text
stringlengths 1
11.6M
| created_timestamp
stringlengths 0
22
| text_chunks
listlengths 1
5.55k
| url
stringlengths 24
213
| domain
stringclasses 1
value | link
stringclasses 1
value |
|---|---|---|---|---|---|
Case 1:20-cv-05596-PGG Document 1-2 Filed 07/20/20 Page 1 of 2
EXHIBIT B Case 1:20-cv-05596-PGG Document 1-2 Filed 07/20/20 Page 2 of 2 | 2020-07-20 | [
"Case 1:20-cv-05596-PGG Document 1-2 Filed 07/20/20 Page 1 of 2 EXHIBIT B Case 1:20-cv-05596-PGG Document 1-2 Filed 07/20/20 Page 2 of 2"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/141283245/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Response to Arguments Applicant’s amendment and arguments filed 03/18/2021, with respect to the rejections set forth in the Final Rejection mailed 01/26/2021 have been fully considered and are persuasive. The rejections set forth in the Final Rejection mailed 01/26/2021 have been withdrawn. Allowable Subject Matter Claims 1-20 are allowed. Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALLEN PORTER whose telephone number is (571)270-5419. The examiner can normally be reached on Mon - Fri 9:00-6:00 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, CARL LAYNO can be reached on 571-272-4949. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
/ALLEN PORTER/Primary Examiner, Art Unit 3792 | 2021-04-13T09:38:15 | [
"DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Response to Arguments Applicant’s amendment and arguments filed 03/18/2021, with respect to the rejections set forth in the Final Rejection mailed 01/26/2021 have been fully considered and are persuasive. The rejections set forth in the Final Rejection mailed 01/26/2021 have been withdrawn. Allowable Subject Matter Claims 1-20 are allowed. Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALLEN PORTER whose telephone number is (571)270-5419. The examiner can normally be reached on Mon - Fri 9:00-6:00 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, CARL LAYNO can be reached on 571-272-4949. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. /ALLEN PORTER/Primary Examiner, Art Unit 3792"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-04-18.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
"The jurors for the State upon their oath present, that within the county of Lenoir there now is, and from time immemorial there hath been, a certain common jail for the purpose of keeping in safe custody offenders and prisoners within the same, situate and being in the county of Lenoir, known by the name of the jail of Lenoir; and that on the first day of January, in the year of our Lord one thousand eight hundred and twenty-five, and continually from thence until the day of taking this inquisition, the said jail hath been and still is greatly ruinous, in decay, and out of repair, for want of needful and necessary repairing and amending the same, so that offenders and prisoners, during such time, could not, nor can they now, be kept and secured in safe and secure custody within the said jail, as they ought, and were wont to be, and still ought to be, to the great hindrance and obstruction of justice; and that (naming the justices), justices of the peace for the county of Lenoir, whose duty it is to amend and repair the same when and so often as it shall be necessary, have failed so to do; but negligently and unlawfully did permit the said jail to go to ruin and decay, contrary to the act of the General Assembly in such case made and provided, and against the peace and dignity of the State." To this indictment defendants demurred, and the demurrer having been sustained below, Mr. Solicitor Miller, for the State, appealed. There are some rules relative to indictments which it is indispensable to observe, notwithstanding the relaxation in point of form which is introduced by the act of 1811. The indictment must still contain a description of the crime, and a statement of the facts by which *Page 85 it is formed, so as to identify the accusation; otherwise, the grand jury might find a bill for one offense and the defendant be put on his trial in chief for another. The defendant ought, also, to know what crime he is called upon to answer, and the jury should appear to be warranted in their conclusion of "guilty or not guilty" upon the premises to be delivered to them. The court should, also, be enabled to see on the record such a specific crime that they may apply the punishment which the law prescribes; and the defendant should be protected by the conviction, or (196) acquittal, from any future prosecution. These are elementary rules which must be substantially observed. In ascertaining the duties imposed upon the justices in relation to jails, we find that the act of 1795, ch. 433, gives them power and authority to lay and collect taxes, from year to year as long as may be necessary, for the purpose of building, repairing, and furnishing their several courthouses and jails in such a manner as they shall think proper. The other act of 1816, ch. 911, converts this authority into a positive duty, and directs that the justices shall, from time to time, lay a sufficient tax to erect and keep in good repair the public jail, courthouse, and stocks, in their respective counties. Without deciding whether the neglect of this duty is an indictable offense, it is obvious that the justices are not called upon to answer that charge, but one altogether distinct, viz., "negligently and unlawfully permitting the jail to go to ruin and decay." There is no act which makes it the duty of the justices to repair the jail; and its going to ruin and decay may be the consequence of their neglecting the duty which is assigned, but the offense producing that consequence should be positively stated. Against the charge, if stated in the terms of the act, they might have a defense which they could not adduce in the present shape of the accusation; nor do I see how a conviction or acquittal on this indictment would protect them against a future prosecution for not laying the tax (supposing it to be indictable). The case of overseers of the road is very different from this; for the act makes it their positive duty to keep the roads in repair. A neglect in this point constitutes the indictable crime, and not the neglect of the preparatory steps, to which various penalties are annexed. For these reasons, without examining any other point that was made, I think the demurrer must be sustained. | 07-06-2016 | [
"\"The jurors for the State upon their oath present, that within the county of Lenoir there now is, and from time immemorial there hath been, a certain common jail for the purpose of keeping in safe custody offenders and prisoners within the same, situate and being in the county of Lenoir, known by the name of the jail of Lenoir; and that on the first day of January, in the year of our Lord one thousand eight hundred and twenty-five, and continually from thence until the day of taking this inquisition, the said jail hath been and still is greatly ruinous, in decay, and out of repair, for want of needful and necessary repairing and amending the same, so that offenders and prisoners, during such time, could not, nor can they now, be kept and secured in safe and secure custody within the said jail, as they ought, and were wont to be, and still ought to be, to the great hindrance and obstruction of justice; and that (naming the justices), justices of the peace for the county of Lenoir, whose duty it is to amend and repair the same when and so often as it shall be necessary, have failed so to do; but negligently and unlawfully did permit the said jail to go to ruin and decay, contrary to the act of the General Assembly in such case made and provided, and against the peace and dignity of the State.\"",
"To this indictment defendants demurred, and the demurrer having been sustained below, Mr. Solicitor Miller, for the State, appealed. There are some rules relative to indictments which it is indispensable to observe, notwithstanding the relaxation in point of form which is introduced by the act of 1811. The indictment must still contain a description of the crime, and a statement of the facts by which *Page 85 it is formed, so as to identify the accusation; otherwise, the grand jury might find a bill for one offense and the defendant be put on his trial in chief for another. The defendant ought, also, to know what crime he is called upon to answer, and the jury should appear to be warranted in their conclusion of \"guilty or not guilty\" upon the premises to be delivered to them.",
"The court should, also, be enabled to see on the record such a specific crime that they may apply the punishment which the law prescribes; and the defendant should be protected by the conviction, or (196) acquittal, from any future prosecution. These are elementary rules which must be substantially observed. In ascertaining the duties imposed upon the justices in relation to jails, we find that the act of 1795, ch. 433, gives them power and authority to lay and collect taxes, from year to year as long as may be necessary, for the purpose of building, repairing, and furnishing their several courthouses and jails in such a manner as they shall think proper. The other act of 1816, ch. 911, converts this authority into a positive duty, and directs that the justices shall, from time to time, lay a sufficient tax to erect and keep in good repair the public jail, courthouse, and stocks, in their respective counties. Without deciding whether the neglect of this duty is an indictable offense, it is obvious that the justices are not called upon to answer that charge, but one altogether distinct, viz., \"negligently and unlawfully permitting the jail to go to ruin and decay.\" There is no act which makes it the duty of the justices to repair the jail; and its going to ruin and decay may be the consequence of their neglecting the duty which is assigned, but the offense producing that consequence should be positively stated.",
"Against the charge, if stated in the terms of the act, they might have a defense which they could not adduce in the present shape of the accusation; nor do I see how a conviction or acquittal on this indictment would protect them against a future prosecution for not laying the tax (supposing it to be indictable). The case of overseers of the road is very different from this; for the act makes it their positive duty to keep the roads in repair. A neglect in this point constitutes the indictable crime, and not the neglect of the preparatory steps, to which various penalties are annexed. For these reasons, without examining any other point that was made, I think the demurrer must be sustained."
]
| https://www.courtlistener.com/api/rest/v3/opinions/3648864/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Appeal from Ct. Crim. App. Tex. dismissed for want of substantial federal question. Mr. Justice Brennan and Mr. Justice Blackmun would note probable jurisdiction and set case for oral argument. | 11-27-2022 | [
"Appeal from Ct. Crim. App. Tex. dismissed for want of substantial federal question. Mr. Justice Brennan and Mr. Justice Blackmun would note probable jurisdiction and set case for oral argument."
]
| https://www.courtlistener.com/api/rest/v3/opinions/8981699/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Exhibit 32.1 CERTIFICATION OF CHIEF EXECUTIVE OFFICER PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION -OXLEY ACT OF 2002 I, John E. Bourgoin, certify, that to my knowledge, the Quarterly Report on Form10-Q of MIPS Technologies, Inc. for the three months endedDecember 31, 2007 (the “Form10-Q”), to which this certificate is an exhibit fully complies with the requirements of Section13(a) or 15(d) of the Securities Exchange Act of 1934, as amended, and that information contained in the Form10-Q fairly presents, in all material respects, the financial condition and results of operations of MIPS Technologies,Inc. for the three month period covered by the Form10-Q. Date: February 11, 2008 By: /s/ JOHN E. BOURGOIN John E. Bourgoin President and Chief Executive Officer, MIPS Technologies, Inc. A signed original of this written statement required by Section906 has been provided by MIPS Technologies and will be retained by it and furnished to the Securities Exchange Commission or its staff upon request. | [
"Exhibit 32.1 CERTIFICATION OF CHIEF EXECUTIVE OFFICER PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION -OXLEY ACT OF 2002 I, John E. Bourgoin, certify, that to my knowledge, the Quarterly Report on Form10-Q of MIPS Technologies, Inc. for the three months endedDecember 31, 2007 (the “Form10-Q”), to which this certificate is an exhibit fully complies with the requirements of Section13(a) or 15(d) of the Securities Exchange Act of 1934, as amended, and that information contained in the Form10-Q fairly presents, in all material respects, the financial condition and results of operations of MIPS Technologies,Inc. for the three month period covered by the Form10-Q.",
"Date: February 11, 2008 By: /s/ JOHN E. BOURGOIN John E. Bourgoin President and Chief Executive Officer, MIPS Technologies, Inc. A signed original of this written statement required by Section906 has been provided by MIPS Technologies and will be retained by it and furnished to the Securities 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 |
|
Detailed Action This is a Non-final Office action in response to communications received on 7/22/2020. Claims 1-20 are pending and are examined.
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 .
Drawings The drawings, filed 7/22/2020, are acknowledged.
Examiner Notes The “transport” recited in claim 8 is interpreted according to paragraph [0046] of Applicant’s specification which reads “The term transport and/or vehicle herein may mean any processor, computer, and/or sensor on the transport which can execute a smart contract.” As such, the transport is not interpreted as limiting the claim exclusively to hardware regarding 101 considerations.
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 2, 8-14 and 16 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. Claims 2, 9 and 16 recite the limitation "responsive to a non-subversion of the authorized functionality". Independent claims 1, 8 and 15 also recite “a non-subversion of the authorized functionality”. It is unclear whether the non-subversions of the claims are intended to be the same or distinct. Claim 8 recites "A transport, comprising: detect, by a component in the transport, the another component has been removed;”. Other similar limitations are included in the claim which maintain the method-like language to describe the transport (i.e. “detect”). As written, the claim describes a transport which comprises steps or functions of a method, rather than components. Examiner recommends amending the claim to recite the components which are comprised in the transport. Claims 9-14, which depend on claim 8, fail to remedy this deficiency and are similarly rejected.
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 8-14 are also rejected under 35 U.S.C. 101 as not falling within one of the four statutory categories of invention because the claims are directed to software per se. Under 35 U.S.C. 101, a claimed invention must fall within one of the four eligible categories of invention (i.e. process, machine, manufacture, or composition of matter) and must not be directed to subject matter encompassing a judicially recognized exception as interpreted by the courts. MPEP § 2106. The four eligible categories of invention include: (1) process which is an act, or a series of acts or steps, (2) machine which is an concrete thing, consisting of parts, or of certain devices and combination of devices, (3) manufacture which is an article produced from raw or prepared materials by giving to these materials new forms, qualities, properties, or combinations, whether by hand labor or by machinery, and (4) composition of matter which is all compositions of two or more substances and all composite articles, whether they be the results of chemical union, or of mechanical mixture, or whether they be gases, fluids, powders or solids. MPEP 2106(I). Claim 8 is directed to a transport. The Specification does not explicitly limit the transport to hardware. The claim does not explicitly list what hardware/elements the system additionally comprises in order to perform the functions of the transport. It is not sufficient to specify that the system is designed to perform a function – the claim must recite what hardware the system itself comprises which performs the claimed functions. The claim does not disclose the transport as comprising any sort of physical device or machine to perform the method of the claim. As such, the claim is interpreted as being directed to software per se. Claims 9-14 depend upon and inherit the deficiencies of claim 8 and are similarly rejected.
Claim Rejections - 35 USC § 103 In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status. The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows: 1. Determining the scope and contents of the prior art. 2. Ascertaining the differences between the prior art and the claims at issue. 3. Resolving the level of ordinary skill in the pertinent art. 4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1, 3-4, 8, 10-11, 15 and 17-18 are rejected under 35 U.S.C. 103 as being unpatentable over Unagami (US 2019/0042726 A1) in view of Kohnhauser (NPL document “Ensuring the Safe and Secure Operation of Electronic Control Units in Road Vehicles”, hereinafter “Kohnhauser”). Regarding claim 1, Unagami teaches the limitations of claim 1 substantially as follows: A method, comprising: detecting, by a component in a transport, that another component has been removed; (Unagami; Para. [0006]: A detection circuit in a vehicle (i.e. component in a transport) which detects a replacement of an ECU in a vehicle (i.e. that another component has been removed)) detecting, by the component, that a replacement component has been added in the transport; (Unagami; Para. [0006]: A detection circuit in a vehicle (i.e. the component) which detects a replacement of an ECU in a vehicle (i.e. that a replacement component has been added in the transport)) Unagami does not teach the limitations of claim 1 as follows: providing, by the component, data to the replacement component, wherein the data attempts to subvert an authorized functionality of the replacement component; and responsive to a non-subversion of the authorized functionality, permitting, by the component, use of the authorized functionality of the replacement component. However, in the same field of endeavor, Kohnhauser discloses the limitations of claim 1 as follows: providing, by the component, data to the replacement component, wherein the data attempts to subvert an authorized functionality of the replacement component; and (Kohnhauser; Page 138, “Overview” “Step (2)”: The master ECU generates and broadcasts a random nonce to safety-critical ECUs (i.e. providing, by the component, data to the replacement component) wherein the random nonce is provided as a challenge in order to prevent adversaries from perform replay attacks (i.e. the data attempts to subvert an authorized functionality of the replacement component)) responsive to a non-subversion of the authorized functionality, permitting, by the component, use of the authorized functionality of the replacement component. (Kohnhauser; Page 138, “Overview” “Step (3)”: After the master ECU receives and verifies the responses (i.e. responsive to a non-subversion of the authorized functionality) the vehicle is determined to be in a safe state and allows the vehicle to launch the engine (i.e. permitting, by the component, use of the authorized functionality of the replacement component)) Kohnhauser is combinable with Unagami because both are from the same field of endeavor of vehicle ECU security. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the system of Unagami to incorporate the broadcasting of a challenge to connected ECUs as in Kohnhauser in order to improve the security of the system by verifying ECUs through means of a secure challenge.
Regarding claim 8, Unagami teaches the limitations of claim 8 substantially as follows: A transport, comprising: detect, by a component in the transport, that another component has been removed; (Unagami; Para. [0006]: A detection circuit in a vehicle (i.e. component in a transport) which detects a replacement of an ECU in a vehicle (i.e. that another component has been removed)) detect, by the component, that a replacement component has been added in the transport; (Unagami; Para. [0006]: A detection circuit in a vehicle (i.e. the component) which detects a replacement of an ECU in a vehicle (i.e. that a replacement component has been added in the transport)) Unagami does not teach the limitations of claim 8 as follows: provide, by the component, data to the replacement component, wherein the data attempts to subvert an authorized functionality of the replacement component; and responsive to a non-subversion of the authorized functionality, permit, by the component, use of the authorized functionality of the replacement component. However, in the same field of endeavor, Kohnhauser discloses the limitations of claim 8 as follows: provide, by the component, data to the replacement component, wherein the data attempts to subvert an authorized functionality of the replacement component; and (Kohnhauser; Page 138, “Overview” “Step (2)”: The master ECU generates and broadcasts a random nonce to safety-critical ECUs (i.e. providing, by the component, data to the replacement component) wherein the random nonce is provided as a challenge in order to prevent adversaries from perform replay attacks (i.e. the data attempts to subvert an authorized functionality of the replacement component)) responsive to a non-subversion of the authorized functionality, permit, by the component, use of the authorized functionality of the replacement component. (Kohnhauser; Page 138, “Overview” “Step (3)”: After the master ECU receives and verifies the responses (i.e. responsive to a non-subversion of the authorized functionality) the vehicle is determined to be in a safe state and allows the vehicle to launch the engine (i.e. permitting, by the component, use of the authorized functionality of the replacement component)) Kohnhauser is combinable with Unagami because both are from the same field of endeavor of vehicle ECU security. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the system of Unagami to incorporate the broadcasting of a challenge to connected ECUs as in Kohnhauser in order to improve the security of the system by verifying ECUs through means of a secure challenge.
Regarding claim 15, Unagami teaches the limitations of claim 15 substantially as follows: A non-transitory computer readable medium comprising instructions, that when read by a processor, cause the processor to perform: (Unagami; Para. [0008]: recording medium) detecting, by a component in a transport, that another component has been removed; (Unagami; Para. [0006]: A detection circuit in a vehicle (i.e. component in a transport) which detects a replacement of an ECU in a vehicle (i.e. that another component has been removed)) detecting, by the component, that a replacement component has been added in the transport; (Unagami; Para. [0006]: A detection circuit in a vehicle (i.e. the component) which detects a replacement of an ECU in a vehicle (i.e. that a replacement component has been added in the transport)) Unagami does not teach the limitations of claim 15 as follows: providing, by the component, data to the replacement component, wherein the data attempts to subvert an authorized functionality of the replacement component; and responsive to a non-subversion of the authorized functionality, permitting, by the component, use of the authorized functionality of the replacement component. However, in the same field of endeavor, Kohnhauser discloses the limitations of claim 15 as follows: providing, by the component, data to the replacement component, wherein the data attempts to subvert an authorized functionality of the replacement component; and (Kohnhauser; Page 138, “Overview” “Step (2)”: The master ECU generates and broadcasts a random nonce to safety-critical ECUs (i.e. providing, by the component, data to the replacement component) wherein the random nonce is provided as a challenge in order to prevent adversaries from perform replay attacks (i.e. the data attempts to subvert an authorized functionality of the replacement component)) responsive to a non-subversion of the authorized functionality, permitting, by the component, use of the authorized functionality of the replacement component. (Kohnhauser; Page 138, “Overview” “Step (3)”: After the master ECU receives and verifies the responses (i.e. responsive to a non-subversion of the authorized functionality) the vehicle is determined to be in a safe state and allows the vehicle to launch the engine (i.e. permitting, by the component, use of the authorized functionality of the replacement component)) Kohnhauser is combinable with Unagami because both are from the same field of endeavor of vehicle ECU security. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the system of Unagami to incorporate the broadcasting of a challenge to connected ECUs as in Kohnhauser in order to improve the security of the system by verifying ECUs through means of a secure challenge.
Regarding claims 3, 10 and 17, Unagami and Kohnhauser teach the limitations of claims 1, 8 and 15. Unagami and Kohnhauser teach the limitations of claims 3, 10 and 17 as follows: wherein the attempted subversion comprises sending a message from the component to the replacement component attempting to cause the replacement component to operate in a non-authorized manner. (Kohnhauser; Page 138, “Overview” “Step (2)”: The master ECU generates and broadcasts a random nonce to safety-critical ECUs (i.e. message from the component to the replacement component) wherein the random nonce is provided as a challenge in order to prevent adversaries from perform replay attacks (i.e. attempting to subvert an authorized functionality of the replacement component)) The same motivation to combine as in claims 1, 8 and 15 are applicable to the instant claims.
Regarding claims 4, 11 and 18, Unagami and Kohnhauser teach the limitations of claims 1, 8 and 15. Unagami and Kohnhauser teach the limitations of claims 4, 11 and 18 as follows: comprising providing, by the component, additional data to the replacement component after a period of time, (Kohnhauser; Page 138, “Overview”, Paragraph 1 and “Step (2)”: At each time the vehicle is unlocked and then opened the master ECU performs an attestation protocol involving sending a random nonce to safety-critical ECUs (i.e. providing, by the component, additional data to the replacement component after a period of time)) wherein the additional data attempts to subvert another authorized functionality of the replacement component, (Kohnhauser; Page 138, “Overview” “Step (2)”: The master ECU generates and broadcasts a random nonce to safety-critical ECUs wherein the random nonce is provided as a challenge in order to prevent adversaries from perform replay attacks (i.e. the additional data attempts to subvert another( authorized functionality of the replacement component)) wherein the data and the additional data are different. (Kohnhauser; Page 138, “Overview”, Paragraph 1 and “Step (2)”: At each time the vehicle is unlocked and then opened the master ECU performs an attestation protocol involving sending a random nonce to safety-critical ECUs (i.e. data and the additional data are different)) The same motivation to combine as in claims 1, 8 and 15 are applicable to the instant claims.
Claims 2, 9 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Unagami (US 2019/0042726 A1) in view of Kohnhauser (NPL), as applied to claims 1, 8 and 15, further in view of Arakawa (US 2020/0156591 A1). Regarding claims 2, 9 and 16, Unagami and Kohnhauser teach the limitations of claims 1, 8 and 15. Unagami and Kohnhauser do not teach the limitations of claims 2, 9 and 16 as follows: responsive to a non-subversion of the authorized functionality, comprising permitting, by the component, a portion of the use of the authorized functionality of the replacement component. However, in the same field of endeavor, Arakawa discloses the limitations of claims 2, 9 and 16 as follows: responsive to a non-subversion of the authorized functionality, comprising permitting, by the component, a portion of the use of the authorized functionality of the replacement component. (Arakawa; Para. [0026]: When the electronic key ID verification or the challenge-response authentication are accomplished, the verification ECU determines that the smart verification is accomplished and executes or permits the locking or unlocking of the vehicle door with the body ECU (i.e. permitting, by the component, a portion of the use of the authorized functionality of the replacement component)) Arakawa is combinable with Unagami and Kohnhauser because all are from the same field of endeavor of vehicle ECU security. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified system of Unagami and Kohnhauser to incorporate permitting locking and unlocking functions of the vehicle according to authentication as in Arakawa in order to improve the security of the system by providing a means by which functions of the vehicle may be withheld pending authentication.
Claims 5 and 12 are rejected under 35 U.S.C. 103 as being unpatentable over Unagami (US 2019/0042726 A1) in view of Kohnhauser (NPL), as applied to claims 1 and 8, further in view of Owen (US 2016/0071336 A1). Regarding claims 5 and 12 Unagami and Kohnhauser teach the limitations of claims 1 and 8. Unagami and Kohnhauser do not teach the limitations of claims 5 and 12 as follows: providing, by the component, data to the replacement component over a period of time, and determining, by the component, non-subversion over the period of time, wherein the data is related to a current driving condition of the transport. However, in the same field of endeavor, Owen discloses the limitations of claims 5 and 12 as follows: providing, by the component, data to the replacement component over a period of time, and (Owen; Para. [0034]: Digitally sampling, for one or more time periods characteristics of a vehicle component to determine if a test cycle is valid (i.e. providing data to the replacement component over a period of time)) determining, by the component, non-subversion over the period of time, wherein the data is related to a current driving condition of the transport. (Owen; Para. [0034]: Digitally sampling, for one or more time periods characteristics of a vehicle component to determine if a test cycle is valid (i.e. determining non-subversion over the period of time, wherein the data is related to a current driving condition of the transport)) Owen is combinable with Unagami and Kohnhauser because all are from the same field of endeavor of determining validity of vehicle components. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified system of Unagami and Kohnhauser to incorporate sampling data of a vehicle component over time in order to determine validity as in Owen in order to expand the functionality of the system by providing a means by which the system may also be tested over a testing period time.
Claims 6, 13 and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Unagami (US 2019/0042726 A1) in view of Kohnhauser (NPL), as applied to claims 1, 8 and 15, further in view of Ghannam (US 2021/0078512 A1). Regarding claims 6, 13 and 19 Unagami and Kohnhauser teach the limitations of claims 1, 8 and 15. Unagami and Kohnhauser do not teach the limitations of claims 6, 13 and 19 as follows: comprising receiving, by the component, a validation of the replacement component from other components, wherein the validation comprises a blockchain consensus between a peer group consisting of the component and at least one of the other components. However, in the same field of endeavor, Ghannam discloses the limitations of claims 6, 13 and 19 as follows: comprising receiving, by the component, a validation of the replacement component from other components, (Ghannam; Paras. [0079]: Authorizing a plurality of second blockchain nodes based on a challenge used to validate code through a consensus protocol (i.e. validation of the replacement component from other components)) wherein the validation comprises a blockchain consensus between a peer group consisting of the component and at least one of the other components. (Ghannam; Paras. [0079]: Authorizing a plurality of second blockchain nodes based on a challenge used to validate code through a consensus protocol (i.e. validation comprises a blockchain consensus between a peer group consisting of the component and at least one of the other components)) Ghannam is combinable with Unagami and Kohnhauser because all are from the same field of endeavor of determining validity of data. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified system of Unagami and Kohnhauser to incorporate the use of a blockchain consensus method in order to validate information as in Ghannam in order to improve the security of the system by providing a secure blockchain means of validating information.
Claims 7, 14 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Unagami (US 2019/0042726 A1) in view of Kohnhauser (NPL), as applied to claims 1, 8 and 15, further in view of Ghannam (US 2021/0078512 A1), further in view of Viale (US 2020/0167459 A1). Regarding claims 7, 14 and 20, Unagami and Kohnhauser teach the limitations of claims 1, 8 and 15. Unagami, Kohnhauser and Ghannam do not teach the limitations of claims 7, 14 and 20 as follows: further comprising executing a smart contract, by the transport, to record the validation code and a source replacement component on a blockchain based on the blockchain consensus. However, in the same field of endeavor, Viale discloses the limitations of claims 7, 14 and 20 as follows: further comprising executing a smart contract, by the transport, to record the validation code and a source replacement component on a blockchain based on the blockchain consensus. (Viale; Paras. [0062], [0079] & [0131]: executing a smart contract with a proper consensus algorithm when, for example, a change or repair of major parts is performed (i.e. executing a smart contract to record) and recording a part replacement transaction which may include a part identifier in the blockchain (i.e. record the validation code and a source replacement component on a blockchain based on the blockchain consensus)) Viale is combinable with Unagami, Kohnhauser and Ghannam because all are from the same field of endeavor of validity of information. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified system of Unagami, Kohnhauser and Ghannam to incorporate the use of smart contract for blockchain transactions as in Viale in order to improve the security of the system by providing a means by which transactions are securely performed on the blockchain.
Prior Art Considered But Not Relied Upon Bailey (US 2020/0413408 A1) which teaches a method including receiving a first data block including an identifier for a component, receiving a second data block including usage data for the component and a link to the first data block, storing the first and second data blocks in a blockchain, and allocating respective usage tokens to each of a plurality of entities based on the usage data. Allouche (US 10652256 B2) which teaches a vehicle system, comprising multiple electronic control units (ECUs) configured to manage operation of multiple vehicle components, a controller area network (CAN) bus that provides communication pathways between the multiple ECUs, and a threat validation module configured to receive a message from an electronic control unit (ECU) of the multiple ECUs, wherein the message comprises data of a suspicious message flagged by the ECU.
Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to BLAKE ISAAC NARRAMORE whose telephone number is (303)297-4357. The examiner can normally be reached on Monday - Friday 0700-1700 MT. 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, Taghi T Arani can be reached on (571) 272-3787. 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.
/B.I.N./Examiner, Art Unit 2438 /TAGHI T ARANI/Supervisory Patent Examiner, Art Unit 2438 | 2022-09-10T10:53:25 | [
"Detailed Action This is a Non-final Office action in response to communications received on 7/22/2020. Claims 1-20 are pending and are examined. 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 . Drawings The drawings, filed 7/22/2020, are acknowledged. Examiner Notes The “transport” recited in claim 8 is interpreted according to paragraph [0046] of Applicant’s specification which reads “The term transport and/or vehicle herein may mean any processor, computer, and/or sensor on the transport which can execute a smart contract.” As such, the transport is not interpreted as limiting the claim exclusively to hardware regarding 101 considerations. 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 2, 8-14 and 16 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C.",
"112, the applicant), regards as the invention. Claims 2, 9 and 16 recite the limitation \"responsive to a non-subversion of the authorized functionality\". Independent claims 1, 8 and 15 also recite “a non-subversion of the authorized functionality”. It is unclear whether the non-subversions of the claims are intended to be the same or distinct. Claim 8 recites \"A transport, comprising: detect, by a component in the transport, the another component has been removed;”. Other similar limitations are included in the claim which maintain the method-like language to describe the transport (i.e. “detect”). As written, the claim describes a transport which comprises steps or functions of a method, rather than components. Examiner recommends amending the claim to recite the components which are comprised in the transport.",
"Claims 9-14, which depend on claim 8, fail to remedy this deficiency and are similarly rejected. 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 8-14 are also rejected under 35 U.S.C. 101 as not falling within one of the four statutory categories of invention because the claims are directed to software per se. Under 35 U.S.C. 101, a claimed invention must fall within one of the four eligible categories of invention (i.e. process, machine, manufacture, or composition of matter) and must not be directed to subject matter encompassing a judicially recognized exception as interpreted by the courts.",
"MPEP § 2106. The four eligible categories of invention include: (1) process which is an act, or a series of acts or steps, (2) machine which is an concrete thing, consisting of parts, or of certain devices and combination of devices, (3) manufacture which is an article produced from raw or prepared materials by giving to these materials new forms, qualities, properties, or combinations, whether by hand labor or by machinery, and (4) composition of matter which is all compositions of two or more substances and all composite articles, whether they be the results of chemical union, or of mechanical mixture, or whether they be gases, fluids, powders or solids.",
"MPEP 2106(I). Claim 8 is directed to a transport. The Specification does not explicitly limit the transport to hardware. The claim does not explicitly list what hardware/elements the system additionally comprises in order to perform the functions of the transport. It is not sufficient to specify that the system is designed to perform a function – the claim must recite what hardware the system itself comprises which performs the claimed functions. The claim does not disclose the transport as comprising any sort of physical device or machine to perform the method of the claim. As such, the claim is interpreted as being directed to software per se.",
"Claims 9-14 depend upon and inherit the deficiencies of claim 8 and are similarly rejected. Claim Rejections - 35 USC § 103 In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status. The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.",
"The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows: 1. Determining the scope and contents of the prior art. 2. Ascertaining the differences between the prior art and the claims at issue. 3. Resolving the level of ordinary skill in the pertinent art. 4. Considering objective evidence present in the application indicating obviousness or nonobviousness. Claims 1, 3-4, 8, 10-11, 15 and 17-18 are rejected under 35 U.S.C. 103 as being unpatentable over Unagami (US 2019/0042726 A1) in view of Kohnhauser (NPL document “Ensuring the Safe and Secure Operation of Electronic Control Units in Road Vehicles”, hereinafter “Kohnhauser”). Regarding claim 1, Unagami teaches the limitations of claim 1 substantially as follows: A method, comprising: detecting, by a component in a transport, that another component has been removed; (Unagami; Para.",
"[0006]: A detection circuit in a vehicle (i.e. component in a transport) which detects a replacement of an ECU in a vehicle (i.e. that another component has been removed)) detecting, by the component, that a replacement component has been added in the transport; (Unagami; Para. [0006]: A detection circuit in a vehicle (i.e. the component) which detects a replacement of an ECU in a vehicle (i.e. that a replacement component has been added in the transport)) Unagami does not teach the limitations of claim 1 as follows: providing, by the component, data to the replacement component, wherein the data attempts to subvert an authorized functionality of the replacement component; and responsive to a non-subversion of the authorized functionality, permitting, by the component, use of the authorized functionality of the replacement component. However, in the same field of endeavor, Kohnhauser discloses the limitations of claim 1 as follows: providing, by the component, data to the replacement component, wherein the data attempts to subvert an authorized functionality of the replacement component; and (Kohnhauser; Page 138, “Overview” “Step (2)”: The master ECU generates and broadcasts a random nonce to safety-critical ECUs (i.e.",
"providing, by the component, data to the replacement component) wherein the random nonce is provided as a challenge in order to prevent adversaries from perform replay attacks (i.e. the data attempts to subvert an authorized functionality of the replacement component)) responsive to a non-subversion of the authorized functionality, permitting, by the component, use of the authorized functionality of the replacement component. (Kohnhauser; Page 138, “Overview” “Step (3)”: After the master ECU receives and verifies the responses (i.e. responsive to a non-subversion of the authorized functionality) the vehicle is determined to be in a safe state and allows the vehicle to launch the engine (i.e. permitting, by the component, use of the authorized functionality of the replacement component)) Kohnhauser is combinable with Unagami because both are from the same field of endeavor of vehicle ECU security. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the system of Unagami to incorporate the broadcasting of a challenge to connected ECUs as in Kohnhauser in order to improve the security of the system by verifying ECUs through means of a secure challenge.",
"Regarding claim 8, Unagami teaches the limitations of claim 8 substantially as follows: A transport, comprising: detect, by a component in the transport, that another component has been removed; (Unagami; Para. [0006]: A detection circuit in a vehicle (i.e. component in a transport) which detects a replacement of an ECU in a vehicle (i.e. that another component has been removed)) detect, by the component, that a replacement component has been added in the transport; (Unagami; Para.",
"[0006]: A detection circuit in a vehicle (i.e. the component) which detects a replacement of an ECU in a vehicle (i.e. that a replacement component has been added in the transport)) Unagami does not teach the limitations of claim 8 as follows: provide, by the component, data to the replacement component, wherein the data attempts to subvert an authorized functionality of the replacement component; and responsive to a non-subversion of the authorized functionality, permit, by the component, use of the authorized functionality of the replacement component. However, in the same field of endeavor, Kohnhauser discloses the limitations of claim 8 as follows: provide, by the component, data to the replacement component, wherein the data attempts to subvert an authorized functionality of the replacement component; and (Kohnhauser; Page 138, “Overview” “Step (2)”: The master ECU generates and broadcasts a random nonce to safety-critical ECUs (i.e. providing, by the component, data to the replacement component) wherein the random nonce is provided as a challenge in order to prevent adversaries from perform replay attacks (i.e.",
"the data attempts to subvert an authorized functionality of the replacement component)) responsive to a non-subversion of the authorized functionality, permit, by the component, use of the authorized functionality of the replacement component. (Kohnhauser; Page 138, “Overview” “Step (3)”: After the master ECU receives and verifies the responses (i.e. responsive to a non-subversion of the authorized functionality) the vehicle is determined to be in a safe state and allows the vehicle to launch the engine (i.e. permitting, by the component, use of the authorized functionality of the replacement component)) Kohnhauser is combinable with Unagami because both are from the same field of endeavor of vehicle ECU security. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the system of Unagami to incorporate the broadcasting of a challenge to connected ECUs as in Kohnhauser in order to improve the security of the system by verifying ECUs through means of a secure challenge.",
"Regarding claim 15, Unagami teaches the limitations of claim 15 substantially as follows: A non-transitory computer readable medium comprising instructions, that when read by a processor, cause the processor to perform: (Unagami; Para. [0008]: recording medium) detecting, by a component in a transport, that another component has been removed; (Unagami; Para. [0006]: A detection circuit in a vehicle (i.e. component in a transport) which detects a replacement of an ECU in a vehicle (i.e. that another component has been removed)) detecting, by the component, that a replacement component has been added in the transport; (Unagami; Para. [0006]: A detection circuit in a vehicle (i.e. the component) which detects a replacement of an ECU in a vehicle (i.e. that a replacement component has been added in the transport)) Unagami does not teach the limitations of claim 15 as follows: providing, by the component, data to the replacement component, wherein the data attempts to subvert an authorized functionality of the replacement component; and responsive to a non-subversion of the authorized functionality, permitting, by the component, use of the authorized functionality of the replacement component. However, in the same field of endeavor, Kohnhauser discloses the limitations of claim 15 as follows: providing, by the component, data to the replacement component, wherein the data attempts to subvert an authorized functionality of the replacement component; and (Kohnhauser; Page 138, “Overview” “Step (2)”: The master ECU generates and broadcasts a random nonce to safety-critical ECUs (i.e. providing, by the component, data to the replacement component) wherein the random nonce is provided as a challenge in order to prevent adversaries from perform replay attacks (i.e. the data attempts to subvert an authorized functionality of the replacement component)) responsive to a non-subversion of the authorized functionality, permitting, by the component, use of the authorized functionality of the replacement component.",
"(Kohnhauser; Page 138, “Overview” “Step (3)”: After the master ECU receives and verifies the responses (i.e. responsive to a non-subversion of the authorized functionality) the vehicle is determined to be in a safe state and allows the vehicle to launch the engine (i.e. permitting, by the component, use of the authorized functionality of the replacement component)) Kohnhauser is combinable with Unagami because both are from the same field of endeavor of vehicle ECU security. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the system of Unagami to incorporate the broadcasting of a challenge to connected ECUs as in Kohnhauser in order to improve the security of the system by verifying ECUs through means of a secure challenge.",
"Regarding claims 3, 10 and 17, Unagami and Kohnhauser teach the limitations of claims 1, 8 and 15. Unagami and Kohnhauser teach the limitations of claims 3, 10 and 17 as follows: wherein the attempted subversion comprises sending a message from the component to the replacement component attempting to cause the replacement component to operate in a non-authorized manner. (Kohnhauser; Page 138, “Overview” “Step (2)”: The master ECU generates and broadcasts a random nonce to safety-critical ECUs (i.e. message from the component to the replacement component) wherein the random nonce is provided as a challenge in order to prevent adversaries from perform replay attacks (i.e. attempting to subvert an authorized functionality of the replacement component)) The same motivation to combine as in claims 1, 8 and 15 are applicable to the instant claims.",
"Regarding claims 4, 11 and 18, Unagami and Kohnhauser teach the limitations of claims 1, 8 and 15. Unagami and Kohnhauser teach the limitations of claims 4, 11 and 18 as follows: comprising providing, by the component, additional data to the replacement component after a period of time, (Kohnhauser; Page 138, “Overview”, Paragraph 1 and “Step (2)”: At each time the vehicle is unlocked and then opened the master ECU performs an attestation protocol involving sending a random nonce to safety-critical ECUs (i.e. providing, by the component, additional data to the replacement component after a period of time)) wherein the additional data attempts to subvert another authorized functionality of the replacement component, (Kohnhauser; Page 138, “Overview” “Step (2)”: The master ECU generates and broadcasts a random nonce to safety-critical ECUs wherein the random nonce is provided as a challenge in order to prevent adversaries from perform replay attacks (i.e. the additional data attempts to subvert another( authorized functionality of the replacement component)) wherein the data and the additional data are different. (Kohnhauser; Page 138, “Overview”, Paragraph 1 and “Step (2)”: At each time the vehicle is unlocked and then opened the master ECU performs an attestation protocol involving sending a random nonce to safety-critical ECUs (i.e. data and the additional data are different)) The same motivation to combine as in claims 1, 8 and 15 are applicable to the instant claims.",
"Claims 2, 9 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Unagami (US 2019/0042726 A1) in view of Kohnhauser (NPL), as applied to claims 1, 8 and 15, further in view of Arakawa (US 2020/0156591 A1). Regarding claims 2, 9 and 16, Unagami and Kohnhauser teach the limitations of claims 1, 8 and 15. Unagami and Kohnhauser do not teach the limitations of claims 2, 9 and 16 as follows: responsive to a non-subversion of the authorized functionality, comprising permitting, by the component, a portion of the use of the authorized functionality of the replacement component. However, in the same field of endeavor, Arakawa discloses the limitations of claims 2, 9 and 16 as follows: responsive to a non-subversion of the authorized functionality, comprising permitting, by the component, a portion of the use of the authorized functionality of the replacement component.",
"(Arakawa; Para. [0026]: When the electronic key ID verification or the challenge-response authentication are accomplished, the verification ECU determines that the smart verification is accomplished and executes or permits the locking or unlocking of the vehicle door with the body ECU (i.e. permitting, by the component, a portion of the use of the authorized functionality of the replacement component)) Arakawa is combinable with Unagami and Kohnhauser because all are from the same field of endeavor of vehicle ECU security. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified system of Unagami and Kohnhauser to incorporate permitting locking and unlocking functions of the vehicle according to authentication as in Arakawa in order to improve the security of the system by providing a means by which functions of the vehicle may be withheld pending authentication. Claims 5 and 12 are rejected under 35 U.S.C. 103 as being unpatentable over Unagami (US 2019/0042726 A1) in view of Kohnhauser (NPL), as applied to claims 1 and 8, further in view of Owen (US 2016/0071336 A1).",
"Regarding claims 5 and 12 Unagami and Kohnhauser teach the limitations of claims 1 and 8. Unagami and Kohnhauser do not teach the limitations of claims 5 and 12 as follows: providing, by the component, data to the replacement component over a period of time, and determining, by the component, non-subversion over the period of time, wherein the data is related to a current driving condition of the transport.",
"However, in the same field of endeavor, Owen discloses the limitations of claims 5 and 12 as follows: providing, by the component, data to the replacement component over a period of time, and (Owen; Para. [0034]: Digitally sampling, for one or more time periods characteristics of a vehicle component to determine if a test cycle is valid (i.e. providing data to the replacement component over a period of time)) determining, by the component, non-subversion over the period of time, wherein the data is related to a current driving condition of the transport. (Owen; Para. [0034]: Digitally sampling, for one or more time periods characteristics of a vehicle component to determine if a test cycle is valid (i.e. determining non-subversion over the period of time, wherein the data is related to a current driving condition of the transport)) Owen is combinable with Unagami and Kohnhauser because all are from the same field of endeavor of determining validity of vehicle components.",
"Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified system of Unagami and Kohnhauser to incorporate sampling data of a vehicle component over time in order to determine validity as in Owen in order to expand the functionality of the system by providing a means by which the system may also be tested over a testing period time. Claims 6, 13 and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Unagami (US 2019/0042726 A1) in view of Kohnhauser (NPL), as applied to claims 1, 8 and 15, further in view of Ghannam (US 2021/0078512 A1). Regarding claims 6, 13 and 19 Unagami and Kohnhauser teach the limitations of claims 1, 8 and 15. Unagami and Kohnhauser do not teach the limitations of claims 6, 13 and 19 as follows: comprising receiving, by the component, a validation of the replacement component from other components, wherein the validation comprises a blockchain consensus between a peer group consisting of the component and at least one of the other components. However, in the same field of endeavor, Ghannam discloses the limitations of claims 6, 13 and 19 as follows: comprising receiving, by the component, a validation of the replacement component from other components, (Ghannam; Paras. [0079]: Authorizing a plurality of second blockchain nodes based on a challenge used to validate code through a consensus protocol (i.e.",
"validation of the replacement component from other components)) wherein the validation comprises a blockchain consensus between a peer group consisting of the component and at least one of the other components. (Ghannam; Paras. [0079]: Authorizing a plurality of second blockchain nodes based on a challenge used to validate code through a consensus protocol (i.e. validation comprises a blockchain consensus between a peer group consisting of the component and at least one of the other components)) Ghannam is combinable with Unagami and Kohnhauser because all are from the same field of endeavor of determining validity of data.",
"Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified system of Unagami and Kohnhauser to incorporate the use of a blockchain consensus method in order to validate information as in Ghannam in order to improve the security of the system by providing a secure blockchain means of validating information. Claims 7, 14 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Unagami (US 2019/0042726 A1) in view of Kohnhauser (NPL), as applied to claims 1, 8 and 15, further in view of Ghannam (US 2021/0078512 A1), further in view of Viale (US 2020/0167459 A1). Regarding claims 7, 14 and 20, Unagami and Kohnhauser teach the limitations of claims 1, 8 and 15.",
"Unagami, Kohnhauser and Ghannam do not teach the limitations of claims 7, 14 and 20 as follows: further comprising executing a smart contract, by the transport, to record the validation code and a source replacement component on a blockchain based on the blockchain consensus. However, in the same field of endeavor, Viale discloses the limitations of claims 7, 14 and 20 as follows: further comprising executing a smart contract, by the transport, to record the validation code and a source replacement component on a blockchain based on the blockchain consensus.",
"(Viale; Paras. [0062], [0079] & [0131]: executing a smart contract with a proper consensus algorithm when, for example, a change or repair of major parts is performed (i.e. executing a smart contract to record) and recording a part replacement transaction which may include a part identifier in the blockchain (i.e. record the validation code and a source replacement component on a blockchain based on the blockchain consensus)) Viale is combinable with Unagami, Kohnhauser and Ghannam because all are from the same field of endeavor of validity of information.",
"Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified system of Unagami, Kohnhauser and Ghannam to incorporate the use of smart contract for blockchain transactions as in Viale in order to improve the security of the system by providing a means by which transactions are securely performed on the blockchain. Prior Art Considered But Not Relied Upon Bailey (US 2020/0413408 A1) which teaches a method including receiving a first data block including an identifier for a component, receiving a second data block including usage data for the component and a link to the first data block, storing the first and second data blocks in a blockchain, and allocating respective usage tokens to each of a plurality of entities based on the usage data. Allouche (US 10652256 B2) which teaches a vehicle system, comprising multiple electronic control units (ECUs) configured to manage operation of multiple vehicle components, a controller area network (CAN) bus that provides communication pathways between the multiple ECUs, and a threat validation module configured to receive a message from an electronic control unit (ECU) of the multiple ECUs, wherein the message comprises data of a suspicious message flagged by the ECU. Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to BLAKE ISAAC NARRAMORE whose telephone number is (303)297-4357.",
"The examiner can normally be reached on Monday - Friday 0700-1700 MT. 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, Taghi T Arani can be reached on (571) 272-3787. 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. /B.I.N./Examiner, Art Unit 2438 /TAGHI T ARANI/Supervisory Patent Examiner, Art Unit 2438"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-09-18.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DETAILED ACTION Summary This Office action is in response to reply dated December 27, 2021. Claims 7-16 are currently pending.
Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Allowable Subject Matter Claims 7-16 are allowed. The following is an examiner’s statement of reasons for allowance: The prior art references of record, either alone or in combination, fail to disclose and/or fairly suggest the limitations as claimed. 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 BRIAN WILSON whose telephone number is 571-270-5884. The examiner can normally be reached Monday-Friday 9:00-5:00pm.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, CURTIS KUNTZ can be reached on 571-272-7499. 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.
/BRIAN WILSON/Primary Examiner, Art Unit 2687 | 2022-01-06T15:36:14 | [
"DETAILED ACTION Summary This Office action is in response to reply dated December 27, 2021. Claims 7-16 are currently pending. Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Allowable Subject Matter Claims 7-16 are allowed. The following is an examiner’s statement of reasons for allowance: The prior art references of record, either alone or in combination, fail to disclose and/or fairly suggest the limitations as claimed. 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 BRIAN WILSON whose telephone number is 571-270-5884. The examiner can normally be reached Monday-Friday 9:00-5:00pm. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, CURTIS KUNTZ can be reached on 571-272-7499. 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. /BRIAN WILSON/Primary Examiner, Art Unit 2687"
]
| 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 |
Exhibit 10.7
Grant # ______
RESTRICTED STOCK UNIT AGREEMENT
This Restricted Stock Unit Agreement ("Agreement") is made and entered into as of ________ (the "Grant Date") by and between Computer Sciences Corporation, a Nevada corporation (the "Company"), and __________, a full-time employee of the Company and/or one or more of its subsidiaries (the "Employee").
WHEREAS, pursuant to the Company's _______ Stock Incentive Plan (the "Plan"), the Company desires to grant to the Employee, and the Employee desires to accept, a restricted stock unit redeemable in shares of common stock, par value $1.00 per share, of the Company (the "Common Stock"), upon the terms and conditions set forth herein, which terms, conditions and restrictions have been approved by the committee of the Board of Directors administering the Plan (the "Committee");
NOW, THEREFORE, in consideration of the foregoing recital and the covenants set forth herein, the parties hereto hereby agree as follows:
The Company hereby grants to the Employee, and the Employee hereby accepts, a restricted stock unit redeemable by the delivery of _______ shares of Common Stock, which restricted stock unit shall be subject to all of the terms and conditions set forth in this Agreement, including, without limitation, those set forth in Schedule "_____" attached hereto and incorporated herein by this reference (the "RSU").
Except as otherwise provided in this Agreement, the RSU shall be "redeemed" by the Company delivering to the Employee (or after the Employee's death, the beneficiary designated by the Employee for such purpose), on the redemption dates indicated below, the number of shares of Common Stock indicated below across from such dates ("RSU Shares"), together with Dividend Equivalents (as hereinafter defined):
RSU Shares
Redemption Date
(Shares) ____ Anniversary
(Shares) ____ Anniversary
(Shares) ____ Anniversary
The term "Dividend Equivalents" shall mean, with respect to each RSU Share being delivered by the Company upon redemption of the RSU, or cancelled by the Company in payment of withholding taxes, an amount in cash equal to the aggregate amount of all regular cash dividends paid on a share of Common Stock during the period between the Grant Date and the date of such redemption or cancellation, together with interest thereon at the rate credited to amounts deferred under the Company's Deferred Compensation Plan, as such rate may be changed from time to time.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the Grant Date.
EMPLOYEE
___________________________________________
Optionee
The Employee acknowledges receipt of the Plan and a Prospectus relating to the RSU, and further acknowledges that he or she has reviewed this Agreement and the related documents and accepts the provisions thereof.
___________________________________________
Optionee
ADD1
ADD2
ADD3
RESTRICTED STOCK UNIT SCHEDULE RSUA1
ADDITIONAL TERMS AND CONDITIONS
Certain Definitions
. For purposes of this Agreement, the following terms shall have the following meanings:
The "Fair Market Value" of an RSU Share on any date shall be equal to the last sale price, regular way, of a share of Common Stock on such date (or in case the principal United States national securities exchange on which the Common Stock is listed or admitted to trading is not open on such date, the next preceding date upon which it is open), or in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on such securities exchange.
"Change of Control" shall mean the first to occur of the following events: (A) the dissolution or liquidation of the Company; (B) a sale of substantially all of the property and assets of the Company; (C) a merger, consolidation, reorganization or other business combination to which the Company is a party and the consummation of which results in the RSU Shares being exchanged for or converted into cash, property and/or securities not issued by the Company; (D) a merger, consolidation, reorganization or other business combination to which the Company is a party and the consummation of which does not result in the RSU Shares being exchanged for or converted into cash, property and/or securities not issued by the Company, provided that the outstanding voting securities of the Company immediately prior to such business combination (or, if applicable, the securities of the Company into which such voting securities are converted as a result of such business combination) represent less than 50% of the voting power of the Company immediately following such business combination, (E) any date upon which the directors of the Company who were nominated by the Board of Directors for election as directors cease to constitute a majority of the directors of the Company or (F) a change of control of the Company of the type required to be disclosed in a proxy statement pursuant to Item 6(e) (or any successor provision) of Schedule 14A of Regulation 14A promulgated under the Exchange Act (as hereinafter defined).
Accelerated Redemption of the RSU; Termination of the RSU
.
Termination of Employment at Age 62 or Older Other than for Cause
.
If, prior to the redemption of the RSU in full, the Employee's status as a full-time employee of the Company or any of its subsidiaries is terminated at age 62 or older for no reason, or for any reason other than Cause (as hereinafter defined), including, without limitation, by reason of death, Permanent Disability or an Approved Leave of Absence (as such capitalized terms are hereinafter defined), then, unless the Committee, in its sole discretion, shall determine otherwise prior thereto, immediately prior to the close of business on the date upon which the Employee's status as a full-time employee of the Company or any of its subsidiaries is terminated (the "Employment Termination Date") the Company shall redeem the RSU in full.
"Cause" shall mean: (A) fraud, misappropriation, embezzlement or other act of material misconduct against the Company or any of its affiliates; (B) conviction of a felony involving a crime of moral turpitude; (C) willful and knowing violation of any rules or regulations of any governmental or regulatory body material to the business of the Company; or (D) substantial and willful failure to render services in accordance with the terms of his or her employment (other than as a result of illness, accident or other physical or mental incapacity), provided that (X) a demand for performance of services has been delivered to the Employee in writing by the Employee's supervisor at least 60 days prior to termination identifying the manner in which such supervisor believes that the Employee has failed to perform and (Y) the Employee has thereafter failed to remedy such failure to perform.
Termination of Employment Without Cause or for Good Reason at Age 61 or Younger
.
If, prior to the redemption of the RSU in full, the Employee's status as a full-time employee of the Company or any of its subsidiaries is involuntarily terminated at age 61 or younger other than for Cause, or is voluntarily terminated at age 61 or younger for Good Reason (as hereinafter defined), then, immediately prior to the close of business on the Employment Termination Date, the Company shall redeem the RSU in full.
The Employee's voluntary termination of employment shall be deemed to be for "Good Reason" if it occurs within six months of any of the following without the Employee's express written consent:
a material diminution in the Employee's duties, responsibilities or position;
the Company awards to the Employee an annual bonus in respect of any year that is less than 100% of the amount awarded to the Employee in respect of any prior year, unless due to reduced performance by the Company or by the Employee, applying reasonably equivalent standards with respect to both years; or
conduct by the Company occurs that would cause the Employee to commit fraudulent acts or would expose the Employee to criminal liability.
Termination of Employment by Death or Permanent Disability at Age 61 or Younger
.
If, prior to the redemption of the RSU in full, the Employee's status as a full-time employee of the Company or any of its subsidiaries is terminated at age 61 or younger by reason of the death or Permanent Disability of the Employee, then, immediately prior to the close of business on the Employment Termination Date, the Company shall redeem the RSU in full.
"Permanent Disability" shall mean the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. The Employee shall not be deemed to have a Permanent Disability until proof of the existence thereof shall have been furnished to the Board of Directors of the Company in such form and manner, and at such times, as the Board of Directors may require. Any determination by the Board of Directors of the Company that the Employee does or does not have a Permanent Disability shall be final and binding upon the Company and the Employee.
Approved Leave of Absence at Age 61 or Younger
. If, prior to the redemption of the RSU in full, the Employee's status as a full-time employee of the Company or any of its subsidiaries is terminated at age 61 or younger by reason of a leave of absence approved in writing by the Company's Chief Executive Officer or Corporate Vice President of Human Resources (an "Approved Leave of Absence"), then:
the RSU shall (subject to subparagraph (ii) below) be redeemed on the later of:
the date or dates upon which it would otherwise have been redeemed if the Employee had not ceased to be a full-time employee of the Company or its subsidiaries, or
the date upon which the Employee shall again become a full-time employee of the Company or any of its subsidiaries; and
the RSU shall automatically be cancelled on the first anniversary of the Employment Termination Date if the Employee shall not have again become a full-time employee of the Company or any of its subsidiaries prior to such anniversary.
Cancellation of RSU upon Other Termination of Employment
. If, prior to the redemption in full of the RSU, the Employee's status as a full-time employee of the Company or any of its subsidiaries is involuntarily terminated for Cause, or is voluntarily terminated at age 61 or younger for any reason other than Good Reason, death, Permanent Disability or an Approved Leave of Absence, then, unless the Committee shall determine otherwise prior to the Employment Termination Date, the RSU shall automatically be cancelled as of the close of business on the Employment Termination Date.
Change of Control
. Immediately prior to a Change of Control, the RSU shall be redeemed in full.
Other Events
.
The Committee, in its sole discretion, may accelerate the redemption of the RSU at any time and for any reason.
Unless the Committee, by vote of a majority of the directors of the Company who are, and immediately prior to such event were, members of the Committee, shall determine otherwise within ten business days thereafter, the RSU shall be redeemed in full upon the date of the first public announcement that any person or entity, together with all Affiliates and Associates (as such capitalized terms are defined in Rule 12b-2 promulgated under the United States Securities Exchange Act of 1934, as amended (the "Exchange Act")) of such person or entity, shall have become the Beneficial Owner (as defined in Rule 13d-3 promulgated under the Exchange Act) of voting securities of the Company representing 30% or more of the voting power of the Company, provided, however, that the terms "person" and "entity," as used in this subsection (c)(ii), shall not include (A) the Company or any of its subsidiaries, (B) any employee benefit plan of the Company or any of its subsidiaries, or (C) any entity holding voting securities of the Company for, or pursuant to, the terms of any such plan.
Payment of Taxes
.
If the Company and/or the Employee's employer (the "Employer") are obligated to withhold an amount on account of any federal, state or local tax imposed as a result of the grant or redemption of the RSU pursuant to this Agreement (collectively, "Taxes"), including, without limitation, any federal, state or other income tax, or any F.I.C.A., state disability insurance tax or other employment tax (the date upon which the Company and/or the Employer becomes so obligated shall be referred to herein as the "Withholding Date"), then the Employee shall pay to the Company on the Withholding Date, the minimum aggregate amount that the Company and the Employer are so obligated to withhold, as such amount shall be determined by the Company (the "Minimum Withholding Liability"), which payment shall be made by the automatic cancellation by the Company of a portion of the RSU Shares (such shares to be valued on the basis of the aggregate Fair Market Value thereof on the Withholding Date, plus the value of the Dividend Equivalents associated with such shares on the Withholding Date); provided that the RSU Shares to be cancelled shall be those that would otherwise have been delivered to the Employee the soonest upon redemption of the RSU; and provided further, however, that the Employee may instead pay to the Company, by check or wire transfer delivered or made within three business days after the Withholding Date, an amount equal to or greater than the Minimum Withholding Liability.
The Employee acknowledges that neither the Company nor the Employer has:
except to the extent specifically set forth in a prospectus delivered by the Company to the Employee together with this Agreement, made any representation or given any advice to the Employee with respect to the realization or recognition of any Taxes by the Employee; or
undertaken or agreed to structure the RSU, or the grant of the RSU, to reduce or eliminate the Employee's liability or potential liability for Taxes.
Certain Corporate Transactions
. In the event that the outstanding securities of any class then comprising the RSU Shares are increased, decreased or exchanged for or converted into cash, property and/or a different number or kind of securities, or cash, property and/or securities are distributed in respect of such outstanding securities, in either case as a result of a reorganization, merger, consolidation, recapitalization, reclassification, dividend (other than a regular, quarterly cash dividend) or other distribution, stock split, reverse stock split or the like, then, unless the Committee shall determine otherwise, the term "RSU Shares," as used in this Agreement, shall, from and after the date of such event, include such cash, property and/or securities so distributed in respect of the RSU Shares, or into or for which the RSU Shares are so increased, decreased, exchanged or converted.
Effect of Section 409A of the U.S. Internal Revenue Code
. Notwithstanding anything to the contrary in this Agreement, if, upon the advice of its counsel, the Company determines that the redemption of an RSU Share pursuant to this Agreement is or may become subject to the additional tax under Section 409A(a)(1)(B) of the U.S. Internal Revenue Code or any other taxes or penalties imposed under Section 409A ("409A Taxes") as applicable at the time such redemption is otherwise required under this Agreement, then:
such redemption shall be delayed until the date that is six months after the date of the Employee's "
separation from service" (as such term is defined under Section 409A) with the Employer, or such shorter period that, in the opinion of such counsel, is sufficient to avoid the imposition of 409A Taxes (the "Payments Delay Period"); and
if all or any part of such RSU Share has been converted into cash pursuant to Section 4 hereof, then:
upon redemption of such RSU Share, such cash shall be increased by an amount equal to interest thereon for the Payments Delay Period at a rate equal to the 120-month rolling average yield to maturity of the index called the "Merrill Lynch U.S. Corporates, A Rated, 15+ Years Index" (or any successor index, or if neither exists, the most similar index which does exist) as of December 31 of the year preceding the year in which the Payments Delay Period commences, compounded annually; and
the Company shall fund the payment of such cash to the Employee upon redemption of such RSU Share, including the interest to be paid with respect thereto (collectively, the "Delayed Cash Payment"), by establishing and irrevocably funding a trust for the benefit of the Employee. Such trust shall be a grantor trust described in Section 671 of the U.S. Internal Revenue Code and intended not to cause tax to be incurred by the Employee until amounts are paid out from the trust to the Employee. The trust shall provide for distribution of amounts to the Employee in order to pay taxes, if any, that become due on the amounts as to which payment is being delayed during the Payment Delay Period pursuant to this Section 5, but only to the extent permissible under Section 409A of the U.S. Internal Revenue Code without the imposition of 409A Taxes. The establishment and funding of such trust shall not affect the obligation of the Company to pay the Delayed Cash Payment pursuant to this Section 5.
Transferability
. Neither the RSU nor any interest therein may be sold, assigned, conveyed, gifted, pledged, hypothecated or otherwise transferred in any manner.
Data Privacy
.
In order to implement, administer, manage and account for the Employee's participation in the Plan, the Company and/or the Employer may:
collect and use certain personal data regarding the Employee, including, without limitation, the Employee's name, home address and telephone number, work address and telephone number, work e-mail address, date of birth, social insurance or other identification number, term of employment, employment status, nationality and tax residence, and details regarding the terms and conditions, grant, vesting, cancellation, termination and expiration of all restricted stock units and other stock-based incentives granted, awarded or sold to the Employee by the Company (collectively, the "Data");
transfer the Data, in electronic or other form, to employees of the Company and its subsidiaries, and to third parties, who are involved in the implementation, administration and/or management of, and/or accounting for, the Plan, which recipients may be located in the Employee's country or in other countries that may have different data privacy laws and protections than the Employee's country;
transfer the Data, in electronic or other form, to a broker or other third party with whom the Employee has elected to deposit any RSU Shares issued in redemption of the RSU; and
retain the Data for only as long as may be necessary in order to implement, administer, manage and account for the Employee's participation in the Plan.
The Employee hereby consents to the collection, use, transfer and retention of the Data, as described in this Agreement, for the exclusive purpose of implementing, administering, managing and accounting for the Employee's participation in the Plan.
The Employee understands that by contacting his or her local human resources representative, the Employee may:
view the Data;
correct any inaccurate information included within the Data;
request additional information regarding the storage and processing of the Data
request a list with the names and addresses of any potential recipients of the Data; and
under certain circumstances and with certain consequences, prevent further use, transfer, retention and/or processing of the Data.
Plan
. The RSU is granted pursuant to the Plan, as in effect on the Grant Date, and are subject to all the terms and conditions of the Plan, as the same may be amended from time to time; provided, however, that no such amendment shall deprive the Employee, without his or her consent, of the RSU or of any of the Employee's rights under this Agreement. The interpretation and construction by the Committee of the Plan, this Agreement and such rules and regulations as may be adopted by the Committee for the purpose of administering the Plan shall be final and binding upon the Employee. Until the RSU is redeemed in full, the Company shall, upon written request therefor, send a copy of the Plan, in its then-current form, to the Employee.
Employment Rights
. No provision of this Agreement shall (a) be deemed to form an employment contract or relationship with the Company or any of its subsidiaries, (b) confer upon the Employee any right to be or continue to be in the employ of the Company or any of its subsidiaries, (c) affect the right of the Employer to terminate the employment of the Employee, with or without cause, or (d) confer upon the Employee any right to participate in any employee welfare or benefit plan or other program of the Company or any of its subsidiaries other than the Plan. The Employee hereby acknowledges and agrees that the Employer may terminate the employment of the Employee at any time and for any reason, or for no reason, unless applicable law provides otherwise or unless the Employee and the Employer are parties to a written employment agreement that expressly provides otherwise.
Nature of Company Restricted Stock Unit Grants
. The Employee acknowledges and agrees that:
the Plan was established voluntarily by the Company, it is discretionary in nature and it may be modified, suspended or terminated by the Company at any time, as provided in the Plan and this Agreement;
the Company grants restricted stock units voluntarily and on an occasional basis, and the receipt of the RSU by the Employee does not create any contractual or other right to receive any future grant of restricted stock units, or any benefits in lieu of a grant of restricted stock units;
all decisions with respect to future grants of restricted stock units by the Company will be made in the sole discretion of the Company;
the Employee is voluntarily participating in the Plan;
restricted stock units are an extraordinary item which do not constitute compensation of any kind for services rendered to the Company or the Employer, and which are outside the scope of the Employee's employment contract, if any;
restricted stock units are not part of normal or expected compensation or salary for any purposes, including, without limitation, for purposes of calculating any severance, resignation, termination, redundancy or end-of-service payments, or any bonuses, long-service awards or pension or retirement benefits, or any similar payments;
the future value of the RSU is unknown and cannot be predicted with certainty; and
the Employee hereby indemnifies the Company and the Employer against, and irrevocably releases and holds them harmless from, any claim or entitlement to compensation or damages arising from the cancellation of the RSU in accordance with this Agreement, or any diminution in the value of the RSU.
Successors
. This Agreement shall be binding upon and inure to the benefit of the Company and its successors and assigns, on the one hand, and the Employee and his or her heirs, beneficiaries, legatees and personal representatives, on the other hand.
Entire Agreement; Amendments and Waivers
. This Agreement embodies the entire understanding and agreement of the parties with respect to the subject matter hereof, and no promise, condition, representation or warranty, express or implied, not stated or incorporated by reference herein, shall bind either party hereto. None of the terms and conditions of this Agreement may be amended, modified, waived or canceled except by a writing, signed by the parties hereto specifying such amendment, modification, waiver or cancellation. A waiver by either party at any time of compliance with any of the terms and conditions of this Agreement shall not be considered a modification, cancellation or consent to a future waiver of such terms and conditions or of any preceding or succeeding breach thereof, unless expressly so stated.
Severability
. Any provision of this Agreement which is invalid, illegal or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability, without affecting in any way the remaining provisions hereof in such jurisdiction or rendering that or any other provision of this Agreement invalid, illegal or unenforceable in any other jurisdiction.
Governing Law; Consent to Jurisdiction
. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Nevada, United States of America, excluding any conflicts or choice of law rule or principle that might otherwise refer construction or interpretation of this Agreement to the substantive law of another jurisdiction. Any action, suit or proceeding to enforce the terms and provisions of this Agreement, or to resolve any dispute or controversy arising under or in any way relating to this Agreement, may be brought in the state courts for the County of Washoe, State of Nevada, United States of America, and the parties hereto hereby consent to the jurisdiction of such courts. If the Employee has received this or any other document related to the Plan translated into a language other than English, and the translated version is different than the English version, the English version will control.
RESTRICTED STOCK UNIT SCHEDULE RSU2
ADDITIONAL TERMS AND CONDITIONS
Forfeiture Obligations
.
Certain Definitions
.
For purposes of this Agreement, the following terms shall have the following meanings:
"Redemption Date" shall mean, with respect to each RSU Share, the date upon which the RSU was redeemed by the delivery of such RSU Share to the Employee or the date upon which such RSU Share was cancelled in payment of Taxes (as hereinafter defined).
"Measurement Period" shall mean, with respect to each Redemption Date, the period set forth in Section 1(c)(i) or (ii) hereof, respectively.
The "Fair Market Value" of an RSU Share on any date shall be equal to the last sale price, regular way, of a share of Common Stock on such date (or in case the principal United States national securities exchange on which the Common Stock is listed or admitted to trading is not open on such date, the next preceding date upon which it is open), or in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on such securities exchange.
Refund of Stock Value
. If any of the events set forth in Section 1(c)(i) or (ii) hereof shall occur during the Measurement Period for any Redemption Date, then the Employee shall immediately deliver to the Company an amount in cash equal to the aggregate Fair Market Value, determined as of such Redemption Date, of all RSU Shares which were delivered to the Employee or cancelled in payment of Taxes on such Redemption Date.
Triggering Events
. The events referred to in Section 1(b) hereof are as follows:
Competing With the Company after Voluntary Termination of Employment and Prior to Six Months after a Redemption Date
. The Employee participating, as a director, officer, employee, agent, consultant or greater than 5% equityholder (collectively, "Participating"), in any of the following during the period of time commencing on the date upon which the Employee's status as a full-time employee of the Company or its affiliates is voluntarily terminated (the "Voluntary Employment Termination Date"), there being a presumption that any termination of employment is voluntary, and continuing until six months after a Redemption Date (for the purpose of such event, and with respect to each such Redemption Date, the "Measurement Period"):
Participating in any manner in any enterprise that competes with, or is becoming a competitor of, the Company (if the Employee is a Corporate Employee) or any operating business unit of the Company in which the Employee has been employed within one year prior to the Voluntary Employment Termination Date (if the Employee is not a Corporate Employee) in any city in which the Company or such business unit, respectively, provides services or products on the Voluntary Employment Termination Date; or
Participating in any other organization or business, which organization or business, or which Participation therein, is or is becoming otherwise prejudicial to or in conflict with the interests of the Company.
Engaging in Certain Activities after Voluntary or Involuntary Termination of Employment and Prior to One Year after a Redemption Date
. The Employee engaging in any of the following activities during the period of time commencing on the date upon which the Employee's status as a full-time employee of the Company or its affiliates is voluntarily or involuntarily terminated (the "Employment Termination Date") and continuing until one year after a Redemption Date (for the purpose of such events, and with respect to each such Redemption Date, the "Measurement Period"):
Solicitation of Customers or Prospective Customers
. Directly or indirectly soliciting any of the following with respect to any of the services or products that the Company or any of its affiliates then provide to customers:
any person or entity that the Employee knew to be a customer of the Company or any of its affiliates; or
any person or entity whose business the Employee solicited on behalf of the Company or its affiliates during the one-year period preceding the Employment Termination Date.
Solicitation or Hiring of Employees
. Directly or indirectly soliciting or hiring any person who then is an employee of the Company or any of its affiliates.
Disclosure of Confidential Information
. Use, or disclosure, communication or delivery to any person or entity, of any confidential business information or trade secrets that the Employee obtained during the course of his or her employment with the Company or any of its affiliates (collectively, "Confidential Information"). Confidential Information includes, without limitation, the following:
non-public financial information;
non-public operational information, including, without limitation, information relating to business or market strategies, pricing policies and methodologies, research and development plans, or the introduction of new services or products;
information regarding employees, including, without limitation, names, addresses, contact information and compensation;
information regarding customers and suppliers, including, without limitation, names, addresses, contact information and requirements, and the terms and conditions of the business arrangements with such customers and suppliers;
information regarding potential acquisitions or dispositions of businesses or products; and
information relating to proprietary technological or intellectual property, or the operational or functional features or limitations thereof.
Release of Forfeiture Obligations
.
Notwithstanding the foregoing, the Employee shall be released from (A) all of his or her obligations under Section 1(b) hereof in the event that a Change of Control (as hereinafter defined) occurs within three years prior to the Employment Termination Date, and (B) some or all of his or her obligations under Section 1(b) hereof in the event that the Committee (if the Employee is an executive officer of the Company) or the Company's Chief Executive Officer (if the Employee is not an executive officer of the Company) shall determine, in their respective sole discretion, that such release is in the best interests of the Company.
"Change of Control" shall mean the first to occur of the following events: (A) the dissolution or liquidation of the Company; (B) a sale of substantially all of the property and assets of the Company; (C) a merger, consolidation, reorganization or other business combination to which the Company is a party and the consummation of which results in the RSU Shares being exchanged for or converted into cash, property and/or securities not issued by the Company; (D) a merger, consolidation, reorganization or other business combination to which the Company is a party and the consummation of which does not result in the RSU Shares being exchanged for or converted into cash, property and/or securities not issued by the Company, provided that the outstanding voting securities of the Company immediately prior to such business combination (or, if applicable, the securities of the Company into which such voting securities are converted as a result of such business combination) represent less than 50% of the voting power of the Company immediately following such business combination, (E) any date upon which the directors of the Company who were nominated by the Board of Directors for election as directors cease to constitute a majority of the directors of the Company or (F) a change of control of the Company of the type required to be disclosed in a proxy statement pursuant to Item 6(e) (or any successor provision) of Schedule 14A of Regulation 14A promulgated under the Exchange Act (as hereinafter defined).
Effect on Other Rights and Remedies
. The rights of the Company set forth in this Section 1 shall not limit or restrict in any manner any rights or remedies which the Company or any of its affiliates may have under law or under any separate employment, confidentiality or other agreement with the Employee or otherwise with respect to the events described in Section 1(c) hereof.
Reasonableness
. The Employee agrees that the terms and conditions set forth in this Agreement are fair and reasonable and are reasonably required for the protection of the interests of the Company. If, however, in any judicial proceeding any provision of this Agreement is found to be so broad as to be unenforceable, the Employee and the Company agree that such provision shall be interpreted to be only so broad as to be enforceable.
Accelerated Redemption of the RSU; Cancellation of the RSU
.
Termination of Employment at Age 62 or Older Other than for Cause with at least 10 Years of Service
.
If, prior to the redemption of the RSU in full, the Employee's status as a full-time employee of the Company or any of its subsidiaries is terminated at age 62 or older for no reason, or for any reason other than Cause (as hereinafter defined), including, without limitation, by reason of death, permanent disability, a Lay-Off or an Approved Leave of Absence (as such capitalized terms are hereinafter defined), and the Employee shall have been (or for any other purpose shall have been treated as if he or she had been) a continuous full-time employee of the Company or its subsidiaries for at least 10 years immediately prior to the date of termination of full-time status, then, unless the Committee, in its sole discretion, shall determine otherwise prior thereto, immediately prior to the close of business on the Employment Termination Date the Company shall redeem the RSU in full.
"Cause" shall mean: (A) fraud, misappropriation, embezzlement or other act of material misconduct against the Company or any of its affiliates; (B) conviction of a felony involving a crime of moral turpitude; (C) willful and knowing violation of any rules or regulations of any governmental or regulatory body material to the business of the Company; or (D) substantial and willful failure to render services in accordance with the terms of his or her employment (other than as a result of illness, accident or other physical or mental incapacity), provided that (X) a demand for performance of services has been delivered to the Employee in writing by the Employee's supervisor at least 60 days prior to termination identifying the manner in which such supervisor believes that the Employee has failed to perform and (Y) the Employee has thereafter failed to remedy such failure to perform.
Lay-Off or Approved Leave of Absence
. If, prior to the redemption of the RSU in full, the Employee's status as a full-time employee of the Company or any of its subsidiaries is terminated (other than pursuant to Section 2(a)(i) hereof) by reason of a permanent or temporary lay-off (a "Lay-Off") or a leave of absence approved in writing by the Company's Chief Executive Officer or Corporate Vice President of Human Resources (an "Approved Leave of Absence"), then:
the RSU shall (subject to subparagraph (ii) below) be redeemed on the later of:
the date or dates upon which it would otherwise have been redeemed if the Employee had not ceased to be a full-time employee of the Company or its subsidiaries, or
the date upon which the Employee shall again become a full-time employee of the Company or any of its subsidiaries; and
the RSU shall automatically be cancelled on the first anniversary of the Employment Termination Date if the Employee shall not have again become a full-time employee of the Company or any of its subsidiaries prior to such anniversary.
Cancellation of RSU upon Other Termination of Employment
. If, prior to the redemption in full of the RSU, the Employee's status as a full-time employee of the Company or any of its subsidiaries is voluntarily or involuntarily terminated other than pursuant to Section 2(a)(i) or (b) hereof, then, unless the Committee shall determine otherwise prior to the Employment Termination Date, the RSU shall automatically be cancelled as of the close of business on the Employment Termination Date.
Change of Control
. Immediately prior to a Change of Control, the RSU shall be redeemed in full.
Other Events
.
The Committee, in its sole discretion, may accelerate the redemption of the RSU at any time and for any reason.
Unless the Committee, by vote of a majority of the directors of the Company who are, and immediately prior to such event were, members of the Committee, shall determine otherwise within ten business days thereafter, the RSU shall be redeemed in full upon the date of the first public announcement that any person or entity, together with all Affiliates and Associates (as such capitalized terms are defined in Rule 12b-2 promulgated under the United States Securities Exchange Act of 1934, as amended (the "Exchange Act")) of such person or entity, shall have become the Beneficial Owner (as defined in Rule 13d-3 promulgated under the Exchange Act) of voting securities of the Company representing 30% or more of the voting power of the Company, provided, however, that the terms "person" and "entity," as used in this subsection (c)(ii), shall not include (A) the Company or any of its subsidiaries, (B) any employee benefit plan of the Company or any of its subsidiaries, or (C) any entity holding voting securities of the Company for, or pursuant to, the terms of any such plan.
Payment of Taxes
.
If the Company and/or the Employee's employer (the "Employer") are obligated to withhold an amount on account of any federal, state or local tax imposed as a result of the grant or redemption of the RSU pursuant to this Agreement (collectively, "Taxes"), including, without limitation, any federal, state or other income tax, or any F.I.C.A., state disability insurance tax or other employment tax (the date upon which the Company and/or the Employer becomes so obligated shall be referred to herein as the "Withholding Date"), then the Employee shall pay to the Company on the Withholding Date, the minimum aggregate amount that the Company and the Employer are so obligated to withhold, as such amount shall be determined by the Company (the "Minimum Withholding Liability"), which payment shall be made by the automatic cancellation by the Company of a portion of the RSU Shares (such shares to be valued on the basis of the aggregate Fair Market Value thereof on the Withholding Date
, plus the value of the Dividend Equivalents associated with such shares on the Withholding Date); provided that the RSU Shares to be cancelled shall be those that would otherwise have been delivered to the Employee the soonest upon redemption of the RSU; and provided further, however, that the Employee may instead pay to the Company, by check or wire transfer delivered or made within three business days after the Withholding Date, an amount equal to or greater than the Minimum Withholding Liability.
The Employee acknowledges that neither the Company nor the Employer has:
except to the extent specifically set forth in a prospectus delivered by the Company to the Employee together with this Agreement, made any representation or given any advice to the Employee with respect to the realization or recognition of any Taxes by the Employee; or
undertaken or agreed to structure the RSU, or the grant of the RSU, to reduce or eliminate the Employee's liability or potential liability for Taxes.
Certain Corporate Transactions
. In the event that the outstanding securities of any class then comprising the RSU Shares are increased, decreased or exchanged for or converted into cash, property and/or a different number or kind of securities, or cash, property and/or securities are distributed in respect of such outstanding securities, in either case as a result of a reorganization, merger, consolidation, recapitalization, reclassification, dividend (other than a regular, quarterly cash dividend) or other distribution, stock split, reverse stock split or the like, then, unless the Committee shall determine otherwise, the term "RSU Shares," as used in this Agreement, shall, from and after the date of such event, include such cash, property and/or securities so distributed in respect of the RSU Shares, or into or for which the RSU Shares are so increased, decreased, exchanged or converted.
Effect of Section 409A of the U.S. Internal Revenue Code
. Notwithstanding anything to the contrary in this Agreement, if, upon the advice of its counsel, the Company determines that the redemption of an RSU Share pursuant to this Agreement is or may become subject to the additional tax under Section 409A(a)(1)(B) of the U.S. Internal Revenue Code or any other taxes or penalties imposed under Section 409A ("409A Taxes") as applicable at the time such redemption is otherwise required under this Agreement, then:
such redemption shall be delayed until the date that is six months after the date of the Employee's "
separation from service" (as such term is defined under Section 409A) with the Employer, or such shorter period that, in the opinion of such counsel, is sufficient to avoid the imposition of 409A Taxes (the "Payments Delay Period"); and
if all or any part of such RSU Share has been converted into cash pursuant to Section 4 hereof, then:
upon redemption of such RSU Share, such cash shall be increased by an amount equal to interest thereon for the Payments Delay Period at a rate equal to the 120-month rolling average yield to maturity of the index called the "Merrill Lynch U.S. Corporates, A Rated, 15+ Years Index" (or any successor index, or if neither exists, the most similar index which does exist) as of December 31 of the year preceding the year in which the Payments Delay Period commences, compounded annually; and
the Company shall fund the payment of such cash to the Employee upon redemption of such RSU Share, including the interest to be paid with respect thereto (collectively, the "Delayed Cash Payment"), by establishing and irrevocably funding a trust for the benefit of the Employee. Such trust shall be a grantor trust described in Section 671 of the U.S. Internal Revenue Code and intended not to cause tax to be incurred by the Employee until amounts are paid out from the trust to the Employee. The trust shall provide for distribution of amounts to the Employee in order to pay taxes, if any, that become due on the amounts as to which payment is being delayed during the Payment Delay Period pursuant to this Section 5, but only to the extent permissible under Section 409A of the U.S. Internal Revenue Code without the imposition of 409A Taxes. The establishment and funding of such trust shall not affect the obligation of the Company to pay the Delayed Cash Payment pursuant to this Section 5.
Transferability
. Neither the RSU nor any interest therein may be sold, assigned, conveyed, gifted, pledged, hypothecated or otherwise transferred in any manner.
Data Privacy
.
In order to implement, administer, manage and account for the Employee's participation in the Plan, the Company and/or the Employer may:
collect and use certain personal data regarding the Employee, including, without limitation, the Employee's name, home address and telephone number, work address and telephone number, work e-mail address, date of birth, social insurance or other identification number, term of employment, employment status, nationality and tax residence, and details regarding the terms and conditions, grant, vesting, cancellation, termination and expiration of all restricted stock units and other stock-based incentives granted, awarded or sold to the Employee by the Company (collectively, the "Data");
transfer the Data, in electronic or other form, to employees of the Company and its subsidiaries, and to third parties, who are involved in the implementation, administration and/or management of, and/or accounting for, the Plan, which recipients may be located in the Employee's country or in other countries that may have different data privacy laws and protections than the Employee's country;
transfer the Data, in electronic or other form, to a broker or other third party with whom the Employee has elected to deposit any RSU Shares issued in redemption of the RSU; and
retain the Data for only as long as may be necessary in order to implement, administer, manage and account for the Employee's participation in the Plan.
The Employee hereby consents to the collection, use, transfer and retention of the Data, as described in this Agreement, for the exclusive purpose of implementing, administering, managing and accounting for the Employee's participation in the Plan.
The Employee understands that by contacting his or her local human resources representative, the Employee may:
view the Data;
correct any inaccurate information included within the Data;
request additional information regarding the storage and processing of the Data
request a list with the names and addresses of any potential recipients of the Data; and
under certain circumstances and with certain consequences, prevent further use, transfer, retention and/or processing of the Data.
Plan
. The RSU is granted pursuant to the Plan, as in effect on the Grant Date, and are subject to all the terms and conditions of the Plan, as the same may be amended from time to time; provided, however, that no such amendment shall deprive the Employee, without his or her consent, of the RSU or of any of the Employee's rights under this Agreement. The interpretation and construction by the Committee of the Plan, this Agreement and such rules and regulations as may be adopted by the Committee for the purpose of administering the Plan shall be final and binding upon the Employee. Until the RSU is redeemed in full, the Company shall, upon written request therefor, send a copy of the Plan, in its then-current form, to the Employee.
Employment Rights
. No provision of this Agreement shall (a) be deemed to form an employment contract or relationship with the Company or any of its subsidiaries, (b) confer upon the Employee any right to be or continue to be in the employ of the Company or any of its subsidiaries, (c) affect the right of the Employer to terminate the employment of the Employee, with or without cause, or (d) confer upon the Employee any right to participate in any employee welfare or benefit plan or other program of the Company or any of its subsidiaries other than the Plan. The Employee hereby acknowledges and agrees that the Employer may terminate the employment of the Employee at any time and for any reason, or for no reason, unless applicable law provides otherwise or unless the Employee and the Employer are parties to a written employment agreement that expressly provides otherwise.
Nature of Company Restricted Stock Grants
. The Employee acknowledges and agrees that:
the Plan was established voluntarily by the Company, it is discretionary in nature and it may be modified, suspended or terminated by the Company at any time, as provided in the Plan and this Agreement;
the Company grants restricted stock units voluntarily and on an occasional basis, and the receipt of the RSU by the Employee does not create any contractual or other right to receive any future grant of restricted stock units, or any benefits in lieu of a grant of restricted stock units;
all decisions with respect to future grants of restricted stock units by the Company will be made in the sole discretion of the Company;
the Employee is voluntarily participating in the Plan;
restricted stock units are an extraordinary item which do not constitute compensation of any kind for services rendered to the Company or the Employer, and which are outside the scope of the Employee's employment contract, if any;
restricted stock units are not part of normal or expected compensation or salary for any purposes, including, without limitation, for purposes of calculating any severance, resignation, termination, redundancy or end-of-service payments, or any bonuses, long-service awards or pension or retirement benefits, or any similar payments;
the future value of the RSU is unknown and cannot be predicted with certainty; and
the Employee hereby indemnifies the Company and the Employer against, and irrevocably releases and holds them harmless from, any claim or entitlement to compensation or damages arising from the cancellation of the RSU in accordance with this Agreement, or any diminution in the value of the RSU.
Successors
. This Agreement shall be binding upon and inure to the benefit of the Company and its successors and assigns, on the one hand, and the Employee and his or her heirs, beneficiaries, legatees and personal representatives, on the other hand.
Entire Agreement; Amendments and Waivers
. This Agreement embodies the entire understanding and agreement of the parties with respect to the subject matter hereof, and no promise, condition, representation or warranty, express or implied, not stated or incorporated by reference herein, shall bind either party hereto. None of the terms and conditions of this Agreement may be amended, modified, waived or canceled except by a writing, signed by the parties hereto specifying such amendment, modification, waiver or cancellation. A waiver by either party at any time of compliance with any of the terms and conditions of this Agreement shall not be considered a modification, cancellation or consent to a future waiver of such terms and conditions or of any preceding or succeeding breach thereof, unless expressly so stated.
Severability
. Any provision of this Agreement which is invalid, illegal or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability, without affecting in any way the remaining provisions hereof in such jurisdiction or rendering that or any other provision of this Agreement invalid, illegal or unenforceable in any other jurisdiction.
Governing Law; Consent to Jurisdiction
. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Nevada, United States of America, excluding any conflicts or choice of law rule or principle that might otherwise refer construction or interpretation of this Agreement to the substantive law of another jurisdiction. Any action, suit or proceeding to enforce the terms and provisions of this Agreement, or to resolve any dispute or controversy arising under or in any way relating to this Agreement, may be brought in the state courts for the County of Washoe, State of Nevada, United States of America, and the parties hereto hereby consent to the jurisdiction of such courts. If the Employee has received this or any other document related to the Plan translated into a language other than English, and the translated version is different than the English version, the English version will control. | [
"Exhibit 10.7 Grant # ______ RESTRICTED STOCK UNIT AGREEMENT This Restricted Stock Unit Agreement (\"Agreement\") is made and entered into as of ________ (the \"Grant Date\") by and between Computer Sciences Corporation, a Nevada corporation (the \"Company\"), and __________, a full-time employee of the Company and/or one or more of its subsidiaries (the \"Employee\"). WHEREAS, pursuant to the Company's _______ Stock Incentive Plan (the \"Plan\"), the Company desires to grant to the Employee, and the Employee desires to accept, a restricted stock unit redeemable in shares of common stock, par value $1.00 per share, of the Company (the \"Common Stock\"), upon the terms and conditions set forth herein, which terms, conditions and restrictions have been approved by the committee of the Board of Directors administering the Plan (the \"Committee\"); NOW, THEREFORE, in consideration of the foregoing recital and the covenants set forth herein, the parties hereto hereby agree as follows: The Company hereby grants to the Employee, and the Employee hereby accepts, a restricted stock unit redeemable by the delivery of _______ shares of Common Stock, which restricted stock unit shall be subject to all of the terms and conditions set forth in this Agreement, including, without limitation, those set forth in Schedule \"_____\" attached hereto and incorporated herein by this reference (the \"RSU\").",
"Except as otherwise provided in this Agreement, the RSU shall be \"redeemed\" by the Company delivering to the Employee (or after the Employee's death, the beneficiary designated by the Employee for such purpose), on the redemption dates indicated below, the number of shares of Common Stock indicated below across from such dates (\"RSU Shares\"), together with Dividend Equivalents (as hereinafter defined): RSU Shares Redemption Date (Shares) ____ Anniversary (Shares) ____ Anniversary (Shares) ____ Anniversary The term \"Dividend Equivalents\" shall mean, with respect to each RSU Share being delivered by the Company upon redemption of the RSU, or cancelled by the Company in payment of withholding taxes, an amount in cash equal to the aggregate amount of all regular cash dividends paid on a share of Common Stock during the period between the Grant Date and the date of such redemption or cancellation, together with interest thereon at the rate credited to amounts deferred under the Company's Deferred Compensation Plan, as such rate may be changed from time to time. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the Grant Date.",
"EMPLOYEE ___________________________________________ Optionee The Employee acknowledges receipt of the Plan and a Prospectus relating to the RSU, and further acknowledges that he or she has reviewed this Agreement and the related documents and accepts the provisions thereof. ___________________________________________ Optionee ADD1 ADD2 ADD3 RESTRICTED STOCK UNIT SCHEDULE RSUA1 ADDITIONAL TERMS AND CONDITIONS Certain Definitions . For purposes of this Agreement, the following terms shall have the following meanings: The \"Fair Market Value\" of an RSU Share on any date shall be equal to the last sale price, regular way, of a share of Common Stock on such date (or in case the principal United States national securities exchange on which the Common Stock is listed or admitted to trading is not open on such date, the next preceding date upon which it is open), or in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on such securities exchange.",
"\"Change of Control\" shall mean the first to occur of the following events: (A) the dissolution or liquidation of the Company; (B) a sale of substantially all of the property and assets of the Company; (C) a merger, consolidation, reorganization or other business combination to which the Company is a party and the consummation of which results in the RSU Shares being exchanged for or converted into cash, property and/or securities not issued by the Company; (D) a merger, consolidation, reorganization or other business combination to which the Company is a party and the consummation of which does not result in the RSU Shares being exchanged for or converted into cash, property and/or securities not issued by the Company, provided that the outstanding voting securities of the Company immediately prior to such business combination (or, if applicable, the securities of the Company into which such voting securities are converted as a result of such business combination) represent less than 50% of the voting power of the Company immediately following such business combination, (E) any date upon which the directors of the Company who were nominated by the Board of Directors for election as directors cease to constitute a majority of the directors of the Company or (F) a change of control of the Company of the type required to be disclosed in a proxy statement pursuant to Item 6(e) (or any successor provision) of Schedule 14A of Regulation 14A promulgated under the Exchange Act (as hereinafter defined). Accelerated Redemption of the RSU; Termination of the RSU .",
"Termination of Employment at Age 62 or Older Other than for Cause . If, prior to the redemption of the RSU in full, the Employee's status as a full-time employee of the Company or any of its subsidiaries is terminated at age 62 or older for no reason, or for any reason other than Cause (as hereinafter defined), including, without limitation, by reason of death, Permanent Disability or an Approved Leave of Absence (as such capitalized terms are hereinafter defined), then, unless the Committee, in its sole discretion, shall determine otherwise prior thereto, immediately prior to the close of business on the date upon which the Employee's status as a full-time employee of the Company or any of its subsidiaries is terminated (the \"Employment Termination Date\") the Company shall redeem the RSU in full. \"Cause\" shall mean: (A) fraud, misappropriation, embezzlement or other act of material misconduct against the Company or any of its affiliates; (B) conviction of a felony involving a crime of moral turpitude; (C) willful and knowing violation of any rules or regulations of any governmental or regulatory body material to the business of the Company; or (D) substantial and willful failure to render services in accordance with the terms of his or her employment (other than as a result of illness, accident or other physical or mental incapacity), provided that (X) a demand for performance of services has been delivered to the Employee in writing by the Employee's supervisor at least 60 days prior to termination identifying the manner in which such supervisor believes that the Employee has failed to perform and (Y) the Employee has thereafter failed to remedy such failure to perform.",
"Termination of Employment Without Cause or for Good Reason at Age 61 or Younger . If, prior to the redemption of the RSU in full, the Employee's status as a full-time employee of the Company or any of its subsidiaries is involuntarily terminated at age 61 or younger other than for Cause, or is voluntarily terminated at age 61 or younger for Good Reason (as hereinafter defined), then, immediately prior to the close of business on the Employment Termination Date, the Company shall redeem the RSU in full. The Employee's voluntary termination of employment shall be deemed to be for \"Good Reason\" if it occurs within six months of any of the following without the Employee's express written consent: a material diminution in the Employee's duties, responsibilities or position; the Company awards to the Employee an annual bonus in respect of any year that is less than 100% of the amount awarded to the Employee in respect of any prior year, unless due to reduced performance by the Company or by the Employee, applying reasonably equivalent standards with respect to both years; or conduct by the Company occurs that would cause the Employee to commit fraudulent acts or would expose the Employee to criminal liability. Termination of Employment by Death or Permanent Disability at Age 61 or Younger .",
"If, prior to the redemption of the RSU in full, the Employee's status as a full-time employee of the Company or any of its subsidiaries is terminated at age 61 or younger by reason of the death or Permanent Disability of the Employee, then, immediately prior to the close of business on the Employment Termination Date, the Company shall redeem the RSU in full. \"Permanent Disability\" shall mean the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. The Employee shall not be deemed to have a Permanent Disability until proof of the existence thereof shall have been furnished to the Board of Directors of the Company in such form and manner, and at such times, as the Board of Directors may require.",
"Any determination by the Board of Directors of the Company that the Employee does or does not have a Permanent Disability shall be final and binding upon the Company and the Employee. Approved Leave of Absence at Age 61 or Younger . If, prior to the redemption of the RSU in full, the Employee's status as a full-time employee of the Company or any of its subsidiaries is terminated at age 61 or younger by reason of a leave of absence approved in writing by the Company's Chief Executive Officer or Corporate Vice President of Human Resources (an \"Approved Leave of Absence\"), then: the RSU shall (subject to subparagraph (ii) below) be redeemed on the later of: the date or dates upon which it would otherwise have been redeemed if the Employee had not ceased to be a full-time employee of the Company or its subsidiaries, or the date upon which the Employee shall again become a full-time employee of the Company or any of its subsidiaries; and the RSU shall automatically be cancelled on the first anniversary of the Employment Termination Date if the Employee shall not have again become a full-time employee of the Company or any of its subsidiaries prior to such anniversary. Cancellation of RSU upon Other Termination of Employment . If, prior to the redemption in full of the RSU, the Employee's status as a full-time employee of the Company or any of its subsidiaries is involuntarily terminated for Cause, or is voluntarily terminated at age 61 or younger for any reason other than Good Reason, death, Permanent Disability or an Approved Leave of Absence, then, unless the Committee shall determine otherwise prior to the Employment Termination Date, the RSU shall automatically be cancelled as of the close of business on the Employment Termination Date.",
"Change of Control . Immediately prior to a Change of Control, the RSU shall be redeemed in full. Other Events . The Committee, in its sole discretion, may accelerate the redemption of the RSU at any time and for any reason. Unless the Committee, by vote of a majority of the directors of the Company who are, and immediately prior to such event were, members of the Committee, shall determine otherwise within ten business days thereafter, the RSU shall be redeemed in full upon the date of the first public announcement that any person or entity, together with all Affiliates and Associates (as such capitalized terms are defined in Rule 12b-2 promulgated under the United States Securities Exchange Act of 1934, as amended (the \"Exchange Act\")) of such person or entity, shall have become the Beneficial Owner (as defined in Rule 13d-3 promulgated under the Exchange Act) of voting securities of the Company representing 30% or more of the voting power of the Company, provided, however, that the terms \"person\" and \"entity,\" as used in this subsection (c)(ii), shall not include (A) the Company or any of its subsidiaries, (B) any employee benefit plan of the Company or any of its subsidiaries, or (C) any entity holding voting securities of the Company for, or pursuant to, the terms of any such plan. Payment of Taxes .",
"If the Company and/or the Employee's employer (the \"Employer\") are obligated to withhold an amount on account of any federal, state or local tax imposed as a result of the grant or redemption of the RSU pursuant to this Agreement (collectively, \"Taxes\"), including, without limitation, any federal, state or other income tax, or any F.I.C.A., state disability insurance tax or other employment tax (the date upon which the Company and/or the Employer becomes so obligated shall be referred to herein as the \"Withholding Date\"), then the Employee shall pay to the Company on the Withholding Date, the minimum aggregate amount that the Company and the Employer are so obligated to withhold, as such amount shall be determined by the Company (the \"Minimum Withholding Liability\"), which payment shall be made by the automatic cancellation by the Company of a portion of the RSU Shares (such shares to be valued on the basis of the aggregate Fair Market Value thereof on the Withholding Date, plus the value of the Dividend Equivalents associated with such shares on the Withholding Date); provided that the RSU Shares to be cancelled shall be those that would otherwise have been delivered to the Employee the soonest upon redemption of the RSU; and provided further, however, that the Employee may instead pay to the Company, by check or wire transfer delivered or made within three business days after the Withholding Date, an amount equal to or greater than the Minimum Withholding Liability.",
"The Employee acknowledges that neither the Company nor the Employer has: except to the extent specifically set forth in a prospectus delivered by the Company to the Employee together with this Agreement, made any representation or given any advice to the Employee with respect to the realization or recognition of any Taxes by the Employee; or undertaken or agreed to structure the RSU, or the grant of the RSU, to reduce or eliminate the Employee's liability or potential liability for Taxes. Certain Corporate Transactions .",
"In the event that the outstanding securities of any class then comprising the RSU Shares are increased, decreased or exchanged for or converted into cash, property and/or a different number or kind of securities, or cash, property and/or securities are distributed in respect of such outstanding securities, in either case as a result of a reorganization, merger, consolidation, recapitalization, reclassification, dividend (other than a regular, quarterly cash dividend) or other distribution, stock split, reverse stock split or the like, then, unless the Committee shall determine otherwise, the term \"RSU Shares,\" as used in this Agreement, shall, from and after the date of such event, include such cash, property and/or securities so distributed in respect of the RSU Shares, or into or for which the RSU Shares are so increased, decreased, exchanged or converted. Effect of Section 409A of the U.S. Internal Revenue Code .",
"Notwithstanding anything to the contrary in this Agreement, if, upon the advice of its counsel, the Company determines that the redemption of an RSU Share pursuant to this Agreement is or may become subject to the additional tax under Section 409A(a)(1)(B) of the U.S. Internal Revenue Code or any other taxes or penalties imposed under Section 409A (\"409A Taxes\") as applicable at the time such redemption is otherwise required under this Agreement, then: such redemption shall be delayed until the date that is six months after the date of the Employee's \" separation from service\" (as such term is defined under Section 409A) with the Employer, or such shorter period that, in the opinion of such counsel, is sufficient to avoid the imposition of 409A Taxes (the \"Payments Delay Period\"); and if all or any part of such RSU Share has been converted into cash pursuant to Section 4 hereof, then: upon redemption of such RSU Share, such cash shall be increased by an amount equal to interest thereon for the Payments Delay Period at a rate equal to the 120-month rolling average yield to maturity of the index called the \"Merrill Lynch U.S. Corporates, A Rated, 15+ Years Index\" (or any successor index, or if neither exists, the most similar index which does exist) as of December 31 of the year preceding the year in which the Payments Delay Period commences, compounded annually; and the Company shall fund the payment of such cash to the Employee upon redemption of such RSU Share, including the interest to be paid with respect thereto (collectively, the \"Delayed Cash Payment\"), by establishing and irrevocably funding a trust for the benefit of the Employee.",
"Such trust shall be a grantor trust described in Section 671 of the U.S. Internal Revenue Code and intended not to cause tax to be incurred by the Employee until amounts are paid out from the trust to the Employee. The trust shall provide for distribution of amounts to the Employee in order to pay taxes, if any, that become due on the amounts as to which payment is being delayed during the Payment Delay Period pursuant to this Section 5, but only to the extent permissible under Section 409A of the U.S. Internal Revenue Code without the imposition of 409A Taxes. The establishment and funding of such trust shall not affect the obligation of the Company to pay the Delayed Cash Payment pursuant to this Section 5. Transferability . Neither the RSU nor any interest therein may be sold, assigned, conveyed, gifted, pledged, hypothecated or otherwise transferred in any manner. Data Privacy . In order to implement, administer, manage and account for the Employee's participation in the Plan, the Company and/or the Employer may: collect and use certain personal data regarding the Employee, including, without limitation, the Employee's name, home address and telephone number, work address and telephone number, work e-mail address, date of birth, social insurance or other identification number, term of employment, employment status, nationality and tax residence, and details regarding the terms and conditions, grant, vesting, cancellation, termination and expiration of all restricted stock units and other stock-based incentives granted, awarded or sold to the Employee by the Company (collectively, the \"Data\"); transfer the Data, in electronic or other form, to employees of the Company and its subsidiaries, and to third parties, who are involved in the implementation, administration and/or management of, and/or accounting for, the Plan, which recipients may be located in the Employee's country or in other countries that may have different data privacy laws and protections than the Employee's country; transfer the Data, in electronic or other form, to a broker or other third party with whom the Employee has elected to deposit any RSU Shares issued in redemption of the RSU; and retain the Data for only as long as may be necessary in order to implement, administer, manage and account for the Employee's participation in the Plan.",
"The Employee hereby consents to the collection, use, transfer and retention of the Data, as described in this Agreement, for the exclusive purpose of implementing, administering, managing and accounting for the Employee's participation in the Plan. The Employee understands that by contacting his or her local human resources representative, the Employee may: view the Data; correct any inaccurate information included within the Data; request additional information regarding the storage and processing of the Data request a list with the names and addresses of any potential recipients of the Data; and under certain circumstances and with certain consequences, prevent further use, transfer, retention and/or processing of the Data. Plan . The RSU is granted pursuant to the Plan, as in effect on the Grant Date, and are subject to all the terms and conditions of the Plan, as the same may be amended from time to time; provided, however, that no such amendment shall deprive the Employee, without his or her consent, of the RSU or of any of the Employee's rights under this Agreement. The interpretation and construction by the Committee of the Plan, this Agreement and such rules and regulations as may be adopted by the Committee for the purpose of administering the Plan shall be final and binding upon the Employee.",
"Until the RSU is redeemed in full, the Company shall, upon written request therefor, send a copy of the Plan, in its then-current form, to the Employee. Employment Rights . No provision of this Agreement shall (a) be deemed to form an employment contract or relationship with the Company or any of its subsidiaries, (b) confer upon the Employee any right to be or continue to be in the employ of the Company or any of its subsidiaries, (c) affect the right of the Employer to terminate the employment of the Employee, with or without cause, or (d) confer upon the Employee any right to participate in any employee welfare or benefit plan or other program of the Company or any of its subsidiaries other than the Plan. The Employee hereby acknowledges and agrees that the Employer may terminate the employment of the Employee at any time and for any reason, or for no reason, unless applicable law provides otherwise or unless the Employee and the Employer are parties to a written employment agreement that expressly provides otherwise. Nature of Company Restricted Stock Unit Grants .",
"The Employee acknowledges and agrees that: the Plan was established voluntarily by the Company, it is discretionary in nature and it may be modified, suspended or terminated by the Company at any time, as provided in the Plan and this Agreement; the Company grants restricted stock units voluntarily and on an occasional basis, and the receipt of the RSU by the Employee does not create any contractual or other right to receive any future grant of restricted stock units, or any benefits in lieu of a grant of restricted stock units; all decisions with respect to future grants of restricted stock units by the Company will be made in the sole discretion of the Company; the Employee is voluntarily participating in the Plan; restricted stock units are an extraordinary item which do not constitute compensation of any kind for services rendered to the Company or the Employer, and which are outside the scope of the Employee's employment contract, if any; restricted stock units are not part of normal or expected compensation or salary for any purposes, including, without limitation, for purposes of calculating any severance, resignation, termination, redundancy or end-of-service payments, or any bonuses, long-service awards or pension or retirement benefits, or any similar payments; the future value of the RSU is unknown and cannot be predicted with certainty; and the Employee hereby indemnifies the Company and the Employer against, and irrevocably releases and holds them harmless from, any claim or entitlement to compensation or damages arising from the cancellation of the RSU in accordance with this Agreement, or any diminution in the value of the RSU. Successors .",
"This Agreement shall be binding upon and inure to the benefit of the Company and its successors and assigns, on the one hand, and the Employee and his or her heirs, beneficiaries, legatees and personal representatives, on the other hand. Entire Agreement; Amendments and Waivers . This Agreement embodies the entire understanding and agreement of the parties with respect to the subject matter hereof, and no promise, condition, representation or warranty, express or implied, not stated or incorporated by reference herein, shall bind either party hereto.",
"None of the terms and conditions of this Agreement may be amended, modified, waived or canceled except by a writing, signed by the parties hereto specifying such amendment, modification, waiver or cancellation. A waiver by either party at any time of compliance with any of the terms and conditions of this Agreement shall not be considered a modification, cancellation or consent to a future waiver of such terms and conditions or of any preceding or succeeding breach thereof, unless expressly so stated. Severability . Any provision of this Agreement which is invalid, illegal or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability, without affecting in any way the remaining provisions hereof in such jurisdiction or rendering that or any other provision of this Agreement invalid, illegal or unenforceable in any other jurisdiction. Governing Law; Consent to Jurisdiction . This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Nevada, United States of America, excluding any conflicts or choice of law rule or principle that might otherwise refer construction or interpretation of this Agreement to the substantive law of another jurisdiction. Any action, suit or proceeding to enforce the terms and provisions of this Agreement, or to resolve any dispute or controversy arising under or in any way relating to this Agreement, may be brought in the state courts for the County of Washoe, State of Nevada, United States of America, and the parties hereto hereby consent to the jurisdiction of such courts.",
"If the Employee has received this or any other document related to the Plan translated into a language other than English, and the translated version is different than the English version, the English version will control. RESTRICTED STOCK UNIT SCHEDULE RSU2 ADDITIONAL TERMS AND CONDITIONS Forfeiture Obligations . Certain Definitions . For purposes of this Agreement, the following terms shall have the following meanings: \"Redemption Date\" shall mean, with respect to each RSU Share, the date upon which the RSU was redeemed by the delivery of such RSU Share to the Employee or the date upon which such RSU Share was cancelled in payment of Taxes (as hereinafter defined). \"Measurement Period\" shall mean, with respect to each Redemption Date, the period set forth in Section 1(c)(i) or (ii) hereof, respectively. The \"Fair Market Value\" of an RSU Share on any date shall be equal to the last sale price, regular way, of a share of Common Stock on such date (or in case the principal United States national securities exchange on which the Common Stock is listed or admitted to trading is not open on such date, the next preceding date upon which it is open), or in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on such securities exchange.",
"Refund of Stock Value . If any of the events set forth in Section 1(c)(i) or (ii) hereof shall occur during the Measurement Period for any Redemption Date, then the Employee shall immediately deliver to the Company an amount in cash equal to the aggregate Fair Market Value, determined as of such Redemption Date, of all RSU Shares which were delivered to the Employee or cancelled in payment of Taxes on such Redemption Date. Triggering Events . The events referred to in Section 1(b) hereof are as follows: Competing With the Company after Voluntary Termination of Employment and Prior to Six Months after a Redemption Date . The Employee participating, as a director, officer, employee, agent, consultant or greater than 5% equityholder (collectively, \"Participating\"), in any of the following during the period of time commencing on the date upon which the Employee's status as a full-time employee of the Company or its affiliates is voluntarily terminated (the \"Voluntary Employment Termination Date\"), there being a presumption that any termination of employment is voluntary, and continuing until six months after a Redemption Date (for the purpose of such event, and with respect to each such Redemption Date, the \"Measurement Period\"): Participating in any manner in any enterprise that competes with, or is becoming a competitor of, the Company (if the Employee is a Corporate Employee) or any operating business unit of the Company in which the Employee has been employed within one year prior to the Voluntary Employment Termination Date (if the Employee is not a Corporate Employee) in any city in which the Company or such business unit, respectively, provides services or products on the Voluntary Employment Termination Date; or Participating in any other organization or business, which organization or business, or which Participation therein, is or is becoming otherwise prejudicial to or in conflict with the interests of the Company.",
"Engaging in Certain Activities after Voluntary or Involuntary Termination of Employment and Prior to One Year after a Redemption Date . The Employee engaging in any of the following activities during the period of time commencing on the date upon which the Employee's status as a full-time employee of the Company or its affiliates is voluntarily or involuntarily terminated (the \"Employment Termination Date\") and continuing until one year after a Redemption Date (for the purpose of such events, and with respect to each such Redemption Date, the \"Measurement Period\"): Solicitation of Customers or Prospective Customers . Directly or indirectly soliciting any of the following with respect to any of the services or products that the Company or any of its affiliates then provide to customers: any person or entity that the Employee knew to be a customer of the Company or any of its affiliates; or any person or entity whose business the Employee solicited on behalf of the Company or its affiliates during the one-year period preceding the Employment Termination Date.",
"Solicitation or Hiring of Employees . Directly or indirectly soliciting or hiring any person who then is an employee of the Company or any of its affiliates. Disclosure of Confidential Information . Use, or disclosure, communication or delivery to any person or entity, of any confidential business information or trade secrets that the Employee obtained during the course of his or her employment with the Company or any of its affiliates (collectively, \"Confidential Information\"). Confidential Information includes, without limitation, the following: non-public financial information; non-public operational information, including, without limitation, information relating to business or market strategies, pricing policies and methodologies, research and development plans, or the introduction of new services or products; information regarding employees, including, without limitation, names, addresses, contact information and compensation; information regarding customers and suppliers, including, without limitation, names, addresses, contact information and requirements, and the terms and conditions of the business arrangements with such customers and suppliers; information regarding potential acquisitions or dispositions of businesses or products; and information relating to proprietary technological or intellectual property, or the operational or functional features or limitations thereof. Release of Forfeiture Obligations .",
"Notwithstanding the foregoing, the Employee shall be released from (A) all of his or her obligations under Section 1(b) hereof in the event that a Change of Control (as hereinafter defined) occurs within three years prior to the Employment Termination Date, and (B) some or all of his or her obligations under Section 1(b) hereof in the event that the Committee (if the Employee is an executive officer of the Company) or the Company's Chief Executive Officer (if the Employee is not an executive officer of the Company) shall determine, in their respective sole discretion, that such release is in the best interests of the Company. \"Change of Control\" shall mean the first to occur of the following events: (A) the dissolution or liquidation of the Company; (B) a sale of substantially all of the property and assets of the Company; (C) a merger, consolidation, reorganization or other business combination to which the Company is a party and the consummation of which results in the RSU Shares being exchanged for or converted into cash, property and/or securities not issued by the Company; (D) a merger, consolidation, reorganization or other business combination to which the Company is a party and the consummation of which does not result in the RSU Shares being exchanged for or converted into cash, property and/or securities not issued by the Company, provided that the outstanding voting securities of the Company immediately prior to such business combination (or, if applicable, the securities of the Company into which such voting securities are converted as a result of such business combination) represent less than 50% of the voting power of the Company immediately following such business combination, (E) any date upon which the directors of the Company who were nominated by the Board of Directors for election as directors cease to constitute a majority of the directors of the Company or (F) a change of control of the Company of the type required to be disclosed in a proxy statement pursuant to Item 6(e) (or any successor provision) of Schedule 14A of Regulation 14A promulgated under the Exchange Act (as hereinafter defined).",
"Effect on Other Rights and Remedies . The rights of the Company set forth in this Section 1 shall not limit or restrict in any manner any rights or remedies which the Company or any of its affiliates may have under law or under any separate employment, confidentiality or other agreement with the Employee or otherwise with respect to the events described in Section 1(c) hereof. Reasonableness . The Employee agrees that the terms and conditions set forth in this Agreement are fair and reasonable and are reasonably required for the protection of the interests of the Company. If, however, in any judicial proceeding any provision of this Agreement is found to be so broad as to be unenforceable, the Employee and the Company agree that such provision shall be interpreted to be only so broad as to be enforceable.",
"Accelerated Redemption of the RSU; Cancellation of the RSU . Termination of Employment at Age 62 or Older Other than for Cause with at least 10 Years of Service . If, prior to the redemption of the RSU in full, the Employee's status as a full-time employee of the Company or any of its subsidiaries is terminated at age 62 or older for no reason, or for any reason other than Cause (as hereinafter defined), including, without limitation, by reason of death, permanent disability, a Lay-Off or an Approved Leave of Absence (as such capitalized terms are hereinafter defined), and the Employee shall have been (or for any other purpose shall have been treated as if he or she had been) a continuous full-time employee of the Company or its subsidiaries for at least 10 years immediately prior to the date of termination of full-time status, then, unless the Committee, in its sole discretion, shall determine otherwise prior thereto, immediately prior to the close of business on the Employment Termination Date the Company shall redeem the RSU in full. \"Cause\" shall mean: (A) fraud, misappropriation, embezzlement or other act of material misconduct against the Company or any of its affiliates; (B) conviction of a felony involving a crime of moral turpitude; (C) willful and knowing violation of any rules or regulations of any governmental or regulatory body material to the business of the Company; or (D) substantial and willful failure to render services in accordance with the terms of his or her employment (other than as a result of illness, accident or other physical or mental incapacity), provided that (X) a demand for performance of services has been delivered to the Employee in writing by the Employee's supervisor at least 60 days prior to termination identifying the manner in which such supervisor believes that the Employee has failed to perform and (Y) the Employee has thereafter failed to remedy such failure to perform.",
"Lay-Off or Approved Leave of Absence . If, prior to the redemption of the RSU in full, the Employee's status as a full-time employee of the Company or any of its subsidiaries is terminated (other than pursuant to Section 2(a)(i) hereof) by reason of a permanent or temporary lay-off (a \"Lay-Off\") or a leave of absence approved in writing by the Company's Chief Executive Officer or Corporate Vice President of Human Resources (an \"Approved Leave of Absence\"), then: the RSU shall (subject to subparagraph (ii) below) be redeemed on the later of: the date or dates upon which it would otherwise have been redeemed if the Employee had not ceased to be a full-time employee of the Company or its subsidiaries, or the date upon which the Employee shall again become a full-time employee of the Company or any of its subsidiaries; and the RSU shall automatically be cancelled on the first anniversary of the Employment Termination Date if the Employee shall not have again become a full-time employee of the Company or any of its subsidiaries prior to such anniversary. Cancellation of RSU upon Other Termination of Employment . If, prior to the redemption in full of the RSU, the Employee's status as a full-time employee of the Company or any of its subsidiaries is voluntarily or involuntarily terminated other than pursuant to Section 2(a)(i) or (b) hereof, then, unless the Committee shall determine otherwise prior to the Employment Termination Date, the RSU shall automatically be cancelled as of the close of business on the Employment Termination Date.",
"Change of Control . Immediately prior to a Change of Control, the RSU shall be redeemed in full. Other Events . The Committee, in its sole discretion, may accelerate the redemption of the RSU at any time and for any reason. Unless the Committee, by vote of a majority of the directors of the Company who are, and immediately prior to such event were, members of the Committee, shall determine otherwise within ten business days thereafter, the RSU shall be redeemed in full upon the date of the first public announcement that any person or entity, together with all Affiliates and Associates (as such capitalized terms are defined in Rule 12b-2 promulgated under the United States Securities Exchange Act of 1934, as amended (the \"Exchange Act\")) of such person or entity, shall have become the Beneficial Owner (as defined in Rule 13d-3 promulgated under the Exchange Act) of voting securities of the Company representing 30% or more of the voting power of the Company, provided, however, that the terms \"person\" and \"entity,\" as used in this subsection (c)(ii), shall not include (A) the Company or any of its subsidiaries, (B) any employee benefit plan of the Company or any of its subsidiaries, or (C) any entity holding voting securities of the Company for, or pursuant to, the terms of any such plan.",
"Payment of Taxes . If the Company and/or the Employee's employer (the \"Employer\") are obligated to withhold an amount on account of any federal, state or local tax imposed as a result of the grant or redemption of the RSU pursuant to this Agreement (collectively, \"Taxes\"), including, without limitation, any federal, state or other income tax, or any F.I.C.A., state disability insurance tax or other employment tax (the date upon which the Company and/or the Employer becomes so obligated shall be referred to herein as the \"Withholding Date\"), then the Employee shall pay to the Company on the Withholding Date, the minimum aggregate amount that the Company and the Employer are so obligated to withhold, as such amount shall be determined by the Company (the \"Minimum Withholding Liability\"), which payment shall be made by the automatic cancellation by the Company of a portion of the RSU Shares (such shares to be valued on the basis of the aggregate Fair Market Value thereof on the Withholding Date , plus the value of the Dividend Equivalents associated with such shares on the Withholding Date); provided that the RSU Shares to be cancelled shall be those that would otherwise have been delivered to the Employee the soonest upon redemption of the RSU; and provided further, however, that the Employee may instead pay to the Company, by check or wire transfer delivered or made within three business days after the Withholding Date, an amount equal to or greater than the Minimum Withholding Liability.",
"The Employee acknowledges that neither the Company nor the Employer has: except to the extent specifically set forth in a prospectus delivered by the Company to the Employee together with this Agreement, made any representation or given any advice to the Employee with respect to the realization or recognition of any Taxes by the Employee; or undertaken or agreed to structure the RSU, or the grant of the RSU, to reduce or eliminate the Employee's liability or potential liability for Taxes. Certain Corporate Transactions . In the event that the outstanding securities of any class then comprising the RSU Shares are increased, decreased or exchanged for or converted into cash, property and/or a different number or kind of securities, or cash, property and/or securities are distributed in respect of such outstanding securities, in either case as a result of a reorganization, merger, consolidation, recapitalization, reclassification, dividend (other than a regular, quarterly cash dividend) or other distribution, stock split, reverse stock split or the like, then, unless the Committee shall determine otherwise, the term \"RSU Shares,\" as used in this Agreement, shall, from and after the date of such event, include such cash, property and/or securities so distributed in respect of the RSU Shares, or into or for which the RSU Shares are so increased, decreased, exchanged or converted. Effect of Section 409A of the U.S. Internal Revenue Code .",
"Notwithstanding anything to the contrary in this Agreement, if, upon the advice of its counsel, the Company determines that the redemption of an RSU Share pursuant to this Agreement is or may become subject to the additional tax under Section 409A(a)(1)(B) of the U.S. Internal Revenue Code or any other taxes or penalties imposed under Section 409A (\"409A Taxes\") as applicable at the time such redemption is otherwise required under this Agreement, then: such redemption shall be delayed until the date that is six months after the date of the Employee's \" separation from service\" (as such term is defined under Section 409A) with the Employer, or such shorter period that, in the opinion of such counsel, is sufficient to avoid the imposition of 409A Taxes (the \"Payments Delay Period\"); and if all or any part of such RSU Share has been converted into cash pursuant to Section 4 hereof, then: upon redemption of such RSU Share, such cash shall be increased by an amount equal to interest thereon for the Payments Delay Period at a rate equal to the 120-month rolling average yield to maturity of the index called the \"Merrill Lynch U.S. Corporates, A Rated, 15+ Years Index\" (or any successor index, or if neither exists, the most similar index which does exist) as of December 31 of the year preceding the year in which the Payments Delay Period commences, compounded annually; and the Company shall fund the payment of such cash to the Employee upon redemption of such RSU Share, including the interest to be paid with respect thereto (collectively, the \"Delayed Cash Payment\"), by establishing and irrevocably funding a trust for the benefit of the Employee.",
"Such trust shall be a grantor trust described in Section 671 of the U.S. Internal Revenue Code and intended not to cause tax to be incurred by the Employee until amounts are paid out from the trust to the Employee. The trust shall provide for distribution of amounts to the Employee in order to pay taxes, if any, that become due on the amounts as to which payment is being delayed during the Payment Delay Period pursuant to this Section 5, but only to the extent permissible under Section 409A of the U.S. Internal Revenue Code without the imposition of 409A Taxes. The establishment and funding of such trust shall not affect the obligation of the Company to pay the Delayed Cash Payment pursuant to this Section 5.",
"Transferability . Neither the RSU nor any interest therein may be sold, assigned, conveyed, gifted, pledged, hypothecated or otherwise transferred in any manner. Data Privacy . In order to implement, administer, manage and account for the Employee's participation in the Plan, the Company and/or the Employer may: collect and use certain personal data regarding the Employee, including, without limitation, the Employee's name, home address and telephone number, work address and telephone number, work e-mail address, date of birth, social insurance or other identification number, term of employment, employment status, nationality and tax residence, and details regarding the terms and conditions, grant, vesting, cancellation, termination and expiration of all restricted stock units and other stock-based incentives granted, awarded or sold to the Employee by the Company (collectively, the \"Data\"); transfer the Data, in electronic or other form, to employees of the Company and its subsidiaries, and to third parties, who are involved in the implementation, administration and/or management of, and/or accounting for, the Plan, which recipients may be located in the Employee's country or in other countries that may have different data privacy laws and protections than the Employee's country; transfer the Data, in electronic or other form, to a broker or other third party with whom the Employee has elected to deposit any RSU Shares issued in redemption of the RSU; and retain the Data for only as long as may be necessary in order to implement, administer, manage and account for the Employee's participation in the Plan.",
"The Employee hereby consents to the collection, use, transfer and retention of the Data, as described in this Agreement, for the exclusive purpose of implementing, administering, managing and accounting for the Employee's participation in the Plan. The Employee understands that by contacting his or her local human resources representative, the Employee may: view the Data; correct any inaccurate information included within the Data; request additional information regarding the storage and processing of the Data request a list with the names and addresses of any potential recipients of the Data; and under certain circumstances and with certain consequences, prevent further use, transfer, retention and/or processing of the Data. Plan .",
"The RSU is granted pursuant to the Plan, as in effect on the Grant Date, and are subject to all the terms and conditions of the Plan, as the same may be amended from time to time; provided, however, that no such amendment shall deprive the Employee, without his or her consent, of the RSU or of any of the Employee's rights under this Agreement. The interpretation and construction by the Committee of the Plan, this Agreement and such rules and regulations as may be adopted by the Committee for the purpose of administering the Plan shall be final and binding upon the Employee. Until the RSU is redeemed in full, the Company shall, upon written request therefor, send a copy of the Plan, in its then-current form, to the Employee.",
"Employment Rights . No provision of this Agreement shall (a) be deemed to form an employment contract or relationship with the Company or any of its subsidiaries, (b) confer upon the Employee any right to be or continue to be in the employ of the Company or any of its subsidiaries, (c) affect the right of the Employer to terminate the employment of the Employee, with or without cause, or (d) confer upon the Employee any right to participate in any employee welfare or benefit plan or other program of the Company or any of its subsidiaries other than the Plan. The Employee hereby acknowledges and agrees that the Employer may terminate the employment of the Employee at any time and for any reason, or for no reason, unless applicable law provides otherwise or unless the Employee and the Employer are parties to a written employment agreement that expressly provides otherwise. Nature of Company Restricted Stock Grants .",
"The Employee acknowledges and agrees that: the Plan was established voluntarily by the Company, it is discretionary in nature and it may be modified, suspended or terminated by the Company at any time, as provided in the Plan and this Agreement; the Company grants restricted stock units voluntarily and on an occasional basis, and the receipt of the RSU by the Employee does not create any contractual or other right to receive any future grant of restricted stock units, or any benefits in lieu of a grant of restricted stock units; all decisions with respect to future grants of restricted stock units by the Company will be made in the sole discretion of the Company; the Employee is voluntarily participating in the Plan; restricted stock units are an extraordinary item which do not constitute compensation of any kind for services rendered to the Company or the Employer, and which are outside the scope of the Employee's employment contract, if any; restricted stock units are not part of normal or expected compensation or salary for any purposes, including, without limitation, for purposes of calculating any severance, resignation, termination, redundancy or end-of-service payments, or any bonuses, long-service awards or pension or retirement benefits, or any similar payments; the future value of the RSU is unknown and cannot be predicted with certainty; and the Employee hereby indemnifies the Company and the Employer against, and irrevocably releases and holds them harmless from, any claim or entitlement to compensation or damages arising from the cancellation of the RSU in accordance with this Agreement, or any diminution in the value of the RSU.",
"Successors . This Agreement shall be binding upon and inure to the benefit of the Company and its successors and assigns, on the one hand, and the Employee and his or her heirs, beneficiaries, legatees and personal representatives, on the other hand. Entire Agreement; Amendments and Waivers . This Agreement embodies the entire understanding and agreement of the parties with respect to the subject matter hereof, and no promise, condition, representation or warranty, express or implied, not stated or incorporated by reference herein, shall bind either party hereto. None of the terms and conditions of this Agreement may be amended, modified, waived or canceled except by a writing, signed by the parties hereto specifying such amendment, modification, waiver or cancellation. A waiver by either party at any time of compliance with any of the terms and conditions of this Agreement shall not be considered a modification, cancellation or consent to a future waiver of such terms and conditions or of any preceding or succeeding breach thereof, unless expressly so stated.",
"Severability . Any provision of this Agreement which is invalid, illegal or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability, without affecting in any way the remaining provisions hereof in such jurisdiction or rendering that or any other provision of this Agreement invalid, illegal or unenforceable in any other jurisdiction. Governing Law; Consent to Jurisdiction . This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Nevada, United States of America, excluding any conflicts or choice of law rule or principle that might otherwise refer construction or interpretation of this Agreement to the substantive law of another jurisdiction. Any action, suit or proceeding to enforce the terms and provisions of this Agreement, or to resolve any dispute or controversy arising under or in any way relating to this Agreement, may be brought in the state courts for the County of Washoe, State of Nevada, United States of America, and the parties hereto hereby consent to the jurisdiction of such courts. If the Employee has received this or any other document related to the Plan translated into a language other than English, and the translated version is different than the English version, the English version will control."
]
| https://github.com/TheAtticusProject/cuad | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
|
Exhibit 10
PURCHASE AGREEMENT FOR PURCHASE OF
PARTICIPATION INTERESTS IN LOANS
THIS AGREEMENT is made effective the 5th day of October , 2004, by and between MidFirst Bank (“Purchaser”), a federally chartered savings association and Liberty National Life Insurance Company (“Seller”), an Alabama corporation.
WITNESSETH:
WHEREAS, Seller is the owner of certain participation interests in certain commercial loans (individually, a “Participation Interest”, collectively, “Participation Interests”);
WHEREAS, Purchaser desires to purchase certain participation interests in the commercial loans identified on Exhibit “A” attached hereto and referred to as the (“Active Portfolio”); and
WHEREAS, Purchaser, as Lender, and Seller, as Participant, have previously entered into Loan Participation Agreements covering each of the commercial loans, the Loan Participation Agreements being identified on Exhibit “B” attached hereto (individually, an “LPA”, collectively, the “LPA’s”), and upon the closing of the purchase of the Active Portfolio, the LPA’s shall be terminated, and Purchaser, as Lender in each LPA shall be released from any and all liability from inception and forever, and for every cause whatsoever.
WHEREAS, Seller desires to sell the Participation Interests to Purchaser on terms set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants, conditions and promises hereinafter contained, the parties agree as follows:
AGREEMENT
1 Sale of Participation Interests. Seller agrees to sell and Purchaser agrees to purchase all of Seller’s right, title and interest in the Participation Interests, without warranty or recourse, except as otherwise set forth herein.
2. Purchase Price. The total purchase price for the Participation Interests purchased in the Active Portfolio shall be determined on the Transfer and Absolute Closing Date based upon the herein agreed upon factor of 102.00 for the total unpaid principal balance of all Participation Interests purchased. Purchaser shall furnish Seller with the total purchase price within 24 hours of the Transfer and Absolute Closing Date. Purchaser and Seller shall comply with all applicable laws and regulations with respect to the sale and transfer of the Participation Interests. Seller and Purchaser understand and agree that there are no commitments or obligations on the part of the Seller to sell, or the Purchaser to purchase, any other Participation Interests in any other existing commercial loans wherein Purchaser is the Lender and Seller is the Participant in existing LPA’s.
--------------------------------------------------------------------------------
3. Assignment of Participation Interests. Seller shall on the Transfer and Absolute Closing Date execute and cause to be delivered to Purchaser for each Participation Interest purchased, an original assignment from Seller, as assignor, to Purchaser, as assignee, duly executed, attested and acknowledged and otherwise in form acceptable to Purchaser.
4. Title. Seller agrees, within ten (10) days from the date hereof, to provide, or cause to be provided, to Purchaser, at Seller’s cost, but with Purchaser’s assistance, with down date title insurance commitments to endorse (“down date endorsements”) the existing mortgagee’s title policies for the Active Portfolio, the review of which must be acceptable to Purchaser in all respects. If Purchaser’s review of the down date endorsement, or any one of them, is unacceptable to Purchaser, Purchaser shall, on or before the tenth (10th) day following receipt of all down date endorsements, (“title review period”) notify Seller, and such Participation Interest, or Participation Interests, as the case may be, shall be excluded from the sale, and the Purchase Price set forth for each such excluded Participation Interest shall be excluded from the total Purchase Price.
5. Transfers. Upon the date the Participation Interests are transferred from Seller to Purchaser, which date shall be on or before October 18, 2004 (“Transfer and Absolute Closing Date”), Seller shall physically deliver to Purchaser the following documents for each Participation Interest as applicable:
(a) original executed assignment of each Participation Interest purchased.
(b) Termination Agreement for all Loan Participation Agreements.
(c) original down date endorsements.
(d) Release and Satisfaction Agreement acceptable to Purchaser.
(e) such other documents as Purchaser may reasonably require.
Seller shall pay all title and closing costs, except that Seller and Purchaser shall pay their respective attorney’s fees. Seller and Purchaser understand that time is of the essence, and that in the event the closing of the sale herein does not occur on or before the Transfer and Absolute Closing Date, that this Agreement will be void, and of no further force or effect.
6. Obligations of Seller. Seller covenants and agrees as follows:
(a) Should Seller receive any notice or other information concerning any Participation Interest purchase by Purchaser after the Transfer and Absolute Closing Date, Seller shall promptly forward such notice or other information to Purchaser.
(b) Seller agrees to cooperate with Purchaser to the extent required by law or by any government agency or any private insurance carrier, to complete necessary reporting forms associated with such agency and any other insurance carriers and to do any other acts reasonably required of Seller by Purchaser to complete the transfer of any Participation Interest to Purchaser, including giving proper notice that the Participation Interests have been assigned to Purchaser.
--------------------------------------------------------------------------------
(c) Seller shall warrant and defend title of the Purchaser in the Participation Interests and at any time upon request of Purchaser, Seller shall, at its expense do, execute, acknowledge and deliver or cause to be done, executed, acknowledged and delivered such acts, deeds, assignments, releases, transfers, conveyances, power of attorney or other instruments and assurances as may be reasonably necessary or proper for the purpose of fully effectuating the assignment, transfer and conveyance of the Participation Interests to Purchaser and the vesting of title thereto to Purchaser.
(d) Seller agrees that Seller will not modify, cancel, extend or otherwise change in any manner any of the terms, covenants, or conditions of any of the Loan Documents nor enter into any other agreements affecting the Participation Interests without the prior written consent of Purchaser. Seller further agrees that it will take no collection action on any Participation Interest after the effective date hereof.
(e) Seller will indemnify, defend and hold Purchaser harmless from and against any an all claims, loss, costs or damage, including, without limitation, reasonable attorney’s fees and expenses arising out of Seller’s failure to perform any of its obligation under this Agreement or arising out of the falsity, incorrectness or incompleteness in any material respect of any covenant, representation or warranty given by Seller herein.
(f) On the Transfer and Absolute Closing Date, Seller shall release and forever discharge the Purchaser, both as Lender under each LPA, and hereunder, the Purchaser’s agents, servants, employees, officers, attorneys, successors and assigns from all damage, loss, claims, demands, liabilities, obligations, actions and causes of action whatsoever which the Seller as Participant and hereunder, might now have or claim to have against the Purchaser, including this Agreement, whether presently known or unknown, and of every nature and extent whatsoever on account of or in any way concerning, arising out of or founded on the LPA’s and this Agreement including, without implied limitation, all such loss or damage of any kind heretofore sustained or that might arise as a consequence of the dealings between the parties.
7. Seller’s Warranties and Representations. Seller warrants and represents the following:
(a) Seller is the legal and beneficial owner and holder of the Participation Interests.
(b) Seller has the right, power, legal capacity and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereunder. This Agreement has been duly and validly executed and delivered by Seller, constitutes the valid, legal and binding agreement of Seller, and is enforceable against Seller in accordance with its terms. No approval of any person or entity is required for the execution of this agreement by Seller or the consummation of any of the transactions contemplated under this agreement.
--------------------------------------------------------------------------------
(c) Seller is a corporation duly organized, validly existing and in good standing under laws of the State of Alabama.
(d) No claim or defense exists as to any of the Participation Interests referenced herein, which would defeat Purchaser’s right to purchase the Participation Interests. Seller has made no prior pledge, sale or assignment of any Participation Interest.
(e) Purchaser has made no representations, guarantees, or assurances whatsoever as to the expected or projected profitability, return, success, performance result, effect, consequence, or benefit (whether legal, regulatory, tax, financial, accounting, or otherwise) of the sale hereunder. Seller will be relying upon its own judgment and its own advisors with respect to the sale hereunder and Seller has not sought and is not relying on any information provided by Purchaser as a courtesy to Seller with respect to the sale hereunder. All terms of, and the documentation evidencing, this Agreement have been the result of arm’s-length negotiations between the parties.
(f) That each Participation Interest is eligible under this Agreement for purchase on the Transfer and Absolute Closing Date.
All representations and warranties contained herein or otherwise made in writing pursuant hereto are now true and correct and shall be true and correct as of the Transfer and Absolute Closing Date with the same force and effect as though made at such time. All of said representations and warranties shall survive the consummation of the transaction contemplated hereby.
8. Purchaser’s Covenants. Purchaser covenants and agrees as follows:
(a) Purchaser agrees to abide by and be bound by the terms and conditions in all documents evidencing and relating to any Loan purchased hereunder.
9. Purchaser’s Warranties and Representations. Purchaser warrants and represents the following:
(a) Purchaser is a federally chartered savings association duly organized and validly existing.
(b) Purchaser is duly authorized to enter into this Agreement and has complied with all laws, statutes, rules, regulations, charter provisions, articles and bylaws to which it may be subject.
(c) The duties and obligations of Purchaser under this Agreement are the valid, binding, and enforceable duties and obligations of Purchaser and compliance with these duties and obligations will not conflict with, result in a breach of, or default under or be adversely affected by any agreements, instruments, decrees, judgments, injunctions, orders, writs, laws, rules, or regulations to which Purchaser is a party or by which its properties of assets are bound.
--------------------------------------------------------------------------------
All representations and warranties contained herein or otherwise made in writing pursuant hereto are now true and correct and shall be true and correct as of the Transfer and Absolute Closing Date with the same force and effect as though made at such time. All of said representations and warranties shall survive the consummation of the transaction contemplated hereby.
10. Brokerage Commissions. Seller and Purchaser represent and warrant to each other that they have not dealt with any broker, agent or finder, licenses or otherwise, in connection with the sale and purchase of the Participation Interests. Seller and Purchaser shall indemnify and hold each other free and harmless from any and all costs, liability, causes of action or proceedings instituted by any agent, broker or finder, licensed or otherwise, not disclosed herein through, under or by reason of the conduct of Seller or Purchaser in connection with the purchase of the Participation Interests.
11. Assignment. Purchaser may assign or transfer this Agreement or any rights or benefits under this Agreement to any person or entity without the prior written approval of Seller.
12. Notices. All notices required or permitted under this agreement shall be in writing, and except as otherwise provided herein, shall be effective upon receipt via facsimile, personal delivery to Seller or Purchaser, or three (3) days after being deposited in the United States mail, registered or certified, with postage fully prepaid and addressed to the respective parties as follows:
Seller: Liberty National Life Insurance Company 3700 S. Stonebridge Drive P.O. Box 8080 McKinney, TX 75070 Attention: Mr. Russell Tucker Purchaser: MidFirst Bank 501 N.W. Grand Blvd. Oklahoma City, Oklahoma 73118 Attention: Legal Department
or to such other addresses as either party shall, from time to time, specify in the manner provided herein.
13. Interpretation. The headings in this Agreement are for convenience only and shall not define or limit the provisions hereof. This Agreement shall be construed according to its ordinary meaning and shall not be strictly construed for or against any party hereto.
--------------------------------------------------------------------------------
14. Governing Law. This Agreement shall be governed by the laws of the State of Oklahoma. The parties agree that proper venue and jurisdiction shall reside in state or federal district court in Oklahoma County, Oklahoma.
15. Binding Effect and Waiver. All of the terms, covenants, and conditions herein contained shall inure to the benefit of and be binding upon the parties hereto and their successors and assigns. Any modification or waiver of any term of this agreement, including a modification or a waiver of this term, must be in writing signed by the party or parties against which enforcement of the modification or waiver is sought.
16. Entire Agreement. This agreement constitutes the entire agreement among the parties pertaining to the subject matter hereof and all prior and contemporaneous agreements, representations and understandings, written or oral, are hereby superseded and merged into this Agreement. The parties hereto agree to execute such additional documents and to perform such additional acts as may be reasonably necessary to carry out the purpose and intent of this Agreement.
17. Claims of Action. If any party shall bring suit to enforce the terms and provisions hereof, the prevailing party shall be entitled to recover from the other party all costs, expenses and reasonable attorneys’ fees incurred in connection with the exercise by the prevailing party of its rights and remedies hereunder. For purposes of this paragraph, the term “prevailing party” shall mean, in the case of the claimant, one who is successful in obtaining substantially all the relief sought, and in the case of the defendant or respondent, one who is successful in denying substantially all of the relief sought by the claimant. Any award of attorneys’ fees shall be set by the court and not by a jury.
18. Severability. Should any term, provision, covenant or condition of this Agreement be void, invalid or inoperative, the same shall not affect any other term, provision, covenant or condition of this Agreement but the remainder thereof shall be given effect as though such void, invalid or inoperative term, provision, covenant or condition had not been contained herein. This Agreement may be executed in counterpart and each such counterpart, when taken together with all other counterparts, shall be deemed one and the same original document.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be duly executed as of the day and year first above written.
SELLER: PURCHASER: Liberty National Life Insurance Company MidFirst Bank By: /s/ Danny H. Almond By:
/s/ R. Wayne Booth
--------------------------------------------------------------------------------
Title: Assistant Treasurer Title:
Senior Vice President
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
EXHIBIT “A”
ACTIVE PORTFOLIO
Loan #
--------------------------------------------------------------------------------
Note #
--------------------------------------------------------------------------------
Borrower Name
--------------------------------------------------------------------------------
13863164
100 Mt. San Bruno Industrial Park, G.P.
13863203
100 Marana Ina Road, LLC
13863821
100 Commonwealth/Transnation 98, LLC
13863850
100 Larimer 98, LLC
13863853
100 Eaton Enterprises
13863902
100 Eric Building 97, LLC
13863960
100 Blake Street 98, LLC
13864008
100 Pinewood Village, Inc.
784770
100 135th & Q, LLC
13854189
100 Newport-Britton, LLC
13864309
100 Westgate South VCW, LLC; Reseda Napa VCW, LLC; Coronado VCW, LLC
13864338
100 DBSI Park Ten, LLC
--------------------------------------------------------------------------------
EXHIBIT “B”
1. Loan Participation Agreement dated October 16, 1995; Borrower Mount San Bruno Industrial Park, G.P.
2. Loan Participation Agreement dated October 24, 1995; Borrower Marana Ina Road, LLC
3. Loan Participation Agreement dated December 17, 1998; Borrower Commonwealth/Transnation 98 LLC
4. Loan Participation Agreement dated April 29, 1998; Borrower Larimer 98, LLC
5. Loan Participation Agreement dated May 7, 1998; Borrower Eaton Enterprises
6. Loan Participation Agreement dated June 12, 1998; Borrower Eric Building 97, LLC
7. Loan Participation Agreement dated December 17, 1998; Borrower Blake Street 98, LLC
8. Loan Participation Agreement dated July 22, 1998; Borrower Pinewood Village, Inc.
9. Loan Participation Agreement dated October 6, 1998; Borrower 135th & Q, LLC
10. Loan Participation Agreement dated May 27, 1999; Borrower Newport-Britton, LLC
11. Loan Participation Agreement dated December 22, 2000; Borrower Westgate South VWC, LLC, Reseda Napa VCW, LLC and Coronado VWC, LLC
12. Loan Participation Agreement dated December 28, 1999; Borrower DBSI Park 10, LLC
--------------------------------------------------------------------------------
MEMORANDUM OF UNDERSTANDING
The parties hereby understand and agree that the accrued, but unpaid interest and any unpaid expenses are not to be included in the unpaid principal balance for purchase price computation purposes. Rather, accrued, but unpaid interest and any unpaid expenses will be handled on a pro rate basis post closing when such interest is received by MidFirst Bank, or such expenses are to be paid.
AGREE AND ACCEPTED this 5th day of October, 2004.
MidFirst Bank By:
/s/ R. Wayne Booth
--------------------------------------------------------------------------------
Title:
Senior Vice President
--------------------------------------------------------------------------------
Liberty National Life Insurance Company By: /s/ Danny H. Almond Title: Assistant Treasurer | [
"Exhibit 10 PURCHASE AGREEMENT FOR PURCHASE OF PARTICIPATION INTERESTS IN LOANS THIS AGREEMENT is made effective the 5th day of October , 2004, by and between MidFirst Bank (“Purchaser”), a federally chartered savings association and Liberty National Life Insurance Company (“Seller”), an Alabama corporation. WITNESSETH: WHEREAS, Seller is the owner of certain participation interests in certain commercial loans (individually, a “Participation Interest”, collectively, “Participation Interests”); WHEREAS, Purchaser desires to purchase certain participation interests in the commercial loans identified on Exhibit “A” attached hereto and referred to as the (“Active Portfolio”); and WHEREAS, Purchaser, as Lender, and Seller, as Participant, have previously entered into Loan Participation Agreements covering each of the commercial loans, the Loan Participation Agreements being identified on Exhibit “B” attached hereto (individually, an “LPA”, collectively, the “LPA’s”), and upon the closing of the purchase of the Active Portfolio, the LPA’s shall be terminated, and Purchaser, as Lender in each LPA shall be released from any and all liability from inception and forever, and for every cause whatsoever.",
"WHEREAS, Seller desires to sell the Participation Interests to Purchaser on terms set forth herein. NOW, THEREFORE, in consideration of the foregoing and the mutual covenants, conditions and promises hereinafter contained, the parties agree as follows: AGREEMENT 1 Sale of Participation Interests. Seller agrees to sell and Purchaser agrees to purchase all of Seller’s right, title and interest in the Participation Interests, without warranty or recourse, except as otherwise set forth herein. 2. Purchase Price. The total purchase price for the Participation Interests purchased in the Active Portfolio shall be determined on the Transfer and Absolute Closing Date based upon the herein agreed upon factor of 102.00 for the total unpaid principal balance of all Participation Interests purchased. Purchaser shall furnish Seller with the total purchase price within 24 hours of the Transfer and Absolute Closing Date. Purchaser and Seller shall comply with all applicable laws and regulations with respect to the sale and transfer of the Participation Interests.",
"Seller and Purchaser understand and agree that there are no commitments or obligations on the part of the Seller to sell, or the Purchaser to purchase, any other Participation Interests in any other existing commercial loans wherein Purchaser is the Lender and Seller is the Participant in existing LPA’s. -------------------------------------------------------------------------------- 3. Assignment of Participation Interests. Seller shall on the Transfer and Absolute Closing Date execute and cause to be delivered to Purchaser for each Participation Interest purchased, an original assignment from Seller, as assignor, to Purchaser, as assignee, duly executed, attested and acknowledged and otherwise in form acceptable to Purchaser. 4.",
"Title. Seller agrees, within ten (10) days from the date hereof, to provide, or cause to be provided, to Purchaser, at Seller’s cost, but with Purchaser’s assistance, with down date title insurance commitments to endorse (“down date endorsements”) the existing mortgagee’s title policies for the Active Portfolio, the review of which must be acceptable to Purchaser in all respects. If Purchaser’s review of the down date endorsement, or any one of them, is unacceptable to Purchaser, Purchaser shall, on or before the tenth (10th) day following receipt of all down date endorsements, (“title review period”) notify Seller, and such Participation Interest, or Participation Interests, as the case may be, shall be excluded from the sale, and the Purchase Price set forth for each such excluded Participation Interest shall be excluded from the total Purchase Price.",
"5. Transfers. Upon the date the Participation Interests are transferred from Seller to Purchaser, which date shall be on or before October 18, 2004 (“Transfer and Absolute Closing Date”), Seller shall physically deliver to Purchaser the following documents for each Participation Interest as applicable: (a) original executed assignment of each Participation Interest purchased. (b) Termination Agreement for all Loan Participation Agreements. (c) original down date endorsements. (d) Release and Satisfaction Agreement acceptable to Purchaser. (e) such other documents as Purchaser may reasonably require. Seller shall pay all title and closing costs, except that Seller and Purchaser shall pay their respective attorney’s fees. Seller and Purchaser understand that time is of the essence, and that in the event the closing of the sale herein does not occur on or before the Transfer and Absolute Closing Date, that this Agreement will be void, and of no further force or effect.",
"6. Obligations of Seller. Seller covenants and agrees as follows: (a) Should Seller receive any notice or other information concerning any Participation Interest purchase by Purchaser after the Transfer and Absolute Closing Date, Seller shall promptly forward such notice or other information to Purchaser. (b) Seller agrees to cooperate with Purchaser to the extent required by law or by any government agency or any private insurance carrier, to complete necessary reporting forms associated with such agency and any other insurance carriers and to do any other acts reasonably required of Seller by Purchaser to complete the transfer of any Participation Interest to Purchaser, including giving proper notice that the Participation Interests have been assigned to Purchaser. -------------------------------------------------------------------------------- (c) Seller shall warrant and defend title of the Purchaser in the Participation Interests and at any time upon request of Purchaser, Seller shall, at its expense do, execute, acknowledge and deliver or cause to be done, executed, acknowledged and delivered such acts, deeds, assignments, releases, transfers, conveyances, power of attorney or other instruments and assurances as may be reasonably necessary or proper for the purpose of fully effectuating the assignment, transfer and conveyance of the Participation Interests to Purchaser and the vesting of title thereto to Purchaser.",
"(d) Seller agrees that Seller will not modify, cancel, extend or otherwise change in any manner any of the terms, covenants, or conditions of any of the Loan Documents nor enter into any other agreements affecting the Participation Interests without the prior written consent of Purchaser. Seller further agrees that it will take no collection action on any Participation Interest after the effective date hereof. (e) Seller will indemnify, defend and hold Purchaser harmless from and against any an all claims, loss, costs or damage, including, without limitation, reasonable attorney’s fees and expenses arising out of Seller’s failure to perform any of its obligation under this Agreement or arising out of the falsity, incorrectness or incompleteness in any material respect of any covenant, representation or warranty given by Seller herein.",
"(f) On the Transfer and Absolute Closing Date, Seller shall release and forever discharge the Purchaser, both as Lender under each LPA, and hereunder, the Purchaser’s agents, servants, employees, officers, attorneys, successors and assigns from all damage, loss, claims, demands, liabilities, obligations, actions and causes of action whatsoever which the Seller as Participant and hereunder, might now have or claim to have against the Purchaser, including this Agreement, whether presently known or unknown, and of every nature and extent whatsoever on account of or in any way concerning, arising out of or founded on the LPA’s and this Agreement including, without implied limitation, all such loss or damage of any kind heretofore sustained or that might arise as a consequence of the dealings between the parties.",
"7. Seller’s Warranties and Representations. Seller warrants and represents the following: (a) Seller is the legal and beneficial owner and holder of the Participation Interests. (b) Seller has the right, power, legal capacity and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereunder. This Agreement has been duly and validly executed and delivered by Seller, constitutes the valid, legal and binding agreement of Seller, and is enforceable against Seller in accordance with its terms. No approval of any person or entity is required for the execution of this agreement by Seller or the consummation of any of the transactions contemplated under this agreement. -------------------------------------------------------------------------------- (c) Seller is a corporation duly organized, validly existing and in good standing under laws of the State of Alabama. (d) No claim or defense exists as to any of the Participation Interests referenced herein, which would defeat Purchaser’s right to purchase the Participation Interests. Seller has made no prior pledge, sale or assignment of any Participation Interest. (e) Purchaser has made no representations, guarantees, or assurances whatsoever as to the expected or projected profitability, return, success, performance result, effect, consequence, or benefit (whether legal, regulatory, tax, financial, accounting, or otherwise) of the sale hereunder.",
"Seller will be relying upon its own judgment and its own advisors with respect to the sale hereunder and Seller has not sought and is not relying on any information provided by Purchaser as a courtesy to Seller with respect to the sale hereunder. All terms of, and the documentation evidencing, this Agreement have been the result of arm’s-length negotiations between the parties. (f) That each Participation Interest is eligible under this Agreement for purchase on the Transfer and Absolute Closing Date. All representations and warranties contained herein or otherwise made in writing pursuant hereto are now true and correct and shall be true and correct as of the Transfer and Absolute Closing Date with the same force and effect as though made at such time. All of said representations and warranties shall survive the consummation of the transaction contemplated hereby. 8. Purchaser’s Covenants. Purchaser covenants and agrees as follows: (a) Purchaser agrees to abide by and be bound by the terms and conditions in all documents evidencing and relating to any Loan purchased hereunder.",
"9. Purchaser’s Warranties and Representations. Purchaser warrants and represents the following: (a) Purchaser is a federally chartered savings association duly organized and validly existing. (b) Purchaser is duly authorized to enter into this Agreement and has complied with all laws, statutes, rules, regulations, charter provisions, articles and bylaws to which it may be subject. (c) The duties and obligations of Purchaser under this Agreement are the valid, binding, and enforceable duties and obligations of Purchaser and compliance with these duties and obligations will not conflict with, result in a breach of, or default under or be adversely affected by any agreements, instruments, decrees, judgments, injunctions, orders, writs, laws, rules, or regulations to which Purchaser is a party or by which its properties of assets are bound.",
"-------------------------------------------------------------------------------- All representations and warranties contained herein or otherwise made in writing pursuant hereto are now true and correct and shall be true and correct as of the Transfer and Absolute Closing Date with the same force and effect as though made at such time. All of said representations and warranties shall survive the consummation of the transaction contemplated hereby. 10. Brokerage Commissions. Seller and Purchaser represent and warrant to each other that they have not dealt with any broker, agent or finder, licenses or otherwise, in connection with the sale and purchase of the Participation Interests. Seller and Purchaser shall indemnify and hold each other free and harmless from any and all costs, liability, causes of action or proceedings instituted by any agent, broker or finder, licensed or otherwise, not disclosed herein through, under or by reason of the conduct of Seller or Purchaser in connection with the purchase of the Participation Interests.",
"11. Assignment. Purchaser may assign or transfer this Agreement or any rights or benefits under this Agreement to any person or entity without the prior written approval of Seller. 12. Notices. All notices required or permitted under this agreement shall be in writing, and except as otherwise provided herein, shall be effective upon receipt via facsimile, personal delivery to Seller or Purchaser, or three (3) days after being deposited in the United States mail, registered or certified, with postage fully prepaid and addressed to the respective parties as follows: Seller: Liberty National Life Insurance Company 3700 S. Stonebridge Drive P.O. Box 8080 McKinney, TX 75070 Attention: Mr. Russell Tucker Purchaser: MidFirst Bank 501 N.W. Grand Blvd. Oklahoma City, Oklahoma 73118 Attention: Legal Department or to such other addresses as either party shall, from time to time, specify in the manner provided herein. 13.",
"Interpretation. The headings in this Agreement are for convenience only and shall not define or limit the provisions hereof. This Agreement shall be construed according to its ordinary meaning and shall not be strictly construed for or against any party hereto. -------------------------------------------------------------------------------- 14. Governing Law. This Agreement shall be governed by the laws of the State of Oklahoma. The parties agree that proper venue and jurisdiction shall reside in state or federal district court in Oklahoma County, Oklahoma.",
"15. Binding Effect and Waiver. All of the terms, covenants, and conditions herein contained shall inure to the benefit of and be binding upon the parties hereto and their successors and assigns. Any modification or waiver of any term of this agreement, including a modification or a waiver of this term, must be in writing signed by the party or parties against which enforcement of the modification or waiver is sought. 16. Entire Agreement. This agreement constitutes the entire agreement among the parties pertaining to the subject matter hereof and all prior and contemporaneous agreements, representations and understandings, written or oral, are hereby superseded and merged into this Agreement. The parties hereto agree to execute such additional documents and to perform such additional acts as may be reasonably necessary to carry out the purpose and intent of this Agreement. 17. Claims of Action.",
"If any party shall bring suit to enforce the terms and provisions hereof, the prevailing party shall be entitled to recover from the other party all costs, expenses and reasonable attorneys’ fees incurred in connection with the exercise by the prevailing party of its rights and remedies hereunder. For purposes of this paragraph, the term “prevailing party” shall mean, in the case of the claimant, one who is successful in obtaining substantially all the relief sought, and in the case of the defendant or respondent, one who is successful in denying substantially all of the relief sought by the claimant. Any award of attorneys’ fees shall be set by the court and not by a jury. 18. Severability. Should any term, provision, covenant or condition of this Agreement be void, invalid or inoperative, the same shall not affect any other term, provision, covenant or condition of this Agreement but the remainder thereof shall be given effect as though such void, invalid or inoperative term, provision, covenant or condition had not been contained herein.",
"This Agreement may be executed in counterpart and each such counterpart, when taken together with all other counterparts, shall be deemed one and the same original document. IN WITNESS WHEREOF, the parties hereto have caused this agreement to be duly executed as of the day and year first above written. SELLER: PURCHASER: Liberty National Life Insurance Company MidFirst Bank By: /s/ Danny H. Almond By: /s/ R. Wayne Booth -------------------------------------------------------------------------------- Title: Assistant Treasurer Title: Senior Vice President -------------------------------------------------------------------------------- -------------------------------------------------------------------------------- EXHIBIT “A” ACTIVE PORTFOLIO Loan # -------------------------------------------------------------------------------- Note # -------------------------------------------------------------------------------- Borrower Name -------------------------------------------------------------------------------- 13863164 100 Mt. San Bruno Industrial Park, G.P. 13863203 100 Marana Ina Road, LLC 13863821 100 Commonwealth/Transnation 98, LLC 13863850 100 Larimer 98, LLC 13863853 100 Eaton Enterprises 13863902 100 Eric Building 97, LLC 13863960 100 Blake Street 98, LLC 13864008 100 Pinewood Village, Inc. 784770 100 135th & Q, LLC 13854189 100 Newport-Britton, LLC 13864309 100 Westgate South VCW, LLC; Reseda Napa VCW, LLC; Coronado VCW, LLC 13864338 100 DBSI Park Ten, LLC -------------------------------------------------------------------------------- EXHIBIT “B” 1. Loan Participation Agreement dated October 16, 1995; Borrower Mount San Bruno Industrial Park, G.P. 2.",
"Loan Participation Agreement dated October 24, 1995; Borrower Marana Ina Road, LLC 3. Loan Participation Agreement dated December 17, 1998; Borrower Commonwealth/Transnation 98 LLC 4. Loan Participation Agreement dated April 29, 1998; Borrower Larimer 98, LLC 5. Loan Participation Agreement dated May 7, 1998; Borrower Eaton Enterprises 6. Loan Participation Agreement dated June 12, 1998; Borrower Eric Building 97, LLC 7. Loan Participation Agreement dated December 17, 1998; Borrower Blake Street 98, LLC 8. Loan Participation Agreement dated July 22, 1998; Borrower Pinewood Village, Inc. 9. Loan Participation Agreement dated October 6, 1998; Borrower 135th & Q, LLC 10.",
"Loan Participation Agreement dated May 27, 1999; Borrower Newport-Britton, LLC 11. Loan Participation Agreement dated December 22, 2000; Borrower Westgate South VWC, LLC, Reseda Napa VCW, LLC and Coronado VWC, LLC 12. Loan Participation Agreement dated December 28, 1999; Borrower DBSI Park 10, LLC -------------------------------------------------------------------------------- MEMORANDUM OF UNDERSTANDING The parties hereby understand and agree that the accrued, but unpaid interest and any unpaid expenses are not to be included in the unpaid principal balance for purchase price computation purposes. Rather, accrued, but unpaid interest and any unpaid expenses will be handled on a pro rate basis post closing when such interest is received by MidFirst Bank, or such expenses are to be paid.",
"AGREE AND ACCEPTED this 5th day of October, 2004. MidFirst Bank By: /s/ R. Wayne Booth -------------------------------------------------------------------------------- Title: Senior Vice President -------------------------------------------------------------------------------- Liberty National Life Insurance Company By: /s/ Danny H. Almond Title: Assistant Treasurer"
]
| https://github.com/TheAtticusProject/cuad | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
|
Citation Nr: 1541766
Decision Date: 09/28/15 Archive Date: 10/05/15
DOCKET NO. 14-12 620 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington
THE ISSUES
1. Entitlement to service connection for bilateral hearing loss.
2. Entitlement to an initial disability rating in excess of 10 percent for left knee meniscal tear status post arthroscopic surgery.
3. Entitlement to an initial compensable disability rating for right knee strain.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the United States
ATTORNEY FOR THE BOARD
A. Dean, Associate Counsel
INTRODUCTION
The Veteran had active service from February 2004 to February 2010.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) Seattle, Washington.
This appeal was processed electronically using the Veterans Benefits Management System (VBMS) paperless claims processing system. Any future consideration of this appeal should account for this electronic record.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
REMAND
The Veteran contends he had hazardous noise exposure in service due to working on an aircraft carrier. See July 2010 VA Examination Report. His Navy rating was mass communications specialist. See DD Form 214. Remand is required to obtain the Veteran's outstanding personnel records and to afford the Veteran new VA examinations to assess the current severity of his service-connected left and right knee disabilities, to include his complaints of chronic bilateral knee pain and pain with motion. See December 2014 Brief.
Accordingly, the case is REMANDED for the following action:
1. Request from the National Personnel Records Center (NPRC), or any other appropriate entity, the Veteran's service personnel records regarding his active duty service from February 2004 to February 2010.
If service personnel records are not obtainable (or none exist), the Veteran and his representative should be notified and the record clearly documented.
