless (4) the debtor knowingly and fraudulently, in or in connection with the case (A) made a false oath or account. . . . 11 U.S.C. § 727(a)(4)(A). A discharge under § 727 is a privilege, not a right (In re McManus, 112 B.R. 773, 775 (Bankr.E.D.Va.1990)), and may only be granted to the honest debtor (In re Tabibian, 289 F.2d 793, 794 (2d Cir.1961)). A debtor has \"an affirmative duty to list all assets and fully answer the questions in the petition, and he does so under oath.\"",
"Ray v. Graham (In re Graham), 111 B.R. 801, 806 (Bankr.E.D.Ark.1990). A material omission from a debtor's sworn statement of affairs or schedules presents grounds for denying a discharge under 11 U.S.C. § 727(a)(4)(A). Farmers Co-operative Association v. Strunk, 671 F.2d 391, 395 (10th Cir.1982); Chalik v. Moorefield (In re Chalik), 748 F.2d 616, 618 n. 3 (11th Cir.1984); First Federal Savings and Loan Assoc. of Raleigh v. Johnson (In re Johnson), 82 B.R. 801 (Bankr.E.D.N.C. 1988). The purpose of § 727(a)(4)(A) is, therefore, to insure that debtors provide reliable information to those with an interest in the administration of the debtor's estate. Creditors are entitled to truthful statements in a debtor's statement of financial affairs so that they may conduct their own investigations of those affairs.",
"(Citing In re Ingle, 70 B.R. 979, 983 (Bankr.E.D.N.C. 1987)). In re Johnson, at 805. The debtor's complete disclosure is essential to the proper administration of the bankruptcy estate (In re Evans, 106 B.R. 722, 723 (Bankr.M.D.Fla. 1989)) and is a prerequisite to obtaining a discharge in bankruptcy (In re Montgomery, 86 B.R. 948, 956 (Bankr.N.D.Ind.1988)). To bar a discharge under § 727(a)(4)(A), plaintiff must establish that: (1) the debtor made a statement under oath, (2) such statement was false, (3) the debtor knew the statement was false, (4) the debtor made the statement with fraudulent intent, and (5) the statement related materially to the bankruptcy case. Williamson v. Fireman's Fund Insurance Co., 828 F.2d 249, 251 (4th Cir.1987). Plaintiff alleges that Sicari made false oaths in his bankruptcy Petition, Schedules and Statement of Financial Affairs by: (1) failing to list an equitable interest in the Sicari-Clifford Trust and the Kingston property transferred to it; (2) failing to list an equitable interest in bank accounts of his wife and of Tonia Cara; (3) failing to list an equitable interest in the Virgo Building *881 transferred to Tonia Cara; and (4) failing to list his ninety percent interest in Sicari Associates. Sicari declared under penalty of perjury that the information provided in his bankruptcy Petition, Schedules and Statement of Financial Affairs was true and correct. Such constitutes an oath and satisfies the first element of proof under § 727(a)(4)(A).",
"Plaintiff also established that Sicari's statements were material to the bankruptcy case. Materiality is established if the oath \"bears a relationship to the debtor's business transactions or estate, or concerns the discovery of assets, business dealings, or the existence and disposition of the debtor's property.\" Williamson v. Fireman's Fund Insurance Co., 828 F.2d 249, 251 (4th Cir. 1987); In re Johnson, 82 B.R. 801, 805 (Bankr.E.D.N.C.1988); See also, In re Chalik, 748 F.2d 616 (11th Cir.1984). Detriment or prejudice to a creditor is not an element of materiality. In re Robinson, 506 F.2d 1184, 1188 (2d Cir.1974).",
"The alleged omissions from Sicari's bankruptcy Schedules and Statement of Financial Affairs satisfy the element of materiality. Sicari failed to disclose his interest in the Sicari-Clifford Trust. As previously discussed, in 1990, just prior to the entry of substantial money judgments against him, Sicari transferred the Kingston property to the Trust. The evidence supports a finding that the transfer was not absolute and that Sicari retained a secret, beneficial interest in the property. Failure to disclose his interest in the Kingston property and the rental income therefrom, constitutes a false oath within the purview of § 727(a)(4)(A).",
"Sicari also failed to disclose any interest in the insurance proceeds for damage to his personal residence. Although the $45,552 insurance proceeds check was diverted to the Trust bank account, only $35,000 of it was withdrawn from the Trust account to pay for the repairs on Sicari's behalf. Sicari was obligated to account for and disclose the remaining $10,552 as an asset of this bankruptcy estate. His failure to do so also constitutes a false oath under § 727(a)(4)(A). Additionally, Sicari failed to list an interest in the Virgo Building and the rental income therefrom. Having previously determined that Sicari retained an interest in the Virgo Building and the rental income it generated after its transfer to Tonia Cara, he was required to disclose this interest in his bankruptcy Petition, Schedules and Statement of Financial Affairs. His failure to do so constitutes yet another false oath under § 727(a)(4)(A). In his Statement of Financial Affairs, Sicari declared that he made no transfers or gifts within the year immediately preceding his bankruptcy filing.",
"From the evidence presented regarding the rental income from the various properties and insurance proceeds for damage to his personal residence, I am satisfied that this statement was false. Sicari also failed to schedule his ninety-percent interest in Sicari Associates, the \"informal association\" he maintained with his uncle, although he did disclose four parcels of real property owned by it. (Second Amended Pre-Trial Stipulation). He answered \"None\" to Question B-13 of his Schedule of Personal Property requiring disclosure of all \"interests in partnerships or joint ventures.\" A debtor may not pick and choose among his assets and holdings so as to schedule only those which he may deem to be valuable, important or relevant.",
"Rather, a debtor is obliged to completely and accurately list all property of every kind and nature, tangible and intangible, legal and equitable, which may comprise his bankruptcy estate, and to respond truthfully to all questions in the Schedules and Statement of Financial Affairs. \"The determination of relevance and importance of the question is not for the debtor to make. It is the debtor's role simply to consider the question carefully and answer it completely and accurately.\" In re Mazzola, 4 B.R.",
"179, 182 (Bankr. D.Mass.1980). In In re Chalik, 748 F.2d 616 (11th Cir.1984), the Court affirmed the denial of the debtor's discharge based on his omission from his bankruptcy schedules of interests in certain corporations. The Court accepted the Bankruptcy Court's finding that while \"there [was] no present indication that the *882 concealed information would have or could have revealed assets available for creditors . . .",
"that circumstance does not excuse the concealment of information, which is necessary to the investigation of a debtor's financial condition.\" In re Mascolo, 505 F.2d 274, 277-78 (1st Cir.1974); In re Robinson, 506 F.2d 1184, 1188 (2d Cir.1974). See also, 4 Collier on Bankruptcy, ¶ 727.04 (15th ed. 1994). The denial of a discharge will not be avoided by debtor's assertion that omitted or falsely stated information concerned a \"worthless business relationship or holding,\" such defense being categorized as \"specious.\" In re Chalik, 748 F.2d 616, 618 (citing Diorio v. Kreisler-Borg Construction Co., 407 F.2d 1330 (2d Cir.1969)).",
"Accordingly, Sicari's failure to disclose his interest in Sicari Associates constitutes a false oath under § 727(a)(4)(A). Plaintiff has also presented evidence sufficient to establish that Sicari knew the statements made in his bankruptcy Schedules and Statement of Financial Affairs were false. After transfer of the Kingston and Virgo properties, Sicari continued to be involved in the control and maintenance of those properties. Rental income from the properties continued to be received at his address by his representative and was diverted to various accounts in a manner inconsistent with the rent payments. Rental income from the Medical Building and the Widmark Farm property was diverted to his children's Trust. Sicari failed to offer credible evidence to rebut Plaintiff's prima facie case. It appears inescapable that, faced with impending collection efforts on money judgments exceeding $4.6 million, Sicari embarked on a scheme to transfer his assets and conceal the transfers from his creditors. Sicari neither disclosed these transfers nor scheduled the underlying assets in his bankruptcy case.",
"Likewise, the evidence sufficiently establishes that Sicari made the false statements with fraudulent intent. His diversion of assets, secreting them from his creditors and failing to list them in his bankruptcy case are indicative of his fraudulent intent. Fraudulent intent may be established by circumstantial evidence or by inferences drawn from a course of conduct. Devers v. Bank of Sheridan, Montana (In re Devers), 759 F.2d 751, 753-54 (9th Cir.1985). Moreover, fraudulent intent may be inferred, for purposes of a § 727(a)(4)(A) objection, from a debtor's reckless indifference to or cavalier disregard of the truth. Diorio v. Kreisler-Borg Construction Co. (In re Diorio), 407 F.2d 1330, 1331 (2d Cir.1969); MacLeod v. Arcuri (In re Arcuri), 116 B.R. 873, 883 (Bankr.S.D.N.Y.1990); In re Gugliada, 20 B.R. 524 (Bankr.S.D.N.Y.1982). The cumulative effect of a number of false oaths by the debtor with respect to a variety of matters establishes a pattern of reckless and cavalier disregard for the truth.",
"Community Bank of Homewood-Flossmoor v. Bailey (In re Bailey), 145 B.R. 919, 928 (Bankr. N.D.Ill.1992). Plaintiff has established a prima facie case under § 727(a)(4)(A). Sicari failed to offer credible evidence in rebuttal, and Plaintiff's objection to Sicari's discharge is, therefore, sustained on this ground as well. CONCLUSIONS OF LAW 1. This Court has jurisdiction of the subject matter and the parties pursuant to 28 U.S.C. § 1334 and § 157(a). This is a core proceeding as provided by 28 U.S.C. § 157(b)(2)(J).",
"2. Plaintiff has sustained its burden of proving by a preponderance of the credible evidence that the debtor, with intent to hinder, delay or defraud creditors, transferred and concealed property of the debtor within one year prior to filing his bankruptcy petition, as proscribed by 11 U.S.C. § 727(a)(2)(A). 3. Plaintiff has sustained its burden of proving by a preponderance of the credible evidence that the debtor knowingly and fraudulently, in connection with this case, made a false oath or account, as proscribed by 11 U.S.C.",
"§ 727(a)(4)(A). 4. Accordingly, the debtor's discharge is denied under both 11 U.S.C. § 727(a)(2)(A) and § 727(a)(4)(A). NOTES [1] \"I\" refers to the June 28, 1993 transcript. [2] \"II\" refers to the September 27, 1993 transcript. [3] \"III\" refers to the December 6, 1993 transcript. [4] \"IV\" refers to the December 7, 1993 transcript. [5] A discrepancy exists between the caption of the action as stipulated by the parties in the Second Amended Pre-Trial Stipulation, and the caption which appears on the copy of the Judgment, incomplete as it is, attached to Plaintiff's Proof of Claim. A portion of the caption does not appear on the copy attached to the Proof of Claim; however, of those defendants' names appearing, the order of the defendants' names differs from the caption recited in the Second Amended Pre-trial Stipulation. [6] \"V\" refers to the Second Amended Pre-Trial Stipulation filed June 28, 1993.",
"[7] Upon examination of Exhibit 9 entitled \"Clifford Shortterm Trust For Child,\" the document appears to lack the signature of Esther Sicari, the acknowledgement of Anthony Sicari's signature, and the \"Schedule A\" purportedly describing the trust res. Nevertheless, by the Second Amended Pre-trial Stipulation the parties have agreed that a valid trust was created in 1983. [8] A deposit to a bank account is a transfer. 4 Collier on Bankruptcy, ¶ 727.02[5] (5th ed. 1994). [9] Sicari testified that the Kingston property was conveyed to the Sicari-Clifford Trust in 1983 when the Trust was created (III, 336-37, 344, 347). However, the deed from Sicari and his wife to the Trust is dated August 24, 1990 and was recorded on October 22, 1990, and Sicari identified both his and his wife's signatures thereon. [10] The Court there stated, \"[p]roperty is concealed or permitted to be concealed within the meaning of those terms in the definition of the first act of bankruptcy in § 3, sub.",
"a, when a person does, or permits to be done, anything with intent to hinder, delay or defraud his creditors which prevents, or tends to prevent the discovery of the property.\" [11] Although Sicari denied at trial that he endorsed this check, this testimony is inconsistent with his deposition testimony on February 3, 1993, in which he admitted his signature. (II, 287; Plaintiff's Exhibit 30, p. 41)."
] | https://www.courtlistener.com/api/rest/v3/opinions/2022712/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Title: Thomas Jefferson to William Wirt, 14 August 1814 From: Jefferson, Thomas To: Wirt, William
Dear Sir Monticello Aug. 14. 14. I have been laying under contribution my memory, my private papers, the printed records, gazettes & pamphlets in my possession to answer the enquiries of your letter of July 27. and I will give you the result as correctly as I can. I kept no copy of the paper I sent you on a former occasion, on the same subject, nor do I retain an exact recollection of it’s contents. but if in that I stated the question on the loan office to have been in 1762. I did it with too slight attention to the date, altho’ not to the fact. I have examined the journals of the House of Burgesses of 1760.1.2. in my possession, and find no trace of the proceeding in them. by those of 1764. I find that the famous a Address to the king, and Memorials to the Houses of Lords & Commons, on the proposal of the stamp act, were of that date; and I know that mr Henry was not a member of the legislature when they were passed. I know also, because I was present, that Robinson (who died in May 1766.) was in the chair on the question of the loan office. mr Henry then must have come in between these two epochs, and consequently in 1765. of this year I have no journals to refresh my memory. the first session was in May, and his first remarkable exhibition there was on the motion for the establishment of an office for lending money on mortgages of real property. I find in Royle’s Virginia gazette of the 17th of that month, this proposition for the loan office brought forward, it’s advantages detailed, and the plan explained; and it seems to have been done by a borrowing member, from the feeling with which the motives are expressed; and to have been preparatory to the intended motion. this was probably made immediately after that date, and certainly before the 30th which was the date of mr Henry’s famous resolutions. I had been intimate with mr Henry from the winter of 1759.60. and felt an interest in what concerned him, & I can never forget a particular exclamation of his in the debate which electrified his hearers. it had been urged that from certain unhappy circumstances of the colony, men of substantial property had contracted debts which, if exacted suddenly, must ruin them & their families, but with a little indulgence of time might be paid with ease. ‘what, Sir, exclaimed mr Henry, in animadverting on this, is it proposed then to reclaim the Spendthrift from his dissipation and extravagance, by filling his pockets with money?’ these expressions are indelibly impressed on my memory. he laid open with so much energy the spirit of favoritism on which the proposition was founded, & the abuses to which it would lead, that it was crushed in it’s birth. abortive motions are not always entered on the journals, or rather they are rarely entered. it is the modern introduction of Yeas and Nays which has given the means of placing a rejected motion on the journals: and it is likely that in this case the Speaker, who, as treasurer, was to be the loan officer, and had the direction of the journals, would chuse to omit an entry of the motion in this case. this accounts sufficiently for the absence of any trace of the motion on the journals. there was no suspicion then (as far at least as I knew) that Robinson had used the public money in private loans to his friends, and that the secret object of this scheme was to transfer those debtors to the public, and thus clear his accounts. I have diligently examined the names of the members on the journals of 1764. to see if any were still living to whose memory we might recur on this subject, but I find not a single one now remaining in life. Of the parsons’ cause I remember nothing remarkable. I was at school with mr Maury during the years 1758. & 1759. and often heard him inveigh against the iniquity of the act of 1758. called the two-penny act. in 1763 when that cause was decided in Hanover, I was a law-student in Williamsburg, and remember only that it was a subject of much conversation, and of great paper-controversy, in which Camm, & Colo Bland were the principal champions. The disputed election in which mr Henry made himself remarkable must have been that of Dandridge & Littlepage in 1764. of which however I recollect no particulars, altho’ I was still a student in Williamsburg, & paid attention to what was passing in the legislature. I proceed now to the Resolutions of 1765. the copies you inclose me and that inserted by judge Marshal in his history, and copied verbatim by Burke, are really embarrassing by their differences. 1. that that of the 4. resolutions taken from the records of the House is the genuine copy of what they passed, as amended by themselves, cannot be doubted. 2. that mr Henry’s the copy which mr Henry left sealed up is a true copy of these 4. resolutions, as reported by the committee, there is no reason to doubt. 3. that judge Marshal’s version of 3. of these resolutions (for he has omitted one altogether) is from an unauthentic source, is sufficiently proved by their great variation from the record in diction, altho equivalent in sentiment. but what are we to say of mr Henry’s 5th and of Marshal’s two last, which we may call the 6th and 7th resolutions? the 5th has clearly nothing to justify the debate and proceedings which one of them produced. but the 6th is of that character, and perfectly tallies with the idea impressed on my mind of that which was expunged. Judge Marshal tells us that two were disagreed to by the house, which may be true. I do not indeed recollect it, but I have no recollection to the contrary. my hypothesis then is this, that the two disagreed to were the 5th and 7th. the 5th because merely tautologous of the 3d & 4th and the 7th because leading to individual persecution, for which no mind was then prepared: and that the 6th was the one passed by the House, by a majority of a single vote, & expunged from the Journals the next day.I was standing at the door of communication between the house and lobby during the debate and vote, & well remember that after the numbers on the division were told, and declared from the chair, Peyton Randolph (then Atty Genl) came out at the door where I was standing, and exclaimed ‘by god, I would have given 100. Guineas for a single vote.’ for one vote would have divided the house, and Robinson was in the chair who he knew would have negatived the resolution.mr Henry left town that evening, or the next morning; and Colo Peter Randolph, then a member of the Council, came to the H. of Burgesses about ten aclock of the forenoon, and sat at the clerk’s table till the house-bell rang, thumbing over the volumes of Journals to find a precedent of expunging a vote of the house, which he said had taken place while he was a member, or clerk of the house, I do not recollect which. I stood by him at the end of the table a considerable part of the time, looking on as he turned over the leaves; but I do not recollect whether he found the erasure. in the mean time some of the timid members, who had voted for the strongest resolution, had become alarmed, and as soon as the house met a motion was made and carried to expunge it from the journals. and here I will observe that Burke’s statement of mr Henry’s consenting to withdraw two resolutions, by way of compromise with his opponents is entirely erroneous. I suppose the original journal was among those destroyed by the British, or it’s obliterated face might be appealed to. it is a pity this investigation was not made a few years sooner, when some of the members of the day were still living. I think enquiry should be made of judge Marshal for the source from which he derived his copy of the Resolutions. this might throw light on the 6th and 7th which I verily believe and especially the 6th to be genuine in substance.On the whole I suppose the 4. resolutions which are on the record were past and retained by the House; that the 6th is that which was passed by a single vote and expunged, and the 5th & 7th the two which judge Marshal says were disagreed to.that mr Henry’s copy then should not have stated all this is the remaining difficulty. this copy he probably sealed up long after the transaction; for it was long afterwards that these resolutions, instead of the Address & Memorials of the preceding year, were looked back to as the commencement of legislative opposition. his own judgment may, at a later date, have approved of the rejection of the 6th and 7th altho’ not of the 5th and he may have left & sealed up a copy, in his own handwriting, as approved by his ultimate judgment. this, to be sure, is conjecture, and may rightfully be rejected by any one to whom a more plausible solution may occur: and there I must leave it. the address of 1764. was drawn by Peyton Randolph. who drew the Memorial to the Lords I do not recollect: but mr Wythe wrote that to the Commons. it was done with so much freedom that, as he has told me himself, his colleagues of the Committee shrunk from it as wearing the aspect of treason, and smoothed it’s features to it’s present form. he was indeed one of the very few, (for I can hardly barely speak of them in the plural number) of either character, who, from the commencement of the contest, hung our connection with Britain on it’s true hook, that of a common king. his unassuming character however, made him appear as a follower, while his sound judgment kept him in a line with the freest spirit.by these resolutions mr Henry took the lead out of the hands of those who had heretofore guided the proceedings of the House, that is to say, of Pendleton, Wythe, Bland, Randolph, Nicholas. these were honest and able men, had begun the opposition on the same grounds, but with a moderation more adapted to their age and experience. subsequent events favored the bolder spirits of Henry, the Lees, Pages, Mason Etc. with whom I went in all points. sensible however of the importance of unanimity among our constituents, altho’ we often wished to have gone faster, we slackened our pace, that our less ardent colleagues might keep up with us: and they, on their part, differing nothing from us in principle, quickened their gait somewhat beyond that which their prudence might of itself have advised, and thus consolidated the phalanx which breasted the power of Britain. by this harmony of the bold with the cautious, we advanced with our constituents in undivided mass, and with fewer examples of separation than perhaps existed in any other part of the Union. I do not remember the topics of mr Henry’s argument: but those of his opposers were that the same sentiments had been expressed in the Address and Memorials of the preceding year session, to which an answer was expected and not yet recieved. I well remember the cry of treason, the pause of mr Henry at the name of George the IIId and the presence of mind with which he closed his sentence, and baffled the charge vociferated.I do not think he took the position in the middle of the floor which you mention. on the contrary I think I recollect him standing in the very place which he continued afterwards habitually to occupy in the house. The censure of mr E. Randolph on mr Henry in the case of Philips, was without foundation. I remember the case, and took my part in it. Philips was a mere robber, who availing himself of the troubles of the times, collected a banditti, retired to the Dismal swamp, and from thence sallied forth, plundering and maltreating the neighboring inhabitants, and covering himself, without authority, under the name of a British subject. mr Henry, then Governor, communicated the case to me. we both thought the best proceeding would be by bill of attainder, unless he delivered himself up for trial within a given time. Philips was afterwards taken; and mr Randolph being Attorney Genl and apprehending he would plead that he was a British subject, taken in arms, in support of his lawful sovereign, and as a prisoner of war entitled to the protection of the law of nations, he thought the safest proceeding would be to indict him at Common law as a felon & robber. against this I believe Philips urged the same plea; but was overruled and found guilty. I recollect nothing of a doubt on the re-eligibility of mr Henry to the government, when his term expired in 1779. nor can I concieve on what ground such a doubt could have been entertained; unless perhaps that his first election in June 1776. having been before we were nationally declared independant, some might suppose it should not be reckoned as one of the three constitutional elections. Of the projects for appointing a Dictator there are said to have been two. I know nothing of either but by hear-say. the 1st was in Williamsburg in Dec. 1776. the assembly had, the month before, appointed mr Wythe, mr Pendleton, George Mason, Thomas L. Lee and myself to revise the whole body of laws, & adapt them to our new form of government. I left the House early in December to prepare to join the Committee at Fredericksburg, the place of our first meeting. what passed therefore in the House in December, I know not, and have not the journals of that session to look into. it is even possible that it was the absence of the members of this commee which encoraged the movers of a Dictatorship to hazard that enterprize.the 2d proposition was in June 81. at the Staunton session of the legislature. no trace of this last motion is entered on the journals of that date, which I have examined. this is a further proof that the silence of journals is no evidence against the fact of an abortive motion. among the names of the members found on the journal of the Staunton session, are John Taylor of Caroline, Genl Andrew Moore, and Genl Edward Steevens of Culpeper now living. it would be well to ask information from each of them, that their errors of memory, or of feeling may be corrected by collation. You ask if I would have any objection to be quoted as to the fact of rescinding the last of mr Henry’s resolutions. none at all as to that fact, or it’s having been passed by a majority of one vote only; the scene being as present to my mind as that in which I am now writing. but I do not affirm, altho’ I believe it was the 6th resolution. It is truly unfortunate that those engaged in public affairs so rarely make notes of transactions passing within their knolege. hence history becomes fable instead of fact. the great outlines may be true, but the incidents and colouring are according to the faith or fancy of the writer. had judge Marshal taken half the your pains in sifting & scrutinising facts, he would not have given to the world, as true history, a false copy of a record under his eye. Burke again has copied him, and being a second writer on the spot, doubles the credit of the copy. when writers are so indifferent as to the correctness of facts the verification of which lies at their elbow, by what measure shall we estimate their relation of things distant, or of those given to us thro’ the obliquities of their own vision? our records it is true, in the case under contemplation, were destroyed by the malice and Vandalism of the British military, perhaps of their government under whose orders they committed so much useless mischief. but printed copies remained as your examination has proved. those which were apocryphal then ought not to have been hazarded without examination. should you be able to ascertain the genuineness of the 6th and 7th resolutions, I would ask a line of information, to rectify or to confirm my own impressions respecting them. ever affectionately yours. Th: Jefferson | 08-14-1814 | [
"Title: Thomas Jefferson to William Wirt, 14 August 1814 From: Jefferson, Thomas To: Wirt, William Dear Sir Monticello Aug. 14. 14. I have been laying under contribution my memory, my private papers, the printed records, gazettes & pamphlets in my possession to answer the enquiries of your letter of July 27. and I will give you the result as correctly as I can. I kept no copy of the paper I sent you on a former occasion, on the same subject, nor do I retain an exact recollection of it’s contents. but if in that I stated the question on the loan office to have been in 1762. I did it with too slight attention to the date, altho’ not to the fact. I have examined the journals of the House of Burgesses of 1760.1.2. in my possession, and find no trace of the proceeding in them. by those of 1764. I find that the famous a Address to the king, and Memorials to the Houses of Lords & Commons, on the proposal of the stamp act, were of that date; and I know that mr Henry was not a member of the legislature when they were passed.",
"I know also, because I was present, that Robinson (who died in May 1766.) was in the chair on the question of the loan office. mr Henry then must have come in between these two epochs, and consequently in 1765. of this year I have no journals to refresh my memory. the first session was in May, and his first remarkable exhibition there was on the motion for the establishment of an office for lending money on mortgages of real property. I find in Royle’s Virginia gazette of the 17th of that month, this proposition for the loan office brought forward, it’s advantages detailed, and the plan explained; and it seems to have been done by a borrowing member, from the feeling with which the motives are expressed; and to have been preparatory to the intended motion. this was probably made immediately after that date, and certainly before the 30th which was the date of mr Henry’s famous resolutions. I had been intimate with mr Henry from the winter of 1759.60. and felt an interest in what concerned him, & I can never forget a particular exclamation of his in the debate which electrified his hearers. it had been urged that from certain unhappy circumstances of the colony, men of substantial property had contracted debts which, if exacted suddenly, must ruin them & their families, but with a little indulgence of time might be paid with ease. ‘what, Sir, exclaimed mr Henry, in animadverting on this, is it proposed then to reclaim the Spendthrift from his dissipation and extravagance, by filling his pockets with money?’ these expressions are indelibly impressed on my memory.",
"he laid open with so much energy the spirit of favoritism on which the proposition was founded, & the abuses to which it would lead, that it was crushed in it’s birth. abortive motions are not always entered on the journals, or rather they are rarely entered. it is the modern introduction of Yeas and Nays which has given the means of placing a rejected motion on the journals: and it is likely that in this case the Speaker, who, as treasurer, was to be the loan officer, and had the direction of the journals, would chuse to omit an entry of the motion in this case.",
"this accounts sufficiently for the absence of any trace of the motion on the journals. there was no suspicion then (as far at least as I knew) that Robinson had used the public money in private loans to his friends, and that the secret object of this scheme was to transfer those debtors to the public, and thus clear his accounts. I have diligently examined the names of the members on the journals of 1764. to see if any were still living to whose memory we might recur on this subject, but I find not a single one now remaining in life. Of the parsons’ cause I remember nothing remarkable. I was at school with mr Maury during the years 1758. & 1759. and often heard him inveigh against the iniquity of the act of 1758. called the two-penny act.",
"in 1763 when that cause was decided in Hanover, I was a law-student in Williamsburg, and remember only that it was a subject of much conversation, and of great paper-controversy, in which Camm, & Colo Bland were the principal champions. The disputed election in which mr Henry made himself remarkable must have been that of Dandridge & Littlepage in 1764. of which however I recollect no particulars, altho’ I was still a student in Williamsburg, & paid attention to what was passing in the legislature.",
"I proceed now to the Resolutions of 1765. the copies you inclose me and that inserted by judge Marshal in his history, and copied verbatim by Burke, are really embarrassing by their differences. 1. that that of the 4. resolutions taken from the records of the House is the genuine copy of what they passed, as amended by themselves, cannot be doubted. 2. that mr Henry’s the copy which mr Henry left sealed up is a true copy of these 4. resolutions, as reported by the committee, there is no reason to doubt. 3. that judge Marshal’s version of 3. of these resolutions (for he has omitted one altogether) is from an unauthentic source, is sufficiently proved by their great variation from the record in diction, altho equivalent in sentiment. but what are we to say of mr Henry’s 5th and of Marshal’s two last, which we may call the 6th and 7th resolutions?",