2. Request that the Veteran identify and secure any relevant private medical records that are not in the claims file. Associate any records identified by the Veteran with the claims file. If any records are unavailable, document their unavailability within the claims file and advise the Veteran so that he can submit any copies of the unavailable records in his possession.
3. Obtain any outstanding VA medical treatment records (VAMRs) from May 2015 forward and associate them with the claims file.
4. After the passage of a reasonable amount of time or upon the Veteran's response, return the claims file to the VA examiner who performed the May 2013 left and right knee examination for a new examination. If the examiner is not available, a different examiner may conduct the examination. The entire claims file, to include a copy of this REMAND, must be provided to the VA examiner, who must indicate its review. The following considerations must govern the examination:
The VA examiner must conduct complete left and right knee examinations and provide a comprehensive assessment of the severity of the symptoms associated with the Veteran's left and right knee disabilities. The examiner must:
a. Identify the nature, frequency, and severity of the Veteran's left and right knee disabilities.
b. Report on any instability in the left and/or right knee and, if instability exists, the degree of instability (severe, moderate, or slight).
c. Report whether the flexion of the Veteran's left or right knee is limited to 15 degrees, 30 degrees, 45 degrees, or 60 degrees.
d. Report whether the extension of the Veteran's left or right knee is limited to 45 degrees, 30 degrees, 20 degrees, 15 degrees, 10 degrees, or 5 degrees.
e. Report on any functional loss due to pain and/or weakness that causes disability beyond that reflected on range of motion measurements.
5. Then, review the medical examination report to ensure that it adequately responds to the above instructions. If the report is deficient in this regard, return the case file to the VA examiner for further review and discussion.
6. After the above development, and any other development that may be warranted based on additional information or evidence received, is completed, readjudicate the issues of entitlement to service connection for bilateral hearing loss and entitlement to higher disability ratings for left and right knee disabilities. If the benefits sought are not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case (SSOC) and afforded a reasonable opportunity to respond to the SSOC before the record is returned to the Board for further review.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
_________________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015). | 09-28-2015 | [
"Citation Nr: 1541766 Decision Date: 09/28/15 Archive Date: 10/05/15 DOCKET NO. 14-12 620 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to an initial disability rating in excess of 10 percent for left knee meniscal tear status post arthroscopic surgery.",
"3. Entitlement to an initial compensable disability rating for right knee strain. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Dean, Associate Counsel INTRODUCTION The Veteran had active service from February 2004 to February 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) Seattle, Washington. This appeal was processed electronically using the Veterans Benefits Management System (VBMS) paperless claims processing system. Any future consideration of this appeal should account for this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran contends he had hazardous noise exposure in service due to working on an aircraft carrier. See July 2010 VA Examination Report.",
"His Navy rating was mass communications specialist. See DD Form 214. Remand is required to obtain the Veteran's outstanding personnel records and to afford the Veteran new VA examinations to assess the current severity of his service-connected left and right knee disabilities, to include his complaints of chronic bilateral knee pain and pain with motion. See December 2014 Brief. Accordingly, the case is REMANDED for the following action: 1. Request from the National Personnel Records Center (NPRC), or any other appropriate entity, the Veteran's service personnel records regarding his active duty service from February 2004 to February 2010. If service personnel records are not obtainable (or none exist), the Veteran and his representative should be notified and the record clearly documented. 2.",
"Request that the Veteran identify and secure any relevant private medical records that are not in the claims file. Associate any records identified by the Veteran with the claims file. If any records are unavailable, document their unavailability within the claims file and advise the Veteran so that he can submit any copies of the unavailable records in his possession. 3. Obtain any outstanding VA medical treatment records (VAMRs) from May 2015 forward and associate them with the claims file. 4. After the passage of a reasonable amount of time or upon the Veteran's response, return the claims file to the VA examiner who performed the May 2013 left and right knee examination for a new examination. If the examiner is not available, a different examiner may conduct the examination. The entire claims file, to include a copy of this REMAND, must be provided to the VA examiner, who must indicate its review. The following considerations must govern the examination: The VA examiner must conduct complete left and right knee examinations and provide a comprehensive assessment of the severity of the symptoms associated with the Veteran's left and right knee disabilities. The examiner must: a. Identify the nature, frequency, and severity of the Veteran's left and right knee disabilities. b. Report on any instability in the left and/or right knee and, if instability exists, the degree of instability (severe, moderate, or slight). c. Report whether the flexion of the Veteran's left or right knee is limited to 15 degrees, 30 degrees, 45 degrees, or 60 degrees.",
"d. Report whether the extension of the Veteran's left or right knee is limited to 45 degrees, 30 degrees, 20 degrees, 15 degrees, 10 degrees, or 5 degrees. e. Report on any functional loss due to pain and/or weakness that causes disability beyond that reflected on range of motion measurements. 5. Then, review the medical examination report to ensure that it adequately responds to the above instructions. If the report is deficient in this regard, return the case file to the VA examiner for further review and discussion. 6. After the above development, and any other development that may be warranted based on additional information or evidence received, is completed, readjudicate the issues of entitlement to service connection for bilateral hearing loss and entitlement to higher disability ratings for left and right knee disabilities. If the benefits sought are not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case (SSOC) and afforded a reasonable opportunity to respond to the SSOC before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.",
"Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015)."
]
| https://drive.google.com/drive/folders/12lAd8Os7VFeqbTKi4wcqJqODjHIn0-yQ?usp=sharing | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
McGehee, C. J. The facts in this case are stipulated, and they disclose that the appellee, Reliance Investment Company, Inc., on April 6, 1953, purchased at a municipal ad valorem tax sale, Lot 7, Block 3, Uuderwood Survey, Part 3, according to the plat thereof of record in the Office of the Chancery Clerk of Hinds County at Jackson, Mississippi, the tax sale having been held by the City of Jackson for the delinquent ad valorem taxes due and unpaid on the said lot for the year 1952. On the next day, April 7, 1953, the appellant Leon Shelton purchased the same lot of land from the City of Jackson for the then delinquent and unpaid annual assessment for special improvements. It appears, and it is in fact conceded that the tax sale on April 7, 1953, to the appellant was made at a continuation of the sale *53made to the appellee on the next preceding day, due to the fact that there were so many sales to be made for delinquent taxes, including those for ad valorem taxes and for special improvements, as to render it impossible to complete the sale of all the lands on April 6, 1953. - 'In due course, the City of Jackson, through its duly átíthórized clerk, executed a tax deed to the appellee Réliance Investment Company, Inc. on the 20th day of February 1955, and a tax deed to the appellant Leon Shelton on February 28, 1955. It is to be conceded that both of the said tax sales were legally and regularly held and were in all respects legal and valid. The lot in question was not redeemed from either of the said tax sales. On February 3, 1956, the appellant filed a bill of complaint against the former owner of the lot, Amy Myles, and the appellee Reliance Investment Company, Inc. to confirm his title as the purchaser at the sale under the assessment for special improvement taxes, alleging that he was the purchaser under a superior tax lien to that under which the land was sold to the appellee Reliance Investment Company, Inc. for municipal ad valor-em taxes, and that the said ad valorem tax purchaser had failed to redeem from the sale to the appellant within the time required by law therefor. The former owner did not answer the bill of complaint or otherwise plead thereto, and hence a decree pro confesso was taken against her. The trial court decreed that the sum of $53.85 which had been paid into the registry of the court by the Reliance Investment Company, Inc. be paid to the complainant in full and complete satisfaction of the lien against the lot in favor of the complainant, and that such lien be cancelled, satisfied and held for naught. The court thereupon confirmed under a cross bill as a fee simple title in the Reliance Investment Company, Inc, the purchase by it of the lot at the municipal ad valorem tax sale, *54leaving the complainant Shelton with the right only to collect the $53.85 as a reimbursement to him of the taxes, expenses and interest incurred. He declined to accept this amount and he appeals from the said final decree and urges that he acquired the full and complete fee simple title to the land under the sale based on the assessment of improvement taxes upon the failure of the Reliance Investment Company, Inc. to redeem from the sale to him, before his title under the superior lien had expired. We think that this case is controlled in favor of the appellant by the cases of Seward v. City of Jackson, 165 Miss. 478, 144 So. 686, and Seward v. City of Jackson, 165 Miss. 841, 147 So. 781, construing Section 6, Chapter 194, Laws of 1924 (Section 3664-06, (lode of 1942, Annotated), which provides, among other things relating to assessments for special improvements by a municipality, that “said assessment shall, from the date of such confirmation, constitute a lien upon the respective lots or parcels of land and other real property upon which they are levied, superior to all other liens except those for state and county taxes.” As pointed out by the Court in the Seward cases, supra, municipal ad valorem taxes, were not excepted from the provision of the act, and therefore the lien for state and county taxes is the only one recognized as not being made subordinate to the lien under an assessment for special improvements. A purchaser under a superior tax lien would necessarily acquire rights superior to a purchaser under an inferior lien. The holder of any junior lieu by contract, or otherwise, must satisfy the superior lieu before it is foreclosed. It may be that the failure of the Legislature to provide more time to a purchaser at a municipal ad valorem tax sale within which to redeem from a sale made under an assessment for special improvements, after the time the former sale has matured and before the latter has matured, *55may leave the purchaser at the former sale without a ready and efficient remedy, nevertheless, as we see it, as the statute is now written, the purchaser under the superior lien acquires a complete tile unless the sale to him is redeemed before its maturity. However, Section 9948, Code of 1942, provides that: “The owner * * * or any person interested in the land sold for taxes, may redeem the same, or any part of it, where it is separable by legal subdivisions of not less than forty acres * * * at any time within two years after the day of sale, by paying to the chancery clerk, regardless of the amount of the purchaser’s bid at the tax sale, the amount of all taxes for which the land was sold, with all costs incident to the sale, and five pereentum damages on the amount of taxes for which the land was sold, and interest on all such taxes and costs at the rate of one pereentum per month, or any fractional part thereof, from the date of such sale, and all taxes and costs that have accrued on the land since the sale, with interest thereon from the date such taxes shall have accrued, at the rate of one pereentum per month, or any fractional part thereof * * The purchaser at the municipal ad valorem tax sale failed to do this prior to the maturity of the sale under the assessment for the special improvements, and therefore the appellee’s right to redeem had expired prior to the filing of this suit by the appellant for the confirmation of his title. While there are some distinguishing features in the Seward cases, we think it clear that the Court expressly recognized the superior rights of the purchaser under an assessment for special improvements. From the foregoing views, it necessarily follows that that the decree appealed from should be reversed and judgment rendered here for the appellant. Reversed and judgment here for appellant. Kyle, Arrington, Ethridge and Gillespie, JJ., concur. | 09-09-2022 | [
"McGehee, C. J. The facts in this case are stipulated, and they disclose that the appellee, Reliance Investment Company, Inc., on April 6, 1953, purchased at a municipal ad valorem tax sale, Lot 7, Block 3, Uuderwood Survey, Part 3, according to the plat thereof of record in the Office of the Chancery Clerk of Hinds County at Jackson, Mississippi, the tax sale having been held by the City of Jackson for the delinquent ad valorem taxes due and unpaid on the said lot for the year 1952. On the next day, April 7, 1953, the appellant Leon Shelton purchased the same lot of land from the City of Jackson for the then delinquent and unpaid annual assessment for special improvements.",
"It appears, and it is in fact conceded that the tax sale on April 7, 1953, to the appellant was made at a continuation of the sale *53made to the appellee on the next preceding day, due to the fact that there were so many sales to be made for delinquent taxes, including those for ad valorem taxes and for special improvements, as to render it impossible to complete the sale of all the lands on April 6, 1953. - 'In due course, the City of Jackson, through its duly átíthórized clerk, executed a tax deed to the appellee Réliance Investment Company, Inc. on the 20th day of February 1955, and a tax deed to the appellant Leon Shelton on February 28, 1955. It is to be conceded that both of the said tax sales were legally and regularly held and were in all respects legal and valid. The lot in question was not redeemed from either of the said tax sales.",
"On February 3, 1956, the appellant filed a bill of complaint against the former owner of the lot, Amy Myles, and the appellee Reliance Investment Company, Inc. to confirm his title as the purchaser at the sale under the assessment for special improvement taxes, alleging that he was the purchaser under a superior tax lien to that under which the land was sold to the appellee Reliance Investment Company, Inc. for municipal ad valor-em taxes, and that the said ad valorem tax purchaser had failed to redeem from the sale to the appellant within the time required by law therefor. The former owner did not answer the bill of complaint or otherwise plead thereto, and hence a decree pro confesso was taken against her. The trial court decreed that the sum of $53.85 which had been paid into the registry of the court by the Reliance Investment Company, Inc. be paid to the complainant in full and complete satisfaction of the lien against the lot in favor of the complainant, and that such lien be cancelled, satisfied and held for naught.",
"The court thereupon confirmed under a cross bill as a fee simple title in the Reliance Investment Company, Inc, the purchase by it of the lot at the municipal ad valorem tax sale, *54leaving the complainant Shelton with the right only to collect the $53.85 as a reimbursement to him of the taxes, expenses and interest incurred. He declined to accept this amount and he appeals from the said final decree and urges that he acquired the full and complete fee simple title to the land under the sale based on the assessment of improvement taxes upon the failure of the Reliance Investment Company, Inc. to redeem from the sale to him, before his title under the superior lien had expired.",
"We think that this case is controlled in favor of the appellant by the cases of Seward v. City of Jackson, 165 Miss. 478, 144 So. 686, and Seward v. City of Jackson, 165 Miss. 841, 147 So. 781, construing Section 6, Chapter 194, Laws of 1924 (Section 3664-06, (lode of 1942, Annotated), which provides, among other things relating to assessments for special improvements by a municipality, that “said assessment shall, from the date of such confirmation, constitute a lien upon the respective lots or parcels of land and other real property upon which they are levied, superior to all other liens except those for state and county taxes.” As pointed out by the Court in the Seward cases, supra, municipal ad valorem taxes, were not excepted from the provision of the act, and therefore the lien for state and county taxes is the only one recognized as not being made subordinate to the lien under an assessment for special improvements. A purchaser under a superior tax lien would necessarily acquire rights superior to a purchaser under an inferior lien. The holder of any junior lieu by contract, or otherwise, must satisfy the superior lieu before it is foreclosed. It may be that the failure of the Legislature to provide more time to a purchaser at a municipal ad valorem tax sale within which to redeem from a sale made under an assessment for special improvements, after the time the former sale has matured and before the latter has matured, *55may leave the purchaser at the former sale without a ready and efficient remedy, nevertheless, as we see it, as the statute is now written, the purchaser under the superior lien acquires a complete tile unless the sale to him is redeemed before its maturity.",
"However, Section 9948, Code of 1942, provides that: “The owner * * * or any person interested in the land sold for taxes, may redeem the same, or any part of it, where it is separable by legal subdivisions of not less than forty acres * * * at any time within two years after the day of sale, by paying to the chancery clerk, regardless of the amount of the purchaser’s bid at the tax sale, the amount of all taxes for which the land was sold, with all costs incident to the sale, and five pereentum damages on the amount of taxes for which the land was sold, and interest on all such taxes and costs at the rate of one pereentum per month, or any fractional part thereof, from the date of such sale, and all taxes and costs that have accrued on the land since the sale, with interest thereon from the date such taxes shall have accrued, at the rate of one pereentum per month, or any fractional part thereof * * The purchaser at the municipal ad valorem tax sale failed to do this prior to the maturity of the sale under the assessment for the special improvements, and therefore the appellee’s right to redeem had expired prior to the filing of this suit by the appellant for the confirmation of his title.",
"While there are some distinguishing features in the Seward cases, we think it clear that the Court expressly recognized the superior rights of the purchaser under an assessment for special improvements. From the foregoing views, it necessarily follows that that the decree appealed from should be reversed and judgment rendered here for the appellant. Reversed and judgment here for appellant. Kyle, Arrington, Ethridge and Gillespie, JJ., concur."
]
| https://www.courtlistener.com/api/rest/v3/opinions/7996685/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Barnard, P. J. Isaac L. Blauvelt died in Rockland county in 1861, leaving a last will. The deceased left a widow and two daughters. By the will the widow was entitled to “the use of all my real and personal estate,” with full power of sale of the real estate “as tp her shall seem just.” After the widow’s death a life-estate in one-half of the estate was given to each of the daughters, with remainder to their children. The widow was one of the executors. She had no power to use any portion of the principal for her own purpose, but the entire estate was disposed of after her life-estate ceased. The widow has sold certain of the testator’s lands, and claims to be entitled to hold the proceeds as her own. The surrogate properly disallowed this. The meaning arid intent of the will is that the widow may sell the lands for the purposes of the will. She is to have the entire use of thó proceeds, but the same must go to the daughters and their children, as provided for in the will. The construction claimed by the widow is inconsistent with the scope and intent of the will, and a gift of a life-estate with power of sale and remainder'over after the life-estate of all the testator’s property is entirely con*587sistent with the power of sale. Monarque v. Monarque, 80 N. Y. 320. The proceeds of the land became personal estate when the land was sold and actually converted into money under this power, and the surrogate had jurisdiction to compel an account therefor. The appellants make no point as to the propriety of the decree holding the executors liable for imprudent loans. The decree seems faultless in this respect. King v. Talbot, 40 N. Y. 76. The decree should be affirmed, with costs. All concur. | 01-10-2022 | [
"Barnard, P. J. Isaac L. Blauvelt died in Rockland county in 1861, leaving a last will. The deceased left a widow and two daughters. By the will the widow was entitled to “the use of all my real and personal estate,” with full power of sale of the real estate “as tp her shall seem just.” After the widow’s death a life-estate in one-half of the estate was given to each of the daughters, with remainder to their children. The widow was one of the executors. She had no power to use any portion of the principal for her own purpose, but the entire estate was disposed of after her life-estate ceased. The widow has sold certain of the testator’s lands, and claims to be entitled to hold the proceeds as her own. The surrogate properly disallowed this. The meaning arid intent of the will is that the widow may sell the lands for the purposes of the will. She is to have the entire use of thó proceeds, but the same must go to the daughters and their children, as provided for in the will.",
"The construction claimed by the widow is inconsistent with the scope and intent of the will, and a gift of a life-estate with power of sale and remainder'over after the life-estate of all the testator’s property is entirely con*587sistent with the power of sale. Monarque v. Monarque, 80 N. Y. 320. The proceeds of the land became personal estate when the land was sold and actually converted into money under this power, and the surrogate had jurisdiction to compel an account therefor. The appellants make no point as to the propriety of the decree holding the executors liable for imprudent loans.",
"The decree seems faultless in this respect. King v. Talbot, 40 N. Y. 76. The decree should be affirmed, with costs. All concur."
]
| https://www.courtlistener.com/api/rest/v3/opinions/5501257/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Citation Nr: 0527993
Decision Date: 10/18/05 Archive Date: 11/01/05
DOCKET NO. 00-06 123 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
No. Little Rock, Arkansas
THE ISSUE
Entitlement to service connection for hypertension.
REPRESENTATION
Appellant represented by: Jenny Y. Twyford, Attorney at
Law
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
Michael Holincheck, Counsel
INTRODUCTION
The veteran served on active duty from April 11, 1978, to May
26, 1978.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a November 1999 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
North Little Rock, Arkansas.
The Board previously denied the veteran's claim in July 2004.
He appealed the Board's decision to the United States Court
of Appeals for Veterans Claims (Court). The veteran's
attorney and VA's General Counsel filed a joint motion in
June 2005 requesting that the Court vacate the Board's
decision. The Court granted the joint motion for remand that
same month and returned the case to the Board.
In September 2005, the veteran's attorney submitted a list of
facilities/physicians provided by the veteran wherein he
indicated he had received treatment over the years. As the
case must be remanded to comply with the directives of the
Court order, the RO will have an opportunity to address the
information provided by the veteran.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the veteran
if further action is required on his part.
REMAND
The veteran served on active duty in the U. S. Army from
April 11, 1978, to May 26, 1978. He originally enlisted in
the U. S. Army Reserve in January 1978, under the Delayed
Enlistment Program (DEP). A Report of Medical Examination/
Treatment, MEPCOM FL 700, dated January 21, 1978, noted that
the veteran needed to provide information about a
questionable hypertension work-up before he could enlist.
The remainder of the form was completed by a J. W. Chen.
M.D., and signed on January 24, 1978. Dr. Chen reported that
there was a normal physical examination. He also noted three
blood pressure readings for the veteran of 126/80, 120/80,
and 120/80.
A Report of Medical Examination, SF-88, dated January 21,
1978, contains notations in Block # 74 regarding several
blood pressure readings for the veteran. There are three
readings of 176/110, 136/100, and 150/100. The veteran's
blood pressure was rechecked 3 days later, and the military
examiner recorded the new readings of 126/80, 120/80 and
120/80 on the physical examination report by crossing out the
previous readings and entering the new readings. The new
readings appear to be taken from those provided by Dr. Chen.
The veteran was noted to be qualified for enlistment in Block
# 77.
The veteran was discharged from the U. S. Army Reserve on
April 10, 1978. He was enlisted into the Regular Army on
April 11, 1978, and transferred for basic training.
The veteran was seen for complaints related to hypertension
soon after he reported for basic training. The veteran's
service medical records (SMRs) show that he was treated and
evaluated over a period of several weeks for his
hypertension. A review of the veteran's military personnel
records shows that he was discharged in May 1978 for reasons
unrelated to any medical condition.
The veteran submitted his claim for service connection for
hypertension in October 1999. Private and VA medical records
were obtained and associated with the claims file. The
private records only provided information back to July 1992
and did not address the etiology of the veteran's
hypertension.
The VA records date back to September 1978 when the veteran
was hospitalized for treatment of his hypertension. A
clinical record, dated September 26, 1978, reported that the
veteran was treated a year earlier for what appears to be
hypertension at Mercy Hospital in Chicago, Illinois.
The veteran was afforded VA examinations in November 1999 and
July 2002. The November 1999 examiner did not address the
etiology of the veteran's hypertension. The July 2002
examiner did provide an opinion wherein he concluded that the
veteran's hypertension preexisted service and was not
aggravated by service.
The Board denied the veteran's claim in July 2004. As noted
in the Introduction, the veteran appealed the decision and
the decision was vacated and remanded to the Board in June
2005. The Court's order granted a joint motion that
challenged several areas of the Board's decision.
In part, the joint motion argued that the July 2002 VA
examination was inadequate in that it did not provide the
opinion requested in a March 2001 Board remand. Further, the
joint motion noted that the VA examiner had not had an
opportunity to review the 1978 VA records.
The joint motion also argued that the Board had not provided
adequate reasons and bases in determining that there was
clear and unmistakable evidence to show that the veteran's
hypertension preexisted service and that it was not
aggravated by service. The joint motion stated that a new
examination and medical opinion was required.
Accordingly, the veteran's case is REMANDED to the RO for the
following action:
1. The RO should request the veteran to
identify all VA and non-VA health care
providers who have treated him for his
hypertension, both before and after
service. The veteran should specifically
be asked to provide a release for records
associated with his treatment at Mercy
Hospital in 1977 and any and all
treatment from Dr. J. W. Chen. After
securing the necessary releases, the RO
should attempt to obtain copies of
pertinent treatment records identified by
the veteran that have not been previously
secured, and associate them with the
claims file.
2. Thereafter, the RO should arrange for
the veteran to be scheduled for
examination by a cardiologist to obtain
an opinion regarding the etiology and
onset date of the veteran's hypertension.
The claims folder must be made available
to the physician in order that he or she
may fully review the veteran's service
and medical history. The examiner should
elicit a history from the veteran as to
his hypertension and review the pertinent
information in the claims folder, to
include the information from Dr. Chen,
the service medical records, including
the January 1978 physical examination, as
well as private records and previous VA
examination reports of record. The
physician should provide an opinion as to
whether the hypertension clearly existed
prior to the veteran's military service.
If the hypertension pre-existed the
veteran's military service, the physician
should offer an opinion as to whether
there is at least a 50 percent
probability or greater that the
hypertension increased in severity during
service, and if so, whether any in-
service increase in severity of the
hypertension represented a temporary
flare-up or whether any in-service
increase represented a natural
progression of the condition. The report
of examination must include the complete
rationale for all opinions expressed.
3. Thereafter, the RO should review the
claims file to ensure that all of the
requested development has been completed.
In particular, the RO should review the
requested examination report and medical
opinions to ensure that they are
responsive to and in complete compliance
with the directives of this remand, and
if they are not, the RO should take
corrective action.
4. After undertaking any other
development deemed appropriate, the RO
should re-adjudicate the issue remaining
on appeal, to include entitlement to
service connection for a preexisting
disorder if appropriate. If the benefit
sought is not granted, the veteran and
his attorney should be furnished with a
supplemental statement of the case and
afforded an opportunity to respond before
the record is returned to the Board for
further review.
Thereafter, the case should be returned to the Board for
further appellate review, if in order. By this remand, the
Board intimates no opinion as to any final outcome warranted.
No action is required of the veteran until he is notified by
the RO. The veteran has the right to submit additional
evidence and argument on the matter the Board has remanded to
the RO. 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 or by
the United States Court of Appeals for Veterans Claims for
additional development or other appropriate action must be
handled in an expeditious manner. See The Veterans Benefits
Act of 2003, codified at 38 U.S.C.A. §§ 5109B, 7112 (West
Supp. 2005).
_________________________________________________
Gary L. Gick
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) (2004). | 10-18-2005 | [
"Citation Nr: 0527993 Decision Date: 10/18/05 Archive Date: 11/01/05 DOCKET NO. 00-06 123 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Jenny Y. Twyford, Attorney at Law WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Michael Holincheck, Counsel INTRODUCTION The veteran served on active duty from April 11, 1978, to May 26, 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 1999 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas.",
"The Board previously denied the veteran's claim in July 2004. He appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). The veteran's attorney and VA's General Counsel filed a joint motion in June 2005 requesting that the Court vacate the Board's decision. The Court granted the joint motion for remand that same month and returned the case to the Board. In September 2005, the veteran's attorney submitted a list of facilities/physicians provided by the veteran wherein he indicated he had received treatment over the years. As the case must be remanded to comply with the directives of the Court order, the RO will have an opportunity to address the information provided by the veteran. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required on his part. REMAND The veteran served on active duty in the U. S. Army from April 11, 1978, to May 26, 1978. He originally enlisted in the U. S. Army Reserve in January 1978, under the Delayed Enlistment Program (DEP). A Report of Medical Examination/ Treatment, MEPCOM FL 700, dated January 21, 1978, noted that the veteran needed to provide information about a questionable hypertension work-up before he could enlist. The remainder of the form was completed by a J. W. Chen.",
"M.D., and signed on January 24, 1978. Dr. Chen reported that there was a normal physical examination. He also noted three blood pressure readings for the veteran of 126/80, 120/80, and 120/80. A Report of Medical Examination, SF-88, dated January 21, 1978, contains notations in Block # 74 regarding several blood pressure readings for the veteran. There are three readings of 176/110, 136/100, and 150/100. The veteran's blood pressure was rechecked 3 days later, and the military examiner recorded the new readings of 126/80, 120/80 and 120/80 on the physical examination report by crossing out the previous readings and entering the new readings.",
"The new readings appear to be taken from those provided by Dr. Chen. The veteran was noted to be qualified for enlistment in Block # 77. The veteran was discharged from the U. S. Army Reserve on April 10, 1978. He was enlisted into the Regular Army on April 11, 1978, and transferred for basic training. The veteran was seen for complaints related to hypertension soon after he reported for basic training.",
"The veteran's service medical records (SMRs) show that he was treated and evaluated over a period of several weeks for his hypertension. A review of the veteran's military personnel records shows that he was discharged in May 1978 for reasons unrelated to any medical condition. The veteran submitted his claim for service connection for hypertension in October 1999. Private and VA medical records were obtained and associated with the claims file. The private records only provided information back to July 1992 and did not address the etiology of the veteran's hypertension. The VA records date back to September 1978 when the veteran was hospitalized for treatment of his hypertension. A clinical record, dated September 26, 1978, reported that the veteran was treated a year earlier for what appears to be hypertension at Mercy Hospital in Chicago, Illinois. The veteran was afforded VA examinations in November 1999 and July 2002. The November 1999 examiner did not address the etiology of the veteran's hypertension. The July 2002 examiner did provide an opinion wherein he concluded that the veteran's hypertension preexisted service and was not aggravated by service.",
"The Board denied the veteran's claim in July 2004. As noted in the Introduction, the veteran appealed the decision and the decision was vacated and remanded to the Board in June 2005. The Court's order granted a joint motion that challenged several areas of the Board's decision. In part, the joint motion argued that the July 2002 VA examination was inadequate in that it did not provide the opinion requested in a March 2001 Board remand. Further, the joint motion noted that the VA examiner had not had an opportunity to review the 1978 VA records.",
"The joint motion also argued that the Board had not provided adequate reasons and bases in determining that there was clear and unmistakable evidence to show that the veteran's hypertension preexisted service and that it was not aggravated by service. The joint motion stated that a new examination and medical opinion was required. Accordingly, the veteran's case is REMANDED to the RO for the following action: 1. The RO should request the veteran to identify all VA and non-VA health care providers who have treated him for his hypertension, both before and after service. The veteran should specifically be asked to provide a release for records associated with his treatment at Mercy Hospital in 1977 and any and all treatment from Dr. J. W. Chen. After securing the necessary releases, the RO should attempt to obtain copies of pertinent treatment records identified by the veteran that have not been previously secured, and associate them with the claims file. 2. Thereafter, the RO should arrange for the veteran to be scheduled for examination by a cardiologist to obtain an opinion regarding the etiology and onset date of the veteran's hypertension.",
"The claims folder must be made available to the physician in order that he or she may fully review the veteran's service and medical history. The examiner should elicit a history from the veteran as to his hypertension and review the pertinent information in the claims folder, to include the information from Dr. Chen, the service medical records, including the January 1978 physical examination, as well as private records and previous VA examination reports of record. The physician should provide an opinion as to whether the hypertension clearly existed prior to the veteran's military service. If the hypertension pre-existed the veteran's military service, the physician should offer an opinion as to whether there is at least a 50 percent probability or greater that the hypertension increased in severity during service, and if so, whether any in- service increase in severity of the hypertension represented a temporary flare-up or whether any in-service increase represented a natural progression of the condition. The report of examination must include the complete rationale for all opinions expressed. 3. Thereafter, the RO should review the claims file to ensure that all of the requested development has been completed.",
"In particular, the RO should review the requested examination report and medical opinions to ensure that they are responsive to and in complete compliance with the directives of this remand, and if they are not, the RO should take corrective action. 4. After undertaking any other development deemed appropriate, the RO should re-adjudicate the issue remaining on appeal, to include entitlement to service connection for a preexisting disorder if appropriate. If the benefit sought is not granted, the veteran and his attorney should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. Thereafter, the case should be returned to the Board for further appellate review, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. 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 or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans Benefits Act of 2003, codified at 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). _________________________________________________ Gary L. Gick 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) (2004)."
]
| https://drive.google.com/drive/folders/12lAd8Os7VFeqbTKi4wcqJqODjHIn0-yQ?usp=sharing | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
In an action to compel specific performance of a contract for the sale of certain real property, the petitioners Rick (who are not parties to the action) appeal from an order of the Supreme Court, Westchester County, dated November 5, 1962, which denied their motion, made pursuant to section 123 of the former Civil Practice Act, to cancel a notice of pendency of the action filed by the plaintiff. Order reversed, without costs; motion granted and notice of pendency directed to be cancelled of record. On May 29, 1960 plaintiff and defendant Rimberg entered into a contract for the sale of defendant’s real property to the plaintiff. On June 14, 1960 Rimberg contracted to sell the same property to the petitioners Rick. On June 22, 1960 *581plaintiff filed her lis pendens. On June 29, 1960 the Kicks and Rimberg, with knowledge of the lis pendens, met to close title. On that date they entered into another agreement whereby the Ricks agreed to take title to the premises, subject to the understanding that Rimberg would defend the plaintiff’s action for specific performance and that Rimberg would take the necessary steps to remove the lis pendens. It was further agreed that the Ricks would pay the full consideration for the property, the funds to be held in escrow by Rimberg’s attorney until the title should become free and clear of the lis pendens. The Ricks further agreed to pay the taxes and maintenance charges on the property; and, in the event the plaintiff prevailed in her action, to reeonvey the title to Rimberg. Before the action was reached for trial, the escrow agent (Rim-berg’s attorney) died insolvent and the money had disappeared. Thereupon, pursuant to section 123 of the former Civil Practice Act, the Ricks moved to cancel the lis pendens on the ground that the complaint was not verified and on the further ground that the summons had not been served within 60 days after filing of the lis pendens, as required by the statute (former Civ. Prac. Act, § 120). Special Term denied the motion on the ground that at the time the Ricks took title they had full knowledge of the existence of the lis pendens, as shown by their collateral agreement with the defendant. In our opinion, strict compliance with the statutory requirements is a condition precedent to a valid lis pendens (Israelson v. Bradley, 308 N. Y. 511, 516; Lanzoff v. Bader, 13 A D 2d 995, 996). The notice of pendency is effective only when it has been properly filed (Schomacker v. Michaels, 189 N. Y. 61, 64). We are further of the opinion that the Ricks, by virtue of their contract to purchase into which they had entered prior to the filing of the Us pendens, are “ persons aggrieved” within the meaning of the statute (former Civ. Prac. Act, § 123) and are entitled to the cancellation of the notice. The subsequent taking of title by the Ricks, with knowledge of the lis pendens, did not change their status; and, as owners of the property, their motion to cancel the lis pendens should have been granted on the ground that the plaintiff had failed to comply with the statute. A lis pendens, invalid for failure to comply with the mandate of the statute, is a nullity; it cannot be validated by reason of any act done or any knowledge acquired by third parties (Brown v. Mando, 125 App. Div. 380). Beldock, P. J., Christ, Brennan, Hill and Hopkins, JJ., concur. | 01-12-2022 | [
"In an action to compel specific performance of a contract for the sale of certain real property, the petitioners Rick (who are not parties to the action) appeal from an order of the Supreme Court, Westchester County, dated November 5, 1962, which denied their motion, made pursuant to section 123 of the former Civil Practice Act, to cancel a notice of pendency of the action filed by the plaintiff. Order reversed, without costs; motion granted and notice of pendency directed to be cancelled of record. On May 29, 1960 plaintiff and defendant Rimberg entered into a contract for the sale of defendant’s real property to the plaintiff. On June 14, 1960 Rimberg contracted to sell the same property to the petitioners Rick. On June 22, 1960 *581plaintiff filed her lis pendens. On June 29, 1960 the Kicks and Rimberg, with knowledge of the lis pendens, met to close title. On that date they entered into another agreement whereby the Ricks agreed to take title to the premises, subject to the understanding that Rimberg would defend the plaintiff’s action for specific performance and that Rimberg would take the necessary steps to remove the lis pendens. It was further agreed that the Ricks would pay the full consideration for the property, the funds to be held in escrow by Rimberg’s attorney until the title should become free and clear of the lis pendens.",
"The Ricks further agreed to pay the taxes and maintenance charges on the property; and, in the event the plaintiff prevailed in her action, to reeonvey the title to Rimberg. Before the action was reached for trial, the escrow agent (Rim-berg’s attorney) died insolvent and the money had disappeared. Thereupon, pursuant to section 123 of the former Civil Practice Act, the Ricks moved to cancel the lis pendens on the ground that the complaint was not verified and on the further ground that the summons had not been served within 60 days after filing of the lis pendens, as required by the statute (former Civ. Prac. Act, § 120). Special Term denied the motion on the ground that at the time the Ricks took title they had full knowledge of the existence of the lis pendens, as shown by their collateral agreement with the defendant. In our opinion, strict compliance with the statutory requirements is a condition precedent to a valid lis pendens (Israelson v. Bradley, 308 N. Y.",
"511, 516; Lanzoff v. Bader, 13 A D 2d 995, 996). The notice of pendency is effective only when it has been properly filed (Schomacker v. Michaels, 189 N. Y. 61, 64). We are further of the opinion that the Ricks, by virtue of their contract to purchase into which they had entered prior to the filing of the Us pendens, are “ persons aggrieved” within the meaning of the statute (former Civ. Prac.",
"Act, § 123) and are entitled to the cancellation of the notice. The subsequent taking of title by the Ricks, with knowledge of the lis pendens, did not change their status; and, as owners of the property, their motion to cancel the lis pendens should have been granted on the ground that the plaintiff had failed to comply with the statute. A lis pendens, invalid for failure to comply with the mandate of the statute, is a nullity; it cannot be validated by reason of any act done or any knowledge acquired by third parties (Brown v. Mando, 125 App. Div. 380). Beldock, P. J., Christ, Brennan, Hill and Hopkins, JJ., concur."
]
| https://www.courtlistener.com/api/rest/v3/opinions/5748953/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
397 A.2d 1374 (1979) Robert Lee ONEY, Melvin Edward Pusey, Jr. and Frederick Lee Gainer, Defendants Below, Appellants, v. STATE of Delaware, Plaintiff Below, Appellee. Supreme Court of Delaware. Submitted November 15, 1978. Decided January 18, 1979. Robert C. Wolhar, of Wolhar & Moore, Georgetown, for defendants, Robert Lee Oney and Frederick Lee Gainer. William M. Chasanov, of Brown, Shiels & Barros, Georgetown, for defendant, Melvin Edward Pusey, Jr. James E. Liguori, Deputy Atty. Gen., Georgetown, for plaintiff below, appellee. Before HERRMANN, Chief Justice, DUFFY, McNEILLY and QUILLEN, Justices. *1375 McNEILLY, Justice. Defendants appeal their Superior Court jury convictions of reckless endangering in the first degree.[1] Because we find reversible error as to defendants Melvin Edward Pusey, Jr. and Frederick Lee Gainer in the Court's failure to instruct the jury on the lesser included offense of reckless endangering in the second degree,[2] and because the Court erred in not granting defendant's, Robert Lee Oney, motion for judgment of acquittal, we need only to discuss those issues in this opinion.
*1376 I The incident leading to the charges against defendants occurred while defendants allegedly were spotlighting deer in the Nanticoke Wildlife Area near Laurel, Delaware. Defendant Gainer was the owner and operator of the car, Pusey was riding in the front, and Oney was asleep in the back seat. The complainants, riding in another car, saw the defendants spotlighting and drove toward them. A chase ensued and, during the pursuit, several shotgun and rifle shots were fired from the Gainer vehicle by Pusey. The evidence is conflicting as to the direction and purpose of the shots, but it is not disputed that an object struck the windshield of the second vehicle when it was approximately one hundred seventy-five yards to the rear of the Gainer vehicle, and immediately after Pusey fired a slug from a .22 caliber rifle.
II Defendants filed, and the Court denied a timely request that the jury be instructed on the lesser included offense of reckless endangering in the second degree. 11 Del.C. § 207 provides that the Court is not obliged to charge the jury with respect to an included offense unless there is a rational basis in the evidence for a verdict acquitting the defendant of the offense charged and convicting him of the included offense. The only difference between reckless endangering in the first and second degree is the magnitude of the risk of harm, the former requiring proof of substantial risk of death whereas the latter requires only proof of a substantial risk of physical injury. It is not contested that Pusey fired shots from a shotgun and a rifle out of the Gainer car. What is contested, however, is the direction in which he fired. Pusey claims he never shot at the other car, but fired only to the side of the Gainer car. Gainer apparently did not know where Pusey aimed, nor did Oney who was asleep, or at least lying in the back seat. The driver of the other car testified that there were three shots: the first, a shotgun blast that landed in front of his car; the second, a shotgun blast from which he claims pellets hit his car; the third, a rifle shot he claims hit the windshield from a distance of one hundred seventy-five yards. The passenger in the other car testified that he was ducking down while the shooting was going on and could not really tell where Pusey was aiming or what hit the car. No bullet or shotgun pellets were recovered, and the object that damaged the windshield apparently did not pass through it. Based upon the foregoing it appears that there is a rational basis in the evidence for the jury to have acquitted defendants Gainer and Pusey of the offense charged and convicted them of the lesser offense requiring only proof of a substantial risk of physical injury rather than risk of death.
III It is undisputed that at the time the first shots were fired from the Gainer car, defendant Oney was asleep on the back seat. After being awakened by the first gun shot there appears no evidence in the record that Oney actively or passively promoted, facilitated or participated in the events that followed other than being a passenger in the car. Oney's motion for judgment of acquittal should have been granted.
* * * * * * Since the jury found the defendants Pusey and Gainer guilty of reckless endangering in the first degree and since the only error was the failure to permit the jury to consider a lesser offense as well as the greater offense charged, this is a clear case in which no undue prejudice will result to the defendants by reason of modification of the judgments of convictions and reimposition of sentences for the lesser included offense, Porter v. State, Del.Supr., 243 A.2d 699 (1968). The State, however, has a right to trial on the greater offense. The judgment below is reversed as to defendants Melvin Edward Pusey, Jr. and Frederick Lee Gainer, and the causes will be remanded *1377 for a new trial unless the State within 10 days files in this Court an election to modify the judgments of convictions to the lesser offense, reckless endangering in the second degree. In that eventuality, the causes will be remanded only for such modification of the judgments of convictions and imposition of sentences on the lesser included offense. Reversed and remanded with directions to enter judgment of acquittal as to Robert Lee Oney. NOTES [1] 11 Del.C. § 604 provides:
"A person is guilty of reckless endangering in the first degree when he recklessly engages in conduct which creates a substantial risk of death to another person." [2] 11 Del.C. § 603 provides:
"A person is guilty of reckless endangering in the second degree when he recklessly engages in conduct which creates a substantial risk of physical injury to another person." | 10-30-2013 | [
"397 A.2d 1374 (1979) Robert Lee ONEY, Melvin Edward Pusey, Jr. and Frederick Lee Gainer, Defendants Below, Appellants, v. STATE of Delaware, Plaintiff Below, Appellee. Supreme Court of Delaware. Submitted November 15, 1978. Decided January 18, 1979. Robert C. Wolhar, of Wolhar & Moore, Georgetown, for defendants, Robert Lee Oney and Frederick Lee Gainer. William M. Chasanov, of Brown, Shiels & Barros, Georgetown, for defendant, Melvin Edward Pusey, Jr. James E. Liguori, Deputy Atty. Gen., Georgetown, for plaintiff below, appellee. Before HERRMANN, Chief Justice, DUFFY, McNEILLY and QUILLEN, Justices. *1375 McNEILLY, Justice. Defendants appeal their Superior Court jury convictions of reckless endangering in the first degree. [1] Because we find reversible error as to defendants Melvin Edward Pusey, Jr. and Frederick Lee Gainer in the Court's failure to instruct the jury on the lesser included offense of reckless endangering in the second degree,[2] and because the Court erred in not granting defendant's, Robert Lee Oney, motion for judgment of acquittal, we need only to discuss those issues in this opinion. *1376 I The incident leading to the charges against defendants occurred while defendants allegedly were spotlighting deer in the Nanticoke Wildlife Area near Laurel, Delaware.",
"Defendant Gainer was the owner and operator of the car, Pusey was riding in the front, and Oney was asleep in the back seat. The complainants, riding in another car, saw the defendants spotlighting and drove toward them. A chase ensued and, during the pursuit, several shotgun and rifle shots were fired from the Gainer vehicle by Pusey. The evidence is conflicting as to the direction and purpose of the shots, but it is not disputed that an object struck the windshield of the second vehicle when it was approximately one hundred seventy-five yards to the rear of the Gainer vehicle, and immediately after Pusey fired a slug from a .22 caliber rifle. II Defendants filed, and the Court denied a timely request that the jury be instructed on the lesser included offense of reckless endangering in the second degree.",
"11 Del.C. § 207 provides that the Court is not obliged to charge the jury with respect to an included offense unless there is a rational basis in the evidence for a verdict acquitting the defendant of the offense charged and convicting him of the included offense. The only difference between reckless endangering in the first and second degree is the magnitude of the risk of harm, the former requiring proof of substantial risk of death whereas the latter requires only proof of a substantial risk of physical injury. It is not contested that Pusey fired shots from a shotgun and a rifle out of the Gainer car. What is contested, however, is the direction in which he fired. Pusey claims he never shot at the other car, but fired only to the side of the Gainer car. Gainer apparently did not know where Pusey aimed, nor did Oney who was asleep, or at least lying in the back seat. The driver of the other car testified that there were three shots: the first, a shotgun blast that landed in front of his car; the second, a shotgun blast from which he claims pellets hit his car; the third, a rifle shot he claims hit the windshield from a distance of one hundred seventy-five yards.",
"The passenger in the other car testified that he was ducking down while the shooting was going on and could not really tell where Pusey was aiming or what hit the car. No bullet or shotgun pellets were recovered, and the object that damaged the windshield apparently did not pass through it. Based upon the foregoing it appears that there is a rational basis in the evidence for the jury to have acquitted defendants Gainer and Pusey of the offense charged and convicted them of the lesser offense requiring only proof of a substantial risk of physical injury rather than risk of death. III It is undisputed that at the time the first shots were fired from the Gainer car, defendant Oney was asleep on the back seat. After being awakened by the first gun shot there appears no evidence in the record that Oney actively or passively promoted, facilitated or participated in the events that followed other than being a passenger in the car. Oney's motion for judgment of acquittal should have been granted.",
"* * * * * * Since the jury found the defendants Pusey and Gainer guilty of reckless endangering in the first degree and since the only error was the failure to permit the jury to consider a lesser offense as well as the greater offense charged, this is a clear case in which no undue prejudice will result to the defendants by reason of modification of the judgments of convictions and reimposition of sentences for the lesser included offense, Porter v. State, Del.Supr., 243 A.2d 699 (1968). The State, however, has a right to trial on the greater offense.",
"The judgment below is reversed as to defendants Melvin Edward Pusey, Jr. and Frederick Lee Gainer, and the causes will be remanded *1377 for a new trial unless the State within 10 days files in this Court an election to modify the judgments of convictions to the lesser offense, reckless endangering in the second degree. In that eventuality, the causes will be remanded only for such modification of the judgments of convictions and imposition of sentences on the lesser included offense. Reversed and remanded with directions to enter judgment of acquittal as to Robert Lee Oney.",
"NOTES [1] 11 Del.C. § 604 provides: \"A person is guilty of reckless endangering in the first degree when he recklessly engages in conduct which creates a substantial risk of death to another person.\" [2] 11 Del.C. § 603 provides: \"A person is guilty of reckless endangering in the second degree when he recklessly engages in conduct which creates a substantial risk of physical injury to another person.\""
]
| https://www.courtlistener.com/api/rest/v3/opinions/2172987/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Ct. Crim. App. Okla. Certiorari denied. | 11-27-2022 | [
"Ct. Crim. App. Okla. Certiorari denied."
]
| https://www.courtlistener.com/api/rest/v3/opinions/9090988/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
FORD, District Judge. This action was instituted in the circuit court of Floyd county, Ky., on June 8, 1933, the plaintiffs being residents of the state of Kentucky, and the defendant being a corporation organized and existing under the laws of the state of New Jersey. Summons was duly issued in the state court, and the sheriff’s return shows that on September 30th it was executed by delivering a true copy to one Grover Lowe, “the party in charge of the business of said gas company in Floyd county.” On November 16, 1933, the defendant filed its petition and bond for removal to this court, and the state court entered the usual removal order pursuant to which a transcript of the record was filed in this court on December 15, 1933. On May 28, 1934, the plaintiffs filed in this court their motion to remand the case to the Floyd circuit court on the ground that the petition for removal was not filed in the state court within the time required by section 29 of the Judicial Code (title 28 USCA § 72). On March 20, 1935, Hon. Charles I. Dawson, presiding judge of the Western District of Kentucky, acting as judge of the F.astern District of Kentucky by designation on account of the existing vacancy on the bench in the Eastern District as the result of the death of the presiding judge, heard the motion of the plaintiffs to remand the case and, on that day, entered an order providing “that this cause be and the same is remanded to the circuit court of Floyd county, Kentucky.” On March 25, 1935, the defendant company filed in the office of the clerk of this court a motion to set aside the order entered on March 20, 1935, remanding the case to the state court, and that motion is now presented for consideration. Nothing appears in the record to indicate any action by the state court in the case since the order of removal to this court. Section 28 of the Judicial Code (title 28 USCA § 71) provides as follows: “Whenever any cause shall be removed from any State court into any district court of the United States, and the district court shall decide that the cause was improperly removed, and order the same to be remanded to the State court from whence it came, such remand shall be immediately carried into execution, and no appeal or writ of error from the de*402cisión of the district court so remanding su,ch cause shall be allowed.” The general power of the court over its own judgments, orders, and decrees during the existence of the term at which they are first made is undeniable, and this general rule would be controlling here but for the statutory provision that “such remand shall be immediately carried into execution.” This provision, together with the further provision precluding a review by appeal or writ of error, was added by an amendment of March 3, 1887 (24 Stat. 553). It was clearly the intent of this amendment to preclude further prolongation of the controversy. Such an intention is clearly manifest by the clause, “such remand shall be immediately carried into execution.” When this court entered the order remanding the case on March 20, 1935, the state court, by operation of law, was immediately reinvested with jurisdiction. The jurisdiction of this court arising from the removal proceeding having been completely exercised and exhausted, authority of this court to entertain additional motions or to take further steps in the case was thereby terminated. It was the duty of the state court to immediately proceed to exercise jurisdiction over the cause as a pending action as though no removal had ever been attempted. Baltimore & O. R. Co. v. Koontz, 104 U. S. 5, 26 L. Ed. 643; St. Paul & Chicago R. Co. v. McLean, 108 U. S. 212, 2 S. Ct. 498, 27 L. Ed. 703; Hammond Hotel & Improvement Company v. Finlayson (C. C. A.) 6 F.(2d) 446; and Ausbrooks v. Western Union Telegraph Company (D. C.) 282 F. 733. The order of remand having ipso facto terminated the jurisdiction of this court when the motion to reconsider was filed about five days later, no action was pending in this court to which that motion could relate. In 54 C. J. page 372, § 335 (2), the rule is stated thus: “Since an order of a federal court remanding a cause to the state court from which it had theretofore been removed terminates the jurisdiction of such federal court in the premises, it is without authority to vacate or set aside the order of remand, even during the term at which it was made.” Whether a copy of the remanding order was filed in the state court and subsequent proceedings taken therein does not appear material, since the state court was immediately reinvested with jurisdiction and had full authority to proceed with the case. A different construction of the statute might work great confusion as well as injurious delay in the preparation and trial of causes. To obviate such a result was the evident purpose of the amendment of 1887. It thus appears that this court has no jurisdiction to entertain the motion to reconsider the remanding order and the motion should be stricken from the files. | 07-25-2022 | [
"FORD, District Judge. This action was instituted in the circuit court of Floyd county, Ky., on June 8, 1933, the plaintiffs being residents of the state of Kentucky, and the defendant being a corporation organized and existing under the laws of the state of New Jersey. Summons was duly issued in the state court, and the sheriff’s return shows that on September 30th it was executed by delivering a true copy to one Grover Lowe, “the party in charge of the business of said gas company in Floyd county.” On November 16, 1933, the defendant filed its petition and bond for removal to this court, and the state court entered the usual removal order pursuant to which a transcript of the record was filed in this court on December 15, 1933. On May 28, 1934, the plaintiffs filed in this court their motion to remand the case to the Floyd circuit court on the ground that the petition for removal was not filed in the state court within the time required by section 29 of the Judicial Code (title 28 USCA § 72). On March 20, 1935, Hon.",
"Charles I. Dawson, presiding judge of the Western District of Kentucky, acting as judge of the F.astern District of Kentucky by designation on account of the existing vacancy on the bench in the Eastern District as the result of the death of the presiding judge, heard the motion of the plaintiffs to remand the case and, on that day, entered an order providing “that this cause be and the same is remanded to the circuit court of Floyd county, Kentucky.” On March 25, 1935, the defendant company filed in the office of the clerk of this court a motion to set aside the order entered on March 20, 1935, remanding the case to the state court, and that motion is now presented for consideration.",
"Nothing appears in the record to indicate any action by the state court in the case since the order of removal to this court. Section 28 of the Judicial Code (title 28 USCA § 71) provides as follows: “Whenever any cause shall be removed from any State court into any district court of the United States, and the district court shall decide that the cause was improperly removed, and order the same to be remanded to the State court from whence it came, such remand shall be immediately carried into execution, and no appeal or writ of error from the de*402cisión of the district court so remanding su,ch cause shall be allowed.” The general power of the court over its own judgments, orders, and decrees during the existence of the term at which they are first made is undeniable, and this general rule would be controlling here but for the statutory provision that “such remand shall be immediately carried into execution.” This provision, together with the further provision precluding a review by appeal or writ of error, was added by an amendment of March 3, 1887 (24 Stat. 553).",
"It was clearly the intent of this amendment to preclude further prolongation of the controversy. Such an intention is clearly manifest by the clause, “such remand shall be immediately carried into execution.” When this court entered the order remanding the case on March 20, 1935, the state court, by operation of law, was immediately reinvested with jurisdiction. The jurisdiction of this court arising from the removal proceeding having been completely exercised and exhausted, authority of this court to entertain additional motions or to take further steps in the case was thereby terminated. It was the duty of the state court to immediately proceed to exercise jurisdiction over the cause as a pending action as though no removal had ever been attempted. Baltimore & O. R. Co. v. Koontz, 104 U. S. 5, 26 L. Ed. 643; St. Paul & Chicago R. Co. v. McLean, 108 U. S. 212, 2 S. Ct. 498, 27 L. Ed.",
"703; Hammond Hotel & Improvement Company v. Finlayson (C. C. A.) 6 F.(2d) 446; and Ausbrooks v. Western Union Telegraph Company (D. C.) 282 F. 733. The order of remand having ipso facto terminated the jurisdiction of this court when the motion to reconsider was filed about five days later, no action was pending in this court to which that motion could relate. In 54 C. J. page 372, § 335 (2), the rule is stated thus: “Since an order of a federal court remanding a cause to the state court from which it had theretofore been removed terminates the jurisdiction of such federal court in the premises, it is without authority to vacate or set aside the order of remand, even during the term at which it was made.” Whether a copy of the remanding order was filed in the state court and subsequent proceedings taken therein does not appear material, since the state court was immediately reinvested with jurisdiction and had full authority to proceed with the case.",
"A different construction of the statute might work great confusion as well as injurious delay in the preparation and trial of causes. To obviate such a result was the evident purpose of the amendment of 1887. It thus appears that this court has no jurisdiction to entertain the motion to reconsider the remanding order and the motion should be stricken from the files."
]
| https://www.courtlistener.com/api/rest/v3/opinions/7220539/ | 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 .
Drawings The drawings were received on 12/4/2020. These drawings are acceptable.
Response to Amendment The Amendment filed 12/4/2020 has been entered. Claims 1-10, 12, and 19 are cancelled; claims 11, 13-18, and 20 remain pending in the Application. The amendments to the Drawings have overcome each and every Objection and 112(b) Rejection previously set forth in the Non-Final Office Action mailed 9/4/2020.
Allowable Subject Matter Claims 11, 13-13, and 20 are allowed.
The following is an examiner’s statement of reasons for allowance:
The prior art, alone or in combination, neither anticipates nor would render obvious the claimed invention. Specifically, the prior art does not teach or suggest structure on the component which engages corresponding structure at the fixture, and detachably attaching a magnetic fixturing element .
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 JON S TAYLOR whose telephone number is (571)272-9858. The examiner can normally be reached on M-F 10-4. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Joseph Hail can be reached on 5712724485. 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
J. STEPHEN TAYLOR Examiner Art Unit 3723
/J STEPHEN TAYLOR/Examiner, Art Unit 3723
/JOSEPH J HAIL/Supervisory Patent Examiner, Art Unit 3723 | 2021-03-29T10:35:11 | [
"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 . Drawings The drawings were received on 12/4/2020. These drawings are acceptable. Response to Amendment The Amendment filed 12/4/2020 has been entered. Claims 1-10, 12, and 19 are cancelled; claims 11, 13-18, and 20 remain pending in the Application. The amendments to the Drawings have overcome each and every Objection and 112(b) Rejection previously set forth in the Non-Final Office Action mailed 9/4/2020. Allowable Subject Matter Claims 11, 13-13, and 20 are allowed. The following is an examiner’s statement of reasons for allowance: The prior art, alone or in combination, neither anticipates nor would render obvious the claimed invention.",
"Specifically, the prior art does not teach or suggest structure on the component which engages corresponding structure at the fixture, and detachably attaching a magnetic fixturing element . 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 JON S TAYLOR whose telephone number is (571)272-9858. The examiner can normally be reached on M-F 10-4.",
"Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Joseph Hail can be reached on 5712724485. 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 J. STEPHEN TAYLOR Examiner Art Unit 3723 /J STEPHEN TAYLOR/Examiner, Art Unit 3723 /JOSEPH J HAIL/Supervisory Patent Examiner, Art Unit 3723"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-04-04.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
EXHIBIT 31.2 CERTIFICATION PURSUANT TO SECTION 302OF THE SARBANES-OXLEY ACT OF 2002 I, David J. Anderson, Chief Financial Officer, certify that: 1. I have reviewed this Annual Report on Form 10-K of Honeywell International Inc.; 2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; 3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; 4. The registrants other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: (a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; (b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; (c) Evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and (d) Disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and 5. The registrants other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of the registrants board of directors (or persons performing the equivalent functions): (a) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and (b) any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting. Date: February 15, 2008 By: /s/ David J. Anderson David J. AndersonChief Financial Officer | [
"EXHIBIT 31.2 CERTIFICATION PURSUANT TO SECTION 302OF THE SARBANES-OXLEY ACT OF 2002 I, David J. Anderson, Chief Financial Officer, certify that: 1. I have reviewed this Annual Report on Form 10-K of Honeywell International Inc.; 2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; 3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; 4. The registrants other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: (a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; (b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; (c) Evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and (d) Disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and 5.",
"The registrants other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of the registrants board of directors (or persons performing the equivalent functions): (a) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and (b) any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting. Date: February 15, 2008 By: /s/ David J. Anderson David J. AndersonChief Financial Officer"
]
| https://applica-public.s3-eu-west-1.amazonaws.com/contract-discovery/edgar.txt.xz | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
|
169 F.3d 501 78 Fair Empl.Prac.Cas. (BNA) 1864 Robert KEYMER, Appellee,v.MANAGEMENT RECRUITERS INTERNATIONAL, INC., Appellant. No. 98-1635. United States Court of Appeals,Eighth Circuit. Submitted Sept. 25, 1998.Decided Feb. 5, 1999.
Norman Selner, St. Louis, argued, for Appellee. Thomas Mickes, Blackwell & Peper, St. Louis, MO, argued, Donald L. Goldman, Cleveland, OH, for Appellant. Before: BOWMAN, Chief Judge, JOHN R. GIBSON, and MORRIS SHEPPARD ARNOLD, Circuit Judges. ORDER On the Court's own motion, the opinion of December 4, 1998, is hereby vacated, and the attached opinion is entered in its stead. The judgment entered December 4, 1998, is also vacated.OPINION BOWMAN, Chief Judge.
1 Robert Keymer sued Management Recruiters International, Inc. (MRI) alleging MRI terminated his employment because of his age. MRI moved for an order staying all proceedings pending arbitration. The District Court1 denied the motion concluding that the parties' employment agreement excluded the dispute from arbitration. MRI appeals the denial of the motion to stay the action pending arbitration.
I.
2 Keymer was employed by MRI from approximately 1970 until November 30, 1995, when he was terminated at the age of 52. Keymer filed a complaint alleging violations of his employment rights under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621-634 (1994), and the Missouri Human Rights Act, Mo.Rev.Stat. § 213.010- .137 (1994).2 Keymer asserted that MRI terminated him on account of his age and replaced him with a younger employee while retaining similarly situated younger employees.
3 Keymer and MRI had executed a Manager's Employment Agreement on November 13, 1974, and had renewed it on subsequent dates. Section 6 of the Agreement provides, in relevant part, as follows:
4 MEDIATION AND ARBITRATION. (a) Except as provided in Subsection 6(b) hereof, all controversies, claims, disputes and matters in question arising out of, or relating to, this Agreement or the breach thereof, shall be decided by mediation and/or arbitration in accordance with the provisions of this Section 6....
5 (b) Controversies, disputes and matters in question regarding EMPLOYER'S right to terminate this Agreement shall be specifically excluded from the foregoing mediation and arbitration procedure.
6 Keymer asserts that subsection 6(b) excludes his claims from the agreement to arbitrate. MRI responds that subsection 6(b) was not intended to limit the scope of the arbitration clause in subsection 6(a). Instead, MRI argues that subsection 6(b) was intended only to keep an arbitrator from determining that this was not an employment at will relationship.
II.
7 MRI's motion for a stay of proceedings pending arbitration was filed pursuant to the Federal Arbitration Act (FAA), 9 U.S.C. § 3 (1994), which states that the court, "upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application ... stay the trial ... until arbitration has been had." Therefore, we must decide whether Keymer's age discrimination claims are arbitrable under the Agreement. If the claims are arbitrable according to the terms of the Agreement, the proceedings must be stayed pending arbitration. See ITT Hartford Life & Annuity Ins. Co. v. Amerishare Investors, Inc., 133 F.3d 664, 668 (8th Cir.1998).
8 When the issue is the arbitrability of a dispute based on contract interpretation, we are presented with a legal question that we review de novo. See Storey v. Shearson Lehman Hutton, Inc., 949 F.2d 1039, 1040 (8th Cir.1991); Nordin v. Nutri/System, Inc., 897 F.2d 339, 344 (8th Cir.1990). To the extent the order of the district court concerning arbitrability is based on factual findings, we review using the clearly erroneous standard. See Nordin, 897 F.2d at 344.
9 The purpose of the FAA was to reverse judicial hostility to arbitration agreements and to place arbitration agreements on equal footing with other contracts. See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991) (finding ADEA claims are arbitrable). Thus we examine arbitration agreements in the same light as any other contractual agreement. See ITT Hartford, 133 F.3d at 668. We apply ordinary state law contract principles to decide whether parties have agreed to arbitrate a particular matter. See First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 115 S.Ct. 1920, 1924, 131 L.Ed.2d 985 (1995); Patterson v. Tenet Healthcare, Inc., 113 F.3d 832, 834 (8th Cir.1997). According to section 9 of the parties' Agreement, Ohio law governs in this case.
10 In deciding whether MRI and Keymer have agreed to submit this particular dispute to arbitration, we must find that a valid agreement to arbitrate exists between the parties and, if so, that this dispute falls within the scope of the arbitration agreement. See Daisy Mfg. Co. v. NCR Corp., 29 F.3d 389, 392 (8th Cir.1994). The parties do not dispute that a valid arbitration agreement exists, but they disagree as to whether this particular dispute falls within that agreement.
11 MRI is correct in stating that arbitrability questions must be considered with a "healthy regard for the federal policy favoring arbitration" and that "any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration." Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). However, the FAA's pro-arbitration policy does not operate with out regard to the intent of the contracting parties, for arbitration is a matter of consent, not of coercion. See Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 57, 115 S.Ct. 1212, 131 L.Ed.2d 76 (1995). Thus, a party cannot be forced to submit to arbitration any dispute that he has not agreed to submit. See ITT Hartford, 133 F.3d at 668. Against this background, we must consider whether by entering into the Agreement MRI and Keymer agreed to arbitrate these age discrimination claims.
12 We agree with the District Court's well-reasoned opinion that the language in subsection 6(b) is clear and unambiguous. When a contract is clear and unambiguous, we must give effect to the agreement's express terms and need not go beyond its plain language to determine the rights of the parties. See Stone v. National City Bank, 106 Ohio App.3d 212, 665 N.E.2d 746, 752 (1995). Thus, it is not necessary to consider MRI's extrinsic evidence of its "true intent" in drafting subsection 6(b). After all, the intent of the parties is presumed to reside in the language they chose to use in the agreement. See Foster Wheeler Enviresponse, Inc. v. Franklin County Convention Facilities Auth., 78 Ohio St.3d 353, 678 N.E.2d 519, 526 (1997). The Agreement expressly states that "[c]ontroversies, disputes and matters in question regarding EMPLOYER'S right to terminate this Agreement shall be specifically excluded from the foregoing mediation and arbitration procedure," and the ADEA clearly limits MRI's right to terminate employment. Therefore, Keymer's ADEA challenge to the termination of his employment is excluded from the agreement to arbitrate by the plain language of the parties' Agreement.
13 MRI argues that the exclusionary clause is ambiguous, but MRI cannot create ambiguity merely by so stating in an affidavit. When the contractual language is unambiguous, we will not find ambiguity based on extrinsic evidence as to "true intent." Furthermore, if any ambiguity were to be found, MRI drafted the Agreement and it cannot now claim the benefit of the doubt. See Graham v. Drydock Coal Co., 76 Ohio St.3d 311, 667 N.E.2d 949, 952 (1996) (stating that ambiguity is to be construed against the party who drafted the contract).3
14 MRI asserts that arbitration should not be denied in this case "unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute." AT & T Techs., Inc. v. Communications Workers of Am., 475 U.S. 643, 650, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986) (internal quotation omitted).4 The arbitration clause in subsection 6(a) is very broad. But the arbitration clause, by its own terms, is made subject to the limitations set forth in the exclusionary clause in subsection 6(b). This clause clearly would exclude the issue of whether Keymer was an employee at will as MRI suggests, but it is not limited to that narrow question. To the contrary, the language of subsection 6(b) is quite sweeping and does not state (or even hint) that other sorts of disputes regarding MRI's right to terminate Keymer's employment are not covered by the exclusionary clause. Linguistically, the scope of subsection 6(b) is not susceptible of the limited interpretation for which MRI contends.
15 MRI suggests that the exclusionary clause at issue here is substantially the same as that in Management Recruiters International, Inc. v. Zeck, No. 1:91CV1043, at 4 (N.D.Ohio 1994) (order compelling arbitration) ("The right of the Company to terminate this agreement shall not be subject to arbitration."). In Zeck, the district court held that the just-quoted language did not exclude the plaintiff's wrongful termination claim from arbitration. First, we note our respectful disagreement with the holding in Zeck. Second, although the language of the exclusionary clause in Zeck may be somewhat similar to the language of the exclusionary clause in this case, there are important differences. The exclusionary clause in the present Agreement states that "[c]ontroversies, disputes and matters in question regarding EMPLOYER'S right to terminate this agreement" shall be excluded from arbitration. "Controversies, disputes, and matters in question" cannot be mere surplusage as MRI contends, because contracts must be interpreted to give effect to every provision. See Prudential Ins. Co. of Am. v. Corporate Circle, Ltd., 103 Ohio App.3d 93, 658 N.E.2d 1066, 1069 (1995). The plain language of the exclusionary clause in the Agreement before us clearly encompasses all disputes regarding MRI's right to terminate and entirely withdraws such matters from the arbitration process.
16 The FAA's primary purpose is to ensure that agreements to arbitrate are enforced according to their terms and that parties are free to structure their arbitration agreements as they wish. See Mastrobuono, 514 U.S. at 57, 115 S.Ct. 1212. Although federal policy favors arbitration, it does not disregard the intent of the contracting parties as evidenced by their agreement. We are bound to interpret this Agreement in accordance with the intentions of both MRI and Keymer as expressed in the Agreement, even if the result is to preclude arbitration. We agree with the District Court that Keymer, never having agreed to arbitrate his age discrimination claims, is entitled to pursue his lawsuit.
17 The judgment of the District Court is affirmed.
1 The Honorable Lawrence O. Davis, United States Magistrate Judge for the Eastern District of Missouri, who presided with the consent of the parties pursuant to 28 U.S.C. § 636(c)
2 Keymer filed his complaint on August 29, 1997, and MRI filed its motion to stay proceedings pending arbitration on October 24, 1997. On October 15, 1997, MRI filed a motion to compel arbitration with the United States District Court for the Northern District of Ohio. The District Court in Missouri denied the motion to stay on January 15, 1998. The district court in Ohio granted MRI's motion to compel arbitration on April 8, 1998 and an appeal of that order is pending before the United States Court of Appeals for the Sixth Circuit In cases of concurrent jurisdiction, the first court in which jurisdiction attaches has priority to consider the case as a matter of federal comity. See Northwest Airlines, Inc. v. American Airlines, Inc., 989 F.2d 1002, 1004-05 (8th Cir.1993); see also Smith v. SEC, 129 F.3d 356, 361 (6th Cir.1997). The first-filed rule gives priority, when parallel litigation has been instituted in separate courts, to the party who first establishes jurisdiction in order to conserve judicial resources and avoid conflicting rulings. See Northwest, 989 F.2d at 1006. Because the District Court in Missouri was the first court in which jurisdiction attached, it had priority to consider this arbitrability question as a matter of comity. After the District Court in Missouri denied the stay on the ground that the dispute was not arbitrable according to the Agreement, the district court in Ohio proceeded to decide the same arbitrability question contrary to the principles underlying the first-filed rule. MRI argues that the district court in Ohio should have priority because only that court could order arbitration both within its district and in compliance with the Agreement (which calls for arbitration in Cleveland, Ohio) as required by 9 U.S.C. § 4 (1994). Even assuming MRI's contention is correct, it is irrelevant because the arbitrability question is the same in a motion to compel arbitration as in a motion to stay proceedings pending arbitration. We therefore reject MRI's argument that the Northern District of Ohio should have priority.
3 MRI argues that Keymer's age discrimination complaint alleges only termination of employment and not termination of the employment agreement, so the exclusion should not apply. This is a new argument, made for the first time after the case has come to us on appeal. It never was raised in the District Court. In any event, we regard this as a frivolous argument
4 The Supreme Court recently has held that this presumption of arbitrability in collective bargaining agreements does not extend to statutory claims of employment discrimination. See Wright v. Universal Maritime Serv. Corp., --- U.S. ----, ---- - ----, 119 S.Ct. 391, 395-96, 142 L.Ed.2d 361 (1998). The Court further held that any collective bargaining agreement requirement to arbitrate employment discrimination claims must be "particularly clear." Id. 119 S.Ct. at 396 | 04-18-2012 | [
"169 F.3d 501 78 Fair Empl.Prac.Cas. (BNA) 1864 Robert KEYMER, Appellee,v.MANAGEMENT RECRUITERS INTERNATIONAL, INC., Appellant. No. 98-1635. United States Court of Appeals,Eighth Circuit. Submitted Sept. 25, 1998.Decided Feb. 5, 1999. Norman Selner, St. Louis, argued, for Appellee. Thomas Mickes, Blackwell & Peper, St. Louis, MO, argued, Donald L. Goldman, Cleveland, OH, for Appellant. Before: BOWMAN, Chief Judge, JOHN R. GIBSON, and MORRIS SHEPPARD ARNOLD, Circuit Judges. ORDER On the Court's own motion, the opinion of December 4, 1998, is hereby vacated, and the attached opinion is entered in its stead. The judgment entered December 4, 1998, is also vacated.OPINION BOWMAN, Chief Judge. 1 Robert Keymer sued Management Recruiters International, Inc. (MRI) alleging MRI terminated his employment because of his age.",
"MRI moved for an order staying all proceedings pending arbitration. The District Court1 denied the motion concluding that the parties' employment agreement excluded the dispute from arbitration. MRI appeals the denial of the motion to stay the action pending arbitration. I. 2 Keymer was employed by MRI from approximately 1970 until November 30, 1995, when he was terminated at the age of 52. Keymer filed a complaint alleging violations of his employment rights under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621-634 (1994), and the Missouri Human Rights Act, Mo.Rev.Stat. § 213.010- .137 (1994).2 Keymer asserted that MRI terminated him on account of his age and replaced him with a younger employee while retaining similarly situated younger employees. 3 Keymer and MRI had executed a Manager's Employment Agreement on November 13, 1974, and had renewed it on subsequent dates. Section 6 of the Agreement provides, in relevant part, as follows: 4 MEDIATION AND ARBITRATION. (a) Except as provided in Subsection 6(b) hereof, all controversies, claims, disputes and matters in question arising out of, or relating to, this Agreement or the breach thereof, shall be decided by mediation and/or arbitration in accordance with the provisions of this Section 6.... 5 (b) Controversies, disputes and matters in question regarding EMPLOYER'S right to terminate this Agreement shall be specifically excluded from the foregoing mediation and arbitration procedure.",
"6 Keymer asserts that subsection 6(b) excludes his claims from the agreement to arbitrate. MRI responds that subsection 6(b) was not intended to limit the scope of the arbitration clause in subsection 6(a). Instead, MRI argues that subsection 6(b) was intended only to keep an arbitrator from determining that this was not an employment at will relationship. II. 7 MRI's motion for a stay of proceedings pending arbitration was filed pursuant to the Federal Arbitration Act (FAA), 9 U.S.C. § 3 (1994), which states that the court, \"upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application ... stay the trial ... until arbitration has been had.\" Therefore, we must decide whether Keymer's age discrimination claims are arbitrable under the Agreement. If the claims are arbitrable according to the terms of the Agreement, the proceedings must be stayed pending arbitration.",
"See ITT Hartford Life & Annuity Ins. Co. v. Amerishare Investors, Inc., 133 F.3d 664, 668 (8th Cir.1998). 8 When the issue is the arbitrability of a dispute based on contract interpretation, we are presented with a legal question that we review de novo. See Storey v. Shearson Lehman Hutton, Inc., 949 F.2d 1039, 1040 (8th Cir.1991); Nordin v. Nutri/System, Inc., 897 F.2d 339, 344 (8th Cir.1990). To the extent the order of the district court concerning arbitrability is based on factual findings, we review using the clearly erroneous standard. See Nordin, 897 F.2d at 344. 9 The purpose of the FAA was to reverse judicial hostility to arbitration agreements and to place arbitration agreements on equal footing with other contracts. See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991) (finding ADEA claims are arbitrable). Thus we examine arbitration agreements in the same light as any other contractual agreement. See ITT Hartford, 133 F.3d at 668.",
"We apply ordinary state law contract principles to decide whether parties have agreed to arbitrate a particular matter. See First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 115 S.Ct. 1920, 1924, 131 L.Ed.2d 985 (1995); Patterson v. Tenet Healthcare, Inc., 113 F.3d 832, 834 (8th Cir.1997). According to section 9 of the parties' Agreement, Ohio law governs in this case. 10 In deciding whether MRI and Keymer have agreed to submit this particular dispute to arbitration, we must find that a valid agreement to arbitrate exists between the parties and, if so, that this dispute falls within the scope of the arbitration agreement. See Daisy Mfg. Co. v. NCR Corp., 29 F.3d 389, 392 (8th Cir.1994). The parties do not dispute that a valid arbitration agreement exists, but they disagree as to whether this particular dispute falls within that agreement. 11 MRI is correct in stating that arbitrability questions must be considered with a \"healthy regard for the federal policy favoring arbitration\" and that \"any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.\"",
"Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). However, the FAA's pro-arbitration policy does not operate with out regard to the intent of the contracting parties, for arbitration is a matter of consent, not of coercion. See Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 57, 115 S.Ct. 1212, 131 L.Ed.2d 76 (1995). Thus, a party cannot be forced to submit to arbitration any dispute that he has not agreed to submit. See ITT Hartford, 133 F.3d at 668. Against this background, we must consider whether by entering into the Agreement MRI and Keymer agreed to arbitrate these age discrimination claims. 12 We agree with the District Court's well-reasoned opinion that the language in subsection 6(b) is clear and unambiguous. When a contract is clear and unambiguous, we must give effect to the agreement's express terms and need not go beyond its plain language to determine the rights of the parties. See Stone v. National City Bank, 106 Ohio App.3d 212, 665 N.E.2d 746, 752 (1995). Thus, it is not necessary to consider MRI's extrinsic evidence of its \"true intent\" in drafting subsection 6(b). After all, the intent of the parties is presumed to reside in the language they chose to use in the agreement.",
"See Foster Wheeler Enviresponse, Inc. v. Franklin County Convention Facilities Auth., 78 Ohio St.3d 353, 678 N.E.2d 519, 526 (1997). The Agreement expressly states that \"[c]ontroversies, disputes and matters in question regarding EMPLOYER'S right to terminate this Agreement shall be specifically excluded from the foregoing mediation and arbitration procedure,\" and the ADEA clearly limits MRI's right to terminate employment. Therefore, Keymer's ADEA challenge to the termination of his employment is excluded from the agreement to arbitrate by the plain language of the parties' Agreement. 13 MRI argues that the exclusionary clause is ambiguous, but MRI cannot create ambiguity merely by so stating in an affidavit. When the contractual language is unambiguous, we will not find ambiguity based on extrinsic evidence as to \"true intent.\"",
"Furthermore, if any ambiguity were to be found, MRI drafted the Agreement and it cannot now claim the benefit of the doubt. See Graham v. Drydock Coal Co., 76 Ohio St.3d 311, 667 N.E.2d 949, 952 (1996) (stating that ambiguity is to be construed against the party who drafted the contract).3 14 MRI asserts that arbitration should not be denied in this case \"unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.\" AT & T Techs., Inc. v. Communications Workers of Am., 475 U.S. 643, 650, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986) (internal quotation omitted).4 The arbitration clause in subsection 6(a) is very broad. But the arbitration clause, by its own terms, is made subject to the limitations set forth in the exclusionary clause in subsection 6(b). This clause clearly would exclude the issue of whether Keymer was an employee at will as MRI suggests, but it is not limited to that narrow question.",
"To the contrary, the language of subsection 6(b) is quite sweeping and does not state (or even hint) that other sorts of disputes regarding MRI's right to terminate Keymer's employment are not covered by the exclusionary clause. Linguistically, the scope of subsection 6(b) is not susceptible of the limited interpretation for which MRI contends. 15 MRI suggests that the exclusionary clause at issue here is substantially the same as that in Management Recruiters International, Inc. v. Zeck, No. 1:91CV1043, at 4 (N.D.Ohio 1994) (order compelling arbitration) (\"The right of the Company to terminate this agreement shall not be subject to arbitration.\"). In Zeck, the district court held that the just-quoted language did not exclude the plaintiff's wrongful termination claim from arbitration. First, we note our respectful disagreement with the holding in Zeck. Second, although the language of the exclusionary clause in Zeck may be somewhat similar to the language of the exclusionary clause in this case, there are important differences. The exclusionary clause in the present Agreement states that \"[c]ontroversies, disputes and matters in question regarding EMPLOYER'S right to terminate this agreement\" shall be excluded from arbitration. \"Controversies, disputes, and matters in question\" cannot be mere surplusage as MRI contends, because contracts must be interpreted to give effect to every provision.",
"See Prudential Ins. Co. of Am. v. Corporate Circle, Ltd., 103 Ohio App.3d 93, 658 N.E.2d 1066, 1069 (1995). The plain language of the exclusionary clause in the Agreement before us clearly encompasses all disputes regarding MRI's right to terminate and entirely withdraws such matters from the arbitration process. 16 The FAA's primary purpose is to ensure that agreements to arbitrate are enforced according to their terms and that parties are free to structure their arbitration agreements as they wish. See Mastrobuono, 514 U.S. at 57, 115 S.Ct. 1212. Although federal policy favors arbitration, it does not disregard the intent of the contracting parties as evidenced by their agreement. We are bound to interpret this Agreement in accordance with the intentions of both MRI and Keymer as expressed in the Agreement, even if the result is to preclude arbitration. We agree with the District Court that Keymer, never having agreed to arbitrate his age discrimination claims, is entitled to pursue his lawsuit. 17 The judgment of the District Court is affirmed.",
"1 The Honorable Lawrence O. Davis, United States Magistrate Judge for the Eastern District of Missouri, who presided with the consent of the parties pursuant to 28 U.S.C. § 636(c) 2 Keymer filed his complaint on August 29, 1997, and MRI filed its motion to stay proceedings pending arbitration on October 24, 1997. On October 15, 1997, MRI filed a motion to compel arbitration with the United States District Court for the Northern District of Ohio. The District Court in Missouri denied the motion to stay on January 15, 1998. The district court in Ohio granted MRI's motion to compel arbitration on April 8, 1998 and an appeal of that order is pending before the United States Court of Appeals for the Sixth Circuit In cases of concurrent jurisdiction, the first court in which jurisdiction attaches has priority to consider the case as a matter of federal comity.",
"See Northwest Airlines, Inc. v. American Airlines, Inc., 989 F.2d 1002, 1004-05 (8th Cir.1993); see also Smith v. SEC, 129 F.3d 356, 361 (6th Cir.1997). The first-filed rule gives priority, when parallel litigation has been instituted in separate courts, to the party who first establishes jurisdiction in order to conserve judicial resources and avoid conflicting rulings. See Northwest, 989 F.2d at 1006. Because the District Court in Missouri was the first court in which jurisdiction attached, it had priority to consider this arbitrability question as a matter of comity. After the District Court in Missouri denied the stay on the ground that the dispute was not arbitrable according to the Agreement, the district court in Ohio proceeded to decide the same arbitrability question contrary to the principles underlying the first-filed rule. MRI argues that the district court in Ohio should have priority because only that court could order arbitration both within its district and in compliance with the Agreement (which calls for arbitration in Cleveland, Ohio) as required by 9 U.S.C.",
"§ 4 (1994). Even assuming MRI's contention is correct, it is irrelevant because the arbitrability question is the same in a motion to compel arbitration as in a motion to stay proceedings pending arbitration. We therefore reject MRI's argument that the Northern District of Ohio should have priority. 3 MRI argues that Keymer's age discrimination complaint alleges only termination of employment and not termination of the employment agreement, so the exclusion should not apply.",
"This is a new argument, made for the first time after the case has come to us on appeal. It never was raised in the District Court. In any event, we regard this as a frivolous argument 4 The Supreme Court recently has held that this presumption of arbitrability in collective bargaining agreements does not extend to statutory claims of employment discrimination. See Wright v. Universal Maritime Serv. Corp., --- U.S. ----, ---- - ----, 119 S.Ct. 391, 395-96, 142 L.Ed.2d 361 (1998). The Court further held that any collective bargaining agreement requirement to arbitrate employment discrimination claims must be \"particularly clear.\" Id. 119 S.Ct. at 396"
]
| https://www.courtlistener.com/api/rest/v3/opinions/762158/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Order denying motion to vacate subpoena reversed on the law, without costs, and motion granted, without costs. As a consequence of the adjournment without date, the proceeding lapsed; hence the court was without jurisdiction to issue the subpoenas. The proceeding could not be revived without notice to the judgment debtor. It is not claimed that such a notice was given. (Matter of Mancaruso v. Cuthbert, 224 App. Div. 754; Matter of Otten v. Stromeyer, No. 1, 228 id. 360; Nyamco Associates, Inc., v. King, 147 Misc. 904.) Lazansky, P. J., Young, Hagarty, Carswell and Tompkins, JJ., concur. | 01-08-2022 | [
"Order denying motion to vacate subpoena reversed on the law, without costs, and motion granted, without costs. As a consequence of the adjournment without date, the proceeding lapsed; hence the court was without jurisdiction to issue the subpoenas. The proceeding could not be revived without notice to the judgment debtor. It is not claimed that such a notice was given. (Matter of Mancaruso v. Cuthbert, 224 App. Div. 754; Matter of Otten v. Stromeyer, No. 1, 228 id. 360; Nyamco Associates, Inc., v. King, 147 Misc. 904.) Lazansky, P. J., Young, Hagarty, Carswell and Tompkins, JJ., concur."
]
| https://www.courtlistener.com/api/rest/v3/opinions/5333045/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Court of Appeals of the State of Georgia
ATLANTA, August 29, 2016
The Court of Appeals hereby passes the following order
A16A2029. JAMES EDWARD BOYD v. THE STATE.
The appellant in this case failed to comply with the notice of docketing mailed by this Court and with Court of Appeals Rules 22 (a) and 23 (a), regarding the filing of an enumeration of errors and brief within twenty days after the appeal was docketed. See also Court of Appeals Rule 13.
On July 25, 2016, this Court ordered the appellant to file an enumeration of errors and a brief no later than August 01, 2016. As of the date of this order, the appellant's enumeration of errors and brief still have not been filed. Accordingly, this appeal is deemed abandoned and is hereby ordered DISMISSED. Court of Appeals Rules 7, 23 (a).
Because procedural deficiencies have deprived the appellant of the right of appellate review, the appellant is hereby informed of the following in accordance with Rowland v. State, 264 Ga. 872 (452 SE2d 756) (1995):
This Court has dismissed your appeal because an enumeration of errors and a brief have not been filed on your behalf as required. If this failure occurred while you were represented by legal counsel and was due to your appellate counsel's failure to perform the duties of appellate counsel, and if you still wish to appeal, you may file a motion in the trial court for permission to pursue an out-of-time appeal. If the trial court grants your motion for an out-of-time appeal, you will have 30 days from the filing date of the order granting your motion to file in the trial court a notice of appeal from the judgment of conviction and sentence. If the trial court denies your motion for an out-of-time appeal, you will have 30 days from the filing date of the order denying your motion to file in the trial court a notice of appeal from that order. The Clerk of Court is directed to send a copy of this order to the appellant as well as to the appellant's attorney of record, if any. The appellant's attorney is also directed to send a copy of this order to the appellant.
Court of Appeals of the State of Georgia Clerk's Office, Atlanta, August 29, 2016.
I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court hereto affixed the day and year last above written.
, Clerk. | 09-09-2016 | [
"Court of Appeals of the State of Georgia ATLANTA, August 29, 2016 The Court of Appeals hereby passes the following order A16A2029. JAMES EDWARD BOYD v. THE STATE. The appellant in this case failed to comply with the notice of docketing mailed by this Court and with Court of Appeals Rules 22 (a) and 23 (a), regarding the filing of an enumeration of errors and brief within twenty days after the appeal was docketed. See also Court of Appeals Rule 13.",
"On July 25, 2016, this Court ordered the appellant to file an enumeration of errors and a brief no later than August 01, 2016. As of the date of this order, the appellant's enumeration of errors and brief still have not been filed. Accordingly, this appeal is deemed abandoned and is hereby ordered DISMISSED. Court of Appeals Rules 7, 23 (a). Because procedural deficiencies have deprived the appellant of the right of appellate review, the appellant is hereby informed of the following in accordance with Rowland v. State, 264 Ga. 872 (452 SE2d 756) (1995): This Court has dismissed your appeal because an enumeration of errors and a brief have not been filed on your behalf as required. If this failure occurred while you were represented by legal counsel and was due to your appellate counsel's failure to perform the duties of appellate counsel, and if you still wish to appeal, you may file a motion in the trial court for permission to pursue an out-of-time appeal.",
"If the trial court grants your motion for an out-of-time appeal, you will have 30 days from the filing date of the order granting your motion to file in the trial court a notice of appeal from the judgment of conviction and sentence. If the trial court denies your motion for an out-of-time appeal, you will have 30 days from the filing date of the order denying your motion to file in the trial court a notice of appeal from that order. The Clerk of Court is directed to send a copy of this order to the appellant as well as to the appellant's attorney of record, if any. The appellant's attorney is also directed to send a copy of this order to the appellant. Court of Appeals of the State of Georgia Clerk's Office, Atlanta, August 29, 2016. I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written. , Clerk."
]
| https://www.courtlistener.com/api/rest/v3/opinions/4032498/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
FILED MARCH 3, 2020 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
DEBORAH PHIFER, Personal ) No. 36572-7-III Representative of the Estate of ) Fred Phifer, ) ) Appellant, ) ) v. ) UNPUBLISHED OPINION ) STATE OF WASHINGTON ) DEPARTMENT OF LABOR AND ) INDUSTRIES; CITY OF YAKIMA, a ) municipal corporation, ) ) Respondents. )
LAWRENCE-BERREY, C.J. — Deborah Phifer, personal representative of the estate
of Fred Phifer (Estate), appeals the trial court’s order summarily dismissing the Estate’s
negligence claim against the Washington State Department of Labor and Industries
(Department). The Estate contends the trial court erred because the Department either
owed or breached certain duties to Mr. Phifer. We conclude the Department did not owe
or breach any of the duties articulated by the Estate and affirm. No. 36572-7-III Phifer v. Dep’t of Labor & Indus.
FACTS
Consistent with our standard of review, we set forth the facts in the light most
favorable to the Estate. See Herring v. Texaco, Inc., 161 Wash. 2d 189, 194, 165 P.3d 4
(2007).
In July 2008, Mr. Phifer filed a workers’ compensation claim with the Department
for an on-the-job injury. The Department assigned Mr. Phifer a case manager, Annabea
Alvarado. One month later, Mr. Phifer called Ms. Alvarado repeatedly. Ms. Alvarado
eventually returned the call. Ms. Alvarado began lecturing Mr. Phifer, telling him not to
call so often and asked questions such as, “‘What do you do all day, lay around and watch
TV all day?’” Clerk’s Papers (CP) at 13.1 Mr. Phifer told her that he was doing what his
1 In July 2013, Mr. Phifer signed and filed a declaration that sets forth his version of events. In April 2018, the Department brought the motion that is the subject of our review. The Estate’s summary judgment response did not cite Mr. Phifer’s 2013 declaration, but it did assert facts contained in that declaration. Probably for this reason, the summary judgment order does not list the 2013 declaration as being considered by the trial court. On appeal, we consider only evidence and arguments called to the attention of the trial court. RAP 9.12. To facilitate a proper review, all pleadings considered by the trial court are required to be listed in the summary judgment order. Id. Normally, evidence considered by the trial court but not listed in the order is required to be listed in a supplemental order. Id. On appeal, the Estate repeatedly cites Mr. Phifer’s 2013 declaration. The Department does not object—a tacit acknowledgment that the trial court considered the evidence contained in the 2013 declaration. For these reasons, we too consider that declaration, and waive compliance with RAP 9.12. See RAP 1.2(a).
2 No. 36572-7-III Phifer v. Dep’t of Labor & Indus.
doctor ordered, intermittently resting followed by activity. Ms. Alvarado then asked what
he was doing right at that moment, to which Mr. Phifer replied he was sharpening his
wife’s knives. Ms. Alvarado put Mr. Phifer on hold for 5 to 10 minutes. When she got
back on the line, she told him the Department would send some partial payments and told
him not to call so much.
After hanging up the telephone, Mr. Phifer went back to sharpening his wife’s
knives. Ms. Alvarado, meanwhile, called the police and informed them Mr. Phifer was
suicidal and had knives. After a few minutes, Yakima police arrived at Mr. Phifer’s
house. They asked to come in and Mr. Phifer consented.
Once inside, the officers interviewed Mr. Phifer. Mr. Phifer said he was
depressed, but not suicidal. He also made a reference to going to heaven, but then said he
did not mean anything by it. The officers then put Mr. Phifer in handcuffs. Officers told
Mr. Phifer he could not leave until an evaluator arrived. After about 30 minutes, the
evaluator still had not arrived. The officers had other duties and could not wait idly any
longer. They handcuffed Mr. Phifer, and drove him to the police station where they
cuffed him to a pipe. He spent 45 minutes cuffed to a pipe before being released.
After her call with Mr. Phifer, Ms. Alvarado filed a report with the Department.
The report reads:
3 No. 36572-7-III Phifer v. Dep’t of Labor & Indus.
rtc to status not happy the way things were going, was having very bad thoughts, he felt like a loser, feels like he has hit a brick wall and feels like ending it all. [S]ays supervisor at magic metals caused his mental health issue. [S]ays that he is about to lose his house. cm advised would pay provisional until we get things sorted out, stated bas been seeing [D]r. [L]efors since 05/22/08. [H]as always had back problems has 7 messed up discs. [I]n the past has gone thru dvr was trained for real estate did that for 14 years . . . . asked iw if he wanted cm to contact mental health or authorities to pay him a visit to discuss his bad thoughts stated no, he would like to speak w/dr. wms . . . . per protocal [sic] cm notified yakima polide [sic] dept.
CP at 194.
At the time of this incident, an internal policy of the Department provided:
When an injured worker tells you that he/she is threatening to commit suicide, you need to contact the appropriate County Law Enforcement Agency in the county where the worker lives. The list of County “Suicide and Crisis Phone Numbers,” is attached. Although we are not asking you to also contact the “Crisis/Mental Health Agency,” that agency is listed for your information as well. As a courtesy, you should also contact the worker’s attending physician, and in particular, the worker’s psychiatrist if one is providing care under the claim.
CP at 396.
Being arrested, cuffed, and taken to the police station lit up Mr. Phifer’s dormant
posttraumatic stress disorder (PTSD), originally caused by being beaten almost to death
by police officers in the 1970s.
In September 2011, Mr. Phifer and his wife, Deborah Phifer, filed a complaint
against the Department and the city of Yakima. The complaint brought several causes of
4 No. 36572-7-III Phifer v. Dep’t of Labor & Indus.
action, including negligence, outrage, negligent training, loss of consortium, and violation
of 42 U.S.C. § 1983.
Sometime before June 2012, the city of Yakima filed a motion for partial summary
judgment on the 42 U.S.C. § 1983 claim. The Department joined the motion. The trial
court granted the motion and dismissed that claim.
In July 2012, the Department and the city filed motions for summary judgment on
all their other claims. The parties stipulated that the outrage and the loss of consortium
claims should be dismissed. The trial court granted the city’s motion, but denied the
Department’s motion with respect to the negligence and the negligent training claims.
In July 2013, the Department filed another motion for summary judgment. The
trial court denied the motion as to the negligence claim, but granted it on the negligent
training claim.
In April 2018, the Department filed its final motion for summary judgment. By
then, Mr. Phifer had passed away, and the Estate had substituted as party-plaintiff. The
trial court originally denied the Department’s motion. On November 20, 2018, it
reconsidered its order sua sponte, and entered the following order:
The court will grant Defendant’s motion for summary [sic] on Dec [sic] 4, 2018, if Plaintiff has not filed additional briefing on the issue of special relationship that convinces the court not to grant summary judgment.
5 No. 36572-7-III Phifer v. Dep’t of Labor & Indus.
CP at 371.
The Estate filed several pleadings on December 4, 2018. Two days later, the trial
court entered the order that granted the Department’s motion. The pretyped order listed
the pleadings considered by the trial court, and the trial court hand-wrote four additional
pleadings onto the typed list. Neither the typed nor the handwritten list included the
December 4, 2018 pleadings filed by the Estate.2
The Estate timely filed this appeal.
ANALYSIS
This court reviews summary judgment orders de novo and views the evidence in
the light most favorable to the nonmoving party. Herring, 161 Wash. 2d at 194. We
perform the same inquiry as the trial court. Keck v. Collins, 181 Wash. App. 67, 78, 325 P.3d 306 (2014), aff’d, 184 Wash. 2d 358, 357 P.3d 1080 (2015). Summary judgment is
only appropriate when there is no genuine issue as to any material fact, and the pleadings
show the moving party is entitled to judgment as a matter of law. Id. at 78-79. For
example, summary judgment is appropriate when the responding party fails to make a
showing sufficient to establish the existence of an element essential to that party’s case,
2 We doubt the trial court considered the late pleadings. Had it considered them, it would have added the December 4, 2018 filings to its handwritten list.
6 No. 36572-7-III Phifer v. Dep’t of Labor & Indus.
and on which that party will bear the burden of proof at trial. Young v. Key Pharms., Inc.,
112 Wash. 2d 216, 225, 770 P.2d 182 (1989).
Here, the trial court dismissed the Estate’s negligence claim against the
Department. A negligence claim requires a plaintiff to prove four elements: (1) there
existed a duty owed by the defendant to the plaintiff, (2) the defendant breached that duty,
(3) damage resulted, and (4) the damage was proximately caused by the defendant’s
breach. Ranger Ins. Co. v. Pierce County, 164 Wash. 2d 545, 552, 192 P.3d 886 (2008).
In addition, an employer is liable for the negligent acts of its employees occurring within
the scope of their employment. Rahman v. State, 170 Wash. 2d 810, 815, 246 P.3d 182
(2011). The trial court dismissed the Estate’s negligence claim because it bore the burden
of establishing the Department owed and breached a duty, and it failed to articulate any
duty owed or breached.
The Estate argues the trial court erred. Specifically, the Estate argues the
Department is vicariously liable for Ms. Alvarado’s actions, and Ms. Alvarado had the
following duties: (1) to listen and ask appropriate questions to determine how to respond
to Mr. Phifer, (2) to empathize and listen, in accordance with RCW 43.70.445, (3) to act
consistent with the Department’s internal memo, and (4) a heightened and special duty to
properly respond to injured workers asserting claims. Most of the Estate’s arguments
7 No. 36572-7-III Phifer v. Dep’t of Labor & Indus.
complain that Ms. Alvarado should have more closely listened to Mr. Phifer and, instead
of calling the police, she should have called his doctor.
THE ESTATE FAILED TO ARTICULATE A DUTY OWED
When determining if a defendant owes a duty to a plaintiff, this court considers
many factors, including “logic, common sense, justice, policy, and precedent, as applied
to the facts of the case.” Centurion Props. III, LLC v. Chi. Title Ins. Co., 186 Wash. 2d 58,
65, 375 P.3d 651 (2016).
A person is not tortiously liable for reporting a matter of concern to law
enforcement, or for the actions taken by law enforcement following the report. In Parker
v. Murphy, 47 Wash. 558, 560, 92 P. 371 (1907), a shop owner called the police on a
former employee after the former employee kept harassing the owner at his shop. Id. at
559. Police officers came and arrested the former employee without the owner’s request
or knowledge. Id. The court held that the owner could not be liable for an action of false
imprisonment when he had simply called the police and the officers had acted on their
own initiative. Id. at 560.
Here, Ms. Alvarado did nothing other than what the shop owner did in Parker.
Ms. Alvarado called the police and related her concerns. She did not ask the officers to
8 No. 36572-7-III Phifer v. Dep’t of Labor & Indus.
arrest Mr. Phifer nor did she suggest they do so. The officers, who are trained to assess
suicide risk, arrived on the scene and acted on their own initiative.
Reporting a potentially suicidal person does not create an appreciable risk of harm
to that person. Not reporting a potentially suicidal person does create an appreciable risk.
Logic, common sense, policy, and precedent do not support imposing liability on persons
for reporting suicidal people.
We now comment on the Estate’s more specific arguments.
1. RCW 5.40.050 does not apply here
The Estate first argues that Ms. Alvarado violated the Department’s internal
policy and, in doing so, she was negligent. In support of its argument, the Estate cites
RCW 5.40.050. That statute generally makes violation of a statute, ordinance, or
administrative rule evidence of negligence. We reject the Estate’s first argument.
RCW 5.40.050 has no application here, to an internal agency policy. Also, Ms.
Alvarado did not violate the internal policy. The internal policy read “[w]hen an injured
worker tells you that he/she is threatening to commit suicide, you need to contact the
appropriate County Law Enforcement Agency in the county where the worker lives.”
CP at 396. This policy did not direct case managers not to contact authorities if they
9 No. 36572-7-III Phifer v. Dep’t of Labor & Indus.
suspected callers were suicidal. For this reason, Ms. Alvarado did not violate the
Department’s internal policy.
2. RCW 43.70.445 does not impose liability on a Department case manager
The Estate next argues that Ms. Alvarado failed to act in accordance with
RCW 43.70.445. In 2017, RCW 43.70.445(1)(a) was amended to add that it creates a
“suicide-safer homes task force.” The charge of the task force is to develop trainings and
messaging to enhance suicide prevention and to train various groups. Those groups do
not include Department employees.
The applicable version of RCW 43.70.445(1)(a) was not effective until nearly one
decade after Ms. Alvarado’s phone call with Mr. Phifer and does not impose duties on
Department claims managers. The Estate fails to adequately explain how this statute
results in a 2008 duty of care from Ms. Alvarado to Mr. Phifer.
3. We do not review the Estate’s heightened-duty claim
The Estate finally contends that the Department owed a heightened duty to act in
good faith toward Mr. Phifer, due to the nature of their special relationship. Specifically,
the Estate argues the Department owed Mr. Phifer a duty of good faith as an insurer.
10 No. 36572-7-III Phifer v. Dep 't ofLabor & Indus.
As previously noted, our review of a summary judgment order is typically limited
to the evidence and arguments considered by the trial court. Here, the trial court did not
consider this argument. Neither will we.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
WE CONCUR:
Pennell, J.
11 | 03-03-2020 | [
"FILED MARCH 3, 2020 In the Office of the Clerk of Court WA State Court of Appeals, Division III IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE DEBORAH PHIFER, Personal ) No. 36572-7-III Representative of the Estate of ) Fred Phifer, ) ) Appellant, ) ) v. ) UNPUBLISHED OPINION ) STATE OF WASHINGTON ) DEPARTMENT OF LABOR AND ) INDUSTRIES; CITY OF YAKIMA, a ) municipal corporation, ) ) Respondents. ) LAWRENCE-BERREY, C.J. — Deborah Phifer, personal representative of the estate of Fred Phifer (Estate), appeals the trial court’s order summarily dismissing the Estate’s negligence claim against the Washington State Department of Labor and Industries (Department). The Estate contends the trial court erred because the Department either owed or breached certain duties to Mr. Phifer. We conclude the Department did not owe or breach any of the duties articulated by the Estate and affirm. No. 36572-7-III Phifer v. Dep’t of Labor & Indus. FACTS Consistent with our standard of review, we set forth the facts in the light most favorable to the Estate.",
"See Herring v. Texaco, Inc., 161 Wash. 2d 189, 194, 165 P.3d 4 (2007). In July 2008, Mr. Phifer filed a workers’ compensation claim with the Department for an on-the-job injury. The Department assigned Mr. Phifer a case manager, Annabea Alvarado. One month later, Mr. Phifer called Ms. Alvarado repeatedly. Ms. Alvarado eventually returned the call. Ms. Alvarado began lecturing Mr. Phifer, telling him not to call so often and asked questions such as, “‘What do you do all day, lay around and watch TV all day?’” Clerk’s Papers (CP) at 13.1 Mr. Phifer told her that he was doing what his 1 In July 2013, Mr. Phifer signed and filed a declaration that sets forth his version of events. In April 2018, the Department brought the motion that is the subject of our review. The Estate’s summary judgment response did not cite Mr. Phifer’s 2013 declaration, but it did assert facts contained in that declaration. Probably for this reason, the summary judgment order does not list the 2013 declaration as being considered by the trial court.",
"On appeal, we consider only evidence and arguments called to the attention of the trial court. RAP 9.12. To facilitate a proper review, all pleadings considered by the trial court are required to be listed in the summary judgment order. Id. Normally, evidence considered by the trial court but not listed in the order is required to be listed in a supplemental order. Id. On appeal, the Estate repeatedly cites Mr. Phifer’s 2013 declaration. The Department does not object—a tacit acknowledgment that the trial court considered the evidence contained in the 2013 declaration.",
"For these reasons, we too consider that declaration, and waive compliance with RAP 9.12. See RAP 1.2(a). 2 No. 36572-7-III Phifer v. Dep’t of Labor & Indus. doctor ordered, intermittently resting followed by activity. Ms. Alvarado then asked what he was doing right at that moment, to which Mr. Phifer replied he was sharpening his wife’s knives. Ms. Alvarado put Mr. Phifer on hold for 5 to 10 minutes. When she got back on the line, she told him the Department would send some partial payments and told him not to call so much. After hanging up the telephone, Mr. Phifer went back to sharpening his wife’s knives. Ms. Alvarado, meanwhile, called the police and informed them Mr. Phifer was suicidal and had knives. After a few minutes, Yakima police arrived at Mr. Phifer’s house. They asked to come in and Mr. Phifer consented. Once inside, the officers interviewed Mr. Phifer. Mr. Phifer said he was depressed, but not suicidal.",
"He also made a reference to going to heaven, but then said he did not mean anything by it. The officers then put Mr. Phifer in handcuffs. Officers told Mr. Phifer he could not leave until an evaluator arrived. After about 30 minutes, the evaluator still had not arrived. The officers had other duties and could not wait idly any longer. They handcuffed Mr. Phifer, and drove him to the police station where they cuffed him to a pipe. He spent 45 minutes cuffed to a pipe before being released. After her call with Mr. Phifer, Ms. Alvarado filed a report with the Department. The report reads: 3 No. 36572-7-III Phifer v. Dep’t of Labor & Indus. rtc to status not happy the way things were going, was having very bad thoughts, he felt like a loser, feels like he has hit a brick wall and feels like ending it all. [S]ays supervisor at magic metals caused his mental health issue.",
"[S]ays that he is about to lose his house. cm advised would pay provisional until we get things sorted out, stated bas been seeing [D]r. [L]efors since 05/22/08. [H]as always had back problems has 7 messed up discs. [I]n the past has gone thru dvr was trained for real estate did that for 14 years . . . . asked iw if he wanted cm to contact mental health or authorities to pay him a visit to discuss his bad thoughts stated no, he would like to speak w/dr. wms . . .",
". per protocal [sic] cm notified yakima polide [sic] dept. CP at 194. At the time of this incident, an internal policy of the Department provided: When an injured worker tells you that he/she is threatening to commit suicide, you need to contact the appropriate County Law Enforcement Agency in the county where the worker lives. The list of County “Suicide and Crisis Phone Numbers,” is attached. Although we are not asking you to also contact the “Crisis/Mental Health Agency,” that agency is listed for your information as well.",
"As a courtesy, you should also contact the worker’s attending physician, and in particular, the worker’s psychiatrist if one is providing care under the claim. CP at 396. Being arrested, cuffed, and taken to the police station lit up Mr. Phifer’s dormant posttraumatic stress disorder (PTSD), originally caused by being beaten almost to death by police officers in the 1970s. In September 2011, Mr. Phifer and his wife, Deborah Phifer, filed a complaint against the Department and the city of Yakima. The complaint brought several causes of 4 No. 36572-7-III Phifer v. Dep’t of Labor & Indus. action, including negligence, outrage, negligent training, loss of consortium, and violation of 42 U.S.C. § 1983. Sometime before June 2012, the city of Yakima filed a motion for partial summary judgment on the 42 U.S.C. § 1983 claim. The Department joined the motion.",
"The trial court granted the motion and dismissed that claim. In July 2012, the Department and the city filed motions for summary judgment on all their other claims. The parties stipulated that the outrage and the loss of consortium claims should be dismissed. The trial court granted the city’s motion, but denied the Department’s motion with respect to the negligence and the negligent training claims. In July 2013, the Department filed another motion for summary judgment. The trial court denied the motion as to the negligence claim, but granted it on the negligent training claim. In April 2018, the Department filed its final motion for summary judgment. By then, Mr. Phifer had passed away, and the Estate had substituted as party-plaintiff.",
"The trial court originally denied the Department’s motion. On November 20, 2018, it reconsidered its order sua sponte, and entered the following order: The court will grant Defendant’s motion for summary [sic] on Dec [sic] 4, 2018, if Plaintiff has not filed additional briefing on the issue of special relationship that convinces the court not to grant summary judgment. 5 No. 36572-7-III Phifer v. Dep’t of Labor & Indus. CP at 371. The Estate filed several pleadings on December 4, 2018. Two days later, the trial court entered the order that granted the Department’s motion. The pretyped order listed the pleadings considered by the trial court, and the trial court hand-wrote four additional pleadings onto the typed list. Neither the typed nor the handwritten list included the December 4, 2018 pleadings filed by the Estate.2 The Estate timely filed this appeal.",
"ANALYSIS This court reviews summary judgment orders de novo and views the evidence in the light most favorable to the nonmoving party. Herring, 161 Wash. 2d at 194. We perform the same inquiry as the trial court. Keck v. Collins, 181 Wash. App. 67, 78, 325 P.3d 306 (2014), aff’d, 184 Wash. 2d 358, 357 P.3d 1080 (2015). Summary judgment is only appropriate when there is no genuine issue as to any material fact, and the pleadings show the moving party is entitled to judgment as a matter of law. Id. at 78-79. For example, summary judgment is appropriate when the responding party fails to make a showing sufficient to establish the existence of an element essential to that party’s case, 2 We doubt the trial court considered the late pleadings.",
"Had it considered them, it would have added the December 4, 2018 filings to its handwritten list. 6 No. 36572-7-III Phifer v. Dep’t of Labor & Indus. and on which that party will bear the burden of proof at trial. Young v. Key Pharms., Inc., 112 Wash. 2d 216, 225, 770 P.2d 182 (1989). Here, the trial court dismissed the Estate’s negligence claim against the Department. A negligence claim requires a plaintiff to prove four elements: (1) there existed a duty owed by the defendant to the plaintiff, (2) the defendant breached that duty, (3) damage resulted, and (4) the damage was proximately caused by the defendant’s breach.",
"Ranger Ins. Co. v. Pierce County, 164 Wash. 2d 545, 552, 192 P.3d 886 (2008). In addition, an employer is liable for the negligent acts of its employees occurring within the scope of their employment. Rahman v. State, 170 Wash. 2d 810, 815, 246 P.3d 182 (2011). The trial court dismissed the Estate’s negligence claim because it bore the burden of establishing the Department owed and breached a duty, and it failed to articulate any duty owed or breached. The Estate argues the trial court erred. Specifically, the Estate argues the Department is vicariously liable for Ms. Alvarado’s actions, and Ms. Alvarado had the following duties: (1) to listen and ask appropriate questions to determine how to respond to Mr. Phifer, (2) to empathize and listen, in accordance with RCW 43.70.445, (3) to act consistent with the Department’s internal memo, and (4) a heightened and special duty to properly respond to injured workers asserting claims.",
"Most of the Estate’s arguments 7 No. 36572-7-III Phifer v. Dep’t of Labor & Indus. complain that Ms. Alvarado should have more closely listened to Mr. Phifer and, instead of calling the police, she should have called his doctor. THE ESTATE FAILED TO ARTICULATE A DUTY OWED When determining if a defendant owes a duty to a plaintiff, this court considers many factors, including “logic, common sense, justice, policy, and precedent, as applied to the facts of the case.” Centurion Props. III, LLC v. Chi. Title Ins. Co., 186 Wash. 2d 58, 65, 375 P.3d 651 (2016). A person is not tortiously liable for reporting a matter of concern to law enforcement, or for the actions taken by law enforcement following the report.",
"In Parker v. Murphy, 47 Wash. 558, 560, 92 P. 371 (1907), a shop owner called the police on a former employee after the former employee kept harassing the owner at his shop. Id. at 559. Police officers came and arrested the former employee without the owner’s request or knowledge. Id. The court held that the owner could not be liable for an action of false imprisonment when he had simply called the police and the officers had acted on their own initiative. Id. at 560.",
"Here, Ms. Alvarado did nothing other than what the shop owner did in Parker. Ms. Alvarado called the police and related her concerns. She did not ask the officers to 8 No. 36572-7-III Phifer v. Dep’t of Labor & Indus. arrest Mr. Phifer nor did she suggest they do so. The officers, who are trained to assess suicide risk, arrived on the scene and acted on their own initiative. Reporting a potentially suicidal person does not create an appreciable risk of harm to that person. Not reporting a potentially suicidal person does create an appreciable risk. Logic, common sense, policy, and precedent do not support imposing liability on persons for reporting suicidal people. We now comment on the Estate’s more specific arguments. 1.",
"RCW 5.40.050 does not apply here The Estate first argues that Ms. Alvarado violated the Department’s internal policy and, in doing so, she was negligent. In support of its argument, the Estate cites RCW 5.40.050. That statute generally makes violation of a statute, ordinance, or administrative rule evidence of negligence. We reject the Estate’s first argument. RCW 5.40.050 has no application here, to an internal agency policy. Also, Ms. Alvarado did not violate the internal policy. The internal policy read “[w]hen an injured worker tells you that he/she is threatening to commit suicide, you need to contact the appropriate County Law Enforcement Agency in the county where the worker lives.” CP at 396. This policy did not direct case managers not to contact authorities if they 9 No.",
"36572-7-III Phifer v. Dep’t of Labor & Indus. suspected callers were suicidal. For this reason, Ms. Alvarado did not violate the Department’s internal policy. 2. RCW 43.70.445 does not impose liability on a Department case manager The Estate next argues that Ms. Alvarado failed to act in accordance with RCW 43.70.445. In 2017, RCW 43.70.445(1)(a) was amended to add that it creates a “suicide-safer homes task force.” The charge of the task force is to develop trainings and messaging to enhance suicide prevention and to train various groups. Those groups do not include Department employees. The applicable version of RCW 43.70.445(1)(a) was not effective until nearly one decade after Ms. Alvarado’s phone call with Mr. Phifer and does not impose duties on Department claims managers.",
"The Estate fails to adequately explain how this statute results in a 2008 duty of care from Ms. Alvarado to Mr. Phifer. 3. We do not review the Estate’s heightened-duty claim The Estate finally contends that the Department owed a heightened duty to act in good faith toward Mr. Phifer, due to the nature of their special relationship. Specifically, the Estate argues the Department owed Mr. Phifer a duty of good faith as an insurer. 10 No. 36572-7-III Phifer v. Dep 't ofLabor & Indus.",
"As previously noted, our review of a summary judgment order is typically limited to the evidence and arguments considered by the trial court. Here, the trial court did not consider this argument. Neither will we. Affirmed. A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040. WE CONCUR: Pennell, J.",
"11"
]
| https://www.courtlistener.com/api/rest/v3/opinions/4512180/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
IN THE MATTER OF THE PETITION * IN THE FOR REINSTATEMENT OF RUTH MARGUERITE MARIE SCHAUB * COURT OF APPEALS TO THE BAR OF MARYLAND * OF MARYLAND
* Misc. Docket AG No. 67
* September Term, 2021
ORDER
Upon consideration of the Petition of Ruth Marguerite Marie Shaub for
Reinstatement to the Maryland Bar and Bar Counsel’s Response to Verified Petition for
Reinstatement, filed in the above-captioned case, it is this 28th day of March, 2022,
ORDERED, by the Court of Appeals of Maryland, that the Petition be, and the
same hereby is, GRANTED; and it is further
ORDERED, that Ruth Marguerite Marie Schaub is reinstated as a member of the
Bar of Maryland; and it is further
ORDERED, that the Clerk of the Court shall replace the name Ruth Marguerite
Marie Schaub upon the register of attorneys entitled to practice law in this State and certify
that fact to the Trustees of the Client Protection Fund and the Clerks of all judicial tribunals
in this State in accordance with Maryland Rule 19-761(b).
/s/ Shirley M. Watts Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Senior Judge 2022-03-28 11:10-04:00
Suzanne C. Johnson, Clerk | 03-28-2022 | [
"IN THE MATTER OF THE PETITION * IN THE FOR REINSTATEMENT OF RUTH MARGUERITE MARIE SCHAUB * COURT OF APPEALS TO THE BAR OF MARYLAND * OF MARYLAND * Misc. Docket AG No. 67 * September Term, 2021 ORDER Upon consideration of the Petition of Ruth Marguerite Marie Shaub for Reinstatement to the Maryland Bar and Bar Counsel’s Response to Verified Petition for Reinstatement, filed in the above-captioned case, it is this 28th day of March, 2022, ORDERED, by the Court of Appeals of Maryland, that the Petition be, and the same hereby is, GRANTED; and it is further ORDERED, that Ruth Marguerite Marie Schaub is reinstated as a member of the Bar of Maryland; and it is further ORDERED, that the Clerk of the Court shall replace the name Ruth Marguerite Marie Schaub upon the register of attorneys entitled to practice law in this State and certify that fact to the Trustees of the Client Protection Fund and the Clerks of all judicial tribunals in this State in accordance with Maryland Rule 19-761(b).",
"/s/ Shirley M. Watts Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Senior Judge 2022-03-28 11:10-04:00 Suzanne C. Johnson, Clerk"
]
| https://www.courtlistener.com/api/rest/v3/opinions/6327336/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
976 P.2d 126 (1999) 94 Wash.App. 820 Jennifer CRAIG, Appellant, v. WASHINGTON TRUST BANK, Respondent. No. 17028-4-III. Court of Appeals of Washington, Division 3, Panel Five. February 4, 1999. Publication Ordered March 23, 1999. *127 Charles T. Conrad, Spokane, Charles E. Rohr Jr., Spokane, for Appellant. Michael A. Maurer, Michael A. Roozekrans, Spokane, for Respondent. Sherrie Wright, Spokane, Pro Se. BROWN, J. Jennifer Craig, a janitor working for an independent contractor, sued Washington Trust Bank (Bank) for negligence arising from a third person criminal assault occurring one night as she left the Bank to empty trash. The trial court granted summary judgment against her. Generally, no duty exists to protect others from the criminal acts of third persons. However, some special relationships may give rise to exceptions to this general rule. We agree with the trial court that a special relation did not exist in Ms. Craig's case and affirm.
FACTS Ms. Craig, a janitor employee of American Building Maintenance Company (ABM), worked nights at a downtown Spokane Bank branch. ABM's contract with the Bank for janitorial services specified "[ABM] is an independent contractor and all persons employed to furnish services hereunder are employees of [ABM] and not [Bank]...." Ms. Craig reported feeling afraid to take out the garbage some nights because transients were loitering around the main garbage receptacle. Generally, the Bank encouraged all employees in its branches to be safety conscious and recommended walking in pairs to their cars and carrying mace. No Bank employee ever reported an attack outside Ms. Craig's workplace. Ms. Craig would occasionally refuse to take the Bank's trash out because she was afraid. ABM reprimanded her for refusing to dump the trash after receiving complaints from the Bank. One night subsequent to the earlier complaints to ABM, Ms. Craig injured her leg when she tripped running away from two persons she encountered as she was taking out the Bank trash. Ms. Craig sued the Bank for negligence for her personal injuries. The court granted the Bank summary judgment and dismissed her suit because she failed to show the Bank breached any duty to her. Ms. Craig filed this appeal.
ANALYSIS A. Contentions. Ms. Craig contends the trial court erred in four ways. (1) Ms. Craig was an employee thereby requiring an elevated *128 duty of care. (2)The Bank had notice of potential criminal conduct. (3) The Bank affirmatively brought about the opportunity for criminal misconduct. (4) Ms. Craig was a business invitee thereby requiring an elevated duty of care. B. Standard of Review. The standards of review for a grant of summary judgment are summarized in Schaaf v. Highfield, 127 Wash.2d 17, 21, 896 P.2d 665 (1995) and Chen v. State, 86 Wash.App. 183, 187, 937 P.2d 612, review denied, 133 Wash.2d 1020, 948 P.2d 387 (1997). CR 56(c) provides for summary judgment only if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any genuine issues of material fact, and that the moving party is entitled to judgment as a matter of law. To defeat summary judgment in a negligence case, the plaintiff must show an issue of material fact as to each elementduty, breach of duty, causation, and damages. Kennedy v. Sea-Land Serv., Inc., 62 Wash. App. 839, 856, 816 P.2d 75 (1991). All facts and reasonable inferences are considered most favorably to the nonmoving party. Schaaf, 127 Wash.2d at 21, 896 P.2d 665. The nonmoving party may not rely on speculation or argumentative assertions. Pelton v. Tri-State Memorial Hosp., 66 Wash.App. 350, 355, 831 P.2d 1147 (1992); Kirk v. Moe, 114 Wash.2d 550, 557, 789 P.2d 84 (1990). When reasonable minds could reach but one conclusion regarding claims of disputed facts, such questions may be determined as a matter of law. Ruffer v. St. Frances Cabrini Hosp., 56 Wash.App. 625, 628, 784 P.2d 1288, review denied, 114 Wash.2d 1023, 792 P.2d 535 (1990). C. Employee or Independent Contractor. Ms. Craig first contends the trial court incorrectly concluded she was not an employee of the Bank and thus subject to certain workplace regulations. However, the language of the contract between the Bank and ABM indicates she is an employee of ABM, not the Bank. No material facts indicate otherwise, thus, the trial court was in a position to rule as a matter of law on the related legal issues. First we examine what, if any, duty the Bank owed Ms. Craig as an employee of an independent contractor. Generally, the Bank as an owner is not liable for injuries sustained by employees of its independent contractor, ABM. Smith v. Myers, 90 Wash.App. 89, 95, 950 P.2d 1018 (1998). Nevertheless, Ms. Craig contends a duty arose under the Washington Industrial Safety and Health Act (WISHA), which sets forth two duties for an "employer." The first is a general duty imposed on an employer to protect its direct employees from hazards that are likely to cause death or serious bodily injury. RCW 49.17.060(1). The second is a specific duty imposed on employers for the benefit of all workers on a job site, not just the employer's direct employees. RCW 49.17.060(2). The specific duty, which Ms. Craig relies on here, requires the employer to "comply with the rules, regulations, and orders promulgated under this chapter." Id. Since all employers are charged with the duty to comply with the WISHA regulations, the threshold question is whether the Bank is an "employer" within the meaning of RCW 49.17.060(2). Stute v. P.B.M.C., Inc., 114 Wash.2d 454, 462-63, 788 P.2d 545 (1990). If more than one entity may qualify as an "employer" at a job site, the primary duty to comply with the regulations falls on the employer with "innate supervisory authority... over the workplace." Id. at 462-64, 788 P.2d 545. The Bank employed ABM and ABM employed Ms. Craig. While the Bank was free to complain to ABM about its service, ABM had supervisory authority over its employees. Ms. Craig argues the Bank should have instilled a two-person policy for female janitors cleaning at night. However, it is ABM's responsibility to initiate such policy for its employees, not the Bank's. The Bank has control over the quality of the cleaning service provided by ABM because it can terminate their contract if service is not acceptable, however, it is ABM's responsibility to establish employee policy. As the trial court correctly noted, ABM hired Ms. Craig, kept her on the company books, controlled her duties and directly paid her wages. For WISHA purposes, the Bank was not Ms. Craig's employer, and therefore, owed her no duty of care. *129 Even assuming the Bank was an "employer" under the statutory definition with "supervisory authority" giving rise to primary duty to comply with the WISHA regulations, no violation of the regulations is present. The regulations cited by Ms. Craig generally require safe workplaces and operational practices "free from recognized hazards." WAC 296-24-073(1), (3). Here, Ms. Craig was a janitor. She was not required to perform inherently dangerous duties. She was injured while taking the garbage out, neither the task itself nor the area where the dumpster was located was inherently dangerous. Adopting Ms. Craig's argument would place a burden on employers and owners not contemplated by the regulations she cites. Accordingly, we conclude the trial court did not err. D. Bank Liability for Third Person Criminal Conduct. The issue is whether the trial court erred concluding the Bank breached no duty of care to protect Ms. Craig from the criminal acts of third persons on the Bank's premises. Generally, no person has a duty to come to the aid of a stranger or protect others from the criminal acts of third persons. Folsom v. Burger King, 135 Wash.2d 658, 958 P.2d 301 (1998). Recognizing the general rule excludes her claim, Ms. Craig seeks to fit her facts into one of the exceptions. She first cites Hutchins v. 1001 Fourth Avenue Assocs., 116 Wash.2d 217, 224, 802 P.2d 1360 (1991). Mr. Hutchins was a passerby pushed into the defendant building owner's entryway and assaulted. He unsuccessfully claimed the building owners breached "the duty of persons who own or control buildings adjacent to a public way to maintain the buildings free of any conditions posing unreasonable dangers to passersby." Id. at 219-20, 802 P.2d 1360. The Supreme Court affirmed the trial court's grant of summary judgment reasoning: [O]ne is normally allowed to proceed on the basis that others will obey the law. As a policy matter, this premise has legitimacy even in an area of urban crime because the alternative is to presume the need for extraordinary care by all to avoid the responsibility for the lawlessness of others. Id. at 236, 802 P.2d 1360. Likewise, the Bank did not owe Ms. Craig a duty of extraordinary care. Even if it knew that homeless individuals sometimes dwelled or loitered in the back of the building, this fact alone does not make the Bank liable if the individuals choose to break the law. Next, Ms. Craig argues the Bank created the opportunity for criminal misconduct by the very nature of the Bank's business. Specifically, she mentions the location of the Bank, the funds inside the Bank, and the cash machine located on an outside wall away from the garbage container. In Morehouse v. Goodnight Bros. Constr., 77 Wash.App. 568, 892 P.2d 1112 (1995), Division One addressed this issue. Concerning the place of injury, the court reasoned necessary "some condition of the property which, by its nature, is quite out of the ordinary, i.e., presenting a special or peculiar temptation or opportunity, and involve a high degree of risk of harm." Morehouse, 77 Wash.App. at 573, 892 P.2d 1112 (quoting Hutchins, 116 Wash.2d at 232, 802 P.2d 1360). The mere fact that respondent is a bank located in the heart of a city is not out of the ordinary. Indeed, Ms. Craig could have been similarly accosted nearly any place or time if somebody chose to break the law. We agree with the trial court under these facts that no special duty results from the location and nature of the Bank's business. Finally, the Bank concedes Ms. Craig was a business invitee and therefore, the Bank could owe her a duty of reasonable care because of that special relationship. Kessler v. Swedish Hosp. Med. Ctr., 58 Wash.App. 674, 678, 794 P.2d 871 (1990). A business owner owes an affirmative duty to invitees to the extent that the general rule of non-liability for the criminal acts of third persons does not apply. Nivens v. 7-11 Hoagy's Corner, 133 Wash.2d 192, 203, 943 P.2d 286 (1997). In Nivens, a customer who sustained injuries due to a parking lot assault by loitering teenagers sued 7-11, claiming it had a duty to provide security guards. The Nivens court adopted Restatement (Second) Of Torts § 344 (1965) and established a duty of reasonable care delimited by comments (d) *130 and (f) to that section. Nivens, 133 Wash.2d at 203-05, 943 P.2d 286. The Supreme Court affirmed the trial court's summary judgment holding "a business owes a duty to its invitees to protect them from imminent criminal harm and reasonably foreseeable criminal conduct by third persons. The business owner must take reasonable steps to prevent such harm in order to satisfy the duty." Id. at 205, 943 P.2d 286. The court emphasized the following portion of the Restatement Comments in its reasoning: Since the possessor is not an insurer of the visitor's safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. Id. at 204-05, 943 P.2d 286. Applying the rules and principles derived from Nivens, the bank did not know criminal acts had occurred as none was previously reported. Further, the Bank did not have reason to know that the criminal acts might occur simply because transients occasionally loitered near the Bank building. Thus, the Bank did not have "past experience" giving reason to know a likelihood of criminal conduct on the part of third persons in general likely to endanger Ms. Craig. The Bank did not know or have reason to know that on the particular night two individuals would choose to approach Ms. Craig, frighten her, and cause her to trip and injure her leg. Accordingly, the trial court correctly dismissed Ms. Craig's negligence claim in summary judgment because the facts failed to raise a duty.
CONCLUSION The trial court did not err granting summary judgment against Ms. Craig because she failed to establish any duty under these facts. Affirmed. SCHULTHEIS, C.J., and KURTZ, J., concur. | 10-30-2013 | [
"976 P.2d 126 (1999) 94 Wash.App. 820 Jennifer CRAIG, Appellant, v. WASHINGTON TRUST BANK, Respondent. No. 17028-4-III. Court of Appeals of Washington, Division 3, Panel Five. February 4, 1999. Publication Ordered March 23, 1999. *127 Charles T. Conrad, Spokane, Charles E. Rohr Jr., Spokane, for Appellant. Michael A. Maurer, Michael A. Roozekrans, Spokane, for Respondent. Sherrie Wright, Spokane, Pro Se. BROWN, J. Jennifer Craig, a janitor working for an independent contractor, sued Washington Trust Bank (Bank) for negligence arising from a third person criminal assault occurring one night as she left the Bank to empty trash. The trial court granted summary judgment against her. Generally, no duty exists to protect others from the criminal acts of third persons. However, some special relationships may give rise to exceptions to this general rule. We agree with the trial court that a special relation did not exist in Ms. Craig's case and affirm. FACTS Ms. Craig, a janitor employee of American Building Maintenance Company (ABM), worked nights at a downtown Spokane Bank branch. ABM's contract with the Bank for janitorial services specified \"[ABM] is an independent contractor and all persons employed to furnish services hereunder are employees of [ABM] and not [Bank]....\" Ms. Craig reported feeling afraid to take out the garbage some nights because transients were loitering around the main garbage receptacle.",
"Generally, the Bank encouraged all employees in its branches to be safety conscious and recommended walking in pairs to their cars and carrying mace. No Bank employee ever reported an attack outside Ms. Craig's workplace. Ms. Craig would occasionally refuse to take the Bank's trash out because she was afraid. ABM reprimanded her for refusing to dump the trash after receiving complaints from the Bank. One night subsequent to the earlier complaints to ABM, Ms. Craig injured her leg when she tripped running away from two persons she encountered as she was taking out the Bank trash. Ms. Craig sued the Bank for negligence for her personal injuries.",
"The court granted the Bank summary judgment and dismissed her suit because she failed to show the Bank breached any duty to her. Ms. Craig filed this appeal. ANALYSIS A. Contentions. Ms. Craig contends the trial court erred in four ways. (1) Ms. Craig was an employee thereby requiring an elevated *128 duty of care. (2)The Bank had notice of potential criminal conduct. (3) The Bank affirmatively brought about the opportunity for criminal misconduct. (4) Ms. Craig was a business invitee thereby requiring an elevated duty of care. B. Standard of Review. The standards of review for a grant of summary judgment are summarized in Schaaf v. Highfield, 127 Wash.2d 17, 21, 896 P.2d 665 (1995) and Chen v. State, 86 Wash.App. 183, 187, 937 P.2d 612, review denied, 133 Wash.2d 1020, 948 P.2d 387 (1997). CR 56(c) provides for summary judgment only if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any genuine issues of material fact, and that the moving party is entitled to judgment as a matter of law.",
"To defeat summary judgment in a negligence case, the plaintiff must show an issue of material fact as to each elementduty, breach of duty, causation, and damages. Kennedy v. Sea-Land Serv., Inc., 62 Wash. App. 839, 856, 816 P.2d 75 (1991). All facts and reasonable inferences are considered most favorably to the nonmoving party. Schaaf, 127 Wash.2d at 21, 896 P.2d 665. The nonmoving party may not rely on speculation or argumentative assertions. Pelton v. Tri-State Memorial Hosp., 66 Wash.App.",
"350, 355, 831 P.2d 1147 (1992); Kirk v. Moe, 114 Wash.2d 550, 557, 789 P.2d 84 (1990). When reasonable minds could reach but one conclusion regarding claims of disputed facts, such questions may be determined as a matter of law. Ruffer v. St. Frances Cabrini Hosp., 56 Wash.App. 625, 628, 784 P.2d 1288, review denied, 114 Wash.2d 1023, 792 P.2d 535 (1990). C. Employee or Independent Contractor. Ms. Craig first contends the trial court incorrectly concluded she was not an employee of the Bank and thus subject to certain workplace regulations. However, the language of the contract between the Bank and ABM indicates she is an employee of ABM, not the Bank.",
"No material facts indicate otherwise, thus, the trial court was in a position to rule as a matter of law on the related legal issues. First we examine what, if any, duty the Bank owed Ms. Craig as an employee of an independent contractor. Generally, the Bank as an owner is not liable for injuries sustained by employees of its independent contractor, ABM. Smith v. Myers, 90 Wash.App. 89, 95, 950 P.2d 1018 (1998). Nevertheless, Ms. Craig contends a duty arose under the Washington Industrial Safety and Health Act (WISHA), which sets forth two duties for an \"employer.\" The first is a general duty imposed on an employer to protect its direct employees from hazards that are likely to cause death or serious bodily injury. RCW 49.17.060(1). The second is a specific duty imposed on employers for the benefit of all workers on a job site, not just the employer's direct employees.",
"RCW 49.17.060(2). The specific duty, which Ms. Craig relies on here, requires the employer to \"comply with the rules, regulations, and orders promulgated under this chapter.\" Id. Since all employers are charged with the duty to comply with the WISHA regulations, the threshold question is whether the Bank is an \"employer\" within the meaning of RCW 49.17.060(2). Stute v. P.B.M.C., Inc., 114 Wash.2d 454, 462-63, 788 P.2d 545 (1990). If more than one entity may qualify as an \"employer\" at a job site, the primary duty to comply with the regulations falls on the employer with \"innate supervisory authority... over the workplace.\" Id. at 462-64, 788 P.2d 545. The Bank employed ABM and ABM employed Ms. Craig.",
"While the Bank was free to complain to ABM about its service, ABM had supervisory authority over its employees. Ms. Craig argues the Bank should have instilled a two-person policy for female janitors cleaning at night. However, it is ABM's responsibility to initiate such policy for its employees, not the Bank's. The Bank has control over the quality of the cleaning service provided by ABM because it can terminate their contract if service is not acceptable, however, it is ABM's responsibility to establish employee policy. As the trial court correctly noted, ABM hired Ms. Craig, kept her on the company books, controlled her duties and directly paid her wages. For WISHA purposes, the Bank was not Ms. Craig's employer, and therefore, owed her no duty of care. *129 Even assuming the Bank was an \"employer\" under the statutory definition with \"supervisory authority\" giving rise to primary duty to comply with the WISHA regulations, no violation of the regulations is present.",
"The regulations cited by Ms. Craig generally require safe workplaces and operational practices \"free from recognized hazards.\" WAC 296-24-073(1), (3). Here, Ms. Craig was a janitor. She was not required to perform inherently dangerous duties. She was injured while taking the garbage out, neither the task itself nor the area where the dumpster was located was inherently dangerous. Adopting Ms. Craig's argument would place a burden on employers and owners not contemplated by the regulations she cites. Accordingly, we conclude the trial court did not err. D. Bank Liability for Third Person Criminal Conduct. The issue is whether the trial court erred concluding the Bank breached no duty of care to protect Ms. Craig from the criminal acts of third persons on the Bank's premises. Generally, no person has a duty to come to the aid of a stranger or protect others from the criminal acts of third persons.",
"Folsom v. Burger King, 135 Wash.2d 658, 958 P.2d 301 (1998). Recognizing the general rule excludes her claim, Ms. Craig seeks to fit her facts into one of the exceptions. She first cites Hutchins v. 1001 Fourth Avenue Assocs., 116 Wash.2d 217, 224, 802 P.2d 1360 (1991). Mr. Hutchins was a passerby pushed into the defendant building owner's entryway and assaulted. He unsuccessfully claimed the building owners breached \"the duty of persons who own or control buildings adjacent to a public way to maintain the buildings free of any conditions posing unreasonable dangers to passersby.\" Id. at 219-20, 802 P.2d 1360.",
"The Supreme Court affirmed the trial court's grant of summary judgment reasoning: [O]ne is normally allowed to proceed on the basis that others will obey the law. As a policy matter, this premise has legitimacy even in an area of urban crime because the alternative is to presume the need for extraordinary care by all to avoid the responsibility for the lawlessness of others. Id.",
"at 236, 802 P.2d 1360. Likewise, the Bank did not owe Ms. Craig a duty of extraordinary care. Even if it knew that homeless individuals sometimes dwelled or loitered in the back of the building, this fact alone does not make the Bank liable if the individuals choose to break the law. Next, Ms. Craig argues the Bank created the opportunity for criminal misconduct by the very nature of the Bank's business. Specifically, she mentions the location of the Bank, the funds inside the Bank, and the cash machine located on an outside wall away from the garbage container.",
"In Morehouse v. Goodnight Bros. Constr., 77 Wash.App. 568, 892 P.2d 1112 (1995), Division One addressed this issue. Concerning the place of injury, the court reasoned necessary \"some condition of the property which, by its nature, is quite out of the ordinary, i.e., presenting a special or peculiar temptation or opportunity, and involve a high degree of risk of harm.\" Morehouse, 77 Wash.App. at 573, 892 P.2d 1112 (quoting Hutchins, 116 Wash.2d at 232, 802 P.2d 1360). The mere fact that respondent is a bank located in the heart of a city is not out of the ordinary.",
"Indeed, Ms. Craig could have been similarly accosted nearly any place or time if somebody chose to break the law. We agree with the trial court under these facts that no special duty results from the location and nature of the Bank's business. Finally, the Bank concedes Ms. Craig was a business invitee and therefore, the Bank could owe her a duty of reasonable care because of that special relationship. Kessler v. Swedish Hosp. Med. Ctr., 58 Wash.App. 674, 678, 794 P.2d 871 (1990). A business owner owes an affirmative duty to invitees to the extent that the general rule of non-liability for the criminal acts of third persons does not apply. Nivens v. 7-11 Hoagy's Corner, 133 Wash.2d 192, 203, 943 P.2d 286 (1997).",
"In Nivens, a customer who sustained injuries due to a parking lot assault by loitering teenagers sued 7-11, claiming it had a duty to provide security guards. The Nivens court adopted Restatement (Second) Of Torts § 344 (1965) and established a duty of reasonable care delimited by comments (d) *130 and (f) to that section. Nivens, 133 Wash.2d at 203-05, 943 P.2d 286. The Supreme Court affirmed the trial court's summary judgment holding \"a business owes a duty to its invitees to protect them from imminent criminal harm and reasonably foreseeable criminal conduct by third persons.",
"The business owner must take reasonable steps to prevent such harm in order to satisfy the duty.\" Id. at 205, 943 P.2d 286. The court emphasized the following portion of the Restatement Comments in its reasoning: Since the possessor is not an insurer of the visitor's safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. Id.",
"at 204-05, 943 P.2d 286. Applying the rules and principles derived from Nivens, the bank did not know criminal acts had occurred as none was previously reported. Further, the Bank did not have reason to know that the criminal acts might occur simply because transients occasionally loitered near the Bank building. Thus, the Bank did not have \"past experience\" giving reason to know a likelihood of criminal conduct on the part of third persons in general likely to endanger Ms. Craig. The Bank did not know or have reason to know that on the particular night two individuals would choose to approach Ms. Craig, frighten her, and cause her to trip and injure her leg. Accordingly, the trial court correctly dismissed Ms. Craig's negligence claim in summary judgment because the facts failed to raise a duty. CONCLUSION The trial court did not err granting summary judgment against Ms. Craig because she failed to establish any duty under these facts. Affirmed.",
"SCHULTHEIS, C.J., and KURTZ, J., concur."
]
| https://www.courtlistener.com/api/rest/v3/opinions/1277154/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Order Michigan Supreme Court Lansing, Michigan
June 28, 2011 Robert P. Young, Jr., Chief Justice
143002 Michael F. Cavanagh Marilyn Kelly Stephen J. Markman Diane M. Hathaway Mary Beth Kelly DEBRA ELIZABETH LUESBY f/k/a Brian K. Zahra, Justices DEBRA ELIZABETH KRUG, Plaintiff-Appellee, v SC: 143002 COA: 301290 Roscommon CC: 05-725368-DZ KIM LEE VICTOR, Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the February 10, 2011 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court. June 28, 2011 _________________________________________ p0620 Clerk | 03-01-2013 | [
"Order Michigan Supreme Court Lansing, Michigan June 28, 2011 Robert P. Young, Jr., Chief Justice 143002 Michael F. Cavanagh Marilyn Kelly Stephen J. Markman Diane M. Hathaway Mary Beth Kelly DEBRA ELIZABETH LUESBY f/k/a Brian K. Zahra, Justices DEBRA ELIZABETH KRUG, Plaintiff-Appellee, v SC: 143002 COA: 301290 Roscommon CC: 05-725368-DZ KIM LEE VICTOR, Defendant-Appellant. _________________________________________/ On order of the Court, the application for leave to appeal the February 10, 2011 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.",
"June 28, 2011 _________________________________________ p0620 Clerk"
]
| https://www.courtlistener.com/api/rest/v3/opinions/828368/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Exhibit 23.1 CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM We hereby consent to the incorporation by reference in the Registration Statements on Form S-8 (Nos. 333-205172 and333-135251) of Omega Protein Corporation of our report dated March 9, 2016 relating to the financial statements, the financial statement schedule and the effectiveness of internal control over financial reporting, which appears in this Form 10-K. /s/PricewaterhouseCoopers LLP Houston, Texas March 9, 2016 | [
"Exhibit 23.1 CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM We hereby consent to the incorporation by reference in the Registration Statements on Form S-8 (Nos. 333-205172 and333-135251) of Omega Protein Corporation of our report dated March 9, 2016 relating to the financial statements, the financial statement schedule and the effectiveness of internal control over financial reporting, which appears in this Form 10-K. /s/PricewaterhouseCoopers LLP Houston, Texas March 9, 2016"
]
| 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 |
|
Wright, J., dissenting. At the risk of violating the Biblical proverb, that “* * * he that repeateth a matter separateth very friends,”5 I must respectfully dissent in this case. I For reasons that escape me, this court has been confronted with a veritable- flood of death penalty cases involving a pernicious pattern of prosecutorial misconduct. See, e.g., State v. Thompson (1987), 33 Ohio St. 3d 1, 514 N.E. 2d 407 (misconduct resulting in vacation of death sentence); State v. Williams (1988), 38 Ohio St. 3d 346, 359-360, 528 N.E. 2d 910, 924-925 (Sweeney, J., dissenting); State v. Esparza (1988), 39 Ohio St. 3d 8, 16, 529 N.E. 2d 192, 200 (H. Brown, J., dissenting; and State v. DePew (1988), 38 Ohio St. 3d 275, 293-299, 528 N.E. 2d 542, 560-566 (Wright, J., concurring in part and dissenting in part). One can only hope that these practices have abated as a result of the warnings contained in DePew, supra, at 288-289, 528 N.E. 2d at 556-557, and the deep concerns expressed by most, if not all, of the members of this court. I am hopeful that repeating my concerns will not detract from the impact of previous treatment of this subject. Nevertheless, with a man’s life at stake, I feel compelled to again write in dissent to censure a pervasive practice among far too many prosecutors — conduct that I find in direct conflict with the foundation of our system of criminal jurisprudence. I recognize that our system often places a prosecutor in the difficult position of being a vigorous advocate for guilt and punishment while at the same time that same prosecutor must be mindful of the accused’s right to a fair trial. The prosecutor’s function “* * * is not to tack as many skins of victims as possible to the wall. His function is * * * to give those accused of crime a fair trial.” Donnelly v. DeChristoforo (1974), 416 U.S. 637, 648-649 (Douglas, J., dissenting). See, also, EC 7-13 of the Code of Professional Responsibility- In my view, the prosecutor in this case failed to maintain this crucial balance. The concern of improper prosecutorial influence upon a jury is particularly acute in the penalty phase of a capital case, especially where it tends to rebut a substantial amount of mitigation, as was the case here.6 “[I]t is most important that the sentencing *135phase of the [capital] trial not be influenced by passion, prejudice, or any other arbitrary factor. * * * With a man’s life at stake, a prosecutor should not play on the passions of the jury.” Hance v. Zant (C.A. 11, 1983), 696 F. 2d 940, 951, certiorari denied (1983), 463 U.S. 1210. For the reasons noted below, I believe the facts here belie a finding beyond a reasonable doubt that the jury would have recommended the death penalty absent the improper arguments by the prosecution. As a result, I believe appellant was denied fundamental due process and a fair trial pursuant to the Fifth and Fourteenth Amendments to the United States Constitution. II Improper conduct by the prosecutor during the penalty phase of this case falls into three main categories. Examples of this conduct are discussed below. The cumulative effect of this misconduct dictates a remand to the trial court for resentencing. “Any egregious error in the penalty phase of a death penalty proceeding, including prosecutorial misconduct, will be cause to vacate the sentence of death with a subsequent remand to the trial court for a new sentencing procedure pursuant to R.C. 2929.06.” Thompson, supra, at syllabus. ■ A In his argument at the penalty phase, the prosecutor showed the jury photographs that were previously admitted during the guilt phase and improperly commented upon them. Before the prosecutor readmitted the photographs at this stage, he told the jury that: “Whatever Mr. Bedford experienced, whatever he was feeling is not grounds to take two people’s lives; and I’m going to show you the photographs in the case. You’ve already seen them, but I’ll remind you of them because this is what the whole case is about; this is the reason we are here, okay? This is [sic] the aggravating circumstances, this is the course of conduct which brought us all here together * * (Emphasis added.) In State v. Thompson, supra, this court vacated a death sentence and remanded for resentencing for prosecutorial misconduct less severe than that found in this case. In Thompson, during the guilt phase of a capital case, the prosecutor presented gruesome photographic slides to illustrate expert testimony. Later, during argument in the penalty stage, the prosecutor *136referred to these slides but did not show them again. This court stated that introduction of the slides during the guilt phase was harmless error, but held that the subsequent reference to them during the penalty phase was prejudicial. “Although the prosecutor did not actually show the slides again, his entreaty that the jury should remember the slides could have had no other effect than to cause the jurors to re-experience the horror and outrage they must have felt upon viewing the slides earlier in the trial. * * *” Thompson, supra, at 15, 514 N.E. 2d at 420. In the instant case, not only did the prosecutor refer to the gruesome photographs that were presented during the guilt phase, but he actually resubmitted the photos to the jury during the penalty phase. These photographs, including color close-ups, show Smith lying with his head in a pool of blood on the porch. In addition, several photographs show Toepfert’s body lying inside the apartment with a portion of her bowels protruding. It does not take much imagination to appreciate the revulsion the jury must have felt when these photographs were again presented to it. Therefore, if the tactics used by the prosecutor in Thompson were prejudicial, then surely the tactics used by the prosecutor in this case warrant vacation of the death sentence and a remand for resentencing pursuant to R.C. 2929.06. Finally and most importantly, in State v. Davis (1988), 38 Ohio St. 3d 361, 367-373, 528 N.E. 2d 925, 931-936, Justice Locher correctly pointed out that only those aggravating circumstances specifically enumerated in R.C. 2929.04(A) may be considered in imposing the death penalty. In Davis, we remanded the case to the trial court because the three-judge panel weighed aggravating circumstances that were outside the statute. “ ‘This weighing process is designed to guide the sentencing authority’s discretion by focusing on the “circumstances of the capital offense and the individual offender * * *,” thus reducing the arbitrary and capricious imposition of death sentences. * * * Like all penalty provisions, R.C. 2929.04(B) must “* * * be strictly construed against the state, and liberally construed in favor of the accused.” R.C. 2901.04(A).’ ” Id. at 369, 528 N.E. 2d at 933, quoting State v. Penix (1987), 32 Ohio St. 3d 369, 371, 513 N.E. 2d 744, 746-747. See, also, Esparza, supra, at 16, 529 N.E. 2d at 200 (Locher, J., concurring). The presentation of the photographs during the penalty phase and the prosecutor’s related statement that “this is [sic] the aggravating circumstances, this is the course of conduct which brought us all here together” are precisely the types of nonstatutory circumstances that Dams proscribes. -Therefore, it is obvious that this jury could not help but weigh the “nature and circumstances” of the offense, which is clearly improper. See Esparza, supra, at 16, 529 N.E. 2d at 200 (Locher, J., concurring). The prosecutorial misconduct in introducing these nonstatutory aggravating circumstances to the jury during its weighing process was prejudicial to the defendant in that it allowed the jury to arbitrarily and capriciously impose the death penalty. B The prosecutor misled the jury when he improperly argued that the statutory minimum sentences under a life verdict failed to assure that appellant would not be released before that sentence was served. The prosecutor told the jury: “The law says that the parole eligi*137bility is 30 years and the parole eligibility is 20 years, and that’s the way it is today; but you don’t know how it’s going to be a year from now, two years from now, three years from now. The prosecutor was speculating that the present law may somehow be amended so that appellant could receive parole to shorten his sentence. As I recently stated in DePew, supra, at 297, 528 N.E. 2d at 564 (Wright, J., concurring in part and dissenting in part), such speculation is improper since early parole, as suggested by the prosecutor, is impossible under present law. In addition, the possibility of parole is outside the province of the jury. See California v. Ramos (1983), 463 U.S. 992, 1026, fn. 13 (Marshall, J., dissenting). In Farris v. State (Tenn. 1976), 535 S.W. 2d 608, 614, the Tennessee Supreme Court stated that jurors should not be informed about the possibility of parole because “* * * jurors tend to attempt to compensate for future clemency by imposing harsher sentences.” Similarly, in the present case, appellant was prejudiced beyond doubt because the jurors may have imposed a harsher sentence because of the prosecutor’s comments. See, also, People v. Brisbon (1985), 106 Ill. 2d 342, 478 N.E. 2d 402 (reference to possibility of early parole); and People v. Davenport (1985), 41 Cal. 3d 247, 221 Cal. Rptr. 794, 710 P. 2d 861 (comment on possible commutation). C Quoting from the United States Supreme Court decision of Gregg v. Georgia (1976), 428 U.S. 153, 183, the prosecutor in this case told the jury during the penalty phase that “* * * capital punishment is an expression of society’s moral outrage at particularly offensive conduct. This function may be unappealing to many, but it is essential in an ordered society that asks its citizens to rely on legal processes rather than self-help to vindicate their wrongs.” The prosecutor then quoted from the concurring opinion of Justice Stewart in Furman v. Georgia (1972), 408 U.S. 238, 308, which states: “* * * The instinct for retribution is part of the nature of man, and channeling that instinct in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law. When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they ‘deserve,’ then there are sown the seeds of anarchy — of self-help, vigilante justice, and lynch law.” We have held that “[a] closing argument that goes beyond the record may constitute prejudicial error, * * * particularly where the remarks call for the jury to convict to meet a public demand.” State v. Moritz (1980), 63 Ohio St. 2d 150, 157, 17 O.O. 3d 92, 96-97, 407 N.E. 2d 1268, 1273. The above quotations, particularly the passage from the Gregg opinion, are being used more and more frequently by prosecutors in the penalty phase of capital cases, both in this state and elsewhere. This is a practice that I find improper. In Wilson v. Kemp (C.A. 11,1985), 777 F. 2d 621, the United States Court of Appeals analyzed the use of such a quotation during the penalty phase of a capital trial and found that such use, combined with other improper comments, constituted reversible error. In addressing the prosecution’s use of the very same Gregg excerpt quoted in this case, the court stated: “As used by the prosecutor, the Gregg passage conveys the impression that ‘this function’ — i.e., capital *138punishment — is ‘essential in an ordered society.’ By contrast, the Supreme Court’s intended meaning was quite different, as shown by a reading of the entire Gregg passage in context. The intended meaning was that recognition of the function of retribution is ‘essential in an ordered society.f’] * * * [0]ne need only read the relevant portion of the prosecutor’s closing argument to appreciate its message: the United States Supreme Court has stated that in its view, capital punishment is essential in an ordered society. The fact that many states and countries do not have capital punishment and yet enjoy ordered societies belies this conclusion, which in any event has never been expressed by the Supreme Court. * * * [A] review of the entire context of the Gregg opinion shows that this was not the Supreme Court’s intended meaning. Therefore, we conclude that the prosecutor’s misleading use of the passage was improper argument * * Id. at 625. In Ohio, the sentencing jury’s responsibilities are limited. At the penalty phase, the jury must first determine whether or not any mitigating factors have been established. Then the jury must weigh against the existing mitigating factors the aggravating circumstance^) of which it convicted the defendant at the guilt phase of the trial. If the aggravating circumstance^) outweigh the mitigating factors beyond a reasonable doubt, then the death penalty is required. Otherwise, the jury recommends a sentence of life, with either twenty or thirty years of actual incarceration prior to parole consideration. R.C. 2929.03(D). Thus, any opinion of the United States Supreme Court as to the desirability of the death penalty is completely irrelevant to the decision to be made by the jury. The only possible purpose for injection of the Gregg quotation is a thinly veiled attempt to advise the jury that the Supreme Court condones the death penalty as the proper response to a public demand for retribution. This, in my view, is constitutionally impermissible. Therefore, for the foregoing reasons, I must dissent with respect to the sentence imposed, but would uphold the jury’s finding of guilt. Sweeney and H. Brown, JJ., concur in the foregoing dissenting opinion.
Proverbs 17:9.
The evidence presented during the sentencing hearing established Bedford’s low intelligence quotient (seventy), his limited ability to read and write, his poor academic record, and his lack of a prior felony record. Expert testimony substantiated that Bedford was severely de*135pressed, very dependent on others, and that his emotional state was consistent with suicide, an act he apparently contemplated the evening before the murders. Indeed, Dr. Nancy Schmidtgoessling, a clinical psychologist, explained that a love interest’s rejection would be a crisis point for Bedford, although in her opinion his illness was treatable. In an unsworn statement, Bedford recounted his tragic life story which included the murder of his father and the early death of his mother. Bedford married at fifteen and the marriage produced six children, all of whom eventually went to live with their mother when she moved out to live with another man. In addition, Bedford had consistently abused alcohol. That the jury considered this evidence of great significance is supported by the questions it posed to the trial court. After almost twelve hours of deliberation, the jury inquired as to what would happen if it could not reach a unanimous verdict and how long it had to keep trying before a deadlock could be declared. These questions suggest that, without more, the jury could not have found these mitigating factors were outweighed by the aggravating circumstance beyond a reasonable doubt. | 07-21-2022 | [
"Wright, J., dissenting. At the risk of violating the Biblical proverb, that “* * * he that repeateth a matter separateth very friends,”5 I must respectfully dissent in this case. I For reasons that escape me, this court has been confronted with a veritable- flood of death penalty cases involving a pernicious pattern of prosecutorial misconduct. See, e.g., State v. Thompson (1987), 33 Ohio St. 3d 1, 514 N.E. 2d 407 (misconduct resulting in vacation of death sentence); State v. Williams (1988), 38 Ohio St. 3d 346, 359-360, 528 N.E. 2d 910, 924-925 (Sweeney, J., dissenting); State v. Esparza (1988), 39 Ohio St. 3d 8, 16, 529 N.E. 2d 192, 200 (H. Brown, J., dissenting; and State v. DePew (1988), 38 Ohio St. 3d 275, 293-299, 528 N.E. 2d 542, 560-566 (Wright, J., concurring in part and dissenting in part). One can only hope that these practices have abated as a result of the warnings contained in DePew, supra, at 288-289, 528 N.E.",
"2d at 556-557, and the deep concerns expressed by most, if not all, of the members of this court. I am hopeful that repeating my concerns will not detract from the impact of previous treatment of this subject. Nevertheless, with a man’s life at stake, I feel compelled to again write in dissent to censure a pervasive practice among far too many prosecutors — conduct that I find in direct conflict with the foundation of our system of criminal jurisprudence. I recognize that our system often places a prosecutor in the difficult position of being a vigorous advocate for guilt and punishment while at the same time that same prosecutor must be mindful of the accused’s right to a fair trial.",
"The prosecutor’s function “* * * is not to tack as many skins of victims as possible to the wall. His function is * * * to give those accused of crime a fair trial.” Donnelly v. DeChristoforo (1974), 416 U.S. 637, 648-649 (Douglas, J., dissenting). See, also, EC 7-13 of the Code of Professional Responsibility- In my view, the prosecutor in this case failed to maintain this crucial balance. The concern of improper prosecutorial influence upon a jury is particularly acute in the penalty phase of a capital case, especially where it tends to rebut a substantial amount of mitigation, as was the case here.6 “[I]t is most important that the sentencing *135phase of the [capital] trial not be influenced by passion, prejudice, or any other arbitrary factor.",
"* * * With a man’s life at stake, a prosecutor should not play on the passions of the jury.” Hance v. Zant (C.A. 11, 1983), 696 F. 2d 940, 951, certiorari denied (1983), 463 U.S. 1210. For the reasons noted below, I believe the facts here belie a finding beyond a reasonable doubt that the jury would have recommended the death penalty absent the improper arguments by the prosecution. As a result, I believe appellant was denied fundamental due process and a fair trial pursuant to the Fifth and Fourteenth Amendments to the United States Constitution. II Improper conduct by the prosecutor during the penalty phase of this case falls into three main categories.",
"Examples of this conduct are discussed below. The cumulative effect of this misconduct dictates a remand to the trial court for resentencing. “Any egregious error in the penalty phase of a death penalty proceeding, including prosecutorial misconduct, will be cause to vacate the sentence of death with a subsequent remand to the trial court for a new sentencing procedure pursuant to R.C. 2929.06.” Thompson, supra, at syllabus. ■ A In his argument at the penalty phase, the prosecutor showed the jury photographs that were previously admitted during the guilt phase and improperly commented upon them. Before the prosecutor readmitted the photographs at this stage, he told the jury that: “Whatever Mr. Bedford experienced, whatever he was feeling is not grounds to take two people’s lives; and I’m going to show you the photographs in the case.",
"You’ve already seen them, but I’ll remind you of them because this is what the whole case is about; this is the reason we are here, okay? This is [sic] the aggravating circumstances, this is the course of conduct which brought us all here together * * (Emphasis added.) In State v. Thompson, supra, this court vacated a death sentence and remanded for resentencing for prosecutorial misconduct less severe than that found in this case. In Thompson, during the guilt phase of a capital case, the prosecutor presented gruesome photographic slides to illustrate expert testimony. Later, during argument in the penalty stage, the prosecutor *136referred to these slides but did not show them again. This court stated that introduction of the slides during the guilt phase was harmless error, but held that the subsequent reference to them during the penalty phase was prejudicial.",
"“Although the prosecutor did not actually show the slides again, his entreaty that the jury should remember the slides could have had no other effect than to cause the jurors to re-experience the horror and outrage they must have felt upon viewing the slides earlier in the trial. * * *” Thompson, supra, at 15, 514 N.E. 2d at 420. In the instant case, not only did the prosecutor refer to the gruesome photographs that were presented during the guilt phase, but he actually resubmitted the photos to the jury during the penalty phase. These photographs, including color close-ups, show Smith lying with his head in a pool of blood on the porch.",
"In addition, several photographs show Toepfert’s body lying inside the apartment with a portion of her bowels protruding. It does not take much imagination to appreciate the revulsion the jury must have felt when these photographs were again presented to it. Therefore, if the tactics used by the prosecutor in Thompson were prejudicial, then surely the tactics used by the prosecutor in this case warrant vacation of the death sentence and a remand for resentencing pursuant to R.C. 2929.06. Finally and most importantly, in State v. Davis (1988), 38 Ohio St. 3d 361, 367-373, 528 N.E. 2d 925, 931-936, Justice Locher correctly pointed out that only those aggravating circumstances specifically enumerated in R.C. 2929.04(A) may be considered in imposing the death penalty. In Davis, we remanded the case to the trial court because the three-judge panel weighed aggravating circumstances that were outside the statute. “ ‘This weighing process is designed to guide the sentencing authority’s discretion by focusing on the “circumstances of the capital offense and the individual offender * * *,” thus reducing the arbitrary and capricious imposition of death sentences.",
"* * * Like all penalty provisions, R.C. 2929.04(B) must “* * * be strictly construed against the state, and liberally construed in favor of the accused.” R.C. 2901.04(A).’ ” Id. at 369, 528 N.E. 2d at 933, quoting State v. Penix (1987), 32 Ohio St. 3d 369, 371, 513 N.E. 2d 744, 746-747. See, also, Esparza, supra, at 16, 529 N.E. 2d at 200 (Locher, J., concurring). The presentation of the photographs during the penalty phase and the prosecutor’s related statement that “this is [sic] the aggravating circumstances, this is the course of conduct which brought us all here together” are precisely the types of nonstatutory circumstances that Dams proscribes.",
"-Therefore, it is obvious that this jury could not help but weigh the “nature and circumstances” of the offense, which is clearly improper. See Esparza, supra, at 16, 529 N.E. 2d at 200 (Locher, J., concurring). The prosecutorial misconduct in introducing these nonstatutory aggravating circumstances to the jury during its weighing process was prejudicial to the defendant in that it allowed the jury to arbitrarily and capriciously impose the death penalty. B The prosecutor misled the jury when he improperly argued that the statutory minimum sentences under a life verdict failed to assure that appellant would not be released before that sentence was served. The prosecutor told the jury: “The law says that the parole eligi*137bility is 30 years and the parole eligibility is 20 years, and that’s the way it is today; but you don’t know how it’s going to be a year from now, two years from now, three years from now.",
"The prosecutor was speculating that the present law may somehow be amended so that appellant could receive parole to shorten his sentence. As I recently stated in DePew, supra, at 297, 528 N.E. 2d at 564 (Wright, J., concurring in part and dissenting in part), such speculation is improper since early parole, as suggested by the prosecutor, is impossible under present law. In addition, the possibility of parole is outside the province of the jury. See California v. Ramos (1983), 463 U.S. 992, 1026, fn. 13 (Marshall, J., dissenting). In Farris v. State (Tenn. 1976), 535 S.W. 2d 608, 614, the Tennessee Supreme Court stated that jurors should not be informed about the possibility of parole because “* * * jurors tend to attempt to compensate for future clemency by imposing harsher sentences.” Similarly, in the present case, appellant was prejudiced beyond doubt because the jurors may have imposed a harsher sentence because of the prosecutor’s comments.",
"See, also, People v. Brisbon (1985), 106 Ill. 2d 342, 478 N.E. 2d 402 (reference to possibility of early parole); and People v. Davenport (1985), 41 Cal. 3d 247, 221 Cal. Rptr. 794, 710 P. 2d 861 (comment on possible commutation). C Quoting from the United States Supreme Court decision of Gregg v. Georgia (1976), 428 U.S. 153, 183, the prosecutor in this case told the jury during the penalty phase that “* * * capital punishment is an expression of society’s moral outrage at particularly offensive conduct. This function may be unappealing to many, but it is essential in an ordered society that asks its citizens to rely on legal processes rather than self-help to vindicate their wrongs.” The prosecutor then quoted from the concurring opinion of Justice Stewart in Furman v. Georgia (1972), 408 U.S. 238, 308, which states: “* * * The instinct for retribution is part of the nature of man, and channeling that instinct in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law. When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they ‘deserve,’ then there are sown the seeds of anarchy — of self-help, vigilante justice, and lynch law.” We have held that “[a] closing argument that goes beyond the record may constitute prejudicial error, * * * particularly where the remarks call for the jury to convict to meet a public demand.” State v. Moritz (1980), 63 Ohio St. 2d 150, 157, 17 O.O.",
"3d 92, 96-97, 407 N.E. 2d 1268, 1273. The above quotations, particularly the passage from the Gregg opinion, are being used more and more frequently by prosecutors in the penalty phase of capital cases, both in this state and elsewhere. This is a practice that I find improper. In Wilson v. Kemp (C.A. 11,1985), 777 F. 2d 621, the United States Court of Appeals analyzed the use of such a quotation during the penalty phase of a capital trial and found that such use, combined with other improper comments, constituted reversible error. In addressing the prosecution’s use of the very same Gregg excerpt quoted in this case, the court stated: “As used by the prosecutor, the Gregg passage conveys the impression that ‘this function’ — i.e., capital *138punishment — is ‘essential in an ordered society.’ By contrast, the Supreme Court’s intended meaning was quite different, as shown by a reading of the entire Gregg passage in context. The intended meaning was that recognition of the function of retribution is ‘essential in an ordered society.f’] * * * [0]ne need only read the relevant portion of the prosecutor’s closing argument to appreciate its message: the United States Supreme Court has stated that in its view, capital punishment is essential in an ordered society. The fact that many states and countries do not have capital punishment and yet enjoy ordered societies belies this conclusion, which in any event has never been expressed by the Supreme Court.",
"* * * [A] review of the entire context of the Gregg opinion shows that this was not the Supreme Court’s intended meaning. Therefore, we conclude that the prosecutor’s misleading use of the passage was improper argument * * Id. at 625. In Ohio, the sentencing jury’s responsibilities are limited. At the penalty phase, the jury must first determine whether or not any mitigating factors have been established. Then the jury must weigh against the existing mitigating factors the aggravating circumstance^) of which it convicted the defendant at the guilt phase of the trial. If the aggravating circumstance^) outweigh the mitigating factors beyond a reasonable doubt, then the death penalty is required. Otherwise, the jury recommends a sentence of life, with either twenty or thirty years of actual incarceration prior to parole consideration. R.C. 2929.03(D). Thus, any opinion of the United States Supreme Court as to the desirability of the death penalty is completely irrelevant to the decision to be made by the jury.",
"The only possible purpose for injection of the Gregg quotation is a thinly veiled attempt to advise the jury that the Supreme Court condones the death penalty as the proper response to a public demand for retribution. This, in my view, is constitutionally impermissible. Therefore, for the foregoing reasons, I must dissent with respect to the sentence imposed, but would uphold the jury’s finding of guilt. Sweeney and H. Brown, JJ., concur in the foregoing dissenting opinion. Proverbs 17:9.",
"The evidence presented during the sentencing hearing established Bedford’s low intelligence quotient (seventy), his limited ability to read and write, his poor academic record, and his lack of a prior felony record. Expert testimony substantiated that Bedford was severely de*135pressed, very dependent on others, and that his emotional state was consistent with suicide, an act he apparently contemplated the evening before the murders. Indeed, Dr. Nancy Schmidtgoessling, a clinical psychologist, explained that a love interest’s rejection would be a crisis point for Bedford, although in her opinion his illness was treatable. In an unsworn statement, Bedford recounted his tragic life story which included the murder of his father and the early death of his mother. Bedford married at fifteen and the marriage produced six children, all of whom eventually went to live with their mother when she moved out to live with another man.",
"In addition, Bedford had consistently abused alcohol. That the jury considered this evidence of great significance is supported by the questions it posed to the trial court. After almost twelve hours of deliberation, the jury inquired as to what would happen if it could not reach a unanimous verdict and how long it had to keep trying before a deadlock could be declared. These questions suggest that, without more, the jury could not have found these mitigating factors were outweighed by the aggravating circumstance beyond a reasonable doubt."
]
| https://www.courtlistener.com/api/rest/v3/opinions/6760876/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
* Writ of error granted. The United States of America prosecutes this writ of error from a judgment of the district court of Dallas county. The cost bond upon the writ of error is in due form. The plaintiff in error's signature to the bond was affixed "By A. M. Mood, Assistant United States District Attorney." Defendant in error moves to dismiss for want of a sufficient bond; the ground of the motion being that there is no act of Congress granting authority to an assistant United States district attorney to execute such a bond and thereby bind the United States on the same. It has been often held that a bond upon writ of error or appeal is good though signed by the sureties only. Some of the cases so holding are Shelton v. Wade, 4 Tex. 148, 51 Am.Dec. 722; Bridges v. Cundiff, 45 Tex. 437; Palmer v. Spandenberg (Tex.Civ.App.) 108 S.W. 477; and Duller v. McNeill (Tex.Civ.App.)161 S.W. 45. Since plaintiff in error's signature to the bond is not necessary, it follows that it is immaterial whether the assistant United States district attorney was authorized to affix its signature to such bond. The motion is overruled. This proceeding originated in the probate court. The controversy is over the proper distribution of a fund belonging to the estate of George H. Rose, a deceased soldier. The fund is the proceeds of a war risk insurance policy. The judgment awarded the fund to the defendant in error, the surviving wife of the deceased. Briefly stated, the pleading of the plaintiff in error alleges the following: George H. Rose was a soldier during the World War, and his mother was the designated beneficiary of the policy. On October 15, 1918, Rose died intestate. The monthly installments payable upon the policy were paid to the mother until her death. Thereafter plaintiff in error made payments totaling $4,485 to two sisters of the deceased soldier under the belief and upon the representation that they were the only heirs at law of the soldier. Thereafter defendant in error, Bennie Lee Rose, filed claim against the government for all the proceeds of the insurance *Page 351 policy and thereafter qualified as administratrix of the estate of the soldier and as such sued plaintiff in error in the United States District Court and obtained judgment for $8,602, which sum is now in her hands as administratrix. In said suit plaintiff in error recovered judgment against the two sisters for the sums previously paid to them and said sisters have assigned to plaintiff in error their interest in the estate of the deceased soldier. At the time of his death, the soldier was a resident of Oklahoma, and left surviving him his mother and said two sisters as his only heirs. The mother died intestate on June 20, 1922, leaving as her only heirs the plaintiff in error's assignors. That under the laws of the United States and Oklahoma the surviving sisters of Gee. H. Rose are entitled to one-half of the fund in the hands of the administratrix. That under the law of Oklahoma the surviving wife of Rose was entitled to one-half of the fund and the other one-half would descend to and vest in the assignors of plaintiff in error as the heirs of the mother. The prayer was that the administratrix be required to pay one-half of the fund to plaintiff in error. The pleadings of defendant set up that the policy was issued to Rose while he was married to her, the premiums paid by him during coverture out of his monthly pay as a soldier, and she claimed the entire fund as the surviving wife under the law of Oklahoma. In Singleton v. Cheek, 284 U.S. 493, 52 S. Ct. 41, 76 L. Ed. 419, 81 A.L.R. 923, the court, in referring to the Act of March 4, 1925, § 14, amending section 303 of the World War Veterans' Act of 1924 (38 USCA § 514), said: "By that amendment, the rule, which, upon the happening of the contingencies named in the prior acts, limited the benefit of the unpaid installments to persons within the designated class of permittees, was abandoned, and `the estate of the insured' was wholly substituted as the payee. All installments, whether accruing before the death of the insured or after the death of the beneficiary named in the certificate of insurance, as a result, became assets of the estate of the insured as of the instant of his death, to be distributed to the heirs of the insured in accordance with the intestacy laws of the state of his residence, such heirs to be determined as of the date of his death, and not as of the date of the death of the beneficiary. The state courts, with almost entire unanimity, have reached the same conclusion." See, also, Battaglia v. Battaglia (Tex.Civ.App.) 290 S.W. 296, and Turner v. Thomas (Tex.Civ.App.) 30 S.W.2d 558. It is thus apparent from the pleadings that the question presented is controlled by the law of descent and distribution of the state of Oklahoma. The courts of this state cannot take judicial notice of the law of Oklahoma. Such law must be pleaded and proven as facts. This is elementary. There appears in the clerk's transcript a stipulation signed by counsel, dated August 17, 1931, and filed prior to the trial. This stipulation agrees to certain facts. Another agreement appears in the transcript filed some time subsequent to the trial. This agreement recites: That the stipulation filed "on August 17th, 1931, is a full, true and correct statement of the facts adduced on the trial of this cause and constitutes a statement of all the material facts in this proceeding in error to the honorable Court of Civil Appeals for the Fifth Supreme Judicial District of Texas, sitting at Dallas, Texas, with the following additions: "That article 8418 of the Revised Laws of Oklahoma of 1910 was introduced in evidence as the Law of Oklahoma, which article is as follows: "`8418. Descent and Distribution. When any person having title to any estate not otherwise limited by marriage contract, dies without disposing of the estate by will, it descends and must be distributed in the following manner: * * * "`Second. If the decedent leave no issue, the estate goes one-half to the surviving husband or wife, and the remaining one-half to the decedent's father or mother, or, if he leave both father and mother, to them in equal shares; but if there be no father or mother, then said remaining one-half goes, in equal shares, to the brothers and sisters of the deceased, and to the children of any deceased brother or sister, by right of representation. If decedent leaves no issue, nor husband nor wife, the estate must go to the father or mother, or if he leave both father and mother, to them in equal shares: Provided, that in all cases where the property is acquired by the joint industry of husband and wife, during coverture, and there is no issue, the whole estate shall go to the survivor, at whose death, if any of the said property remain, one-half of such property shall go to the heirs of the husband and one-half to the heirs of the wife, according to the right of representation. * * *' "And that the defendant in error, Bennie Lee Rose, testified in substance and effect as follows: "That she married George H. Rose in Oklahoma prior to the time he enlisted in the United States Army and that up to the date that he was inducted into the military service, she lived with him continuously as his wife and faithfully performed all the duties of a wife, and that when he was inducted into the military service, she remained in Oklahoma at the place of their residence and looked *Page 352 after the family affairs and their joint interests and industry and the household of herself and her husband. That she knitted him various articles to be used in military life and sent them to him in camp. That she wrote him letters and received letters from him while he was in camp, continuously from the date he was inducted into the service up to the time of his death. That she sent him boxes of candy and other eatables. That at the time of his sudden death, she was preparing to visit him at his camp, which was requested of her by her said husband." This last-mentioned agreement is also signed by counsel for the respective parties, but does not bear the approval and signature of the trial judge. Article 2243, R.S., requires that the statement of facts be submitted to the judge "who shall, if he finds it correct, approve and sign it." The consideration and approval of a statement of facts is a judicial act. Stephenson v. Nichols (Tex.Com.App.) 286 S.W. 197; Gray v. Frontroy,40 Tex. Civ. App. 302, 89 S.W. 1090. The statutory provisions requiring such approval and signature by the trial judge are mandatory (Rea v. Fields [Tex. Civ. App.] 172 S.W. 191), essential to its validity, and omission thereof precludes consideration of the statement. Johnson v. Blount, 48 Tex. 38; McCaskey Register Co. v. Mann (Tex.Civ.App.) 283 S.W. 544; Love v. Spencer (Tex.Civ.App.)273 S.W. 883; Argo v. Gulf, C. S. F. Railway Co. (Tex.Civ.App.)265 S.W. 1065; Texas E. Ry. Co. v. Gonzales (Tex.Civ.App.) 211 S.W. 347; Texas P. C. Co. v. Lumparoff (Tex.Civ.App.) 204 S.W. 366; Lingo Lumber Co. v. Garvin (Tex.Civ.App.) 181 S.W. 561; San Antonio, U. G. Ry. Co. v. Yarbrough (Tex.Civ.App.) 179 S.W. 523; Rea v. Fields (Tex.Civ.App.) 172 S.W. 191; Rivers v. Campbell, 51 Tex. Civ. App. 103,111 S.W. 190; Rice v. Reese (Tex.Civ.App.) 110 S.W. 502; Motl v. Stephens, 49 Tex. Civ. App. 8, 108 S.W. 1018; Brown v. Orange County,48 Tex. Civ. App. 470, 107 S.W. 607. And this is true, though it is agreed to and signed by counsel for all parties. Dickey's Estate v. Houston, etc. (Tex.Civ.App.) 300 S.W. 250; Goodner Wholesale Grocery Co. v. People's, etc. (Tex.Civ.App.) 283 S.W. 1092; Magee v. Magee (Tex.Civ.App.) 272 S.W. 252; Amonette v. Taylor (Tex.Civ.App.)244 S.W. 238, 239; First Nat. Bank v. Henwood (Tex.Civ.App.) 183 S.W. 5; and many other cases which might be cited. The statement of facts in this case is not signed by the trial judge, and it cannot properly be considered. In the absence of such a statement, it must be assumed by this court that the evidence as to the law of Oklahoma and other pertinent evidence adduced upon the trial supports the judgment rendered. This ruling necessitates affirmance, but this court is always reluctant to dispose of an appeal upon technical grounds, and for that reason we have read the agreements of counsel above referred to and are of the opinion that, if the facts were properly before us for consideration, the judgment should be nevertheless affirmed. Plaintiff in error asserts that under and by force of the federal statutes the fund is the separate and exclusive estate of the deceased soldier, and one-half thereof passed to the mother through whom plaintiff in error claims as assignee of the daughters and heirs of the deceased mother. But there is nothing in the acts of Congress cited by plaintiff in error which deal with that subject, and it is clear that under Singleton v. Cheek, supra, the question is controlled by the law of Oklahoma. The defendant in error, as the surviving wife, under the law of Oklahoma, is entitled to all of the fund in controversy if it can be considered as property "acquired by the joint industry of husband and wife." (St. 1931, § 1617). The premiums upon the policy were paid by deductions made from the soldier's pay. The wife stayed at their home, looked after the family affairs, their joint interests, and the household, knitted for the soldier and sent him eatables, all of which is more fully shown in the above quotation from the second agreement signed by counsel. Under the rulings of the Oklahoma courts, we think that clearly the fund in controversy is to be considered as "acquired by the joint industry of husband and wife," and all of the estate was properly awarded to the defendant in error. In re Stone's Estate, 86 Okla. 33, 206 P. 246,248; Flowers v. Flowers, 117 Okla. 209, 245 P. 622. In construing the phrase "joint industry" in the Stone Case, the court said: "We think it has but one interpretation, that is, the industry of a husband and wife, each in his or her recognized sphere of marital activity, and that an attempt to force the interpretation asked by counsel for plaintiff in error `that the industry or labor must be identical and in the same course of employment and endeavor' would be to circumvent and abort the natural and socially contemplated marriage relation." In this connection we also refer to United States v. Robinson (C.C.A.) 40 F.2d 14, where the court held that the proceeds of a war risk insurance policy were not the separate estate of the insured, but community property under the Louisiana law. Affirmed. *Page 353 | 07-06-2016 | [
"* Writ of error granted. The United States of America prosecutes this writ of error from a judgment of the district court of Dallas county. The cost bond upon the writ of error is in due form. The plaintiff in error's signature to the bond was affixed \"By A. M. Mood, Assistant United States District Attorney.\" Defendant in error moves to dismiss for want of a sufficient bond; the ground of the motion being that there is no act of Congress granting authority to an assistant United States district attorney to execute such a bond and thereby bind the United States on the same. It has been often held that a bond upon writ of error or appeal is good though signed by the sureties only. Some of the cases so holding are Shelton v. Wade, 4 Tex.",
"148, 51 Am.Dec. 722; Bridges v. Cundiff, 45 Tex. 437; Palmer v. Spandenberg (Tex.Civ.App.) 108 S.W. 477; and Duller v. McNeill (Tex.Civ.App. )161 S.W. 45. Since plaintiff in error's signature to the bond is not necessary, it follows that it is immaterial whether the assistant United States district attorney was authorized to affix its signature to such bond. The motion is overruled. This proceeding originated in the probate court. The controversy is over the proper distribution of a fund belonging to the estate of George H. Rose, a deceased soldier. The fund is the proceeds of a war risk insurance policy. The judgment awarded the fund to the defendant in error, the surviving wife of the deceased. Briefly stated, the pleading of the plaintiff in error alleges the following: George H. Rose was a soldier during the World War, and his mother was the designated beneficiary of the policy. On October 15, 1918, Rose died intestate. The monthly installments payable upon the policy were paid to the mother until her death.",
"Thereafter plaintiff in error made payments totaling $4,485 to two sisters of the deceased soldier under the belief and upon the representation that they were the only heirs at law of the soldier. Thereafter defendant in error, Bennie Lee Rose, filed claim against the government for all the proceeds of the insurance *Page 351 policy and thereafter qualified as administratrix of the estate of the soldier and as such sued plaintiff in error in the United States District Court and obtained judgment for $8,602, which sum is now in her hands as administratrix. In said suit plaintiff in error recovered judgment against the two sisters for the sums previously paid to them and said sisters have assigned to plaintiff in error their interest in the estate of the deceased soldier.",
"At the time of his death, the soldier was a resident of Oklahoma, and left surviving him his mother and said two sisters as his only heirs. The mother died intestate on June 20, 1922, leaving as her only heirs the plaintiff in error's assignors. That under the laws of the United States and Oklahoma the surviving sisters of Gee. H. Rose are entitled to one-half of the fund in the hands of the administratrix. That under the law of Oklahoma the surviving wife of Rose was entitled to one-half of the fund and the other one-half would descend to and vest in the assignors of plaintiff in error as the heirs of the mother.",
"The prayer was that the administratrix be required to pay one-half of the fund to plaintiff in error. The pleadings of defendant set up that the policy was issued to Rose while he was married to her, the premiums paid by him during coverture out of his monthly pay as a soldier, and she claimed the entire fund as the surviving wife under the law of Oklahoma. In Singleton v. Cheek, 284 U.S. 493, 52 S. Ct. 41, 76 L. Ed. 419, 81 A.L.R. 923, the court, in referring to the Act of March 4, 1925, § 14, amending section 303 of the World War Veterans' Act of 1924 (38 USCA § 514), said: \"By that amendment, the rule, which, upon the happening of the contingencies named in the prior acts, limited the benefit of the unpaid installments to persons within the designated class of permittees, was abandoned, and `the estate of the insured' was wholly substituted as the payee. All installments, whether accruing before the death of the insured or after the death of the beneficiary named in the certificate of insurance, as a result, became assets of the estate of the insured as of the instant of his death, to be distributed to the heirs of the insured in accordance with the intestacy laws of the state of his residence, such heirs to be determined as of the date of his death, and not as of the date of the death of the beneficiary. The state courts, with almost entire unanimity, have reached the same conclusion.\"",
"See, also, Battaglia v. Battaglia (Tex.Civ.App.) 290 S.W. 296, and Turner v. Thomas (Tex.Civ.App.) 30 S.W.2d 558. It is thus apparent from the pleadings that the question presented is controlled by the law of descent and distribution of the state of Oklahoma. The courts of this state cannot take judicial notice of the law of Oklahoma. Such law must be pleaded and proven as facts. This is elementary. There appears in the clerk's transcript a stipulation signed by counsel, dated August 17, 1931, and filed prior to the trial. This stipulation agrees to certain facts. Another agreement appears in the transcript filed some time subsequent to the trial. This agreement recites: That the stipulation filed \"on August 17th, 1931, is a full, true and correct statement of the facts adduced on the trial of this cause and constitutes a statement of all the material facts in this proceeding in error to the honorable Court of Civil Appeals for the Fifth Supreme Judicial District of Texas, sitting at Dallas, Texas, with the following additions: \"That article 8418 of the Revised Laws of Oklahoma of 1910 was introduced in evidence as the Law of Oklahoma, which article is as follows: \"`8418.",
"Descent and Distribution. When any person having title to any estate not otherwise limited by marriage contract, dies without disposing of the estate by will, it descends and must be distributed in the following manner: * * * \"`Second. If the decedent leave no issue, the estate goes one-half to the surviving husband or wife, and the remaining one-half to the decedent's father or mother, or, if he leave both father and mother, to them in equal shares; but if there be no father or mother, then said remaining one-half goes, in equal shares, to the brothers and sisters of the deceased, and to the children of any deceased brother or sister, by right of representation. If decedent leaves no issue, nor husband nor wife, the estate must go to the father or mother, or if he leave both father and mother, to them in equal shares: Provided, that in all cases where the property is acquired by the joint industry of husband and wife, during coverture, and there is no issue, the whole estate shall go to the survivor, at whose death, if any of the said property remain, one-half of such property shall go to the heirs of the husband and one-half to the heirs of the wife, according to the right of representation.",
"* * *' \"And that the defendant in error, Bennie Lee Rose, testified in substance and effect as follows: \"That she married George H. Rose in Oklahoma prior to the time he enlisted in the United States Army and that up to the date that he was inducted into the military service, she lived with him continuously as his wife and faithfully performed all the duties of a wife, and that when he was inducted into the military service, she remained in Oklahoma at the place of their residence and looked *Page 352 after the family affairs and their joint interests and industry and the household of herself and her husband.",
"That she knitted him various articles to be used in military life and sent them to him in camp. That she wrote him letters and received letters from him while he was in camp, continuously from the date he was inducted into the service up to the time of his death. That she sent him boxes of candy and other eatables. That at the time of his sudden death, she was preparing to visit him at his camp, which was requested of her by her said husband.\" This last-mentioned agreement is also signed by counsel for the respective parties, but does not bear the approval and signature of the trial judge. Article 2243, R.S., requires that the statement of facts be submitted to the judge \"who shall, if he finds it correct, approve and sign it.\" The consideration and approval of a statement of facts is a judicial act. Stephenson v. Nichols (Tex.Com.App.) 286 S.W. 197; Gray v. Frontroy,40 Tex. Civ. App. 302, 89 S.W. 1090.",
"The statutory provisions requiring such approval and signature by the trial judge are mandatory (Rea v. Fields [Tex. Civ. App.] 172 S.W. 191), essential to its validity, and omission thereof precludes consideration of the statement. Johnson v. Blount, 48 Tex. 38; McCaskey Register Co. v. Mann (Tex.Civ.App.) 283 S.W. 544; Love v. Spencer (Tex.Civ.App. )273 S.W. 883; Argo v. Gulf, C. S. F. Railway Co. (Tex.Civ.App. )265 S.W. 1065; Texas E. Ry. Co. v. Gonzales (Tex.Civ.App.) 211 S.W. 347; Texas P. C. Co. v. Lumparoff (Tex.Civ.App.) 204 S.W. 366; Lingo Lumber Co. v. Garvin (Tex.Civ.App.) 181 S.W. 561; San Antonio, U. G. Ry. Co. v. Yarbrough (Tex.Civ.App.) 179 S.W. 523; Rea v. Fields (Tex.Civ.App.) 172 S.W. 191; Rivers v. Campbell, 51 Tex. Civ.",
"App. 103,111 S.W. 190; Rice v. Reese (Tex.Civ.App.) 110 S.W. 502; Motl v. Stephens, 49 Tex. Civ. App. 8, 108 S.W. 1018; Brown v. Orange County,48 Tex. Civ. App. 470, 107 S.W. 607. And this is true, though it is agreed to and signed by counsel for all parties. Dickey's Estate v. Houston, etc. (Tex.Civ.App.) 300 S.W. 250; Goodner Wholesale Grocery Co. v. People's, etc. (Tex.Civ.App.) 283 S.W. 1092; Magee v. Magee (Tex.Civ.App.) 272 S.W. 252; Amonette v. Taylor (Tex.Civ.App. )244 S.W. 238, 239; First Nat.",
"Bank v. Henwood (Tex.Civ.App.) 183 S.W. 5; and many other cases which might be cited. The statement of facts in this case is not signed by the trial judge, and it cannot properly be considered. In the absence of such a statement, it must be assumed by this court that the evidence as to the law of Oklahoma and other pertinent evidence adduced upon the trial supports the judgment rendered. This ruling necessitates affirmance, but this court is always reluctant to dispose of an appeal upon technical grounds, and for that reason we have read the agreements of counsel above referred to and are of the opinion that, if the facts were properly before us for consideration, the judgment should be nevertheless affirmed. Plaintiff in error asserts that under and by force of the federal statutes the fund is the separate and exclusive estate of the deceased soldier, and one-half thereof passed to the mother through whom plaintiff in error claims as assignee of the daughters and heirs of the deceased mother. But there is nothing in the acts of Congress cited by plaintiff in error which deal with that subject, and it is clear that under Singleton v. Cheek, supra, the question is controlled by the law of Oklahoma.",
"The defendant in error, as the surviving wife, under the law of Oklahoma, is entitled to all of the fund in controversy if it can be considered as property \"acquired by the joint industry of husband and wife.\" (St. 1931, § 1617). The premiums upon the policy were paid by deductions made from the soldier's pay. The wife stayed at their home, looked after the family affairs, their joint interests, and the household, knitted for the soldier and sent him eatables, all of which is more fully shown in the above quotation from the second agreement signed by counsel. Under the rulings of the Oklahoma courts, we think that clearly the fund in controversy is to be considered as \"acquired by the joint industry of husband and wife,\" and all of the estate was properly awarded to the defendant in error. In re Stone's Estate, 86 Okla. 33, 206 P. 246,248; Flowers v. Flowers, 117 Okla. 209, 245 P. 622. In construing the phrase \"joint industry\" in the Stone Case, the court said: \"We think it has but one interpretation, that is, the industry of a husband and wife, each in his or her recognized sphere of marital activity, and that an attempt to force the interpretation asked by counsel for plaintiff in error `that the industry or labor must be identical and in the same course of employment and endeavor' would be to circumvent and abort the natural and socially contemplated marriage relation.\"",
"In this connection we also refer to United States v. Robinson (C.C.A.) 40 F.2d 14, where the court held that the proceeds of a war risk insurance policy were not the separate estate of the insured, but community property under the Louisiana law. Affirmed. *Page 353"
]
| https://www.courtlistener.com/api/rest/v3/opinions/3912765/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Exhibit 10.1
EAGLE ROCK ENERGY PARTNERS LONG TERM INCENTIVE PLAN
(As Amended and Restated Effective September 17, 2010)
The Eagle Rock Energy Partners Long Term Incentive Plan (the “Plan”) is hereby amended and restated effective September 17, 2010 (the “Effective Date”), by Eagle Rock Energy G&P, LLC, a Delaware limited liability company (the “General Partner”), the general partner of Eagle Rock Energy GP, L.P., a Delaware limited partnership (“ERGP”), which is, in turn, the general partner of Eagle Rock Energy Partners, L.P., a Delaware limited partnership (the “Partnership”).
R E C I T A L S
WHEREAS, the Plan was adopted October 25, 2006 and was subsequently amended effective May 15, 2008 and February 4, 2009; and
WHEREAS, the General Partner desires to amend and restate the Plan to increase the number of Units available for issuance under the Plan, subject to approval by the unitholders of the Partnership, and to make certain other changes to the Plan; provided, that (i) the 1,000,000 Units originally available for issuance under the Plan shall be actually delivered pursuant to Awards under the Plan no later than October 25, 2016 and (ii) the 1,000,000 Units made available for issuance under the amendment to the Plan on May 15, 2008 shall be actually delivered pursuant to Awards under the Plan no later than May 15, 2018, in each case including any such Units that are withheld from an Award to satisfy tax withholding obligations or that are subject to an Award that is forfeited, cancelled, exercised or otherwise terminated or that expires without the actual delivery of Units and that become available for subsequent grants under the Plan.
NOW, THEREFORE, the Plan is hereby amended and restated in its entirety, effective as of the Effective Date.
Section 1. Purpose of the Plan. The Plan is intended to promote the interests of the General Partner, the Partnership and their Affiliates by providing to Employees, Consultants and Directors incentive compensation awards based on Units to encourage superior performance. The Plan is also contemplated to enhance the ability of the General Partner, the Partnership and their Affiliates to attract and retain the services of individuals who are essential for the growth and profitability of the Partnership and to encourage them to devote their best efforts to advancing the business of the Partnership.
Section 2. Definitions. As used in the Plan, the following terms shall have the meanings set forth below:
(a) “Affiliate” means, with respect to any Person, any other Person that directly or indirectly through one or more intermediaries controls, is controlled by or is under common control with, the Person in question. As used herein, the term “control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract or otherwise.
(b) “Award” means an Option, Unit Appreciation Right, Restricted Unit, Phantom Unit, Substitute Award, Unit Award or Other Unit Based Award granted under the Plan, and shall include any tandem DERs granted with respect to an Award.
--------------------------------------------------------------------------------
(c) “Award Agreement” means the written or electronic agreement by which an Award shall be evidenced.
(d) “Board” means the Board of Directors of the General Partner.
(e) “Change of Control” means, the occurrence of one of the following:
(i) the consummation of an agreement to acquire or a tender offer for beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) by any “person” or “group” (within the meaning of those terms as used in Sections 13(d) and 14(d)(2) of the Exchange Act) such that afterwards such person or group has 40% or more of either (A) the then outstanding common equity securities of the Partnership (the “Outstanding Equity”) or (B) the combined voting power of the then outstanding voting securities of the Partnership (the “Outstanding Voting Securities”); provided, however, that for purposes of this subclause (i), the following acquisitions shall not constitute a Change of Control: (1) any acquisition directly from the Partnership, (2) any acquisition by the Partnership, (3) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Partnership or any of its Affiliates, (4) any acquisition by any entity pursuant to a transaction that complies with clauses (A), (B) or (C) of subclause (iv) below, or (5) any acquisition by any member of the NGP Group unless, prior to such acquisition but following the Effective Date, the aggregate ownership of members of the NGP Group has been reduced to less than 20% of both the Outstanding Equity and the Outstanding Voting Securities; or
(ii) the acquisition of beneficial ownership by any person or group of 40% or more of the combined voting power of the then outstanding voting securities of ERGP and/or the General Partner (the “GP Outstanding Voting Securities”); provided, however, that for purposes of this subclause (ii), the following acquisitions shall not constitute a Change of Control: (A) any acquisition by the Partnership or any of its subsidiaries, (B) any transaction that is subject to subclause (iv) below, or (C) any acquisition of beneficial ownership of GP Outstanding Voting Securities solely by virtue of an acquisition of Outstanding Equity or Outstanding Voting Securities; or
(iii) the limited partners of the Partnership approve, in one or a series of transactions, a plan of complete liquidation of the Partnership; or
(iv) the consummation of a reorganization, merger or consolidation involving the Partnership or a sale or other disposition by the Partnership of all or substantially all of its assets or an acquisition of assets of another entity (a “Business Combination”), in each case, unless following such Business Combination: (A) the Outstanding Equity and Outstanding Voting Securities immediately prior to such Business Combination represent or are converted into or exchanged for securities that represent or are convertible into more than 50% of, respectively, the then outstanding equity securities and the combined voting power of the then outstanding voting securities, as the case may be, of the entity resulting from such Business Combination or the resulting public parent thereof (including, without limitation, any entity that as a result of such transaction owns the Partnership, or all or substantially all of the assets of the Partnership either directly or through one or more subsidiaries), as the case may be, (B) no Person (excluding any employee benefit plan (or related trust) of the Partnership or the entity resulting from the Business Combination or the resulting public parent thereof, as the case may be) beneficially owns, directly or indirectly, 20% or more of, respectively, the then outstanding equity securities of the entity resulting from such Business Combination or the resulting public parent thereof, as the case may
2
--------------------------------------------------------------------------------
be, or the combined voting power of the then outstanding voting securities of such entity, except to the extent that such ownership existed with respect to the Partnership prior to the Business Combination, and (C) at least a majority of the members of the board of directors or similar governing entity of the entity resulting from such Business Combination or the resulting public parent thereof, as the case may be, were members of the Incumbent Board at the time of the execution of the initial agreement, or of the action of the Board, providing for such Business Combination; provided, however, that clauses (A), (B) and (C) of this subclause (iv) shall not apply if the entity resulting from the Business Combination or the resulting public parent thereof, as the case may be, is a limited partnership unless 100% of the combined voting power of the voting securities of the general partner thereof is owned, directly or indirectly, by such limited partnership; or
(v) individuals who constitute the Incumbent Board cease for any reason to constitute at least a majority of the Board.
(f) “Code” means the Internal Revenue Code of 1986, as amended from time to time.
(g) “Committee” means the Board, the Compensation Committee of the Board or such other committee as may be appointed by the Board to administer the Plan.
(h) “Consultant” means an individual who renders consulting or advisory services to the General Partner or an Affiliate thereof, other than a member of the NGP Group.
(i) “DER” means a distribution equivalent right, being a contingent right, granted in tandem with a specific Award (other than a Restricted Unit or Unit Award), to receive with respect to each Unit subject to the Award an amount in cash equal to the cash distributions made by the Partnership with respect to a Unit during the period such Award is outstanding.
(j) “Director” means a member of the Board or the board of an Affiliate of the General Partner who is not an Employee or a Consultant (other than in that individual’s capacity as a Director).
(k) “Employee” means an employee of the General Partner or an Affiliate of the General Partner, other than a member of the NGP Group.
(l) “Exchange Act” means the Securities Exchange Act of 1934, as amended.
(m) “Fair Market Value” means, on any relevant date, the closing sales price of a Unit on the principal national securities exchange or other market in which trading in Units occurs on the last market trading day prior to the applicable day (or, if there is no trading in the Units on such date, on the next preceding day on which there was trading) as reported in The Wall Street Journal (or other reporting service approved by the Committee). If Units are not traded on a national securities exchange or other market at the time a determination of Fair Market Value is required to be made hereunder, the determination of Fair Market Value shall be made by the Committee in good faith using a “reasonable application of a reasonable valuation method” within the meaning of Treasury Regulation Section 1.409A-l(b)(5)(iv)(B).
(n) “Incumbent Board” means the portion of the Board constituted of the individuals who are members of the Board as of the date this Plan is effective and any other individual who becomes a director of the Company after such date and who is either (i) an
3
--------------------------------------------------------------------------------
Appointed Director (as such term is defined in the Partnership Agreement), (ii) a Management Director (as such term is defined in the Partnership Agreement), or (iii) an Elected Director (as such term is defined in the Partnership Agreement) who was nominated to serve on the Board by a vote of at least a majority of the Elected Directors then serving on the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a person other than the Incumbent Board.
(o) “NGP Group” shall mean Natural Gas Partners VII, L.P., Natural Gas Partners VIII, L.P., Natural Gas Partners, L.L.C. d/b/a NGP Energy Capital Management, and their respective Affiliates (other than the Partnership, the General Partner, ERGP and their respective subsidiaries) and their Affiliate’s respective directors, officers, shareholders, members, managers, representatives of management committees and employees (and members of their respective families and trusts for the primary benefit of such family members).
(p) “Option” means an option to purchase Units granted under the Plan.
(q) “Other Unit Based Awards” means Awards granted to an Employee, Director or Consultant pursuant to Section 6(e) hereof.
(r) “Participant” means an Employee, Consultant or Director granted an Award under the Plan.
(s) “Partnership Agreement” means the Agreement of Limited Partnership of the Partnership, as it may be amended or amended and restated from time to time.
(t) “Person” means an individual or a corporation, limited liability company, partnership, joint venture, trust, unincorporated organization, association, governmental agency or political subdivision thereof or other entity.
(u) “Phantom Unit” means a notional Unit granted under the Plan which upon vesting entitles the Participant to receive a Unit or an amount of cash equal to the Fair Market Value of a Unit, as determined by the Committee in its discretion.
(v) “Restricted Period” means the period established by the Committee with respect to an Award during which the Award remains subject to forfeiture and is either not exercisable by or payable to the Participant, as the case may be.
(w) “Restricted Unit” means a Unit granted under the Plan that is subject to a Restricted Period.
(x) “Rule 16b-3” means Rule 16b-3 promulgated by the SEC under the Exchange Act or any successor rule or regulation thereto as in effect from time to time.
(y) “SEC” means the Securities and Exchange Commission, or any successor thereto.
(z) “Substitute Award” means an award granted pursuant to Section 6(g) of the Plan.
4
--------------------------------------------------------------------------------
(aa) “UDR” means a distribution made by the Partnership with respect to a Restricted Unit.
(bb) “Unit” means a Common Unit of the Partnership.
(cc) “Unit Appreciation Right” means a contingent right granted to an Employee, Director or Consultant pursuant to Section 6(b) that entitles the holder to receive, in cash or Units, as determined by the Committee in its sole discretion, an amount equal to the excess of the Fair Market Value of a Unit on the exercise date of the Unit Appreciation Right (or another specified date) over the exercise price of the Unit Appreciation Right.
(dd) “Unit Award” means an award granted pursuant to Section 6(d) of the Plan.
Section 3. Administration.
(a) Authority of the Committee. The Plan shall be administered by the Committee. A majority of the Committee shall constitute a quorum, and the acts of the members of the Committee who are present at any meeting thereof at which a quorum is present, or acts unanimously approved by the members of the Committee in writing, shall be the acts of the Committee. Subject to the following and any applicable law, the Committee, in its sole discretion, may delegate any or all of its powers and duties under the Plan, including the power to grant Awards under the Plan, to the Chief Executive Officer of the General Partner, subject to such limitations on such delegated powers and duties as the Committee may impose, if any. Upon any such delegation all references in the Plan to the “Committee”, other than in Section 7, shall be deemed to include the Chief Executive Officer. Any such delegation shall not limit the Chief Executive Officer’s right to receive Awards under the Plan; provided, however, the Chief Executive Officer may not grant Awards to himself, a Director or any executive officer of the General Partner or an Affiliate, or take any action with respect to any Award previously granted to himself, a person who is an executive officer or a Director. Subject to the terms of the Plan and applicable law, and in addition to other express powers and authorizations conferred on the Committee by the Plan, the Committee shall have full power and authority to: (i) designate Participants; (ii) determine the type or types of Awards to be granted to a Participant; (iii) determine the number of Units to be covered by Awards; (iv) determine the terms and conditions of any Award; (v) determine whether, to what extent, and under what circumstances Awards may be settled, exercised, canceled, or forfeited; (vi) interpret and administer the Plan and any instrument or agreement relating to an Award made under the Plan; (vii) establish, amend, suspend, or waive such rules and regulations and appoint such agents as it shall deem appropriate for the proper administration of the Plan; and (viii) make any other determination and take any other action that the Committee deems necessary or desirable for the administration of the Plan. The Committee may correct any defect or supply any omission or reconcile any inconsistency in the Plan or an Award Agreement in such manner and to such extent as the Committee deems necessary or appropriate. Unless otherwise expressly provided in the Plan, all designations, determinations, interpretations, and other decisions under or with respect to the Plan or any Award shall be within the sole discretion of the Committee, may be made at any time and shall be final, conclusive, and binding upon all Persons, including, without limitation, the General Partner, the Partnership, any Affiliate, any Participant, and any beneficiary of any Participant.
(b) Limitation of Liability. The Committee and each member thereof shall be entitled to, in good faith, rely or act upon any report or other information furnished to him or her
5
--------------------------------------------------------------------------------
by any officer or employee of the General Partner, the Partnership or their Affiliates, the General Partner’s or the Partnership’s legal counsel, independent auditors, consultants or any other agents assisting in the administration of the Plan. Members of the Committee and any officer or employee of the General Partner, the Partnership or any of their Affiliates acting at the direction or on behalf of the Committee shall not be personally liable for any action or determination taken or made in good faith with respect to this Plan, and shall, to the fullest extent permitted by law, be indemnified and held harmless by the General Partner with respect to any such action or determination.
Section 4. Units.
(a) Limits on Units Deliverable. Subject to adjustment as provided in Section 4(c), the maximum number of Units that may be delivered with respect to Awards under the Plan, since its original inception, is 7,000,000 Units that can be used to make any Award of any type under the Plan. Units withheld from an Award to satisfy the Partnership’s or an Affiliate’s tax withholding obligations with respect to the Award shall not be considered to be Units delivered under the Plan for this purpose. If any Award is forfeited, cancelled, exercised, or otherwise terminates or expires without the actual delivery of Units pursuant to such Award (the grant of Restricted Units is not a delivery of Units for this purpose), the Units subject to such Award shall again be available for Awards under the Plan (including Units not delivered in connection with the exercise of an Option or Unit Appreciation Right). There shall not be any limitation on the number of Awards that may be granted and paid in cash.
(b) Sources of Units Deliverable Under Awards. Any Units delivered pursuant to an Award shall consist, in whole or in part, of Units acquired in the open market, from any Affiliate, the Partnership or any other Person, or any combination of the foregoing, as determined by the Committee in its discretion.
(c) Anti-dilution Adjustments. With respect to any “equity restructuring” event that could result in an additional compensation expense to the General Partner or the Partnership pursuant to the provisions of FASB Accounting Standards Codification, Topic 718 if adjustments to Awards with respect to such event were discretionary, the Committee shall equitably adjust the number and type of Units covered by each outstanding Award and the terms and conditions, including the exercise price and performance criteria (if any), of such Award to equitably reflect such restructuring event and shall adjust the number and type of Units (or other securities or property) with respect to which Awards may be granted after such event. With respect to any other similar event that would not result in an accounting charge under FASB Accounting Standards Codification, Topic 718 if the adjustment to Awards with respect to such event were subject to discretionary action, the Committee shall have complete discretion to adjust Awards in such manner as it deems appropriate with respect to such other event.
Section 5. Eligibility. Any Employee, Consultant or Director shall be eligible to be designated a Participant and receive an Award under the Plan. Notwithstanding the foregoing, Employees, Consultants and Directors that provide services to Affiliates that are not considered a single employer with the Partnership under Code Section 414(b) or Code Section 414(c) shall not be eligible to receive Awards which are subject to Code Section 409A until the Affiliate adopts this Plan as a participating employer in accordance with Section 10.
6
--------------------------------------------------------------------------------
Section 6. Awards.
(a) Options. The Committee may grant Options which are intended to comply with Treasury Regulation Section 1.409A-l(b)(5)(i)(A) only to Employees, Consultants or Directors performing services for the Partnership or a corporation or other type of entity in a chain of corporations or other entities in which each corporation or other entity has a “controlling interest” in another corporation or entity in the chain, starting with the Partnership and ending with the corporation or other entity for which the Employee, Consultant or Director performs services. For purposes of this Section 6(a), “controlling interest” means (i) in the case of a corporation, ownership of stock possessing at least 50% of total combined voting power of all classes of stock of such corporation entitled to vote or at least 50% of the total value of shares of all classes of stock of such corporation; (ii) in the case of a partnership, ownership of at least 50% of the profits interest or capital interest of such partnership; (iii) in the case of a sole proprietorship, ownership of the sole proprietorship; or (iv) in the case of a trust or estate, ownership of an actuarial interest (as defined in Treasury Regulation Section 1.414(c)-2(b)(2)(ii)) of at least 50% of such trust or estate. The Committee may grant Options that are otherwise exempt from or compliant with Code Section 409A to any eligible Employee, Consultant or Director. The Committee shall have the authority to determine the number of Units to be covered by each Option, the purchase price therefor and the Restricted Period and other conditions and limitations applicable to the exercise of the Option, including the following terms and conditions and such additional terms and conditions, as the Committee shall determine, that are not inconsistent with the provisions of the Plan.
(i) Exercise Price. The exercise price per Unit purchasable under an Option shall be determined by the Committee at the time the Option is granted but, except with respect to Substitute Awards, may not be less than the Fair Market Value of a Unit as of the date of grant of the Option.
(ii) Time and Method of Exercise. The Committee shall determine the exercise terms and the Restricted Period with respect to an Option grant, which may include, without limitation, a provision for accelerated vesting upon the achievement of specified performance goals or other events, and the method or methods by which payment of the exercise price with respect thereto may be made or deemed to have been made, which may include, without limitation, cash, check acceptable to the General Partner, a “cashless-broker” exercise through procedures approved by the General Partner, or any combination of methods, having a Fair Market Value on the exercise date equal to the relevant exercise price.
(iii) Forfeitures. Except as otherwise provided in the terms of the Option grant, upon termination of a Participant’s employment with the General Partner and its Affiliates or membership on the Board, whichever is applicable, for any reason during the applicable Restricted Period, all unvested Options shall be forfeited by the Participant. The Committee may, in its discretion, waive in whole or in part such forfeiture with respect to a Participant’s Options; provided that the waiver contemplated under this Section 6(a)(iii) shall be effective only to the extent that such waiver will not cause the Participant’s Options that are designed to satisfy Code Section 409A to fail to satisfy such section.
(b) Unit Appreciation Rights. The Committee shall have the authority to determine the Employees, Consultants and Directors to whom Unit Appreciation Rights shall be granted, the number of Units to be covered by each grant, whether Units or cash shall be delivered upon exercise, the exercise price therefor and the conditions and limitations applicable to the exercise of the Unit Appreciation Rights, including the following terms and conditions and such additional
7
--------------------------------------------------------------------------------
terms and conditions as the Committee shall determine, that are not inconsistent with the provisions of the Plan.
(i) Exercise Price. The exercise price per Unit Appreciation Right shall be determined by the Committee at the time the Unit Appreciation Right is granted but, except with respect to Substitute Awards, may not be less than the Fair Market Value of a Unit as of the date of grant of the Unit Appreciation Right.
(ii) Time of Exercise. The Committee shall determine the Restricted Period and the time or times at which a Unit Appreciation Right may be exercised in whole or in part, which may include, without limitation, accelerated vesting upon the achievement of specified performance goals or other events.
(iii) Forfeitures. Except as otherwise provided in the terms of the Unit Appreciation Right grant, upon termination of a Participant’s employment with or service to the General Partner, the Partnership and their Affiliates or membership on the Board, whichever is applicable, for any reason during the applicable Restricted Period, all outstanding Unit Appreciation Rights awarded to the Participant shall be automatically forfeited on such termination. The Committee may, in its discretion, waive in whole or in part such forfeiture with respect to a Participant’s Unit Appreciation Rights.
(c) Restricted Units and Phantom Units. The Committee shall have the authority to determine the Employees, Consultants and Directors to whom Restricted Units or Phantom Units shall be granted, the number of Restricted Units or Phantom Units to be granted to each such Participant, the Restricted Period, the conditions under which the Restricted Units or Phantom Units may become vested or forfeited and such other terms and conditions as the Committee may establish with respect to such Awards.
(i) UDRs. To the extent provided by the Committee, in its discretion, a grant of Restricted Units may provide that distributions made by the Partnership with respect to the Restricted Units shall be subject to the same forfeiture and other restrictions as the Restricted Unit and, if restricted, such distributions shall be held, without interest, until the Restricted Unit vests or is forfeited with the UDR being paid or forfeited at the same time, as the case may be. Absent such a restriction on the UDRs in the Award Agreement, UDRs shall be paid to the holder of the Restricted Unit without restriction at the same time as cash distributions are paid by the Partnership to its unitholders. Notwithstanding the foregoing, UDRs shall only be paid in a manner that is either exempt from or in compliance with Code Section 409A.
(ii) Forfeitures. Except as otherwise provided in the terms of the Restricted Units or Phantom Units Award Agreement, upon termination of a Participant’s employment with, or consultant services to, the General Partner and its Affiliates or membership on the Board, whichever is applicable, for any reason during the applicable Restricted Period, all outstanding, unvested Restricted Units and Phantom Units awarded the Participant shall be automatically forfeited on such termination. The Committee may, in its discretion, waive in whole or in part such forfeiture with respect to a Participant’s Restricted Units and/or Phantom Units; provided that the waiver contemplated under this Section 6(c)(ii) shall be effective only to the extent that such waiver will not cause the Participant’s Restricted Units and/or Phantom Units that are designed to satisfy Code Section 409A to fail to satisfy such section.
8
--------------------------------------------------------------------------------
(iii) Lapse of Restrictions.
(A) Phantom Units. Upon the vesting of each Phantom Unit, subject to the provisions of Section 8(b), the Participant shall be entitled to receive one Unit or cash equal to the Fair Market Value of a Unit, as determined by the Committee in its discretion.
(B) Restricted Units. Upon the vesting of each Restricted Unit, subject to satisfying the tax withholding obligations of Section 8(b), the Participant shall be entitled to have the restrictions removed from his or her Unit certificate so that the Participant then holds an unrestricted Unit.
(d) Unit Awards. A Unit Award of Units not subject to a Restricted Period may be granted under the Plan to any Employee, Consultant or Director as a bonus or additional compensation or in lieu of cash compensation the individual is otherwise entitled to receive, in such amounts as the Committee determines to be appropriate.
(e) Other Unit Based Awards. The Committee is authorized, subject to limitations under applicable law, to grant to Participants such other Awards that may be denominated or payable in, valued in whole or in part by reference to, or otherwise based on, or related to, Units, as deemed by the Committee to be consistent with the purposes of this Plan, including, without limitation, convertible or exchangeable debt securities, other rights convertible or exchangeable into Units, purchase rights for Units, Awards with value and payment contingent upon performance of the Partnership or any other factors designated by the Committee, and Awards valued by reference to the book value of Units or the value of securities of or the performance of specified Affiliates of the General Partner or the Partnership. The Committee shall determine the terms and conditions of such Awards. Units delivered pursuant to an Award in the nature of a purchase right granted under this Section 6(e) shall be purchased for such consideration, paid for at such times, by such methods, and in such forms, including, without limitation, cash, Units, other Awards, or other property, as the Committee shall determine. Cash awards, as an element of or supplement to any other Award under this Plan, may also be granted pursuant to this Section 6(e).
(f) DERs. To the extent provided by the Committee, in its discretion, an Award (other than a Restricted Unit or Unit Award) may include a tandem DER grant, which may provide that such DERs shall be paid directly to the Participant, be credited to a bookkeeping account (with or without interest in the discretion of the Committee) subject to the same vesting restrictions as the tandem Award, or be subject to such other provisions or restrictions as determined by the Committee in its discretion. Absent a contrary provision in the Award Agreement, DERs shall be paid to the Participant without restriction at the same time as cash distributions are paid by the Partnership to its unitholders. Notwithstanding the foregoing, DERs shall only be paid in a manner that is either exempt from or in compliance with Code Section 409A.
(g) Substitute Awards. Awards may be granted under the Plan in substitution for similar awards held by individuals who become Employees, Consultants or Directors as a result of a merger, consolidation or acquisition by the Partnership or an Affiliate of another entity or the assets of another entity. Such Substitute Awards that are Options may have exercise prices less than the Fair Market Value of a Unit on the date of the substitution if such substitution complies with Code Section 409A and the Treasury Regulations thereunder.
9
--------------------------------------------------------------------------------
(h) General.
(i) Awards May Be Granted Separately or Together. Awards may, in the discretion of the Committee, be granted either alone or in addition to, in tandem with, or in substitution for any other Award granted under the Plan or any award granted under any other plan of the Partnership or any Affiliate. Awards granted in addition to or in tandem with other Awards or awards granted under any other plan of the Partnership or any Affiliate may be granted either at the same time as or at a different time from the grant of such other Awards or awards. Notwithstanding the foregoing but subject to Section 7(c) of the Plan, without the approval of unitholders, the Committee will not (i) exchange or substitute previously granted Options or Unit Appreciation Rights in a transaction that constitutes a “repricing” as such term is used in Rule 5635(c) of the NASDAQ Listing Rules, as amended from time to time, or (ii) cause the General Partner, ERGP, or the Partnership to offer to purchase or exchange for cash Options or Unit Appreciation Rights if, at the time of such offer, the Fair Market Value of a Unit is less than the exercise price of such Options or Unit Appreciation Rights.
(ii) Performance Conditions. The right of a Participant to exercise or receive, and/or the vesting or settlement of, any Award and the timing thereof may be subject to such performance conditions as may be specified by the Committee. The Committee shall establish any such performance conditions and goals based on one or more business criteria for the General Partner and/or the Partnership, on a consolidated basis, and/or for specified Affiliates or business or geographical units of the Partnership, as determined by the Committee in its discretion, which may include (but are not limited to) one or more of the following: (A) earnings per Unit, (B) increase in revenues, (C) increase in cash flow, (D) increase in cash flow from operations, (E) increase in cash follow return, (F) return on net assets, (G) return on assets, (H) return on investment, (I) return on capital, (J) return on equity, (K) economic value added, (L) operating margin, (M) contribution margin, (N) net income, (O) net income per Unit, (P) pretax earnings, (Q) pretax earnings before interest, depreciation and amortization, (R) pretax operating earnings after interest expense and before incentives, service fees, and extraordinary or special items, (S) total unitholder return, (T) debt reduction, (U) market share, (V) change in the Fair Market Value of the Units, (W) operating income, and (X) any of the above goals determined on an absolute or relative basis or as compared to the performance of a published or special index deemed applicable by the Committee including, but not limited to, the Standard & Poor’s 500 Stock Index or a group of comparable companies.
(iii) Limits on Transfer of Awards.
(A) Except as provided in Section 6(h)(iii)(C) below, each Option and Unit Appreciation Right shall be exercisable only by the Participant during the Participant’s lifetime, or by the Person to whom the Participant’s rights shall pass by will or the laws of descent and distribution.
(B) Except as provided in Section 6(h)(iii)(C) below, no Award and no right under any such Award may be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by a Participant and any such purported assignment, alienation, pledge, attachment, sale, transfer or encumbrance shall be void and unenforceable against the General Partner, the Partnership or any Affiliate.
(C) To the extent specifically provided by the Committee with respect to an Option or Unit Appreciation Right, an Option or Unit Appreciation Right may be transferred by a Participant without consideration to immediate family members or related family trusts, limited
10
--------------------------------------------------------------------------------
partnerships or similar entities or on such terms and conditions as the Committee may from time to time establish.
(iv) Term of Awards. The term of each Award shall be for such period as may be determined by the Committee.
(v) Unit Certificates. All certificates for Units or other securities of the Partnership delivered under the Plan pursuant to any Award or the exercise thereof shall be subject to such stop transfer orders and other restrictions as the Committee may deem advisable under the Plan or the rules, regulations, and other requirements of the SEC, any stock exchange upon which such Units or other securities are then listed, and any applicable federal or state laws, and the Committee may cause a legend or legends to be inscribed on any such certificates to make appropriate reference to such restrictions.
(vi) Consideration for Grants. Awards may be granted for such consideration, including services, as the Committee shall determine.
(vii) Delivery of Units or other Securities and Payment by Participant of Consideration. Notwithstanding anything in the Plan or any Award Agreement to the contrary, delivery of Units pursuant to the exercise or vesting of an Award may be deferred for any period during which, in the good faith determination of the Committee, the General Partner is not reasonably able to obtain Units to deliver pursuant to such Award without violating applicable law or the applicable rules or regulations of any governmental agency or authority or securities exchange. No Units or other securities shall be delivered pursuant to any Award until payment in full of any amount required to be paid pursuant to the Plan or the applicable Award Agreement (including, without limitation, any exercise price or tax withholding) is received by the General Partner.
(viii) Change of Control. No Award that constitutes a “deferral of compensation” within the meaning of Treasury Regulation Section 1.409A-1(b), whether by design, due to a subsequent modification in the terms and conditions of such Award or as a result of a change in applicable law following the date of grant of such Award, and that is not exempt from Section 409A of the Code pursuant to an applicable exemption (any such Award, a “409A Award”) shall become exercisable, or be settled or otherwise paid or distributed, pursuant to the Plan or the applicable Award Agreement, as a result of a Change of Control, unless the event constituting such Change of Control also constitutes a “change in the ownership or effective control” or “in the ownership of a substantial portion of the assets” of the General Partner or the Partnership within the meaning of Treasury Regulation Section 1.409A-3(i)(5); except that, to the extent permitted under Section 409A and the Treasury Regulations promulgated thereunder, the time of exercise, payment or settlement of a 409A Award shall be accelerated, or payment shall be made under the Plan in respect of such Award, upon the occurrence of a Change of Control, as determined by the Committee in its discretion, to the extent necessary to pay income, withholding, employment or other taxes imposed on such 409A Award. To the extent any 409A Award does not become exercisable or is not settled or otherwise payable upon a Change of Control as a result of the limitations described in the preceding sentence, it shall become exercisable or be settled or otherwise payable upon the occurrence of an event that qualifies as a permissible time of distribution in respect of such 409A Award under Section 409A and the Treasury Regulations promulgated thereunder, the Plan and the terms of the governing Award Agreement.
11
--------------------------------------------------------------------------------
(ix) Additional Agreements. Each Employee, Consultant or Director to whom an Award is granted under this Plan may be required to agree in writing, as a condition to the grant of such Award or otherwise, to subject an Award that is exercised or settled following such Person’s termination of services with the General Partner, the Partnership or their Affiliates to a general release of claims and/or a noncompetition agreement in favor of the General Partner, the Partnership, and their Affiliates, with the terms and conditions of such agreement(s) to be determined in good faith by the Committee.
Section 7. Amendment and Termination. Except to the extent prohibited by applicable law:
(a) Amendments to the Plan. Except as required by the rules of the principal securities exchange on which the Units are traded and subject to Section 7(b) below, the Board may amend, alter, suspend, discontinue, or terminate the Plan in any manner, including increasing the number of Units available for Awards under the Plan, without the consent of any partner, Participant, other holder or beneficiary of an Award, or any other Person.
(b) Amendments to Awards. Subject to Section 7(a), the Committee may waive any conditions or rights under, amend any terms of, or alter any Award theretofore granted, provided no change, other than pursuant to Section 7(c), in any Award shall materially reduce the benefit to a Participant without the consent of such Participant. Notwithstanding the foregoing, the Board may amend the Plan or an Award to cause such Award to be exempt from Code Section 409A or to comply with the requirements of Code Section 409A or any other applicable law.
(c) Actions Upon the Occurrence of Certain Events. Upon the occurrence of a Change of Control, any change in applicable law or regulation affecting the Plan or Awards thereunder, or any change in accounting principles affecting the financial statements of the Partnership, the Committee, in its sole discretion, without the consent of any Participant or holder of the Award, and on such terms and conditions as it deems appropriate, may take any one or more of the following actions in order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan or an outstanding Award:
(i) provide for either (A) the termination of any Award in exchange for an amount of cash, if any, equal to the amount that would have been attained upon the exercise of such Award or realization of the Participant’s rights (and, for the avoidance of doubt, if as of the date of the occurrence of such transaction or event the Committee determines in good faith that no amount would have been attained upon the exercise of such Award or realization of the Participant’s rights, then such Award may be terminated by the General Partner without payment); provided, that, in the event the occurrence giving rise to the Committee’s exercise of its powers under this Section 7(c) is a transaction pursuant to which the Partnership or the General Partner is survived by a successor entity with a readily tradable security, the Committee shall not have the authority to terminate and cash out any such Award pursuant to this Section 7(c)(i)(A) but will instead but required to provide for the assumption of such Awards by the successor or survivor entity in accordance with Section 7(c)(ii) below, or (B) the replacement of such Award with other rights or property selected by the Committee in its sole discretion;
(ii) provide that such Award be assumed by the successor or survivor entity, or a parent or subsidiary thereof, or be exchanged for similar options, rights or awards covering the equity of the successor or survivor, or a parent or subsidiary thereof, with appropriate adjustments as to the number and kind of equity interests and prices;
12
--------------------------------------------------------------------------------
(iii) make adjustments in the number and type of Units (or other securities or property) subject to outstanding Awards, and in the number and kind of outstanding Awards or in the terms and conditions of (including the exercise price), and the vesting and performance criteria included in, outstanding Awards, or both;
(iv) provide that such Award shall be exercisable or payable, notwithstanding anything to the contrary in the Plan or the applicable Award Agreement; and
(v) provide that the Award cannot be exercised or become payable after such event, i.e., shall terminate upon such event.
Notwithstanding the foregoing, (i) any such action contemplated under this Section 7 shall be effective only to the extent that such action will not cause any Award that is designed to satisfy Code Section 409A to fail to satisfy such section, and (ii) with respect to an above event that is an “equity restructuring” event that would be subject to a compensation expense pursuant to FASB Accounting Standards Codification, Topic 718, the provisions in Section 4(c) shall control to the extent they are in conflict with the discretionary provisions of this Section 7.
Section 8. General Provisions.
(a) No Rights to Award. No Person shall have any claim to be granted any Award under the Plan, and there is no obligation for uniformity of treatment of Participants. The terms and conditions of Awards need not be the same with respect to each recipient.
(b) Tax Withholding. Unless other arrangements have been made that are acceptable to the General Partner or an Affiliate, the Partnership or Affiliate is authorized to withhold from any Award, from any payment due or transfer made under any Award or from any compensation or other amount owing to a Participant the amount (in cash, Units, Units that would otherwise be issued pursuant to such Award or other property) of any applicable taxes payable in respect of the grant of an Award, its exercise, the lapse of restrictions thereon, or any payment or transfer under an Award or under the Plan and to take such other action as may be necessary in the opinion of the General Partner or Affiliate to satisfy its withholding obligations for the payment of such taxes.
(c) No Right to Employment or Services. The grant of an Award shall not be construed as giving a Participant the right to be retained in the employ of the General Partner or any Affiliate or to remain on the Board, as applicable. Furthermore, the General Partner or an Affiliate may at any time dismiss a Participant from employment free from any liability or any claim under the Plan, unless otherwise expressly provided in the Plan, any Award Agreement or other agreement.
(d) Governing Law. The validity, construction, and effect of the Plan and any rules and regulations relating to the Plan shall be determined in accordance with the laws of the State of Texas without regard to its conflicts of laws principles.
(e) Severability. If any provision of the Plan or any Award is or becomes or is deemed to be invalid, illegal, or unenforceable in any jurisdiction or as to any Person or Award, or would disqualify the Plan or any Award under any law deemed applicable by the Committee, such provision shall be construed or deemed amended to conform to the applicable law or, if it cannot be construed or deemed amended without, in the determination of the Committee, materially altering the intent of the Plan or the Award, such provision shall be stricken as to such
13
--------------------------------------------------------------------------------
jurisdiction, Person or Award and the remainder of the Plan and any such Award shall remain in full force and effect.
(f) Other Laws. The Committee may refuse to issue or transfer any Units or other consideration under an Award if, in its sole discretion, it determines that the issuance or transfer of such Units or such other consideration might violate any applicable law or regulation, the rules of the principal securities exchange on which the Units are then traded, or entitle the Partnership or an Affiliate to recover the same under Section 16(b) of the Exchange Act, and any payment tendered to the General Partner by a Participant, other holder or beneficiary in connection with the exercise of such Award shall be promptly refunded to the relevant Participant, holder or beneficiary.
(g) No Trust or Fund Created. Neither the Plan nor any Award shall create or be construed to create a trust or separate fund of any kind or a fiduciary relationship between the General Partner or any Affiliate and a Participant or any other Person. To the extent that any Person acquires a right to receive payments from the General Partner or any Affiliate pursuant to an Award, such right shall be no greater than the right of any general unsecured creditor of the General Partner or such Affiliate.
(h) No Fractional Units. No fractional Units shall be issued or delivered pursuant to the Plan or any Award, and the Committee shall determine whether cash, other securities, or other property shall be paid or transferred in lieu of any fractional Units or whether such fractional Units or any rights thereto shall be canceled, terminated, or otherwise eliminated.
(i) Headings. Headings are given to the Sections and subsections of the Plan solely as a convenience to facilitate reference. Such headings shall not be deemed in any way material or relevant to the construction or interpretation of the Plan or any provision thereof.
(j) Facility Payment. Any amounts payable hereunder to any person under legal disability or who, in the judgment of the Committee, is unable to manage properly his financial affairs, may be paid to the legal representative of such person, or may be applied for the benefit of such person in any manner that the Committee may select, and the General Partner shall be relieved of any further liability for payment of such amounts.
(k) Participation by Affiliates. In making Awards to Employees employed by an entity other than the General Partner, the Committee shall be acting on behalf of the Affiliate, and to the extent the Partnership has an obligation to reimburse the Affiliate for compensation paid for services rendered for the benefit of the Partnership, such payments or reimbursement payments may be made by the Partnership directly to the Affiliate.
(l) Gender and Number. Words in the masculine gender shall include the feminine gender, the plural shall include the singular and the singular shall include the plural.
(m) Code Section 409A. Notwithstanding any other provision of the Plan to the contrary, any Award subject to Code Section 409A is intended to satisfy the application of Code Section 409A to the Award.
(n) No Guarantee of Tax Consequences. None of the Board, the Committee, the Partnership nor the General Partner makes any commitment or guarantee that any federal, state or local tax treatment will (or will not) apply or be available to any Participant.
14
--------------------------------------------------------------------------------
(o) Specified Employee under Code Section 409A. Subject to any other restrictions or limitations contained herein, in the event that a “specified employee” (as defined under Code Section 409A and the Treasury Regulations thereunder) becomes entitled to a payment under an Award which is a 409A Award on account of a “separation from service” (as defined under Code Section 409A and the Treasury Regulations thereunder), such payment shall not occur until the date that is six months plus one day from the date of such separation from service. Any amount that is otherwise payable within the six month period described herein will be aggregated and paid in a lump sum without interest.
Section 9. Term of the Plan. The Plan shall be effective on the date of its approval by the Board and shall continue until the earliest of (i) the date terminated by the Board, (ii) all Units available under the Plan have been paid to Participants, or (iii) the 10th anniversary of the date the Plan, as amended and restated, is approved by the Board. Unless otherwise expressly provided in the Plan or in an applicable Award Agreement, however, any Award granted prior to such termination, and the authority of the Committee to amend, alter, adjust, suspend, discontinue, or terminate any such Award or to waive any conditions or rights under such Award, shall extend beyond such termination date.
Section 10. Adoption by Affiliates. With the consent of the Committee, any Affiliate that is not considered a single employer with the Partnership under Code Section 414(b) or Code Section 414(c) may adopt the Plan for the benefit of its Employees, Consultants or Directors by written instrument delivered to the Committee before the grant to such Affiliate’s Employees, Consultants or Directors under the Plan of any 409A Award.
15
--------------------------------------------------------------------------------
IN WITNESS WHEREOF, this Plan has been executed on September 17, 2010.
EAGLE ROCK ENERGY PARTNERS, L.P.
By:
Eagle Rock Energy GP, L.P.,
its General Partner
By:
Eagle Rock Energy G&P, LLC, its General Partner
By:
/s/ Joseph A. Mills
Name:
Joseph A. Mills
Title:
Chairman and Chief Executive Officer
16
-------------------------------------------------------------------------------- | [
"Exhibit 10.1 EAGLE ROCK ENERGY PARTNERS LONG TERM INCENTIVE PLAN (As Amended and Restated Effective September 17, 2010) The Eagle Rock Energy Partners Long Term Incentive Plan (the “Plan”) is hereby amended and restated effective September 17, 2010 (the “Effective Date”), by Eagle Rock Energy G&P, LLC, a Delaware limited liability company (the “General Partner”), the general partner of Eagle Rock Energy GP, L.P., a Delaware limited partnership (“ERGP”), which is, in turn, the general partner of Eagle Rock Energy Partners, L.P., a Delaware limited partnership (the “Partnership”). R E C I T A L S WHEREAS, the Plan was adopted October 25, 2006 and was subsequently amended effective May 15, 2008 and February 4, 2009; and WHEREAS, the General Partner desires to amend and restate the Plan to increase the number of Units available for issuance under the Plan, subject to approval by the unitholders of the Partnership, and to make certain other changes to the Plan; provided, that (i) the 1,000,000 Units originally available for issuance under the Plan shall be actually delivered pursuant to Awards under the Plan no later than October 25, 2016 and (ii) the 1,000,000 Units made available for issuance under the amendment to the Plan on May 15, 2008 shall be actually delivered pursuant to Awards under the Plan no later than May 15, 2018, in each case including any such Units that are withheld from an Award to satisfy tax withholding obligations or that are subject to an Award that is forfeited, cancelled, exercised or otherwise terminated or that expires without the actual delivery of Units and that become available for subsequent grants under the Plan.",
"NOW, THEREFORE, the Plan is hereby amended and restated in its entirety, effective as of the Effective Date. Section 1. Purpose of the Plan. The Plan is intended to promote the interests of the General Partner, the Partnership and their Affiliates by providing to Employees, Consultants and Directors incentive compensation awards based on Units to encourage superior performance. The Plan is also contemplated to enhance the ability of the General Partner, the Partnership and their Affiliates to attract and retain the services of individuals who are essential for the growth and profitability of the Partnership and to encourage them to devote their best efforts to advancing the business of the Partnership.",
"Section 2. Definitions. As used in the Plan, the following terms shall have the meanings set forth below: (a) “Affiliate” means, with respect to any Person, any other Person that directly or indirectly through one or more intermediaries controls, is controlled by or is under common control with, the Person in question. As used herein, the term “control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract or otherwise. (b) “Award” means an Option, Unit Appreciation Right, Restricted Unit, Phantom Unit, Substitute Award, Unit Award or Other Unit Based Award granted under the Plan, and shall include any tandem DERs granted with respect to an Award. -------------------------------------------------------------------------------- (c) “Award Agreement” means the written or electronic agreement by which an Award shall be evidenced.",
"(d) “Board” means the Board of Directors of the General Partner.",
"(e) “Change of Control” means, the occurrence of one of the following: (i) the consummation of an agreement to acquire or a tender offer for beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) by any “person” or “group” (within the meaning of those terms as used in Sections 13(d) and 14(d)(2) of the Exchange Act) such that afterwards such person or group has 40% or more of either (A) the then outstanding common equity securities of the Partnership (the “Outstanding Equity”) or (B) the combined voting power of the then outstanding voting securities of the Partnership (the “Outstanding Voting Securities”); provided, however, that for purposes of this subclause (i), the following acquisitions shall not constitute a Change of Control: (1) any acquisition directly from the Partnership, (2) any acquisition by the Partnership, (3) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Partnership or any of its Affiliates, (4) any acquisition by any entity pursuant to a transaction that complies with clauses (A), (B) or (C) of subclause (iv) below, or (5) any acquisition by any member of the NGP Group unless, prior to such acquisition but following the Effective Date, the aggregate ownership of members of the NGP Group has been reduced to less than 20% of both the Outstanding Equity and the Outstanding Voting Securities; or (ii) the acquisition of beneficial ownership by any person or group of 40% or more of the combined voting power of the then outstanding voting securities of ERGP and/or the General Partner (the “GP Outstanding Voting Securities”); provided, however, that for purposes of this subclause (ii), the following acquisitions shall not constitute a Change of Control: (A) any acquisition by the Partnership or any of its subsidiaries, (B) any transaction that is subject to subclause (iv) below, or (C) any acquisition of beneficial ownership of GP Outstanding Voting Securities solely by virtue of an acquisition of Outstanding Equity or Outstanding Voting Securities; or (iii) the limited partners of the Partnership approve, in one or a series of transactions, a plan of complete liquidation of the Partnership; or (iv) the consummation of a reorganization, merger or consolidation involving the Partnership or a sale or other disposition by the Partnership of all or substantially all of its assets or an acquisition of assets of another entity (a “Business Combination”), in each case, unless following such Business Combination: (A) the Outstanding Equity and Outstanding Voting Securities immediately prior to such Business Combination represent or are converted into or exchanged for securities that represent or are convertible into more than 50% of, respectively, the then outstanding equity securities and the combined voting power of the then outstanding voting securities, as the case may be, of the entity resulting from such Business Combination or the resulting public parent thereof (including, without limitation, any entity that as a result of such transaction owns the Partnership, or all or substantially all of the assets of the Partnership either directly or through one or more subsidiaries), as the case may be, (B) no Person (excluding any employee benefit plan (or related trust) of the Partnership or the entity resulting from the Business Combination or the resulting public parent thereof, as the case may be) beneficially owns, directly or indirectly, 20% or more of, respectively, the then outstanding equity securities of the entity resulting from such Business Combination or the resulting public parent thereof, as the case may 2 -------------------------------------------------------------------------------- be, or the combined voting power of the then outstanding voting securities of such entity, except to the extent that such ownership existed with respect to the Partnership prior to the Business Combination, and (C) at least a majority of the members of the board of directors or similar governing entity of the entity resulting from such Business Combination or the resulting public parent thereof, as the case may be, were members of the Incumbent Board at the time of the execution of the initial agreement, or of the action of the Board, providing for such Business Combination; provided, however, that clauses (A), (B) and (C) of this subclause (iv) shall not apply if the entity resulting from the Business Combination or the resulting public parent thereof, as the case may be, is a limited partnership unless 100% of the combined voting power of the voting securities of the general partner thereof is owned, directly or indirectly, by such limited partnership; or (v) individuals who constitute the Incumbent Board cease for any reason to constitute at least a majority of the Board.",
"(f) “Code” means the Internal Revenue Code of 1986, as amended from time to time. (g) “Committee” means the Board, the Compensation Committee of the Board or such other committee as may be appointed by the Board to administer the Plan. (h) “Consultant” means an individual who renders consulting or advisory services to the General Partner or an Affiliate thereof, other than a member of the NGP Group. (i) “DER” means a distribution equivalent right, being a contingent right, granted in tandem with a specific Award (other than a Restricted Unit or Unit Award), to receive with respect to each Unit subject to the Award an amount in cash equal to the cash distributions made by the Partnership with respect to a Unit during the period such Award is outstanding.",
"(j) “Director” means a member of the Board or the board of an Affiliate of the General Partner who is not an Employee or a Consultant (other than in that individual’s capacity as a Director). (k) “Employee” means an employee of the General Partner or an Affiliate of the General Partner, other than a member of the NGP Group. (l) “Exchange Act” means the Securities Exchange Act of 1934, as amended. (m) “Fair Market Value” means, on any relevant date, the closing sales price of a Unit on the principal national securities exchange or other market in which trading in Units occurs on the last market trading day prior to the applicable day (or, if there is no trading in the Units on such date, on the next preceding day on which there was trading) as reported in The Wall Street Journal (or other reporting service approved by the Committee).",
"If Units are not traded on a national securities exchange or other market at the time a determination of Fair Market Value is required to be made hereunder, the determination of Fair Market Value shall be made by the Committee in good faith using a “reasonable application of a reasonable valuation method” within the meaning of Treasury Regulation Section 1.409A-l(b)(5)(iv)(B). (n) “Incumbent Board” means the portion of the Board constituted of the individuals who are members of the Board as of the date this Plan is effective and any other individual who becomes a director of the Company after such date and who is either (i) an 3 -------------------------------------------------------------------------------- Appointed Director (as such term is defined in the Partnership Agreement), (ii) a Management Director (as such term is defined in the Partnership Agreement), or (iii) an Elected Director (as such term is defined in the Partnership Agreement) who was nominated to serve on the Board by a vote of at least a majority of the Elected Directors then serving on the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a person other than the Incumbent Board.",
"(o) “NGP Group” shall mean Natural Gas Partners VII, L.P., Natural Gas Partners VIII, L.P., Natural Gas Partners, L.L.C. d/b/a NGP Energy Capital Management, and their respective Affiliates (other than the Partnership, the General Partner, ERGP and their respective subsidiaries) and their Affiliate’s respective directors, officers, shareholders, members, managers, representatives of management committees and employees (and members of their respective families and trusts for the primary benefit of such family members). (p) “Option” means an option to purchase Units granted under the Plan. (q) “Other Unit Based Awards” means Awards granted to an Employee, Director or Consultant pursuant to Section 6(e) hereof. (r) “Participant” means an Employee, Consultant or Director granted an Award under the Plan. (s) “Partnership Agreement” means the Agreement of Limited Partnership of the Partnership, as it may be amended or amended and restated from time to time. (t) “Person” means an individual or a corporation, limited liability company, partnership, joint venture, trust, unincorporated organization, association, governmental agency or political subdivision thereof or other entity. (u) “Phantom Unit” means a notional Unit granted under the Plan which upon vesting entitles the Participant to receive a Unit or an amount of cash equal to the Fair Market Value of a Unit, as determined by the Committee in its discretion. (v) “Restricted Period” means the period established by the Committee with respect to an Award during which the Award remains subject to forfeiture and is either not exercisable by or payable to the Participant, as the case may be.",
"(w) “Restricted Unit” means a Unit granted under the Plan that is subject to a Restricted Period. (x) “Rule 16b-3” means Rule 16b-3 promulgated by the SEC under the Exchange Act or any successor rule or regulation thereto as in effect from time to time. (y) “SEC” means the Securities and Exchange Commission, or any successor thereto. (z) “Substitute Award” means an award granted pursuant to Section 6(g) of the Plan. 4 -------------------------------------------------------------------------------- (aa) “UDR” means a distribution made by the Partnership with respect to a Restricted Unit. (bb) “Unit” means a Common Unit of the Partnership. (cc) “Unit Appreciation Right” means a contingent right granted to an Employee, Director or Consultant pursuant to Section 6(b) that entitles the holder to receive, in cash or Units, as determined by the Committee in its sole discretion, an amount equal to the excess of the Fair Market Value of a Unit on the exercise date of the Unit Appreciation Right (or another specified date) over the exercise price of the Unit Appreciation Right. (dd) “Unit Award” means an award granted pursuant to Section 6(d) of the Plan.",
"Section 3. Administration. (a) Authority of the Committee. The Plan shall be administered by the Committee. A majority of the Committee shall constitute a quorum, and the acts of the members of the Committee who are present at any meeting thereof at which a quorum is present, or acts unanimously approved by the members of the Committee in writing, shall be the acts of the Committee. Subject to the following and any applicable law, the Committee, in its sole discretion, may delegate any or all of its powers and duties under the Plan, including the power to grant Awards under the Plan, to the Chief Executive Officer of the General Partner, subject to such limitations on such delegated powers and duties as the Committee may impose, if any. Upon any such delegation all references in the Plan to the “Committee”, other than in Section 7, shall be deemed to include the Chief Executive Officer.",
"Any such delegation shall not limit the Chief Executive Officer’s right to receive Awards under the Plan; provided, however, the Chief Executive Officer may not grant Awards to himself, a Director or any executive officer of the General Partner or an Affiliate, or take any action with respect to any Award previously granted to himself, a person who is an executive officer or a Director. Subject to the terms of the Plan and applicable law, and in addition to other express powers and authorizations conferred on the Committee by the Plan, the Committee shall have full power and authority to: (i) designate Participants; (ii) determine the type or types of Awards to be granted to a Participant; (iii) determine the number of Units to be covered by Awards; (iv) determine the terms and conditions of any Award; (v) determine whether, to what extent, and under what circumstances Awards may be settled, exercised, canceled, or forfeited; (vi) interpret and administer the Plan and any instrument or agreement relating to an Award made under the Plan; (vii) establish, amend, suspend, or waive such rules and regulations and appoint such agents as it shall deem appropriate for the proper administration of the Plan; and (viii) make any other determination and take any other action that the Committee deems necessary or desirable for the administration of the Plan.",
"The Committee may correct any defect or supply any omission or reconcile any inconsistency in the Plan or an Award Agreement in such manner and to such extent as the Committee deems necessary or appropriate. Unless otherwise expressly provided in the Plan, all designations, determinations, interpretations, and other decisions under or with respect to the Plan or any Award shall be within the sole discretion of the Committee, may be made at any time and shall be final, conclusive, and binding upon all Persons, including, without limitation, the General Partner, the Partnership, any Affiliate, any Participant, and any beneficiary of any Participant.",
"(b) Limitation of Liability. The Committee and each member thereof shall be entitled to, in good faith, rely or act upon any report or other information furnished to him or her 5 -------------------------------------------------------------------------------- by any officer or employee of the General Partner, the Partnership or their Affiliates, the General Partner’s or the Partnership’s legal counsel, independent auditors, consultants or any other agents assisting in the administration of the Plan. Members of the Committee and any officer or employee of the General Partner, the Partnership or any of their Affiliates acting at the direction or on behalf of the Committee shall not be personally liable for any action or determination taken or made in good faith with respect to this Plan, and shall, to the fullest extent permitted by law, be indemnified and held harmless by the General Partner with respect to any such action or determination. Section 4.",
"Units. (a) Limits on Units Deliverable. Subject to adjustment as provided in Section 4(c), the maximum number of Units that may be delivered with respect to Awards under the Plan, since its original inception, is 7,000,000 Units that can be used to make any Award of any type under the Plan. Units withheld from an Award to satisfy the Partnership’s or an Affiliate’s tax withholding obligations with respect to the Award shall not be considered to be Units delivered under the Plan for this purpose.",
"If any Award is forfeited, cancelled, exercised, or otherwise terminates or expires without the actual delivery of Units pursuant to such Award (the grant of Restricted Units is not a delivery of Units for this purpose), the Units subject to such Award shall again be available for Awards under the Plan (including Units not delivered in connection with the exercise of an Option or Unit Appreciation Right). There shall not be any limitation on the number of Awards that may be granted and paid in cash. (b) Sources of Units Deliverable Under Awards. Any Units delivered pursuant to an Award shall consist, in whole or in part, of Units acquired in the open market, from any Affiliate, the Partnership or any other Person, or any combination of the foregoing, as determined by the Committee in its discretion.",
"(c) Anti-dilution Adjustments. With respect to any “equity restructuring” event that could result in an additional compensation expense to the General Partner or the Partnership pursuant to the provisions of FASB Accounting Standards Codification, Topic 718 if adjustments to Awards with respect to such event were discretionary, the Committee shall equitably adjust the number and type of Units covered by each outstanding Award and the terms and conditions, including the exercise price and performance criteria (if any), of such Award to equitably reflect such restructuring event and shall adjust the number and type of Units (or other securities or property) with respect to which Awards may be granted after such event. With respect to any other similar event that would not result in an accounting charge under FASB Accounting Standards Codification, Topic 718 if the adjustment to Awards with respect to such event were subject to discretionary action, the Committee shall have complete discretion to adjust Awards in such manner as it deems appropriate with respect to such other event.",
"Section 5. Eligibility. Any Employee, Consultant or Director shall be eligible to be designated a Participant and receive an Award under the Plan. Notwithstanding the foregoing, Employees, Consultants and Directors that provide services to Affiliates that are not considered a single employer with the Partnership under Code Section 414(b) or Code Section 414(c) shall not be eligible to receive Awards which are subject to Code Section 409A until the Affiliate adopts this Plan as a participating employer in accordance with Section 10.",
"6 -------------------------------------------------------------------------------- Section 6. Awards. (a) Options. The Committee may grant Options which are intended to comply with Treasury Regulation Section 1.409A-l(b)(5)(i)(A) only to Employees, Consultants or Directors performing services for the Partnership or a corporation or other type of entity in a chain of corporations or other entities in which each corporation or other entity has a “controlling interest” in another corporation or entity in the chain, starting with the Partnership and ending with the corporation or other entity for which the Employee, Consultant or Director performs services. For purposes of this Section 6(a), “controlling interest” means (i) in the case of a corporation, ownership of stock possessing at least 50% of total combined voting power of all classes of stock of such corporation entitled to vote or at least 50% of the total value of shares of all classes of stock of such corporation; (ii) in the case of a partnership, ownership of at least 50% of the profits interest or capital interest of such partnership; (iii) in the case of a sole proprietorship, ownership of the sole proprietorship; or (iv) in the case of a trust or estate, ownership of an actuarial interest (as defined in Treasury Regulation Section 1.414(c)-2(b)(2)(ii)) of at least 50% of such trust or estate.",
"The Committee may grant Options that are otherwise exempt from or compliant with Code Section 409A to any eligible Employee, Consultant or Director. The Committee shall have the authority to determine the number of Units to be covered by each Option, the purchase price therefor and the Restricted Period and other conditions and limitations applicable to the exercise of the Option, including the following terms and conditions and such additional terms and conditions, as the Committee shall determine, that are not inconsistent with the provisions of the Plan. (i) Exercise Price. The exercise price per Unit purchasable under an Option shall be determined by the Committee at the time the Option is granted but, except with respect to Substitute Awards, may not be less than the Fair Market Value of a Unit as of the date of grant of the Option. (ii) Time and Method of Exercise. The Committee shall determine the exercise terms and the Restricted Period with respect to an Option grant, which may include, without limitation, a provision for accelerated vesting upon the achievement of specified performance goals or other events, and the method or methods by which payment of the exercise price with respect thereto may be made or deemed to have been made, which may include, without limitation, cash, check acceptable to the General Partner, a “cashless-broker” exercise through procedures approved by the General Partner, or any combination of methods, having a Fair Market Value on the exercise date equal to the relevant exercise price. (iii) Forfeitures.",
"Except as otherwise provided in the terms of the Option grant, upon termination of a Participant’s employment with the General Partner and its Affiliates or membership on the Board, whichever is applicable, for any reason during the applicable Restricted Period, all unvested Options shall be forfeited by the Participant. The Committee may, in its discretion, waive in whole or in part such forfeiture with respect to a Participant’s Options; provided that the waiver contemplated under this Section 6(a)(iii) shall be effective only to the extent that such waiver will not cause the Participant’s Options that are designed to satisfy Code Section 409A to fail to satisfy such section. (b) Unit Appreciation Rights. The Committee shall have the authority to determine the Employees, Consultants and Directors to whom Unit Appreciation Rights shall be granted, the number of Units to be covered by each grant, whether Units or cash shall be delivered upon exercise, the exercise price therefor and the conditions and limitations applicable to the exercise of the Unit Appreciation Rights, including the following terms and conditions and such additional 7 -------------------------------------------------------------------------------- terms and conditions as the Committee shall determine, that are not inconsistent with the provisions of the Plan. (i) Exercise Price.",
"The exercise price per Unit Appreciation Right shall be determined by the Committee at the time the Unit Appreciation Right is granted but, except with respect to Substitute Awards, may not be less than the Fair Market Value of a Unit as of the date of grant of the Unit Appreciation Right. (ii) Time of Exercise. The Committee shall determine the Restricted Period and the time or times at which a Unit Appreciation Right may be exercised in whole or in part, which may include, without limitation, accelerated vesting upon the achievement of specified performance goals or other events.",
"(iii) Forfeitures. Except as otherwise provided in the terms of the Unit Appreciation Right grant, upon termination of a Participant’s employment with or service to the General Partner, the Partnership and their Affiliates or membership on the Board, whichever is applicable, for any reason during the applicable Restricted Period, all outstanding Unit Appreciation Rights awarded to the Participant shall be automatically forfeited on such termination. The Committee may, in its discretion, waive in whole or in part such forfeiture with respect to a Participant’s Unit Appreciation Rights. (c) Restricted Units and Phantom Units. The Committee shall have the authority to determine the Employees, Consultants and Directors to whom Restricted Units or Phantom Units shall be granted, the number of Restricted Units or Phantom Units to be granted to each such Participant, the Restricted Period, the conditions under which the Restricted Units or Phantom Units may become vested or forfeited and such other terms and conditions as the Committee may establish with respect to such Awards. (i) UDRs. To the extent provided by the Committee, in its discretion, a grant of Restricted Units may provide that distributions made by the Partnership with respect to the Restricted Units shall be subject to the same forfeiture and other restrictions as the Restricted Unit and, if restricted, such distributions shall be held, without interest, until the Restricted Unit vests or is forfeited with the UDR being paid or forfeited at the same time, as the case may be.",
"Absent such a restriction on the UDRs in the Award Agreement, UDRs shall be paid to the holder of the Restricted Unit without restriction at the same time as cash distributions are paid by the Partnership to its unitholders. Notwithstanding the foregoing, UDRs shall only be paid in a manner that is either exempt from or in compliance with Code Section 409A. (ii) Forfeitures. Except as otherwise provided in the terms of the Restricted Units or Phantom Units Award Agreement, upon termination of a Participant’s employment with, or consultant services to, the General Partner and its Affiliates or membership on the Board, whichever is applicable, for any reason during the applicable Restricted Period, all outstanding, unvested Restricted Units and Phantom Units awarded the Participant shall be automatically forfeited on such termination. The Committee may, in its discretion, waive in whole or in part such forfeiture with respect to a Participant’s Restricted Units and/or Phantom Units; provided that the waiver contemplated under this Section 6(c)(ii) shall be effective only to the extent that such waiver will not cause the Participant’s Restricted Units and/or Phantom Units that are designed to satisfy Code Section 409A to fail to satisfy such section. 8 -------------------------------------------------------------------------------- (iii) Lapse of Restrictions.",
"(A) Phantom Units. Upon the vesting of each Phantom Unit, subject to the provisions of Section 8(b), the Participant shall be entitled to receive one Unit or cash equal to the Fair Market Value of a Unit, as determined by the Committee in its discretion. (B) Restricted Units. Upon the vesting of each Restricted Unit, subject to satisfying the tax withholding obligations of Section 8(b), the Participant shall be entitled to have the restrictions removed from his or her Unit certificate so that the Participant then holds an unrestricted Unit. (d) Unit Awards. A Unit Award of Units not subject to a Restricted Period may be granted under the Plan to any Employee, Consultant or Director as a bonus or additional compensation or in lieu of cash compensation the individual is otherwise entitled to receive, in such amounts as the Committee determines to be appropriate. (e) Other Unit Based Awards. The Committee is authorized, subject to limitations under applicable law, to grant to Participants such other Awards that may be denominated or payable in, valued in whole or in part by reference to, or otherwise based on, or related to, Units, as deemed by the Committee to be consistent with the purposes of this Plan, including, without limitation, convertible or exchangeable debt securities, other rights convertible or exchangeable into Units, purchase rights for Units, Awards with value and payment contingent upon performance of the Partnership or any other factors designated by the Committee, and Awards valued by reference to the book value of Units or the value of securities of or the performance of specified Affiliates of the General Partner or the Partnership.",
"The Committee shall determine the terms and conditions of such Awards. Units delivered pursuant to an Award in the nature of a purchase right granted under this Section 6(e) shall be purchased for such consideration, paid for at such times, by such methods, and in such forms, including, without limitation, cash, Units, other Awards, or other property, as the Committee shall determine. Cash awards, as an element of or supplement to any other Award under this Plan, may also be granted pursuant to this Section 6(e). (f) DERs.",
"To the extent provided by the Committee, in its discretion, an Award (other than a Restricted Unit or Unit Award) may include a tandem DER grant, which may provide that such DERs shall be paid directly to the Participant, be credited to a bookkeeping account (with or without interest in the discretion of the Committee) subject to the same vesting restrictions as the tandem Award, or be subject to such other provisions or restrictions as determined by the Committee in its discretion. Absent a contrary provision in the Award Agreement, DERs shall be paid to the Participant without restriction at the same time as cash distributions are paid by the Partnership to its unitholders.",
"Notwithstanding the foregoing, DERs shall only be paid in a manner that is either exempt from or in compliance with Code Section 409A. (g) Substitute Awards. Awards may be granted under the Plan in substitution for similar awards held by individuals who become Employees, Consultants or Directors as a result of a merger, consolidation or acquisition by the Partnership or an Affiliate of another entity or the assets of another entity. Such Substitute Awards that are Options may have exercise prices less than the Fair Market Value of a Unit on the date of the substitution if such substitution complies with Code Section 409A and the Treasury Regulations thereunder. 9 -------------------------------------------------------------------------------- (h) General. (i) Awards May Be Granted Separately or Together.",
"Awards may, in the discretion of the Committee, be granted either alone or in addition to, in tandem with, or in substitution for any other Award granted under the Plan or any award granted under any other plan of the Partnership or any Affiliate. Awards granted in addition to or in tandem with other Awards or awards granted under any other plan of the Partnership or any Affiliate may be granted either at the same time as or at a different time from the grant of such other Awards or awards. Notwithstanding the foregoing but subject to Section 7(c) of the Plan, without the approval of unitholders, the Committee will not (i) exchange or substitute previously granted Options or Unit Appreciation Rights in a transaction that constitutes a “repricing” as such term is used in Rule 5635(c) of the NASDAQ Listing Rules, as amended from time to time, or (ii) cause the General Partner, ERGP, or the Partnership to offer to purchase or exchange for cash Options or Unit Appreciation Rights if, at the time of such offer, the Fair Market Value of a Unit is less than the exercise price of such Options or Unit Appreciation Rights. (ii) Performance Conditions.",
"The right of a Participant to exercise or receive, and/or the vesting or settlement of, any Award and the timing thereof may be subject to such performance conditions as may be specified by the Committee. The Committee shall establish any such performance conditions and goals based on one or more business criteria for the General Partner and/or the Partnership, on a consolidated basis, and/or for specified Affiliates or business or geographical units of the Partnership, as determined by the Committee in its discretion, which may include (but are not limited to) one or more of the following: (A) earnings per Unit, (B) increase in revenues, (C) increase in cash flow, (D) increase in cash flow from operations, (E) increase in cash follow return, (F) return on net assets, (G) return on assets, (H) return on investment, (I) return on capital, (J) return on equity, (K) economic value added, (L) operating margin, (M) contribution margin, (N) net income, (O) net income per Unit, (P) pretax earnings, (Q) pretax earnings before interest, depreciation and amortization, (R) pretax operating earnings after interest expense and before incentives, service fees, and extraordinary or special items, (S) total unitholder return, (T) debt reduction, (U) market share, (V) change in the Fair Market Value of the Units, (W) operating income, and (X) any of the above goals determined on an absolute or relative basis or as compared to the performance of a published or special index deemed applicable by the Committee including, but not limited to, the Standard & Poor’s 500 Stock Index or a group of comparable companies.",
"(iii) Limits on Transfer of Awards. (A) Except as provided in Section 6(h)(iii)(C) below, each Option and Unit Appreciation Right shall be exercisable only by the Participant during the Participant’s lifetime, or by the Person to whom the Participant’s rights shall pass by will or the laws of descent and distribution. (B) Except as provided in Section 6(h)(iii)(C) below, no Award and no right under any such Award may be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by a Participant and any such purported assignment, alienation, pledge, attachment, sale, transfer or encumbrance shall be void and unenforceable against the General Partner, the Partnership or any Affiliate. (C) To the extent specifically provided by the Committee with respect to an Option or Unit Appreciation Right, an Option or Unit Appreciation Right may be transferred by a Participant without consideration to immediate family members or related family trusts, limited 10 -------------------------------------------------------------------------------- partnerships or similar entities or on such terms and conditions as the Committee may from time to time establish.",
"(iv) Term of Awards. The term of each Award shall be for such period as may be determined by the Committee. (v) Unit Certificates. All certificates for Units or other securities of the Partnership delivered under the Plan pursuant to any Award or the exercise thereof shall be subject to such stop transfer orders and other restrictions as the Committee may deem advisable under the Plan or the rules, regulations, and other requirements of the SEC, any stock exchange upon which such Units or other securities are then listed, and any applicable federal or state laws, and the Committee may cause a legend or legends to be inscribed on any such certificates to make appropriate reference to such restrictions. (vi) Consideration for Grants. Awards may be granted for such consideration, including services, as the Committee shall determine. (vii) Delivery of Units or other Securities and Payment by Participant of Consideration.",
"Notwithstanding anything in the Plan or any Award Agreement to the contrary, delivery of Units pursuant to the exercise or vesting of an Award may be deferred for any period during which, in the good faith determination of the Committee, the General Partner is not reasonably able to obtain Units to deliver pursuant to such Award without violating applicable law or the applicable rules or regulations of any governmental agency or authority or securities exchange.",
"No Units or other securities shall be delivered pursuant to any Award until payment in full of any amount required to be paid pursuant to the Plan or the applicable Award Agreement (including, without limitation, any exercise price or tax withholding) is received by the General Partner. (viii) Change of Control. No Award that constitutes a “deferral of compensation” within the meaning of Treasury Regulation Section 1.409A-1(b), whether by design, due to a subsequent modification in the terms and conditions of such Award or as a result of a change in applicable law following the date of grant of such Award, and that is not exempt from Section 409A of the Code pursuant to an applicable exemption (any such Award, a “409A Award”) shall become exercisable, or be settled or otherwise paid or distributed, pursuant to the Plan or the applicable Award Agreement, as a result of a Change of Control, unless the event constituting such Change of Control also constitutes a “change in the ownership or effective control” or “in the ownership of a substantial portion of the assets” of the General Partner or the Partnership within the meaning of Treasury Regulation Section 1.409A-3(i)(5); except that, to the extent permitted under Section 409A and the Treasury Regulations promulgated thereunder, the time of exercise, payment or settlement of a 409A Award shall be accelerated, or payment shall be made under the Plan in respect of such Award, upon the occurrence of a Change of Control, as determined by the Committee in its discretion, to the extent necessary to pay income, withholding, employment or other taxes imposed on such 409A Award. To the extent any 409A Award does not become exercisable or is not settled or otherwise payable upon a Change of Control as a result of the limitations described in the preceding sentence, it shall become exercisable or be settled or otherwise payable upon the occurrence of an event that qualifies as a permissible time of distribution in respect of such 409A Award under Section 409A and the Treasury Regulations promulgated thereunder, the Plan and the terms of the governing Award Agreement.",
"11 -------------------------------------------------------------------------------- (ix) Additional Agreements. Each Employee, Consultant or Director to whom an Award is granted under this Plan may be required to agree in writing, as a condition to the grant of such Award or otherwise, to subject an Award that is exercised or settled following such Person’s termination of services with the General Partner, the Partnership or their Affiliates to a general release of claims and/or a noncompetition agreement in favor of the General Partner, the Partnership, and their Affiliates, with the terms and conditions of such agreement(s) to be determined in good faith by the Committee. Section 7. Amendment and Termination. Except to the extent prohibited by applicable law: (a) Amendments to the Plan. Except as required by the rules of the principal securities exchange on which the Units are traded and subject to Section 7(b) below, the Board may amend, alter, suspend, discontinue, or terminate the Plan in any manner, including increasing the number of Units available for Awards under the Plan, without the consent of any partner, Participant, other holder or beneficiary of an Award, or any other Person. (b) Amendments to Awards. Subject to Section 7(a), the Committee may waive any conditions or rights under, amend any terms of, or alter any Award theretofore granted, provided no change, other than pursuant to Section 7(c), in any Award shall materially reduce the benefit to a Participant without the consent of such Participant.",
"Notwithstanding the foregoing, the Board may amend the Plan or an Award to cause such Award to be exempt from Code Section 409A or to comply with the requirements of Code Section 409A or any other applicable law. (c) Actions Upon the Occurrence of Certain Events.",
"Upon the occurrence of a Change of Control, any change in applicable law or regulation affecting the Plan or Awards thereunder, or any change in accounting principles affecting the financial statements of the Partnership, the Committee, in its sole discretion, without the consent of any Participant or holder of the Award, and on such terms and conditions as it deems appropriate, may take any one or more of the following actions in order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan or an outstanding Award: (i) provide for either (A) the termination of any Award in exchange for an amount of cash, if any, equal to the amount that would have been attained upon the exercise of such Award or realization of the Participant’s rights (and, for the avoidance of doubt, if as of the date of the occurrence of such transaction or event the Committee determines in good faith that no amount would have been attained upon the exercise of such Award or realization of the Participant’s rights, then such Award may be terminated by the General Partner without payment); provided, that, in the event the occurrence giving rise to the Committee’s exercise of its powers under this Section 7(c) is a transaction pursuant to which the Partnership or the General Partner is survived by a successor entity with a readily tradable security, the Committee shall not have the authority to terminate and cash out any such Award pursuant to this Section 7(c)(i)(A) but will instead but required to provide for the assumption of such Awards by the successor or survivor entity in accordance with Section 7(c)(ii) below, or (B) the replacement of such Award with other rights or property selected by the Committee in its sole discretion; (ii) provide that such Award be assumed by the successor or survivor entity, or a parent or subsidiary thereof, or be exchanged for similar options, rights or awards covering the equity of the successor or survivor, or a parent or subsidiary thereof, with appropriate adjustments as to the number and kind of equity interests and prices; 12 -------------------------------------------------------------------------------- (iii) make adjustments in the number and type of Units (or other securities or property) subject to outstanding Awards, and in the number and kind of outstanding Awards or in the terms and conditions of (including the exercise price), and the vesting and performance criteria included in, outstanding Awards, or both; (iv) provide that such Award shall be exercisable or payable, notwithstanding anything to the contrary in the Plan or the applicable Award Agreement; and (v) provide that the Award cannot be exercised or become payable after such event, i.e., shall terminate upon such event.",
"Notwithstanding the foregoing, (i) any such action contemplated under this Section 7 shall be effective only to the extent that such action will not cause any Award that is designed to satisfy Code Section 409A to fail to satisfy such section, and (ii) with respect to an above event that is an “equity restructuring” event that would be subject to a compensation expense pursuant to FASB Accounting Standards Codification, Topic 718, the provisions in Section 4(c) shall control to the extent they are in conflict with the discretionary provisions of this Section 7. Section 8. General Provisions. (a) No Rights to Award. No Person shall have any claim to be granted any Award under the Plan, and there is no obligation for uniformity of treatment of Participants. The terms and conditions of Awards need not be the same with respect to each recipient. (b) Tax Withholding. Unless other arrangements have been made that are acceptable to the General Partner or an Affiliate, the Partnership or Affiliate is authorized to withhold from any Award, from any payment due or transfer made under any Award or from any compensation or other amount owing to a Participant the amount (in cash, Units, Units that would otherwise be issued pursuant to such Award or other property) of any applicable taxes payable in respect of the grant of an Award, its exercise, the lapse of restrictions thereon, or any payment or transfer under an Award or under the Plan and to take such other action as may be necessary in the opinion of the General Partner or Affiliate to satisfy its withholding obligations for the payment of such taxes.",
"(c) No Right to Employment or Services. The grant of an Award shall not be construed as giving a Participant the right to be retained in the employ of the General Partner or any Affiliate or to remain on the Board, as applicable. Furthermore, the General Partner or an Affiliate may at any time dismiss a Participant from employment free from any liability or any claim under the Plan, unless otherwise expressly provided in the Plan, any Award Agreement or other agreement.",
"(d) Governing Law. The validity, construction, and effect of the Plan and any rules and regulations relating to the Plan shall be determined in accordance with the laws of the State of Texas without regard to its conflicts of laws principles. (e) Severability. If any provision of the Plan or any Award is or becomes or is deemed to be invalid, illegal, or unenforceable in any jurisdiction or as to any Person or Award, or would disqualify the Plan or any Award under any law deemed applicable by the Committee, such provision shall be construed or deemed amended to conform to the applicable law or, if it cannot be construed or deemed amended without, in the determination of the Committee, materially altering the intent of the Plan or the Award, such provision shall be stricken as to such 13 -------------------------------------------------------------------------------- jurisdiction, Person or Award and the remainder of the Plan and any such Award shall remain in full force and effect. (f) Other Laws.",
"The Committee may refuse to issue or transfer any Units or other consideration under an Award if, in its sole discretion, it determines that the issuance or transfer of such Units or such other consideration might violate any applicable law or regulation, the rules of the principal securities exchange on which the Units are then traded, or entitle the Partnership or an Affiliate to recover the same under Section 16(b) of the Exchange Act, and any payment tendered to the General Partner by a Participant, other holder or beneficiary in connection with the exercise of such Award shall be promptly refunded to the relevant Participant, holder or beneficiary. (g) No Trust or Fund Created. Neither the Plan nor any Award shall create or be construed to create a trust or separate fund of any kind or a fiduciary relationship between the General Partner or any Affiliate and a Participant or any other Person.",
"To the extent that any Person acquires a right to receive payments from the General Partner or any Affiliate pursuant to an Award, such right shall be no greater than the right of any general unsecured creditor of the General Partner or such Affiliate. (h) No Fractional Units. No fractional Units shall be issued or delivered pursuant to the Plan or any Award, and the Committee shall determine whether cash, other securities, or other property shall be paid or transferred in lieu of any fractional Units or whether such fractional Units or any rights thereto shall be canceled, terminated, or otherwise eliminated.",
"(i) Headings. Headings are given to the Sections and subsections of the Plan solely as a convenience to facilitate reference. Such headings shall not be deemed in any way material or relevant to the construction or interpretation of the Plan or any provision thereof. (j) Facility Payment. Any amounts payable hereunder to any person under legal disability or who, in the judgment of the Committee, is unable to manage properly his financial affairs, may be paid to the legal representative of such person, or may be applied for the benefit of such person in any manner that the Committee may select, and the General Partner shall be relieved of any further liability for payment of such amounts. (k) Participation by Affiliates. In making Awards to Employees employed by an entity other than the General Partner, the Committee shall be acting on behalf of the Affiliate, and to the extent the Partnership has an obligation to reimburse the Affiliate for compensation paid for services rendered for the benefit of the Partnership, such payments or reimbursement payments may be made by the Partnership directly to the Affiliate.",
"(l) Gender and Number. Words in the masculine gender shall include the feminine gender, the plural shall include the singular and the singular shall include the plural. (m) Code Section 409A. Notwithstanding any other provision of the Plan to the contrary, any Award subject to Code Section 409A is intended to satisfy the application of Code Section 409A to the Award. (n) No Guarantee of Tax Consequences. None of the Board, the Committee, the Partnership nor the General Partner makes any commitment or guarantee that any federal, state or local tax treatment will (or will not) apply or be available to any Participant.",
"14 -------------------------------------------------------------------------------- (o) Specified Employee under Code Section 409A. Subject to any other restrictions or limitations contained herein, in the event that a “specified employee” (as defined under Code Section 409A and the Treasury Regulations thereunder) becomes entitled to a payment under an Award which is a 409A Award on account of a “separation from service” (as defined under Code Section 409A and the Treasury Regulations thereunder), such payment shall not occur until the date that is six months plus one day from the date of such separation from service. Any amount that is otherwise payable within the six month period described herein will be aggregated and paid in a lump sum without interest. Section 9. Term of the Plan. The Plan shall be effective on the date of its approval by the Board and shall continue until the earliest of (i) the date terminated by the Board, (ii) all Units available under the Plan have been paid to Participants, or (iii) the 10th anniversary of the date the Plan, as amended and restated, is approved by the Board. Unless otherwise expressly provided in the Plan or in an applicable Award Agreement, however, any Award granted prior to such termination, and the authority of the Committee to amend, alter, adjust, suspend, discontinue, or terminate any such Award or to waive any conditions or rights under such Award, shall extend beyond such termination date. Section 10.",
"Adoption by Affiliates. With the consent of the Committee, any Affiliate that is not considered a single employer with the Partnership under Code Section 414(b) or Code Section 414(c) may adopt the Plan for the benefit of its Employees, Consultants or Directors by written instrument delivered to the Committee before the grant to such Affiliate’s Employees, Consultants or Directors under the Plan of any 409A Award. 15 -------------------------------------------------------------------------------- IN WITNESS WHEREOF, this Plan has been executed on September 17, 2010.",
"EAGLE ROCK ENERGY PARTNERS, L.P. By: Eagle Rock Energy GP, L.P., its General Partner By: Eagle Rock Energy G&P, LLC, its General Partner By: /s/ Joseph A. Mills Name: Joseph A. Mills Title: Chairman and Chief Executive Officer 16 --------------------------------------------------------------------------------"
]
| https://github.com/TheAtticusProject/cuad | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
|
Exhibit 10.7
EXECUTION COPY
SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT, dated as of May 20, 2015 (this “Agreement”), by and among MICHAEL KORS (USA), INC., a Delaware corporation having its principal executive office in New York County, New York (the “Corporation”), MICHAEL KORS HOLDINGS LIMITED, a British Virgin Islands corporation having its principal executive office in London, United Kingdom (“MKHL”) and MICHAEL D. KORS, a resident of New York, New York (“Kors”).
IT IS AGREED AS FOLLOWS:
1. Term. The Corporation agrees to employ Kors, and Kors agrees to serve the Corporation, for a term (the “Term”) that began on January 29, 2003 and ending as provided herein, upon the terms and conditions set forth herein.
2. Offices and Positions. Throughout the Term, Kors shall have the title of Honorary Chairman and Chief Creative Officer of the Corporation and MKHL, and the Corporation and MKHL shall each use its best efforts to cause Kors to be appointed or elected, as the case may be, to the Board of Directors of MKHL (the “Board”) and the Board of Directors of the Corporation. During the Term, MKHL shall consult with Kors regarding the hiring of any Chief Executive Officer (or equivalent executive officer) of MKHL or the Corporation.
3. Duties.
(a) Throughout the Term, Kors shall devote substantially all of his business time exclusively to the business of MKHL and its affiliates to design collections of apparel, accessories and related products as needed by MKHL and its affiliates and to promote the business and affairs of MKHL and its affiliates. It is agreed and understood that, during the Term, Kors will have creative and aesthetic control of the products produced and sold under or bearing the “MICHAEL KORS” trademark and any variation of such name and the initials of such name in whatever form or style and all related trade names, copyrights, logos and similar rights (the “Marks”), including exclusive control of the design of such products; provided, that this sentence shall not apply to any attempted exercise by Kors of the foregoing rights that is not commercially reasonable.
(b) Throughout the Term, Kors shall not, without the prior written consent of the Corporation, directly or indirectly, render services to or for any other person or firm whether or not for compensation or engage in any activity that, in either case, is in competition with the business of MKHL, the Corporation or any other subsidiary of MKHL (MKHL and its subsidiaries collectively, the “MK Group”); provided, however, that Kors may participate in charitable activities not inconsistent with the intent of this Agreement. The making of passive personal investments shall not be prohibited hereunder. In addition, subject to Section 3(a), Kors may participate in literary, theatrical or artistic activities, but only if and to the extent that the Corporation shall have determined in advance (in its reasonable discretion) that such activities would not be detrimental to the Marks.
4. Compensation.
(a) Salary. Throughout the Term, the Corporation shall pay to Kors a salary (the “Base Salary”) at the rate of US$1,000,000 per annum, which, except as otherwise set forth in the last sentence of this Section 4(a), shall be payable by the Corporation to Kors in periodic installments in accordance with the Corporation’s customary payroll practices. The Base Salary shall be subject to possible increases at the sole discretion of the Board; provided, however, that in no event shall Kors’ Base Salary during the Term be less than at the rate of US$1,000,000 per year. A portion of Kors’ Base Salary equal to the annual retainer paid to MKHL’s independent directors (currently US$70,000) shall be payable to Kors by MKHL on a quarterly basis at the same time such retainer payments are paid to the independent directors of MKHL.
(b) Bonus.
(i) During the Term, commencing with MKHL’s fiscal year that began on March 29, 2015 (the “2016 Fiscal Year”), Kors shall be eligible to receive the bonuses described in this Section 4, subject to approval of the bonus plan pursuant to which bonuses will be paid by the shareholders of MKHL in a manner that complies with the shareholder approval requirements of Section 162(m) of the U.S. Internal Revenue Code of 1986, as amended (“Section 162(m)”). Except as otherwise provided in Section 10, Kors must be employed by MKHL or the Corporation as of the last day of the applicable performance period described below in order to be eligible to receive the bonus payable in respect of such period. Each bonus shall be administered by the Compensation Committee of the Board (the “Compensation Committee”).
--------------------------------------------------------------------------------
(ii) During the Term, commencing with the 2016 Fiscal Year, Kors shall be eligible to receive a bonus (the “Part-Year Bonus”) with respect to the performance period beginning on the first day of each fiscal year and ending on the last day of the second fiscal quarter of such year (the “Part-Year Performance Period”). The amount of the Part-Year Bonus shall be equal to 1% of the consolidated income from operations of MKHL for the Part-Year Performance Period, increased by depreciation plus amortization plus impairment of long-lived assets, in each case calculated in accordance with U.S. generally accepted accounting principles and disclosed in MKHL’s Consolidated Statements of Operations and Comprehensive Income (“MKHL EBITDA”), up to a maximum of US$1,500,000. The Compensation Committee must certify the MKHL EBITDA for the Part-Year Performance Period and the amount of the Part-Year Bonus. Once certified, the Part-Year Bonus will be paid to Kors reasonably promptly and in no event later than December 30 next following the last day of the applicable Part-Year Performance Period.
(iii) During the Term, commencing with the 2016 Fiscal Year, Kors shall be eligible to receive an annual bonus (the “Annual Bonus”) with respect to each full fiscal year of MKHL (the “Annual Performance Period”). The amount of the Annual Bonus shall be (i) 1% of MKHL EBITDA during the Annual Performance Period, up to a maximum of US$6,500,000, reduced by (ii) the amount of the Part-Year Bonus in respect of the same fiscal year. The Compensation Committee must certify the MKHL EBITDA for the Annual Performance Period and the amount of the Annual Bonus. Once certified, the Annual Bonus will be paid to Kors reasonably promptly and in no event later than June 30 next following the last day of the Annual Performance Period.
(iv) Notwithstanding the foregoing, if the Compensation Committee determines that Kors was overpaid, in whole or in part, as a result of a restatement of the reported financial or operating results of MKHL due to material non-compliance with financial reporting requirements (unless due to a change in accounting policy or applicable law), the Corporation shall be entitled to recover or cancel the difference between (i) any bonus payment that was based on having met or exceeded performance targets and (ii) the bonus payment that would have been paid or earned to Kors had the actual payment or accrual been calculated based on the accurate data or restated results, as applicable (the “Overpayment”). If the Compensation Committee determines that there has been an Overpayment, the Corporation shall be entitled to demand that Kors reimburse the Corporation for the Overpayment. To the extent Kors does not make reimbursement of the Overpayment, the Corporation shall have the right to enforce the repayment through the reduction of future salary or the reduction or cancellation of outstanding and future incentive compensation and/or to pursue all other available legal remedies in law or in equity. The Compensation Committee may make determinations of Overpayment at any time through the end of the third (3rd) fiscal year following the year for which the inaccurate performance criteria were measured; provided, that if steps have been taken within such period to restate MKHL’s financial or operating results, the time period shall be extended until such restatement is completed.
(c) Other Compensation. In addition to what is required pursuant to Section 5, the Corporation may pay, but shall have no obligation to pay, to Kors such additional compensation in the form of bonuses, fringe benefits or otherwise in such amounts and at such times as the Compensation Committee shall from time to time determine in its sole and absolute discretion.
5. Benefits.
(a) In addition to the compensation described in Section 4, during the Term, Kors shall be entitled to the following:
(i) Kors shall be entitled to participate in all Corporation employee benefit plans (to the extent Kors is eligible therefor), including, without limitation, any health and retirement plans (but, except as otherwise provided in this Agreement or as determined by the Compensation Committee, excluding bonus plans), in each case subject to any applicable laws which shall be in effect from time to time and on the same basis as is available to the other senior officers of the Corporation. If any such benefit plan shall be unavailable to Kors by reason of his nationality or residence, the Corporation shall use it best efforts to provide a substantially equivalent benefit, through another source, at its expense.
(ii) Kors shall be eligible, in the discretion of the Compensation Committee, for share option awards, restricted share unit awards and other equity-based awards under the equity incentive plan generally applicable to eligible employees of the Corporation (currently the Michael Kors Holdings Limited Omnibus Incentive Plan) (the “Equity Incentive Plan”), in accordance with, and subject to, the terms and conditions of the Equity Incentive Plan as the same may be amended or modified by MKHL or its subsidiaries from time to time in their sole discretion (subject to shareholder approval if required) and the applicable equity award agreement. Except in the case of the termination of Kors for Cause, in which case any share-based awards granted to Kors under the Equity Plan shall be forfeited and any share options granted to Kors under the Equity Plan shall immediately terminate (whether or not vested and/or exercisable), any such equity awards that have become vested and/or exercisable prior to the date of Kors’ termination of employment hereunder (the “Termination Date”) shall remain vested and/or exercisable after the Termination Date in accordance with the terms and conditions of the Equity Incentive Plan and/or any applicable equity award agreement.
2
--------------------------------------------------------------------------------
(iii) The Corporation shall provide the health and medical insurance coverage referred to in Section 5(a)(i) above at its own cost without contribution from Kors. The Corporation also shall pay during the Term the premiums on (A) the whole life insurance policy (the “Whole Life Policy”) currently in place on the life of Kors and (B) the $500,000 term life insurance policy (the “Term Life Policy”) currently in place on the life of Kors, both of which policies are owned by Kors. Upon termination of this Agreement, the Corporation shall cease to pay premiums on the Whole Life Policy and the Term Life Policy and Kors shall thereafter be solely responsible for the payment of any premiums on both such policies.
(iv) The Corporation shall provide Kors with an automobile and driver for transportation to and from the Corporation’s offices and for other business purposes. Such automobile shall be a Mercedes-Benz S-Class or an automobile at least substantially equivalent in price thereto.
(b) In addition to the foregoing, Kors acknowledges and agrees that the Corporation may apply for, and purchase, key-man life insurance covering Kors (the “Key-Man Insurance”). The Corporation shall own all rights in any such Key-Man Insurance policies and the proceeds thereof, and Kors shall not have any right, title or interest therein. Kors agrees to assist the Corporation, at the Corporation’s expense, in obtaining such Key-Man Insurance by, among other things, submitting to the customary examinations and correctly preparing, signing and delivering such applications and other documents as may be required by potential insurers.
(c) Anything to the contrary herein notwithstanding, in the event of the occurrence of a condition that may with the passage of time constitute a Permanent Disability (as defined below) of Kors, then the Corporation shall continue to pay to Kors his Base Salary and all other compensation and benefits owed to Kors hereunder until the termination of this Agreement as provided in Section 10 below, less any payments received by Kors from any disability insurance policy whose premiums are paid by the Corporation. For purposes of this Agreement, the term “Permanent Disability” shall mean any mental or physical condition that: (i) prevents Kors from reasonably discharging his services and employment duties hereunder; (ii) is attested to in writing by a physician who is licensed to practice in the State of New York and is mutually acceptable to Kors and the Corporation (or, if Kors and the Corporation are unable to mutually agree on a physician, the Board may select a physician who is a chairman of a department of medicine at a university-affiliated hospital in the City of New York); and (iii) continues, for any one or related condition, during any period of six (6) consecutive months or for a period aggregating six (6) months in any twelve-month period; and such Permanent Disability shall be deemed to have occurred on the last day of such applicable six-month period.
6. Vacation; Meetings. Kors shall be entitled to six (6) weeks of vacation annually, and such additional vacation time as may be agreed to by the Chairman of the Board. Kors shall be entitled to additional time off for attendance at meetings, conventions and educational courses, as the Chairman or the Board may from time to time allow.
7. Expenses; Indemnification.
(a) The Corporation shall reimburse Kors for the reasonable business expenses (including travel at the highest class of service available and the use of the corporate jet or private charter in accordance with the Corporation’s policy) incurred by Kors in the course of performing his duties for MKHL and the Corporation, subject to Kors’ compliance with the policies and procedures for reimbursement generally in effect from time to time for senior officers of the Corporation.
(b) The Corporation and/or MKHL (as applicable) will indemnify Kors and hold him harmless to the maximum extent permitted by applicable law, against all costs, charges, liabilities and expenses incurred or sustained by him in connection with any action, suit, claim or proceeding to which he may be made a party by reason of his being an officer, director or employee of the Corporation or of any other member of the MK Group; provided, however, that in no event shall Kors be indemnified for acts taken by him in bad faith or in breach of his duty of loyalty to the Corporation or MKHL under applicable law. Notwithstanding the foregoing, Kors’ indemnification and hold harmless rights under this Section 7 shall in no event be less favorable in any respect than the terms of any indemnification and hold harmless rights provided by the Corporation and/or MKHL to any senior officer of the Corporation under an employment agreement, indemnification agreement or otherwise. The provisions of this subsection (b) shall survive the termination of this Agreement.
8. Confidentiality; Intellectual Property Rights.
(a) Kors acknowledges that his work for and with the Corporation and the other members of the MK Group will bring him into close contact with the confidential affairs of the MK Group, including, without limitation, confidential information and trade secrets concerning the MK Group’s working methods, processes, business and other plans, programs, designs, products, profit formulas, customer names, customer requirements and supplier names (collectively, “Confidential Information”). “Confidential Information” shall not include (i) information generally known to the public, (ii) information properly received by Kors outside his engagement with the Corporation (or any predecessor of the Corporation) or any other member of the MK Group from any third party not affiliated with the
3
--------------------------------------------------------------------------------
MK Group and not under any duty to the Corporation not to disclose such information, and (iii) any materials, including designs and products created by Kors and which are otherwise “Confidential Information”, to the extent approved in writing by the Corporation, which approval shall not be unreasonably withheld. Kors acknowledges that such Confidential Information is reposed in him in trust and he shall, both during and for a period of three years after the Term (or such longer period as the Corporation may be bound to keep any such Confidential Information confidential pursuant to any agreement or otherwise), maintain such Confidential Information in confidence and, except as may be required under applicable law, neither disclose to others nor use such Confidential Information personally without written permission of the Corporation. Kors agrees, upon termination of this Agreement, to return to the Corporation all documents or recorded material of any type (including all copies thereof) which may be in his possession or under his control dealing with the Confidential Information.
(b) All trademarks, designs, copyrights and other intellectual property created by or at the direction of Kors in the course of his employment by the Corporation shall remain the property of, and be exclusively owned by, the Corporation without further act of either party. Kors shall, at the reasonable request of the Corporation, execute such documents as may be reasonably necessary to confirm or evidence the Corporation’s ownership of such property.
(c) The obligations of this Section 8 shall survive the termination of this Agreement. Notwithstanding anything to the contrary set forth herein or in any other agreement to which Kors, on the one hand, and the Corporation or any other member of the MK Group, on the other hand, are parties or by which they are bound, the obligations of confidentiality contained herein and therein, as they relate to the transactions contemplated by this Agreement, shall not apply to the “structure or the tax aspects” (as that phrase is used in Section 1.6011-4T(a)(3) (or any successor provision) of the Treasury Regulations promulgated under Section 6011 of the Code) of such transactions.
9. Notices. Any notice or request permitted or required hereunder shall be in writing deemed sufficient when delivered in person or mailed by certified mail, postage prepaid, or transmitted by facsimile, and addressed if to the Corporation or MKHL, c/o the Corporation at the Corporation’s principal executive offices in New York, New York, Facsimile No.: (646) 354-4826, Attn: Chief Executive Officer, and if to Kors, to his home address on file with the Corporation, with copy to:
Patterson Belknap, Webb & Tyler LLP
1133 Avenue of the Americas
New York, New York 10036-6710
Attention: Peter J. Schaeffer, Esq.
Facsimile No.: (212) 336-2222
or to such other address as may be provided by such notice.
10. No Termination.
(a) The Corporation may not terminate the Agreement and Kors’ employment hereunder for any reason other than Cause (as defined below). It is expressly understood that Kors is to be employed hereunder until he dies or becomes Permanently Disabled (in which case this Agreement shall immediately terminate and the Corporation shall only be liable to promptly pay to Kors or his estate (as applicable) the Accrued Obligations and Pro Rata Bonus Payment (each as defined below)); provided, however, that Kors has not been terminated for Cause as aforesaid. In the event that the Corporation or MKHL materially breaches its obligations hereunder, including, without limitation, the Corporation’s obligations to make payments pursuant to Section 4 hereof, then upon thirty (30) days’ notice to the Corporation (which notice shall describe such breach in reasonable detail), unless the Corporation or MKHL, as applicable, (i) cures such breach within such thirty (30)-day period (or, if the breach cannot reasonably be cured within such thirty (30)-day period, initiates all possible action that substantially cures the breach within such thirty (30)-day period) to Kors’ reasonable satisfaction (which curative action, at a minimum, places Kors in a no less favorable economic and financial position than he would have been in had the breach not occurred) and (ii) provides evidence satisfactory to Kors that the Corporation or MKHL, as applicable, has done so, Kors may terminate his employment under this Agreement and in such event shall be relieved of all his further obligations hereunder and entitled to exercise any rights and remedies he may have at law or in equity with respect to such material breach. In the event of such termination due to breach by the Corporation or MKHL, the Corporation shall, in addition and not in limitation to any other rights and remedies Kors may have hereunder, at law or in equity, (A) promptly (i) pay Kors any Base Salary earned but not yet paid prior to the date of termination; (ii) pay Kors for any untaken accrued vacation during the calendar year, (iii) reimburse Kors for any expenses pursuant to Section 7(a) and (iv) permit Kors to maintain his vested equity awards in accordance with Section 5(a)(ii) (collectively, the “Accrued Obligations”), and (B) (i) with respect to a termination that occurs during the course of any Part-Year Performance Period, an amount representing the amount that the Part-Year Bonus would have been, based on actual performance over the course of the Part-Year Performance Period, assuming Kors’ employment had not been terminated hereunder, multiplied by a fraction the numerator of which is the number of days Kors was employed hereunder during the Part-Year Performance Period and the denominator of which is the full number of days in the Part-Year Performance Period and (ii) with respect to a termination that occurs during the course of any Annual
4
--------------------------------------------------------------------------------
Performance Period, an amount representing the amount that the Annual Bonus would have been, based on actual performance over the course of the Annual Performance Period, assuming Kors’ employment had not been terminated hereunder, multiplied by a fraction the numerator of which is the number of days Kors was employed hereunder during the Annual Performance Period and the denominator of which is the full number of days in the Annual Performance Period ((i) and (ii) together, the “Pro Rata Bonus Payment”).
“Cause” shall mean: (i) the material breach by Kors of any material provision contained in this Agreement (including, without limitation, the provisions set forth in Section 3 hereof), which breach continues without the cure thereof by Kors for a period of thirty (30) days following written notice thereof from the Corporation to Kors (which notice shall describe Kors’ breach in reasonable detail); (ii) the conviction of Kors for fraudulent or criminal conduct adversely affecting the Corporation; and (iii) the commission by Kors of any willful, reckless, or grossly negligent act which has a material adverse effect on the Corporation or its products, trademarks or goodwill (including, without limitation, the reputation thereof).
(b) If Kors shall terminate his employment under this Agreement without the consent of the Corporation other than by reason of Kors’ death, Permanent Disability or pursuant to the third sentence of Section 10(a) of this Agreement, the Corporation shall only remain responsible to Kors for (i) the Accrued Obligations, (ii) payment of any Part-Year Bonus with respect to a Part-Year Performance Period that was completed prior to Kors’ termination from employment but which has not yet been paid, and (iii) payment of any Annual Bonus with respect to any Annual Performance Period that was completed prior to Kors’ termination from employment but which has not yet been paid, and in the case of each of clauses (ii) and (iii), such bonuses shall be paid at such times as they would have otherwise been paid to Kors hereunder had employment not been terminated and such bonus amounts shall be subject to certification by the Compensation Committee as described in Section 4 of this Agreement. All other obligations of the Corporations shall cease and, subject to Section 11, the parties hereto shall be relieved of all further obligations hereunder.
11. Kors Non-Competition. If Kors shall have terminated this Agreement pursuant to Section 10(b), for the remainder of Kors’ lifetime, (i) Kors agrees to serve as an independent and exclusive design consultant to the Corporation for a fee of US$1,000,000 per year, payable monthly in arrears in equal installments with such duties as shall be mutually agreed in good faith at such time, and (ii) in consideration thereof, Kors shall not, without the written consent of the Board, engage anywhere in the world where the Corporation or any other member of the MK Group is doing business, directly or indirectly, as a designer, consultant, officer, director, employee, agent, proprietor, partner or shareholder in any business (other than on behalf of the Corporation or any other member of the MK Group) which engages in activities in competition with the Corporation or any other member of the MK Group to the extent those activities were carried on by the Corporation or any other member of the MK Group during the Term; provided, however, that the Corporation may terminate such consulting arrangement and cease making such payments at any time, in which event Kors’ obligations to serve as a consultant to the Corporation and to comply with such non-competition restrictions shall immediately terminate. Notwithstanding the foregoing, at any time, Kors may own up to 5% of the common stock or other securities of any public corporation and may have an interest as a member or limited partner in any limited liability company or partnership, provided he provides no services or advice of any kind to any such corporation, limited liability company or partnership.
12. Other Lines of Business; Transfer or Encumbrance of Marks. The MK Group shall not enter into any new line of business without the consent of Kors if Kors shall reasonably determine that such line of business is detrimental to the Marks.
13. Miscellaneous. This Agreement (i) constitutes the entire agreement between the parties concerning the subjects hereof and supersedes all prior agreements, (ii) may not be assigned by Kors without the prior written consent of the Corporation, but shall be binding upon and inure to the benefit of Kors’ heirs, legal representatives and permitted assigns (without limiting the generality of the foregoing, the provisions of Sections 4 and 7 hereof specifically shall inure to the benefit of such heirs, legal representatives, successors and permitted assigns), (iii) may be assigned by the Corporation in connection with any transfer of all or a substantial portion of the Corporation’s assets and shall be binding upon, and inure to the benefit of, the Corporation’s and MKHL’s successors and assigns, and (iv) may not be amended, modified or supplemented except by a writing signed by each party.
14. Arbitration. All disputes arising under this Agreement including but not limited to any claim for specific performance under Section 15 of this Agreement shall be submitted to binding arbitration in accordance with the rules of commercial arbitration of the American Arbitration Association of the City of New York. Any arbitration proceeding shall be conducted in New York, New York before a single arbitrator or, if requested by either party, by a panel of three arbitrators.
15. Specific Enforcement. In addition to any remedies available to the parties at law, the parties each acknowledge that they would be irreparably damaged and there would be no adequate remedy at law for breach of either’s obligations hereunder and, accordingly, this Agreement is to be specifically enforced if not performed according to its terms.
16. Severability. The provisions of this Agreement are severable. The invalidity of any provision shall not affect the validity of any other provision.
5
--------------------------------------------------------------------------------
17. Governing Law. This Agreement shall be construed and governed in all respects under the laws of the State of New York (without reference to such State’s conflict of law rules).
18. Headings. Headings in this Agreement are for convenience of reference only and shall not define, limit or interpret the contents hereof.
19. Taxes. All payments to be made to and on behalf of Kors under this Agreement will be subject to required withholding of federal, state and local income and employment taxes, and to related record reporting requirements, including, with respect to the retainer payment referred to in the last sentence of Section 4(a), applicable U.K. statutory reductions.
20. Code Section 409A.
(a) It is the intention of the parties hereto that, to the extent any amounts or benefits payable under or otherwise with respect to this Agreement constitute nonqualified deferred compensation that is or may be subject to Section 409A of the Code and the treasury regulations or other official pronouncements thereunder (herein, collectively, “Section 409A”), the provisions of this Agreement shall be interpreted and administered in a manner (which may, as appropriate, include amendments to this Agreement) that will enable such amounts or benefits to satisfy the requirements of Section 409A (either pursuant to qualifying for an exemption from coverage under Section 409A or satisfying the substantive provisions for compliance with such section).
(b) For purposes of any reimbursement of expenses due to Kors or the provision of in-kind benefits with respect to Kors (including, without limitation, pursuant to Section 7 above), such reimbursements shall be made in a manner consistent with Code Section 409A, including Treasury Regulation Section 1.409A-3(i)(1)(iv). In that regard (i) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during a calendar year shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year, (ii) the reimbursement of eligible expenses shall be made on or before the end of the calendar year following the calendar year in which the expense was incurred, and (iii) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit.
(c) In the event that any amount or benefit payable under or otherwise with respect to this Agreement is conditioned on Kors’ termination of employment and such amount or benefit is not otherwise exempt from Section 409A, such termination of employment shall mean a “separation from service” within the meaning of Section 409A. In addition, if any such payment is conditioned on a separation from service by Kors and Kors shall then be a “specified employee” (as defined in Treasury Regulation section 1.409A-1(i)), then, to the extent necessary to avoid a violation of Section 409A, the portion of any such payment that would otherwise be paid within the six-month period immediately following Kors’ separation from service shall instead be deferred and paid in a single sum on the first day following the end of such six-month period.
IN WITNESS WHEREOF, this Agreement is entered into as of the day and year first above written.
MICHAEL KORS (USA), INC. By:
/s/ John D. Idol
Name: John D. Idol Title: Chairman & Chief Executive Officer MICHAEL KORS HOLDINGS LIMITED By:
/s/ John D. Idol
Name: John D. Idol Title: Chairman & Chief Executive Officer
/s/ Michael D. Kors
Michael D. Kors
6 | [
"Exhibit 10.7 EXECUTION COPY SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT This SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT, dated as of May 20, 2015 (this “Agreement”), by and among MICHAEL KORS (USA), INC., a Delaware corporation having its principal executive office in New York County, New York (the “Corporation”), MICHAEL KORS HOLDINGS LIMITED, a British Virgin Islands corporation having its principal executive office in London, United Kingdom (“MKHL”) and MICHAEL D. KORS, a resident of New York, New York (“Kors”). IT IS AGREED AS FOLLOWS: 1. Term. The Corporation agrees to employ Kors, and Kors agrees to serve the Corporation, for a term (the “Term”) that began on January 29, 2003 and ending as provided herein, upon the terms and conditions set forth herein.",
"2. Offices and Positions. Throughout the Term, Kors shall have the title of Honorary Chairman and Chief Creative Officer of the Corporation and MKHL, and the Corporation and MKHL shall each use its best efforts to cause Kors to be appointed or elected, as the case may be, to the Board of Directors of MKHL (the “Board”) and the Board of Directors of the Corporation. During the Term, MKHL shall consult with Kors regarding the hiring of any Chief Executive Officer (or equivalent executive officer) of MKHL or the Corporation. 3. Duties. (a) Throughout the Term, Kors shall devote substantially all of his business time exclusively to the business of MKHL and its affiliates to design collections of apparel, accessories and related products as needed by MKHL and its affiliates and to promote the business and affairs of MKHL and its affiliates.",
"It is agreed and understood that, during the Term, Kors will have creative and aesthetic control of the products produced and sold under or bearing the “MICHAEL KORS” trademark and any variation of such name and the initials of such name in whatever form or style and all related trade names, copyrights, logos and similar rights (the “Marks”), including exclusive control of the design of such products; provided, that this sentence shall not apply to any attempted exercise by Kors of the foregoing rights that is not commercially reasonable. (b) Throughout the Term, Kors shall not, without the prior written consent of the Corporation, directly or indirectly, render services to or for any other person or firm whether or not for compensation or engage in any activity that, in either case, is in competition with the business of MKHL, the Corporation or any other subsidiary of MKHL (MKHL and its subsidiaries collectively, the “MK Group”); provided, however, that Kors may participate in charitable activities not inconsistent with the intent of this Agreement. The making of passive personal investments shall not be prohibited hereunder. In addition, subject to Section 3(a), Kors may participate in literary, theatrical or artistic activities, but only if and to the extent that the Corporation shall have determined in advance (in its reasonable discretion) that such activities would not be detrimental to the Marks. 4.",
"Compensation. (a) Salary. Throughout the Term, the Corporation shall pay to Kors a salary (the “Base Salary”) at the rate of US$1,000,000 per annum, which, except as otherwise set forth in the last sentence of this Section 4(a), shall be payable by the Corporation to Kors in periodic installments in accordance with the Corporation’s customary payroll practices. The Base Salary shall be subject to possible increases at the sole discretion of the Board; provided, however, that in no event shall Kors’ Base Salary during the Term be less than at the rate of US$1,000,000 per year. A portion of Kors’ Base Salary equal to the annual retainer paid to MKHL’s independent directors (currently US$70,000) shall be payable to Kors by MKHL on a quarterly basis at the same time such retainer payments are paid to the independent directors of MKHL. (b) Bonus.",
"(i) During the Term, commencing with MKHL’s fiscal year that began on March 29, 2015 (the “2016 Fiscal Year”), Kors shall be eligible to receive the bonuses described in this Section 4, subject to approval of the bonus plan pursuant to which bonuses will be paid by the shareholders of MKHL in a manner that complies with the shareholder approval requirements of Section 162(m) of the U.S. Internal Revenue Code of 1986, as amended (“Section 162(m)”). Except as otherwise provided in Section 10, Kors must be employed by MKHL or the Corporation as of the last day of the applicable performance period described below in order to be eligible to receive the bonus payable in respect of such period.",
"Each bonus shall be administered by the Compensation Committee of the Board (the “Compensation Committee”). -------------------------------------------------------------------------------- (ii) During the Term, commencing with the 2016 Fiscal Year, Kors shall be eligible to receive a bonus (the “Part-Year Bonus”) with respect to the performance period beginning on the first day of each fiscal year and ending on the last day of the second fiscal quarter of such year (the “Part-Year Performance Period”). The amount of the Part-Year Bonus shall be equal to 1% of the consolidated income from operations of MKHL for the Part-Year Performance Period, increased by depreciation plus amortization plus impairment of long-lived assets, in each case calculated in accordance with U.S. generally accepted accounting principles and disclosed in MKHL’s Consolidated Statements of Operations and Comprehensive Income (“MKHL EBITDA”), up to a maximum of US$1,500,000.",
"The Compensation Committee must certify the MKHL EBITDA for the Part-Year Performance Period and the amount of the Part-Year Bonus. Once certified, the Part-Year Bonus will be paid to Kors reasonably promptly and in no event later than December 30 next following the last day of the applicable Part-Year Performance Period. (iii) During the Term, commencing with the 2016 Fiscal Year, Kors shall be eligible to receive an annual bonus (the “Annual Bonus”) with respect to each full fiscal year of MKHL (the “Annual Performance Period”). The amount of the Annual Bonus shall be (i) 1% of MKHL EBITDA during the Annual Performance Period, up to a maximum of US$6,500,000, reduced by (ii) the amount of the Part-Year Bonus in respect of the same fiscal year.",
"The Compensation Committee must certify the MKHL EBITDA for the Annual Performance Period and the amount of the Annual Bonus. Once certified, the Annual Bonus will be paid to Kors reasonably promptly and in no event later than June 30 next following the last day of the Annual Performance Period. (iv) Notwithstanding the foregoing, if the Compensation Committee determines that Kors was overpaid, in whole or in part, as a result of a restatement of the reported financial or operating results of MKHL due to material non-compliance with financial reporting requirements (unless due to a change in accounting policy or applicable law), the Corporation shall be entitled to recover or cancel the difference between (i) any bonus payment that was based on having met or exceeded performance targets and (ii) the bonus payment that would have been paid or earned to Kors had the actual payment or accrual been calculated based on the accurate data or restated results, as applicable (the “Overpayment”).",
"If the Compensation Committee determines that there has been an Overpayment, the Corporation shall be entitled to demand that Kors reimburse the Corporation for the Overpayment. To the extent Kors does not make reimbursement of the Overpayment, the Corporation shall have the right to enforce the repayment through the reduction of future salary or the reduction or cancellation of outstanding and future incentive compensation and/or to pursue all other available legal remedies in law or in equity. The Compensation Committee may make determinations of Overpayment at any time through the end of the third (3rd) fiscal year following the year for which the inaccurate performance criteria were measured; provided, that if steps have been taken within such period to restate MKHL’s financial or operating results, the time period shall be extended until such restatement is completed. (c) Other Compensation.",
"In addition to what is required pursuant to Section 5, the Corporation may pay, but shall have no obligation to pay, to Kors such additional compensation in the form of bonuses, fringe benefits or otherwise in such amounts and at such times as the Compensation Committee shall from time to time determine in its sole and absolute discretion. 5. Benefits. (a) In addition to the compensation described in Section 4, during the Term, Kors shall be entitled to the following: (i) Kors shall be entitled to participate in all Corporation employee benefit plans (to the extent Kors is eligible therefor), including, without limitation, any health and retirement plans (but, except as otherwise provided in this Agreement or as determined by the Compensation Committee, excluding bonus plans), in each case subject to any applicable laws which shall be in effect from time to time and on the same basis as is available to the other senior officers of the Corporation.",
"If any such benefit plan shall be unavailable to Kors by reason of his nationality or residence, the Corporation shall use it best efforts to provide a substantially equivalent benefit, through another source, at its expense. (ii) Kors shall be eligible, in the discretion of the Compensation Committee, for share option awards, restricted share unit awards and other equity-based awards under the equity incentive plan generally applicable to eligible employees of the Corporation (currently the Michael Kors Holdings Limited Omnibus Incentive Plan) (the “Equity Incentive Plan”), in accordance with, and subject to, the terms and conditions of the Equity Incentive Plan as the same may be amended or modified by MKHL or its subsidiaries from time to time in their sole discretion (subject to shareholder approval if required) and the applicable equity award agreement.",
"Except in the case of the termination of Kors for Cause, in which case any share-based awards granted to Kors under the Equity Plan shall be forfeited and any share options granted to Kors under the Equity Plan shall immediately terminate (whether or not vested and/or exercisable), any such equity awards that have become vested and/or exercisable prior to the date of Kors’ termination of employment hereunder (the “Termination Date”) shall remain vested and/or exercisable after the Termination Date in accordance with the terms and conditions of the Equity Incentive Plan and/or any applicable equity award agreement. 2 -------------------------------------------------------------------------------- (iii) The Corporation shall provide the health and medical insurance coverage referred to in Section 5(a)(i) above at its own cost without contribution from Kors. The Corporation also shall pay during the Term the premiums on (A) the whole life insurance policy (the “Whole Life Policy”) currently in place on the life of Kors and (B) the $500,000 term life insurance policy (the “Term Life Policy”) currently in place on the life of Kors, both of which policies are owned by Kors.",
"Upon termination of this Agreement, the Corporation shall cease to pay premiums on the Whole Life Policy and the Term Life Policy and Kors shall thereafter be solely responsible for the payment of any premiums on both such policies. (iv) The Corporation shall provide Kors with an automobile and driver for transportation to and from the Corporation’s offices and for other business purposes. Such automobile shall be a Mercedes-Benz S-Class or an automobile at least substantially equivalent in price thereto. (b) In addition to the foregoing, Kors acknowledges and agrees that the Corporation may apply for, and purchase, key-man life insurance covering Kors (the “Key-Man Insurance”). The Corporation shall own all rights in any such Key-Man Insurance policies and the proceeds thereof, and Kors shall not have any right, title or interest therein.",
"Kors agrees to assist the Corporation, at the Corporation’s expense, in obtaining such Key-Man Insurance by, among other things, submitting to the customary examinations and correctly preparing, signing and delivering such applications and other documents as may be required by potential insurers. (c) Anything to the contrary herein notwithstanding, in the event of the occurrence of a condition that may with the passage of time constitute a Permanent Disability (as defined below) of Kors, then the Corporation shall continue to pay to Kors his Base Salary and all other compensation and benefits owed to Kors hereunder until the termination of this Agreement as provided in Section 10 below, less any payments received by Kors from any disability insurance policy whose premiums are paid by the Corporation. For purposes of this Agreement, the term “Permanent Disability” shall mean any mental or physical condition that: (i) prevents Kors from reasonably discharging his services and employment duties hereunder; (ii) is attested to in writing by a physician who is licensed to practice in the State of New York and is mutually acceptable to Kors and the Corporation (or, if Kors and the Corporation are unable to mutually agree on a physician, the Board may select a physician who is a chairman of a department of medicine at a university-affiliated hospital in the City of New York); and (iii) continues, for any one or related condition, during any period of six (6) consecutive months or for a period aggregating six (6) months in any twelve-month period; and such Permanent Disability shall be deemed to have occurred on the last day of such applicable six-month period.",
"6. Vacation; Meetings. Kors shall be entitled to six (6) weeks of vacation annually, and such additional vacation time as may be agreed to by the Chairman of the Board. Kors shall be entitled to additional time off for attendance at meetings, conventions and educational courses, as the Chairman or the Board may from time to time allow. 7. Expenses; Indemnification. (a) The Corporation shall reimburse Kors for the reasonable business expenses (including travel at the highest class of service available and the use of the corporate jet or private charter in accordance with the Corporation’s policy) incurred by Kors in the course of performing his duties for MKHL and the Corporation, subject to Kors’ compliance with the policies and procedures for reimbursement generally in effect from time to time for senior officers of the Corporation.",
"(b) The Corporation and/or MKHL (as applicable) will indemnify Kors and hold him harmless to the maximum extent permitted by applicable law, against all costs, charges, liabilities and expenses incurred or sustained by him in connection with any action, suit, claim or proceeding to which he may be made a party by reason of his being an officer, director or employee of the Corporation or of any other member of the MK Group; provided, however, that in no event shall Kors be indemnified for acts taken by him in bad faith or in breach of his duty of loyalty to the Corporation or MKHL under applicable law. Notwithstanding the foregoing, Kors’ indemnification and hold harmless rights under this Section 7 shall in no event be less favorable in any respect than the terms of any indemnification and hold harmless rights provided by the Corporation and/or MKHL to any senior officer of the Corporation under an employment agreement, indemnification agreement or otherwise. The provisions of this subsection (b) shall survive the termination of this Agreement.",
"8. Confidentiality; Intellectual Property Rights. (a) Kors acknowledges that his work for and with the Corporation and the other members of the MK Group will bring him into close contact with the confidential affairs of the MK Group, including, without limitation, confidential information and trade secrets concerning the MK Group’s working methods, processes, business and other plans, programs, designs, products, profit formulas, customer names, customer requirements and supplier names (collectively, “Confidential Information”). “Confidential Information” shall not include (i) information generally known to the public, (ii) information properly received by Kors outside his engagement with the Corporation (or any predecessor of the Corporation) or any other member of the MK Group from any third party not affiliated with the 3 -------------------------------------------------------------------------------- MK Group and not under any duty to the Corporation not to disclose such information, and (iii) any materials, including designs and products created by Kors and which are otherwise “Confidential Information”, to the extent approved in writing by the Corporation, which approval shall not be unreasonably withheld. Kors acknowledges that such Confidential Information is reposed in him in trust and he shall, both during and for a period of three years after the Term (or such longer period as the Corporation may be bound to keep any such Confidential Information confidential pursuant to any agreement or otherwise), maintain such Confidential Information in confidence and, except as may be required under applicable law, neither disclose to others nor use such Confidential Information personally without written permission of the Corporation.",
"Kors agrees, upon termination of this Agreement, to return to the Corporation all documents or recorded material of any type (including all copies thereof) which may be in his possession or under his control dealing with the Confidential Information. (b) All trademarks, designs, copyrights and other intellectual property created by or at the direction of Kors in the course of his employment by the Corporation shall remain the property of, and be exclusively owned by, the Corporation without further act of either party. Kors shall, at the reasonable request of the Corporation, execute such documents as may be reasonably necessary to confirm or evidence the Corporation’s ownership of such property.",
"(c) The obligations of this Section 8 shall survive the termination of this Agreement. Notwithstanding anything to the contrary set forth herein or in any other agreement to which Kors, on the one hand, and the Corporation or any other member of the MK Group, on the other hand, are parties or by which they are bound, the obligations of confidentiality contained herein and therein, as they relate to the transactions contemplated by this Agreement, shall not apply to the “structure or the tax aspects” (as that phrase is used in Section 1.6011-4T(a)(3) (or any successor provision) of the Treasury Regulations promulgated under Section 6011 of the Code) of such transactions.",
"9. Notices. Any notice or request permitted or required hereunder shall be in writing deemed sufficient when delivered in person or mailed by certified mail, postage prepaid, or transmitted by facsimile, and addressed if to the Corporation or MKHL, c/o the Corporation at the Corporation’s principal executive offices in New York, New York, Facsimile No. : (646) 354-4826, Attn: Chief Executive Officer, and if to Kors, to his home address on file with the Corporation, with copy to: Patterson Belknap, Webb & Tyler LLP 1133 Avenue of the Americas New York, New York 10036-6710 Attention: Peter J. Schaeffer, Esq.",
"Facsimile No. : (212) 336-2222 or to such other address as may be provided by such notice. 10. No Termination. (a) The Corporation may not terminate the Agreement and Kors’ employment hereunder for any reason other than Cause (as defined below). It is expressly understood that Kors is to be employed hereunder until he dies or becomes Permanently Disabled (in which case this Agreement shall immediately terminate and the Corporation shall only be liable to promptly pay to Kors or his estate (as applicable) the Accrued Obligations and Pro Rata Bonus Payment (each as defined below)); provided, however, that Kors has not been terminated for Cause as aforesaid. In the event that the Corporation or MKHL materially breaches its obligations hereunder, including, without limitation, the Corporation’s obligations to make payments pursuant to Section 4 hereof, then upon thirty (30) days’ notice to the Corporation (which notice shall describe such breach in reasonable detail), unless the Corporation or MKHL, as applicable, (i) cures such breach within such thirty (30)-day period (or, if the breach cannot reasonably be cured within such thirty (30)-day period, initiates all possible action that substantially cures the breach within such thirty (30)-day period) to Kors’ reasonable satisfaction (which curative action, at a minimum, places Kors in a no less favorable economic and financial position than he would have been in had the breach not occurred) and (ii) provides evidence satisfactory to Kors that the Corporation or MKHL, as applicable, has done so, Kors may terminate his employment under this Agreement and in such event shall be relieved of all his further obligations hereunder and entitled to exercise any rights and remedies he may have at law or in equity with respect to such material breach.",
"In the event of such termination due to breach by the Corporation or MKHL, the Corporation shall, in addition and not in limitation to any other rights and remedies Kors may have hereunder, at law or in equity, (A) promptly (i) pay Kors any Base Salary earned but not yet paid prior to the date of termination; (ii) pay Kors for any untaken accrued vacation during the calendar year, (iii) reimburse Kors for any expenses pursuant to Section 7(a) and (iv) permit Kors to maintain his vested equity awards in accordance with Section 5(a)(ii) (collectively, the “Accrued Obligations”), and (B) (i) with respect to a termination that occurs during the course of any Part-Year Performance Period, an amount representing the amount that the Part-Year Bonus would have been, based on actual performance over the course of the Part-Year Performance Period, assuming Kors’ employment had not been terminated hereunder, multiplied by a fraction the numerator of which is the number of days Kors was employed hereunder during the Part-Year Performance Period and the denominator of which is the full number of days in the Part-Year Performance Period and (ii) with respect to a termination that occurs during the course of any Annual 4 -------------------------------------------------------------------------------- Performance Period, an amount representing the amount that the Annual Bonus would have been, based on actual performance over the course of the Annual Performance Period, assuming Kors’ employment had not been terminated hereunder, multiplied by a fraction the numerator of which is the number of days Kors was employed hereunder during the Annual Performance Period and the denominator of which is the full number of days in the Annual Performance Period ((i) and (ii) together, the “Pro Rata Bonus Payment”).",
"“Cause” shall mean: (i) the material breach by Kors of any material provision contained in this Agreement (including, without limitation, the provisions set forth in Section 3 hereof), which breach continues without the cure thereof by Kors for a period of thirty (30) days following written notice thereof from the Corporation to Kors (which notice shall describe Kors’ breach in reasonable detail); (ii) the conviction of Kors for fraudulent or criminal conduct adversely affecting the Corporation; and (iii) the commission by Kors of any willful, reckless, or grossly negligent act which has a material adverse effect on the Corporation or its products, trademarks or goodwill (including, without limitation, the reputation thereof).",
"(b) If Kors shall terminate his employment under this Agreement without the consent of the Corporation other than by reason of Kors’ death, Permanent Disability or pursuant to the third sentence of Section 10(a) of this Agreement, the Corporation shall only remain responsible to Kors for (i) the Accrued Obligations, (ii) payment of any Part-Year Bonus with respect to a Part-Year Performance Period that was completed prior to Kors’ termination from employment but which has not yet been paid, and (iii) payment of any Annual Bonus with respect to any Annual Performance Period that was completed prior to Kors’ termination from employment but which has not yet been paid, and in the case of each of clauses (ii) and (iii), such bonuses shall be paid at such times as they would have otherwise been paid to Kors hereunder had employment not been terminated and such bonus amounts shall be subject to certification by the Compensation Committee as described in Section 4 of this Agreement. All other obligations of the Corporations shall cease and, subject to Section 11, the parties hereto shall be relieved of all further obligations hereunder. 11. Kors Non-Competition. If Kors shall have terminated this Agreement pursuant to Section 10(b), for the remainder of Kors’ lifetime, (i) Kors agrees to serve as an independent and exclusive design consultant to the Corporation for a fee of US$1,000,000 per year, payable monthly in arrears in equal installments with such duties as shall be mutually agreed in good faith at such time, and (ii) in consideration thereof, Kors shall not, without the written consent of the Board, engage anywhere in the world where the Corporation or any other member of the MK Group is doing business, directly or indirectly, as a designer, consultant, officer, director, employee, agent, proprietor, partner or shareholder in any business (other than on behalf of the Corporation or any other member of the MK Group) which engages in activities in competition with the Corporation or any other member of the MK Group to the extent those activities were carried on by the Corporation or any other member of the MK Group during the Term; provided, however, that the Corporation may terminate such consulting arrangement and cease making such payments at any time, in which event Kors’ obligations to serve as a consultant to the Corporation and to comply with such non-competition restrictions shall immediately terminate.",
"Notwithstanding the foregoing, at any time, Kors may own up to 5% of the common stock or other securities of any public corporation and may have an interest as a member or limited partner in any limited liability company or partnership, provided he provides no services or advice of any kind to any such corporation, limited liability company or partnership. 12. Other Lines of Business; Transfer or Encumbrance of Marks. The MK Group shall not enter into any new line of business without the consent of Kors if Kors shall reasonably determine that such line of business is detrimental to the Marks. 13. Miscellaneous. This Agreement (i) constitutes the entire agreement between the parties concerning the subjects hereof and supersedes all prior agreements, (ii) may not be assigned by Kors without the prior written consent of the Corporation, but shall be binding upon and inure to the benefit of Kors’ heirs, legal representatives and permitted assigns (without limiting the generality of the foregoing, the provisions of Sections 4 and 7 hereof specifically shall inure to the benefit of such heirs, legal representatives, successors and permitted assigns), (iii) may be assigned by the Corporation in connection with any transfer of all or a substantial portion of the Corporation’s assets and shall be binding upon, and inure to the benefit of, the Corporation’s and MKHL’s successors and assigns, and (iv) may not be amended, modified or supplemented except by a writing signed by each party.",
"14. Arbitration. All disputes arising under this Agreement including but not limited to any claim for specific performance under Section 15 of this Agreement shall be submitted to binding arbitration in accordance with the rules of commercial arbitration of the American Arbitration Association of the City of New York. Any arbitration proceeding shall be conducted in New York, New York before a single arbitrator or, if requested by either party, by a panel of three arbitrators. 15. Specific Enforcement.",
"In addition to any remedies available to the parties at law, the parties each acknowledge that they would be irreparably damaged and there would be no adequate remedy at law for breach of either’s obligations hereunder and, accordingly, this Agreement is to be specifically enforced if not performed according to its terms. 16. Severability. The provisions of this Agreement are severable. The invalidity of any provision shall not affect the validity of any other provision.",
"5 -------------------------------------------------------------------------------- 17. Governing Law. This Agreement shall be construed and governed in all respects under the laws of the State of New York (without reference to such State’s conflict of law rules). 18. Headings. Headings in this Agreement are for convenience of reference only and shall not define, limit or interpret the contents hereof. 19. Taxes. All payments to be made to and on behalf of Kors under this Agreement will be subject to required withholding of federal, state and local income and employment taxes, and to related record reporting requirements, including, with respect to the retainer payment referred to in the last sentence of Section 4(a), applicable U.K. statutory reductions. 20. Code Section 409A. (a) It is the intention of the parties hereto that, to the extent any amounts or benefits payable under or otherwise with respect to this Agreement constitute nonqualified deferred compensation that is or may be subject to Section 409A of the Code and the treasury regulations or other official pronouncements thereunder (herein, collectively, “Section 409A”), the provisions of this Agreement shall be interpreted and administered in a manner (which may, as appropriate, include amendments to this Agreement) that will enable such amounts or benefits to satisfy the requirements of Section 409A (either pursuant to qualifying for an exemption from coverage under Section 409A or satisfying the substantive provisions for compliance with such section). (b) For purposes of any reimbursement of expenses due to Kors or the provision of in-kind benefits with respect to Kors (including, without limitation, pursuant to Section 7 above), such reimbursements shall be made in a manner consistent with Code Section 409A, including Treasury Regulation Section 1.409A-3(i)(1)(iv).",
"In that regard (i) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during a calendar year shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year, (ii) the reimbursement of eligible expenses shall be made on or before the end of the calendar year following the calendar year in which the expense was incurred, and (iii) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit. (c) In the event that any amount or benefit payable under or otherwise with respect to this Agreement is conditioned on Kors’ termination of employment and such amount or benefit is not otherwise exempt from Section 409A, such termination of employment shall mean a “separation from service” within the meaning of Section 409A. In addition, if any such payment is conditioned on a separation from service by Kors and Kors shall then be a “specified employee” (as defined in Treasury Regulation section 1.409A-1(i)), then, to the extent necessary to avoid a violation of Section 409A, the portion of any such payment that would otherwise be paid within the six-month period immediately following Kors’ separation from service shall instead be deferred and paid in a single sum on the first day following the end of such six-month period.",
"IN WITNESS WHEREOF, this Agreement is entered into as of the day and year first above written. MICHAEL KORS (USA), INC. By: /s/ John D. Idol Name: John D. Idol Title: Chairman & Chief Executive Officer MICHAEL KORS HOLDINGS LIMITED By: /s/ John D. Idol Name: John D. Idol Title: Chairman & Chief Executive Officer /s/ Michael D. Kors Michael D. Kors 6"
]
| https://github.com/TheAtticusProject/cuad | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
|
De Vexes, Judge, delivered the opinion of the court: This litigation made its first appearance in this court in United States v. Vitelli & Son (5 Ct. Cust. Appls., 151; T. D. 34194). The record therein, which in ail essential particulars is the same as the record herein, discloses that several importations of chestnuts and garfio by F. Vitelli & Son entered at the port of New York during-the years 1905 to 1907 were liquidated for duties by the collector at that port during those years, which duties were paid. During: the year 1912 the following proceedings were had:
Report of special deputy collector.