"the 5th has clearly nothing to justify the debate and proceedings which one of them produced. but the 6th is of that character, and perfectly tallies with the idea impressed on my mind of that which was expunged. Judge Marshal tells us that two were disagreed to by the house, which may be true. I do not indeed recollect it, but I have no recollection to the contrary. my hypothesis then is this, that the two disagreed to were the 5th and 7th. the 5th because merely tautologous of the 3d & 4th and the 7th because leading to individual persecution, for which no mind was then prepared: and that the 6th was the one passed by the House, by a majority of a single vote, & expunged from the Journals the next day.I was standing at the door of communication between the house and lobby during the debate and vote, & well remember that after the numbers on the division were told, and declared from the chair, Peyton Randolph (then Atty Genl) came out at the door where I was standing, and exclaimed ‘by god, I would have given 100. Guineas for a single vote.’ for one vote would have divided the house, and Robinson was in the chair who he knew would have negatived the resolution.mr Henry left town that evening, or the next morning; and Colo Peter Randolph, then a member of the Council, came to the H. of Burgesses about ten aclock of the forenoon, and sat at the clerk’s table till the house-bell rang, thumbing over the volumes of Journals to find a precedent of expunging a vote of the house, which he said had taken place while he was a member, or clerk of the house, I do not recollect which.",
"I stood by him at the end of the table a considerable part of the time, looking on as he turned over the leaves; but I do not recollect whether he found the erasure. in the mean time some of the timid members, who had voted for the strongest resolution, had become alarmed, and as soon as the house met a motion was made and carried to expunge it from the journals. and here I will observe that Burke’s statement of mr Henry’s consenting to withdraw two resolutions, by way of compromise with his opponents is entirely erroneous. I suppose the original journal was among those destroyed by the British, or it’s obliterated face might be appealed to. it is a pity this investigation was not made a few years sooner, when some of the members of the day were still living. I think enquiry should be made of judge Marshal for the source from which he derived his copy of the Resolutions. this might throw light on the 6th and 7th which I verily believe and especially the 6th to be genuine in substance.On the whole I suppose the 4. resolutions which are on the record were past and retained by the House; that the 6th is that which was passed by a single vote and expunged, and the 5th & 7th the two which judge Marshal says were disagreed to.that mr Henry’s copy then should not have stated all this is the remaining difficulty. this copy he probably sealed up long after the transaction; for it was long afterwards that these resolutions, instead of the Address & Memorials of the preceding year, were looked back to as the commencement of legislative opposition.",
"his own judgment may, at a later date, have approved of the rejection of the 6th and 7th altho’ not of the 5th and he may have left & sealed up a copy, in his own handwriting, as approved by his ultimate judgment. this, to be sure, is conjecture, and may rightfully be rejected by any one to whom a more plausible solution may occur: and there I must leave it. the address of 1764. was drawn by Peyton Randolph. who drew the Memorial to the Lords I do not recollect: but mr Wythe wrote that to the Commons. it was done with so much freedom that, as he has told me himself, his colleagues of the Committee shrunk from it as wearing the aspect of treason, and smoothed it’s features to it’s present form.",
"he was indeed one of the very few, (for I can hardly barely speak of them in the plural number) of either character, who, from the commencement of the contest, hung our connection with Britain on it’s true hook, that of a common king. his unassuming character however, made him appear as a follower, while his sound judgment kept him in a line with the freest spirit.by these resolutions mr Henry took the lead out of the hands of those who had heretofore guided the proceedings of the House, that is to say, of Pendleton, Wythe, Bland, Randolph, Nicholas. these were honest and able men, had begun the opposition on the same grounds, but with a moderation more adapted to their age and experience. subsequent events favored the bolder spirits of Henry, the Lees, Pages, Mason Etc.",
"with whom I went in all points. sensible however of the importance of unanimity among our constituents, altho’ we often wished to have gone faster, we slackened our pace, that our less ardent colleagues might keep up with us: and they, on their part, differing nothing from us in principle, quickened their gait somewhat beyond that which their prudence might of itself have advised, and thus consolidated the phalanx which breasted the power of Britain. by this harmony of the bold with the cautious, we advanced with our constituents in undivided mass, and with fewer examples of separation than perhaps existed in any other part of the Union. I do not remember the topics of mr Henry’s argument: but those of his opposers were that the same sentiments had been expressed in the Address and Memorials of the preceding year session, to which an answer was expected and not yet recieved.",
"I well remember the cry of treason, the pause of mr Henry at the name of George the IIId and the presence of mind with which he closed his sentence, and baffled the charge vociferated.I do not think he took the position in the middle of the floor which you mention. on the contrary I think I recollect him standing in the very place which he continued afterwards habitually to occupy in the house. The censure of mr E. Randolph on mr Henry in the case of Philips, was without foundation. I remember the case, and took my part in it. Philips was a mere robber, who availing himself of the troubles of the times, collected a banditti, retired to the Dismal swamp, and from thence sallied forth, plundering and maltreating the neighboring inhabitants, and covering himself, without authority, under the name of a British subject.",
"mr Henry, then Governor, communicated the case to me. we both thought the best proceeding would be by bill of attainder, unless he delivered himself up for trial within a given time. Philips was afterwards taken; and mr Randolph being Attorney Genl and apprehending he would plead that he was a British subject, taken in arms, in support of his lawful sovereign, and as a prisoner of war entitled to the protection of the law of nations, he thought the safest proceeding would be to indict him at Common law as a felon & robber. against this I believe Philips urged the same plea; but was overruled and found guilty. I recollect nothing of a doubt on the re-eligibility of mr Henry to the government, when his term expired in 1779. nor can I concieve on what ground such a doubt could have been entertained; unless perhaps that his first election in June 1776. having been before we were nationally declared independant, some might suppose it should not be reckoned as one of the three constitutional elections. Of the projects for appointing a Dictator there are said to have been two. I know nothing of either but by hear-say.",
"the 1st was in Williamsburg in Dec. 1776. the assembly had, the month before, appointed mr Wythe, mr Pendleton, George Mason, Thomas L. Lee and myself to revise the whole body of laws, & adapt them to our new form of government. I left the House early in December to prepare to join the Committee at Fredericksburg, the place of our first meeting. what passed therefore in the House in December, I know not, and have not the journals of that session to look into. it is even possible that it was the absence of the members of this commee which encoraged the movers of a Dictatorship to hazard that enterprize.the 2d proposition was in June 81. at the Staunton session of the legislature. no trace of this last motion is entered on the journals of that date, which I have examined. this is a further proof that the silence of journals is no evidence against the fact of an abortive motion.",
"among the names of the members found on the journal of the Staunton session, are John Taylor of Caroline, Genl Andrew Moore, and Genl Edward Steevens of Culpeper now living. it would be well to ask information from each of them, that their errors of memory, or of feeling may be corrected by collation. You ask if I would have any objection to be quoted as to the fact of rescinding the last of mr Henry’s resolutions. none at all as to that fact, or it’s having been passed by a majority of one vote only; the scene being as present to my mind as that in which I am now writing.",
"but I do not affirm, altho’ I believe it was the 6th resolution. It is truly unfortunate that those engaged in public affairs so rarely make notes of transactions passing within their knolege. hence history becomes fable instead of fact. the great outlines may be true, but the incidents and colouring are according to the faith or fancy of the writer. had judge Marshal taken half the your pains in sifting & scrutinising facts, he would not have given to the world, as true history, a false copy of a record under his eye. Burke again has copied him, and being a second writer on the spot, doubles the credit of the copy. when writers are so indifferent as to the correctness of facts the verification of which lies at their elbow, by what measure shall we estimate their relation of things distant, or of those given to us thro’ the obliquities of their own vision?",
"our records it is true, in the case under contemplation, were destroyed by the malice and Vandalism of the British military, perhaps of their government under whose orders they committed so much useless mischief. but printed copies remained as your examination has proved. those which were apocryphal then ought not to have been hazarded without examination. should you be able to ascertain the genuineness of the 6th and 7th resolutions, I would ask a line of information, to rectify or to confirm my own impressions respecting them. ever affectionately yours. Th: Jefferson"
] | https://founders.archives.gov/API/docdata/Jefferson/03-07-02-0403 | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Prospectus Supplement dated August 1, Putnam Mid Cap Value Fund Prospectus dated 8/30/08 In July 2009, Putnam Management and the Board of Trustees of the fund agreed, effective August 1, 2009, to replace the funds previous expense limitation with a new arrangement that (a) imposes a new limit on the fee payable under the investor servicing contract and (b) places a limit on other expenses of the fund. The table of Total Annual Fund Operating Expenses in Fund summary Costs associated with your investment is revised as follows to reflect projected expenses based on the new expense limitations and the funds current (6/30/09) asset level: Total annual fund operating expenses* (expenses that are deducted from fund assets) Management Distribution Other Total annual fund fees (12b-1) and expenses^ operating service fees expenses Class A 0.70% 0.25% 0.43% 1.38% Class B 0.70% 1.00% 0.43% 2.13% Class C 0.70% 1.00% 0.43% 2.13% Class M 0.70% 0.75% 0.43% 1.88% Class R 0.70% 0.50% 0.43% 1.63% Class Y 0.70% N/A 0.43% 1.13% * Putnam Management has contractually agreed, from August 1, 2009 through July 31, 2010, to limit the funds expenses (not including brokerage, interest, taxes, investment-related expenses, extraordinary expenses and payments under the funds investor servicing contract, investment management contract and distribution plans) to an annual rate of 0.20% of the funds average net assets. For additional information regarding expense limitations, see Charges and Expenses in the Statement of Additional Information (SAI). ^ Includes estimated expenses attributable to the funds investments in other investment companies that the fund bears indirectly. The table in Fund summary How do these fees and expenses look in dollar terms? is replaced with the following: EXAMPLE: Sales charge plus annual operating expenses on a $10,000 investment over time 1 year 3 years 5 years 10 years Class A $707 $987 $1,287 $2,137 Class B $716 $967 $1,344 $2,139* Class B (no redemption) $216 $667 $1,144 $2,139* Class C $316 $667 $1,144 $2,462 Class C (no redemption) $216 $667 $1,144 $2,462 Class M $534 $920 $1,331 $2,474 Class R $166 $514 $887 $1,933 Class Y $115 $359 $622 $1,375 *Reflects conversion of class B shares to class A shares, which pay lower 12b-1 fees. Conversion occurs six and a half years after purchase. ***** At the same meeting, the Board of Trustees approved a new management contract for the fund, which will be submitted to shareholders for approval at a meeting expected to be held in the fourth quarter of 2009. Under the proposed management contract, management fee breakpoints would be determined by reference to the assets of all of the open-end Putnam Funds, rather than only the assets of the fund. See the funds SAI for additional information about the proposed management contract. 257677 - 08/09 | [
"Prospectus Supplement dated August 1, Putnam Mid Cap Value Fund Prospectus dated 8/30/08 In July 2009, Putnam Management and the Board of Trustees of the fund agreed, effective August 1, 2009, to replace the funds previous expense limitation with a new arrangement that (a) imposes a new limit on the fee payable under the investor servicing contract and (b) places a limit on other expenses of the fund. The table of Total Annual Fund Operating Expenses in Fund summary Costs associated with your investment is revised as follows to reflect projected expenses based on the new expense limitations and the funds current (6/30/09) asset level: Total annual fund operating expenses* (expenses that are deducted from fund assets) Management Distribution Other Total annual fund fees (12b-1) and expenses^ operating service fees expenses Class A 0.70% 0.25% 0.43% 1.38% Class B 0.70% 1.00% 0.43% 2.13% Class C 0.70% 1.00% 0.43% 2.13% Class M 0.70% 0.75% 0.43% 1.88% Class R 0.70% 0.50% 0.43% 1.63% Class Y 0.70% N/A 0.43% 1.13% * Putnam Management has contractually agreed, from August 1, 2009 through July 31, 2010, to limit the funds expenses (not including brokerage, interest, taxes, investment-related expenses, extraordinary expenses and payments under the funds investor servicing contract, investment management contract and distribution plans) to an annual rate of 0.20% of the funds average net assets. For additional information regarding expense limitations, see Charges and Expenses in the Statement of Additional Information (SAI).",
"^ Includes estimated expenses attributable to the funds investments in other investment companies that the fund bears indirectly. The table in Fund summary How do these fees and expenses look in dollar terms? is replaced with the following: EXAMPLE: Sales charge plus annual operating expenses on a $10,000 investment over time 1 year 3 years 5 years 10 years Class A $707 $987 $1,287 $2,137 Class B $716 $967 $1,344 $2,139* Class B (no redemption) $216 $667 $1,144 $2,139* Class C $316 $667 $1,144 $2,462 Class C (no redemption) $216 $667 $1,144 $2,462 Class M $534 $920 $1,331 $2,474 Class R $166 $514 $887 $1,933 Class Y $115 $359 $622 $1,375 *Reflects conversion of class B shares to class A shares, which pay lower 12b-1 fees.",
"Conversion occurs six and a half years after purchase. ***** At the same meeting, the Board of Trustees approved a new management contract for the fund, which will be submitted to shareholders for approval at a meeting expected to be held in the fourth quarter of 2009. Under the proposed management contract, management fee breakpoints would be determined by reference to the assets of all of the open-end Putnam Funds, rather than only the assets of the fund. See the funds SAI for additional information about the proposed management contract.",
"257677 - 08/09"
] | 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 |
|
56 F.3d 65NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Lynda Hassell TAYLOR, Plaintiff/Appellant,v.TENNESSEE DEPARTMENT OF HUMAN SERVICES, et al., Defendants/Appellees. No. 94-5711. United States Court of Appeals, Sixth Circuit. May 23, 1995.
Before: KENNEDY and SUHRHEINRICH, Circuit Judges; HILLMAN, District Judge.* PER CURIAM.
1 Plaintiff Lynda Hassell Taylor appeals the judgment of the district court sustaining defendants' motion for summary judgment in this action brought pursuant to Title VII, 42 U.S.C. Sec. 2000e-2(a) and 42 U.S.C. Sec. 1983. The district court held that plaintiff had failed to create a genuine issue of fact to support her claim of race discrimination based upon alternative theories of constructive discharge and disparate treatment, and assuming she had made out a prima facie case of discrimination, had produced no evidence showing that the defendants' asserted reason for her discharge was mere pretext. The court also found insufficient proof of plaintiff's First and Fourteenth Amendment claims.
2 On appeal, plaintiff challenges the district court's conclusions that she failed to present evidence sufficient to withstand summary judgment on her theories of disparate treatment and constructive discharge, and its conclusion that she failed to demonstrate pretext.
3 After studying the record and the briefs of the parties, as well as the relevant law, we are satisfied that the district court decided correctly that plaintiff has not met her burden under Fed. R. Civ. P. 56 on her race discrimination claim. Accordingly, the judgment of the district court is AFFIRMED for the reasons stated in its March 24, 1994 Memorandum Opinion.
* The Honorable Douglas W. Hillman, United States District Judge for the Western District of Michigan, sitting by designation | 04-17-2012 | [
"56 F.3d 65NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Lynda Hassell TAYLOR, Plaintiff/Appellant,v.TENNESSEE DEPARTMENT OF HUMAN SERVICES, et al., Defendants/Appellees. No. 94-5711. United States Court of Appeals, Sixth Circuit. May 23, 1995. Before: KENNEDY and SUHRHEINRICH, Circuit Judges; HILLMAN, District Judge. * PER CURIAM. 1 Plaintiff Lynda Hassell Taylor appeals the judgment of the district court sustaining defendants' motion for summary judgment in this action brought pursuant to Title VII, 42 U.S.C.",
"Sec. 2000e-2(a) and 42 U.S.C. Sec. 1983. The district court held that plaintiff had failed to create a genuine issue of fact to support her claim of race discrimination based upon alternative theories of constructive discharge and disparate treatment, and assuming she had made out a prima facie case of discrimination, had produced no evidence showing that the defendants' asserted reason for her discharge was mere pretext. The court also found insufficient proof of plaintiff's First and Fourteenth Amendment claims. 2 On appeal, plaintiff challenges the district court's conclusions that she failed to present evidence sufficient to withstand summary judgment on her theories of disparate treatment and constructive discharge, and its conclusion that she failed to demonstrate pretext. 3 After studying the record and the briefs of the parties, as well as the relevant law, we are satisfied that the district court decided correctly that plaintiff has not met her burden under Fed. R. Civ.",
"P. 56 on her race discrimination claim. Accordingly, the judgment of the district court is AFFIRMED for the reasons stated in its March 24, 1994 Memorandum Opinion. * The Honorable Douglas W. Hillman, United States District Judge for the Western District of Michigan, sitting by designation"
] | https://www.courtlistener.com/api/rest/v3/opinions/696828/ | 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 October 4, 2021 has been entered. Response to Amendment In response to the amendment received October 4, 2021: Claims 1, 3-4, 7 and 9-10 are pending. Claims 2, 3-4, 8 and 11-12 have been cancelled as per applicant’s request. The core of the previous rejection is maintained with slight changes made in light of the amendment. All changes to the rejection are necessitated by the amendment. Claim Objections Claims 1 and 7 are objected to because of the following informalities: The instant claim 1 recites “a one-way valve” (line 3) and later recites “the one-way degassing valve” (line 12). The later recitation should recite “the one-way valve”. The instant claim 1 recites “gas” (line 4, singular) and later recites “the gasses” (line 16, plural). The later recitation should recite “the gas”. Appropriate correction is required. The instant claim 7 recites “a one-way valve” (line 3) and later recites “the one-way degassing valve” (line 12). The later recitation should recite “the one-way valve”. The instant claim 7 recites “gas” (line 4, singular) and later recites “the gasses” (line 16, plural). The later recitation should recite “the gas”. Appropriate correction is required. Claim Rejections - 35 USC § 112 The following is a quotation of 35 U.S.C. 112(b): (b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph: The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1 and 7 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 1 and 7 recite the unbound range of “the adhesive material can withstand 0.1 psi or more of pressure exerted from the gases”. As the limitation has to bound, it is impossible to ascertain the metes and bounds of the claim (i.e. does the claimed range encompass numbers as large as 100 psi, 1,000 psi, 10,000 psi or even larger?). Thus, the claim language is unclear and indefinite. Claim Rejections - 35 USC § 103 The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action. Claims 1, 3-4, 7, 9-10 are rejected under 35 U.S.C. 103 as being unpatentable over Givon (WO 00/36688) in view of Kritzer et al. (US 2012/0107650) and Hirose et al. (US 2017/0373302). Regarding Claim 1, Givon teaches a package for a metal air battery (Abstract) which permits the egress of hydrogen out of the packaging, which can build up during the storage of metal-air batteries (pg. 2, lines 32-33) (i.e. a system for providing a safety mechanism for sealed packages) comprising a one way valve (Fig. 2, #510) adhered to the packaging (pg. 3, lines 1-4) (i.e. attached to the sealed package that contains a battery pack (Fig. 2, #510) (i.e. contains a battery) wherein the one way valve permits gas to escape from the enclosure of the bag (Fig. 2, #500) (i.e. sealed package) (pg. 3, lines 30-33), wherein hydrogen gas may be produced and may be permitted to escape from the enclosure via a one way valve (pg. 3, line 33 & pg. 4 lines 1-3) (i.e. when pressure inside the sealed package rises above a pre-determined pressure limit) and the one way valve (Fig. 2, #510) is adhered (i.e. attached) to the bag (Fig. 2, #500) (i.e. sealed package) through an adhesive (i.e. using an adhesive material) (pg. 4, lines 9-10), wherein the one-way valve has a thickness such that the one-way valve is flat (see Fig. 2, #510) on the sealed package (Fig. 2, #50). Givon further teaches a one way valve is the product V45 Aromafine. (pg. 4, line 4). The material of the one way valve is inherently non-reactive because if the one way valve were reactive to the gases released by the battery, then corrosion of the one way Givon does not explicitly teach a one-way valve further comprising a flap that covers the opening that opens towards the outside of the package wherein the pre-determined pressure limit is 0.1 psi. However, Kritzer et al. teaches a valve apparatus provided for a housing of an electrochemical current source (abstract) (which can be batteries that release hydrogen, Para. [0022]) which includes a closing element (Fig. 5, #6) (i.e. one-way valve) which closes a housing opening (i.e. covering a housing opening), and opens so that fluids can escape from an inner space of the housing (Para. [0019], lines 1-5), the fluids being gases (Para. [0025]), wherein if the interior chamber of the housing reaches or exceeds a predetermined excess pressure, the closing element (i.e. one –way valve) is pressed away from the housing opening by the inner pressure, and the housing opening is opened) (i.e. opens towards the outside of the package) (Para. [0022], lines 14-19), and the closing element can be designed as a flap (Para. [0026], lines 1-2). The combination of the closing element designed as a flap as taught by Kritzer et al., with the valve of Givon would yield the predictable result of a one-way valve allowing for the gas built up inside the housing to be released to the outside. Therefore it would have been obvious to one having ordinary skill in the art at the time the claimed invention was filed to combine the closing element designed as a flap as taught by Kritzer et al., with the valve of Givon, as the combination would yield the predictable result of a one-way valve allowing for the gas built up inside the housing to be released Givon as modified by Kritzer et al. does not teach the one-way valve allowing movement of gas from inside the sealed package to outside the sealed package when the pressure inside the sealed package rises above 0.1 psi (i.e. a range of pressure above 0.1 psi) . Hirose et al. teaches a pressure release valve on a battery cover (Fig. 1, #17) (i.e. a valve attached to a sealed package that contains a battery) wherein the pressure released valve is activated at a valve activation pressure P3 (i.e. pre-determined pressure limit) (Para. [0062], [0070]) and allows internal pressure to be released (Para. [0062]), wherein the valve activation pressure is a value greater than or equal to 0.5 MPa and less than 2.0 MPa (i.e. about 76 psi to 290 psi). Although Hirose et al. does not explicitly teach pre-determined pressure limit of 0.1 psi (i.e. a range of pressure above 0.1 psi), Hirose et al. further teaches the valve activation pressure can be adjusted to a pressure at which the pressure release valve is activated before cracks or breakage occur in the case (i.e. packaging) (Para. [0066]) and thus, the pre-determined pressure limit is a result effective variable (i.e. a variable that achieves a recognized It has been held that when the general conditions are disclosed in the art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233 (See MPEP §2144.05). Absent any showing of critical or unexpected results, such limitations appear to be routine optimization within the skill of the ordinary artisan before the effective filing date of the invention are therefore prima facie obvious. Furthermore, as the pressure range at which the one-way valve operates (i.e. allows movement of gas from inside the sealed package to outside the sealed package) has been rendered obvious, the pressure the adhesive attaching the one-way valve to the sealed package is expected to withstand is a pressure range at which the one-way valve functions because if the adhesive could not withstand a pressure exerted by the gas in the operating range of the one-way valve, then the one-way valve would no longer be attached to the sealed package, rendering it unusable for its purpose. The packaging system comprising the one-way valve attached via an adhesive to the sealed package of Givon aims to permit the release of hydrogen (i.e. gas), and thus the adhesive would have to withstand pressures at which the one-way valve releases gas, or else it would fail to do what its purpose is. Regarding Claim 3, Givon as modified by Kritzer et al. teaches all of the elements of claim 1 as explained above.
Regarding Claim 4, Givon as modified by Kritzer et al. teaches all of the elements of claim 1 as explained above. Givon further teaches a hole (Fig. 2, #505) that opens towards the outside of the bag (Fig. 2, #500) (i.e. package). Regarding Claim 7, Givon teaches a package for a metal air battery (Abstract) which permits the egress of hydrogen out of the packaging, which can build up during the storage of metal-air batteries (pg. 2, lines 32-33) (i.e. providing a safety mechanism for a sealed package comprising a one way valve (Fig. 2, #510) adhered to the packaging (pg. 3, lines 1-4) (i.e. attaching a one-way valve to the sealed package) which contains a battery pack (Fig. 2, #510) (i.e. that contains a battery) wherein the one way valve permits gas to escape from the enclosure of the bag (Fig. 2, #500) (i.e. allows movement of gas from inside the sealed package to outside the sealed package) (pg. 3, lines 30-33) wherein hydrogen gas may be produced and may be permitted to escape from the enclosure via a one way valve (pg. 3, line 33 & pg. 4 lines 1-3) (i.e. when pressure inside the sealed package rises above a pre-determined pressure limit, as “a pre-determined pressure limit” can merely be a pressure at which any hydrogen is generated) and the one way valve (Fig. 2, #510) is adhered (i.e. attached) to the bag (Fig. 2, #500) (i.e. sealed package) through an adhesive (i.e. using an adhesive material) (pg. 4, lines 9-10), wherein the one-way valve has a thickness such that the one-way valve is flat (see Fig. 2, #510) on the sealed package (Fig. 2, #50).
Givon does not explicitly teach a one-way valve further comprising a flap that covers the opening that opens towards the outside of the package. However, Kritzer et al. teaches a valve apparatus provided for a housing of an electrochemical current source (abstract) (which can be batteries that release hydrogen, Para. [0022]) which includes a closing element (Fig. 5, #6) (i.e. one-way valve) which closes a housing opening (i.e. covering a housing opening), and opens so that fluids can escape from an inner space of the housing (Para. [0019], lines 1-5), the fluids being gases (Para. [0025]), wherein if the interior chamber of the housing reaches or exceeds a predetermined excess pressure, the closing element (i.e. one –way valve) is pressed away from the housing opening by the inner pressure, and the housing opening is opened) (i.e. opens towards the outside of the package) (Para. [0022], lines 14-19), and the closing element can be designed as a flap (Para. [0026], lines 1-2). The combination of the closing element designed as a flap as taught by Kritzer et al., with the valve of Givon would yield the predictable result of a one-way valve allowing for the gas built up inside the housing to be released to the outside. Therefore it would have been obvious to one having ordinary skill in the art at the time the claimed invention was filed to combine the closing element designed as a flap as taught by Kritzer et al., with the valve of Givon, as the combination would yield the predictable result of a one-way valve allowing for the gas built up inside the housing to be released to the outside. The combination of familiar elements is likely to be obvious when it does no more than yield predictable results. See KSR International Co. v. Teleflex Inc., 550 U.S. 398, 415-421, 82 USPQ2d 1385, 1395 – 97 (2007) (see MPEP § 2143, A.). Additionally, modifying the valve of Givon to use the flap valve of Kritzer et al. would have been an obvious matter of design choice as modifying the valve to comprise a flap would have yielded predictable results as explained above, and valves designed as a flap is known in the art as a suitable design choice for one-way valves (Kritzer et al. -- Para. [0026], lines 1-2). Givon as modified by Kritzer et al. does not teach the one-way valve allowing movement of gas from inside the sealed package to outside the sealed package when the pressure inside the sealed package rises above 0.1 psi (i.e. a range of pressure above 0.1 psi) . Hirose et al. teaches a pressure release valve on a battery cover (Fig. 1, #17) (i.e. a valve attached to a sealed package that contains a battery) wherein the pressure released valve is activated at a valve activation pressure P3 (i.e. pre-determined pressure limit) (Para. [0062], [0070]) and allows internal pressure to be released (Para. [0062]), wherein the valve activation pressure is a value greater than or equal to 0.5 MPa and less than 2.0 MPa (i.e. about 76 psi to 290 psi). Although Hirose et al. does not explicitly teach pre-determined pressure limit of 0.1 psi (i.e. a range of pressure above 0.1 psi), Hirose et al. further teaches the valve activation pressure can be adjusted to a pressure at which the pressure release valve is activated before cracks or It has been held that when the general conditions are disclosed in the art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233 (See MPEP §2144.05). Absent any showing of critical or unexpected results, such limitations appear to be routine optimization within the skill of the ordinary artisan before the effective filing date of the invention are therefore prima facie obvious. Furthermore, as the pressure range at which the one-way valve operates (i.e. allows movement of gas from inside the sealed package to outside the sealed package) has been rendered obvious, the pressure the adhesive attaching the one-way valve to the sealed package is expected to withstand is a pressure range at which the one-way valve functions because if the adhesive could not withstand a pressure exerted by the gas in the operating range of the one-way valve, then the one-way valve would no longer be attached to the sealed package, rendering it unusable for its purpose. The packaging system comprising the one-way valve attached via an adhesive to the sealed package of Givon aims to permit the release of hydrogen (i.e. gas), and thus the adhesive would be expected withstand pressures at which the one-way valve releases gas, or else it would fail to do what its purpose is. Regarding Claim 9, Givon as modified by Kritzer et al. teaches all of the elements of claim 7 as explained above.
Regarding Claim 10, Givon as modified by Kritzer et al. teaches all of the elements of claim 7 as explained above. Givon further teaches a one way valve (Fig. 2, #510) that covers the hole (Fig. 2, #505) (i.e. opening) that opens towards the outside of the bag (Fig. 2, #500) (i.e. package). Response to Arguments Applicant's arguments filed October 4, 2021 have been fully considered but they are not persuasive. Applicant argues Givon, Kritzer and Hirose fail to teach or suggest the features of the amended claim 1. Examiner respectfully disagrees. Givon teaches the one way valve (Fig. 2, #510) is adhered (i.e. attached) to the bag (Fig. 2, #500) (i.e. sealed package) through an adhesive (i.e. using an adhesive material) (pg. 4, lines 9-10), wherein the one-way valve has a thickness such that the one-way valve is flat (see Fig. 2, #510) on the sealed package (Fig. 2, #50). Regarding the adhesive withstanding pressures of 0.1 psi or more, the packaging system of Givon comprising the one-way valve attached via an adhesive to the sealed package of Givon aims to permit the release of hydrogen (i.e. gas), and thus the adhesive would be expected withstand pressures at which the one-way valve releases gas (which has been rendered obvious in the rejection to claim 1 above), or else it would fail to do what its purpose is. Therefore, the Examiner maintains With respect to the arguments regarding the 103 rejections, Applicant argues that the prior art used to render obvious the rejected claims do not cure the deficiencies of the rejection applied to the independent claim. Applicant does not argue how the combination is not proper. Therefore, the Examiner maintains the obviousness rejections and upholds the rejection to the independent claims, as above. Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to ARMINDO CARVALHO JR. whose telephone number is (571)272-5292. The examiner can normally be reached Monday-Thursday 7:30a.m.-5p.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, 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 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-
/A.C./Examiner, Art Unit 1729
/ULA C RUDDOCK/Supervisory Patent Examiner, Art Unit 1729 | 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 . 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 October 4, 2021 has been entered. Response to Amendment In response to the amendment received October 4, 2021: Claims 1, 3-4, 7 and 9-10 are pending. Claims 2, 3-4, 8 and 11-12 have been cancelled as per applicant’s request. The core of the previous rejection is maintained with slight changes made in light of the amendment.",
"All changes to the rejection are necessitated by the amendment. Claim Objections Claims 1 and 7 are objected to because of the following informalities: The instant claim 1 recites “a one-way valve” (line 3) and later recites “the one-way degassing valve” (line 12). The later recitation should recite “the one-way valve”. The instant claim 1 recites “gas” (line 4, singular) and later recites “the gasses” (line 16, plural). The later recitation should recite “the gas”. Appropriate correction is required. The instant claim 7 recites “a one-way valve” (line 3) and later recites “the one-way degassing valve” (line 12). The later recitation should recite “the one-way valve”. The instant claim 7 recites “gas” (line 4, singular) and later recites “the gasses” (line 16, plural). The later recitation should recite “the gas”.",
"Appropriate correction is required. Claim Rejections - 35 USC § 112 The following is a quotation of 35 U.S.C. 112(b): (b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention. The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph: The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention. Claims 1 and 7 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 1 and 7 recite the unbound range of “the adhesive material can withstand 0.1 psi or more of pressure exerted from the gases”. As the limitation has to bound, it is impossible to ascertain the metes and bounds of the claim (i.e. does the claimed range encompass numbers as large as 100 psi, 1,000 psi, 10,000 psi or even larger?). Thus, the claim language is unclear and indefinite. Claim Rejections - 35 USC § 103 The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.",
"Claims 1, 3-4, 7, 9-10 are rejected under 35 U.S.C. 103 as being unpatentable over Givon (WO 00/36688) in view of Kritzer et al. (US 2012/0107650) and Hirose et al. (US 2017/0373302). Regarding Claim 1, Givon teaches a package for a metal air battery (Abstract) which permits the egress of hydrogen out of the packaging, which can build up during the storage of metal-air batteries (pg. 2, lines 32-33) (i.e.",
"a system for providing a safety mechanism for sealed packages) comprising a one way valve (Fig. 2, #510) adhered to the packaging (pg. 3, lines 1-4) (i.e. attached to the sealed package that contains a battery pack (Fig. 2, #510) (i.e. contains a battery) wherein the one way valve permits gas to escape from the enclosure of the bag (Fig. 2, #500) (i.e. sealed package) (pg. 3, lines 30-33), wherein hydrogen gas may be produced and may be permitted to escape from the enclosure via a one way valve (pg. 3, line 33 & pg. 4 lines 1-3) (i.e. when pressure inside the sealed package rises above a pre-determined pressure limit) and the one way valve (Fig. 2, #510) is adhered (i.e. attached) to the bag (Fig. 2, #500) (i.e. sealed package) through an adhesive (i.e.",
"using an adhesive material) (pg. 4, lines 9-10), wherein the one-way valve has a thickness such that the one-way valve is flat (see Fig. 2, #510) on the sealed package (Fig. 2, #50). Givon further teaches a one way valve is the product V45 Aromafine. (pg. 4, line 4). The material of the one way valve is inherently non-reactive because if the one way valve were reactive to the gases released by the battery, then corrosion of the one way Givon does not explicitly teach a one-way valve further comprising a flap that covers the opening that opens towards the outside of the package wherein the pre-determined pressure limit is 0.1 psi. However, Kritzer et al. teaches a valve apparatus provided for a housing of an electrochemical current source (abstract) (which can be batteries that release hydrogen, Para.",
"[0022]) which includes a closing element (Fig. 5, #6) (i.e. one-way valve) which closes a housing opening (i.e. covering a housing opening), and opens so that fluids can escape from an inner space of the housing (Para. [0019], lines 1-5), the fluids being gases (Para. [0025]), wherein if the interior chamber of the housing reaches or exceeds a predetermined excess pressure, the closing element (i.e. one –way valve) is pressed away from the housing opening by the inner pressure, and the housing opening is opened) (i.e. opens towards the outside of the package) (Para. [0022], lines 14-19), and the closing element can be designed as a flap (Para. [0026], lines 1-2). The combination of the closing element designed as a flap as taught by Kritzer et al., with the valve of Givon would yield the predictable result of a one-way valve allowing for the gas built up inside the housing to be released to the outside.",
"Therefore it would have been obvious to one having ordinary skill in the art at the time the claimed invention was filed to combine the closing element designed as a flap as taught by Kritzer et al., with the valve of Givon, as the combination would yield the predictable result of a one-way valve allowing for the gas built up inside the housing to be released Givon as modified by Kritzer et al. does not teach the one-way valve allowing movement of gas from inside the sealed package to outside the sealed package when the pressure inside the sealed package rises above 0.1 psi (i.e. a range of pressure above 0.1 psi) .",
"Hirose et al. teaches a pressure release valve on a battery cover (Fig. 1, #17) (i.e. a valve attached to a sealed package that contains a battery) wherein the pressure released valve is activated at a valve activation pressure P3 (i.e. pre-determined pressure limit) (Para. [0062], [0070]) and allows internal pressure to be released (Para. [0062]), wherein the valve activation pressure is a value greater than or equal to 0.5 MPa and less than 2.0 MPa (i.e.",
"about 76 psi to 290 psi). Although Hirose et al. does not explicitly teach pre-determined pressure limit of 0.1 psi (i.e. a range of pressure above 0.1 psi), Hirose et al. further teaches the valve activation pressure can be adjusted to a pressure at which the pressure release valve is activated before cracks or breakage occur in the case (i.e. packaging) (Para. [0066]) and thus, the pre-determined pressure limit is a result effective variable (i.e. a variable that achieves a recognized It has been held that when the general conditions are disclosed in the art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233 (See MPEP §2144.05). Absent any showing of critical or unexpected results, such limitations appear to be routine optimization within the skill of the ordinary artisan before the effective filing date of the invention are therefore prima facie obvious. Furthermore, as the pressure range at which the one-way valve operates (i.e.",
"allows movement of gas from inside the sealed package to outside the sealed package) has been rendered obvious, the pressure the adhesive attaching the one-way valve to the sealed package is expected to withstand is a pressure range at which the one-way valve functions because if the adhesive could not withstand a pressure exerted by the gas in the operating range of the one-way valve, then the one-way valve would no longer be attached to the sealed package, rendering it unusable for its purpose. The packaging system comprising the one-way valve attached via an adhesive to the sealed package of Givon aims to permit the release of hydrogen (i.e. gas), and thus the adhesive would have to withstand pressures at which the one-way valve releases gas, or else it would fail to do what its purpose is. Regarding Claim 3, Givon as modified by Kritzer et al.",
"teaches all of the elements of claim 1 as explained above. Regarding Claim 4, Givon as modified by Kritzer et al. teaches all of the elements of claim 1 as explained above. Givon further teaches a hole (Fig. 2, #505) that opens towards the outside of the bag (Fig. 2, #500) (i.e. package). Regarding Claim 7, Givon teaches a package for a metal air battery (Abstract) which permits the egress of hydrogen out of the packaging, which can build up during the storage of metal-air batteries (pg.",
"2, lines 32-33) (i.e. providing a safety mechanism for a sealed package comprising a one way valve (Fig. 2, #510) adhered to the packaging (pg. 3, lines 1-4) (i.e. attaching a one-way valve to the sealed package) which contains a battery pack (Fig. 2, #510) (i.e. that contains a battery) wherein the one way valve permits gas to escape from the enclosure of the bag (Fig. 2, #500) (i.e. allows movement of gas from inside the sealed package to outside the sealed package) (pg. 3, lines 30-33) wherein hydrogen gas may be produced and may be permitted to escape from the enclosure via a one way valve (pg. 3, line 33 & pg. 4 lines 1-3) (i.e. when pressure inside the sealed package rises above a pre-determined pressure limit, as “a pre-determined pressure limit” can merely be a pressure at which any hydrogen is generated) and the one way valve (Fig. 2, #510) is adhered (i.e.",
"attached) to the bag (Fig. 2, #500) (i.e. sealed package) through an adhesive (i.e. using an adhesive material) (pg. 4, lines 9-10), wherein the one-way valve has a thickness such that the one-way valve is flat (see Fig. 2, #510) on the sealed package (Fig. 2, #50). Givon does not explicitly teach a one-way valve further comprising a flap that covers the opening that opens towards the outside of the package. However, Kritzer et al. teaches a valve apparatus provided for a housing of an electrochemical current source (abstract) (which can be batteries that release hydrogen, Para. [0022]) which includes a closing element (Fig.",
"5, #6) (i.e. one-way valve) which closes a housing opening (i.e. covering a housing opening), and opens so that fluids can escape from an inner space of the housing (Para. [0019], lines 1-5), the fluids being gases (Para. [0025]), wherein if the interior chamber of the housing reaches or exceeds a predetermined excess pressure, the closing element (i.e. one –way valve) is pressed away from the housing opening by the inner pressure, and the housing opening is opened) (i.e.",
"opens towards the outside of the package) (Para. [0022], lines 14-19), and the closing element can be designed as a flap (Para. [0026], lines 1-2). The combination of the closing element designed as a flap as taught by Kritzer et al., with the valve of Givon would yield the predictable result of a one-way valve allowing for the gas built up inside the housing to be released to the outside. Therefore it would have been obvious to one having ordinary skill in the art at the time the claimed invention was filed to combine the closing element designed as a flap as taught by Kritzer et al., with the valve of Givon, as the combination would yield the predictable result of a one-way valve allowing for the gas built up inside the housing to be released to the outside.",
"The combination of familiar elements is likely to be obvious when it does no more than yield predictable results. See KSR International Co. v. Teleflex Inc., 550 U.S. 398, 415-421, 82 USPQ2d 1385, 1395 – 97 (2007) (see MPEP § 2143, A.). Additionally, modifying the valve of Givon to use the flap valve of Kritzer et al. would have been an obvious matter of design choice as modifying the valve to comprise a flap would have yielded predictable results as explained above, and valves designed as a flap is known in the art as a suitable design choice for one-way valves (Kritzer et al. -- Para. [0026], lines 1-2). Givon as modified by Kritzer et al. does not teach the one-way valve allowing movement of gas from inside the sealed package to outside the sealed package when the pressure inside the sealed package rises above 0.1 psi (i.e. a range of pressure above 0.1 psi) . Hirose et al. teaches a pressure release valve on a battery cover (Fig. 1, #17) (i.e.",
"a valve attached to a sealed package that contains a battery) wherein the pressure released valve is activated at a valve activation pressure P3 (i.e. pre-determined pressure limit) (Para. [0062], [0070]) and allows internal pressure to be released (Para. [0062]), wherein the valve activation pressure is a value greater than or equal to 0.5 MPa and less than 2.0 MPa (i.e. about 76 psi to 290 psi). Although Hirose et al. does not explicitly teach pre-determined pressure limit of 0.1 psi (i.e. a range of pressure above 0.1 psi), Hirose et al. further teaches the valve activation pressure can be adjusted to a pressure at which the pressure release valve is activated before cracks or It has been held that when the general conditions are disclosed in the art, discovering the optimum or workable ranges involves only routine skill in the art.",
"In re Aller, 105 USPQ 233 (See MPEP §2144.05). Absent any showing of critical or unexpected results, such limitations appear to be routine optimization within the skill of the ordinary artisan before the effective filing date of the invention are therefore prima facie obvious. Furthermore, as the pressure range at which the one-way valve operates (i.e. allows movement of gas from inside the sealed package to outside the sealed package) has been rendered obvious, the pressure the adhesive attaching the one-way valve to the sealed package is expected to withstand is a pressure range at which the one-way valve functions because if the adhesive could not withstand a pressure exerted by the gas in the operating range of the one-way valve, then the one-way valve would no longer be attached to the sealed package, rendering it unusable for its purpose. The packaging system comprising the one-way valve attached via an adhesive to the sealed package of Givon aims to permit the release of hydrogen (i.e.",
"gas), and thus the adhesive would be expected withstand pressures at which the one-way valve releases gas, or else it would fail to do what its purpose is. Regarding Claim 9, Givon as modified by Kritzer et al. teaches all of the elements of claim 7 as explained above. Regarding Claim 10, Givon as modified by Kritzer et al. teaches all of the elements of claim 7 as explained above.",
"Givon further teaches a one way valve (Fig. 2, #510) that covers the hole (Fig. 2, #505) (i.e. opening) that opens towards the outside of the bag (Fig. 2, #500) (i.e. package). Response to Arguments Applicant's arguments filed October 4, 2021 have been fully considered but they are not persuasive. Applicant argues Givon, Kritzer and Hirose fail to teach or suggest the features of the amended claim 1. Examiner respectfully disagrees. Givon teaches the one way valve (Fig.",
"2, #510) is adhered (i.e. attached) to the bag (Fig. 2, #500) (i.e. sealed package) through an adhesive (i.e. using an adhesive material) (pg. 4, lines 9-10), wherein the one-way valve has a thickness such that the one-way valve is flat (see Fig. 2, #510) on the sealed package (Fig. 2, #50). Regarding the adhesive withstanding pressures of 0.1 psi or more, the packaging system of Givon comprising the one-way valve attached via an adhesive to the sealed package of Givon aims to permit the release of hydrogen (i.e. gas), and thus the adhesive would be expected withstand pressures at which the one-way valve releases gas (which has been rendered obvious in the rejection to claim 1 above), or else it would fail to do what its purpose is. Therefore, the Examiner maintains With respect to the arguments regarding the 103 rejections, Applicant argues that the prior art used to render obvious the rejected claims do not cure the deficiencies of the rejection applied to the independent claim. Applicant does not argue how the combination is not proper.",
"Therefore, the Examiner maintains the obviousness rejections and upholds the rejection to the independent claims, as above. Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to ARMINDO CARVALHO JR. whose telephone number is (571)272-5292. The examiner can normally be reached Monday-Thursday 7:30a.m.-5p.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, 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 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- /A.C./Examiner, Art Unit 1729 /ULA C RUDDOCK/Supervisory Patent Examiner, Art Unit 1729"
] | 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 |
44 Wash. 2d 525 (1954) 268 P.2d 663 OCOSTA CONSOLIDATED SCHOOL DISTRICT NO. 123, Respondent, v. GRAYS HARBOR COUNTY et al., Appellants.[1] No. 32739. The Supreme Court of Washington, Department One. April 5, 1954. Don G. Abel, for appellants. Paul O. Manley and John H. Kirkwood, Jr., for respondent. GRADY, C.J. In 1939, the real estate described in the complaint was sold at a tax sale and Grays Harbor county became the purchaser. On July 23, 1952, the county made a contract with Anderson Middleton Forest Products Company to sell the merchantable timber growing thereon for the agreed price of eighteen dollars per thousand board feet. On July 6, 1953, a deed was executed by the board of county commissioners conveying the real estate to Grays Harbor county. On July 7, 1953, the prosecuting attorney gave instructions to the county treasurer to pay all income from the real estate and from the timber-sale contract into the current expense fund of the county. Respondent brought suit against Grays Harbor county, its commissioners and treasurer to set aside the deed and to enjoin the disbursement of any of the income derived *527 from the real estate and timber-sale contract in any other manner than as provided by RCW 84.64.230. The court overruled a general demurrer to the complaint. Defendants refused to further plead. Judgment was entered substantially as prayed in the complaint. In this opinion the plaintiff will be referred to as respondent and the county and its officers as appellant. [1] The first question to be decided is one of procedure. Appellant urges that respondent could not invoke the original jurisdiction of the superior court to seek the relief asked, but should have resorted to the remedy provided by RCW 36.32.330. This statute provides for an appeal to the superior court from "any decision or order of the board of county commissioners" of a county and prescribes the procedure that must be followed. It does not apply to this case for two reasons: The county commissioners were not acting under their general powers in the transaction of the usual business of the county when they did the acts of which complaint has been made in this action, but were acting pursuant to RCW 84.64.230 and 84.64.320. These statutes are special ones, and no appeal is provided to review acts done pursuant to them. Lawry v. Board of Commissioners, 12 Wash. 446, 41 P. 190; Adams County v. Scott, 117 Wash. 85, 200 P. 1112; State ex rel. Lyon v. Board of County Commissioners, 31 Wn. (2d) 366, 196 P. (2d) 997. [2] The respondent was not a party to any of the proceedings before the county commissioners that resulted in having a deed executed naming the county as grantee and allocating the funds derived or to be derived from the sale of the timber to the current expense fund. It therefore was entitled to maintain this action to test the validity of the acts of the county acting through its commissioners and prosecuting attorney. Morath v. Gorham, 11 Wash. 577, 40 P. 129; State ex rel. Mason v. County Commissioners, 146 Wash. 449, 263 P. 735. [3] RCW 84.64.230 is a mandatory directive to counties of this state to apportion funds derived from the sale of *528 property acquired by tax deed, and county officials cannot by such a method as was used in this case divert such funds to a current expense fund. The deed naming the county as grantee was not authorized by RCW 84.64.320. The county had acquired title to the property by the deed from the county treasurer following the tax sale. The object of the statute is to enable a county acquiring property at tax sale to sell it to some governmental agency at private sale so that such agency may put the property to some public use. The transfer by the county commissioners to the county for the purpose of enabling it to divert the money received on the timber-sale contract was not the kind of disposition of tax-foreclosed property contemplated by the statute. The judgment is affirmed. HILL, HAMLEY, FINLEY, and OLSON, JJ., concur. NOTES [1] Reported in 268 P. (2d) 663. | 10-30-2013 | [
"44 Wash. 2d 525 (1954) 268 P.2d 663 OCOSTA CONSOLIDATED SCHOOL DISTRICT NO. 123, Respondent, v. GRAYS HARBOR COUNTY et al., Appellants. [1] No. 32739. The Supreme Court of Washington, Department One. April 5, 1954. Don G. Abel, for appellants. Paul O. Manley and John H. Kirkwood, Jr., for respondent. GRADY, C.J. In 1939, the real estate described in the complaint was sold at a tax sale and Grays Harbor county became the purchaser. On July 23, 1952, the county made a contract with Anderson Middleton Forest Products Company to sell the merchantable timber growing thereon for the agreed price of eighteen dollars per thousand board feet. On July 6, 1953, a deed was executed by the board of county commissioners conveying the real estate to Grays Harbor county. On July 7, 1953, the prosecuting attorney gave instructions to the county treasurer to pay all income from the real estate and from the timber-sale contract into the current expense fund of the county.",
"Respondent brought suit against Grays Harbor county, its commissioners and treasurer to set aside the deed and to enjoin the disbursement of any of the income derived *527 from the real estate and timber-sale contract in any other manner than as provided by RCW 84.64.230. The court overruled a general demurrer to the complaint. Defendants refused to further plead. Judgment was entered substantially as prayed in the complaint. In this opinion the plaintiff will be referred to as respondent and the county and its officers as appellant. [1] The first question to be decided is one of procedure. Appellant urges that respondent could not invoke the original jurisdiction of the superior court to seek the relief asked, but should have resorted to the remedy provided by RCW 36.32.330. This statute provides for an appeal to the superior court from \"any decision or order of the board of county commissioners\" of a county and prescribes the procedure that must be followed.",
"It does not apply to this case for two reasons: The county commissioners were not acting under their general powers in the transaction of the usual business of the county when they did the acts of which complaint has been made in this action, but were acting pursuant to RCW 84.64.230 and 84.64.320. These statutes are special ones, and no appeal is provided to review acts done pursuant to them. Lawry v. Board of Commissioners, 12 Wash. 446, 41 P. 190; Adams County v. Scott, 117 Wash. 85, 200 P. 1112; State ex rel. Lyon v. Board of County Commissioners, 31 Wn.",
"(2d) 366, 196 P. (2d) 997. [2] The respondent was not a party to any of the proceedings before the county commissioners that resulted in having a deed executed naming the county as grantee and allocating the funds derived or to be derived from the sale of the timber to the current expense fund. It therefore was entitled to maintain this action to test the validity of the acts of the county acting through its commissioners and prosecuting attorney. Morath v. Gorham, 11 Wash. 577, 40 P. 129; State ex rel. Mason v. County Commissioners, 146 Wash. 449, 263 P. 735. [3] RCW 84.64.230 is a mandatory directive to counties of this state to apportion funds derived from the sale of *528 property acquired by tax deed, and county officials cannot by such a method as was used in this case divert such funds to a current expense fund.",
"The deed naming the county as grantee was not authorized by RCW 84.64.320. The county had acquired title to the property by the deed from the county treasurer following the tax sale. The object of the statute is to enable a county acquiring property at tax sale to sell it to some governmental agency at private sale so that such agency may put the property to some public use. The transfer by the county commissioners to the county for the purpose of enabling it to divert the money received on the timber-sale contract was not the kind of disposition of tax-foreclosed property contemplated by the statute. The judgment is affirmed. HILL, HAMLEY, FINLEY, and OLSON, JJ., concur.",
"NOTES [1] Reported in 268 P. (2d) 663."
] | https://www.courtlistener.com/api/rest/v3/opinions/1221527/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT SEPT 24, 2008 No. 07-15435 THOMAS K. KAHN Non-Argument Calendar CLERK ________________________
D. C. Docket No. 05-00040-CR-1-SPM-AK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
YAIMA GONZALEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Northern District of Florida _________________________
(September 24, 2008)
Before TJOFLAT, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Yaima Gonzalez appeals her convictions for conspiring to manufacture, distribute, and possess with intent to manufacture and distribute more than 1,000
marijuana plants, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(vii), and 846,
and manufacturing and possessing with intent to distribute more than 100
marijuana plants, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(vii) and 18
U.S.C. § 2.
At trial evidence reflected that Gonzalez was an owner and resident of the
property upon which marijuana plants were found. She made admissions
regarding the existence of the marijuana growing enterprise to Drug Enforcement
Administration agent Wayne Andrews, to which he testified at trial. Co-
defendants Roberto Valle and Lorenzo Valera also testified against her, implicating
her directly in the enterprise.
On appeal, Gonzalez argues that her convictions should be overturned
because of the admission of some testimony from Agent Andrews and because the
government impermissibly vouched for the testimony of government witnesses and
co-conspirators, Valle and Valera when they testified about their plea agreements.
We review a district court’s evidentiary rulings for abuse of discretion.
United States v. Westry, 524 F.3d 1198, 1214 (11th Cir. 2008), petition for cert.
filed, (no. 08-5343) (July 15, 2008). We review alleged Confrontation Clause
violations for harmless error. United States v. Ndiaye, 434 F.3d 1270, 1286 (11th
2 Cir. 2006). However, arguments not presented to the district court are reviewed for
plain error. See United States v. Brown, 526 F.3d 691, 704 (11th Cir. 2008),
petition for cert. filed, (no. 08-5564) (July 28, 2008). To show such error, the
appellant must establish “(1) error (2) that is plain and (3) affects [his] substantial
rights.” Id. Essentially, the appellant must show that the error seriously affected
the fairness, integrity, or public reputation of the judicial proceeding. Id. In the
district court, Gonzalez neither objected to any of the testimony that she now
challenges, nor raised any of the arguments she now advances. Accordingly, our
review is for plain error.
Considering this record, including the testimony indicating her ownership,
residence, possession of the marijuana plants and incriminating statements, we find
no reversible error. Gonzalez argues that Andrews’ testimony constituted hearsay,
impermissible opinion testimony and violated the Confrontation Clause and the
rules of evidence. She further argues that Andrews’s conclusion regarding her
knowledge of the conspiracy was an opinion and violated Fed.R.Evid. 704(b).
Finally, she argues that the use of Andrews as a fact and opinion witness resulted
in the jury giving undue weight to his testimony. The essence of Andrews’s
testimony established the background of the investigation’s commencement and
relayed what Gonzalez herself told him during questioning. It did not violate
3 Fed.R.Evid. 704(b). As to the testimony from Roberto Valle and Lorenzo Valera,
we find no reversible error in Gonzalez’ claim that the government improperly
elicited testimony concerning their plea agreements and sentencing reductions and
improperly ensured the truthfulness of their testimony. Prosecutors are not
prohibited from entering a plea agreement into evidence for the jury’s
consideration. United States v. Castro, 89 F.3d 1443, 1457 (11th Cir. 1996). We
have held that questioning regarding plea agreement requirements regarding
truthfulness and the possibility of perjury charges to be proper. Id. Where a
prosecutor questions witnesses regarding the truth-telling portions of their plea
agreement or brings out the fact that the agreements stated they were subject to
perjury penalties, the prosecutor is not vouching. United States v. Cano, 289 F.3d 1354, 1365-66 (11th Cir. 2002). The government’s questioning of Valle and Valera
did not constitute impermissible vouching as questions pertaining to the
requirement to be truthful and the penalties for perjury are permissible. We do not
find plain error. Moreover, having found no reversible error, there is no
cumulative error.
AFFIRMED.
4 | 04-26-2010 | [
"[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT SEPT 24, 2008 No. 07-15435 THOMAS K. KAHN Non-Argument Calendar CLERK ________________________ D. C. Docket No. 05-00040-CR-1-SPM-AK UNITED STATES OF AMERICA, Plaintiff-Appellee, versus YAIMA GONZALEZ, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Northern District of Florida _________________________ (September 24, 2008) Before TJOFLAT, BLACK and BARKETT, Circuit Judges. PER CURIAM: Yaima Gonzalez appeals her convictions for conspiring to manufacture, distribute, and possess with intent to manufacture and distribute more than 1,000 marijuana plants, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(vii), and 846, and manufacturing and possessing with intent to distribute more than 100 marijuana plants, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(vii) and 18 U.S.C.",
"§ 2. At trial evidence reflected that Gonzalez was an owner and resident of the property upon which marijuana plants were found. She made admissions regarding the existence of the marijuana growing enterprise to Drug Enforcement Administration agent Wayne Andrews, to which he testified at trial. Co- defendants Roberto Valle and Lorenzo Valera also testified against her, implicating her directly in the enterprise. On appeal, Gonzalez argues that her convictions should be overturned because of the admission of some testimony from Agent Andrews and because the government impermissibly vouched for the testimony of government witnesses and co-conspirators, Valle and Valera when they testified about their plea agreements.",
"We review a district court’s evidentiary rulings for abuse of discretion. United States v. Westry, 524 F.3d 1198, 1214 (11th Cir. 2008), petition for cert. filed, (no. 08-5343) (July 15, 2008). We review alleged Confrontation Clause violations for harmless error. United States v. Ndiaye, 434 F.3d 1270, 1286 (11th 2 Cir. 2006). However, arguments not presented to the district court are reviewed for plain error. See United States v. Brown, 526 F.3d 691, 704 (11th Cir.",
"2008), petition for cert. filed, (no. 08-5564) (July 28, 2008). To show such error, the appellant must establish “(1) error (2) that is plain and (3) affects [his] substantial rights.” Id. Essentially, the appellant must show that the error seriously affected the fairness, integrity, or public reputation of the judicial proceeding. Id. In the district court, Gonzalez neither objected to any of the testimony that she now challenges, nor raised any of the arguments she now advances. Accordingly, our review is for plain error. Considering this record, including the testimony indicating her ownership, residence, possession of the marijuana plants and incriminating statements, we find no reversible error. Gonzalez argues that Andrews’ testimony constituted hearsay, impermissible opinion testimony and violated the Confrontation Clause and the rules of evidence.",
"She further argues that Andrews’s conclusion regarding her knowledge of the conspiracy was an opinion and violated Fed.R.Evid. 704(b). Finally, she argues that the use of Andrews as a fact and opinion witness resulted in the jury giving undue weight to his testimony. The essence of Andrews’s testimony established the background of the investigation’s commencement and relayed what Gonzalez herself told him during questioning. It did not violate 3 Fed.R.Evid. 704(b). As to the testimony from Roberto Valle and Lorenzo Valera, we find no reversible error in Gonzalez’ claim that the government improperly elicited testimony concerning their plea agreements and sentencing reductions and improperly ensured the truthfulness of their testimony. Prosecutors are not prohibited from entering a plea agreement into evidence for the jury’s consideration.",
"United States v. Castro, 89 F.3d 1443, 1457 (11th Cir. 1996). We have held that questioning regarding plea agreement requirements regarding truthfulness and the possibility of perjury charges to be proper. Id. Where a prosecutor questions witnesses regarding the truth-telling portions of their plea agreement or brings out the fact that the agreements stated they were subject to perjury penalties, the prosecutor is not vouching. United States v. Cano, 289 F.3d 1354, 1365-66 (11th Cir. 2002). The government’s questioning of Valle and Valera did not constitute impermissible vouching as questions pertaining to the requirement to be truthful and the penalties for perjury are permissible. We do not find plain error. Moreover, having found no reversible error, there is no cumulative error. AFFIRMED.",
"4"
] | https://www.courtlistener.com/api/rest/v3/opinions/65803/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Case 1:20-cv-00807-JKB Document 49 Filed 11/05/20 Page 1 of 2
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
AMBIMJB, LLC *
Plaintiff *
v. * Case No.: 1:20-cv-00807-JKB
STRATEGIC ARMORY CORPS, LLC, *
Defendant *
* * * * * * * * * * * * *
DEFENDANT STRATEGIC ARMORY CORPS, LLC OPPOSITION TO PLAINTIFF AMBIMJB, LLC’S MOTION FOR SUMMARY JUDGMENT AND CROSS-MOTION FOR SUMMARY JUDGMENT
Defendant Strategic Armory Corps, LLC, by and through undersigned counsel and
pursuant to Federal Rule of Civil Procedure 56 and Local Rule 105, hereby submits this Opposition
to Plaintiff’s Motion for Summary Judgment and Cross-Motion for Summary Judgment on Count
II of Plaintiff’s Complaint, for which grounds are set forth in the accompanying Memorandum
filed contemporaneously with this Motion.