Treasury Department, United States Customs Service, Oeeice oe the Collector,
Port of New York, July 8,1912.
E. J. Allend ore, Esq.,
Deputy Collector, Seventh Division.
Sir: Satisfactory evidence having been produced before me showing that the returns of weight on the importations of P. Vitelli & Son, covered by the schedule below were false and fraudulent, I hereby declare the liquidations made thereon void, and direct that said entries be reliquidated on the basis of the corrected returns made by the United States weigher: Vessel, Koenig Albert; arrival, October 4, 1905; entry No. 216546. ⅝ ⅜ ⅝ * * * ⅜ B,espectfully, - H. C. Stuart,
Special Deputy Collector.
W. B. A. On July 22, 1912, F. Vitelli & Son made the following protest against said reliquidation of duties:
Protest 661651-85451.
Ruebsamen & Yuzzolino, Counsellors at Law,
Bowling Green Building, 11 Broadway, New York, July 22,1912.
Hon. William Loeb, Jr.,
Collector of the Port of New York, U. S. Custom House, New York City.
Dear Sir: We have just received notices of the reliquidation of duty on the following entries made by us, and on which the Government claims to be entitled to a payment of increased duty: Entry No. 290264; per S. S. Hamburg; duty paid, November 4, 1907; balance claimed to be due, $52.34, * ⅜ ⅜ * * * * Making a total of $1,037.31 increase of duty claimed by the Government on the foregoing entries. We beg to hereby protest against the said action of the collector and against the re-liquidation of the duty in each of the entries above mentioned, and against the payment *246of the said increase of duty claimed on the grounds, in respect to each and every one of the entries above specified, that the said reliquidations are improper and incorrect; that they are unlawful, and not made pursuant to the provisions of the statute; that the said reliquidation was not made within the period prescribed by the statute, in that the original entries and payment of duty on the importations upon which the said increase of duty is claimed were made from 4⅞ to upwards of 6 years prior to the date of the said reliquidations; that the said reliquidations are inaccurate and are based upon unreliable figures and data; and that the reliquidations, as originally made upon the above-named entries, are now final and binding upon all parties concerned, and beyond any dispute or scrutiny. The undersigned also protest upon the ground that the above-mentioned reliquida-tions having been had, in each specific case, more than one year since the date of the original entry and payment of duty are of no effect under the provisions of the statute, for the reason that the importers deny that there was any fraud connected therewith; and they further protest upon the ground that the same subject matter involved in and brought up for issue by the said reliquidations has already been tried before a court of competent jurisdiction, and adjudged in favor of the undersigned, and for that reason the said subject matter is to be considered as res adjudicate in their favor. The importers also protest against said reliquidations and each of them on the ground that the Board of General Appraisers is without jurisdiction to pass upon the issues raised thereby, and particularly that they have no jurisdiction to pass upon any issue of fraud which may be raised by the said reliquidations, by reason of their being made more than one year after the original entry and payment of duty. We therefore protest against any claim of payment of the said sum of 51,037.31 as an increased duty to the Government based upon the foregoing alleged reliquidations. Respectfully, yours, F. Vitelli & Son,
S President Street, Brooklyn, N. Y.
Ruebsamen <⅛ Yuzzolino,
Attys.for F. Vitelli & Son, No. 11 Broadway,
Borough of Manhattan, New York City.
Original received July 24, 1912. Indorsed: Customhouse, New York. Received July 24, 1912. Thereafter, on July 26, 1912, the importers sent the following notice to the collector of customs at that port:
Letter from attorneys for importers.
Ruebsamen & Yuzzolino, Counsellors at Law,
Bowling Green Building, 11 Broadway, New York, July 26, 1912.
Hon. Wm. Loeb, Jr.,
Collector of Port of New York,
United States Customhouse, New York.
In re F. Vitelli & Son. Dear Sir: We beg to hereby notify you that our clients, Messrs. F. Vitelli & Son, of No. 3 President Street, Brooklyn, have to-day made a payment to the collector of the port of New York of 51,037.31 as the amount of increased duties claimed by the Government; of which they were notified on July 12,1912. Said payment of 51,037.31 is made under protest, the grounds of which were fully set forth in the written protest filed in your office on July 24, 1912. Very respectfully, Ruebsamen & Yuzzolino,
Attorneys for F. Vitelli & Son.
*247August 17, 1912, the collector, under articles 1073 and 1074, Customs Regulations of 1908, transmitted the protest and record before him to the Board of General Appraisers for review and decision by the following: Report of the collector. — August 17, 191%. Respectfully referred to the Board of United States General Appraisers for decision. The payment forming the subject of the protest was made in satisfaction of the •claim of the United States for increased duties found to be due on certain importations of chestnuts and garlic. Evidence was produced to show that the returns of the United States weighers were false and fraudulent. Hence the liquidations were declared void and reliqui-dations made on the true weights as found in the amended returns of the United States weigher. The limitation for the reliquidation of entries found in section 21, act of June 22, 1874, does not apply in cases of fraud. Note letter herewith, dated July 8, 1912, of Mr. H. 0. Stuart, directing reliquidation. Note also the indorsement of the United 'States weigher on the returns attached to each entry. The assessment of duty as made is affirmed. Protest was filed within statutory tíme. Wm. Loeb, Jr., Collector. Tbe record also recites that on eacb entry there was attached the original weigher’s return, with a statement on it signed by the United States weigher, as follows: “This return is hereby declared void because of fraud. Reliquidate on basis of corrected return attached.” The record further discloses that upon each entry the following order is written: “Reliquidate and assess duty upon the basis of the corrected return of the United States weigher attached, the original return being false and fraudulent.” The original and the amended weigher’s returns are a part of the record and were before the board and the court in that case as well as in this. From these this court found and recited as facts in United States v. Vitelli & Son (5 Ct. Cust. Appls., 151; T. D. 34194) as follows: These amended returns and the reliquidation thereon relate only to garlic and •chestnuts, while some of the entries, 14 in number, cover in addition other merchandise. Upon these corrected weigher’s returns are written statements to the effect that the greater part of the reliquidated merchandise had been traced from the importers to various persons who had weighed the same and kept a record of such weights, with which the weights shown in the corrected returns substantially correspond; that in some instances the merchandise had been paid for upon the basis of such weights; and that in at least one case the importers had billed the goods at 46,253 pounds, which was some 3,500 pounds greater than the weight thereof as originally returned by the weigher. We have examined some of the files relating to all these 14 entries, and therefrom it appears that the corrected returns increase the weights •above those originally returned in amounts varying from 1,000 to 16,000 pounds in each of such entries. The record in suit No. 1474 in this case differs only in that precisely parallel action was had by the collector of customs, wherein he himself acted, instead of by a deputy collector of customs. *248At tbe original hearing before the Board of General Appraisers much discussion was had as to whether the burden of proof was upon the importers or upon the Government, in view of the fact that the right of the collector to reliquidate more than one year after the original liquidation, there being no protest in that case, could be exercised only in the presence of fraud. Counsel for the importers, however, offered in evidence certain indictments and the records of acquittal of the indicted person, claiming that these records made a case res adjudicaba. Upon argument the board excluded the indictments and records of acquittal and took the question of the burden of proof under advisement. On December 5, 1912, the board made an interlocutory order holding that the burden of proof was upon the Government, and duly set the case for further trial on December 18, 1912. Thereupon all parties appeared, counsel for the Government noted an exception to the ruling of the board that the burden of proof was upon the Government to prove fraud, and the case was submitted by all parites. The decision of the board followed, in accordance with its interlocutory order sustaining the protests. Upon-appeal to this court, February 10, 1914, after reciting the foregoing facts as shown, by the record before the board, this court reversed their decision, holding that upon the record as presented to the board the burden of proof was upon the importers. On February 17, 1914, upon appearance of the parties before this court, motion was duly made by the appellees for a modified order remanding the case to the board for a new trial and an amendment of the court’s previous decision accordingly, which motion was granted, and on February 19, 1914, mandate of the court to the board was accordingly made. On May 25, 1914, pursuant to the above mandate the case was called for hearing by the board, all the parties appearing. Thereupon counsel for the importers made the following statement: Mr. Ytjzzolino. In these cases up to the last time they were on the docket I had intended to go into the testimony and offer evidence and proof of the weights, etc. I have now decided not to do that and am simply going to make offers on the record, then make some objections on the record, and submit on that. I offer, first, the certified copies of the indictments found by the Circuit Court of the United States for this district, three of them, together with a certified copy of the records of acquittal. Objection was renewed by counsel for the Government to the admission of the indictments and records of acquittal, which objection was sustained by the board, to which counsel for' the importers duly excepted, stating: Mr. Yuzzolino. The importer excepts to the ruling of the board excluding the indictments on the ground that they show conclusively the nonexistence of fraud in the making of the entries, and this being the issue, i. e., fraud in making these entries, * * ⅜. While the importers offered no further evidence in the case, they made the following statement: *249The importer also excepts to the ruling of the court to the effect that the burden is upon him to show nonexistence of fraud in these cases, upon the ground that it imposes upon him an unlawful, unreasonable, and impossible burden, as a condition to his availing himself of the benefits of section 21 of the act of June 22,1874, and therefore deprives him of his property without due process of law, and is in violation of his rights under the United States Constitution. Accordingly the board on August 21, 1914, following the previous decision of this court in United States v. Vitelli (5 Ct. Cust. Appls., 151; T. D. 34194), overruled the importers’ protests. The importers duly appeal to this court for a reversal of that decision. After submission of the case, by permission, counsel for the appellants bring to the attention of the court decisions in United States v. Sherman & Sons Co. (237 U. S., 146), decided by the Supreme Court of the United States; also the decision of the United States District Court for the Southern District of New York, United States v. Federal Sugar Refining Co. (211 Fed., 1016), both claimed by appellants to be decisive of this case. The questions herein involved are of far-reaching importance in the administration of the customs laws, involving the right of a collector of customs to reliquidate an entry in any case after one year after the original liquidation; the right of the collector to rehquidate at any time after the goods have gone out of customs possession or control; and the respective jurisdictions of the Board of General Appraisers and the United States District Courts in the matter of the collection of the customs revenues in cases where reliquidation has been made after one year after the original liquidation and in cases where the goods have gone beyorid the possession or control of the Government. In view of the far-reaching importance of these appeals and the claimed conflict of the cited decisions, the Attorney General has, under section 195 of the judicial code, filed with this court a certificate to the effect that the case is one of such importance as to render expedient its review by the Supreme Court. In this view and that the subject may be viewed in all its bearings this court herein gives more extended consideration to the case than otherwise would be had. The court is of the opinion that there are decisive differences between both the facts and the legal aspects of this and the two cases urged. These differences will later be considered. Preliminarily certain contentions by appellants should be noted. More by innuendo than argument action by a special deputy collector is questioned. It is sufficient to- say that such, if sound, would only affect suit No. 1464 herein, for in suit No. 1474 action was had by the collector in person. Tnat all the powers and duties, of collectors of customs are equally vested in their special deputies, is well settled. Revised Statutes (secs. 2625, 2630, and 2633); article 1434, Customs Regulations of 1908; Falleck v. Barney (8 *250Fed. Cas., 974, No. 4625); Lehmaier v. Maxwell (15 Fed. Cas., 250, No. 8214); Schmaire v. Maxwell (21 Fed. Cas., 700, No. 12460); United States v. Barton (24 Fed. Cas., 1025, No. 14534); Chadwick v. United States (3 Fed., 750); Frelinghuysen v. Baldwin (12 Fed., 395). Moreover, section 13 of the customs administrative act of 1890, under which action in the'se cases was had, expressly provides that “the collector or person acting as such shall ascertain, fix, and liquidate the rate and amount of the duties.” The affirmation by the collector herein (suit No. 1464) should be regarded as it imports, his letter of transmittal to the Board of General Appraisers, Customs Regulations of 1908, articles 1073 and 1074, stating as therein required, “the reason which governed him in the assessment of duty.” Prelusively, consideration will be had of the apposite general fundamentals. Primarily, the issues here concern the power of a collector of customs to liquidate and reliquidate entries. Whence does he derive that power generally aiid particularly in these cases ? It has been often said that the exercise of the power of reliquidation by a collector of customs is an implied power finding no warrant in the express law, but founded upon implication from section 21 of the act of June 22, 1874, infra. The court is of the opinion that such is not accurate, that the contrary is true and that logic and the authorities will support the conclusion that the power of. the collector to malee liquidations and reliquidations is rested upon express statute. There are in the statutes grants of power to liquidate and also limitations upon its exercise which should be carefully distinguished. That power as given by the granting statutes was and is unlimited as to the time or the number of liquidations. The act of reliquidation, therefore, is within the grant of power of liquidation originally granted without qualifications as to time or repetition. This power of collectors of customs to liquidate or, to be exact, to “estimate the amount of the duties payable * * *, indorsing the said amount upon the respective entries ” of imported merchandise, was originally granted by section 21 of the act of Congress, March 2, 1799 (1 Stat. L., 627), as follows: Sec. 21. * * s The collector * * * shall receive the entries of all ships •or vessels and of the goods, wares, and merchandise imported in them; shall, together with the naval officer where there is one, or alone where there is none, estimate the amount of the duties payable thereupon, indorsing the said amount upon the respective entries; shall receive all moneys paid for duties, and take all bonds for securing the payment thereof; ⅜ * *. That language was in all essential particulars made the language in part of section 2621 of the Revised Statutes, reading: Sec. 2621. At each of the ports it shall be the duty of the collector: ⅜ * *
*251Third. To receive the entries of all ships or vessels, and of the goods, wares, and merchandise imported in them. Fourth. To estimate, together with the naval officer where there is one, or alone where there is none, the amount of the dues payable thereupon, indorsing such amount upon the respective entries. Fifth. To receive al-1 moneys paid for duties, and take all bonds for securing the payment thereof. ******* Without express repeal section 13 of the customs administrative act of June 10, 1890 (26 Stat. L., 131), provided: Seo. 13. * ⅜ * And the collector or the person acting as such shall ascertain, fix, and liquidate the rate and amount of the duties to be paid on such merchandise, and the dutiable costs and charges thereon, according to law. The tariff act of August 5, 1909 (36 Stat. L., 11), subsection 13 of section 28 thereof, and the tariff act of October 3, 1913 (38 Stat. L., 114), subsection M of section 3 thereof, reenacted this provision in hsee vería. While these cases arose under the act of 1897 (30 Stat. L., 151), the reenactments serve as a congressional adoption of the construction given the earlier acts. ' Acting under the authority of these words, .unchanged until 1890 and then if anything enlarged in scope, from the foundation of our Government to date collectors of customs have liquidated and re-liquidated entries. If there were any doubt as to the intended extent of this grant of power, each and every one of these limiting acts is a legislative declaration of its existence to the extent of the limitation, else why the idle legislation ? The first acts of limitation were section 5' of the act of March 3, 1857 (11 Stat. L., 192), and sections 14 and 15 of the act of June 30, 1864 (13 Stat. L., 202), providing that the decision of the collector of customs 1 ‘shall be final and conclusive against the owner, importer, consignee or agent of” imported merchandise unless protested as therein prescribed to the Secretary of the Treasury, etc. The customs administrative act of June 10, 1890 (26 Stat. L., 131), section 14, subsection 14 of section 28 of (the act of August 5, 1909 (36 Stat. L., 11), and subsection N of section 3 of the act of October 3, 1913 (38 Stat. L., 114), are in essentially the same language, reading, " that the decision of the collector as to the rate and amount of duties chargeable upon imported merchandise, ⅜ ⅜ * shall be final and conclusive against all persons interested therein, unless the owner, importer, consignee, or agent of such merchandise” should as therein prescribed protest to the Board of General Appraisers with right thereafter to appeal to the courts. The language, “shall be final and conclusive against all persons interested therein,” is common to all these acts. It has been uniformly held, and never contrarily, to be a limitation upon the remedies of the importers and not the powers of collectors. United States v. Phelps et al. (17 Blatch., 312; 27 Fed. *252Cas., 521, No. 16039); United States v. Leng (18 Fed., 15); United States v. Mexican International R. Co. (C. C. A., 151 Fed., 545); Calhoun v. United States (184 Fed., 499); In re J. W. Hampton, jr., & Co., G. A. 1304 (T. D. 12655); In re Rheinstrom Bros., G. A. 1338 (T. D. 12689); In re Henry Schmidt, G. A. 1798 (T. D. 13496); In re Geo. Knowles & Son, G. A. 2305 (T. D. 14459); In re Foote, Reed & Co., G. A. 3810 (T. D. 17935). Repeated reenactments have legislatively adopted this contemporary construction. United States v. Midwest Oil Co. (236 U. S., 459, 472); Tucker v. Oxley (5 Cranch, 9 U. S., 34); Robinson & Co. v. Belt (187 U. S., 41); Copper Queen Mining Co. v. Arizona Board (206 U. S., 474); Fairbank v. United States (181 U. S., 283). It was philosophic that Congress having given the importer the right not given collectors to correct errors of liquidation by protest Congress did not wish to deny the Government the right to correct such errors, which could only be done by reliquidation. These acts, however, were of limitation only in so far as they deprived the owner, etc., of the power after a prescribed time to enforce a contrary or defend against a liquidation. The entire breviary of laws granting and limiting the power of collectors of customs to estimate or reestimate the rate and amount of duties upon imported merchandise embraces but a single paragraph directly limiting that power, to wit, section 21 of the act of June 22, 1874 (18 Stat. L., 186), as follows: Sec. 21. That whenever any goods, wares, and merchandise shall have been entered and passed free of duty, and whenever duties upon any imported goods, wares, and merchandise shall have been liquidated and paid, and such goods, wares, and merchandise shall have been delivered to the owner, importer, agent, or consignee, such entry and passage free of duty and such settlement of duties shall, after the expiration of one year from the time of entry, in the absence of fraud and in the absence of protest by the owner, importer, agent, or consignee, he final and conclusive upon all parties. That act, though treating extensively of the duties of collectors, in no particular expressly added to his power of liquidation. There is here presented a striking example of legislative interpretation of, as distinguished from the coordinate rule of legislative adoption of, a statute as construed by the courts or administered by departments. The former rule, equally well if not more logically established, is expressed by the Supreme Court in Copo v. Cope (137 U. S., 682, 688), that— Several acts of Congress, dealing * ⅜ * with the same subject matter, should he construed not only as expressing the intention of Congress at the dates the several acts were passed, hut the later acts should also be regarded as legislative interpretations of the prior ones. United States v. Freeman (3 How., 556, 564); Stockdaler. Insurance Co. (20 Wall., 323). Under said section 21 the fact that the statute did not commence to run until after one liquidation, the necessary implication is of a power to make a second liquidation, else the statute is entirely nuga*253tory. The statute concededly does not grant or invest a power to liquidate. The necessity for and the enacted limitation upon the exercise of that power, and its repetition as herein provided, is a legislative interpretation that the original grant included and vested the power of reliquidation in the collector. The power of the collector to liquidate and reliquidate Congress here assumes and interprets resides in the previous unlimited express statutory grants; its restrictions in the limiting acts. Calhoun v. United States (184 Fed., 499); United States v. Phelps et al. (17 Blatch., 312; 27 Fed. Cas., 521, No. 16039). The rule is elementary and fundamental that long-continued defart-mental practice and judicial construction of statutes while not absolutely controlling are not to be disregarded without the most cogent and persuasive reasons. United States v. Midwest Oil Co. (236 U. S., 459); Edwards v. Darby (12 Wheat., 25 U. S., 206); Pennoyer v. McConnaughy (140 U. S., 1); Copper Queen Mining Co. v. Arizona Board (206 U. S., 474), and numerous cases therein cited. That a construction of an act — and this was said of the act of June 22, 1874 (18 Stat. L., 186) — by the Treasury Department, followed for many years without any attempt by Congress to change it should be followed by the Supreme Court, see Robertson v. Downing (127 U. S., 607). There is herein questioned not only (1) the existence of any express statutory authority for the collector to reliquidate, but also (2) the power of the collector to reliquidate within a year after entry when the goods have gone beyond his possession or control, and (3) the right of reliquidation for fraud in any case after one year after entry. This court is of the opinion that a full review of the authorities is convincing beyond question that not only are all these powers vested by express law in the collector, as heretofore considered, but that such has been the uniform legislative, departmental, and judicial construction of those statutes from the foundation of the -Government. Not only was the enactment of section 21 of the act of June 22, 1874 (18 Stat. L., 186), a legislative interpretation of this preexisting power in collectors of customs long prior to that legislation, but by and from the decisions of earliest record to the present these acts have been uniformly and without exception held to empower collectors to liquidate and reliquidate within and after one year from entry and without any limitation upon that power save and except as follows: (1) Prior to the enactment of section 21 of the act of June 22, 1874 (18 Stat. L., 186), there was no limitation in this particular upon a collector and he could religuidate at any time. In a very early case the powers of a collector of customs in these particulars were ably amplified. This case has with great frequency been cited, quoted, *254and followed and on this point has never been questioned or overruled. In that case the duties had been twice previously liquidated. The court speaks of the powers of the collector assuming them otherwise vested than by the acts of 1864 (13 Stat. L., 202) and 1874 (18 Stat. L., 186), which are characterized as limitations upon that power. The following language of Judge Blatchford therein is instructive (United States v. Phelps et al., 17 Blatch., 312; 27 Fed. Cas., 521 No. 16039): It is well settled that the duties upon all goods imported constitute a personal debt due to the United States from the importer; that the consignee is, for this purpose, treated as the owner and importer; that such debt is independent of any lien on the goods and of any bond given for the duties; and that the right of the Government to the duties accrues when the goods have arrived at the proper port of entry. Meredith v. United States (13 Pet., 38 U. S., 486). By section 2931 of the Revised Statutes the decision of the collector, in liquidating duties, as to the amount of duties on imported goods, is made final and conclusive against all persons interested in such goods, unless notice in writing of dissatisfaction with such decision is given to the collector by the importer within 10 days after the liquidation, and unless within 30 days after the liquidation there is an appeal by the importer from the liquidation to the Secretary of the Treasury. Such liquidation is not made final and conclusive as against the United States. There is nothing in the section which forbids a reliqui-dation or a new decision by the collector, even after the payment of all the duties fixed by a prior liquidation, or even after the refunding of money deposited beyond the amount of duties so fixed; or which forbids a new decision by the collector as to the law on the same facts, or a new decision as to facts, based on additional or new or different facts. This view is confirmed by the enactment of section 21 of the act of June 22, 1874 (18 Stat., 190), which is as follows: “Whenever any goods, wares, and merchandise shall have been entered and passed free of duty, and whenever duties upon any imported goods, wares, and merchandise shall have been liquidated and paid, and such goods, wares, and merchandise shall have been delivered to the owner, importer, agent, or consignee, such entry and passage free of duty and such settlement of duties shall, after the expiration of one year horn the time of entry, in the absence of fraud and in the absence of protest by the owner, importer, agent, or consignee, be final and conclusive upon all parties.” This provision was in force when the transactions in this case took place. It applies to the United States. The expression “all parties” includes the United States. By section 2931 of the Revised Statutes there was no limitation imposed on the power of the collector to reliquidate when such reliquidation was in the interest of the Government. But by section 21 of the act of 1874 a limitation is imposed on such power, so that after the entry of the goods and after the liquidation and payment of duties on them and after the delivery of the goods to the importer such settlement of duties, if there be no fraud and no protest by the importer, is, after one year from the entry, final and conclusive even as respects the Government. In the present case the suit was brought before the one year expired. The collector, therefore, had power to make the reliquidation of July 20, 1878. That the power of the collector to reliquidate was unlimited prior to the act of June 22, 1874 (18 Stat. L., 186), is well established. Dumont v. United States (98 U. S., 142); Westray v. United States (18 Wall., 85 U. S., 322); United States v. Calhoun (184 Fed., 499); United States v. Leng (18 Fed., 15); United States v. Phelps et al. *255(17 Blatch., 312; 27 Fed. Cas., 521, No. 16039); Watt v. United States (15 Blatch., 29; 29 Fed. Cas., 441, No. 17292); United States v. Cousinery et al. (7 Ben., 251; 25 Fed. Cas., 677, No. 14878); United States v. Campbell (10 Fed., 816; T. D. 8695.) So where the act does not apply. (T. D. 7376); In re Paris, Allen & Co., G. A. 2411 (T. D. 14689); T. D. 16193; In re Ford, G. A. 3167 (T. D. 16338). (2) That the ‘power of reliquidation exists where the goods have gone beyond the possession or control of the collector has been the subject of equally uniform decisions. Upon principle, it is a strange doctrine to judicial or quasi-judicial procedure that the validity of the proceedings depends upon the ultimate ability to satisfy the judgment rendered or order made. That possession and control of the goods were necessary to exercise of the power of reliquidation was not the intention of Congress is evidenced by its authorization of the collector to take a bond for payment of duties. (R. S. U. S., 2621.) This doctrine is concisely stated in United States v. Mexican International Railroad Co. (C. C. A., 151 Fed., 545): Before “the expiration of one year from the time of entry” the settlement of duties is not conclusive on the Government. Before the expiration of the one year the collector may reliquidate the assessment, although the duties first assessed have been paid and the-goods withdrawn for consumption. Such has been the uniform interpretation by the courts and Treasury Department of the powers of the collector. Beard v. Porter (124 U. S., 437); Abner Doble Co. v. United States (119 Fed., 152); United States v. Mexican International Railroad Co. (C. C. A., 151 Fed., 545); Pacific Creosoting Co. (C. C. A., 196 Fed., 35); United States v. Tiffany & Co. (C. C. A., 151 Fed., 473); Louisville Pillow Co. v. United States (C. C. A., 144 Fed., 386); Neresheimer v. United States (131 Fed., 977); Knowles & Sons v. United States (122 Fed., 971); United States v. Cobb et al. (11 Fed., 76); United States v. Campbell (10 Fed., 816); United States v. Comarota (2 Fed., 145); United States v. Phelps et al. (17 Blatch., 312; 27 Fed. Cas., 521, No. 16039); T. D. 3972; T. D. 7376; In re Hampton, jr., & Co., G. A. 1304 (T. D. 12655); In re Rheinstrom Bros., G. A. 1338 (T. D. 12689); In re Schmidt, G. A. 1798 (T. D. 13496); In re Knowles & Son, G. A. 2305 (T. D. 14459); In re Foote, Reed & Co., G. A. 3810 (T. D. 17935); In re Hampton, jr., & Co., G. A. 1304 (T. D. 12655), approved in 21 Opinions of Attorney General, 334; In re Wyman & Co., G. A. 6536 (T. D. 27887); In re Forbes & Wallace, G. A. 5118 (T. D. 23655). Of course this power includes that to so rehquidate for fraud or any other cause affecting the rate or amount of duty. (3) That a collector of customs can, after a prior liquidation, reliqui-date within one year after entry has been from the earliest period assumed and decided. Robertson v. Downing (127 U. S., 607); *256Beard v. Porter (124 U. S., 437); Abner Doble Co. v. United States (119 Fed., 152); United States v. Fox et al. (53 Fed., 531); United States v. Frazer (10 Ben., 347; 25 Fed. Cas., 1207, No. 15161); T. D. 3972; T. D. 8398; T. D. 8695; In re Fleitmann & Co., G. A. 738 (T. D. 11563); In re Strauss, Sachs & Co., G. A. 2743 (T. D. 15309); In re Hartman & Darling, G. A. 3610 (T. D. 17436); In re Forbes & Wallace, G. A. 5118 (T. D. 23655); In re Stone & Co., G. A. 5406 (T. D. 24623); In re Wyman & Co., G. A., 6536 (T. D. 27887); In re Hampton, jr., & Co., G. A. 1304 (T. D. 12655); T. D. 16503. This point is well established by the single fact that the Treasury regulations so authorizing have long been in full force and effect and the power unquestioned. The regulations of the Treasury Department from 1881 to date, construing the statutes granting powers to collectors to reliquidate, have directed them, upon receipt of protest in their opinion well taken, to reliquidate. T. D. 4972; Customs Regulations of 1884 (art. 362); Customs Regulations of 1892 (art. 931); Customs Regulations of 1899 (arts. 1455 and 1463); Customs Regulations of 1908 (art. 1072, now effective); In re Hampton, jr., & Co., G. A. 1304 (T. D. 12655); T. D. 16503. “When there has been a long acquiescence in a regulation” (Treasury) “and by it rights of parties for many years have been determined and adjusted, it is not to be disregarded without the most cogent and persuasive reasons. United States v. Hill (120 U. S., 169, 182); United States v. Philbrick (120 U. S., 52, 59); Brown v. United States (113 U. S., 568, 571).” Robertson v. Downing (127 U. S., 607, 613). (4) At present the law prescribes no time limit within which the collector shall malee his original liguidation. Pacific Creosoting Co. v. United States (C. C. A., 196 Fed., 35); Beard v. Porter (124 U. S., 437); Abner Doble Co. v. United States (119 Fed., 152); Gandolfi et al. (C. C. A., 74 Fed., 549); United States v. De Rivera et al. (73 Fed., 679); United States v. Leng (18 Fed., 15); United States v. Phelps et al. (17 Blatch., 312; 27 Fed. Cas., 521, No. 16039); T. D. 7376. (5) It has been uniformly held or assumed under the act of June 22, 1874 (18 Stat. L., 186), that when liguidation is had and protest made, the collector can religuidate more than one year after entry. United States v. Whitridge (197 U. S., 135); United States v. Tiffany & Co. (C. C. A., 151 Fed., 473); Cassel v. United States (146 Fed., 146); Gulbenkian v. Stranahan (158 Fed., 836); United States v. Dickson (C. C. A., 139 Fed., 251); United States v. Phelps et al. (17 Blatch., 312; 27 Fed. Cas., 521, No. 16039); T. D. 8583; T. D. 16193. Statutes in later acts directing the collector to reliquidate protests after final decision thereon in accordance therewith, we shall hereafter *257show, are not exceptions to the exercise of an existing power in the collector, but assume the existence of that power and direct its exercise in accordance with the mandate of supervising authorities or tribunals. It may well be doubted' if the judicial history of the Government affords another instance wherein such a long-continued, uniform, and absolutely unquestioned judicial and administrative interpretation and practice under a statute or of its granted powers has obtained. Not only has there here been the legislative interpretation of those preexisting powers by the act of June 22, 1874 (18 Stat. L., 186), but the uniform judicial and administrative interpretations enumerated extending from the earliest date to the present, and also the subsequent and repeated legislative approval of those judicial and administrative interpretations, at least from Revised Statutes 2621 to and inclusive of section 13 of the customs administrative act of 1890 (26 Stat. L., 131), subsection 13 of section 28 of the tariff act of 1909 (36 Stat. L., 11), and subsection M of section 3 of the tariff act of 1913 (38 Stat. L., 114), has been to the same effect. Whether we rest those powers of reliquidation long exercised by collectors of customs, as aforesaid, in express or implied statutory authority, if there is any virtue in the philosophy of the rule of long-continued uniform interpretation, usage, and practice, whioh makes for the safety and repose of commerce and the rights of man, herein is afforded a vindicating exemplar. The point may well be concluded with the language of the Supreme Court in United States v. Midwest Oil Co. (236 U. S., 459, 472): It may be argued that while these facts and rulings prove a usage they do not establish its validity. But government is a practical affair intended for practical men. Both officers, lawmakers, and citizens naturally adjust themselves to any long-continued action of the executive department, on the presumption that unauthorized acts would not have been allowed to be so often repeated as to crystallize into a regular practice. That presumption is not reasoning in a circle, but the basis of a wise and quieting rule that in determining the meaning of a statute or the existence of a power weight shall be given to the usage itself, even when the validity of the practice is the subject of investigation. This principle, recognized in every jurisdiction, was first applied by this court in the often cited case of Stuart v. Laird (1 Cranch, 299, 309). There, answering the objection that the act of 1789 was unconstitutional in so far as it gave circuit powers to judges of the Supreme Court, it was said (1803) that “practice and acquiescence under it for a period of several years, commencing with the organization of the judicial system, affords an irresistible answer and has indeed fixed the construction.” It is a contemporary interpretation of the most forcible nature. This practical exposition is too strong and obstinate to be shaken or controlled. Robinson & Co. v. Belt (187 U. S., 41); Copper Queen Mining Co. v. Arizona Board (206 U. S., 474); Fairbank v. United States (181 U. S., 283). *258Other acts in pari materia Maimed by appellants to imply a contrary view in fact support the views heretofore expressed. These acts read in conjunction with those of grant and limitation upon the powers of a collector of customs to liquidate and reliquidate conduce to the same conclusion, the contrasted provisions of those acts being explanatory of these. The Amelia (1 Cranch, 5 U. S., 1); Merritt v. Cameron (137 U. S., 542); Pollard v. Kibbe (14 Pet., 39 U. S., 353); Nobles v. Georgia (168 U. S., 398). It is claimed that' the act of March 3, 1875 (18 Stat. L., chap. 136, p. 469), authorized reliquidation for clerical errors, and hence implied absence of a general power of reliquidation in the collector. We think the contrary. Prior to this act the Secretary of the Treasury, by sections 3012⅜ and 3013 of the Revised Statutes, had unlimited power of refund, of duties unascertained and ascertained, depending solely upon his judgment that they should he repaid. The act of March 3, 1875, was entitled, “restricting the- refunding of customs duties,” etc. It was addressed to and restrictive of the powers of the Secretary of the Treasury to make refunds of customs duties. It then provided ‘ ‘ that this act shall not affect the refund of excess of deposits based on estimated duties nor prevent the correction of errors in liquidation,” etc. How a provision expressly declared “shall not affect” “nor prevent” exercise of a power impliedly grants such we can not understand. Obviously, however, it presupposes the existence of and preserves a preexisting power which was.probably being exercised by the Secretary of the Treasury, and this act was so construed. (21 Op. Atty. Gen., 251.) That it did not affect the power of reliquidation in the collector was held in United States v. Phelps et al. (17 Blatch., 312; 27 Fed. Cas., 521, No. 16039). That the act related to the Secretary of the Treasury and was vesting in another official than the collector power to grant certain refunds arising out of, without changing or affecting, liquidations, is made certain by the amendatory act, section 24 of the act of June 10, 1890. • Other acts or parts thereof in pari materia also afford instruction. Sections 14 and 15, act of June 10, 1890 (that being the act under which these reliquidations were made), provide that after final decision of the Board of General Appraisers or courts the papers shall be transmitted to “the proper collector or person acting as such, who shall liquidate the entry accordingly,” etc. These provisions do not empower but direct reliquidation by an officer already having that power, who has previously liquidated upon a different basis. The provision assumes existence of that power in the collector and none else and provides that upon mandate it shall be exercised by the collector according to the decision of another and in a maimer different from its previous exercise. Without this .provision of law under what authority could the collector be compelled to reliquidate ? *259Section 25 of the tariff act of 1894 (28 Stat. L., 552), provided that the Secretary of the Treasury should estimate and proclaim the value in our money of foreign coins and that those values “shall be followed in estimating the value” of all imports, etc., and “ Provided, That the Secretary of the Treasury may order the reliquidation of any entry at a different value,” etc. That statute does not empower reliquidation, but places in the power of the Secretary of the Treasury superior authority to direct reliquidation by the collector so authorized by law, regardless of the opinion of or other superior authority over the collector. This precise point is confirmed and the compulsory power indicated by the familiar history of the proceedings under that section. United States v. Whitridge (197 U. S., 135). Revised Statutes, section 2857, provides that change may be made of the destination of goods by entry at the port of arrival and, where the triplicate invoice has not arrived, a certain routine, “ and the duty shall not be finally liquidated until such triplicate, or a certified copy thereof, shall have been received. Such liquidation, however, shall not be delayed longer than 18 months from the time of making such entry.” Here again Congress, assuming an unlimited power of liquidation in the collector, by statute directs its exercise in words of direction only and not of authorization. These various acts, however, authorizing various officials to direct and requiring the collector as' late as 18 months after entry to liquidate as directed aré instructive that Congress did not confine that power to the period within which the goods remained in the possession or control of the collector, and in every instance assumes an unlimited power previously vested and existing in the collector to so reliquidate.' This exceptionally consistent construction of the statutes in pari materia rests upon the clear and unchanged language of the empowering law and what would seem equally clear language of section 21 of the act of June 22, 1874, as viewed, treated, and interpreted by Congress in a series of enactments in pari materia extending over a period of almost forty years. This consistent and uniform view of Congress is instructive. Cope v. Cope (137 U. S., 682-688). Elementally, an unlimited power of liquidation (uniformly construed as, if not literally, including the power of reliquidation) having been vested in the collector by previous acts of Congress, this restraining provision upon those powers was enacted. Logically if there were exceptions to the restraining act the powers of the collector in the instances of those exceptions continued unrestrained and unlimited. These exceptions were two — in the absence of a protest and in the absence of fraud. They are coequal in every respect. All conceded and it has been uniformly held (cases supra) that, where a protest is filed, the power of the collector to reliquidate is not made final *260in the year, that the act of 1874 does not apply to such cases, and that the collector can reliquidate whenever the protest is out of the case. (Cases su'pra.) The limitations upon the extent of such a reliquidation are not here in question or decided. The right and power and its preservation by the statute alone are important and declared. Wherein does the other exception differ ? If the presence of a protest makes the act inapplicable, why does not “fraud” do likewise? The two must stand or fall together. If there is power in the collector to rcliquidate after one year after entry in cases of protests, which is conceded by all, by those exact words that power is reserved to him in cases of fraud. The cases are so exactly parallel and the statute so unmistakably expounds itself that argument as to its meaning and effect would be offensive to common, not to say legal, intelligence. In United States v. Sherman & Sons Co. (237 U. S., 146), no doubt because, as shown by the briefs, so represented to the court and not controverted, it was assumed as a fact, speaking of section 21 of the act of Juno 22, 1874, and stated: It is a significant fact that although the act has been in force for more than 40 years there are only two instances reported in which the collector, after the expiration of one year, has attempted to reliquidate because of the existence of fraud. Those two cases — United States v. Vitelli, Court of Customs Appeals (1914), and United States v. Federal Sugar Co. (211 Fed., 1016) — are of recent date and in direct conflict with each other. Instances of reliquidation by collectors for fraud covering a period of more than a quarter of a century past are reported. There is reported in T. D. 16193, of date June 27, 1895, the case of Gandolfi et al., wherein cheese imported and entered by pro forma invoice in November, 1891, was reliquidated March 7, 1893, which action by the collector in suit to recover the balance was in part justified by the United States upon the ground that ‘ ‘sufficient had been proved to raise a presumption of fraud, which in itself prevented the year from running, as provided in section 21 of the act of June 22, 1874.” This decision shows not only the fact that the collector so acted but that the Treasury Department approved and adopted this action of the collector. Subsequently, as shown, this course was approved by the Treasury Department. In G. A. 3167 (T. D. 16338) is reported an instance wherein the collector at the port of Boston in October, 1894, reliquidated entries of bags previously liquidated in September, 1892, and January, 1893, more than a year thereafter, upon the ground of fraud. Upon protest and trial section 21 of the act of June 22,1874, being urged as a limitation upon the action of the collector the board found fraud and sustained the collector. In G. A. 3842 (T. D. 17967) an entry on October 8, 1895, of black hatters’ plush at the port of Cleveland, Ohio, was liquidated by the *261collector at that port October 18, 1895, and reliquidated December 10, 1896, more than a year after entry. It is reported in the board’s decision that "the act of reliquidation, subject of complaint, was performed by the collector under section 21 of the act of Juno 22, 1874, on the ground that appellants were guilty of misrepresentation or fraud in making said entry.” On trial the board conceded the law to be that such a liquidation would be valid, but found against the Government on the fact of fraud in the case. In 1905-1907 F. Vitelli & Son imported at New York chestnuts and garlic, which were liquidated during those years. Subsequently and during the year 1912 the collector reliquidated upon the alleged ground of fraud and reported such and that by reason thereof section 21 of the act of June 22, 1874, did not apply. The importers protested, denying the existence of fraud, but in no way challenging the legal right of the collector to so liquidate. On trial before the Board of General Appraisers it was held that the collector could, under section 21, supra, reliquidate where there was fraud in the case, but that the burden to prove such before the board was upon the Government. G. A. 7418 (T. D. 33115). The Government appealed to this court. Herein the right of the collector to reliquidate after one year where there was fraud in the case was unchallenged, was not in issue, nor decided. The sole issue decided was as to the burden of proof. A new trial was granted. United States v. F. Vitelli & Son (5 Ct. Cust. Appls., 151; T. D. 34194). Further, neither on rehearing before the board nor on this appeal to tbfts court, nor until presentation to the Supreme Court in the case of Sherman & Sons Co., was ever the right of the collector to reliquidate 6ne year after entry, where there was fraud, challenged or questioned. After that decision, and by supplemental brief, for the first time in this case and court was that issue made. Until that day, May 1, 1915, the right of a collector to reliquidate for fraud more than one year after entry iSnder the act of 1874 was herein never challenged, but always assumed. G. A. 7418 (T. D. 33115); United States v. F. Vitelli & Son (5 Ct. Cust. Appls., 151; T. D. 34194). In 1909 Sherman & Sons Co. imported at New York certain laces upon which duties were liquidated during that year. In 1913 the collector reliquidated, finding fraud as a fact in the case. The importers declined to pay the additional duties and the Government brought suit in the United States District Court of that district. Demurrers were filed and sustained, solely upon the issue as to the allegations of fraud in the complaints, and on appeal to the United States Circuit Court of Appeals that court certified three questions to the Supreme Court. Neither by these questions nor otherwise in the case was the legal right of the collector to reliquidate for fraud one year after entry challenged. The questions certified inquired, *262could the collector malee a finding of fraud after the one year, which, if not protested, would become res adjudicata as to the importers ? Until the filing of the importers’ brief in that case in the Supreme Court, December 14, 1914, this legal right, so far as we can discover, was never in any jurisdiction challenged, and is reported to have been exercised unchallenged, and section 21 of the act of June 22, 1874 (18 Stat. L., 186), been so interpreted ever since its enactment. In Robertson v. Downing (127 U. S., 607), the Supreme Court accepted as controlling the interpretation of the Treasury Department of section 14 of this very act extending over a period from 1874 to 1882, eight years, wherefore, and in sound conviction, this court feels bound to accept such an interpretation of another section of the act (sec. 21) extending over a period of almost 40 years. The court is convinced after thorough research that the power to reliquidate by a collector for fraud after the one year has frequently been exercised, and, before the briefs were presented in the case of Sherman & Sons Co., never questioned. For these reasons we are clearly of the opinion that at the time of these reliquidations the collector of customs was fully empowered to reliquidate the entries in question more than one year after in the presence of fraud. This brings us to consideration of what fraud is necessary to initiate action under section 21 of the act of June 22, 1874 (18 Stat. L., 186). The statute makes the previous liquidation final only “in the absence of fraud.” To be unable to say that fraud is absent from a case, the test of the application of the statute is far different from the requirement of a “finding” of fraud. The court is of the opinion upon the statutes and authorities that the statute is satisfied with and should be applied by collectors, and it is their duty so to do whenever there is a well-founded “suspicion” of fraud in the case; that where there is such a suspicion of fraud it can not be said there is an “absence of fraud.” Locke v. United States (7 Cranch, 11 U. S., 339, 348); Clifton v. United States (4 How., 46 U. S., 242). The court in proceeding to interpret this section is not unmindful that it is an exceptional statute, the interpretation of which class of laws is governed by exceptional rules. The exceptional rule was thus epitomized by the Supreme Court in United States v. Stowell (133 U. S., 1, 12): By the now settled doctrine of this court (notwithstanding the opposing dictum of Mr. Justice McLean in United States v. Sugar, 7 Pet., 453, 462,463), statutes to prevent frauds upon the revenue are considered as enacted for the public good and to suppress a public wrong, and therefore, although they impose penalties or forfeitures, not to be construed, like penal laws generally, strictly in favor of the defendant; but they are to be fairly and reasonably construed, so as to carry out the intention of the legislature. Taylor v. United States (3 How., 197, 210); Cliquot’s Champagne (3 Wall., 114, 145); United States v. Hodson (10 Wall., 395, 406); Smythe v. Fiske (23 Wall., 374, 380). *263What degree of fraud in an import revenue case demands and justifies action in court upon part of customs officers has for more than a century been declared by Congress and the Supreme Court. The Republic was young when its experience in preventing fraud against its import revenues demonstrated the necessity of the act of March 2, 1799 (1 Stat. L., 627, 678, ch. 22, sec. 71). It was provided in section 71 of that act, which related to seizures for fraud upon the import customs revenues, “ and in actions, suits or informations to be brought, where any seizure shall be made pursuant to this act, if the property be claimed by any person, in every such case the onus probandi shall he upon such claimant, * ⅜ * but the onus probandi shall lie on the claimant only where probable cause is shown for such prosecution, to be judged by the court before whom the prosecution is had.” The wisdom and justice of that rule was demonstrated by 75 years’ experience, when in essentially the same words it was made section 909 of the Revised Statutes; and again over a quarter of a century later approved and reenacted by Congress as section 21 of the customs administrative law of June 10, 1890 (26 Stat. L., 131), in force when these entries were made; again so reenacted as subsection 20 of section 28 of the act of August 5, 1909 (36 Stat. L., 11), in effect when these reliquidations were made, and subsection T of section 3 of the act of October 3, 1913 (38 Stat. L., 114), in effect when this trial was had. Said provision reads: Sec. 21. That in all suits or informations brought, where any seizure has been made pursuant to any act providing for or regulating the collection of duties on imports or tonnage, if the property is claimed by any person, the burden of proof shall lie upon such claimant: Provided, That probable cause is shown for such prosecution, to be judged of by the court. The act of 1799, and particularly the import of the words “probable cause,” as therein used, were interpreted by the Supreme Court, Chief Justice Marshall delivering the opinion for the court, in Locke v. United States (7 Cranch, 11 U. S., 339, 348), as follows: These combined circumstances furnish, in the opinion of the court, just cause to suspect that the goods, wares, and merchandise against which the information in this case was fled have incurred the penalties of the law. But the counsel for the claimant contends that this is not enough to justify the court in requiring exculpatory evidence from his client. Guilt, he says, must be proved before the presumption of innocence can be removed. The court does not so understand the act of Congress. The words of the seventy-first section of the collection law, which apply to the case, are these: “And in actions, suits, or informations to be brought, where any seizure shall be made purusant to this act, if the property be claimed by any person, in every such case, the onus probandi shall be upon such claimant.” “But the onus probandi shall be on the claimant only where probable cause is shown for such prosecution, to be judged by the court before whom the prosecution is had.” It is contended that probable cause means prima facie evidence, or, in other words, such evidence as in the absence of exculpatory proof would justify condemnation. This argument has been very satisfactorily answered on the part of the United States *264by the observation that this would render the provision totally inoperative. It may be added that the term “probable cause,” according to its usual acceptation, means less than evidence which would justify condemnation; and in all cases of seizure has a fixed and real well-known meaning. It imports a seizure made under circumstances •which warrant suspicion. In this, its legal sense, the court must understand the term to have been used by Congress. Of the numerous cases applying this rule those precisely applicable may well be cited. In Clifton v. United States (4 How., 45 U. S., 242). the Government in establishing probable cause chiefly relied upon a 10 per cent difference between the invoice and appraised value of the goods, and the failure of the claimant to produce papers known to be in his possession which might explain suspicions excited by -uncommon circumstances of the case. The Supreme .Court approved this instruction, holding that such made out such a prima facie case, and that the burden of proof rested upon the claimant. The Luminary (8 Wheat., 21 U. S. 407); Taylor v. United States (3 How., 44 U. S., 197, 211). The court, however, is not driven to construction as to what constitutes that fraud which should move customs officers wherever made the basis of action. Congress has declared such in an exactly parallel case. “The provisions in one of several acts forming a general system may be explanatory of other parts of the same system.” The Amelia (1 Cranch., 5 U. S., 1, 35). By section 7 of the customs administrative act of 1890 it is— Provided, That if the appraised value of any merchand#e shall exceed the value declared in the entry by more than fifty per centurh, except when arising from a manifest clerical error, such entry shall be held to be presumptively fraudulent, and the collector of customs shall seize such merchandise a»d proceed as in case of forfeiture for violation of the customs laws, and in any legal proceeding that may result from such seizure the undervaluation, as shown by the appraisal, shall he presumptive evidence of fraud, and the burden of proof shall he on the claimant to rehut the same, and forfeiture shall he adjudged unless he shall rehut such presumption of fraudulent intent hy sufficient evidence. That principle was continued and approved by Congress in subsection 7 of the act of August 5, 1909, and subsection I of section 3 of the act of October 3, 1913. If a “suspicion” of fraud constitutes “probable cause” sufficient to shift the burden of proof upon the importer in seizure and condemnation cases under sections 7 and 9 and 20-21 of the customs administrative law as is therein provided, wherein the judgment is forfeiture of the goods, why should not that measure of fraud be sufficient to prompt reliquidation where judgment at most is for the additional duties? Congress and the Supreme Court having declared a difference in values sufficient evidence of fraud to warrant seizure and put the importer upon his proof, this court is of the opinion that a suspicious and persistent difference between the actual and invoice and between invoice and sale weights of a particular importer should bo held equally sufficient *265to move customs officials to appropriate action, which in these cases was to reliquidation of the entries. Common sense and all human probabilities support the wisdom and fairness of these exceptional rules. Fraud never courts publicity. The proofs of its existence usually lie wholly and secretly with the ■particeps criminis. If, therefore, statutes "intended to prevent fraud” are to “be so construed as to carry out the intention of the legislature in passing them” to “most effectually accomplish these objects” the courts should not surround the performance of these duties by public officials charged therewith under the law with impracticable and ordinarily impossible performances. Such is the justification of the rules stated. Having indicated the conclusion that a “suspicion” of evidence would justify and demand action upon the part of the collector further discussion of the rule and the particular evidence herein will be more appropriately had in the consideration of the weight of this evidence before the Board of General Appraisers, whose decision is more immediately under review. Bearing in mind the law of the case as concluded let us examine the records before us. The court is of the opinion that much confusion has ensued from an inaccurate estimation of the exact import of the decision of the collector. Great stress has been laid upon the collector’s “findings” of fraud and his “decision” as to fraud. Let it be definitely understood at the outset that the collector herein neither made nor attempted to malee either a “finding of fraud” nor a “decision” thét there was fraud. In this case, as in all such, the sole and only legal function of the collector is to decide as to the rate and amount of the accrued duties, and in this case the only thing decided or found by the collector on reliquidation was that the amount of the duties previously liquidated was erroneous, and that a different and greater declared amount of duties was due. That much was decided. That much;<the law empowered him to decide. Beyond that he neither decided nor found nor stated he decided or found anything further. All else herein is referable to the legal requirements imposed upon the collector by the customs regulations of the Treasury Department. The law declares what shall be so transmitted and included in the record before the hoard. Subsection 14 of section 28 of the act of August 5, 1909 (36 Stat. L., 11), provides: “Upon such notice ” (protest) “and payment the collector shall transmit the invoice and all the papers and exhibits connected therewith to the board of nine general appraisers for due assignment and determination * * Pertinent thereto are the regulations, articles 1073 and 1074, supra. Thereupon, the proceedings, supra, were had, eventually bringing all the parties to retrial before the board upon order of this court on *266the importers’ motion to grant an opportunity to offer evidence in rebuttal of the evidence in the record. As the decision was made in 1912, he was governed by the Customs Regulations of 1908. These regulations in part provide: Art. 1073. Transmission to Board of General Appraisers. — Unless the claim set forth in the protest is regarded by the collector, after reviewing his action with regard to the entry, as a valid one, he shall, within 30 days thereafter, transmit the protest, invoice, and all the papers and exhibits connected therewith to the Board of United States General Appraisers, at 641 Washington Street, New York. * * * Art. 1074. Same — Statement of reasons for classification. — The collector, or officer acting as such, in his letter of transmittal shall state the reason which governed him in the assessment of duty and shall forward any special reports received by him and any other information in his possession relevant to the matter. * * * Whether we consider the report of the special deputy or the collector all said in each is no more than a recital of the “reasons” actuating the reliquidation as to the amount of additional duties as required by the regulations. What is decided or “declared” as therein stated relates solely to the proper amount of duties upon protest and 'payment of the additional duties. In obedience to the law and regulations, the collector transmitted all the legally required papers to the Board of General Appraisers. The material features (in suit 1464) shown by that record were: (1) The decision of the collector as to the amount of duties properly ■due, estimated, and assessed upon the imported merchandise. This amount was determined to be 11,037.31 more than and additional to the amount previously assessed. (2) The evidence negativing the absence of fraud which prompted reliquidation by the collector. This consisted in part of an amended weigher’s return vacating the previous weigher’s report and returning the stated true weights. The evidence further consisted of ‘ ‘invoices” and “accounts” including and in addition to the foregoing gathered by the collector and by him certified to the board under the powers conferred upon him by section 16 of the customs administrative law (26 Stat. L., 131), and articles 1073 and 1074 of the Customs Regulations of 1908, then in force. These “invoices” and “accounts” when compared show that “these amended returns and the reliqui-dntion thereon relate only to garlic and chestnuts, while some of the entries, 14 in number, cover in addition other merchandise. Upon these corrected weigher’s returns are written statements to the effect that the greater part of the reliquidated merchandise had been traced from the importers to various persons who had weighed the same and kept a record of such weights, with which the weights shown in the corrected returns substantially correspond; that in some instances the merchandise had been paid for upon the basis of such weights; and that in at least one case the importers had billed the goods at 46,253 pounds, which was some 3,500 pounds greater than the weight *267thereof as originally returned by the weigher. We have examined some of the files relating to all these 14 entries, and therefrom it appears that the corrected returns increase the weights above those originally returned in amounts varying from 1,000 to 16,000 pounds in each of such entries.” In addition to the foregoing the record before the hoard contained the collector’s reported “reason which governed him in the assessment of-duty,”'to wit: That “evidence was produced to show that the returns of the United States weighers were false and fraudulent, hence ⅜ * * reliquidations made on the true weights,” accompanied by the “special reports received by him” from the weigher to the same effect, all as required by article 1074 of the Customs Regulations of 1908 to be transmitted by the collector to.the Board of General Appraisers. (3) The protest among other things directed (1) “against the payment of the said increase of duty,” (2) alleged “that the said reliqui-dations are inaccurate and are based upon unreliable figures and data, and that the reliquidations, as originally made upon the above-named entries” were final and conclusive, (3) “that the importers deny that there was any fraud connected therewith.” At the second hearing before the board upon the foregoing record, the case having been ordered for new trial on importers’ motion to introduce evidence, the importers’ counsel announced — • I had. intended to go into the testimony and oSer evidence and proof of the weights, etc. I have now decided not to do that and am simply going to make offers on the record, then make some objections on the record, and submit on that. He then offered three indictments and records of acquittal in the case of United States v. Joseph, Vitelli, this being a proceeding between the United States and F. Vitelli efe Son. The board on objection of the Government excluded this evidence. Counsel for the importers then made the objections, as hereinbefore set out, principally in effect urging that the burden of proof was upon the Government to prove fraud; and that the weigher’s returns upon which reliquidation was had were not made by the collector or any of his deputies. Both sides rested. The judgment was for the Government. Was the board justified in excluding the certified copies of the indictments and records of acquittal offered as making a case of res adjudicaba? The first and elemental requirement of that doctrine is, “there must be identity, not only of the parties, in the two actions, but also as to the character, capacity or quality in which they are litigants.” United States v. California & Oregon Land Co. (192 U. S., 355); Washington, Alexandria, & Georgetown Steam-Packet Co. v. Sickles et al. (24 How., 65 U. S., 333); Gaines v. Hennen (24 How., 65 U. S., 553); Reynolds v. Stockton (140 U. S., 254); Werlein v. New Orleans (177 U. S., 390). *268There was no such mutuality of character or capacity. The protestants were F. Vitelli & Son v. United States. The records offered were in the case of United States v. Joseph Vitelli. Even were it competent, no proof of their identity was offered or suggested. Upon principle mutuality of causes of action may well be questioned where, as here, the Government in the criminal case was required to prove its case beyond a reasonable doubt, while in the civil proceeding it would prevail upon proof by a preponderance of the testimony. Were these requirements present, however, that such a judgment was res adjudicata may well be doubted. Those acquittals at most no more than established the absence of fraud on the part of the importers. Whatever may be the powers of the collector in obviously exceptional cases of fraud, they are nowhere here limited to cases of fraud upon the part of the importers alone, and, for want of that limitation, extend to all cases of the absence of fraud in the particular case whether by the importers or others, whereby the Government is deprived of its just revenues. The statute is not one of criminal or punitive limitation but one upon the powers of the Government to collect revenues fraudulently withheld by whomsoever perpetrated. So it has uniformly been regarded by the courts. “There is no allegation that there was any fraud in the case.” Beard v. Porter (124 U. S., 437, 442). The fraud in question is that mentioned in section 21 of the act of June 22, 1874 (18 Stat. L., 186). The language there employed concludes the question. It is— After the expiration of one year from the time of entry, in the absence of fraud and in the absence of protest by the owner, importer, agent, or consignee. Repetition of the words “in the absence of ” can only be justified and given effect by a congressional purpose to separate the two provisions and their respective modifications. The only useful purpose in that particular was to confine all the modifications (by the owner, importer, agent, or consignee) to the latter and withhold them from the former predication. The confinement of the protest to that of an “owner, importer, agent, or consignee,” without so limiting “fraud” indicates a congressional purpose not to so limit “fraud.” Stephens v. Cherokee Nation (174 U. S., 445). Section 9 of the customs administrative act declares forfeiture of goods for acts of the owner, consignee, and “other persons.” The Supreme Court has held a weigher one of such persons. United States v. Mescall (215 U. S., 26). That in certain cases “good faith and innocence constitute no defense” and that “the absence of any fraudulent intent by the consignee, the owner, or the agent” in certain actions to recover additional duties was held and the authorities reviewed by the Circuit Court of Appeals for the Eighth Circuit in United States v. Bishop (125 Fed., 181). *269The rule of decision in United States v. Stowell (133 U. S., 1, 12) that statutes aimed at the prevention of frauds against the revenues will not be construed strictly in favor of the defendants, but to carry out the intent of the legislature was obviously followed in the case of United States v. Mescall (215 U. S., 26), where the rule of ejusdem ■generis was rejected and the patent intent of Congress followed. The unquestionable intent of Congress by this section (21) was to enable the collector to recover the just revenues whenever and by whomsoever defrauded of them. The statute in language is not confined to frauds by weighers or exporters or any particular person. That language is expressly avoided by the context. If we are to follow the rule and construe the act so as to enable the Government to most effectually recover the revenues of which it is defrauded we must grant that relief regardless of who commits the fraud, for it is that construction which most effectually observes the congressional purpose. The indictments and records of acquittal were properly excluded by the board. It is argued, however, that the weigher’s original return is final and conclusive upon and can not be varied by the collector, wherefore these reliquidations are void. Appellants rely upon Marriott v. Brune et al. (9 How., 50 U. S., 619, 634) and Earnshaw v. Cadwalader (145 U. S., 247, 259) in support of this claim. Nevertheless, those cases perfectly harmonize with a long line of decisions of the Supreme Court typified by Belcher et al. v. Linn (24 How., 65 U. S., 508, 522), wherein it is held that even in cases of officers invested by law with the exercise of powers involving judgment and discretion, such as appraisers, "power in the officer and fraud in the party” is always open to challenge as effecting finality of their actions. Announcement of the principle seems but the statement of a trite legal maxim. Intimately associated at this point of discussion are the suggested restraints to reliquidation offered by the previous liquidation, the appraisement, and the weigher’s original return. For reasons hereinafter indicated there is no question of the appraisement or its validity in this case, and the references and authorities so relating are used by way of illustrating the principle herein adopted. The power of the collector to reliquidate we have already considered. The theory of the manner of its effect upon the original liquidation in the presence of that power becomes of less importance. Whether upon the principle that a liquidation induced by fraud is a nullity, absolutely void, and, therefore, that the reliquidation is such in name only, but not such in law or fact, being the only valid liquidation in the case; or, upon the principle that the reliquidation is an abandonment of the original, the legal right so to do finds ample and unchallenged support in the authorities. *270Even in cases of appraisement, which are and ever were by statute declared final as against the Government as well as the importers, the Supreme Court in cases where ah appraisement was induced by fraud, has affirmed the power of the collector to treat it as a nullity and order a new appraisement. In Iasigi el al. v. Collector (1 Wall., 68 U. S., 375, 383), the court said: It is true, that the appraisal and ascertainment of the dutiable value of the goods are made final and conclusive both upon the importer and the Government. But the question still remains, what appraisement or ascertainment of the value is to be regarded as final? It is admitted, if the appraisal was infected with fraud or imposition, it could not be, and the collector would not only be justified, but it would be his duty to order reappraisement, even under the circumstances in which the present one was made. The interests of the Government, as well as a proper regard for the rights of the honest importer, require it. And it seems to us but reasonable, if, from neglect or want of proper evidence or information on the part of the appraisers, the appraisal be under the proper dutiable value, this power of the collector should be permitted to correct the error. It is true, the exercise of it is usually, and doubtless with few exceptions, previous to the permit to deliver the goods; and must be so, generally, in order to be effective. But the act of Congress conferring the power on the collector fixes no limit to the period within which it may be exercised, and we think a reasonable discretion should be allowed him. In Robertson v. Downing (127 U. S., 607, 613), affirming the power of the collector to reliquidate, the court observed: The previous liquidation * * * was necessarily abandoned by the corrections subsequently made. In Louisville Pillow Co. v. United States (144 Fed., 386), the Circuit Court of Appeals for the Sixth Circuit thus declared the legal status: As we read the statutes, the reliquidation has all the validity of the original liquidation. When made, it becomes the liquidation in lieu of the original, and must be treated as such under section H. As said in Robertson v. Downing (127 U. S., 607, 8 Sup. Ct., 1328, 32 L. Ed., 269), where the duties were first liquidated on May 5,1882, and reliqui-dated on May 24,1882, and the protest was not filed until two days after the reliquidation (p. 613 of 127 U. S. and p. 1331 of 8 Sup. Ct., 32 L. Ed., 269): “The duties were not finally liquidated until the 24th of May, 1882. The time to protest did not begin to run until then. The previous liquidation on the 5th of May was necessarily abandoned by the correction subsequently made.” Followed in Sgobel & Day v. Robertson (C. C., 126 Fed., 577). In the recent case of United States v. Whitridge (197 U. S., 135, 25 Sup. Ct., 406, 49 L. Ed., 696), in which was involved the rupee price of imported goods, the collector first liquidated, then reliquidated upon the protest of the importers, and again reliqui-dated under direction of the Secretary of the Treasury. After the second reliquidation the importers protested, and the matter was submitted to the Board of General Appraisers, whence it ultimately reached the Supreme Court. To the same effect see United States v. McDowell (21 Fed., 562); United States v. Dickson (C. C. A., 139 Fed., 251); Sgobel & Day (126 Fed., 577); In re Strauss, Sachs & Co., G. A. 2743 (T. D. 15309); In re Hartmann & Darling, G. A. 3610 (T. D. 17436); In re Ford, *271G. A. 3167 (T. D. 16338); In re Comey & Johnson, G. A. 3842 (T. D. 17967); In re Stone & Co., G. A. 5406 (T. D. 24623). That by reason of the presence of fraud herein the collector was not hound either by the weigher’s return or the previous liquidations seems amply supported upon principle and authority. Regardless of the validity of the weigher’s amended return as such there would seem to be no question of his power to declare void as he herein did the previous returns. Section 249, Revised Statutes, provides “the Secretary of the Treasury shall direct the superintendence of the collection of the duties on imports and tonnage, as Tie shall judge lest.” Section 251, Revised Statutes, empowers him to make regulations having the force of law (cases supra). By article 1484 of the Customs Regulations of 1908 the weigher is empowered to amend his returns of weights. Whatever may be said of the manner of that amendment as otherwise required by the regulations, the power to amend implies a power to vacate the previous return, which was herein expressly done. That the collector has power so to treat an original liquidation we have already considered. That the existence of fraud rendered both the weigher’s return and original liquidation void is well settled upon principle. In an opinion of much learning by Mr. Justice Story, sitting as Circuit Justice in Bottomley v. United States (1 Story, 135; 3 Fed. Cas., 968, No. 1, 688), where a permit of lading was obtained by false and fraudulent invoices and bribery of a deputy collector, it is concluded: Here, no true entry, or honest estimate of duties, has ever been made; the duties justly due have never been paid, or secured to be paid. In each case, the transaction is equally a gross and palpable fraud; and the more or less of aggravation in the circumstances can not change the legal result. It mates no difference in the concoction of the fraud, in legal intendment, whether it defrauds the Government of the whole, or of the half, or of the quarter of the legitimate duties. It is still tainted and putrescent throughout. It is in known violation of law; and no act, done in Tcnovm violation of law, can be admitted to have any legal validity. It would be a contradiction in terms. Upon the whole, I am entirely satisfied, upon full deliberation, that the permit in the present case, if obtained by fraud and collusion between the claimant and the deputy collector (as the jiuy have found it was), was utterly void, and a mere nullity, and never had any legal existence as a permit. The cases of Cutts v. United States (case No. 3, 522), United States v. Lyman (Id. 15647), and Johnson v. United States (Id. 7419), involved many considerations directly applicable to the present point; and I see no reason to be dissatisfied with those judgments. Iu United States v. Nine Trunks (27 Fed. Cas., 161, No. 15885), the principle was laid down by Mr. Justice Strong, Circuit Justice, that'an “illegal importation worked a forfeiture.” On appeal to the Circuit Court the decision was affirmed. United States v. Nine Trunks (27 Fed. Cas., 164, No. 15886). To the same effect the Sarah B. Harris (21 Fed. Cas., 441, No. 12344). *272Congress by section 9 of tbe customs administrative law (26 Stat. L., 131), in a paragraph speaking of “fraudulent or false invoices, entries and papers,” has declared an importation so made an illegal importation. It the acts in pari materia are to be interpreted as therein provided, these importations, were illegally introduced by “false” invoices and entries, and if such is deemed sufficient to warrant reliquidation in another instance, why not here ? Assuming that the collector has the power to reliquidate after the one year, and that a well-founded suspicion of fraud will support such action, as we have shown, this case is precisely within the principle of decision adopted by the Supreme Court in United States v. Tappan et al. (11 Wheat., 24 U. S., 420, 426), wherein the court said: In explanation, however, of this answer, it is proper to observe that the eleventh section of the act, to which the questions are pointed, is intended to clothe the collector with enlarged powers to guard against fraudulent invoices. Whenever, in his opinion, there shall be just grounds to suspect that the invoice does not truly state the actual cost of the goods, he may direct an appraisement. How, or by what means, that opinion is made up, no one has authority to inquire, or a right to control. Ordinarily it will be founded from his own knowledge or the information he gets from others of the market price of the goods, and if that should differ widely from the invoice prices, it will afford grounds for suspecting the invoice to be fraudulent. Por, as a general course of 1 usiness, it is 1o be presumed that goods are purchased at the common market price. The authority of the collector to direct an appraisement is regulated, however, entirely by his own suspicion that the invoice is untrue, and does not state the actual cost of the goods as required by law. Whether this suspicion be well founded or not, it is not matter of inquiry. So far as respects the authority of the collector to direct the appraisement, he is governed altogether by his own opinion of the grounds of suspicion. Whether these suspicions were well or ill founded, and the consequences resulting therefrom, will depend upon after inquiry before the appraisers, and their decision thereupon. But the collector can not be called upon to avow or show the grounds upon which his suspicion rests. The law has vested him with an uncontrolled discretion on this subject to be regulated and governed by his own opinion, of the suiliciency of the grounds on which he suspects the invoice to be below the true value or actual cost of the goods. While it is true that the weigher’s return is presumably correct under the presumption attending official action, and can not be varied by the collector (Earnshaw v. Cadwalader, 145 U. S., 247, 259), except when the weigher has failed to follow the law or in cases of fraud (Belcher v. Linn, 24 How., 65 U. S., 508, 522), Congress has not expressly invested it with the finality of appraisement which, by section 13 of the customs administrative act, in the absence of protest, is made final and conclusive against all parties, including the collector. No such finality is given by Congress to weighers’ returns. Revised Statutes United States, 2890. The fact that Congress deemed it necessary by sections 13 and 14 of the customs administrative act (26 Stat. L., 131) and section 21 of the act of June 22, 1874 (18 Stat. L., 186), to so expressly legislate as to finality of the appraiser’s and *273collector’s acts, argues that it did not so intend to make final the weigher’s report. The most that can be said against these amended returns of the weigher is, that the time and manner of making such not having been pursued as prescribed by the Revised Status ..-ec. 2890) and Customs Regulations of 1908 (arts. 1036, 1440, and 1478-1512), they were functus officio as such. United States v. Leng (18 Fed., 15). We think the law otherwise. But the official weigher yet remained an officer of the customs and in making these special reports did so as such a public officer under the order and direction of the collector (art. 1440, swpra) at the port of New York. Their evidentiary value as such "special reports” will later be discussed. The likening the powers to those of appraisers in the briefs of appellants is unfortunate, for on the precise point the Supreme Court has held that they could base their judgment upon "computations and reports” made by witnesses. Origet v. Hedden (155 U. S., 228, 236). That the collector is not left without power in such a status, and that the orderly collection of the vast import customs revenues of the country has not been made dependent by Congress upon the fidelity, integrity, and capacity of every subordinate official of the customs service, is here well exemplified. Congress has not been so impoverished of wisdom that after more than a century of experience and legislation in its customs revenue administration it has upon the first appearance of infidelity or inaccuracy of any subordinate ousted the collector of all power to collect the just dues. Appellants thus voice their claim: Each, of the entries and reliquidations which are transmitted to this court as part of the record contains a statement reading as follows: “The correct weight as returned herein is ascertained as follows:” Then comes a statement that “Core & Herbert,” or “Visconti,” or “Bernard,” or “Gastenheimer, of Nash & Kendall,” or some-other person, naming him, weighed a certain number of baskets at a certain weight. None of the persons so named are United States weighers, or authorized or employed to act as such. * * * There is no doubt that if the United States weigher in this case had simply made his return of weights, without stating on the record how he arrived at them, it would be presumed that he acted according to law, in the absence of evidence to the contrary; but such presumption is overcome where the return itself contains the evidence, showing that the weights were not ascertained in the manner prescribed by statute. It is significant that, commencing with the customs administrative act of 1890 (26 Stat. L., 131), section 13, long after the enactment of section 2890, Revised Statutes, supra, Congress immediately after legislating finality as to the appraiser’s report, provided as to the remaining ascertainments necessary to liquidation, “the collector or the person acting as such shall ascertain, fix, and liquidate the rate and amount of the duties,” etc. Certainly in case no weigher was *274provided by law, or where be could not perform bis duties because of tbe absence of tbe goods or for other cause, this power is broad enough to authorize tbe collector to ascertain tbe weight in any satisfactory manner. This view is confirmed by section 16 of tbe customs administrative act (26 Stat. L., 131), giving collectors tbe power unlimited in time to cite tbe “owner, importer, agent, consignee, or other person,” examine him under oath and “ require tbe production of any letters, accounts, or invoices relating to said merchandise,” “may require such testimony to be reduced to writing, and when so taken it shall be filed in tbe office of tbe collector and preserved for use or reference until tbe final decision of the collector or said hoard of appraisers * * * respecting tbe valuation or classification of said merchandise.” In a decision of great merit by Judge Hand, Southern District of New York, it was held that tbe provision empowered tbe collector to “order an examination in aid of a possible re-liquidation.” United States v. Calhoun (184 Fed., 499, 506). That case was affirmed on appeal, United States v. Calhoun (C. C. A., 215 Fed., 709). Moreover, tbe statute makes and declares tbe testimony and accounts so taken by tbe collector legal evidence before the collector and tbe board, their weight to be determined, of course, by tbe reviewing tribunal. With this broad power granted tbe collector to examine, fix, and liquidate tbe amount of tbe duties, coupled with tbe absence of any provision making tbe weigher’s return final, and tbe broad power of section 16 in tbe collector to examine and consider “accounts” of all persons, we entertain no doubt that at least in cases where tbe weigher did not follow tbe law or was guilty of fraud tbe collector could, as be did here, direct tbe weigher or proceed himself to “ascertain” from tbe ’“accounts” of merchants to whom tbe merchandise was sold its true weights, and accordingly liquidate. Whether we consider this “evidence” of weights, spoken of by appellants, introduced in tbe record as an amended weigher’s return, or as “accounts and invoices” taken by tbe collector under section 16 of tbe customs administrative act (26 Stat. L., 131), or as “special reports received by him and any other information in bis possession relevant to tbe matter,” transmitted to tbe board under article 1074, Customs Regulations of 1908, when before tbe collector it was evidence “in aid of reliquidation” and when so transmitted became a part of tbe record and evidence duly before tbe board. ' There was no other proof offered, made, or taken before tbe board and tbe sole evidence in tbe case was that transmitted by the collector. Did tbe board err in its decision ? We think not. Viewing tbe record as supporting tbe collector’s action, bis reliqui-dation was within bis legal powers (cases supra) and the court is of *275the opinion that there was sufficient, evidence before him to warrant and require such action; Whether the decision of the collector be deemed such an official act as is attended by a presumption of verity and regularity, or that of an inferior tribunal or administrative officer acting in a quasi-judicial capacity whose jurisdiction will not be presumed, the "fraud” required by the act being a jurisdictional requisite, due degree of which must be shown by the record, this record satisfied both requirements. (1) That the decision of collectors of customs as to the rate or amount of' duty are presumed correct and regular is well established and not open to serious question. The Supreme Court in Arthur v. Unkart (96 U. S., 118, 121, 122) precisely adjudged this question, declaring: When an appeal is taken from his decision, the decision of the collector ceases to be conclusive; and the same is true of the decision of the Secretary of the Treasury. These officers are, however, selected by law for the express purpose of deciding these questions; they are appointed and required to pronounce a judgment in each case; and the conduct, management, and operation of the revenue system seem to require that their decisions should carry with them the presumption of correctness. This rule is not only wise and prudent, but is in accordance with the general principle of law that an officer acting in the discharge of his duty upon the subject over which jurisdiction is given to him is presqmed to have acted rightly. This court so held in United States v. Vitelli & Son (5 Ct. Cust. Appls., 151; T. D. 34194); United States v. Frank & Lambert (2 Ct. Cust. Appls., 239; T. D. 31973); Wolff v. United States (1 Ct. Cust. Appls., 181; T. D. 31217); United States v. Bradshaw & Co: (5 Ct. Cust. Appls., 121; T. D. 34168): See also to the same effect United States v. Arredondo (6 Pet., 691, 729); Earnshaw v: United States (146 U. S., 60, 67); Erhardt v. Schroeder (155 U. S., 124); Muser v. Magone (155 U. S., 240, 251). Indeed, it seems well established that not only‘does this-presumption attend the decision of the collector but, when it is essential to act, that a certain state of facts should exist, there is a presumption of the existence of such facts. United States v. Loeb et al. (99 Fed., 723, 732); United States v. Rosenwald et al. (C. C. A., 67 Fed., 323, 328); United States v. Schering et al. (C. C. A., 123 Fed., 65, 67). Assuming, however, that the collector's decision is not so attended with this presumption, the applicable rule is concisely stated in Galpin v. Page (18 Wall., 85 U. S., 350): As to them there is no presumption of law in favor of their jurisdiction; that must affirmatively appear by sufficient evidence or proper averment in the record, or their judgments will be deemed void on their face. Equally concise is Sabariego v. Maverick (124 U. S., 261): If we had before us an actual and formal decree of a competent tribunal adjudging him guilty of the offense and confiscating his property in punishment therefor, that *276of itself would not be sufficient to establish its own validity. We should still requiie record evidence of the existence of those facts which brought him and his property within the jurisdiction of the tribunal pronouncing such a decree. That the requirement is satisfied by evidence in the record of the requisite fact, be it jurisdictional or evidentiary, is well .settled. United States v. Jonas (19 Wall., 86 U. S., 598); United States v. Ross (92 U. S., 281); United States v. Carr (132 U. S., 644). This record as presented to and acted upon hy the collector contained such evidence in the fullness required hy the statute. By its least import it contains evidence of a persistent variance between the invoice and entered and the actual weights and between the former and the weights at which they were sold and settled for. If this court observes the general principle declared by the Supreme Court in United States v. Stowell (133 U. S., 1, 12) that such statutes “shall be so construed as will most effectually prevent fraud” and the application of that rule by that court in Locke v. United States (7 Cranch, 11 U. S., 339), wherein a “suspicion” of fraud, and in Clifton v. United States (4 How., 45 U. S., 242), wherein a variance in values wer.e held sufficient evidence of fraud to warrant action and put the importer upon his proofs in actions in the United States courts to forfeit the importer’s goods (in which courts the general rule putting the burden of proof'by a preponderance of the evidence upon the Government otherwise obtains), how can we refuse to hold a suspiciously persistent variance in weights of these importers’ goods, coupled with the fact of their billing them on sale at much greater weights, sufficient evidence of fraud to warrant and require the collector to reassess the duties, whereupon, as we shall show, the importer, if the goods are in customs custody, receives notice and must pay the increased duties in order to protest and try his case before the board, with appeal to the courts. But if the goods are not in custody, upon receipt of the required notice he can either pay the increased duties, protest, and litigate as before, or refuse to pay and defend action in the United States District Court. Be it noticed in passing that if in the United States District Court a well-founded “suspicion” of fraud will, under the statutes, support action and shift the burden of disproving fraud to the importer, why would not that same “suspicion” of fraud warrant the therein reviewed action of the collector founding the action 1 Certainly no one will contend that less evidence is required to support the review of a deoision uncontradicted than is necessary to support the decision itself! Wherefore, the court is of the opinion that the evidence before the collector was sufficient in due observance of his official duty to require action. What, may be asked, would any merchant do upon discovery that goods delivered to him were thus persistently materially under-weighed as paid for ? Would he be justified in suspecting fraud ? *277Upon protest and appeal to and tlie case being called by the board, all parties being present, determination of the issues proceeded. All evidence offered (the indictments and records of acquittal) were excluded, and the case submitted upon the record before the collector, as detailed. What then was the legal status of the case as submitted to the Board of General Appraisers? (a) The record showed a reliquidation by a collector oj customs as to the amount oj duties due wpon imported merchandise. The presumption of correctness attended that decision of the collector (cases supra). If any presumption of innocence aided the importers, that was neutralized by the former presumption and the parties stood before the board unaided by presumptions, the burden of proving the allegations of the protest resting upon the importers. (b) The record contained evidence that negatived the absence ojjraud. The evidence of persistent variances in and sales at greater weights, being evidence of fraud, destroyed any presumption of innocence attending the importers. As said by the Supreme Court in Galpin v. Page (18 Wall., 85 U. S., 350, 366): Presumptions are only indulged to supply the absence of evidence or averments respecting the facts presumed. They have no place for consideration when the evidence is disclosed ¡or the averment is made. When, therefore, the record states the evidence or malees an averment with reference to a jurisdictional fact, it will be understood to speak the truth on that point, and it will not be presumed that there was other or different evidence respecting the fact, or that the fact was otherwise than as averred. In the presence of evidence that there was fraud no presumption that there was not such and that the importers were innocent will be indulged. On the contrary, this evidence being undisputed by other evidence or explained by the importer it was sufficient to establish a prima jade case for the Government. Locke v. United States (7 Cranch, 11 U. S., 339); Clifton v. United States (4 How., 45 U. S., 242). Moreover, the importers being present, not only must we presume that they knew the true weights upon which they purchased and sold the goods, but having declared in their protest that the- re-liquidated weights were “inaccurate and are based upon unreliable figures,” their failure to so prove in explanation of the persistent variances and sales shown by the record the board was bound to take into consideration against them. Locke v. United States (7 Cranch, 11 U. S., 339); Clifton v. United States (4 How., 45 U. S., 242), and cases supra. The evidence in the case, irrespective oj any presumptions, put the burden of proof upon the importers, and having failed to explain the variances the board was bound to render judgment for the Government. Locke v. United States (7 Cranch, 11 U. S., 339); Wood v. United States (16 Pet., 41 U. S., 342); The Luminary (8 Wheat., 21 U. S., 407); Clifton v. United States (4 How., 45 U. S., 242). *278• ;'The bciard Rad' a' right' and lid doubt did' take 'into consideration fehat these importers bad’ come tó this1 court askin'g for a modification of a previous decision7and1 for- an order permitting’ them to offer proof bélow; that in their protest; eliminating1 the question of fraud, they alleged the reliquidatrdg weights erroneous, that in the Ordinary course of business they knew and ■ could prove the true weights, thereby concluding the cause in their favor, yet they failed so to do. {Oases sufra.) ; 'The two matters appearing from the record as transmitted by the collector, (1) that a collector-of citstoms had reliquidated an entry dfediding thetamouht'of'-'ddty duey ahd'"(2) tlíé reliquidation being moré than 'Oiíé'yé’ár ’after' entry;-thb exiátéhceWthié reéofd of evidfenCe sufficient to establish qófób'áblé'cafisé' {Orv ,-wéll-fó’úhded : Suspicion ‘ in the mind of'the collector)' that fraud was not'absénfífóm the case, the Board'Of' Gériéfál-Appraisers had ’jurisdiction- to hear and determine'the ífesúés,’ both as tothe amount Of the duties and;tbe existence of fraud in' the 'casé, and'the évidéñée Of "fraud ih’thé-récord :was' sufficient to shift the burden of proof upon the importers to explain or contradict-.that:evidence-. ■■ : -- , . v '■ This we regard the legal status of the case upon- judgment by the board, whether or not ', 'in\súcK a case, the long7 and' well -established1 rule in customs and. all cases-here obtained'that the burden Of. proof is upon'the protestant.,to prqye the materia-.allegations of his protest, aptly stated by the Supreme Court in Arthur v. Unkart (96 U. S., 118, 122):. • i 'Bótfc.-the ⅛⅛⅞ aindicollectoE -have-power" to abt iti the hrstinstanceupon the question ip dispute, ⅝⅜⅜⅛¾⅜¾⅛⅛⅜⅛⅜⅞‡⅛⅞ action is invipfation of law must maleé, the, woof-to [show it, ' -’,m -i mu-vón ' m'd.rhi-;u . bu; '■ United States v. Arredondo, (6 Pet., 31 U. S., 691, 729); Louisiana v. McAdoo (234 U. S., 627); Arnson v. Murphy (115 U. S., 579). And the rule has. been held .to apply to .allegations- or requirements of ® complaint-for fraud! Doll v. Evans (7 Fed. Cas., 855, No. 3969); Murray’s Lessee et al., v. Hoboken Land and Improvement Co. (18 How., 59 U. S., 272); Public: Clearing House v. Coyne (194 U. S., 497); Butterfield v. Stranahan (192 U. S., 470). There: is nothing! conflicting with the conelusions herein in-United States v. Federal Sugar Refining Co. (221.Red., 1016). In that case the complaint counted .upon the finodity of a finding or . decision of the collector that-there-was fraud .in the , case. The. statute, as we have, seen, nowhere makes ;such a, finding- final or conclusiye. It follows- that , such,-.if made, could not. become .res adjudícala. as to fraud.. .. The whole.view of Judge Coxe is in entire harmony With the views herein expressed. This .is shown,wherein he concludes: if the -allegations stated in- paragraph, ninth’-of ’-the complaint were stated not as a< findings and decisions,” but as facts, the defendant, by denying them, would have its day in court and an opportunity to prove that there was no fraud. *279It follows sucia a complaint would Rave been deemed good. For tbe same reason wbat is decided in United States v. Sherman & Sons Co. (237 U. S., 146) in no way conflicts with what is here decided. In that case there were two complaints. One made no allegation of either facts or a finding claimed conclusive by the collector and one made the latter allegation. The court held, with Judge Coxe, that both complaints were bad, and that each should have alleged fraud as a fact in the case. While those cases arose on demurrer to the sufficiency of complaints unattended by any presumptions of correctness this case arose on appeal from a decision not only so attended but wherein the judgment roll shows all the facts and evidence before the collector which have been held necessary to a good complaint before the courts. Much has been said about possible arbitrary action of the collector, want of notice to the importers, and an opportunity to disprove the fraud supporting the reliquidation where the procedure of the customs administrative act is pursued. Courts should give little heed to arguments based upon the assumption of malfeasance upon the part of sworn public officers. If courts observe the familiar rules of construction such speculation will find no legal justification in presence of the presumption of regularity of performance of public duties by such officers. So, reasoning that the customs administrative procedure affords no notice of reliquidation or opportunity to disprove fraud prompting such, shows a signal oversight of the law. Our customs administrative laws are in no respect vulnerable to such charges of ipse dixit action or the deprivation of property without notice or opportunity of defense. Congress, in the early history of the country, realized that such a system could better, probably only, be made complete in detail, effectiveness, and fairness by confiding to the experience of the Treasury Department the power to supplement these laws by detail regulations with the force of laws. This power was granted by act of February 10, 1820 (3 Stat. L., 543), and as revised finally incorporated as section 251, Revised Statutes. These regulations, when not contrary to the statutes and reasonable, have the force of law. United States v. Eaton (144 U. S., 677); Gratiot v. United States (4 How., 45 U. S., 80); Ex parte Reed (100 U. S., 13); United States,v. Symonds (120 U. S., 46). When there has been a long acquiescence in such a regulation its construction of a statute will not be disregarded without the most cogent, persuasive reason. Robertson v. Downing (127 U. S., 607); Brown v. United States (113 U. S., 568, 571); United States v. Philbrick (120 U. S., 52, 59). *280Contrary to the claimed want of express notice and opportunity to defend given importers by. collectors of customs of reliquidation such has been required by the customs regulations for the last quarter of a century. The Supreme Court, in Westray v. United States (18 Wall., 85 U. S., 322), held importers not entitled to such notice. By circular of May 10, 1867, the Treasury Department required collectors to give such notice by posting in the customhouse. That rule was made article 359 of the Customs Regulations of 1884. The Customs Regulations of 1892 (art. 888) and - of 1899 (art. 1477) required “a daily record must also be kept by both the collector and the naval officer of all additional duties found upon liquidation, and notice thereof promptly sent to the parties in interest.” The Customs Regulations of 1908 (art. 1037) extended the requirement to “all duties, additional and regular.” That such notice was given in these cases, see record, page 6. The same appears from the opinions of the courts in United States v. Sherman & Sons Co. (237 U. S., 146, at p. 147), and in United States v. Federal Sugar Refining Co. (211 Fed., 1016, at p. 1017). The claim, therefore, that reliquidation by a collector more than one year after entry for fraud under the customs administrative procedure leaves the importer without opportunity to defend against or disprove fraud is without foundation This record completely disproves that claim. The principles herein expressed demonstrate the complete harmony between what is decided in the cases discussed. Some pertinent comment may prevent misconception. It should be borne in mind that in these cases, upon notice of reliquidation, the importers paid the additional duties (record, p. 6) and protested, thereby bringing themselves within the jurisdiction of the Board of General Appraisers and this court, whereas in both the cases of Sherman & Sons Co. and the Federal Sugar Refining Co. upon such notice the importers refused to pay the additional duties assessed upon reliquidation. This fact alone determined the tribunal of future proceedings. Another pertinent difference is that these reliquidations did not affect or change the appraisements made. The appraiser .fixed the unit value of the goods, which the collector followed, the reliquidation being based upon the weights of the merchandise. Herein, then, the line of cases denying the power of the collector to reliquidate upon the ground of finality of the appraisement are not in point. Due observance of this important distinction will avoid confusion. Of such cases are Beard v. Porter (124 U. S., 437); United States v. Calhoun (184 Fed., 499; affirmed C. C. A., 215 Fed. Rep., 709); In re Blum Hardware Co., G. A. 7636 (T. D. 34917). The difference in the statutes declaring appraisements final — section 13, customs ad*281ministrative act of 1890, as amended 1909 (36 Stat. L., 11) — expressly concluding all interested "parties” from that of decision of the collector extending only to "persons” (sec. 14, ibid.) is well settled. The former includes the collector, the latter does not. United States v. Phelps et al. (17 Blatch., 312; 27 Fed. Cas., 521, No. 16039); United States v. Leng (18 Fed., 15). Whether or not, however, an appraisement moved by fraud possesses such finality or is a nullity is not in this case and not decided. See, however, Isaigi et al. v. Collector (1 Wall., 68 U. S., 375, 383); Hilton et al. v. Merritt (110 U. S., 97, 106); Passavant v. United States (148 U. S., 214, 220); Beard v. Porter (124 U. S., 437, 442); Belcher v. Linn (24 How., 65 U. S., 508, 522). Careful reading of Federal Sugar Refining Co., Sherman & Sons Co., and Vitelli & Son, decided by this court on the first appeal, shows no conflict in what was decided. On the contrary, the latter appeal in all its phases demonstrates the claimed injustice of such procedure without foundation. In the first two- cases it was held that the collector could not make a finding or decision of fraud which under the statute would become res adjudicata. We so held in effect in Vitelli & Son, tho sole point decided being that the presumption of correctness of the decision of the collector and the evidence of fraud in the record each was sufficient to put the burden of proof upon the importer. That holding necessarily denied the conclusiveness of any such finding. It should be particularly noted that it was not a finding oí fraud by the collector that this court held would become res adjudicata under section 21 of the act of June 22, 1874 (18 Stat. L., 186), but the decision of the collector as to the rate and amount of duty. The finding or existence of fraud necessary to move reliquidation after the one year was not held the subject of res adjudicata, but disputable. That is settled by the statute (sec. 14 of the customs administrative act, 26 Stat. L., 131), which makes “the decision of the collector as to the rate and amount of duties, * * * all dutiable costs and charges, and * * * all fees and exactions * * * final and conclusive,” and not his findings or evidence. The very fact that tho statute does not require the collector to make a finding or decision as to fraud argues the requirement 'of such to support action to be of less fraud than would support a finding or decision. The statute, however, does make the collector’s decision as to the amount of duty final in the absence of protest. Unprotested this decision becomes res adjudicata in all proceedings and in all courts. Tho importer may, however, elect remedies. He may protest and contest, if within a year ¿fter entry the amount of duty, if after the year the existence of fraud. The importer may elect tribunals, pay his duties, *282and protest as in this case, or refuse to pay his duties and defend in the District Court. If it duly appears on trial before either tribunal that there was an “absence of fraud” the decision as to the amount of duty is barred by section 21 of the act of June 22, 1874 (18 Stat. L., 186). If it appears that there was not ‘' absence of fraud ’ ’ the decision of the collector as to the amount of duty is not res adjudicata. That the decision of the collector as to the amount of duty duly made as distinguished from his findings becomes res adjudicata is not only clear from the words of the act, but has been repeatedly affirmed- by the courts, and that uniform interpretation has been adopted by Congress by repeated reenactments of the statute. That has been the repeated ruling of the courts for more than 40 years, including the Supreme Court in Westray v. United States (18 Wall., 85 U. S., 322, 329); United States v. Cousinery (7 Ben., 251; 25 Fed. Cas., 677, No. 14878); Watt v. United States (15 Blatch., 29; 29 Fed. Cas., 441, No. 17292); United States v. Phelps et al. (17 Blatch., 312; 27 Fed. Cas., 521, No. 16039); United States v. Campbell (10 Fed., 816, 819); United States v. Cobb et al. (11 Fed., 76); Gandolfi v. United States (74 Fed., 549); United States v. Tiffany & Co. (151 Fed., 473); United States v. Mexican International R. Co. (151 Fed., 545). See also Arnson et al. v. Murphy (115 U. S., 579, 584). Of course, that finality of decision only applies where the goods were entered and appraised and decision duly made — at least prior to the act of October 3, 1913 (38 Stat. L., 114), subsection N of section 3, which extends that finality to decisions of the collector to all'“duties chargeable upon imported merchandise.” Nor does the doctrine conflict with the line of cases wherein suit is brought to collect duties upon goods smuggled or otherwise not entered so as to come within jurisdiction of the collector, such, as in In re Chichester (48 Fed., 281); In re Floyd Bros. & Co., G. A. 6468 (T. D. 27680). There is always open in such cases the right of the collector to seize the goods to await decision of the courts in proceedings to libel the goods, or in an action in personam against the importer unattended by any existing decision of the collector res adjudicata. The finality, therefore, of the collector’s decision is neither anomalous nor in conflict with the adjudicated cases. These respective jurisdictions are supplemental one with the other. • The collector, barring exceptional minor instances, such as unclaimed goods (Revised Statutes, 2965), or seized goods valued at less than $500 (Revised Statutes, 3077), or perishable articles (Revised Statutes, 3080), has no power of executing his decisions. Enforcement thereof rests in his power to prevent landing and delivery until duties are paid or secured (Revised Statutes, 2869), at least prior to the act of October 3,, 1913 (30 Stat. L., 114). When entered and *283the estimated duties paid or secured, jurisdiction of the collector attaches and the procedure prescribed by the customs administrative act becomes exclusive, final, and conclusive as to the “rate and amount” of duties, all “dutiable costs and charges,” and all “fees and exactions.” Nichols v. United States (7 Wall., 74 U. S., 122, 129, 131); Andreae v. Redfield (98 U. S., 225); Arnson et al. v. Murphy (109 U. S., 238); Porter v. Beard (124 U. S., 429); Schoenfeld v. Hendricks (152 U. S., 691). If, however, the importer refused to enter his goods (duties having acci;uedwhen the ship passed into the customs district); or if they wpre struggled; or if he had given bond for payment of duties and it.was necessary to enforce the bond; or if they were seized by the collector under sections 13 and 14 of the act of June 22, 1874 (18 Stat. L., 186), or other laws; in all such cases or in cases of reliquida-tiorl'where this'i&porter does not pay the additional duties decree of % ’cómpgtpht .pó.upt ¡ is necessary to collect the duties. If there had been a valid decision of the collector as to the rate or amount of duties, that in all such cases, and nothing more, is made res adjudicate,. Beyond ,,that ,ih suph .cases all clone or assumed by the collector in making bis decision is' open to contest, subject to the duly attending presumptions. (IhWiewV.of these distinct and defined powers and duties of the respective tribunals, the court upon careful comparison of the records’afid decisions finds no conflict in what was decided in the Federal Suga^ Refilling, Co. case, in Sherman & Sons Co., and the previous and this' .Vitelh &. Son decision by this court. In that and the view that ‘the evidence in'‘the record was sufficient to put the importers herein upon their proofs, the decision of the Board of Genferál Appraisers shbiild 'b'e afhríhécl. t;Ih any event, were this Court to’ regard the decision of the Supreme Court in United States v. Sherman & Sons Co., supra, as applicable tb,¡'this'case/these áppellánth h’aving h^1 protest to the Board of General Appráisers invoked rehef in’ a ’tnhhnal without jurisdiction áre without remiedy: ■ ua ~ (
■Affirmed: | 07-23-2022 | [
"De Vexes, Judge, delivered the opinion of the court: This litigation made its first appearance in this court in United States v. Vitelli & Son (5 Ct. Cust. Appls., 151; T. D. 34194). The record therein, which in ail essential particulars is the same as the record herein, discloses that several importations of chestnuts and garfio by F. Vitelli & Son entered at the port of New York during-the years 1905 to 1907 were liquidated for duties by the collector at that port during those years, which duties were paid. During: the year 1912 the following proceedings were had: Report of special deputy collector. Treasury Department, United States Customs Service, Oeeice oe the Collector, Port of New York, July 8,1912. E. J. Allend ore, Esq., Deputy Collector, Seventh Division.",
"Sir: Satisfactory evidence having been produced before me showing that the returns of weight on the importations of P. Vitelli & Son, covered by the schedule below were false and fraudulent, I hereby declare the liquidations made thereon void, and direct that said entries be reliquidated on the basis of the corrected returns made by the United States weigher: Vessel, Koenig Albert; arrival, October 4, 1905; entry No. 216546. ⅝ ⅜ ⅝ * * * ⅜ B,espectfully, - H. C. Stuart, Special Deputy Collector. W. B. A. On July 22, 1912, F. Vitelli & Son made the following protest against said reliquidation of duties: Protest 661651-85451. Ruebsamen & Yuzzolino, Counsellors at Law, Bowling Green Building, 11 Broadway, New York, July 22,1912. Hon. William Loeb, Jr., Collector of the Port of New York, U. S. Custom House, New York City.",
"Dear Sir: We have just received notices of the reliquidation of duty on the following entries made by us, and on which the Government claims to be entitled to a payment of increased duty: Entry No. 290264; per S. S. Hamburg; duty paid, November 4, 1907; balance claimed to be due, $52.34, * ⅜ ⅜ * * * * Making a total of $1,037.31 increase of duty claimed by the Government on the foregoing entries.",
"We beg to hereby protest against the said action of the collector and against the re-liquidation of the duty in each of the entries above mentioned, and against the payment *246of the said increase of duty claimed on the grounds, in respect to each and every one of the entries above specified, that the said reliquidations are improper and incorrect; that they are unlawful, and not made pursuant to the provisions of the statute; that the said reliquidation was not made within the period prescribed by the statute, in that the original entries and payment of duty on the importations upon which the said increase of duty is claimed were made from 4⅞ to upwards of 6 years prior to the date of the said reliquidations; that the said reliquidations are inaccurate and are based upon unreliable figures and data; and that the reliquidations, as originally made upon the above-named entries, are now final and binding upon all parties concerned, and beyond any dispute or scrutiny. The undersigned also protest upon the ground that the above-mentioned reliquida-tions having been had, in each specific case, more than one year since the date of the original entry and payment of duty are of no effect under the provisions of the statute, for the reason that the importers deny that there was any fraud connected therewith; and they further protest upon the ground that the same subject matter involved in and brought up for issue by the said reliquidations has already been tried before a court of competent jurisdiction, and adjudged in favor of the undersigned, and for that reason the said subject matter is to be considered as res adjudicate in their favor.",
"The importers also protest against said reliquidations and each of them on the ground that the Board of General Appraisers is without jurisdiction to pass upon the issues raised thereby, and particularly that they have no jurisdiction to pass upon any issue of fraud which may be raised by the said reliquidations, by reason of their being made more than one year after the original entry and payment of duty. We therefore protest against any claim of payment of the said sum of 51,037.31 as an increased duty to the Government based upon the foregoing alleged reliquidations.",
"Respectfully, yours, F. Vitelli & Son, S President Street, Brooklyn, N. Y. Ruebsamen <⅛ Yuzzolino, Attys.for F. Vitelli & Son, No. 11 Broadway, Borough of Manhattan, New York City. Original received July 24, 1912. Indorsed: Customhouse, New York. Received July 24, 1912. Thereafter, on July 26, 1912, the importers sent the following notice to the collector of customs at that port: Letter from attorneys for importers. Ruebsamen & Yuzzolino, Counsellors at Law, Bowling Green Building, 11 Broadway, New York, July 26, 1912. Hon.",
"Wm. Loeb, Jr., Collector of Port of New York, United States Customhouse, New York. In re F. Vitelli & Son. Dear Sir: We beg to hereby notify you that our clients, Messrs. F. Vitelli & Son, of No. 3 President Street, Brooklyn, have to-day made a payment to the collector of the port of New York of 51,037.31 as the amount of increased duties claimed by the Government; of which they were notified on July 12,1912.",
"Said payment of 51,037.31 is made under protest, the grounds of which were fully set forth in the written protest filed in your office on July 24, 1912. Very respectfully, Ruebsamen & Yuzzolino, Attorneys for F. Vitelli & Son. *247August 17, 1912, the collector, under articles 1073 and 1074, Customs Regulations of 1908, transmitted the protest and record before him to the Board of General Appraisers for review and decision by the following: Report of the collector. — August 17, 191%. Respectfully referred to the Board of United States General Appraisers for decision. The payment forming the subject of the protest was made in satisfaction of the •claim of the United States for increased duties found to be due on certain importations of chestnuts and garlic.",
"Evidence was produced to show that the returns of the United States weighers were false and fraudulent. Hence the liquidations were declared void and reliqui-dations made on the true weights as found in the amended returns of the United States weigher. The limitation for the reliquidation of entries found in section 21, act of June 22, 1874, does not apply in cases of fraud. Note letter herewith, dated July 8, 1912, of Mr. H. 0. Stuart, directing reliquidation. Note also the indorsement of the United 'States weigher on the returns attached to each entry. The assessment of duty as made is affirmed. Protest was filed within statutory tíme. Wm. Loeb, Jr., Collector. Tbe record also recites that on eacb entry there was attached the original weigher’s return, with a statement on it signed by the United States weigher, as follows: “This return is hereby declared void because of fraud. Reliquidate on basis of corrected return attached.” The record further discloses that upon each entry the following order is written: “Reliquidate and assess duty upon the basis of the corrected return of the United States weigher attached, the original return being false and fraudulent.” The original and the amended weigher’s returns are a part of the record and were before the board and the court in that case as well as in this. From these this court found and recited as facts in United States v. Vitelli & Son (5 Ct. Cust. Appls., 151; T. D. 34194) as follows: These amended returns and the reliquidation thereon relate only to garlic and •chestnuts, while some of the entries, 14 in number, cover in addition other merchandise.",
"Upon these corrected weigher’s returns are written statements to the effect that the greater part of the reliquidated merchandise had been traced from the importers to various persons who had weighed the same and kept a record of such weights, with which the weights shown in the corrected returns substantially correspond; that in some instances the merchandise had been paid for upon the basis of such weights; and that in at least one case the importers had billed the goods at 46,253 pounds, which was some 3,500 pounds greater than the weight thereof as originally returned by the weigher. We have examined some of the files relating to all these 14 entries, and therefrom it appears that the corrected returns increase the weights •above those originally returned in amounts varying from 1,000 to 16,000 pounds in each of such entries. The record in suit No. 1474 in this case differs only in that precisely parallel action was had by the collector of customs, wherein he himself acted, instead of by a deputy collector of customs. *248At tbe original hearing before the Board of General Appraisers much discussion was had as to whether the burden of proof was upon the importers or upon the Government, in view of the fact that the right of the collector to reliquidate more than one year after the original liquidation, there being no protest in that case, could be exercised only in the presence of fraud.",
"Counsel for the importers, however, offered in evidence certain indictments and the records of acquittal of the indicted person, claiming that these records made a case res adjudicaba. Upon argument the board excluded the indictments and records of acquittal and took the question of the burden of proof under advisement. On December 5, 1912, the board made an interlocutory order holding that the burden of proof was upon the Government, and duly set the case for further trial on December 18, 1912. Thereupon all parties appeared, counsel for the Government noted an exception to the ruling of the board that the burden of proof was upon the Government to prove fraud, and the case was submitted by all parites.",
"The decision of the board followed, in accordance with its interlocutory order sustaining the protests. Upon-appeal to this court, February 10, 1914, after reciting the foregoing facts as shown, by the record before the board, this court reversed their decision, holding that upon the record as presented to the board the burden of proof was upon the importers. On February 17, 1914, upon appearance of the parties before this court, motion was duly made by the appellees for a modified order remanding the case to the board for a new trial and an amendment of the court’s previous decision accordingly, which motion was granted, and on February 19, 1914, mandate of the court to the board was accordingly made.",
"On May 25, 1914, pursuant to the above mandate the case was called for hearing by the board, all the parties appearing. Thereupon counsel for the importers made the following statement: Mr. Ytjzzolino. In these cases up to the last time they were on the docket I had intended to go into the testimony and offer evidence and proof of the weights, etc. I have now decided not to do that and am simply going to make offers on the record, then make some objections on the record, and submit on that. I offer, first, the certified copies of the indictments found by the Circuit Court of the United States for this district, three of them, together with a certified copy of the records of acquittal. Objection was renewed by counsel for the Government to the admission of the indictments and records of acquittal, which objection was sustained by the board, to which counsel for' the importers duly excepted, stating: Mr. Yuzzolino.",
"The importer excepts to the ruling of the board excluding the indictments on the ground that they show conclusively the nonexistence of fraud in the making of the entries, and this being the issue, i. e., fraud in making these entries, * * ⅜. While the importers offered no further evidence in the case, they made the following statement: *249The importer also excepts to the ruling of the court to the effect that the burden is upon him to show nonexistence of fraud in these cases, upon the ground that it imposes upon him an unlawful, unreasonable, and impossible burden, as a condition to his availing himself of the benefits of section 21 of the act of June 22,1874, and therefore deprives him of his property without due process of law, and is in violation of his rights under the United States Constitution. Accordingly the board on August 21, 1914, following the previous decision of this court in United States v. Vitelli (5 Ct. Cust.",
"Appls., 151; T. D. 34194), overruled the importers’ protests. The importers duly appeal to this court for a reversal of that decision. After submission of the case, by permission, counsel for the appellants bring to the attention of the court decisions in United States v. Sherman & Sons Co. (237 U. S., 146), decided by the Supreme Court of the United States; also the decision of the United States District Court for the Southern District of New York, United States v. Federal Sugar Refining Co. (211 Fed., 1016), both claimed by appellants to be decisive of this case. The questions herein involved are of far-reaching importance in the administration of the customs laws, involving the right of a collector of customs to reliquidate an entry in any case after one year after the original liquidation; the right of the collector to rehquidate at any time after the goods have gone out of customs possession or control; and the respective jurisdictions of the Board of General Appraisers and the United States District Courts in the matter of the collection of the customs revenues in cases where reliquidation has been made after one year after the original liquidation and in cases where the goods have gone beyorid the possession or control of the Government.",
"In view of the far-reaching importance of these appeals and the claimed conflict of the cited decisions, the Attorney General has, under section 195 of the judicial code, filed with this court a certificate to the effect that the case is one of such importance as to render expedient its review by the Supreme Court. In this view and that the subject may be viewed in all its bearings this court herein gives more extended consideration to the case than otherwise would be had.",
"The court is of the opinion that there are decisive differences between both the facts and the legal aspects of this and the two cases urged. These differences will later be considered. Preliminarily certain contentions by appellants should be noted. More by innuendo than argument action by a special deputy collector is questioned. It is sufficient to- say that such, if sound, would only affect suit No. 1464 herein, for in suit No. 1474 action was had by the collector in person. Tnat all the powers and duties, of collectors of customs are equally vested in their special deputies, is well settled. Revised Statutes (secs.",
"2625, 2630, and 2633); article 1434, Customs Regulations of 1908; Falleck v. Barney (8 *250Fed. Cas., 974, No. 4625); Lehmaier v. Maxwell (15 Fed. Cas., 250, No. 8214); Schmaire v. Maxwell (21 Fed. Cas., 700, No. 12460); United States v. Barton (24 Fed. Cas., 1025, No. 14534); Chadwick v. United States (3 Fed., 750); Frelinghuysen v. Baldwin (12 Fed., 395). Moreover, section 13 of the customs administrative act of 1890, under which action in the'se cases was had, expressly provides that “the collector or person acting as such shall ascertain, fix, and liquidate the rate and amount of the duties.” The affirmation by the collector herein (suit No. 1464) should be regarded as it imports, his letter of transmittal to the Board of General Appraisers, Customs Regulations of 1908, articles 1073 and 1074, stating as therein required, “the reason which governed him in the assessment of duty.” Prelusively, consideration will be had of the apposite general fundamentals. Primarily, the issues here concern the power of a collector of customs to liquidate and reliquidate entries. Whence does he derive that power generally aiid particularly in these cases ?",
"It has been often said that the exercise of the power of reliquidation by a collector of customs is an implied power finding no warrant in the express law, but founded upon implication from section 21 of the act of June 22, 1874, infra. The court is of the opinion that such is not accurate, that the contrary is true and that logic and the authorities will support the conclusion that the power of. the collector to malee liquidations and reliquidations is rested upon express statute. There are in the statutes grants of power to liquidate and also limitations upon its exercise which should be carefully distinguished. That power as given by the granting statutes was and is unlimited as to the time or the number of liquidations. The act of reliquidation, therefore, is within the grant of power of liquidation originally granted without qualifications as to time or repetition.",
"This power of collectors of customs to liquidate or, to be exact, to “estimate the amount of the duties payable * * *, indorsing the said amount upon the respective entries ” of imported merchandise, was originally granted by section 21 of the act of Congress, March 2, 1799 (1 Stat. L., 627), as follows: Sec. 21. * * s The collector * * * shall receive the entries of all ships •or vessels and of the goods, wares, and merchandise imported in them; shall, together with the naval officer where there is one, or alone where there is none, estimate the amount of the duties payable thereupon, indorsing the said amount upon the respective entries; shall receive all moneys paid for duties, and take all bonds for securing the payment thereof; ⅜ * *. That language was in all essential particulars made the language in part of section 2621 of the Revised Statutes, reading: Sec. 2621.",
"At each of the ports it shall be the duty of the collector: ⅜ * * *251Third. To receive the entries of all ships or vessels, and of the goods, wares, and merchandise imported in them. Fourth. To estimate, together with the naval officer where there is one, or alone where there is none, the amount of the dues payable thereupon, indorsing such amount upon the respective entries. Fifth. To receive al-1 moneys paid for duties, and take all bonds for securing the payment thereof.",
"******* Without express repeal section 13 of the customs administrative act of June 10, 1890 (26 Stat. L., 131), provided: Seo. 13. * ⅜ * And the collector or the person acting as such shall ascertain, fix, and liquidate the rate and amount of the duties to be paid on such merchandise, and the dutiable costs and charges thereon, according to law. The tariff act of August 5, 1909 (36 Stat. L., 11), subsection 13 of section 28 thereof, and the tariff act of October 3, 1913 (38 Stat. L., 114), subsection M of section 3 thereof, reenacted this provision in hsee vería. While these cases arose under the act of 1897 (30 Stat. L., 151), the reenactments serve as a congressional adoption of the construction given the earlier acts. ' Acting under the authority of these words, .unchanged until 1890 and then if anything enlarged in scope, from the foundation of our Government to date collectors of customs have liquidated and re-liquidated entries.",
"If there were any doubt as to the intended extent of this grant of power, each and every one of these limiting acts is a legislative declaration of its existence to the extent of the limitation, else why the idle legislation ? The first acts of limitation were section 5' of the act of March 3, 1857 (11 Stat. L., 192), and sections 14 and 15 of the act of June 30, 1864 (13 Stat. L., 202), providing that the decision of the collector of customs 1 ‘shall be final and conclusive against the owner, importer, consignee or agent of” imported merchandise unless protested as therein prescribed to the Secretary of the Treasury, etc. The customs administrative act of June 10, 1890 (26 Stat.",
"L., 131), section 14, subsection 14 of section 28 of (the act of August 5, 1909 (36 Stat. L., 11), and subsection N of section 3 of the act of October 3, 1913 (38 Stat. L., 114), are in essentially the same language, reading, \" that the decision of the collector as to the rate and amount of duties chargeable upon imported merchandise, ⅜ ⅜ * shall be final and conclusive against all persons interested therein, unless the owner, importer, consignee, or agent of such merchandise” should as therein prescribed protest to the Board of General Appraisers with right thereafter to appeal to the courts. The language, “shall be final and conclusive against all persons interested therein,” is common to all these acts.",
"It has been uniformly held, and never contrarily, to be a limitation upon the remedies of the importers and not the powers of collectors. United States v. Phelps et al. (17 Blatch., 312; 27 Fed. *252Cas., 521, No. 16039); United States v. Leng (18 Fed., 15); United States v. Mexican International R. Co. (C. C. A., 151 Fed., 545); Calhoun v. United States (184 Fed., 499); In re J. W. Hampton, jr., & Co., G. A. 1304 (T. D. 12655); In re Rheinstrom Bros., G. A. 1338 (T. D. 12689); In re Henry Schmidt, G. A. 1798 (T. D. 13496); In re Geo. Knowles & Son, G. A. 2305 (T. D. 14459); In re Foote, Reed & Co., G. A. 3810 (T. D. 17935).",
"Repeated reenactments have legislatively adopted this contemporary construction. United States v. Midwest Oil Co. (236 U. S., 459, 472); Tucker v. Oxley (5 Cranch, 9 U. S., 34); Robinson & Co. v. Belt (187 U. S., 41); Copper Queen Mining Co. v. Arizona Board (206 U. S., 474); Fairbank v. United States (181 U. S., 283). It was philosophic that Congress having given the importer the right not given collectors to correct errors of liquidation by protest Congress did not wish to deny the Government the right to correct such errors, which could only be done by reliquidation. These acts, however, were of limitation only in so far as they deprived the owner, etc., of the power after a prescribed time to enforce a contrary or defend against a liquidation. The entire breviary of laws granting and limiting the power of collectors of customs to estimate or reestimate the rate and amount of duties upon imported merchandise embraces but a single paragraph directly limiting that power, to wit, section 21 of the act of June 22, 1874 (18 Stat.",
"L., 186), as follows: Sec. 21. That whenever any goods, wares, and merchandise shall have been entered and passed free of duty, and whenever duties upon any imported goods, wares, and merchandise shall have been liquidated and paid, and such goods, wares, and merchandise shall have been delivered to the owner, importer, agent, or consignee, such entry and passage free of duty and such settlement of duties shall, after the expiration of one year from the time of entry, in the absence of fraud and in the absence of protest by the owner, importer, agent, or consignee, he final and conclusive upon all parties.",
"That act, though treating extensively of the duties of collectors, in no particular expressly added to his power of liquidation. There is here presented a striking example of legislative interpretation of, as distinguished from the coordinate rule of legislative adoption of, a statute as construed by the courts or administered by departments. The former rule, equally well if not more logically established, is expressed by the Supreme Court in Copo v. Cope (137 U. S., 682, 688), that— Several acts of Congress, dealing * ⅜ * with the same subject matter, should he construed not only as expressing the intention of Congress at the dates the several acts were passed, hut the later acts should also be regarded as legislative interpretations of the prior ones. United States v. Freeman (3 How., 556, 564); Stockdaler. Insurance Co. (20 Wall., 323). Under said section 21 the fact that the statute did not commence to run until after one liquidation, the necessary implication is of a power to make a second liquidation, else the statute is entirely nuga*253tory.",
"The statute concededly does not grant or invest a power to liquidate. The necessity for and the enacted limitation upon the exercise of that power, and its repetition as herein provided, is a legislative interpretation that the original grant included and vested the power of reliquidation in the collector. The power of the collector to liquidate and reliquidate Congress here assumes and interprets resides in the previous unlimited express statutory grants; its restrictions in the limiting acts. Calhoun v. United States (184 Fed., 499); United States v. Phelps et al. (17 Blatch., 312; 27 Fed. Cas., 521, No. 16039). The rule is elementary and fundamental that long-continued defart-mental practice and judicial construction of statutes while not absolutely controlling are not to be disregarded without the most cogent and persuasive reasons. United States v. Midwest Oil Co. (236 U. S., 459); Edwards v. Darby (12 Wheat., 25 U. S., 206); Pennoyer v. McConnaughy (140 U. S., 1); Copper Queen Mining Co. v. Arizona Board (206 U. S., 474), and numerous cases therein cited.",
"That a construction of an act — and this was said of the act of June 22, 1874 (18 Stat. L., 186) — by the Treasury Department, followed for many years without any attempt by Congress to change it should be followed by the Supreme Court, see Robertson v. Downing (127 U. S., 607). There is herein questioned not only (1) the existence of any express statutory authority for the collector to reliquidate, but also (2) the power of the collector to reliquidate within a year after entry when the goods have gone beyond his possession or control, and (3) the right of reliquidation for fraud in any case after one year after entry. This court is of the opinion that a full review of the authorities is convincing beyond question that not only are all these powers vested by express law in the collector, as heretofore considered, but that such has been the uniform legislative, departmental, and judicial construction of those statutes from the foundation of the -Government.",
"Not only was the enactment of section 21 of the act of June 22, 1874 (18 Stat. L., 186), a legislative interpretation of this preexisting power in collectors of customs long prior to that legislation, but by and from the decisions of earliest record to the present these acts have been uniformly and without exception held to empower collectors to liquidate and reliquidate within and after one year from entry and without any limitation upon that power save and except as follows: (1) Prior to the enactment of section 21 of the act of June 22, 1874 (18 Stat. L., 186), there was no limitation in this particular upon a collector and he could religuidate at any time. In a very early case the powers of a collector of customs in these particulars were ably amplified. This case has with great frequency been cited, quoted, *254and followed and on this point has never been questioned or overruled. In that case the duties had been twice previously liquidated.",
"The court speaks of the powers of the collector assuming them otherwise vested than by the acts of 1864 (13 Stat. L., 202) and 1874 (18 Stat. L., 186), which are characterized as limitations upon that power. The following language of Judge Blatchford therein is instructive (United States v. Phelps et al., 17 Blatch., 312; 27 Fed. Cas., 521 No. 16039): It is well settled that the duties upon all goods imported constitute a personal debt due to the United States from the importer; that the consignee is, for this purpose, treated as the owner and importer; that such debt is independent of any lien on the goods and of any bond given for the duties; and that the right of the Government to the duties accrues when the goods have arrived at the proper port of entry. Meredith v. United States (13 Pet., 38 U. S., 486).",
"By section 2931 of the Revised Statutes the decision of the collector, in liquidating duties, as to the amount of duties on imported goods, is made final and conclusive against all persons interested in such goods, unless notice in writing of dissatisfaction with such decision is given to the collector by the importer within 10 days after the liquidation, and unless within 30 days after the liquidation there is an appeal by the importer from the liquidation to the Secretary of the Treasury. Such liquidation is not made final and conclusive as against the United States. There is nothing in the section which forbids a reliqui-dation or a new decision by the collector, even after the payment of all the duties fixed by a prior liquidation, or even after the refunding of money deposited beyond the amount of duties so fixed; or which forbids a new decision by the collector as to the law on the same facts, or a new decision as to facts, based on additional or new or different facts.",
"This view is confirmed by the enactment of section 21 of the act of June 22, 1874 (18 Stat., 190), which is as follows: “Whenever any goods, wares, and merchandise shall have been entered and passed free of duty, and whenever duties upon any imported goods, wares, and merchandise shall have been liquidated and paid, and such goods, wares, and merchandise shall have been delivered to the owner, importer, agent, or consignee, such entry and passage free of duty and such settlement of duties shall, after the expiration of one year horn the time of entry, in the absence of fraud and in the absence of protest by the owner, importer, agent, or consignee, be final and conclusive upon all parties.” This provision was in force when the transactions in this case took place. It applies to the United States. The expression “all parties” includes the United States. By section 2931 of the Revised Statutes there was no limitation imposed on the power of the collector to reliquidate when such reliquidation was in the interest of the Government. But by section 21 of the act of 1874 a limitation is imposed on such power, so that after the entry of the goods and after the liquidation and payment of duties on them and after the delivery of the goods to the importer such settlement of duties, if there be no fraud and no protest by the importer, is, after one year from the entry, final and conclusive even as respects the Government.",
"In the present case the suit was brought before the one year expired. The collector, therefore, had power to make the reliquidation of July 20, 1878. That the power of the collector to reliquidate was unlimited prior to the act of June 22, 1874 (18 Stat. L., 186), is well established. Dumont v. United States (98 U. S., 142); Westray v. United States (18 Wall., 85 U. S., 322); United States v. Calhoun (184 Fed., 499); United States v. Leng (18 Fed., 15); United States v. Phelps et al. *255(17 Blatch., 312; 27 Fed. Cas., 521, No. 16039); Watt v. United States (15 Blatch., 29; 29 Fed. Cas., 441, No.",
"17292); United States v. Cousinery et al. (7 Ben., 251; 25 Fed. Cas., 677, No. 14878); United States v. Campbell (10 Fed., 816; T. D. 8695.) So where the act does not apply. (T. D. 7376); In re Paris, Allen & Co., G. A. 2411 (T. D. 14689); T. D. 16193; In re Ford, G. A. 3167 (T. D. 16338). (2) That the ‘power of reliquidation exists where the goods have gone beyond the possession or control of the collector has been the subject of equally uniform decisions. Upon principle, it is a strange doctrine to judicial or quasi-judicial procedure that the validity of the proceedings depends upon the ultimate ability to satisfy the judgment rendered or order made. That possession and control of the goods were necessary to exercise of the power of reliquidation was not the intention of Congress is evidenced by its authorization of the collector to take a bond for payment of duties. (R. S. U. S., 2621.)",
"This doctrine is concisely stated in United States v. Mexican International Railroad Co. (C. C. A., 151 Fed., 545): Before “the expiration of one year from the time of entry” the settlement of duties is not conclusive on the Government. Before the expiration of the one year the collector may reliquidate the assessment, although the duties first assessed have been paid and the-goods withdrawn for consumption. Such has been the uniform interpretation by the courts and Treasury Department of the powers of the collector.",
"Beard v. Porter (124 U. S., 437); Abner Doble Co. v. United States (119 Fed., 152); United States v. Mexican International Railroad Co. (C. C. A., 151 Fed., 545); Pacific Creosoting Co. (C. C. A., 196 Fed., 35); United States v. Tiffany & Co. (C. C. A., 151 Fed., 473); Louisville Pillow Co. v. United States (C. C. A., 144 Fed., 386); Neresheimer v. United States (131 Fed., 977); Knowles & Sons v. United States (122 Fed., 971); United States v. Cobb et al. (11 Fed., 76); United States v. Campbell (10 Fed., 816); United States v. Comarota (2 Fed., 145); United States v. Phelps et al. (17 Blatch., 312; 27 Fed. Cas., 521, No. 16039); T. D. 3972; T. D. 7376; In re Hampton, jr., & Co., G. A. 1304 (T. D. 12655); In re Rheinstrom Bros., G. A. 1338 (T. D. 12689); In re Schmidt, G. A. 1798 (T. D. 13496); In re Knowles & Son, G. A.",
"2305 (T. D. 14459); In re Foote, Reed & Co., G. A. 3810 (T. D. 17935); In re Hampton, jr., & Co., G. A. 1304 (T. D. 12655), approved in 21 Opinions of Attorney General, 334; In re Wyman & Co., G. A. 6536 (T. D. 27887); In re Forbes & Wallace, G. A. 5118 (T. D. 23655). Of course this power includes that to so rehquidate for fraud or any other cause affecting the rate or amount of duty. (3) That a collector of customs can, after a prior liquidation, reliqui-date within one year after entry has been from the earliest period assumed and decided. Robertson v. Downing (127 U. S., 607); *256Beard v. Porter (124 U. S., 437); Abner Doble Co. v. United States (119 Fed., 152); United States v. Fox et al. (53 Fed., 531); United States v. Frazer (10 Ben., 347; 25 Fed.",
"Cas., 1207, No. 15161); T. D. 3972; T. D. 8398; T. D. 8695; In re Fleitmann & Co., G. A. 738 (T. D. 11563); In re Strauss, Sachs & Co., G. A. 2743 (T. D. 15309); In re Hartman & Darling, G. A. 3610 (T. D. 17436); In re Forbes & Wallace, G. A. 5118 (T. D. 23655); In re Stone & Co., G. A. 5406 (T. D. 24623); In re Wyman & Co., G. A., 6536 (T. D. 27887); In re Hampton, jr., & Co., G. A. 1304 (T. D. 12655); T. D. 16503. This point is well established by the single fact that the Treasury regulations so authorizing have long been in full force and effect and the power unquestioned.",
"The regulations of the Treasury Department from 1881 to date, construing the statutes granting powers to collectors to reliquidate, have directed them, upon receipt of protest in their opinion well taken, to reliquidate. T. D. 4972; Customs Regulations of 1884 (art. 362); Customs Regulations of 1892 (art. 931); Customs Regulations of 1899 (arts. 1455 and 1463); Customs Regulations of 1908 (art. 1072, now effective); In re Hampton, jr., & Co., G. A. 1304 (T. D. 12655); T. D. 16503. “When there has been a long acquiescence in a regulation” (Treasury) “and by it rights of parties for many years have been determined and adjusted, it is not to be disregarded without the most cogent and persuasive reasons. United States v. Hill (120 U. S., 169, 182); United States v. Philbrick (120 U. S., 52, 59); Brown v. United States (113 U. S., 568, 571).” Robertson v. Downing (127 U. S., 607, 613).",
"(4) At present the law prescribes no time limit within which the collector shall malee his original liguidation. Pacific Creosoting Co. v. United States (C. C. A., 196 Fed., 35); Beard v. Porter (124 U. S., 437); Abner Doble Co. v. United States (119 Fed., 152); Gandolfi et al. (C. C. A., 74 Fed., 549); United States v. De Rivera et al. (73 Fed., 679); United States v. Leng (18 Fed., 15); United States v. Phelps et al. (17 Blatch., 312; 27 Fed. Cas., 521, No. 16039); T. D. 7376. (5) It has been uniformly held or assumed under the act of June 22, 1874 (18 Stat. L., 186), that when liguidation is had and protest made, the collector can religuidate more than one year after entry.",
"United States v. Whitridge (197 U. S., 135); United States v. Tiffany & Co. (C. C. A., 151 Fed., 473); Cassel v. United States (146 Fed., 146); Gulbenkian v. Stranahan (158 Fed., 836); United States v. Dickson (C. C. A., 139 Fed., 251); United States v. Phelps et al. (17 Blatch., 312; 27 Fed. Cas., 521, No. 16039); T. D. 8583; T. D. 16193. Statutes in later acts directing the collector to reliquidate protests after final decision thereon in accordance therewith, we shall hereafter *257show, are not exceptions to the exercise of an existing power in the collector, but assume the existence of that power and direct its exercise in accordance with the mandate of supervising authorities or tribunals. It may well be doubted' if the judicial history of the Government affords another instance wherein such a long-continued, uniform, and absolutely unquestioned judicial and administrative interpretation and practice under a statute or of its granted powers has obtained. Not only has there here been the legislative interpretation of those preexisting powers by the act of June 22, 1874 (18 Stat. L., 186), but the uniform judicial and administrative interpretations enumerated extending from the earliest date to the present, and also the subsequent and repeated legislative approval of those judicial and administrative interpretations, at least from Revised Statutes 2621 to and inclusive of section 13 of the customs administrative act of 1890 (26 Stat.",
"L., 131), subsection 13 of section 28 of the tariff act of 1909 (36 Stat. L., 11), and subsection M of section 3 of the tariff act of 1913 (38 Stat. L., 114), has been to the same effect. Whether we rest those powers of reliquidation long exercised by collectors of customs, as aforesaid, in express or implied statutory authority, if there is any virtue in the philosophy of the rule of long-continued uniform interpretation, usage, and practice, whioh makes for the safety and repose of commerce and the rights of man, herein is afforded a vindicating exemplar. The point may well be concluded with the language of the Supreme Court in United States v. Midwest Oil Co. (236 U. S., 459, 472): It may be argued that while these facts and rulings prove a usage they do not establish its validity.",
"But government is a practical affair intended for practical men. Both officers, lawmakers, and citizens naturally adjust themselves to any long-continued action of the executive department, on the presumption that unauthorized acts would not have been allowed to be so often repeated as to crystallize into a regular practice. That presumption is not reasoning in a circle, but the basis of a wise and quieting rule that in determining the meaning of a statute or the existence of a power weight shall be given to the usage itself, even when the validity of the practice is the subject of investigation. This principle, recognized in every jurisdiction, was first applied by this court in the often cited case of Stuart v. Laird (1 Cranch, 299, 309). There, answering the objection that the act of 1789 was unconstitutional in so far as it gave circuit powers to judges of the Supreme Court, it was said (1803) that “practice and acquiescence under it for a period of several years, commencing with the organization of the judicial system, affords an irresistible answer and has indeed fixed the construction.” It is a contemporary interpretation of the most forcible nature.",
"This practical exposition is too strong and obstinate to be shaken or controlled. Robinson & Co. v. Belt (187 U. S., 41); Copper Queen Mining Co. v. Arizona Board (206 U. S., 474); Fairbank v. United States (181 U. S., 283). *258Other acts in pari materia Maimed by appellants to imply a contrary view in fact support the views heretofore expressed. These acts read in conjunction with those of grant and limitation upon the powers of a collector of customs to liquidate and reliquidate conduce to the same conclusion, the contrasted provisions of those acts being explanatory of these.",
"The Amelia (1 Cranch, 5 U. S., 1); Merritt v. Cameron (137 U. S., 542); Pollard v. Kibbe (14 Pet., 39 U. S., 353); Nobles v. Georgia (168 U. S., 398). It is claimed that' the act of March 3, 1875 (18 Stat. L., chap. 136, p. 469), authorized reliquidation for clerical errors, and hence implied absence of a general power of reliquidation in the collector. We think the contrary. Prior to this act the Secretary of the Treasury, by sections 3012⅜ and 3013 of the Revised Statutes, had unlimited power of refund, of duties unascertained and ascertained, depending solely upon his judgment that they should he repaid. The act of March 3, 1875, was entitled, “restricting the- refunding of customs duties,” etc. It was addressed to and restrictive of the powers of the Secretary of the Treasury to make refunds of customs duties. It then provided ‘ ‘ that this act shall not affect the refund of excess of deposits based on estimated duties nor prevent the correction of errors in liquidation,” etc.",
"How a provision expressly declared “shall not affect” “nor prevent” exercise of a power impliedly grants such we can not understand. Obviously, however, it presupposes the existence of and preserves a preexisting power which was.probably being exercised by the Secretary of the Treasury, and this act was so construed. (21 Op. Atty. Gen., 251.) That it did not affect the power of reliquidation in the collector was held in United States v. Phelps et al. (17 Blatch., 312; 27 Fed. Cas., 521, No. 16039). That the act related to the Secretary of the Treasury and was vesting in another official than the collector power to grant certain refunds arising out of, without changing or affecting, liquidations, is made certain by the amendatory act, section 24 of the act of June 10, 1890. • Other acts or parts thereof in pari materia also afford instruction.",
"Sections 14 and 15, act of June 10, 1890 (that being the act under which these reliquidations were made), provide that after final decision of the Board of General Appraisers or courts the papers shall be transmitted to “the proper collector or person acting as such, who shall liquidate the entry accordingly,” etc. These provisions do not empower but direct reliquidation by an officer already having that power, who has previously liquidated upon a different basis. The provision assumes existence of that power in the collector and none else and provides that upon mandate it shall be exercised by the collector according to the decision of another and in a maimer different from its previous exercise. Without this .provision of law under what authority could the collector be compelled to reliquidate ? *259Section 25 of the tariff act of 1894 (28 Stat. L., 552), provided that the Secretary of the Treasury should estimate and proclaim the value in our money of foreign coins and that those values “shall be followed in estimating the value” of all imports, etc., and “ Provided, That the Secretary of the Treasury may order the reliquidation of any entry at a different value,” etc. That statute does not empower reliquidation, but places in the power of the Secretary of the Treasury superior authority to direct reliquidation by the collector so authorized by law, regardless of the opinion of or other superior authority over the collector.",
"This precise point is confirmed and the compulsory power indicated by the familiar history of the proceedings under that section. United States v. Whitridge (197 U. S., 135). Revised Statutes, section 2857, provides that change may be made of the destination of goods by entry at the port of arrival and, where the triplicate invoice has not arrived, a certain routine, “ and the duty shall not be finally liquidated until such triplicate, or a certified copy thereof, shall have been received. Such liquidation, however, shall not be delayed longer than 18 months from the time of making such entry.” Here again Congress, assuming an unlimited power of liquidation in the collector, by statute directs its exercise in words of direction only and not of authorization. These various acts, however, authorizing various officials to direct and requiring the collector as' late as 18 months after entry to liquidate as directed aré instructive that Congress did not confine that power to the period within which the goods remained in the possession or control of the collector, and in every instance assumes an unlimited power previously vested and existing in the collector to so reliquidate.' This exceptionally consistent construction of the statutes in pari materia rests upon the clear and unchanged language of the empowering law and what would seem equally clear language of section 21 of the act of June 22, 1874, as viewed, treated, and interpreted by Congress in a series of enactments in pari materia extending over a period of almost forty years.",
"This consistent and uniform view of Congress is instructive. Cope v. Cope (137 U. S., 682-688). Elementally, an unlimited power of liquidation (uniformly construed as, if not literally, including the power of reliquidation) having been vested in the collector by previous acts of Congress, this restraining provision upon those powers was enacted. Logically if there were exceptions to the restraining act the powers of the collector in the instances of those exceptions continued unrestrained and unlimited. These exceptions were two — in the absence of a protest and in the absence of fraud. They are coequal in every respect. All conceded and it has been uniformly held (cases supra) that, where a protest is filed, the power of the collector to reliquidate is not made final *260in the year, that the act of 1874 does not apply to such cases, and that the collector can reliquidate whenever the protest is out of the case.",
"(Cases su'pra.) The limitations upon the extent of such a reliquidation are not here in question or decided. The right and power and its preservation by the statute alone are important and declared. Wherein does the other exception differ ? If the presence of a protest makes the act inapplicable, why does not “fraud” do likewise? The two must stand or fall together. If there is power in the collector to rcliquidate after one year after entry in cases of protests, which is conceded by all, by those exact words that power is reserved to him in cases of fraud.",
"The cases are so exactly parallel and the statute so unmistakably expounds itself that argument as to its meaning and effect would be offensive to common, not to say legal, intelligence. In United States v. Sherman & Sons Co. (237 U. S., 146), no doubt because, as shown by the briefs, so represented to the court and not controverted, it was assumed as a fact, speaking of section 21 of the act of Juno 22, 1874, and stated: It is a significant fact that although the act has been in force for more than 40 years there are only two instances reported in which the collector, after the expiration of one year, has attempted to reliquidate because of the existence of fraud.",
"Those two cases — United States v. Vitelli, Court of Customs Appeals (1914), and United States v. Federal Sugar Co. (211 Fed., 1016) — are of recent date and in direct conflict with each other. Instances of reliquidation by collectors for fraud covering a period of more than a quarter of a century past are reported. There is reported in T. D. 16193, of date June 27, 1895, the case of Gandolfi et al., wherein cheese imported and entered by pro forma invoice in November, 1891, was reliquidated March 7, 1893, which action by the collector in suit to recover the balance was in part justified by the United States upon the ground that ‘ ‘sufficient had been proved to raise a presumption of fraud, which in itself prevented the year from running, as provided in section 21 of the act of June 22, 1874.” This decision shows not only the fact that the collector so acted but that the Treasury Department approved and adopted this action of the collector.",
"Subsequently, as shown, this course was approved by the Treasury Department. In G. A. 3167 (T. D. 16338) is reported an instance wherein the collector at the port of Boston in October, 1894, reliquidated entries of bags previously liquidated in September, 1892, and January, 1893, more than a year thereafter, upon the ground of fraud. Upon protest and trial section 21 of the act of June 22,1874, being urged as a limitation upon the action of the collector the board found fraud and sustained the collector. In G. A. 3842 (T. D. 17967) an entry on October 8, 1895, of black hatters’ plush at the port of Cleveland, Ohio, was liquidated by the *261collector at that port October 18, 1895, and reliquidated December 10, 1896, more than a year after entry. It is reported in the board’s decision that \"the act of reliquidation, subject of complaint, was performed by the collector under section 21 of the act of Juno 22, 1874, on the ground that appellants were guilty of misrepresentation or fraud in making said entry.” On trial the board conceded the law to be that such a liquidation would be valid, but found against the Government on the fact of fraud in the case. In 1905-1907 F. Vitelli & Son imported at New York chestnuts and garlic, which were liquidated during those years.",
"Subsequently and during the year 1912 the collector reliquidated upon the alleged ground of fraud and reported such and that by reason thereof section 21 of the act of June 22, 1874, did not apply. The importers protested, denying the existence of fraud, but in no way challenging the legal right of the collector to so liquidate. On trial before the Board of General Appraisers it was held that the collector could, under section 21, supra, reliquidate where there was fraud in the case, but that the burden to prove such before the board was upon the Government. G. A. 7418 (T. D. 33115).",
"The Government appealed to this court. Herein the right of the collector to reliquidate after one year where there was fraud in the case was unchallenged, was not in issue, nor decided. The sole issue decided was as to the burden of proof. A new trial was granted. United States v. F. Vitelli & Son (5 Ct. Cust. Appls., 151; T. D. 34194). Further, neither on rehearing before the board nor on this appeal to tbfts court, nor until presentation to the Supreme Court in the case of Sherman & Sons Co., was ever the right of the collector to reliquidate 6ne year after entry, where there was fraud, challenged or questioned.",
"After that decision, and by supplemental brief, for the first time in this case and court was that issue made. Until that day, May 1, 1915, the right of a collector to reliquidate for fraud more than one year after entry iSnder the act of 1874 was herein never challenged, but always assumed. G. A. 7418 (T. D. 33115); United States v. F. Vitelli & Son (5 Ct. Cust. Appls., 151; T. D. 34194). In 1909 Sherman & Sons Co. imported at New York certain laces upon which duties were liquidated during that year. In 1913 the collector reliquidated, finding fraud as a fact in the case. The importers declined to pay the additional duties and the Government brought suit in the United States District Court of that district. Demurrers were filed and sustained, solely upon the issue as to the allegations of fraud in the complaints, and on appeal to the United States Circuit Court of Appeals that court certified three questions to the Supreme Court.",
"Neither by these questions nor otherwise in the case was the legal right of the collector to reliquidate for fraud one year after entry challenged. The questions certified inquired, *262could the collector malee a finding of fraud after the one year, which, if not protested, would become res adjudicata as to the importers ? Until the filing of the importers’ brief in that case in the Supreme Court, December 14, 1914, this legal right, so far as we can discover, was never in any jurisdiction challenged, and is reported to have been exercised unchallenged, and section 21 of the act of June 22, 1874 (18 Stat.",
"L., 186), been so interpreted ever since its enactment. In Robertson v. Downing (127 U. S., 607), the Supreme Court accepted as controlling the interpretation of the Treasury Department of section 14 of this very act extending over a period from 1874 to 1882, eight years, wherefore, and in sound conviction, this court feels bound to accept such an interpretation of another section of the act (sec.",
"21) extending over a period of almost 40 years. The court is convinced after thorough research that the power to reliquidate by a collector for fraud after the one year has frequently been exercised, and, before the briefs were presented in the case of Sherman & Sons Co., never questioned. For these reasons we are clearly of the opinion that at the time of these reliquidations the collector of customs was fully empowered to reliquidate the entries in question more than one year after in the presence of fraud. This brings us to consideration of what fraud is necessary to initiate action under section 21 of the act of June 22, 1874 (18 Stat.",
"L., 186). The statute makes the previous liquidation final only “in the absence of fraud.” To be unable to say that fraud is absent from a case, the test of the application of the statute is far different from the requirement of a “finding” of fraud. The court is of the opinion upon the statutes and authorities that the statute is satisfied with and should be applied by collectors, and it is their duty so to do whenever there is a well-founded “suspicion” of fraud in the case; that where there is such a suspicion of fraud it can not be said there is an “absence of fraud.” Locke v. United States (7 Cranch, 11 U. S., 339, 348); Clifton v. United States (4 How., 46 U. S., 242).",
"The court in proceeding to interpret this section is not unmindful that it is an exceptional statute, the interpretation of which class of laws is governed by exceptional rules. The exceptional rule was thus epitomized by the Supreme Court in United States v. Stowell (133 U. S., 1, 12): By the now settled doctrine of this court (notwithstanding the opposing dictum of Mr. Justice McLean in United States v. Sugar, 7 Pet., 453, 462,463), statutes to prevent frauds upon the revenue are considered as enacted for the public good and to suppress a public wrong, and therefore, although they impose penalties or forfeitures, not to be construed, like penal laws generally, strictly in favor of the defendant; but they are to be fairly and reasonably construed, so as to carry out the intention of the legislature. Taylor v. United States (3 How., 197, 210); Cliquot’s Champagne (3 Wall., 114, 145); United States v. Hodson (10 Wall., 395, 406); Smythe v. Fiske (23 Wall., 374, 380). *263What degree of fraud in an import revenue case demands and justifies action in court upon part of customs officers has for more than a century been declared by Congress and the Supreme Court.",
"The Republic was young when its experience in preventing fraud against its import revenues demonstrated the necessity of the act of March 2, 1799 (1 Stat. L., 627, 678, ch. 22, sec. 71). It was provided in section 71 of that act, which related to seizures for fraud upon the import customs revenues, “ and in actions, suits or informations to be brought, where any seizure shall be made pursuant to this act, if the property be claimed by any person, in every such case the onus probandi shall he upon such claimant, * ⅜ * but the onus probandi shall lie on the claimant only where probable cause is shown for such prosecution, to be judged by the court before whom the prosecution is had.” The wisdom and justice of that rule was demonstrated by 75 years’ experience, when in essentially the same words it was made section 909 of the Revised Statutes; and again over a quarter of a century later approved and reenacted by Congress as section 21 of the customs administrative law of June 10, 1890 (26 Stat. L., 131), in force when these entries were made; again so reenacted as subsection 20 of section 28 of the act of August 5, 1909 (36 Stat.",
"L., 11), in effect when these reliquidations were made, and subsection T of section 3 of the act of October 3, 1913 (38 Stat. L., 114), in effect when this trial was had. Said provision reads: Sec. 21. That in all suits or informations brought, where any seizure has been made pursuant to any act providing for or regulating the collection of duties on imports or tonnage, if the property is claimed by any person, the burden of proof shall lie upon such claimant: Provided, That probable cause is shown for such prosecution, to be judged of by the court. The act of 1799, and particularly the import of the words “probable cause,” as therein used, were interpreted by the Supreme Court, Chief Justice Marshall delivering the opinion for the court, in Locke v. United States (7 Cranch, 11 U. S., 339, 348), as follows: These combined circumstances furnish, in the opinion of the court, just cause to suspect that the goods, wares, and merchandise against which the information in this case was fled have incurred the penalties of the law. But the counsel for the claimant contends that this is not enough to justify the court in requiring exculpatory evidence from his client. Guilt, he says, must be proved before the presumption of innocence can be removed.",
"The court does not so understand the act of Congress. The words of the seventy-first section of the collection law, which apply to the case, are these: “And in actions, suits, or informations to be brought, where any seizure shall be made purusant to this act, if the property be claimed by any person, in every such case, the onus probandi shall be upon such claimant.” “But the onus probandi shall be on the claimant only where probable cause is shown for such prosecution, to be judged by the court before whom the prosecution is had.” It is contended that probable cause means prima facie evidence, or, in other words, such evidence as in the absence of exculpatory proof would justify condemnation. This argument has been very satisfactorily answered on the part of the United States *264by the observation that this would render the provision totally inoperative. It may be added that the term “probable cause,” according to its usual acceptation, means less than evidence which would justify condemnation; and in all cases of seizure has a fixed and real well-known meaning.",
"It imports a seizure made under circumstances •which warrant suspicion. In this, its legal sense, the court must understand the term to have been used by Congress. Of the numerous cases applying this rule those precisely applicable may well be cited. In Clifton v. United States (4 How., 45 U. S., 242). the Government in establishing probable cause chiefly relied upon a 10 per cent difference between the invoice and appraised value of the goods, and the failure of the claimant to produce papers known to be in his possession which might explain suspicions excited by -uncommon circumstances of the case. The Supreme .Court approved this instruction, holding that such made out such a prima facie case, and that the burden of proof rested upon the claimant. The Luminary (8 Wheat., 21 U. S. 407); Taylor v. United States (3 How., 44 U. S., 197, 211). The court, however, is not driven to construction as to what constitutes that fraud which should move customs officers wherever made the basis of action.",
"Congress has declared such in an exactly parallel case. “The provisions in one of several acts forming a general system may be explanatory of other parts of the same system.” The Amelia (1 Cranch., 5 U. S., 1, 35). By section 7 of the customs administrative act of 1890 it is— Provided, That if the appraised value of any merchand#e shall exceed the value declared in the entry by more than fifty per centurh, except when arising from a manifest clerical error, such entry shall be held to be presumptively fraudulent, and the collector of customs shall seize such merchandise a»d proceed as in case of forfeiture for violation of the customs laws, and in any legal proceeding that may result from such seizure the undervaluation, as shown by the appraisal, shall he presumptive evidence of fraud, and the burden of proof shall he on the claimant to rehut the same, and forfeiture shall he adjudged unless he shall rehut such presumption of fraudulent intent hy sufficient evidence. That principle was continued and approved by Congress in subsection 7 of the act of August 5, 1909, and subsection I of section 3 of the act of October 3, 1913.",
"If a “suspicion” of fraud constitutes “probable cause” sufficient to shift the burden of proof upon the importer in seizure and condemnation cases under sections 7 and 9 and 20-21 of the customs administrative law as is therein provided, wherein the judgment is forfeiture of the goods, why should not that measure of fraud be sufficient to prompt reliquidation where judgment at most is for the additional duties? Congress and the Supreme Court having declared a difference in values sufficient evidence of fraud to warrant seizure and put the importer upon his proof, this court is of the opinion that a suspicious and persistent difference between the actual and invoice and between invoice and sale weights of a particular importer should bo held equally sufficient *265to move customs officials to appropriate action, which in these cases was to reliquidation of the entries.",
"Common sense and all human probabilities support the wisdom and fairness of these exceptional rules. Fraud never courts publicity. The proofs of its existence usually lie wholly and secretly with the ■particeps criminis. If, therefore, statutes \"intended to prevent fraud” are to “be so construed as to carry out the intention of the legislature in passing them” to “most effectually accomplish these objects” the courts should not surround the performance of these duties by public officials charged therewith under the law with impracticable and ordinarily impossible performances. Such is the justification of the rules stated. Having indicated the conclusion that a “suspicion” of evidence would justify and demand action upon the part of the collector further discussion of the rule and the particular evidence herein will be more appropriately had in the consideration of the weight of this evidence before the Board of General Appraisers, whose decision is more immediately under review. Bearing in mind the law of the case as concluded let us examine the records before us. The court is of the opinion that much confusion has ensued from an inaccurate estimation of the exact import of the decision of the collector. Great stress has been laid upon the collector’s “findings” of fraud and his “decision” as to fraud.",
"Let it be definitely understood at the outset that the collector herein neither made nor attempted to malee either a “finding of fraud” nor a “decision” thét there was fraud. In this case, as in all such, the sole and only legal function of the collector is to decide as to the rate and amount of the accrued duties, and in this case the only thing decided or found by the collector on reliquidation was that the amount of the duties previously liquidated was erroneous, and that a different and greater declared amount of duties was due. That much was decided. That much;<the law empowered him to decide. Beyond that he neither decided nor found nor stated he decided or found anything further. All else herein is referable to the legal requirements imposed upon the collector by the customs regulations of the Treasury Department.",
"The law declares what shall be so transmitted and included in the record before the hoard. Subsection 14 of section 28 of the act of August 5, 1909 (36 Stat. L., 11), provides: “Upon such notice ” (protest) “and payment the collector shall transmit the invoice and all the papers and exhibits connected therewith to the board of nine general appraisers for due assignment and determination * * Pertinent thereto are the regulations, articles 1073 and 1074, supra. Thereupon, the proceedings, supra, were had, eventually bringing all the parties to retrial before the board upon order of this court on *266the importers’ motion to grant an opportunity to offer evidence in rebuttal of the evidence in the record.",
"As the decision was made in 1912, he was governed by the Customs Regulations of 1908. These regulations in part provide: Art. 1073. Transmission to Board of General Appraisers. — Unless the claim set forth in the protest is regarded by the collector, after reviewing his action with regard to the entry, as a valid one, he shall, within 30 days thereafter, transmit the protest, invoice, and all the papers and exhibits connected therewith to the Board of United States General Appraisers, at 641 Washington Street, New York. * * * Art. 1074. Same — Statement of reasons for classification. — The collector, or officer acting as such, in his letter of transmittal shall state the reason which governed him in the assessment of duty and shall forward any special reports received by him and any other information in his possession relevant to the matter. * * * Whether we consider the report of the special deputy or the collector all said in each is no more than a recital of the “reasons” actuating the reliquidation as to the amount of additional duties as required by the regulations. What is decided or “declared” as therein stated relates solely to the proper amount of duties upon protest and 'payment of the additional duties.",
"In obedience to the law and regulations, the collector transmitted all the legally required papers to the Board of General Appraisers. The material features (in suit 1464) shown by that record were: (1) The decision of the collector as to the amount of duties properly ■due, estimated, and assessed upon the imported merchandise. This amount was determined to be 11,037.31 more than and additional to the amount previously assessed. (2) The evidence negativing the absence of fraud which prompted reliquidation by the collector. This consisted in part of an amended weigher’s return vacating the previous weigher’s report and returning the stated true weights. The evidence further consisted of ‘ ‘invoices” and “accounts” including and in addition to the foregoing gathered by the collector and by him certified to the board under the powers conferred upon him by section 16 of the customs administrative law (26 Stat.",
"L., 131), and articles 1073 and 1074 of the Customs Regulations of 1908, then in force. These “invoices” and “accounts” when compared show that “these amended returns and the reliqui-dntion thereon relate only to garlic and chestnuts, while some of the entries, 14 in number, cover in addition other merchandise. Upon these corrected weigher’s returns are written statements to the effect that the greater part of the reliquidated merchandise had been traced from the importers to various persons who had weighed the same and kept a record of such weights, with which the weights shown in the corrected returns substantially correspond; that in some instances the merchandise had been paid for upon the basis of such weights; and that in at least one case the importers had billed the goods at 46,253 pounds, which was some 3,500 pounds greater than the weight *267thereof as originally returned by the weigher.",
"We have examined some of the files relating to all these 14 entries, and therefrom it appears that the corrected returns increase the weights above those originally returned in amounts varying from 1,000 to 16,000 pounds in each of such entries.” In addition to the foregoing the record before the hoard contained the collector’s reported “reason which governed him in the assessment of-duty,”'to wit: That “evidence was produced to show that the returns of the United States weighers were false and fraudulent, hence ⅜ * * reliquidations made on the true weights,” accompanied by the “special reports received by him” from the weigher to the same effect, all as required by article 1074 of the Customs Regulations of 1908 to be transmitted by the collector to.the Board of General Appraisers.",
"(3) The protest among other things directed (1) “against the payment of the said increase of duty,” (2) alleged “that the said reliqui-dations are inaccurate and are based upon unreliable figures and data, and that the reliquidations, as originally made upon the above-named entries” were final and conclusive, (3) “that the importers deny that there was any fraud connected therewith.” At the second hearing before the board upon the foregoing record, the case having been ordered for new trial on importers’ motion to introduce evidence, the importers’ counsel announced — • I had. intended to go into the testimony and oSer evidence and proof of the weights, etc. I have now decided not to do that and am simply going to make offers on the record, then make some objections on the record, and submit on that. He then offered three indictments and records of acquittal in the case of United States v. Joseph, Vitelli, this being a proceeding between the United States and F. Vitelli efe Son.",
"The board on objection of the Government excluded this evidence. Counsel for the importers then made the objections, as hereinbefore set out, principally in effect urging that the burden of proof was upon the Government to prove fraud; and that the weigher’s returns upon which reliquidation was had were not made by the collector or any of his deputies. Both sides rested. The judgment was for the Government. Was the board justified in excluding the certified copies of the indictments and records of acquittal offered as making a case of res adjudicaba? The first and elemental requirement of that doctrine is, “there must be identity, not only of the parties, in the two actions, but also as to the character, capacity or quality in which they are litigants.” United States v. California & Oregon Land Co. (192 U. S., 355); Washington, Alexandria, & Georgetown Steam-Packet Co. v. Sickles et al.",
"(24 How., 65 U. S., 333); Gaines v. Hennen (24 How., 65 U. S., 553); Reynolds v. Stockton (140 U. S., 254); Werlein v. New Orleans (177 U. S., 390). *268There was no such mutuality of character or capacity. The protestants were F. Vitelli & Son v. United States. The records offered were in the case of United States v. Joseph Vitelli. Even were it competent, no proof of their identity was offered or suggested. Upon principle mutuality of causes of action may well be questioned where, as here, the Government in the criminal case was required to prove its case beyond a reasonable doubt, while in the civil proceeding it would prevail upon proof by a preponderance of the testimony. Were these requirements present, however, that such a judgment was res adjudicata may well be doubted. Those acquittals at most no more than established the absence of fraud on the part of the importers.",
"Whatever may be the powers of the collector in obviously exceptional cases of fraud, they are nowhere here limited to cases of fraud upon the part of the importers alone, and, for want of that limitation, extend to all cases of the absence of fraud in the particular case whether by the importers or others, whereby the Government is deprived of its just revenues. The statute is not one of criminal or punitive limitation but one upon the powers of the Government to collect revenues fraudulently withheld by whomsoever perpetrated. So it has uniformly been regarded by the courts.",
"“There is no allegation that there was any fraud in the case.” Beard v. Porter (124 U. S., 437, 442). The fraud in question is that mentioned in section 21 of the act of June 22, 1874 (18 Stat. L., 186). The language there employed concludes the question. It is— After the expiration of one year from the time of entry, in the absence of fraud and in the absence of protest by the owner, importer, agent, or consignee. Repetition of the words “in the absence of ” can only be justified and given effect by a congressional purpose to separate the two provisions and their respective modifications.",
"The only useful purpose in that particular was to confine all the modifications (by the owner, importer, agent, or consignee) to the latter and withhold them from the former predication. The confinement of the protest to that of an “owner, importer, agent, or consignee,” without so limiting “fraud” indicates a congressional purpose not to so limit “fraud.” Stephens v. Cherokee Nation (174 U. S., 445). Section 9 of the customs administrative act declares forfeiture of goods for acts of the owner, consignee, and “other persons.” The Supreme Court has held a weigher one of such persons. United States v. Mescall (215 U. S., 26). That in certain cases “good faith and innocence constitute no defense” and that “the absence of any fraudulent intent by the consignee, the owner, or the agent” in certain actions to recover additional duties was held and the authorities reviewed by the Circuit Court of Appeals for the Eighth Circuit in United States v. Bishop (125 Fed., 181).",
"*269The rule of decision in United States v. Stowell (133 U. S., 1, 12) that statutes aimed at the prevention of frauds against the revenues will not be construed strictly in favor of the defendants, but to carry out the intent of the legislature was obviously followed in the case of United States v. Mescall (215 U. S., 26), where the rule of ejusdem ■generis was rejected and the patent intent of Congress followed. The unquestionable intent of Congress by this section (21) was to enable the collector to recover the just revenues whenever and by whomsoever defrauded of them. The statute in language is not confined to frauds by weighers or exporters or any particular person.",
"That language is expressly avoided by the context. If we are to follow the rule and construe the act so as to enable the Government to most effectually recover the revenues of which it is defrauded we must grant that relief regardless of who commits the fraud, for it is that construction which most effectually observes the congressional purpose. The indictments and records of acquittal were properly excluded by the board. It is argued, however, that the weigher’s original return is final and conclusive upon and can not be varied by the collector, wherefore these reliquidations are void. Appellants rely upon Marriott v. Brune et al. (9 How., 50 U. S., 619, 634) and Earnshaw v. Cadwalader (145 U. S., 247, 259) in support of this claim.",
"Nevertheless, those cases perfectly harmonize with a long line of decisions of the Supreme Court typified by Belcher et al. v. Linn (24 How., 65 U. S., 508, 522), wherein it is held that even in cases of officers invested by law with the exercise of powers involving judgment and discretion, such as appraisers, \"power in the officer and fraud in the party” is always open to challenge as effecting finality of their actions. Announcement of the principle seems but the statement of a trite legal maxim. Intimately associated at this point of discussion are the suggested restraints to reliquidation offered by the previous liquidation, the appraisement, and the weigher’s original return. For reasons hereinafter indicated there is no question of the appraisement or its validity in this case, and the references and authorities so relating are used by way of illustrating the principle herein adopted.",
"The power of the collector to reliquidate we have already considered. The theory of the manner of its effect upon the original liquidation in the presence of that power becomes of less importance. Whether upon the principle that a liquidation induced by fraud is a nullity, absolutely void, and, therefore, that the reliquidation is such in name only, but not such in law or fact, being the only valid liquidation in the case; or, upon the principle that the reliquidation is an abandonment of the original, the legal right so to do finds ample and unchallenged support in the authorities. *270Even in cases of appraisement, which are and ever were by statute declared final as against the Government as well as the importers, the Supreme Court in cases where ah appraisement was induced by fraud, has affirmed the power of the collector to treat it as a nullity and order a new appraisement.",
"In Iasigi el al. v. Collector (1 Wall., 68 U. S., 375, 383), the court said: It is true, that the appraisal and ascertainment of the dutiable value of the goods are made final and conclusive both upon the importer and the Government. But the question still remains, what appraisement or ascertainment of the value is to be regarded as final? It is admitted, if the appraisal was infected with fraud or imposition, it could not be, and the collector would not only be justified, but it would be his duty to order reappraisement, even under the circumstances in which the present one was made. The interests of the Government, as well as a proper regard for the rights of the honest importer, require it. And it seems to us but reasonable, if, from neglect or want of proper evidence or information on the part of the appraisers, the appraisal be under the proper dutiable value, this power of the collector should be permitted to correct the error. It is true, the exercise of it is usually, and doubtless with few exceptions, previous to the permit to deliver the goods; and must be so, generally, in order to be effective.",
"But the act of Congress conferring the power on the collector fixes no limit to the period within which it may be exercised, and we think a reasonable discretion should be allowed him. In Robertson v. Downing (127 U. S., 607, 613), affirming the power of the collector to reliquidate, the court observed: The previous liquidation * * * was necessarily abandoned by the corrections subsequently made. In Louisville Pillow Co. v. United States (144 Fed., 386), the Circuit Court of Appeals for the Sixth Circuit thus declared the legal status: As we read the statutes, the reliquidation has all the validity of the original liquidation. When made, it becomes the liquidation in lieu of the original, and must be treated as such under section H. As said in Robertson v. Downing (127 U. S., 607, 8 Sup. Ct., 1328, 32 L.",
"Ed., 269), where the duties were first liquidated on May 5,1882, and reliqui-dated on May 24,1882, and the protest was not filed until two days after the reliquidation (p. 613 of 127 U. S. and p. 1331 of 8 Sup. Ct., 32 L. Ed., 269): “The duties were not finally liquidated until the 24th of May, 1882. The time to protest did not begin to run until then. The previous liquidation on the 5th of May was necessarily abandoned by the correction subsequently made.” Followed in Sgobel & Day v. Robertson (C. C., 126 Fed., 577). In the recent case of United States v. Whitridge (197 U. S., 135, 25 Sup. Ct., 406, 49 L. Ed., 696), in which was involved the rupee price of imported goods, the collector first liquidated, then reliquidated upon the protest of the importers, and again reliqui-dated under direction of the Secretary of the Treasury. After the second reliquidation the importers protested, and the matter was submitted to the Board of General Appraisers, whence it ultimately reached the Supreme Court.",
"To the same effect see United States v. McDowell (21 Fed., 562); United States v. Dickson (C. C. A., 139 Fed., 251); Sgobel & Day (126 Fed., 577); In re Strauss, Sachs & Co., G. A. 2743 (T. D. 15309); In re Hartmann & Darling, G. A. 3610 (T. D. 17436); In re Ford, *271G. A. 3167 (T. D. 16338); In re Comey & Johnson, G. A. 3842 (T. D. 17967); In re Stone & Co., G. A.",
"5406 (T. D. 24623). That by reason of the presence of fraud herein the collector was not hound either by the weigher’s return or the previous liquidations seems amply supported upon principle and authority. Regardless of the validity of the weigher’s amended return as such there would seem to be no question of his power to declare void as he herein did the previous returns. Section 249, Revised Statutes, provides “the Secretary of the Treasury shall direct the superintendence of the collection of the duties on imports and tonnage, as Tie shall judge lest.” Section 251, Revised Statutes, empowers him to make regulations having the force of law (cases supra).",
"By article 1484 of the Customs Regulations of 1908 the weigher is empowered to amend his returns of weights. Whatever may be said of the manner of that amendment as otherwise required by the regulations, the power to amend implies a power to vacate the previous return, which was herein expressly done. That the collector has power so to treat an original liquidation we have already considered. That the existence of fraud rendered both the weigher’s return and original liquidation void is well settled upon principle. In an opinion of much learning by Mr. Justice Story, sitting as Circuit Justice in Bottomley v. United States (1 Story, 135; 3 Fed. Cas., 968, No. 1, 688), where a permit of lading was obtained by false and fraudulent invoices and bribery of a deputy collector, it is concluded: Here, no true entry, or honest estimate of duties, has ever been made; the duties justly due have never been paid, or secured to be paid.",
"In each case, the transaction is equally a gross and palpable fraud; and the more or less of aggravation in the circumstances can not change the legal result. It mates no difference in the concoction of the fraud, in legal intendment, whether it defrauds the Government of the whole, or of the half, or of the quarter of the legitimate duties. It is still tainted and putrescent throughout.",
"It is in known violation of law; and no act, done in Tcnovm violation of law, can be admitted to have any legal validity. It would be a contradiction in terms. Upon the whole, I am entirely satisfied, upon full deliberation, that the permit in the present case, if obtained by fraud and collusion between the claimant and the deputy collector (as the jiuy have found it was), was utterly void, and a mere nullity, and never had any legal existence as a permit. The cases of Cutts v. United States (case No. 3, 522), United States v. Lyman (Id.",
"15647), and Johnson v. United States (Id. 7419), involved many considerations directly applicable to the present point; and I see no reason to be dissatisfied with those judgments. Iu United States v. Nine Trunks (27 Fed. Cas., 161, No. 15885), the principle was laid down by Mr. Justice Strong, Circuit Justice, that'an “illegal importation worked a forfeiture.” On appeal to the Circuit Court the decision was affirmed. United States v. Nine Trunks (27 Fed. Cas., 164, No. 15886). To the same effect the Sarah B. Harris (21 Fed.",
"Cas., 441, No. 12344). *272Congress by section 9 of tbe customs administrative law (26 Stat. L., 131), in a paragraph speaking of “fraudulent or false invoices, entries and papers,” has declared an importation so made an illegal importation. It the acts in pari materia are to be interpreted as therein provided, these importations, were illegally introduced by “false” invoices and entries, and if such is deemed sufficient to warrant reliquidation in another instance, why not here ? Assuming that the collector has the power to reliquidate after the one year, and that a well-founded suspicion of fraud will support such action, as we have shown, this case is precisely within the principle of decision adopted by the Supreme Court in United States v. Tappan et al. (11 Wheat., 24 U. S., 420, 426), wherein the court said: In explanation, however, of this answer, it is proper to observe that the eleventh section of the act, to which the questions are pointed, is intended to clothe the collector with enlarged powers to guard against fraudulent invoices. Whenever, in his opinion, there shall be just grounds to suspect that the invoice does not truly state the actual cost of the goods, he may direct an appraisement.",
"How, or by what means, that opinion is made up, no one has authority to inquire, or a right to control. Ordinarily it will be founded from his own knowledge or the information he gets from others of the market price of the goods, and if that should differ widely from the invoice prices, it will afford grounds for suspecting the invoice to be fraudulent. Por, as a general course of 1 usiness, it is 1o be presumed that goods are purchased at the common market price. The authority of the collector to direct an appraisement is regulated, however, entirely by his own suspicion that the invoice is untrue, and does not state the actual cost of the goods as required by law. Whether this suspicion be well founded or not, it is not matter of inquiry.",
"So far as respects the authority of the collector to direct the appraisement, he is governed altogether by his own opinion of the grounds of suspicion. Whether these suspicions were well or ill founded, and the consequences resulting therefrom, will depend upon after inquiry before the appraisers, and their decision thereupon. But the collector can not be called upon to avow or show the grounds upon which his suspicion rests. The law has vested him with an uncontrolled discretion on this subject to be regulated and governed by his own opinion, of the suiliciency of the grounds on which he suspects the invoice to be below the true value or actual cost of the goods.",
"While it is true that the weigher’s return is presumably correct under the presumption attending official action, and can not be varied by the collector (Earnshaw v. Cadwalader, 145 U. S., 247, 259), except when the weigher has failed to follow the law or in cases of fraud (Belcher v. Linn, 24 How., 65 U. S., 508, 522), Congress has not expressly invested it with the finality of appraisement which, by section 13 of the customs administrative act, in the absence of protest, is made final and conclusive against all parties, including the collector.",
"No such finality is given by Congress to weighers’ returns. Revised Statutes United States, 2890. The fact that Congress deemed it necessary by sections 13 and 14 of the customs administrative act (26 Stat. L., 131) and section 21 of the act of June 22, 1874 (18 Stat. L., 186), to so expressly legislate as to finality of the appraiser’s and *273collector’s acts, argues that it did not so intend to make final the weigher’s report. The most that can be said against these amended returns of the weigher is, that the time and manner of making such not having been pursued as prescribed by the Revised Status ..-ec.",
"2890) and Customs Regulations of 1908 (arts. 1036, 1440, and 1478-1512), they were functus officio as such. United States v. Leng (18 Fed., 15). We think the law otherwise. But the official weigher yet remained an officer of the customs and in making these special reports did so as such a public officer under the order and direction of the collector (art. 1440, swpra) at the port of New York. Their evidentiary value as such \"special reports” will later be discussed. The likening the powers to those of appraisers in the briefs of appellants is unfortunate, for on the precise point the Supreme Court has held that they could base their judgment upon \"computations and reports” made by witnesses. Origet v. Hedden (155 U. S., 228, 236). That the collector is not left without power in such a status, and that the orderly collection of the vast import customs revenues of the country has not been made dependent by Congress upon the fidelity, integrity, and capacity of every subordinate official of the customs service, is here well exemplified.",
"Congress has not been so impoverished of wisdom that after more than a century of experience and legislation in its customs revenue administration it has upon the first appearance of infidelity or inaccuracy of any subordinate ousted the collector of all power to collect the just dues. Appellants thus voice their claim: Each, of the entries and reliquidations which are transmitted to this court as part of the record contains a statement reading as follows: “The correct weight as returned herein is ascertained as follows:” Then comes a statement that “Core & Herbert,” or “Visconti,” or “Bernard,” or “Gastenheimer, of Nash & Kendall,” or some-other person, naming him, weighed a certain number of baskets at a certain weight. None of the persons so named are United States weighers, or authorized or employed to act as such.",
"* * * There is no doubt that if the United States weigher in this case had simply made his return of weights, without stating on the record how he arrived at them, it would be presumed that he acted according to law, in the absence of evidence to the contrary; but such presumption is overcome where the return itself contains the evidence, showing that the weights were not ascertained in the manner prescribed by statute.",
"It is significant that, commencing with the customs administrative act of 1890 (26 Stat. L., 131), section 13, long after the enactment of section 2890, Revised Statutes, supra, Congress immediately after legislating finality as to the appraiser’s report, provided as to the remaining ascertainments necessary to liquidation, “the collector or the person acting as such shall ascertain, fix, and liquidate the rate and amount of the duties,” etc. Certainly in case no weigher was *274provided by law, or where be could not perform bis duties because of tbe absence of tbe goods or for other cause, this power is broad enough to authorize tbe collector to ascertain tbe weight in any satisfactory manner. This view is confirmed by section 16 of tbe customs administrative act (26 Stat. L., 131), giving collectors tbe power unlimited in time to cite tbe “owner, importer, agent, consignee, or other person,” examine him under oath and “ require tbe production of any letters, accounts, or invoices relating to said merchandise,” “may require such testimony to be reduced to writing, and when so taken it shall be filed in tbe office of tbe collector and preserved for use or reference until tbe final decision of the collector or said hoard of appraisers * * * respecting tbe valuation or classification of said merchandise.” In a decision of great merit by Judge Hand, Southern District of New York, it was held that tbe provision empowered tbe collector to “order an examination in aid of a possible re-liquidation.” United States v. Calhoun (184 Fed., 499, 506).",
"That case was affirmed on appeal, United States v. Calhoun (C. C. A., 215 Fed., 709). Moreover, tbe statute makes and declares tbe testimony and accounts so taken by tbe collector legal evidence before the collector and tbe board, their weight to be determined, of course, by tbe reviewing tribunal. With this broad power granted tbe collector to examine, fix, and liquidate tbe amount of tbe duties, coupled with tbe absence of any provision making tbe weigher’s return final, and tbe broad power of section 16 in tbe collector to examine and consider “accounts” of all persons, we entertain no doubt that at least in cases where tbe weigher did not follow tbe law or was guilty of fraud tbe collector could, as be did here, direct tbe weigher or proceed himself to “ascertain” from tbe ’“accounts” of merchants to whom tbe merchandise was sold its true weights, and accordingly liquidate.",
"Whether we consider this “evidence” of weights, spoken of by appellants, introduced in tbe record as an amended weigher’s return, or as “accounts and invoices” taken by tbe collector under section 16 of tbe customs administrative act (26 Stat. L., 131), or as “special reports received by him and any other information in bis possession relevant to tbe matter,” transmitted to tbe board under article 1074, Customs Regulations of 1908, when before tbe collector it was evidence “in aid of reliquidation” and when so transmitted became a part of tbe record and evidence duly before tbe board. ' There was no other proof offered, made, or taken before tbe board and tbe sole evidence in tbe case was that transmitted by the collector.",
"Did tbe board err in its decision ? We think not. Viewing tbe record as supporting tbe collector’s action, bis reliqui-dation was within bis legal powers (cases supra) and the court is of *275the opinion that there was sufficient, evidence before him to warrant and require such action; Whether the decision of the collector be deemed such an official act as is attended by a presumption of verity and regularity, or that of an inferior tribunal or administrative officer acting in a quasi-judicial capacity whose jurisdiction will not be presumed, the \"fraud” required by the act being a jurisdictional requisite, due degree of which must be shown by the record, this record satisfied both requirements. (1) That the decision of collectors of customs as to the rate or amount of' duty are presumed correct and regular is well established and not open to serious question. The Supreme Court in Arthur v. Unkart (96 U. S., 118, 121, 122) precisely adjudged this question, declaring: When an appeal is taken from his decision, the decision of the collector ceases to be conclusive; and the same is true of the decision of the Secretary of the Treasury. These officers are, however, selected by law for the express purpose of deciding these questions; they are appointed and required to pronounce a judgment in each case; and the conduct, management, and operation of the revenue system seem to require that their decisions should carry with them the presumption of correctness. This rule is not only wise and prudent, but is in accordance with the general principle of law that an officer acting in the discharge of his duty upon the subject over which jurisdiction is given to him is presqmed to have acted rightly. This court so held in United States v. Vitelli & Son (5 Ct. Cust.",
"Appls., 151; T. D. 34194); United States v. Frank & Lambert (2 Ct. Cust. Appls., 239; T. D. 31973); Wolff v. United States (1 Ct. Cust. Appls., 181; T. D. 31217); United States v. Bradshaw & Co: (5 Ct. Cust. Appls., 121; T. D. 34168): See also to the same effect United States v. Arredondo (6 Pet., 691, 729); Earnshaw v: United States (146 U. S., 60, 67); Erhardt v. Schroeder (155 U. S., 124); Muser v. Magone (155 U. S., 240, 251).",
"Indeed, it seems well established that not only‘does this-presumption attend the decision of the collector but, when it is essential to act, that a certain state of facts should exist, there is a presumption of the existence of such facts. United States v. Loeb et al. (99 Fed., 723, 732); United States v. Rosenwald et al. (C. C. A., 67 Fed., 323, 328); United States v. Schering et al. (C. C. A., 123 Fed., 65, 67). Assuming, however, that the collector's decision is not so attended with this presumption, the applicable rule is concisely stated in Galpin v. Page (18 Wall., 85 U. S., 350): As to them there is no presumption of law in favor of their jurisdiction; that must affirmatively appear by sufficient evidence or proper averment in the record, or their judgments will be deemed void on their face. Equally concise is Sabariego v. Maverick (124 U. S., 261): If we had before us an actual and formal decree of a competent tribunal adjudging him guilty of the offense and confiscating his property in punishment therefor, that *276of itself would not be sufficient to establish its own validity.",
"We should still requiie record evidence of the existence of those facts which brought him and his property within the jurisdiction of the tribunal pronouncing such a decree. That the requirement is satisfied by evidence in the record of the requisite fact, be it jurisdictional or evidentiary, is well .settled. United States v. Jonas (19 Wall., 86 U. S., 598); United States v. Ross (92 U. S., 281); United States v. Carr (132 U. S., 644). This record as presented to and acted upon hy the collector contained such evidence in the fullness required hy the statute. By its least import it contains evidence of a persistent variance between the invoice and entered and the actual weights and between the former and the weights at which they were sold and settled for. If this court observes the general principle declared by the Supreme Court in United States v. Stowell (133 U. S., 1, 12) that such statutes “shall be so construed as will most effectually prevent fraud” and the application of that rule by that court in Locke v. United States (7 Cranch, 11 U. S., 339), wherein a “suspicion” of fraud, and in Clifton v. United States (4 How., 45 U. S., 242), wherein a variance in values wer.e held sufficient evidence of fraud to warrant action and put the importer upon his proofs in actions in the United States courts to forfeit the importer’s goods (in which courts the general rule putting the burden of proof'by a preponderance of the evidence upon the Government otherwise obtains), how can we refuse to hold a suspiciously persistent variance in weights of these importers’ goods, coupled with the fact of their billing them on sale at much greater weights, sufficient evidence of fraud to warrant and require the collector to reassess the duties, whereupon, as we shall show, the importer, if the goods are in customs custody, receives notice and must pay the increased duties in order to protest and try his case before the board, with appeal to the courts.",
"But if the goods are not in custody, upon receipt of the required notice he can either pay the increased duties, protest, and litigate as before, or refuse to pay and defend action in the United States District Court. Be it noticed in passing that if in the United States District Court a well-founded “suspicion” of fraud will, under the statutes, support action and shift the burden of disproving fraud to the importer, why would not that same “suspicion” of fraud warrant the therein reviewed action of the collector founding the action 1 Certainly no one will contend that less evidence is required to support the review of a deoision uncontradicted than is necessary to support the decision itself! Wherefore, the court is of the opinion that the evidence before the collector was sufficient in due observance of his official duty to require action. What, may be asked, would any merchant do upon discovery that goods delivered to him were thus persistently materially under-weighed as paid for ? Would he be justified in suspecting fraud ? *277Upon protest and appeal to and tlie case being called by the board, all parties being present, determination of the issues proceeded.",
"All evidence offered (the indictments and records of acquittal) were excluded, and the case submitted upon the record before the collector, as detailed. What then was the legal status of the case as submitted to the Board of General Appraisers? (a) The record showed a reliquidation by a collector oj customs as to the amount oj duties due wpon imported merchandise. The presumption of correctness attended that decision of the collector (cases supra). If any presumption of innocence aided the importers, that was neutralized by the former presumption and the parties stood before the board unaided by presumptions, the burden of proving the allegations of the protest resting upon the importers.",
"(b) The record contained evidence that negatived the absence ojjraud. The evidence of persistent variances in and sales at greater weights, being evidence of fraud, destroyed any presumption of innocence attending the importers. As said by the Supreme Court in Galpin v. Page (18 Wall., 85 U. S., 350, 366): Presumptions are only indulged to supply the absence of evidence or averments respecting the facts presumed. They have no place for consideration when the evidence is disclosed ¡or the averment is made. When, therefore, the record states the evidence or malees an averment with reference to a jurisdictional fact, it will be understood to speak the truth on that point, and it will not be presumed that there was other or different evidence respecting the fact, or that the fact was otherwise than as averred.",
"In the presence of evidence that there was fraud no presumption that there was not such and that the importers were innocent will be indulged. On the contrary, this evidence being undisputed by other evidence or explained by the importer it was sufficient to establish a prima jade case for the Government. Locke v. United States (7 Cranch, 11 U. S., 339); Clifton v. United States (4 How., 45 U. S., 242). Moreover, the importers being present, not only must we presume that they knew the true weights upon which they purchased and sold the goods, but having declared in their protest that the- re-liquidated weights were “inaccurate and are based upon unreliable figures,” their failure to so prove in explanation of the persistent variances and sales shown by the record the board was bound to take into consideration against them.",
"Locke v. United States (7 Cranch, 11 U. S., 339); Clifton v. United States (4 How., 45 U. S., 242), and cases supra. The evidence in the case, irrespective oj any presumptions, put the burden of proof upon the importers, and having failed to explain the variances the board was bound to render judgment for the Government. Locke v. United States (7 Cranch, 11 U. S., 339); Wood v. United States (16 Pet., 41 U. S., 342); The Luminary (8 Wheat., 21 U. S., 407); Clifton v. United States (4 How., 45 U. S., 242).",
"*278• ;'The bciard Rad' a' right' and lid doubt did' take 'into consideration fehat these importers bad’ come tó this1 court askin'g for a modification of a previous decision7and1 for- an order permitting’ them to offer proof bélow; that in their protest; eliminating1 the question of fraud, they alleged the reliquidatrdg weights erroneous, that in the Ordinary course of business they knew and ■ could prove the true weights, thereby concluding the cause in their favor, yet they failed so to do. {Oases sufra.) ; 'The two matters appearing from the record as transmitted by the collector, (1) that a collector-of citstoms had reliquidated an entry dfediding thetamouht'of'-'ddty duey ahd'\"(2) tlíé reliquidation being moré than 'Oiíé'yé’ár ’after' entry;-thb exiátéhceWthié reéofd of evidfenCe sufficient to establish qófób'áblé'cafisé' {Orv ,-wéll-fó’úhded : Suspicion ‘ in the mind of'the collector)' that fraud was not'absénfífóm the case, the Board'Of' Gériéfál-Appraisers had ’jurisdiction- to hear and determine'the ífesúés,’ both as tothe amount Of the duties and;tbe existence of fraud in' the 'casé, and'the évidéñée Of \"fraud ih’thé-récord :was' sufficient to shift the burden of proof upon the importers to explain or contradict-.that:evidence-. ■■ : -- , . v '■ This we regard the legal status of the case upon- judgment by the board, whether or not ', 'in\\súcK a case, the long7 and' well -established1 rule in customs and.",
"all cases-here obtained'that the burden Of. proof is upon'the protestant.,to prqye the materia-.allegations of his protest, aptly stated by the Supreme Court in Arthur v. Unkart (96 U. S., 118, 122):. • i 'Bótfc.-the ⅛⅛⅞ aindicollectoE -have-power\" to abt iti the hrstinstanceupon the question ip dispute, ⅝⅜⅜⅛¾⅜¾⅛⅛⅜⅛⅜⅞‡⅛⅞ action is invipfation of law must maleé, the, woof-to [show it, ' -’,m -i mu-vón ' m'd.rhi-;u . bu; '■ United States v. Arredondo, (6 Pet., 31 U. S., 691, 729); Louisiana v. McAdoo (234 U. S., 627); Arnson v. Murphy (115 U. S., 579). And the rule has. been held .to apply to .allegations- or requirements of ® complaint-for fraud!",
"Doll v. Evans (7 Fed. Cas., 855, No. 3969); Murray’s Lessee et al., v. Hoboken Land and Improvement Co. (18 How., 59 U. S., 272); Public: Clearing House v. Coyne (194 U. S., 497); Butterfield v. Stranahan (192 U. S., 470). There: is nothing! conflicting with the conelusions herein in-United States v. Federal Sugar Refining Co. (221.Red., 1016). In that case the complaint counted .upon the finodity of a finding or . decision of the collector that-there-was fraud .in the , case. The. statute, as we have, seen, nowhere makes ;such a, finding- final or conclusiye. It follows- that , such,-.if made, could not. become .res adjudícala.",
"as to fraud.. .. The whole.view of Judge Coxe is in entire harmony With the views herein expressed. This .is shown,wherein he concludes: if the -allegations stated in- paragraph, ninth’-of ’-the complaint were stated not as a< findings and decisions,” but as facts, the defendant, by denying them, would have its day in court and an opportunity to prove that there was no fraud. *279It follows sucia a complaint would Rave been deemed good. For tbe same reason wbat is decided in United States v. Sherman & Sons Co. (237 U. S., 146) in no way conflicts with what is here decided. In that case there were two complaints. One made no allegation of either facts or a finding claimed conclusive by the collector and one made the latter allegation. The court held, with Judge Coxe, that both complaints were bad, and that each should have alleged fraud as a fact in the case. While those cases arose on demurrer to the sufficiency of complaints unattended by any presumptions of correctness this case arose on appeal from a decision not only so attended but wherein the judgment roll shows all the facts and evidence before the collector which have been held necessary to a good complaint before the courts.",
"Much has been said about possible arbitrary action of the collector, want of notice to the importers, and an opportunity to disprove the fraud supporting the reliquidation where the procedure of the customs administrative act is pursued. Courts should give little heed to arguments based upon the assumption of malfeasance upon the part of sworn public officers. If courts observe the familiar rules of construction such speculation will find no legal justification in presence of the presumption of regularity of performance of public duties by such officers. So, reasoning that the customs administrative procedure affords no notice of reliquidation or opportunity to disprove fraud prompting such, shows a signal oversight of the law.",
"Our customs administrative laws are in no respect vulnerable to such charges of ipse dixit action or the deprivation of property without notice or opportunity of defense. Congress, in the early history of the country, realized that such a system could better, probably only, be made complete in detail, effectiveness, and fairness by confiding to the experience of the Treasury Department the power to supplement these laws by detail regulations with the force of laws. This power was granted by act of February 10, 1820 (3 Stat. L., 543), and as revised finally incorporated as section 251, Revised Statutes. These regulations, when not contrary to the statutes and reasonable, have the force of law. United States v. Eaton (144 U. S., 677); Gratiot v. United States (4 How., 45 U. S., 80); Ex parte Reed (100 U. S., 13); United States,v.",
"Symonds (120 U. S., 46). When there has been a long acquiescence in such a regulation its construction of a statute will not be disregarded without the most cogent, persuasive reason. Robertson v. Downing (127 U. S., 607); Brown v. United States (113 U. S., 568, 571); United States v. Philbrick (120 U. S., 52, 59). *280Contrary to the claimed want of express notice and opportunity to defend given importers by. collectors of customs of reliquidation such has been required by the customs regulations for the last quarter of a century. The Supreme Court, in Westray v. United States (18 Wall., 85 U. S., 322), held importers not entitled to such notice.",
"By circular of May 10, 1867, the Treasury Department required collectors to give such notice by posting in the customhouse. That rule was made article 359 of the Customs Regulations of 1884. The Customs Regulations of 1892 (art. 888) and - of 1899 (art. 1477) required “a daily record must also be kept by both the collector and the naval officer of all additional duties found upon liquidation, and notice thereof promptly sent to the parties in interest.” The Customs Regulations of 1908 (art. 1037) extended the requirement to “all duties, additional and regular.” That such notice was given in these cases, see record, page 6. The same appears from the opinions of the courts in United States v. Sherman & Sons Co. (237 U. S., 146, at p. 147), and in United States v. Federal Sugar Refining Co. (211 Fed., 1016, at p. 1017).",
"The claim, therefore, that reliquidation by a collector more than one year after entry for fraud under the customs administrative procedure leaves the importer without opportunity to defend against or disprove fraud is without foundation This record completely disproves that claim. The principles herein expressed demonstrate the complete harmony between what is decided in the cases discussed. Some pertinent comment may prevent misconception. It should be borne in mind that in these cases, upon notice of reliquidation, the importers paid the additional duties (record, p. 6) and protested, thereby bringing themselves within the jurisdiction of the Board of General Appraisers and this court, whereas in both the cases of Sherman & Sons Co. and the Federal Sugar Refining Co. upon such notice the importers refused to pay the additional duties assessed upon reliquidation.",
"This fact alone determined the tribunal of future proceedings. Another pertinent difference is that these reliquidations did not affect or change the appraisements made. The appraiser .fixed the unit value of the goods, which the collector followed, the reliquidation being based upon the weights of the merchandise. Herein, then, the line of cases denying the power of the collector to reliquidate upon the ground of finality of the appraisement are not in point. Due observance of this important distinction will avoid confusion. Of such cases are Beard v. Porter (124 U. S., 437); United States v. Calhoun (184 Fed., 499; affirmed C. C. A., 215 Fed.",
"Rep., 709); In re Blum Hardware Co., G. A. 7636 (T. D. 34917). The difference in the statutes declaring appraisements final — section 13, customs ad*281ministrative act of 1890, as amended 1909 (36 Stat. L., 11) — expressly concluding all interested \"parties” from that of decision of the collector extending only to \"persons” (sec. 14, ibid.) is well settled. The former includes the collector, the latter does not. United States v. Phelps et al. (17 Blatch., 312; 27 Fed.",
"Cas., 521, No. 16039); United States v. Leng (18 Fed., 15). Whether or not, however, an appraisement moved by fraud possesses such finality or is a nullity is not in this case and not decided. See, however, Isaigi et al. v. Collector (1 Wall., 68 U. S., 375, 383); Hilton et al. v. Merritt (110 U. S., 97, 106); Passavant v. United States (148 U. S., 214, 220); Beard v. Porter (124 U. S., 437, 442); Belcher v. Linn (24 How., 65 U. S., 508, 522). Careful reading of Federal Sugar Refining Co., Sherman & Sons Co., and Vitelli & Son, decided by this court on the first appeal, shows no conflict in what was decided. On the contrary, the latter appeal in all its phases demonstrates the claimed injustice of such procedure without foundation.",
"In the first two- cases it was held that the collector could not make a finding or decision of fraud which under the statute would become res adjudicata. We so held in effect in Vitelli & Son, tho sole point decided being that the presumption of correctness of the decision of the collector and the evidence of fraud in the record each was sufficient to put the burden of proof upon the importer. That holding necessarily denied the conclusiveness of any such finding. It should be particularly noted that it was not a finding oí fraud by the collector that this court held would become res adjudicata under section 21 of the act of June 22, 1874 (18 Stat. L., 186), but the decision of the collector as to the rate and amount of duty. The finding or existence of fraud necessary to move reliquidation after the one year was not held the subject of res adjudicata, but disputable.",
"That is settled by the statute (sec. 14 of the customs administrative act, 26 Stat. L., 131), which makes “the decision of the collector as to the rate and amount of duties, * * * all dutiable costs and charges, and * * * all fees and exactions * * * final and conclusive,” and not his findings or evidence. The very fact that tho statute does not require the collector to make a finding or decision as to fraud argues the requirement 'of such to support action to be of less fraud than would support a finding or decision. The statute, however, does make the collector’s decision as to the amount of duty final in the absence of protest. Unprotested this decision becomes res adjudicata in all proceedings and in all courts.",
"Tho importer may, however, elect remedies. He may protest and contest, if within a year ¿fter entry the amount of duty, if after the year the existence of fraud. The importer may elect tribunals, pay his duties, *282and protest as in this case, or refuse to pay his duties and defend in the District Court. If it duly appears on trial before either tribunal that there was an “absence of fraud” the decision as to the amount of duty is barred by section 21 of the act of June 22, 1874 (18 Stat. L., 186). If it appears that there was not ‘' absence of fraud ’ ’ the decision of the collector as to the amount of duty is not res adjudicata. That the decision of the collector as to the amount of duty duly made as distinguished from his findings becomes res adjudicata is not only clear from the words of the act, but has been repeatedly affirmed- by the courts, and that uniform interpretation has been adopted by Congress by repeated reenactments of the statute.",
"That has been the repeated ruling of the courts for more than 40 years, including the Supreme Court in Westray v. United States (18 Wall., 85 U. S., 322, 329); United States v. Cousinery (7 Ben., 251; 25 Fed. Cas., 677, No. 14878); Watt v. United States (15 Blatch., 29; 29 Fed. Cas., 441, No. 17292); United States v. Phelps et al. (17 Blatch., 312; 27 Fed. Cas., 521, No. 16039); United States v. Campbell (10 Fed., 816, 819); United States v. Cobb et al. (11 Fed., 76); Gandolfi v. United States (74 Fed., 549); United States v. Tiffany & Co. (151 Fed., 473); United States v. Mexican International R. Co. (151 Fed., 545). See also Arnson et al.",
"v. Murphy (115 U. S., 579, 584). Of course, that finality of decision only applies where the goods were entered and appraised and decision duly made — at least prior to the act of October 3, 1913 (38 Stat. L., 114), subsection N of section 3, which extends that finality to decisions of the collector to all'“duties chargeable upon imported merchandise.” Nor does the doctrine conflict with the line of cases wherein suit is brought to collect duties upon goods smuggled or otherwise not entered so as to come within jurisdiction of the collector, such, as in In re Chichester (48 Fed., 281); In re Floyd Bros. & Co., G. A. 6468 (T. D. 27680). There is always open in such cases the right of the collector to seize the goods to await decision of the courts in proceedings to libel the goods, or in an action in personam against the importer unattended by any existing decision of the collector res adjudicata. The finality, therefore, of the collector’s decision is neither anomalous nor in conflict with the adjudicated cases. These respective jurisdictions are supplemental one with the other.",
"• The collector, barring exceptional minor instances, such as unclaimed goods (Revised Statutes, 2965), or seized goods valued at less than $500 (Revised Statutes, 3077), or perishable articles (Revised Statutes, 3080), has no power of executing his decisions. Enforcement thereof rests in his power to prevent landing and delivery until duties are paid or secured (Revised Statutes, 2869), at least prior to the act of October 3,, 1913 (30 Stat. L., 114). When entered and *283the estimated duties paid or secured, jurisdiction of the collector attaches and the procedure prescribed by the customs administrative act becomes exclusive, final, and conclusive as to the “rate and amount” of duties, all “dutiable costs and charges,” and all “fees and exactions.” Nichols v. United States (7 Wall., 74 U. S., 122, 129, 131); Andreae v. Redfield (98 U. S., 225); Arnson et al.",
"v. Murphy (109 U. S., 238); Porter v. Beard (124 U. S., 429); Schoenfeld v. Hendricks (152 U. S., 691). If, however, the importer refused to enter his goods (duties having acci;uedwhen the ship passed into the customs district); or if they wpre struggled; or if he had given bond for payment of duties and it.was necessary to enforce the bond; or if they were seized by the collector under sections 13 and 14 of the act of June 22, 1874 (18 Stat. L., 186), or other laws; in all such cases or in cases of reliquida-tiorl'where this'i&porter does not pay the additional duties decree of % ’cómpgtpht .pó.upt ¡ is necessary to collect the duties. If there had been a valid decision of the collector as to the rate or amount of duties, that in all such cases, and nothing more, is made res adjudicate,. Beyond ,,that ,ih suph .cases all clone or assumed by the collector in making bis decision is' open to contest, subject to the duly attending presumptions. (IhWiewV.of these distinct and defined powers and duties of the respective tribunals, the court upon careful comparison of the records’afid decisions finds no conflict in what was decided in the Federal Suga^ Refilling, Co. case, in Sherman & Sons Co., and the previous and this' .Vitelh &.",
"Son decision by this court. In that and the view that ‘the evidence in'‘the record was sufficient to put the importers herein upon their proofs, the decision of the Board of Genferál Appraisers shbiild 'b'e afhríhécl. t;Ih any event, were this Court to’ regard the decision of the Supreme Court in United States v. Sherman & Sons Co., supra, as applicable tb,¡'this'case/these áppellánth h’aving h^1 protest to the Board of General Appráisers invoked rehef in’ a ’tnhhnal without jurisdiction áre without remiedy: ■ ua ~ ( ■Affirmed:"
]
| https://www.courtlistener.com/api/rest/v3/opinions/6827690/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
No opinion. Order affirmed, with $10 costs and disbursements. | 01-10-2022 | [
"No opinion. Order affirmed, with $10 costs and disbursements."