Date: November 5, 2020 Respectfully submitted,
/s/ Steven E. Tiller Steven E. Tiller (Bar No. 11085) Timothy R. Willman (Bar No. 21088) Whiteford, Taylor & Preston, LLP Seven Saint Paul Street, Suite 1500 Baltimore, Maryland 21202-1636 stiller@wtplaw.com twillman@wtplaw.com (410) 347-9425 (410) 223-4325
Attorneys for Strategic Armory Corp LLC
1 Case 1:20-cv-00807-JKB Document 49 Filed 11/05/20 Page 2 of 2
CERTIFICATE OF SERVICE
I hereby certify, that on this 5th day of November, 2020, the foregoing was served via the
Court’s CM/ECF filing system on:
Gregory A. Dorsey, Esquire Kelly Dorsey, P.C. 10320 Little Patuxent Parkway Suite 608 Columbia, Maryland 21044 gdorsey@kellydorseylaw.com
Attorneys for Plaintiff
/s/ Timothy R. Willman Timothy R. Willman
2 | 2020-11-05 | [
"Case 1:20-cv-00807-JKB Document 49 Filed 11/05/20 Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND AMBIMJB, LLC * Plaintiff * v. * Case No. : 1:20-cv-00807-JKB STRATEGIC ARMORY CORPS, LLC, * Defendant * * * * * * * * * * * * * * DEFENDANT STRATEGIC ARMORY CORPS, LLC OPPOSITION TO PLAINTIFF AMBIMJB, LLC’S MOTION FOR SUMMARY JUDGMENT AND CROSS-MOTION FOR SUMMARY JUDGMENT Defendant Strategic Armory Corps, LLC, by and through undersigned counsel and pursuant to Federal Rule of Civil Procedure 56 and Local Rule 105, hereby submits this Opposition to Plaintiff’s Motion for Summary Judgment and Cross-Motion for Summary Judgment on Count II of Plaintiff’s Complaint, for which grounds are set forth in the accompanying Memorandum filed contemporaneously with this Motion.",
"Date: November 5, 2020 Respectfully submitted, /s/ Steven E. Tiller Steven E. Tiller (Bar No. 11085) Timothy R. Willman (Bar No. 21088) Whiteford, Taylor & Preston, LLP Seven Saint Paul Street, Suite 1500 Baltimore, Maryland 21202-1636 stiller@wtplaw.com twillman@wtplaw.com (410) 347-9425 (410) 223-4325 Attorneys for Strategic Armory Corp LLC 1 Case 1:20-cv-00807-JKB Document 49 Filed 11/05/20 Page 2 of 2 CERTIFICATE OF SERVICE I hereby certify, that on this 5th day of November, 2020, the foregoing was served via the Court’s CM/ECF filing system on: Gregory A. Dorsey, Esquire Kelly Dorsey, P.C. 10320 Little Patuxent Parkway Suite 608 Columbia, Maryland 21044 gdorsey@kellydorseylaw.com Attorneys for Plaintiff /s/ Timothy R. Willman Timothy R. Willman 2"
] | https://www.courtlistener.com/api/rest/v3/recap-documents/155588703/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Case 21-10327-elf Doc 71-26 Filed 04/07/21 Entered 04/07/21 17:04:33 Desc Proposed Order Page 1 of 3
IN THE UNITED STATES BANKRUPTCY COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA --------------------------------------------------------------X : IN RE: : CASE NO.: 21-10327-ELF : : CHAPTER: 11 LEWISBERRY PARTNERS, LLC, : : HON. ERIC L. FRANK : Debtor. : ORDER PROHIBITING : FURTHER USE OF CASH : COLLERAL, DIRECTING : DISTRIBUTION OF PROCEEDS : FROM SALE OF REAL ESTATE AND PROVIDING RELIEF FROM STAY
-------------------------------------------------------------------X
AND NOW, this ______day of _____________. 2021, upon consideration of the Opposition to Debtor’s Continued Use of Cash Collateral and Cross Motions for Disbursement of Proceeds from Sale of Real Estate and For Relief from Automatic Stay and the Request for Expedited Hearing, Reduced Notice Period and Limited Notice filed on behalf of Fay Servicing LLC, as servicer for U.S. Bank National Association, not in its individual capacity but solely as trustee of the HOF Grantor Trust I, it is hereby
ORDERED that Fay Servicing LLC as servicer for U.S. Bank National Association, not in its individual capacity but solely as trustee of the HOF Grantor Trust I’s request for expedited hearing, reduced notice period and limited notice is GRANTED; and it is hereby further
ORDERED that further use of cash collateral in which Fay Servicing LLC as servicer for U.S. Bank National Association, not in its individual capacity but solely as trustee of the HOF Grantor Trust I, its successors and assigns, has a secured interest is PROHIBITED; and it is hereby further
22 Case 21-10327-elf Doc 71-26 Filed 04/07/21 Entered 04/07/21 17:04:33 Desc Proposed Order Page 2 of 3
ORDERED that Debtor shall disburse to Fay Servicing LLC as servicer for U.S. Bank
National Association, not in its individual capacity but solely as trustee of the HOF Grantor Trust
I, the proceeds of sale up to the Court-approved release prices for the Sold Collateral as follows:
d. $223,177.57 for 2 Kingswood;
e. $218,714.01 for 8 Kingswood;
f. $223,177.57 for 16 Kingswood; and it is hereby further
ORDERED that Fay Servicing LLC as servicer for U.S. Bank National Association, not in its individual capacity but solely as trustee of the HOF Grantor Trust I its successors and assigns is granted relief from relief from the automatic stay with regard to the following real properties:
a. 142 Scully Place;
b. 144 Scully Place;
c. 146 Scully Place;
d. 148 Scully Place;
e. 135 Scully Place;
f. 133 Scully Place;
g. 131 Scully Place;
h. 129 Scully Place;
i. 127 Scully Place;
j. 125 Scully Place;
k. 123 Scully Place;
l. 121 Scully Place;
m. 111 Scully Place;
n. 109 Scully Place;
o. 107 Scully Place; 23 Case 21-10327-elf Doc 71-26 Filed 04/07/21 Entered 04/07/21 17:04:33 Desc Proposed Order Page 3 of 3
p. 105 Scully Place;
q. 103 Scully Place;
r. 101 Scully Place;
s. 4 Kingswood Drive
t. 6 Kingswood Drive
u. 10 Kingswood Drive
v. 12 Kingswood Drive
w. 14 Kingswood Drive
x. 18 Kingswood Drive
y. 20 Kingswood Drive
z. 22 Kingswood Drive; and,
aa. 24 Kingswood Drive.
BY THE COURT:
_____________________________
U.S.B.J
24 | 2021-04-07 | [
"Case 21-10327-elf Doc 71-26 Filed 04/07/21 Entered 04/07/21 17:04:33 Desc Proposed Order Page 1 of 3 IN THE UNITED STATES BANKRUPTCY COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA --------------------------------------------------------------X : IN RE: : CASE NO. : 21-10327-ELF : : CHAPTER: 11 LEWISBERRY PARTNERS, LLC, : : HON. ERIC L. FRANK : Debtor. : ORDER PROHIBITING : FURTHER USE OF CASH : COLLERAL, DIRECTING : DISTRIBUTION OF PROCEEDS : FROM SALE OF REAL ESTATE AND PROVIDING RELIEF FROM STAY -------------------------------------------------------------------X AND NOW, this ______day of _____________. 2021, upon consideration of the Opposition to Debtor’s Continued Use of Cash Collateral and Cross Motions for Disbursement of Proceeds from Sale of Real Estate and For Relief from Automatic Stay and the Request for Expedited Hearing, Reduced Notice Period and Limited Notice filed on behalf of Fay Servicing LLC, as servicer for U.S. Bank National Association, not in its individual capacity but solely as trustee of the HOF Grantor Trust I, it is hereby ORDERED that Fay Servicing LLC as servicer for U.S. Bank National Association, not in its individual capacity but solely as trustee of the HOF Grantor Trust I’s request for expedited hearing, reduced notice period and limited notice is GRANTED; and it is hereby further ORDERED that further use of cash collateral in which Fay Servicing LLC as servicer for U.S. Bank National Association, not in its individual capacity but solely as trustee of the HOF Grantor Trust I, its successors and assigns, has a secured interest is PROHIBITED; and it is hereby further 22 Case 21-10327-elf Doc 71-26 Filed 04/07/21 Entered 04/07/21 17:04:33 Desc Proposed Order Page 2 of 3 ORDERED that Debtor shall disburse to Fay Servicing LLC as servicer for U.S. Bank National Association, not in its individual capacity but solely as trustee of the HOF Grantor Trust I, the proceeds of sale up to the Court-approved release prices for the Sold Collateral as follows: d. $223,177.57 for 2 Kingswood; e. $218,714.01 for 8 Kingswood; f. $223,177.57 for 16 Kingswood; and it is hereby further ORDERED that Fay Servicing LLC as servicer for U.S. Bank National Association, not in its individual capacity but solely as trustee of the HOF Grantor Trust I its successors and assigns is granted relief from relief from the automatic stay with regard to the following real properties: a.",
"142 Scully Place; b. 144 Scully Place; c. 146 Scully Place; d. 148 Scully Place; e. 135 Scully Place; f. 133 Scully Place; g. 131 Scully Place; h. 129 Scully Place; i. 127 Scully Place; j. 125 Scully Place; k. 123 Scully Place; l. 121 Scully Place; m. 111 Scully Place; n. 109 Scully Place; o. 107 Scully Place; 23 Case 21-10327-elf Doc 71-26 Filed 04/07/21 Entered 04/07/21 17:04:33 Desc Proposed Order Page 3 of 3 p. 105 Scully Place; q. 103 Scully Place; r. 101 Scully Place; s. 4 Kingswood Drive t. 6 Kingswood Drive u.",
"10 Kingswood Drive v. 12 Kingswood Drive w. 14 Kingswood Drive x. 18 Kingswood Drive y. 20 Kingswood Drive z. 22 Kingswood Drive; and, aa. 24 Kingswood Drive. BY THE COURT: _____________________________ U.S.B.J 24"
] | https://www.courtlistener.com/api/rest/v3/recap-documents/166220652/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
WHEELER, District Judge. This suit is brought upon two patents,—one, No. 379,534, dated March 13, 1888, and granted to the defendant Headley, assignor of one-half to William G. Horton, for a toy registering savings bank; and the other, No. 384,523, dated June 12, 1888, and granted to both, for a coin receptacle and register. J. Toler Sons & Co. made banks under these patents for the plaintiff, and paid royalties to Headley. He executed and delivered this instrument: “Newark. N. X, June 7th. 1893. ‘ .“In consideration of the sum of two hundred & fifty dolls, to me in hand paid, I do hereby, this 7th day of June, 1893, assign my entire right, title, *135& inst. to William G. Horton in tlie trunk-shaped bank mfgrd. under pats. No. 379,534, of Mch. 13, ’88, and No. 384,523, of June 12, ’88. “Biwood Headley.” At the same time he wrote to J. Toler Hons & Co. that he had assigned, in the words of the assignment, to Horton, and added, “This will hereafter necessitate yon paying the Piaget Co. royalty over to him instead of me.” Horton regularly assigned these and other patents to Henry V. Piaget November 2, 1899, and Piaget to the plaintiff January 2, 1900. This suit appears to have been commenced January 33, 3900. The defendants are partners, and they insist that no consideration was paid to Headley for the assignment to Horton, whereby it was inoperative, and that by its terms it does not cover the patents, but only tlie trunks, leaving a half interest in Headley, entitling him to use them. The assignment: recites the consideration as paid. If it was not paid, it would he a subject of reckoning between them, and the fact that it was not would not invalidate the assignment as to those who should deal with Horton on faith in it, if it would as to Horton. That the patents were what was intended to be assigned is dear from Headley’s testimony, where he says Horton “stated if I would turn over to him the two ’88 patents,” etc., that he “considered the two ’88 patents worthless,” and told Horton so, and made out the paper. And the letter to J. Toler Sons & Co. shows that what would be-continuing to bring a royalty was intended, which wopld be the patents, as they were what “will hereafter necessitate• you paying the.” royalty to Horton. This was a practical and simultaneous construction of the instrument by Headley given out to J. Toler Sons & Co., connected by operations under the patents with the plaintiff. Headley was tlie grantor in the assignment, written by him, and it is to be taken more strongly against him than against the grantee and his assigns. By the transaction he appears to have transferred the equitable title to his share of the patents, and to have deprived himself of the right to set it up in defense to a suit in equity upon the patents. The only further quest ion now to be considered relates to the construction and infringement of the claims relied upon. They are for, in the first patent: “(3) Tlie combination, with a money receptacle provided with an indicating dial or dials and mechanism, substantially as described, for indicating the exact money value of deposited coins, of a door or locking mechanism and interlocking devices whereby entrance to the receptacle can only lie liad after a definite amount of money lias been deposited, substantially as set forth.” In the second: “(5) In a registering- apparatus, the combination of the dials comprising tlie plate. I), having the bent lugs, and tlie interiorly and exteriorly flanged rings, I)i, D2, substantially as described.” The third claim of the first patent does not seem io he so much for a machine as for a manufacture. It is for a money receptacle having dials indicating' the amofint of coins deposited in it, and a door that cannot be opened till a definite amount has been deposited. The defendants’ brief says: *136■' r “If the claim means the combination of any kind of indicating mechanism with a door and interlocking mechanism whereby the door is locked until the indicating mechanism completed its cycle of motion and is then unlocked, vthen defendants’ device infringes.” This patent, in respect to this claim, is like Bell’s .second telephone patent., Telephone Cases, 126 U. S. 1, 8 Sup. Ct. 778, 31 L. Ed. 863. The fifth claim was for: V “(5) The method of, and apparatus for, transmitting vocal or other sounds telegraphically, as herein described, by causing electrical undulations similar ’in form to the Vibrations of the air accompanying the said vocal or other -sounds, substantially as set forth.” *' Of this the court, through Mr. Chief Justice Waite, at page 572, .126 U. S., page 802, 8 Sup. Ct., and page 1002, 31 L. Ed., said: ' “The patent itself is for the mechanical structure of an electric telephone 'to be used to produce the electrical action on which the first patent rests. The third claim is for the use in such instruments of a diaphragm made of a plate of iron or steel, or other material capable of inductive action; the fifth, of a permanent magnet, constructed as described, with a coil upon the end or ends nearest the place; the sixth, of a sounding box as described; the seventh, of a speaking or hearing tube, as described, for conveying the sounds; and the eighth, of a- permanent magnet and plate combined. The claim is not for these several things in and -of themselves, but for an electric telephone in the construction, of which these things, or any of them, are used. Hence the fifth claim is not anticipated by the Schellen magnet, as was decided in the Molecular Case below. The patent is not for the magnet, but for the telephone, of which it forms but part.” “ Upon that authority, and the statement of the position of the de- ; fendants quoted, they appear to infringe this third claim. Of course, • there could be new and patentable mechanism constituting the fea- ’ tures of this manufacture. The-fifth claim of the second patent now here in controversy is for such an improvement. The first patent showed mechanism which would bring the indicating dials cor- ‘ rectly showing the contents into view, and holding the door till the ’ required amount should be reached. This fifth claim is for different mechanism for that purpose, and the defendants’ structure mechanism different from either. The defendants’ mechanism appears to have a part, but not all, of the elements of the combination of that claim, and so, on familiar principles, does not appear to have the ' same combination. The claim is so special and narrow that there does pot seem to be room for making out equivalents from, the different arrangement. Railway Co. v. Sayles, 97 U. S. 554, 24 L. Ed. ,1053. In this view, that claim is not made to appear to be infringed. Decree for plaintiff on third claim of first patent and for defendants on fifth claim of the second patent. | 11-26-2022 | [
"WHEELER, District Judge. This suit is brought upon two patents,—one, No. 379,534, dated March 13, 1888, and granted to the defendant Headley, assignor of one-half to William G. Horton, for a toy registering savings bank; and the other, No. 384,523, dated June 12, 1888, and granted to both, for a coin receptacle and register. J. Toler Sons & Co. made banks under these patents for the plaintiff, and paid royalties to Headley. He executed and delivered this instrument: “Newark. N. X, June 7th.",
"1893. ‘ .“In consideration of the sum of two hundred & fifty dolls, to me in hand paid, I do hereby, this 7th day of June, 1893, assign my entire right, title, *135& inst. to William G. Horton in tlie trunk-shaped bank mfgrd. under pats. No. 379,534, of Mch. 13, ’88, and No. 384,523, of June 12, ’88. “Biwood Headley.” At the same time he wrote to J. Toler Hons & Co. that he had assigned, in the words of the assignment, to Horton, and added, “This will hereafter necessitate yon paying the Piaget Co. royalty over to him instead of me.” Horton regularly assigned these and other patents to Henry V. Piaget November 2, 1899, and Piaget to the plaintiff January 2, 1900. This suit appears to have been commenced January 33, 3900. The defendants are partners, and they insist that no consideration was paid to Headley for the assignment to Horton, whereby it was inoperative, and that by its terms it does not cover the patents, but only tlie trunks, leaving a half interest in Headley, entitling him to use them.",
"The assignment: recites the consideration as paid. If it was not paid, it would he a subject of reckoning between them, and the fact that it was not would not invalidate the assignment as to those who should deal with Horton on faith in it, if it would as to Horton. That the patents were what was intended to be assigned is dear from Headley’s testimony, where he says Horton “stated if I would turn over to him the two ’88 patents,” etc., that he “considered the two ’88 patents worthless,” and told Horton so, and made out the paper. And the letter to J. Toler Sons & Co. shows that what would be-continuing to bring a royalty was intended, which wopld be the patents, as they were what “will hereafter necessitate• you paying the.” royalty to Horton. This was a practical and simultaneous construction of the instrument by Headley given out to J. Toler Sons & Co., connected by operations under the patents with the plaintiff. Headley was tlie grantor in the assignment, written by him, and it is to be taken more strongly against him than against the grantee and his assigns.",
"By the transaction he appears to have transferred the equitable title to his share of the patents, and to have deprived himself of the right to set it up in defense to a suit in equity upon the patents. The only further quest ion now to be considered relates to the construction and infringement of the claims relied upon. They are for, in the first patent: “(3) Tlie combination, with a money receptacle provided with an indicating dial or dials and mechanism, substantially as described, for indicating the exact money value of deposited coins, of a door or locking mechanism and interlocking devices whereby entrance to the receptacle can only lie liad after a definite amount of money lias been deposited, substantially as set forth.” In the second: “(5) In a registering- apparatus, the combination of the dials comprising tlie plate.",
"I), having the bent lugs, and tlie interiorly and exteriorly flanged rings, I)i, D2, substantially as described.” The third claim of the first patent does not seem io he so much for a machine as for a manufacture. It is for a money receptacle having dials indicating' the amofint of coins deposited in it, and a door that cannot be opened till a definite amount has been deposited. The defendants’ brief says: *136■' r “If the claim means the combination of any kind of indicating mechanism with a door and interlocking mechanism whereby the door is locked until the indicating mechanism completed its cycle of motion and is then unlocked, vthen defendants’ device infringes.” This patent, in respect to this claim, is like Bell’s .second telephone patent., Telephone Cases, 126 U. S. 1, 8 Sup. Ct. 778, 31 L. Ed. 863.",
"The fifth claim was for: V “(5) The method of, and apparatus for, transmitting vocal or other sounds telegraphically, as herein described, by causing electrical undulations similar ’in form to the Vibrations of the air accompanying the said vocal or other -sounds, substantially as set forth.” *' Of this the court, through Mr. Chief Justice Waite, at page 572, .126 U. S., page 802, 8 Sup. Ct., and page 1002, 31 L. Ed., said: ' “The patent itself is for the mechanical structure of an electric telephone 'to be used to produce the electrical action on which the first patent rests. The third claim is for the use in such instruments of a diaphragm made of a plate of iron or steel, or other material capable of inductive action; the fifth, of a permanent magnet, constructed as described, with a coil upon the end or ends nearest the place; the sixth, of a sounding box as described; the seventh, of a speaking or hearing tube, as described, for conveying the sounds; and the eighth, of a- permanent magnet and plate combined. The claim is not for these several things in and -of themselves, but for an electric telephone in the construction, of which these things, or any of them, are used.",
"Hence the fifth claim is not anticipated by the Schellen magnet, as was decided in the Molecular Case below. The patent is not for the magnet, but for the telephone, of which it forms but part.” “ Upon that authority, and the statement of the position of the de- ; fendants quoted, they appear to infringe this third claim. Of course, • there could be new and patentable mechanism constituting the fea- ’ tures of this manufacture. The-fifth claim of the second patent now here in controversy is for such an improvement. The first patent showed mechanism which would bring the indicating dials cor- ‘ rectly showing the contents into view, and holding the door till the ’ required amount should be reached. This fifth claim is for different mechanism for that purpose, and the defendants’ structure mechanism different from either. The defendants’ mechanism appears to have a part, but not all, of the elements of the combination of that claim, and so, on familiar principles, does not appear to have the ' same combination. The claim is so special and narrow that there does pot seem to be room for making out equivalents from, the different arrangement.",
"Railway Co. v. Sayles, 97 U. S. 554, 24 L. Ed. ,1053. In this view, that claim is not made to appear to be infringed. Decree for plaintiff on third claim of first patent and for defendants on fifth claim of the second patent."
] | https://www.courtlistener.com/api/rest/v3/opinions/8743627/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
626 F.3d 161 (2010) UNITED STATES of America, Appellee, v. Thomas DOUGLAS IV, Defendant-Appellant. Docket No. 09-4955-cr. United States Court of Appeals, Second Circuit. Argued: October 26, 2010. Decided: November 23, 2010. *162 Timothy C. Doherty, Jr., Assistant United States Attorney (Gregory L. Waples, Assistant United States Attorney, on the brief), for Tristram J. Coffin, United States Attorney for the District of Vermont, Burlington, VT, for Appellee. Robin C. Smith, Law Office of Robin C. Smith, Esq., P.C., Brooklyn, N.Y., for Defendant-Appellant. Before: MINER, KATZMANN, HALL, Circuit Judges. PER CURIAM: Defendant-Appellant Thomas Douglas IV appeals from a judgment of conviction, entered on November 24, 2009 in the United States District Court for the District of Vermont (Sessions, C.J.), following a jury trial, of one count of attempting to entice a minor to engage in illegal sexual activity and one count of knowingly transporting an image of child pornography in interstate commerce. This appeal presents the question whether the district court erred in concluding that a defendant may commit criminal enticement pursuant to 18 U.S.C. § 2422(b) by communicating with an adult guardian of a minor.[1] As set forth below, we hold that it did not. For the reasons stated herein and in the accompanying summary order, the judgment of the district court is AFFIRMED. The facts of this case are largely undisputed. The evidence at trial showed that on May 7, 2007, Detective Andy Chaulk of the South Burlington, Vermont Police Department entered an online "fetish" chat room using an undercover profile. He presented himself as "Liz," a 38-year-old nurse and divorced mother of a 13-year-old girl, "Anna," and a 3-year-old son. Chaulk noticed that a user in the chat room had the Yahoo screen name "ilikeyounggirls6up." He checked the profile of this user and saw a photo of an older man's thighs, torso, and genitals. The user described himself as "Thomas," aged sixty, from Alabama, with an occupation of "sexslavetrainer." The "hobbies" field on the profile stated, "I train young girls as sex slaves this is for real i don't need bullshiters contacting me only those that is for real and mean business." Detective Chaulk, as "Liz," sent "Thomas" (who proved to be defendant Douglas) the message, "hey." After some innocuous preliminaries (e.g., "How's it going?"), Douglas asked Liz, "[y]ou have someone you want trained?" Gov. App'x 241. Liz professed to be nervous and asked, "How do you train?" Id. at 242. Douglas replied, "Any way it takes. Spanking, tying up and such." Id. Liz informed Douglas that she lived in Vermont and had a thirteen-year-old daughter. She related that she was feeling guilty about the decision to "train" her. Douglas reassured her, "We would take it slow. And not hurt her any if it can be avoided. But you would have to bring her to Alabama because I don't *163 charge for this at all." Id. at 243. Liz asked, "Have you done this sort of thing before?" Id. Douglas replied, "Yes, I have [a]nd to some a lot younger. . . . But I don't keep any pic [sic] because of the law." Id. at 244. When Liz asked, "What did you do," Douglas indicated in crude terms that he had engaged in vaginal, anal, and oral sex with them. Douglas subsequently asked, "So can you bring her to me here?" Id. at 245. After the two discussed where in Alabama Douglas was located, Douglas stated, "If you bring her, I will try to help with the expenses." Id. at 246. Douglas then sent Liz an image of himself from his webcam. Liz sent Douglas a photograph of "Anna," who was really an undercover agent dressed to look like at 13-year-old girl. He responded, "She looks beautiful." Id. at 267. During some further chatting, Douglas told Liz that he thought they might hit it off and become a family. He reiterated his offer to help pay for the trip and stated that he expected to receive $500 on the sixteenth of May. The following day, May 8, 2007, when Detective Chaulk logged into Yahoo as "Liz," Douglas immediately sent a message. He told Liz that he was sure they would "hit it off just great" and speculated about having sex with both Liz and her daughter. Liz, however, explained that she was not sure she could get to Alabama because she did not have the money to travel. Douglas responded, "If you have enough for gas here, come on. I can get you back if you want to go back." Id. at 286. He calculated that South Burlington, Vermont, was 1,000 miles away and that gas for the trip would cost about $200. He advised Liz that there was an advertisement in the local paper for a registered nurse at Florala Health and Rehab, which Detective Chaulk later determined was a real institution in Florala, Alabama. Douglas added that there were numerous hospitals and nursing homes in the area. He later reiterated that he expected to get $500 on the sixteenth of May. Liz stated again that she was nervous and asked Douglas, "How has it worked in the past . . . [w]ith the other girls?" Id. at 292. Douglas explained that "we started out just being nude around each other, then to a little touching and then went the rest of the way." Id. at 293. When Liz continued to express her nervousness, Douglas sent her his phone number and an image of himself to assure her that he was "for real." After some further discussion, Liz asked Douglas to tell her about one of the other girls he had trained. He replied, "I met her off here and her . . . dad brought her to me and everything went smooth. He even had sex with her after I got her trained. She was six or seven. Have a pic of him having sex with her." Id. at 303-04. He then offered, "Can send it to you if you want." Id. at 304. Liz agreed, and Douglas sent her a photograph of a man having intercourse with a prepubescent girl. Douglas explained that the man in the photograph was the girl's father, and he assured Liz, "So you see, I don't hurt them any." Id. at 310. He expressed his hope that Liz would be able to find the money to come to Alabama, and he promised to provide her a place to live when she arrived. After a criminal complaint against Douglas was filed in the Middle District of Alabama and then dismissed for lack of venue, a complaint was filed in the District of Vermont. On October 11, 2007, a federal grand jury in Vermont returned a two-count indictment against Douglas charging him with one count of using a facility of interstate commerce to attempt to entice a minor to engage in illegal sexual activity in violation of 18 U.S.C. § 2422(b) and one count of knowingly transporting child pornography *164 in interstate commerce in violation of 18 U.S.C. § 2252A(a)(1). A superseding indictment asserting essentially the same charges was filed on September 25, 2008. Douglas was convicted, following a jury trial, on both counts. This appeal followed. Title 18, section 2422(b) of the United States Code provides: Whoever, using the mail or any facility or means of interstate or foreign commerce,. . . knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title and imprisoned not less than 10 years or for life. Douglas argues that he could not commit enticement of a minor under § 2422(b) by communicating with a person he believed to be an adult. He asserts that the plain language of the statute indicates that a person must direct his or her communications to a minor in order to be considered to have persuaded, induced, enticed, or coerced a minor into unlawful sexual activity or to have attempted to do so. His argument rests on the fact that "the `minor' is the only identified direct object of the active verbs listed" in § 2422(b). Def. Br. 52. We disagree. We review de novo this question of statutory interpretation. See, e.g., L-3 Commc'ns Corp. v. OSI Sys., Inc., 607 F.3d 24, 27 (2d Cir.2010). To obtain a conviction under § 2422(b), the government must show that the defendant "(i) used a facility of interstate commerce; (ii) to knowingly persuade, induce or entice, or to attempt to persuade, induce or entice; (iii) any individual who is younger than eighteen-years old; (iv) to engage in sexual activity of a criminal nature." United States v. Brand, 467 F.3d 179, 201-02 (2d Cir.2006). We have emphasized that "[a] conviction under § 2422(b) requires a finding only of an attempt to entice or an intent to entice, and not an intent to perform the sexual act following the persuasion." Id. at 202; see also United States v. Murrell, 368 F.3d 1283, 1286 (11th Cir. 2004) ("The underlying criminal conduct that Congress expressly proscribed in passing § 2422(b) is the persuasion, inducement, enticement, or coercion of the minor rather than the sex act itself. That is, if a person persuaded a minor to engage in sexual conduct (e.g. with himself or a third party), without then actually committing any sex act himself, he would nevertheless violate § 2422(b)." (emphasis in original) (internal footnotes omitted)); United States v. Bailey, 228 F.3d 637, 639 (6th Cir.2000) ("While it may be rare for there to be a separation between the intent to persuade and the follow-up intent to perform the act after persuasion, they are two clearly separate and different intents and the Congress has made a clear choice to criminalize persuasion and the attempt to persuade, not the performance of the sexual acts themselves. Hence, a conviction under the statute only requires a finding that the defendant had an intent to persuade or to attempt to persuade."). Douglas is incorrect that the defendant's speech must be directed to a minor in all cases in order for persuasion, inducement, enticement, or coercion to occur. As we noted in Brand, the statute criminalizes obtaining or attempting to obtain a minor's assent to unlawful sexual activity. See Brand, 467 F.3d at 202. Such assent might be obtained, for example, by persuading a minor's adult guardian to lead a child to participate in sexual activity. Accordingly, we join our sister circuits in holding that a defendant may commit criminal enticement pursuant to § 2422(b) *165 by communicating with an adult guardian of a minor. See United States v. Nestor, 574 F.3d 159, 162 (3d Cir.2009); United States v. Spurlock, 495 F.3d 1011, 1014 (8th Cir.2007); Murrell, 368 F.3d at 1286-88. We agree with the Eleventh Circuit that "the efficacy of § 2422(b) would be eviscerated if a defendant could circumvent the statute simply by employing an intermediary to carry out his intended objective." Murrell, 368 F.3d at 1287; see also Spurlock, 495 F.3d at 1014. Potential victims of enticement may be too young to use the Internet or otherwise communicate directly with strangers without their parents' supervision. Criminals who target such children will perforce operate through intermediaries. If we were to agree with Douglas's assumption that the statute sought to protect only those minors who are old enough to sign into a chat room, we would be ignoring Congress' objective of protecting vulnerable children. We conclude that placing a sexual predator's communications with an adult intermediary beyond the reach of the statute would be an illogical result. Accordingly, the district court did not err in holding that Douglas could commit criminal enticement pursuant to § 2422(b) by communicating with a person he believed to be the adult guardian of a minor. We have considered all of the parties' arguments, and for the reasons stated herein and in the accompanying summary order, the judgment of the district court is AFFIRMED. NOTES [1] In an accompanying summary order, we address and reject Douglas's arguments that (1) his counsel below was ineffective because he failed to strike two jurors; (2) the district court abused its discretion in admitting certain evidence of his past similar acts; and (3) he did not take the "substantial step" necessary to commit attempted enticement. | 11-23-2010 | [
"626 F.3d 161 (2010) UNITED STATES of America, Appellee, v. Thomas DOUGLAS IV, Defendant-Appellant. Docket No. 09-4955-cr. United States Court of Appeals, Second Circuit. Argued: October 26, 2010. Decided: November 23, 2010. *162 Timothy C. Doherty, Jr., Assistant United States Attorney (Gregory L. Waples, Assistant United States Attorney, on the brief), for Tristram J. Coffin, United States Attorney for the District of Vermont, Burlington, VT, for Appellee. Robin C. Smith, Law Office of Robin C. Smith, Esq., P.C., Brooklyn, N.Y., for Defendant-Appellant. Before: MINER, KATZMANN, HALL, Circuit Judges. PER CURIAM: Defendant-Appellant Thomas Douglas IV appeals from a judgment of conviction, entered on November 24, 2009 in the United States District Court for the District of Vermont (Sessions, C.J. ), following a jury trial, of one count of attempting to entice a minor to engage in illegal sexual activity and one count of knowingly transporting an image of child pornography in interstate commerce. This appeal presents the question whether the district court erred in concluding that a defendant may commit criminal enticement pursuant to 18 U.S.C.",
"§ 2422(b) by communicating with an adult guardian of a minor. [1] As set forth below, we hold that it did not. For the reasons stated herein and in the accompanying summary order, the judgment of the district court is AFFIRMED. The facts of this case are largely undisputed. The evidence at trial showed that on May 7, 2007, Detective Andy Chaulk of the South Burlington, Vermont Police Department entered an online \"fetish\" chat room using an undercover profile. He presented himself as \"Liz,\" a 38-year-old nurse and divorced mother of a 13-year-old girl, \"Anna,\" and a 3-year-old son. Chaulk noticed that a user in the chat room had the Yahoo screen name \"ilikeyounggirls6up.\" He checked the profile of this user and saw a photo of an older man's thighs, torso, and genitals. The user described himself as \"Thomas,\" aged sixty, from Alabama, with an occupation of \"sexslavetrainer.\" The \"hobbies\" field on the profile stated, \"I train young girls as sex slaves this is for real i don't need bullshiters contacting me only those that is for real and mean business.\"",
"Detective Chaulk, as \"Liz,\" sent \"Thomas\" (who proved to be defendant Douglas) the message, \"hey.\" After some innocuous preliminaries (e.g., \"How's it going? \"), Douglas asked Liz, \"[y]ou have someone you want trained?\" Gov. App'x 241. Liz professed to be nervous and asked, \"How do you train?\" Id. at 242. Douglas replied, \"Any way it takes. Spanking, tying up and such.\" Id. Liz informed Douglas that she lived in Vermont and had a thirteen-year-old daughter. She related that she was feeling guilty about the decision to \"train\" her.",
"Douglas reassured her, \"We would take it slow. And not hurt her any if it can be avoided. But you would have to bring her to Alabama because I don't *163 charge for this at all.\" Id. at 243. Liz asked, \"Have you done this sort of thing before?\" Id. Douglas replied, \"Yes, I have [a]nd to some a lot younger. . . . But I don't keep any pic [sic] because of the law.\" Id. at 244. When Liz asked, \"What did you do,\" Douglas indicated in crude terms that he had engaged in vaginal, anal, and oral sex with them. Douglas subsequently asked, \"So can you bring her to me here?\" Id. at 245.",
"After the two discussed where in Alabama Douglas was located, Douglas stated, \"If you bring her, I will try to help with the expenses.\" Id. at 246. Douglas then sent Liz an image of himself from his webcam. Liz sent Douglas a photograph of \"Anna,\" who was really an undercover agent dressed to look like at 13-year-old girl. He responded, \"She looks beautiful.\" Id. at 267. During some further chatting, Douglas told Liz that he thought they might hit it off and become a family. He reiterated his offer to help pay for the trip and stated that he expected to receive $500 on the sixteenth of May.",
"The following day, May 8, 2007, when Detective Chaulk logged into Yahoo as \"Liz,\" Douglas immediately sent a message. He told Liz that he was sure they would \"hit it off just great\" and speculated about having sex with both Liz and her daughter. Liz, however, explained that she was not sure she could get to Alabama because she did not have the money to travel. Douglas responded, \"If you have enough for gas here, come on. I can get you back if you want to go back.\"",
"Id. at 286. He calculated that South Burlington, Vermont, was 1,000 miles away and that gas for the trip would cost about $200. He advised Liz that there was an advertisement in the local paper for a registered nurse at Florala Health and Rehab, which Detective Chaulk later determined was a real institution in Florala, Alabama. Douglas added that there were numerous hospitals and nursing homes in the area. He later reiterated that he expected to get $500 on the sixteenth of May. Liz stated again that she was nervous and asked Douglas, \"How has it worked in the past . . .",
"[w]ith the other girls?\" Id. at 292. Douglas explained that \"we started out just being nude around each other, then to a little touching and then went the rest of the way.\" Id. at 293. When Liz continued to express her nervousness, Douglas sent her his phone number and an image of himself to assure her that he was \"for real.\" After some further discussion, Liz asked Douglas to tell her about one of the other girls he had trained. He replied, \"I met her off here and her . .",
". dad brought her to me and everything went smooth. He even had sex with her after I got her trained. She was six or seven. Have a pic of him having sex with her.\" Id. at 303-04. He then offered, \"Can send it to you if you want.\" Id. at 304. Liz agreed, and Douglas sent her a photograph of a man having intercourse with a prepubescent girl. Douglas explained that the man in the photograph was the girl's father, and he assured Liz, \"So you see, I don't hurt them any.\" Id. at 310. He expressed his hope that Liz would be able to find the money to come to Alabama, and he promised to provide her a place to live when she arrived. After a criminal complaint against Douglas was filed in the Middle District of Alabama and then dismissed for lack of venue, a complaint was filed in the District of Vermont. On October 11, 2007, a federal grand jury in Vermont returned a two-count indictment against Douglas charging him with one count of using a facility of interstate commerce to attempt to entice a minor to engage in illegal sexual activity in violation of 18 U.S.C. § 2422(b) and one count of knowingly transporting child pornography *164 in interstate commerce in violation of 18 U.S.C. § 2252A(a)(1).",
"A superseding indictment asserting essentially the same charges was filed on September 25, 2008. Douglas was convicted, following a jury trial, on both counts. This appeal followed. Title 18, section 2422(b) of the United States Code provides: Whoever, using the mail or any facility or means of interstate or foreign commerce,. . . knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title and imprisoned not less than 10 years or for life. Douglas argues that he could not commit enticement of a minor under § 2422(b) by communicating with a person he believed to be an adult.",
"He asserts that the plain language of the statute indicates that a person must direct his or her communications to a minor in order to be considered to have persuaded, induced, enticed, or coerced a minor into unlawful sexual activity or to have attempted to do so. His argument rests on the fact that \"the `minor' is the only identified direct object of the active verbs listed\" in § 2422(b). Def. Br. 52. We disagree. We review de novo this question of statutory interpretation. See, e.g., L-3 Commc'ns Corp. v. OSI Sys., Inc., 607 F.3d 24, 27 (2d Cir.2010). To obtain a conviction under § 2422(b), the government must show that the defendant \"(i) used a facility of interstate commerce; (ii) to knowingly persuade, induce or entice, or to attempt to persuade, induce or entice; (iii) any individual who is younger than eighteen-years old; (iv) to engage in sexual activity of a criminal nature.\" United States v. Brand, 467 F.3d 179, 201-02 (2d Cir.2006). We have emphasized that \"[a] conviction under § 2422(b) requires a finding only of an attempt to entice or an intent to entice, and not an intent to perform the sexual act following the persuasion.\"",
"Id. at 202; see also United States v. Murrell, 368 F.3d 1283, 1286 (11th Cir. 2004) (\"The underlying criminal conduct that Congress expressly proscribed in passing § 2422(b) is the persuasion, inducement, enticement, or coercion of the minor rather than the sex act itself. That is, if a person persuaded a minor to engage in sexual conduct (e.g. with himself or a third party), without then actually committing any sex act himself, he would nevertheless violate § 2422(b).\" (emphasis in original) (internal footnotes omitted)); United States v. Bailey, 228 F.3d 637, 639 (6th Cir.2000) (\"While it may be rare for there to be a separation between the intent to persuade and the follow-up intent to perform the act after persuasion, they are two clearly separate and different intents and the Congress has made a clear choice to criminalize persuasion and the attempt to persuade, not the performance of the sexual acts themselves. Hence, a conviction under the statute only requires a finding that the defendant had an intent to persuade or to attempt to persuade.\"). Douglas is incorrect that the defendant's speech must be directed to a minor in all cases in order for persuasion, inducement, enticement, or coercion to occur.",
"As we noted in Brand, the statute criminalizes obtaining or attempting to obtain a minor's assent to unlawful sexual activity. See Brand, 467 F.3d at 202. Such assent might be obtained, for example, by persuading a minor's adult guardian to lead a child to participate in sexual activity. Accordingly, we join our sister circuits in holding that a defendant may commit criminal enticement pursuant to § 2422(b) *165 by communicating with an adult guardian of a minor. See United States v. Nestor, 574 F.3d 159, 162 (3d Cir.2009); United States v. Spurlock, 495 F.3d 1011, 1014 (8th Cir.2007); Murrell, 368 F.3d at 1286-88. We agree with the Eleventh Circuit that \"the efficacy of § 2422(b) would be eviscerated if a defendant could circumvent the statute simply by employing an intermediary to carry out his intended objective.\" Murrell, 368 F.3d at 1287; see also Spurlock, 495 F.3d at 1014. Potential victims of enticement may be too young to use the Internet or otherwise communicate directly with strangers without their parents' supervision. Criminals who target such children will perforce operate through intermediaries. If we were to agree with Douglas's assumption that the statute sought to protect only those minors who are old enough to sign into a chat room, we would be ignoring Congress' objective of protecting vulnerable children.",
"We conclude that placing a sexual predator's communications with an adult intermediary beyond the reach of the statute would be an illogical result. Accordingly, the district court did not err in holding that Douglas could commit criminal enticement pursuant to § 2422(b) by communicating with a person he believed to be the adult guardian of a minor. We have considered all of the parties' arguments, and for the reasons stated herein and in the accompanying summary order, the judgment of the district court is AFFIRMED.",
"NOTES [1] In an accompanying summary order, we address and reject Douglas's arguments that (1) his counsel below was ineffective because he failed to strike two jurors; (2) the district court abused its discretion in admitting certain evidence of his past similar acts; and (3) he did not take the \"substantial step\" necessary to commit attempted enticement."
] | https://www.courtlistener.com/api/rest/v3/opinions/179738/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Citation Nr: 0914238
Decision Date: 04/16/09 Archive Date: 04/24/09
DOCKET NO. 07-26 048 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Philadelphia, Pennsylvania
THE ISSUE
Whether a reduction in the Veteran's evaluation for service-
connected right knee ligament relaxation, patellofemoral
syndrome, from 20 percent to 0 percent was proper.
REPRESENTATION
Appellant represented by: Pennsylvania Department of
Military and Veterans Affairs
ATTORNEY FOR THE BOARD
B. A. Jonas, Associate Counsel
INTRODUCTION
The Veteran served on active duty from March 1978 to July
1992.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an October 2006 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Philadelphia, Pennsylvania.
FINDINGS OF FACT
1. An April 1999 rating decision assigned a 20 percent
rating for right knee ligament relaxation, patellofemoral
syndrome, effective from March 1999.
2. In August 2005, the RO issued a decision proposing to
reduce the Veteran's rating for right knee ligament
relaxation, patellofemoral syndrome, from 20 to 0 percent
based on the results of the April 2005 VA examination,
notified the veteran of the contemplated action and the
reasons therefor, and informed him of his right to submit
additional evidence and to appear at a hearing.
3. In October 2006, the RO implemented the proposed reduction
to 0 percent, effective from January 1, 2007; as of that
date, the Veteran's right knee ligament relaxation,
patellofemoral syndrome, was not manifested by recurrent
subluxation or lateral instability.
CONCLUSION OF LAW
The reduction in the evaluation for right knee ligament
relaxation, patellofemoral syndrome, from 20 to 0 percent,
was proper. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp.
2008); 38 C.F.R. §§ 3.105, 4.1, 4.7, 4.71a, Diagnostic Code
5257 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veteran contends that the reduction of the 20 percent
disability rating to 0 percent, effective from January 1,
2007, for service-connected right knee ligament relaxation,
patellofemoral syndrome, was not proper. He argues that the
August 2004 surgery on his anterior cruciate ligament (ACL)
worsened the right knee disability.
Initially, the Board finds that the RO complied with the
procedures of 38 C.F.R.
§ 3.105, which requires that the veteran receive appropriate
notice of the proposed reduction and the reasons for the
proposal, a period of 60 days to submit additional evidence,
a period of 30 days to request a predetermination hearing.
See 38 C.F.R. §§ 3.105(e), (i); 3.500(r) (2008). The
evidence does not indicate, nor does the Veteran contend,
noncompliance with the aforementioned procedural requirements
for rating reductions. See 38 C.F.R. § 3.105(e). Therefore,
the Board will only focus on the propriety of the reduction.
At the time of the reduction in this case, a 20 percent
rating for the Veteran's service-connected right knee
ligament relaxation, patellofemoral syndrome, had
continuously been in effect since March 15, 1999 (with a
temporary 100 percent rating from August 2004 to February
2005 for convalescence after surgery), a period of over 5
years. Hence, the provisions of 38 C.F.R. § 3.344(a) and (b)
apply. The provisions of 38 C.F.R. § 3.344(a) and (b) provide
that where a Veteran's schedular rating has been both
continuous and stable for five years or more, the rating may
be reduced only if the examination upon which the reduction
is based is at least as full and complete as the examination
used to establish the higher evaluation. A rating that has
been in effect for more than 5 years will not be reduced on
any one examination, except in those instances where all of
the evidence of record clearly warrants the conclusion that
sustained improvement has been demonstrated. The rating
agency must also take into consideration whether the evidence
makes it reasonably certain that the improvement will be
maintained under the ordinary conditions of life. See 38
C.F.R. § 3.344(a).
Here, the Board finds that 38 C.F.R. § 3.344(a) and (b) were
complied with because multiple VA examinations were given.
They were at least as full and complete as the March 1999 VA
examination.
Next, the Board must determine if the evidence properly
supported the reduction. In order for a reduction in rating
to be sustained, it must appear by a preponderance of the
evidence that the rating reduction was warranted. See Brown
v. Brown, 5 Vet. App. 413 (1993).
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. Part 4. 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.
When evaluating a loss of a range of motion, consideration is
given to the degree of functional loss caused by pain.
DeLuca v. Brown, 8 Vet. App. 202 (1995) (evaluation of
musculoskeletal disorders rated on the basis of limitation of
motion requires consideration of functional losses due to
pain). In DeLuca, the U.S. Court of Appeals for Veterans
Claims (Court) explained that, when the pertinent diagnostic
criteria provide for a rating on the basis of loss of range
of motion, determinations regarding functional loss are to be
"'portray[ed]' (§ 4.40) in terms of the degree of additional
range-of-motion loss due to pain on use or during flare-
ups." Id. at 206.
Normal ranges of motion of the knee are to 0 degrees in
extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71,
Plate II.
Diagnostic Code (DC) 5003 provides that degenerative
arthritis that is established by X-ray findings will be rated
on the basis of limitation of motion under the appropriate
diagnostic codes for the specific joint or joints involved.
When there is no limitation of motion of the specific joint
or joints that involve degenerative arthritis, DC 5003
provides a 20 percent rating for degenerative arthritis with
X-ray evidence of involvement of 2 or more major joints or 2
or more minor joint groups, with occasional incapacitating
exacerbations, and a 10 percent rating for degenerative
arthritis with X-ray evidence of involvement of 2 or more
major joints or 2 or more minor joint groups. Note (1)
provides that the 20 pct and 10 pct ratings based on X-ray
findings will not be combined with ratings based on
limitation of motion. Note (2) provides that the 20 percent
and 10 percent ratings based on X-ray findings, above, will
not be utilized in rating conditions listed under DCs 5013 to
5024, inclusive.
When there is some limitation of motion of the specific joint
or joints involved that is noncompensable (0 percent) under
the appropriate diagnostic codes, DC 5003 provides a rating
of 10 percent for each such major joint or group of minor
joints affected by limitation of motion, to be combined, not
added under DC 5003. Limitation of motion must be
objectively confirmed by findings such as swelling, muscle
spasm, or satisfactory evidence of painful motion.
When there is limitation of motion of the specific joint or
joints that is compensable (10 percent or higher) under the
appropriate diagnostic codes, the compensable limitation of
motion should be rated under the appropriate diagnostic codes
for the specific joint or joints involved. 38 C.F.R. §
4.71a.
Separate disability ratings are possible for arthritis with
limitation of motion under DCs 5003 and instability of a knee
under DC 5257. See VAOPGCPREC 23-97. When x-ray findings of
arthritis are present and a veteran's knee disability is
rated under DC 5257, the veteran would be entitled to a
separate compensable rating under DC 5003 if the arthritis
results in noncompensable limitation of motion and/or
objective findings or indicators of pain. See VAOPGCPREC 9-
98.
DC 5256 provides ratings for ankylosis of the knee.
Favorable ankylosis of the knee, with angle in full
extension, or in slight flexion between zero degrees and 10
degrees, is rated 30 percent disabling. Unfavorable
ankylosis of the knee, in flexion between 10 degrees and 20
degrees, is to be rated 40 percent disabling; unfavorable
ankylosis of the knee, in flexion between 20 degrees and 45
degrees, is rated 50 percent disabling; extremely be rated 60
percent disabling. 38 C.F.R. § 4.71a.
DC 5257 provides ratings for other impairment of the knee
that includes recurrent subluxation or lateral instability.
Slight recurrent subluxation or lateral instability of the
knee is rated 10 percent disabling; moderate recurrent
subluxation or lateral instability of the knee is rated 20
percent disabling; and severe recurrent subluxation or
lateral instability of the knee is rated 30 percent
disabling. 38 C.F.R. § 4.71a. Separate disability ratings
are possible for arthritis with limitation of motion under
DCs 5003 and instability of a knee under DC 5257. See
VAOPGCPREC 23-97. When x-ray findings of arthritis are
present and a veteran's knee disability is rated under DC
5257, the veteran would be entitled to a separate compensable
rating under DC 5003 if the arthritis results in
noncompensable limitation of motion and/or objective findings
or indicators of pain. See VAOPGCPREC 9-98.
DC 5258 provides a 20 percent rating for dislocated semilunar
cartilage with frequent episodes of "locking," pain, and
effusion into the joint. 38 C.F.R. § 4.71a.
DC 5259 provides a 10 percent rating for removal of semilunar
cartilage that is symptomatic. 38 C.F.R. § 4.71a.
DC 5260 provides ratings based on limitation of flexion of
the leg. Flexion of the leg limited to 60 degrees is rated
noncompensably (0 percent) disabling; flexion of the leg
limited to 45 degrees is rated 10 percent disabling; flexion
of the leg limited to 30 degrees is rated 20 percent
disabling; and flexion of the leg limited to 15 degrees is
rated 30 percent disabling. 38 C.F.R. § 4.71a. See
VAOPGCPREC 09-04 (separate ratings may be granted based on
limitation of flexion (DC 5260) and limitation of extension
(DC 5261) of the same knee joint).
DC 5261 provides ratings based on limitation of extension of
the leg. Extension of the leg limited to 5 degrees is rated
noncompensably (0 percent) disabling; extension of the leg
limited to 10 degrees is rated 10 percent disabling;
extension of the leg limited to 15 degrees is rated 20
percent disabling; extension of the leg limited to 20 degrees
is rated 30 percent disabling; extension of the leg limited
to 30 degrees is rated 40 percent disabling; and extension of
the leg limited to 45 degrees is rated 50 percent disabling.
38 C.F.R. § 4.71a. See VAOPGCPREC 09-04 (separate ratings
may be granted based on limitation of flexion (Diagnostic
Code 5260) and limitation of extension (Diagnostic Code 5261)
of the same knee joint).
DC 5262 provides ratings based on impairment of the tibia and
fibula. Malunion of the tibia and fibula with slight knee or
ankle disability is rated 10 percent disabling; malunion of
the tibia and fibula with moderate knee or ankle disability
is rated 20 percent disabling; and malunion of the tibia and
fibula with marked knee or ankle disability is rated 30
percent disabling. Nonunion of the tibia and fibula with
loose motion, requiring a brace, is rated 40 percent
disabling. 38 C.F.R. § 4.71a.
In this case, the Veteran has been a assigned a separate
rating for osteoarthritis of the right knee with limitation
of extension under DCs 5010 and 5261. This separate rating
was 10 percent from August 2003 and was increased to 40
percent as of February 2008. That rating is not currently on
appeal before the Board. The rating that was reduced and is
now on appeal is governed by DC 5257 for recurrent
subluxation or lateral instability.
All of the medical evidence shows no recurrent subluxation
and no lateral instability during the rating period at issue.
During the April 2005 VA examination, the examination that
prompted the RO to propose the rating reduction, the Veteran
denied instability of the right knee since undergoing the ACL
surgery. The examiner confirmed this with objective testing.
The McMurray's, anterior drawer, and Lachman's tests were all
negative. The varus/valgus test was normal. VA orthopedic
notes in December 2006 and February 2007 showed anterior
instability. The VA orthopedic surgeon who authored the
February 2007 note attributed the anterior instability to an
incompetent ACL, despite the attempted reconstructive
surgery. This anterior instability was also noted during the
February 2008 and May 2008 VA examinations. Again, there was
found to be no lateral instability or recurrent subluxation.
The Veteran submitted a second opinion from Orthopaedic
Associates in February 2007. This private examination noted
2+ Lachman with positive pivot and anterior drawer tests.
The examiner advised the Veteran to readdress the ACL. This
examination essentially confirmed the findings of the VA
orthopedists. Namely, there continued to be anterior
instability caused by the ineffective ACL surgery but no
evidence of lateral instability or recurrent subluxation.
Although it is true that the Veteran's right knee disability
is worse overall than it was before he underwent the ACL
surgery, the RO's assignment of an increased rating under the
arthritis and range of motion criteria (DCs 5010, 5261)
accounts for that. The reduction of the separate rating
under DC 5257 was appropriate due to lack of evidence of
recurrent subluxation or lateral instability.
Duties to Notify and Assist
VA has a duty to notify and to assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2008);
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2008).
Section 5103(a) specifies the notice that VA shall give to a
claimant upon receipt of a complete or substantially complete
application. See also 38 C.F.R. § 3.159(b). In a situation
involving the reduction of a disability rating, however, the
RO initiates the reduction; the claimant does not apply for a
rating reduction. Any required notice in cases of rating
reduction is satisfied by the notice provided pursuant to 38
C.F.R. § 3.105(e). As discussed above, the RO complied with
the procedural requirements set forth in § 3.105(e).
Therefore, no additional Section 5103(a) notice is needed in
this case.
(CONTINUED ON NEXT PAGE)
ORDER
The reduction from 20 percent to 0 percent of the separate
rating under Diagnostic Code 5257 for right knee ligament
relaxation, patellofemoral syndrome, was proper and the
appeal is denied.