]
| https://www.courtlistener.com/api/rest/v3/opinions/5510626/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Justice Brennan and Justice Marshall, dissenting. Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant certiorari and vacate the death sentences in these cases. | 11-27-2022 | [
"Justice Brennan and Justice Marshall, dissenting. Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant certiorari and vacate the death sentences in these cases."
]
| https://www.courtlistener.com/api/rest/v3/opinions/9080867/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Exhibit 10.1 ANNALY CAPITAL MANAGEMENT, INC. 2 Section 1.Purpose of the Plan The purpose of the Plan is to aid the Company and its Affiliates in attracting, rewarding, and retaining employees, non-employee directors or other service providers and to motivate such employees, non-employee directors or other Persons who perform services for the Company or an Affiliate to stimulate their efforts toward the Company’s continued success, long-term growth and profitability by providing incentives through the granting of Awards.The Company expects that it will benefit from the added interest which such key employees, non-employee directors or other service providers will have in the welfare of the Company as a result of their proprietary interest in the Company’s success. Section 2.Definitions The following capitalized terms used in the Plan have the respective meanings set forth in this Section: (a)Act: The Securities Exchange Act of 1934, as amended, or any successor thereto. (b)Affiliate: Any entity directly or indirectly controlling, controlled by, or under common control with, the Company or any other entity designated by the Board in which the Company or stockholder of the Company has an interest. (c)Award: An Option, Stock Appreciation Right, Dividend Equivalent Right, or Other Share-Based Award, including Restricted Shares, granted pursuant to the Plan. (d)Beneficial Owner: A “beneficial owner,” as such term is defined in Rule 13d-3 and 13d-5 under the Act (or any successor rule thereto). (e)Board: The Board of Directors of the Company. (f)Change in Control: The occurrence of any of the following events: i.any “person,” including a “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), but excluding the Company, any entity controlling, controlled by or under common control with the Company, any trustee, fiduciary or other person or entity holding securities under any employee benefit plan or trust of the Company or any such entity, and, with respect to any particular Participant, the Participant and any “group” (as such term is used in Section 13(d)(3) of the Exchange Act) of which the Participant is a member), is or becomes the “beneficial owner” (as defined in Rule 13(d)(3) under the Exchange Act), directly or indirectly, of securities of the Company representing 50% or more of either (A) the combined voting power of the Company’s then outstanding securities or (B) the then outstanding Shares (in either such case other than as a result of an acquisition of securities directly from the Company); 1 ii.any consolidation or merger of the Company where the shareholders of the Company, immediately prior to the consolidation or merger, would not, immediately after the consolidation or merger, beneficially own (as such term is defined in Rule 13d-3 under the Exchange Act), directly or indirectly, shares representing in the aggregate 50% or more of the combined voting power of the securities of the corporation issuing cash or securities in the consolidation or merger (or of its ultimate parent corporation, if any) in substantially the same proportions as their ownership of the combined voting power of the securities of the Company immediately preceding such transaction; iii.there shall occur (A) any sale, lease, exchange or other transfer (in one transaction or a series of transactions contemplated or arranged by any party as a single plan) of all or substantially all of the assets of the Company, other than a sale or disposition by the Company of all or substantially all of the Company’s assets to an entity, at least 50% of the combined voting power of the voting securities of which are owned by “persons” (as defined above) in substantially the same proportion as their ownership of the Company immediately prior to such sale or (B) the approval by shareholders of the Company of any plan or proposal for the liquidation or dissolution of the Company; or iv.the members of the Board at the beginning of any consecutive 24-calendar-month period (the “Incumbent Directors”) cease for any reason other than due to death to constitute at least a majority of the members of the Board; provided that any Director whose election, or nomination for election by the Company’s shareholders, was approved or ratified by a vote of at least a majority of the members of the Board then still in office who were members of the Board at the beginning of such 24-calendar-month period (provided such Director is not an individual whose election or nomination was in connection with an actual or threatened proxy contest relating to the election of directors of the Company or as a result of any other actual or threatened solicitation of proxies by or on behalf of any person other than the Board), shall be deemed to be an Incumbent Director. Notwithstanding the foregoing, for any Awards that constitute a nonqualified deferred compensation plan within the meaning of Section 409A(d) of the Code and provide for an accelerated payment in connection with a Change in Control, Change in Control shall have the same meaning as set forth in any regulations, revenue procedure, revenue rulings or other pronouncements issued by the Secretary of the United States Treasury pursuant to Section 409A of the Code, applicable to such plans. (g)Code: The Internal Revenue Code of 1986, as amended, or any successor thereto. (h)Committee: The Compensation Committee of the Board or such other committee as may be appointed by the Board in accordance with Section 4 of the Plan.The Board may exercise any power or right of the Committee; provided, that, the Board may not grant any Award that is intended to be performance-based compensation under Section 162(m) of the Code. (i)Company: Annaly Capital Management, Inc., a Maryland corporation. 2 (j)Dividend Equivalent Right: a right awarded under Section 8 of the Plan to receive (or have credited) the equivalent value of dividends paid on common stock of the Company. (k)Effective Date: The date the shareholders of the Company approve the Plan. (l)Fair Market Value: On a given date, (i) if there should be a public market for the Shares on such date, the closing price of the Shares as reported on such date on the Composite Tape of the principal national securities exchange on which such Shares are listed or admitted to trading, or, if the Shares are not listed or admitted on any national securities exchange, the closing price on such date as quoted on the National Association of Securities Dealers Automated Quotation System (or such market in which such prices are regularly quoted) (the “NASDAQ”), or, if no sale of Shares shall have been reported on the Composite Tape of any national securities exchange or quoted on the NASDAQ on such date, then the immediately preceding date on which sales of the Shares have been so reported or quoted shall be used; and (ii) if there should not be a public market for the Shares on such date, the Fair Market Value shall be the value established by the Committee in its sole discretion, in accordance with any applicable requirements of Section 409A of the Code. (m)Group: A “group” as such term is used in Sections 13(d) and 14(d) of the Act, acting in concert. (n)ISO: An Option that is also an incentive stock option, as described in Section 422 of the Code, granted pursuant to Section 6(c) of the Plan. (o)Option: An option to purchase Shares granted pursuant to Section 6 of the Plan. (p)Option Price: The purchase price per Share under the terms of an Option, as determined pursuant to Section 6(a) of the Plan. (q)Other Share-Based Awards: Awards granted pursuant to Section 9 of the Plan. (r)Participant: Members of the Board, employees of, or any Person who performs services for, the Company, a subsidiary of the Company or an affiliate of the Company (whether as a consultant, advisor or otherwise) who is selected by the Committee to participate in the Plan. (s)Person: A “person,” as such term is used for purposes of Section 13(d) or 14(d) of the Act (or any successor section thereto). (t)Prior Plan:The Company’s Long-Term Stock Incentive Plan effective January 2, 1997. (u)Plan: The 2010 Equity Incentive Plan. (v)Restricted Shares: An Award of Shares to a Participant under Section 9 that may be subject to certain restrictions and a risk of forfeiture. (w)RSU: A restricted share unit, granted pursuant to Section 9 of the Plan, which represents the right to receive a Share. 3 (x)Shares: Shares of common stock of the Company, subject to adjustment pursuant to Section 10 of the Plan. (y)Stock Appreciation Right: A stock appreciation right granted in connection with or independent of the grant of an Option, pursuant to Section 7 of the Plan. Section 3.Shares Subject to the Plan Subject to this Section 3, and subject to adjustments as provided in Section 10, the total number of Shares that may be issued with respect to Awards granted under the Plan, in the aggregate, may not exceed 25,000,000 Shares.The Shares that may be used hereunder may consist, in whole or in part, of unissued Shares or previously issued Shares that have been reacquired by the Company, as determined by the Chief Financial Officer of the Company (or the Chief Financial Officer’s designee) from time to time, unless otherwise determined by the Committee.The issuance of Shares upon the exercise or payment of an Award shall reduce the total number of Shares available under the Plan, as applicable.Shares which are subject to Awards that terminate, lapse or are cancelled may again be used to satisfy Awards under the Plan.If the Option Price of any Option granted under the Plan is satisfied by delivering Shares to the Company in accordance with the terms of Section 6(b) of the Plan (including a through a net settlement), only the number of Shares issued net of the Shares delivered shall be deemed delivered for purposes of determining the maximum number of Shares available under the Plan.If, in accordance with the terms of the Plan, a Participant pays the Option Price for an Option or satisfies any tax withholding requirement with respect to any taxable event arising as a result of this Plan by either tendering previously owned Shares or having the Company withhold Shares, then such Shares shall not be deemed to have been delivered for purposes of determining the maximum number of Shares available under the Plan.Shares subject to Dividend Equivalent Rights, other than Dividend Equivalent Rights based directly on the dividends payable with respect to Shares subject to Options, shall be subject to the limitation of this Section 3.If any Dividend Equivalent Rights, Share Appreciation Rights, or Other Share-Based Awards under Section 9 are paid out in cash, then the underlying Shares may again be made the subject of Awards under the Plan.For purposes of Section 422(b)(1) of the Code, the maximum number of Shares which may be issued under the Plan pursuant to ISOs is as set forth in the first sentence of this Section 3 above, without regard to the adjustments above resulting from Awards that terminate, lapse or are cancelled, from Shares used to satisfy the Option Price of any Option, from Shares used to satisfy any tax withholding obligation or from Awards settled in cash.In addition, in no event shall a Participant receive during any one (1) calendar year (i) Options or Stock Appreciation Rights covering in the aggregate more than 2,500,000 common shares and (ii) Other Share-Based Awards which are Performance-Based Awards (as defined in Section 9) covering in the aggregate more than 2,500,000 common shares (regardless of whether such Award or Awards may be settled in common shares, cash or any combination of common shares and cash).The provisions of this Section 3 shall not be applicable to Awards granted under the Plan pursuant to the settlement, assumption or substitution of outstanding Awards or obligations to grant future awards as a condition of the Company acquiring another entity so long as the ratio of exercise price to Fair Market Value in effect with respect to such Award or obligation before its settlement, assumption or substitution is maintained after giving effect to such settlement, assumption or substitution (“Substitute Awards”).After the Effective Date, any Shares subject to an award under the Prior Plan that are forfeited, expire or otherwise terminate without issuance of such Shares, or an award under the Prior Plan is settled for cash (in whole or in part), expires or otherwise terminates without issuance of such Shares, or otherwise does not result in the issuance of all or a portion of the Shares subject to such award (including on payment in Shares on exercise of a stock appreciation right), such Shares shall, to the extent of such forfeiture, expiration, termination, cash settlement or non-issuance, again be available for issuance under the Plan and the provisions of this Section 3 shall not be applicable to such Awards.After the Effective Date, any option or award granted under the Prior Plan that is exercised through the tendering of Shares (either actually or by attestation) or by the withholding of Shares by the Company, or (ii) withholding tax liabilities arising from such options or awards are satisfied by the tendering of Shares (either actually or by attestation) or by the withholding of Shares by the Company, then the Shares so tendered or withheld shall be available for issuance under the Plan and the provisions of this Section 3 shall not be applicable to such Awards.Additionally, in the event that a company acquired by the Company or any subsidiary or with which the Company or any subsidiary combines has shares available under a pre-existing plan approved by stockholders and not adopted in contemplation of such acquisition or combination, the shares available for grant pursuant to the terms of such pre-existing plan (as adjusted, to the extent appropriate, using the exchange ratio or other adjustment or valuation ratio or formula used in such acquisition or combination to determine the consideration payable to the holders of common stock of the entities party to such acquisition or combination) may be used for Awards under the Plan and shall not reduce the Shares authorized for grant under the Plan; provided that Awards using such available shares shall not be made after the date awards or grants could have been made under the terms of the pre-existing plan, absent the acquisition or combination, and shall only be made to individuals who were not employees or directors prior to such acquisition or combination. 4 Section 4.Administration The Plan shall be administered by the Committee, which may delegate its duties and powers in whole or in part as it determines, including to a subcommittee consisting of at least two individuals who are intended to qualify as “non-employee directors” within the meaning of Rule 16b-3 under the Act (or any successor rule thereto) and “outside directors” within the meaning of Section 162(m) of the Code.The Committee may grant Awards under this Plan only to Participants; provided that Awards may also, in the discretion of the Committee, be made under the Plan in assumption of, or in substitution for, outstanding awards previously granted by the Company or its Affiliates or a company that becomes an Affiliate.The number of Shares underlying Substitute Awards shall be counted against the aggregate number of Shares available for Awards under the Plan.The Committee is authorized to interpret the Plan, to establish, amend and rescind any rules and regulations relating to the Plan, and to make any other determinations that it deems necessary or desirable for the administration of the Plan.The Committee may correct any defect or supply any omission or reconcile any inconsistency in the Plan in the manner and to the extent the Committee deems necessary or desirable.Any decision of the Committee in the interpretation and administration of the Plan, as described herein, shall lie within its sole and absolute discretion and shall be final, conclusive and binding on all parties concerned (including, but not limited to, Participants and their beneficiaries or successors).The Committee shall have the full power and authority to establish the terms and conditions of any Award consistent with the provisions of the Plan and to waive any such terms and conditions at any time, in its sole discretion (including, without limitation, accelerating or waiving any vesting conditions and/or accelerating any payment). No member of the Committee shall be personally liable for any action, determination or interpretations taken or made in good faith with respect to this Plan or Awards made hereunder, and all members of the Committee shall be fully indemnified and protected by the Company in respect of any such action, determination or interpretation. 5 Section 5.Limitations on Granting Awards No Award may be granted under the Plan after the tenth anniversary of the earlier of (i) the stockholders adopt the Plan or (ii) the date the Board adopts the Plan, but Awards theretofore granted may extend beyond that date and will continue to be governed by the terms of the Plan. Section 6.Terms and Conditions of Options Options granted under the Plan shall be, as determined by the Committee, non-qualified stock options or ISOs for United States federal income tax purposes (or other types of Options in jurisdictions outside the United States), as evidenced by the related Award, and shall be subject to the foregoing, the following terms and conditions, and to such other terms and conditions, not inconsistent therewith, as the Committee shall determine: (a)Option Price; Exercisability.Other than any Substitute Awards, any Option granted under the Plan shall have an Option Price of not less than the Fair Market Value of one Share on the date the Option is granted, and shall be vested and exercisable in installments at such time and upon such terms and conditions, as may be determined by the Committee, but in no event shall an Option be exercisable more than ten years after the date it is granted. (b)Exercise of Options.Except as otherwise provided in the Plan or in an Award, an Option may be exercised for all, or from time to time any part, of the Shares for which it is then exercisable.For purposes of this Section 6 of the Plan, the exercise date of an Option shall be the later of the date a notice of exercise is received by the Company and, if applicable, the date payment is received by the Company pursuant to clauses (i) through (vi) in the following sentence.Except as otherwise provided in an Award, the purchase price for the Shares as to which an Option is exercised shall be paid in full at the time of exercise at the election of the Participant: (i) in cash or its equivalent (e.g., by check); (ii) to the extent permitted by the Company at the time of exercise, in Shares having a Fair Market Value equal to the aggregate Option Price for the Shares being purchased and satisfying such other requirements as may be imposed by the Committee; (iii) partly in cash and, to the extent permitted by the Company at the time of exercise, partly in such Shares; (iv) to the extent permitted by applicable law through the delivery of irrevocable instructions to a broker to sell Shares obtained upon the exercise of the Option and deliver promptly to the Company an amount out of the proceeds of such sale equal to the aggregate Option Price for the Shares being purchased, (v) to the extent permitted by the Company at the time of exercise, through net settlement in Shares (a “cashless exercise”) or (vi) by any other means which the Committee determines to be consistent with the Plan’s purpose and applicable law.The Committee may also authorize the Company to make or facilitate loans to Participants to enable them to exercise Options to the extent not prohibited by applicable law.The Committee may permit Participants to exercise Options in joint-tenancy with the Participant’s spouse. 6 (c)ISOs.The Committee may grant Options under the Plan that are intended to be ISOs.No ISO shall have an Option Price of less than the Fair Market Value of one Share on the date granted or have a term in excess of ten years.Additionally, no ISO may be granted to any Participant who, at the time of such grant, owns more than ten percent of the total combined voting power of all classes of shares of the Company or of any Subsidiary, unless (i) the Option Price for such ISO is at least 110% of the Fair Market Value of one Share on the date the ISO is granted and (ii) the date on which such ISO terminates is a date not later than the day preceding the fifth anniversary of the date on which the ISO is granted.Any Participant who disposes of Shares acquired upon the exercise of an ISO either (A) within two years after the date of grant of such ISO or (B) within one year after the transfer of such Shares to the Participant, shall notify the Company of such disposition and of the amount realized upon such disposition.All options granted under the Plan are intended to be nonqualified stock options, unless the applicable Award agreement expressly states that the Option is intended to be an ISO.If an Option is intended to be an ISO, and if for any reason such Option (or portion thereof) shall not qualify as an ISO, then, to the extent of such non-qualification, such Option (or portion thereof) shall be regarded as a nonqualified stock option granted under the Plan; provided that such Option (or portion thereof) otherwise complies with the Plan’s requirements relating to nonqualified stock options.In no event shall any member of the Committee, the Company or any of its Affiliates (or their respective employees, officers or directors) have any liability to any Participant (or any other Person) due to the failure of an Option to qualify for any reason as an ISO. (d)Attestation.Wherever in this Plan or any agreement evidencing an Award a Participant is permitted to pay the Option Price (or taxes relating to the exercise of an Option) by delivering Shares, the Participant may, subject to procedures satisfactory to the Committee (and to the extent permitted by applicable law), satisfy such delivery requirement by presenting proof of record ownership of such Shares, or, to the extent permitted by the Committee, beneficial ownership of such Shares, in which case the Company shall treat the Option as exercised without further payment and shall withhold such number of Shares from the Shares acquired by the exercise of the Option. Section 7.Terms and Conditions of Stock Appreciation Rights (a)Grants.The Committee also may grant (i) a Stock Appreciation Right independent of an Option or (ii) a Stock Appreciation Right in connection with an Option, or a portion thereof.A Stock Appreciation Right granted pursuant to clause (ii) of the preceding sentence (A) may be granted at the time the related Option is granted or at any time prior to the exercise or cancellation of the related Option, (B) shall cover the same number of Shares covered by an Option (or such lesser number of Shares as the Committee may determine) and (C) shall be subject to the same terms and conditions as such Option except for such additional limitations as are contemplated by this Section 7 (or such additional limitations as may be included in a Stock Appreciation Right Award). (b)Terms.The exercise price per Share of a Stock Appreciation Right shall be an amount determined by the Committee but in no event shall such amount, other than with respect to any Substitute Award, be less than the greater of (i) the Fair Market Value of a Share on the date the Stock Appreciation Right is granted or, in the case of a Stock Appreciation Right granted in conjunction with an Option, or a portion thereof, the Option Price of the related Option and (ii) the minimum amount permitted by applicable laws, rules, by-laws or policies of regulatory authorities or stock exchanges.Each Stock Appreciation Right granted independent of an Option shall entitle a Participant upon exercise to a payment from the Company of an amount equal to (i) the excess of (A) the Fair Market Value on the exercise date of one Share over (B) the exercise price per Share, times (ii) the number of Shares covered by the Stock Appreciation Right.Each Stock Appreciation Right granted in conjunction with an Option, or a portion thereof, shall entitle a Participant to surrender to the Company the unexercised Option, or any portion thereof, and to receive from the Company in exchange therefor an amount equal to (i) the excess of (A) the Fair Market Value on the exercise date of one Share over (B) the Option Price, times (ii) the number of Shares covered by the Option, or portion thereof, which is surrendered.The date a notice of exercise is received by the Company shall be the exercise date.Payment shall be made in Shares or in cash, or partly in Shares and partly in cash (any such Shares valued at such Fair Market Value), all as shall be determined by the Committee.Stock Appreciation Rights may be exercised from time to time upon actual receipt by the Company of written notice of exercise stating the number of Shares with respect to which the Stock Appreciation Right is being exercised.No fractional Shares will be issued in payment for Stock Appreciation Rights, but instead cash will be paid for a fraction or, if the Committee should so determine, the number of Shares will be rounded downward to the next whole Share. 7 (c)Limitations.The Committee may impose, in its discretion, such conditions upon the exercisability of Stock Appreciation Rights as it may deem fit; provided that no Stock Appreciation Right may remain exercisable more than 10 years after the date of grant. Section 8.Terms and Conditions of Dividend Equivalent Rights (a)Grants.Subject to the other terms of the Plan, the Committee shall, in its discretion as reflected by the terms of the Award Agreements, authorize the granting of Dividend Equivalent Rights to Participants based on the regular cash dividends declared on Shares, to be credited as of the dividend payment dates, during the period between the date an Award is granted, and the date such Award is exercised, vests or expires, as determined by the Committee.Such Dividend Equivalent Rights shall be converted to cash or additional Shares by such formula and at such time and subject to such limitation as may be determined by the Committee.With respect to Dividend Equivalent Rights granted with respect to Options intended to be qualified performance-based compensation for purposes of Section 162(m) of the Code, such Dividend Equivalent Rights shall be payable regardless of whether such Option is exercised.If a Dividend Equivalent Right is granted in respect of another Award hereunder, then, unless otherwise stated in the Award Agreement, in no event shall the Dividend Equivalent Right be in effect for a period beyond the time during which the applicable portion of the underlying Award is in effect. (b)Certain Terms.The terms of a Dividend Equivalent Right shall be set by the Committee in its discretion.Payment of the amount determined in accordance with Section 8(a) shall be in cash, in common stock or a combination of the both, as determined by the Committee. Dividend Equivalent Rights will be paid only after the end of the relevant performance period determined by the Committee , if any, to the extent that the Shares have been earned based on the achievement of the performance objectives. 8 (c)Other Types of Dividend Equivalent Rights.The Committee may establish a program under which Dividend Equivalent Rights of a type whether or not described in the foregoing provisions of this Section 8 may be granted to Participants.For example, and without limitation, the Committee may grant a dividend equivalent right in respect of each Share subject to an Option, which right would consist of the right (subject to Section 8(b)) to receive a cash payment in an amount equal to the dividend distributions paid on a Share from time to time. Section 9.Other Share-Based Awards (a)Generally.The Committee, in its sole discretion, may grant Awards of Shares, Awards of Restricted Shares, Awards of RSUs and other Awards that are valued in whole or in part by reference to, or are otherwise based on the Fair Market Value, of Shares (“Other Share-Based Awards”).Such Other Share-Based Awards shall be in such form, and dependent on such conditions, as the Committee shall determine, including, without limitation, the right to receive one or more Shares (or the equivalent cash value of such Shares) upon the completion of a specified period of service, the occurrence of an event and/or the attainment of performance objectives.Other Share-Based Awards may be granted alone or in addition to any other Awards granted under the Plan.Subject to the provisions of the Plan, the Committee shall determine: (i) to whom and when Other Share-Based Awards will be made; (ii) the number of Shares to be awarded under (or otherwise related to) such Other Share-Based Awards; (iii) whether such Other Share-Based Awards shall be settled in cash, Shares or a combination of cash and Shares; and (iv) all other terms and conditions of such Other Share-Based Awards (including, without limitation, the vesting provisions thereof and provisions ensuring that all Shares so awarded and issued shall be fully paid and non-assessable).Dividends and Dividend Equivalent Rights on Other Share-Based Awards that are Performance-Based Awards or are otherwise earned based on the achievement of the performance objectives will be paid only after the end of the relevant performance period determined by the Committee, if any. (b)Performance-Based Awards.Notwithstanding anything to the contrary herein, certain Other Share-Based Awards granted under this Section 9 may be granted in a manner which is intended to be deductible by the Company under Section 162(m) of the Code (or any successor section thereto) (“Performance-Based Awards”).A Participant’s Performance-Based Award shall be determined based on the attainment of written performance goals approved by the Committee for a performance period established by the Committee (i) while the outcome for that performance period is substantially uncertain and (ii) no more than 90 days after the commencement of the performance period to which the performance goal relates or, if less, the number of days which is equal to 25 percent of the relevant performance period.The performance goals, which must be objective, may, without limitation, include one or more of the following criteria: (i) consolidated earnings before or after taxes (including earnings before interest, taxes, depreciation and amortization); (ii) net income; (iii) operating income; (iv) earnings per Share; (v) book value per Share; (vi) return on stockholders’ equity; (vii) expense management; (viii) return on investment; (ix) improvements in capital structure; (x) profitability of an identifiable business unit or product; (xi) maintenance or improvement of profit margins; (xii) stock price; (xiii) dividend per Share; (xiv) revenues or sales; (xv) costs; (xvi) cash flow; (xvii) stockholders’ equity; and (xviii) return on assets.The foregoing criteria may relate to the Company, one or more of its Affiliates or one or more of its or their divisions or units, or any combination of the foregoing, and may be applied on an absolute basis and/or be relative to prior years for the Company, one or more peer group companies or indices, or any combination thereof, all as the Committee shall determine.In addition, to the degree consistent with Section 162(m) of the Code (or any successor section thereto), the performance goals may be calculated without regard to extraordinary items.The Committee shall determine whether, with respect to a performance period, the applicable performance goals have been met with respect to a given Participant and, if they have, shall so certify and ascertain the amount of the applicable Performance-Based Award.No Performance-Based Awards will be paid for such performance period until such certification is made by the Committee.The amount of the Performance-Based Award actually paid to a given Participant may be less than the amount determined by the applicable performance goal formula, at the discretion of the Committee.The amount of the Performance-Based Award determined by the Committee for a performance period shall be paid to the Participant at such time as determined by the Committee in its sole discretion after the end of such performance period; provided, however, that a Participant may, if and to the extent permitted by the Board and consistent with the provisions of Sections 162(m) and 409A of the Code, elect to defer payment of a Performance-Based Award. 9 Section 10.Adjustments Upon Certain Events Subject to Section 18 below, the following provisions shall apply to all Awards granted under the Plan: (a)Generally.In the event of any change in the outstanding Shares after the Effective Date by reason of any Share dividend or split, reorganization, recapitalization, merger, consolidation, spin-off or combination transaction or exchange of Shares or other corporate exchange, or any distribution to stockholders of Shares other than regular cash dividends or any transaction similar to the foregoing, the Committee in its sole discretion and without liability to any person shall make such substitution or adjustment, if any, as it deems to be equitable, as to (i) the number or kind of Shares or other securities available for issuance, issued or reserved for issuance pursuant to the Plan and pursuant to outstanding Awards; (ii) the maximum amounts of Awards that may be granted during a calendar year to any Participant pursuant to Section 3; (iii) the Option Price or exercise price of any Stock Appreciation Right; and/or (iv) any other affected terms of any Award. (b)Change in Control.The Committee may, in its sole discretion, in the event of a Change in Control after the Effective Date and a subsequent termination of employment, provide for: (i) the accelerated vesting (including transferability) or exercisability of any outstanding Awards then held by Participants that are otherwise unexercisable or unvested, as the case may be, to the extent determined by the Committee and as of a date selected by the Committee; (ii) the earning of all or any outstanding performance shares or incentive awards; (iii) the termination of an Award upon the consummation of the Change in Control, and the payment of a cash amount in exchange for the cancellation of an Award which, in the case of Options and Stock Appreciation Rights, may equal the excess, if any, of the Fair Market Value of the Shares in the Change in Control subject to such Options or Stock Appreciation Rights over the aggregate exercise price of such Options or Stock Appreciation Rights; and/or (iv) the issuance of substitute Awards that will substantially preserve the otherwise applicable terms of any affected Awards previously granted hereunder. 10 Section 11.No Right to Employment or Awards The granting of an Award under the Plan shall impose no obligation on the Company or any Affiliate to continue the employment or service or consulting relationship of a Participant and shall not lessen or affect the Company’s or Affiliate’s right to terminate the employment or service or consulting relationship of such Participant.No Participant or other person shall have any claim to be granted any Award, and there is no obligation for uniformity of treatment of Participants, or holders or beneficiaries of Awards.The terms and conditions of Awards and the Committee’s determinations and interpretations with respect thereto need not be the same with respect to each Participant (whether or not such Participants are similarly situated). Section 12.Successors and Assigns The Plan shall be binding on all successors and assigns of the Company and a Participant, including without limitation, the estate of such Participant and the executor, administrator or trustee of such estate, or any receiver or trustee in bankruptcy or representative of the Participant’s creditors. Section 13.Transferability of Awards Other than by will or by the laws of descent and distribution or pursuant to a “qualified domestic relations order,” as such term is defined in the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), an Award shall not be transferable or assignable by the Participant; provided, however, that the Committee may permit the transfer or assignment by the Participant to (i) the spouse, qualified domestic partner, children, or grandchildren of the Participant and any other persons related to the Participant as may be approved by the Committee (“Immediate Family Members”), (ii) a trust or trusts for the exclusive benefit of such Immediate Family Members, (iii) a partnership or partnerships in which such Immediate Family Members are the only partners, upon such terms and conditions as set forth by the Committee. An Award exercisable after the death of a Participant may be exercised by the legatees, personal representatives or distributees of the Participant. 11 Section 14.Amendments or Termination Subject to Section 10 of the Plan, the Board may amend, alter or discontinue the Plan, but no amendment, alteration or discontinuation shall be made which would: (a) increase the maximum number of Shares available for Awards under the Plan (including the limits applicable to the different types of Awards) or change the class of eligible Participants under the Plan (other than amendments having such purpose that are approved by a majority of the Stockholders of the Company that are present and entitled to vote on such matter at a meeting duly convened for such purposes (or such other standard of Stockholder vote as may be required by applicable state or federal law)); (b) without the consent of a Participant, diminish any of the rights of the Participant under any Award theretofore granted to such Participant under the Plan; or (c) be prohibited by applicable law or otherwise require stockholder approval (whether in order to maintain the full tax deductibility of all Awards under Section 162(m) of the Code or otherwise); provided, however, that the Committee may amend the Plan in such manner as it deems necessary to permit Awards to meet the requirements of the Code or other applicable laws.In no event may the Board amend the Plan or any Award to provide for the repricing of any Option price or exercise price of any Stock Appreciation Rights without the approval by the Stockholders of the Company.Notwithstanding any provision herein to the contrary, the repricing of Options or Stock Appreciation Rights is prohibited without prior approval of the Company’s stockholders. For this purpose, a “repricing” means any of the following (or any other action that has the same effect as any of the following): (A) changing the terms of an Option or Stock Appreciation Right to lower its Option Price or grant price; (B) any other action that is treated as a “repricing” under generally accepted accounting principles; and (C) repurchasing for cash or canceling an Option or Stock Appreciation Right at a time when its Option Price or grant price is greater than the Fair Market Value of the underlying Shares in exchange for another Award, unless the cancellation and exchange occurs in connection with a change in capitalization or similar change under Section 10 above.Such cancellation and exchange would be considered a “repricing” regardless of whether it is treated as a “repricing” under generally accepted accounting principles and regardless of whether it is voluntary on the part of the Participant.” Without limiting the generality of the foregoing, to the extent applicable, notwithstanding anything herein to the contrary, this Plan and Awards issued hereunder shall be interpreted in accordance with Section 409A of the Code and Department of Treasury regulations and other interpretative guidance issued thereunder, including without limitation any such regulations or other guidance that may be issued after the Effective Date.Notwithstanding any provision of the Plan to the contrary, in the event that the Committee reasonably determines that any amounts payable hereunder may be taxable to a Participant under Section 409A of the Code and related Department of Treasury guidance prior to payment to such Participant of such amount, the Company may (a) adopt such amendments to the Plan and Awards and appropriate policies and procedures, including amendments and policies with retroactive effect, that the Committee determines necessary or appropriate to preserve the intended tax treatment of the benefits provided by the Plan and Awards hereunder and/or (b) take such other actions as the Committee determines necessary or appropriate to comply with the requirements of Section 409A of the Code, provided that under no circumstances shall the Company or any affiliate be liable for or indemnify any Participant for any additional taxes or other amounts that may be imposed upon such Participant pursuant to or as a result of Section 409A of the Code. 12 Section 15.International Participants With respect to Participants, if any, who reside or work outside the United States of America, the Committee may, in its sole discretion, amend the terms of the Plan or Awards with respect to such Participants in order to conform such terms with the provisions of local law, and the Committee may, where appropriate, establish one or more sub-plans to reflect such amended or varied provisions. Section 16.Choice of Law The Plan shall be governed by and construed in accordance with the laws of the State of New York without regard to conflicts of laws. Section 17.Effectiveness of the Plan The Plan shall be effective as of the Effective Date. Section 18.Section 409A Without limiting the generality of the foregoing, to the extent applicable, notwithstanding anything herein to the contrary, this Plan and Awards issued hereunder shall be interpreted in accordance with Section 409A of the Code and Department of Treasury regulations and other interpretative guidance issued thereunder, including without limitation any such regulations or other guidance that may be issued after the Effective Date.Notwithstanding any provision of the Plan to the contrary, in the event that the Committee reasonably determines that any amounts payable hereunder may be taxable to a Participant under Section 409A of the Code and related Department of Treasury guidance prior to payment to such Participant of such amount, the Company may (a) adopt such amendments to the Plan and Awards and appropriate policies and procedures, including amendments and policies with retroactive effect, that the Committee determines necessary or appropriate to preserve the intended tax treatment of the benefits provided by the Plan and Awards hereunder and/or (b) take such other actions as the Committee determines necessary or appropriate to comply with the requirements of Section 409A of the Code, provided that under no circumstances shall the Company or any affiliate be liable for or indemnify any Participant for any additional taxes or other amounts that may be imposed upon such Participant pursuant to or as a result of Section 409A of the Code. Section 19.Tax Withholding The Company shall have the power and the right to deduct or withhold, or require a Participant to remit to the Company, an amount sufficient to satisfy Federal, state, and local taxes (including the Participant’s FICA obligation) required by law to be withheld with respect to any taxable event arising as a result of this Plan. In that regard, the Company may cause any such tax withholding obligation to be satisfied by the Company withholding Shares having a Fair Market Value on the date the tax is to be determined equal to the minimum statutory total tax which could be imposed on the transaction.In the alternative, the Company may permit Participants to elect to satisfy the tax withholding obligation, in whole or in part, by either (i) having the Company withhold Shares having a Fair Market Value on the date the tax is to be determined equal to the minimum statutory total tax which could be imposed on the transaction or (ii) tendering previously acquired Shares having an aggregate Fair Market Value equal to the minimum statutory total tax which could be imposed on the transaction (provided that the Shares which are tendered must have been held by the Participant for at least six (6) months prior to their tender unless such Shares had been acquired by the Participant on the open market).All such elections shall be irrevocable, made in writing, signed by the Participant, and shall be subject to any restrictions or limitations that the Committee, in its sole discretion, deems appropriate. 13 | [
"Exhibit 10.1 ANNALY CAPITAL MANAGEMENT, INC. 2 Section 1.Purpose of the Plan The purpose of the Plan is to aid the Company and its Affiliates in attracting, rewarding, and retaining employees, non-employee directors or other service providers and to motivate such employees, non-employee directors or other Persons who perform services for the Company or an Affiliate to stimulate their efforts toward the Company’s continued success, long-term growth and profitability by providing incentives through the granting of Awards.The Company expects that it will benefit from the added interest which such key employees, non-employee directors or other service providers will have in the welfare of the Company as a result of their proprietary interest in the Company’s success.",
"Section 2.Definitions The following capitalized terms used in the Plan have the respective meanings set forth in this Section: (a)Act: The Securities Exchange Act of 1934, as amended, or any successor thereto. (b)Affiliate: Any entity directly or indirectly controlling, controlled by, or under common control with, the Company or any other entity designated by the Board in which the Company or stockholder of the Company has an interest. (c)Award: An Option, Stock Appreciation Right, Dividend Equivalent Right, or Other Share-Based Award, including Restricted Shares, granted pursuant to the Plan. (d)Beneficial Owner: A “beneficial owner,” as such term is defined in Rule 13d-3 and 13d-5 under the Act (or any successor rule thereto). (e)Board: The Board of Directors of the Company.",
"(f)Change in Control: The occurrence of any of the following events: i.any “person,” including a “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), but excluding the Company, any entity controlling, controlled by or under common control with the Company, any trustee, fiduciary or other person or entity holding securities under any employee benefit plan or trust of the Company or any such entity, and, with respect to any particular Participant, the Participant and any “group” (as such term is used in Section 13(d)(3) of the Exchange Act) of which the Participant is a member), is or becomes the “beneficial owner” (as defined in Rule 13(d)(3) under the Exchange Act), directly or indirectly, of securities of the Company representing 50% or more of either (A) the combined voting power of the Company’s then outstanding securities or (B) the then outstanding Shares (in either such case other than as a result of an acquisition of securities directly from the Company); 1 ii.any consolidation or merger of the Company where the shareholders of the Company, immediately prior to the consolidation or merger, would not, immediately after the consolidation or merger, beneficially own (as such term is defined in Rule 13d-3 under the Exchange Act), directly or indirectly, shares representing in the aggregate 50% or more of the combined voting power of the securities of the corporation issuing cash or securities in the consolidation or merger (or of its ultimate parent corporation, if any) in substantially the same proportions as their ownership of the combined voting power of the securities of the Company immediately preceding such transaction; iii.there shall occur (A) any sale, lease, exchange or other transfer (in one transaction or a series of transactions contemplated or arranged by any party as a single plan) of all or substantially all of the assets of the Company, other than a sale or disposition by the Company of all or substantially all of the Company’s assets to an entity, at least 50% of the combined voting power of the voting securities of which are owned by “persons” (as defined above) in substantially the same proportion as their ownership of the Company immediately prior to such sale or (B) the approval by shareholders of the Company of any plan or proposal for the liquidation or dissolution of the Company; or iv.the members of the Board at the beginning of any consecutive 24-calendar-month period (the “Incumbent Directors”) cease for any reason other than due to death to constitute at least a majority of the members of the Board; provided that any Director whose election, or nomination for election by the Company’s shareholders, was approved or ratified by a vote of at least a majority of the members of the Board then still in office who were members of the Board at the beginning of such 24-calendar-month period (provided such Director is not an individual whose election or nomination was in connection with an actual or threatened proxy contest relating to the election of directors of the Company or as a result of any other actual or threatened solicitation of proxies by or on behalf of any person other than the Board), shall be deemed to be an Incumbent Director.",
"Notwithstanding the foregoing, for any Awards that constitute a nonqualified deferred compensation plan within the meaning of Section 409A(d) of the Code and provide for an accelerated payment in connection with a Change in Control, Change in Control shall have the same meaning as set forth in any regulations, revenue procedure, revenue rulings or other pronouncements issued by the Secretary of the United States Treasury pursuant to Section 409A of the Code, applicable to such plans. (g)Code: The Internal Revenue Code of 1986, as amended, or any successor thereto. (h)Committee: The Compensation Committee of the Board or such other committee as may be appointed by the Board in accordance with Section 4 of the Plan.The Board may exercise any power or right of the Committee; provided, that, the Board may not grant any Award that is intended to be performance-based compensation under Section 162(m) of the Code. (i)Company: Annaly Capital Management, Inc., a Maryland corporation. 2 (j)Dividend Equivalent Right: a right awarded under Section 8 of the Plan to receive (or have credited) the equivalent value of dividends paid on common stock of the Company. (k)Effective Date: The date the shareholders of the Company approve the Plan.",
"(l)Fair Market Value: On a given date, (i) if there should be a public market for the Shares on such date, the closing price of the Shares as reported on such date on the Composite Tape of the principal national securities exchange on which such Shares are listed or admitted to trading, or, if the Shares are not listed or admitted on any national securities exchange, the closing price on such date as quoted on the National Association of Securities Dealers Automated Quotation System (or such market in which such prices are regularly quoted) (the “NASDAQ”), or, if no sale of Shares shall have been reported on the Composite Tape of any national securities exchange or quoted on the NASDAQ on such date, then the immediately preceding date on which sales of the Shares have been so reported or quoted shall be used; and (ii) if there should not be a public market for the Shares on such date, the Fair Market Value shall be the value established by the Committee in its sole discretion, in accordance with any applicable requirements of Section 409A of the Code.",
"(m)Group: A “group” as such term is used in Sections 13(d) and 14(d) of the Act, acting in concert. (n)ISO: An Option that is also an incentive stock option, as described in Section 422 of the Code, granted pursuant to Section 6(c) of the Plan. (o)Option: An option to purchase Shares granted pursuant to Section 6 of the Plan. (p)Option Price: The purchase price per Share under the terms of an Option, as determined pursuant to Section 6(a) of the Plan. (q)Other Share-Based Awards: Awards granted pursuant to Section 9 of the Plan. (r)Participant: Members of the Board, employees of, or any Person who performs services for, the Company, a subsidiary of the Company or an affiliate of the Company (whether as a consultant, advisor or otherwise) who is selected by the Committee to participate in the Plan. (s)Person: A “person,” as such term is used for purposes of Section 13(d) or 14(d) of the Act (or any successor section thereto).",
"(t)Prior Plan:The Company’s Long-Term Stock Incentive Plan effective January 2, 1997. (u)Plan: The 2010 Equity Incentive Plan. (v)Restricted Shares: An Award of Shares to a Participant under Section 9 that may be subject to certain restrictions and a risk of forfeiture. (w)RSU: A restricted share unit, granted pursuant to Section 9 of the Plan, which represents the right to receive a Share. 3 (x)Shares: Shares of common stock of the Company, subject to adjustment pursuant to Section 10 of the Plan.",
"(y)Stock Appreciation Right: A stock appreciation right granted in connection with or independent of the grant of an Option, pursuant to Section 7 of the Plan.",
"Section 3.Shares Subject to the Plan Subject to this Section 3, and subject to adjustments as provided in Section 10, the total number of Shares that may be issued with respect to Awards granted under the Plan, in the aggregate, may not exceed 25,000,000 Shares.The Shares that may be used hereunder may consist, in whole or in part, of unissued Shares or previously issued Shares that have been reacquired by the Company, as determined by the Chief Financial Officer of the Company (or the Chief Financial Officer’s designee) from time to time, unless otherwise determined by the Committee.The issuance of Shares upon the exercise or payment of an Award shall reduce the total number of Shares available under the Plan, as applicable.Shares which are subject to Awards that terminate, lapse or are cancelled may again be used to satisfy Awards under the Plan.If the Option Price of any Option granted under the Plan is satisfied by delivering Shares to the Company in accordance with the terms of Section 6(b) of the Plan (including a through a net settlement), only the number of Shares issued net of the Shares delivered shall be deemed delivered for purposes of determining the maximum number of Shares available under the Plan.If, in accordance with the terms of the Plan, a Participant pays the Option Price for an Option or satisfies any tax withholding requirement with respect to any taxable event arising as a result of this Plan by either tendering previously owned Shares or having the Company withhold Shares, then such Shares shall not be deemed to have been delivered for purposes of determining the maximum number of Shares available under the Plan.Shares subject to Dividend Equivalent Rights, other than Dividend Equivalent Rights based directly on the dividends payable with respect to Shares subject to Options, shall be subject to the limitation of this Section 3.If any Dividend Equivalent Rights, Share Appreciation Rights, or Other Share-Based Awards under Section 9 are paid out in cash, then the underlying Shares may again be made the subject of Awards under the Plan.For purposes of Section 422(b)(1) of the Code, the maximum number of Shares which may be issued under the Plan pursuant to ISOs is as set forth in the first sentence of this Section 3 above, without regard to the adjustments above resulting from Awards that terminate, lapse or are cancelled, from Shares used to satisfy the Option Price of any Option, from Shares used to satisfy any tax withholding obligation or from Awards settled in cash.In addition, in no event shall a Participant receive during any one (1) calendar year (i) Options or Stock Appreciation Rights covering in the aggregate more than 2,500,000 common shares and (ii) Other Share-Based Awards which are Performance-Based Awards (as defined in Section 9) covering in the aggregate more than 2,500,000 common shares (regardless of whether such Award or Awards may be settled in common shares, cash or any combination of common shares and cash).The provisions of this Section 3 shall not be applicable to Awards granted under the Plan pursuant to the settlement, assumption or substitution of outstanding Awards or obligations to grant future awards as a condition of the Company acquiring another entity so long as the ratio of exercise price to Fair Market Value in effect with respect to such Award or obligation before its settlement, assumption or substitution is maintained after giving effect to such settlement, assumption or substitution (“Substitute Awards”).After the Effective Date, any Shares subject to an award under the Prior Plan that are forfeited, expire or otherwise terminate without issuance of such Shares, or an award under the Prior Plan is settled for cash (in whole or in part), expires or otherwise terminates without issuance of such Shares, or otherwise does not result in the issuance of all or a portion of the Shares subject to such award (including on payment in Shares on exercise of a stock appreciation right), such Shares shall, to the extent of such forfeiture, expiration, termination, cash settlement or non-issuance, again be available for issuance under the Plan and the provisions of this Section 3 shall not be applicable to such Awards.After the Effective Date, any option or award granted under the Prior Plan that is exercised through the tendering of Shares (either actually or by attestation) or by the withholding of Shares by the Company, or (ii) withholding tax liabilities arising from such options or awards are satisfied by the tendering of Shares (either actually or by attestation) or by the withholding of Shares by the Company, then the Shares so tendered or withheld shall be available for issuance under the Plan and the provisions of this Section 3 shall not be applicable to such Awards.Additionally, in the event that a company acquired by the Company or any subsidiary or with which the Company or any subsidiary combines has shares available under a pre-existing plan approved by stockholders and not adopted in contemplation of such acquisition or combination, the shares available for grant pursuant to the terms of such pre-existing plan (as adjusted, to the extent appropriate, using the exchange ratio or other adjustment or valuation ratio or formula used in such acquisition or combination to determine the consideration payable to the holders of common stock of the entities party to such acquisition or combination) may be used for Awards under the Plan and shall not reduce the Shares authorized for grant under the Plan; provided that Awards using such available shares shall not be made after the date awards or grants could have been made under the terms of the pre-existing plan, absent the acquisition or combination, and shall only be made to individuals who were not employees or directors prior to such acquisition or combination.",
"4 Section 4.Administration The Plan shall be administered by the Committee, which may delegate its duties and powers in whole or in part as it determines, including to a subcommittee consisting of at least two individuals who are intended to qualify as “non-employee directors” within the meaning of Rule 16b-3 under the Act (or any successor rule thereto) and “outside directors” within the meaning of Section 162(m) of the Code.The Committee may grant Awards under this Plan only to Participants; provided that Awards may also, in the discretion of the Committee, be made under the Plan in assumption of, or in substitution for, outstanding awards previously granted by the Company or its Affiliates or a company that becomes an Affiliate.The number of Shares underlying Substitute Awards shall be counted against the aggregate number of Shares available for Awards under the Plan.The Committee is authorized to interpret the Plan, to establish, amend and rescind any rules and regulations relating to the Plan, and to make any other determinations that it deems necessary or desirable for the administration of the Plan.The Committee may correct any defect or supply any omission or reconcile any inconsistency in the Plan in the manner and to the extent the Committee deems necessary or desirable.Any decision of the Committee in the interpretation and administration of the Plan, as described herein, shall lie within its sole and absolute discretion and shall be final, conclusive and binding on all parties concerned (including, but not limited to, Participants and their beneficiaries or successors).The Committee shall have the full power and authority to establish the terms and conditions of any Award consistent with the provisions of the Plan and to waive any such terms and conditions at any time, in its sole discretion (including, without limitation, accelerating or waiving any vesting conditions and/or accelerating any payment). No member of the Committee shall be personally liable for any action, determination or interpretations taken or made in good faith with respect to this Plan or Awards made hereunder, and all members of the Committee shall be fully indemnified and protected by the Company in respect of any such action, determination or interpretation.",
"5 Section 5.Limitations on Granting Awards No Award may be granted under the Plan after the tenth anniversary of the earlier of (i) the stockholders adopt the Plan or (ii) the date the Board adopts the Plan, but Awards theretofore granted may extend beyond that date and will continue to be governed by the terms of the Plan. Section 6.Terms and Conditions of Options Options granted under the Plan shall be, as determined by the Committee, non-qualified stock options or ISOs for United States federal income tax purposes (or other types of Options in jurisdictions outside the United States), as evidenced by the related Award, and shall be subject to the foregoing, the following terms and conditions, and to such other terms and conditions, not inconsistent therewith, as the Committee shall determine: (a)Option Price; Exercisability.Other than any Substitute Awards, any Option granted under the Plan shall have an Option Price of not less than the Fair Market Value of one Share on the date the Option is granted, and shall be vested and exercisable in installments at such time and upon such terms and conditions, as may be determined by the Committee, but in no event shall an Option be exercisable more than ten years after the date it is granted.",
"(b)Exercise of Options.Except as otherwise provided in the Plan or in an Award, an Option may be exercised for all, or from time to time any part, of the Shares for which it is then exercisable.For purposes of this Section 6 of the Plan, the exercise date of an Option shall be the later of the date a notice of exercise is received by the Company and, if applicable, the date payment is received by the Company pursuant to clauses (i) through (vi) in the following sentence.Except as otherwise provided in an Award, the purchase price for the Shares as to which an Option is exercised shall be paid in full at the time of exercise at the election of the Participant: (i) in cash or its equivalent (e.g., by check); (ii) to the extent permitted by the Company at the time of exercise, in Shares having a Fair Market Value equal to the aggregate Option Price for the Shares being purchased and satisfying such other requirements as may be imposed by the Committee; (iii) partly in cash and, to the extent permitted by the Company at the time of exercise, partly in such Shares; (iv) to the extent permitted by applicable law through the delivery of irrevocable instructions to a broker to sell Shares obtained upon the exercise of the Option and deliver promptly to the Company an amount out of the proceeds of such sale equal to the aggregate Option Price for the Shares being purchased, (v) to the extent permitted by the Company at the time of exercise, through net settlement in Shares (a “cashless exercise”) or (vi) by any other means which the Committee determines to be consistent with the Plan’s purpose and applicable law.The Committee may also authorize the Company to make or facilitate loans to Participants to enable them to exercise Options to the extent not prohibited by applicable law.The Committee may permit Participants to exercise Options in joint-tenancy with the Participant’s spouse.",
"6 (c)ISOs.The Committee may grant Options under the Plan that are intended to be ISOs.No ISO shall have an Option Price of less than the Fair Market Value of one Share on the date granted or have a term in excess of ten years.Additionally, no ISO may be granted to any Participant who, at the time of such grant, owns more than ten percent of the total combined voting power of all classes of shares of the Company or of any Subsidiary, unless (i) the Option Price for such ISO is at least 110% of the Fair Market Value of one Share on the date the ISO is granted and (ii) the date on which such ISO terminates is a date not later than the day preceding the fifth anniversary of the date on which the ISO is granted.Any Participant who disposes of Shares acquired upon the exercise of an ISO either (A) within two years after the date of grant of such ISO or (B) within one year after the transfer of such Shares to the Participant, shall notify the Company of such disposition and of the amount realized upon such disposition.All options granted under the Plan are intended to be nonqualified stock options, unless the applicable Award agreement expressly states that the Option is intended to be an ISO.If an Option is intended to be an ISO, and if for any reason such Option (or portion thereof) shall not qualify as an ISO, then, to the extent of such non-qualification, such Option (or portion thereof) shall be regarded as a nonqualified stock option granted under the Plan; provided that such Option (or portion thereof) otherwise complies with the Plan’s requirements relating to nonqualified stock options.In no event shall any member of the Committee, the Company or any of its Affiliates (or their respective employees, officers or directors) have any liability to any Participant (or any other Person) due to the failure of an Option to qualify for any reason as an ISO.",
"(d)Attestation.Wherever in this Plan or any agreement evidencing an Award a Participant is permitted to pay the Option Price (or taxes relating to the exercise of an Option) by delivering Shares, the Participant may, subject to procedures satisfactory to the Committee (and to the extent permitted by applicable law), satisfy such delivery requirement by presenting proof of record ownership of such Shares, or, to the extent permitted by the Committee, beneficial ownership of such Shares, in which case the Company shall treat the Option as exercised without further payment and shall withhold such number of Shares from the Shares acquired by the exercise of the Option. Section 7.Terms and Conditions of Stock Appreciation Rights (a)Grants.The Committee also may grant (i) a Stock Appreciation Right independent of an Option or (ii) a Stock Appreciation Right in connection with an Option, or a portion thereof.A Stock Appreciation Right granted pursuant to clause (ii) of the preceding sentence (A) may be granted at the time the related Option is granted or at any time prior to the exercise or cancellation of the related Option, (B) shall cover the same number of Shares covered by an Option (or such lesser number of Shares as the Committee may determine) and (C) shall be subject to the same terms and conditions as such Option except for such additional limitations as are contemplated by this Section 7 (or such additional limitations as may be included in a Stock Appreciation Right Award).",
"(b)Terms.The exercise price per Share of a Stock Appreciation Right shall be an amount determined by the Committee but in no event shall such amount, other than with respect to any Substitute Award, be less than the greater of (i) the Fair Market Value of a Share on the date the Stock Appreciation Right is granted or, in the case of a Stock Appreciation Right granted in conjunction with an Option, or a portion thereof, the Option Price of the related Option and (ii) the minimum amount permitted by applicable laws, rules, by-laws or policies of regulatory authorities or stock exchanges.Each Stock Appreciation Right granted independent of an Option shall entitle a Participant upon exercise to a payment from the Company of an amount equal to (i) the excess of (A) the Fair Market Value on the exercise date of one Share over (B) the exercise price per Share, times (ii) the number of Shares covered by the Stock Appreciation Right.Each Stock Appreciation Right granted in conjunction with an Option, or a portion thereof, shall entitle a Participant to surrender to the Company the unexercised Option, or any portion thereof, and to receive from the Company in exchange therefor an amount equal to (i) the excess of (A) the Fair Market Value on the exercise date of one Share over (B) the Option Price, times (ii) the number of Shares covered by the Option, or portion thereof, which is surrendered.The date a notice of exercise is received by the Company shall be the exercise date.Payment shall be made in Shares or in cash, or partly in Shares and partly in cash (any such Shares valued at such Fair Market Value), all as shall be determined by the Committee.Stock Appreciation Rights may be exercised from time to time upon actual receipt by the Company of written notice of exercise stating the number of Shares with respect to which the Stock Appreciation Right is being exercised.No fractional Shares will be issued in payment for Stock Appreciation Rights, but instead cash will be paid for a fraction or, if the Committee should so determine, the number of Shares will be rounded downward to the next whole Share.",
"7 (c)Limitations.The Committee may impose, in its discretion, such conditions upon the exercisability of Stock Appreciation Rights as it may deem fit; provided that no Stock Appreciation Right may remain exercisable more than 10 years after the date of grant. Section 8.Terms and Conditions of Dividend Equivalent Rights (a)Grants.Subject to the other terms of the Plan, the Committee shall, in its discretion as reflected by the terms of the Award Agreements, authorize the granting of Dividend Equivalent Rights to Participants based on the regular cash dividends declared on Shares, to be credited as of the dividend payment dates, during the period between the date an Award is granted, and the date such Award is exercised, vests or expires, as determined by the Committee.Such Dividend Equivalent Rights shall be converted to cash or additional Shares by such formula and at such time and subject to such limitation as may be determined by the Committee.With respect to Dividend Equivalent Rights granted with respect to Options intended to be qualified performance-based compensation for purposes of Section 162(m) of the Code, such Dividend Equivalent Rights shall be payable regardless of whether such Option is exercised.If a Dividend Equivalent Right is granted in respect of another Award hereunder, then, unless otherwise stated in the Award Agreement, in no event shall the Dividend Equivalent Right be in effect for a period beyond the time during which the applicable portion of the underlying Award is in effect.",
"(b)Certain Terms.The terms of a Dividend Equivalent Right shall be set by the Committee in its discretion.Payment of the amount determined in accordance with Section 8(a) shall be in cash, in common stock or a combination of the both, as determined by the Committee. Dividend Equivalent Rights will be paid only after the end of the relevant performance period determined by the Committee , if any, to the extent that the Shares have been earned based on the achievement of the performance objectives. 8 (c)Other Types of Dividend Equivalent Rights.The Committee may establish a program under which Dividend Equivalent Rights of a type whether or not described in the foregoing provisions of this Section 8 may be granted to Participants.For example, and without limitation, the Committee may grant a dividend equivalent right in respect of each Share subject to an Option, which right would consist of the right (subject to Section 8(b)) to receive a cash payment in an amount equal to the dividend distributions paid on a Share from time to time.",
"Section 9.Other Share-Based Awards (a)Generally.The Committee, in its sole discretion, may grant Awards of Shares, Awards of Restricted Shares, Awards of RSUs and other Awards that are valued in whole or in part by reference to, or are otherwise based on the Fair Market Value, of Shares (“Other Share-Based Awards”).Such Other Share-Based Awards shall be in such form, and dependent on such conditions, as the Committee shall determine, including, without limitation, the right to receive one or more Shares (or the equivalent cash value of such Shares) upon the completion of a specified period of service, the occurrence of an event and/or the attainment of performance objectives.Other Share-Based Awards may be granted alone or in addition to any other Awards granted under the Plan.Subject to the provisions of the Plan, the Committee shall determine: (i) to whom and when Other Share-Based Awards will be made; (ii) the number of Shares to be awarded under (or otherwise related to) such Other Share-Based Awards; (iii) whether such Other Share-Based Awards shall be settled in cash, Shares or a combination of cash and Shares; and (iv) all other terms and conditions of such Other Share-Based Awards (including, without limitation, the vesting provisions thereof and provisions ensuring that all Shares so awarded and issued shall be fully paid and non-assessable).Dividends and Dividend Equivalent Rights on Other Share-Based Awards that are Performance-Based Awards or are otherwise earned based on the achievement of the performance objectives will be paid only after the end of the relevant performance period determined by the Committee, if any.",
"(b)Performance-Based Awards.Notwithstanding anything to the contrary herein, certain Other Share-Based Awards granted under this Section 9 may be granted in a manner which is intended to be deductible by the Company under Section 162(m) of the Code (or any successor section thereto) (“Performance-Based Awards”).A Participant’s Performance-Based Award shall be determined based on the attainment of written performance goals approved by the Committee for a performance period established by the Committee (i) while the outcome for that performance period is substantially uncertain and (ii) no more than 90 days after the commencement of the performance period to which the performance goal relates or, if less, the number of days which is equal to 25 percent of the relevant performance period.The performance goals, which must be objective, may, without limitation, include one or more of the following criteria: (i) consolidated earnings before or after taxes (including earnings before interest, taxes, depreciation and amortization); (ii) net income; (iii) operating income; (iv) earnings per Share; (v) book value per Share; (vi) return on stockholders’ equity; (vii) expense management; (viii) return on investment; (ix) improvements in capital structure; (x) profitability of an identifiable business unit or product; (xi) maintenance or improvement of profit margins; (xii) stock price; (xiii) dividend per Share; (xiv) revenues or sales; (xv) costs; (xvi) cash flow; (xvii) stockholders’ equity; and (xviii) return on assets.The foregoing criteria may relate to the Company, one or more of its Affiliates or one or more of its or their divisions or units, or any combination of the foregoing, and may be applied on an absolute basis and/or be relative to prior years for the Company, one or more peer group companies or indices, or any combination thereof, all as the Committee shall determine.In addition, to the degree consistent with Section 162(m) of the Code (or any successor section thereto), the performance goals may be calculated without regard to extraordinary items.The Committee shall determine whether, with respect to a performance period, the applicable performance goals have been met with respect to a given Participant and, if they have, shall so certify and ascertain the amount of the applicable Performance-Based Award.No Performance-Based Awards will be paid for such performance period until such certification is made by the Committee.The amount of the Performance-Based Award actually paid to a given Participant may be less than the amount determined by the applicable performance goal formula, at the discretion of the Committee.The amount of the Performance-Based Award determined by the Committee for a performance period shall be paid to the Participant at such time as determined by the Committee in its sole discretion after the end of such performance period; provided, however, that a Participant may, if and to the extent permitted by the Board and consistent with the provisions of Sections 162(m) and 409A of the Code, elect to defer payment of a Performance-Based Award.",
"9 Section 10.Adjustments Upon Certain Events Subject to Section 18 below, the following provisions shall apply to all Awards granted under the Plan: (a)Generally.In the event of any change in the outstanding Shares after the Effective Date by reason of any Share dividend or split, reorganization, recapitalization, merger, consolidation, spin-off or combination transaction or exchange of Shares or other corporate exchange, or any distribution to stockholders of Shares other than regular cash dividends or any transaction similar to the foregoing, the Committee in its sole discretion and without liability to any person shall make such substitution or adjustment, if any, as it deems to be equitable, as to (i) the number or kind of Shares or other securities available for issuance, issued or reserved for issuance pursuant to the Plan and pursuant to outstanding Awards; (ii) the maximum amounts of Awards that may be granted during a calendar year to any Participant pursuant to Section 3; (iii) the Option Price or exercise price of any Stock Appreciation Right; and/or (iv) any other affected terms of any Award. (b)Change in Control.The Committee may, in its sole discretion, in the event of a Change in Control after the Effective Date and a subsequent termination of employment, provide for: (i) the accelerated vesting (including transferability) or exercisability of any outstanding Awards then held by Participants that are otherwise unexercisable or unvested, as the case may be, to the extent determined by the Committee and as of a date selected by the Committee; (ii) the earning of all or any outstanding performance shares or incentive awards; (iii) the termination of an Award upon the consummation of the Change in Control, and the payment of a cash amount in exchange for the cancellation of an Award which, in the case of Options and Stock Appreciation Rights, may equal the excess, if any, of the Fair Market Value of the Shares in the Change in Control subject to such Options or Stock Appreciation Rights over the aggregate exercise price of such Options or Stock Appreciation Rights; and/or (iv) the issuance of substitute Awards that will substantially preserve the otherwise applicable terms of any affected Awards previously granted hereunder.",
"10 Section 11.No Right to Employment or Awards The granting of an Award under the Plan shall impose no obligation on the Company or any Affiliate to continue the employment or service or consulting relationship of a Participant and shall not lessen or affect the Company’s or Affiliate’s right to terminate the employment or service or consulting relationship of such Participant.No Participant or other person shall have any claim to be granted any Award, and there is no obligation for uniformity of treatment of Participants, or holders or beneficiaries of Awards.The terms and conditions of Awards and the Committee’s determinations and interpretations with respect thereto need not be the same with respect to each Participant (whether or not such Participants are similarly situated). Section 12.Successors and Assigns The Plan shall be binding on all successors and assigns of the Company and a Participant, including without limitation, the estate of such Participant and the executor, administrator or trustee of such estate, or any receiver or trustee in bankruptcy or representative of the Participant’s creditors. Section 13.Transferability of Awards Other than by will or by the laws of descent and distribution or pursuant to a “qualified domestic relations order,” as such term is defined in the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), an Award shall not be transferable or assignable by the Participant; provided, however, that the Committee may permit the transfer or assignment by the Participant to (i) the spouse, qualified domestic partner, children, or grandchildren of the Participant and any other persons related to the Participant as may be approved by the Committee (“Immediate Family Members”), (ii) a trust or trusts for the exclusive benefit of such Immediate Family Members, (iii) a partnership or partnerships in which such Immediate Family Members are the only partners, upon such terms and conditions as set forth by the Committee.",
"An Award exercisable after the death of a Participant may be exercised by the legatees, personal representatives or distributees of the Participant. 11 Section 14.Amendments or Termination Subject to Section 10 of the Plan, the Board may amend, alter or discontinue the Plan, but no amendment, alteration or discontinuation shall be made which would: (a) increase the maximum number of Shares available for Awards under the Plan (including the limits applicable to the different types of Awards) or change the class of eligible Participants under the Plan (other than amendments having such purpose that are approved by a majority of the Stockholders of the Company that are present and entitled to vote on such matter at a meeting duly convened for such purposes (or such other standard of Stockholder vote as may be required by applicable state or federal law)); (b) without the consent of a Participant, diminish any of the rights of the Participant under any Award theretofore granted to such Participant under the Plan; or (c) be prohibited by applicable law or otherwise require stockholder approval (whether in order to maintain the full tax deductibility of all Awards under Section 162(m) of the Code or otherwise); provided, however, that the Committee may amend the Plan in such manner as it deems necessary to permit Awards to meet the requirements of the Code or other applicable laws.In no event may the Board amend the Plan or any Award to provide for the repricing of any Option price or exercise price of any Stock Appreciation Rights without the approval by the Stockholders of the Company.Notwithstanding any provision herein to the contrary, the repricing of Options or Stock Appreciation Rights is prohibited without prior approval of the Company’s stockholders.",
"For this purpose, a “repricing” means any of the following (or any other action that has the same effect as any of the following): (A) changing the terms of an Option or Stock Appreciation Right to lower its Option Price or grant price; (B) any other action that is treated as a “repricing” under generally accepted accounting principles; and (C) repurchasing for cash or canceling an Option or Stock Appreciation Right at a time when its Option Price or grant price is greater than the Fair Market Value of the underlying Shares in exchange for another Award, unless the cancellation and exchange occurs in connection with a change in capitalization or similar change under Section 10 above.Such cancellation and exchange would be considered a “repricing” regardless of whether it is treated as a “repricing” under generally accepted accounting principles and regardless of whether it is voluntary on the part of the Participant.” Without limiting the generality of the foregoing, to the extent applicable, notwithstanding anything herein to the contrary, this Plan and Awards issued hereunder shall be interpreted in accordance with Section 409A of the Code and Department of Treasury regulations and other interpretative guidance issued thereunder, including without limitation any such regulations or other guidance that may be issued after the Effective Date.Notwithstanding any provision of the Plan to the contrary, in the event that the Committee reasonably determines that any amounts payable hereunder may be taxable to a Participant under Section 409A of the Code and related Department of Treasury guidance prior to payment to such Participant of such amount, the Company may (a) adopt such amendments to the Plan and Awards and appropriate policies and procedures, including amendments and policies with retroactive effect, that the Committee determines necessary or appropriate to preserve the intended tax treatment of the benefits provided by the Plan and Awards hereunder and/or (b) take such other actions as the Committee determines necessary or appropriate to comply with the requirements of Section 409A of the Code, provided that under no circumstances shall the Company or any affiliate be liable for or indemnify any Participant for any additional taxes or other amounts that may be imposed upon such Participant pursuant to or as a result of Section 409A of the Code.",
"12 Section 15.International Participants With respect to Participants, if any, who reside or work outside the United States of America, the Committee may, in its sole discretion, amend the terms of the Plan or Awards with respect to such Participants in order to conform such terms with the provisions of local law, and the Committee may, where appropriate, establish one or more sub-plans to reflect such amended or varied provisions. Section 16.Choice of Law The Plan shall be governed by and construed in accordance with the laws of the State of New York without regard to conflicts of laws. Section 17.Effectiveness of the Plan The Plan shall be effective as of the Effective Date.",
"Section 18.Section 409A Without limiting the generality of the foregoing, to the extent applicable, notwithstanding anything herein to the contrary, this Plan and Awards issued hereunder shall be interpreted in accordance with Section 409A of the Code and Department of Treasury regulations and other interpretative guidance issued thereunder, including without limitation any such regulations or other guidance that may be issued after the Effective Date.Notwithstanding any provision of the Plan to the contrary, in the event that the Committee reasonably determines that any amounts payable hereunder may be taxable to a Participant under Section 409A of the Code and related Department of Treasury guidance prior to payment to such Participant of such amount, the Company may (a) adopt such amendments to the Plan and Awards and appropriate policies and procedures, including amendments and policies with retroactive effect, that the Committee determines necessary or appropriate to preserve the intended tax treatment of the benefits provided by the Plan and Awards hereunder and/or (b) take such other actions as the Committee determines necessary or appropriate to comply with the requirements of Section 409A of the Code, provided that under no circumstances shall the Company or any affiliate be liable for or indemnify any Participant for any additional taxes or other amounts that may be imposed upon such Participant pursuant to or as a result of Section 409A of the Code.",
"Section 19.Tax Withholding The Company shall have the power and the right to deduct or withhold, or require a Participant to remit to the Company, an amount sufficient to satisfy Federal, state, and local taxes (including the Participant’s FICA obligation) required by law to be withheld with respect to any taxable event arising as a result of this Plan. In that regard, the Company may cause any such tax withholding obligation to be satisfied by the Company withholding Shares having a Fair Market Value on the date the tax is to be determined equal to the minimum statutory total tax which could be imposed on the transaction.In the alternative, the Company may permit Participants to elect to satisfy the tax withholding obligation, in whole or in part, by either (i) having the Company withhold Shares having a Fair Market Value on the date the tax is to be determined equal to the minimum statutory total tax which could be imposed on the transaction or (ii) tendering previously acquired Shares having an aggregate Fair Market Value equal to the minimum statutory total tax which could be imposed on the transaction (provided that the Shares which are tendered must have been held by the Participant for at least six (6) months prior to their tender unless such Shares had been acquired by the Participant on the open market).All such elections shall be irrevocable, made in writing, signed by the Participant, and shall be subject to any restrictions or limitations that the Committee, in its sole discretion, deems appropriate. 13"
]
| 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 |
|
415 B.R. 72 (2008) In re Kelly RUPP, Debtor. No. 08-12279 K. United States Bankruptcy Court, W.D. New York. September 26, 2008. Thomas D. Williams, Murray and Williams, Batavia, NY, for Debtor.
OPINION AND ORDER MICHAEL J. KAPLAN, Bankruptcy Judge. The question presented to the Court is whether a debtor who owns a two-family home may claim a homestead exemption in the entire home despite the fact that she rents out one half and lives in the other half.[1] In various parts of the country such homes might be referred to as duplexes, doubles, or simply two-family homes. Some, such as the home involved in the case of In re Brizida, 276 B.R. 316 (Bankr. D.Mass., 2002), consist of over and under flats. In this case, the units are side by side, and have been assigned different street addresses by the United States Postal Service, even though there is only one parcel of land for property tax and mortgage purposes. The holder of a judgment lien has objected to the Debtor's claim of exemption, seeking to pre empt a § 522(f) motion that would avoid the judgment lien as to the entire parcel. The complete parcel has a current value of $83,000 and a mortgage of $56,836.68. Given the $50,000 homestead exemption permitted under New York Law, the portion that the Debtor occupies as her residence is clearly exempt. The size of the judgment lien is nearly $68,000. If the claim of exemption on the non-occupied portion is disallowed, the judgment would be unavoidable to the extent of approximately $13,000, to wit, half of the $26,000 equity in the property. The applicable provision of New York Law states: "real property exempt from application to the satisfaction of money judgments [includes] . . . property of one of the following types, not exceeding $50,000 in value above liens and encumbrances, owned and occupied as a principal residence . . . (1) a lot of land with a dwelling thereon, (2) shares of stock in a cooperative apartment corporation, (3) units of a condominium apartment, or (4) a *73 mobile home." [New York C.P.L.R. § 5206(a).] Before addressing informative case law on the issue at hand, it is important to note that in August of 2005 the State of New York increased the homestead exemption from $10,000 to $50,000 per owner. Consequently, the "amount in controversy" in such a dispute was far less prior to that date, from a debtor's point of view. With that in mind, we examine the first of the cases cited by the judgment creditor. That is the case of In re Hager, 74 B.R. 198 (Bankr.N.D.N.Y., 1987). In that case, the debtor's home contained a designated portion for business purposes. He was a chiropractor and also a part-time Baptist Minister. One of the questions presented to the Court was the question of whether "the property was used as Debtors' principal residence." The Court stated that "the property was used by Debtor as his principal residence, at the time of his filing, there being no evidence presented . . . supporting a contrary claim. However, it is likewise true that Debtor specifically designed the building to serve not only as his home, but also as the situs for the transaction of his business." The Court prorated the square footage of the building, and the equity therein, and concluded that 13.08% of the building's total square footage had a primarily a business purpose, not entitled to exemption. Thus, the judgment creditor's lien was held to be valid to the extent of $1,250.98. (13.08% of the otherwise exempt equity.) The judgment creditor appealed the decision on several unrelated grounds, but the Bankruptcy Court's decision was affirmed. The Debtor did not cross appeal over the fact that his exemption had been reduced by $1250.98. In re Hager, 90 B.R. 584 (N.D.N.Y.1988). The next case cited by the judgment creditor is In re Mastowski, 135 B.R. 1 (Bankr.W.D.N.Y.1992), in which my former colleague, the late Hon. Judge Edward D. Hayes, allowed the Debtor to exempt the entire of a four-unit property, of which the Debtor rented out three units. On appeal, the United States District Court of this district purportedly reversed the Bankruptcy Court decision, the basis of the District Court decision in In re Hager.[2] Other cases cited by the judgment creditor do not address the multi-unit issue.
DISCUSSION Firstly, as to the Hager decision, it is not at all clear that the debtor in that case opposed a prorating of the exemption claim. There is nothing in either the Bankruptcy Court's decision or the District Court's decision to suggest that he did. Rather, it is possible that when the allowable exemption was only $10,000, the debtor had no meaningful incentive to argue the issue, and instead simply permitted the Bankruptcy Court to decide the percentage to be applied in computing the reduction. After all, the outcome was that the judgment lien would be allowed in the amount of only $1250. Assuming, however, that the Debtor did vigorously oppose such a reduction, the decision of the District Court in the Northern District of New York is not binding on this Court. *74 Secondly, the judgment creditor in this case argues that the decision of the District Court of this district (Mastowski), in relying on the District Court decision in Hager, has bound this Court. There is no doubt that this Court is among the substantial minority of bankruptcy courts that believe that the ruling of a single district judge binds all bankruptcy judges in the district until a different district judge of the same district rules the other way. (See F.C.C. National Bank v. Reid (In re Reid), 237 B.R. 577 (Bankr.W.D.N.Y. 1999)); Irr Supply Centers, Inc. v. Phipps (In re Phipps), 217 B.R. 427 (Bankr. W.D.N.Y.1998), and the Law Review article by H. Michael Muniz, Anarchy or Anglo-American Jurisprudence, 76-Dec. Fla. B.J. (2002) However, as explained in Reid and Phipps, the binding effect of the decision of a district judge of this district upon all bankruptcy judges of this district depends on whether the district judge published the decision. The rationale for that proviso, first articulated by this writer in the case of In re Phipps, was the fact that a bankruptcy judge cannot presume to know the holding of a district court judge of this district if the district judge's holding has not been published. Today, this writer extends the rationale on the basis of his own experience in making the choice regarding whether to publish or not to publish a decision. The reasons that judges (or at least this writer) might choose not to publish a decision are numerous. They include a judge's belief that a holding contributes nothing to scholarship on the issue at the Bar, but rather simply adopts well-established law; the fact that time pressures upon the judge, in some cases, preclude the type of thorough exposition of the case that would make its full meaning understandable as a precedent; and (most importantly for present purposes) uncertainty as to whether the quality of advocacy in the case is such as to cause the judge to be sure that it should have precedential value. This last point permits the very same judge to reach a different conclusion where better arguments have been presented.[3] Consequently, this writer does not believe this Court to be bound by the decision of the district judge in the Mastowski case. The Court today rules that a debtor who owns a two-family home, and occupies half of it as her homestead, renting out the other half, may exempt the entire property.[4] The Court so rules for a number of reasons. First, as explained in the case of In re Brunson, 201 B.R. 351 (Bankr.W.D.N.Y.1996), there are some localities (Buffalo, New York, and its near suburbs included) in which the dream of home ownership can only be realized by people who are willing to purchase a double: the rental income for the second unit is the only thing that makes ownership affordable for the purchaser. This is not speculation. It is a fact known to this writer as a former real estate practitioner *75 and as a friend or acquaintance of a number of people who got their start in home ownership in just such a way. A substantial (perhaps unique) percentage of Buffalo-area homes are free-standing, side-by-side doubles, compared to other urban areas. Secondly, at least one other bankruptcy court has properly analyzed the New York State Homestead Exemption and comparable homestead exemptions in other jurisdictions. Thus, for example, the Bankruptcy Court for the Eastern District of New York stated in the case of In re Vizentinis, 175 B.R. 824 (Bankr.E.D.N.Y. 1994) that that debtor was properly entitled to exempt a building with four apartments (and four different post office addresses), where she occupied one as her principal residence.[5] In that case, the Court characterized the judgment creditor's argument as one which would read into the language of New York C.P.L.R. § 5206, a word that does not there exist. Again, the statute states "owned and occupied as a principal residence." The argument of the judgment creditor there and here asks that the court pretend that the statute reads "owned and exclusively occupied as a principal residence," or "owned and occupied exclusively as a principal residence." The court in that case stated "we perceive neither need nor authority to so rewrite the statute." That court went further by examining some of the complications of such a contrived reading. Though not entirely clear, it appears that the four-family dwelling at issue there was one in which the four apartments shared a common entrance, etc., unlike the case presently at bar, and the court rhetorically asked how the judgment creditor would execute upon the three units as to which it would seek lien enforcement. "How, for instance, would a purchaser obtain access to units without direct access to the exterior. Would such purchaser obtain title to the attic, hallways and basement? Who would supply heat to the building; if the purchaser, [then] what would be the debtor's obligation to share in its cost. Under such circumstances, the likelihood of anyone purchasing at an execution sale of one or more of those [non-exempt] units would be so remote as to create for the debtor a de facto exemption in the entire premises."[6] Here, the Court presumes that each of the two units has a separate entrance, and the Court will even presume (without knowing) that each of the two units is self-sufficient as to heat, plumbing, electricity, etc.[7] In Buffalo, New York and its environs, thousands of "doubles" are not "row houses." But for the existence of separate entryways, they would be indistinguishable from single family homes sitting on landscaped lots, and with a single driveway (with a variety of arrangements for sharing parking privileges, including the shifting *76 around of vehicles in the driveway as among the owner and the tenant.) Consequently, the Vizentinis court's observation that the requested interpretation of the exemption "would constitute the creation of a de facto condominium" is as applicable to the case of side-by-side units (in many instances) as it was to a case in which the four units shared a common entrance, hallways, etc. If the judgment creditor were permitted to execute on the rental unit, by what mechanism would there be created shared responsibility for a common roof or foundation, the surrounding yard, a single-wide driveway (some of the local communities do not permit overnight on-street parking some of the time, or during snow emergencies) or metering if the water, heat, or electricity have not previously been separated? Additionally, many doubles in the Buffalo area offer in-ground or aboveground swimming pools which the tenant is permitted to share. By what mechanism in a judgment lien foreclosure sale is that matter to be addressed, including the property tax attributes thereof?[8] To be sure, some "doubles" do not present some, or any, of these problems. But it does not seem to this Court that there should be a dispositive difference between an inner-city double with no grass or pool as opposed to a suburban double possessed of all of the problems that the Court has described. Not only could such a dispositive difference be discriminatory in Buffalo, where inner-city property is usually less valuable than suburban property and is owned by people of lesser means, it would also belie the overriding consideration, expressed above, that for a great number of people in this community, home ownership, a "homestead," is available only to those who will enjoy the rental income that the double provides.[9] This Court leaves to another day the type of situation presented in the case of In re Mirulla, 163 B.R. 910 (Bankr.D.N.H. 1994), in which the Debtor lived in a motel that he owned, and occupied only five of thirty-two motel units as his homestead.
CONCLUSION The judgment lienor's objection to the Debtor's claim of exemption is overruled. The exemption will be allowed as to the entire property. SO ORDERED. NOTES [1] See the excellent, thorough discussion of a similar issue in In re Springmann, 328 B.R. 251(Bankr.D.Dist.Col.), wherein Judge Teel examines the homestead law of numerous states. [2] The judgment creditor's motion in this case states that the District Court of this district modified the Bankruptcy Court decision of this district "by upholding the Order granting an exemption in the rest of the equity." This Court takes that to be a typographical error, and believes that the judgment creditor intended to state that the decision was reversed, not upheld, based on what this Court has heard at oral argument. [3] See, for example, this writer's change of position regarding the exemptibility of a certain type of deferred compensation plan. Having rejected the claim of exemption in the case of In re Johnson, 254 B.R. 786 (Bankr. W.D.N.Y.2000), this writer found that new arguments presented in an identical situation were persuasive whereas the earlier arguments were not. In re Maurer, 268 B.R. 335 (Bankr.W.D.N.Y.2001). [4] Although the Springmann Court would reach the contrary conclusion (based on dictum expressed by that Court), the Washington, D.C. homestead statute differs from that of New York in that there is no dollar amount on the exemption therea fact which Judge Teel emphasized in expressing the dictum. [5] As noted below, this Court leaves to another day the question of whether this Court would extend its holding todayinvolving a two-family dwellingto a building consisting of three or more dwelling units. [6] Though the present Court acknowledges that such issues can be addressed (by easements, etc.) in an action for Partition under New York law, it is not so clear that a judgment lien creditor who forecloses the judgment lien may petition for partition. [7] These presumptions might be directly contrary to fact. In some cases that have come before the Court, doubles were created from single family homes, and the two units share a heating system, plumbing, and other systems; they might not even have separate metering where the cost of utilities is included in the tenant's rent. [8] See also In re McCambry, 327 B.R. 469 (Bankr.D. Kan. 2005), where the same or similar factors led to the same conclusion under Kansas Law. [9] To the extent, if any, that one might argue that there is always a single family dwelling available in the inner city that is as affordable to a buyer as a double in a suburb, see this Court's discussion in In re LaSota, 351 B.R. 56 (Bankr.W.D.N.Y.2006), and Elizabeth Warren and Amelia Warren Tyagi, "The Two Income Trap: Why Middle-Class Mothers and Fathers Are Going Broke." (Basic Books 2003), explaining, among other things, the understandable and completely-defensible decision by parents, for example, that making their home within the limits of one school district rather than another, or within their parish, or close to their chosen church school, is a moral imperative in the rearing of their children. | 10-30-2013 | [
"415 B.R. 72 (2008) In re Kelly RUPP, Debtor. No. 08-12279 K. United States Bankruptcy Court, W.D. New York. September 26, 2008. Thomas D. Williams, Murray and Williams, Batavia, NY, for Debtor. OPINION AND ORDER MICHAEL J. KAPLAN, Bankruptcy Judge. The question presented to the Court is whether a debtor who owns a two-family home may claim a homestead exemption in the entire home despite the fact that she rents out one half and lives in the other half.",
"[1] In various parts of the country such homes might be referred to as duplexes, doubles, or simply two-family homes. Some, such as the home involved in the case of In re Brizida, 276 B.R. 316 (Bankr. D.Mass., 2002), consist of over and under flats. In this case, the units are side by side, and have been assigned different street addresses by the United States Postal Service, even though there is only one parcel of land for property tax and mortgage purposes. The holder of a judgment lien has objected to the Debtor's claim of exemption, seeking to pre empt a § 522(f) motion that would avoid the judgment lien as to the entire parcel. The complete parcel has a current value of $83,000 and a mortgage of $56,836.68. Given the $50,000 homestead exemption permitted under New York Law, the portion that the Debtor occupies as her residence is clearly exempt. The size of the judgment lien is nearly $68,000.",
"If the claim of exemption on the non-occupied portion is disallowed, the judgment would be unavoidable to the extent of approximately $13,000, to wit, half of the $26,000 equity in the property. The applicable provision of New York Law states: \"real property exempt from application to the satisfaction of money judgments [includes] . . . property of one of the following types, not exceeding $50,000 in value above liens and encumbrances, owned and occupied as a principal residence .",
". . (1) a lot of land with a dwelling thereon, (2) shares of stock in a cooperative apartment corporation, (3) units of a condominium apartment, or (4) a *73 mobile home.\" [New York C.P.L.R. § 5206(a).] Before addressing informative case law on the issue at hand, it is important to note that in August of 2005 the State of New York increased the homestead exemption from $10,000 to $50,000 per owner. Consequently, the \"amount in controversy\" in such a dispute was far less prior to that date, from a debtor's point of view. With that in mind, we examine the first of the cases cited by the judgment creditor.",
"That is the case of In re Hager, 74 B.R. 198 (Bankr.N.D.N.Y., 1987). In that case, the debtor's home contained a designated portion for business purposes. He was a chiropractor and also a part-time Baptist Minister. One of the questions presented to the Court was the question of whether \"the property was used as Debtors' principal residence.\" The Court stated that \"the property was used by Debtor as his principal residence, at the time of his filing, there being no evidence presented . .",
". supporting a contrary claim. However, it is likewise true that Debtor specifically designed the building to serve not only as his home, but also as the situs for the transaction of his business.\" The Court prorated the square footage of the building, and the equity therein, and concluded that 13.08% of the building's total square footage had a primarily a business purpose, not entitled to exemption. Thus, the judgment creditor's lien was held to be valid to the extent of $1,250.98. (13.08% of the otherwise exempt equity.) The judgment creditor appealed the decision on several unrelated grounds, but the Bankruptcy Court's decision was affirmed. The Debtor did not cross appeal over the fact that his exemption had been reduced by $1250.98. In re Hager, 90 B.R. 584 (N.D.N.Y.1988).",
"The next case cited by the judgment creditor is In re Mastowski, 135 B.R. 1 (Bankr.W.D.N.Y.1992), in which my former colleague, the late Hon. Judge Edward D. Hayes, allowed the Debtor to exempt the entire of a four-unit property, of which the Debtor rented out three units. On appeal, the United States District Court of this district purportedly reversed the Bankruptcy Court decision, the basis of the District Court decision in In re Hager. [2] Other cases cited by the judgment creditor do not address the multi-unit issue. DISCUSSION Firstly, as to the Hager decision, it is not at all clear that the debtor in that case opposed a prorating of the exemption claim. There is nothing in either the Bankruptcy Court's decision or the District Court's decision to suggest that he did. Rather, it is possible that when the allowable exemption was only $10,000, the debtor had no meaningful incentive to argue the issue, and instead simply permitted the Bankruptcy Court to decide the percentage to be applied in computing the reduction.",
"After all, the outcome was that the judgment lien would be allowed in the amount of only $1250. Assuming, however, that the Debtor did vigorously oppose such a reduction, the decision of the District Court in the Northern District of New York is not binding on this Court. *74 Secondly, the judgment creditor in this case argues that the decision of the District Court of this district (Mastowski), in relying on the District Court decision in Hager, has bound this Court. There is no doubt that this Court is among the substantial minority of bankruptcy courts that believe that the ruling of a single district judge binds all bankruptcy judges in the district until a different district judge of the same district rules the other way. (See F.C.C. National Bank v. Reid (In re Reid), 237 B.R. 577 (Bankr.W.D.N.Y. 1999)); Irr Supply Centers, Inc. v. Phipps (In re Phipps), 217 B.R. 427 (Bankr. W.D.N.Y.1998), and the Law Review article by H. Michael Muniz, Anarchy or Anglo-American Jurisprudence, 76-Dec. Fla. B.J. (2002) However, as explained in Reid and Phipps, the binding effect of the decision of a district judge of this district upon all bankruptcy judges of this district depends on whether the district judge published the decision. The rationale for that proviso, first articulated by this writer in the case of In re Phipps, was the fact that a bankruptcy judge cannot presume to know the holding of a district court judge of this district if the district judge's holding has not been published. Today, this writer extends the rationale on the basis of his own experience in making the choice regarding whether to publish or not to publish a decision.",
"The reasons that judges (or at least this writer) might choose not to publish a decision are numerous. They include a judge's belief that a holding contributes nothing to scholarship on the issue at the Bar, but rather simply adopts well-established law; the fact that time pressures upon the judge, in some cases, preclude the type of thorough exposition of the case that would make its full meaning understandable as a precedent; and (most importantly for present purposes) uncertainty as to whether the quality of advocacy in the case is such as to cause the judge to be sure that it should have precedential value. This last point permits the very same judge to reach a different conclusion where better arguments have been presented.",
"[3] Consequently, this writer does not believe this Court to be bound by the decision of the district judge in the Mastowski case. The Court today rules that a debtor who owns a two-family home, and occupies half of it as her homestead, renting out the other half, may exempt the entire property. [4] The Court so rules for a number of reasons. First, as explained in the case of In re Brunson, 201 B.R. 351 (Bankr.W.D.N.Y.1996), there are some localities (Buffalo, New York, and its near suburbs included) in which the dream of home ownership can only be realized by people who are willing to purchase a double: the rental income for the second unit is the only thing that makes ownership affordable for the purchaser. This is not speculation. It is a fact known to this writer as a former real estate practitioner *75 and as a friend or acquaintance of a number of people who got their start in home ownership in just such a way. A substantial (perhaps unique) percentage of Buffalo-area homes are free-standing, side-by-side doubles, compared to other urban areas.",
"Secondly, at least one other bankruptcy court has properly analyzed the New York State Homestead Exemption and comparable homestead exemptions in other jurisdictions. Thus, for example, the Bankruptcy Court for the Eastern District of New York stated in the case of In re Vizentinis, 175 B.R. 824 (Bankr.E.D.N.Y. 1994) that that debtor was properly entitled to exempt a building with four apartments (and four different post office addresses), where she occupied one as her principal residence.",
"[5] In that case, the Court characterized the judgment creditor's argument as one which would read into the language of New York C.P.L.R. § 5206, a word that does not there exist. Again, the statute states \"owned and occupied as a principal residence.\" The argument of the judgment creditor there and here asks that the court pretend that the statute reads \"owned and exclusively occupied as a principal residence,\" or \"owned and occupied exclusively as a principal residence.\" The court in that case stated \"we perceive neither need nor authority to so rewrite the statute.\" That court went further by examining some of the complications of such a contrived reading.",
"Though not entirely clear, it appears that the four-family dwelling at issue there was one in which the four apartments shared a common entrance, etc., unlike the case presently at bar, and the court rhetorically asked how the judgment creditor would execute upon the three units as to which it would seek lien enforcement. \"How, for instance, would a purchaser obtain access to units without direct access to the exterior. Would such purchaser obtain title to the attic, hallways and basement? Who would supply heat to the building; if the purchaser, [then] what would be the debtor's obligation to share in its cost.",
"Under such circumstances, the likelihood of anyone purchasing at an execution sale of one or more of those [non-exempt] units would be so remote as to create for the debtor a de facto exemption in the entire premises. \"[6] Here, the Court presumes that each of the two units has a separate entrance, and the Court will even presume (without knowing) that each of the two units is self-sufficient as to heat, plumbing, electricity, etc. [7] In Buffalo, New York and its environs, thousands of \"doubles\" are not \"row houses.\" But for the existence of separate entryways, they would be indistinguishable from single family homes sitting on landscaped lots, and with a single driveway (with a variety of arrangements for sharing parking privileges, including the shifting *76 around of vehicles in the driveway as among the owner and the tenant.) Consequently, the Vizentinis court's observation that the requested interpretation of the exemption \"would constitute the creation of a de facto condominium\" is as applicable to the case of side-by-side units (in many instances) as it was to a case in which the four units shared a common entrance, hallways, etc. If the judgment creditor were permitted to execute on the rental unit, by what mechanism would there be created shared responsibility for a common roof or foundation, the surrounding yard, a single-wide driveway (some of the local communities do not permit overnight on-street parking some of the time, or during snow emergencies) or metering if the water, heat, or electricity have not previously been separated?",
"Additionally, many doubles in the Buffalo area offer in-ground or aboveground swimming pools which the tenant is permitted to share. By what mechanism in a judgment lien foreclosure sale is that matter to be addressed, including the property tax attributes thereof? [8] To be sure, some \"doubles\" do not present some, or any, of these problems. But it does not seem to this Court that there should be a dispositive difference between an inner-city double with no grass or pool as opposed to a suburban double possessed of all of the problems that the Court has described. Not only could such a dispositive difference be discriminatory in Buffalo, where inner-city property is usually less valuable than suburban property and is owned by people of lesser means, it would also belie the overriding consideration, expressed above, that for a great number of people in this community, home ownership, a \"homestead,\" is available only to those who will enjoy the rental income that the double provides.",
"[9] This Court leaves to another day the type of situation presented in the case of In re Mirulla, 163 B.R. 910 (Bankr.D.N.H. 1994), in which the Debtor lived in a motel that he owned, and occupied only five of thirty-two motel units as his homestead. CONCLUSION The judgment lienor's objection to the Debtor's claim of exemption is overruled. The exemption will be allowed as to the entire property. SO ORDERED. NOTES [1] See the excellent, thorough discussion of a similar issue in In re Springmann, 328 B.R. 251(Bankr.D.Dist.Col. ), wherein Judge Teel examines the homestead law of numerous states. [2] The judgment creditor's motion in this case states that the District Court of this district modified the Bankruptcy Court decision of this district \"by upholding the Order granting an exemption in the rest of the equity.\" This Court takes that to be a typographical error, and believes that the judgment creditor intended to state that the decision was reversed, not upheld, based on what this Court has heard at oral argument. [3] See, for example, this writer's change of position regarding the exemptibility of a certain type of deferred compensation plan. Having rejected the claim of exemption in the case of In re Johnson, 254 B.R.",
"786 (Bankr. W.D.N.Y.2000), this writer found that new arguments presented in an identical situation were persuasive whereas the earlier arguments were not. In re Maurer, 268 B.R. 335 (Bankr.W.D.N.Y.2001). [4] Although the Springmann Court would reach the contrary conclusion (based on dictum expressed by that Court), the Washington, D.C. homestead statute differs from that of New York in that there is no dollar amount on the exemption therea fact which Judge Teel emphasized in expressing the dictum. [5] As noted below, this Court leaves to another day the question of whether this Court would extend its holding todayinvolving a two-family dwellingto a building consisting of three or more dwelling units. [6] Though the present Court acknowledges that such issues can be addressed (by easements, etc.) in an action for Partition under New York law, it is not so clear that a judgment lien creditor who forecloses the judgment lien may petition for partition.",
"[7] These presumptions might be directly contrary to fact. In some cases that have come before the Court, doubles were created from single family homes, and the two units share a heating system, plumbing, and other systems; they might not even have separate metering where the cost of utilities is included in the tenant's rent. [8] See also In re McCambry, 327 B.R. 469 (Bankr.D. Kan. 2005), where the same or similar factors led to the same conclusion under Kansas Law. [9] To the extent, if any, that one might argue that there is always a single family dwelling available in the inner city that is as affordable to a buyer as a double in a suburb, see this Court's discussion in In re LaSota, 351 B.R. 56 (Bankr.W.D.N.Y.2006), and Elizabeth Warren and Amelia Warren Tyagi, \"The Two Income Trap: Why Middle-Class Mothers and Fathers Are Going Broke.\" (Basic Books 2003), explaining, among other things, the understandable and completely-defensible decision by parents, for example, that making their home within the limits of one school district rather than another, or within their parish, or close to their chosen church school, is a moral imperative in the rearing of their children."
]
| https://www.courtlistener.com/api/rest/v3/opinions/1534289/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Exhibit 10.1
RELEASE AND SETTLEMENT AGREEMENT AND AMENDMENT TO CONTRACT This Settlement and Release Agreement and Amendment to Contract (“Amendment”) is entered into and effective on May 20, 2010, by and between SCS Corporation, a Delaware Corporation, with an office located at 12012 Wickchester, Suite 475, Houston, TX 77079 (“SCS”), which is the wholly-owned subsidiary of Hyperdynamics Corporation (“HDY”), and Geophysical Service Inc., a Canadian Corporation, a service company with an office at 400, 400 5th Avenue S.W., Calgary, AB Canada T2P OL6, (“GSI”). SCS and GSI are sometimes collectively referred to as “Parties”.
WHEREAS, SCS and GSI are parties to a Master Geophysical Data Acquisition Agreement dated February 13, 2008, as amended by and through the Release and Settlement Agreement between them dated June 27, 2008 (the “MGDA Agreement”); and WHEREAS, the MGDA Agreement provided for seismic services by GSI in the Contract Area under the Hydrocarbon Production Sharing Contract (“PSC”) dated September 22, 2006 between SCS, as Contractor, and the Republic of Guinea (“Government” or “Guinea”), such Contract Area located offshore Guinea; and the PSC is subject to a Memorandum of Understanding dated September 14, 2009 between SCS and the Government (“MOU”) that requires, among other things, for SCS and the Government to review and amend or clarify, if necessary, the PSC to ensure that it is consistent with terms similar to other international oil and gas production sharing agreements and requires that such review is completed no later than March 11, 2010 or such later time as agreed by the Parties (“PSC Amendment”); and WHEREAS, SCS has assigned a partial participating interest as Contractor under the PSC to Dana Petroleum (E&P) Limited, of Aberdeen, Scotland (“Dana”) or a designated affiliate of Dana under the terms of a Sales and Purchase Agreement (“Dana SPA”) which calls for a payment of a total of Nineteen Million and Five Hundred Thousand Dollars US ($19,500,000) by Dana (“Dana Payment”) upon the execution and entry into full legal effect of any amendment that results from the review under the MOU; and, under the terms of the Dana SPA, Dana may, in its discretion, pay up to Fourteen Million and Five Hundred Thousand Dollars U.S. ($14,500,000) of the Dana Payment in ordinary shares of UK£0.15 each of Dana Petroleum plc (“Dana Stock”); and WHEREAS, a dispute has arisen between the Parties concerning the MGDA Agreement; and WHEREAS, the Parties wish to amicably resolve this dispute between them and amicably terminate the MGDA Agreement on mutually acceptable terms and conditions and in light of the contingencies set forth below. NOW THEREFORE, in consideration of the mutual covenants and promises set forth in this Amendment, the Parties agree as follows: 1. Conditions. Upon the occurrence of both (1) the execution and entry into full legal effectiveness of any amendment to the PSC that results from the review called for under the MOU and (2) Dana’s payment (whether in cash or stock) of the Nineteen Million and Five Hundred Thousand Dollars US ($19,500,000) pursuant to the Dana SPA, then the Parties shall perform and carry out the following. 2. Payments by SCS to GSI. On or before May 25, 2010, SCS shall pay to GSI $3,000,000.00. Unless stated otherwise, all dollar amounts shall be in U.S. dollars and payments to be made by SCS to GSI shall be valued in U.S. dollars. 3. Termination of MGDA Agreement. Upon SCS’s full payment of the cash amount set forth in and under Paragraph 2 above, the MGDA Agreement shall be terminated and of no force and effect. Specifically, the Parties recognize, acknowledge and agree that any interest that GSI would otherwise maintain in the seismic data generated or delivered under the MGDA Agreement, in whatever form and in whatever manner recorded or stored or delivered to others, including the revenue interest provided under the MGDA Agreement and any rights to market the seismic data, is terminated, released and relinquished for all purposes by GSI. For all purposes, this termination, release and relinquishment shall also be subject to the provisions for the release by GSI of any and all of its claims, rights, causes of action as provided elsewhere in this Amendment. 4. No Admission. This Amendment is not an admission of liability or wrongdoing by either Party, but is entered into solely in order to amicably resolve the dispute. 5. Full Release by GSI. Upon GSI’s receipt of SCS’s full payment of the cash amount set forth in and under Paragraph 2 above, GSI hereby releases, relinquishes, indemnifies, holds harmless and protects HDY, its affiliates, officers and directors, employees, agents, attorneys and all other persons, natural and otherwise, associated or affiliated with it, past and present, from any and all claims, causes of actions, disputes and disagreements, whether now known or which should have been known through reasonable inquiry and due diligence, including those claims, assertions, allegations and causes of action arising from or related to the invoice for services delivered by GSI to SCS on or about November 17, 2009. This release, relinquishment, indemnification and protection expressly extends to and includes any and all rights and any claims, causes of action, disputes and disagreements arising from any and all rights held, owned or asserted by GSI under the MGDA Agreement, including the revenue interest or marketing rights set forth therein. 6. Full Release by SCS. Upon GSI’s receipt of SCS’s full payment of the cash amount set forth in and under Paragraph 2 above, SCS hereby releases, relinquishes, indemnifies, holds harmless and protects GSI, its affiliates, officers and directors, employees, agents, attorneys and all other persons, natural and otherwise, associated or affiliated with it, past and present, from any and all claims, causes of actions, disputes and disagreements, whether now known or which should have been known through reasonable inquiry and due diligence, including those claims, assertions, allegations and causes of action arising from or related to the services delivered by GSI to SCS through or under the MGDA Agreement. This release, relinquishment, indemnification and protection expressly extends to and includes any and all rights and any claims, causes of action, disputes and disagreements arising from any and all rights held, owned or asserted by SCS under the MGDA Agreement, including the revenue interest or marketing rights set forth therein. 7. Governing Law. This Amendment shall be governed by the laws of the State of Texas, and the Parties hereby mutually agree to and submit, for the purposes of enforcing this Amendment or resolving any dispute under it, to the courts of competent jurisdiction within the State of Texas; provided, however, that this Paragraph 7 shall be of no force and effect should either or both of the conditions set forth in Paragraph 1 above fail to occur before May 20, 2010, or such date as the Parties shall agree to in order to reasonably accomplish the conditions described in Paragraph 1, in which event the governing law, applicable jurisdiction, and choice of forum provisions shall be as set out in the MGDA Agreement as provided in Paragraph 11 below. 8. Survival of Certain Terms. Terms and provisions necessary to carry out the purposes of this Amendment shall survive the execution of this Amendment. 9. Obligation to execute documents and take actions to carry out Amendment. Both Parties shall take all actions, including execution of subsequent documents, and any and all other actions necessary to carry out the purposes of this Amendment. 10. Amendment in Writing; Entireties clause. Subject to complete fulfillment of the conditions set out in Paragraph 1 and to the terms of Paragraph 11 below, this Amendment constitutes the entire agreement between the Parties and supersedes and supplants any other agreement, discussion and negotiation between them. This Amendment may only be modified in writing signed by or on behalf of both Parties. 11. Failure of Conditions on Resolution of Dispute. Notwithstanding anything in this Amendment to the contrary, should either or both of the conditions set forth in Paragraph 1 above fail to occur before May 20, 2010, or such date as the Parties shall agree to in order to reasonably accomplish the conditions described in Paragraph 1, both Parties agree that the Parties shall continue to attempt to resolve their disputes in a reasonable time and manner, but they shall maintain their respective rights, duties and obligations under the MGDA Agreement, which shall remain in effect, and may pursue all rights and remedies provided by law. In these circumstances, it is also expressly recognized that this Amendment shall be considered as settlement discussions under Rule 408 of the Federal Rules of Evidence and the Texas Rules of Evidence in any subsequent proceeding, litigation, or arbitration. [SIGNATURE PAGES FOLLOW]
--------------------------------------------------------------------------------
12. EXECUTED this 20th day of May 2010. SCS CORPORATION By: /s/ Ray Leonard _______________ Ray Leonard President and Chief Executive Officer
GEOPHYSICAL SERVICE INC.
By: /s/ Paul Einarrson _____________ Paul Einarrson Chairman and Chief Operating Officer
-------------------------------------------------------------------------------- | [
"Exhibit 10.1 RELEASE AND SETTLEMENT AGREEMENT AND AMENDMENT TO CONTRACT This Settlement and Release Agreement and Amendment to Contract (“Amendment”) is entered into and effective on May 20, 2010, by and between SCS Corporation, a Delaware Corporation, with an office located at 12012 Wickchester, Suite 475, Houston, TX 77079 (“SCS”), which is the wholly-owned subsidiary of Hyperdynamics Corporation (“HDY”), and Geophysical Service Inc., a Canadian Corporation, a service company with an office at 400, 400 5th Avenue S.W., Calgary, AB Canada T2P OL6, (“GSI”). SCS and GSI are sometimes collectively referred to as “Parties”.",
"WHEREAS, SCS and GSI are parties to a Master Geophysical Data Acquisition Agreement dated February 13, 2008, as amended by and through the Release and Settlement Agreement between them dated June 27, 2008 (the “MGDA Agreement”); and WHEREAS, the MGDA Agreement provided for seismic services by GSI in the Contract Area under the Hydrocarbon Production Sharing Contract (“PSC”) dated September 22, 2006 between SCS, as Contractor, and the Republic of Guinea (“Government” or “Guinea”), such Contract Area located offshore Guinea; and the PSC is subject to a Memorandum of Understanding dated September 14, 2009 between SCS and the Government (“MOU”) that requires, among other things, for SCS and the Government to review and amend or clarify, if necessary, the PSC to ensure that it is consistent with terms similar to other international oil and gas production sharing agreements and requires that such review is completed no later than March 11, 2010 or such later time as agreed by the Parties (“PSC Amendment”); and WHEREAS, SCS has assigned a partial participating interest as Contractor under the PSC to Dana Petroleum (E&P) Limited, of Aberdeen, Scotland (“Dana”) or a designated affiliate of Dana under the terms of a Sales and Purchase Agreement (“Dana SPA”) which calls for a payment of a total of Nineteen Million and Five Hundred Thousand Dollars US ($19,500,000) by Dana (“Dana Payment”) upon the execution and entry into full legal effect of any amendment that results from the review under the MOU; and, under the terms of the Dana SPA, Dana may, in its discretion, pay up to Fourteen Million and Five Hundred Thousand Dollars U.S. ($14,500,000) of the Dana Payment in ordinary shares of UK£0.15 each of Dana Petroleum plc (“Dana Stock”); and WHEREAS, a dispute has arisen between the Parties concerning the MGDA Agreement; and WHEREAS, the Parties wish to amicably resolve this dispute between them and amicably terminate the MGDA Agreement on mutually acceptable terms and conditions and in light of the contingencies set forth below. NOW THEREFORE, in consideration of the mutual covenants and promises set forth in this Amendment, the Parties agree as follows: 1. Conditions.",
"Upon the occurrence of both (1) the execution and entry into full legal effectiveness of any amendment to the PSC that results from the review called for under the MOU and (2) Dana’s payment (whether in cash or stock) of the Nineteen Million and Five Hundred Thousand Dollars US ($19,500,000) pursuant to the Dana SPA, then the Parties shall perform and carry out the following. 2. Payments by SCS to GSI. On or before May 25, 2010, SCS shall pay to GSI $3,000,000.00. Unless stated otherwise, all dollar amounts shall be in U.S. dollars and payments to be made by SCS to GSI shall be valued in U.S. dollars.",
"3. Termination of MGDA Agreement. Upon SCS’s full payment of the cash amount set forth in and under Paragraph 2 above, the MGDA Agreement shall be terminated and of no force and effect. Specifically, the Parties recognize, acknowledge and agree that any interest that GSI would otherwise maintain in the seismic data generated or delivered under the MGDA Agreement, in whatever form and in whatever manner recorded or stored or delivered to others, including the revenue interest provided under the MGDA Agreement and any rights to market the seismic data, is terminated, released and relinquished for all purposes by GSI. For all purposes, this termination, release and relinquishment shall also be subject to the provisions for the release by GSI of any and all of its claims, rights, causes of action as provided elsewhere in this Amendment.",
"4. No Admission. This Amendment is not an admission of liability or wrongdoing by either Party, but is entered into solely in order to amicably resolve the dispute. 5. Full Release by GSI. Upon GSI’s receipt of SCS’s full payment of the cash amount set forth in and under Paragraph 2 above, GSI hereby releases, relinquishes, indemnifies, holds harmless and protects HDY, its affiliates, officers and directors, employees, agents, attorneys and all other persons, natural and otherwise, associated or affiliated with it, past and present, from any and all claims, causes of actions, disputes and disagreements, whether now known or which should have been known through reasonable inquiry and due diligence, including those claims, assertions, allegations and causes of action arising from or related to the invoice for services delivered by GSI to SCS on or about November 17, 2009. This release, relinquishment, indemnification and protection expressly extends to and includes any and all rights and any claims, causes of action, disputes and disagreements arising from any and all rights held, owned or asserted by GSI under the MGDA Agreement, including the revenue interest or marketing rights set forth therein. 6. Full Release by SCS.",
"Upon GSI’s receipt of SCS’s full payment of the cash amount set forth in and under Paragraph 2 above, SCS hereby releases, relinquishes, indemnifies, holds harmless and protects GSI, its affiliates, officers and directors, employees, agents, attorneys and all other persons, natural and otherwise, associated or affiliated with it, past and present, from any and all claims, causes of actions, disputes and disagreements, whether now known or which should have been known through reasonable inquiry and due diligence, including those claims, assertions, allegations and causes of action arising from or related to the services delivered by GSI to SCS through or under the MGDA Agreement. This release, relinquishment, indemnification and protection expressly extends to and includes any and all rights and any claims, causes of action, disputes and disagreements arising from any and all rights held, owned or asserted by SCS under the MGDA Agreement, including the revenue interest or marketing rights set forth therein.",
"7. Governing Law. This Amendment shall be governed by the laws of the State of Texas, and the Parties hereby mutually agree to and submit, for the purposes of enforcing this Amendment or resolving any dispute under it, to the courts of competent jurisdiction within the State of Texas; provided, however, that this Paragraph 7 shall be of no force and effect should either or both of the conditions set forth in Paragraph 1 above fail to occur before May 20, 2010, or such date as the Parties shall agree to in order to reasonably accomplish the conditions described in Paragraph 1, in which event the governing law, applicable jurisdiction, and choice of forum provisions shall be as set out in the MGDA Agreement as provided in Paragraph 11 below.",
"8. Survival of Certain Terms. Terms and provisions necessary to carry out the purposes of this Amendment shall survive the execution of this Amendment. 9. Obligation to execute documents and take actions to carry out Amendment. Both Parties shall take all actions, including execution of subsequent documents, and any and all other actions necessary to carry out the purposes of this Amendment. 10. Amendment in Writing; Entireties clause. Subject to complete fulfillment of the conditions set out in Paragraph 1 and to the terms of Paragraph 11 below, this Amendment constitutes the entire agreement between the Parties and supersedes and supplants any other agreement, discussion and negotiation between them. This Amendment may only be modified in writing signed by or on behalf of both Parties. 11.",
"Failure of Conditions on Resolution of Dispute. Notwithstanding anything in this Amendment to the contrary, should either or both of the conditions set forth in Paragraph 1 above fail to occur before May 20, 2010, or such date as the Parties shall agree to in order to reasonably accomplish the conditions described in Paragraph 1, both Parties agree that the Parties shall continue to attempt to resolve their disputes in a reasonable time and manner, but they shall maintain their respective rights, duties and obligations under the MGDA Agreement, which shall remain in effect, and may pursue all rights and remedies provided by law. In these circumstances, it is also expressly recognized that this Amendment shall be considered as settlement discussions under Rule 408 of the Federal Rules of Evidence and the Texas Rules of Evidence in any subsequent proceeding, litigation, or arbitration. [SIGNATURE PAGES FOLLOW] -------------------------------------------------------------------------------- 12. EXECUTED this 20th day of May 2010. SCS CORPORATION By: /s/ Ray Leonard _______________ Ray Leonard President and Chief Executive Officer GEOPHYSICAL SERVICE INC. By: /s/ Paul Einarrson _____________ Paul Einarrson Chairman and Chief Operating Officer --------------------------------------------------------------------------------"
]
| https://github.com/TheAtticusProject/cuad | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
|
Citation Nr: 0906855
Decision Date: 02/24/09 Archive Date: 03/03/09
DOCKET NO. 05-07 091 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to service connection for a low back
condition secondary to a service-connected right knee
disability.
2. Entitlement to service connection for a right ankle
condition secondary to a service-connected right knee
disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Erin McGuire, Associate Counsel
INTRODUCTION
The Veteran served on active duty from November 1970 to May
1972.
This matter comes before the Board of Veterans' Appeals
(Board) following a Board remand in March 2008. This matter
was originally on appeal from an August 2004 rating decision
of the Department of Veterans Affairs (VA) Regional Office
(RO) in St. Petersburg, Florida. As discussed further below,
the directives contained in the Board remand have been
satisfied. See Stegall v. West, 11 Vet. App. 268 (1998).
FINDINGS OF FACT
1. The competent medical evidence does not link the
Veteran's low back condition to a service-connected
disability.
2. The competent medical evidence does not link the
Veteran's right ankle condition to a service-connected
disability.
CONCLUSIONS OF LAW
1. A low back condition was not proximately due to or the
result of a service-connected disability. 38 U.S.C.A. § 1110
(West 2002); 38 C.F.R. § 3.310 (2008).
2. A right ankle condition was not proximately due to or the
result of a service-connected disability. 38 U.S.C.A. § 1110
(West 2002); 38 C.F.R. § 3.310 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Veterans Claims Assistance Act of 2000
The Veterans Claims Assistance Act of 2000 (VCAA) imposes
obligations on VA with respect to its duty to notify and
assist a claimant in developing a claim. 38 U.S.C.A. §§
5103, 5103A (West 2002 & Supp. 2008); 38 C.F.R. § 3.159
(2008). Under the VCAA, upon receipt of a complete or
substantially complete application for benefits, VA is
required to notify the veteran and his representative, if
any, of any information and medical or lay evidence necessary
to substantiate the claim. The United States Court of
Appeals for Veterans Claims (Court) has held that these
notice requirements apply to all five elements of a service
connection claim, which include: (1) veteran status; (2)
existence of a disability; (3) a connection between the
veteran's service and the disability; (4) degree of
disability; and (5) effective date of the disability. See
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
VA law and regulations also indicate that part of notifying a
claimant of what is needed to substantiate a claim includes
notification as to what information and evidence VA will seek
to provide and what evidence the claimant is expected to
provide. 38 U.S.C.A. § 5103 (West 2002 & Supp. 2008); 38
C.F.R. § 3.159(a)-(c) (2008). VCAA notice must be provided
to a claimant before the initial unfavorable agency of
original jurisdiction (AOJ) decision on a claim. Pelegrini
v. Principi, 18 Vet. App. 112, 120 (2004).
The scope of VA's duty to assist will depend on the facts and
circumstances of an individual case, but typically, the duty
to assist requires VA to obtain relevant records from federal
agencies, to make reasonable efforts to obtain relevant
records not in the custody of federal agencies, and in
certain circumstances, to provide a medical examination or
obtain a medical opinion. 38 U.S.C.A. § 5103A (West 2002);
38 C.F.R. § 3.159 (2008).
The Board finds that the requirements of the VCAA have been
met and that VA has no further duty prior to Board
adjudication. The RO originally provided VCAA notice to the
Veteran in correspondence dated in July 2004. In that
letter, the RO advised the Veteran of what the evidence must
show to establish entitlement to service-connected
compensation benefits. The RO advised the Veteran of VA's
duties under the VCAA and the delegation of responsibility
between VA and the Veteran in procuring the evidence relevant
to the claim, including which portion of the information and
evidence necessary to substantiate the claim was to be
provided by the Veteran and which portion VA would attempt to
obtain on behalf of the Veteran.
In the July 2004 correspondence, the RO also informed the
Veteran that when service connection is granted, a disability
rating and effective date of the award is assigned. The RO
explained how the disability rating and effective date are
determined. Although the AOJ did not provide fully compliant
notice until after initial adjudication of the claim, it
readjudicated the claim and issued a supplemental statement
of the case in October 2008. The issuance of such notice
followed by a readjudication of the claim remedied any timing
defect with respect to issuance of compliant notice. See
Prickett v. Nicholson, 20 Vet. App. 370, 376-77 (2006). The
Board finds that the RO has satisfied the requirements of
Dingess/Hartman.
In the July 2004 correspondence, the RO did not, however,
notify the Veteran of the elements needed to establish
entitlement to service connection claimed as secondary to a
service-connected disability in compliance with the VCAA.
See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2008);
38 C.F.R. § 3.159 (2008). In its March 2008 decision, the
Board could find no reason to rebut the presumption of
prejudice created by this notice defect. The Board remanded
the case back to the RO for sufficient notice. In April
2008, the Appeals Management Center (AMC) sent the Veteran
notice as to service connection on a secondary basis in
compliance with the Board remand.
Finally, the Board finds that the RO has satisfied VA's duty
to assist. The RO has obtained the Veteran's service
treatment records and medical records from VA medical centers
(VAMCs) in Texas and Florida. The Veteran received VA
orthopedic examinations in August 2004 and November 2005,
reports of which are contained in the claims file. The
Veteran has not made the RO or the Board aware of any other
evidence relevant to his appeal, and no further development
is required to comply with the duty to assist the Veteran in
developing the facts pertinent to his claim. Accordingly,
the Board will proceed with appellate review.
Legal Criteria
Service connection will be granted if it is shown that a
veteran has a disability resulting from an injury or disease
contracted in the line of duty, or for aggravation of a
preexisting injury suffered or disease contracted in active
military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R.
§ 3.303 (2008). Service connection may also 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)
(2008).
Service connection may also be established on a secondary
basis for a disability that is proximately due to or the
result of a service-connected disease or injury. 38 U.S.C.A.
§ 1110 (West 2002); 38 C.F.R. § 3.310(a) (2008).
Establishing service-connection on a secondary basis requires
evidence sufficient to show (1) that a current disability
exists and (2) that the current disability was either (a)
caused by or (b) aggravated by a service-connected
disability. See 38 C.F.R. § 3.310(a) (2008); see also Allen
v. Brown, 7 Vet. App. 439, 448 (1995) (en banc) (providing
that secondary service connection may also be granted for the
degree of aggravation to a nonservice-connected disorder
which is proximately due to or the result of a service-
connected disorder) reconciling Leopoldo v. Brown, 4 Vet.
App. 216 (1993) and Tobin v. Derwinski, 2 Vet. App. 34
(1991).
Analysis
The Veteran believes his service-connected right knee
condition has caused his current right ankle and low back
problems. At his January 2008 travel Board hearing, he
testified that his right knee often gives way, causing him to
fall and hurt his right ankle and low back. He also asserted
that his right ankle and low back were injured in-service at
the same time as his right knee, but he only received
treatment for his right knee injury.
The Veteran also provided written statements in support of
his claim with his notice of disagreement, dated in December
2004, and with his substantive appeal, dated in August 2005.
In his notice of disagreement, he asserted that he fell into
a hole during physical training while serving in Okinawa in
1972. He stated that he went on sick call because of his
leg. He asserted that he had four back surgeries after
service and that he may need to have bones fused together due
to his often swollen right ankle. In his substantive appeal,
the Veteran stated that his service-connected right knee
caused his low back and right ankle problems to worsen. He
stated that his right ankle problem is the result of an old
fracture.
The Board has reviewed the entire claims file but finds no
basis to grant service connection for the low back and right
ankle conditions. A review of his service treatment records
shows the Veteran sought treatment for his right knee on
numerous occasions while in service. Even though the Veteran
claims that his right knee condition caused the ankle and
back conditions, the Board notes that there was no evidence
of any injury to or treatment of his right ankle or low back
during service.
There is competent medical evidence of current right ankle
and low back disabilities. VAMC records show the Veteran
sought treatment for right ankle and low back pain on many
occasions. In a January 2003 entry, it was reported that the
Veteran had been taking pain medication for his back
following a fall one year earlier. In February 2004, the
Veteran received an MRI, which showed arthritic changes in
his ankle consistent with old trauma. On that date, he was
diagnosed with chronic back and knee pain. In a report of an
August 2004 pain evaluation, Dr. Quiroga noted limited range
of motion of the right ankle.
However, the evidence does not show a connection between the
Veteran's service-connected right knee condition and his back
and ankle problems. In a report of a November 2005 VA joints
examination, Dr. Sutton determined that the Veteran's low
back and right ankle pain were not caused by or a result of
his service-connected right knee injury. Dr. Sutten also
asserted that a torn meniscus in the right knee would not
cause back or ankle problems.
The Board has considered the Veteran's statements concerning
the nature and etiology of his low back and right ankle
conditions. The Veteran, however, is a layperson. As a
layperson, he has no professional expertise. Lay assertions
regarding medical matters such as diagnosis or etiology of a
disability have no probative value because laypersons are not
competent to offer medical opinions. Espiritu v. Derwinski,
2 Vet. App. 492, 494-95 (1992). The Veteran is competent to
provide evidence about what he experienced; for example, he
is competent to report that he had certain injuries during
service or that he experienced certain symptoms. See, e.g.,
Layno v. Brown, 6 Vet. App. 465 (1994).
Because a connection has not been shown between his service-
connected condition and his claimed conditions, the Veteran
is not entitled to service connection on a secondary basis.
38 C.F.R. § 3.310(a) (2008).
In reaching this conclusion, the Board acknowledges that the
benefit of the doubt is to be resolved in the claimant's
favor in cases where there is an approximate balance of
positive and negative evidence in regard to a material issue.
38 U.S.C.A. § 5107 (West 2002). The preponderance of the
evidence, however, is against the Veteran's claims;
therefore, that doctrine is not for application in this case.
Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).
ORDER
Service connection for a low back disability is denied.
Service connection for the right ankle disability is denied.
____________________________________________
John E. Ormond, Jr.
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs | 02-24-2009 | [
"Citation Nr: 0906855 Decision Date: 02/24/09 Archive Date: 03/03/09 DOCKET NO. 05-07 091 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a low back condition secondary to a service-connected right knee disability. 2. Entitlement to service connection for a right ankle condition secondary to a service-connected right knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Erin McGuire, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1970 to May 1972. This matter comes before the Board of Veterans' Appeals (Board) following a Board remand in March 2008.",
"This matter was originally on appeal from an August 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. As discussed further below, the directives contained in the Board remand have been satisfied. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The competent medical evidence does not link the Veteran's low back condition to a service-connected disability. 2. The competent medical evidence does not link the Veteran's right ankle condition to a service-connected disability. CONCLUSIONS OF LAW 1. A low back condition was not proximately due to or the result of a service-connected disability.",
"38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.310 (2008). 2. A right ankle condition was not proximately due to or the result of a service-connected disability. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.310 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA with respect to its duty to notify and assist a claimant in developing a claim.",
"38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2008); 38 C.F.R. § 3.159 (2008). Under the VCAA, upon receipt of a complete or substantially complete application for benefits, VA is required to notify the veteran and his representative, if any, of any information and medical or lay evidence necessary to substantiate the claim. The United States Court of Appeals for Veterans Claims (Court) has held that these notice requirements apply to all five elements of a service connection claim, which include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App.",
"473 (2006). VA law and regulations also indicate that part of notifying a claimant of what is needed to substantiate a claim includes notification as to what information and evidence VA will seek to provide and what evidence the claimant is expected to provide. 38 U.S.C.A. § 5103 (West 2002 & Supp. 2008); 38 C.F.R. § 3.159(a)-(c) (2008). VCAA notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.",
"Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The scope of VA's duty to assist will depend on the facts and circumstances of an individual case, but typically, the duty to assist requires VA to obtain relevant records from federal agencies, to make reasonable efforts to obtain relevant records not in the custody of federal agencies, and in certain circumstances, to provide a medical examination or obtain a medical opinion. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2008). The Board finds that the requirements of the VCAA have been met and that VA has no further duty prior to Board adjudication. The RO originally provided VCAA notice to the Veteran in correspondence dated in July 2004.",
"In that letter, the RO advised the Veteran of what the evidence must show to establish entitlement to service-connected compensation benefits. The RO advised the Veteran of VA's duties under the VCAA and the delegation of responsibility between VA and the Veteran in procuring the evidence relevant to the claim, including which portion of the information and evidence necessary to substantiate the claim was to be provided by the Veteran and which portion VA would attempt to obtain on behalf of the Veteran. In the July 2004 correspondence, the RO also informed the Veteran that when service connection is granted, a disability rating and effective date of the award is assigned. The RO explained how the disability rating and effective date are determined. Although the AOJ did not provide fully compliant notice until after initial adjudication of the claim, it readjudicated the claim and issued a supplemental statement of the case in October 2008.",
"The issuance of such notice followed by a readjudication of the claim remedied any timing defect with respect to issuance of compliant notice. See Prickett v. Nicholson, 20 Vet. App. 370, 376-77 (2006). The Board finds that the RO has satisfied the requirements of Dingess/Hartman. In the July 2004 correspondence, the RO did not, however, notify the Veteran of the elements needed to establish entitlement to service connection claimed as secondary to a service-connected disability in compliance with the VCAA. See 38 U.S.C.A.",
"§§ 5103, 5103A (West 2002 & Supp. 2008); 38 C.F.R. § 3.159 (2008). In its March 2008 decision, the Board could find no reason to rebut the presumption of prejudice created by this notice defect. The Board remanded the case back to the RO for sufficient notice. In April 2008, the Appeals Management Center (AMC) sent the Veteran notice as to service connection on a secondary basis in compliance with the Board remand. Finally, the Board finds that the RO has satisfied VA's duty to assist. The RO has obtained the Veteran's service treatment records and medical records from VA medical centers (VAMCs) in Texas and Florida. The Veteran received VA orthopedic examinations in August 2004 and November 2005, reports of which are contained in the claims file.",
"The Veteran has not made the RO or the Board aware of any other evidence relevant to his appeal, and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Accordingly, the Board will proceed with appellate review. Legal Criteria Service connection will be granted if it is shown that a veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2008). Service connection may also 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) (2008). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R.",
"§ 3.310(a) (2008). Establishing service-connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. See 38 C.F.R. § 3.310(a) (2008); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc) (providing that secondary service connection may also be granted for the degree of aggravation to a nonservice-connected disorder which is proximately due to or the result of a service- connected disorder) reconciling Leopoldo v. Brown, 4 Vet. App.",
"216 (1993) and Tobin v. Derwinski, 2 Vet. App. 34 (1991). Analysis The Veteran believes his service-connected right knee condition has caused his current right ankle and low back problems. At his January 2008 travel Board hearing, he testified that his right knee often gives way, causing him to fall and hurt his right ankle and low back. He also asserted that his right ankle and low back were injured in-service at the same time as his right knee, but he only received treatment for his right knee injury. The Veteran also provided written statements in support of his claim with his notice of disagreement, dated in December 2004, and with his substantive appeal, dated in August 2005. In his notice of disagreement, he asserted that he fell into a hole during physical training while serving in Okinawa in 1972. He stated that he went on sick call because of his leg.",
"He asserted that he had four back surgeries after service and that he may need to have bones fused together due to his often swollen right ankle. In his substantive appeal, the Veteran stated that his service-connected right knee caused his low back and right ankle problems to worsen. He stated that his right ankle problem is the result of an old fracture. The Board has reviewed the entire claims file but finds no basis to grant service connection for the low back and right ankle conditions. A review of his service treatment records shows the Veteran sought treatment for his right knee on numerous occasions while in service. Even though the Veteran claims that his right knee condition caused the ankle and back conditions, the Board notes that there was no evidence of any injury to or treatment of his right ankle or low back during service. There is competent medical evidence of current right ankle and low back disabilities. VAMC records show the Veteran sought treatment for right ankle and low back pain on many occasions.",
"In a January 2003 entry, it was reported that the Veteran had been taking pain medication for his back following a fall one year earlier. In February 2004, the Veteran received an MRI, which showed arthritic changes in his ankle consistent with old trauma. On that date, he was diagnosed with chronic back and knee pain. In a report of an August 2004 pain evaluation, Dr. Quiroga noted limited range of motion of the right ankle. However, the evidence does not show a connection between the Veteran's service-connected right knee condition and his back and ankle problems.",
"In a report of a November 2005 VA joints examination, Dr. Sutton determined that the Veteran's low back and right ankle pain were not caused by or a result of his service-connected right knee injury. Dr. Sutten also asserted that a torn meniscus in the right knee would not cause back or ankle problems. The Board has considered the Veteran's statements concerning the nature and etiology of his low back and right ankle conditions. The Veteran, however, is a layperson. As a layperson, he has no professional expertise. Lay assertions regarding medical matters such as diagnosis or etiology of a disability have no probative value because laypersons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet.",
"App. 492, 494-95 (1992). The Veteran is competent to provide evidence about what he experienced; for example, he is competent to report that he had certain injuries during service or that he experienced certain symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Because a connection has not been shown between his service- connected condition and his claimed conditions, the Veteran is not entitled to service connection on a secondary basis.",
"38 C.F.R. § 3.310(a) (2008). In reaching this conclusion, the Board acknowledges that the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. 38 U.S.C.A. § 5107 (West 2002). The preponderance of the evidence, however, is against the Veteran's claims; therefore, that doctrine is not for application in this case. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Service connection for a low back disability is denied. Service connection for the right ankle disability is denied. ____________________________________________ John E. Ormond, Jr. 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 |
Exhibit 10.2
THIRD AMENDMENT TO
EMPLOYMENT AGREEMENT OF MARK L. DESMOND
This Third Amendment dated as of January 31, 2005 to Employment Agreement of Mark L. Desmond hereby amends that certain Employment Agreement entered into by and between Nationwide Health Properties, Inc., a Maryland corporation (the “Company”) and Mark L. Desmond (the “Executive”) as of February 25, 1998, as amended January 19, 2001 and April 20, 2001 (the “Employment Agreement”).