____________________________________________
MARY GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs | 04-16-2009 | [
"Citation Nr: 0914238 Decision Date: 04/16/09 Archive Date: 04/24/09 DOCKET NO. 07-26 048 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Whether a reduction in the Veteran's evaluation for service- connected right knee ligament relaxation, patellofemoral syndrome, from 20 percent to 0 percent was proper. REPRESENTATION Appellant represented by: Pennsylvania Department of Military and Veterans Affairs ATTORNEY FOR THE BOARD B. A. Jonas, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1978 to July 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. FINDINGS OF FACT 1.",
"An April 1999 rating decision assigned a 20 percent rating for right knee ligament relaxation, patellofemoral syndrome, effective from March 1999. 2. In August 2005, the RO issued a decision proposing to reduce the Veteran's rating for right knee ligament relaxation, patellofemoral syndrome, from 20 to 0 percent based on the results of the April 2005 VA examination, notified the veteran of the contemplated action and the reasons therefor, and informed him of his right to submit additional evidence and to appear at a hearing. 3. In October 2006, the RO implemented the proposed reduction to 0 percent, effective from January 1, 2007; as of that date, the Veteran's right knee ligament relaxation, patellofemoral syndrome, was not manifested by recurrent subluxation or lateral instability. CONCLUSION OF LAW The reduction in the evaluation for right knee ligament relaxation, patellofemoral syndrome, from 20 to 0 percent, was proper. 38 U.S.C.A.",
"§§ 1155, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.105, 4.1, 4.7, 4.71a, Diagnostic Code 5257 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that the reduction of the 20 percent disability rating to 0 percent, effective from January 1, 2007, for service-connected right knee ligament relaxation, patellofemoral syndrome, was not proper. He argues that the August 2004 surgery on his anterior cruciate ligament (ACL) worsened the right knee disability. Initially, the Board finds that the RO complied with the procedures of 38 C.F.R. § 3.105, which requires that the veteran receive appropriate notice of the proposed reduction and the reasons for the proposal, a period of 60 days to submit additional evidence, a period of 30 days to request a predetermination hearing. See 38 C.F.R. §§ 3.105(e), (i); 3.500(r) (2008). The evidence does not indicate, nor does the Veteran contend, noncompliance with the aforementioned procedural requirements for rating reductions. See 38 C.F.R.",
"§ 3.105(e). Therefore, the Board will only focus on the propriety of the reduction. At the time of the reduction in this case, a 20 percent rating for the Veteran's service-connected right knee ligament relaxation, patellofemoral syndrome, had continuously been in effect since March 15, 1999 (with a temporary 100 percent rating from August 2004 to February 2005 for convalescence after surgery), a period of over 5 years. Hence, the provisions of 38 C.F.R. § 3.344(a) and (b) apply. The provisions of 38 C.F.R. § 3.344(a) and (b) provide that where a Veteran's schedular rating has been both continuous and stable for five years or more, the rating may be reduced only if the examination upon which the reduction is based is at least as full and complete as the examination used to establish the higher evaluation. A rating that has been in effect for more than 5 years will not be reduced on any one examination, except in those instances where all of the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. The rating agency must also take into consideration whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. See 38 C.F.R.",
"§ 3.344(a). Here, the Board finds that 38 C.F.R. § 3.344(a) and (b) were complied with because multiple VA examinations were given. They were at least as full and complete as the March 1999 VA examination. Next, the Board must determine if the evidence properly supported the reduction. In order for a reduction in rating to be sustained, it must appear by a preponderance of the evidence that the rating reduction was warranted. See Brown v. Brown, 5 Vet. App. 413 (1993). 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. Part 4. 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. When evaluating a loss of a range of motion, consideration is given to the degree of functional loss caused by pain. DeLuca v. Brown, 8 Vet. App. 202 (1995) (evaluation of musculoskeletal disorders rated on the basis of limitation of motion requires consideration of functional losses due to pain).",
"In DeLuca, the U.S. Court of Appeals for Veterans Claims (Court) explained that, when the pertinent diagnostic criteria provide for a rating on the basis of loss of range of motion, determinations regarding functional loss are to be \"'portray[ed]' (§ 4.40) in terms of the degree of additional range-of-motion loss due to pain on use or during flare- ups.\" Id. at 206. Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Diagnostic Code (DC) 5003 provides that degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, DC 5003 provides a 20 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. Note (1) provides that the 20 pct and 10 pct ratings based on X-ray findings will not be combined with ratings based on limitation of motion.",
"Note (2) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under DCs 5013 to 5024, inclusive. When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, DC 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.",
"When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. Separate disability ratings are possible for arthritis with limitation of motion under DCs 5003 and instability of a knee under DC 5257. See VAOPGCPREC 23-97. When x-ray findings of arthritis are present and a veteran's knee disability is rated under DC 5257, the veteran would be entitled to a separate compensable rating under DC 5003 if the arthritis results in noncompensable limitation of motion and/or objective findings or indicators of pain. See VAOPGCPREC 9- 98. DC 5256 provides ratings for ankylosis of the knee. Favorable ankylosis of the knee, with angle in full extension, or in slight flexion between zero degrees and 10 degrees, is rated 30 percent disabling.",
"Unfavorable ankylosis of the knee, in flexion between 10 degrees and 20 degrees, is to be rated 40 percent disabling; unfavorable ankylosis of the knee, in flexion between 20 degrees and 45 degrees, is rated 50 percent disabling; extremely be rated 60 percent disabling. 38 C.F.R. § 4.71a. DC 5257 provides ratings for other impairment of the knee that includes recurrent subluxation or lateral instability. Slight recurrent subluxation or lateral instability of the knee is rated 10 percent disabling; moderate recurrent subluxation or lateral instability of the knee is rated 20 percent disabling; and severe recurrent subluxation or lateral instability of the knee is rated 30 percent disabling. 38 C.F.R. § 4.71a.",
"Separate disability ratings are possible for arthritis with limitation of motion under DCs 5003 and instability of a knee under DC 5257. See VAOPGCPREC 23-97. When x-ray findings of arthritis are present and a veteran's knee disability is rated under DC 5257, the veteran would be entitled to a separate compensable rating under DC 5003 if the arthritis results in noncompensable limitation of motion and/or objective findings or indicators of pain. See VAOPGCPREC 9-98. DC 5258 provides a 20 percent rating for dislocated semilunar cartilage with frequent episodes of \"locking,\" pain, and effusion into the joint. 38 C.F.R.",
"§ 4.71a. DC 5259 provides a 10 percent rating for removal of semilunar cartilage that is symptomatic. 38 C.F.R. § 4.71a. DC 5260 provides ratings based on limitation of flexion of the leg. Flexion of the leg limited to 60 degrees is rated noncompensably (0 percent) disabling; flexion of the leg limited to 45 degrees is rated 10 percent disabling; flexion of the leg limited to 30 degrees is rated 20 percent disabling; and flexion of the leg limited to 15 degrees is rated 30 percent disabling. 38 C.F.R. § 4.71a.",
"See VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (DC 5260) and limitation of extension (DC 5261) of the same knee joint). DC 5261 provides ratings based on limitation of extension of the leg. Extension of the leg limited to 5 degrees is rated noncompensably (0 percent) disabling; extension of the leg limited to 10 degrees is rated 10 percent disabling; extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling.",
"38 C.F.R. § 4.71a. See VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) of the same knee joint). DC 5262 provides ratings based on impairment of the tibia and fibula. Malunion of the tibia and fibula with slight knee or ankle disability is rated 10 percent disabling; malunion of the tibia and fibula with moderate knee or ankle disability is rated 20 percent disabling; and malunion of the tibia and fibula with marked knee or ankle disability is rated 30 percent disabling. Nonunion of the tibia and fibula with loose motion, requiring a brace, is rated 40 percent disabling. 38 C.F.R.",
"§ 4.71a. In this case, the Veteran has been a assigned a separate rating for osteoarthritis of the right knee with limitation of extension under DCs 5010 and 5261. This separate rating was 10 percent from August 2003 and was increased to 40 percent as of February 2008. That rating is not currently on appeal before the Board. The rating that was reduced and is now on appeal is governed by DC 5257 for recurrent subluxation or lateral instability. All of the medical evidence shows no recurrent subluxation and no lateral instability during the rating period at issue. During the April 2005 VA examination, the examination that prompted the RO to propose the rating reduction, the Veteran denied instability of the right knee since undergoing the ACL surgery. The examiner confirmed this with objective testing. The McMurray's, anterior drawer, and Lachman's tests were all negative.",
"The varus/valgus test was normal. VA orthopedic notes in December 2006 and February 2007 showed anterior instability. The VA orthopedic surgeon who authored the February 2007 note attributed the anterior instability to an incompetent ACL, despite the attempted reconstructive surgery. This anterior instability was also noted during the February 2008 and May 2008 VA examinations. Again, there was found to be no lateral instability or recurrent subluxation. The Veteran submitted a second opinion from Orthopaedic Associates in February 2007. This private examination noted 2+ Lachman with positive pivot and anterior drawer tests. The examiner advised the Veteran to readdress the ACL. This examination essentially confirmed the findings of the VA orthopedists. Namely, there continued to be anterior instability caused by the ineffective ACL surgery but no evidence of lateral instability or recurrent subluxation. Although it is true that the Veteran's right knee disability is worse overall than it was before he underwent the ACL surgery, the RO's assignment of an increased rating under the arthritis and range of motion criteria (DCs 5010, 5261) accounts for that. The reduction of the separate rating under DC 5257 was appropriate due to lack of evidence of recurrent subluxation or lateral instability. Duties to Notify and Assist VA has a duty to notify and to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp.",
"2008); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2008). Section 5103(a) specifies the notice that VA shall give to a claimant upon receipt of a complete or substantially complete application. See also 38 C.F.R. § 3.159(b). In a situation involving the reduction of a disability rating, however, the RO initiates the reduction; the claimant does not apply for a rating reduction. Any required notice in cases of rating reduction is satisfied by the notice provided pursuant to 38 C.F.R. § 3.105(e). As discussed above, the RO complied with the procedural requirements set forth in § 3.105(e). Therefore, no additional Section 5103(a) notice is needed in this case. (CONTINUED ON NEXT PAGE) ORDER The reduction from 20 percent to 0 percent of the separate rating under Diagnostic Code 5257 for right knee ligament relaxation, patellofemoral syndrome, was proper and the appeal is denied.",
"____________________________________________ MARY GALLAGHER 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 . The Pre-Brief Appeal request has been considered and addressed below. New grounds are not presented but the previously presented grounds of rejection have been corrected to clearly describe the mapping of the art to the claim limitations. Response to Arguments Applicant's arguments filed 26 October 2021 with respect to the 10 have been fully considered but they are not persuasive. Applicant argues first the reference does not disclose initiating the transaction, but the Examiner disagrees because the communication disclosed in [0082] does initiate the transaction based on the detection of a wireless signal or a communication. Applicant secondly argues the features of claim 1 (ii) are not disclosed, but the Examiner disagrees because Fig 3, [0074]-[0080] disclose detecting merchants based on a variety of location and movement factors that would not be necessary if a single merchant could not be identified. Additionally, the Applicant argues the transaction is initiated by a communication with the merchant, which would imply a single merchant was identified through the communication with the merchant. Applicant additionally argues the reference does not disclose the features (iii) of the claim, but the Examiner disagrees. The motion characteristics in [0131] and the trajectory tracked by the device reads on a change in the number of directions limitation in the claim, see also [0091], [0099], and [0079].
Claim Objections Claim 1 is objected to because of the following informalities: "selecting a selected merchant" does not make logical sense because a user cannot select a merchant that is already selected. The Examiner has interpreted this limitation as "a merchant". Appropriate correction is required. Claims 19 and 20 are objected to for the same reason. Claim Rejections - 35 USC § 102 In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status. The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action: A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1, 3-6, and 13-20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Kumaraguyuparan US 2016/0328698 hereinafter Kumara.
As per Claims 1,19, and 20 A system for facilitating selection of a transaction mode, the system comprising: a processor; ([0129]) and a memory including instructions that, when executed by the processor, cause the processor to perform operations including[0129]) initiating an electronic transaction via communication between a user device and a merchant device ([0082]) obtaining user identification information, the user identification information identifying a user of a user device, the user device performing the electronic transaction;(See [0071], [0074]) determining a plurality of user accounts of the user based on the user identification information;(See fig. 3, part 241, [0070]-[0075].) obtaining location information of the user device,(See fig. 3, part 245, [0070]-[0075].) the location information of the user device including positioning information determined by a global positioning satellite device included in the user device, (See [0072], part 263 of fig. 1.), the positioning information including a position-trace of the user device determined over a predetermined period of time; (See [0027], [0080], [0091], [0131]) after the electronic transaction is initiated and in response to a single merchant being unable to be determined based on the location information of the user device, selecting a selected merchant from amount a plurality of merchants based on a number of changes in direction in the position trace; (See fig. 3, part 247, [0074]-[0080], [0091], [0099] & [0131], [0026]-[0027], [0058], [0055] default account) analyzing the plurality of user accounts; (See fig. 3, part 249, [0058], [0055] default account) and determining, based on a result of the analyzing and the merchant, a recommended user account from among the plurality of user accounts; (See [0073], [0058], [0055] default account) and generating a notification to be displayed on the user device, the notification configured to be used to complete the electronic transaction using the recommended user account.(See [0073], [0074] See [0096] e; see also [0098]-[0099] & [0100]-[0104], [0058], [0055] default account) As per Claim 3 The system according to claim 1, wherein the analyzing includes: determining at least one account parameter associated with each of the plurality of user accounts;(See [0049]) and assigning a score to each of the plurality of user accounts based on the associated at least one account parameter.(See [0049]) As per Claim 4 The system according to claim 3, wherein the score is assigned to each of the plurality of user accounts based on rules set by the user.(See [0039]) As per Claim 5 The system according to claim 3, wherein the at least one account parameter includes at least one of a credit limit, an outstanding balance, an available balance, a reward, finance charges, interest charges, and credit score impact.(See [0049]) As per Claim 6 The system according to claim 3, wherein the operations further include: obtaining a dollar amount of the transaction, and the score is further assigned to each of the plurality of user accounts based on the dollar amount of the transaction.(See [0045]) As per Claim 13 The system according to claim 1, wherein the recommended user account is determined from among the plurality of user accounts based on the result of the analyzing and the selected merchant, and further based on the location information of the user device.(See [0073]) As per Claim 14 The system according to claim 13, wherein the operations further include: excluding, from the recommended user account, at least one of the plurality of user accounts based on the location information of the user device. (See [0073]) As per Claim 15 The system according to claim 1, wherein the user identification information and the location information are received from the user device via a network, the notification is configured to be transmitted to the user device via the network, and the notification is further configured to be displayed on a display of the user device.(See [0071]-[0074], [0029])
The system according to claim 1, wherein the notification includes a QR code or a barcode that, when scanned, is configured to complete the electronic transaction using the recommended user account.(See [0151]) As per Claim 17 The system according to claim 1, wherein the processor and the memory are each included in the user device.(See [0129])As per Claim 18 The system according to claim 1, wherein each of the plurality of user accounts is associated with a same issuer or institution.(See [0121]) 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 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 2 and 7 are rejected under 35 U.S.C. 103 as being unpatentable over Kumara in view of Mills; Benjamin Eroe et al. (US 20150302383 Al) hereinafter Mills. As per Claim 2 The following limitations are disclosed by Kumara: All of the limitations of claim 1, upon which claim 2 depends. Kumara discloses the determination of multiple payment accounts to recommend to a user based on the location of the user. Kumara. however, does not disclose the following limitation while Mills does teach the following limitation: The system according to claim 1, wherein the analyzing includes: determining at least one transaction mode that is accepted by the selected merchant; (See [0040]) and excluding, from the recommended user account, accounts of the plurality of user accounts that do not correspond to the at least one transaction mode that is accepted by the merchant. (See [0040].) Mills teaches that the transaction modes preferred or accepted by the merchant can be used to exclude payment methods that don't fit this merchant criteria. It would have been obvious to one of ordinary skill in the art at the effective filing date of the invention to include in the payment account recommendation system of Kumara the exclusion of accounts not accepted by the merchant as in Mills because the claimed invention amounts to a combination of old elements that are directed to the same problem, and in the combination the old elements would perform the same function as they do separately. One of ordinary skill in the art at the effective filing date of the invention would have been motivated to make this combination so that users would not have to endure the friction associated with initially choosing a payment method that is not accepted by the merchant and having to determine a different payment method that is accepted by the merchant. As per Claim 7 The following limitations are disclosed by Kumara: All of the limitations of claim 1, upon which claim 7 depends. Kumara discloses the determination of multiple payment accounts to recommend to a user based on the location of the user. Kumara. however, does not disclose the following limitation while Mills does teach the following limitation: The system according to claim 1, wherein the analyzing includes: receiving, from the selected merchant, at least one merchant-defined parameter associated with at least one transaction mode accepted by the selected merchant; (See [0030]) determining whether the at least one transaction mode corresponds to any of the plurality of user accounts; (See [0040]) and in response to determining that the at least one transaction mode corresponds to any of the plurality of user accounts, further analyzing the plurality of user accounts based on the at least one merchant-defined parameter.(See [0040]-[0041]) Mills teaches that the transaction modes preferred or accepted by the merchant can be used to further analyze the payment accounts available. It would have been obvious to one of ordinary skill in the art at the effective filing date of the invention to include in the payment account recommendation system of Kumara the exclusion of accounts not accepted by the merchant as in Mills because the claimed invention amounts to a combination of old elements that are directed to the same problem, and in the combination the old elements would perform the same function as they do separately. One of ordinary skill in the art at the effective filing date of the invention . 11. Claims 9 is rejected under 35 U.S.C. 103 as being unpatentable over Kumara in view of Grenier, Eric (US 20160092923 Al) hereinafter Grenier. As per Claim 9 The following limitations are disclosed by Kumara: All of the limitations of claims 1, upon which claim 9 depends. Kumara discloses the determination of multiple payment accounts to recommend to a user based on the location of the user. Kumara. however, does not disclose the following limitation while Grenier does teach the following limitation: The system according to claim 1, wherein the operations further include: when the plurality of merchants is identified based on the location information of the user device, generating a list of the plurality of merchants to be displayed on the user device and requesting a selection of one of the plurality of merchants by the user.(See [0062]-[0064], [0100] states that the map elements may be selectable.) Grenier teaches that a list of merchants can be displayed to the user based on the location of the user. It would have been obvious to one of ordinary skill in the art at . 12. Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Kumara in view of Do; Ju-Yong (US 8812014 B2) hereinafter Do. As per Claim 10 The following limitations are disclosed by Kumara: All of the limitations of claims 1, upon which claim 10 depends. Kumara discloses the determination of multiple payment accounts to recommend to a user based on the location of the user. Kumara. however, does not disclose the following limitation while Do does teach the following limitation: The system according to claim 1, wherein the location information of the user device further includes at least one of sound information detected by a microphone of the user device or light information obtained by a camera of the user device.(See column 10, lines 41-60, Column 6, lines 28-33) Do teaches that location information can be determined by detecting sound using the microphone of a mobile device. It would have been obvious to one of ordinary skill in the art at the effective filing date of the invention to include in the payment account recommendation system of Kumara the ability to determine location based on sound as in Do because the claimed invention is merely a combination of old elements, and in the combination the elements would perform the same function as they do separately. One of ordinary skill in the art at the effective filing date of the invention would have been motivated to make this combination so that location information could be determined in other ways besides GPS. 13. Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Kumara in view of Grenier and further in view of Do. As per Claim 11 The following limitations are disclosed by Kumara: All of the limitations of claims 1 and 10, upon which claim 11 depends. Kumara discloses the determination of multiple payment accounts to recommend to a user based on the location of the user. Kumara. however, does not disclose the following limitation while Grenier does teach the following limitation: The system according to claim 10, wherein the location information further includes at least the sound information detected by the microphone of the user device, when a plurality of merchants is identified based on the location information (See [0062]-[0064]) Grenier teaches that a list of merchants can be displayed to the user based on the location of the user and that the user can select the merchant or merchants displayed. It would have been obvious to one of ordinary skill in the art at the effective filing date of the invention to include in the payment account recommendation system of Kumara the ability to select a merchant based on location as in Grenier because the claimed invention predictably improves a known system with a known technique; in that the known payment account recommendation system of Kumara could be benefited by customer's having access to merchant information in their area. One of ordinary skill in the art at the effective filing date of the invention would have been motivated to make this combination so that users would be able to have merchant information in their area which would make it more likely that they would visit those merchants. Kumara and Grenier together, however, do not disclose the following limitation while Do does teach the following limitation: All of the limitations of claim 10, upon which claim 11 depends, filtering the sound information detected by the microphone of the user device to identify at least one of a predetermined sound or speech of a predetermined user;(See column 9, lines 1-9) Do teaches that location information can be determined by detecting sound using the microphone of a mobile device. It would have been obvious to one of ordinary skill in the art at the effective filing date of the invention to include in the payment account Conclusion Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a). Any inquiry concerning this communication or earlier communications from the examiner should be directed to DAVID P SHARVIN whose telephone number is (571)272-9863. The examiner can normally be reached M-F 9 am - 5 pm EST. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Calvin Hewitt II can be reached on 571-272-6709. 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.
/DAVID P. SHARVIN/ Primary Examiner Art Unit 3692
/DAVID P SHARVIN/Primary Examiner, Art Unit 3692 | 2022-01-10T10:34:01 | [
"Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . The Pre-Brief Appeal request has been considered and addressed below. New grounds are not presented but the previously presented grounds of rejection have been corrected to clearly describe the mapping of the art to the claim limitations. Response to Arguments Applicant's arguments filed 26 October 2021 with respect to the 10 have been fully considered but they are not persuasive. Applicant argues first the reference does not disclose initiating the transaction, but the Examiner disagrees because the communication disclosed in [0082] does initiate the transaction based on the detection of a wireless signal or a communication. Applicant secondly argues the features of claim 1 (ii) are not disclosed, but the Examiner disagrees because Fig 3, [0074]-[0080] disclose detecting merchants based on a variety of location and movement factors that would not be necessary if a single merchant could not be identified. Additionally, the Applicant argues the transaction is initiated by a communication with the merchant, which would imply a single merchant was identified through the communication with the merchant.",
"Applicant additionally argues the reference does not disclose the features (iii) of the claim, but the Examiner disagrees. The motion characteristics in [0131] and the trajectory tracked by the device reads on a change in the number of directions limitation in the claim, see also [0091], [0099], and [0079]. Claim Objections Claim 1 is objected to because of the following informalities: \"selecting a selected merchant\" does not make logical sense because a user cannot select a merchant that is already selected. The Examiner has interpreted this limitation as \"a merchant\". Appropriate correction is required. Claims 19 and 20 are objected to for the same reason. Claim Rejections - 35 USC § 102 In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C.",
"102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status. The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action: A person shall be entitled to a patent unless – (a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention. Claim(s) 1, 3-6, and 13-20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Kumaraguyuparan US 2016/0328698 hereinafter Kumara. As per Claims 1,19, and 20 A system for facilitating selection of a transaction mode, the system comprising: a processor; ([0129]) and a memory including instructions that, when executed by the processor, cause the processor to perform operations including[0129]) initiating an electronic transaction via communication between a user device and a merchant device ([0082]) obtaining user identification information, the user identification information identifying a user of a user device, the user device performing the electronic transaction;(See [0071], [0074]) determining a plurality of user accounts of the user based on the user identification information;(See fig.",
"3, part 241, [0070]-[0075].) obtaining location information of the user device,(See fig. 3, part 245, [0070]-[0075].) the location information of the user device including positioning information determined by a global positioning satellite device included in the user device, (See [0072], part 263 of fig. 1. ), the positioning information including a position-trace of the user device determined over a predetermined period of time; (See [0027], [0080], [0091], [0131]) after the electronic transaction is initiated and in response to a single merchant being unable to be determined based on the location information of the user device, selecting a selected merchant from amount a plurality of merchants based on a number of changes in direction in the position trace; (See fig. 3, part 247, [0074]-[0080], [0091], [0099] & [0131], [0026]-[0027], [0058], [0055] default account) analyzing the plurality of user accounts; (See fig. 3, part 249, [0058], [0055] default account) and determining, based on a result of the analyzing and the merchant, a recommended user account from among the plurality of user accounts; (See [0073], [0058], [0055] default account) and generating a notification to be displayed on the user device, the notification configured to be used to complete the electronic transaction using the recommended user account.",
"(See [0073], [0074] See [0096] e; see also [0098]-[0099] & [0100]-[0104], [0058], [0055] default account) As per Claim 3 The system according to claim 1, wherein the analyzing includes: determining at least one account parameter associated with each of the plurality of user accounts;(See [0049]) and assigning a score to each of the plurality of user accounts based on the associated at least one account parameter. (See [0049]) As per Claim 4 The system according to claim 3, wherein the score is assigned to each of the plurality of user accounts based on rules set by the user. (See [0039]) As per Claim 5 The system according to claim 3, wherein the at least one account parameter includes at least one of a credit limit, an outstanding balance, an available balance, a reward, finance charges, interest charges, and credit score impact. (See [0049]) As per Claim 6 The system according to claim 3, wherein the operations further include: obtaining a dollar amount of the transaction, and the score is further assigned to each of the plurality of user accounts based on the dollar amount of the transaction.",
"(See [0045]) As per Claim 13 The system according to claim 1, wherein the recommended user account is determined from among the plurality of user accounts based on the result of the analyzing and the selected merchant, and further based on the location information of the user device. (See [0073]) As per Claim 14 The system according to claim 13, wherein the operations further include: excluding, from the recommended user account, at least one of the plurality of user accounts based on the location information of the user device. (See [0073]) As per Claim 15 The system according to claim 1, wherein the user identification information and the location information are received from the user device via a network, the notification is configured to be transmitted to the user device via the network, and the notification is further configured to be displayed on a display of the user device. (See [0071]-[0074], [0029]) The system according to claim 1, wherein the notification includes a QR code or a barcode that, when scanned, is configured to complete the electronic transaction using the recommended user account. (See [0151]) As per Claim 17 The system according to claim 1, wherein the processor and the memory are each included in the user device. (See [0129])As per Claim 18 The system according to claim 1, wherein each of the plurality of user accounts is associated with a same issuer or institution.",
"(See [0121]) 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 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 2 and 7 are rejected under 35 U.S.C. 103 as being unpatentable over Kumara in view of Mills; Benjamin Eroe et al. (US 20150302383 Al) hereinafter Mills. As per Claim 2 The following limitations are disclosed by Kumara: All of the limitations of claim 1, upon which claim 2 depends.",
"Kumara discloses the determination of multiple payment accounts to recommend to a user based on the location of the user. Kumara. however, does not disclose the following limitation while Mills does teach the following limitation: The system according to claim 1, wherein the analyzing includes: determining at least one transaction mode that is accepted by the selected merchant; (See [0040]) and excluding, from the recommended user account, accounts of the plurality of user accounts that do not correspond to the at least one transaction mode that is accepted by the merchant.",
"(See [0040].) Mills teaches that the transaction modes preferred or accepted by the merchant can be used to exclude payment methods that don't fit this merchant criteria. It would have been obvious to one of ordinary skill in the art at the effective filing date of the invention to include in the payment account recommendation system of Kumara the exclusion of accounts not accepted by the merchant as in Mills because the claimed invention amounts to a combination of old elements that are directed to the same problem, and in the combination the old elements would perform the same function as they do separately. One of ordinary skill in the art at the effective filing date of the invention would have been motivated to make this combination so that users would not have to endure the friction associated with initially choosing a payment method that is not accepted by the merchant and having to determine a different payment method that is accepted by the merchant. As per Claim 7 The following limitations are disclosed by Kumara: All of the limitations of claim 1, upon which claim 7 depends.",
"Kumara discloses the determination of multiple payment accounts to recommend to a user based on the location of the user. Kumara. however, does not disclose the following limitation while Mills does teach the following limitation: The system according to claim 1, wherein the analyzing includes: receiving, from the selected merchant, at least one merchant-defined parameter associated with at least one transaction mode accepted by the selected merchant; (See [0030]) determining whether the at least one transaction mode corresponds to any of the plurality of user accounts; (See [0040]) and in response to determining that the at least one transaction mode corresponds to any of the plurality of user accounts, further analyzing the plurality of user accounts based on the at least one merchant-defined parameter. (See [0040]-[0041]) Mills teaches that the transaction modes preferred or accepted by the merchant can be used to further analyze the payment accounts available. It would have been obvious to one of ordinary skill in the art at the effective filing date of the invention to include in the payment account recommendation system of Kumara the exclusion of accounts not accepted by the merchant as in Mills because the claimed invention amounts to a combination of old elements that are directed to the same problem, and in the combination the old elements would perform the same function as they do separately.",
"One of ordinary skill in the art at the effective filing date of the invention . 11. Claims 9 is rejected under 35 U.S.C. 103 as being unpatentable over Kumara in view of Grenier, Eric (US 20160092923 Al) hereinafter Grenier. As per Claim 9 The following limitations are disclosed by Kumara: All of the limitations of claims 1, upon which claim 9 depends. Kumara discloses the determination of multiple payment accounts to recommend to a user based on the location of the user.",
"Kumara. however, does not disclose the following limitation while Grenier does teach the following limitation: The system according to claim 1, wherein the operations further include: when the plurality of merchants is identified based on the location information of the user device, generating a list of the plurality of merchants to be displayed on the user device and requesting a selection of one of the plurality of merchants by the user. (See [0062]-[0064], [0100] states that the map elements may be selectable.) Grenier teaches that a list of merchants can be displayed to the user based on the location of the user.",
"It would have been obvious to one of ordinary skill in the art at . 12. Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Kumara in view of Do; Ju-Yong (US 8812014 B2) hereinafter Do. As per Claim 10 The following limitations are disclosed by Kumara: All of the limitations of claims 1, upon which claim 10 depends. Kumara discloses the determination of multiple payment accounts to recommend to a user based on the location of the user. Kumara. however, does not disclose the following limitation while Do does teach the following limitation: The system according to claim 1, wherein the location information of the user device further includes at least one of sound information detected by a microphone of the user device or light information obtained by a camera of the user device. (See column 10, lines 41-60, Column 6, lines 28-33) Do teaches that location information can be determined by detecting sound using the microphone of a mobile device.",
"It would have been obvious to one of ordinary skill in the art at the effective filing date of the invention to include in the payment account recommendation system of Kumara the ability to determine location based on sound as in Do because the claimed invention is merely a combination of old elements, and in the combination the elements would perform the same function as they do separately. One of ordinary skill in the art at the effective filing date of the invention would have been motivated to make this combination so that location information could be determined in other ways besides GPS.",
"13. Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Kumara in view of Grenier and further in view of Do. As per Claim 11 The following limitations are disclosed by Kumara: All of the limitations of claims 1 and 10, upon which claim 11 depends. Kumara discloses the determination of multiple payment accounts to recommend to a user based on the location of the user. Kumara. however, does not disclose the following limitation while Grenier does teach the following limitation: The system according to claim 10, wherein the location information further includes at least the sound information detected by the microphone of the user device, when a plurality of merchants is identified based on the location information (See [0062]-[0064]) Grenier teaches that a list of merchants can be displayed to the user based on the location of the user and that the user can select the merchant or merchants displayed. It would have been obvious to one of ordinary skill in the art at the effective filing date of the invention to include in the payment account recommendation system of Kumara the ability to select a merchant based on location as in Grenier because the claimed invention predictably improves a known system with a known technique; in that the known payment account recommendation system of Kumara could be benefited by customer's having access to merchant information in their area.",
"One of ordinary skill in the art at the effective filing date of the invention would have been motivated to make this combination so that users would be able to have merchant information in their area which would make it more likely that they would visit those merchants. Kumara and Grenier together, however, do not disclose the following limitation while Do does teach the following limitation: All of the limitations of claim 10, upon which claim 11 depends, filtering the sound information detected by the microphone of the user device to identify at least one of a predetermined sound or speech of a predetermined user;(See column 9, lines 1-9) Do teaches that location information can be determined by detecting sound using the microphone of a mobile device.",
"It would have been obvious to one of ordinary skill in the art at the effective filing date of the invention to include in the payment account Conclusion Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a). Any inquiry concerning this communication or earlier communications from the examiner should be directed to DAVID P SHARVIN whose telephone number is (571)272-9863. The examiner can normally be reached M-F 9 am - 5 pm EST. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Calvin Hewitt II can be reached on 571-272-6709.",
"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. /DAVID P. SHARVIN/ Primary Examiner Art Unit 3692 /DAVID P SHARVIN/Primary Examiner, Art Unit 3692"
] | https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-01-16.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
PER CURIAM: Javon Stephenson seeks to appeal the district court’s order dismissing his Fed.R.Civ.P. 60(b) motions, dismissing claims that were not particularized and granting his motion to amend his complaint to add claims under the First Amendment and the Religious Land Use and Institutionalized Persons Act. This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2012), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2012); Fed.R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-46, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The order Stephenson seeks to appeal is neither a final order nor an appealable interlocutory or collateral order. Accordingly, we dismiss the appeal for lack of jurisdiction. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.
DISMISSED. | 11-05-2022 | [
"PER CURIAM: Javon Stephenson seeks to appeal the district court’s order dismissing his Fed.R.Civ.P. 60(b) motions, dismissing claims that were not particularized and granting his motion to amend his complaint to add claims under the First Amendment and the Religious Land Use and Institutionalized Persons Act. This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2012), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2012); Fed.R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-46, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).",
"The order Stephenson seeks to appeal is neither a final order nor an appealable interlocutory or collateral order. Accordingly, we dismiss the appeal for lack of jurisdiction. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. DISMISSED."