RECITAL
The parties desire to delete and restate Sections I.E., II(B)(2), IV and V of the Employment Agreement in their entirety.
AGREEMENT
NOW, THEREFORE, the parties hereto hereby agree to delete Sections I.E., II(B)(2), IV and V of the Employment Agreement in their entirety and substitute in lieu thereof the following:
I. E. ‘Employment Period’ shall mean the period commencing on the Effective Date and ending on February 28, 2003; provided however, that commencing effective as of February 28, 2002 and on each February 28 thereafter (each such date is hereinafter referred to as a “Renewal Date”), the Employment Period shall be automatically extended so as to terminate on the second anniversary of such Renewal Date, unless the Company or Executive shall give notice to the other that the Employment Period shall not be further extended prior to any such Renewal Date.
II. Conditions of Employment.
B(2). Annual Bonus. In addition to the Annual Base Salary, Executive shall be eligible to receive, for each fiscal year ending during the Employment Period, an annual bonus (the “Annual Bonus”). Such Annual Bonus may range from 30% to 90% (with a target of 60%) of the Annual Base Salary earned by Executive during the fiscal year as set forth in Table 2 on page 2 of the Company’s Executive Compensation Program Design dated October 12, 2004, with the specific amount determined by the Committee based on its assessment of the Company’s and Executive’s performance for the fiscal year. In assessing such performance, the Committee shall take into account the growth and income of the Company relative to its annual financial plan, the quality of the Company’s assets, Executive’s performance in terms of implementing the Company’s business strategy, and other considerations deemed by the Committee to be relevant to the current and future success of the Company. Annual Bonus earned by Executive shall be paid to Executive no later than ninety (90) days following the end of the fiscal year to which the Annual Bonus applies, unless such Annual Bonus is voluntarily deferred by Executive in accordance with a Company sponsored deferral program.
1
--------------------------------------------------------------------------------
IV. Obligations of the Company Upon Termination of Executive’s Employment
A. Termination by Company Other Than For Cause, Death or Disability. Except in any case where the termination of Executive’s employment shall be governed by that certain Change in Control Agreement between the Company and Executive dated October 19, 2004, and except as provided for in Section VI of this Agreement, if during the Employment Period, the Company shall terminate Executive’s employment other than for Cause or Disability, the Company shall pay to Executive (a) any Annual Base Salary owed to Executive through the Date of Termination to the extent not previously paid, (b) an amount equal to 150% of Executive’s highest Annual Base Salary during any of the last three full fiscal years prior to the Date of Termination, and (c) an amount equal to 150% of the average Annual Bonus earned by Executive over the last three full fiscal years prior to the Date of Termination.
In addition to the payments described in subparagraphs (a), (b), and (c) above, the Company also shall (i) arrange to provide to Executive for a period of eighteen months from the Date of Termination, medical (including dental, vision and prescription drug coverage) and life insurance with terms no less favorable, in the aggregate, than the most favorable of those provided to Executive during the year immediately preceding the Date of Termination, (ii) immediately vest all previously unvested shares of Restricted Stock and Stock Options held by Executive which were granted to him prior to December 31, 2004, and vest any Restricted Stock and Stock Options held by Executive which were granted to him on and after January 1, 2005 in accordance with the terms of the Company’s Stock Option Plan of 1989 as amended, or any successor plan (iii) provide Executive with any Performance-Based Dividend Equivalents (to the extent earned by the Executive through the Date of Termination, as determined by the Company’s Compensation Committee) during the eighteen months following the Date of Termination, and (iv) pay any compensation previously deferred by Executive in accordance with the provisions of the plan under which such compensation was deferred.
Payments pursuant to subparagraph (a) above shall be made within thirty (30) days following the Date of Termination. Payments pursuant to subparagraph (b) above shall be made in equal monthly installments over the eighteen month period following the Date of Termination. Payments pursuant to subparagraph (c) above shall be made in two equal installments, the first at nine months and the second at eighteen months, following the Date of Termination. Payments pursuant to subparagraph (iii) above shall be made at the time such payments would have been made had Executive remained in the employment of the Company.
To the extent that any of the payments and benefits provided for in this Agreement or otherwise payable to Executive constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and but for this subparagraph of this Section IV(1), would
2
--------------------------------------------------------------------------------
be subject to the excise tax imposed by Section 4999 of the Code or any similar or successor provision, the aggregate amount of such payments and benefits shall be reduced, but only to the extent necessary so that none of such payments and benefits are subject to excise tax pursuant to Section 4999 of the Code.
If Executive should die while receiving payments pursuant to this Section IV(A), the remaining payments which would have been made to Executive if he had lived shall be paid to the beneficiary designated in writing by Executive, or if there is no effective written designation, then to his spouse, or if there is neither an effective written designation nor a surviving spouse, then to Executive’s estate. Designation of a beneficiary or beneficiaries to receive the balance of any such payments shall be made by written notice to the Company, and Executive may revoke or change any such designation of beneficiary at any time by a later written notice to the Company.
B. Death. If Executive’s employment with the Company is terminated by reason of Executive’s death during the Employment Period, this Agreement shall terminate without further obligations to Executive’s legal representatives under this Agreement, other than for (a) payment of any Base Salary previously earned by Executive but as yet unpaid, (b) payment of any Annual Bonus previously awarded to Executive for a fiscal year completed prior to the Date of Termination but as yet unpaid, and (c) the continuation of any existing rights Executive may have following death under the provisions of any benefit, stock option, deferral or compensation plan provided to Executive by the Company.
C. Disability. If Executive’s employment with the Company is terminated by reason of Executive’s Disability during the Employment Period in accordance with Section III(A) of this Agreement, this Agreement shall terminated without further obligations to Executive other than for (a) payment of any Base Salary previously earned by Executive but as yet unpaid, (b) payment of any Annual Bonus previously awarded to Executive for a fiscal year completed prior to the Date of Termination but as yet unpaid, and (c) the continuation of any existing rights Executive may have following Disability under any benefit, stock option, deferral or compensation plan provided to Executive by the Company.
D. Cause or Voluntary Termination by Executive. If during the Employment Period Executive’s employment shall be terminated for Cause, or if Executive voluntarily terminates his employment with the Company, this Agreement shall terminate without further obligations to Executive other than for (a) payment of any Base Salary previously earned by Executive but as yet unpaid, (b) payment of any Annual Bonus previously awarded to Executive for a fiscal year completed prior to the Date of Termination but as yet unpaid, and (c) the continuation of any existing rights Executive may have following termination for Cause or voluntary termination under any benefit, stock option, deferral or compensation plan provided to Executive by the Company.
3
--------------------------------------------------------------------------------
V. Non-Exclusivity of Rights.
Nothing in this Agreement shall prevent or limit Executive’s continuing or future participation in any plan, program, policy or practice provided by the Company for which Executive may qualify, nor shall anything herein limit or otherwise affect such rights as Executive may have under any contract or agreement with the Company, specifically including that certain Change in Control Agreement between Executive and Company dated as of October 19, 2004. Amounts which are vested or which Executive is otherwise entitled to receive under any plan, policy, practice or program of, or any contract or agreement (other than this Agreement) with the Company at or subsequent to the Date of Termination shall be payable in accordance with such plan, policy, practice or program or contract or agreement except as explicitly modified by this Agreement. Except for that certain Change in Control Agreement between Executive and Company dated as of October 19, 2004, which remains in full force and effect and is fully operative between Executive and Company in accordance with its terms, Executive shall not be covered by any prior employment agreement, security policy or understanding thereof after the effective date of this Amendment and shall not be covered by any severance policy, practice or program of the Company.
IN WITNESS WHEREOF, Executive has hereunto set Executive’s hand, and pursuant to the authorization from the Compensation Committee of the Board, the Company has caused this Third Amendment to Employment Agreement of Mark L. Desmond to be executed in its name on its behalf, all as of the day and year first above written.
NATIONWIDE HEALTH PROPERTIES, INC. By:
/s/ DOUGLAS M. PASQUALE
--------------------------------------------------------------------------------
Douglas M. Pasquale Executive:
/s/ MARK L. DESMOND
--------------------------------------------------------------------------------
Mark L. Desmond
4 | [
"Exhibit 10.2 THIRD AMENDMENT TO EMPLOYMENT AGREEMENT OF MARK L. DESMOND This Third Amendment dated as of January 31, 2005 to Employment Agreement of Mark L. Desmond hereby amends that certain Employment Agreement entered into by and between Nationwide Health Properties, Inc., a Maryland corporation (the “Company”) and Mark L. Desmond (the “Executive”) as of February 25, 1998, as amended January 19, 2001 and April 20, 2001 (the “Employment Agreement”). RECITAL The parties desire to delete and restate Sections I.E., II(B)(2), IV and V of the Employment Agreement in their entirety. AGREEMENT NOW, THEREFORE, the parties hereto hereby agree to delete Sections I.E., II(B)(2), IV and V of the Employment Agreement in their entirety and substitute in lieu thereof the following: I. E. ‘Employment Period’ shall mean the period commencing on the Effective Date and ending on February 28, 2003; provided however, that commencing effective as of February 28, 2002 and on each February 28 thereafter (each such date is hereinafter referred to as a “Renewal Date”), the Employment Period shall be automatically extended so as to terminate on the second anniversary of such Renewal Date, unless the Company or Executive shall give notice to the other that the Employment Period shall not be further extended prior to any such Renewal Date.",
"II. Conditions of Employment. B(2). Annual Bonus. In addition to the Annual Base Salary, Executive shall be eligible to receive, for each fiscal year ending during the Employment Period, an annual bonus (the “Annual Bonus”). Such Annual Bonus may range from 30% to 90% (with a target of 60%) of the Annual Base Salary earned by Executive during the fiscal year as set forth in Table 2 on page 2 of the Company’s Executive Compensation Program Design dated October 12, 2004, with the specific amount determined by the Committee based on its assessment of the Company’s and Executive’s performance for the fiscal year. In assessing such performance, the Committee shall take into account the growth and income of the Company relative to its annual financial plan, the quality of the Company’s assets, Executive’s performance in terms of implementing the Company’s business strategy, and other considerations deemed by the Committee to be relevant to the current and future success of the Company. Annual Bonus earned by Executive shall be paid to Executive no later than ninety (90) days following the end of the fiscal year to which the Annual Bonus applies, unless such Annual Bonus is voluntarily deferred by Executive in accordance with a Company sponsored deferral program.",
"1 -------------------------------------------------------------------------------- IV. Obligations of the Company Upon Termination of Executive’s Employment A. Termination by Company Other Than For Cause, Death or Disability. Except in any case where the termination of Executive’s employment shall be governed by that certain Change in Control Agreement between the Company and Executive dated October 19, 2004, and except as provided for in Section VI of this Agreement, if during the Employment Period, the Company shall terminate Executive’s employment other than for Cause or Disability, the Company shall pay to Executive (a) any Annual Base Salary owed to Executive through the Date of Termination to the extent not previously paid, (b) an amount equal to 150% of Executive’s highest Annual Base Salary during any of the last three full fiscal years prior to the Date of Termination, and (c) an amount equal to 150% of the average Annual Bonus earned by Executive over the last three full fiscal years prior to the Date of Termination. In addition to the payments described in subparagraphs (a), (b), and (c) above, the Company also shall (i) arrange to provide to Executive for a period of eighteen months from the Date of Termination, medical (including dental, vision and prescription drug coverage) and life insurance with terms no less favorable, in the aggregate, than the most favorable of those provided to Executive during the year immediately preceding the Date of Termination, (ii) immediately vest all previously unvested shares of Restricted Stock and Stock Options held by Executive which were granted to him prior to December 31, 2004, and vest any Restricted Stock and Stock Options held by Executive which were granted to him on and after January 1, 2005 in accordance with the terms of the Company’s Stock Option Plan of 1989 as amended, or any successor plan (iii) provide Executive with any Performance-Based Dividend Equivalents (to the extent earned by the Executive through the Date of Termination, as determined by the Company’s Compensation Committee) during the eighteen months following the Date of Termination, and (iv) pay any compensation previously deferred by Executive in accordance with the provisions of the plan under which such compensation was deferred.",
"Payments pursuant to subparagraph (a) above shall be made within thirty (30) days following the Date of Termination. Payments pursuant to subparagraph (b) above shall be made in equal monthly installments over the eighteen month period following the Date of Termination. Payments pursuant to subparagraph (c) above shall be made in two equal installments, the first at nine months and the second at eighteen months, following the Date of Termination. Payments pursuant to subparagraph (iii) above shall be made at the time such payments would have been made had Executive remained in the employment of the Company. To the extent that any of the payments and benefits provided for in this Agreement or otherwise payable to Executive constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and but for this subparagraph of this Section IV(1), would 2 -------------------------------------------------------------------------------- be subject to the excise tax imposed by Section 4999 of the Code or any similar or successor provision, the aggregate amount of such payments and benefits shall be reduced, but only to the extent necessary so that none of such payments and benefits are subject to excise tax pursuant to Section 4999 of the Code.",
"If Executive should die while receiving payments pursuant to this Section IV(A), the remaining payments which would have been made to Executive if he had lived shall be paid to the beneficiary designated in writing by Executive, or if there is no effective written designation, then to his spouse, or if there is neither an effective written designation nor a surviving spouse, then to Executive’s estate. Designation of a beneficiary or beneficiaries to receive the balance of any such payments shall be made by written notice to the Company, and Executive may revoke or change any such designation of beneficiary at any time by a later written notice to the Company. B. Death. If Executive’s employment with the Company is terminated by reason of Executive’s death during the Employment Period, this Agreement shall terminate without further obligations to Executive’s legal representatives under this Agreement, other than for (a) payment of any Base Salary previously earned by Executive but as yet unpaid, (b) payment of any Annual Bonus previously awarded to Executive for a fiscal year completed prior to the Date of Termination but as yet unpaid, and (c) the continuation of any existing rights Executive may have following death under the provisions of any benefit, stock option, deferral or compensation plan provided to Executive by the Company.",
"C. Disability. If Executive’s employment with the Company is terminated by reason of Executive’s Disability during the Employment Period in accordance with Section III(A) of this Agreement, this Agreement shall terminated without further obligations to Executive other than for (a) payment of any Base Salary previously earned by Executive but as yet unpaid, (b) payment of any Annual Bonus previously awarded to Executive for a fiscal year completed prior to the Date of Termination but as yet unpaid, and (c) the continuation of any existing rights Executive may have following Disability under any benefit, stock option, deferral or compensation plan provided to Executive by the Company. D. Cause or Voluntary Termination by Executive. If during the Employment Period Executive’s employment shall be terminated for Cause, or if Executive voluntarily terminates his employment with the Company, this Agreement shall terminate without further obligations to Executive other than for (a) payment of any Base Salary previously earned by Executive but as yet unpaid, (b) payment of any Annual Bonus previously awarded to Executive for a fiscal year completed prior to the Date of Termination but as yet unpaid, and (c) the continuation of any existing rights Executive may have following termination for Cause or voluntary termination under any benefit, stock option, deferral or compensation plan provided to Executive by the Company.",
"3 -------------------------------------------------------------------------------- V. Non-Exclusivity of Rights. Nothing in this Agreement shall prevent or limit Executive’s continuing or future participation in any plan, program, policy or practice provided by the Company for which Executive may qualify, nor shall anything herein limit or otherwise affect such rights as Executive may have under any contract or agreement with the Company, specifically including that certain Change in Control Agreement between Executive and Company dated as of October 19, 2004. Amounts which are vested or which Executive is otherwise entitled to receive under any plan, policy, practice or program of, or any contract or agreement (other than this Agreement) with the Company at or subsequent to the Date of Termination shall be payable in accordance with such plan, policy, practice or program or contract or agreement except as explicitly modified by this Agreement. Except for that certain Change in Control Agreement between Executive and Company dated as of October 19, 2004, which remains in full force and effect and is fully operative between Executive and Company in accordance with its terms, Executive shall not be covered by any prior employment agreement, security policy or understanding thereof after the effective date of this Amendment and shall not be covered by any severance policy, practice or program of the Company.",
"IN WITNESS WHEREOF, Executive has hereunto set Executive’s hand, and pursuant to the authorization from the Compensation Committee of the Board, the Company has caused this Third Amendment to Employment Agreement of Mark L. Desmond to be executed in its name on its behalf, all as of the day and year first above written. NATIONWIDE HEALTH PROPERTIES, INC. By: /s/ DOUGLAS M. PASQUALE -------------------------------------------------------------------------------- Douglas M. Pasquale Executive: /s/ MARK L. DESMOND -------------------------------------------------------------------------------- Mark L. Desmond 4"
]
| https://github.com/TheAtticusProject/cuad | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
|
Cranch, C. J. The defendant, Mr. Coxe, having answered the bill, has moved the Court to dissolve the injunction, which restrains him from reselling the property for the default of the plaintiff in not paying the instalments due, and the interest thereon from the 8lh of December, 1837, according to the terms of the sale. The plaintiff contends that, as he did not take possession of the properly until the 8th of August, 1838, he is not bound to pay interest for any period before that day. The sale was made on the 8lh day of December, 1837, and the purchaser was to be entitled to immediate possession. The plaintiff admits that he declined to take possession. The plaintiff’s counsel cited the cases of Blount v. Blount, 3 Atk. 636, and Fludyer v. Cocker, 12 Ves. 25, to show that interest is not payable upon purchase-money until the purchaser is in possession. But those cases were decided merely upon the general principles of equity. There had been no express promise to pay interest from the day of sale, as there was in the present case. If there had been, there can be no doubt that the chancellor would have decided according to the contract of the parties. The plaintiff does not seek to be relieved from the contract, but contends that he has a right to be relieved from the interest while he was investigating the title, &c. *539I see nothing, in his own statement of his case, which can justify the Court in rescinding the contract in part, and not in the whole ; in permitting the plaintiff to avail himself of the benefit of the contract without taking upon himself the whole of its burdens. It was not the defendant’s fault, that the plaintiff did not take possession of the property immediately after the sale. I think the plaintiff must pay the interest from the 8th of December, 1837, the date of the sale to the time of payment. But the plaintiff has a right to have the title cleared from the objections which have been made to the deed from the defendant Caldwell to the defendant Coxe, and from want of evidence that the sale was made at the request of the defendant Walter, and from the want of a release of Mrs. Fischer’s mortgage, and therefore the injunction must be continued until those things are done; and the motion to dissolve it must be overruled. | 10-17-2022 | [
"Cranch, C. J. The defendant, Mr. Coxe, having answered the bill, has moved the Court to dissolve the injunction, which restrains him from reselling the property for the default of the plaintiff in not paying the instalments due, and the interest thereon from the 8lh of December, 1837, according to the terms of the sale. The plaintiff contends that, as he did not take possession of the properly until the 8th of August, 1838, he is not bound to pay interest for any period before that day. The sale was made on the 8lh day of December, 1837, and the purchaser was to be entitled to immediate possession. The plaintiff admits that he declined to take possession. The plaintiff’s counsel cited the cases of Blount v. Blount, 3 Atk. 636, and Fludyer v. Cocker, 12 Ves. 25, to show that interest is not payable upon purchase-money until the purchaser is in possession. But those cases were decided merely upon the general principles of equity. There had been no express promise to pay interest from the day of sale, as there was in the present case.",
"If there had been, there can be no doubt that the chancellor would have decided according to the contract of the parties. The plaintiff does not seek to be relieved from the contract, but contends that he has a right to be relieved from the interest while he was investigating the title, &c. *539I see nothing, in his own statement of his case, which can justify the Court in rescinding the contract in part, and not in the whole ; in permitting the plaintiff to avail himself of the benefit of the contract without taking upon himself the whole of its burdens. It was not the defendant’s fault, that the plaintiff did not take possession of the property immediately after the sale. I think the plaintiff must pay the interest from the 8th of December, 1837, the date of the sale to the time of payment. But the plaintiff has a right to have the title cleared from the objections which have been made to the deed from the defendant Caldwell to the defendant Coxe, and from want of evidence that the sale was made at the request of the defendant Walter, and from the want of a release of Mrs. Fischer’s mortgage, and therefore the injunction must be continued until those things are done; and the motion to dissolve it must be overruled."
]
| https://www.courtlistener.com/api/rest/v3/opinions/8316149/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Suffolk County (Pines, J.), dated October 30, 2008, which denied its motion for summary judgment dismissing the complaint. Ordered that the order is affirmed, with costs. In a slip-and-fall case, the defendant moving for summary judgment has the burden of demonstrating, prima facie, that it did not create the alleged hazardous condition or have actual or constructive notice of its existence for a sufficient length of time to discover and remedy it (see Gregg v Key Food Supermarket, 50 AD3d 1093 [2008]; Perlongo v Park City 3 & 4 Apts., Inc., 31 AD3d 409 [2006]). A defendant who had actual notice of a recurring dangerous condition can be charged with constructive notice of each specific reoccurrence of that condition (see Kohout v Molloy Coll., 61 AD3d 640 [2009]; Erikson v J.I.B. Realty Corp., 12 AD3d 344 [2004]; Sweeney v D & J Vending, 291 AD2d 443 [2002]). Here, the defendant failed to submit evidence sufficient to establish its entitlement to judgment as a matter of law. A defendant’s burden cannot be satisfied merely by pointing to gaps in the plaintiff’s case, as the defendant does here (see Stroppel v Wal-Mart Stores, Inc., 53 AD3d 651 [2008]; Gregg v Key Food Supermarket, 50 AD3d 1093 [2008]; Picart v Brookhaven Country Day School, 37 AD3d 798 [2007]). Since the defendant failed to meet its initial burden as the movant, there is no need to review the sufficiency of the plaintiffs’ opposition papers (see Picart v Brookhaven Country Day School, 37 AD3d 798 [2007]; Flynn v Fedcap Rehabilitation Servs., Inc., 31 AD3d 602 [2006]). Contrary to the defendant’s contention, the climatological data was improperly submitted for the first time with its reply papers (see Osborne v Zornberg, 16 AD3d 643 [2005]). Accordingly, the Supreme Court properly denied the defendant’s motion for summary judgment dismissing the complaint. Dillon, J.P., Florio, Miller and Austin, JJ., concur. | 01-12-2022 | [
"In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Suffolk County (Pines, J. ), dated October 30, 2008, which denied its motion for summary judgment dismissing the complaint. Ordered that the order is affirmed, with costs. In a slip-and-fall case, the defendant moving for summary judgment has the burden of demonstrating, prima facie, that it did not create the alleged hazardous condition or have actual or constructive notice of its existence for a sufficient length of time to discover and remedy it (see Gregg v Key Food Supermarket, 50 AD3d 1093 [2008]; Perlongo v Park City 3 & 4 Apts., Inc., 31 AD3d 409 [2006]). A defendant who had actual notice of a recurring dangerous condition can be charged with constructive notice of each specific reoccurrence of that condition (see Kohout v Molloy Coll., 61 AD3d 640 [2009]; Erikson v J.I.B. Realty Corp., 12 AD3d 344 [2004]; Sweeney v D & J Vending, 291 AD2d 443 [2002]). Here, the defendant failed to submit evidence sufficient to establish its entitlement to judgment as a matter of law.",
"A defendant’s burden cannot be satisfied merely by pointing to gaps in the plaintiff’s case, as the defendant does here (see Stroppel v Wal-Mart Stores, Inc., 53 AD3d 651 [2008]; Gregg v Key Food Supermarket, 50 AD3d 1093 [2008]; Picart v Brookhaven Country Day School, 37 AD3d 798 [2007]). Since the defendant failed to meet its initial burden as the movant, there is no need to review the sufficiency of the plaintiffs’ opposition papers (see Picart v Brookhaven Country Day School, 37 AD3d 798 [2007]; Flynn v Fedcap Rehabilitation Servs., Inc., 31 AD3d 602 [2006]). Contrary to the defendant’s contention, the climatological data was improperly submitted for the first time with its reply papers (see Osborne v Zornberg, 16 AD3d 643 [2005]). Accordingly, the Supreme Court properly denied the defendant’s motion for summary judgment dismissing the complaint. Dillon, J.P., Florio, Miller and Austin, JJ., concur."
]
| https://www.courtlistener.com/api/rest/v3/opinions/5794867/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Cross-petition for certification denied. | 07-25-2022 | [
"Cross-petition for certification denied."
]
| https://www.courtlistener.com/api/rest/v3/opinions/7311019/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
GANT, Justice. Lonnie Joe Carter was indicted by the Christian County Grand Jury for third degree burglary, first degree burglary, and for being a first degree persistent felony offender. Pursuant to agreement with the Commonwealth, he entered a plea of guilty to the third degree burglary charge, a plea of guilty to the reduced charge of second degree burglary, and a plea of guilty to the *410first degree persistent felony charge. The recommendation of the Commonwealth was accepted, and Carter received the minimum sentence on each charge, the total of ten years to be served on the persistent felony offender in lieu of the other charges, again a minimum sentence. The case before us is the result of a motion filed pursuant to RCr 11.42, seeking to set aside his sentence on several grounds, only one of which was considered by the Court of Appeals. We granted discretionary review to the Commonwealth as a consequence of the opinion of the Court of Appeals, which vacated the plea of guilty and granted a new trial. The sole issue before us is the application of KRS 26A.015(2)(b), as it relates to this RCr 11.42 motion. The pleas of guilty above referred to were taken before Honorable J. Thomas Soyars, Judge of the Christian Circuit Court. It is undisputed that Judge Soyars was County Attorney of Christian County in 1973 and 1977, when Carter was sentenced on two previous convictions which were utilized to affix the status of persistent felony offender to him as defendant in the current proceeding. The statute in question, in relevant portion, reads: KRS 26A.015. Disqualification of judge or justice of Court of Justice; or Master Commissioner. (2) Any judge or justice of the Court of Justice or Master Commissioner shall disqualify himself in any proceeding: (b) Where in private practice or government service he served as a lawyer or rendered a legal opinion in the matter in controversy.... It is our opinion that in relation to the motion before us under RCr 11.42 the fact that Judge Soyars was County Attorney at the time of the prior convictions in 1973 and 1977 does not affect his qualification to preside at the pleas of guilty herein for the simple reason that those convictions were not “the matter in controversy” as set out in KRS 26A.015(2)(b). There were two motions filed herein, one being a motion under CR 60.02 attacking the validity of the prior convictions, and the motion now before us. In respect to the former, where those convictions were the matter in controversy, the Court of Appeals held, in Carter v. Commonwealth, Ky.App., 641 S.W.2d 758 (1982), that Judge Soyars should have disqualified himself, and on remand the CR 60.02 motion was disposed of by a second judge; that disposition is not now before us. The matter which is before us is a simple plea of guilty to current charges, and the record discloses that those matters relating to the validity of the previous convictions were specifically preserved. Carter calls to our attention the case of Small v. Commonwealth, Ky.App., 617 S.W.2d 61 (1981). However, the facts in that case are readily distinguishable. Therein, the presiding judge revoked shock probation in a ease in which he had been Commonwealth Attorney at the time of sentencing and placing on shock probation, constituting a direct involvement with the matter in controversy. In examining Small, supra, we note the following at p. 62: The Commonwealth contends that failure to file a motion in the lower court that the judge disqualify himself constitutes waiver of the mandate of KRS 26A.015(2)(a). It is our opinion that any waiver of such right may be made under proper circumstances, either in writing or on the record, but will not be presumed from silence. Although we continue to agree that waiver may be properly made as indicated therein, it is our opinion that proper procedure would be to place the burden of disqualification on the defendant who may belatedly contend that he was prejudiced, rather than upon the judge. We are cognizant that numerous trial and appellate judges and justices have roots which are embedded in the soil of the offices of Commonwealth Attorney and County Attorney. We do not conceive that the purpose of KRS 26A.015(2) is one which would permit a totally voluntary and even beneficial plea of guilty to be set aside on the ground that *411the sitting judge has served as some elective official in a previous and unrelated case. To require the judge to recall all cases with which he was ever associated, many of which are of ancient vintage, simply defies logical reasoning. We therefore hold that, in those cases in which the party relies upon the failure of any justice or judge of the Court of Justice to disqualify himself under the provisions of KRS 26A.015(2)(b), it must appear from the record, either by motion or otherwise, that he was apprised of his connection with the matter in controversy. This is in accord with every principle of justice relating to preservation of error. Once brought to the attention of the judge or justice, compliance with KRS 26A.015(2)(b) is mandatory. To hold otherwise would be to declare that this statute requires a per se rule that even unknowingly a judge may never preside in a case where there has been any previous contact with a defendant, even in totally unrelated criminal charges. This we will not do. In the case of Jenkins v. Bordenkircher, 611 F.2d 162 (6th Cir.1979), that court refused to adopt a per se rule in federal habeas corpus proceedings and held in virtually identical circumstances that the participation of the judge who had been a former prosecutor did not constitute violation of due process. See also Corbett v. Bordenkircher, 615 F.2d 722 (6th Cir.1980). Further, in the instant case, we are impressed with the fact that there was not even a possibility of prejudice. The defendant at the guilty plea received exactly what he bargained for, viz., the absolute minimum sentence prescribed by the statutes, and even had one count reduced. We are totally in accord with the Court of Appeals when they state that our courts must avoid even the appearance or taint of partiality in any proceeding. However, here there is not only no allegation of bias, prejudice or partiality; there is no possibility thereof. Under these circumstances, we can perceive no blemish, soil or stain upon the face of justice. We do not pass upon the constitutionality of KRS 26A.015, as this issue was never raised before us. Cf. Arnett v. Meade, Ky., 462 S.W.2d 940, 946 (1971). The Court of Appeals is reversed, and this case is remanded to that court for disposition of the other issues not originally disposed of. All concur. | 10-01-2021 | [
"GANT, Justice. Lonnie Joe Carter was indicted by the Christian County Grand Jury for third degree burglary, first degree burglary, and for being a first degree persistent felony offender. Pursuant to agreement with the Commonwealth, he entered a plea of guilty to the third degree burglary charge, a plea of guilty to the reduced charge of second degree burglary, and a plea of guilty to the *410first degree persistent felony charge. The recommendation of the Commonwealth was accepted, and Carter received the minimum sentence on each charge, the total of ten years to be served on the persistent felony offender in lieu of the other charges, again a minimum sentence. The case before us is the result of a motion filed pursuant to RCr 11.42, seeking to set aside his sentence on several grounds, only one of which was considered by the Court of Appeals.",
"We granted discretionary review to the Commonwealth as a consequence of the opinion of the Court of Appeals, which vacated the plea of guilty and granted a new trial. The sole issue before us is the application of KRS 26A.015(2)(b), as it relates to this RCr 11.42 motion. The pleas of guilty above referred to were taken before Honorable J. Thomas Soyars, Judge of the Christian Circuit Court. It is undisputed that Judge Soyars was County Attorney of Christian County in 1973 and 1977, when Carter was sentenced on two previous convictions which were utilized to affix the status of persistent felony offender to him as defendant in the current proceeding. The statute in question, in relevant portion, reads: KRS 26A.015. Disqualification of judge or justice of Court of Justice; or Master Commissioner.",
"(2) Any judge or justice of the Court of Justice or Master Commissioner shall disqualify himself in any proceeding: (b) Where in private practice or government service he served as a lawyer or rendered a legal opinion in the matter in controversy.... It is our opinion that in relation to the motion before us under RCr 11.42 the fact that Judge Soyars was County Attorney at the time of the prior convictions in 1973 and 1977 does not affect his qualification to preside at the pleas of guilty herein for the simple reason that those convictions were not “the matter in controversy” as set out in KRS 26A.015(2)(b). There were two motions filed herein, one being a motion under CR 60.02 attacking the validity of the prior convictions, and the motion now before us.",
"In respect to the former, where those convictions were the matter in controversy, the Court of Appeals held, in Carter v. Commonwealth, Ky.App., 641 S.W.2d 758 (1982), that Judge Soyars should have disqualified himself, and on remand the CR 60.02 motion was disposed of by a second judge; that disposition is not now before us. The matter which is before us is a simple plea of guilty to current charges, and the record discloses that those matters relating to the validity of the previous convictions were specifically preserved. Carter calls to our attention the case of Small v. Commonwealth, Ky.App., 617 S.W.2d 61 (1981). However, the facts in that case are readily distinguishable. Therein, the presiding judge revoked shock probation in a ease in which he had been Commonwealth Attorney at the time of sentencing and placing on shock probation, constituting a direct involvement with the matter in controversy. In examining Small, supra, we note the following at p. 62: The Commonwealth contends that failure to file a motion in the lower court that the judge disqualify himself constitutes waiver of the mandate of KRS 26A.015(2)(a).",
"It is our opinion that any waiver of such right may be made under proper circumstances, either in writing or on the record, but will not be presumed from silence. Although we continue to agree that waiver may be properly made as indicated therein, it is our opinion that proper procedure would be to place the burden of disqualification on the defendant who may belatedly contend that he was prejudiced, rather than upon the judge. We are cognizant that numerous trial and appellate judges and justices have roots which are embedded in the soil of the offices of Commonwealth Attorney and County Attorney. We do not conceive that the purpose of KRS 26A.015(2) is one which would permit a totally voluntary and even beneficial plea of guilty to be set aside on the ground that *411the sitting judge has served as some elective official in a previous and unrelated case. To require the judge to recall all cases with which he was ever associated, many of which are of ancient vintage, simply defies logical reasoning. We therefore hold that, in those cases in which the party relies upon the failure of any justice or judge of the Court of Justice to disqualify himself under the provisions of KRS 26A.015(2)(b), it must appear from the record, either by motion or otherwise, that he was apprised of his connection with the matter in controversy. This is in accord with every principle of justice relating to preservation of error.",
"Once brought to the attention of the judge or justice, compliance with KRS 26A.015(2)(b) is mandatory. To hold otherwise would be to declare that this statute requires a per se rule that even unknowingly a judge may never preside in a case where there has been any previous contact with a defendant, even in totally unrelated criminal charges. This we will not do. In the case of Jenkins v. Bordenkircher, 611 F.2d 162 (6th Cir.1979), that court refused to adopt a per se rule in federal habeas corpus proceedings and held in virtually identical circumstances that the participation of the judge who had been a former prosecutor did not constitute violation of due process. See also Corbett v. Bordenkircher, 615 F.2d 722 (6th Cir.1980). Further, in the instant case, we are impressed with the fact that there was not even a possibility of prejudice. The defendant at the guilty plea received exactly what he bargained for, viz., the absolute minimum sentence prescribed by the statutes, and even had one count reduced. We are totally in accord with the Court of Appeals when they state that our courts must avoid even the appearance or taint of partiality in any proceeding.",
"However, here there is not only no allegation of bias, prejudice or partiality; there is no possibility thereof. Under these circumstances, we can perceive no blemish, soil or stain upon the face of justice. We do not pass upon the constitutionality of KRS 26A.015, as this issue was never raised before us. Cf. Arnett v. Meade, Ky., 462 S.W.2d 940, 946 (1971). The Court of Appeals is reversed, and this case is remanded to that court for disposition of the other issues not originally disposed of. All concur."
]
| https://www.courtlistener.com/api/rest/v3/opinions/5065560/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Case 2:18-cr-00538-KOB-JHE Document 51-4 Filed 08/16/19 Page 1 of 1 FILED 2019 Aug-16 PM 12:40 U.S. DISTRICT COURT N.D. OF ALABAMA | 2019-08-16 | [
"Case 2:18-cr-00538-KOB-JHE Document 51-4 Filed 08/16/19 Page 1 of 1 FILED 2019 Aug-16 PM 12:40 U.S. DISTRICT COURT N.D. OF ALABAMA"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/106555286/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
In the early part of 1931, the defendant, B.J. Carbo, contracted with the United States government to build four buildings at Camp Beauregard in Rapides parish, and purchased the materials for each building from the plaintiff. The buildings were known as: (1) Gun shed. (2) Warehouse building No. 12. (3) Motortruck building. (4) Magazine building. As the materials were delivered to the locations of the several buildings from time to time invoices were made and, as a matter of convenience, it was noted on each invoice for which building the material was being furnished, but all the invoices were charged to the defendant in one account. On June 5, 1931, the defendant mailed to the plaintiff a check for $1,449.74, which he evidently thought would pay his account in full. Plaintiff credited $102.14 of this to a charge for cement used in concrete foundation, and the balance of $1,347.60 was credited in one *Page 347 lump sum on the material account for these four buildings, which, according to the way the account stands on plaintiff's ledger sheet inserted in the record, left a balance of $356.-90 due. A controversy has arisen as to the correctness of the account, and plaintiff has brought two suits against the defendant, one for $171.38 for the balance alleged to be due for material furnished for the construction of the gun shed, and one for $175.52 for the balance alleged to be due for material furnished for the construction of the Magazine building. These two suits were filed in the Alexandria city court, the maximum jurisdiction of which court is the sum of $300. Before going to trial the defendant filed a plea to the jurisdiction ratione materiæ in each case on the ground "that the amounts claimed in the two suits grow out of one and the same transaction and that the plaintiff has split or divided one single cause of action into two suits in an effort to give the City Court of Alexandria Ward jurisdiction, when in fact and in law the City Court of Alexandria has no jurisdiction ratione materiæ." These exceptions were overruled. The two cases were consolidated and tried together as one case and judgment was rendered in favor of plaintiff for the amount prayed for in each case. Defendant has appealed in each case and the record has been brought to this court in one transcript. Defendant urges upon us his pleas to the jurisdiction and they will be considered first. The ledger sheet containing all the transactions of defendant with the plaintiff is filed in the record and is captioned "B.J. Carbo, Camp Beauregard, Four Warehouses." It consists of two pages of debits and credits and shows a balance of $356.90 due to the plaintiff. It is true that each charge shows to which building it went, but all the items are charged indiscriminately in the same account, and the credits do not show any imputation to any certain building. In its testimony the plaintiff admits that it received from defendant a lump-sum payment of $1,449.74 on June 5, 1931. Without any authority it claims to have imputed that payment as follows: (1) Concrete foundations .......... $ 102.14 (2) Motor Truck Building .......... 683.24 (3) Warehouse No. 12 .............. 400.35 (4) Gun Shed ...................... 264.01 __________ Total ......................... $1,449.74
It then contends that there remained due $171.38 on the gun shed and $175.52 on the Magazine building, and it is for those two sums that the two suits were filed. It is patent on the face of it that all of defendant's indebtedness to plaintiff was charged in one account and was one obligation. The case is so clear that it needs no argument. It is evident that the amounts have been thus divided so as to bring them within the jurisdiction of the city court. That court had no jurisdiction to try a case involving over $300, and yet that is what it assumed to do. The two cases were consolidated and tried as one. They both involved the same issue and, as a matter of fact, each sum involved was a part of the total sum claimed by the plaintiff as shown by its books. The pleas to the jurisdiction are good and should have been sustained. Having arrived at the conclusion that we have, we do not consider the merits of either case. For the reasons assigned, it is hereby ordered, adjudged, and decreed that the judgments appealed from be, and they are, hereby reversed, annulled, and set aside; the pleas to the jurisdiction ratione materiæ are sustained in each case; and the plaintiff's suits are dismissed, at its costs in both courts. | 07-05-2016 | [
"In the early part of 1931, the defendant, B.J. Carbo, contracted with the United States government to build four buildings at Camp Beauregard in Rapides parish, and purchased the materials for each building from the plaintiff. The buildings were known as: (1) Gun shed. (2) Warehouse building No. 12. (3) Motortruck building. (4) Magazine building. As the materials were delivered to the locations of the several buildings from time to time invoices were made and, as a matter of convenience, it was noted on each invoice for which building the material was being furnished, but all the invoices were charged to the defendant in one account. On June 5, 1931, the defendant mailed to the plaintiff a check for $1,449.74, which he evidently thought would pay his account in full. Plaintiff credited $102.14 of this to a charge for cement used in concrete foundation, and the balance of $1,347.60 was credited in one *Page 347 lump sum on the material account for these four buildings, which, according to the way the account stands on plaintiff's ledger sheet inserted in the record, left a balance of $356.-90 due.",
"A controversy has arisen as to the correctness of the account, and plaintiff has brought two suits against the defendant, one for $171.38 for the balance alleged to be due for material furnished for the construction of the gun shed, and one for $175.52 for the balance alleged to be due for material furnished for the construction of the Magazine building. These two suits were filed in the Alexandria city court, the maximum jurisdiction of which court is the sum of $300. Before going to trial the defendant filed a plea to the jurisdiction ratione materiæ in each case on the ground \"that the amounts claimed in the two suits grow out of one and the same transaction and that the plaintiff has split or divided one single cause of action into two suits in an effort to give the City Court of Alexandria Ward jurisdiction, when in fact and in law the City Court of Alexandria has no jurisdiction ratione materiæ.\"",
"These exceptions were overruled. The two cases were consolidated and tried together as one case and judgment was rendered in favor of plaintiff for the amount prayed for in each case. Defendant has appealed in each case and the record has been brought to this court in one transcript. Defendant urges upon us his pleas to the jurisdiction and they will be considered first. The ledger sheet containing all the transactions of defendant with the plaintiff is filed in the record and is captioned \"B.J. Carbo, Camp Beauregard, Four Warehouses.\" It consists of two pages of debits and credits and shows a balance of $356.90 due to the plaintiff. It is true that each charge shows to which building it went, but all the items are charged indiscriminately in the same account, and the credits do not show any imputation to any certain building. In its testimony the plaintiff admits that it received from defendant a lump-sum payment of $1,449.74 on June 5, 1931. Without any authority it claims to have imputed that payment as follows: (1) Concrete foundations .......... $ 102.14 (2) Motor Truck Building .......... 683.24 (3) Warehouse No. 12 .............. 400.35 (4) Gun Shed ...................... 264.01 __________ Total ......................... $1,449.74 It then contends that there remained due $171.38 on the gun shed and $175.52 on the Magazine building, and it is for those two sums that the two suits were filed.",
"It is patent on the face of it that all of defendant's indebtedness to plaintiff was charged in one account and was one obligation. The case is so clear that it needs no argument. It is evident that the amounts have been thus divided so as to bring them within the jurisdiction of the city court. That court had no jurisdiction to try a case involving over $300, and yet that is what it assumed to do. The two cases were consolidated and tried as one. They both involved the same issue and, as a matter of fact, each sum involved was a part of the total sum claimed by the plaintiff as shown by its books.",
"The pleas to the jurisdiction are good and should have been sustained. Having arrived at the conclusion that we have, we do not consider the merits of either case. For the reasons assigned, it is hereby ordered, adjudged, and decreed that the judgments appealed from be, and they are, hereby reversed, annulled, and set aside; the pleas to the jurisdiction ratione materiæ are sustained in each case; and the plaintiff's suits are dismissed, at its costs in both courts."
]
| https://www.courtlistener.com/api/rest/v3/opinions/3470141/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DETAILED ACTION
Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Election/Restriction
REQUIREMENT FOR UNITY OF INVENTION
As provided in 37 CFR 1.475(a), a national stage application shall relate to one invention only or to a group of inventions so linked as to form a single general inventive concept (“requirement of unity of invention”). Where a group of inventions is claimed in a national stage application, the requirement of unity of invention shall be fulfilled only when there is a technical relationship among those inventions involving one or more of the same or corresponding special technical features. The expression “special technical features” shall mean those technical features that define a contribution which each of the claimed inventions, considered as a whole, makes over the prior art. The determination whether a group of inventions is so linked as to form a single general inventive concept shall be made without regard to whether the inventions are claimed in separate claims or as alternatives within a single claim. See 37 CFR 1.475(e). When Claims Are Directed to Multiple Categories of Inventions:
(1) A product and a process specially adapted for the manufacture of said product; or (2) A product and a process of use of said product; or (3) A product, a process specially adapted for the manufacture of the said product, and a use of the said product; or (4) A process and an apparatus or means specifically designed for carrying out the said process; or (5) A product, a process specially adapted for the manufacture of the said product, and an apparatus or means specifically designed for carrying out the said process. Otherwise, unity of invention might not be present. See 37 CFR 1.475 (c).
Restriction is required under 35 U.S.C. 121 and 372. This application contains the following inventions or groups of inventions which are not so linked as to form a single general inventive concept under PCT Rule 13.1. In accordance with 37 CFR 1.499, applicant is required, in reply to this action, to elect a single invention to which the claims must be restricted.
Group I, claim(s) 1 – 9, drawn to a device for pressing a non-hardened concrete composition (Apparatus). Group II, claim(s) 10 – 16, drawn to a method of manufacture one or more concrete articles (Process).
The groups of inventions listed above do not relate to a single general inventive concept under PCT Rule 13.1 because, under PCT Rule 13.2, they lack the same or corresponding special technical features for the following reasons:
Groups I and II lack unity of invention because even though the inventions of these groups require the technical feature of a pressing device comprising an upper plate (4) with one or more first cavities (7) that run through the upper plate (4), a moulding plate (3) with one or more second cavities (9) whereby the upper plate (4) is located directly above the moulding plate (3), a bottom plate (2) located under the moulding plate, characterized in that the thickness of the upper plate (4) and not the thickness of the moulding plate (3) is decisive for the thickness of the final article, this technical feature is not a special technical feature as it does not make a contribution over the prior art in view of Hyde, Jr. et al. (US Pat. No. 6,244,069 B1; Hyde) and Sakurai et al. (JP-2010126407-A, with machine English translation), both of record and cited on the International Search Report filed 05/21/2020.
In this case, the prior art of Hyde teaches a pressing device (10) comprising an upper plate (“reciprocating sizing plate,” 23) with one or more first cavities (“sizing chambers,” 33) that run through the upper plate (23, see Figs. 3-5), a moulding plate (“reciprocating forming plate,” 25) with one or more second cavities (“pair of forming Similarly, Sakurai teaches a device (see Fig. 1) comprising a measuring plate 3, a molding plate 30, a molding chamber (4), a cylinder device (41), a pressure plate (5), a block discharge mechanism (50), a cylinder device (51), a pressure plate (52), a conveyor (6), and a support base (60). Furthermore, Sakurai teaches a method of use of said apparatus (e.g., see Sakurai at [0035-38]). Therefore, the present application lacks of unity of invention, since the technical feature is not a technical feature that defines a contribution over the prior art of Hyde and Sakurai.
Regarding the recitation of intended use of the apparatus on the claim preamble. Applicant is reminded that, where a patentee defines a structurally complete invention in the claim body and uses the preamble only to state a purpose or intended use for the invention, the preamble is not a claim limitation. See MPEP § 2111.02.
Regarding the intended use of the apparatus. Applicant is respectfully reminded that, "[A]pparatus claims cover what a device is, not what a device does." Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (emphasis in original). A claim containing a "recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus" if the prior art
Regarding the recitation of the material work upon by the apparatus. The Applicant is respectfully reminded that, “A claim is only limited by positively recited elements.” Thus, "[i]nclusion of the material or article worked upon by a structure being claimed does not impart patentability to the claims." In re Otto, 312 F.2d 937, 136 USPQ 458, 459 (CCPA 1963); see also In re Young, 75 F.2d 996, 25 USPQ 69 (CCPA 1935). See MPEP 2115.
Applicant is reminded that upon the cancellation of claims to a non-elected invention, the inventorship must be corrected in compliance with 37 CFR 1.48(a) if one or more of the currently named inventors is no longer an inventor of at least one claim remaining in the application. A request to correct inventorship under 37 CFR 1.48(a) must be accompanied by an application data sheet in accordance with 37 CFR 1.76 that identifies each inventor by his or her legal name and by the processing fee required under 37 CFR 1.17(i).
The examiner has required restriction between product or apparatus claims and process claims. Where applicant elects claims directed to the product/apparatus, and all product/apparatus claims are subsequently found allowable, withdrawn process claims that include all the limitations of the allowable product/apparatus claims should be considered for rejoinder. All claims directed to a nonelected process invention must In the event of rejoinder, the requirement for restriction between the product/apparatus claims and the rejoined process claims will be withdrawn, and the rejoined process claims will be fully examined for patentability in accordance with 37 CFR 1.104. Thus, to be allowable, the rejoined claims must meet all criteria for patentability including the requirements of 35 U.S.C. 101, 102, 103 and 112. Until all claims to the elected product/apparatus are found allowable, an otherwise proper restriction requirement between product/apparatus claims and process claims may be maintained. Withdrawn process claims that are not commensurate in scope with an allowable product/apparatus claim will not be rejoined. See MPEP § 821.04. Additionally, in order for rejoinder to occur, applicant is advised that the process claims should be amended during prosecution to require the limitations of the product/apparatus claims. Failure to do so may result in no rejoinder. Further, note that the prohibition against double patenting rejections of 35 U.S.C. 121 does not apply where the restriction requirement is withdrawn by the examiner before the patent issues. See MPEP § 804.01.
Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to EDGAREDMANUEL TROCHE whose telephone number is (571)272-9766. The examiner can normally be reached M-F 7:30-5:30.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sam Zhao can be reached on 571-270-5343. 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. /EDGAREDMANUEL TROCHE/Examiner, Art Unit 1744
/FRANCISCO W TSCHEN/Primary Examiner, Art Unit 1712 | 2022-03-13T15:42:50 | [
"DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Election/Restriction REQUIREMENT FOR UNITY OF INVENTION As provided in 37 CFR 1.475(a), a national stage application shall relate to one invention only or to a group of inventions so linked as to form a single general inventive concept (“requirement of unity of invention”). Where a group of inventions is claimed in a national stage application, the requirement of unity of invention shall be fulfilled only when there is a technical relationship among those inventions involving one or more of the same or corresponding special technical features.",
"The expression “special technical features” shall mean those technical features that define a contribution which each of the claimed inventions, considered as a whole, makes over the prior art. The determination whether a group of inventions is so linked as to form a single general inventive concept shall be made without regard to whether the inventions are claimed in separate claims or as alternatives within a single claim. See 37 CFR 1.475(e). When Claims Are Directed to Multiple Categories of Inventions: (1) A product and a process specially adapted for the manufacture of said product; or (2) A product and a process of use of said product; or (3) A product, a process specially adapted for the manufacture of the said product, and a use of the said product; or (4) A process and an apparatus or means specifically designed for carrying out the said process; or (5) A product, a process specially adapted for the manufacture of the said product, and an apparatus or means specifically designed for carrying out the said process. Otherwise, unity of invention might not be present.",
"See 37 CFR 1.475 (c). Restriction is required under 35 U.S.C. 121 and 372. This application contains the following inventions or groups of inventions which are not so linked as to form a single general inventive concept under PCT Rule 13.1. In accordance with 37 CFR 1.499, applicant is required, in reply to this action, to elect a single invention to which the claims must be restricted. Group I, claim(s) 1 – 9, drawn to a device for pressing a non-hardened concrete composition (Apparatus). Group II, claim(s) 10 – 16, drawn to a method of manufacture one or more concrete articles (Process).",
"The groups of inventions listed above do not relate to a single general inventive concept under PCT Rule 13.1 because, under PCT Rule 13.2, they lack the same or corresponding special technical features for the following reasons: Groups I and II lack unity of invention because even though the inventions of these groups require the technical feature of a pressing device comprising an upper plate (4) with one or more first cavities (7) that run through the upper plate (4), a moulding plate (3) with one or more second cavities (9) whereby the upper plate (4) is located directly above the moulding plate (3), a bottom plate (2) located under the moulding plate, characterized in that the thickness of the upper plate (4) and not the thickness of the moulding plate (3) is decisive for the thickness of the final article, this technical feature is not a special technical feature as it does not make a contribution over the prior art in view of Hyde, Jr. et al. (US Pat. No. 6,244,069 B1; Hyde) and Sakurai et al. (JP-2010126407-A, with machine English translation), both of record and cited on the International Search Report filed 05/21/2020.",
"In this case, the prior art of Hyde teaches a pressing device (10) comprising an upper plate (“reciprocating sizing plate,” 23) with one or more first cavities (“sizing chambers,” 33) that run through the upper plate (23, see Figs. 3-5), a moulding plate (“reciprocating forming plate,” 25) with one or more second cavities (“pair of forming Similarly, Sakurai teaches a device (see Fig. 1) comprising a measuring plate 3, a molding plate 30, a molding chamber (4), a cylinder device (41), a pressure plate (5), a block discharge mechanism (50), a cylinder device (51), a pressure plate (52), a conveyor (6), and a support base (60). Furthermore, Sakurai teaches a method of use of said apparatus (e.g., see Sakurai at [0035-38]). Therefore, the present application lacks of unity of invention, since the technical feature is not a technical feature that defines a contribution over the prior art of Hyde and Sakurai.",
"Regarding the recitation of intended use of the apparatus on the claim preamble. Applicant is reminded that, where a patentee defines a structurally complete invention in the claim body and uses the preamble only to state a purpose or intended use for the invention, the preamble is not a claim limitation. See MPEP § 2111.02. Regarding the intended use of the apparatus. Applicant is respectfully reminded that, \"[A]pparatus claims cover what a device is, not what a device does.\" Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed.",
"Cir. 1990) (emphasis in original). A claim containing a \"recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus\" if the prior art Regarding the recitation of the material work upon by the apparatus. The Applicant is respectfully reminded that, “A claim is only limited by positively recited elements.” Thus, \"[i]nclusion of the material or article worked upon by a structure being claimed does not impart patentability to the claims.\" In re Otto, 312 F.2d 937, 136 USPQ 458, 459 (CCPA 1963); see also In re Young, 75 F.2d 996, 25 USPQ 69 (CCPA 1935). See MPEP 2115.",
"Applicant is reminded that upon the cancellation of claims to a non-elected invention, the inventorship must be corrected in compliance with 37 CFR 1.48(a) if one or more of the currently named inventors is no longer an inventor of at least one claim remaining in the application. A request to correct inventorship under 37 CFR 1.48(a) must be accompanied by an application data sheet in accordance with 37 CFR 1.76 that identifies each inventor by his or her legal name and by the processing fee required under 37 CFR 1.17(i). The examiner has required restriction between product or apparatus claims and process claims. Where applicant elects claims directed to the product/apparatus, and all product/apparatus claims are subsequently found allowable, withdrawn process claims that include all the limitations of the allowable product/apparatus claims should be considered for rejoinder. All claims directed to a nonelected process invention must In the event of rejoinder, the requirement for restriction between the product/apparatus claims and the rejoined process claims will be withdrawn, and the rejoined process claims will be fully examined for patentability in accordance with 37 CFR 1.104.",
"Thus, to be allowable, the rejoined claims must meet all criteria for patentability including the requirements of 35 U.S.C. 101, 102, 103 and 112. Until all claims to the elected product/apparatus are found allowable, an otherwise proper restriction requirement between product/apparatus claims and process claims may be maintained. Withdrawn process claims that are not commensurate in scope with an allowable product/apparatus claim will not be rejoined. See MPEP § 821.04. Additionally, in order for rejoinder to occur, applicant is advised that the process claims should be amended during prosecution to require the limitations of the product/apparatus claims. Failure to do so may result in no rejoinder. Further, note that the prohibition against double patenting rejections of 35 U.S.C. 121 does not apply where the restriction requirement is withdrawn by the examiner before the patent issues. See MPEP § 804.01. Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to EDGAREDMANUEL TROCHE whose telephone number is (571)272-9766. The examiner can normally be reached M-F 7:30-5:30. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sam Zhao can be reached on 571-270-5343. 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. /EDGAREDMANUEL TROCHE/Examiner, Art Unit 1744 /FRANCISCO W TSCHEN/Primary Examiner, Art Unit 1712"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-03-20.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
195 A.2d 331 (1963) Prescott MARSH v. BLISS REALTY, INC. Ex. No. 10515. Supreme Court of Rhode Island. November 26, 1963. Gallogly, Beals & Tiernan, David F. Sweeney, Providence, for plaintiff. Gunning & LaFazia, Edward L. Gnys, Jr., Providence, for defendant. POWERS, Justice. This is an action of trespass on the case for negligence brought by a tenant against the landlord for personal injuries and property damage resulting from the fall of a light globe in the premises occupied by the plaintiff. The case was tried to a superior court justice, sitting with a jury, and resulted in a verdict for the plaintiff. It is before us on the plaintiff's bill of exceptions to the granting of the defendant's motion *332 for a directed verdict, the granting of its motion for a new trial, and to an evidentiary ruling. It is established by the record that plaintiff is a practicing dentist in the city of Providence; that he occupied the premises in question as his office on a month-to-month rental from 1952 until some time after the alleged injury; that defendant acquired the premises on July 1, 1955; that no special agreement of tenancy existed between the parties; and that on November 26, 1960, a globe shielding a ceiling light fell and struck plaintiff on the back of the head while he was attending a patient who was seated in the dental chair. The plaintiff testified without contradiction that there were four such lights located in his suite of offices, one of which was suspended over his desk, and that some time previously he had discovered a shattered globe on his desk when he opened the office for work one morning. It appears that this globe had fallen during the night. On the occasion when plaintiff sustained his injuries, however, the bakelite bracket which secured the globe had apparently become worn and snapped, since one half of the bracket supporting the globe had fallen with it. It does not appear that such was the case when plaintiff found the smashed globe on his desk. The evidence appears to show that a light bulb was suspended from the ceiling some one-and-a-half feet by means of a rod fixture at the end of which was attached the bakelite bracket which, in turn, supported a globe. It is clear from the evidence that whenever a light bulb was replaced the bracket necessarily came under fairly close scrutiny. The plaintiff's testimony was that during his tenancy he replaced the light bulbs each time it became necessary, and that in replacing the bulb in the light over the dental chair he would use the chair as a sort of stepladder. Ross Bailey, building superintendent since defendant acquired the building, testified that he had replaced the same type of bracket in other offices with a part metal, part bakelite bracket, because the maintenance men were breaking the type used in plaintiff's office and they were no longer obtainable. It is also his testimony that the broken bracket which was in evidence as an exhibit could be described as "fragile" and would break if twisted. He testified further that within the year next preceding the breaking of the bracket and falling of the globe on plaintiff, it had been necessary to change at least six such brackets throughout the building because they had been broken by maintenance men twisting the globes. Asked by plaintiff if he had been able to determine whether these brackets had become deteriorated by use, the witness Bailey was not permitted to answer on objection made by defendant. To this ruling plaintiff excepted. It appears that in addition to striking plaintiff, a cabinet in his office was damaged apparently by fragments of the globe after it had shattered. After the parties had rested, defendant moved for a directed verdict and the trial justice reserved decision thereon pursuant to superior court rule 46. Thereupon the jury returned a verdict for plaintiff in the amount of $1,500. The trial justice then considered the evidence and granted defendant's motion for a directed verdict. To this decision plaintiff excepted and defendant moved for a new trial. The trial justice granted this motion and plaintiff duly excepted. In his decision granting defendant's motion for a directed verdict, the trial justice found that the snapping and falling of the bakelite saddle or bracket was the proximate cause of plaintiff's injury, but that the instrumentality was wholly confined to the premises occupied by plaintiff and that there was no evidence that such instrumentality constituted a latent defect at the time of the letting. He further found that there was no written agreement between the *333 parties, and that on the tenancy which resulted from the month-to-month oral lease or letting defendant owed no duty on which plaintiff's cause of action could be predicated. It is the well-settled rule in this jurisdiction that, absent some written agreement to the contrary, the tenant takes the premises as he finds them and the landlord is not responsible for personal injuries or property damage arising out of a defective condition on premises within the control of the tenant. Whitehead v. Comstock & Co., 25 R.I. 423, 56 A. 446; Gorski v. Consolidated Rendering Co., 41 R.I. 339, 103 A. 907; Zatloff v. Winkleman, 90 R.I. 403, 158 A.2d 874. It is equally well settled, however, that the landlord is liable in tort where the proximate cause of the tenant's injury arises out of a latent defect which was known to the landlord at the time of the letting and was not made known by him to the tenant. White v. Heffernan, 60 R.I. 363, 198 A. 566. The plaintiff contends that the trial justice erred in finding that there was no evidence that a latent defect existed at the time of the letting and of which defendant had knowledge. He points to the testimony that defendant's agent or servant had replaced similar brackets in another room of plaintiff's office prior to the falling of the globe that caused plaintiff's injuries. These replacements, he notes, were made approximately one year prior to the date of the occurrence for which he sues. This circumstance, he argues, when considered in the light of the month-to-month letting, demonstrates that defendant had knowledge of the defect in the type of bracket in question and negligently failed to provide against the very thing that happened. He cites Saritelli v. Industrial Trust Co., 84 R.I. 42 121 A.2d 329, as authority for the proposition that defendant had the duty as a reasonable person to replace the defective bracket and thus prevent injury to plaintiff. That case, however, is not in point. There the duty of which this court spoke related to the maintenance and repair of the roof which, in the circumstances of that case, was not part of the demised premises. In the instant case the defective bracket was wholly within the premises occupied by plaintiff and the assistance rendered by defendant in replacing the broken brackets and globes for plaintiff was nothing more than janitorial services which in nowise was an assumption of control of the premises demised. The Saritelli case is not inconsistent with the doctrine that for the landlord to be liable to tort for injuries arising out of defective premises, the defect in issue must be latent and not known to the tenant at the time of leasing. If, however, at the time of the letting the landlord has knowledge of a defect which is equally well known to the person leasing the premises, the defective condition relied upon is not latent within the meaning of the rule. Corcione v. Ruggieri, 87 R.I. 182, 139 A.2d 388. Assuming without deciding that each month constituted a new letting, the knowledge which plaintiff attributes to defendant for a year prior to the last letting was not that of a latent defect since plaintiff, so far as the record indicates, was in possession of the same knowledge prior in time to that when it was acquired by defendant. If, on the other hand, plaintiff's tenancy commenced with his original occupation of the premises in 1952, there could be no latent defect of which defendant had knowledge, since it did not acquire the office building for some three years thereafter. Nor is there merit in plaintiff's contention that the trial justice erred for the reason that the defective fixture was part which was in the exclusive control of defendant. See Yuppa v. Whittaker, R. I., 186 A.2d 345. In our judgment therefore the decision of the trial justice of defendant *334 motion for a directed verdict was not erroneous. Although the trial justice was required to pass upon the motion in the light of the evidence before him at the time, giving plaintiff the benefit of every favorable which might be drawn therefrom, plaintiff contends that the decision was erroneous for the reason that testimony had been improperly excluded from evidence which, if admitted, would have required the trial justice to submit the case to the jury. The excluded testimony would have resulted from a question directed to the building superintendent as to whether in replacing such fixtures on previous occasions defendant had been able to determine that they had become defective through the wear and tear attributable to use. The plaintiff's exception to this ruling is without merit. As previously noted the knowledge possessed by defendant was shared by plaintiff and under our well-settled rule defendant was under no obligation to maintain the fixtures in a safe condition in the absence of an agreement to the contrary. That the trial justice was aware of this is clear from the reference in his decision to the fact that there was no such agreement and that if there had been the plaintiff's action would be in assumpsit for breach thereof under the doctrine laid down in Davis v. Smith, 26 R.I. 129, 58 A. 630, 66 L.R.A. 478. Therein this court made clear that no action for personal injuries would lie for breach of such an agreement. Lastly, plaintiff argues that there is a growing tendency to relax the rule where the landlord retains some measure of control, such as in the case of appliances used for lighting, heating and water supplies, common to office buildings, citing 26 A.L.R. 2d 1044, 1046. Nothing in the cases therein discussed, however, appears to stand for so marked a departure from common-law principles as is urged by him. If such a tendency is to be found in cases which have not been brought to our attention, and on analysis thereof such tendency may be said to have merit, we are of the opinion that it should be given effect not by judicial decision but by way of appropriate legislation. The legislature may provide for changes prospectively in a manner not customarily available to this court. Since in our judgment the court did not err in granting the defendant's motion for a directed verdict, it becomes unnecessary for us to consider the exception to the decision on the defendant's motion for a new trial. See Turenne v. Carl G. Olson Co., R.I. 179 A.2d 323. The plaintiff's first and third exceptions are overruled, and the case is remitted to the superior court for entry of judgment on the verdict as directed. PAOLINO, J., not participating. | 10-30-2013 | [
"195 A.2d 331 (1963) Prescott MARSH v. BLISS REALTY, INC. Ex. No. 10515. Supreme Court of Rhode Island. November 26, 1963. Gallogly, Beals & Tiernan, David F. Sweeney, Providence, for plaintiff. Gunning & LaFazia, Edward L. Gnys, Jr., Providence, for defendant. POWERS, Justice. This is an action of trespass on the case for negligence brought by a tenant against the landlord for personal injuries and property damage resulting from the fall of a light globe in the premises occupied by the plaintiff.",
"The case was tried to a superior court justice, sitting with a jury, and resulted in a verdict for the plaintiff. It is before us on the plaintiff's bill of exceptions to the granting of the defendant's motion *332 for a directed verdict, the granting of its motion for a new trial, and to an evidentiary ruling. It is established by the record that plaintiff is a practicing dentist in the city of Providence; that he occupied the premises in question as his office on a month-to-month rental from 1952 until some time after the alleged injury; that defendant acquired the premises on July 1, 1955; that no special agreement of tenancy existed between the parties; and that on November 26, 1960, a globe shielding a ceiling light fell and struck plaintiff on the back of the head while he was attending a patient who was seated in the dental chair.",
"The plaintiff testified without contradiction that there were four such lights located in his suite of offices, one of which was suspended over his desk, and that some time previously he had discovered a shattered globe on his desk when he opened the office for work one morning. It appears that this globe had fallen during the night. On the occasion when plaintiff sustained his injuries, however, the bakelite bracket which secured the globe had apparently become worn and snapped, since one half of the bracket supporting the globe had fallen with it. It does not appear that such was the case when plaintiff found the smashed globe on his desk. The evidence appears to show that a light bulb was suspended from the ceiling some one-and-a-half feet by means of a rod fixture at the end of which was attached the bakelite bracket which, in turn, supported a globe.",
"It is clear from the evidence that whenever a light bulb was replaced the bracket necessarily came under fairly close scrutiny. The plaintiff's testimony was that during his tenancy he replaced the light bulbs each time it became necessary, and that in replacing the bulb in the light over the dental chair he would use the chair as a sort of stepladder. Ross Bailey, building superintendent since defendant acquired the building, testified that he had replaced the same type of bracket in other offices with a part metal, part bakelite bracket, because the maintenance men were breaking the type used in plaintiff's office and they were no longer obtainable. It is also his testimony that the broken bracket which was in evidence as an exhibit could be described as \"fragile\" and would break if twisted. He testified further that within the year next preceding the breaking of the bracket and falling of the globe on plaintiff, it had been necessary to change at least six such brackets throughout the building because they had been broken by maintenance men twisting the globes. Asked by plaintiff if he had been able to determine whether these brackets had become deteriorated by use, the witness Bailey was not permitted to answer on objection made by defendant.",
"To this ruling plaintiff excepted. It appears that in addition to striking plaintiff, a cabinet in his office was damaged apparently by fragments of the globe after it had shattered. After the parties had rested, defendant moved for a directed verdict and the trial justice reserved decision thereon pursuant to superior court rule 46. Thereupon the jury returned a verdict for plaintiff in the amount of $1,500. The trial justice then considered the evidence and granted defendant's motion for a directed verdict.",
"To this decision plaintiff excepted and defendant moved for a new trial. The trial justice granted this motion and plaintiff duly excepted. In his decision granting defendant's motion for a directed verdict, the trial justice found that the snapping and falling of the bakelite saddle or bracket was the proximate cause of plaintiff's injury, but that the instrumentality was wholly confined to the premises occupied by plaintiff and that there was no evidence that such instrumentality constituted a latent defect at the time of the letting. He further found that there was no written agreement between the *333 parties, and that on the tenancy which resulted from the month-to-month oral lease or letting defendant owed no duty on which plaintiff's cause of action could be predicated. It is the well-settled rule in this jurisdiction that, absent some written agreement to the contrary, the tenant takes the premises as he finds them and the landlord is not responsible for personal injuries or property damage arising out of a defective condition on premises within the control of the tenant.",
"Whitehead v. Comstock & Co., 25 R.I. 423, 56 A. 446; Gorski v. Consolidated Rendering Co., 41 R.I. 339, 103 A. 907; Zatloff v. Winkleman, 90 R.I. 403, 158 A.2d 874. It is equally well settled, however, that the landlord is liable in tort where the proximate cause of the tenant's injury arises out of a latent defect which was known to the landlord at the time of the letting and was not made known by him to the tenant. White v. Heffernan, 60 R.I. 363, 198 A. 566. The plaintiff contends that the trial justice erred in finding that there was no evidence that a latent defect existed at the time of the letting and of which defendant had knowledge. He points to the testimony that defendant's agent or servant had replaced similar brackets in another room of plaintiff's office prior to the falling of the globe that caused plaintiff's injuries. These replacements, he notes, were made approximately one year prior to the date of the occurrence for which he sues.",
"This circumstance, he argues, when considered in the light of the month-to-month letting, demonstrates that defendant had knowledge of the defect in the type of bracket in question and negligently failed to provide against the very thing that happened. He cites Saritelli v. Industrial Trust Co., 84 R.I. 42 121 A.2d 329, as authority for the proposition that defendant had the duty as a reasonable person to replace the defective bracket and thus prevent injury to plaintiff. That case, however, is not in point. There the duty of which this court spoke related to the maintenance and repair of the roof which, in the circumstances of that case, was not part of the demised premises. In the instant case the defective bracket was wholly within the premises occupied by plaintiff and the assistance rendered by defendant in replacing the broken brackets and globes for plaintiff was nothing more than janitorial services which in nowise was an assumption of control of the premises demised. The Saritelli case is not inconsistent with the doctrine that for the landlord to be liable to tort for injuries arising out of defective premises, the defect in issue must be latent and not known to the tenant at the time of leasing.",
"If, however, at the time of the letting the landlord has knowledge of a defect which is equally well known to the person leasing the premises, the defective condition relied upon is not latent within the meaning of the rule. Corcione v. Ruggieri, 87 R.I. 182, 139 A.2d 388. Assuming without deciding that each month constituted a new letting, the knowledge which plaintiff attributes to defendant for a year prior to the last letting was not that of a latent defect since plaintiff, so far as the record indicates, was in possession of the same knowledge prior in time to that when it was acquired by defendant.",
"If, on the other hand, plaintiff's tenancy commenced with his original occupation of the premises in 1952, there could be no latent defect of which defendant had knowledge, since it did not acquire the office building for some three years thereafter. Nor is there merit in plaintiff's contention that the trial justice erred for the reason that the defective fixture was part which was in the exclusive control of defendant.",
"See Yuppa v. Whittaker, R. I., 186 A.2d 345. In our judgment therefore the decision of the trial justice of defendant *334 motion for a directed verdict was not erroneous. Although the trial justice was required to pass upon the motion in the light of the evidence before him at the time, giving plaintiff the benefit of every favorable which might be drawn therefrom, plaintiff contends that the decision was erroneous for the reason that testimony had been improperly excluded from evidence which, if admitted, would have required the trial justice to submit the case to the jury. The excluded testimony would have resulted from a question directed to the building superintendent as to whether in replacing such fixtures on previous occasions defendant had been able to determine that they had become defective through the wear and tear attributable to use. The plaintiff's exception to this ruling is without merit. As previously noted the knowledge possessed by defendant was shared by plaintiff and under our well-settled rule defendant was under no obligation to maintain the fixtures in a safe condition in the absence of an agreement to the contrary.",
"That the trial justice was aware of this is clear from the reference in his decision to the fact that there was no such agreement and that if there had been the plaintiff's action would be in assumpsit for breach thereof under the doctrine laid down in Davis v. Smith, 26 R.I. 129, 58 A. 630, 66 L.R.A. 478. Therein this court made clear that no action for personal injuries would lie for breach of such an agreement. Lastly, plaintiff argues that there is a growing tendency to relax the rule where the landlord retains some measure of control, such as in the case of appliances used for lighting, heating and water supplies, common to office buildings, citing 26 A.L.R.",
"2d 1044, 1046. Nothing in the cases therein discussed, however, appears to stand for so marked a departure from common-law principles as is urged by him. If such a tendency is to be found in cases which have not been brought to our attention, and on analysis thereof such tendency may be said to have merit, we are of the opinion that it should be given effect not by judicial decision but by way of appropriate legislation. The legislature may provide for changes prospectively in a manner not customarily available to this court. Since in our judgment the court did not err in granting the defendant's motion for a directed verdict, it becomes unnecessary for us to consider the exception to the decision on the defendant's motion for a new trial.",
"See Turenne v. Carl G. Olson Co., R.I. 179 A.2d 323. The plaintiff's first and third exceptions are overruled, and the case is remitted to the superior court for entry of judgment on the verdict as directed. PAOLINO, J., not participating."
]
| https://www.courtlistener.com/api/rest/v3/opinions/1989846/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
109 HR 4502 IH: Family Farm and Agricultural Definitions Restoration Act U.S. House of Representatives 2005-12-13 text/xml EN Pursuant to Title 17 Section 105 of the United States Code, this file is not subject to copyright protection and is in the public domain.
I 109th CONGRESS 1st Session H. R. 4502 IN THE HOUSE OF REPRESENTATIVES December 13, 2005 Mr. Norwood (for himself, Mr. Davis of Tennessee, and Mr. Graves) introduced the following bill; which was referred to the Committee on Education and the Workforce A BILL To amend the Migrant and Seasonal Agricultural Worker Protection Act to provide an exemption for workers who work year-round and for other purposes. 1.Short titleThis Act may be cited as the Family Farm and Agricultural Definitions Restoration Act. 2.Applicability of the Migrant and Seasonal Agricultural Worker Protection Act (a)Family business exemptionSection 4(a)(1) of the Migrant and Seasonal Agricultural Worker Protection Act (29 U.S.C. 1803(a)(1)) is amended by inserting before the period the following: , such individual’s employees choose to work for another person in addition to their work for that individual, such individual used a State employment service agency to obtain employees, or such individual obtained referrals for employment from the other migrant or seasonal agricultural workers. (b)Year-Round employmentSection 3 of the Migrant and Seasonal Agricultural Worker Protection Act (29 U.S.C. 1802) is amended— (1)in paragraph (8)(B)— (A)in clause (i), by striking or at the end; (B)in clause (ii), by striking the period and inserting ; or; and (C)by adding at the end the following: (iii)any individual who is employed by a specific agricultural employer or association on a year-round basis.; (2)in paragraph (10)(B)— (A)in clause (ii), by striking or at the end; (B)in clause (iii), by striking the period and inserting ; or; and (C)by adding at the end the following: (iv)any individual who is employed by a specific agricultural employer or association on a year-round basis.. (c)Carpool arrangementsSection 3(6) of the Migrant and Seasonal Agricultural Worker Protection Act (29 U.S.C. 1802(6)) is amended by inserting at the end the following: Such term does not include a migrant or seasonal agricultural worker who voluntarily enters into carpool arrangements or who is directed or requested to do so by a person pursuant to Federal, State, or local law.. | 12-13-2005 | [
"109 HR 4502 IH: Family Farm and Agricultural Definitions Restoration Act U.S. House of Representatives 2005-12-13 text/xml EN Pursuant to Title 17 Section 105 of the United States Code, this file is not subject to copyright protection and is in the public domain. I 109th CONGRESS 1st Session H. R. 4502 IN THE HOUSE OF REPRESENTATIVES December 13, 2005 Mr. Norwood (for himself, Mr. Davis of Tennessee, and Mr. Graves) introduced the following bill; which was referred to the Committee on Education and the Workforce A BILL To amend the Migrant and Seasonal Agricultural Worker Protection Act to provide an exemption for workers who work year-round and for other purposes. 1.Short titleThis Act may be cited as the Family Farm and Agricultural Definitions Restoration Act. 2.Applicability of the Migrant and Seasonal Agricultural Worker Protection Act (a)Family business exemptionSection 4(a)(1) of the Migrant and Seasonal Agricultural Worker Protection Act (29 U.S.C. 1803(a)(1)) is amended by inserting before the period the following: , such individual’s employees choose to work for another person in addition to their work for that individual, such individual used a State employment service agency to obtain employees, or such individual obtained referrals for employment from the other migrant or seasonal agricultural workers. (b)Year-Round employmentSection 3 of the Migrant and Seasonal Agricultural Worker Protection Act (29 U.S.C.",
"1802) is amended— (1)in paragraph (8)(B)— (A)in clause (i), by striking or at the end; (B)in clause (ii), by striking the period and inserting ; or; and (C)by adding at the end the following: (iii)any individual who is employed by a specific agricultural employer or association on a year-round basis. ; (2)in paragraph (10)(B)— (A)in clause (ii), by striking or at the end; (B)in clause (iii), by striking the period and inserting ; or; and (C)by adding at the end the following: (iv)any individual who is employed by a specific agricultural employer or association on a year-round basis.. (c)Carpool arrangementsSection 3(6) of the Migrant and Seasonal Agricultural Worker Protection Act (29 U.S.C. 1802(6)) is amended by inserting at the end the following: Such term does not include a migrant or seasonal agricultural worker who voluntarily enters into carpool arrangements or who is directed or requested to do so by a person pursuant to Federal, State, or local law.."
]
| https://www.govinfo.gov/content/pkg/BILLS-109hr4502ih/xml/BILLS-109hr4502ih.xml | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Case 1:15-cv-24440-MGC Document 80 Entered on FLSD Docket 12/26/2018 Page 1 of 19 `
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
Case No. 15-cv-24440-COOKE/TORRES
NGHIEM TRAN, Individually and on Behalf of All Others Similarly Situated,
Plaintiff,
v.
ERBA DIAGNOSTICS, INC., SURESH VAZIRANI, KEVIN D. CLARK, SANJIV SURI, MOHAN GOPALKRISHNAN, ARLENE RODRIGUEZ, PRAKASH PATEL, ERNESINA SCALA, ERBA DIAGNOSTICS MANNHEIM GMbH, TRANSASIA BIO MEDICALS LTD., and MAYER HOFFMAN MCCANN P.C.
Defendants.
CLASS REPRESENTATIVE’S MOTION FOR AN AWARD OF ATTORNEYS' FEES AND REIMBURSEMENT OF EXPENSES; MEMORANDUM OF LAW IN SUPPORT Case 1:15-cv-24440-MGC Document 80 Entered on FLSD Docket 12/26/2018 Page 2 of 19 `
TABLE OF CONTENTS
I. PRELIMINARY STATEMENT ........................................................................................ 1
II. CLASS COUNSEL’S EFFORTS FOR THE CLASS. ....................................................... 2
III. THE REQUESTED FEE AND EXPENSES ARE REASONABLE AND SHOULD BE APPROVED ....................................................................................................................... 3
A. A Reasonable Percentage of the Fund Recovered Is the Appropriate Method for
Awarding Attorneys’ Fees in the Eleventh Circuit ............................................................. 3
B. The Requested Fee is Reasonable Under the Camden factors ............................................ 3
1. Awards in similar cases .............................................................................. 4
2. Time and Labor Required ........................................................................... 5
3. The Novelty and Difficulty of the Questions Involved .............................. 6
4. The Skill Required to Perform the Legal Services Properly, and the Experience, Reputation, and Ability of the Attorneys ................................ 7
5. Preclusion of Other Employment................................................................ 8
6. The Customary and Contingent Nature of the Fee ..................................... 8
7. The Results Obtained .................................................................................. 9
8. The “Undesirability” of the Case .............................................................. 11
C. Important Public Policy Considerations Support The Requested Fees ............................ 11
D. Lead Counsel’s Expenses Are Reasonable and Were Necessarily Incurred to Achieve the
Benefit Obtained. .............................................................................................................. 12
E. Payments to Class Representatives ................................................................................... 13
IV. CONCLUSION ................................................................................................................. 13
i Case 1:15-cv-24440-MGC Document 80 Entered on FLSD Docket 12/26/2018 Page 3 of 19
TABLE OF AUTHORITIES
Page(s)
Cases
Allapattah Servs., Inc. v. Exxon Corp., 454 F. Supp. 2d 1185 (S.D. Fla. 2006) ..................................................................................... 11
Amgen Inc. v. Connecticut Ret. Plans & Tr. Funds, 568 U.S. 455 (2013) .................................................................................................................. 11
AOL Time Warner, Inc. Sec., No. 02 CIV. 5575 (SWK), 2006 WL 3057232 (S.D.N.Y. Oct. 25, 2006) .................................. 5
Behrens v. Wometco Enterprises, Inc., 118 F.R.D. 534 (S.D. Fla. 1988) ................................................................................... 6, 8, 9, 11
Boeing Co. v. Van Gemert, 444 U.S. 472 (1980) .................................................................................................................... 3
Camden I Condo. Ass'n, Inc. v. Dunkle, 946 F.2d 768 (11th Cir. 1991) ................................................................................................ 3, 4
Cifuentes v. Regions Bank, No. 11 CV 23455 FAM, 2014 WL 1153772 (S.D. Fla. Mar. 20, 2014) ................................... 12
City of Providence v. Aeropostale, Inc., No. 11 CIV. 7132 CM GWG, 2014 WL 1883494 (S.D.N.Y. May 9, 2014) .............................. 7
Dowdell v. City of Apopka, Fla., 698 F.2d 1181 (11th Cir. 1983) ................................................................................................ 11
Hensley v. Eckerhart, 461 U.S. 424 (1983) .................................................................................................................... 9
Heritage Bond Litig., No. 02-ML-1475-DT(RCX), 2005 WL 1594389 (C.D. Cal. June 10, 2005) ............................. 4
In re “Agent Orange” Prod. Liab. Litig., 611 F. Supp. 1396 (E.D.N.Y. 1985) ......................................................................................... 10
In re BankAtlantic Bancorp, Inc. Sec. Litig., No. 07-61542-CIV, 2011 WL 1585605 (S.D. Fla. Apr. 25, 2011) ............................................. 9
In re Checking Account Overdraft Litig., 830 F. Supp. 2d 1330 (S.D. Fla. 2011) ........................................................................... 9, 12, 13
ii Case 1:15-cv-24440-MGC Document 80 Entered on FLSD Docket 12/26/2018 Page 4 of 19
In re Gen. Instrument Sec. Litig., 209 F. Supp. 2d 423 (E.D. Pa. 2001) .......................................................................................... 4
In re Genta Sec. Litig., No. CIV. A. 04-2123 JAG, 2008 WL 2229843 (D.N.J. May 28, 2008) ................................... 12
In re Immune Response Sec. Litig., 497 F. Supp. 2d 1166 (S.D. Cal. 2007) ..................................................................................... 12
In re Lease Oil Antitrust Litig. (No. II), 186 F.R.D. 403 (S.D. Tex. 1999) ................................................................................................ 5
In re Rite Aid Corp. Sec. Litig., 146 F. Supp. 2d 706 (E.D. Pa. 2001) ........................................................................................ 10
In re Sterling Fin. Corp. Sec. Class Action, No. CIV.A. 07-2171, 2009 WL 2914363 (E.D. Pa. Sept. 10, 2009) .......................................... 6
In re Sunbeam Sec. Litig., 176 F. Supp. 2d 1323 (S.D. Fla. 2001) ................................................................................... 6, 8
Ingram v. The Coca-Cola Co., 200 F.R.D. 685 (N.D. Ga. 2001) ................................................................................................. 6
Mashburn v. Nat'l Healthcare, Inc., 684 F. Supp. 679 (M.D. Ala. 1988) ............................................................................................ 6
Missouri v. Jenkins by Agyei, 491 U.S. 274 (1989) .................................................................................................................... 6
Pace v. Quintanilla, No. SACV 14-2067-DOC, 2014 WL 4180766 (C.D. Cal. Aug. 19, 2014) ................................ 8
Pinto v. Princess Cruise Lines, Ltd., 513 F. Supp. 2d 1334 (S.D. Fla. 2007) ............................................................................. 6, 9, 13
Ressler v. Jacobson, 149 F.R.D. 651 (M.D. Fla. 1992)....................................................................................... passim
Robbins v. Koger Props., 116 F.3d 1441 (11th Cir. 1997) (reversing ................................................................................. 9
Vinh Nguyen v. Radient Pharm. Corp., No. SACV 11-00406 DOC, 2014 WL 1802293 (C.D. Cal. May 6, 2014) ................................. 7
Waters v. Int'l Precious Metals Corp., 190 F.3d 1291 (11th Cir. 1999) .................................................................................................. 6
iii Case 1:15-cv-24440-MGC Document 80 Entered on FLSD Docket 12/26/2018 Page 5 of 19
Wolff v. Cash 4 Titles, No., 03-22778-CIV, 2012 WL 5290155 (S.D. Fla. Sept. 26, 2012) ..................................... 5, 11
Yedlowski v. Roka Bioscience, Inc., No. 14-CV-8020-FLW-TJB, 2016 WL 6661336 (D.N.J. Nov. 10, 2016).................................. 7
Rules
Fed. R. Civ. P. 23(e) ....................................................................................................................... 1
iv Case 1:15-cv-24440-MGC Document 80 Entered on FLSD Docket 12/26/2018 Page 6 of 19 `
MOTION Nghiem Tran (“Class Representative” or “Lead Plaintiff”), upon the accompanying Memorandum of Law and the accompanying Declaration of Jonathan Horne In Support of Final Approval of Class Action and An Award of Attorneys’ Fees and Reimbursement of Expenses (“Horne Dec.”) and the exhibits attached thereto, hereby moves the Court pursuant to Fed. R. Civ. P. 23(e) for an Order: (1) awarding attorneys’ fees in the amount of $405,000; (2) reimbursement of $24,299.15 in expenses incurred in prosecuting this action; and (3) an award of $5,000 to the Class Representative. A [Proposed] Order approving the requested award of attorneys’ fees and expenses will be filed with Class Representative’s Reply in Further Support of this Motion. MEMORANDUM OF LAW I. PRELIMINARY STATEMENT A plaintiff who files a securities class action must issue notice to potential class members advising them that an action was filed and that they may move to be appointed lead plaintiff. Ordinarily, such notice draws perhaps half a dozen movants represented by leading plaintiffs’ securities law firms, all vying to represent the class. Not here. Plaintiff was the only movant seeking appointment in this undesirable case, and his counsel were the only ones willing to take on the role of lead counsel. Plaintiff zealously represented the proposed class, filing, investigating, and researching two complaints, opposing two lengthy motions to dismiss filed by leading firms, and, after the court’s dismissal, fully briefing an appeal against these same firms. Plaintiff now proposes to settle this case for $1.215 million. That is an exceptional result. Class Representatives’ damages expert, making numerous optimistic assumptions, estimates that if the Class won on every point at trial, damages could reach as high as $8.4 million. Thus, the Settlement recovers 14.5% of the maximum conceivable damages – against a median of 10.8% in cases with similar damages. That Defendants are willing to settle the case for such a large percentage of the Class’s losses, reflects the excellent and tenacious work Plaintiff engaged in to turn this undesirable case into a credible threat. The Class supports the result. To date, there have been no objections from Class Members, period, whether to the settlement itself or to any aspect of the request for fees. No Class Members have opted out of the Settlement.
1 Case 1:15-cv-24440-MGC Document 80 Entered on FLSD Docket 12/26/2018 Page 7 of 19
This is a meritorious action that returns to class members more than the typical class action. The case was so difficult that had Lead Counsel not pursued it, no other firm would have. Courts in this district typically award between 30% or 331/3% in securities class action settlements they approve. In light of the trying circumstances and the necessity of awarding sufficient fees to encourage meritorious lawsuits like this one to be filed and pursued, the Court should pick the higher of the two, and grant an award of one third of the Gross Settlement Fund. Class Representative also requests reimbursement of Class Counsel’s actual litigation expenses in the amount of $24,299.15. These expenses are reasonable, and are of the kind that attorneys usually expense to their clients. In the Eleventh Circuit, and throughout the Nation, class representatives are often granted service awards from the settlement to compensate them for their time and the risks incurred. Mr. Tran requests a service award of $5,000. Mr. Tran has shown diligence and dedication to this case and has made personal sacrifices for the Class, which now benefits from his efforts. II. Class Counsel’s efforts for the Class. This Action was filed by Class Counsel on December 2, 2015. (Dkt. # 1). Class Representative moved to be appointed lead plaintiff and have Class Counsel appointed as lead counsel in March 2016 (dkt. # 20), and both were appointed in April 2016. (Dkt. # 31). In order to plead an amended complaint, Class Representative thoroughly investigated the claims in this action, consulting a damages expert, scouring ERBA’s public filings and news published about it, and interviewing more than a dozen former ERBA employees. Horne Dec. ¶ 7. Class Representative then timely filed his Amended Class Action Complaint For Violations of the Federal Securities Laws (the “Amended Complaint”). (Dkt. # 34). The ERBA Defendants and MHM each filed 20-page complex motions to dismiss the Complaint, which Plaintiff opposed. Dkts. # 40, 41, 45. Plaintiff then appeared for a hearing on Defendants’ motions to dismiss, which the Court granted. After dismissal, Class Representative appeared for a mediation before the Eleventh Circuit mediator. Horne Dec. ¶ 4. When that mediation failed, the Parties fully briefed Class Representative’s appeal. After full briefing, the Parties reached a settlement in principle. Id. Thereafter, Class Representative negotiated the Settlement’s complex terms, sought an indicative ruling from this Court that it would consider a motion for preliminary approval of settlement,
2 Case 1:15-cv-24440-MGC Document 80 Entered on FLSD Docket 12/26/2018 Page 8 of 19
obtained a limited remand from the Eleventh Circuit to do so, and obtained preliminary approval from this Court. III. THE REQUESTED FEE AND EXPENSES ARE REASONABLE AND SHOULD BE APPROVED A. A Reasonable Percentage of the Fund Recovered Is the Appropriate Method for Awarding Attorneys’ Fees in the Eleventh Circuit Attorneys who achieve a benefit for class members in the form of a “common fund” are entitled to be compensated for their services from that settlement fund. See Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980) (“[A] litigant or a lawyer who recovers a common fund for the benefit of persons other than himself or his client is entitled to a reasonable attorney’s fee from the fund as a whole”); see also Camden I Condo. Ass'n, Inc. v. Dunkle, 946 F.2d 768, 771 (11th Cir. 1991). In the Eleventh Circuit, courts must determine the appropriate award to attorneys by granting them a percentage of the fund created through their efforts, dubbed the “percentage of the fund method.” Camden, 946 F.2d at 774-75 (“the percentage of the fund approach is the better reasoned in a common fund case. . . [h]enceforth in this circuit, attorneys’ fees awarded from a common fund shall be based upon a reasonable percentage of the fund established for the benefit of the class”). This approach appropriately encourages counsel to obtain the maximum recovery for the class at the earliest possible stage of the litigation and, hence, most fairly ties plaintiffs’ counsel’s compensation to the benefit achieved for the class. There is no “hard and fast” rule dictating what constitutes a reasonable percentage of the recovery to award “because the amount of any fee must be determined upon the facts of each case.” Camden, 946 F.2d at 775.1 B. The Requested Fee is Reasonable Under the Camden factors Under Camden, the court first fixes a benchmark, and then considers the so-called Camden factors to determine what constitutes a reasonable percentage award. See Camden, 946 F.2d at 773, 775. These factors include: (i) awards in similar cases; (ii) the time and labor required; (iii) the novelty and the difficulty of the questions; (iv) the skill requisite to perform the legal service properly, including the experience, reputation, and ability of the attorneys; (v) the preclusion of other employment by the attorney due to the acceptance of the case; (vi) the customary fee, including whether the fee is fixed or contingent; (vii) the amount involved and the results obtained;
1 In this regard, the Eleventh Circuit expressly noted that “an upper limit of 50% of the fund may be stated as a general rule, although even larger percentages have been awarded.” Id. at 774–75. 3 Case 1:15-cv-24440-MGC Document 80 Entered on FLSD Docket 12/26/2018 Page 9 of 19
(viii) the “undesirability” of the case; and (ix) the nature and length of the professional relationship with the client.2 1. Awards in similar cases Camden, decided in 1991, suggested that an appropriate initial bench mark would be 25%, which courts should adjust up or down based on the specific facts of the cases. Camden, 946 F.2d at 775. But courts in securities class actions typically award higher percentages. Indeed, in the vast majority of securities class actions, courts in this district award attorneys’ fees of either 30% or 331/3%. Shah v. DS Healthcare Group Inc. et al, No. 0:16-cv-60661-WPD, dkt. # 81, at ¶21 (S.D. Fla. 2017) (331/3% of $2,100,000 fund); In re Home Loan Servicing Solutions, Ltd. Securities Litigation, No. 0:16-cv-60165-WPD, dkt. # 119, at ¶16 (S.D. Fla. 2016) (331/3% of $6,000,000 fund); Sood v. Catalyst Pharmaceutical Partners Inc. et al, No. 1:13-cv-23878-UU, dkt. # 153, at ¶18 (331/3% of $3,500,000 fund); Howard v. Chanticleer Holdings, Inc., No. 12-cv-81123-JIC, dkt. # 74, at ¶4 (S.D. Fla. 2014) (331/3% of $850,000 fund); Fuller v. Imperial Holdings, 11-cv- 81184-KAM, Dkt. # 95, at ¶17 (S.D. Fla. Dec. 16, 2013) (30% of $12 million fund); Murdeshwar v. Searchmedia Holdings Ltd., 11-cv-20549, dkt # 103, at ¶14 (S.D. Fla. Apr. 25, 2012) (331/3% of $2.75 million fund); Schorrig v. IBM Southeast Employees’ Federal Credit Union, 09-cv-80973- KLR, dkt. # 155, at *11 (S.D. Fla. Feb. 24, 2012) (30% of $950,000 fund); City Pension Fund for Firefighters and Police Officers in the City of Miami Beach v. Aracruz Celulose S.A., 08-cv-23317- JAL, dkt. # 201, at ¶14 (S.D. Fla. July 17, 2013) (331/3% of $37.5 million fund); Waterford Township General Employees Retirement System v. Bankunited Financial Corporation, No. 08- cv-22572-MGC, dkt. # 164, at ¶11 (S.D. Fla. June 14, 2013) (30% of $3,000,000 fund); Dance v. Levitt Corporation, No. 08-cv-60111-DLG, dkt # 151, at ¶14 (S.D. Fla. Sep. 29, 2011) (331/3% of $1,948,050 fund); Miller v. Dyadic International, Inc., No. 07-cv-80948-WPD, dkt, # 236, at ¶4 (S.D. Fla. July 28, 2010) (331/3% of $4,800,000 fund). Securities class actions have some structural features that call for higher awards. For example, they are “highly complex,”3 require an
2 Class Counsel had no relationship with Class Representative before this action, and there were no time limits imposed by the client or the circumstances. 3 In re Gen. Instrument Sec. Litig., 209 F. Supp. 2d 423, 433 (E.D. Pa. 2001); In re Heritage Bond Litig., No. 02-ML-1475-DT(RCX), 2005 WL 1594389, at *12 (C.D. Cal. June 10, 2005). 4 Case 1:15-cv-24440-MGC Document 80 Entered on FLSD Docket 12/26/2018 Page 10 of 19
extraordinary investment of time and resources and provide class members with hard cash rather than coupons.4 In a case similar to a securities class action, Judge Torres (in a report adopted by Judge Cohn) reflected on the factors that led him to grant an award of one third of the settlement fund, or $4,781,794.89. Wolff v. Cash 4 Titles, No. 03-22778-CIV, 2012 WL 5290155, at *4, *7 (S.D. Fla. Sept. 26, 2012), report and recommendation adopted, No. 03-22778-CIV, 2012 WL 5289628 (S.D. Fla. Oct. 25, 2012). There, a RICO case, counsel recovered 65% of investors’ losses, or about 21.7% of total RICO damages, similar to the 23.5% recovery here. Id. at *1. Like in this case, “it was class counsel that bore alone the entire risk of this representation,” including the risk of substantial unreimbursed expenses if they could not achieve a recovery. Id. at *1-2. And like in this case, “[p]erhaps the best objective test of the risk inherent in this litigation is the absence of any other attorneys willing to represent the class on a contingent fee basis,” id. at *3. though here counsel issued the statutorily-mandated press release announcing the lawsuit and inviting other contenders. Here, as there, the Settlement is more valuable because it doesn’t provide class members with vague non-monetary relief or coupons, but cash. Id. at *3.5 The Wolff case had its share of difficulties, such as the difficulty of pursuing foreign proceedings, but this one had as well. To plead his claims, Plaintiff had to obtain inside knowledge from former employees of ERBA’s accounting department. Yet ERBA is a small company and its accounting department is tiny. Finding an employee from that department willing to talk to Plaintiff is an exceptionally tall order. 2. Time and Labor Required Lead Counsel has devoted significant time and resources to researching, investigating, and prosecuting of this action. By the time the Settlement was reached, Lead Counsel: (a) thoroughly investigated the facts and law of claims against ERBA; (b) retained private investigators and interviewed former ERBA employees; (c) drafted his initial and operative amended complaint; (d) obtained an expert damages report; (e) opposed the ERBA Defendants’ and MHM’s motions to dismiss; (f) filed an appellate brief and reply; (g) participated in a mediation; (h) had numerous
4 In re AOL Time Warner, Inc. Sec., No. 02 CIV. 5575 (SWK), 2006 WL 3057232, at *10 (S.D.N.Y. Oct. 25, 2006); In re Lease Oil Antitrust Litig. (No. II), 186 F.R.D. 403, 447 (S.D. Tex. 1999) (antitrust class action with cash payment). 5 Indeed, Wolff cited eight decisions from the Southern and Middle districts of Florida awarding 33% of the fund or more, and a further thirteen awarding between 30% and 33%. Id. at *6. 5 Case 1:15-cv-24440-MGC Document 80 Entered on FLSD Docket 12/26/2018 Page 11 of 19
calls with Defendants’ counsel. See Horne Dec. ¶ 7. After the parties agreed on the dollar figure, they negotiated the Stipulation of Settlement, including the exhibits thereto, a difficult and complex task. Indeed, Class Counsel expended over 345.55 hours with a market value, or lodestar, of $248,932.75 at counsel’s current billing rates, providing for a minimal multiplier of 1.63.6 See Declaration of Jonathan Horne Concerning Fees, ¶ 6 (“Horne Fees Dec.”), attached to the Horne Dec. as Exhibit 2. While not required in the Eleventh Circuit, an analysis of the requested fee under the “lodestar/multiplier” approach further supports the reasonableness of an award of one-third of the Settlement Amount fee. Waters v. Int'l Precious Metals Corp., 190 F.3d 1291, 1298 (11th Cir. 1999) (“while we have decided in this circuit that a lodestar calculation is not proper in common fund cases, we may refer to that figure for comparison”). The 1.63 multiplier requested here is below the range of multipliers frequently awarded in class action settlements of similar magnitude in courts within the Eleventh Circuit. See, e.g., Pinto v. Princess Cruise Lines, Ltd., 513 F. Supp. 2d 1334, 1344 (S.D. Fla. 2007) (noting that lodestar multipliers “‘in large and complicated class actions’ range from 2.26 to 4.5” and that “three appears to be the average”); Ingram v. The Coca- Cola Co., 200 F.R.D. 685, 694–96 (N.D. Ga. 2001) (awarding fee representing a multiplier between 2.5 and 4); Mashburn v. Nat'l Healthcare, Inc., 684 F. Supp. 679, 702 (M.D. Ala. 1988) (“A multiplier of approximately 3.1 in a national class action securities case is not unusual or unreasonable.”). As such, the time and labor expended justify the fee requested. 3. The Novelty and Difficulty of the Questions Involved Class Representative faced all the “multi-faceted and complex legal questions endemic” to cases based on alleged violations of federal securities law. Ressler v. Jacobson, 149 F.R.D. 651, 654 (M.D. Fla. 1992); In re Sunbeam Sec. Litig., 176 F. Supp. 2d 1323, 1334 (S.D. Fla. 2001) (same). Moreover, “securities actions have become more difficult from a plaintiff’s perspective in
6 The Supreme Court has held that the use of current rather than historical rates is appropriate in examining the lodestar because current rates more adequately compensate for inflation and the loss of use of funds. See Missouri v. Jenkins by Agyei, 491 U.S. 274, 283–84 (1989). Courts in this Circuit also have stated that it is appropriate to use counsel’s current rates in order to compensate for the delay in payment and inflation. See, e.g., Behrens v. Wometco Enterprises, Inc., 118 F.R.D. 534, 546 (S.D. Fla. 1988). Rates of The Rosen Law Firm, P.A. substantially identical to those charged here were recently approved in Barocio v. Yingli Green Energy Holdings Co. Ltd., 15-cv-4003-ODW (MRWx), dkts. # 141-2, 149. 6 Case 1:15-cv-24440-MGC Document 80 Entered on FLSD Docket 12/26/2018 Page 12 of 19
the wake of the PSLRA.” In re Sterling Fin. Corp. Sec. Class Action, No. CIV.A. 07-2171, 2009 WL 2914363, at *4 (E.D. Pa. Sept. 10, 2009). This difficulty justifies a high percentage award. Yedlowski v. Roka Bioscience, Inc., No. 14-CV-8020-FLW-TJB, 2016 WL 6661336, at *22 (D.N.J. Nov. 10, 2016). Securities class action plaintiffs, like Plaintiff here, often try to meet the PSLRA’s burdens by alleging facts they obtained from former employees. Both the facts and the former employees’ sources of knowledge must be alleged with particularity; allegations about what is common knowledge within the company will not do. With ERBA’s tiny accounting department, there simply were not many employees with relevant knowledge, let alone willing to voluntarily tell us what they knew. And indeed, the Court held that Plaintiff had not sufficiently alleged the Defendants’ scienter. Should the Eleventh Circuit reverse, Plaintiff would have to prove the claims they alleged. As more fully set out in Plaintiff’s Final Approval Brief, discovery in this case would be complex, uncertain, and expensive. Among other things, Plaintiff would hire experts to opine on at least market efficiency, loss causation, damages, and various accounting issues. Defendants would present their own expert, and the results of battles of the experts are notoriously difficult to predict. City of Providence v. Aeropostale, Inc., No. 11 CIV. 7132 CM GWG, 2014 WL 1883494, at *9 (S.D.N.Y. May 9, 2014). Taking depositions would be challenging in this international case, as some of the Defendants and many of the persons with knowledge are based in India, with others based in Germany and France. Should the case have advanced to trial, Defendants would likely have argued that their disclosure adequately informed the public regarding ERBA’s internal control issues, and that they had enough cash to pay their obligations as they came due but merely missed payments to vendor, as many businesses do. Class Representative might not have been able to convince the jury that Defendants’ statement was materially false. 4. The Skill Required to Perform the Legal Services Properly, and the Experience, Reputation, and Ability of the Attorneys The quality of the representation by Class Counsel and the standing of Class Counsel are important factors that support the reasonableness of the requested fee. See Ressler, 149 F.R.D. at 654. Class Counsel has developed a reputation for zealous advocacy even in relatively small securities class actions like this one. Vinh Nguyen v. Radient Pharm. Corp., No. SACV 11-00406
7 Case 1:15-cv-24440-MGC Document 80 Entered on FLSD Docket 12/26/2018 Page 13 of 19
DOC, 2014 WL 1802293, at *9 (C.D. Cal. May 6, 2014) (Rosen Law Firm “took on significant risk in this case, working thoroughly and enthusiastically through extensive litigation that required significant expert involvement”); Pace v. Quintanilla, No. SACV 14-2067-DOC, 2014 WL 4180766, at *3 (C.D. Cal. Aug. 19, 2014) (“Indeed, The Rosen Law Firm has appeared before this Court several times before, and the Court is confident that it has the necessary skill and knowledge to effectively prosecute this action”). Class Counsel’s hard-won reputation allowed them to credibly threaten to take this case as far as it takes. A copy of Class Counsel’s firm resume is appended to the Declaration of Laurence Rosen on Behalf of The Rosen Law Firm, P.A. Concerning Attorneys’ Fees and Expenses (the “Rosen Fee Dec.”) As noted above, the case required significant effort and resiliency. Plaintiffs claims were dismissed – yet Plaintiff’s counsel persevered in briefing an appeal and achieved a significant recovery that benefits the class. The quality of opposing counsel is also important in evaluating the quality of Lead Counsel’s work. See, e.g., Sunbeam, 176 F. Supp. 2d at 1334; Ressler, 149 F.R.D. at 654. The ERBA Defendants were represented by experienced and highly-skilled lawyers from Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., which recently won an award for Litigation Department of the Year for Real Estate & Other Litigation – Midsize Law Firms, and MHM was represented by DLA Piper, a renowned nationwide law firm. Defense counsel have reputations for vigorous advocacy in the defense of complex civil cases such as this. That Class Counsel obtained this significant Settlement in the face of such skilled opposition shows that its representation was excellent. 5. Preclusion of Other Employment When Class Counsel undertook to represent Plaintiffs in this matter, it understood that it would spend significant time and make significant out-of-pocket expenses. Class Counsel did not settle this case quickly, but only after briefing and arguing a motion to dismiss and fully briefing the appeal on the decision thereof. The time spent by Class Counsel on this case was at the expense of the time that they could have devoted to other matters. 6. The Customary and Contingent Nature of the Fee The “customary fee” in a class action lawsuit of this nature is a contingency fee because virtually no individual possesses a sufficiently large stake in the litigation to justify paying his attorneys on an hourly basis. See Ressler, 149 F.R.D. at 654. The Court should give substantial
8 Case 1:15-cv-24440-MGC Document 80 Entered on FLSD Docket 12/26/2018 Page 14 of 19
weight to the contingent nature of Class Counsel’s fees when assessing the fee request. See Behrens, 118 F.R.D. at 548. Courts have consistently recognized that the risk of receiving little or no recovery is a major factor in determining the award of fees, and that skilled counsel should be encouraged to undertake this risk. See In re Checking Account Overdraft Litig., 830 F. Supp. 2d 1330, 1364 (S.D. Fla. 2011) (“Numerous cases recognize that the contingent fee risk is an important factor in determining the fee award.”); Pinto, 513 F. Supp. 2d at 1339 (“attorneys’ risk is ‘perhaps the foremost factor’ in determining an appropriate fee award”); Behrens, 118 F.R.D. at 548 (“A contingency fee arrangement often justifies an increase in the award of attorneys’ fees”). This case is fully contingent, meaning that Class Counsel has not received any payments whatsoever and has put up $24,299.15 of its own money for out-of-pocket expenses, while paying attorney salaries, for the duration of the case. Experience eventually teaches every lawyer that there is no such thing as a certain win in litigation. In similar cases, plaintiffs’ counsel have suffered major defeats after years of litigation, trial, and appeals in which they expended millions of dollars in time and received no compensation at all. Even a victory at trial does not guarantee success. See In re BankAtlantic Bancorp, Inc. Sec. Litig., No. 07-61542-CIV, 2011 WL 1585605, at *22 (S.D. Fla. Apr. 25, 2011) (granting motion for Judgment as a Matter of Law and Motion for New Trial). And even surviving post-trial motions in the district court is no guarantee of success on appeal. Robbins v. Koger Props., 116 F.3d 1441, 1148-49 (11th Cir. 1997) (reversing $81.3 million jury verdict in a securities class action after almost seven years of litigation and rendering judgment in favor of defendant based on novel ruling that plaintiffs could not establish loss causation by showing the price of the security was inflated by the misrepresentations). Because the fee in this matter was entirely contingent, the only thing that was certain was that Class Counsel would receive no fee if it obtained no recovery. The contingent nature of Class Counsel’s representation strongly favors the requested fee. 7. The Results Obtained Courts have consistently recognized that the result achieved is a major factor to be considered in making a fee award. Hensley v. Eckerhart, 461 U.S. 424, 436 (1983) (“most critical factor is the degree of success obtained”); Ressler, 149 F.R.D. at 655 (“It is well-settled that one of the primary determinants of the quality of the work performed is the result obtained.”).
9 Case 1:15-cv-24440-MGC Document 80 Entered on FLSD Docket 12/26/2018 Page 15 of 19
The $1.215 million Settlement is an outstanding result. In this case, Class Counsel retained a damages expert who analyzed Class Representative’s recovery (if Class Representative won at trial, overcame Defendants’ affirmative defense, maintained certification, and defeated Defendants’ affirmative defenses). Horne Dec. ⁋ 5. To arrive at a “best case” maximum estimate of damages, the expert made several optimistic or ad hoc assumptions. In a securities class action, plaintiffs typically measure per-share damages as the decline in value of the stock price following disclosures that reveal the fraud, called corrective disclosures. Here, the expert assumed that Plaintiff would be able to prove that every one of the corrective disclosures set out in the Complaint was caused by Defendants’ false statements. Id. When measuring damages, experts must then account for the impact of non-fraud related news disclosed at the same time as the corrective disclosures. Damages are particularly apt to be slashed when the corrective disclosure is a release of the company’s annual or quarterly results as at that time the company discloses a great deal of information. Here, though, the expert assumed that the entirety of the drop following the corrective disclosures was attributable to the fraud, even though 3 of the 5 corrective disclosures were made in earnings releases. Id. Finally, where including a second day’s drop would increase damages, Plaintiff’s expert made the ad hoc assumption that the second day’s drop was likewise attributable to the fraud. Id. With these doubtful assumptions, Class Representative’s expert estimated that total maximum damages were $8.4 million. Id.7 The Settlement thus returns an excellent 14.5% of maximum damages, significantly higher than the average recovery in cases of a similar size. See Securities Class Action Settlements – 2016 Review and Analysis, by Laarni T. Bulan, et al. (Cornerstone 2017), at 8 (attached as Exhibit 3 to the Horne Dec.) (in cases with estimated damages of less than $50 million, median settlement between 2005-2016 returned 10.8% of estimated damages);8 In re Rite Aid Corp. Sec. Litig., 146 F. Supp. 2d 706, 715 (E.D. Pa. 2001) (noting that since 1995, class action settlements have typically recovered “between 5.5% and 6.2% of the class members’ estimated losses”). And the Settlement provides for payment to Class Members now, without delay, and not some wholly-speculative payment of a hypothetically-larger amount years down the road. “[M]uch of the value of a settlement lies in the ability to make funds available promptly.” In re “Agent
7 Defendants dispute Class Representative’s damages estimate. 8 Also available at < http://securities.stanford.edu/research-reports/1996-2013/Settlements- Through-12-2013.pdf >. 10 Case 1:15-cv-24440-MGC Document 80 Entered on FLSD Docket 12/26/2018 Page 16 of 19
Orange” Prod. Liab. Litig., 611 F. Supp. 1396, 1405 (E.D.N.Y. 1985). Indeed, EBRA has not filed any quarterly or annual financial statements since August 2015. Its financial soundness cannot be guaranteed, particularly if a judgment were to be entered against it. In contrast, this settlement provides a guaranteed recovery for Class Members. 8. The “Undesirability” of the Case This is a complex case against defendants with modest financial resources. ERBA is a development stage company with little insurance and few revenues. Moreover, damages in this case were relatively small for a securities class action. Thus, even if a plaintiff could establish that Defendants were not merely inexcusably negligent but reckless, the plaintiff might be left chasing a company that might not survive the litigation without the possibility of a large recovery the plaintiff might see in a large damages case. The case, put simply, was undesirable. Indeed, after he filed his Complaint, Plaintiff published statutorily mandated notice. Dkt. # 20-4. Such notice typically draws perhaps a half-dozen class members and their lawyers to file motions to be appointed as lead plaintiffs. Not here - Class Counsel were the only attorneys willing to take on this difficult case. The results achieved show that this was a meritorious case that should have been brought, but the fact that no other firm was willing to take it shows that it was also an undesirable case. Proving the point, one other law firm filed a substantively identical complaint, but then quickly withdrew it before Defendants filed any motion to dismiss. C. Important Public Policy Considerations Support The Requested Fees Public policy considerations support the requested fee award. “Congress, the Executive Branch, and this Court, moreover, have ‘recognized that meritorious private actions to enforce federal antifraud securities laws are an essential supplement to criminal prosecutions and civil enforcement actions brought, respectively, by the Department of Justice and the Securities and Exchange Commission.’” Amgen Inc. v. Connecticut Ret. Plans & Tr. Funds, 568 U.S. 455 (2013); Halliburton Co. v. Erica P. John Fund, Inc., No. 13-317, Brief for the United States as Amicus Curiae Supporting Respondent, at 1-2 (similar). Courts should award fees high enough to encourage lawyers to bring meritorious actions. Ressler, 149 F.R.D. at 657; accord Allapattah Servs., Inc. v. Exxon Corp., 454 F. Supp. 2d 1185, 1217 (S.D. Fla. 2006); Wolff, 2012 WL 5290155, at *5. In this case, the rationale is especially compelling. Class Counsel have delivered class members an award significantly higher than what the median securities class action provides. Thus,
11 Case 1:15-cv-24440-MGC Document 80 Entered on FLSD Docket 12/26/2018 Page 17 of 19
this is a case that should have been filed and prosecuted, but would not have been but for Class Counsel. D. Lead Counsel’s Expenses Are Reasonable and Were Necessarily Incurred to Achieve the Benefit Obtained. Litigation expenses should be reimbursed if they are “reasonable and necessary to obtain the settlement.” Ressler, 149 F.R.D. at 657; see also Dowdell v. City of Apopka, Fla., 698 F.2d 1181, 1192 (11th Cir. 1983) (“all reasonable expenses incurred in case preparation, during the course of litigation, or as an aspect of settlement of the case” may be recovered); Behrens, 118 F.R.D. at 549 (“plaintiff’s counsel is entitled to be reimbursed from the class fund for the reasonable expenses incurred in this action”); 1 Alba Conte, Attorney Fee Awards, § 2.19, at 73- 74 (3d ed. 2006) (“Alba Conte”) (“an attorney who creates or preserves a common fund by judgment or settlement for the benefit of a class is entitled to receive reimbursement of reasonable fees and expenses involved”). Class Counsel efficiently litigated this action and incurred expenses totaling $24,299.15 to prosecute and resolve this Action. See Horne Fee Dec., ¶ 8. These expenses include amounts incurred to pay fees of consulting experts, mediation fees, copying, telephone, travel costs, computer-assisted research, court fees, travel, mailing and fax costs, and other customary expenditures. Id. Travel, experts, copying, court fees, claims administration and other customary expenditures should be reimbursed. Cifuentes v. Regions Bank, No. 11 CV 23455 FAM, 2014 WL 1153772, at *8 (S.D. Fla. Mar. 20, 2014). Likewise, “[r]easonable costs of computerized legal research are generally compensable.” Alba Conte, 2.19, at n.16 (“Reasonable costs of computerized legal research are generally reimbursable”); In re Immune Response Sec. Litig., 497 F. Supp. 2d 1166, 1178 (S.D. Cal. 2007) (computer legal research costs recoverable because essential); In re Genta Sec. Litig., No. CIV. A. 04-2123 JAG, 2008 WL 2229843, at *11 (D.N.J. May 28, 2008) (similar). The expenses incurred were reasonable and necessary to successfully prosecute this case. The Notice informed Settlement Class Members that Lead Counsel would seek reimbursement of expenses in an amount not to exceed $30,000. See Declaration of Josephine Bravata Concerning The Mailing of The Notice Of Pendency and Proposed Settlement of Class Action and Proof of
12 Case 1:15-cv-24440-MGC Document 80 Entered on FLSD Docket 12/26/2018 Page 18 of 19
Claim and Release Form, Ex. A. To date, there have been no objections to Lead Counsel’s request for expenses. Id. at ¶10. The deadline to object is March January 3, 2019. Id. E. Payment to Class Representative Service awards “compensate named plaintiffs for the services they provided and the risks they incurred during the course of the class action litigation.” In re Checking Account Overdraft Litigation, 830 F. Supp. 2d at 1357 (granting service awards of $5,000 per class representative). Courts determine service awards by looking at “(1) the actions the class representatives took to protect the interests of the class; (2) the degree to which the class benefited from those actions; and (3) the amount of time and effort the class representatives expended in pursuing the litigation.” Id. Courts in this district commonly authorize service awards. Pinto, 513 F. Supp. 2d at 1344 ($7,500 per plaintiff). Courts have routinely authorized substantial payments to lead plaintiffs when requested in class action settlements approved in this District. Aracruz Celulose, at ¶ 16 ($40,000); IBM, at 11 ($1,500 for each class representative); Imperial Holdings, at ¶21 ($10,000). Here, Nghiem Tran was the only class member willing to take on the role of Lead Plaintiff. The Class now benefits from his efforts. There were no objections to an award. The Court should award Mr. Tran $5,000. IV. CONCLUSION For the foregoing reasons, the Court should award Class Counsel 331/3% of the Gross Settlement Fund, or $405,000.00, award reimbursement of expenses of $24,299.15, and award Class Representative $5,000.
Dated: December 26, 2018 Respectfully submitted, THE ROSEN LAW FIRM, P.A.
___/s/ Jonathan Horne _ Jonathan Horne (pro hac vice) Laurence M. Rosen Fla. Bar No. 0182877 275 Madison Avenue, 34th Floor New York, New York 10016 Phone: (212) 686-1060 Fax: (212) 202-3827
Class Counsel
13 Case 1:15-cv-24440-MGC Document 80 Entered on FLSD Docket 12/26/2018 Page 19 of 19
CERTIFICATE OF SERVICE
I hereby certify that on this on the December 26, 2018, a true and correct copy of the
foregoing document was served by CM/ECF to the parties registered to the Court's CM/ECF
system.
/s/ Laurence Rosen
14 | 2018-12-26 | [
"Case 1:15-cv-24440-MGC Document 80 Entered on FLSD Docket 12/26/2018 Page 1 of 19 ` UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 15-cv-24440-COOKE/TORRES NGHIEM TRAN, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. ERBA DIAGNOSTICS, INC., SURESH VAZIRANI, KEVIN D. CLARK, SANJIV SURI, MOHAN GOPALKRISHNAN, ARLENE RODRIGUEZ, PRAKASH PATEL, ERNESINA SCALA, ERBA DIAGNOSTICS MANNHEIM GMbH, TRANSASIA BIO MEDICALS LTD., and MAYER HOFFMAN MCCANN P.C. Defendants. CLASS REPRESENTATIVE’S MOTION FOR AN AWARD OF ATTORNEYS' FEES AND REIMBURSEMENT OF EXPENSES; MEMORANDUM OF LAW IN SUPPORT Case 1:15-cv-24440-MGC Document 80 Entered on FLSD Docket 12/26/2018 Page 2 of 19 ` TABLE OF CONTENTS I.",
"PRELIMINARY STATEMENT ........................................................................................ 1 II. CLASS COUNSEL’S EFFORTS FOR THE CLASS. ....................................................... 2 III. THE REQUESTED FEE AND EXPENSES ARE REASONABLE AND SHOULD BE APPROVED ....................................................................................................................... 3 A. A Reasonable Percentage of the Fund Recovered Is the Appropriate Method for Awarding Attorneys’ Fees in the Eleventh Circuit ............................................................. 3 B. The Requested Fee is Reasonable Under the Camden factors ............................................ 3 1. Awards in similar cases .............................................................................. 4 2. Time and Labor Required ........................................................................... 5 3. The Novelty and Difficulty of the Questions Involved .............................. 6 4. The Skill Required to Perform the Legal Services Properly, and the Experience, Reputation, and Ability of the Attorneys ................................ 7 5. Preclusion of Other Employment................................................................ 8 6.",
"The Customary and Contingent Nature of the Fee ..................................... 8 7. The Results Obtained .................................................................................. 9 8. The “Undesirability” of the Case .............................................................. 11 C. Important Public Policy Considerations Support The Requested Fees ............................ 11 D. Lead Counsel’s Expenses Are Reasonable and Were Necessarily Incurred to Achieve the Benefit Obtained. .............................................................................................................. 12 E. Payments to Class Representatives ................................................................................... 13 IV. CONCLUSION ................................................................................................................. 13 i Case 1:15-cv-24440-MGC Document 80 Entered on FLSD Docket 12/26/2018 Page 3 of 19 TABLE OF AUTHORITIES Page(s) Cases Allapattah Servs., Inc. v. Exxon Corp., 454 F. Supp. 2d 1185 (S.D. Fla. 2006) ..................................................................................... 11 Amgen Inc. v. Connecticut Ret. Plans & Tr.",
"Funds, 568 U.S. 455 (2013) .................................................................................................................. 11 AOL Time Warner, Inc. Sec., No. 02 CIV. 5575 (SWK), 2006 WL 3057232 (S.D.N.Y. Oct. 25, 2006) .................................. 5 Behrens v. Wometco Enterprises, Inc., 118 F.R.D. 534 (S.D. Fla. 1988) ................................................................................... 6, 8, 9, 11 Boeing Co. v. Van Gemert, 444 U.S. 472 (1980) .................................................................................................................... 3 Camden I Condo. Ass'n, Inc. v. Dunkle, 946 F.2d 768 (11th Cir. 1991) ................................................................................................ 3, 4 Cifuentes v. Regions Bank, No. 11 CV 23455 FAM, 2014 WL 1153772 (S.D. Fla. Mar. 20, 2014) ................................... 12 City of Providence v. Aeropostale, Inc., No. 11 CIV. 7132 CM GWG, 2014 WL 1883494 (S.D.N.Y. May 9, 2014) .............................. 7 Dowdell v. City of Apopka, Fla., 698 F.2d 1181 (11th Cir.",
"1983) ................................................................................................ 11 Hensley v. Eckerhart, 461 U.S. 424 (1983) .................................................................................................................... 9 Heritage Bond Litig., No. 02-ML-1475-DT(RCX), 2005 WL 1594389 (C.D. Cal. June 10, 2005) ............................. 4 In re “Agent Orange” Prod. Liab. Litig., 611 F. Supp. 1396 (E.D.N.Y. 1985) ......................................................................................... 10 In re BankAtlantic Bancorp, Inc. Sec. Litig., No. 07-61542-CIV, 2011 WL 1585605 (S.D. Fla. Apr. 25, 2011) ............................................. 9 In re Checking Account Overdraft Litig., 830 F. Supp. 2d 1330 (S.D. Fla. 2011) ........................................................................... 9, 12, 13 ii Case 1:15-cv-24440-MGC Document 80 Entered on FLSD Docket 12/26/2018 Page 4 of 19 In re Gen. Instrument Sec. Litig., 209 F. Supp. 2d 423 (E.D. Pa. 2001) .......................................................................................... 4 In re Genta Sec. Litig., No. CIV. A. 04-2123 JAG, 2008 WL 2229843 (D.N.J. May 28, 2008) ................................... 12 In re Immune Response Sec. Litig., 497 F. Supp. 2d 1166 (S.D. Cal. 2007) ..................................................................................... 12 In re Lease Oil Antitrust Litig.",
"(No. II), 186 F.R.D. 403 (S.D. Tex. 1999) ................................................................................................ 5 In re Rite Aid Corp. Sec. Litig., 146 F. Supp. 2d 706 (E.D. Pa. 2001) ........................................................................................ 10 In re Sterling Fin. Corp. Sec. Class Action, No. CIV.A. 07-2171, 2009 WL 2914363 (E.D. Pa. Sept. 10, 2009) .......................................... 6 In re Sunbeam Sec. Litig., 176 F. Supp. 2d 1323 (S.D. Fla. 2001) ................................................................................... 6, 8 Ingram v. The Coca-Cola Co., 200 F.R.D. 685 (N.D. Ga. 2001) ................................................................................................. 6 Mashburn v. Nat'l Healthcare, Inc., 684 F. Supp. 679 (M.D.",
"Ala. 1988) ............................................................................................ 6 Missouri v. Jenkins by Agyei, 491 U.S. 274 (1989) .................................................................................................................... 6 Pace v. Quintanilla, No. SACV 14-2067-DOC, 2014 WL 4180766 (C.D. Cal. Aug. 19, 2014) ................................ 8 Pinto v. Princess Cruise Lines, Ltd., 513 F. Supp. 2d 1334 (S.D. Fla. 2007) ............................................................................. 6, 9, 13 Ressler v. Jacobson, 149 F.R.D. 651 (M.D. Fla. 1992)....................................................................................... passim Robbins v. Koger Props., 116 F.3d 1441 (11th Cir. 1997) (reversing ................................................................................. 9 Vinh Nguyen v. Radient Pharm. Corp., No. SACV 11-00406 DOC, 2014 WL 1802293 (C.D. Cal.",
"May 6, 2014) ................................. 7 Waters v. Int'l Precious Metals Corp., 190 F.3d 1291 (11th Cir. 1999) .................................................................................................. 6 iii Case 1:15-cv-24440-MGC Document 80 Entered on FLSD Docket 12/26/2018 Page 5 of 19 Wolff v. Cash 4 Titles, No., 03-22778-CIV, 2012 WL 5290155 (S.D. Fla. Sept. 26, 2012) ..................................... 5, 11 Yedlowski v. Roka Bioscience, Inc., No. 14-CV-8020-FLW-TJB, 2016 WL 6661336 (D.N.J. Nov. 10, 2016).................................. 7 Rules Fed. R. Civ. P. 23(e) ....................................................................................................................... 1 iv Case 1:15-cv-24440-MGC Document 80 Entered on FLSD Docket 12/26/2018 Page 6 of 19 ` MOTION Nghiem Tran (“Class Representative” or “Lead Plaintiff”), upon the accompanying Memorandum of Law and the accompanying Declaration of Jonathan Horne In Support of Final Approval of Class Action and An Award of Attorneys’ Fees and Reimbursement of Expenses (“Horne Dec.”) and the exhibits attached thereto, hereby moves the Court pursuant to Fed.",
"R. Civ. P. 23(e) for an Order: (1) awarding attorneys’ fees in the amount of $405,000; (2) reimbursement of $24,299.15 in expenses incurred in prosecuting this action; and (3) an award of $5,000 to the Class Representative. A [Proposed] Order approving the requested award of attorneys’ fees and expenses will be filed with Class Representative’s Reply in Further Support of this Motion. MEMORANDUM OF LAW I. PRELIMINARY STATEMENT A plaintiff who files a securities class action must issue notice to potential class members advising them that an action was filed and that they may move to be appointed lead plaintiff. Ordinarily, such notice draws perhaps half a dozen movants represented by leading plaintiffs’ securities law firms, all vying to represent the class. Not here. Plaintiff was the only movant seeking appointment in this undesirable case, and his counsel were the only ones willing to take on the role of lead counsel. Plaintiff zealously represented the proposed class, filing, investigating, and researching two complaints, opposing two lengthy motions to dismiss filed by leading firms, and, after the court’s dismissal, fully briefing an appeal against these same firms. Plaintiff now proposes to settle this case for $1.215 million. That is an exceptional result. Class Representatives’ damages expert, making numerous optimistic assumptions, estimates that if the Class won on every point at trial, damages could reach as high as $8.4 million.",
"Thus, the Settlement recovers 14.5% of the maximum conceivable damages – against a median of 10.8% in cases with similar damages. That Defendants are willing to settle the case for such a large percentage of the Class’s losses, reflects the excellent and tenacious work Plaintiff engaged in to turn this undesirable case into a credible threat. The Class supports the result. To date, there have been no objections from Class Members, period, whether to the settlement itself or to any aspect of the request for fees. No Class Members have opted out of the Settlement. 1 Case 1:15-cv-24440-MGC Document 80 Entered on FLSD Docket 12/26/2018 Page 7 of 19 This is a meritorious action that returns to class members more than the typical class action.",
"The case was so difficult that had Lead Counsel not pursued it, no other firm would have. Courts in this district typically award between 30% or 331/3% in securities class action settlements they approve. In light of the trying circumstances and the necessity of awarding sufficient fees to encourage meritorious lawsuits like this one to be filed and pursued, the Court should pick the higher of the two, and grant an award of one third of the Gross Settlement Fund. Class Representative also requests reimbursement of Class Counsel’s actual litigation expenses in the amount of $24,299.15. These expenses are reasonable, and are of the kind that attorneys usually expense to their clients. In the Eleventh Circuit, and throughout the Nation, class representatives are often granted service awards from the settlement to compensate them for their time and the risks incurred. Mr. Tran requests a service award of $5,000. Mr. Tran has shown diligence and dedication to this case and has made personal sacrifices for the Class, which now benefits from his efforts.",
"II. Class Counsel’s efforts for the Class. This Action was filed by Class Counsel on December 2, 2015. (Dkt. # 1). Class Representative moved to be appointed lead plaintiff and have Class Counsel appointed as lead counsel in March 2016 (dkt. # 20), and both were appointed in April 2016. (Dkt. # 31). In order to plead an amended complaint, Class Representative thoroughly investigated the claims in this action, consulting a damages expert, scouring ERBA’s public filings and news published about it, and interviewing more than a dozen former ERBA employees. Horne Dec. ¶ 7. Class Representative then timely filed his Amended Class Action Complaint For Violations of the Federal Securities Laws (the “Amended Complaint”). (Dkt. # 34). The ERBA Defendants and MHM each filed 20-page complex motions to dismiss the Complaint, which Plaintiff opposed. Dkts.",
"# 40, 41, 45. Plaintiff then appeared for a hearing on Defendants’ motions to dismiss, which the Court granted. After dismissal, Class Representative appeared for a mediation before the Eleventh Circuit mediator. Horne Dec. ¶ 4. When that mediation failed, the Parties fully briefed Class Representative’s appeal. After full briefing, the Parties reached a settlement in principle. Id. Thereafter, Class Representative negotiated the Settlement’s complex terms, sought an indicative ruling from this Court that it would consider a motion for preliminary approval of settlement, 2 Case 1:15-cv-24440-MGC Document 80 Entered on FLSD Docket 12/26/2018 Page 8 of 19 obtained a limited remand from the Eleventh Circuit to do so, and obtained preliminary approval from this Court. III.",
"THE REQUESTED FEE AND EXPENSES ARE REASONABLE AND SHOULD BE APPROVED A. A Reasonable Percentage of the Fund Recovered Is the Appropriate Method for Awarding Attorneys’ Fees in the Eleventh Circuit Attorneys who achieve a benefit for class members in the form of a “common fund” are entitled to be compensated for their services from that settlement fund. See Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980) (“[A] litigant or a lawyer who recovers a common fund for the benefit of persons other than himself or his client is entitled to a reasonable attorney’s fee from the fund as a whole”); see also Camden I Condo. Ass'n, Inc. v. Dunkle, 946 F.2d 768, 771 (11th Cir. 1991).",
"In the Eleventh Circuit, courts must determine the appropriate award to attorneys by granting them a percentage of the fund created through their efforts, dubbed the “percentage of the fund method.” Camden, 946 F.2d at 774-75 (“the percentage of the fund approach is the better reasoned in a common fund case. . . [h]enceforth in this circuit, attorneys’ fees awarded from a common fund shall be based upon a reasonable percentage of the fund established for the benefit of the class”). This approach appropriately encourages counsel to obtain the maximum recovery for the class at the earliest possible stage of the litigation and, hence, most fairly ties plaintiffs’ counsel’s compensation to the benefit achieved for the class. There is no “hard and fast” rule dictating what constitutes a reasonable percentage of the recovery to award “because the amount of any fee must be determined upon the facts of each case.” Camden, 946 F.2d at 775.1 B.",
"The Requested Fee is Reasonable Under the Camden factors Under Camden, the court first fixes a benchmark, and then considers the so-called Camden factors to determine what constitutes a reasonable percentage award. See Camden, 946 F.2d at 773, 775. These factors include: (i) awards in similar cases; (ii) the time and labor required; (iii) the novelty and the difficulty of the questions; (iv) the skill requisite to perform the legal service properly, including the experience, reputation, and ability of the attorneys; (v) the preclusion of other employment by the attorney due to the acceptance of the case; (vi) the customary fee, including whether the fee is fixed or contingent; (vii) the amount involved and the results obtained; 1 In this regard, the Eleventh Circuit expressly noted that “an upper limit of 50% of the fund may be stated as a general rule, although even larger percentages have been awarded.” Id. at 774–75.",
"3 Case 1:15-cv-24440-MGC Document 80 Entered on FLSD Docket 12/26/2018 Page 9 of 19 (viii) the “undesirability” of the case; and (ix) the nature and length of the professional relationship with the client.2 1. Awards in similar cases Camden, decided in 1991, suggested that an appropriate initial bench mark would be 25%, which courts should adjust up or down based on the specific facts of the cases. Camden, 946 F.2d at 775. But courts in securities class actions typically award higher percentages. Indeed, in the vast majority of securities class actions, courts in this district award attorneys’ fees of either 30% or 331/3%. Shah v. DS Healthcare Group Inc. et al, No. 0:16-cv-60661-WPD, dkt.",
"# 81, at ¶21 (S.D. Fla. 2017) (331/3% of $2,100,000 fund); In re Home Loan Servicing Solutions, Ltd. Securities Litigation, No. 0:16-cv-60165-WPD, dkt. # 119, at ¶16 (S.D. Fla. 2016) (331/3% of $6,000,000 fund); Sood v. Catalyst Pharmaceutical Partners Inc. et al, No. 1:13-cv-23878-UU, dkt. # 153, at ¶18 (331/3% of $3,500,000 fund); Howard v. Chanticleer Holdings, Inc., No. 12-cv-81123-JIC, dkt. # 74, at ¶4 (S.D. Fla. 2014) (331/3% of $850,000 fund); Fuller v. Imperial Holdings, 11-cv- 81184-KAM, Dkt.",
"# 95, at ¶17 (S.D. Fla. Dec. 16, 2013) (30% of $12 million fund); Murdeshwar v. Searchmedia Holdings Ltd., 11-cv-20549, dkt # 103, at ¶14 (S.D. Fla. Apr. 25, 2012) (331/3% of $2.75 million fund); Schorrig v. IBM Southeast Employees’ Federal Credit Union, 09-cv-80973- KLR, dkt. # 155, at *11 (S.D. Fla. Feb. 24, 2012) (30% of $950,000 fund); City Pension Fund for Firefighters and Police Officers in the City of Miami Beach v. Aracruz Celulose S.A., 08-cv-23317- JAL, dkt. # 201, at ¶14 (S.D. Fla. July 17, 2013) (331/3% of $37.5 million fund); Waterford Township General Employees Retirement System v. Bankunited Financial Corporation, No.",
"08- cv-22572-MGC, dkt. # 164, at ¶11 (S.D. Fla. June 14, 2013) (30% of $3,000,000 fund); Dance v. Levitt Corporation, No. 08-cv-60111-DLG, dkt # 151, at ¶14 (S.D. Fla. Sep. 29, 2011) (331/3% of $1,948,050 fund); Miller v. Dyadic International, Inc., No. 07-cv-80948-WPD, dkt, # 236, at ¶4 (S.D. Fla. July 28, 2010) (331/3% of $4,800,000 fund). Securities class actions have some structural features that call for higher awards. For example, they are “highly complex,”3 require an 2 Class Counsel had no relationship with Class Representative before this action, and there were no time limits imposed by the client or the circumstances. 3 In re Gen. Instrument Sec. Litig., 209 F. Supp. 2d 423, 433 (E.D. Pa. 2001); In re Heritage Bond Litig., No. 02-ML-1475-DT(RCX), 2005 WL 1594389, at *12 (C.D. Cal.",
"June 10, 2005). 4 Case 1:15-cv-24440-MGC Document 80 Entered on FLSD Docket 12/26/2018 Page 10 of 19 extraordinary investment of time and resources and provide class members with hard cash rather than coupons.4 In a case similar to a securities class action, Judge Torres (in a report adopted by Judge Cohn) reflected on the factors that led him to grant an award of one third of the settlement fund, or $4,781,794.89. Wolff v. Cash 4 Titles, No. 03-22778-CIV, 2012 WL 5290155, at *4, *7 (S.D. Fla. Sept. 26, 2012), report and recommendation adopted, No. 03-22778-CIV, 2012 WL 5289628 (S.D. Fla. Oct. 25, 2012). There, a RICO case, counsel recovered 65% of investors’ losses, or about 21.7% of total RICO damages, similar to the 23.5% recovery here. Id.",
"at *1. Like in this case, “it was class counsel that bore alone the entire risk of this representation,” including the risk of substantial unreimbursed expenses if they could not achieve a recovery. Id. at *1-2. And like in this case, “[p]erhaps the best objective test of the risk inherent in this litigation is the absence of any other attorneys willing to represent the class on a contingent fee basis,” id. at *3. though here counsel issued the statutorily-mandated press release announcing the lawsuit and inviting other contenders. Here, as there, the Settlement is more valuable because it doesn’t provide class members with vague non-monetary relief or coupons, but cash. Id. at *3.5 The Wolff case had its share of difficulties, such as the difficulty of pursuing foreign proceedings, but this one had as well.",
"To plead his claims, Plaintiff had to obtain inside knowledge from former employees of ERBA’s accounting department. Yet ERBA is a small company and its accounting department is tiny. Finding an employee from that department willing to talk to Plaintiff is an exceptionally tall order. 2. Time and Labor Required Lead Counsel has devoted significant time and resources to researching, investigating, and prosecuting of this action. By the time the Settlement was reached, Lead Counsel: (a) thoroughly investigated the facts and law of claims against ERBA; (b) retained private investigators and interviewed former ERBA employees; (c) drafted his initial and operative amended complaint; (d) obtained an expert damages report; (e) opposed the ERBA Defendants’ and MHM’s motions to dismiss; (f) filed an appellate brief and reply; (g) participated in a mediation; (h) had numerous 4 In re AOL Time Warner, Inc. Sec., No. 02 CIV. 5575 (SWK), 2006 WL 3057232, at *10 (S.D.N.Y. Oct. 25, 2006); In re Lease Oil Antitrust Litig.",
"(No. II), 186 F.R.D. 403, 447 (S.D. Tex. 1999) (antitrust class action with cash payment). 5 Indeed, Wolff cited eight decisions from the Southern and Middle districts of Florida awarding 33% of the fund or more, and a further thirteen awarding between 30% and 33%. Id. at *6. 5 Case 1:15-cv-24440-MGC Document 80 Entered on FLSD Docket 12/26/2018 Page 11 of 19 calls with Defendants’ counsel. See Horne Dec. ¶ 7. After the parties agreed on the dollar figure, they negotiated the Stipulation of Settlement, including the exhibits thereto, a difficult and complex task. Indeed, Class Counsel expended over 345.55 hours with a market value, or lodestar, of $248,932.75 at counsel’s current billing rates, providing for a minimal multiplier of 1.63.6 See Declaration of Jonathan Horne Concerning Fees, ¶ 6 (“Horne Fees Dec.”), attached to the Horne Dec. as Exhibit 2.",
"While not required in the Eleventh Circuit, an analysis of the requested fee under the “lodestar/multiplier” approach further supports the reasonableness of an award of one-third of the Settlement Amount fee. Waters v. Int'l Precious Metals Corp., 190 F.3d 1291, 1298 (11th Cir. 1999) (“while we have decided in this circuit that a lodestar calculation is not proper in common fund cases, we may refer to that figure for comparison”). The 1.63 multiplier requested here is below the range of multipliers frequently awarded in class action settlements of similar magnitude in courts within the Eleventh Circuit. See, e.g., Pinto v. Princess Cruise Lines, Ltd., 513 F. Supp.",
"2d 1334, 1344 (S.D. Fla. 2007) (noting that lodestar multipliers “‘in large and complicated class actions’ range from 2.26 to 4.5” and that “three appears to be the average”); Ingram v. The Coca- Cola Co., 200 F.R.D. 685, 694–96 (N.D. Ga. 2001) (awarding fee representing a multiplier between 2.5 and 4); Mashburn v. Nat'l Healthcare, Inc., 684 F. Supp. 679, 702 (M.D. Ala. 1988) (“A multiplier of approximately 3.1 in a national class action securities case is not unusual or unreasonable.”). As such, the time and labor expended justify the fee requested. 3. The Novelty and Difficulty of the Questions Involved Class Representative faced all the “multi-faceted and complex legal questions endemic” to cases based on alleged violations of federal securities law. Ressler v. Jacobson, 149 F.R.D. 651, 654 (M.D. Fla. 1992); In re Sunbeam Sec. Litig., 176 F. Supp.",
"2d 1323, 1334 (S.D. Fla. 2001) (same). Moreover, “securities actions have become more difficult from a plaintiff’s perspective in 6 The Supreme Court has held that the use of current rather than historical rates is appropriate in examining the lodestar because current rates more adequately compensate for inflation and the loss of use of funds. See Missouri v. Jenkins by Agyei, 491 U.S. 274, 283–84 (1989). Courts in this Circuit also have stated that it is appropriate to use counsel’s current rates in order to compensate for the delay in payment and inflation. See, e.g., Behrens v. Wometco Enterprises, Inc., 118 F.R.D.",
"534, 546 (S.D. Fla. 1988). Rates of The Rosen Law Firm, P.A. substantially identical to those charged here were recently approved in Barocio v. Yingli Green Energy Holdings Co. Ltd., 15-cv-4003-ODW (MRWx), dkts. # 141-2, 149. 6 Case 1:15-cv-24440-MGC Document 80 Entered on FLSD Docket 12/26/2018 Page 12 of 19 the wake of the PSLRA.” In re Sterling Fin. Corp. Sec. Class Action, No. CIV.A. 07-2171, 2009 WL 2914363, at *4 (E.D. Pa. Sept. 10, 2009). This difficulty justifies a high percentage award.",
"Yedlowski v. Roka Bioscience, Inc., No. 14-CV-8020-FLW-TJB, 2016 WL 6661336, at *22 (D.N.J. Nov. 10, 2016). Securities class action plaintiffs, like Plaintiff here, often try to meet the PSLRA’s burdens by alleging facts they obtained from former employees. Both the facts and the former employees’ sources of knowledge must be alleged with particularity; allegations about what is common knowledge within the company will not do. With ERBA’s tiny accounting department, there simply were not many employees with relevant knowledge, let alone willing to voluntarily tell us what they knew. And indeed, the Court held that Plaintiff had not sufficiently alleged the Defendants’ scienter. Should the Eleventh Circuit reverse, Plaintiff would have to prove the claims they alleged. As more fully set out in Plaintiff’s Final Approval Brief, discovery in this case would be complex, uncertain, and expensive.",
"Among other things, Plaintiff would hire experts to opine on at least market efficiency, loss causation, damages, and various accounting issues. Defendants would present their own expert, and the results of battles of the experts are notoriously difficult to predict. City of Providence v. Aeropostale, Inc., No. 11 CIV. 7132 CM GWG, 2014 WL 1883494, at *9 (S.D.N.Y. May 9, 2014). Taking depositions would be challenging in this international case, as some of the Defendants and many of the persons with knowledge are based in India, with others based in Germany and France. Should the case have advanced to trial, Defendants would likely have argued that their disclosure adequately informed the public regarding ERBA’s internal control issues, and that they had enough cash to pay their obligations as they came due but merely missed payments to vendor, as many businesses do. Class Representative might not have been able to convince the jury that Defendants’ statement was materially false.",
"4. The Skill Required to Perform the Legal Services Properly, and the Experience, Reputation, and Ability of the Attorneys The quality of the representation by Class Counsel and the standing of Class Counsel are important factors that support the reasonableness of the requested fee. See Ressler, 149 F.R.D. at 654. Class Counsel has developed a reputation for zealous advocacy even in relatively small securities class actions like this one. Vinh Nguyen v. Radient Pharm. Corp., No. SACV 11-00406 7 Case 1:15-cv-24440-MGC Document 80 Entered on FLSD Docket 12/26/2018 Page 13 of 19 DOC, 2014 WL 1802293, at *9 (C.D. Cal. May 6, 2014) (Rosen Law Firm “took on significant risk in this case, working thoroughly and enthusiastically through extensive litigation that required significant expert involvement”); Pace v. Quintanilla, No. SACV 14-2067-DOC, 2014 WL 4180766, at *3 (C.D. Cal. Aug. 19, 2014) (“Indeed, The Rosen Law Firm has appeared before this Court several times before, and the Court is confident that it has the necessary skill and knowledge to effectively prosecute this action”).",
"Class Counsel’s hard-won reputation allowed them to credibly threaten to take this case as far as it takes. A copy of Class Counsel’s firm resume is appended to the Declaration of Laurence Rosen on Behalf of The Rosen Law Firm, P.A. Concerning Attorneys’ Fees and Expenses (the “Rosen Fee Dec.”) As noted above, the case required significant effort and resiliency. Plaintiffs claims were dismissed – yet Plaintiff’s counsel persevered in briefing an appeal and achieved a significant recovery that benefits the class. The quality of opposing counsel is also important in evaluating the quality of Lead Counsel’s work. See, e.g., Sunbeam, 176 F. Supp. 2d at 1334; Ressler, 149 F.R.D. at 654.",
"The ERBA Defendants were represented by experienced and highly-skilled lawyers from Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., which recently won an award for Litigation Department of the Year for Real Estate & Other Litigation – Midsize Law Firms, and MHM was represented by DLA Piper, a renowned nationwide law firm. Defense counsel have reputations for vigorous advocacy in the defense of complex civil cases such as this. That Class Counsel obtained this significant Settlement in the face of such skilled opposition shows that its representation was excellent.",
"5. Preclusion of Other Employment When Class Counsel undertook to represent Plaintiffs in this matter, it understood that it would spend significant time and make significant out-of-pocket expenses. Class Counsel did not settle this case quickly, but only after briefing and arguing a motion to dismiss and fully briefing the appeal on the decision thereof. The time spent by Class Counsel on this case was at the expense of the time that they could have devoted to other matters.",
"6. The Customary and Contingent Nature of the Fee The “customary fee” in a class action lawsuit of this nature is a contingency fee because virtually no individual possesses a sufficiently large stake in the litigation to justify paying his attorneys on an hourly basis. See Ressler, 149 F.R.D. at 654. The Court should give substantial 8 Case 1:15-cv-24440-MGC Document 80 Entered on FLSD Docket 12/26/2018 Page 14 of 19 weight to the contingent nature of Class Counsel’s fees when assessing the fee request.",
"See Behrens, 118 F.R.D. at 548. Courts have consistently recognized that the risk of receiving little or no recovery is a major factor in determining the award of fees, and that skilled counsel should be encouraged to undertake this risk. See In re Checking Account Overdraft Litig., 830 F. Supp. 2d 1330, 1364 (S.D. Fla. 2011) (“Numerous cases recognize that the contingent fee risk is an important factor in determining the fee award.”); Pinto, 513 F. Supp. 2d at 1339 (“attorneys’ risk is ‘perhaps the foremost factor’ in determining an appropriate fee award”); Behrens, 118 F.R.D. at 548 (“A contingency fee arrangement often justifies an increase in the award of attorneys’ fees”). This case is fully contingent, meaning that Class Counsel has not received any payments whatsoever and has put up $24,299.15 of its own money for out-of-pocket expenses, while paying attorney salaries, for the duration of the case.",
"Experience eventually teaches every lawyer that there is no such thing as a certain win in litigation. In similar cases, plaintiffs’ counsel have suffered major defeats after years of litigation, trial, and appeals in which they expended millions of dollars in time and received no compensation at all. Even a victory at trial does not guarantee success. See In re BankAtlantic Bancorp, Inc. Sec. Litig., No. 07-61542-CIV, 2011 WL 1585605, at *22 (S.D. Fla. Apr. 25, 2011) (granting motion for Judgment as a Matter of Law and Motion for New Trial).",
"And even surviving post-trial motions in the district court is no guarantee of success on appeal. Robbins v. Koger Props., 116 F.3d 1441, 1148-49 (11th Cir. 1997) (reversing $81.3 million jury verdict in a securities class action after almost seven years of litigation and rendering judgment in favor of defendant based on novel ruling that plaintiffs could not establish loss causation by showing the price of the security was inflated by the misrepresentations). Because the fee in this matter was entirely contingent, the only thing that was certain was that Class Counsel would receive no fee if it obtained no recovery. The contingent nature of Class Counsel’s representation strongly favors the requested fee. 7. The Results Obtained Courts have consistently recognized that the result achieved is a major factor to be considered in making a fee award. Hensley v. Eckerhart, 461 U.S. 424, 436 (1983) (“most critical factor is the degree of success obtained”); Ressler, 149 F.R.D. at 655 (“It is well-settled that one of the primary determinants of the quality of the work performed is the result obtained.”).",
"9 Case 1:15-cv-24440-MGC Document 80 Entered on FLSD Docket 12/26/2018 Page 15 of 19 The $1.215 million Settlement is an outstanding result. In this case, Class Counsel retained a damages expert who analyzed Class Representative’s recovery (if Class Representative won at trial, overcame Defendants’ affirmative defense, maintained certification, and defeated Defendants’ affirmative defenses). Horne Dec. ⁋ 5. To arrive at a “best case” maximum estimate of damages, the expert made several optimistic or ad hoc assumptions. In a securities class action, plaintiffs typically measure per-share damages as the decline in value of the stock price following disclosures that reveal the fraud, called corrective disclosures. Here, the expert assumed that Plaintiff would be able to prove that every one of the corrective disclosures set out in the Complaint was caused by Defendants’ false statements.",
"Id. When measuring damages, experts must then account for the impact of non-fraud related news disclosed at the same time as the corrective disclosures. Damages are particularly apt to be slashed when the corrective disclosure is a release of the company’s annual or quarterly results as at that time the company discloses a great deal of information. Here, though, the expert assumed that the entirety of the drop following the corrective disclosures was attributable to the fraud, even though 3 of the 5 corrective disclosures were made in earnings releases. Id. Finally, where including a second day’s drop would increase damages, Plaintiff’s expert made the ad hoc assumption that the second day’s drop was likewise attributable to the fraud.",
"Id. With these doubtful assumptions, Class Representative’s expert estimated that total maximum damages were $8.4 million. Id.7 The Settlement thus returns an excellent 14.5% of maximum damages, significantly higher than the average recovery in cases of a similar size. See Securities Class Action Settlements – 2016 Review and Analysis, by Laarni T. Bulan, et al. (Cornerstone 2017), at 8 (attached as Exhibit 3 to the Horne Dec.) (in cases with estimated damages of less than $50 million, median settlement between 2005-2016 returned 10.8% of estimated damages);8 In re Rite Aid Corp. Sec. Litig., 146 F. Supp. 2d 706, 715 (E.D. Pa. 2001) (noting that since 1995, class action settlements have typically recovered “between 5.5% and 6.2% of the class members’ estimated losses”).",
"And the Settlement provides for payment to Class Members now, without delay, and not some wholly-speculative payment of a hypothetically-larger amount years down the road. “[M]uch of the value of a settlement lies in the ability to make funds available promptly.” In re “Agent 7 Defendants dispute Class Representative’s damages estimate. 8 Also available at < http://securities.stanford.edu/research-reports/1996-2013/Settlements- Through-12-2013.pdf >. 10 Case 1:15-cv-24440-MGC Document 80 Entered on FLSD Docket 12/26/2018 Page 16 of 19 Orange” Prod.",
"Liab. Litig., 611 F. Supp. 1396, 1405 (E.D.N.Y. 1985). Indeed, EBRA has not filed any quarterly or annual financial statements since August 2015. Its financial soundness cannot be guaranteed, particularly if a judgment were to be entered against it. In contrast, this settlement provides a guaranteed recovery for Class Members. 8. The “Undesirability” of the Case This is a complex case against defendants with modest financial resources. ERBA is a development stage company with little insurance and few revenues. Moreover, damages in this case were relatively small for a securities class action. Thus, even if a plaintiff could establish that Defendants were not merely inexcusably negligent but reckless, the plaintiff might be left chasing a company that might not survive the litigation without the possibility of a large recovery the plaintiff might see in a large damages case.",
"The case, put simply, was undesirable. Indeed, after he filed his Complaint, Plaintiff published statutorily mandated notice. Dkt. # 20-4. Such notice typically draws perhaps a half-dozen class members and their lawyers to file motions to be appointed as lead plaintiffs. Not here - Class Counsel were the only attorneys willing to take on this difficult case. The results achieved show that this was a meritorious case that should have been brought, but the fact that no other firm was willing to take it shows that it was also an undesirable case. Proving the point, one other law firm filed a substantively identical complaint, but then quickly withdrew it before Defendants filed any motion to dismiss. C. Important Public Policy Considerations Support The Requested Fees Public policy considerations support the requested fee award. “Congress, the Executive Branch, and this Court, moreover, have ‘recognized that meritorious private actions to enforce federal antifraud securities laws are an essential supplement to criminal prosecutions and civil enforcement actions brought, respectively, by the Department of Justice and the Securities and Exchange Commission.’” Amgen Inc. v. Connecticut Ret.",
"Plans & Tr. Funds, 568 U.S. 455 (2013); Halliburton Co. v. Erica P. John Fund, Inc., No. 13-317, Brief for the United States as Amicus Curiae Supporting Respondent, at 1-2 (similar). Courts should award fees high enough to encourage lawyers to bring meritorious actions. Ressler, 149 F.R.D. at 657; accord Allapattah Servs., Inc. v. Exxon Corp., 454 F. Supp. 2d 1185, 1217 (S.D. Fla. 2006); Wolff, 2012 WL 5290155, at *5. In this case, the rationale is especially compelling. Class Counsel have delivered class members an award significantly higher than what the median securities class action provides.",
"Thus, 11 Case 1:15-cv-24440-MGC Document 80 Entered on FLSD Docket 12/26/2018 Page 17 of 19 this is a case that should have been filed and prosecuted, but would not have been but for Class Counsel. D. Lead Counsel’s Expenses Are Reasonable and Were Necessarily Incurred to Achieve the Benefit Obtained. Litigation expenses should be reimbursed if they are “reasonable and necessary to obtain the settlement.” Ressler, 149 F.R.D. at 657; see also Dowdell v. City of Apopka, Fla., 698 F.2d 1181, 1192 (11th Cir. 1983) (“all reasonable expenses incurred in case preparation, during the course of litigation, or as an aspect of settlement of the case” may be recovered); Behrens, 118 F.R.D.",
"at 549 (“plaintiff’s counsel is entitled to be reimbursed from the class fund for the reasonable expenses incurred in this action”); 1 Alba Conte, Attorney Fee Awards, § 2.19, at 73- 74 (3d ed. 2006) (“Alba Conte”) (“an attorney who creates or preserves a common fund by judgment or settlement for the benefit of a class is entitled to receive reimbursement of reasonable fees and expenses involved”). Class Counsel efficiently litigated this action and incurred expenses totaling $24,299.15 to prosecute and resolve this Action. See Horne Fee Dec., ¶ 8. These expenses include amounts incurred to pay fees of consulting experts, mediation fees, copying, telephone, travel costs, computer-assisted research, court fees, travel, mailing and fax costs, and other customary expenditures. Id.",
"Travel, experts, copying, court fees, claims administration and other customary expenditures should be reimbursed. Cifuentes v. Regions Bank, No. 11 CV 23455 FAM, 2014 WL 1153772, at *8 (S.D. Fla. Mar. 20, 2014). Likewise, “[r]easonable costs of computerized legal research are generally compensable.” Alba Conte, 2.19, at n.16 (“Reasonable costs of computerized legal research are generally reimbursable”); In re Immune Response Sec. Litig., 497 F. Supp. 2d 1166, 1178 (S.D. Cal. 2007) (computer legal research costs recoverable because essential); In re Genta Sec. Litig., No. CIV. A. 04-2123 JAG, 2008 WL 2229843, at *11 (D.N.J. May 28, 2008) (similar). The expenses incurred were reasonable and necessary to successfully prosecute this case. The Notice informed Settlement Class Members that Lead Counsel would seek reimbursement of expenses in an amount not to exceed $30,000.",
"See Declaration of Josephine Bravata Concerning The Mailing of The Notice Of Pendency and Proposed Settlement of Class Action and Proof of 12 Case 1:15-cv-24440-MGC Document 80 Entered on FLSD Docket 12/26/2018 Page 18 of 19 Claim and Release Form, Ex. A. To date, there have been no objections to Lead Counsel’s request for expenses. Id. at ¶10. The deadline to object is March January 3, 2019. Id. E. Payment to Class Representative Service awards “compensate named plaintiffs for the services they provided and the risks they incurred during the course of the class action litigation.” In re Checking Account Overdraft Litigation, 830 F. Supp. 2d at 1357 (granting service awards of $5,000 per class representative). Courts determine service awards by looking at “(1) the actions the class representatives took to protect the interests of the class; (2) the degree to which the class benefited from those actions; and (3) the amount of time and effort the class representatives expended in pursuing the litigation.” Id.",
"Courts in this district commonly authorize service awards. Pinto, 513 F. Supp. 2d at 1344 ($7,500 per plaintiff). Courts have routinely authorized substantial payments to lead plaintiffs when requested in class action settlements approved in this District. Aracruz Celulose, at ¶ 16 ($40,000); IBM, at 11 ($1,500 for each class representative); Imperial Holdings, at ¶21 ($10,000). Here, Nghiem Tran was the only class member willing to take on the role of Lead Plaintiff. The Class now benefits from his efforts. There were no objections to an award. The Court should award Mr. Tran $5,000. IV. CONCLUSION For the foregoing reasons, the Court should award Class Counsel 331/3% of the Gross Settlement Fund, or $405,000.00, award reimbursement of expenses of $24,299.15, and award Class Representative $5,000. Dated: December 26, 2018 Respectfully submitted, THE ROSEN LAW FIRM, P.A. ___/s/ Jonathan Horne _ Jonathan Horne (pro hac vice) Laurence M. Rosen Fla. Bar No. 0182877 275 Madison Avenue, 34th Floor New York, New York 10016 Phone: (212) 686-1060 Fax: (212) 202-3827 Class Counsel 13 Case 1:15-cv-24440-MGC Document 80 Entered on FLSD Docket 12/26/2018 Page 19 of 19 CERTIFICATE OF SERVICE I hereby certify that on this on the December 26, 2018, a true and correct copy of the foregoing document was served by CM/ECF to the parties registered to the Court's CM/ECF system.",
"/s/ Laurence Rosen 14"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/56583676/ | 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 June 30, 2020 has been entered. In view of the Amendments to the Claims filed June 30, 2020, the rejections of claims 3, 9-11, and 20 under 35 U.S.C. 103(a) previously presented in the Office Action sent April 30, 2020 have been withdrawn. Claims 3, 9-11, and 20 are currently pending.
Allowable Subject Matter Claims 3, 9-11, and 20 are allowed. The following is an examiner’s statement of reasons for allowance: Claim 3, from which all other claims depend, requires an array of thermogenerators with a corresponding array of transistors wherein the array of transistors for a given thermogenerator comprises a first transistor for coupling the given thermogenerator to a positive terminal, a second transistor for coupling the given thermogenerator to a negative terminal, and a third transistor for selectively bypassing the given thermogenerator, the array of transistors electrically switchable to dynamically reconfigure NxM arrays of thermogenerators coupled in parallel and series to provide a . 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 DUSTIN Q DAM whose telephone number is (571)270-5120. The examiner can normally be reached on Monday through Friday, 6:00 AM to 2:00 PM. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Allison Bourke can be reached on (303) 297-4684. 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
/DUSTIN Q DAM/Examiner, Art Unit 1721 May 21, 2021 | 2021-06-07T14:45:45 | [
"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 June 30, 2020 has been entered. In view of the Amendments to the Claims filed June 30, 2020, the rejections of claims 3, 9-11, and 20 under 35 U.S.C. 103(a) previously presented in the Office Action sent April 30, 2020 have been withdrawn. Claims 3, 9-11, and 20 are currently pending.",
"Allowable Subject Matter Claims 3, 9-11, and 20 are allowed. The following is an examiner’s statement of reasons for allowance: Claim 3, from which all other claims depend, requires an array of thermogenerators with a corresponding array of transistors wherein the array of transistors for a given thermogenerator comprises a first transistor for coupling the given thermogenerator to a positive terminal, a second transistor for coupling the given thermogenerator to a negative terminal, and a third transistor for selectively bypassing the given thermogenerator, the array of transistors electrically switchable to dynamically reconfigure NxM arrays of thermogenerators coupled in parallel and series to provide a . 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 DUSTIN Q DAM whose telephone number is (571)270-5120. The examiner can normally be reached on Monday through Friday, 6:00 AM to 2:00 PM.",
"Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Allison Bourke can be reached on (303) 297-4684. 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 /DUSTIN Q DAM/Examiner, Art Unit 1721 May 21, 2021"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-05-30.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION
BEVERLY WALL and JOHNNY WALL ) ) v. ) NO. 3:18-0598 ) Crenshaw/Holmes WAL-MART STORES EAST, L.P. )
ORDER
A telephonic status/case management conference was held on May 9, 2019. Counsel
participating were: Billy Marlowe for Plaintiffs and Greg Callaway for Defendant. In reviewing
the record in this case for preparation of this order, the Court realized for the first time that the
dispositive motion schedule and trial date are not feasible. The parties had originally proposed a
target trial date of March 31, 2020, but at the initial case management conference, a new target
trial date of July 14, 2020, was selected. However, the initial case management order inadvertently
included the parties’ original proposed date rather than the revised date. This resulted in the Court
setting a trial only a few weeks after completion of dispositive motion briefing. Accordingly, a
new target trial of July 14, 2020, as discussed during the initial case management conference, is
respectfully requested, and recommended by the undersigned Magistrate Judge. This will be a
jury trial, expected to last approximately two (2) days.
Counsel reported that there are no known or anticipated discovery disputes at this time. In
their last joint case resolution status report (Docket No. 12), the parties reported that further efforts
to resolve this case would likely be more productive after Plaintiffs’ depositions, which are now
Case 3:18-cv-00598 Document 15 Filed 05/22/19 Page 1 of 3 PageID #: 38 scheduled for May 16, 2019 (Docket No. 14). The parties are therefore directed to resume efforts
to resolve this case, and to make at least two more independent substantive attempts. 1 By no later
than June 28, 2019 the parties must file a second joint case resolution status report, which confirms
their second attempt at case resolution. By no later than December 13, 2019, the parties must file
a third joint case resolution status report, which either confirms their third good faith attempt to
resolve this case or update the Court on the status of the intended third attempt. The parties are
reminded that they may participate in mediation by agreement without further order, with the
mediation to be concluded by no later than January 10, 2020.
A final telephonic case management conference is set for March 5, 2020, at 10:00 a.m.,
to address: whether there remains any prospect for settlement; whether there are undisputed facts
to which the parties may be able to stipulate; the prospect for stipulation of admissibility (or at
least authenticity) of exhibits; and, other appropriate matters. Defendant’s counsel shall initiate
the call. Prior to the final case management conference, counsel must exchange preliminary
exhibit lists and attempt to stipulate to authenticity and admissibility of as many exhibits as
possible. 2 Counsel must also discuss possible stipulations of fact. Finally, counsel must also
discuss whether, despite earlier efforts at case resolution, there is any prospect for a resolution of
this case by agreement. Counsel should be prepared to discuss all these issues with the
Magistrate Judge at the final case management conference. If there are any other matters
affecting trial that counsel wish to discuss, they may file a joint statement of issues for discussion,
1 The parties’ attention is directed to this additional requirement, which the Court, after further review of the record in this case, finds appropriate. 2 Counsel are advised that stipulations to authenticity and admissibility of exhibits are strongly encouraged.
2
Case 3:18-cv-00598 Document 15 Filed 05/22/19 Page 2 of 3 PageID #: 39 which must be filed at least one (1) business day prior to the scheduled final case management
conference.
It is SO ORDERED.
______________________________________ BARBARA D. HOLMES United States Magistrate Judge
3
Case 3:18-cv-00598 Document 15 Filed 05/22/19 Page 3 of 3 PageID #: 40 | 2019-05-22 | [
"IN THE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION BEVERLY WALL and JOHNNY WALL ) ) v. ) NO. 3:18-0598 ) Crenshaw/Holmes WAL-MART STORES EAST, L.P. ) ORDER A telephonic status/case management conference was held on May 9, 2019. Counsel participating were: Billy Marlowe for Plaintiffs and Greg Callaway for Defendant. In reviewing the record in this case for preparation of this order, the Court realized for the first time that the dispositive motion schedule and trial date are not feasible. The parties had originally proposed a target trial date of March 31, 2020, but at the initial case management conference, a new target trial date of July 14, 2020, was selected.",
"However, the initial case management order inadvertently included the parties’ original proposed date rather than the revised date. This resulted in the Court setting a trial only a few weeks after completion of dispositive motion briefing. Accordingly, a new target trial of July 14, 2020, as discussed during the initial case management conference, is respectfully requested, and recommended by the undersigned Magistrate Judge. This will be a jury trial, expected to last approximately two (2) days. Counsel reported that there are no known or anticipated discovery disputes at this time.",
"In their last joint case resolution status report (Docket No. 12), the parties reported that further efforts to resolve this case would likely be more productive after Plaintiffs’ depositions, which are now Case 3:18-cv-00598 Document 15 Filed 05/22/19 Page 1 of 3 PageID #: 38 scheduled for May 16, 2019 (Docket No. 14). The parties are therefore directed to resume efforts to resolve this case, and to make at least two more independent substantive attempts. 1 By no later than June 28, 2019 the parties must file a second joint case resolution status report, which confirms their second attempt at case resolution. By no later than December 13, 2019, the parties must file a third joint case resolution status report, which either confirms their third good faith attempt to resolve this case or update the Court on the status of the intended third attempt. The parties are reminded that they may participate in mediation by agreement without further order, with the mediation to be concluded by no later than January 10, 2020. A final telephonic case management conference is set for March 5, 2020, at 10:00 a.m., to address: whether there remains any prospect for settlement; whether there are undisputed facts to which the parties may be able to stipulate; the prospect for stipulation of admissibility (or at least authenticity) of exhibits; and, other appropriate matters. Defendant’s counsel shall initiate the call. Prior to the final case management conference, counsel must exchange preliminary exhibit lists and attempt to stipulate to authenticity and admissibility of as many exhibits as possible.",
"2 Counsel must also discuss possible stipulations of fact. Finally, counsel must also discuss whether, despite earlier efforts at case resolution, there is any prospect for a resolution of this case by agreement. Counsel should be prepared to discuss all these issues with the Magistrate Judge at the final case management conference. If there are any other matters affecting trial that counsel wish to discuss, they may file a joint statement of issues for discussion, 1 The parties’ attention is directed to this additional requirement, which the Court, after further review of the record in this case, finds appropriate. 2 Counsel are advised that stipulations to authenticity and admissibility of exhibits are strongly encouraged. 2 Case 3:18-cv-00598 Document 15 Filed 05/22/19 Page 2 of 3 PageID #: 39 which must be filed at least one (1) business day prior to the scheduled final case management conference.",
"It is SO ORDERED. ______________________________________ BARBARA D. HOLMES United States Magistrate Judge 3 Case 3:18-cv-00598 Document 15 Filed 05/22/19 Page 3 of 3 PageID #: 40"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/88356439/ | 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 . EXAMINER’S AMENDMENT An examiner’s amendment to the record appears below. Should the changes and/or additions be unacceptable to applicant, an amendment may be filed as provided by 37 CFR 1.312. To ensure consideration of such an amendment, it MUST be submitted no later than the payment of the issue fee. Authorization for this examiner’s amendment was given in an interview with Judson Champlin on 3/24/2021. The application has been amended as follows: Claim 1, line 22 “hollow waveguide” is amended to –a hollow waveguide--. Claim 18, lines 24-25 “said electrically conductive” is amended to –a electrically conductive--. Claim 19, line 3 “an electrically” is amended to –the electrically--. Allowable Subject Matter Claims 1, 3, and 5-20 are allowed. The following is an examiner’s statement of reasons for allowance: Kienzle et al (US 20030151560) and Burger et al (US 6614391) does not teach nor make obvious (claim 1 and 18) said transceiver comprises hollow waveguide for transmitting said transmit signal from the transceiver to the transmit signal receiving surface of the dielectric antenna body. 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.”
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, Erin Heard can be reached on 571-272-3236. 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.
TIMOTHY A. BRAINARD Primary Examiner Art Unit 3648
/TIMOTHY A BRAINARD/Primary Examiner, Art Unit 3648 | 2021-04-01T10:34:32 | [
"DETAILED ACTION Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . EXAMINER’S AMENDMENT An examiner’s amendment to the record appears below. Should the changes and/or additions be unacceptable to applicant, an amendment may be filed as provided by 37 CFR 1.312. To ensure consideration of such an amendment, it MUST be submitted no later than the payment of the issue fee. Authorization for this examiner’s amendment was given in an interview with Judson Champlin on 3/24/2021. The application has been amended as follows: Claim 1, line 22 “hollow waveguide” is amended to –a hollow waveguide--. Claim 18, lines 24-25 “said electrically conductive” is amended to –a electrically conductive--. Claim 19, line 3 “an electrically” is amended to –the electrically--.",
"Allowable Subject Matter Claims 1, 3, and 5-20 are allowed. The following is an examiner’s statement of reasons for allowance: Kienzle et al (US 20030151560) and Burger et al (US 6614391) does not teach nor make obvious (claim 1 and 18) said transceiver comprises hollow waveguide for transmitting said transmit signal from the transceiver to the transmit signal receiving surface of the dielectric antenna body. 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.” 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, Erin Heard can be reached on 571-272-3236. 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. TIMOTHY A. BRAINARD Primary Examiner Art Unit 3648 /TIMOTHY A BRAINARD/Primary Examiner, Art Unit 3648"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-04-04.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K Current Report Pursuant to Section13 or 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of earliest event reported): July 30, 2012 INDIEPUB ENTERTAINMENT, INC. (Exact name of registrant as specified in its charter) Delaware 001-34796 71-1033391 (State or Other Jurisdiction (Commission File Number) (I.R.S. Employer of Incorporation) Identification No.) 11258 Cornell Park Drive, Suite 608 Blue Ash, OH45242 (Address of principal executive offices including zip code) (513) 824-8297 (Former name or former address, if changed since last report) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions: o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) Item 1.01 Entry Into a Definitive Material Agreement. Effective July 30, 2012,indiePub Entertainment, Inc. (formerly Zoo Entertainment, Inc.), a Delaware corporation (“indiePub Entertainment” or the “Company”), Zoo Games, Inc., a Delaware corporation (“Zoo Games”), Zoo Publishing, Inc., a New Jersey corporation (“Zoo Publishing”), and indiePub, Inc., a Delaware corporation (“indiePub,” and, together with the Company, Zoo Games and Zoo Publishing, the “Borrowers”), and MMB Holdings LLC, a Delaware limited liability company ( “MMB”), entered into the First Amendment to Loan and Security Agreement (the “LSA Amendment”),pursuant to which the parties agreed to amend that certain Loan and Security Agreement dated as of March 9, 2012,by and between the Borrowers and MMB (the “LSA”). Pursuant to the LSA Amendment,MMB agreed to provide up to $1,600,000.00 in additional funding (the “Additional Funding”) to the Borrowers under the LSA.The Additional Funding shall bear interest at the lesser of a rate of 15% per annum, or the maximum rate permitted by law. In connection with the LSA Amendment, the Company issued MMB a warrant to purchase an additional 4,000,000 shares of indiePub Entertainment common stock at $0.40 per share (the “Additional Warrant”). The Additional Warrant may be exercised any time prior to July 30, 2017. MMB, a limited liability company organized under the laws of Delaware, is owned by David E. Smith, a former director of the Company, Jay A. Wolf, Executive Chairman of the Board of Directors of the Company, and certain other parties.Mr. Smith is the managing member of Mojobear Capital LLC, which, in turn, is the managing member of MMB. The foregoing description of the LSA Amendmentdoes not purport to be complete and is qualified in their entirety by reference to such instrument, a copy of which the Company intends to file with its next periodic report. SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. indiePub Entertainment, Inc. Date: August 2, 2012 By: /s/ Mark Seremet Mark Seremet President and Chief Executive Officer | [
"UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K Current Report Pursuant to Section13 or 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of earliest event reported): July 30, 2012 INDIEPUB ENTERTAINMENT, INC. (Exact name of registrant as specified in its charter) Delaware 001-34796 71-1033391 (State or Other Jurisdiction (Commission File Number) (I.R.S. Employer of Incorporation) Identification No.) 11258 Cornell Park Drive, Suite 608 Blue Ash, OH45242 (Address of principal executive offices including zip code) (513) 824-8297 (Former name or former address, if changed since last report) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions: o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) Item 1.01 Entry Into a Definitive Material Agreement.",
"Effective July 30, 2012,indiePub Entertainment, Inc. (formerly Zoo Entertainment, Inc.), a Delaware corporation (“indiePub Entertainment” or the “Company”), Zoo Games, Inc., a Delaware corporation (“Zoo Games”), Zoo Publishing, Inc., a New Jersey corporation (“Zoo Publishing”), and indiePub, Inc., a Delaware corporation (“indiePub,” and, together with the Company, Zoo Games and Zoo Publishing, the “Borrowers”), and MMB Holdings LLC, a Delaware limited liability company ( “MMB”), entered into the First Amendment to Loan and Security Agreement (the “LSA Amendment”),pursuant to which the parties agreed to amend that certain Loan and Security Agreement dated as of March 9, 2012,by and between the Borrowers and MMB (the “LSA”). Pursuant to the LSA Amendment,MMB agreed to provide up to $1,600,000.00 in additional funding (the “Additional Funding”) to the Borrowers under the LSA.The Additional Funding shall bear interest at the lesser of a rate of 15% per annum, or the maximum rate permitted by law. In connection with the LSA Amendment, the Company issued MMB a warrant to purchase an additional 4,000,000 shares of indiePub Entertainment common stock at $0.40 per share (the “Additional Warrant”). The Additional Warrant may be exercised any time prior to July 30, 2017.",
"MMB, a limited liability company organized under the laws of Delaware, is owned by David E. Smith, a former director of the Company, Jay A. Wolf, Executive Chairman of the Board of Directors of the Company, and certain other parties.Mr. Smith is the managing member of Mojobear Capital LLC, which, in turn, is the managing member of MMB. The foregoing description of the LSA Amendmentdoes not purport to be complete and is qualified in their entirety by reference to such instrument, a copy of which the Company intends to file with its next periodic report. SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. indiePub Entertainment, Inc. Date: August 2, 2012 By: /s/ Mark Seremet Mark Seremet President and Chief Executive Officer"
]
| https://applica-public.s3-eu-west-1.amazonaws.com/contract-discovery/edgar.txt.xz | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
|
723 F.2d 900 Coleman (Harry J.)v.Johnson (Gene M.) NO. 81-6918 United States Court of Appeals,Fourth circuit. NOV 23, 1983
1 Appeal From: E.D.Va.
2 AFFIRMED. | 08-23-2011 | [
"723 F.2d 900 Coleman (Harry J. )v.Johnson (Gene M.) NO. 81-6918 United States Court of Appeals,Fourth circuit. NOV 23, 1983 1 Appeal From: E.D.Va. 2 AFFIRMED."
]
| https://www.courtlistener.com/api/rest/v3/opinions/428735/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
17 So.3d 1231 (2009) LAMORE v. STATE. No. 2D07-2114. District Court of Appeal of Florida, Second District. September 16, 2009. Decision without published opinion. Affirmed. | 10-30-2013 | [
"17 So.3d 1231 (2009) LAMORE v. STATE. No. 2D07-2114. District Court of Appeal of Florida, Second District. September 16, 2009. Decision without published opinion. Affirmed."
]
| https://www.courtlistener.com/api/rest/v3/opinions/1575404/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Citation Nr: 0212051
Decision Date: 09/13/02 Archive Date: 09/19/02
DOCKET NO. 02-02 530 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Montgomery, Alabama
THE ISSUE
Entitlement to service connection for hepatitis.
(An issue of entitlement to service connection for post-
traumatic stress disorder (PTSD) will be the subject of a
later decision.)
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
S. D. Regan, Counsel
INTRODUCTION
The veteran had active service from November 1941 to November
1945. This matter came before the Board of Veterans' Appeals
(Board) on appeal from a September 2001 RO rating decision
which denied service connection for hepatitis (claimed as
yellow jaundice). An August 2002 motion to advance the case
on the Board's docket was granted by the Board in August
2002.
(The veteran also appeals an RO denial of his claim for
service connection for PTSD. The Board is undertaking
additional development of the evidence on the PTSD issue, in
accordance with 38 C.F.R. § 19.9 as recently amended. When
such is completed, the Board will issue a separate decision
on the PTSD issue.)
FINDINGS OF FACT
The veteran currently does not have hepatitis or any
residuals of prior hepatitis.
CONCLUSION OF LAW
Hepatitis was not incurred in or aggravated by service. 38
U.S.C.A. § 1110 (West 1991); 38 C.F.R. §§ 3.303 (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Factual Background
The veteran served on active duty in the Army from November
1941 to November 1945.
The veteran's service medical records do not refer to
complaints or findings of hepatitis. An immunization
register indicated that he received a yellow fever vaccine in
March 1942. An October 1942 hospital personal history
report, in reference to the veteran's hospitalization for an
appendectomy, indicated, as to a previous personal history,
that he had no serious illnesses. There was no reference to
hepatitis. The November 1945 separation examination noted
the abdomen was normal, and there was no mention of current
or past hepatitis. There was a notation that the veteran's
blood serology was negative. As to any significant diseases
in service, it was reported that the veteran underwent an
operation on his nose and an appendectomy.
The veteran underwent a VA general medical examination in
February 1947. The examiner noted that the veteran's
digestive system, including his liver, was normal. The
diagnoses did not refer to hepatitis.
A May 1947 statement from H. F. Gaines, M.D., reported that
the veteran was first seen in April 1946 for post-nasal drip
and weight loss. Dr. Gaines noted that on examination, the
veteran's abdomen had no masses or tenderness and that, as to
laboratory findings, the veteran's urine, blood, and stool
were negative. The diagnoses were post-nasal drip,
nervousness, and underweight.
Private treatment records dated from 1980 to 1999 show that
the veteran was treated for multiple disorders. There was no
reference to any hepatitis.
In August 2000, the veteran submitted his current claim for
service connection for hepatitis. He reported that he
contracted yellow jaundice as a result of a yellow fever
immunization in service in March 1942. The veteran attached
a copy of a letter that he stated was written to his family
in 1942, in which he reported that he had contacted yellow
jaundice from a yellow fever shot that was from a bad batch
of serum. The veteran also attached an unidentified medical
treatise which indicated that prior to April 1942, there was
an outbreak of jaundice in the Army associated with the
yellow fever vaccination. The treatise indicated that, at
that time, it was considered advisable to discontinue, at
least temporarily, the vaccination which had been in use.
The veteran underwent a VA examination in August 2001. He
reported that he received a yellow fever vaccine in March
1942 which was prepared with human serum as the vehicle. He
indicated that shortly after receiving the vaccination, he
and ten of his colleagues developed yellow jaundice. The
veteran reported that they ran the course for hepatitis and
that he had no residual, but that he had been told not to
donate blood. The examiner noted that since the hepatitis
was obtained from human serum, it was probably hepatitis B.
It was noted that the vaccine was withdrawn shortly after the
veteran received it and that he had not suffered any jaundice
since that time. The examiner reported that the veteran's
was not jaundiced and that his liver was not enlarged or
tender. There was a notation that liver function tests and
hepatitis screening was obtained, although such is not of
record. The diagnosis was hepatitis secondary to yellow
fever vaccine, probably hepatitis B, with no apparent
residual.
In his February 2002 substantive appeal, the veteran reported
that he contacted yellow jaundice from yellow fever shots
while he was in the service. He reported that he and ten
other members of his organization contracted yellow jaundice
and that the vaccine was later withdrawn from use.
II. Analysis
Through correspondence, the rating decision, the statement of
the case, and the supplemental statement of the case, the
veteran has been informed of the evidence necessary to
substantiate his claim for service connection for hepatitis.
Identified relevant medical records have been obtained, and
VA examination has been provided. The Board finds that the
notice and duty to assist provisions of the Veterans Claims
Assistance Act of 2000, and the related VA regulation, have
been satisfied as to this issue. 38 U.S.C.A. §§ 5103, 5103A
(West Supp. 2001); 66 Fed. Reg. 45,620, 45,630 (Aug. 29,
2001) (to be codified as amended at 38 C.F.R. § 3.159).
Service medical records from the veteran's 1941-1945 active
duty do not show hepatitis. There are no post-service
medical records of hepatitis or residuals of prior hepatitis.
The veteran maintains he contracted hepatitis in service from
a yellow fever vaccine, and this history is recorded on the
2001 VA examination. However, that examination noted there
were no apparent residuals of hepatitis.
Even assuming the veteran had an episode of hepatitis in
service, as claimed, more is required for service connection.
In addition to a disease or injury in service, service
connection requires competent medical evidence of a current
related disability. Degmetich v. Brown, 104 F. 3d 1328
(1997). The medical evidence, including the recent VA
examination, shows no current hepatitis or residuals of any
prior hepatitis, and therefore there is no disability to
service-connect. It must be concluded that the claimed
condition was not incurred in or aggravated by service, and
service connection is not warranted.
As the preponderance of the evidence is against the claim,
the benefit-of-the-doubt rule does not apply, and the claim
for service connection for hepatitis must be denied. 38
U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49
(1990).
ORDER
Service connection for hepatitis is denied.
L. W. TOBIN
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. | 09-13-2002 | [
"Citation Nr: 0212051 Decision Date: 09/13/02 Archive Date: 09/19/02 DOCKET NO. 02-02 530 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama THE ISSUE Entitlement to service connection for hepatitis. (An issue of entitlement to service connection for post- traumatic stress disorder (PTSD) will be the subject of a later decision.) REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The veteran had active service from November 1941 to November 1945.",
"This matter came before the Board of Veterans' Appeals (Board) on appeal from a September 2001 RO rating decision which denied service connection for hepatitis (claimed as yellow jaundice). An August 2002 motion to advance the case on the Board's docket was granted by the Board in August 2002. (The veteran also appeals an RO denial of his claim for service connection for PTSD.",
"The Board is undertaking additional development of the evidence on the PTSD issue, in accordance with 38 C.F.R. § 19.9 as recently amended. When such is completed, the Board will issue a separate decision on the PTSD issue.) FINDINGS OF FACT The veteran currently does not have hepatitis or any residuals of prior hepatitis. CONCLUSION OF LAW Hepatitis was not incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. §§ 3.303 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background The veteran served on active duty in the Army from November 1941 to November 1945.",
"The veteran's service medical records do not refer to complaints or findings of hepatitis. An immunization register indicated that he received a yellow fever vaccine in March 1942. An October 1942 hospital personal history report, in reference to the veteran's hospitalization for an appendectomy, indicated, as to a previous personal history, that he had no serious illnesses. There was no reference to hepatitis. The November 1945 separation examination noted the abdomen was normal, and there was no mention of current or past hepatitis. There was a notation that the veteran's blood serology was negative. As to any significant diseases in service, it was reported that the veteran underwent an operation on his nose and an appendectomy.",
"The veteran underwent a VA general medical examination in February 1947. The examiner noted that the veteran's digestive system, including his liver, was normal. The diagnoses did not refer to hepatitis. A May 1947 statement from H. F. Gaines, M.D., reported that the veteran was first seen in April 1946 for post-nasal drip and weight loss. Dr. Gaines noted that on examination, the veteran's abdomen had no masses or tenderness and that, as to laboratory findings, the veteran's urine, blood, and stool were negative. The diagnoses were post-nasal drip, nervousness, and underweight. Private treatment records dated from 1980 to 1999 show that the veteran was treated for multiple disorders. There was no reference to any hepatitis.",
"In August 2000, the veteran submitted his current claim for service connection for hepatitis. He reported that he contracted yellow jaundice as a result of a yellow fever immunization in service in March 1942. The veteran attached a copy of a letter that he stated was written to his family in 1942, in which he reported that he had contacted yellow jaundice from a yellow fever shot that was from a bad batch of serum. The veteran also attached an unidentified medical treatise which indicated that prior to April 1942, there was an outbreak of jaundice in the Army associated with the yellow fever vaccination. The treatise indicated that, at that time, it was considered advisable to discontinue, at least temporarily, the vaccination which had been in use.",
"The veteran underwent a VA examination in August 2001. He reported that he received a yellow fever vaccine in March 1942 which was prepared with human serum as the vehicle. He indicated that shortly after receiving the vaccination, he and ten of his colleagues developed yellow jaundice. The veteran reported that they ran the course for hepatitis and that he had no residual, but that he had been told not to donate blood. The examiner noted that since the hepatitis was obtained from human serum, it was probably hepatitis B. It was noted that the vaccine was withdrawn shortly after the veteran received it and that he had not suffered any jaundice since that time. The examiner reported that the veteran's was not jaundiced and that his liver was not enlarged or tender. There was a notation that liver function tests and hepatitis screening was obtained, although such is not of record.",
"The diagnosis was hepatitis secondary to yellow fever vaccine, probably hepatitis B, with no apparent residual. In his February 2002 substantive appeal, the veteran reported that he contacted yellow jaundice from yellow fever shots while he was in the service. He reported that he and ten other members of his organization contracted yellow jaundice and that the vaccine was later withdrawn from use. II. Analysis Through correspondence, the rating decision, the statement of the case, and the supplemental statement of the case, the veteran has been informed of the evidence necessary to substantiate his claim for service connection for hepatitis. Identified relevant medical records have been obtained, and VA examination has been provided. The Board finds that the notice and duty to assist provisions of the Veterans Claims Assistance Act of 2000, and the related VA regulation, have been satisfied as to this issue.",
"38 U.S.C.A. §§ 5103, 5103A (West Supp. 2001); 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. § 3.159). Service medical records from the veteran's 1941-1945 active duty do not show hepatitis. There are no post-service medical records of hepatitis or residuals of prior hepatitis. The veteran maintains he contracted hepatitis in service from a yellow fever vaccine, and this history is recorded on the 2001 VA examination. However, that examination noted there were no apparent residuals of hepatitis. Even assuming the veteran had an episode of hepatitis in service, as claimed, more is required for service connection. In addition to a disease or injury in service, service connection requires competent medical evidence of a current related disability. Degmetich v. Brown, 104 F. 3d 1328 (1997).",
"The medical evidence, including the recent VA examination, shows no current hepatitis or residuals of any prior hepatitis, and therefore there is no disability to service-connect. It must be concluded that the claimed condition was not incurred in or aggravated by service, and service connection is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim for service connection for hepatitis must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App.",
"49 (1990). ORDER Service connection for hepatitis is denied. L. W. TOBIN 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 |
15 N.Y.3d 858 (2010) In the Matter of EDDIE GOMEZ, Appellant, et al., Petitioner, v. BRIAN FISCHER, as Commissioner of Correctional Services, et al., Respondents. Motion No: 2010-930. Court of Appeals of New York. Submitted August 9, 2010. Decided October 14, 2010. Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. | 10-30-2013 | [
"15 N.Y.3d 858 (2010) In the Matter of EDDIE GOMEZ, Appellant, et al., Petitioner, v. BRIAN FISCHER, as Commissioner of Correctional Services, et al., Respondents. Motion No: 2010-930. Court of Appeals of New York. Submitted August 9, 2010. Decided October 14, 2010. Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution."
]
| https://www.courtlistener.com/api/rest/v3/opinions/2561074/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Filed 09/12/19 Case 19-21640 Doc 113
1 7 Peter Cianchetta, SBN: 220971 2 CIANCHETTA & ASSOCIATES 8788 Elk Grove Blvd., Suite 2A 3 Elk Grove, California 95624 4 Ph: (916) 685-7878 plc@eglaw.net 5 Attorney for Debora Leigh Miller-Zuranich 6
7 UNITED STATES BANKRUPTCY COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 In re: Case No. 2019-21640 10 CIANCHETTA & ASSOCIATES
11 Debora Leigh Miller-Zuranich DCN: PLC-07 8788 Elk Grove Blvd., Suite 2A
12 , Debtors Hearing Date: October 8, 2019 Elk Grove, CA 95624
13 Hearing Time: 2:00 PM Hon. Christopher D. Jaime 14 Courtroom 32 - Dept B 15 EXHIBITS IN SUPPORT OF MOTION TO EMPLOY REAL ESTATE BROKER 16
17 EXHIBIT A – Broker License, Agent License 18
19 EXHIBIT B – Listing Agreement
20
21
22
23
24
25
26
27
28
Page 1 Filed 09/12/19
Department of Real Estate
Real Estate Salesperson License
Stanley Edward Cornelius Case 19-21640
BROKER AFFILIATION CHARLES CLAIBORNE KELLUM 2329 CENTRAL AVENUE ALAMEDA, CA 94501
Identification Number: 01128054 Issued: December 12, 2018 Expires: May 18, 2020 Doc 113 'RFX6LJQ(QYHORSH,' '($ %$(%)$$(' Filed 09/12/19 Case 19-21640 Doc 113 A E1% * %") F " 3 3& )" " # ++ + ! , * & -./-0#
" 4 &C 08/28/2019 -+ G < C Debora Miller Zuranich A+ B Charles Kellum, Broker A/ B August 28, 2019 $$-C" 3#># November 28, 2019 A6 3 B ) 30 Merlin Ct. ' ) Oakland ' Alameda ) ' ' 94605-5624 O ' * , 3 E# A3 B # 3 )) # + ) # 3 ' ) # + ) # .+ AC + - Eight Hundred Forty-Nine Thousand, Nine Hundred Ninety-Nine 0 P 849,999.00 # + 6 - # 8+ A ; C " 1C ) !%3" " 2 " " 1!! 3 3" 2 E& '( D+ )( " '( 1) 3& * &% ( 3& ! ( ' 3 " ' '"D3 3& " " 1!! 3 31%& 1!43 " 3 3& 2 " #+ + + / ' X 5.000 ) ' ) ' P ' *E0 ' - -# ) 6 3 ' ' / ' ' + ) ' ' ) ) 3 + ' /) + # / ) ) ) 6 3 ' # .# 60 6 3 G * ' ) ' + ' ' 3 A3 /) B , - 3 ) 6 3 / G / ) + ' 5) ' ' 3 # + ' ' / ) %* ) ' 6 3 ' / + ) 3 /) # 8# ' ) / , ' 3 ' ' ' ' ' ) ) + ) 6 3 ' # + + ' ) ) %* + )' ' ' ) 5) 9 ' ) ' # + ' + / - # + + / , ' ) ' # -# / )= ) ) Q>6+Q >6+ ) / , %*' X 2.500 ) ' P # .# / )= ) >6+ / , # + + / + , ) # / ) * ' ) / )) %*' 3 + ) ' 3 /) # + -# + + ) 3 ' ) - # .# + + 3 ) 3 ) - # 8# 3 ) + - / ) * G / + ) #
: $;' * 72*6 17+<' # + , < -./-0 - @# A B G < - @# &+$5/(6.(//80%52.(5+H\HU$YH&DVWUR9DOOH\&$ 3 - . - 0HUOLQ&W 6WDQOH\&RUQHOLXV 3 ) =.< =6 $; ! . > 7 ' . ' > ?; @ #=6 # 'RFX6LJQ(QYHORSH,' '($ %$(%)$$(' Filed 09/12/19 Case 19-21640 Doc 113 3 * - 30 Merlin Ct. , Oakland, CA 94605-5624 0 - 08/28/2019 9+ + A G C J ) ' ) 3 ) ' ) ' ) # A G C + A C + + ) ) 3 ' ) ) C ) ) ) ) ) G / ) ) N ) ) # + -# & " D3& "!C + - + * 3 ( + 1 .# 3& "!C 3 ) - + ( D NH N* 1 + /) ' ' ) ' ) + ) # @+ A < C + / N) Oakland/Berkeley >) 6 + >6+ # J ) 3 >6+ # >6+ >6+ 3 # * ' ) ' ' >6+ )' ) >6+ >6+ 3 >6+# + / >6+ 5) >6+#
AH A AH
: AI >6+ ) >6+# 3 ) >6+ ' ) + , ) ) , # ) ) >6+# >6+ ) # 7 ) >6+ ) >6+# >6+ ) # G AC 6 >6+ , ) ) >6+ >6+# / < C ) ) >6+# >6+ ) # 3 ) ) ) >6+# 3 ) ) ) ) # ( ) ' 9 ) >6+ 9 ) ) ' ' ) ) + , # AC 3 >6+ 3 ' /) ' 3 # AC + ) 3 >6+' + ) - ' ) ' >6+ + , 3 G ) + , 3 >6+ ) ) ) G ' ) ) ) + 3 # G C * ) ) 3 ) # C + ) / ) + , 3 ) + / ) #
3 " / 3" 3 "
+ , < -./-0 . @# A B G < . @# 3 ) =.< =6 $; ! . > 7 ' . ' > ?; @ #=6 # 0HUOLQ&W 'RFX6LJQ(QYHORSH,' '($ %$(%)$$(' Filed 09/12/19 Case 19-21640 Doc 113 3 * - 30 Merlin Ct. , Oakland, CA 94605-5624 0 - 08/28/2019
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
+ , < -./-0 8 @# A B G < 8 @# 3 ) =.< =6 $; ! . > 7 ' . ' > ?; @ #=6 # 0HUOLQ&W 'RFX6LJQ(QYHORSH,' '($ %$(%)$$(' Filed 09/12/19 Case 19-21640 Doc 113 3 * - 30 Merlin Ct. , Oakland, CA 94605-5624 0 - 08/28/2019 + 32 ! " 3C / ' ' ' ) + , ) ) # + "3" ( !4" 3 3& %(C + ) / ' ) ' ' ) ) / ' + , 3 # + / , ) ' ) * # + X A3 7 > 1 /) + 9 0) B #*#7# . 37/+ # -5+ , , : , < C / ' ' ) ) N ' 3 ' # ' ) ' ) ' ' ' ) ' ' ' 3 # + - ) ) ) ) 3 G ) # / ) + # 3 3 ) ) ) + ) Q Q ) # + ) # --+ < C + 3 ' ) ) ) # + ' / ) 3 A B N ) ) 3 ) ) / , ' >6+' # + / + ) ) ' ) # + ) / ) / / ) ) ' ) / , ) )) # + + ) N ' # + ) / ) ) # + ) / ) >6+ * # + ))= ) >6+ ) >6+# 1 N ) ' / + ) ) # -.+ ; / ; GC * N 3 3 / ' ' >6+ ' )= ' )= ' ) # / ' ' >6+ *N/ 72*6 17+< ) &) ' ' ' ) ) N # + )= / N # + ) 3 ' + ) , ) N #*#7# . K6* # -8+ C + )= / .17 +*62N+160 3 # -9+ J C 3 ' 9 # -@+ C ' + / * ' + / 9 + / ' $"*# ->+ AC 721 * 6 #*#7# . 7216 + + * #*#7# . ++* ) * #*#7# . * + ) ) )
-6+ A A <C 9 / , 9 * / , ' / > ' / > * ' ' @ ( * )# -0+ C * ) + + , ) # -7+ C + A C + / ) ) * ' ) # > ' ' 5) # ' ) ' ) ) ' ' ) 5) ' ' ) ) # E1% 3 2! ") !& " 3 !3" 41 2 & 3 4 4) -7+ + , < -./-0 9 @# A B G < 9 @# 3 ) =.< =6 $; ! . > 7 ' . ' > ?; @ #=6 # 0HUOLQ&W 'RFX6LJQ(QYHORSH,' '($ %$(%)$$(' Filed 09/12/19 Case 19-21640 Doc 113 3 * - 30 Merlin Ct. , Oakland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ebora Miller Zuranich0 Debora Miller Zuranich * 9369 Newinton Way Elk Grove + CA O 95758-4440 (916)952-0116 . 29 debizuranich@yahoo.com
+ 0
* + O . 29
* +) * ) #*#7# . *+*
7 2 / . Charles Kellum, Broker 072 6# 8 00987965 * 2329 Central Ave Alameda + CA O 94501 / #(510)926-9440 29 stanleycornelius@aol.com 072 6#801128054 0 Stanley Cornelius / # 29 072 6#8 0
/ 9 3 # 9 / * / * #*#7# . */* #
: $""$9 $;' * 72*6 17+<' # J + $! J#+# ))= )' ) ' ' ' ) ) = # D+ .17> D*+ /22E *3371H20 /4 D2 *6.17E* *++1 * 1E 1. 72*6 17+<# E1 72372+2E * 1E + >*02 *+ 1 D2 62I*6 H*60 4 17 * J7* 4 1. *E4 371H+1E E *E4 +32 . 7*E+* 1E# * 72*6 2+ * 2 /71K27 + D2 327+1E LJ*6.20 1 *0H+2 1E 72*6 2+ * 2 7*E+* 1E+# . 41J 02+72 62I*6 17 *M *0H 2' 1E+J6 *E *337137* 2 371.2++1E*6# 3) 0) - 72*6 2+ * 2 /J+E2++ +27H 2+' E # C C +) H * ) ' 6 * ' " < -./-0 @ @# A B G < @ @# 3 ) =.< =6 $; ! . > 7 ' . ' > ?; @ #=6 # 0HUOLQ&W | 2019-09-12 | [
"Filed 09/12/19 Case 19-21640 Doc 113 1 7 Peter Cianchetta, SBN: 220971 2 CIANCHETTA & ASSOCIATES 8788 Elk Grove Blvd., Suite 2A 3 Elk Grove, California 95624 4 Ph: (916) 685-7878 plc@eglaw.net 5 Attorney for Debora Leigh Miller-Zuranich 6 7 UNITED STATES BANKRUPTCY COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 In re: Case No. 2019-21640 10 CIANCHETTA & ASSOCIATES 11 Debora Leigh Miller-Zuranich DCN: PLC-07 8788 Elk Grove Blvd., Suite 2A 12 , Debtors Hearing Date: October 8, 2019 Elk Grove, CA 95624 13 Hearing Time: 2:00 PM Hon. Christopher D. Jaime 14 Courtroom 32 - Dept B 15 EXHIBITS IN SUPPORT OF MOTION TO EMPLOY REAL ESTATE BROKER 16 17 EXHIBIT A – Broker License, Agent License 18 19 EXHIBIT B – Listing Agreement 20 21 22 23 24 25 26 27 28 Page 1 Filed 09/12/19 Department of Real Estate Real Estate Salesperson License Stanley Edward Cornelius Case 19-21640 BROKER AFFILIATION CHARLES CLAIBORNE KELLUM 2329 CENTRAL AVENUE ALAMEDA, CA 94501 Identification Number: 01128054 Issued: December 12, 2018 Expires: May 18, 2020 Doc 113 'RFX6LJQ\u0003(QYHORSH\u0003,' \u0003\u0015\u0015'($\u0017\u0015\u0018\u0010\u001a %$\u0010\u0017\u0014(\u0017\u0010\u001b\u001b%)\u0010\u0017\u0017\u0013$\u0017$\u0016('\u0015\u001a\u0019 Filed 09/12/19 Case 19-21640 Doc 113 \u0006\u0005\u0004 \u000f\u0010\u0005\u000e\b \b\u0005\u0006\u0010\u0005\u000f \u000e A \u000f\u0010 \u0014 E1\u0016%\u0019 *\u0015 \u000e%\")\u001b\u0017 F \" \u001b3 3& )\" \"\u001b \u0006\u0015\u0016\u0016# \u0014\u0007+\u000e+ + \u001b\u0017!",
"\b\u000e, \u0015* \u0019\u0015& -./-0# \u0004 \"\u0015 \u0013\u0017\u00154 \u0017\u0015&C 08/28/2019 -+ G\u0007\b \u0006\u0005< \u0005 \u0012\u0010 \u0010 \u0006 \b\bC Debora Miller Zuranich \u0003\u0004A+ \u001b\u001b \u0011B \b \u0011 \u0013 \u0012\u0016\u001b\u0010 \u000f \u001a\u0014 \u0015\u0011\u001a\u0014\u0018\u000f Charles Kellum, Broker \u0003\u0004A/\u0011\u0010 \u0011B \u0013 \u0015\u000e\u0014\u0014\u000e\u0014\u0015 \u0004 \u001a\u0018 August 28, 2019 \u0003\u001a\u0014 \u0014 \u000e\u0014\u0015 \u001a\u0018 $$-C\" 3#># \u0010\u0014 \u0004 \u001a\u0018 November 28, 2019 \u0003\u0004A6\u000e\u000f\u0018\u000e\u0014\u0015 3 \u0011\u000e\u0010 B \u0018\b \u0007\u001b)\u000f\u000e\u0017 \u001a\u0014 \u000e\u0011\u0011 \u0017\u0010\u0007\u001a\u0013\u001b \u0011\u000e\u0015\b\u0018 \u0018\u0010 \u000f \u001b\u001b \u0010\u0011 \u0007\b\u001a\u0014\u0015 \u0018\b \u0011 \u001a\u001b \u0016\u0011\u0010\u0016 \u0011\u0018 \u000f\u0007\u0011\u000e\u0013 \u001a\u000f 30 Merlin Ct. ' \u000f\u000e\u0018)\u001a\u0018 \u000e\u0014 Oakland \u0003\u0004 \u000e\u0018 ' Alameda \u0003\u0004 \u0010)\u0014\u0018 ' \u001a\u001b\u000e\u0006\u0010\u0011\u0014\u000e\u001a' 94605-5624 \u0003\u0004O\u000e\u0016 \u0010 ' *\u000f\u000f \u000f\u000f\u0010\u0011,\u000f 3\u001a\u0011\u0007 \u001b E\u0010# \u0003\u0004A3\u0011\u0010\u0016 \u0011\u0018 B # \u0003 \b\u000e\u000f 3\u0011\u0010\u0016 \u0011\u0018 \u000e\u000f \u001a \u0012\u001a\u0014)\u0006\u001a\u0007\u0018)\u0011 \u0004\u0012\u0010\u0013\u000e\u001b \b\u0010\u0012 # + \u001a \u0014 )\u0012 \u0006\u0010\u0011 \u001a \u000e\u0018\u000e\u0010\u0014\u001a\u001b \u0018 \u0011\u0012\u000f# \u0003 \b\u000e\u000f 3\u0011\u0010\u0016 \u0011\u0018 \u000e\u000f \u0013 \u000e\u0014\u0015 \u000f\u0010\u001b \u001a\u000f \u0016\u001a\u0011\u0018 \u0010\u0006 \u001a \u0016\u0011\u0010\u0013\u001a\u0018 ' \u0007\u0010\u0014\u000f \u0011\u0017\u001a\u0018\u0010\u0011\u000f\b\u000e\u0016 \u0010\u0011 \u0015)\u001a\u0011 \u000e\u001a\u0014\u000f\b\u000e\u0016# + \u001a \u0014 )\u0012 \u0006\u0010\u0011 \u001a \u000e\u0018\u000e\u0010\u0014\u001a\u001b \u0018 \u0011\u0012\u000f# .+ \b\u0005\u0006\u0010\u0005\u000f \u0013 \u0005\u0007 \u000e\u000f\u0004 \u0010 A\u0006C \u000e+ \b \u001b\u000e\u000f\u0018\u000e\u0014\u0015 \u0016\u0011\u000e\u0007 \u000f\b\u001a\u001b\u001b \u0013 - Eight Hundred Forty-Nine Thousand, Nine Hundred Ninety-Nine 0\u0010\u001b\u001b\u001a\u0011\u000f \u0004P 849,999.00 \u0003# \u001a+ 6\u000e\u000f\u0018\u000e\u0014\u0015 \u0011\u0012\u000f- # 8+ \u0007 A\u0013 \u000f\u0006\u000e\u0010\u0005 \u000f \u0010 \u001a ; C \u000f\u001b\" 1\u0015C \u0010)\u0015 !\u001b%3\" \u001b\u0017 \u0017 \"\u0015 \u001b2 \u0017\u0015 \u0016 \u0015\u0019\" \"\u0015 1\u001b!! \u0019\u0019 \u001b3\u0019 \u0019 3\u001b\" 2 E\u0015& '( \u0016 D+ \u0010)\u0015( \u0017\u0015 \u0019\u0015\" '( \u0015 1) \u001a\u0017\u001b \u0015\u0017 3& * &% \u0016\u0016( 3& ! ( '\u0015 3\u0015 \u001b\" '\u0016\u0015 '\u0015\"D\u0015\u00153 \u0006\u0015\u0016\u0016\u0015\u0017 3& \u001a\u0017\u001b \u0015\u0017 \u0014\u0017\u0015 \u0016 \u0015\u0019\" \"\u0015 1\u001b!!",
"\u0019\u0019 \u001b3\u0019 31\u0016%&\u0015 \u0016\u0016 1\u001b!4\u00153\u0019 \" \u001b3 3& 2\u0015\u0015\u0019 \"\u001b \u001a\u0017\u001b \u0015\u0017#+ \u000e+ + \u001b\u001b \u0011 \u001a\u0015\u0011 \u000f \u0018\u0010 \u0016\u001a \u0018\u0010 /\u0011\u0010 \u0011 \u001a\u000f \u0007\u0010\u0012\u0016 \u0014\u000f\u001a\u0018\u000e\u0010\u0014 \u0006\u0010\u0011 \u000f \u0011\u0017\u000e\u0007 \u000f \u000e\u0011\u0011 \u000f\u0016 \u0007\u0018\u000e\u0017 \u0010\u0006 \u001a\u0015 \u0014\u0007 \u0011 \u001b\u001a\u0018\u000e\u0010\u0014\u000f\b\u000e\u0016\u0004\u000f ' \u000e\u0018\b \u0011 X 5.000 \u0003\u0016 \u0011\u0007 \u0014\u0018 \u0010\u0006 \u0018\b \u001b\u000e\u000f\u0018\u000e\u0014\u0015 \u0016\u0011\u000e\u0007 \u0004\u0010\u0011 \u000e\u0006 \u001a \u0016)\u0011\u0007\b\u001a\u000f \u001a\u0015\u0011 \u0012 \u0014\u0018 \u000e\u000f \u0014\u0018 \u0011 \u000e\u0014\u0018\u0010' \u0010\u0006 \u0018\b \u0016)\u0011\u0007\b\u001a\u000f \u0016\u0011\u000e\u0007 ' \u0010\u0011 \u0003P ' *E0 \u0003' \u001a\u000f \u0006\u0010\u001b\u001b\u0010\u0019\u000f- \u0014-# \u0005\u0006 )\u0011\u000e\u0014\u0015 \u0018\b 6\u000e\u000f\u0018\u000e\u0014\u0015 3 \u0011\u000e\u0010 ' \u0010\u0011 \u001a\u0014 \u0018 \u0014\u000f\u000e\u0010\u0014' /\u0011\u0010 \u0011' \u0007\u0010\u0010\u0016 \u0011\u001a\u0018\u000e\u0014\u0015 \u0013\u0011\u0010 \u0011' + \u001b\u001b \u0011 \u0010\u0011 \u001a\u0014 \u0010\u0018\b \u0011 \u0016 \u0011\u000f\u0010\u0014 \u0016\u0011\u0010\u0007)\u0011 \u000f \u001a \u0011 \u001a ' \u0019\u000e\u001b\u001b\u000e\u0014\u0015' \u001a\u0014 \u001a\u0013\u001b \u0013) \u0011\u0004\u000f \u0019\b\u0010\u000f \u0010\u0006\u0006 \u0011 \u0018\u0010 \u0016)\u0011\u0007\b\u001a\u000f \u0018\b 3\u0011\u0010\u0016 \u0011\u0018 \u0010\u0014 \u001a\u0014 \u0016\u0011\u000e\u0007 \u001a\u0014 \u0018 \u0011\u0012\u000f \u000e\u000f \u001a\u0007\u0007 \u0016\u0018 \u0013 + \u001b\u001b \u0011' \u0016\u0011\u0010\u0017\u000e \u0018\b /) \u0011 \u0007\u0010\u0012\u0016\u001b \u0018 \u000f \u0018\b \u0018\u0011\u001a\u0014\u000f\u001a\u0007\u0018\u000e\u0010\u0014 \u0010\u0011 \u000e\u000f \u0016\u0011 \u0017 \u0014\u0018 \u0006\u0011\u0010\u0012 \u0010\u000e\u0014\u0015 \u000f\u0010 \u0013 + \u001b\u001b \u0011# \u0004/\u0011\u0010 \u0011 \u000e\u000f \u0014\u0018\u000e\u0018\u001b \u0018\u0010 \u0007\u0010\u0012\u0016 \u0014\u000f\u001a\u0018\u000e\u0010\u0014 \u0019\b \u0018\b \u0011 \u001a\u0014 \u000f\u0007\u0011\u0010\u0019 \u0011 \u000f)\u001b\u0018\u000e\u0014\u0015 \u0006\u0011\u0010\u0012 \u000f)\u0007\b \u0010\u0006\u0006 \u0011 \u0007\u001b\u0010\u000f \u000f )\u0011\u000e\u0014\u0015 \u0010\u0011 \u001a\u0006\u0018 \u0011 \u0018\b \u0016\u000e\u0011\u001a\u0018\u000e\u0010\u0014 \u0010\u0006 \u0018\b 6\u000e\u000f\u0018\u000e\u0014\u0015 3 \u0011\u000e\u0010 ' \u0010\u0011 \u001a\u0014 \u0018 \u0014\u000f\u000e\u0010\u0014# \u0014.# \u0005\u0006 \u0019\u000e\u0018\b\u000e\u0014 60 \u0003\u0007\u001a\u001b \u0014 \u001a\u0011 \u001a \u000f \u0004\u001a \u001a\u0006\u0018 \u0011 \u0018\b \u0014 \u0010\u0006 \u0018\b 6\u000e\u000f\u0018\u000e\u0014\u0015 3 \u0011\u000e\u0010 \u0010\u0011 \u001a\u0014 \u0018 \u0014\u000f\u000e\u0010\u0014G \u0010\u0011 \u0004\u0013 \u001a\u0006\u0018 \u0011 \u001a\u0014 \u0007\u001a\u0014\u0007 \u001b\u001b\u001a\u0018\u000e\u0010\u0014 \u0010\u0006 \u0018\b\u000e\u000f *\u0015\u0011 \u0012 \u0014\u0018' )\u0014\u001b \u000f\u000f \u0010\u0018\b \u0011\u0019\u000e\u000f \u001a\u0015\u0011 ' + \u001b\u001b \u0011 \u0014\u0018 \u0011\u000f \u000e\u0014\u0018\u0010 \u001a \u0007\u0010\u0014\u0018\u0011\u001a\u0007\u0018 \u0018\u0010 \u000f \u001b\u001b' \u0007\u0010\u0014\u0017 ' \u001b \u001a\u000f \u0010\u0011 \u0010\u0018\b \u0011\u0019\u000e\u000f \u0018\u0011\u001a\u0014\u000f\u0006 \u0011 \u0018\b 3\u0011\u0010\u0016 \u0011\u0018 \u0018\u0010 \u001a\u0014 \u0010\u0014 \u0004A3\u0011\u0010\u000f\u0016 \u0007\u0018\u000e\u0017 /) \u0011B \u0010\u0011 \u0018\b\u001a\u0018 \u0016 \u0011\u000f\u0010\u0014,\u000f \u0011 \u001b\u001a\u0018 \u0014\u0018\u000e\u0018 - \u0004\u000e \u0019\b\u0010 \u0016\b \u000f\u000e\u0007\u001a\u001b\u001b \u0014\u0018 \u0011 \u001a\u0014 \u0019\u001a\u000f \u000f\b\u0010\u0019\u0014 \u0018\b 3\u0011\u0010\u0016 \u0011\u0018 )\u0011\u000e\u0014\u0015 \u0018\b 6\u000e\u000f\u0018\u000e\u0014\u0015 3 \u0011\u000e\u0010 \u0010\u0011 \u001a\u0014 \u0018 \u0014\u000f\u000e\u0010\u0014 \u0013 /\u0011\u0010 \u0011 \u0010\u0011 \u001a \u0007\u0010\u0010\u0016 \u0011\u001a\u0018\u000e\u0014\u0015 \u0013\u0011\u0010 \u0011G \u0010\u0011 \u0004\u000e\u000e \u0006\u0010\u0011 \u0019\b\u0010\u0012 /\u0011\u0010 \u0011 \u0010\u0011 \u001a\u0014 \u0007\u0010\u0010\u0016 \u0011\u001a\u0018\u000e\u0014\u0015 \u0013\u0011\u0010 \u0011 \u000f)\u0013\u0012\u000e\u0018\u0018 \u0018\u0010 + \u001b\u001b \u0011 \u001a \u000f\u000e\u0015\u0014 ' \u0019\u0011\u000e\u0018\u0018 \u0014 \u0010\u0006\u0006 \u0011 \u0018\u0010 \u001a\u00075)\u000e\u0011 ' \u001b \u001a\u000f ' \u0007\b\u001a\u0014\u0015 \u0010\u0011 \u0010\u0013\u0018\u001a\u000e\u0014 \u001a\u0014 \u0010\u0016\u0018\u000e\u0010\u0014 \u0010\u0014 \u0018\b 3\u0011\u0010\u0016 \u0011\u0018 # + \u001b\u001b \u0011' \b\u0010\u0019 \u0017 \u0011' \u000f\b\u001a\u001b\u001b \b\u001a\u0017 \u0014\u0010 \u0010\u0013\u001b\u000e\u0015\u001a\u0018\u000e\u0010\u0014 \u0018\u0010 /\u0011\u0010 \u0011 )\u0014 \u0011 \u0016\u001a\u0011\u001a\u0015\u0011\u001a\u0016\b %*\u0004 )\u0014\u001b \u000f\u000f' \u0014\u0010\u0018 \u001b\u001a\u0018 \u0011 \u0018\b\u001a\u0014 \u0018\b \u0014 \u0010\u0006 \u0018\b 6\u000e\u000f\u0018\u000e\u0014\u0015 3 \u0011\u000e\u0010 \u0010\u0011 \u001a\u0014 \u0018 \u0014\u000f\u000e\u0010\u0014 \u0010\u0011 \u0007\u001a\u0014\u0007 \u001b\u001b\u001a\u0018\u000e\u0010\u0014' /\u0011\u0010 \u0011 \b\u001a\u000f \u0015\u000e\u0017 \u0014 + \u001b\u001b \u0011 \u001a \u0019\u0011\u000e\u0018\u0018 \u0014 \u0014\u0010\u0018\u000e\u0007 \u0010\u0006 \u0018\b \u0014\u001a\u0012 \u000f \u0010\u0006 \u000f)\u0007\b 3\u0011\u0010\u000f\u0016 \u0007\u0018\u000e\u0017 /) \u0011\u000f# \u00148# \u0005\u0006' \u0019\u000e\u0018\b\u0010)\u0018 /\u0011\u0010 \u0011,\u000f \u0016\u0011\u000e\u0010\u0011 \u0019\u0011\u000e\u0018\u0018 \u0014 \u0007\u0010\u0014\u000f \u0014\u0018' \u0018\b 3\u0011\u0010\u0016 \u0011\u0018 \u000e\u000f \u0019\u000e\u0018\b \u0011\u001a\u0019\u0014 \u0006\u0011\u0010\u0012 \u000f\u001a\u001b ' \u0007\u0010\u0014\u0017 ' \u001b \u001a\u000f ' \u0011 \u0014\u0018 ' \u0010\u0018\b \u0011\u0019\u000e\u000f \u0018\u0011\u001a\u0014\u000f\u0006 \u0011\u0011 ' \u0010\u0011 \u0012\u001a )\u0014\u0012\u001a\u0011 \u0018\u001a\u0013\u001b \u0013 \u001a \u0017\u0010\u001b)\u0014\u0018\u001a\u0011 \u001a\u0007\u0018 \u0010\u0006 + \u001b\u001b \u0011 )\u0011\u000e\u0014\u0015 \u0018\b 6\u000e\u000f\u0018\u000e\u0014\u0015 3 \u0011\u000e\u0010 ' \u0010\u0011 \u001a\u0014 \u0018 \u0014\u000f\u000e\u0010\u0014# \u001a+ \u0005\u0006 \u0007\u0010\u0012\u0016\u001b \u0018\u000e\u0010\u0014 \u0010\u0006 \u0018\b \u000f\u001a\u001b \u000e\u000f \u0016\u0011 \u0017 \u0014\u0018 \u0013 \u001a \u0016\u001a\u0011\u0018 \u0018\u0010 \u0018\b \u0018\u0011\u001a\u0014\u000f\u001a\u0007\u0018\u000e\u0010\u0014 \u0010\u0018\b \u0011 \u0018\b\u001a\u0014 + \u001b\u001b \u0011' \u0018\b \u0014 \u0007\u0010\u0012\u0016 \u0014\u000f\u001a\u0018\u000e\u0010\u0014 \u0019\b\u000e\u0007\b \u0010\u0018\b \u0011\u0019\u000e\u000f \u0019\u0010)\u001b \b\u001a\u0017 \u0013 \u0014 \u001a\u0011\u0014 )\u0014 \u0011 \u0016\u001a\u0011\u001a\u0015\u0011\u001a\u0016\b %* \u000f\b\u001a\u001b\u001b \u0013 \u0016\u001a \u001a\u0013\u001b \u0010\u0014\u001b \u000e\u0006 \u001a\u0014 \u0019\b \u0014 + \u001b\u001b \u0011 \u0007\u0010\u001b\u001b \u0007\u0018\u000f \u001a\u0012\u001a\u0015 \u000f \u0013 \u000f)\u000e\u0018' \u001a\u0011\u0013\u000e\u0018\u0011\u001a\u0018\u000e\u0010\u0014' \u000f \u0018\u0018\u001b \u0012 \u0014\u0018 \u0010\u0011 \u0010\u0018\b \u0011\u0019\u000e\u000f ' \u001a\u0014 \u0018\b \u0014 \u000e\u0014 \u001a\u0014 \u001a\u0012\u0010)\u0014\u0018 5)\u001a\u001b \u0018\u0010 \u0018\b \u001b \u000f\u000f \u0011 \u0010\u0006 \u0010\u0014 9\b\u001a\u001b\u0006 \u0010\u0006 \u0018\b \u001a\u0012\u001a\u0015 \u000f \u0011 \u0007\u0010\u0017 \u0011 \u0010\u0011 \u0018\b \u001a\u0013\u0010\u0017 \u0007\u0010\u0012\u0016 \u0014\u000f\u001a\u0018\u000e\u0010\u0014' \u001a\u0006\u0018 \u0011 \u0006\u000e\u0011\u000f\u0018 )\u0007\u0018\u000e\u0014\u0015 \u0018\u000e\u0018\u001b \u001a\u0014 \u000f\u0007\u0011\u0010\u0019 \u0016 \u0014\u000f \u000f \u001a\u0014 \u0018\b \u0016 \u0014\u000f \u000f \u0010\u0006 \u0007\u0010\u001b\u001b \u0007\u0018\u000e\u0010\u0014' \u000e\u0006 \u001a\u0014 # \u0007+ \u0005\u0014 \u001a \u000e\u0018\u000e\u0010\u0014' + \u001b\u001b \u0011 \u001a\u0015\u0011 \u000f \u0018\u0010 \u0016\u001a /\u0011\u0010 \u0011- # \u0004+ + \u001b\u001b \u0011 \b\u001a\u000f \u0013 \u0014 \u001a \u0017\u000e\u000f \u0010\u0006 /\u0011\u0010 \u0011,\u000f \u0016\u0010\u001b\u000e\u0007 \u0011 \u0015\u001a\u0011 \u000e\u0014\u0015 \u0007\u0010\u0010\u0016 \u0011\u001a\u0018\u000e\u0010\u0014 \u0019\u000e\u0018\b' \u001a\u0014 \u0018\b \u001a\u0012\u0010)\u0014\u0018 \u0010\u0006 \u0007\u0010\u0012\u0016 \u0014\u000f\u001a\u0018\u000e\u0010\u0014 \u0010\u0006\u0006 \u0011 \u0018\u0010' \u0010\u0018\b \u0011 \u0013\u0011\u0010 \u0011\u000f# \u0014-# /\u0011\u0010 \u0011 \u000e\u000f \u001a)\u0018\b\u0010\u0011\u000e= \u0018\u0010 \u0007\u0010\u0010\u0016 \u0011\u001a\u0018 \u0019\u000e\u0018\b \u001a\u0014 \u0007\u0010\u0012\u0016 \u0014\u000f\u001a\u0018 \u0013\u0011\u0010 \u0011\u000f \u0016\u001a\u0011\u0018\u000e\u0007\u000e\u0016\u001a\u0018\u000e\u0014\u0015 \u0018\b\u0011\u0010)\u0015\b \u0018\b \u0012)\u001b\u0018\u000e\u0016\u001b \u001b\u000e\u000f\u0018\u000e\u0014\u0015 \u000f \u0011\u0017\u000e\u0007 \u0004\u000f \u0004Q>6+Q \u0013 \u0010\u0006\u0006 \u0011\u000e\u0014\u0015 \u0018\u0010 >6+ \u0013\u0011\u0010 \u0011\u000f \u0010)\u0018 \u0010\u0006 /\u0011\u0010 \u0011,\u000f \u0007\u0010\u0012\u0016 \u0014\u000f\u001a\u0018\u000e\u0010\u0014 \u000f\u0016 \u0007\u000e\u0006\u000e \u000e\u0014 %*' \u000e\u0018\b \u0011 X 2.500 \u0003\u0016 \u0011\u0007 \u0014\u0018 \u0010\u0006 \u0018\b \u0016)\u0011\u0007\b\u001a\u000f \u0016\u0011\u000e\u0007 ' \u0010\u0011 \u0003P # \u0014.# /\u0011\u0010 \u0011 \u000e\u000f \u001a)\u0018\b\u0010\u0011\u000e= \u0018\u0010 \u0007\u0010\u0010\u0016 \u0011\u001a\u0018 \u0019\u000e\u0018\b \u001a\u0014 \u0007\u0010\u0012\u0016 \u0014\u000f\u001a\u0018 \u0013\u0011\u0010 \u0011\u000f \u0010\u0016 \u0011\u001a\u0018\u000e\u0014\u0015 \u0010)\u0018\u000f\u000e \u0018\b >6+ \u001a\u000f \u0016 \u0011 /\u0011\u0010 \u0011,\u000f \u0016\u0010\u001b\u000e\u0007 # + + \u001b\u001b \u0011 \b \u0011 \u0013 \u000e\u0011\u0011 \u0017\u0010\u0007\u001a\u0013\u001b \u001a\u000f\u000f\u000e\u0015\u0014\u000f \u0018\u0010 /\u0011\u0010 \u0011 \u0018\b \u001a\u0013\u0010\u0017 \u0007\u0010\u0012\u0016 \u0014\u000f\u001a\u0018\u000e\u0010\u0014 \u0006\u0011\u0010\u0012 + \u001b\u001b \u0011,\u000f \u0006)\u0014 \u000f \u001a\u0014 \u0016\u0011\u0010\u0007 \u000f \u000e\u0014 \u000f\u0007\u0011\u0010\u0019# /\u0011\u0010 \u0011 \u0012\u001a \u000f)\u0013\u0012\u000e\u0018 \u0018\b\u000e\u000f *\u0015\u0011 \u0012 \u0014\u0018' \u001a\u000f \u000e\u0014\u000f\u0018\u0011)\u0007\u0018\u000e\u0010\u0014\u000f \u0018\u0010 \u0007\u0010\u0012\u0016 \u0014\u000f\u001a\u0018 /\u0011\u0010 \u0011 \u0016)\u0011\u000f)\u001a\u0014\u0018 \u0018\u0010 \u0016\u001a\u0011\u001a\u0015\u0011\u001a\u0016\b %*' \u0018\u0010 \u001a\u0014 \u000f\u0007\u0011\u0010\u0019 \u0011 \u0015\u001a\u0011 \u000e\u0014\u0015 \u0018\b 3\u0011\u0010\u0016 \u0011\u0018 \u000e\u0014\u0017\u0010\u001b\u0017\u000e\u0014\u0015 + \u001b\u001b \u0011 \u001a\u0014 \u001a \u0013) \u0011' 3\u0011\u0010\u000f\u0016 \u0007\u0018\u000e\u0017 /) \u0011 \u0010\u0011 \u0010\u0018\b \u0011 \u0018\u0011\u001a\u0014\u000f\u0006 \u0011 # + \u0014-# + \u001b\u001b \u0011 \u0011 \u0016\u0011 \u000f \u0014\u0018\u000f \u0018\b\u001a\u0018 + \u001b\u001b \u0011 \b\u001a\u000f \u0014\u0010\u0018 \u0016\u0011 \u0017\u000e\u0010)\u000f\u001b \u0014\u0018 \u0011 \u000e\u0014\u0018\u0010 \u001a \u001b\u000e\u000f\u0018\u000e\u0014\u0015 \u001a\u0015\u0011 \u0012 \u0014\u0018 \u0019\u000e\u0018\b \u001a\u0014\u0010\u0018\b \u0011 \u0013\u0011\u0010 \u0011 \u0011 \u0015\u001a\u0011 \u000e\u0014\u0015 \u0018\b 3\u0011\u0010\u0016 \u0011\u0018 ' )\u0014\u001b \u000f\u000f \u000f\u0016 \u0007\u000e\u0006\u000e \u001a\u000f \u0006\u0010\u001b\u001b\u0010\u0019\u000f- # \u0014.# + \u001b\u001b \u0011 \u0019\u001a\u0011\u0011\u001a\u0014\u0018\u000f \u0018\b\u001a\u0018 + \u001b\u001b \u0011 \b\u001a\u000f \u0014\u0010 \u0010\u0013\u001b\u000e\u0015\u001a\u0018\u000e\u0010\u0014 \u0018\u0010 \u0016\u001a \u0007\u0010\u0012\u0016 \u0014\u000f\u001a\u0018\u000e\u0010\u0014 \u0018\u0010 \u001a\u0014 \u0010\u0018\b \u0011 \u0013\u0011\u0010 \u0011 \u0011 \u0015\u001a\u0011 \u000e\u0014\u0015 \u0018\b 3\u0011\u0010\u0016 \u0011\u0018 )\u0014\u001b \u000f\u000f \u0018\b 3\u0011\u0010\u0016 \u0011\u0018 \u000e\u000f \u0018\u0011\u001a\u0014\u000f\u0006 \u0011\u0011 \u0018\u0010 \u001a\u0014 \u0010\u0006 \u0018\b \u0006\u0010\u001b\u001b\u0010\u0019\u000e\u0014\u0015 \u000e\u0014 \u000e\u0017\u000e )\u001a\u001b\u000f \u0010\u0011 \u0014\u0018\u000e\u0018\u000e \u000f- \u0003# \u00148# \u0005\u0006 \u0018\b 3\u0011\u0010\u0016 \u0011\u0018 \u000e\u000f \u000f\u0010\u001b \u0018\u0010 \u001a\u0014 \u0010\u0014 \u001b\u000e\u000f\u0018 \u001a\u0013\u0010\u0017 )\u0011\u000e\u0014\u0015 \u0018\b \u0018\u000e\u0012 + \u001b\u001b \u0011 \u000e\u000f \u0010\u0013\u001b\u000e\u0015\u001a\u0018 \u0018\u0010 \u0007\u0010\u0012\u0016 \u0014\u000f\u001a\u0018 \u001a\u0014\u0010\u0018\b \u0011 \u0013\u0011\u0010 \u0011- \u0004\u000e /\u0011\u0010 \u0011 \u000e\u000f \u0014\u0010\u0018 \u0014\u0018\u000e\u0018\u001b \u0018\u0010 \u0007\u0010\u0012\u0016 \u0014\u000f\u001a\u0018\u000e\u0010\u0014 )\u0014 \u0011 \u0018\b\u000e\u000f *\u0015\u0011 \u0012 \u0014\u0018G \u001a\u0014 \u0004\u000e\u000e /\u0011\u0010 \u0011 \u000e\u000f \u0014\u0010\u0018 \u0010\u0013\u001b\u000e\u0015\u001a\u0018 \u0018\u0010 \u0011 \u0016\u0011 \u000f \u0014\u0018 + \u001b\u001b \u0011 \u000e\u0014 \u000f)\u0007\b \u0018\u0011\u001a\u0014\u000f\u001a\u0007\u0018\u000e\u0010\u0014# : $;' \u001a\u001b\u000e\u0006\u0010\u0011\u0014\u000e\u001a *\u000f\u000f\u0010\u0007\u000e\u001a\u0018\u000e\u0010\u0014 \u0010\u0006 72*6 17+<' \u0005\u0014\u0007# + \u001b\u001b \u0011,\u000f \u0005\u0014\u000e\u0018\u000e\u001a\u001b\u000f \u0004 \u0004 \b\u000e <\u0005\u0006 \u0004 -./-0 \u0014\u0013\u000e - @# \u0006\u0005\u0004 \u000f\u0010\u0005\u000e\b \b\u0005\u0006\u0010\u0005\u000f \u000e A \u000f\u0010 B G\u0007\b \u0006\u0005< \u0014 \b\u000e \u0013\u000e - @# &+$5/(6\u0003.(//80\u000f\u0003%52.",
"(5\u000f\u0003\u0018\u0013\u0016\u0017\u0003+H\\HU\u0003$YH\u0003&DVWUR\u00039DOOH\\\u0003&$\u0003 \u0017\u0018\u0018\u0015 \u0003\u00033\b\u0010\u0014 - \u0018\u0014\u0013 \u0015\u0019\u0010 \u0017\u0017\u0013 \u0003\u0003.\u001a - \u0003\u0003\u0003 \u0016\u0013\u00030HUOLQ\u0003&W\u0003\u0003 6WDQOH\\\u0003&RUQHOLXV \u0003\u0003\u0003\u0003\u00033\u0011\u0010 )\u0007 \u0019\u000e\u0018\b =\u000e\u0016.\u0010\u0011\u0012< \u0013 =\u000e\u00166\u0010\u0015\u000e \u0003$; ! .\u000e\u0006\u0018 \u0014 >\u000e\u001b 7\u0010\u001a ' .\u0011\u001a\u000f \u0011' >\u000e\u0007\b\u000e\u0015\u001a\u0014 ?",
"; @ \u0003\u0003\u0003\u0019\u0019\u0019#=\u000e\u00166\u0010\u0015\u000e #\u0007\u0010\u0012 'RFX6LJQ\u0003(QYHORSH\u0003,' \u0003\u0015\u0015'($\u0017\u0015\u0018\u0010\u001a %$\u0010\u0017\u0014(\u0017\u0010\u001b\u001b%)\u0010\u0017\u0017\u0013$\u0017$\u0016('\u0015\u001a\u0019 Filed 09/12/19 Case 19-21640 Doc 113 3\u0011\u0010\u0016 \u0011\u0018 * \u0011 \u000f\u000f- 30 Merlin Ct. , Oakland, CA 94605-5624 \u00030\u001a\u0018 - 08/28/2019 9+ \u0003\u000e+ \u0005\u0010 A\u0006 G\u0007\b \u0004 \u0004 \u000e\u000f\u0004 \u0005\u000f\u0007\b \u0004 \u0004C J\u0014\u001b \u000f\u000f \u0010\u0018\b \u0011\u0019\u000e\u000f \u000f\u0016 \u0007\u000e\u0006\u000e \u000e\u0014 \u001a \u0011 \u001a\u001b \u000f\u0018\u001a\u0018 \u0016)\u0011\u0007\b\u001a\u000f \u001a\u0015\u0011 \u0012 \u0014\u0018' \u001a\u001b\u001b \u0006\u000e \u0018)\u0011 \u000f \u001a\u0014 \u0006\u000e\u0018\u0018\u000e\u0014\u0015\u000f \u0018\b\u001a\u0018 \u001a\u0011 \u001a\u0018\u0018\u001a\u0007\b \u0018\u0010 \u0018\b 3\u0011\u0010\u0016 \u0011\u0018 \u001a\u0011 \u000e\u0014\u0007\u001b) ' \u001a\u0014 \u0016 \u0011\u000f\u0010\u0014\u001a\u001b \u0016\u0011\u0010\u0016 \u0011\u0018 \u000e\u0018 \u0012\u000f \u001a\u0011 \u0007\u001b) ' \u0006\u0011\u0010\u0012 \u0018\b \u0016)\u0011\u0007\b\u001a\u000f \u0016\u0011\u000e\u0007 # \u000e\u0004\u0004\u0005\u0010\u0005 \u000f\u000e\b \u0005\u0010 A\u0006 G\u0007\b \u0004 \u0004C + \u000e\u0004\u0004\u0005\u0010\u0005 \u000f\u000e\b \u0005\u0010 A\u0006 \u0005\u000f\u0007\b \u0004 \u0004C + + \u001b\u001b \u0011 \u000e\u0014\u0018 \u0014 \u000f \u0018\b\u001a\u0018 \u0018\b \u001a\u0013\u0010\u0017 \u000e\u0018 \u0012\u000f \u0013 \u0007\u001b) \u0010\u0011 \u000e\u0014\u0007\u001b) \u000e\u0014 \u0010\u0006\u0006 \u0011\u000e\u0014\u0015 \u0018\b 3\u0011\u0010\u0016 \u0011\u0018 \u0006\u0010\u0011 \u000f\u001a\u001b ' \u0013)\u0018 )\u0014 \u0011\u000f\u0018\u001a\u0014 \u000f \u0018\b\u001a\u0018C \u0004\u000e \u0018\b \u0016)\u0011\u0007\b\u001a\u000f \u001a\u0015\u0011 \u0012 \u0014\u0018 \u000f)\u0016 \u0011\u000f \u000f \u001a\u0014 \u000e\u0014\u0018 \u0014\u0018\u000e\u0010\u0014 \u0016\u0011 \u000f\u000f \u001a\u0013\u0010\u0017 \u001a\u0014 \u0019\u000e\u001b\u001b )\u001b\u0018\u000e\u0012\u001a\u0018 \u001b \u0018 \u0011\u0012\u000e\u0014 \u0019\b\u000e\u0007\b \u000e\u0018 \u0012\u000f \u001a\u0011 \u0007\u001b) \u001a\u0014 \u000e\u0014\u0007\u001b) \u000e\u0014 \u0018\b \u000f\u001a\u001b G \u001a\u0014 \u0004\u000e\u000e /\u0011\u0010 \u0011 \u000e\u000f \u0014\u0010\u0018 \u0011 \u000f\u0016\u0010\u0014\u000f\u000e\u0013\u001b \u0006\u0010\u0011 \u001a\u0014 \u0010 \u000f \u0014\u0010\u0018 \u0015)\u001a\u0011\u001a\u0014\u0018 \u0018\b\u001a\u0018 \u0018\b \u001a\u0013\u0010\u0017 \u0007\u001b)\u000f\u000e\u0010\u0014\u000f \u001a\u0014 N\u0010\u0011 \u000e\u0014\u0007\u001b)\u000f\u000e\u0010\u0014\u000f \u0019\u000e\u001b\u001b \u0013 \u000e\u0014 \u0018\b \u0016)\u0011\u0007\b\u001a\u000f \u0003\u001a\u0015\u0011 \u0012 \u0014\u0018# \u001a+ \u0014-# \b\u0015 \u0019\u0015& \u0017 \u000f\u001b\" D3\u0015& \u0005\"\u0015!\u0019C \b \u0006\u0010\u001b\u001b\u0010\u0019\u000e\u0014\u0015 \u000e\u0018 \u0012\u000f \u001a\u0011 \u001b \u001a\u000f \u0010\u0011 \u0014\u0010\u0018 \u0010\u0019\u0014 \u0013 + \u001b\u001b \u0011- \u0003+\u0010\u001b\u001a\u0011 \u0016\u0010\u0019 \u0011 \u000f \u000f\u0018 \u0012 \u0003*\u001b\u001a\u0011\u0012 \u000f \u000f\u0018 \u0012 \u00033\u0011\u0010\u0016\u001a\u0014 \u0018\u001a\u0014 \u0003(\u001a\u0018 \u0011 +\u0010\u0006\u0018 \u0014 \u0011 \u00031\u0018\b \u0011 \u0014.# \b \u00153\u0015& \u0005\"\u0015!\u0019C \b \u0006\u0010\u001b\u001b\u0010\u0019\u000e\u0014\u0015 \u000e\u0018 \u0012\u000f \b\u001a\u0017 \u0013 \u0014 \u0006\u000e\u0014\u001a\u0014\u0007 \u001a\u0014 \u001a \u001b\u000e \u0014 \b\u001a\u000f \u0013 \u0014 \u0016\u001b\u001a\u0007 \u0010\u0014 \u0018\b 3\u0011\u0010\u0016 \u0011\u0018 \u0018\u0010 \u000f \u0007)\u0011 \u0016\u001a \u0012 \u0014\u0018- \u0003+\u0010\u001b\u001a\u0011 \u0016\u0010\u0019 \u0011 \u000f \u000f\u0018 \u0012 \u0003(\u000e\u0014 \u0010\u0019\u000f \u0010\u0011 \u0010\u0010\u0011\u000f \u0003D \u001a\u0018\u000e\u0014\u0015NH \u0014\u0018\u000e\u001b\u001a\u0018\u000e\u0010\u0014N*\u000e\u0011 \u0007\u0010\u0014 \u000e\u0018\u000e\u0010\u0014\u000e\u0014\u0015 \u000f \u000f\u0018 \u0012 \u00031\u0018\b \u0011 + \u001b\u001b \u0011 \u0019\u000e\u001b\u001b \u0016\u0011\u0010\u0017\u000e \u0018\u0010 /) \u0011' \u001a\u000f \u0016\u001a\u0011\u0018 \u0010\u0006 \u0018\b \u000f\u001a\u001b \u000f \u001a\u0015\u0011 \u0012 \u0014\u0018' \u0007\u0010\u0016\u000e \u000f \u0010\u0006 \u001b \u001a\u000f \u0010\u0007)\u0012 \u0014\u0018\u000f' \u0010\u0011 \u0010\u0018\b \u0011 \u0010\u0007)\u0012 \u0014\u0018\u000f \u0010\u0013\u001b\u000e\u0015\u001a\u0018\u000e\u0014\u0015 + \u001b\u001b \u0011 \u0018\u0010 \u0016\u001a \u0006\u0010\u0011 \u001a\u0014 \u000f)\u0007\b \u001b \u001a\u000f \u0010\u0011 \u001b\u000e \u0014 \u000e\u0018 \u0012# @+ A \b\u0010\u0005\u0013\b \b\u0005\u0006\u0010\u0005\u000f \u0006 <\u0005\u0007 C \u000e+ /\u0011\u0010 \u0011 \u000e\u000f \u001a \u0016\u001a\u0011\u0018\u000e\u0007\u000e\u0016\u001a\u0014\u0018N\u000f)\u0013\u000f\u0007\u0011\u000e\u0013 \u0011 \u0018\u0010 Oakland/Berkeley \u0003>)\u001b\u0018\u000e\u0016\u001b 6\u000e\u000f\u0018\u000e\u0014\u0015 + \u0011\u0017\u000e\u0007 \u0004>6+ \u001a\u0014 \u0016\u0010\u000f\u000f\u000e\u0013\u001b \u0010\u0018\b \u0011\u000f# J\u0014\u001b \u000f\u000f \u0010\u0018\b \u0011\u0019\u000e\u000f \u000e\u0014\u000f\u0018\u0011)\u0007\u0018 \u000e\u0014 \u0019\u0011\u000e\u0018\u000e\u0014\u0015 \u0018\b 3\u0011\u0010\u0016 \u0011\u0018 \u0019\u000e\u001b\u001b \u0013 \u001b\u000e\u000f\u0018 \u0019\u000e\u0018\b \u0018\b >6+\u0004\u000f \u000f\u0016 \u0007\u000e\u0006\u000e \u001a\u0013\u0010\u0017 # \b\u001a\u0018 >6+ \u000e\u000f \u0004\u0010\u0011 \u000e\u0006 \u0007\b \u0007 \u0003\u000e\u000f \u0014\u0010\u0018 \u0018\b \u0016\u0011\u000e\u0012\u001a\u0011 >6+ \u0006\u0010\u0011 \u0018\b \u0015 \u0010\u0015\u0011\u001a\u0016\b\u000e\u0007 \u001a\u0011 \u001a \u0010\u0006 \u0018\b 3\u0011\u0010\u0016 \u0011\u0018 # *\u001b\u001b \u0018 \u0011\u0012\u000f \u0010\u0006 \u0018\b \u0018\u0011\u001a\u0014\u000f\u001a\u0007\u0018\u000e\u0010\u0014' \u000e\u0014\u0007\u001b) \u000e\u0014\u0015 \u000f\u001a\u001b \u000f \u0016\u0011\u000e\u0007 \u001a\u0014 \u0006\u000e\u0014\u001a\u0014\u0007\u000e\u0014\u0015' \u000e\u0006 \u001a\u0016\u0016\u001b\u000e\u0007\u001a\u0013\u001b ' \u0004\u000e \u0019\u000e\u001b\u001b \u0013 \u0016\u0011\u0010\u0017\u000e \u0018\u0010 \u0018\b >6+ \u000e\u0014 \u0019\b\u000e\u0007\b \u0018\b \u0016\u0011\u0010\u0016 \u0011\u0018 \u000e\u000f \u001b\u000e\u000f\u0018 \u0006\u0010\u0011 \u0016)\u0013\u001b\u000e\u0007\u001a\u0018\u000e\u0010\u0014' \u000e\u000f\u000f \u0012\u000e\u0014\u001a\u0018\u000e\u0010\u0014 \u001a\u0014 )\u000f \u0013 \u0016 \u0011\u000f\u0010\u0014\u000f \u001a\u0014 \u0014\u0018\u000e\u0018\u000e \u000f \u0010\u0014 \u0018 \u0011\u0012\u000f \u001a\u0016\u0016\u0011\u0010\u0017 \u0013 \u0018\b >6+ \u001a\u0014 \u0004\u000e\u000e \u0012\u001a \u0013 \u0016\u0011\u0010\u0017\u000e \u0018\u0010 \u0018\b >6+ \u0017 \u0014 \u000e\u0006 \u0018\b 3\u0011\u0010\u0016 \u0011\u0018 \u0019\u001a\u000f \u0014\u0010\u0018 \u001b\u000e\u000f\u0018 \u0019\u000e\u0018\b \u0018\b >6+# + \u001b\u001b \u0011 \u0007\u0010\u0014\u000f \u0014\u0018\u000f \u0018\u0010 /\u0011\u0010 \u0011 \u0016\u0011\u0010\u0017\u000e \u000e\u0014\u0015 \u001a \u0007\u0010\u0016 \u0010\u0006 \u0018\b\u000e\u000f \u001b\u000e\u000f\u0018\u000e\u0014\u0015 \u001a\u0015\u0011 \u0012 \u0014\u0018 \u0018\u0010 \u0018\b >6+ \u000e\u0006 \u0011 5)\u000e\u0011 \u0013 \u0018\b >6+# \u001a \u000f \u0005\u0010\u0006 \u0006\u0005\u000f \u0010\u0012 A\b\u0006H \u0005A\u0013\u000e\u0007\u0010 \u0013\u0010\u0005\u000f \u0010 \u0010\u0012 A\b\u0006H \u0013 \u0006 \u000f\u0010\u0005\u000f \u000e\b\b \u0006 :\u0012\u000e\u0010 \u0005\u0006 \u000e\u000f A\b\u0006I \b >6+ \u000e\u000f \u001a \u001a\u0018\u001a\u0013\u001a\u000f \u0010\u0006 \u0016\u0011\u0010\u0016 \u0011\u0018\u000e \u000f \u0006\u0010\u0011 \u000f\u001a\u001b \u0018\b\u001a\u0018 \u000e\u000f \u001a\u0017\u001a\u000e\u001b\u001a\u0013\u001b \u001a\u0014 \u000e\u000f\u000f \u0012\u000e\u0014\u001a\u0018 \u0018\u0010 \u001a\u0014 \u001a\u0007\u0007 \u000f\u000f\u000e\u0013\u001b \u0013 \u001a\u001b\u001b \u0010\u0018\b \u0011 \u0011 \u001a\u001b \u000f\u0018\u001a\u0018 \u001a\u0015 \u0014\u0018\u000f \u0019\b\u0010 \u001a\u0011 \u0016\u001a\u0011\u0018\u000e\u0007\u000e\u0016\u001a\u0014\u0018\u000f \u0010\u0011 \u000f)\u0013\u000f\u0007\u0011\u000e\u0013 \u0011\u000f \u0018\u0010 \u0018\b >6+# 3\u0011\u0010\u0016 \u0011\u0018 \u000e\u0014\u0006\u0010\u0011\u0012\u001a\u0018\u000e\u0010\u0014 \u000f)\u0013\u0012\u000e\u0018\u0018 \u0018\u0010 \u0018\b >6+ \u000f\u0007\u0011\u000e\u0013 \u000f \u0018\b \u0016\u0011\u000e\u0007 ' \u0018 \u0011\u0012\u000f \u001a\u0014 \u0007\u0010\u0014 \u000e\u0018\u000e\u0010\u0014\u000f )\u0014 \u0011 \u0019\b\u000e\u0007\b \u0018\b + \u001b\u001b \u0011,\u000f \u0016\u0011\u0010\u0016 \u0011\u0018 \u000e\u000f \u0010\u0006\u0006 \u0011 \u0006\u0010\u0011 \u000f\u001a\u001b \u0004\u000e\u0014\u0007\u001b) \u000e\u0014\u0015 \u0013)\u0018 \u0014\u0010\u0018 \u001b\u000e\u0012\u000e\u0018 \u0018\u0010 \u0018\b \u001b\u000e\u000f\u0018\u000e\u0014\u0015 \u0013\u0011\u0010 \u0011,\u000f \u0010\u0006\u0006 \u0011 \u0010\u0006 \u0007\u0010\u0012\u0016 \u0014\u000f\u001a\u0018\u000e\u0010\u0014 \u0018\u0010 \u0010\u0018\b \u0011 \u0013\u0011\u0010 \u0011\u000f # \u0005\u0018 \u000e\u000f \u001b\u000e \u001b \u0018\b\u001a\u0018 \u001a \u000f\u000e\u0015\u0014\u000e\u0006\u000e\u0007\u001a\u0014\u0018 \u0014)\u0012\u0013 \u0011 \u0010\u0006 \u0011 \u001a\u001b \u000f\u0018\u001a\u0018 \u0016\u0011\u001a\u0007\u0018\u000e\u0018\u000e\u0010\u0014 \u0011\u000f \u000e\u0014 \u001a\u0014 \u0015\u000e\u0017 \u0014 \u001a\u0011 \u001a \u001a\u0011 \u0016\u001a\u0011\u0018\u000e\u0007\u000e\u0016\u001a\u0014\u0018\u000f \u0010\u0011 \u000f)\u0013\u000f\u0007\u0011\u000e\u0013 \u0011\u000f \u0018\u0010 \u0018\b >6+# \b >6+ \u0012\u001a \u001a\u001b\u000f\u0010 \u0013 \u0016\u001a\u0011\u0018 \u0010\u0006 \u001a \u0011 \u0007\u000e\u0016\u0011\u0010\u0007\u001a\u001b \u001a\u0015\u0011 \u0012 \u0014\u0018 \u0018\u0010 \u0019\b\u000e\u0007\b \u0010\u0018\b \u0011 \u0012)\u001b\u0018\u000e\u0016\u001b \u001b\u000e\u000f\u0018\u000e\u0014\u0015 \u000f \u0011\u0017\u000e\u0007 \u000f \u0013 \u001b\u0010\u0014\u0015# 7 \u001a\u001b \u000f\u0018\u001a\u0018 \u001a\u0015 \u0014\u0018\u000f \u0013 \u001b\u0010\u0014\u0015\u000e\u0014\u0015 \u0018\u0010 \u0010\u0018\b \u0011 \u0012)\u001b\u0018\u000e\u0016\u001b \u001b\u000e\u000f\u0018\u000e\u0014\u0015 \u000f \u0011\u0017\u000e\u0007 \u000f \u0018\b\u001a\u0018 \b\u001a\u0017 \u0011 \u0007\u000e\u0016\u0011\u0010\u0007\u001a\u001b \u001a\u0015\u0011 \u0012 \u0014\u0018\u000f \u0019\u000e\u0018\b \u0018\b >6+ \u001a\u001b\u000f\u0010 \b\u001a\u0017 \u001a\u0007\u0007 \u000f\u000f \u0018\u0010 \u0018\b \u000e\u0014\u0006\u0010\u0011\u0012\u001a\u0018\u000e\u0010\u0014 \u000f)\u0013\u0012\u000e\u0018\u0018 \u0018\u0010 \u0018\b >6+# \b >6+ \u0012\u001a \u0006)\u0011\u0018\b \u0011 \u0018\u0011\u001a\u0014\u000f\u0012\u000e\u0018 \u001b\u000e\u000f\u0018\u000e\u0014\u0015 \u000e\u0014\u0006\u0010\u0011\u0012\u001a\u0018\u000e\u0010\u0014 \u0018\u0010 \u0005\u0014\u0018 \u0011\u0014 \u0018 \u000f\u000e\u0018 \u000f \u0018\b\u001a\u0018 \u0016\u0010\u000f\u0018 \u0016\u0011\u0010\u0016 \u0011\u0018 \u001b\u000e\u000f\u0018\u000e\u0014\u0015\u000f \u0010\u0014\u001b\u000e\u0014 # G\u0013 \u0006 \u0010 \u001a \u0011 \u0006 \u0010\u0012 \u0012 A\b\u0006C 6\u000e\u000f\u0018\u000e\u0014\u0015 \u0016\u0011\u0010\u0016 \u0011\u0018 \u0019\u000e\u0018\b \u001a\u0014 >6+ \u0016\u0010\u000f \u000f \u001a \u000f \u001b\u001b \u0011,\u000f \u0016\u0011\u0010\u0016 \u0011\u0018 \u0018\u0010 \u001a\u001b\u001b \u0011 \u001a\u001b \u000f\u0018\u001a\u0018 \u001a\u0015 \u0014\u0018\u000f \u001a\u0014 \u0013\u0011\u0010 \u0011\u000f \u0004\u001a\u0014 \u0018\b \u000e\u0011 \u0016\u0010\u0018 \u0014\u0018\u000e\u001a\u001b \u0013) \u0011 \u0007\u001b\u000e \u0014\u0018\u000f \u0019\b\u0010 \u001a\u0011 \u0016\u001a\u0011\u0018\u000e\u0007\u000e\u0016\u001a\u0014\u0018\u000f \u0010\u0011 \u000f)\u0013\u000f\u0007\u0011\u000e\u0013 \u0011\u000f \u0018\u0010 \u0018\b >6+ \u0010\u0011 \u001a \u0011 \u0007\u000e\u0016\u0011\u0010\u0007\u001a\u0018\u000e\u0014\u0015 >6+# \u0007\b \u0006 \u0004/\u0013 \u0005<\u000e\u0010 \b\u0005\u0006\u0010\u0005\u000f \u0007\b \u001a\u0006 \u0013\u0006C \u001b\u0010\u000f \u0010\u0011 \u0016\u0011\u000e\u0017\u001a\u0018 \u001b\u000e\u000f\u0018\u000e\u0014\u0015 \u0007\u001b)\u0013\u000f \u0010\u0011 \u0015\u0011\u0010)\u0016\u000f \u001a\u0011 \u0014\u0010\u0018 \u0018\b \u000f\u001a\u0012 \u001a\u000f \u0018\b >6+# \b >6+ \u0011 \u0006 \u0011\u0011 \u0018\u0010 \u001a\u0013\u0010\u0017 \u000e\u000f \u001a\u0007\u0007 \u000f\u000f\u000e\u0013\u001b \u0018\u0010 \u001a\u001b\u001b \u001b\u000e\u0015\u000e\u0013\u001b \u0011 \u001a\u001b \u000f\u0018\u001a\u0018 \u001b\u000e\u0007 \u0014\u000f \u000f \u001a\u0014 \u0016\u0011\u0010\u0017\u000e \u000f \u0013\u0011\u0010\u001a \u0016\u0010\u000f)\u0011 \u0006\u0010\u0011 \u001a \u001b\u000e\u000f\u0018 \u0016\u0011\u0010\u0016 \u0011\u0018 # 3\u0011\u000e\u0017\u001a\u0018 \u0010\u0011 \u0007\u001b\u0010\u000f \u001b\u000e\u000f\u0018\u000e\u0014\u0015 \u0007\u001b)\u0013\u000f \u0010\u0011 \u0015\u0011\u0010)\u0016\u000f \u0010\u0006 \u001b\u000e\u0007 \u0014\u000f \u000f \u0012\u001a \b\u001a\u0017 \u0013 \u0014 \u0006\u0010\u0011\u0012 \u0010)\u0018\u000f\u000e \u0018\b >6+# 3\u0011\u000e\u0017\u001a\u0018 \u0010\u0011 \u0007\u001b\u0010\u000f \u001b\u000e\u000f\u0018\u000e\u0014\u0015 \u0007\u001b)\u0013\u000f \u0010\u0011 \u0015\u0011\u0010)\u0016\u000f \u001a\u0011 \u001a\u0007\u0007 \u000f\u000f\u000e\u0013\u001b \u0018\u0010 \u001a \u0012\u0010\u0011 \u001b\u000e\u0012\u000e\u0018 \u0014)\u0012\u0013 \u0011 \u0010\u0006 \u001b\u000e\u0007 \u0014\u000f \u000f \u001a\u0014 \u0015 \u0014 \u0011\u001a\u001b\u001b \u0010\u0006\u0006 \u0011 \u001b \u000f\u000f \u0016\u0010\u000f)\u0011 \u0006\u0010\u0011 \u001b\u000e\u000f\u0018 \u0016\u0011\u0010\u0016 \u0011\u0018 # (\b \u0018\b \u0011 \u001b\u000e\u000f\u0018\u000e\u0014\u0015 \u0016\u0011\u0010\u0016 \u0011\u0018 \u0018\b\u0011\u0010)\u0015\b \u001a \u0007\u001b\u0010\u000f ' \u0016\u0011\u000e\u0017\u001a\u0018 \u0014 \u0018\u0019\u0010\u0011 9 \u001a\u0014 \u0007\u001b) \u000e\u0014\u0015 \u000e\u0018 \u0006\u0011\u0010\u0012 \u0018\b >6+ 9 \u000e\u000f \u001a \u0017\u001a\u0014\u0018\u001a\u0015 \u0010)\u000f \u0010\u0011 \u000e\u000f\u001a \u0017\u001a\u0014\u0018\u001a\u0015 \u0010)\u000f \u0018\u0010 \u001a \u000f \u001b\u001b \u0011' \u001a\u0014 \u0019\b ' \u000f\b\u0010)\u001b \u0013 \u000e\u000f\u0007)\u000f\u000f \u0019\u000e\u0018\b \u0018\b \u001a\u0015 \u0014\u0018 \u0018\u001a \u000e\u0014\u0015 \u0018\b + \u001b\u001b \u0011,\u000f \u001b\u000e\u000f\u0018\u000e\u0014\u0015# \u000f \u0010 \b\u0005\u0006\u0010\u0005\u000f \u0013 \u0013 \u0010\u0011 \u0005\u000f \u000e \b \u0007\u000e\b A\b\u0006C \u0005\u0006 \u0018\b 3\u0011\u0010\u0016 \u0011\u0018 \u000e\u000f \u001b\u000e\u000f\u0018 \u000e\u0014 \u001a\u0014 >6+ \u0019\b\u000e\u0007\b \u0010 \u000f \u0014\u0010\u0018 \u0007\u0010\u0017 \u0011 \u0018\b \u0015 \u0010\u0015\u0011\u001a\u0016\b\u000e\u0007 \u001a\u0011 \u001a \u0019\b \u0011 \u0018\b 3\u0011\u0010\u0016 \u0011\u0018 \u000e\u000f \u001b\u0010\u0007\u001a\u0018 \u0018\b \u0014 \u0011 \u001a\u001b \u000f\u0018\u001a\u0018 \u001a\u0015 \u0014\u0018\u000f \u001a\u0014 \u0013\u0011\u0010 \u0011\u000f \u0019\u0010\u0011 \u000e\u0014\u0015 \u0018\b\u001a\u0018 \u0018 \u0011\u0011\u000e\u0018\u0010\u0011 ' \u001a\u0014 /) \u0011\u000f \u0018\b \u0011 \u0016\u0011 \u000f \u0014\u0018 \u001b\u0010\u0010 \u000e\u0014\u0015 \u0006\u0010\u0011 \u0016\u0011\u0010\u0016 \u0011\u0018 \u000e\u0014 \u0018\b \u0014 \u000e\u0015\b\u0013\u0010\u0011\b\u0010\u0010 ' \u0012\u001a \u0014\u0010\u0018 \u0013 \u001a\u0019\u001a\u0011 \u0018\b 3\u0011\u0010\u0016 \u0011\u0018 \u000e\u000f \u0006\u0010\u0011 \u000f\u001a\u001b # \u0013\u0010\u0005\u000f \u0010 A\b\u0006C \u0005\u0006 + \u001b\u001b \u0011 \u001b \u0007\u0018\u000f \u0018\u0010 \u0007\u001b) \u0018\b 3\u0011\u0010\u0016 \u0011\u0018 \u0006\u0011\u0010\u0012 \u0018\b >6+' + \u001b\u001b \u0011 )\u0014 \u0011\u000f\u0018\u001a\u0014 \u000f \u001a\u0014 \u001a\u0007 \u0014\u0010\u0019\u001b \u0015 \u000f \u0018\b\u001a\u0018- \u0004\u001a \u0011 \u001a\u001b \u000f\u0018\u001a\u0018 \u001a\u0015 \u0014\u0018\u000f \u001a\u0014 \u0013\u0011\u0010 \u0011\u000f \u0006\u0011\u0010\u0012 \u0010\u0018\b \u0011 \u0011 \u001a\u001b \u000f\u0018\u001a\u0018 \u0010\u0006\u0006\u000e\u0007 \u000f' \u001a\u0014 \u0018\b \u000e\u0011 \u0013) \u0011 \u0007\u001b\u000e \u0014\u0018\u000f' \u0019\b\u0010 \b\u001a\u0017 \u001a\u0007\u0007 \u000f\u000f \u0018\u0010 \u0018\b\u001a\u0018 >6+ \u0012\u001a \u0014\u0010\u0018 \u0013 \u001a\u0019\u001a\u0011 \u0018\b\u001a\u0018 + \u001b\u001b \u0011,\u000f 3\u0011\u0010\u0016 \u0011\u0018 \u000e\u000f \u0010\u0006\u0006 \u0011 \u0006\u0010\u0011 \u000f\u001a\u001b G \u0004\u0013 \u0005\u0014\u0006\u0010\u0011\u0012\u001a\u0018\u000e\u0010\u0014 \u001a\u0013\u0010)\u0018 + \u001b\u001b \u0011,\u000f 3\u0011\u0010\u0016 \u0011\u0018 \u0019\u000e\u001b\u001b \u0014\u0010\u0018 \u0013 \u0018\u0011\u001a\u0014\u000f\u0012\u000e\u0018\u0018 \u0006\u0011\u0010\u0012 \u0018\b >6+ \u0018\u0010 \u0017\u001a\u0011\u000e\u0010)\u000f \u0011 \u001a\u001b \u000f\u0018\u001a\u0018 \u0005\u0014\u0018 \u0011\u0014 \u0018 \u000f\u000e\u0018 \u000f \u0018\b\u001a\u0018 \u001a\u0011 )\u000f \u0013 \u0018\b \u0016)\u0013\u001b\u000e\u0007 \u0018\u0010 \u000f \u001a\u0011\u0007\b \u0006\u0010\u0011 \u0016\u0011\u0010\u0016 \u0011\u0018 \u001b\u000e\u000f\u0018\u000e\u0014\u0015\u000fG \u0004\u0007 \u0011 \u001a\u001b \u000f\u0018\u001a\u0018 \u001a\u0015 \u0014\u0018\u000f' \u0013\u0011\u0010 \u0011\u000f \u001a\u0014 \u0012 \u0012\u0013 \u0011\u000f \u0010\u0006 \u0018\b \u0016)\u0013\u001b\u000e\u0007 \u0012\u001a \u0013 )\u0014\u001a\u0019\u001a\u0011 \u0010\u0006 \u0018\b \u0018 \u0011\u0012\u000f \u001a\u0014 \u0007\u0010\u0014 \u000e\u0018\u000e\u0010\u0014\u000f )\u0014 \u0011 \u0019\b\u000e\u0007\b + \u001b\u001b \u0011 \u000e\u000f \u0012\u001a\u0011 \u0018\u000e\u0014\u0015 \u0018\b 3\u0011\u0010\u0016 \u0011\u0018 # \u0004 \u0007\u0010\u0005 \u000f \u0005\u000f G\u0013 \u0006 C *\u0014 \u0011 )\u0007\u0018\u000e\u0010\u0014 \u000e\u0014 \u0016\u0010\u000f)\u0011 \u0010\u0006 \u0018\b 3\u0011\u0010\u0016 \u0011\u0018 \u0012\u001a \u001b\u0010\u0019 \u0011 \u0018\b \u0014)\u0012\u0013 \u0011 \u0010\u0006 \u0010\u0006\u0006 \u0011\u000f \u001a\u0014 \u0014 \u0015\u001a\u0018\u000e\u0017 \u001b \u000e\u0012\u0016\u001a\u0007\u0018 \u0018\b \u000f\u001a\u001b \u000f \u0016\u0011\u000e\u0007 # \u0013 \u0006 \u000f\u0010\u0005\u000f \u000e\b\b \u0006C + \u001b\u001b \u0011 )\u0014 \u0011\u000f\u0018\u001a\u0014 \u000f \u0018\b\u001a\u0018 /\u0011\u0010 \u0011 \u0012)\u000f\u0018 \u0016\u0011 \u000f \u0014\u0018 \u001a\u001b\u001b \u0010\u0006\u0006 \u0011\u000f \u0011 \u0007 \u000e\u0017 \u0006\u0010\u0011 + \u001b\u001b \u0011,\u000f 3\u0011\u0010\u0016 \u0011\u0018 )\u0014\u001b \u000f\u000f + \u001b\u001b \u0011 \u0015\u000e\u0017 \u000f /\u0011\u0010 \u0011 \u0019\u0011\u000e\u0018\u0018 \u0014 \u000e\u0014\u000f\u0018\u0011)\u0007\u0018\u000e\u0010\u0014\u000f \u0018\u0010 \u0018\b \u0007\u0010\u0014\u0018\u0011\u001a\u0011 # \u0006\u0015\u0016\u0016\u0015\u0017\u0018\u0019 \u00053 \" \u0016\u0019 \u0014 \u0003\u0004 \u0003 \u001a\u0017\u001b \u0015\u0017\u0018\u0019/\u000e \u00153\"\u0018\u0019 \u00053 \" \u0016\u0019 \u0014 \u0003\u0004 \u0003 + \u001b\u001b \u0011,\u000f \u0005\u0014\u000e\u0018\u000e\u001a\u001b\u000f \u0004 \u0004 \b\u000e <\u0005\u0006 \u0004 -./-0 \u0014\u0013\u000e .",
"@# \u0006\u0005\u0004 \u000f\u0010\u0005\u000e\b \b\u0005\u0006\u0010\u0005\u000f \u000e A \u000f\u0010 B G\u0007\b \u0006\u0005< \u0014 \b\u000e \u0013\u000e . @# \u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u00033\u0011\u0010 )\u0007 \u0019\u000e\u0018\b =\u000e\u0016.\u0010\u0011\u0012< \u0013 =\u000e\u00166\u0010\u0015\u000e \u0003$; ! .\u000e\u0006\u0018 \u0014 >\u000e\u001b 7\u0010\u001a ' .\u0011\u001a\u000f \u0011' >\u000e\u0007\b\u000e\u0015\u001a\u0014 ?",
"; @ \u0003\u0003\u0003\u0019\u0019\u0019#=\u000e\u00166\u0010\u0015\u000e #\u0007\u0010\u0012 \u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003 \u0016\u0013\u00030HUOLQ\u0003&W 'RFX6LJQ\u0003(QYHORSH\u0003,' \u0003\u0015\u0015'($\u0017\u0015\u0018\u0010\u001a %$\u0010\u0017\u0014(\u0017\u0010\u001b\u001b%)\u0010\u0017\u0017\u0013$\u0017$\u0016('\u0015\u001a\u0019 Filed 09/12/19 Case 19-21640 Doc 113 3\u0011\u0010\u0016 \u0011\u0018 * \u0011 \u000f\u000f- 30 Merlin Ct. , Oakland, CA 94605-5624 \u00030\u001a\u0018 - 08/28/2019 \u001a+ >6+ \u0011)\u001b \u000f \u0015 \u0014 \u0011\u001a\u001b\u001b \u0016\u0011\u0010\u0017\u000e \u0018\b\u001a\u0018 \u0011 \u000f\u000e \u0014\u0018\u000e\u001a\u001b \u0011 \u001a\u001b \u0016\u0011\u0010\u0016 \u0011\u0018 \u001a\u0014 \u0017\u001a\u0007\u001a\u0014\u0018 \u001b\u0010\u0018 \u001b\u000e\u000f\u0018\u000e\u0014\u0015\u000f \u0013 \u000f)\u0013\u0012\u000e\u0018\u0018 \u0018\u0010 \u0018\b >6+ \u0019\u000e\u0018\b\u000e\u0014 \u001a \u000f \u0010\u0011 \u000f\u0010\u0012 \u0010\u0018\b \u0011 \u0016 \u0011\u000e\u0010 \u0010\u0006 \u0018\u000e\u0012 \u001a\u0006\u0018 \u0011 \u001a\u001b\u001b \u0014 \u0007 \u000f\u000f\u001a\u0011 \u000f\u000e\u0015\u0014\u001a\u0018)\u0011 \u000f \b\u001a\u0017 \u0013 \u0014 \u0010\u0013\u0018\u001a\u000e\u0014 \u0010\u0014 \u0018\b \u001b\u000e\u000f\u0018\u000e\u0014\u0015 \u001a\u0015\u0011 \u0012 \u0014\u0018# /\u0011\u0010 \u0011 \u0019\u000e\u001b\u001b \u0014\u0010\u0018 \b\u001a\u0017 \u0018\u0010 \u000f)\u0013\u0012\u000e\u0018 \u0018\b\u000e\u000f \u001b\u000e\u000f\u0018\u000e\u0014\u0015 \u0018\u0010 \u0018\b >6+ \u000e\u0006' \u0019\u000e\u0018\b\u000e\u0014 \u0018\b\u001a\u0018 \u0018\u000e\u0012 ' /\u0011\u0010 \u0011 \u000f)\u0013\u0012\u000e\u0018\u000f \u0018\u0010 \u0018\b >6+ \u001a\u0014 \u001a\u0016\u0016\u0011\u0010\u0016\u0011\u000e\u001a\u0018 \u0006\u0010\u0011\u0012 \u000f\u000e\u0015\u0014 \u0013 + \u001b\u001b \u0011# \u0003+ \u001b\u001b \u0011 \u001b \u0007\u0018\u000f \u0018\u0010 \u0007\u001b) \u0018\b 3\u0011\u0010\u0016 \u0011\u0018 \u0006\u0011\u0010\u0012 \u0018\b >6+ \u001a\u000f \u0016\u0011\u0010\u0017\u000e \u0013 #*#7# .\u0010\u0011\u0012 +26> \u0010\u0011 \u0018\b \u001b\u0010\u0007\u001a\u001b 5)\u000e\u0017\u001a\u001b \u0014\u0018 \u0006\u0010\u0011\u0012# \u0007+ >6+ \u0011)\u001b \u000f \u001a\u001b\u001b\u0010\u0019 >6+ \u001a\u0018\u001a \u0018\u0010 \u0013 \u0012\u001a \u001a\u0017\u001a\u000e\u001b\u001a\u0013\u001b \u0013 \u0018\b >6+ \u0018\u0010 \u001a \u000e\u0018\u000e\u0010\u0014\u001a\u001b \u0005\u0014\u0018 \u0011\u0014 \u0018 \u000f\u000e\u0018 \u000f )\u0014\u001b \u000f\u000f /\u0011\u0010 \u0011 \u0015\u000e\u0017 \u000f \u0018\b >6+ \u000e\u0014\u000f\u0018\u0011)\u0007\u0018\u000e\u0010\u0014\u000f \u0018\u0010 \u0018\b \u0007\u0010\u0014\u0018\u0011\u001a\u0011 # + \u001b\u001b \u0011 \u001a\u0007 \u0014\u0010\u0019\u001b \u0015 \u000f \u0018\b\u001a\u0018 \u0006\u0010\u0011 \u001a\u0014 \u0010\u0006 \u0018\b \u0013 \u001b\u0010\u0019 \u0010\u0016\u00189\u0010)\u0018 \u000e\u0014\u000f\u0018\u0011)\u0007\u0018\u000e\u0010\u0014\u000f \u0018\u0010 \u0013 \u0006\u0006 \u0007\u0018\u000e\u0017 ' + \u001b\u001b \u0011 \u0012)\u000f\u0018 \u0012\u001a \u0018\b \u0012 \u0010\u0014 \u001a \u000f \u0016\u001a\u0011\u001a\u0018 \u000e\u0014\u000f\u0018\u0011)\u0007\u0018\u000e\u0010\u0014 \u0018\u0010 /\u0011\u0010 \u0011 \u000f\u000e\u0015\u0014 \u0013 + \u001b\u001b \u0011# +\u0016 \u0007\u000e\u0006\u000e\u0007 \u000e\u0014\u0006\u0010\u0011\u0012\u001a\u0018\u000e\u0010\u0014 \u0018\b\u001a\u0018 \u0007\u001a\u0014 \u0013 \u0007\u001b) \u0006\u0011\u0010\u0012 \u0018\b \u0005\u0014\u0018 \u0011\u0014 \u0018 \u001a\u000f \u0016 \u0011\u0012\u000e\u0018\u0018 \u0013 \u0004\u0010\u0011 \u000e\u0014 \u001a\u0007\u0007\u0010\u0011 \u001a\u0014\u0007 \u0019\u000e\u0018\b \u0018\b >6+ \u000e\u000f \u001a\u000f \u0006\u0010\u001b\u001b\u0010\u0019\u000f- \u0014-# \u0013\u0017\u001b4\u0015\u0017\"( \u000e* \u0016 ' \u0016 \"( 3 \u0010)\u0015 A\b\u0006H \u000e&&\u0017\u0015\u0019\u0019 3 \")\u0015 A\b\u0006C + \u001b\u001b \u0011 \u0007\u001a\u0014 \u000e\u0014\u000f\u0018\u0011)\u0007\u0018 /\u0011\u0010 \u0011 \u0018\u0010 \b\u001a\u0017 \u0018\b >6+ \u0014\u0010\u0018 \u000e\u000f\u0016\u001b\u001a \u0018\b 3\u0011\u0010\u0016 \u0011\u0018 \u0010\u0011 \u0018\b 3\u0011\u0010\u0016 \u0011\u0018 \u001a \u0011 \u000f\u000f \u0010\u0014 \u0018\b \u0005\u0014\u0018 \u0011\u0014 \u0018# + \u001b\u001b \u0011 )\u0014 \u0011\u000f\u0018\u001a\u0014 \u000f \u0018\b\u001a\u0018 \u000e\u0018\b \u0011 \u0010\u0006 \u0018\b \u000f \u0010\u0016\u00189\u0010)\u0018\u000f \u0019\u0010)\u001b \u0012 \u001a\u0014 \u0007\u0010\u0014\u000f)\u0012 \u0011\u000f \u000f \u001a\u0011\u0007\b\u000e\u0014\u0015 \u0006\u0010\u0011 \u001b\u000e\u000f\u0018\u000e\u0014\u0015\u000f \u0010\u0014 \u0018\b \u0005\u0014\u0018 \u0011\u0014 \u0018 \u0012\u001a \u0014\u0010\u0018 \u000f \u0018\b 3\u0011\u0010\u0016 \u0011\u0018 \u0010\u0011 3\u0011\u0010\u0016 \u0011\u0018 ,\u000f \u001a \u0011 \u000f\u000f \u000e\u0014 \u0011 \u000f\u0016\u0010\u0014\u000f \u0018\u0010 \u0018\b \u000e\u0011 \u000f \u001a\u0011\u0007\b# \u0014.# \u0015 \"%\u0017\u0015 4\"B %\"\u0019C + \u001b\u001b \u0011 \u0007\u001a\u0014 \u000e\u0014\u000f\u0018\u0011)\u0007\u0018 /\u0011\u0010 \u0011 \u0018\u0010 \u001a \u0017\u000e\u000f \u0018\b >6+ \u0018\b\u001a\u0018 + \u001b\u001b \u0011 \u0010 \u000f \u0014\u0010\u0018 \u0019\u001a\u0014\u0018 \u0017\u000e\u000f\u000e\u0018\u0010\u0011\u000f \u0018\u0010 >6+ 3\u001a\u0011\u0018\u000e\u0007\u000e\u0016\u001a\u0014\u0018 \u0010\u0011 +)\u0013\u000f\u0007\u0011\u000e\u0013 \u0011 ( \u0013\u000f\u000e\u0018 \u000f \u0010\u0011 2\u001b \u0007\u0018\u0011\u0010\u0014\u000e\u0007 0\u000e\u000f\u0016\u001b\u001a \u000f \u0018\b\u001a\u0018 \u000e\u000f\u0016\u001b\u001a \u0018\b 3\u0011\u0010\u0016 \u0011\u0018 \u001b\u000e\u000f\u0018\u000e\u0014\u0015 \u0018\u0010 \b\u001a\u0017 \u0018\b \u0006 \u001a\u0018)\u0011 \u000f \u0013 \u001b\u0010\u0019# + \u001b\u001b \u0011 )\u0014 \u0011\u000f\u0018\u001a\u0014 \u000f \u0004\u000e \u0018\b\u001a\u0018 \u0018\b \u000f \u0010\u0016\u00189\u0010)\u0018\u000f \u001a\u0016\u0016\u001b \u0010\u0014\u001b \u0018\u0010 ( \u0013\u000f\u000e\u0018 \u000f \u0010\u0011 2\u001b \u0007\u0018\u0011\u0010\u0014\u000e\u0007 0\u000e\u000f\u0016\u001b\u001a \u000f \u0010\u0006 >6+ 3\u001a\u0011\u0018\u000e\u0007\u000e\u0016\u001a\u0014\u0018\u000f \u001a\u0014 +)\u0013\u000f\u0007\u0011\u000e\u0013 \u0011\u000f \u0019\b\u0010 \u001a\u0011 \u0011 \u001a\u001b \u000f\u0018\u001a\u0018 \u0013\u0011\u0010 \u0011 \u001a\u0014 \u001a\u0015 \u0014\u0018 \u0012 \u0012\u0013 \u0011\u000f \u0010\u0006 \u0018\b >6+G \u0004\u000e\u000e \u0018\b\u001a\u0018 \u0010\u0018\b \u0011 \u0005\u0014\u0018 \u0011\u0014 \u0018 \u000f\u000e\u0018 \u000f \u0012\u001a \u0010\u0011 \u0012\u001a \u0014\u0010\u0018 \b\u001a\u0017 \u0018\b \u0006 \u001a\u0018)\u0011 \u000f \u000f \u0018 \u0006\u0010\u0011\u0018\b \b \u0011 \u000e\u0014G \u001a\u0014 \u0004\u000e\u000e\u000e \u0018\b\u001a\u0018 \u0014 \u000e\u0018\b \u0011 /\u0011\u0010 \u0011 \u0014\u0010\u0011 \u0018\b >6+ \u0012\u001a \b\u001a\u0017 \u0018\b \u001a\u0013\u000e\u001b\u000e\u0018 \u0018\u0010 \u0007\u0010\u0014\u0018\u0011\u0010\u001b \u0010\u0011 \u0013\u001b\u0010\u0007 \u000f)\u0007\b \u0006 \u001a\u0018)\u0011 \u000f \u0010\u0014 \u0010\u0018\b \u0011 \u0005\u0014\u0018 \u0011\u0014 \u0018 \u000f\u000e\u0018 \u000f# \u0014 # \u0007\u001b!",
"!\u00153\"\u0019 \u000e3& \u0015* \u0015D\u0019C \b \u001a\u0013\u000e\u001b\u000e\u0018 \u0018\u0010 \u0019\u0011\u000e\u0018 \u0007\u0010\u0012\u0012 \u0014\u0018\u000f \u0010\u0011 \u0011 \u0017\u000e \u0019\u000f \u001a\u0013\u0010)\u0018 \u0018\b 3\u0011\u0010\u0016 \u0011\u0018 \u0010\u0014 \u0018\b\u0010\u000f \u000f\u000e\u0018 \u000fG \u0010\u0011 \u0018\b \u001a\u0013\u000e\u001b\u000e\u0018 \u0018\u0010 \u001b\u000e\u0014 \u0018\u0010 \u001a\u0014\u0010\u0018\b \u0011 \u000f\u000e\u0018 \u0007\u0010\u0014\u0018\u001a\u000e\u0014\u000e\u0014\u0015 \u000f)\u0007\b \u0007\u0010\u0012\u0012 \u0014\u0018\u000f \u0010\u0011 \u0011 \u0017\u000e \u0019\u000f \u000e\u0006 \u0018\b \u001b\u000e\u0014 \u000e\u000f \u000e\u0014 \u000e\u0012\u0012 \u000e\u001a\u0018 \u0007\u0010\u0014&)\u0014\u0007\u0018\u000e\u0010\u0014 \u0019\u000e\u0018\b \u0018\b 3\u0011\u0010\u0016 \u0011\u0018 \u000e\u000f\u0016\u001b\u001a # \u0014'# \u000e%\"\u001b! \"\u0015& \u0019\" ! \"\u0015 2 < \u0016%\u0015C \b \u001a\u0013\u000e\u001b\u000e\u0018 \u0018\u0010 \u0007\u0011 \u001a\u0018 \u001a\u0014 \u001a)\u0018\u0010\u0012\u001a\u0018 \u000f\u0018\u000e\u0012\u001a\u0018 \u0010\u0006 \u0017\u001a\u001b) \u0010\u0011 \u0018\u0010 \u001b\u000e\u0014 \u0018\u0010 \u001a\u0014\u0010\u0018\b \u0011 \u000f\u000e\u0018 \u0007\u0010\u0014\u0018\u001a\u000e\u0014\u000e\u0014\u0015 \u000f)\u0007\b \u001a\u0014 \u000f\u0018\u000e\u0012\u001a\u0018 \u0010\u0006 \u0017\u001a\u001b) \u000e\u0006 \u0018\b \u001b\u000e\u0014 \u000e\u000f \u000e\u0014 \u000e\u0012\u0012 \u000e\u001a\u0018 \u0007\u0010\u0014&)\u0014\u0007\u0018\u000e\u0010\u0014 \u0019\u000e\u0018\b \u0018\b 3\u0011\u0010\u0016 \u0011\u0018 \u000e\u000f\u0016\u001b\u001a # \u0003+ \u001b\u001b \u0011 \u001b \u0007\u0018\u000f \u0018\u0010 \u0010\u0016\u0018 \u0010)\u0018 \u0010\u0006 \u0007 \u0011\u0018\u001a\u000e\u0014 \u0005\u0014\u0018 \u0011\u0014 \u0018 \u0006 \u001a\u0018)\u0011 \u000f \u001a\u000f \u0016\u0011\u0010\u0017\u000e \u0013 #*#7# .\u0010\u0011\u0012 +26\u0005 \u0010\u0011 \u0018\b \u001b\u0010\u0007\u001a\u001b 5)\u000e\u0017\u001a\u001b \u0014\u0018 \u0006\u0010\u0011\u0012# >+ \u0006 \b\b \u0013 \u0006 \u000f\u0010\u000e\u0010\u0005 \u000f\u0006C + \u001b\u001b \u0011 \u0011 \u0016\u0011 \u000f \u0014\u0018\u000f \u0018\b\u001a\u0018' )\u0014\u001b \u000f\u000f \u0010\u0018\b \u0011\u0019\u000e\u000f \u000f\u0016 \u0007\u000e\u0006\u000e \u000e\u0014 \u0019\u0011\u000e\u0018\u000e\u0014\u0015' + \u001b\u001b \u0011 \u000e\u000f )\u0014\u001a\u0019\u001a\u0011 \u0010\u0006- \u0004\u000e \u001a\u0014 E\u0010\u0018\u000e\u0007 \u0010\u0006 0 \u0006\u001a)\u001b\u0018 \u0011 \u0007\u0010\u0011 \u001a\u0015\u001a\u000e\u0014\u000f\u0018 \u0018\b 3\u0011\u0010\u0016 \u0011\u0018 G \u0004\u000e\u000e \u001a\u0014 \u001b\u000e\u00145) \u0014\u0018 \u001a\u0012\u0010)\u0014\u0018\u000f ) )\u0014 \u0011 \u001a\u0014 \u001b\u0010\u001a\u0014 \u000f \u0007)\u0011 \u0013 ' \u0010\u0011 \u0010\u0018\b \u0011 \u0010\u0013\u001b\u000e\u0015\u001a\u0018\u000e\u0010\u0014 \u001a\u0006\u0006 \u0007\u0018\u000e\u0014\u0015' \u0018\b 3\u0011\u0010\u0016 \u0011\u0018 G \u0004\u000e\u000e\u000e \u001a\u0014 \u0013\u001a\u0014 \u0011)\u0016\u0018\u0007 ' \u000e\u0014\u000f\u0010\u001b\u0017 \u0014\u0007 \u0010\u0011 \u000f\u000e\u0012\u000e\u001b\u001a\u0011 \u0016\u0011\u0010\u0007 \u000e\u0014\u0015 \u001a\u0006\u0006 \u0007\u0018\u000e\u0014\u0015 \u0018\b 3\u0011\u0010\u0016 \u0011\u0018 G \u0004\u000e\u0017 \u001a\u0014 \u001b\u000e\u0018\u000e\u0015\u001a\u0018\u000e\u0010\u0014' \u001a\u0011\u0013\u000e\u0018\u0011\u001a\u0018\u000e\u0010\u0014' \u001a \u0012\u000e\u0014\u000e\u000f\u0018\u0011\u001a\u0018\u000e\u0017 \u001a\u0007\u0018\u000e\u0010\u0014' \u0015\u0010\u0017 \u0011\u0014\u0012 \u0014\u0018 \u000e\u0014\u0017 \u000f\u0018\u000e\u0015\u001a\u0018\u000e\u0010\u0014 \u0010\u0011 \u0010\u0018\b \u0011 \u0016 \u0014 \u000e\u0014\u0015 \u0010\u0011 \u0018\b\u0011 \u001a\u0018 \u0014 \u001a\u0007\u0018\u000e\u0010\u0014 \u0018\b\u001a\u0018 \u001a\u0006\u0006 \u0007\u0018\u000f \u0010\u0011 \u0012\u001a \u001a\u0006\u0006 \u0007\u0018 \u0018\b 3\u0011\u0010\u0016 \u0011\u0018 \u0010\u0011 + \u001b\u001b \u0011,\u000f \u001a\u0013\u000e\u001b\u000e\u0018 \u0018\u0010 \u0018\u0011\u001a\u0014\u000f\u0006 \u0011 \u000e\u0018G \u001a\u0014 \u0004\u0017 \u001a\u0014 \u0007)\u0011\u0011 \u0014\u0018' \u0016 \u0014 \u000e\u0014\u0015 \u0010\u0011 \u0016\u0011\u0010\u0016\u0010\u000f \u000f\u0016 \u0007\u000e\u001a\u001b \u001a\u000f\u000f \u000f\u000f\u0012 \u0014\u0018\u000f \u001a\u0006\u0006 \u0007\u0018\u000e\u0014\u0015 \u0018\b 3\u0011\u0010\u0016 \u0011\u0018 # + \u001b\u001b \u0011 \u000f\b\u001a\u001b\u001b \u0016\u0011\u0010\u0012\u0016\u0018\u001b \u0014\u0010\u0018\u000e\u0006 /\u0011\u0010 \u0011 \u000e\u0014 \u0019\u0011\u000e\u0018\u000e\u0014\u0015 \u000e\u0006 + \u001b\u001b \u0011 \u0013 \u0007\u0010\u0012 \u000f \u001a\u0019\u001a\u0011 \u0010\u0006 \u001a\u0014 \u0010\u0006 \u0018\b \u000f \u000e\u0018 \u0012\u000f )\u0011\u000e\u0014\u0015 \u0018\b 6\u000e\u000f\u0018\u000e\u0014\u0015 3 \u0011\u000e\u0010 \u0010\u0011 \u001a\u0014 \u0018 \u0014\u000f\u000e\u0010\u0014 \u0018\b \u0011 \u0010\u0006# 6+ \u001a ; \u0018\u0006 \u000e\u000f\u0004 \u0006 \b\b \u0018\u0006 \u0004 \u0010\u0005 \u0006C \u000e+ /\u0011\u0010 \u0011 \u001a\u0015\u0011 \u000f \u0018\u0010 \u0011\u0007\u000e\u000f \u0011 \u001a\u000f\u0010\u0014\u001a\u0013\u001b \u0006\u0006\u0010\u0011\u0018 \u001a\u0014 ) \u000e\u001b\u000e\u0015 \u0014\u0007 \u0018\u0010 \u001a\u0007\b\u000e \u0017 \u0018\b \u0016)\u0011\u0016\u0010\u000f \u000f \u0010\u0006 \u0018\b\u000e\u000f *\u0015\u0011 \u0012 \u0014\u0018# J\u0014\u001b \u000f\u000f + \u001b\u001b \u0011 \u0015\u000e\u0017 \u000f /\u0011\u0010 \u0011 \u0019\u0011\u000e\u0018\u0018 \u0014 \u000e\u0014\u000f\u0018\u0011)\u0007\u0018\u000e\u0010\u0014\u000f \u0018\u0010 \u0018\b \u0007\u0010\u0014\u0018\u0011\u001a\u0011 ' /\u0011\u0010 \u0011 \u000e\u000f \u001a)\u0018\b\u0010\u0011\u000e= ' \u0013)\u0018 \u0014\u0010\u0018 \u0011 5)\u000e\u0011 ' \u0018\u0010 \u0004\u000e \u0010\u0011 \u0011 \u0011 \u0016\u0010\u0011\u0018\u000f \u001a\u0014 \u000e\u000f\u0007\u001b\u0010\u000f)\u0011 \u000f \u000e\u0014\u0007\u001b) \u000e\u0014\u0015 \u0018\b\u0010\u000f \u000f\u0016 \u0007\u000e\u0006\u000e \u000e\u0014 !",
"\u001a\u000f \u0014 \u0007 \u000f\u000f\u001a\u0011 ' \u0004\u000e\u000e \u001a \u0017 \u0011\u0018\u000e\u000f \u001a\u0014 \u0012\u001a\u0011 \u0018 \u0018\b 3\u0011\u0010\u0016 \u0011\u0018 \u0013 \u001a\u0014 \u0012 \u0018\b\u0010 \u001a\u0014 \u000e\u0014 \u001a\u0014 \u0012 \u000e)\u0012 \u000f \u001b \u0007\u0018 \u0013 /\u0011\u0010 \u0011' \u000e\u0014\u0007\u001b) \u000e\u0014\u0015 >6+ \u001a\u0014 \u0018\b \u0005\u0014\u0018 \u0011\u0014 \u0018' \u001a\u0014 ' \u0018\u0010 \u0018\b \u0018 \u0014\u0018 \u0016 \u0011\u0012\u000e\u0018\u0018 \u0013 \u0018\b \u000f \u0012 \u000e\u001a' \u0007\u0010\u0014\u0018\u0011\u0010\u001b \u0018\b \u000e\u000f\u000f \u0012\u000e\u0014\u001a\u0018\u000e\u0010\u0014 \u0010\u0006 \u0018\b \u000e\u0014\u0006\u0010\u0011\u0012\u001a\u0018\u000e\u0010\u0014 \u000f)\u0013\u0012\u000e\u0018\u0018 \u0018\u0010 \u001a\u0014 \u0012 \u000e)\u0012G \u001a\u0014 \u0004\u000e\u000e\u000e \u000e\u000f\u0007\u001b\u0010\u000f \u0018\u0010 \u001a\u0014 \u0011 \u001a\u001b \u000f\u0018\u001a\u0018 \u001b\u000e\u0007 \u0014\u000f \u0012\u001a \u000e\u0014\u0015 \u001a\u0014 \u000e\u00145)\u000e\u0011 \u0018\b \u0011 \u0007 \u000e\u0016\u0018 \u0010\u0006 \u001a\u0014 \u0010\u0006\u0006 \u0011\u000f \u0010\u0014 \u0018\b 3\u0011\u0010\u0016 \u0011\u0018 \u001a\u0014 \u0018\b \u0010\u0006\u0006 \u0011\u000e\u0014\u0015 \u0016\u0011\u000e\u0007 \u0010\u0006 \u000f)\u0007\b \u0010\u0006\u0006 \u0011\u000f# \u001a+ + \u001b\u001b \u0011 \u001a\u0015\u0011 \u000f \u0018\u0010 \u0007\u0010\u0014\u000f\u000e \u0011 \u0010\u0006\u0006 \u0011\u000f \u0016\u0011 \u000f \u0014\u0018 \u0013 /\u0011\u0010 \u0011' \u001a\u0014 \u0018\u0010 \u001a\u0007\u0018 \u000e\u0014 \u0015\u0010\u0010 \u0006\u001a\u000e\u0018\b \u0018\u0010 \u001a\u0007\u0007\u0010\u0012\u0016\u001b\u000e\u000f\b \u0018\b \u000f\u001a\u001b \u0010\u0006 \u0018\b 3\u0011\u0010\u0016 \u0011\u0018 \u0013 ' \u001a\u0012\u0010\u0014\u0015 \u0010\u0018\b \u0011 \u0018\b\u000e\u0014\u0015\u000f' \u0012\u001a \u000e\u0014\u0015 \u0018\b 3\u0011\u0010\u0016 \u0011\u0018 \u001a\u0017\u001a\u000e\u001b\u001a\u0013\u001b \u0006\u0010\u0011 \u000f\b\u0010\u0019\u000e\u0014\u0015 \u001a\u0018 \u0011 \u001a\u000f\u0010\u0014\u001a\u0013\u001b \u0018\u000e\u0012 \u000f \u001a\u0014 ' \u000f)\u0013& \u0007\u0018 \u0018\u0010 \u0016\u001a\u0011\u001a\u0015\u0011\u001a\u0016\b %.'",
"\u0011 \u0006 \u0011\u0011\u000e\u0014\u0015 \u0018\u0010 /\u0011\u0010 \u0011 \u001a\u001b\u001b \u000e\u00145)\u000e\u0011\u000e \u000f \u0010\u0006 \u001a\u0014 \u0016\u001a\u0011\u0018 \u000e\u0014\u0018 \u0011 \u000f\u0018 \u000e\u0014 \u0018\b 3\u0011\u0010\u0016 \u0011\u0018 # + \u001b\u001b \u0011 \u000e\u000f \u0011 \u000f\u0016\u0010\u0014\u000f\u000e\u0013\u001b \u0006\u0010\u0011 \u0018 \u0011\u0012\u000e\u0014\u000e\u0014\u0015 \u001a\u0018 \u0019\b\u001a\u0018 \u0016\u0011\u000e\u0007 \u0018\u0010 \u001b\u000e\u000f\u0018 \u001a\u0014 \u000f \u001b\u001b \u0018\b 3\u0011\u0010\u0016 \u0011\u0018 # \u0007+ \u0005\u0014\u0017 \u000f\u0018\u000e\u0015\u001a\u0018\u000e\u0010\u0014\u000f \u001a\u0014 7 \u0016\u0010\u0011\u0018\u000f- + \u001b\u001b \u0011 \u001a\u0015\u0011 \u000f' \u0019\u000e\u0018\b\u000e\u0014 C \u0004\u0010\u0011 0\u001a \u000f \u0010\u0006 \u0018\b \u0013 \u0015\u000e\u0014\u0014\u000e\u0014\u0015 \u001a\u0018 \u0010\u0006 \u0018\b\u000e\u000f *\u0015\u0011 \u0012 \u0014\u0018' \u0018\u0010 \u0016\u001a \u0006\u0010\u0011 \u0018\b \u0006\u0010\u001b\u001b\u0010\u0019\u000e\u0014\u0015 \u0016\u0011 9\u000f\u001a\u001b \u0011 \u0016\u0010\u0011\u0018\u000f- \u0003+\u0018\u0011)\u0007\u0018)\u0011\u001a\u001b 3 \u000f\u0018 \u0010\u0014\u0018\u0011\u0010\u001b \u0003I \u0014 \u0011\u001a\u001b 3\u0011\u0010\u0016 \u0011\u0018 \u0005\u0014\u000f\u0016 \u0007\u0018\u000e\u0010\u0014 \u0003D\u0010\u0012 \u0010\u0019\u0014 \u0011\u000f *\u000f\u000f\u0010\u0007\u000e\u001a\u0018\u000e\u0010\u0014 0\u0010\u0007)\u0012 \u0014\u0018\u000f \u00031\u0018\b \u0011 # \u0004+ + \u001b\u001b \u0011 \u0006)\u0011\u0018\b \u0011 \u001a\u0015\u0011 \u000f \u0018\u0010 \u000e\u0014 \u0012\u0014\u000e\u0006 ' \u0006 \u0014 \u001a\u0014 \b\u0010\u001b /\u0011\u0010 \u0011 \b\u001a\u0011\u0012\u001b \u000f\u000f \u0006\u0011\u0010\u0012 \u001a\u001b\u001b \u0007\u001b\u001a\u000e\u0012\u000f' \u000e\u000f\u0016)\u0018 \u000f' \u001b\u000e\u0018\u000e\u0015\u001a\u0018\u000e\u0010\u0014' &) \u0015\u0012 \u0014\u0018\u000f \u001a\u0018\u0018\u0010\u0011\u0014 \u0006 \u000f \u001a\u0014 \u0007\u0010\u000f\u0018\u000f \u001a\u0011\u000e\u000f\u000e\u0014\u0015 \u0006\u0011\u0010\u0012 \u001a\u0014 \u000e\u0014\u0007\u0010\u0011\u0011 \u0007\u0018 \u0010\u0011 \u000e\u0014\u0007\u0010\u0012\u0016\u001b \u0018 \u000e\u0014\u0006\u0010\u0011\u0012\u001a\u0018\u000e\u0010\u0014 \u000f)\u0016\u0016\u001b\u000e \u0013 + \u001b\u001b \u0011' \u0010\u0011 \u0006\u0011\u0010\u0012 \u001a\u0014 \u0012\u001a\u0018 \u0011\u000e\u001a\u001b \u0006\u001a\u0007\u0018\u000f \u0018\b\u001a\u0018 + \u001b\u001b \u0011 \u0014\u0010\u0019\u000f \u0013)\u0018 \u0006\u001a\u000e\u001b\u000f \u0018\u0010 \u000e\u000f\u0007\u001b\u0010\u000f \u000e\u0014\u0007\u001b) \u000e\u0014\u0015 \u001a\u0014\u0015 \u0011\u0010)\u000f \u0010\u0011 \b\u000e \u0014 \u0007\u0010\u0014 \u000e\u0018\u000e\u0010\u0014\u000f \u0010\u0014 \u0018\b 3\u0011\u0010\u0016 \u0011\u0018 # 0+ \u0004 \u0013 \u0006\u0005\u0010C /\u0011\u0010 \u0011 \u000e\u000f \u001a)\u0018\b\u0010\u0011\u000e= \u0018\u0010 \u001a\u0007\u0007 \u0016\u0018 \u001a\u0014 \b\u0010\u001b \u0010\u0014 + \u001b\u001b \u0011,\u000f \u0013 \b\u001a\u001b\u0006 \u001a\u0014 \u0016\u0010\u000f\u000e\u0018\u000f \u0018\u0010 \u0013 \u001a\u0016\u0016\u001b\u000e \u0018\u0010\u0019\u001a\u0011 \u0018\b \u0016)\u0011\u0007\b\u001a\u000f \u0016\u0011\u000e\u0007 # 7+ \u000e \u000f\u0007\u0011 \b\u000e\u0010\u0005 \u000f\u0006\u0012\u0005\u0013\u0006C \u000e+ \u0004 \u00191\u0016\u001b\u0019%\u0017\u0015C \b + \u001b\u001b \u0011 \u001a\u0007 \u0014\u0010\u0019\u001b \u0015 \u000f \u0011 \u0007 \u000e\u0016\u0018 \u0010\u0006 \u001a X A0\u000e\u000f\u0007\u001b\u0010\u000f)\u0011 7 \u0015\u001a\u0011 \u000e\u0014\u0015 7 \u001a\u001b 2\u000f\u0018\u001a\u0018 *\u0015 \u0014\u0007 7 \u001b\u001a\u0018\u000e\u0010\u0014\u000f\b\u000e\u0016\u000fB \u0004 #*#7# .\u0010\u0011\u0012 *0 # \u001a+ \u0006\u0015\u0016\u0016\u0015\u0017 \u00154\u0017\u0015\u0019\u00153\" \" \u001b3C /\u0011\u0010 \u0011 \u000f\b\u001a\u001b\u001b \u0011 \u0016\u0011 \u000f \u0014\u0018 + \u001b\u001b \u0011 \u000e\u0014 \u001a\u0014 \u0011 \u000f)\u001b\u0018\u000e\u0014\u0015 \u0018\u0011\u001a\u0014\u000f\u001a\u0007\u0018\u000e\u0010\u0014' \u0007 \u0016\u0018 \u001a\u000f \u000f\u0016 \u0007\u000e\u0006\u000e \u000e\u0014 \u0016\u001a\u0011\u001a\u0015\u0011\u001a\u0016\b %.# \u0007+ \u0013\u001b\u0019\u0019 '\u0016\u0015 \u0004% \u0016 \u000e \u001531( : \") \u001a%(\u0015\u0017C 0 \u0016 \u0014 \u000e\u0014\u0015 )\u0016\u0010\u0014 \u0018\b \u0007\u000e\u0011\u0007)\u0012\u000f\u0018\u001a\u0014\u0007 \u000f' \u000e\u0018 \u0012\u001a \u0013 \u0014 \u0007 \u000f\u000f\u001a\u0011 \u0010\u0011 \u001a\u0016\u0016\u0011\u0010\u0016\u0011\u000e\u001a\u0018 \u0006\u0010\u0011 /\u0011\u0010 \u0011 \u0018\u0010 \u001a\u0007\u0018 \u001a\u000f \u001a\u0014 \u001a\u0015 \u0014\u0018 \u0006\u0010\u0011 \u0013\u0010\u0018\b + \u001b\u001b \u0011 \u001a\u0014 \u0013) \u0011' \u0007\b\u001a\u0014\u0015 \u0016\u001a\u0011\u0018 ' \u0010\u0011 \u0010\u0014 \u0010\u0011 \u0012\u0010\u0011 \u001a \u000e\u0018\u000e\u0010\u0014\u001a\u001b \u0016\u001a\u0011\u0018\u000e \u000f \u0004A/) \u0011B # /\u0011\u0010 \u0011 \u000f\b\u001a\u001b\u001b' \u001a\u000f \u000f\u0010\u0010\u0014 \u001a\u000f \u0016\u0011\u001a\u0007\u0018\u000e\u0007\u001a\u0013\u001b ' \u000e\u000f\u0007\u001b\u0010\u000f \u0018\u0010 + \u001b\u001b \u0011 \u001a\u0014 \u001b \u0007\u0018\u000e\u0010\u0014 \u0018\u0010 \u001a\u0007\u0018 \u001a\u000f \u001a )\u001a\u001b \u001a\u0015 \u0014\u0018 \u0011 \u0016\u0011 \u000f \u0014\u0018\u000e\u0014\u0015 \u0013\u0010\u0018\b + \u001b\u001b \u0011 \u001a\u0014 /) \u0011# \u0005\u0006 \u001a /) \u0011 \u000e\u000f \u0016\u0011\u0010\u0007)\u0011 \u000e\u0011 \u0007\u0018\u001b \u0013 /\u0011\u0010 \u0011 \u0010\u0011 \u001a\u0014 \u001a\u000f\u000f\u0010\u0007\u000e\u001a\u0018 9\u001b\u000e\u0007 \u0014\u000f \u000e\u0014 /\u0011\u0010 \u0011,\u000f \u0006\u000e\u0011\u0012' + \u001b\u001b \u0011 \b \u0011 \u0013 \u0007\u0010\u0014\u000f \u0014\u0018\u000f \u0018\u0010 /\u0011\u0010 \u0011 \u001a\u0007\u0018\u000e\u0014\u0015 \u001a\u000f \u001a )\u001a\u001b \u001a\u0015 \u0014\u0018 \u0006\u0010\u0011 + \u001b\u001b \u0011 \u001a\u0014 /) \u0011# \u0005\u0014 \u0018\b \u0017 \u0014\u0018 \u0010\u0006 \u001a\u0014 \u0007\b\u001a\u0014\u0015 ' + \u001b\u001b \u0011 \b \u0011 \u0013 \u0007\u0010\u0014\u000f \u0014\u0018\u000f \u0018\u0010 /\u0011\u0010 \u0011 \u0007\u0010\u001b\u001b \u0007\u0018\u000e\u0014\u0015 \u0007\u0010\u0012\u0016 \u0014\u000f\u001a\u0018\u000e\u0010\u0014 \u0006\u0011\u0010\u0012 \u001a \u000e\u0018\u000e\u0010\u0014\u001a\u001b \u0016\u001a\u0011\u0018\u000e \u000f \u0006\u0010\u0011 \u000f \u0011\u0017\u000e\u0007 \u000f \u0011 \u0014 \u0011 ' \u0016\u0011\u0010\u0017\u000e \u0018\b \u0011 \u000e\u000f \u000e\u000f\u0007\u001b\u0010\u000f)\u0011 \u0018\u0010 \u001a\u001b\u001b \u0016\u001a\u0011\u0018\u000e \u000f \u0010\u0006 \u000f)\u0007\b \u001a\u0015 \u0014\u0007 \u001a\u0014 \u0007\u0010\u0012\u0016 \u0014\u000f\u001a\u0018\u000e\u0010\u0014# + \u001b\u001b \u0011 )\u0014 \u0011\u000f\u0018\u001a\u0014 \u000f \u001a\u0014 \u001a\u0015\u0011 \u000f \u0018\b\u001a\u0018- \u001a )\u001a\u001b \u001a\u0015 \u0014\u0018 \u0012\u001a \u0014\u0010\u0018' \u0019\u000e\u0018\b\u0010)\u0018 \u0018\b \u0016\u0011 \u000f\u000f \u0016 \u0011\u0012\u000e\u000f\u000f\u000e\u0010\u0014 \u0010\u0006 \u0018\b \u0011 \u000f\u0016 \u0007\u0018\u000e\u0017 \u0016\u001a\u0011\u0018 ' \u000e\u000f\u0007\u001b\u0010\u000f \u0018\u0010 \u0018\b \u0010\u0018\b \u0011 \u0016\u001a\u0011\u0018 \u0007\u0010\u0014\u0006\u000e \u0014\u0018\u000e\u001a\u001b \u000e\u0014\u0006\u0010\u0011\u0012\u001a\u0018\u000e\u0010\u0014' \u000e\u0014\u0007\u001b) \u000e\u0014\u0015' \u0013)\u0018 \u0014\u0010\u0018 \u001b\u000e\u0012\u000e\u0018 \u0018\u0010' \u0006\u001a\u0007\u0018\u000f \u0011 \u001b\u001a\u0018\u000e\u0014\u0015 \u0018\u0010 \u000e\u0018\b \u0011 \u0018\b /) \u0011,\u000f \u0010\u0011 + \u001b\u001b \u0011,\u000f \u0006\u000e\u0014\u001a\u0014\u0007\u000e\u001a\u001b \u0016\u0010\u000f\u000e\u0018\u000e\u0010\u0014' \u0012\u0010\u0018\u000e\u0017\u001a\u0018\u000e\u0010\u0014\u000f' \u0013\u001a\u0011\u0015\u001a\u000e\u0014\u000e\u0014\u0015 \u0016\u0010\u000f\u000e\u0018\u000e\u0010\u0014' \u0010\u0011 \u0010\u0018\b \u0011 \u0016 \u0011\u000f\u0010\u0014\u001a\u001b \u000e\u0014\u0006\u0010\u0011\u0012\u001a\u0018\u000e\u0010\u0014 \u0018\b\u001a\u0018 \u0012\u001a \u000e\u0012\u0016\u001a\u0007\u0018 \u0016\u0011\u000e\u0007 ' \u000e\u0014\u0007\u001b) \u000e\u0014\u0015 \u0018\b + \u001b\u001b \u0011,\u000f \u0019\u000e\u001b\u001b\u000e\u0014\u0015\u0014 \u000f\u000f \u0018\u0010 \u001a\u0007\u0007 \u0016\u0018 \u001a \u0016\u0011\u000e\u0007 \u001b \u000f\u000f \u0018\b\u001a\u0014 \u0018\b \u001b\u000e\u000f\u0018\u000e\u0014\u0015 \u0016\u0011\u000e\u0007 \u0010\u0011 \u0018\b /) \u0011,\u000f \u0019\u000e\u001b\u001b\u000e\u0014\u0015\u0014 \u000f\u000f \u0018\u0010 \u0016\u001a \u001a \u0016\u0011\u000e\u0007 \u0015\u0011 \u001a\u0018 \u0011 \u0018\b\u001a\u0014 \u0018\b \u0016\u0011\u000e\u0007 \u0010\u0006\u0006 \u0011 G \u001a\u0014 \u0007 \u0016\u0018 \u001a\u000f \u000f \u0018 \u0006\u0010\u0011\u0018\b \u001a\u0013\u0010\u0017 ' \u001a )\u001a\u001b \u001a\u0015 \u0014\u0018 \u000e\u000f \u0010\u0013\u001b\u000e\u0015\u001a\u0018 \u0018\u0010 \u000e\u000f\u0007\u001b\u0010\u000f \u0014\u0010\u0019\u0014 \u0006\u001a\u0007\u0018\u000f \u0012\u001a\u0018 \u0011\u000e\u001a\u001b\u001b \u001a\u0006\u0006 \u0007\u0018\u000e\u0014\u0015 \u0018\b \u0017\u001a\u001b) \u0010\u0011 \u000f\u000e\u0011\u001a\u0013\u000e\u001b\u000e\u0018 \u0010\u0006 \u0018\b 3\u0011\u0010\u0016 \u0011\u0018 \u0018\u0010 \u0013\u0010\u0018\b \u0016\u001a\u0011\u0018\u000e \u000f# + \u001b\u001b \u0011,\u000f \u0005\u0014\u000e\u0018\u000e\u001a\u001b\u000f \u0004 \u0004 \b\u000e <\u0005\u0006 \u0004 -./-0 \u0014\u0013\u000e 8 @# \u0006\u0005\u0004 \u000f\u0010\u0005\u000e\b \b\u0005\u0006\u0010\u0005\u000f \u000e A \u000f\u0010 B G\u0007\b \u0006\u0005< \u0014 \b\u000e \u0013\u000e 8 @# \u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u00033\u0011\u0010 )\u0007 \u0019\u000e\u0018\b =\u000e\u0016.\u0010\u0011\u0012< \u0013 =\u000e\u00166\u0010\u0015\u000e \u0003$; !",
".\u000e\u0006\u0018 \u0014 >\u000e\u001b 7\u0010\u001a ' .\u0011\u001a\u000f \u0011' >\u000e\u0007\b\u000e\u0015\u001a\u0014 ? ; @ \u0003\u0003\u0003\u0019\u0019\u0019#=\u000e\u00166\u0010\u0015\u000e #\u0007\u0010\u0012 \u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003 \u0016\u0013\u00030HUOLQ\u0003&W 'RFX6LJQ\u0003(QYHORSH\u0003,' \u0003\u0015\u0015'($\u0017\u0015\u0018\u0010\u001a %$\u0010\u0017\u0014(\u0017\u0010\u001b\u001b%)\u0010\u0017\u0017\u0013$\u0017$\u0016('\u0015\u001a\u0019 Filed 09/12/19 Case 19-21640 Doc 113 3\u0011\u0010\u0016 \u0011\u0018 * \u0011 \u000f\u000f- 30 Merlin Ct. , Oakland, CA 94605-5624 \u00030\u001a\u0018 - 08/28/2019 \u0004+ \u0007\u001b32 \u0017!",
"\" \u001b3C /\u0011\u0010 \u0011 \u000f\b\u001a\u001b\u001b \u0007\u0010\u0014\u0006\u000e\u0011\u0012 \u0018\b \u001a\u0015 \u0014\u0007 \u0011 \u001b\u001a\u0018\u000e\u0010\u0014\u000f\b\u000e\u0016 \u000f\u0007\u0011\u000e\u0013 \u001a\u0013\u0010\u0017 ' \u0010\u0011 \u001a\u000f \u0012\u0010 \u000e\u0006\u000e ' \u000e\u0014 \u0019\u0011\u000e\u0018\u000e\u0014\u0015' \u0016\u0011\u000e\u0010\u0011 \u0018\u0010 \u0010\u0011 \u0007\u0010\u0014\u0007)\u0011\u0011 \u0014\u0018 \u0019\u000e\u0018\b + \u001b\u001b \u0011,\u000f \u0007)\u0018\u000e\u0010\u0014 \u0010\u0006 \u001a \u0016)\u0011\u0007\b\u001a\u000f \u001a\u0015\u0011 \u0012 \u0014\u0018# + \u0013\u001b\"\u00153\" \u0016\u0016( \u0007\u001b!4\u0015\" 3 \u0006\u0015\u0016\u0016\u0015\u0017\u0019 3& \u001a%(\u0015\u0017\u0019C + \u001b\u001b \u0011 )\u0014 \u0011\u000f\u0018\u001a\u0014 \u000f \u0018\b\u001a\u0018 /\u0011\u0010 \u0011 \u0012\u001a \b\u001a\u0017 \u0010\u0011 \u0010\u0013\u0018\u001a\u000e\u0014 \u001b\u000e\u000f\u0018\u000e\u0014\u0015\u000f \u0010\u0014 \u0010\u0018\b \u0011 \u0016\u0011\u0010\u0016 \u0011\u0018\u000e \u000f' \u001a\u0014 \u0018\b\u001a\u0018 \u0016\u0010\u0018 \u0014\u0018\u000e\u001a\u001b \u0013) \u0011\u000f \u0012\u001a \u0007\u0010\u0014\u000f\u000e \u0011' \u0012\u001a \u0010\u0006\u0006 \u0011\u000f \u0010\u0014' \u0010\u0011 \u0016)\u0011\u0007\b\u001a\u000f \u0018\b\u0011\u0010)\u0015\b /\u0011\u0010 \u0011' \u0016\u0011\u0010\u0016 \u0011\u0018 \u0018\b \u000f\u001a\u0012 \u001a\u000f \u0010\u0011 \u000f\u000e\u0012\u000e\u001b\u001a\u0011 \u0018\u0010 + \u001b\u001b \u0011,\u000f 3\u0011\u0010\u0016 \u0011\u0018 # + \u001b\u001b \u0011 \u0007\u0010\u0014\u000f \u0014\u0018\u000f \u0018\u0010 /\u0011\u0010 \u0011,\u000f \u0011 \u0016\u0011 \u000f \u0014\u0018\u001a\u0018\u000e\u0010\u0014 \u0010\u0006 \u000f \u001b\u001b \u0011\u000f \u001a\u0014 \u0013) \u0011\u000f \u0010\u0006 \u0010\u0018\b \u0011 \u0016\u0011\u0010\u0016 \u0011\u0018\u000e \u000f \u0013 \u0006\u0010\u0011 ' )\u0011\u000e\u0014\u0015 \u001a\u0014 \u001a\u0006\u0018 \u0011 \u0018\b \u0014 \u0010\u0006 \u0018\b\u000e\u000f *\u0015\u0011 \u0012 \u0014\u0018# + \u001b\u001b \u0011 \u001a\u0007 \u0014\u0010\u0019\u001b \u0015 \u000f \u0011 \u0007 \u000e\u0016\u0018 \u0010\u0006 \u001a X A3\u0010\u000f\u000f\u000e\u0013\u001b 7 \u0016\u0011 \u000f \u0014\u0018\u001a\u0018\u000e\u0010\u0014 \u0010\u0006 >\u0010\u0011 \u0018\b\u001a\u0014 1\u0014 /) \u0011 \u0010\u0011 + \u001b\u001b \u0011 9 0\u000e\u000f\u0007\u001b\u0010\u000f)\u0011 \u001a\u0014 \u0010\u0014\u000f \u0014\u0018B \u0004 #*#7# .\u0010\u0011\u0012 37/+ # -5+ \u0006 \u0007 \u0005\u0010\u0011, \u0005\u000f\u0006 \u000e\u000f\u0007 , \u0006\u0012 :\u0005\u000f \u0006, \u000e \u0004\u0005 \u000e\u000f\u0004 <\u0005\u0004 C /\u0011\u0010 \u0011 \u000e\u000f \u0014\u0010\u0018 \u0011 \u000f\u0016\u0010\u0014\u000f\u000e\u0013\u001b \u0006\u0010\u0011 \u001b\u0010\u000f\u000f \u0010\u0006 \u0010\u0011 \u001a\u0012\u001a\u0015 \u0018\u0010 \u0016 \u0011\u000f\u0010\u0014\u001a\u001b \u0010\u0011 \u0011 \u001a\u001b \u0016\u0011\u0010\u0016 \u0011\u0018 ' \u0010\u0011 \u0016 \u0011\u000f\u0010\u0014' \u0019\b \u0018\b \u0011 \u001a\u0018\u0018\u0011\u000e\u0013)\u0018\u001a\u0013\u001b \u0018\u0010 )\u000f \u0010\u0006 \u001a \u000f\u001a\u0006 N\u001b\u0010\u0007 \u0013\u0010 ' \u001a \u000f\b\u0010\u0019\u000e\u0014\u0015 \u0010\u0006 \u0018\b 3\u0011\u0010\u0016 \u0011\u0018 ' \u0010\u0011 \u0010\u0018\b \u0011\u0019\u000e\u000f # \b\u000e\u0011 \u0016\u001a\u0011\u0018\u000e \u000f' \u000e\u0014\u0007\u001b) \u000e\u0014\u0015' \u0013)\u0018 \u0014\u0010\u0018 \u001b\u000e\u0012\u000e\u0018 \u0018\u0010' \u001a\u0016\u0016\u0011\u001a\u000e\u000f \u0011\u000f'\u0003\u000e\u0014\u000f\u0016 \u0007\u0018\u0010\u0011\u000f' \u0013\u0011\u0010 \u0011\u000f \u001a\u0014 \u0016\u0011\u0010\u000f\u0016 \u0007\u0018\u000e\u0017 \u0013) \u0011\u000f' \u0012\u001a \b\u001a\u0017 \u001a\u0007\u0007 \u000f\u000f \u0018\u0010' \u001a\u0014 \u0018\u001a \u0017\u000e \u0010\u000f \u001a\u0014 \u0016\b\u0010\u0018\u0010\u0015\u0011\u001a\u0016\b\u000f \u0010\u0006' \u0018\b \u000e\u0014\u0018 \u0011\u000e\u0010\u0011 \u0010\u0006 \u0018\b 3\u0011\u0010\u0016 \u0011\u0018 # + \u001b\u001b \u0011 \u001a\u0015\u0011 \u000f- \u0004\u000e \u0018\u0010 \u0018\u001a \u0011 \u001a\u000f\u0010\u0014\u001a\u0013\u001b \u0016\u0011 \u0007\u001a)\u0018\u000e\u0010\u0014\u000f \u0018\u0010 \u000f\u001a\u0006 \u0015)\u001a\u0011 \u001a\u0014 \u0016\u0011\u0010\u0018 \u0007\u0018 \u0017\u001a\u001b)\u001a\u0013\u001b \u000f \u0018\b\u001a\u0018 \u0012\u000e\u0015\b\u0018 \u0013 \u001a\u0007\u0007 \u000f\u000f\u000e\u0013\u001b )\u0011\u000e\u0014\u0015 \u000f\b\u0010\u0019\u000e\u0014\u0015\u000f \u0010\u0006 \u0018\b \u00033\u0011\u0010\u0016 \u0011\u0018 G \u001a\u0014 \u0004\u000e\u000e \u0018\u0010 \u0010\u0013\u0018\u001a\u000e\u0014 \u000e\u0014\u000f)\u0011\u001a\u0014\u0007 \u0018\u0010 \u0016\u0011\u0010\u0018 \u0007\u0018 \u001a\u0015\u001a\u000e\u0014\u000f\u0018 \u0018\b \u000f \u0011\u000e\u000f \u000f# /\u0011\u0010 \u0011 \u0010 \u000f \u0014\u0010\u0018 \u0012\u001a\u000e\u0014\u0018\u001a\u000e\u0014 \u000e\u0014\u000f)\u0011\u001a\u0014\u0007 \u0018\u0010 \u0016\u0011\u0010\u0018 \u0007\u0018 + \u001b\u001b \u0011# 3 \u0011\u000f\u0010\u0014\u000f \u0017\u000e\u000f\u000e\u0018\u000e\u0014\u0015 \u0018\b 3\u0011\u0010\u0016 \u0011\u0018 \u0012\u001a \u0014\u0010\u0018 \u0013 \u001a\u0019\u001a\u0011 \u0018\b\u001a\u0018 \u0018\b \u0007\u0010)\u001b \u0013 \u0011 \u0007\u0010\u0011 \u0013 \u001a) \u000e\u0010 \u0010\u0011 \u0017\u000e\u000f)\u001a\u001b \u0017\u000e\u0007 \u000f \u000e\u0014\u000f\u0018\u001a\u001b\u001b \u0013 + \u001b\u001b \u0011 \u0004\u000f)\u0007\b \u001a\u000f Q\u0014\u001a\u0014\u0014 \u0007\u001a\u0012\u000fQ \u001a\u0014 \b\u000e \u0014 \u000f \u0007)\u0011\u000e\u0018 \u0007\u001a\u0012 \u0011\u001a\u000f # + \u001b\u001b \u0011 \u000e\u000f \u001a \u0017\u000e\u000f \u0018\u0010 \u0016\u0010\u000f\u0018 \u0014\u0010\u0018\u000e\u0007 \u000e\u000f\u0007\u001b\u0010\u000f\u000e\u0014\u0015 \u0018\b \u000e\u000f\u0018 \u0014\u0007 \u0010\u0006 \u000f \u0007)\u0011\u000e\u0018 \u0017\u000e\u0007 \u000f# --+ \u0013\u0012 \u0010 \u000e\u0013\u0012\u0006 \u000e\u000f\u0004 \u0005\u000f\u0010 \u000f \u0010 \u000e\u0004< \u0010\u0005\u0006\u0005\u000f C \u000e+ \u0005\u0014 \u0010\u0011 \u0011 \u0018\u0010 \u0006\u0006 \u0007\u0018\u000e\u0017 \u001b \u0012\u001a\u0011 \u0018 \u0018\b 3\u0011\u0010\u0016 \u0011\u0018 \u0006\u0010\u0011 \u000f\u001a\u001b \u000e\u0018 \u000e\u000f \u0010\u0006\u0018 \u0014 \u0014 \u0007 \u000f\u000f\u001a\u0011 \u0018\u0010 \u0016\u0011\u0010\u0017\u000e \u0016\b\u0010\u0018\u0010\u0015\u0011\u001a\u0016\b\u000f' \u0017\u000e\u0011\u0018)\u001a\u001b \u0018\u0010)\u0011\u000f \u001a\u0014 \u0010\u0018\b \u0011 \u0012 \u000e\u001a \u0018\u0010 \u0013) \u0011\u000f# + \u001b\u001b \u0011 \u001a\u0015\u0011 \u000f \u0004\u0010\u0011 \u0003\u000e\u0006 \u0007\b \u0007 ' \u0010 \u000f \u0014\u0010\u0018 \u001a\u0015\u0011 \u0018\b\u001a\u0018 /\u0011\u0010 \u0011 \u0012\u001a \u0016\b\u0010\u0018\u0010\u0015\u0011\u001a\u0016\b \u0010\u0011 \u0010\u0018\b \u0011\u0019\u000e\u000f \u001b \u0007\u0018\u0011\u0010\u0014\u000e\u0007\u001a\u001b\u001b \u0007\u001a\u0016\u0018)\u0011 \u000e\u0012\u001a\u0015 \u000f \u0010\u0006 \u0018\b \u0018 \u0011\u000e\u0010\u0011 \u001a\u0014 \u000e\u0014\u0018 \u0011\u000e\u0010\u0011 \u0010\u0006 \u0018\b 3\u0011\u0010\u0016 \u0011\u0018 \u0004A\u0005\u0012\u001a\u0015 \u000fB \u0006\u0010\u0011 \u000f\u0018\u001a\u0018\u000e\u0007 \u001a\u0014 N\u0010\u0011 \u0017\u000e\u0011\u0018)\u001a\u001b \u0018\u0010)\u0011\u000f \u0010\u0006 \u0018\b 3\u0011\u0010\u0016 \u0011\u0018 \u0013 \u0013) \u0011\u000f \u001a\u0014 \u0010\u0018\b \u0011\u000f \u0003\u0006\u0010\u0011 )\u000f \u0010\u0014 /\u0011\u0010 \u0011,\u000f \u0019 \u0013\u000f\u000e\u0018 ' \u0018\b >6+' \u001a\u0014 \u0010\u0018\b \u0011 \u0012\u001a\u0011 \u0018\u000e\u0014\u0015 \u0012\u001a\u0018 \u0011\u000e\u001a\u001b\u000f \u001a\u0014 \u000f\u000e\u0018 \u000f# + \u001b\u001b \u0011 \u001a\u0007 \u0014\u0010\u0019\u001b \u0015 \u000f \u0018\b\u001a\u0018 \u0010\u0014\u0007 \u0005\u0012\u001a\u0015 \u000f \u001a\u0011 \u0016\u001b\u001a\u0007 \u0010\u0014 \u0018\b \u0005\u0014\u0018 \u0011\u0014 \u0018 \u0014 \u000e\u0018\b \u0011 /\u0011\u0010 \u0011 \u0014\u0010\u0011 + \u001b\u001b \u0011 \b\u001a\u000f \u0007\u0010\u0014\u0018\u0011\u0010\u001b \u0010\u0017 \u0011 \u0019\b\u0010 \u0007\u001a\u0014 \u0017\u000e \u0019 \u000f)\u0007\b \u0005\u0012\u001a\u0015 \u000f \u001a\u0014 \u0019\b\u001a\u0018 )\u000f \u0017\u000e \u0019 \u0011\u000f \u0012\u001a \u0012\u001a \u0010\u0006 \u0018\b \u0005\u0012\u001a\u0015 \u000f' \u0010\u0011 \b\u0010\u0019 \u001b\u0010\u0014\u0015 \u000f)\u0007\b \u0005\u0012\u001a\u0015 \u000f \u0012\u001a \u0011 \u0012\u001a\u000e\u0014 \u001a\u0017\u001a\u000e\u001b\u001a\u0013\u001b \u0010\u0014 \u0018\b \u0005\u0014\u0018 \u0011\u0014 \u0018# + \u001b\u001b \u0011 \u0006)\u0011\u0018\b \u0011 \u001a\u000f\u000f\u000e\u0015\u0014\u000f \u001a\u0014 \u0011\u000e\u0015\b\u0018\u000f \u000e\u0014 \u001a\u001b\u001b \u0005\u0012\u001a\u0015 \u000f \u0018\u0010 \u0018\b /\u0011\u0010 \u0011 \u001a\u0014 \u001a\u0015\u0011 \u000f \u0018\b\u001a\u0018 \u000f)\u0007\b \u0005\u0012\u001a\u0015 \u000f \u001a\u0011 \u0018\b \u0016\u0011\u0010\u0016 \u0011\u0018 \u0010\u0006 /\u0011\u0010 \u0011 \u001a\u0014 \u0018\b\u001a\u0018 /\u0011\u0010 \u0011 \u0012\u001a )\u000f \u000f)\u0007\b \u0005\u0012\u001a\u0015 \u000f \u0006\u0010\u0011 \u001a \u0017 \u0011\u0018\u000e\u000f\u000e\u0014\u0015' \u000e\u0014\u0007\u001b) \u000e\u0014\u0015 \u0016\u0010\u000f\u0018 \u000f\u001a\u001b \u001a\u0014 \u0006\u0010\u0011 /\u0011\u0010 \u0011,\u000f \u0013)\u000f\u000e\u0014 \u000f\u000f \u000e\u0014 \u0018\b \u0006)\u0018)\u0011 # \u001a+ + \u001b\u001b \u0011 \u001a\u0007 \u0014\u0010\u0019\u001b \u0015 \u000f \u0018\b\u001a\u0018 \u0016\u0011\u0010\u000f\u0016 \u0007\u0018\u000e\u0017 \u0013) \u0011\u000f \u001a\u0014 N\u0010\u0011 \u0010\u0018\b \u0011 \u0016 \u0011\u000f\u0010\u0014\u000f \u0007\u0010\u0012\u000e\u0014\u0015 \u0010\u0014\u0018\u0010 \u0018\b \u0016\u0011\u0010\u0016 \u0011\u0018 \u0012\u001a \u0018\u001a \u0016\b\u0010\u0018\u0010\u0015\u0011\u001a\u0016\b\u000f' \u0017\u000e \u0010\u000f \u0010\u0011 \u0010\u0018\b \u0011 \u000e\u0012\u001a\u0015 \u000f \u0010\u0006 \u0018\b \u0016\u0011\u0010\u0016 \u0011\u0018 # + \u001b\u001b \u0011 )\u0014 \u0011\u000f\u0018\u001a\u0014 \u000f \u0018\b\u001a\u0018 /\u0011\u0010 \u0011 \u0010 \u000f \u0014\u0010\u0018 \b\u001a\u0017 \u0018\b \u001a\u0013\u000e\u001b\u000e\u0018 \u0018\u0010 \u0007\u0010\u0014\u0018\u0011\u0010\u001b \u0010\u0011 \u0013\u001b\u0010\u0007 \u0018\b \u0018\u001a \u000e\u0014\u0015 \u001a\u0014 )\u000f \u0010\u0006 \u0005\u0012\u001a\u0015 \u000f \u0013 \u001a\u0014 \u000f)\u0007\b \u0016 \u0011\u000f\u0010\u0014\u000f# \u0004\u0005\u0006 \u0007\b \u0007 \u0003+ \u001b\u001b \u0011 \u000e\u0014\u000f\u0018\u0011)\u0007\u0018\u000f /\u0011\u0010 \u0011 \u0018\u0010 \u0016)\u0013\u001b\u000e\u000f\b \u000e\u0014 \u0018\b >6+ \u0018\b\u001a\u0018 \u0018\u001a \u000e\u0014\u0015 \u0010\u0006 \u0005\u0012\u001a\u0015 \u000f \u000e\u000f \u001b\u000e\u0012\u000e\u0018 \u0018\u0010 \u0018\b\u0010\u000f \u0016 \u0011\u000f\u0010\u0014\u000f \u0016\u0011 \u0016\u001a\u0011\u000e\u0014\u0015 *\u0016\u0016\u0011\u001a\u000e\u000f\u001a\u001b \u0010\u0011 \u0005\u0014\u000f\u0016 \u0007\u0018\u000e\u0010\u0014 \u0011 \u0016\u0010\u0011\u0018\u000f# + \u001b\u001b \u0011 \u001a\u0007 \u0014\u0010\u0019\u001b \u0015 \u000f \u0018\b\u001a\u0018 )\u0014\u001a)\u0018\b\u0010\u0011\u000e= \u0016 \u0011\u000f\u0010\u0014\u000f \u0012\u001a \u0018\u001a \u000e\u0012\u001a\u0015 \u000f \u0019\b\u0010 \u0010 \u0014\u0010\u0018 \b\u001a\u0017 \u001a\u0007\u0007 \u000f\u000f \u0018\u0010 \u0010\u0011 \b\u001a\u0017 \u0014\u0010\u0018 \u0011 \u001a \u001a\u0014 \u001b\u000e\u0012\u000e\u0018\u000e\u0014\u0015 \u000e\u0014\u000f\u0018\u0011)\u0007\u0018\u000e\u0010\u0014 \u000e\u0014 \u0018\b >6+ \u0010\u0011 \u0019\b\u0010 \u0018\u001a \u000e\u0012\u001a\u0015 \u000f \u0011 \u0015\u001a\u0011 \u001b \u000f\u000f \u0010\u0006 \u001a\u0014 \u001b\u000e\u0012\u000e\u0018\u000e\u0014\u0015 \u000e\u0014\u000f\u0018\u0011)\u0007\u0018\u000e\u0010\u0014 \u000e\u0014 \u0018\b >6+# 1\u0014\u0007 \u0005\u0012\u001a\u0015 \u000f \u001a\u0011 \u0018\u001a \u0014 \u001a\u0014 N\u0010\u0011 \u0016)\u0018 \u000e\u0014\u0018\u0010 \u001b \u0007\u0018\u0011\u0010\u0014\u000e\u0007 \u000e\u000f\u0016\u001b\u001a \u0010\u0014 \u0018\b \u0005\u0014\u0018 \u0011\u0014 \u0018 \u0010\u0011 \u0010\u0018\b \u0011\u0019\u000e\u000f ' \u0014 \u000e\u0018\b \u0011 /\u0011\u0010 \u0011 \u0014\u0010\u0011 + \u001b\u001b \u0011 \b\u001a\u000f \u0007\u0010\u0014\u0018\u0011\u0010\u001b \u0010\u0017 \u0011 \u0019\b\u0010 \u0017\u000e \u0019\u000f \u000f)\u0007\b \u0005\u0012\u001a\u0015 \u000f \u0014\u0010\u0011 \u0019\b\u001a\u0018 )\u000f \u0017\u000e \u0019 \u0011\u000f \u0012\u001a \u0012\u001a \u0010\u0006 \u0018\b \u0005\u0012\u001a\u0015 \u000f# -.+ ; \u0011\u0006\u000e /\b \u0007;\u001a GC * \u000f\u001a\u0006 N\u001b\u0010\u0007 \u0013\u0010 \u000e\u000f \u000f\u000e\u0015\u0014 \u0018\u0010 \b\u0010\u001b \u001a \u0018\u0010 \u0018\b 3\u0011\u0010\u0016 \u0011\u0018 \u0018\u0010 \u0016 \u0011\u0012\u000e\u0018 \u001a\u0007\u0007 \u000f\u000f \u0018\u0010 \u0018\b 3\u0011\u0010\u0016 \u0011\u0018 \u0013 /\u0011\u0010 \u0011' \u0007\u0010\u0010\u0016 \u0011\u001a\u0018\u000e\u0014\u0015 \u0013\u0011\u0010 \u0011\u000f' >6+ \u0016\u001a\u0011\u0018\u000e\u0007\u000e\u0016\u001a\u0014\u0018\u000f' \u0018\b \u000e\u0011 \u001a)\u0018\b\u0010\u0011\u000e= \u001b\u000e\u0007 \u0014\u000f \u000f \u001a\u0014 \u0011 \u0016\u0011 \u000f \u0014\u0018\u001a\u0018\u000e\u0017 \u000f' \u001a)\u0018\b\u0010\u0011\u000e= \u000e\u0014\u000f\u0016 \u0007\u0018\u0010\u0011\u000f' \u001a\u0014 \u001a\u0007\u0007\u0010\u0012\u0016\u001a\u0014\u000e \u0016\u0011\u0010\u000f\u0016 \u0007\u0018\u000e\u0017 \u0013) \u0011\u000f# /\u0011\u0010 \u0011' \u0007\u0010\u0010\u0016 \u0011\u001a\u0018\u000e\u0014\u0015 \u0013\u0011\u0010 \u0011\u000f' >6+ \u001a\u0014 *\u000f\u000f\u0010\u0007\u000e\u001a\u0018\u000e\u0010\u0014\u000fN/\u0010\u001a\u0011 \u000f \u0010\u0006 72*6 17+< \u001a\u0011 \u0014\u0010\u0018 \u000e\u0014\u000f)\u0011 \u0011\u000f \u001a\u0015\u001a\u000e\u0014\u000f\u0018 \u000e\u0014&)\u0011 ' \u0018\b \u0006\u0018' \u001b\u0010\u000f\u000f' \u0017\u001a\u0014 \u001a\u001b\u000e\u000f\u0012 \u0010\u0011 \u001a\u0012\u001a\u0015 \u001a\u0018\u0018\u0011\u000e\u0013)\u0018 \u0018\u0010 \u0018\b )\u000f \u0010\u0006 \u001a \u000f\u001a\u0006 N\u001b\u0010\u0007 \u0013\u0010 # + \u001b\u001b \u0011 \u0010 \u000f \u0004\u0010\u0011 \u000e\u0006 \u0007\b \u0007 \u0003 \u0010 \u000f \u0014\u0010\u0018 \u001a)\u0018\b\u0010\u0011\u000e= /\u0011\u0010 \u0011 \u0018\u0010 \u000e\u0014\u000f\u0018\u001a\u001b\u001b \u001a \u000f\u001a\u0006 N\u001b\u0010\u0007 \u0013\u0010 # \u0005\u0006 + \u001b\u001b \u0011 \u0010 \u000f \u0014\u0010\u0018 \u0010\u0007\u0007)\u0016 \u0018\b 3\u0011\u0010\u0016 \u0011\u0018 ' + \u001b\u001b \u0011 \u000f\b\u001a\u001b\u001b \u0013 \u0011 \u000f\u0016\u0010\u0014\u000f\u000e\u0013\u001b \u0006\u0010\u0011 \u0010\u0013\u0018\u001a\u000e\u0014\u000e\u0014\u0015 \u0010\u0007\u0007)\u0016\u001a\u0014\u0018\u0004\u000f , \u0019\u0011\u000e\u0018\u0018 \u0014 \u0016 \u0011\u0012\u000e\u000f\u000f\u000e\u0010\u0014 \u0006\u0010\u0011 )\u000f \u0010\u0006 \u001a \u000f\u001a\u0006 N\u001b\u0010\u0007 \u0013\u0010 \u0004 #*#7# .\u0010\u0011\u0012 K6* # -8+ \u0006\u0005 \u000fC + \u001b\u001b \u0011 \u0010 \u000f \u0004\u0010\u0011 \u000e\u0006 \u0007\b \u0007 \u0003 \u0010 \u000f \u0014\u0010\u0018 \u001a)\u0018\b\u0010\u0011\u000e= /\u0011\u0010 \u0011 \u0018\u0010 \u000e\u0014\u000f\u0018\u001a\u001b\u001b \u001a .17 +*62N+160 \u000f\u000e\u0015\u0014 \u0010\u0014 \u0018\b 3\u0011\u0010\u0016 \u0011\u0018 # -9+ J \u000e\b \u0012 \u0006\u0005\u000f \u0013\u0013 \u0010 \u000f\u0005\u0010\u0011C \b 3\u0011\u0010\u0016 \u0011\u0018 \u000e\u000f \u0010\u0006\u0006 \u0011 \u000e\u0014 \u0007\u0010\u0012\u0016\u001b\u000e\u001a\u0014\u0007 \u0019\u000e\u0018\b \u0006 \u0011\u001a\u001b' \u000f\u0018\u001a\u0018 \u001a\u0014 \u001b\u0010\u0007\u001a\u001b \u001a\u0014\u0018\u000e9 \u000e\u000f\u0007\u0011\u000e\u0012\u000e\u0014\u001a\u0018\u000e\u0010\u0014 \u001b\u001a\u0019\u000f# -@+ \u000e\u0010\u0010 \u000f \u0011 \u0006C \u0005\u0014 \u001a\u0014 \u001a\u0007\u0018\u000e\u0010\u0014' \u0016\u0011\u0010\u0007 \u000e\u0014\u0015 \u0010\u0011 \u001a\u0011\u0013\u000e\u0018\u0011\u001a\u0018\u000e\u0010\u0014 \u0013 \u0018\u0019 \u0014 + \u001b\u001b \u0011 \u001a\u0014 /\u0011\u0010 \u0011 \u0018\u0010 \u0014\u0006\u0010\u0011\u0007 \u0018\b \u0007\u0010\u0012\u0016 \u0014\u000f\u001a\u0018\u000e\u0010\u0014 \u0016\u0011\u0010\u0017\u000e\u000f\u000e\u0010\u0014\u000f \u0010\u0006 \u0018\b\u000e\u000f *\u0015\u0011 \u0012 \u0014\u0018' \u0018\b \u0016\u0011 \u0017\u001a\u000e\u001b\u000e\u0014\u0015 + \u001b\u001b \u0011 \u0010\u0011 /\u0011\u0010 \u0011 \u000f\b\u001a\u001b\u001b \u0013 \u0014\u0018\u000e\u0018\u001b \u0018\u0010 \u0011 \u001a\u000f\u0010\u0014\u001a\u0013\u001b \u001a\u0018\u0018\u0010\u0011\u0014 \u0006 \u000f \u001a\u0014 \u0007\u0010\u000f\u0018\u000f \u0006\u0011\u0010\u0012 \u0018\b \u0014\u0010\u00149\u0016\u0011 \u0017\u001a\u000e\u001b\u000e\u0014\u0015 + \u001b\u001b \u0011 \u0010\u0011 /\u0011\u0010 \u0011' \u0007 \u0016\u0018 \u001a\u000f \u0016\u0011\u0010\u0017\u000e \u000e\u0014 \u0016\u001a\u0011\u001a\u0015\u0011\u001a\u0016\b $\"*# ->+ \u000e\u0004\u0004\u0005\u0010\u0005 \u000f\u000e\b \u0010 A\u0006C \u0003721 * \u0017\u000e\u000f\u0010\u0011 6\u000e\u000f\u0018\u000e\u0014\u0015 \u0004 #*#7# .\u0010\u0011\u0012 7216 \u0003+\b\u0010\u0011\u0018 +\u001a\u001b \u0005\u0014\u0006\u0010\u0011\u0012\u001a\u0018\u000e\u0010\u0014 \u001a\u0014 * \u0017\u000e\u000f\u0010\u0011 \u0004 #*#7# .\u0010\u0011\u0012 ++\u0005* \u0003 \u0011)\u000f\u0018 * \u0017\u000e\u000f\u0010\u0011 \u0004 #*#7# .\u0010\u0011\u0012 * \u0003+ \u001b\u001b \u0011 \u000e\u0014\u0018 \u0014 \u000f \u0018\u0010 \u000e\u0014\u0007\u001b) \u001a \u0007\u0010\u0014\u0018\u000e\u0014\u0015 \u0014\u0007 \u0018\u0010 \u0016)\u0011\u0007\b\u001a\u000f \u001a \u0011 \u0016\u001b\u001a\u0007 \u0012 \u0014\u0018 \u0016\u0011\u0010\u0016 \u0011\u0018 \u001a\u000f \u0016\u001a\u0011\u0018 \u0010\u0006 \u001a\u0014 \u0011 \u000f)\u001b\u0018\u000e\u0014\u0015 \u0018\u0011\u001a\u0014\u000f\u001a\u0007\u0018\u000e\u0010\u0014 -6+ A\u000e\u000f\u000e A \u000f\u0010 \u000e\u0013\u0013 <\u000e\bC \u0005\u0006 \u001a\u0014 \u001a\u000f\u000f\u0010\u0007\u000e\u001a\u0018 9\u001b\u000e\u0007 \u0014\u000f \u000e\u0014 /\u0011\u0010 \u0011,\u000f \u0010\u0006\u0006\u000e\u0007 \u0004\u000f\u001a\u001b \u000f\u0016 \u0011\u000f\u0010\u0014 \u0010\u0011 \u0013\u0011\u0010 \u00119\u001a\u000f\u000f\u0010\u0007\u000e\u001a\u0018 \u0014\u0018 \u0011\u000f \u000e\u0014\u0018\u0010 \u0018\b\u000e\u000f *\u0015\u0011 \u0012 \u0014\u0018 \u0010\u0014 /\u0011\u0010 \u0011,\u000f \u0013 \b\u001a\u001b\u0006' \u001a\u0014 /\u0011\u0010 \u0011 \u0010\u0011 >\u001a\u0014\u001a\u0015 \u0011 \u0010 \u000f \u0014\u0010\u0018 \u001a\u0016\u0016\u0011\u0010\u0017 \u0010\u0006 \u000e\u0018\u000f \u0018 \u0011\u0012\u000f' /\u0011\u0010 \u0011 \u0010\u0011 >\u001a\u0014\u001a\u0015 \u0011 \b\u001a\u000f \u0018\b \u0011\u000e\u0015\b\u0018 \u0018\u0010 \u0007\u001a\u0014\u0007 \u001b \u0018\b\u000e\u000f *\u0015\u0011 \u0012 \u0014\u0018'\u0003\u000e\u0014 \u0019\u0011\u000e\u0018\u000e\u0014\u0015' \u0019\u000e\u0018\b\u000e\u0014 @ \u0004 (\u0019 *\u0006\u0018 \u0011 \u000e\u0018\u000f \u0007)\u0018\u000e\u0010\u0014# -0+ \u0006 \u0007\u0007 \u0006\u0006 \u0006 \u000e\u000f\u0004 \u000e\u0006\u0006\u0005 \u000f\u0006C \b\u000e\u000f *\u0015\u0011 \u0012 \u0014\u0018 \u000f\b\u001a\u001b\u001b \u0013 \u0013\u000e\u0014 \u000e\u0014\u0015 )\u0016\u0010\u0014 + \u001b\u001b \u0011 \u001a\u0014 + \u001b\u001b \u0011,\u000f \u000f)\u0007\u0007 \u000f\u000f\u0010\u0011\u000f \u001a\u0014 \u001a\u000f\u000f\u000e\u0015\u0014\u000f# -7+ \u0004\u0005\u0006\u0013 \u0010 \u0006 \b \u0010\u0005 \u000fC \u000e+ A \u0004\u0005\u000e\u0010\u0005 \u000fC + \u001b\u001b \u0011 \u001a\u0014 /\u0011\u0010 \u0011 \u001a\u0015\u0011 \u0018\u0010 \u0012 \u000e\u001a\u0018 \u001a\u0014 \u000e\u000f\u0016)\u0018 \u0010\u0011 \u0007\u001b\u001a\u000e\u0012 \u001a\u0011\u000e\u000f\u000e\u0014\u0015 \u0013 \u0018\u0019 \u0014 \u0018\b \u0012 \u0011 \u0015\u001a\u0011 \u000e\u0014\u0015 \u0018\b \u0010\u0013\u001b\u000e\u0015\u001a\u0018\u000e\u0010\u0014 \u0018\u0010 \u0016\u001a \u0007\u0010\u0012\u0016 \u0014\u000f\u001a\u0018\u000e\u0010\u0014 )\u0014 \u0011 \u0018\b\u000e\u000f *\u0015\u0011 \u0012 \u0014\u0018' \u0013 \u0006\u0010\u0011 \u0011 \u000f\u0010\u0011\u0018\u000e\u0014\u0015 \u0018\u0010 \u001a\u0011\u0013\u000e\u0018\u0011\u001a\u0018\u000e\u0010\u0014 \u0010\u0011 \u0007\u0010)\u0011\u0018 \u001a\u0007\u0018\u000e\u0010\u0014# > \u000e\u001a\u0018\u000e\u0010\u0014 \u0006 \u000f' \u000e\u0006 \u001a\u0014 ' \u000f\b\u001a\u001b\u001b \u0013 \u000e\u0017\u000e 5)\u001a\u001b\u001b \u001a\u0012\u0010\u0014\u0015 \u0018\b \u0016\u001a\u0011\u0018\u000e \u000f \u000e\u0014\u0017\u0010\u001b\u0017 # \u0005\u0006' \u0006\u0010\u0011 \u001a\u0014 \u000e\u000f\u0016)\u0018 \u0010\u0011 \u0007\u001b\u001a\u000e\u0012 \u0018\u0010 \u0019\b\u000e\u0007\b \u0018\b\u000e\u000f \u0016\u001a\u0011\u001a\u0015\u0011\u001a\u0016\b \u001a\u0016\u0016\u001b\u000e \u000f' \u001a\u0014 \u0016\u001a\u0011\u0018 \u0004\u000e \u0007\u0010\u0012\u0012 \u0014\u0007 \u000f \u001a\u0014 \u001a\u0007\u0018\u000e\u0010\u0014 \u0019\u000e\u0018\b\u0010)\u0018 \u0006\u000e\u0011\u000f\u0018 \u001a\u0018\u0018 \u0012\u0016\u0018\u000e\u0014\u0015 \u0018\u0010 \u0011 \u000f\u0010\u001b\u0017 \u0018\b \u0012\u001a\u0018\u0018 \u0011 \u0018\b\u0011\u0010)\u0015\b \u0012 \u000e\u001a\u0018\u000e\u0010\u0014' \u0010\u0011 \u0004\u000e\u000e \u0013 \u0006\u0010\u0011 \u0007\u0010\u0012\u0012 \u0014\u0007 \u0012 \u0014\u0018 \u0010\u0006 \u001a\u0014 \u001a\u0007\u0018\u000e\u0010\u0014' \u0011 \u0006)\u000f \u000f \u0018\u0010 \u0012 \u000e\u001a\u0018 \u001a\u0006\u0018 \u0011 \u001a \u0011 5) \u000f\u0018 \b\u001a\u000f \u0013 \u0014 \u0012\u001a ' \u0018\b \u0014 \u0018\b\u001a\u0018 \u0016\u001a\u0011\u0018 \u000f\b\u001a\u001b\u001b \u0014\u0010\u0018 \u0013 \u0014\u0018\u000e\u0018\u001b \u0018\u0010 \u0011 \u0007\u0010\u0017 \u0011 \u001a\u0018\u0018\u0010\u0011\u0014 \u0006 \u000f' \u0017 \u0014 \u000e\u0006 \u0018\b \u0019\u0010)\u001b \u0010\u0018\b \u0011\u0019\u000e\u000f \u0013 \u001a\u0017\u001a\u000e\u001b\u001a\u0013\u001b \u0018\u0010 \u0018\b\u001a\u0018 \u0016\u001a\u0011\u0018 \u000e\u0014 \u001a\u0014 \u000f)\u0007\b \u001a\u0007\u0018\u000e\u0010\u0014# E1\u0016%\u0019 \u001b3\u0019 2\u0017\u001b!",