] | https://www.courtlistener.com/api/rest/v3/opinions/8459082/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Title: To James Madison from John Norvell, 13 August 1814 (letter not found) From: Norvell, John To: Madison, James
¶ From John Norvell. Letter not found. 13 August 1814. Acknowledged in JM to Norvell, 15 Aug. 1814. Probably asked JM’s opinion on Norvell’s proposal “to establish at the seat of government a Weekly Political Recorder, in octavo form, to comprise within its plan the publication of important state and fiscal papers, a weekly summary of passing events, and political essays on interesting national topics, avoiding as much as possible the local and personal altercations of the day” (Norvell to George W. Campbell, 13 Aug. 1814, DLC; docketed by JM). | 08-13-1814 | [
"Title: To James Madison from John Norvell, 13 August 1814 (letter not found) From: Norvell, John To: Madison, James ¶ From John Norvell. Letter not found. 13 August 1814. Acknowledged in JM to Norvell, 15 Aug. 1814. Probably asked JM’s opinion on Norvell’s proposal “to establish at the seat of government a Weekly Political Recorder, in octavo form, to comprise within its plan the publication of important state and fiscal papers, a weekly summary of passing events, and political essays on interesting national topics, avoiding as much as possible the local and personal altercations of the day” (Norvell to George W. Campbell, 13 Aug. 1814, DLC; docketed by JM)."
] | https://founders.archives.gov/API/docdata/Madison/03-08-02-0105 | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Judgment unanimously,affirmed, with, costs. No opinion. Present— Hirschberg, P. J., Jenks, Hooker, Rich and Miller, JJ. | 01-06-2022 | [
"Judgment unanimously,affirmed, with, costs. No opinion. Present— Hirschberg, P. J., Jenks, Hooker, Rich and Miller, JJ."
] | https://www.courtlistener.com/api/rest/v3/opinions/5200573/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Tom Glaze, Justice. This is an appeal from a partition suit involving 18.5 acres in Conway County. Appellant received an undivided one-half interest as a tenant in common in this acreage in her divorce settlement with Isaac Marshall, but the description of this acreage was omitted from the parties’ divorce decree. Isaac Marshall subsequently remarried, and he and his new wife deeded the 18.5 acres to Merlen Watson on July 22,1980. After a subsequent series of conveyances by deeds to and from other parties, the title to this disputed property was eventually transferred by warranty deed on November 10, 1982, to Emmet, Carolyn, Lynnon and Martha Gadberry. All the deeds were recorded, but the Marshalls’ divorce decree was not shown in the chain of title. The appellant never transferred her interest in any of the conveyances concerning this acreage. She alleges that she first found out that the property had been deeded to someone else on November 11,1986, when the Gadberrys’ attorney requested her to execute a quitclaim deed. The appellant filed a partition suit against the Gadberrys on December 7,1987. In the Gadberrys’ answer, they affirmatively pled, among other things, that the appellant’s cause of action was barred by the seven-year statute of limitations set out in Ark. Code Ann. § 18-61-101(a)(1987). Based upon the Gadberry’s response and argument, the trial court granted a partial summary judgment in their favor.1 We find no error, and therefore affirm. Section 18-61-101 (a) provides that an action brought for any lands may not be brought after seven years once the person’s right to commence the suit has accrued. However, appellant contends that no claim of adverse possession was alleged by the appellees that would have invoked the application of this provision, and that she only became aware of such a claim when she received appellees’ quitclaim deed on November 11, 1986. Actually, appellant premises her entire argument on appeal on the line of cases that hold one tenant in common cannot claim adverse possession against a co-tenant by the mere act of occupancy. See Phillips v. Carter, 222 Ark. 724, 263 S.W.2d 80 (1953); Jones v. Morgan, 196 Ark. 1153, 121 S.W.2d 96 (1938). Those cases and rule of law simply are not applicable to the present situation. Here, as discussed earlier, Isaac Marshall, appellant’s co-tenant, triggered a series of deed conveyances of the disputed acreage to third parties. It is established law that when a co-tenant executes a deed to a stranger to the title, describing the entire land, and such grantee enters into exclusive possession under such deed, then the deed constitutes color of title, and such entry commences the running of limitation in favor of the grantee and against all co-tenants of the grantor. See Watkins v. Johnson, 237 Ark. 184, 372 S.W.2d 243 (1963). In summary, our review of the record reflects that the property in question was deeded by the appellant’s former husband, Isaac Marshall, to a “stranger in title” on July 22,1980. That conveyance commenced the running of the seven-year statute of limitations. The successors in title, including the Gadberrys, were deeded title to the entire 18.5 acres with no mention of appellant as a co-tenant. Since the July 1980 conveyance, appellees have held possession of the property. The appellant did not file her suit until December 7, 1987, or after the statute of limitations had expired. In view of the foregoing, we are required to affirm the chancellor’s holding that the appellant’s cause of action against the “stranger in title” is barred by the statute of limitations. While another claim was still pending, the trial court found no just reason for delaying entry of judgment on this one adverse possession claim from which appellant brings this appeal. We limit our review to the issue raised by the parties, but note that some question exists as to whether appellant’s claim for relief should have been one in ejectment rather than for partition, since this dispute involves a number of deeds to third parties, who hold adversely to her. See Simmons v. Turner, 171 Ark. 96, 283 S.W.2d 47 (1926). | 09-07-2022 | [
"Tom Glaze, Justice. This is an appeal from a partition suit involving 18.5 acres in Conway County. Appellant received an undivided one-half interest as a tenant in common in this acreage in her divorce settlement with Isaac Marshall, but the description of this acreage was omitted from the parties’ divorce decree. Isaac Marshall subsequently remarried, and he and his new wife deeded the 18.5 acres to Merlen Watson on July 22,1980. After a subsequent series of conveyances by deeds to and from other parties, the title to this disputed property was eventually transferred by warranty deed on November 10, 1982, to Emmet, Carolyn, Lynnon and Martha Gadberry. All the deeds were recorded, but the Marshalls’ divorce decree was not shown in the chain of title. The appellant never transferred her interest in any of the conveyances concerning this acreage. She alleges that she first found out that the property had been deeded to someone else on November 11,1986, when the Gadberrys’ attorney requested her to execute a quitclaim deed.",
"The appellant filed a partition suit against the Gadberrys on December 7,1987. In the Gadberrys’ answer, they affirmatively pled, among other things, that the appellant’s cause of action was barred by the seven-year statute of limitations set out in Ark. Code Ann. § 18-61-101(a)(1987). Based upon the Gadberry’s response and argument, the trial court granted a partial summary judgment in their favor.1 We find no error, and therefore affirm. Section 18-61-101 (a) provides that an action brought for any lands may not be brought after seven years once the person’s right to commence the suit has accrued. However, appellant contends that no claim of adverse possession was alleged by the appellees that would have invoked the application of this provision, and that she only became aware of such a claim when she received appellees’ quitclaim deed on November 11, 1986. Actually, appellant premises her entire argument on appeal on the line of cases that hold one tenant in common cannot claim adverse possession against a co-tenant by the mere act of occupancy.",
"See Phillips v. Carter, 222 Ark. 724, 263 S.W.2d 80 (1953); Jones v. Morgan, 196 Ark. 1153, 121 S.W.2d 96 (1938). Those cases and rule of law simply are not applicable to the present situation. Here, as discussed earlier, Isaac Marshall, appellant’s co-tenant, triggered a series of deed conveyances of the disputed acreage to third parties. It is established law that when a co-tenant executes a deed to a stranger to the title, describing the entire land, and such grantee enters into exclusive possession under such deed, then the deed constitutes color of title, and such entry commences the running of limitation in favor of the grantee and against all co-tenants of the grantor. See Watkins v. Johnson, 237 Ark. 184, 372 S.W.2d 243 (1963). In summary, our review of the record reflects that the property in question was deeded by the appellant’s former husband, Isaac Marshall, to a “stranger in title” on July 22,1980. That conveyance commenced the running of the seven-year statute of limitations. The successors in title, including the Gadberrys, were deeded title to the entire 18.5 acres with no mention of appellant as a co-tenant. Since the July 1980 conveyance, appellees have held possession of the property. The appellant did not file her suit until December 7, 1987, or after the statute of limitations had expired.",
"In view of the foregoing, we are required to affirm the chancellor’s holding that the appellant’s cause of action against the “stranger in title” is barred by the statute of limitations. While another claim was still pending, the trial court found no just reason for delaying entry of judgment on this one adverse possession claim from which appellant brings this appeal. We limit our review to the issue raised by the parties, but note that some question exists as to whether appellant’s claim for relief should have been one in ejectment rather than for partition, since this dispute involves a number of deeds to third parties, who hold adversely to her.",
"See Simmons v. Turner, 171 Ark. 96, 283 S.W.2d 47 (1926)."
] | https://www.courtlistener.com/api/rest/v3/opinions/7824624/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DETAILED ACTION Response to Amendment Claims 28, 30-41, and 43-47 are pending. Claims 28, 30-41, and 43-47 are amended directly or by dependency on an amended claim. Claims 29 and 42 are cancelled. Response to Arguments Applicant’s arguments, see page 9, filed June 22, 2021, with respect to the objection to claim 42 and its concurrent cancellation have been fully considered and are persuasive. The objection to claim 42 has been withdrawn. Applicant's arguments see pages 9-10 filed June 22, 2021 with respect to the double patenting rejections of claims 28, 30-35, 36, and 37-40 on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 10360698, along with accompanying amendments received on the same date have been fully considered but they are not persuasive. The new limitation “the second image having a lower resolution than that of the first image” is taught by a secondary reference, used for the 35 USC 103 rejections of claims 28, 30-41, and 43-47, Chun. Chun teaches the amended material, “the second image having a lower resolution than that of the first image”, see rejection below. Applicant's arguments see pages 9-10 filed June 22, 2021 with respect to the double patenting rejections of 41 and 43-46 on the ground of nonstatutory double patenting as being unpatentable over claim 12 of U.S. Patent No. 10360698, along with accompanying amendments received on the same date have been fully considered but they are not persuasive. The new limitation “the second image having a lower resolution than that of the first image” is taught by a secondary reference, used for the 35 USC 103 rejections of claims 28, 30-41, and 43-47, Chun. Chun teaches the amended material, “the second image having a lower resolution than that of the first image”, see rejection below. Applicant's arguments see pages 9-10 filed June 22, 2021 with respect to the double patenting rejections of claim 47 on the ground of nonstatutory double patenting as being unpatentable over claim 17 of U.S. Patent No. 10360698, along with accompanying amendments received on the same date have been fully considered but they are not persuasive. The new limitation “the second image having a lower resolution than that of the first image” is taught by a secondary reference, used for the 35 USC 103 rejections of claims 28, 30-41, and 43-47, Chun. Chun teaches the amended material, “the second image having a lower resolution than that of the first image”, see rejection below. Applicant's arguments see pages 10-11 filed June 22, 2021 with respect to the 35 USC 103 rejections of claims 28, 30-33 and 40-47 with respect to the accompanying amendments received on the same date have been fully considered but they are not persuasive. A detailed response follows, however, the arguments are also moot in view of the new grounds of rejection with respect to the added secondary reference, “Zoom-in micro tomography with the combination of full and limited field-of-view projection data”. With respect to the argument on page 11 that, “The first and second imaging modalities 112,114 are neither scanning data being generated upon radiation that is produced by an X-ray source nor reconstructed based on a portion of the scanning data produced by an X-ray source”, examiner disagrees. As the Bal reference describes CT scans as being a type of scan that can be performed, this indicates use of an X-ray. With respect to arguments on pages 11-12 that, “Further, paragraph [0030] of Bal only discloses "the FOV of the first imaging modality 112 is greater (e.g., longer) than the FOV for the second imaging modality 114", "the first imaging modality 112 is an MR scan", and "the second imaging modality 114 is a PET scan". Nowhere of Bal discloses "the second region of the subject including the first region of the subject" as recited in amended claim 28”, examiner With respect to the argument on page 12 that Bal does not teach the new limitation “the second image having a lower resolution than that of the first image” examiner disagrees. Bal indicates “For example, MR scanning generally provides soft tissue morphological data and provides greater resolution of structural and functional characteristics of soft tissue, etc. PET scanning generally has a lower resolution but provides more useful information regarding the functional condition of the body tissues and systems such as the cardiovascular system” ([0003]) and “The motion vectors of the MR images are derived by means of post-processing and registration of the high resolution MR images to the reference gate of each bed” ([0036]) which indicates the different resolutions. Further, the technologies of PET /MR, PET /CT, SPECT /MR, SPECT /CT each have a different resolution inherent to the technology. As in the previous rejection, what is considered the first and second can be swapped. A larger FOV implies a lower resolution as it is essentially zooming out on a region. With respect to arguments on pages 12-13 indicating the images of Bal are created by different modalities, it is noted that the features upon which applicant relies (i.e., that the images are taken using the same x-ray source) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). All other arguments are based on similarity or dependency and are addressed by the above. In view of the above, examiner recommends filing a terminal disclaimer or further amending the claims to differentiate from the patents cited in the double patenting rejections, and incorporating the claims previously indicated as allowable. Double Patenting The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); 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 nonstatutory 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 § 2146 et seq. 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).
Claims 28 and 36 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 10360698 in view of Chun et al. (“Zoom-in micro tomography with the combination of full and limited field-of-view projection data”). Although the claims at issue are not identical, they are not patentably distinct from each other because claim 1 of US 10360698 is the same as claims 28 + 36 of the current application with the exceptions of the highlighted language, which is not sufficient to make these claims patentably distinct, and Chun et al. teach the amended portion (high-resolution zoom-in imaging of a local region inside a large object. By combining two kinds of projection data, one from the full field-of-view (FOV) scan of the whole object and the other from the limited FOV scan of the region of interest, we have obtained zoomed-in images of the region of interest. With computer simulations, we have found that the proposed zoom-in imaging technique has superb spatial resolution, comparable to that of local tomography, without any contrast anomalies commonly appearing in conventional local tomography, Zoom-in imaging results of bony tissues with the spatial resolution of 20μm suggest that zoom-in micro tomography can be greatly used for high resolution imaging of a local region in small animal imaging studies abstract, In this study, we introduce an x-ray micro tomography system which has a zoom-in imaging capability, i.e., high resolution imaging of a local ROI inside a large object, in small Claims 30-35 and 37-40 are rejected by dependency.
Current Application: 28. A method implemented on a medical imaging device having at least one processor, a storage medium and a communication platform connected to a network, the method comprising: obtaining scanning data relating to a subject, the scanning data being generated upon radiation that is produced by an X-ray source; reconstructing a first image based on a first portion of the scan data, the first image representing a first region of the subject in a first field of view (FOV); reconstructing a second image based on a second portion of the scan data, the second image representing a second region of the subject in a second FOV, the second FOV being larger than the first FOV and the second region of the and the second image having a lower resolution than that of the first image; generating, based on a combination of the first image and the second image, a third image. 36. The method of claim 28, wherein generating, based on a combination of the first image and the second image, a third image comprises: weighting the first image based on comparing a first radial distance of a pixel in the first image with a first radius of a first circular portion in the first image and a second radius of a second circular portion in the first image, and weighting the second image based on comparing a second radial distance of a pixel in the second image with the first radius and the second radius, wherein the first circular portion and the second circular portion co-center in the first image and the second radius is greater than the first radius. US 10360698 B2 1. A method implemented on a medical imaging device having at least one processor, a non-transitory storage medium and a communication platform connected to a network, the method comprising: obtaining scan data relating to a subject; reconstructing a first image based on a first portion of the scan data corresponding to a first field of view of the scan data; reconstructing a second image based on a second portion of the scan data corresponding to a second field of view of the scan data; generating a third image based on weightings of the first image and the second image; and displaying at least the third image on a graphical user interface (GUI), wherein weighting of the first image
Claim 41 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 12 of U.S. Patent No. 10360698 in view of Chun et al. (“Zoom-in micro tomography with the combination of full and limited field-of-view projection data”). Although the claims at issue are not identical, they are not patentably distinct from each other because claim 12 of US 10360698 is the same as claim 41 of the current application with the exceptions of the highlighted language, making claim 12 a narrower version of claim 41 of the current application, which is not sufficient to make these claims patentably distinct, and Chun et al. teach the amended portion (high-resolution zoom-in imaging of a local region inside a large object. By combining two kinds of projection data, one from the full field-of-view (FOV) scan of the whole object and the other from the limited FOV scan of the region of interest, we have obtained zoomed-in images of the region of interest. With computer simulations, we have found that the proposed zoom-in imaging technique has superb spatial resolution, comparable to that of local tomography, without any contrast anomalies commonly appearing in conventional local tomography, Zoom-in imaging results of bony tissues with the spatial resolution of 20μm suggest that zoom-in micro tomography can be greatly used for high resolution imaging of a local region in small animal imaging studies abstract, In this study, we introduce an x-ray micro tomography system which has a zoom-in imaging capability, i.e., high resolution imaging of a local ROI inside a large object, in small animal studies, part I, The nominal spatial resolution of fig. 2(a) is 83 μm. Due to the limited spatial resolution, the trabecular bone structure is not clearly seen, The nominal spatial resolution of fig. 2(d) is 20μm. Figure 3 shows the in vivo image of a rat vertebra. Despite the respiratory motion, the zoom-in micro tomography image clearly shows the fine trabecular structure in the vertebra, part III). Claims 43-46 are rejected by dependency.
Current Application: 41. A medical imaging system having at least one processor, a non-transitory storage medium storing a set of instructions and a communication platform connected to a network, wherein when executing the set of instructions, the at least one processor causes the system to perform operations including: obtaining scanning data relating to a subject, the scanning data being generated upon radiation that is produced by an X-ray source; reconstructing a first image based on a first portion of the scan data, the first image representing a first region of the subject in a first field of view (FOV); reconstructing a second image based on a second portion of the scan data, the second image representing a second region of the subject in a second FOV, the second FOV being larger than the first FOV and the second region of the subject including the first region of the subject and the second image having a lower resolution than that of the first image; generating, based on a combination of the first image and the second image, a third image US 10360698 B2 12. A medical imaging system having at least one processor, a non-transitory storage medium storing a set of instructions and a communication platform connected to a network, wherein when executing the set of instructions, the at least one processor causes the system to: obtain scan data relating to a subject; reconstruct a first image based on first portion of the scan data corresponding to a first field of view of the scan data; reconstruct a second image based on second portion of the scan data corresponding to the second field of view of the scan data; generate a third image based on weightings of the first image and the second image; and display at least the third image on a graphical user interface (GUI), wherein weighting of the first image is based on comparing a first radial distance of a pixel in the first image with a first radius of a first circular portion in the first image and a second radius of a second circular portion in the first image, and weighting of the second image is based on comparing a second radial distance of a pixel in the second image with the first radius and the second radius, wherein the first circular portion and the second circular portion co-center in the first image and the second radius is greater than the first radius
Claim 47 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 17 of U.S. Patent No. 10360698 in view of Chun et al. (“Zoom-in micro tomography with the combination of full and limited field-of-view projection data”). Although the claims at issue are not identical, they are not patentably distinct from each other because claim 17 of US 10360698 is the same as claim 47 of the current application with the exceptions of the highlighted language, making claim 17 a narrower version of claim 47 of the current application, which is not sufficient to make these claims patentably distinct, and Chun et al. teach the amended portion (high-resolution zoom-in imaging of a local region inside a large object. By combining two kinds of projection data, one from the full field-of-view (FOV) scan of the whole object and the other from the limited FOV scan of the region of interest, we have obtained zoomed-in images of the region of interest. With computer simulations, we have found that the proposed zoom-in imaging technique has superb spatial resolution, comparable to that of local tomography, without any contrast anomalies commonly appearing in conventional local .
Current Application: 47. A non-transitory computer readable medium storing instructions, the instructions, when executed by a computer, causing the computer to implement a method, comprising: obtaining scanning data relating to a subject, the scanning data being generated upon radiation that is produced by an X-ray source; reconstructing a first image based on a first portion of the scan data, the first image representing a first region of the subject in a first field of view (FOV); reconstructing a second image based on a second portion of and the second image having a lower resolution than that of the first image; generating, based on a combination of the first image and the second image, a third image US 10360698 B2 17. A non-transitory computer readable medium storing instructions, the instructions, when executed by a computer, causing the computer to implement a method, comprising: obtaining scan data relating to a subject; reconstructing a first image based on a first portion of the scan data corresponding to a first field of view of the scan data; reconstructing a second image based on a second portion of the scan data corresponding to a second field of view of the scan data; generating a third image based on weightings of the first image and the second and displaying at least the third image on a graphical user interface (GUI), wherein weighting of the first image is based on comparing a first radial distance of a pixel in the first image with a first radius of a first circular portion in the first image and a second radius of a second circular portion in the first image, and weighting of the second image is based on comparing a second radial distance of a pixel in the second image with the first radius and the second radius, wherein the first circular portion and the second circular portion co-center in the first image and the second radius is greater than the first radius
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 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 28, 30, 31, 4, 41, 43, 44 and 47 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bal et al. (US 20150289832 A1) in view of Chun et al. (“Zoom-in micro tomography with the combination of full and limited field-of-view projection data”).
Regarding claims 28 and 41 and 47, Bal et al. disclose a method implemented on a medical imaging device having at least one processor, a storage medium and a communication platform connected to a network, the method comprising, and medical imaging system having at least one processor, a non-transitory storage medium storing a set of instructions and a communication platform connected to a network, wherein when executing the set of instructions, the at least one processor causes the system to perform operations including, and non-transitory computer readable medium storing instructions, the instructions, when executed by a computer, causing the computer to implement a method, comprising: obtaining scanning data relating to a subject, the scanning data being generated upon radiation that is produced by an X-ray source (Multi-modality imaging systems perform diagnostic scans using multiple modalities, such as, for example, magnetic resonance ( MR/MRI), computed tomography ( CT), [0003], The multi-modality imaging apparatus 100 may be configured for two or more imaging modalities, such as, for example, combined PET /MR, PET /CT, SPECT /MR, SPECT /CT, and/or
Bal et al. do not use the phrase third image. It would have been obvious at the time of filing that as frames generated from different modalities are combined, this combined image can be interpreted as a third image.
To further teach the second resolution, a secondary reference is added herein.
Chun et al. teach obtaining scanning data relating to a subject, the scanning data being generated upon radiation that is produced by an X-ray source (abstract, part II); reconstructing a first image based on a first portion of the scan data, the first image representing a first region of the subject in a first field of view (FOV) (limited FOV scan of the region of interest, zoom in, abstract, part II); reconstructing a second image based on a second portion of the scan data, the second image representing a second region of the subject in a second FOV, the second FOV being larger than the first FOV and the second region of the subject including the first region of the subject (full field-of-view (FOV) scan of the whole object, abstract, part II), and the second image having a lower resolution than that of the first image (high-resolution zoom-in imaging of a local region inside a large object. By combining two kinds of projection data, one from the full field-of-view (FOV) scan of the whole object and the other from the limited FOV scan of the region of interest, we have obtained zoomed-in images of the region of interest. With computer simulations, we have found that the proposed zoom-in imaging technique has superb spatial PNG media_image1.png 308 487 media_image1.png Greyscale , Fig. 1).
Bal et al. and Chun et al. are in the same art of X-ray source images (Bal et al., [0025]; Chun et al., abstract). The combination of Chun et al. with Bal et al. enables the use of two different resolution images when combining images. It would have been obvious at the time of filing to
Regarding claims 30 and 43, Bal et al. and Chun et al. disclose the method and system of claims 28 and 41. Bal et al. further disclose detecting a physiological signal of the subject, wherein: reconstructing a first image based on a first portion of the scan data comprises: extracting the first portion of the scan data based on the physiological signal; and reconstructing a second image based on a second portion of the scan data comprises: extracting the second portion of the scan data based on the physiological signal (gating is performed based on an acquired physiological signals to determine gate locations (in time) and a width (in time duration) for the gates, [0028],” Breathing patterns of a patient can change between beds, resulting in artifacts during a whole body reconstruction process due to mismatched motion vectors in the PET mu-map 200a and 3D sensitivity terms of the PET imaging modality. By utilizing a mu-map, motion vectors, 3D sensitivity term, and/or a reconstruction volume with a longer FOV during reconstruction, the artifacts generated during whole body reconstruction are reduced”, [0032]) [note – “extracting… based on” is interpreted in this case as time and length of extraction]
Regarding claims 31 and 44, Bal et al. and Chun et al. disclose the method and system of claims 28 and 43. Bal et al. further disclose the physiological signal of the subject includes an electrocardiogram signal or a respiration signal of the subject (the first modality data is binned (e.g., gated) and reconstructed into discrete states of a motion cycle, such as, for example, a respiratory cycle, [0036], elongated motion vectors and/or attenuation correction maps of the first imaging modality 112 eliminate attenuation mismatch at the edge of each bed of the second imaging modality 114 caused by respiratory motion, [0037], each gate (e.g., each discrete state of the respiratory cycle) is reconstructed from the elongated motion vectors and/or mu-maps, the derived gate norm, and a plurality of second-modality data for each gate, [0038]).
Regarding claim 40, Bal et al. and Chun et al. disclose the method of claim 28. Bal et al. further disclose displaying at least the third image on a graphical user interface (GUI) ([0046]).
Claims 32 and 45 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bal et al. (US 20150289832 A1) and Chun et al. (“Zoom-in micro tomography with the combination of full and limited field-of-view projection data”) as applied to claims 30 and 43 above, further in view of Langan et al. (US 20160206262 A1).
Regarding claims 32 and 45, Bal et al. and Chun et al. disclose the method and system of claims 30 and 43. Bal et al. and Chun et al. do not explicitly disclose extracting the first portion of the scan data based on the physiological signal comprises: determining a first weighting function associated with the first FOV; extracting the first portion of the scan data based on the physiological signal and the first weighting function associated with the first FOV.
Bal et al. and Langan et al. are in the same art of X-ray/CT imaging (Bal et al., abstract; Langan et al., [0022]). The combination of Langan et al. with Bal et al. and Chun et al. will enable the weighting based on a physiological function. It would have been obvious at the time of filing to one of ordinary skill in the art to combine the weighting of Langan et al. with the invention of Bal et al. and Chun et al. as this was known at the time of the invention, the combination would have predictable results, and as Bal et al. indicate respiration is known to otherwise cause artifacts (Bal et al., [0004], [0037]) and Langan et al. indicate this weighting will lead to an accurate reconstruction in view of the patient motion ([0051]).
Claims 33 and 46 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bal et al. (US 20150289832 A1) and Chun et al. (“Zoom-in micro tomography with the combination of full and limited field-of-view projection data”) and Langan et al. (US 20160206262 A1) as applied to claims 32 and 45 above, further in view of Ra et al. (US 20150243045 A1).
Regarding claims 33 and 46, Bal et al. and Chun et al. and Langan et al. disclose the method and system of claims 32 and 45. Bal et al. a and Chun et al. nd Langan et al. do not explicitly disclose extracting the second portion of the scan data based on the physiological signal comprises: determining a second weighting function associated with the second FOV; extracting the second portion of the scan data based on the physiological signal and the second weighting function associated with the second FOV.
Ra et al. teach determining a second weighting function associated with the second FOV; extracting the second portion of the scan data based on the physiological signal and the second weighting function associated with the second FOV (CT, [0280], “In detail, when the motion amount of the object and the time have a linear relationship, the data acquirer 710 may respectively match a zero MVF and the MVF that indicates a motion amount between the first and second images 1310 and 1320, with a first weighting value and a second weighting value”, [0342], “When the object is a person and a tomography image to be acquired is a cross-sectional tomography image as illustrated in FIG. 31A, for example, a lot of motions are generated in two directions as illustrated by a double-head arrow 3330 along the front and back sides of the person due to the breathing or heartbeat of the person”, [0563]).
Bal et al. and Langan et al. and Ra et al. are in the same art of X-ray/CT imaging (Bal et al., abstract; Langan et al., [0022]; Ra et al., [0154]). The combination of Ra et al. with Bal et al. and Chun et al. and Langan et al. will enable use of a second weighting factor. It would have been obvious at the time of filing to one of ordinary skill in the art to combine the weighting of Ra et al. with the invention of Bal et al. and Chun et al. and Langan et al. as this was known at the time of the invention, the .
Allowable Subject Matter Claims 34 and 35 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 and upon filing of a terminal disclaimer to overcome the double patenting rejections. The following art is cited as relevant but not sufficient to disclose, teach or fairly suggest the claimed limitations: US 10832451 B2 (Images reconstructed from image data acquired at different times or phases may have differing levels of image contrast. Applying a different regularization term (e.g., a second regularization term) for the second respiratory phase may be more appropriate and produce higher quality images of the heart than applying the first weighting); “Motion-Compensated and Gated Cone Beam Filtered Back-Projection for 3-D Rotational X-Ray Angiography” (Furthermore, gated reconstructions are calculated by weighting the projections according to their cardiac phase without using a motion vector field). Claims 36-39 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 and upon filing of a terminal disclaimer to overcome the double patenting rejections. Reasons for allowance for these claims are the same as those given for 15/638360. 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 MICHELLE M ENTEZARI HAUSMANN whose telephone number is (571)270-5084. The examiner can normally be reached on 10-7 M-F. 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, VINCENT M RUDOLPH can be reached on (571)272-8243. 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.
/MICHELLE M ENTEZARI/Primary Examiner, Art Unit 2661 | 2021-07-10T10:50:12 | [
"DETAILED ACTION Response to Amendment Claims 28, 30-41, and 43-47 are pending. Claims 28, 30-41, and 43-47 are amended directly or by dependency on an amended claim. Claims 29 and 42 are cancelled. Response to Arguments Applicant’s arguments, see page 9, filed June 22, 2021, with respect to the objection to claim 42 and its concurrent cancellation have been fully considered and are persuasive. The objection to claim 42 has been withdrawn. Applicant's arguments see pages 9-10 filed June 22, 2021 with respect to the double patenting rejections of claims 28, 30-35, 36, and 37-40 on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 10360698, along with accompanying amendments received on the same date have been fully considered but they are not persuasive. The new limitation “the second image having a lower resolution than that of the first image” is taught by a secondary reference, used for the 35 USC 103 rejections of claims 28, 30-41, and 43-47, Chun.",
"Chun teaches the amended material, “the second image having a lower resolution than that of the first image”, see rejection below. Applicant's arguments see pages 9-10 filed June 22, 2021 with respect to the double patenting rejections of 41 and 43-46 on the ground of nonstatutory double patenting as being unpatentable over claim 12 of U.S. Patent No. 10360698, along with accompanying amendments received on the same date have been fully considered but they are not persuasive. The new limitation “the second image having a lower resolution than that of the first image” is taught by a secondary reference, used for the 35 USC 103 rejections of claims 28, 30-41, and 43-47, Chun. Chun teaches the amended material, “the second image having a lower resolution than that of the first image”, see rejection below. Applicant's arguments see pages 9-10 filed June 22, 2021 with respect to the double patenting rejections of claim 47 on the ground of nonstatutory double patenting as being unpatentable over claim 17 of U.S. Patent No.",
"10360698, along with accompanying amendments received on the same date have been fully considered but they are not persuasive. The new limitation “the second image having a lower resolution than that of the first image” is taught by a secondary reference, used for the 35 USC 103 rejections of claims 28, 30-41, and 43-47, Chun. Chun teaches the amended material, “the second image having a lower resolution than that of the first image”, see rejection below. Applicant's arguments see pages 10-11 filed June 22, 2021 with respect to the 35 USC 103 rejections of claims 28, 30-33 and 40-47 with respect to the accompanying amendments received on the same date have been fully considered but they are not persuasive. A detailed response follows, however, the arguments are also moot in view of the new grounds of rejection with respect to the added secondary reference, “Zoom-in micro tomography with the combination of full and limited field-of-view projection data”. With respect to the argument on page 11 that, “The first and second imaging modalities 112,114 are neither scanning data being generated upon radiation that is produced by an X-ray source nor reconstructed based on a portion of the scanning data produced by an X-ray source”, examiner disagrees. As the Bal reference describes CT scans as being a type of scan that can be performed, this indicates use of an X-ray.",
"With respect to arguments on pages 11-12 that, “Further, paragraph [0030] of Bal only discloses \"the FOV of the first imaging modality 112 is greater (e.g., longer) than the FOV for the second imaging modality 114\", \"the first imaging modality 112 is an MR scan\", and \"the second imaging modality 114 is a PET scan\". Nowhere of Bal discloses \"the second region of the subject including the first region of the subject\" as recited in amended claim 28”, examiner With respect to the argument on page 12 that Bal does not teach the new limitation “the second image having a lower resolution than that of the first image” examiner disagrees. Bal indicates “For example, MR scanning generally provides soft tissue morphological data and provides greater resolution of structural and functional characteristics of soft tissue, etc.",
"PET scanning generally has a lower resolution but provides more useful information regarding the functional condition of the body tissues and systems such as the cardiovascular system” ([0003]) and “The motion vectors of the MR images are derived by means of post-processing and registration of the high resolution MR images to the reference gate of each bed” ([0036]) which indicates the different resolutions. Further, the technologies of PET /MR, PET /CT, SPECT /MR, SPECT /CT each have a different resolution inherent to the technology.",
"As in the previous rejection, what is considered the first and second can be swapped. A larger FOV implies a lower resolution as it is essentially zooming out on a region. With respect to arguments on pages 12-13 indicating the images of Bal are created by different modalities, it is noted that the features upon which applicant relies (i.e., that the images are taken using the same x-ray source) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). All other arguments are based on similarity or dependency and are addressed by the above. In view of the above, examiner recommends filing a terminal disclaimer or further amending the claims to differentiate from the patents cited in the double patenting rejections, and incorporating the claims previously indicated as allowable.",
"Double Patenting The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); 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 nonstatutory 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 § 2146 et seq. 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). Claims 28 and 36 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No.",
"10360698 in view of Chun et al. (“Zoom-in micro tomography with the combination of full and limited field-of-view projection data”). Although the claims at issue are not identical, they are not patentably distinct from each other because claim 1 of US 10360698 is the same as claims 28 + 36 of the current application with the exceptions of the highlighted language, which is not sufficient to make these claims patentably distinct, and Chun et al. teach the amended portion (high-resolution zoom-in imaging of a local region inside a large object. By combining two kinds of projection data, one from the full field-of-view (FOV) scan of the whole object and the other from the limited FOV scan of the region of interest, we have obtained zoomed-in images of the region of interest.",
"With computer simulations, we have found that the proposed zoom-in imaging technique has superb spatial resolution, comparable to that of local tomography, without any contrast anomalies commonly appearing in conventional local tomography, Zoom-in imaging results of bony tissues with the spatial resolution of 20μm suggest that zoom-in micro tomography can be greatly used for high resolution imaging of a local region in small animal imaging studies abstract, In this study, we introduce an x-ray micro tomography system which has a zoom-in imaging capability, i.e., high resolution imaging of a local ROI inside a large object, in small Claims 30-35 and 37-40 are rejected by dependency.",
"Current Application: 28. A method implemented on a medical imaging device having at least one processor, a storage medium and a communication platform connected to a network, the method comprising: obtaining scanning data relating to a subject, the scanning data being generated upon radiation that is produced by an X-ray source; reconstructing a first image based on a first portion of the scan data, the first image representing a first region of the subject in a first field of view (FOV); reconstructing a second image based on a second portion of the scan data, the second image representing a second region of the subject in a second FOV, the second FOV being larger than the first FOV and the second region of the and the second image having a lower resolution than that of the first image; generating, based on a combination of the first image and the second image, a third image.",
"36. The method of claim 28, wherein generating, based on a combination of the first image and the second image, a third image comprises: weighting the first image based on comparing a first radial distance of a pixel in the first image with a first radius of a first circular portion in the first image and a second radius of a second circular portion in the first image, and weighting the second image based on comparing a second radial distance of a pixel in the second image with the first radius and the second radius, wherein the first circular portion and the second circular portion co-center in the first image and the second radius is greater than the first radius. US 10360698 B2 1. A method implemented on a medical imaging device having at least one processor, a non-transitory storage medium and a communication platform connected to a network, the method comprising: obtaining scan data relating to a subject; reconstructing a first image based on a first portion of the scan data corresponding to a first field of view of the scan data; reconstructing a second image based on a second portion of the scan data corresponding to a second field of view of the scan data; generating a third image based on weightings of the first image and the second image; and displaying at least the third image on a graphical user interface (GUI), wherein weighting of the first image Claim 41 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 12 of U.S. Patent No.",
"10360698 in view of Chun et al. (“Zoom-in micro tomography with the combination of full and limited field-of-view projection data”). Although the claims at issue are not identical, they are not patentably distinct from each other because claim 12 of US 10360698 is the same as claim 41 of the current application with the exceptions of the highlighted language, making claim 12 a narrower version of claim 41 of the current application, which is not sufficient to make these claims patentably distinct, and Chun et al. teach the amended portion (high-resolution zoom-in imaging of a local region inside a large object. By combining two kinds of projection data, one from the full field-of-view (FOV) scan of the whole object and the other from the limited FOV scan of the region of interest, we have obtained zoomed-in images of the region of interest. With computer simulations, we have found that the proposed zoom-in imaging technique has superb spatial resolution, comparable to that of local tomography, without any contrast anomalies commonly appearing in conventional local tomography, Zoom-in imaging results of bony tissues with the spatial resolution of 20μm suggest that zoom-in micro tomography can be greatly used for high resolution imaging of a local region in small animal imaging studies abstract, In this study, we introduce an x-ray micro tomography system which has a zoom-in imaging capability, i.e., high resolution imaging of a local ROI inside a large object, in small animal studies, part I, The nominal spatial resolution of fig. 2(a) is 83 μm.",
"Due to the limited spatial resolution, the trabecular bone structure is not clearly seen, The nominal spatial resolution of fig. 2(d) is 20μm. Figure 3 shows the in vivo image of a rat vertebra. Despite the respiratory motion, the zoom-in micro tomography image clearly shows the fine trabecular structure in the vertebra, part III). Claims 43-46 are rejected by dependency. Current Application: 41. A medical imaging system having at least one processor, a non-transitory storage medium storing a set of instructions and a communication platform connected to a network, wherein when executing the set of instructions, the at least one processor causes the system to perform operations including: obtaining scanning data relating to a subject, the scanning data being generated upon radiation that is produced by an X-ray source; reconstructing a first image based on a first portion of the scan data, the first image representing a first region of the subject in a first field of view (FOV); reconstructing a second image based on a second portion of the scan data, the second image representing a second region of the subject in a second FOV, the second FOV being larger than the first FOV and the second region of the subject including the first region of the subject and the second image having a lower resolution than that of the first image; generating, based on a combination of the first image and the second image, a third image US 10360698 B2 12.",
"A medical imaging system having at least one processor, a non-transitory storage medium storing a set of instructions and a communication platform connected to a network, wherein when executing the set of instructions, the at least one processor causes the system to: obtain scan data relating to a subject; reconstruct a first image based on first portion of the scan data corresponding to a first field of view of the scan data; reconstruct a second image based on second portion of the scan data corresponding to the second field of view of the scan data; generate a third image based on weightings of the first image and the second image; and display at least the third image on a graphical user interface (GUI), wherein weighting of the first image is based on comparing a first radial distance of a pixel in the first image with a first radius of a first circular portion in the first image and a second radius of a second circular portion in the first image, and weighting of the second image is based on comparing a second radial distance of a pixel in the second image with the first radius and the second radius, wherein the first circular portion and the second circular portion co-center in the first image and the second radius is greater than the first radius Claim 47 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 17 of U.S. Patent No.",
"10360698 in view of Chun et al. (“Zoom-in micro tomography with the combination of full and limited field-of-view projection data”). Although the claims at issue are not identical, they are not patentably distinct from each other because claim 17 of US 10360698 is the same as claim 47 of the current application with the exceptions of the highlighted language, making claim 17 a narrower version of claim 47 of the current application, which is not sufficient to make these claims patentably distinct, and Chun et al. teach the amended portion (high-resolution zoom-in imaging of a local region inside a large object. By combining two kinds of projection data, one from the full field-of-view (FOV) scan of the whole object and the other from the limited FOV scan of the region of interest, we have obtained zoomed-in images of the region of interest.",
"With computer simulations, we have found that the proposed zoom-in imaging technique has superb spatial resolution, comparable to that of local tomography, without any contrast anomalies commonly appearing in conventional local . Current Application: 47. A non-transitory computer readable medium storing instructions, the instructions, when executed by a computer, causing the computer to implement a method, comprising: obtaining scanning data relating to a subject, the scanning data being generated upon radiation that is produced by an X-ray source; reconstructing a first image based on a first portion of the scan data, the first image representing a first region of the subject in a first field of view (FOV); reconstructing a second image based on a second portion of and the second image having a lower resolution than that of the first image; generating, based on a combination of the first image and the second image, a third image US 10360698 B2 17. A non-transitory computer readable medium storing instructions, the instructions, when executed by a computer, causing the computer to implement a method, comprising: obtaining scan data relating to a subject; reconstructing a first image based on a first portion of the scan data corresponding to a first field of view of the scan data; reconstructing a second image based on a second portion of the scan data corresponding to a second field of view of the scan data; generating a third image based on weightings of the first image and the second and displaying at least the third image on a graphical user interface (GUI), wherein weighting of the first image is based on comparing a first radial distance of a pixel in the first image with a first radius of a first circular portion in the first image and a second radius of a second circular portion in the first image, and weighting of the second image is based on comparing a second radial distance of a pixel in the second image with the first radius and the second radius, wherein the first circular portion and the second circular portion co-center in the first image and the second radius is greater than the first radius 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 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 28, 30, 31, 4, 41, 43, 44 and 47 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bal et al. (US 20150289832 A1) in view of Chun et al. (“Zoom-in micro tomography with the combination of full and limited field-of-view projection data”). Regarding claims 28 and 41 and 47, Bal et al. disclose a method implemented on a medical imaging device having at least one processor, a storage medium and a communication platform connected to a network, the method comprising, and medical imaging system having at least one processor, a non-transitory storage medium storing a set of instructions and a communication platform connected to a network, wherein when executing the set of instructions, the at least one processor causes the system to perform operations including, and non-transitory computer readable medium storing instructions, the instructions, when executed by a computer, causing the computer to implement a method, comprising: obtaining scanning data relating to a subject, the scanning data being generated upon radiation that is produced by an X-ray source (Multi-modality imaging systems perform diagnostic scans using multiple modalities, such as, for example, magnetic resonance ( MR/MRI), computed tomography ( CT), [0003], The multi-modality imaging apparatus 100 may be configured for two or more imaging modalities, such as, for example, combined PET /MR, PET /CT, SPECT /MR, SPECT /CT, and/or Bal et al.",
"do not use the phrase third image. It would have been obvious at the time of filing that as frames generated from different modalities are combined, this combined image can be interpreted as a third image. To further teach the second resolution, a secondary reference is added herein. Chun et al. teach obtaining scanning data relating to a subject, the scanning data being generated upon radiation that is produced by an X-ray source (abstract, part II); reconstructing a first image based on a first portion of the scan data, the first image representing a first region of the subject in a first field of view (FOV) (limited FOV scan of the region of interest, zoom in, abstract, part II); reconstructing a second image based on a second portion of the scan data, the second image representing a second region of the subject in a second FOV, the second FOV being larger than the first FOV and the second region of the subject including the first region of the subject (full field-of-view (FOV) scan of the whole object, abstract, part II), and the second image having a lower resolution than that of the first image (high-resolution zoom-in imaging of a local region inside a large object.",
"By combining two kinds of projection data, one from the full field-of-view (FOV) scan of the whole object and the other from the limited FOV scan of the region of interest, we have obtained zoomed-in images of the region of interest. With computer simulations, we have found that the proposed zoom-in imaging technique has superb spatial PNG media_image1.png 308 487 media_image1.png Greyscale , Fig. 1). Bal et al. and Chun et al. are in the same art of X-ray source images (Bal et al., [0025]; Chun et al., abstract). The combination of Chun et al. with Bal et al. enables the use of two different resolution images when combining images. It would have been obvious at the time of filing to Regarding claims 30 and 43, Bal et al.",
"and Chun et al. disclose the method and system of claims 28 and 41. Bal et al. further disclose detecting a physiological signal of the subject, wherein: reconstructing a first image based on a first portion of the scan data comprises: extracting the first portion of the scan data based on the physiological signal; and reconstructing a second image based on a second portion of the scan data comprises: extracting the second portion of the scan data based on the physiological signal (gating is performed based on an acquired physiological signals to determine gate locations (in time) and a width (in time duration) for the gates, [0028],” Breathing patterns of a patient can change between beds, resulting in artifacts during a whole body reconstruction process due to mismatched motion vectors in the PET mu-map 200a and 3D sensitivity terms of the PET imaging modality.",
"By utilizing a mu-map, motion vectors, 3D sensitivity term, and/or a reconstruction volume with a longer FOV during reconstruction, the artifacts generated during whole body reconstruction are reduced”, [0032]) [note – “extracting… based on” is interpreted in this case as time and length of extraction] Regarding claims 31 and 44, Bal et al. and Chun et al. disclose the method and system of claims 28 and 43. Bal et al. further disclose the physiological signal of the subject includes an electrocardiogram signal or a respiration signal of the subject (the first modality data is binned (e.g., gated) and reconstructed into discrete states of a motion cycle, such as, for example, a respiratory cycle, [0036], elongated motion vectors and/or attenuation correction maps of the first imaging modality 112 eliminate attenuation mismatch at the edge of each bed of the second imaging modality 114 caused by respiratory motion, [0037], each gate (e.g., each discrete state of the respiratory cycle) is reconstructed from the elongated motion vectors and/or mu-maps, the derived gate norm, and a plurality of second-modality data for each gate, [0038]). Regarding claim 40, Bal et al.",
"and Chun et al. disclose the method of claim 28. Bal et al. further disclose displaying at least the third image on a graphical user interface (GUI) ([0046]). Claims 32 and 45 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bal et al. (US 20150289832 A1) and Chun et al. (“Zoom-in micro tomography with the combination of full and limited field-of-view projection data”) as applied to claims 30 and 43 above, further in view of Langan et al. (US 20160206262 A1). Regarding claims 32 and 45, Bal et al. and Chun et al. disclose the method and system of claims 30 and 43. Bal et al. and Chun et al. do not explicitly disclose extracting the first portion of the scan data based on the physiological signal comprises: determining a first weighting function associated with the first FOV; extracting the first portion of the scan data based on the physiological signal and the first weighting function associated with the first FOV.",
"Bal et al. and Langan et al. are in the same art of X-ray/CT imaging (Bal et al., abstract; Langan et al., [0022]). The combination of Langan et al. with Bal et al. and Chun et al. will enable the weighting based on a physiological function. It would have been obvious at the time of filing to one of ordinary skill in the art to combine the weighting of Langan et al. with the invention of Bal et al. and Chun et al. as this was known at the time of the invention, the combination would have predictable results, and as Bal et al. indicate respiration is known to otherwise cause artifacts (Bal et al., [0004], [0037]) and Langan et al.",
"indicate this weighting will lead to an accurate reconstruction in view of the patient motion ([0051]). Claims 33 and 46 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bal et al. (US 20150289832 A1) and Chun et al. (“Zoom-in micro tomography with the combination of full and limited field-of-view projection data”) and Langan et al. (US 20160206262 A1) as applied to claims 32 and 45 above, further in view of Ra et al. (US 20150243045 A1). Regarding claims 33 and 46, Bal et al. and Chun et al. and Langan et al. disclose the method and system of claims 32 and 45. Bal et al.",
"a and Chun et al. nd Langan et al. do not explicitly disclose extracting the second portion of the scan data based on the physiological signal comprises: determining a second weighting function associated with the second FOV; extracting the second portion of the scan data based on the physiological signal and the second weighting function associated with the second FOV. Ra et al. teach determining a second weighting function associated with the second FOV; extracting the second portion of the scan data based on the physiological signal and the second weighting function associated with the second FOV (CT, [0280], “In detail, when the motion amount of the object and the time have a linear relationship, the data acquirer 710 may respectively match a zero MVF and the MVF that indicates a motion amount between the first and second images 1310 and 1320, with a first weighting value and a second weighting value”, [0342], “When the object is a person and a tomography image to be acquired is a cross-sectional tomography image as illustrated in FIG.",
"31A, for example, a lot of motions are generated in two directions as illustrated by a double-head arrow 3330 along the front and back sides of the person due to the breathing or heartbeat of the person”, [0563]). Bal et al. and Langan et al. and Ra et al. are in the same art of X-ray/CT imaging (Bal et al., abstract; Langan et al., [0022]; Ra et al., [0154]). The combination of Ra et al. with Bal et al. and Chun et al.",
"and Langan et al. will enable use of a second weighting factor. It would have been obvious at the time of filing to one of ordinary skill in the art to combine the weighting of Ra et al. with the invention of Bal et al. and Chun et al. and Langan et al. as this was known at the time of the invention, the . Allowable Subject Matter Claims 34 and 35 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 and upon filing of a terminal disclaimer to overcome the double patenting rejections.",
"The following art is cited as relevant but not sufficient to disclose, teach or fairly suggest the claimed limitations: US 10832451 B2 (Images reconstructed from image data acquired at different times or phases may have differing levels of image contrast. Applying a different regularization term (e.g., a second regularization term) for the second respiratory phase may be more appropriate and produce higher quality images of the heart than applying the first weighting); “Motion-Compensated and Gated Cone Beam Filtered Back-Projection for 3-D Rotational X-Ray Angiography” (Furthermore, gated reconstructions are calculated by weighting the projections according to their cardiac phase without using a motion vector field). Claims 36-39 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 and upon filing of a terminal disclaimer to overcome the double patenting rejections.",
"Reasons for allowance for these claims are the same as those given for 15/638360. 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 MICHELLE M ENTEZARI HAUSMANN whose telephone number is (571)270-5084.",
"The examiner can normally be reached on 10-7 M-F. 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, VINCENT M RUDOLPH can be reached on (571)272-8243. 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. /MICHELLE M ENTEZARI/Primary Examiner, Art Unit 2661"
] | https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-07-18.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
By the Court, Dickinson, J. The language in this case, as used in the opinion, must, of course, be construed with reference to the facts before the Court — with reference to the matter under consideration. Any other rule, in the language of an eminent jurist, “would misrepresent one judge, and mislead another.” Wherfi the Court remarks that the judicial powers of the respective judges must be, confined to the limits of their circuit, of course it must be taken in a qualified sense. The exception to the principle is contained in the constitution, which is, unless the Legislature shall authorize a temporary interchange of ridings. The argument upon the re-hearing of the case, although ingenious and forcible, has not been sufficient to satisfy the minds of the Court that the opionion previously expressed is erroneous. The definition of the term “ temporary,” although, in its literal acceptation, it may signify any portion of time less than the full period spoken of, still docs not warrant the conclusion that it is to be taken with such an unqualified meaning, and applied to the grant of the constitution. The word, as it stands in that instrument, must be governed by the meaning and objects of the grant, and its signification restricted by other parts and provisions of the constitution. A law that would authorize a judge to remain all but a small fraction of time out of the circuit for which he was .elected, and to hold but one court during the term of his service within his own district, would, to our minds, be a clear and palpable violation of the constitution. To hold such a law constitutional, would, in effect, break down all separate and distinct jurisdiction, which was the main and leading object of the convention to- establish; and it would virtually abrogate and destroy both the election and commission which constitute the judicial warrants of the judge for the exercise of his authority. And the law now before the court, is, in our estimation, subject to the like objection. There is a constant and uniform alternation and rotation of riding between the respective judges, which may last for all time to come, and therefore cannot be termed, in the constitutional meaning of the word, a temporary interchange of circuits. | 07-19-2022 | [
"By the Court, Dickinson, J. The language in this case, as used in the opinion, must, of course, be construed with reference to the facts before the Court — with reference to the matter under consideration. Any other rule, in the language of an eminent jurist, “would misrepresent one judge, and mislead another.” Wherfi the Court remarks that the judicial powers of the respective judges must be, confined to the limits of their circuit, of course it must be taken in a qualified sense. The exception to the principle is contained in the constitution, which is, unless the Legislature shall authorize a temporary interchange of ridings. The argument upon the re-hearing of the case, although ingenious and forcible, has not been sufficient to satisfy the minds of the Court that the opionion previously expressed is erroneous.",
"The definition of the term “ temporary,” although, in its literal acceptation, it may signify any portion of time less than the full period spoken of, still docs not warrant the conclusion that it is to be taken with such an unqualified meaning, and applied to the grant of the constitution. The word, as it stands in that instrument, must be governed by the meaning and objects of the grant, and its signification restricted by other parts and provisions of the constitution. A law that would authorize a judge to remain all but a small fraction of time out of the circuit for which he was .elected, and to hold but one court during the term of his service within his own district, would, to our minds, be a clear and palpable violation of the constitution. To hold such a law constitutional, would, in effect, break down all separate and distinct jurisdiction, which was the main and leading object of the convention to- establish; and it would virtually abrogate and destroy both the election and commission which constitute the judicial warrants of the judge for the exercise of his authority. And the law now before the court, is, in our estimation, subject to the like objection. There is a constant and uniform alternation and rotation of riding between the respective judges, which may last for all time to come, and therefore cannot be termed, in the constitutional meaning of the word, a temporary interchange of circuits."
] | https://www.courtlistener.com/api/rest/v3/opinions/6537609/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS EL DORADO DIVISION
UNITED STATES OF AMERICA PLAINTIFF
V. CASE NO. 17-CR-10014-006
DARRELL EMERSON NELSON DEFENDANT
ORDER
Before the Court is the Government’s Motion to Dismiss. ECF No. 140. In the instant
motion, the Government moves the Court to dismiss the Indictment without prejudice pursuant to
Federal Rule of Criminal Procedure 48(a). Upon consideration, the Court finds that the instant
motion should be and hereby is GRANTED and the Indictment is DISMISSED WITHOUT
PREJUDICE. Furthermore, in light of this ruling, the Court finds that Defendant should be and
hereby is RELEASED from federal custody.
IT IS SO ORDERED, this 20th day of November, 2018.
/s/ Harry F. Barnes Harry F. Barnes United States District Judge | 2018-11-20 | [
"IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS EL DORADO DIVISION UNITED STATES OF AMERICA PLAINTIFF V. CASE NO. 17-CR-10014-006 DARRELL EMERSON NELSON DEFENDANT ORDER Before the Court is the Government’s Motion to Dismiss. ECF No. 140. In the instant motion, the Government moves the Court to dismiss the Indictment without prejudice pursuant to Federal Rule of Criminal Procedure 48(a). Upon consideration, the Court finds that the instant motion should be and hereby is GRANTED and the Indictment is DISMISSED WITHOUT PREJUDICE. Furthermore, in light of this ruling, the Court finds that Defendant should be and hereby is RELEASED from federal custody.",
"IT IS SO ORDERED, this 20th day of November, 2018. /s/ Harry F. Barnes Harry F. Barnes United States District Judge"
] | https://www.courtlistener.com/api/rest/v3/recap-documents/46094528/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
No opinion. Order affirmed, with $10 costs and disbursements. Order filed. | 10-17-2022 | [
"No opinion. Order affirmed, with $10 costs and disbursements. Order filed."
] | https://www.courtlistener.com/api/rest/v3/opinions/8277511/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
James George Charles, of Rockville, Maryland, is suspended from the practice of law in this Court and a rule will issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court. | 07-25-2022 | [
"James George Charles, of Rockville, Maryland, is suspended from the practice of law in this Court and a rule will issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court."
] | https://www.courtlistener.com/api/rest/v3/opinions/7267907/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Case 3:17-cv-01104-VLB Document 82-30 Filed 05/15/19 Page 1 of 2
Exhibit 31 Case 3:17-cv-01104-VLB Document 82-30 Filed 05/15/19 Page 2 of 2
Yale University OFFICE OF THE PROVOST New Haven, Connecticut 06520
March 26, 20 I 0
Professor Susan Byrne Department of Spanish & Portuguese 82-90 Wall Street
Dear Susan,
I was delighted to learn that your proposal for a Morse Fellowship (MOR) for the academic year 2010-2011 was approved. In addition, I am pleased to inform you that the Steering Committee of the Faculty of Arts and Sciences has confirmed this approval.
We have received the Faculty Appointment Form to register your leave in the system and will now have it recorded. If there are any changes to it please do let me know. Also, we would appreciate knowing the outcome of any attempts you make to obtain outside support
Please keep in mind the statement which appears in the Faculty Handbook: "Because the purpose of a leave with salary is to permit continued and uninterrupted scholarly research, faculty members who are granted paid leave... are not permitted to teach or to engage in any remunerative employment during the period of the leave, except. .. as permitted for full-time faculty not on leave ... "
I trust that you will have a successful period of research and writing and will return rejuvenated to the full range of your academic responsibilities.
With all best wishes.
Sincerely,
Emily t:J., Deputy Provost
cc: Rolena Adorno, Chair Joelle Siracuse Anita DePalma
INITIAL DISCOVERY PROTOCOLS P3931 | 2019-05-15 | [
"Case 3:17-cv-01104-VLB Document 82-30 Filed 05/15/19 Page 1 of 2 Exhibit 31 Case 3:17-cv-01104-VLB Document 82-30 Filed 05/15/19 Page 2 of 2 Yale University OFFICE OF THE PROVOST New Haven, Connecticut 06520 March 26, 20 I 0 Professor Susan Byrne Department of Spanish & Portuguese 82-90 Wall Street Dear Susan, I was delighted to learn that your proposal for a Morse Fellowship (MOR) for the academic year 2010-2011 was approved. In addition, I am pleased to inform you that the Steering Committee of the Faculty of Arts and Sciences has confirmed this approval. We have received the Faculty Appointment Form to register your leave in the system and will now have it recorded. If there are any changes to it please do let me know. Also, we would appreciate knowing the outcome of any attempts you make to obtain outside support Please keep in mind the statement which appears in the Faculty Handbook: \"Because the purpose of a leave with salary is to permit continued and uninterrupted scholarly research, faculty members who are granted paid leave... are not permitted to teach or to engage in any remunerative employment during the period of the leave, except. .. as permitted for full-time faculty not on leave ... \" I trust that you will have a successful period of research and writing and will return rejuvenated to the full range of your academic responsibilities.",
"With all best wishes. Sincerely, Emily t:J., Deputy Provost cc: Rolena Adorno, Chair Joelle Siracuse Anita DePalma INITIAL DISCOVERY PROTOCOLS P3931"
] | https://www.courtlistener.com/api/rest/v3/recap-documents/98145083/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.