"\") \u0019 !\u0015& \" \u001b3 \u0017\u0015\u0015!\u00153\" \u0017\u0015 \u00194\u00151 2 \u0015& 3 4 \u0017 \u0017 4) -7\u001a+ + \u001b\u001b \u0011,\u000f \u0005\u0014\u000e\u0018\u000e\u001a\u001b\u000f \u0004 \u0004 \b\u000e <\u0005\u0006 \u0004 -./-0 \u0014\u0013\u000e 9 @# \u0006\u0005\u0004 \u000f\u0010\u0005\u000e\b \b\u0005\u0006\u0010\u0005\u000f \u000e A \u000f\u0010 B G\u0007\b \u0006\u0005< \u0014 \b\u000e \u0013\u000e 9 @# \u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u00033\u0011\u0010 )\u0007 \u0019\u000e\u0018\b =\u000e\u0016.\u0010\u0011\u0012< \u0013 =\u000e\u00166\u0010\u0015\u000e \u0003$; ! .\u000e\u0006\u0018 \u0014 >\u000e\u001b 7\u0010\u001a ' .\u0011\u001a\u000f \u0011' >\u000e\u0007\b\u000e\u0015\u001a\u0014 ? ; @ \u0003\u0003\u0003\u0019\u0019\u0019#=\u000e\u00166\u0010\u0015\u000e #\u0007\u0010\u0012 \u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003 \u0016\u0013\u00030HUOLQ\u0003&W 'RFX6LJQ\u0003(QYHORSH\u0003,' \u0003\u0015\u0015'($\u0017\u0015\u0018\u0010\u001a %$\u0010\u0017\u0014(\u0017\u0010\u001b\u001b%)\u0010\u0017\u0017\u0013$\u0017$\u0016('\u0015\u001a\u0019 Filed 09/12/19 Case 19-21640 Doc 113 3\u0011\u0010\u0016 \u0011\u0018 * \u0011 \u000f\u000f- 30 Merlin Ct. , Oakland, CA 94605-5624 \u00030\u001a\u0018 - 08/28/2019 \u001a+ \u000e\u0004\u0004\u0005\u0010\u0005 \u000f\u000e\b A \u0004\u0005\u000e\u0010\u0005 \u000f \u0010 A\u0006C \u0010)\u0015 2\u001b\u0016\u0016\u001bD 3 ! \"\"\u0015\u0017\u0019 \u0019) \u0016\u0016 '\u0015 \u0015E1\u0016%&\u0015& 2\u0017\u001b! !\u0015& \" \u001b3C \u0014 # ?%& 1 \u0016 \u001b\u0017 3\u001b3B ?%& 1 \u0016 2\u001b\u0017\u00151\u0016\u001b\u0019%\u0017\u0015 \u001b\u0017 \u001b\")\u0015\u0017 1\" \u001b3 \u001b\u0017 4\u0017\u001b1\u0015\u0015& 3 \"\u001b \u001532\u001b\u00171\u0015 &\u0015\u0015& \u001b2 \"\u0017%\u0019\", !\u001b\u0017\" \u0015 \u001b\u0017 3\u0019\" \u0016\u0016!\u00153\" \u0016 3& \u0019 \u0016\u0015 1\u001b3\"\u0017 1\" \u0019 &\u00152 3\u0015& 3 \u0007 * \u0016 \u0007\u001b&\u0015 K.70@H \u0014 # 3 %3\u0016 D2%\u0016 &\u0015\" 3\u0015\u0017 1\" \u001b3H \u0014 # \")\u0015 2 \u0016 3 \u001b\u0017 \u001532\u001b\u00171\u0015!\u00153\" \u001b2 !\u00151) 3 1\u0018\u0019 \u0016 \u00153H 3& \u0014 *# 3( !",
"\"\"\u0015\u0017 \") \" \u0019 D \") 3 \")\u0015 ?%\u0017 \u0019& 1\" \u001b3 \u001b2 4\u0017\u001b' \"\u0015, \u0019!",
"\u0016\u0016 1\u0016 !\u0019 \u001b\u0017 ' 3 \u0017%4\"1( 1\u001b%\u0017\"+ \u0010)\u0015 2 \u0016 3 \u001b2 1\u001b%\u0017\" 1\" \u001b3 \"\u001b \u00153 '\u0016\u0015 \")\u0015 \u0017\u00151\u001b\u0017& 3 \u001b2 3\u001b\" 1\u0015 \u001b2 4\u00153& 3 1\" \u001b3, 2\u001b\u0017 \u001b\u0017&\u0015\u0017 \u001b2 \"\" 1)!\u00153\", \u0017\u00151\u0015 *\u0015\u0017\u0019) 4, 3?%31\" \u001b3, \u001b\u0017 \u001b\")\u0015\u0017 4\u0017\u001b* \u0019 \u001b3 \u0016 \u0017\u0015!\u0015& \u0015\u0019, \u0019) \u0016\u0016 3\u001b\" 1\u001b3\u0019\" \"%\"\u0015 D *\u0015\u0017 \u001b\u0017 * \u001b\u0016 \" \u001b3 \u001b2 \")\u0015 !\u0015& \" \u001b3 4\u0017\u001b* \u0019 \u001b3\u0019+ \u0007+ \u000e\u0004<\u0005\u0006 \u0011C \u0005\u0006 + \u001b\u001b \u0011 \u001a\u0014 /\u0011\u0010 \u0011 \u000f\u000e\u0011 \u0018\u0010 \u0011 \u000f\u0010\u001b\u0017 \u000e\u000f\u0016)\u0018 \u000f \u001a\u0011\u000e\u000f\u000e\u0014\u0015 \u0013 \u0018\u0019 \u0014 \u0018\b \u0012 \u0018\b\u0011\u0010)\u0015\b \u001a\u0011\u0013\u000e\u0018\u0011\u001a\u0018\u000e\u0010\u0014 \u0011\u001a\u0018\b \u0011 \u0018\b\u001a\u0014 \u0007\u0010)\u0011\u0018' \u0018\b \u0007\u001a\u0014 \u0010\u0007)\u0012 \u0014\u0018 \u0018\b \u000e\u0011 \u001a\u0015\u0011 \u0012 \u0014\u0018 \u0013 \u001a\u0018\u0018\u001a\u0007\b\u000e\u0014\u0015 \u001a\u0014 \u000f\u000e\u0015\u0014\u000e\u0014\u0015 \u001a\u0014 *\u0011\u0013\u000e\u0018\u0011\u001a\u0018\u000e\u0010\u0014 *\u0015\u0011 \u0012 \u0014\u0018 \u0004 #*#7# .\u0010\u0011\u0012 *7/ # .5+ \u000f\u0010\u0005 \u000e A \u000f\u0010C *\u001b\u001b \u0016\u0011\u000e\u0010\u0011 \u000e\u000f\u0007)\u000f\u000f\u000e\u0010\u0014\u000f' \u0014 \u0015\u0010\u0018\u000e\u001a\u0018\u000e\u0010\u0014\u000f \u001a\u0014 \u001a\u0015\u0011 \u0012 \u0014\u0018\u000f \u0013 \u0018\u0019 \u0014 \u0018\b \u0016\u001a\u0011\u0018\u000e \u000f \u0007\u0010\u0014\u0007 \u0011\u0014\u000e\u0014\u0015 \u0018\b \u000f)\u0013& \u0007\u0018 \u0012\u001a\u0018\u0018 \u0011 \u0010\u0006 \u0018\b\u000e\u000f *\u0015\u0011 \u0012 \u0014\u0018 \u001a\u0011 \u000f)\u0016 \u0011\u000f \u0013 \u0018\b\u000e\u000f *\u0015\u0011 \u0012 \u0014\u0018' \u0019\b\u000e\u0007\b \u0007\u0010\u0014\u000f\u0018\u000e\u0018)\u0018 \u000f \u0018\b \u0014\u0018\u000e\u0011 \u0007\u0010\u0014\u0018\u0011\u001a\u0007\u0018 \u001a\u0014 \u001a \u0007\u0010\u0012\u0016\u001b \u0018 \u001a\u0014 \u0007\u001b)\u000f\u000e\u0017 \u0016\u0011 \u000f\u000f\u000e\u0010\u0014 \u0010\u0006 \u0018\b \u000e\u0011 \u001a\u0015\u0011 \u0012 \u0014\u0018' \u001a\u0014 \u0012\u001a \u0014\u0010\u0018 \u0013 \u0007\u0010\u0014\u0018\u0011\u001a \u000e\u0007\u0018 \u0013 \u0017\u000e \u0014\u0007 \u0010\u0006 \u001a\u0014 \u0016\u0011\u000e\u0010\u0011 \u001a\u0015\u0011 \u0012 \u0014\u0018 \u0010\u0011 \u0007\u0010\u0014\u0018 \u0012\u0016\u0010\u0011\u001a\u0014 \u0010)\u000f \u0010\u0011\u001a\u001b \u001a\u0015\u0011 \u0012 \u0014\u0018# \u0005\u0006 \u001a\u0014 \u0016\u0011\u0010\u0017\u000e\u000f\u000e\u0010\u0014 \u0010\u0006 \u0018\b\u000e\u000f *\u0015\u0011 \u0012 \u0014\u0018 \u000e\u000f \b \u001b \u0018\u0010 \u0013 \u000e\u0014 \u0006\u0006 \u0007\u0018\u000e\u0017 \u0010\u0011 \u000e\u0014\u0017\u001a\u001b\u000e ' \u0018\b \u0011 \u0012\u001a\u000e\u0014\u000e\u0014\u0015 \u0016\u0011\u0010\u0017\u000e\u000f\u000e\u0010\u0014\u000f \u0019\u000e\u001b\u001b \u0014 \u0017 \u0011\u0018\b \u001b \u000f\u000f \u0013 \u0015\u000e\u0017 \u0014 \u0006)\u001b\u001b \u0006\u0010\u0011\u0007 \u001a\u0014 \u0006\u0006 \u0007\u0018# \b\u000e\u000f *\u0015\u0011 \u0012 \u0014\u0018 \u001a\u0014 \u001a\u0014 \u000f)\u0016\u0016\u001b \u0012 \u0014\u0018' \u001a \u0014 )\u0012 \u0010\u0011 \u0012\u0010 \u000e\u0006\u000e\u0007\u001a\u0018\u000e\u0010\u0014' \u000e\u0014\u0007\u001b) \u000e\u0014\u0015 \u001a\u0014 \u0016\b\u0010\u0018\u0010\u0007\u0010\u0016 \u0010\u0011 \u0006\u001a\u0007\u000f\u000e\u0012\u000e\u001b ' \u0012\u001a \u0013 \u0007)\u0018 \u000e\u0014 \u0007\u0010)\u0014\u0018 \u0011\u0016\u001a\u0011\u0018\u000f# .-+ :\u000f \u0006\u0012\u0005\u0013, \u0010\u0005\u0010\b \u000e\u000f\u0004 \u000e \u0010\u0012 \u0005\u0010\u0011C + \u001b\u001b \u0011 \u0019\u001a\u0011\u0011\u001a\u0014\u0018\u000f \u0018\b\u001a\u0018- \u0004\u000e + \u001b\u001b \u0011 \u000e\u000f \u0018\b \u0010\u0019\u0014 \u0011 \u0010\u0006 \u0018\b 3\u0011\u0010\u0016 \u0011\u0018 G \u0004\u000e\u000e \u0014\u0010 \u0010\u0018\b \u0011 \u0016 \u0011\u000f\u0010\u0014\u000f \u0010\u0011 \u0014\u0018\u000e\u0018\u000e \u000f \b\u001a\u0017 \u0018\u000e\u0018\u001b \u0018\u0010 \u0018\b 3\u0011\u0010\u0016 \u0011\u0018 G \u001a\u0014 \u0004\u000e\u000e\u000e + \u001b\u001b \u0011 \b\u001a\u000f \u0018\b \u001a)\u0018\b\u0010\u0011\u000e\u0018 \u0018\u0010 \u0013\u0010\u0018\b \u0007)\u0018 \u0018\b\u000e\u000f *\u0015\u0011 \u0012 \u0014\u0018 \u001a\u0014 \u000f \u001b\u001b \u0018\b 3\u0011\u0010\u0016 \u0011\u0018 # 2 \u0007 \u0016\u0018\u000e\u0010\u0014\u000f \u0018\u0010 \u0010\u0019\u0014 \u0011\u000f\b\u000e\u0016' \u0018\u000e\u0018\u001b \u001a\u0014 \u001a)\u0018\b\u0010\u0011\u000e\u0018 \u001a\u0011 \u001a\u000f \u0006\u0010\u001b\u001b\u0010\u0019\u000f- # 72372+2E * \u0005H2 *3* \u0005 4- \u0003 \b\u000e\u000f 6\u000e\u000f\u0018\u000e\u0014\u0015 *\u0015\u0011 \u0012 \u0014\u0018 \u000e\u000f \u0013 \u000e\u0014\u0015 \u000f\u000e\u0015\u0014 \u0006\u0010\u0011 + \u001b\u001b \u0011 \u0013 \u001a\u0014 \u000e\u0014 \u000e\u0017\u000e )\u001a\u001b \u001a\u0007\u0018\u000e\u0014\u0015 \u000e\u0014 \u001a 7 \u0016\u0011 \u000f \u0014\u0018\u001a\u0018\u000e\u0017 \u001a\u0016\u001a\u0007\u000e\u0018 \u001a\u000f \u000f\u0016 \u0007\u000e\u0006\u000e \u000e\u0014 \u0018\b \u001a\u0018\u0018\u001a\u0007\b 7 \u0016\u0011 \u000f \u0014\u0018\u001a\u0018\u000e\u0017 \u001a\u0016\u001a\u0007\u000e\u0018 +\u000e\u0015\u0014\u001a\u0018)\u0011 0\u000e\u000f\u0007\u001b\u0010\u000f)\u0011 \u0004 #*#7# .\u0010\u0011\u0012 7 +09+ # \u0003(\b \u0011 \u0017 \u0011 \u0018\b \u000f\u000e\u0015\u0014\u001a\u0018)\u0011 \u0010\u0011 \u000e\u0014\u000e\u0018\u000e\u001a\u001b\u000f \u0010\u0006 \u0018\b \u0011 \u0016\u0011 \u000f \u0014\u0018\u001a\u0018\u000e\u0017 \u000e \u0014\u0018\u000e\u0006\u000e \u000e\u0014 \u0018\b 7 +0 \u001a\u0016\u0016 \u001a\u0011 \u0010\u0014 \u0018\b\u000e\u000f *\u0015\u0011 \u0012 \u0014\u0018 \u0010\u0011 \u001a\u0014 \u0011 \u001b\u001a\u0018 \u0010\u0007)\u0012 \u0014\u0018\u000f' \u000e\u0018 \u000f\b\u001a\u001b\u001b \u0013 \u0012 \u0018\u0010 \u0013 \u000e\u0014 \u001a \u0011 \u0016\u0011 \u000f \u0014\u0018\u001a\u0018\u000e\u0017 \u0007\u001a\u0016\u001a\u0007\u000e\u0018 \u0006\u0010\u0011 \u0018\b \u0014\u0018\u000e\u0018 \u000f\u0007\u0011\u000e\u0013 \u001a\u0014 \u0014\u0010\u0018 \u000e\u0014 \u001a\u0014 \u000e\u0014 \u000e\u0017\u000e )\u001a\u001b \u0007\u001a\u0016\u001a\u0007\u000e\u0018 ' )\u0014\u001b \u000f\u000f \u0010\u0018\b \u0011\u0019\u000e\u000f \u000e\u0014 \u000e\u0007\u001a\u0018 # + \u001b\u001b \u0011 \u0004\u000e \u0011 \u0016\u0011 \u000f \u0014\u0018\u000f \u0018\b\u001a\u0018 \u0018\b \u0014\u0018\u000e\u0018 \u0006\u0010\u0011 \u0019\b\u000e\u0007\b \u0018\b \u000e\u0014 \u000e\u0017\u000e )\u001a\u001b \u000e\u000f \u000f\u000e\u0015\u0014\u000e\u0014\u0015 \u0003\u001a\u001b\u0011 \u001a \u000e\u000f\u0018\u000f \u001a\u0014 \u0004\u000e\u000e \u000f\b\u001a\u001b\u001b 0 \u001b\u000e\u0017 \u0011 \u0018\u0010 /\u0011\u0010 \u0011' \u0019\u000e\u0018\b\u000e\u0014 % 0\u001a \u000f *\u0006\u0018 \u0011 2 \u0007)\u0018\u000e\u0010\u0014 \u0010\u0006 \u0018\b\u000e\u000f *\u0015\u0011 \u0012 \u0014\u0018' \u0017\u000e \u0014\u0007 \u0010\u0006 \u001a)\u0018\b\u0010\u0011\u000e\u0018 \u0018\u0010 \u001a\u0007\u0018 \u0004\u000f)\u0007\b \u001a\u000f \u0013)\u0018 \u0014\u0010\u0018 \u001b\u000e\u0012\u000e\u0018 \u0018\u0010- \u001a\u0016\u0016\u001b\u000e\u0007\u001a\u0013\u001b \u0018\u0011)\u000f\u0018 \u0010\u0007)\u0012 \u0014\u0018' \u0010\u0011 \u0016\u0010\u0011\u0018\u000e\u0010\u0014 \u0018\b \u0011 \u0010\u0006' \u001b \u0018\u0018 \u0011\u000f \u0018 \u000f\u0018\u001a\u0012 \u0014\u0018\u001a\u0011 ' \u0007\u0010)\u0011\u0018 \u0010\u0011 \u0011' \u0016\u0010\u0019 \u0011 \u0010\u0006 \u001a\u0018\u0018\u0010\u0011\u0014 ' \u0011 \u000f\u0010\u001b)\u0018\u000e\u0010\u0014' \u0010\u0011 \u0006\u0010\u0011\u0012\u001a\u0018\u000e\u0010\u0014 \u0010\u0007)\u0012 \u0014\u0018\u000f \u0010\u0006 \u0018\b \u0013)\u000f\u000e\u0014 \u000f\u000f \u0014\u0018\u000e\u0018 # \u001a( \u0019 3 3 '\u0015\u0016\u001bD, \u0006\u0015\u0016\u0016\u0015\u0017 1 3\u001bD\u0016\u0015& \u0015\u0019 \") \" \u0006\u0015\u0016\u0016\u0015\u0017 ) \u0019 \u0017\u0015 &, %3&\u0015\u0017\u0019\" 3&\u0019, \u0017\u00151\u0015 *\u0015& 1\u001b4( \u001b2 3& \u0017\u0015\u0015\u0019 \"\u001b \")\u0015 \"\u0015\u0017!\u0019 \u001b2 \") \u0019 \u000e \u0017\u0015\u0015!\u00153\"+ + \u001b\u001b \u0011 Debora Miller Zuranich\u00030\u001a\u0018 Debora Miller Zuranich * \u0011 \u000f\u000f 9369 Newinton Way \u0003 \u000e\u0018 Elk Grove \u0003+\u0018\u001a\u0018 CA \u0003O\u000e\u0016 95758-4440 \u001b \u0016\b\u0010\u0014 (916)952-0116 \u0003.\u001a \u000329\u0012\u001a\u000e\u001b debizuranich@yahoo.com + \u001b\u001b \u0011 \u00030\u001a\u0018 * \u0011 \u000f\u000f \u0003 \u000e\u0018 \u0003+\u0018\u001a\u0018 \u0003O\u000e\u0016 \u001b \u0016\b\u0010\u0014 \u0003.\u001a \u000329\u0012\u001a\u000e\u001b \u0003* \u000e\u0018\u000e\u0010\u0014\u001a\u001b +\u000e\u0015\u0014\u001a\u0018)\u0011 * \u0014 )\u0012 \u001a\u0018\u0018\u001a\u0007\b \u0004 #*#7# .\u0010\u0011\u0012 *+* 7 \u001a\u001b 2\u000f\u0018\u001a\u0018 /\u0011\u0010 \u0011 \u0004.\u000e\u0011\u0012 Charles Kellum, Broker \u0003072 6\u000e\u0007# 8 00987965 * \u0011 \u000f\u000f 2329 Central Ave \u0003 \u000e\u0018 Alameda \u0003+\u0018\u001a\u0018 CA \u0003O\u000e\u0016 94501 \u0005\u0001\u0004\u0005\u0001\u0004\u0002\u0003\u0006 / \u001b#(510)926-9440 29\u0012\u001a\u000e\u001b stanleycornelius@aol.com 072 6\u000e\u0007#801128054 0\u001a\u0018 Stanley Cornelius / \u001b# 29\u0012\u001a\u000e\u001b 072 6\u000e\u0007#8 0\u001a\u0018 \u0003 \u0019\u0010 /\u0011\u0010 \u0011\u000f \u0019\u000e\u0018\b \u000e\u0006\u0006 \u0011 \u0014\u0018 \u0007\u0010\u0012\u0016\u001a\u0014\u000e \u000f \u001a\u0011 \u0007\u00109\u001b\u000e\u000f\u0018\u000e\u0014\u0015 \u0018\b 3\u0011\u0010\u0016 \u0011\u0018 # \u00109\u001b\u000e\u000f\u0018\u000e\u0014\u0015 /\u0011\u0010 \u0011 \u000e\u0014\u0006\u0010\u0011\u0012\u001a\u0018\u000e\u0010\u0014 \u000e\u000f \u0010\u0014 \u0018\b \u001a\u0018\u0018\u001a\u0007\b * \u000e\u0018\u000e\u0010\u0014\u001a\u001b /\u0011\u0010 \u0011 *\u0007 \u0014\u0010\u0019\u001b \u0015 \u0012 \u0014\u0018 \u0004 #*#7# .\u0010\u0011\u0012 */* # : $\"\"$9 $;' \u001a\u001b\u000e\u0006\u0010\u0011\u0014\u000e\u001a *\u000f\u000f\u0010\u0007\u000e\u001a\u0018\u000e\u0010\u0014 \u0010\u0006 72*6 17+<' \u0005\u0014\u0007# J\u0014\u000e\u0018 +\u0018\u001a\u0018 \u000f \u0007\u0010\u0016 \u0011\u000e\u0015\b\u0018 \u001b\u001a\u0019 \u0004 \u000e\u0018\u001b $!",
"J#+# \u0010 \u0006\u0010\u0011\u0013\u000e \u000f \u0018\b )\u0014\u001a)\u0018\b\u0010\u0011\u000e= \u000e\u000f\u0018\u0011\u000e\u0013)\u0018\u000e\u0010\u0014' \u000e\u000f\u0016\u001b\u001a \u001a\u0014 \u0011 \u0016\u0011\u0010 )\u0007\u0018\u000e\u0010\u0014 \u0010\u0006 \u0018\b\u000e\u000f \u0006\u0010\u0011\u0012' \u0010\u0011 \u001a\u0014 \u0016\u0010\u0011\u0018\u000e\u0010\u0014 \u0018\b \u0011 \u0010\u0006' \u0013 \u0016\b\u0010\u0018\u0010\u0007\u0010\u0016 \u0012\u001a\u0007\b\u000e\u0014 \u0010\u0011 \u001a\u0014 \u0010\u0018\b \u0011 \u0012 \u001a\u0014\u000f' \u000e\u0014\u0007\u001b) \u000e\u0014\u0015 \u0006\u001a\u0007\u000f\u000e\u0012\u000e\u001b \u0010\u0011 \u0007\u0010\u0012\u0016)\u0018 \u0011\u000e= \u0006\u0010\u0011\u0012\u001a\u0018\u000f# D\u0005+ .17> D*+ /22E *3371H20 /4 D2 *6\u0005.17E\u0005* *++1 \u0005* \u00051E 1. 72*6 17+<# E1 72372+2E * \u00051E \u0005+ >*02 *+ 1 D2 62I*6 H*6\u00050\u0005 4 17 * J7* 4 1. *E4 371H\u0005+\u00051E \u0005E *E4 +32 \u0005.\u0005 7*E+* \u00051E# * 72*6 2+ * 2 /71K27 \u0005+ D2 327+1E LJ*6\u0005.\u000520 1 *0H\u0005+2 1E 72*6 2+ * 2 7*E+* \u00051E+# \u0005. 41J 02+\u000572 62I*6 17 *M *0H\u0005 2' 1E+J6 *E *337137\u0005* 2 371.2++\u00051E*6# 3)\u0013\u001b\u000e\u000f\b \u001a\u0014 0\u000e\u000f\u0018\u0011\u000e\u0013)\u0018 \u0013 - 72*6 2+ * 2 /J+\u0005E2++ +27H\u0005 2+' \u0005E # \u0004 \u0005\u0006\u0007\u0005\b \b\u0004 \u000e\u000f\u0010 \u0011\u0004\u0012\b \u0013\b\u0004 \u0014\u0005\u0005 \u0015\b\u0004\u000e\b \u0013 \u0016\u0017\u0014\u0018\u0019\u001a\u0016\u001b C C +\u0010)\u0018\b H\u000e\u0011\u0015\u000e\u001b *\u0017 \u0014) ' 6\u0010\u000f *\u0014\u0015 \u001b \u000f' \u001a\u001b\u000e\u0006\u0010\u0011\u0014\u000e\u001a \" \b\u000e <\u0005\u0006 \u0004 -./-0 \u0014\u0013\u000e @ @# \u0006\u0005\u0004 \u000f\u0010\u0005\u000e\b \b\u0005\u0006\u0010\u0005\u000f \u000e A \u000f\u0010 B G\u0007\b \u0006\u0005< \u0014 \b\u000e \u0013\u000e @ @# \u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u00033\u0011\u0010 )\u0007 \u0019\u000e\u0018\b =\u000e\u0016.\u0010\u0011\u0012< \u0013 =\u000e\u00166\u0010\u0015\u000e \u0003$; !",
".\u000e\u0006\u0018 \u0014 >\u000e\u001b 7\u0010\u001a ' .\u0011\u001a\u000f \u0011' >\u000e\u0007\b\u000e\u0015\u001a\u0014 ? ; @ \u0003\u0003\u0003\u0019\u0019\u0019#=\u000e\u00166\u0010\u0015\u000e #\u0007\u0010\u0012 \u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003\u0003 \u0016\u0013\u00030HUOLQ\u0003&W"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/106285371/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA CaseNum ber:17-20307-CR-M ARTINEZ/O TAZO-% YES
U N ITED STA TES O F A M ERICA ,
Plaintiff, VS.
D AN IEL JON ES,
Defcndant.
O R DE R A D O PTIN G R EPO R T A N D RE CO M M EN D A TIO N ON CO UNSEL'S CJA VOUCH ER
THIS CAUSE cam ebefore the Courtuponthe Reportand Recomm endation on Counsel's
FinalCJA VouchersubmittedpursuanttotheCrim inalJusticeActVoucher113C.0756446 issued
by United States M agistrate Judge Alicia M .Otazo-Reyeson April 11,2019,(ECF No.1166J. M agistrate Judge Otazo-Reyes,recom mendsthatthis Court,approve the CJA Voucherand that
Attorney Richard K .Houlihan be paid a totalsum of$22,109.08. The partieswere afforded the
opportunityto fileobjedionstotheReportand Recommendations,howevernoneweretiled.The CourtnotesCounsel'sNoticeofNoObjectiontoM agistrate'sReportandRecommendation(ECFNO. 11694.Accordingly,theCourthasconsideredtheReportandRecommendation,thepertinentparts oftherecord and forthereasonsstated intheReportoftheM agistrateJudge,and upon independent
review ofthefileand being otherwisefully advised in the prem ises,itis
ORDERED AND ADD Dfœ D thatunitedStatesM agistrateJudgeAliciaM .Otazo-Reyes's
ReportandRecommendations(ECF No.1166j,isherebyADOPTED andAFFIRM ED. D O N E A N D O R D ER ED in Cham bers atM iam i,Florida,this 1n j 5 dayofApril, 2019.
(
JO S .M ARTINE 1-1N 1 D STATES D STRICT JUD G E C opies provided to: M agistrate Judge Otazo-Reyes RichardHoulihan,Esq CJA Adm inistrator | 2019-04-15 | [
"UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA CaseNum ber:17-20307-CR-M ARTINEZ/O TAZO-% YES U N ITED STA TES O F A M ERICA , Plaintiff, VS. D AN IEL JON ES, Defcndant. O R DE R A D O PTIN G R EPO R T A N D RE CO M M EN D A TIO N ON CO UNSEL'S CJA VOUCH ER THIS CAUSE cam ebefore the Courtuponthe Reportand Recomm endation on Counsel's FinalCJA VouchersubmittedpursuanttotheCrim inalJusticeActVoucher113C.0756446 issued by United States M agistrate Judge Alicia M .Otazo-Reyeson April 11,2019,(ECF No.1166J. M agistrate Judge Otazo-Reyes,recom mendsthatthis Court,approve the CJA Voucherand that Attorney Richard K .Houlihan be paid a totalsum of$22,109.08.",
"The partieswere afforded the opportunityto fileobjedionstotheReportand Recommendations,howevernoneweretiled.The CourtnotesCounsel'sNoticeofNoObjectiontoM agistrate'sReportandRecommendation(ECFNO. 11694.Accordingly,theCourthasconsideredtheReportandRecommendation,thepertinentparts oftherecord and forthereasonsstated intheReportoftheM agistrateJudge,and upon independent review ofthefileand being otherwisefully advised in the prem ises,itis ORDERED AND ADD Dfœ D thatunitedStatesM agistrateJudgeAliciaM .Otazo-Reyes's ReportandRecommendations(ECF No.1166j,isherebyADOPTED andAFFIRM ED. D O N E A N D O R D ER ED in Cham bers atM iam i,Florida,this 1n j 5 dayofApril, 2019. ( JO S .M ARTINE 1-1N 1 D STATES D STRICT JUD G E C opies provided to: M agistrate Judge Otazo-Reyes RichardHoulihan,Esq CJA Adm inistrator"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/66332374/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 OR 15(d) of The Securities Exchange Act of 1934 Date of Report (Date of earliest event reported): May 4, 2017 MBT FINANCIAL CORP. (Exact name of registrant as specified in its charter) Michigan 000-30973 38-3516922 (State or other jurisdiction (Commission (IRS Employer of incorporation) File Number) Identification No.) 102 East Front Street, Monroe, Michigan 48161 (Address of principal executive offices) (Zip Code) Registrant’s telephone number, including area code: (734) 241-3431 (Former name or former address, if changed since last report.) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below): [ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) [ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) [ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) [ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 or Rule 12b-2 of the Securities Exchange Act of 1934. Emerging growth company [ ] If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act [ ] Item 5.07.Submission of Matters to a Vote of Security Holders. (a) The Annual Meeting of Shareholders of the Company was held on May 4, 2017. (b) There were 22,856,143 shares eligible to vote, and 19,690,023 shares, or 86.1% of the outstanding shares, were present in person or by proxy at the meeting. The following proposals were submitted by the Board of Directors to a vote of the shareholders: Proposal 1. Election of Directors. The following individuals were elected to serve as directors until the 2018 Annual Meeting of Shareholders: Director Votes "FOR" Votes "WITHHELD" Broker Non-Votes Kristine L. Barann 14,132,846 530,775 5,026,402 Peter H. Carlton 14,230,253 433,368 5,026,402 H. Douglas Chaffin 14,249,077 414,544 5,026,402 Joseph S. Daly 11,118,870 3,544,751 5,026,402 James F. Deutsch 14,271,774 391,847 5,026,402 Michael J. Miller 14,216,723 446,898 5,026,402 Tony Scavuzzo 14,267,837 395,784 5,026,402 Debra J. Shah 14,255,952 407,669 5,026,402 John L. Skibski 14,034,953 628,668 5,026,402 Joseph S. Vig 14,129,078 534,543 5,026,402 Proposal 2. Ratification of the appointment of Plante & Moran, PLLC as the independent auditors of the Corporation for the 2017 fiscal year. This proposal received the following votes: Proposal 2 For Against Abstain 19,509,097 124,411 56,515 Based on the votes set forth above, the proposal received the required majority of the votes cast and therefore was approved. Proposal 3. Advisory vote to approve executive compensation. This proposal received the following votes: Proposal 3 For Against Abstain Broker Non-Votes 13,963,408 638,374 61,839 5,026,402 Based on the votes set forth above, the shareholders advise the board that they approve of the executive compensation. SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized MBT FINANCIAL CORP. Date: May 4, 2017 By: /s/John L. Skibski John L. Skibski Executive Vice President and Chief Financial Officer | [
"UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 OR 15(d) of The Securities Exchange Act of 1934 Date of Report (Date of earliest event reported): May 4, 2017 MBT FINANCIAL CORP. (Exact name of registrant as specified in its charter) Michigan 000-30973 38-3516922 (State or other jurisdiction (Commission (IRS Employer of incorporation) File Number) Identification No.) 102 East Front Street, Monroe, Michigan 48161 (Address of principal executive offices) (Zip Code) Registrant’s telephone number, including area code: (734) 241-3431 (Former name or former address, if changed since last report.) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below): [ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) [ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) [ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) [ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 or Rule 12b-2 of the Securities Exchange Act of 1934.",
"Emerging growth company [ ] If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act [ ] Item 5.07.Submission of Matters to a Vote of Security Holders. (a) The Annual Meeting of Shareholders of the Company was held on May 4, 2017. (b) There were 22,856,143 shares eligible to vote, and 19,690,023 shares, or 86.1% of the outstanding shares, were present in person or by proxy at the meeting. The following proposals were submitted by the Board of Directors to a vote of the shareholders: Proposal 1. Election of Directors. The following individuals were elected to serve as directors until the 2018 Annual Meeting of Shareholders: Director Votes \"FOR\" Votes \"WITHHELD\" Broker Non-Votes Kristine L. Barann 14,132,846 530,775 5,026,402 Peter H. Carlton 14,230,253 433,368 5,026,402 H. Douglas Chaffin 14,249,077 414,544 5,026,402 Joseph S. Daly 11,118,870 3,544,751 5,026,402 James F. Deutsch 14,271,774 391,847 5,026,402 Michael J. Miller 14,216,723 446,898 5,026,402 Tony Scavuzzo 14,267,837 395,784 5,026,402 Debra J. Shah 14,255,952 407,669 5,026,402 John L. Skibski 14,034,953 628,668 5,026,402 Joseph S. Vig 14,129,078 534,543 5,026,402 Proposal 2. Ratification of the appointment of Plante & Moran, PLLC as the independent auditors of the Corporation for the 2017 fiscal year. This proposal received the following votes: Proposal 2 For Against Abstain 19,509,097 124,411 56,515 Based on the votes set forth above, the proposal received the required majority of the votes cast and therefore was approved.",
"Proposal 3. Advisory vote to approve executive compensation. This proposal received the following votes: Proposal 3 For Against Abstain Broker Non-Votes 13,963,408 638,374 61,839 5,026,402 Based on the votes set forth above, the shareholders advise the board that they approve of the executive compensation. SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized MBT FINANCIAL CORP.",
"Date: May 4, 2017 By: /s/John L. Skibski John L. Skibski Executive Vice President and Chief Financial Officer"
]
| https://applica-public.s3-eu-west-1.amazonaws.com/contract-discovery/edgar.txt.xz | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
|
DETAILED ACTION This Corrected Notice of Allowability corrects a typographical error in the previous Office Action, dated 6/20/2022. The examiner's amendment incorrectly listed claim 10 as dependent upon claim 10 instead of claim 21.
Notice of Pre-AIA or AIA Status The present application is being examined under the pre-AIA first to invent provisions.
EXAMINER'S AMENDMENT An examiner’s amendment to the record appears below. Should the changes and/or additions be unacceptable to applicant, an amendment may be filed as provided by 37 CFR 1.312. To ensure consideration of such an amendment, it MUST be submitted no later than the payment of the issue fee. Authorization for this examiner’s amendment was given in an interview with Randy Braegger on 6/08/2022. The application has been amended as follows: To claim 5, line 2: change "the plurality of regions A" to --the region A-- To claim 6, line 2: change "the plurality of regions A" to --the region A-- To claim 7, line 2: change "the plurality of regions A" to --the region A-- Cancel claim 9. To claim 10, line 1: change "according claim 9" to --according to claim 21-- To claim 11, line 3: change "the plurality of regions A" to --the region A-- To claim 12, line 3: change "the plurality of regions A" to --the region A-- To claim 24, lines 1-2: change "wherein the plurality of regions A include three rows of regions" to --wherein the region A comprises a plurality of regions A including three rows of regions-- To claim 25, line 2: change "the plurality of regions A" to --the region A--
Reasons for Allowance The following is an examiner’s statement of reasons for allowance: As to claim 21, the prior art of record fails to further teach or suggest the resin coating stack comprising a lowermost adhesive layer, an intermediate urethane resin layer, and a surface silicon resin layer. As to claim 22, the prior art of record fails to further teach or suggest the resin coating stack comprising individual layers formed of different materials, a dynamic friction coefficient of a surface of the region A coated with the resin coating as 0.5 to less, and a thickness of the resin coating in a range from 20um to 300um. Applicant's arguments, see pages 6-7, regarding the rejection under 35 U.S.C. 112 are persuasive and the rejection is withdrawn. 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 ROBERT C DYE whose telephone number is (571)270-7059. The examiner can normally be reached Monday - Friday, 10:00 am - 6:00 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, Katelyn Smith can be reached on (571) 270-5545. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/ROBERT C DYE/Primary Examiner, Art Unit 1749 | 2022-06-28T22:32:18 | [
"DETAILED ACTION This Corrected Notice of Allowability corrects a typographical error in the previous Office Action, dated 6/20/2022. The examiner's amendment incorrectly listed claim 10 as dependent upon claim 10 instead of claim 21. Notice of Pre-AIA or AIA Status The present application is being examined under the pre-AIA first to invent provisions. EXAMINER'S AMENDMENT An examiner’s amendment to the record appears below. Should the changes and/or additions be unacceptable to applicant, an amendment may be filed as provided by 37 CFR 1.312. To ensure consideration of such an amendment, it MUST be submitted no later than the payment of the issue fee. Authorization for this examiner’s amendment was given in an interview with Randy Braegger on 6/08/2022. The application has been amended as follows: To claim 5, line 2: change \"the plurality of regions A\" to --the region A-- To claim 6, line 2: change \"the plurality of regions A\" to --the region A-- To claim 7, line 2: change \"the plurality of regions A\" to --the region A-- Cancel claim 9.",
"To claim 10, line 1: change \"according claim 9\" to --according to claim 21-- To claim 11, line 3: change \"the plurality of regions A\" to --the region A-- To claim 12, line 3: change \"the plurality of regions A\" to --the region A-- To claim 24, lines 1-2: change \"wherein the plurality of regions A include three rows of regions\" to --wherein the region A comprises a plurality of regions A including three rows of regions-- To claim 25, line 2: change \"the plurality of regions A\" to --the region A-- Reasons for Allowance The following is an examiner’s statement of reasons for allowance: As to claim 21, the prior art of record fails to further teach or suggest the resin coating stack comprising a lowermost adhesive layer, an intermediate urethane resin layer, and a surface silicon resin layer.",
"As to claim 22, the prior art of record fails to further teach or suggest the resin coating stack comprising individual layers formed of different materials, a dynamic friction coefficient of a surface of the region A coated with the resin coating as 0.5 to less, and a thickness of the resin coating in a range from 20um to 300um. Applicant's arguments, see pages 6-7, regarding the rejection under 35 U.S.C. 112 are persuasive and the rejection is withdrawn. 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 ROBERT C DYE whose telephone number is (571)270-7059. The examiner can normally be reached Monday - Friday, 10:00 am - 6:00 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, Katelyn Smith can be reached on (571) 270-5545. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.",
"/ROBERT C DYE/Primary Examiner, Art Unit 1749"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-07-03.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
C. A. 5th Cir. Certiorari denied. | 11-28-2022 | [
"C. A. 5th Cir. Certiorari denied."
]
| https://www.courtlistener.com/api/rest/v3/opinions/9191660/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
ALLOWABLE SUBJECT MATTER Claims 1-20 are pending and allowed. The following is an examiner’s statement of reasons for allowance: The closest prior art of De Rosa et al. (US 10,389,432 B2) teaches facilitate maintaining network connectivity of aerial devices during unmanned flight are disclosed. An example method may include providing, to an access point of a radio access network (RAN) during flight of the unmanned aerial vehicle (UAV) on a flight route, channel allocation instructions for connecting the UAV to the radio access network via communication channels. The method may further include detecting an interference event associated with a portion of the flight route of the UAV during the flight. The method may further include adjusting, during the flight, the channel allocation instructions in response to detecting the interference event. The method may further include providing the adjusted channel allocation instructions to an access point of the radio access network during the flight. In regarding to independent claims 1, 14 and 19, De Rosa taken either individually or in combination with other prior art of record fails to teach or render obvious obtain a first set of identifying information about a particular aircraft or flight via a first detection channel at a first time; determine that the first set of identifying information lacks commonality with previously received sets of identifying information for other detected aircraft or flights; track the particular aircraft or flight based on the first set of identifying information; obtain a second set of identifying information about the particular aircraft or flight via a different second detection channel at a second time that is after the first time; determine commonality between the second set of identifying . 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.” Inquiry
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Mary Cheung whose telephone number is (571) 272-6705. The examiner can normally be reached on Monday, Tuesday and Thursday from 10:00 AM to 7:00 PM. If attempts to reach the examiner by telephone are unsuccessful, the examiner's supervisor, Christian Chace, can be reached on (571) 272-4190. 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). The fax phone numbers for the organization where this application or proceedings is assigned are as follows: (571) 273-8300 (Official Communications; including After Final Communications labeled “BOX AF”) (571) 273-6705 (Draft Communications)
/MARY CHEUNG/ Primary Examiner, Art Unit 3665 March 12, 2021 | 2021-03-26T10:46:46 | [
"ALLOWABLE SUBJECT MATTER Claims 1-20 are pending and allowed. The following is an examiner’s statement of reasons for allowance: The closest prior art of De Rosa et al. (US 10,389,432 B2) teaches facilitate maintaining network connectivity of aerial devices during unmanned flight are disclosed. An example method may include providing, to an access point of a radio access network (RAN) during flight of the unmanned aerial vehicle (UAV) on a flight route, channel allocation instructions for connecting the UAV to the radio access network via communication channels. The method may further include detecting an interference event associated with a portion of the flight route of the UAV during the flight. The method may further include adjusting, during the flight, the channel allocation instructions in response to detecting the interference event. The method may further include providing the adjusted channel allocation instructions to an access point of the radio access network during the flight.",
"In regarding to independent claims 1, 14 and 19, De Rosa taken either individually or in combination with other prior art of record fails to teach or render obvious obtain a first set of identifying information about a particular aircraft or flight via a first detection channel at a first time; determine that the first set of identifying information lacks commonality with previously received sets of identifying information for other detected aircraft or flights; track the particular aircraft or flight based on the first set of identifying information; obtain a second set of identifying information about the particular aircraft or flight via a different second detection channel at a second time that is after the first time; determine commonality between the second set of identifying . 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.” Inquiry Any inquiry concerning this communication or earlier communications from the examiner should be directed to Mary Cheung whose telephone number is (571) 272-6705. The examiner can normally be reached on Monday, Tuesday and Thursday from 10:00 AM to 7:00 PM.",
"If attempts to reach the examiner by telephone are unsuccessful, the examiner's supervisor, Christian Chace, can be reached on (571) 272-4190. 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). The fax phone numbers for the organization where this application or proceedings is assigned are as follows: (571) 273-8300 (Official Communications; including After Final Communications labeled “BOX AF”) (571) 273-6705 (Draft Communications) /MARY CHEUNG/ Primary Examiner, Art Unit 3665 March 12, 2021"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2021-03-21.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
IV 111th CONGRESS 2d Session H. RES. 1700 IN THE HOUSE OF REPRESENTATIVES September 29, 2010 Mr. King of New York (for himself, Mrs. Maloney, Mr. Lance, Mr. Burgess, Mr. Castle, Mr. Marchant, Mrs. Miller of Michigan, Mr. Reichert, Mr. Pascrell, Mr. Markey of Massachusetts, Mr. Frank of Massachusetts, Mr. Crowley, Mr. Towns, Ms. DeGette, Mr. Lewis of Georgia, Mr. Bishop of New York, Ms. Clarke, Mr. Tonko, Mr. Ackerman, Mr. Jones, Mr. Garrett of New Jersey, and Mr. Israel) submitted the following resolution; which was referred to the Committee on Energy and Commerce RESOLUTION Supporting raising awareness and educating the public about Alper’s disease. Whereas Alper’s disease is a rare, genetically determined disease of the brain that causes progressive degeneration of grey matter in the cerebrum; Whereas the first symptom is usually convulsions with symptoms developing within the first 3 months to 5 years of life; Whereas Alper’s disease is an autosomal recessive disorder and both parents have to be carriers of the disease; Whereas symptoms may include seizures, developmental delay, progressive mental retardation, hypotonia (low muscle tone), spasticity (stiffness of the limbs), dementia, blindness, and liver conditions such as jaundice and cirrhosis; Whereas researchers believe that Alper’s disease is caused by an underlying metabolic defect and a number of individuals with Alper’s disease have mutations in the polymerase-gama gene, which results in the depletion of mitochondrial DNA; and Whereas there is currently no cure for Alper’s disease: Now, therefore, be it That the House of Representatives— (1)supports raising awareness and educating the public about Alper’s disease; (2)applauds the efforts of advocates and organizations that encourage awareness, promote research, and provide education, support, and hope to those impacted by Alper’s disease; (3)recognizes the commitment of parents, families, researchers, health professionals, and others dedicated to finding an effective treatment and cure for Alper’s disease; and (4)supports increased funding for research into the causes, treatment, and cure for Alper’s disease. | 09-29-2010 | [
"IV 111th CONGRESS 2d Session H. RES. 1700 IN THE HOUSE OF REPRESENTATIVES September 29, 2010 Mr. King of New York (for himself, Mrs. Maloney, Mr. Lance, Mr. Burgess, Mr. Castle, Mr. Marchant, Mrs. Miller of Michigan, Mr. Reichert, Mr. Pascrell, Mr. Markey of Massachusetts, Mr. Frank of Massachusetts, Mr. Crowley, Mr. Towns, Ms. DeGette, Mr. Lewis of Georgia, Mr. Bishop of New York, Ms. Clarke, Mr. Tonko, Mr. Ackerman, Mr. Jones, Mr. Garrett of New Jersey, and Mr. Israel) submitted the following resolution; which was referred to the Committee on Energy and Commerce RESOLUTION Supporting raising awareness and educating the public about Alper’s disease. Whereas Alper’s disease is a rare, genetically determined disease of the brain that causes progressive degeneration of grey matter in the cerebrum; Whereas the first symptom is usually convulsions with symptoms developing within the first 3 months to 5 years of life; Whereas Alper’s disease is an autosomal recessive disorder and both parents have to be carriers of the disease; Whereas symptoms may include seizures, developmental delay, progressive mental retardation, hypotonia (low muscle tone), spasticity (stiffness of the limbs), dementia, blindness, and liver conditions such as jaundice and cirrhosis; Whereas researchers believe that Alper’s disease is caused by an underlying metabolic defect and a number of individuals with Alper’s disease have mutations in the polymerase-gama gene, which results in the depletion of mitochondrial DNA; and Whereas there is currently no cure for Alper’s disease: Now, therefore, be it That the House of Representatives— (1)supports raising awareness and educating the public about Alper’s disease; (2)applauds the efforts of advocates and organizations that encourage awareness, promote research, and provide education, support, and hope to those impacted by Alper’s disease; (3)recognizes the commitment of parents, families, researchers, health professionals, and others dedicated to finding an effective treatment and cure for Alper’s disease; and (4)supports increased funding for research into the causes, treatment, and cure for Alper’s disease."
]
| https://www.govinfo.gov/content/pkg/BILLS-111hres1700ih/xml/BILLS-111hres1700ih.xml | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Case: 17-12038 Date Filed: 08/26/2020 Page: 1 of 28
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 17-12038
D.C. Docket No. 4:16-cr-10032-JEM-2
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANDRES ALBETO DAVILA-MENDOZA,
Defendant - Appellant.
No. 17-12039
D.C. Docket No. 4:16-cr-10032-JEM-3
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
OTMAR SING GONZALEZ,
Defendant - Appellant. Case: 17-12038 Date Filed: 08/26/2020 Page: 2 of 28
No. 17-12742
D.C. Docket No. 4:16-cr-10032-JEM-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JULIO BRAVO PINEDA,
Defendant - Appellant.
Appeals from the United States District Court for the Southern District of Florida
(August 26, 2020)
Before JILL PRYOR, BRANCH, and BOGGS,∗ Circuit Judges.
BRANCH, Circuit Judge:
In this case, three foreign nationals in a foreign vessel in the territorial
waters of a foreign nation were arrested by the United States Coast Guard with the
consent of the foreign country and prosecuted in the United States for drug-
∗ Honorable Danny J. Boggs, United States Circuit Judge for the Sixth Circuit, sitting by designation. 2 Case: 17-12038 Date Filed: 08/26/2020 Page: 3 of 28
trafficking crimes under the Maritime Drug Law Enforcement Act (MDLEA), 46
U.S.C. §§ 70501–70508. The defendants unsuccessfully moved to dismiss the
indictment, in relevant part, on the ground that the MDLEA was unconstitutional
as applied to them because Congress lacks the authority to criminalize acts
committed in the territorial waters of foreign nations. The defendants ultimately
pleaded guilty to the drug-trafficking crimes, but preserved their right to appeal the
denial of their motion to dismiss. This appeal followed and presents us with a
question of first impression—whether the MDLEA exceeds Congress’s authority
pursuant to the Constitution’s Foreign Commerce Clause or, alternatively, the
Necessary and Proper Clause, as applied to the drug-trafficking activities of these
defendants in the territorial waters of a consenting foreign country. After careful
consideration, and with the benefit of oral argument, we conclude that the
MDLEA, as applied to these defendants, exceeds Congress’s constitutional
authority, and we vacate their convictions.
I. BACKGROUND
The undisputed facts are as follows. On June 4, 2016, Andres Davila-
Mendoza, Otmar Gonzalez, Julio Pineda, and a minor were on board a stalled go-
fast vessel in the territorial waters of Jamaica. With the permission of the
Jamaican government, U.S. Coast Guard officials who had been patrolling the area
by air and sea boarded and searched the distressed vessel. They discovered that the
3 Case: 17-12038 Date Filed: 08/26/2020 Page: 4 of 28
vessel was loaded with 3,500 kilograms of baled marijuana. Pineda told the Coast
Guard officials that he was the captain, that he was Nicaraguan, that the vessel was
Costa Rican, and that they were traveling from Jamaica to Costa Rica. Another
crew member stated that the vessel was overloaded with marijuana and its engines
had stopped working. With the further permission of the Jamaican government,
the Coast Guard seized the boat occupants and the drugs, and the United States
prosecuted the three men.
The three defendants were charged in an indictment with possessing and
conspiring to possess with intent to distribute more than 1,000 kilograms of
marijuana while on board a vessel, in violation of the MDLEA, 46 U.S.C.
§§ 70503(a)(1), 70503(b); 70506(b). That statute provides in relevant part that:
“While on board a covered vessel, an individual may not knowingly or
intentionally . . . manufacture or distribute, or possess with intent to manufacture or
distribute, a controlled substance.” 46 U.S.C. § 70503(a)(1). This prohibition
“applies even though the act is committed outside the territorial jurisdiction of the
United States.” Id. § 70503(b). For purposes of the MDLEA, a “covered vessel”
includes “a vessel subject to the jurisdiction of the United States.” Id. § 70503(e).
And the MDLEA specifically provides that a vessel in the territorial waters of a
foreign nation is subject to the jurisdiction of the United States “if the nation
consents to the enforcement of United States law by the United States.” Id.
4 Case: 17-12038 Date Filed: 08/26/2020 Page: 5 of 28
§ 70502(c)(1)(E).1 Notably, in enacting the MDLEA, Congress found “that . . .
trafficking in controlled substances aboard vessels is a serious international
problem, is universally condemned, and presents a specific threat to the security
and societal well-being of the United States.” Id. at § 70501.
The defendants moved to dismiss the indictment on the grounds that the
application of the MDLEA to them exceeded Congress’s power under the Define
and Punish Clause, U.S. Const. art. I, § 8, cl. 10. They also objected to the district
court’s exercise of in personam jurisdiction over them as a violation of their
due-process rights. The government responded that the extraterritorial application
of the MDLEA to the defendants was authorized by the Foreign Commerce Clause,
id. art. I, § 8, cl. 3, and/or the Necessary and Proper Clause, id. art. I, § 8, cl. 18.
The magistrate judge heard oral argument on the issue and recommended
that the defendants’ motion be denied, finding that Congress had lawfully
exercised its power under the Foreign Commerce Clause. The magistrate judge
also found that international law provided adequate notice to the defendants,
satisfying due process. The defendants filed objections, and the district court
affirmed and adopted the report and recommendation of the magistrate judge.
1 The defendants’ boat was a “vessel subject to the jurisdiction of the United States,” by statutory definition, because Jamaica consented to the United States Coast Guard’s enforcement of American laws in its territorial waters. 46 U.S.C. § 70502(c)(1)(E). 5 Case: 17-12038 Date Filed: 08/26/2020 Page: 6 of 28
The defendants pleaded guilty under a conditional plea agreement that
preserved their right to appeal the denial of their motion to dismiss the indictment.
The district court sentenced each defendant to 59 months of imprisonment to be
followed by removal proceedings and 5 years of non-reporting supervised release.
The defendants now appeal on that preserved basis, and we consider their appeals
together.
II. STANDARD OF REVIEW
“We review de novo the legal question of whether a statute is
constitutional.” United States v. Campbell, 743 F.3d 802, 805 (11th Cir. 2014)
(quoting United States v. Tinoco, 304 F.3d 1088, 1099 (11th Cir. 2002)).
III. DISCUSSION
The defendant-appellants in this consolidated appeal argue that the MDLEA,
as applied to them, exceeds Congress’s authority under Article I of the
Constitution. The government contends that the MDLEA, as applied to the
defendants, was a valid exercise of Congress’s power under the Foreign Commerce
Clause, or alternatively, under the Necessary and Proper Clause. We address
whether Congress has such authority under each Clause in turn.
A. The Foreign Commerce Clause
As an initial matter, the district court correctly recognized that, under our
Circuit precedent, the Constitution’s Define and Punish Clause does not authorize
6 Case: 17-12038 Date Filed: 08/26/2020 Page: 7 of 28
the MDLEA’s operation in foreign territorial waters. See United States v.
Bellaizac-Hurtado, 700 F.3d 1245, 1258 (11th Cir. 2012). That tripartite clause
grants Congress power to “define and punish Piracies and Felonies committed on
the high Seas, and Offenses against the Law of Nations.” U.S. Const. art. I, § 8,
cl. 10. Because the crimes here were not committed on the high seas,2 the Piracies
and Felonies Clauses do not apply. And we explained in Bellaizac-Hurtado that
the use of the term “the law of nations” in the Offenses Clause limits its application
to those offenses recognized by customary international law. 700 F.3d at 1249–53.
Because drug trafficking is not such an offense, id. at 1253–57, we held that the
MDLEA was unconstitutional under the Offenses Clause as applied to the
Bellaizac-Hurtado defendants, who had been charged with drug trafficking on
board a vessel in the territorial waters of Panama.
But we generally presume statutes to be constitutional. United States v.
Morrison, 529 U.S. 598, 607 (2000). And our Court has suggested in passing,
albeit dicta, that there may exist a different Article I authorization for the
MDLEA’s operation as applied to conduct that occurs in the territorial waters of a
2 The high seas lie beyond any nation’s territorial sea and are “international waters not subject to the dominion of any single nation.” United States v. Louisiana, 394 U.S. 11, 23 (1969). And we have frequently examined and upheld the constitutionality of the application of the MDLEA to conduct that occurred on the high seas. See, e.g., United States v. Estupinan, 453 F.3d 1336, 1338–39 (11th Cir. 2006); United States v. Rendon, 354 F.3d 1320, 1322–23 (11th Cir. 2003); Tinoco, 304 F.3d at 1092–95. But this case presents an altogether different question because the conduct at issue here involves foreign nationals aboard a foreign vessel in the territorial waters of a foreign nation, not the high seas. 7 Case: 17-12038 Date Filed: 08/26/2020 Page: 8 of 28
foreign nation—the Foreign Commerce Clause. United States v. Baston, 818 F.3d
651, 667 (11th Cir. 2016) (“If the government had invoked the Foreign Commerce
Clause in Bellaizac-Hurtado, we might have reached a different result.”). The
government here has taken us up on that suggestion and argues that the MDLEA as
applied to the conduct of these defendants was a valid exercise of Congress’s
authority pursuant to the Foreign Commerce Clause. Accordingly, the question we
must answer is whether the Foreign Commerce Clause authorizes the MDLEA’s
operation as applied to these defendants.
1. Legal Framework
The Constitution provides that “Congress shall have Power . . . [t]o regulate
Commerce with foreign Nations, and among the several States, and with the Indian
Tribes.” U.S. Const. art. I, § 8, cl. 3. This tripartite clause is commonly known as
the Foreign Commerce Clause, the Interstate Commerce Clause, and the Indian
Commerce Clause, respectively. “The Commerce Clause emerged as the Framers’
response to the central problem giving rise to the Constitution itself: the absence of
any federal commerce power under the Articles of Confederation.” Gonzales v.
Raich, 545 U.S. 1, 16 (2005). The Supreme Court first defined the nature of
Congress’s commerce power in its 1824 decision in Gibbons v. Ogden, explaining
that:
[c]ommerce, undoubtedly, is traffic, but it is something more: it is intercourse. It describes the commercial intercourse between nations, 8 Case: 17-12038 Date Filed: 08/26/2020 Page: 9 of 28
and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse. . . . It is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution.
22 U.S. 1, 189–90, 196 (1824). Over time, the understanding and meaning of
“regulate Commerce,” at least in the context of the Interstate Commerce Clause,
has expanded and three general categories of regulation have emerged as
permissible exercises of Congress’s commerce power. See Raich, 545 U.S. at 15–
17 (discussing historical evolution of commerce power). “First, Congress can
regulate the channels of interstate commerce. Second, Congress has authority to
regulate and protect the instrumentalities of interstate commerce, and persons or
things in interstate commerce. Third, Congress has the power to regulate activities
that substantially affect interstate commerce.” Id. at 16–17 (internal citations
omitted).
With regard to the Foreign Commerce Clause, the Supreme Court has
described the Foreign Commerce Clause as granting Congress a broad,
“exclusive[,] and plenary” power to regulate commerce with foreign nations. See
Bd. of Trs. of Univ. of Ill. v. United States, 289 U.S. 48, 56 (1933). Yet,
jurisprudence addressing Congress’s positive Foreign Commerce Clause power is
sparse. Most of the Supreme Court’s Foreign Commerce Clause precedents
concern the foreign commerce power only in its negative, or dormant, sense. 9 Case: 17-12038 Date Filed: 08/26/2020 Page: 10 of 28
Specifically, the dormant foreign commerce power operates to void acts of the
states upon foreign commerce because of the Constitution’s overriding concern for
national uniformity in foreign commerce—even in instances when Congress has
not affirmatively acted. See, e.g., Japan Line, Ltd. v. Cty. of L.A., 441 U.S. 434,
448 (1979) (striking down a state tax on imports); see also Bd. of Trs. of Univ. of
Ill., 289 U.S. at 57–58 (affirming a U.S. tariff over a state’s protest). But the
Supreme Court has never clearly articulated the bounds of the positive foreign
commerce power.
And we have only one case in which we have addressed Congress’s positive
foreign commerce power, Baston. Specifically, the defendant in Baston was “an
international sex trafficker” who trafficked women “around the world, from
Florida to Australia to the United Arab Emirates.” 818 F.3d at 656. Although
Baston was a non-citizen, he was arrested at his mother’s home in the United
States and charged and convicted of violating 18 U.S.C. §§ 1596(a)(2) and 1591,
which prohibits sex trafficking by force, fraud, or coercion.3 Id. at 657–59.
3 18 U.S.C. § 1591 provides:
(a) Whoever knowingly-- (1) in or affecting interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States, recruits, entices, harbors, transports, provides, obtains, advertises, maintains, patronizes, or solicits by any means a person; or
10 Case: 17-12038 Date Filed: 08/26/2020 Page: 11 of 28
Notably, § 1596(a)(2) grants the United States “extra-territorial jurisdiction over”
sex trafficking by force, fraud, or coercion that occurs overseas by a person who is
“present in the United States.”4
As relevant background, Congress enacted §§ 1591 and 1596, respectively,
as part of the Trafficking Victims Protection Act of 2000 and the Trafficking
Victims Protection Reauthorization Act of 2008 (together, the “TVPA”). Id. at
666, 668. “The TVPA is part of a comprehensive regulatory scheme,” id. at 668
(quotation omitted), designed to “combat trafficking in persons . . . to ensure just
and effective punishment of traffickers, and to protect their victims,” 22 U.S.C.
(2) benefits, financially or by receiving anything of value, from participation in a venture which has engaged in an act described in violation of paragraph (1),
knowing, or, except where the act constituting the violation of paragraph (1) is advertising, in reckless disregard of the fact, that means of force, threats of force, fraud, coercion described in subsection (e)(2), or any combination of such means will be used to cause the person to engage in a commercial sex act, or that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act, shall be punished as provided in subsection (b). 4 18 U.S.C. § 1596(a) provides:
In addition to any domestic or extra-territorial jurisdiction otherwise provided by law, the courts of the United States have extra-territorial jurisdiction over any offense (or any attempt or conspiracy to commit an offense) under section . . . 1591 if—
(1) an alleged offender is a national of the United States or an alien lawfully admitted for permanent residence (as those terms are defined in section 101 of the Immigration and Nationality Act (8 U.S.C. 1101)); or
(2) an alleged offender is present in the United States, irrespective of the nationality of the alleged offender. 11 Case: 17-12038 Date Filed: 08/26/2020 Page: 12 of 28
§ 7101. In enacting the TVPA, Congress expressly found that “[t]rafficking in
persons is a modern form of slavery,” and “is the fastest growing source of profits
for organized criminal enterprises worldwide. Profits from the trafficking industry
contribute to the expansion of organized crime in the United States and
worldwide.” Id. § 7101(b)(1), (8). Further, Congress found that “[t]rafficking in
persons substantially affects interstate and foreign commerce” as such trafficking
“has an impact on the nationwide employment network and labor market.” Id.
§ 7101(b)(12).
On appeal, Baston argued that he could not be ordered to pay restitution for
his extraterritorial conduct, and that any holding to the contrary would exceed
Congress’s authority under Article I of the Constitution. 818 F.3d at 666. Thus,
this Court examined whether § 1596(a)(2), which confers extraterritorial
jurisdiction over sex trafficking, was a constitutional exercise of Congress’s
authority under the Foreign Commerce Clause. Id. at 666–69. In addressing this
question, we first noted that “nothing in the Foreign Commerce Clause” or in
Article I itself “limits Congress’s power to enact extraterritorial laws.” Id. at 667.
We then noted that the dormant Foreign Commerce Clause cases provided little
insight into the bounds of Congress’s positive foreign commerce power other than
the suggestion in dicta that the foreign commerce power “may be broader” than the
interstate commerce power (the bounds of which have been more thoroughly
12 Case: 17-12038 Date Filed: 08/26/2020 Page: 13 of 28
explored). Id. at 668 (quoting Atl. Cleaners & Dyers, Inc. v. United States, 286
U.S. 427, 434 (1932)). Nevertheless, we declined to “demarcate the outer bounds
of the Foreign Commerce Clause” and instead “assum[ed], for the sake of
argument, that the Foreign Commerce Clause has the same scope as the Interstate
Commerce Clause.” Id.
In other words, Congress’s power under the Foreign Commerce Clause includes at least the power to regulate the “channels” of commerce between the United States and other countries, the “instrumentalities” of commerce between the United States and other countries, and activities that have a “substantial effect” on commerce between the United States and other countries.
Id.
We then concluded that § 1596(a)(2) was a valid exercise of Congress’s
foreign commerce power “at least as a regulation of activities that have a
‘substantial effect’ on foreign commerce.” 818 F.3d at 668. Citing the
congressional findings, we explained that “Congress had a ‘rational basis’ to
conclude that [sex trafficking by force, fraud, or coercion]—even when it occurs
exclusively overseas—is ‘part of an economic “class of activities” that have a
substantial effect on . . . commerce’ between the United States and other
countries.” Id. at 668–69.
With Baston as our guide in the case at hand, we too, assume, without
deciding, that the Foreign Commerce Clause has the same scope as the Interstate
Commerce Clause. Under this assumption, the parties agree that, given the unique 13 Case: 17-12038 Date Filed: 08/26/2020 Page: 14 of 28
facts of this case, if the application of the MDLEA to the defendants’ conduct is to
pass muster, it will be under the third category of regulated commerce: those
activities that have a “substantial effect” on commerce between the United States
and foreign nations.
The substantial-effects inquiry is most commonly conducted in the Interstate
Commerce Clause context. For instance, in United States v. Lopez, 514 U.S. 549
(1995), the Supreme Court was tasked with determining whether the Gun-Free
School Zones Act of 1990, which made it a federal offense “for any individual
knowingly to possess a firearm at a place that the individual knows, or has
reasonable cause to believe, is a school zone[,]” was a valid exercise of Congress’s
authority under the Interstate Commerce Clause. Id. at 551 (citing the Gun-Free
School Zones Act of 1990, Pub. L. 101-647, § 1702 (1990), codified at 18 U.S.C.
§ 922(q) (1990)). Emphasizing that Congress’s constitutionally enumerated
powers have “judicially enforceable outer limits,” the Court set out to define more
clearly the limit on Congress’s authority to regulate interstate commerce. Id. at
566. The Court acknowledged that, if the statute “[was] to be sustained, it must be
under the third category as a regulation of an activity that substantially affects
interstate commerce.” Id. at 559. The Court then explained “[w]here economic
activity substantially affects interstate commerce, legislation regulating that
activity will be sustained.” Id. at 560. But the Gun Free School Zones Act was “a
14 Case: 17-12038 Date Filed: 08/26/2020 Page: 15 of 28
criminal statute that by its terms ha[d] nothing to do with ‘commerce’ or any sort
of economic enterprise[.]” Id. at 561. The Court also noted that the statute
“contain[ed] no jurisdictional element which would ensure, through case-by-case
inquiry, that the firearm possession in question affect[ed] interstate commerce.”
Id. The Court further explained that although Congress is not required to make
findings as to the burdens an activity has on interstate commerce and “[w]hether
particular operations affect interstate commerce sufficiently to come under the
constitutional power of Congress to regulate them is ultimately a judicial rather
than a legislative question,” it nevertheless would consider any legislative and
congressional findings regarding the effect of the activity on interstate commerce
as part of its independent inquiry into the constitutionality of the statute under the
Commerce Clause. Id. at 557 n.2, 562–63 (quoting Heart of Atlanta Motel, Inc. v.
United States, 379 U.S. 241, 273 (1964) (Black, J., concurring)). However, there
were no such findings present in Lopez as “[n]either the statute nor its legislative
history contain[ed] express congressional findings regarding the effects upon
interstate commerce of gun possession in a school zone.” Id. at 562 (first alteration
in original) (quotations omitted). Finally, although the government made
attenuated arguments about the substantial effects of gun possession in a local
school zone on interstate commerce (i.e., that possession of a firearm in a school
zone might lead to violent crime and violent crime affects the economy by driving
15 Case: 17-12038 Date Filed: 08/26/2020 Page: 16 of 28
up insurance costs and by deterring individuals from traveling to “unsafe areas”)
the Court rejected those arguments, concluding that such arguments would,
logically extended, allow Congress to regulate almost every private activity. Id. at
563–64. Consequently, because the text and structure of the Constitution do not
allow Congress a “general police power of the sort retained by the States,” id. at
567, the Court struck down the Act as unconstitutional.
Five years later, in United States v. Morrison, 529 U.S. 598 (2000), the
Supreme Court was again confronted with the question of whether a particular
statute regulating a non-economic activity was a valid exercise of Congress’s
power under the Interstate Commerce Clause. The statute in question in Morrison
created a civil right of action against perpetrators of gender-motivated crimes of
violence. Id. at 601 (citing the Violence Against Women Act of 1994, Pub. L.
103-322, § 40302 (1994), originally codified at 42 U.S.C. § 13981 (1994), now
codified at 34 U.S.C. § 12361). The government sought to sustain the statute “as a
regulation of activity that substantially affects interstate commerce.” Id. at 609.
The Court noted that, similar to the statute at issue in Lopez, the statute in question
did not seek to regulate an economic activity and “contain[ed] no jurisdictional
element establishing that the federal cause of action is in pursuance of Congress’[s]
power to regulate interstate commerce.” Id. at 613. But, unlike in Lopez, in
16 Case: 17-12038 Date Filed: 08/26/2020 Page: 17 of 28
Morrison Congress made express findings that gender-motivated violence affects
interstate commerce
“by deterring potential victims from traveling interstate, from engaging in employment in interstate business, and from transacting with business, and in places involved in interstate commerce; . . . by diminishing national productivity, increasing medical and other costs, and decreasing the supply of and the demand for interstate products.”
Id. at 614–15 (quoting H.R. Conf. Rep. No. 103–711, at 385, U.S. Code Cong. &
Admin. News 1994, pp. 1803, 1853). However, the Court reiterated that “the
existence of congressional findings is not sufficient, by itself, to sustain the
constitutionality of Commerce Clause legislation,” and Congress’s findings as to
the Morrison statute suffered from the same flaw as the arguments proffered by the
government in Lopez. Id. at 614–15. Specifically, the reasoning of Congress
followed “the but-for causal chain from the initial occurrence of violent crime . . .
to every attenuated effect upon interstate commerce[,]” which “[i]f accepted . . .
would allow Congress to regulate any crime as long as the nationwide, aggregated
impact of that crime has substantial effects on employment, production, transit, or
consumption.” Id. at 615. And, again the Court cautioned that such reasoning
would allow the vast regulation of crime, family law, and other areas traditionally
reserved to the states. Id. at 615–16. Accordingly, the Court concluded that
Congress may not “regulate noneconomic, violent criminal conduct based solely
on that conduct’s aggregate effect on interstate commerce.” Id. at 617.
17 Case: 17-12038 Date Filed: 08/26/2020 Page: 18 of 28
The Supreme Court applied the substantial-effects test yet again five years
later in Raich to determine whether the federal Controlled Substances Act (“CSA”)
was a valid exercise of the interstate commerce clause power as applied to prohibit
the purely intrastate growth and use of marijuana for medical purposes in
California. 545 U.S. at 15. The Court explained that although the respondents in
Raich were cultivating the marijuana for local consumption, it was “a fungible
commodity for which there is an established, albeit illegal, interstate market.” Id.
at 18. And “a primary purpose of the CSA is to control the supply and demand of
controlled substances in both lawful and unlawful drug markets.” Id. at 19. Thus,
“[g]iven the enforcement difficulties that attend distinguishing between marijuana
cultivated locally and marijuana grown elsewhere, and concerns about diversion
[of the locally grown marijuana] into illicit channels,” the Court concluded that
Congress had a rational basis for believing that purely intrastate marijuana
production would, in the aggregate, have a substantial effect on interstate
commerce. Id. at 22 (internal citation omitted). Accordingly, the Court upheld the
constitutionality of the CSA, as applied to the Raich respondents, noting that “case
law firmly establishes Congress’[s] power to regulate purely local activities that
are part of an economic ‘class of activities’ that have a substantial effect on
interstate commerce,” and “the de minimis character of individual instances” of
regulated conduct did not matter. Id. at 17, 22 (quoting Lopez, 514 U.S. at 558).
18 Case: 17-12038 Date Filed: 08/26/2020 Page: 19 of 28
Notably, in reaching this conclusion, the Court rejected the respondents’
argument that the CSA could not “be constitutionally applied to their activities
because Congress did not make a specific finding that the purely local production
of marijuana for medicinal purposes “would substantially affect the larger
interstate marijuana market.” Id. at 21. The Court reiterated that “while we will
consider congressional findings in our analysis when they are available, the
absence of particularized findings does not call into question Congress’[s]
authority to legislate.” Id. Finally, the Court emphasized that a reviewing court’s
task under the substantial-effects inquiry is “a modest one. We need not determine
whether respondents’ activities, taken in the aggregate, substantially affect
interstate commerce in fact, but only whether a ‘rational basis’ exists for so
concluding.” Id. at 22.
2. Application of this framework to the facts of this case
With this framework in mind, we turn to the question of whether the
MDLEA as applied to the defendants’ conduct in this case is a valid exercise of
Congress’s authority under the Foreign Commerce Clause to regulate those
activities that have a “substantial effect” on the commerce of the United States
“with foreign nations.” U.S. Const. art. I, § 8, cl. 3. The government maintains the
Baston/Raich framework requires us to conclude that the application of the
19 Case: 17-12038 Date Filed: 08/26/2020 Page: 20 of 28
MDLEA to the wholly foreign conduct in this case was a valid exercise of
Congress’s authority. Baston, however, is factually distinguishable.
First, Baston involved statutory provisions enacted as part of the TVPA, “a
comprehensive regulatory scheme” that included specific congressional findings
“that trafficking of persons has an aggregate economic impact on interstate and
foreign commerce.” Baston, 818 F.3d at 668–69 (quoting United States v. Evans,
476 F.3d 1176, 1179 (11th Cir. 2007)). Importantly, in applying the
substantial-effects test to the extraterritorial conduct at issue in Baston, we relied
on those congressional findings to determine that “Congress had a ‘rational basis’
to conclude that such conduct—even when it occurs exclusively overseas—is ‘part
of an economic “class of activities” that have a substantial effect on . . . commerce’
between the United States and other countries.” Id. at 668 (citing Raich, 545 U.S.
at 17). Indeed, Congress’s findings were the only support we cited for this
conclusion. See id.
Although the government argues that, similar to the TVPA, the MDLEA is a
comprehensive regulatory scheme designed to combat a global problem (in this
case, drug trafficking), the MDLEA does not contain any congressional findings
regarding international drug trafficking’s effect on United States commerce “with
foreign nations.” See 46 U.S.C. § 70501. The law mentions only that “trafficking
in controlled substances aboard vessels is a serious international problem” and that
20 Case: 17-12038 Date Filed: 08/26/2020 Page: 21 of 28
it “presents a specific threat to the security and societal well-being of the United
States[.]” 46 U.S.C. § 70501. It does not include any findings on the existence or
extent of an economic impact, aggregate or otherwise, of the international drug
trade on United States commerce with foreign nations. See id. Admittedly, such
congressional findings are not required nor sufficient to establish substantial effect.
Morrison, 529 U.S. at 614. Nevertheless, “to the extent that congressional findings
would enable us to evaluate the legislative judgment that the [wholly foreign drug
trafficking] in question substantially affected [the United States’s commerce with
foreign nations] . . . they are lacking here.” See Lopez, 514 U.S. at 563.
Second, the statutes at issue in Baston, 18 U.S.C. §§ 1591(a) and 1596(a)(2)
required both an effect on foreign commerce as an element of the offense and a
physical connection to the United States. Specifically, § 1591(a) makes it a crime
to, “in or affecting interstate or foreign commerce,” recruit a person knowing that
force, fraud, or coercion “will be used to cause the person to engage in a
commercial sex act.” 18 U.S.C. § 1591(a) (emphasis added). The MDLEA does
not contain a similar “in or affecting interstate or foreign commerce” element. See
46 U.S.C. §§ 70502(c), 70503.
Additionally, and more importantly, although not a focal point of the
analysis in Baston (but certainly a critical factual distinction when compared to the
case at hand), under § 1596(a) the United States has jurisdiction over the
21 Case: 17-12038 Date Filed: 08/26/2020 Page: 22 of 28
extraterritorial sex-trafficking conduct only if the defendant is “a national of the
United States,” “an alien lawfully admitted for permanent residence,” or otherwise
“present in the United States, irrespective of the nationality of the alleged
offender.” See 18 U.S.C. § 1596(a). Thus, § 1596 provides a jurisdictional hook
that precludes purely foreign activity with no nexus to the United States from being
criminalized. 5 In contrast, the MDLEA does not contain a similar jurisdictional
hook or nexus to tie wholly foreign extraterritorial conduct to the United States.6
See 46 U.S.C. §§ 70502(c), 70503. In any event, no such jurisdictional hooks are
present in this case.
5 This distinction means that had the situation in Baston in fact been analogous to the facts of this case—if, for example, the defendant had been an Australian who had trafficked women between Australia and New Zealand, and was never present in the United States—the statutes at issue in Baston, 18 U.S.C. §§ 1591 and 1596, would not have permitted the defendant’s prosecution in the United States. 6 Our discussion of nexus in the context of the Foreign Commerce Clause does not in any way undercut our holdings that no nexus is necessary where the MDLEA is an exercise of Congress’s express authority to define and punish conduct occurring on the high seas pursuant to the Felonies Clause. See United States v. Campbell, 743 F.3d 802, 810 (11th Cir. 2014) (“‘[W]e have always upheld extraterritorial convictions [for conduct occurring on the high seas] under our drug trafficking laws as an exercise of power under the Felonies Clause.’ . . . We also have recognized that the conduct proscribed by the [MDLEA] need not have a nexus to the United States because universal and protective principles support its extraterritorial reach” (first alteration in original) (quoting Bellaizac-Hurtado, 700 F.3d at 1257)). Specifically, under the protective principle of international law, Congress “may assert extraterritorial jurisdiction over vessels in the high seas that are engaged in conduct that has a potentially adverse effect and is generally recognized as a crime by nations that have reasonably developed legal systems.” Tinoco, 304 F.3d at 1108 (quotations omitted). Thus, we have frequently rejected a nexus requirement and upheld the constitutionality of the application of the MDLEA to conduct that occurred on the high seas as a valid exercise of Congress’s authority under the Felonies Clause. See, e.g., Estupinan, 453 F.3d at 1338–39; Rendon, 354 F.3d at 1325. 22 Case: 17-12038 Date Filed: 08/26/2020 Page: 23 of 28
Furthermore, the facts in Baston demonstrated that the defendant’s activities
were so thoroughly intertwined with the United States’s commerce with foreign
nations that the issue was not a close call. Baston “resided in Florida, where he
rented property, started businesses, and opened bank accounts,” and “portrayed
himself as a United States citizen.” Baston, 818 F.3d at 669. He also “used a
Florida driver’s license and a United States passport to facilitate his criminal
activities.” Id. at 670. He trafficked a victim “in both the United States and
Australia, and when he trafficked her in Australia, he wired the proceeds back to
Miami.” Id. The court described Baston’s contacts with the United States as
“legion,” concluding that he “used this country as a home base and took advantage
of its laws; he cannot now complain about being subjected to those laws.” Id. at
669–70. While these facts were discussed in relation to Baston’s due-process
claim, they nevertheless make clear that Baston could have made no credible
argument that his conduct had no effect on United States commerce with foreign
nations. In the case at hand, however, the government did not allege that the
contraband, the boat, or the defendants had any connection, even a peripheral one,
with the United States, when they were seized in the territorial waters of Jamaica.
Accordingly, Baston is factually distinguishable and is not dispositive of the
question of whether the MDLEA as applied to the defendants in this case was a
valid exercise of Congress’s foreign-commerce power.
23 Case: 17-12038 Date Filed: 08/26/2020 Page: 24 of 28
Turning to Raich, the government argues that Raich reaffirmed that wholly
intrastate economic activities could have a substantial effect on interstate
commerce and could be regulated by Congress via the Interstate Commerce
Clause. Therefore, according to the government, if we logically extend Raich to
this case, the MDLEA’s application to the defendants’ extraterritorial conduct is a
permissible exercise of Congress’s authority under the Foreign Commerce Clause
because Congress could rationally conclude that foreign drug trafficking could
have a substantial effect on the international drug trade, which has an aggregate
economic impact on foreign commerce. However, while Raich may serve as a
backdrop for our analysis, Raich involved Congress’s power to regulate commerce
“among the states,” which undoubtedly presents a different question than
Congress’s power to regulate commerce “with foreign nations,” and, therefore,
does not necessarily control our analysis. In other words, the Interstate Commerce
Clause jurisprudence must be carefully adapted to fit the “commerce with foreign
nations” context.
To be clear, Supreme Court jurisprudence confirms that Congress’s power
under the Commerce Clause, be it the Interstate, Foreign, or Indian Commerce
Clause, “is subject to outer limits.” See Lopez, 514 U.S. at 556–57; see also Nat’l
Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 557 (2012) (Congress does not
have “a general license to regulate an individual from cradle to grave,” even if
24 Case: 17-12038 Date Filed: 08/26/2020 Page: 25 of 28
“[e]veryone will likely participate in the markets for food, clothing, transportation,
shelter, or energy”); Baston, 818 F.3d at 668 (noting that the Foreign Commerce
Clause has “outer bounds” but declining to demarcate those bounds). Thus, the
question in this case, which again presents an as applied challenge, is whether there
is a rational basis for concluding that the drug-trafficking conduct here in the
territorial waters of a foreign nation, by foreign nationals using a foreign-registered
vessel, of drugs not bound for the United States, substantially affects United States
commerce with foreign nations. The record contains no evidence to support this
conclusion. And the government’s attenuated argument that wholly foreign drug
trafficking impacts the international drug trade, which could impact United States
commerce with foreign nations, requires a chain of inferences like that rejected by
the Lopez court. Lopez, 514 U.S. at 564. As the Lopez court noted, “if we were to
accept the [g]overnment’s arguments, we are hard pressed to posit any activity by
an individual that Congress is without power to regulate.” Id.
Indeed, under the government’s reasoning, nothing would prevent Congress
from globally policing wholly foreign drug trafficking commerce, potentially
intruding on the sovereignty of other Nations, and bringing foreign nationals into
the United States for prosecution based solely on extra-territorial conduct when the
United States was neither a party to, nor a target of, the commerce. See United
States v. Al-Maliki, 787 F.3d 784, 792–93 (6th Cir. 2015) (cautioning that “an
25 Case: 17-12038 Date Filed: 08/26/2020 Page: 26 of 28
unbounded reading of the Foreign Commerce Clause allows the federal
government to intrude on the sovereignty of other nations—just as a broad reading
of the Interstate Commerce Clause allows it to intrude on the sovereignty of the
States”). Moreover, the Constitution withholds “from Congress a plenary police
power that would authorize” such regulation. Lopez, 514 U.S. at 566. Rather, the
Constitution grants Congress the authority to regulate commerce “with foreign
nations” not “among and within foreign nations.” cf. Al-Maliki, 787 F.3d at 792
(noting that “the textualist reading” of the Foreign Commerce Clause “require[s]”
“commerce ‘with’ a foreign Nation”).
Accordingly, for the reasons set forth above, as applied to these defendants,
the MDLEA is unconstitutional and exceeded Congress’s authority under the
Foreign Commerce Clause.
B. NECESSARY AND PROPER CLAUSE
The government also argues that the MDLEA’s application to this case is a
valid exercise of Congress’s authority pursuant to Article I’s Necessary and Proper
Clause to enforce the 1989 Convention Against Illicit Traffic Treaty and the 1997
Jamaica Bilateral Agreement between the United States and Jamaica. We are
unpersuaded.
Article II of the Constitution gives the President the “Power, by and with the
Advice and Consent of the Senate, to make Treaties . . . .” U.S. Const. art. II, § 2,
26 Case: 17-12038 Date Filed: 08/26/2020 Page: 27 of 28
cl. 2. “In determining whether Congress has the authority to enact legislation
implementing such a treaty, we look to the Necessary and Proper Clause.” United
States v. Belfast, 611 F.3d 783, 804 (11th Cir. 2010). That clause provides that
“Congress shall have Power . . . [t]o make all Laws which shall be necessary and
proper for carrying into Execution the foregoing Powers, and all other Powers
vested by this Constitution in the Government of the United States, or in any
Department or Officer thereof.” U.S. Const. art. I, § 8, cl. 18. “Collectively, these
clauses empower Congress to enact any law that is necessary and proper to
effectuate a treaty made pursuant to Article II.” Belfast, 611 F.3d at 804 (emphasis
added).
But the MDLEA was enacted long before the Convention against Illicit
Traffic Treaty or the Jamaica Bilateral Agreement; therefore, it was not enacted
pursuant to the Necessary and Proper Clause to effectuate those international
agreements. See id. And the government has not provided us with any case in
which legislation has been upheld as necessary and proper for carrying into
execution a treaty which did not yet exist at the time the legislation was enacted.
Cf. United States v. Lara, 541 U.S. 193, 201 (2004) (“The treaty power does not
literally authorize Congress to act legislatively, for it is an Article II power
authorizing the President, not Congress, ‘to make Treaties.’” (quoting U.S. Const.
art. II, § 2, cl. 2)). Moreover, “nothing in the legislative history of MDLEA
27 Case: 17-12038 Date Filed: 08/26/2020 Page: 28 of 28
mentions a treaty or intimates that the legislation is in compliance with treaty
obligations.” United States v. Cardales-Luna, 632 F.3d 731, 749 (1st Cir. 2011)
(Torruella, J., dissenting). Similarly, “[n]o court decision dealing with [the]
MDLEA refers to any treaty obligation as the source of Congress’s Article I
authority.” Id. Accordingly, we do not find that, as applied to these defendants,
the MDLEA was a valid exercise of Congress’s authority under the Necessary and
Proper Clause to effectuate the subsequently enacted Illicit Traffic Treaty or the
Jamaica Bilateral Agreement.
IV. CONCLUSION
Because as applied to these defendants, the MDLEA exceeded Congress’s
authority under Article I, we must VACATE their convictions.
28 | 08-28-2020 | [
"Case: 17-12038 Date Filed: 08/26/2020 Page: 1 of 28 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 17-12038 D.C. Docket No. 4:16-cr-10032-JEM-2 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus ANDRES ALBETO DAVILA-MENDOZA, Defendant - Appellant. No. 17-12039 D.C. Docket No. 4:16-cr-10032-JEM-3 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus OTMAR SING GONZALEZ, Defendant - Appellant. Case: 17-12038 Date Filed: 08/26/2020 Page: 2 of 28 No. 17-12742 D.C. Docket No. 4:16-cr-10032-JEM-1 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus JULIO BRAVO PINEDA, Defendant - Appellant.",
"Appeals from the United States District Court for the Southern District of Florida (August 26, 2020) Before JILL PRYOR, BRANCH, and BOGGS,∗ Circuit Judges. BRANCH, Circuit Judge: In this case, three foreign nationals in a foreign vessel in the territorial waters of a foreign nation were arrested by the United States Coast Guard with the consent of the foreign country and prosecuted in the United States for drug- ∗ Honorable Danny J. Boggs, United States Circuit Judge for the Sixth Circuit, sitting by designation. 2 Case: 17-12038 Date Filed: 08/26/2020 Page: 3 of 28 trafficking crimes under the Maritime Drug Law Enforcement Act (MDLEA), 46 U.S.C. §§ 70501–70508. The defendants unsuccessfully moved to dismiss the indictment, in relevant part, on the ground that the MDLEA was unconstitutional as applied to them because Congress lacks the authority to criminalize acts committed in the territorial waters of foreign nations. The defendants ultimately pleaded guilty to the drug-trafficking crimes, but preserved their right to appeal the denial of their motion to dismiss. This appeal followed and presents us with a question of first impression—whether the MDLEA exceeds Congress’s authority pursuant to the Constitution’s Foreign Commerce Clause or, alternatively, the Necessary and Proper Clause, as applied to the drug-trafficking activities of these defendants in the territorial waters of a consenting foreign country.",
"After careful consideration, and with the benefit of oral argument, we conclude that the MDLEA, as applied to these defendants, exceeds Congress’s constitutional authority, and we vacate their convictions. I. BACKGROUND The undisputed facts are as follows. On June 4, 2016, Andres Davila- Mendoza, Otmar Gonzalez, Julio Pineda, and a minor were on board a stalled go- fast vessel in the territorial waters of Jamaica. With the permission of the Jamaican government, U.S. Coast Guard officials who had been patrolling the area by air and sea boarded and searched the distressed vessel. They discovered that the 3 Case: 17-12038 Date Filed: 08/26/2020 Page: 4 of 28 vessel was loaded with 3,500 kilograms of baled marijuana. Pineda told the Coast Guard officials that he was the captain, that he was Nicaraguan, that the vessel was Costa Rican, and that they were traveling from Jamaica to Costa Rica. Another crew member stated that the vessel was overloaded with marijuana and its engines had stopped working. With the further permission of the Jamaican government, the Coast Guard seized the boat occupants and the drugs, and the United States prosecuted the three men.",
"The three defendants were charged in an indictment with possessing and conspiring to possess with intent to distribute more than 1,000 kilograms of marijuana while on board a vessel, in violation of the MDLEA, 46 U.S.C. §§ 70503(a)(1), 70503(b); 70506(b). That statute provides in relevant part that: “While on board a covered vessel, an individual may not knowingly or intentionally . . . manufacture or distribute, or possess with intent to manufacture or distribute, a controlled substance.” 46 U.S.C. § 70503(a)(1). This prohibition “applies even though the act is committed outside the territorial jurisdiction of the United States.” Id. § 70503(b). For purposes of the MDLEA, a “covered vessel” includes “a vessel subject to the jurisdiction of the United States.” Id. § 70503(e). And the MDLEA specifically provides that a vessel in the territorial waters of a foreign nation is subject to the jurisdiction of the United States “if the nation consents to the enforcement of United States law by the United States.” Id. 4 Case: 17-12038 Date Filed: 08/26/2020 Page: 5 of 28 § 70502(c)(1)(E).1 Notably, in enacting the MDLEA, Congress found “that . . . trafficking in controlled substances aboard vessels is a serious international problem, is universally condemned, and presents a specific threat to the security and societal well-being of the United States.” Id. at § 70501.",
"The defendants moved to dismiss the indictment on the grounds that the application of the MDLEA to them exceeded Congress’s power under the Define and Punish Clause, U.S. Const. art. I, § 8, cl. 10. They also objected to the district court’s exercise of in personam jurisdiction over them as a violation of their due-process rights. The government responded that the extraterritorial application of the MDLEA to the defendants was authorized by the Foreign Commerce Clause, id. art. I, § 8, cl.",
"3, and/or the Necessary and Proper Clause, id. art. I, § 8, cl. 18. The magistrate judge heard oral argument on the issue and recommended that the defendants’ motion be denied, finding that Congress had lawfully exercised its power under the Foreign Commerce Clause. The magistrate judge also found that international law provided adequate notice to the defendants, satisfying due process. The defendants filed objections, and the district court affirmed and adopted the report and recommendation of the magistrate judge. 1 The defendants’ boat was a “vessel subject to the jurisdiction of the United States,” by statutory definition, because Jamaica consented to the United States Coast Guard’s enforcement of American laws in its territorial waters. 46 U.S.C. § 70502(c)(1)(E). 5 Case: 17-12038 Date Filed: 08/26/2020 Page: 6 of 28 The defendants pleaded guilty under a conditional plea agreement that preserved their right to appeal the denial of their motion to dismiss the indictment.",
"The district court sentenced each defendant to 59 months of imprisonment to be followed by removal proceedings and 5 years of non-reporting supervised release. The defendants now appeal on that preserved basis, and we consider their appeals together. II. STANDARD OF REVIEW “We review de novo the legal question of whether a statute is constitutional.” United States v. Campbell, 743 F.3d 802, 805 (11th Cir. 2014) (quoting United States v. Tinoco, 304 F.3d 1088, 1099 (11th Cir. 2002)). III. DISCUSSION The defendant-appellants in this consolidated appeal argue that the MDLEA, as applied to them, exceeds Congress’s authority under Article I of the Constitution. The government contends that the MDLEA, as applied to the defendants, was a valid exercise of Congress’s power under the Foreign Commerce Clause, or alternatively, under the Necessary and Proper Clause. We address whether Congress has such authority under each Clause in turn. A. The Foreign Commerce Clause As an initial matter, the district court correctly recognized that, under our Circuit precedent, the Constitution’s Define and Punish Clause does not authorize 6 Case: 17-12038 Date Filed: 08/26/2020 Page: 7 of 28 the MDLEA’s operation in foreign territorial waters. See United States v. Bellaizac-Hurtado, 700 F.3d 1245, 1258 (11th Cir.",
"2012). That tripartite clause grants Congress power to “define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations.” U.S. Const. art. I, § 8, cl. 10. Because the crimes here were not committed on the high seas,2 the Piracies and Felonies Clauses do not apply. And we explained in Bellaizac-Hurtado that the use of the term “the law of nations” in the Offenses Clause limits its application to those offenses recognized by customary international law. 700 F.3d at 1249–53. Because drug trafficking is not such an offense, id. at 1253–57, we held that the MDLEA was unconstitutional under the Offenses Clause as applied to the Bellaizac-Hurtado defendants, who had been charged with drug trafficking on board a vessel in the territorial waters of Panama.",
"But we generally presume statutes to be constitutional. United States v. Morrison, 529 U.S. 598, 607 (2000). And our Court has suggested in passing, albeit dicta, that there may exist a different Article I authorization for the MDLEA’s operation as applied to conduct that occurs in the territorial waters of a 2 The high seas lie beyond any nation’s territorial sea and are “international waters not subject to the dominion of any single nation.” United States v. Louisiana, 394 U.S. 11, 23 (1969). And we have frequently examined and upheld the constitutionality of the application of the MDLEA to conduct that occurred on the high seas. See, e.g., United States v. Estupinan, 453 F.3d 1336, 1338–39 (11th Cir. 2006); United States v. Rendon, 354 F.3d 1320, 1322–23 (11th Cir. 2003); Tinoco, 304 F.3d at 1092–95. But this case presents an altogether different question because the conduct at issue here involves foreign nationals aboard a foreign vessel in the territorial waters of a foreign nation, not the high seas. 7 Case: 17-12038 Date Filed: 08/26/2020 Page: 8 of 28 foreign nation—the Foreign Commerce Clause. United States v. Baston, 818 F.3d 651, 667 (11th Cir. 2016) (“If the government had invoked the Foreign Commerce Clause in Bellaizac-Hurtado, we might have reached a different result.”).",
"The government here has taken us up on that suggestion and argues that the MDLEA as applied to the conduct of these defendants was a valid exercise of Congress’s authority pursuant to the Foreign Commerce Clause. Accordingly, the question we must answer is whether the Foreign Commerce Clause authorizes the MDLEA’s operation as applied to these defendants. 1. Legal Framework The Constitution provides that “Congress shall have Power . . . [t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” U.S. Const.",
"art. I, § 8, cl. 3. This tripartite clause is commonly known as the Foreign Commerce Clause, the Interstate Commerce Clause, and the Indian Commerce Clause, respectively. “The Commerce Clause emerged as the Framers’ response to the central problem giving rise to the Constitution itself: the absence of any federal commerce power under the Articles of Confederation.” Gonzales v. Raich, 545 U.S. 1, 16 (2005). The Supreme Court first defined the nature of Congress’s commerce power in its 1824 decision in Gibbons v. Ogden, explaining that: [c]ommerce, undoubtedly, is traffic, but it is something more: it is intercourse. It describes the commercial intercourse between nations, 8 Case: 17-12038 Date Filed: 08/26/2020 Page: 9 of 28 and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse. . . . It is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution. 22 U.S. 1, 189–90, 196 (1824).",
"Over time, the understanding and meaning of “regulate Commerce,” at least in the context of the Interstate Commerce Clause, has expanded and three general categories of regulation have emerged as permissible exercises of Congress’s commerce power. See Raich, 545 U.S. at 15– 17 (discussing historical evolution of commerce power). “First, Congress can regulate the channels of interstate commerce. Second, Congress has authority to regulate and protect the instrumentalities of interstate commerce, and persons or things in interstate commerce. Third, Congress has the power to regulate activities that substantially affect interstate commerce.” Id.",
"at 16–17 (internal citations omitted). With regard to the Foreign Commerce Clause, the Supreme Court has described the Foreign Commerce Clause as granting Congress a broad, “exclusive[,] and plenary” power to regulate commerce with foreign nations. See Bd. of Trs. of Univ. of Ill. v. United States, 289 U.S. 48, 56 (1933). Yet, jurisprudence addressing Congress’s positive Foreign Commerce Clause power is sparse. Most of the Supreme Court’s Foreign Commerce Clause precedents concern the foreign commerce power only in its negative, or dormant, sense. 9 Case: 17-12038 Date Filed: 08/26/2020 Page: 10 of 28 Specifically, the dormant foreign commerce power operates to void acts of the states upon foreign commerce because of the Constitution’s overriding concern for national uniformity in foreign commerce—even in instances when Congress has not affirmatively acted.",
"See, e.g., Japan Line, Ltd. v. Cty. of L.A., 441 U.S. 434, 448 (1979) (striking down a state tax on imports); see also Bd. of Trs. of Univ. of Ill., 289 U.S. at 57–58 (affirming a U.S. tariff over a state’s protest). But the Supreme Court has never clearly articulated the bounds of the positive foreign commerce power. And we have only one case in which we have addressed Congress’s positive foreign commerce power, Baston. Specifically, the defendant in Baston was “an international sex trafficker” who trafficked women “around the world, from Florida to Australia to the United Arab Emirates.” 818 F.3d at 656. Although Baston was a non-citizen, he was arrested at his mother’s home in the United States and charged and convicted of violating 18 U.S.C. §§ 1596(a)(2) and 1591, which prohibits sex trafficking by force, fraud, or coercion.3 Id. at 657–59. 3 18 U.S.C.",
"§ 1591 provides: (a) Whoever knowingly-- (1) in or affecting interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States, recruits, entices, harbors, transports, provides, obtains, advertises, maintains, patronizes, or solicits by any means a person; or 10 Case: 17-12038 Date Filed: 08/26/2020 Page: 11 of 28 Notably, § 1596(a)(2) grants the United States “extra-territorial jurisdiction over” sex trafficking by force, fraud, or coercion that occurs overseas by a person who is “present in the United States.”4 As relevant background, Congress enacted §§ 1591 and 1596, respectively, as part of the Trafficking Victims Protection Act of 2000 and the Trafficking Victims Protection Reauthorization Act of 2008 (together, the “TVPA”). Id. at 666, 668. “The TVPA is part of a comprehensive regulatory scheme,” id. at 668 (quotation omitted), designed to “combat trafficking in persons .",
". . to ensure just and effective punishment of traffickers, and to protect their victims,” 22 U.S.C. (2) benefits, financially or by receiving anything of value, from participation in a venture which has engaged in an act described in violation of paragraph (1), knowing, or, except where the act constituting the violation of paragraph (1) is advertising, in reckless disregard of the fact, that means of force, threats of force, fraud, coercion described in subsection (e)(2), or any combination of such means will be used to cause the person to engage in a commercial sex act, or that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act, shall be punished as provided in subsection (b). 4 18 U.S.C. § 1596(a) provides: In addition to any domestic or extra-territorial jurisdiction otherwise provided by law, the courts of the United States have extra-territorial jurisdiction over any offense (or any attempt or conspiracy to commit an offense) under section .",
". . 1591 if— (1) an alleged offender is a national of the United States or an alien lawfully admitted for permanent residence (as those terms are defined in section 101 of the Immigration and Nationality Act (8 U.S.C. 1101)); or (2) an alleged offender is present in the United States, irrespective of the nationality of the alleged offender. 11 Case: 17-12038 Date Filed: 08/26/2020 Page: 12 of 28 § 7101. In enacting the TVPA, Congress expressly found that “[t]rafficking in persons is a modern form of slavery,” and “is the fastest growing source of profits for organized criminal enterprises worldwide.",
"Profits from the trafficking industry contribute to the expansion of organized crime in the United States and worldwide.” Id. § 7101(b)(1), (8). Further, Congress found that “[t]rafficking in persons substantially affects interstate and foreign commerce” as such trafficking “has an impact on the nationwide employment network and labor market.” Id. § 7101(b)(12). On appeal, Baston argued that he could not be ordered to pay restitution for his extraterritorial conduct, and that any holding to the contrary would exceed Congress’s authority under Article I of the Constitution. 818 F.3d at 666. Thus, this Court examined whether § 1596(a)(2), which confers extraterritorial jurisdiction over sex trafficking, was a constitutional exercise of Congress’s authority under the Foreign Commerce Clause. Id. at 666–69.",
"In addressing this question, we first noted that “nothing in the Foreign Commerce Clause” or in Article I itself “limits Congress’s power to enact extraterritorial laws.” Id. at 667. We then noted that the dormant Foreign Commerce Clause cases provided little insight into the bounds of Congress’s positive foreign commerce power other than the suggestion in dicta that the foreign commerce power “may be broader” than the interstate commerce power (the bounds of which have been more thoroughly 12 Case: 17-12038 Date Filed: 08/26/2020 Page: 13 of 28 explored). Id. at 668 (quoting Atl. Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 434 (1932)).",
"Nevertheless, we declined to “demarcate the outer bounds of the Foreign Commerce Clause” and instead “assum[ed], for the sake of argument, that the Foreign Commerce Clause has the same scope as the Interstate Commerce Clause.” Id. In other words, Congress’s power under the Foreign Commerce Clause includes at least the power to regulate the “channels” of commerce between the United States and other countries, the “instrumentalities” of commerce between the United States and other countries, and activities that have a “substantial effect” on commerce between the United States and other countries. Id. We then concluded that § 1596(a)(2) was a valid exercise of Congress’s foreign commerce power “at least as a regulation of activities that have a ‘substantial effect’ on foreign commerce.” 818 F.3d at 668. Citing the congressional findings, we explained that “Congress had a ‘rational basis’ to conclude that [sex trafficking by force, fraud, or coercion]—even when it occurs exclusively overseas—is ‘part of an economic “class of activities” that have a substantial effect on .",
". . commerce’ between the United States and other countries.” Id. at 668–69. With Baston as our guide in the case at hand, we too, assume, without deciding, that the Foreign Commerce Clause has the same scope as the Interstate Commerce Clause. Under this assumption, the parties agree that, given the unique 13 Case: 17-12038 Date Filed: 08/26/2020 Page: 14 of 28 facts of this case, if the application of the MDLEA to the defendants’ conduct is to pass muster, it will be under the third category of regulated commerce: those activities that have a “substantial effect” on commerce between the United States and foreign nations. The substantial-effects inquiry is most commonly conducted in the Interstate Commerce Clause context. For instance, in United States v. Lopez, 514 U.S. 549 (1995), the Supreme Court was tasked with determining whether the Gun-Free School Zones Act of 1990, which made it a federal offense “for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone[,]” was a valid exercise of Congress’s authority under the Interstate Commerce Clause. Id. at 551 (citing the Gun-Free School Zones Act of 1990, Pub.",
"L. 101-647, § 1702 (1990), codified at 18 U.S.C. § 922(q) (1990)). Emphasizing that Congress’s constitutionally enumerated powers have “judicially enforceable outer limits,” the Court set out to define more clearly the limit on Congress’s authority to regulate interstate commerce. Id. at 566. The Court acknowledged that, if the statute “[was] to be sustained, it must be under the third category as a regulation of an activity that substantially affects interstate commerce.” Id. at 559. The Court then explained “[w]here economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained.” Id. at 560. But the Gun Free School Zones Act was “a 14 Case: 17-12038 Date Filed: 08/26/2020 Page: 15 of 28 criminal statute that by its terms ha[d] nothing to do with ‘commerce’ or any sort of economic enterprise[. ]” Id.",
"at 561. The Court also noted that the statute “contain[ed] no jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affect[ed] interstate commerce.” Id. The Court further explained that although Congress is not required to make findings as to the burdens an activity has on interstate commerce and “[w]hether particular operations affect interstate commerce sufficiently to come under the constitutional power of Congress to regulate them is ultimately a judicial rather than a legislative question,” it nevertheless would consider any legislative and congressional findings regarding the effect of the activity on interstate commerce as part of its independent inquiry into the constitutionality of the statute under the Commerce Clause. Id. at 557 n.2, 562–63 (quoting Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 273 (1964) (Black, J., concurring)).",
"However, there were no such findings present in Lopez as “[n]either the statute nor its legislative history contain[ed] express congressional findings regarding the effects upon interstate commerce of gun possession in a school zone.” Id. at 562 (first alteration in original) (quotations omitted). Finally, although the government made attenuated arguments about the substantial effects of gun possession in a local school zone on interstate commerce (i.e., that possession of a firearm in a school zone might lead to violent crime and violent crime affects the economy by driving 15 Case: 17-12038 Date Filed: 08/26/2020 Page: 16 of 28 up insurance costs and by deterring individuals from traveling to “unsafe areas”) the Court rejected those arguments, concluding that such arguments would, logically extended, allow Congress to regulate almost every private activity. Id.",
"at 563–64. Consequently, because the text and structure of the Constitution do not allow Congress a “general police power of the sort retained by the States,” id. at 567, the Court struck down the Act as unconstitutional. Five years later, in United States v. Morrison, 529 U.S. 598 (2000), the Supreme Court was again confronted with the question of whether a particular statute regulating a non-economic activity was a valid exercise of Congress’s power under the Interstate Commerce Clause. The statute in question in Morrison created a civil right of action against perpetrators of gender-motivated crimes of violence. Id. at 601 (citing the Violence Against Women Act of 1994, Pub. L. 103-322, § 40302 (1994), originally codified at 42 U.S.C. § 13981 (1994), now codified at 34 U.S.C.",
"§ 12361). The government sought to sustain the statute “as a regulation of activity that substantially affects interstate commerce.” Id. at 609. The Court noted that, similar to the statute at issue in Lopez, the statute in question did not seek to regulate an economic activity and “contain[ed] no jurisdictional element establishing that the federal cause of action is in pursuance of Congress’[s] power to regulate interstate commerce.” Id. at 613. But, unlike in Lopez, in 16 Case: 17-12038 Date Filed: 08/26/2020 Page: 17 of 28 Morrison Congress made express findings that gender-motivated violence affects interstate commerce “by deterring potential victims from traveling interstate, from engaging in employment in interstate business, and from transacting with business, and in places involved in interstate commerce; . . .",
"by diminishing national productivity, increasing medical and other costs, and decreasing the supply of and the demand for interstate products.” Id. at 614–15 (quoting H.R. Conf. Rep. No. 103–711, at 385, U.S. Code Cong. & Admin. News 1994, pp. 1803, 1853). However, the Court reiterated that “the existence of congressional findings is not sufficient, by itself, to sustain the constitutionality of Commerce Clause legislation,” and Congress’s findings as to the Morrison statute suffered from the same flaw as the arguments proffered by the government in Lopez. Id. at 614–15. Specifically, the reasoning of Congress followed “the but-for causal chain from the initial occurrence of violent crime . . . to every attenuated effect upon interstate commerce[,]” which “[i]f accepted . . . would allow Congress to regulate any crime as long as the nationwide, aggregated impact of that crime has substantial effects on employment, production, transit, or consumption.” Id.",
"at 615. And, again the Court cautioned that such reasoning would allow the vast regulation of crime, family law, and other areas traditionally reserved to the states. Id. at 615–16. Accordingly, the Court concluded that Congress may not “regulate noneconomic, violent criminal conduct based solely on that conduct’s aggregate effect on interstate commerce.” Id. at 617. 17 Case: 17-12038 Date Filed: 08/26/2020 Page: 18 of 28 The Supreme Court applied the substantial-effects test yet again five years later in Raich to determine whether the federal Controlled Substances Act (“CSA”) was a valid exercise of the interstate commerce clause power as applied to prohibit the purely intrastate growth and use of marijuana for medical purposes in California. 545 U.S. at 15. The Court explained that although the respondents in Raich were cultivating the marijuana for local consumption, it was “a fungible commodity for which there is an established, albeit illegal, interstate market.” Id. at 18. And “a primary purpose of the CSA is to control the supply and demand of controlled substances in both lawful and unlawful drug markets.” Id.",
"at 19. Thus, “[g]iven the enforcement difficulties that attend distinguishing between marijuana cultivated locally and marijuana grown elsewhere, and concerns about diversion [of the locally grown marijuana] into illicit channels,” the Court concluded that Congress had a rational basis for believing that purely intrastate marijuana production would, in the aggregate, have a substantial effect on interstate commerce. Id. at 22 (internal citation omitted). Accordingly, the Court upheld the constitutionality of the CSA, as applied to the Raich respondents, noting that “case law firmly establishes Congress’[s] power to regulate purely local activities that are part of an economic ‘class of activities’ that have a substantial effect on interstate commerce,” and “the de minimis character of individual instances” of regulated conduct did not matter. Id. at 17, 22 (quoting Lopez, 514 U.S. at 558).",
"18 Case: 17-12038 Date Filed: 08/26/2020 Page: 19 of 28 Notably, in reaching this conclusion, the Court rejected the respondents’ argument that the CSA could not “be constitutionally applied to their activities because Congress did not make a specific finding that the purely local production of marijuana for medicinal purposes “would substantially affect the larger interstate marijuana market.” Id. at 21. The Court reiterated that “while we will consider congressional findings in our analysis when they are available, the absence of particularized findings does not call into question Congress’[s] authority to legislate.” Id. Finally, the Court emphasized that a reviewing court’s task under the substantial-effects inquiry is “a modest one.",
"We need not determine whether respondents’ activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a ‘rational basis’ exists for so concluding.” Id. at 22. 2. Application of this framework to the facts of this case With this framework in mind, we turn to the question of whether the MDLEA as applied to the defendants’ conduct in this case is a valid exercise of Congress’s authority under the Foreign Commerce Clause to regulate those activities that have a “substantial effect” on the commerce of the United States “with foreign nations.” U.S. Const. art.",
"I, § 8, cl. 3. The government maintains the Baston/Raich framework requires us to conclude that the application of the 19 Case: 17-12038 Date Filed: 08/26/2020 Page: 20 of 28 MDLEA to the wholly foreign conduct in this case was a valid exercise of Congress’s authority. Baston, however, is factually distinguishable. First, Baston involved statutory provisions enacted as part of the TVPA, “a comprehensive regulatory scheme” that included specific congressional findings “that trafficking of persons has an aggregate economic impact on interstate and foreign commerce.” Baston, 818 F.3d at 668–69 (quoting United States v. Evans, 476 F.3d 1176, 1179 (11th Cir. 2007)). Importantly, in applying the substantial-effects test to the extraterritorial conduct at issue in Baston, we relied on those congressional findings to determine that “Congress had a ‘rational basis’ to conclude that such conduct—even when it occurs exclusively overseas—is ‘part of an economic “class of activities” that have a substantial effect on .",
". . commerce’ between the United States and other countries.” Id. at 668 (citing Raich, 545 U.S. at 17). Indeed, Congress’s findings were the only support we cited for this conclusion. See id. Although the government argues that, similar to the TVPA, the MDLEA is a comprehensive regulatory scheme designed to combat a global problem (in this case, drug trafficking), the MDLEA does not contain any congressional findings regarding international drug trafficking’s effect on United States commerce “with foreign nations.” See 46 U.S.C.",
"§ 70501. The law mentions only that “trafficking in controlled substances aboard vessels is a serious international problem” and that 20 Case: 17-12038 Date Filed: 08/26/2020 Page: 21 of 28 it “presents a specific threat to the security and societal well-being of the United States[. ]” 46 U.S.C. § 70501. It does not include any findings on the existence or extent of an economic impact, aggregate or otherwise, of the international drug trade on United States commerce with foreign nations. See id. Admittedly, such congressional findings are not required nor sufficient to establish substantial effect. Morrison, 529 U.S. at 614. Nevertheless, “to the extent that congressional findings would enable us to evaluate the legislative judgment that the [wholly foreign drug trafficking] in question substantially affected [the United States’s commerce with foreign nations] . .",
". they are lacking here.” See Lopez, 514 U.S. at 563. Second, the statutes at issue in Baston, 18 U.S.C. §§ 1591(a) and 1596(a)(2) required both an effect on foreign commerce as an element of the offense and a physical connection to the United States. Specifically, § 1591(a) makes it a crime to, “in or affecting interstate or foreign commerce,” recruit a person knowing that force, fraud, or coercion “will be used to cause the person to engage in a commercial sex act.” 18 U.S.C.",
"§ 1591(a) (emphasis added). The MDLEA does not contain a similar “in or affecting interstate or foreign commerce” element. See 46 U.S.C. §§ 70502(c), 70503. Additionally, and more importantly, although not a focal point of the analysis in Baston (but certainly a critical factual distinction when compared to the case at hand), under § 1596(a) the United States has jurisdiction over the 21 Case: 17-12038 Date Filed: 08/26/2020 Page: 22 of 28 extraterritorial sex-trafficking conduct only if the defendant is “a national of the United States,” “an alien lawfully admitted for permanent residence,” or otherwise “present in the United States, irrespective of the nationality of the alleged offender.” See 18 U.S.C. § 1596(a).",
"Thus, § 1596 provides a jurisdictional hook that precludes purely foreign activity with no nexus to the United States from being criminalized. 5 In contrast, the MDLEA does not contain a similar jurisdictional hook or nexus to tie wholly foreign extraterritorial conduct to the United States.6 See 46 U.S.C. §§ 70502(c), 70503. In any event, no such jurisdictional hooks are present in this case. 5 This distinction means that had the situation in Baston in fact been analogous to the facts of this case—if, for example, the defendant had been an Australian who had trafficked women between Australia and New Zealand, and was never present in the United States—the statutes at issue in Baston, 18 U.S.C. §§ 1591 and 1596, would not have permitted the defendant’s prosecution in the United States.",
"6 Our discussion of nexus in the context of the Foreign Commerce Clause does not in any way undercut our holdings that no nexus is necessary where the MDLEA is an exercise of Congress’s express authority to define and punish conduct occurring on the high seas pursuant to the Felonies Clause. See United States v. Campbell, 743 F.3d 802, 810 (11th Cir. 2014) (“‘[W]e have always upheld extraterritorial convictions [for conduct occurring on the high seas] under our drug trafficking laws as an exercise of power under the Felonies Clause.’ .",
". . We also have recognized that the conduct proscribed by the [MDLEA] need not have a nexus to the United States because universal and protective principles support its extraterritorial reach” (first alteration in original) (quoting Bellaizac-Hurtado, 700 F.3d at 1257)). Specifically, under the protective principle of international law, Congress “may assert extraterritorial jurisdiction over vessels in the high seas that are engaged in conduct that has a potentially adverse effect and is generally recognized as a crime by nations that have reasonably developed legal systems.” Tinoco, 304 F.3d at 1108 (quotations omitted). Thus, we have frequently rejected a nexus requirement and upheld the constitutionality of the application of the MDLEA to conduct that occurred on the high seas as a valid exercise of Congress’s authority under the Felonies Clause. See, e.g., Estupinan, 453 F.3d at 1338–39; Rendon, 354 F.3d at 1325. 22 Case: 17-12038 Date Filed: 08/26/2020 Page: 23 of 28 Furthermore, the facts in Baston demonstrated that the defendant’s activities were so thoroughly intertwined with the United States’s commerce with foreign nations that the issue was not a close call.",
"Baston “resided in Florida, where he rented property, started businesses, and opened bank accounts,” and “portrayed himself as a United States citizen.” Baston, 818 F.3d at 669. He also “used a Florida driver’s license and a United States passport to facilitate his criminal activities.” Id. at 670. He trafficked a victim “in both the United States and Australia, and when he trafficked her in Australia, he wired the proceeds back to Miami.” Id. The court described Baston’s contacts with the United States as “legion,” concluding that he “used this country as a home base and took advantage of its laws; he cannot now complain about being subjected to those laws.” Id. at 669–70. While these facts were discussed in relation to Baston’s due-process claim, they nevertheless make clear that Baston could have made no credible argument that his conduct had no effect on United States commerce with foreign nations. In the case at hand, however, the government did not allege that the contraband, the boat, or the defendants had any connection, even a peripheral one, with the United States, when they were seized in the territorial waters of Jamaica.",
"Accordingly, Baston is factually distinguishable and is not dispositive of the question of whether the MDLEA as applied to the defendants in this case was a valid exercise of Congress’s foreign-commerce power. 23 Case: 17-12038 Date Filed: 08/26/2020 Page: 24 of 28 Turning to Raich, the government argues that Raich reaffirmed that wholly intrastate economic activities could have a substantial effect on interstate commerce and could be regulated by Congress via the Interstate Commerce Clause. Therefore, according to the government, if we logically extend Raich to this case, the MDLEA’s application to the defendants’ extraterritorial conduct is a permissible exercise of Congress’s authority under the Foreign Commerce Clause because Congress could rationally conclude that foreign drug trafficking could have a substantial effect on the international drug trade, which has an aggregate economic impact on foreign commerce. However, while Raich may serve as a backdrop for our analysis, Raich involved Congress’s power to regulate commerce “among the states,” which undoubtedly presents a different question than Congress’s power to regulate commerce “with foreign nations,” and, therefore, does not necessarily control our analysis. In other words, the Interstate Commerce Clause jurisprudence must be carefully adapted to fit the “commerce with foreign nations” context. To be clear, Supreme Court jurisprudence confirms that Congress’s power under the Commerce Clause, be it the Interstate, Foreign, or Indian Commerce Clause, “is subject to outer limits.” See Lopez, 514 U.S. at 556–57; see also Nat’l Fed’n of Indep. Bus.",
"v. Sebelius, 567 U.S. 519, 557 (2012) (Congress does not have “a general license to regulate an individual from cradle to grave,” even if 24 Case: 17-12038 Date Filed: 08/26/2020 Page: 25 of 28 “[e]veryone will likely participate in the markets for food, clothing, transportation, shelter, or energy”); Baston, 818 F.3d at 668 (noting that the Foreign Commerce Clause has “outer bounds” but declining to demarcate those bounds). Thus, the question in this case, which again presents an as applied challenge, is whether there is a rational basis for concluding that the drug-trafficking conduct here in the territorial waters of a foreign nation, by foreign nationals using a foreign-registered vessel, of drugs not bound for the United States, substantially affects United States commerce with foreign nations. The record contains no evidence to support this conclusion. And the government’s attenuated argument that wholly foreign drug trafficking impacts the international drug trade, which could impact United States commerce with foreign nations, requires a chain of inferences like that rejected by the Lopez court.",
"Lopez, 514 U.S. at 564. As the Lopez court noted, “if we were to accept the [g]overnment’s arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate.” Id. Indeed, under the government’s reasoning, nothing would prevent Congress from globally policing wholly foreign drug trafficking commerce, potentially intruding on the sovereignty of other Nations, and bringing foreign nationals into the United States for prosecution based solely on extra-territorial conduct when the United States was neither a party to, nor a target of, the commerce. See United States v. Al-Maliki, 787 F.3d 784, 792–93 (6th Cir. 2015) (cautioning that “an 25 Case: 17-12038 Date Filed: 08/26/2020 Page: 26 of 28 unbounded reading of the Foreign Commerce Clause allows the federal government to intrude on the sovereignty of other nations—just as a broad reading of the Interstate Commerce Clause allows it to intrude on the sovereignty of the States”).",
"Moreover, the Constitution withholds “from Congress a plenary police power that would authorize” such regulation. Lopez, 514 U.S. at 566. Rather, the Constitution grants Congress the authority to regulate commerce “with foreign nations” not “among and within foreign nations.” cf. Al-Maliki, 787 F.3d at 792 (noting that “the textualist reading” of the Foreign Commerce Clause “require[s]” “commerce ‘with’ a foreign Nation”). Accordingly, for the reasons set forth above, as applied to these defendants, the MDLEA is unconstitutional and exceeded Congress’s authority under the Foreign Commerce Clause. B. NECESSARY AND PROPER CLAUSE The government also argues that the MDLEA’s application to this case is a valid exercise of Congress’s authority pursuant to Article I’s Necessary and Proper Clause to enforce the 1989 Convention Against Illicit Traffic Treaty and the 1997 Jamaica Bilateral Agreement between the United States and Jamaica. We are unpersuaded. Article II of the Constitution gives the President the “Power, by and with the Advice and Consent of the Senate, to make Treaties . . .",
".” U.S. Const. art. II, § 2, 26 Case: 17-12038 Date Filed: 08/26/2020 Page: 27 of 28 cl. 2. “In determining whether Congress has the authority to enact legislation implementing such a treaty, we look to the Necessary and Proper Clause.” United States v. Belfast, 611 F.3d 783, 804 (11th Cir. 2010). That clause provides that “Congress shall have Power . . . [t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” U.S. Const.",
"art. I, § 8, cl. 18. “Collectively, these clauses empower Congress to enact any law that is necessary and proper to effectuate a treaty made pursuant to Article II.” Belfast, 611 F.3d at 804 (emphasis added). But the MDLEA was enacted long before the Convention against Illicit Traffic Treaty or the Jamaica Bilateral Agreement; therefore, it was not enacted pursuant to the Necessary and Proper Clause to effectuate those international agreements. See id. And the government has not provided us with any case in which legislation has been upheld as necessary and proper for carrying into execution a treaty which did not yet exist at the time the legislation was enacted. Cf. United States v. Lara, 541 U.S. 193, 201 (2004) (“The treaty power does not literally authorize Congress to act legislatively, for it is an Article II power authorizing the President, not Congress, ‘to make Treaties.’” (quoting U.S. Const. art. II, § 2, cl. 2)).",
"Moreover, “nothing in the legislative history of MDLEA 27 Case: 17-12038 Date Filed: 08/26/2020 Page: 28 of 28 mentions a treaty or intimates that the legislation is in compliance with treaty obligations.” United States v. Cardales-Luna, 632 F.3d 731, 749 (1st Cir. 2011) (Torruella, J., dissenting). Similarly, “[n]o court decision dealing with [the] MDLEA refers to any treaty obligation as the source of Congress’s Article I authority.” Id. Accordingly, we do not find that, as applied to these defendants, the MDLEA was a valid exercise of Congress’s authority under the Necessary and Proper Clause to effectuate the subsequently enacted Illicit Traffic Treaty or the Jamaica Bilateral Agreement. IV. CONCLUSION Because as applied to these defendants, the MDLEA exceeded Congress’s authority under Article I, we must VACATE their convictions. 28"
]
| https://www.courtlistener.com/api/rest/v3/opinions/4561263/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
SAMUEL, Judge. This is a devolutive appeal taken by the plaintiffs from a judgment maintaining exceptions of no right or cause of action and dismissing their suit. The only matter before us at this time is an appellee motion to dismiss the appeal.1 The motion is jurisdictional; it is based on the allegation that the appeal was not perfected timely. The delay for taking a devolutive appeal is controlled by LSA-C.C.P. Art. 2087, which in pertinent part reads: “Except as otherwise provided in this Article or by other law, an appeal which does not suspend the effect or the execution of an appealable order or judgment may be taken, and the security therefor furnished, within sixty days after:
(3) The date of the mailing of notice of the court’s refusal to grant a timely application for a new trial, if the applicant is entitled to such notice under Article 1914. ...” The record reveals these facts: The judgment appealed from was signed January 14, 1977. A motion for a new trial was denied by judgment signed February 11, 1977 and notice of that refusal to grant a new trial was mailed the same day, February 11, 1977. On April 14, 1977, the petition for appeal was filed, the order granting the appeal was signed, and the bond required by that order was furnished. Thus, the delay for taking the appeal commenced to run February 12, 1977, the day after the court’s refusal to grant the application for a new trial and the mailing of notice of that refusal. The fact that February 12, 1977 was a legal holiday (a Saturday) did not prevent the appeal delay from beginning to run on that day.2 As the appeal was not taken, nor was the security therefor furnished, until April 14, 1977, a delay of sixty-two days, the appeal was not perfected within the sixty day delay required by the above quoted LSA-C. C.P. Art. 2087. Accordingly, the appeal must be dismissed. For the reasons assigned, the motion to dismiss the appeal is maintained and the appeal is dismissed.
MOTION MAINTAINED; APPEAL DISMISSED.
. Because the record was lodged in this court shortly after the motion to dismiss was filed, there are two docket numbers. The docket number of the motion is 8775 and the docket number of the case is 8822.
. See LSA-C.C.P. Art. 5059; Midland Discount Company v. Phillips, La.App., 196 So.2d 832; Scalfano v. Doyal, La.App., 177 So.2d 398. | 07-29-2022 | [
"SAMUEL, Judge. This is a devolutive appeal taken by the plaintiffs from a judgment maintaining exceptions of no right or cause of action and dismissing their suit. The only matter before us at this time is an appellee motion to dismiss the appeal.1 The motion is jurisdictional; it is based on the allegation that the appeal was not perfected timely. The delay for taking a devolutive appeal is controlled by LSA-C.C.P. Art. 2087, which in pertinent part reads: “Except as otherwise provided in this Article or by other law, an appeal which does not suspend the effect or the execution of an appealable order or judgment may be taken, and the security therefor furnished, within sixty days after: (3) The date of the mailing of notice of the court’s refusal to grant a timely application for a new trial, if the applicant is entitled to such notice under Article 1914. ...” The record reveals these facts: The judgment appealed from was signed January 14, 1977. A motion for a new trial was denied by judgment signed February 11, 1977 and notice of that refusal to grant a new trial was mailed the same day, February 11, 1977. On April 14, 1977, the petition for appeal was filed, the order granting the appeal was signed, and the bond required by that order was furnished. Thus, the delay for taking the appeal commenced to run February 12, 1977, the day after the court’s refusal to grant the application for a new trial and the mailing of notice of that refusal.",
"The fact that February 12, 1977 was a legal holiday (a Saturday) did not prevent the appeal delay from beginning to run on that day.2 As the appeal was not taken, nor was the security therefor furnished, until April 14, 1977, a delay of sixty-two days, the appeal was not perfected within the sixty day delay required by the above quoted LSA-C. C.P. Art. 2087. Accordingly, the appeal must be dismissed. For the reasons assigned, the motion to dismiss the appeal is maintained and the appeal is dismissed. MOTION MAINTAINED; APPEAL DISMISSED. . Because the record was lodged in this court shortly after the motion to dismiss was filed, there are two docket numbers. The docket number of the motion is 8775 and the docket number of the case is 8822. . See LSA-C.C.P. Art.",
"5059; Midland Discount Company v. Phillips, La.App., 196 So.2d 832; Scalfano v. Doyal, La.App., 177 So.2d 398."
]
| https://www.courtlistener.com/api/rest/v3/opinions/7484762/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
PER CURIAM. We affirm the appellant’s conviction for arson of an occupied dwelling. We agree with the appellant’s contention that the trial court erred in sentencing him under the violent habitual offender statute for an offense which occurred prior to the effective date of that statute. Binstead v. State, 565 So.2d 419 (Fla. 2d DCA 1990). Accordingly, we vacate the sentence imposed and remand to the trial court for resentencing. On remand, the trial court may impose an habitual offender sentence, if appropriate under section 775.084(4)(a), Florida Statutes (1987), if the proper findings are made. Smith v. State, 561 So.2d 1281 (Fla. 2d DCA 1990). Additionally, we find that the appellant waived any objection to the court-assessed lien for attorney’s fees, however, we strike the imposed court costs without prejudice to the state to seek reimposition after proper notice and opportunity to be heard. Reversed and remanded for resentenc-ing. SCHOONOVER, C.J., and RYDER and CAMPBELL, JJ., concur. | 07-29-2022 | [
"PER CURIAM. We affirm the appellant’s conviction for arson of an occupied dwelling. We agree with the appellant’s contention that the trial court erred in sentencing him under the violent habitual offender statute for an offense which occurred prior to the effective date of that statute. Binstead v. State, 565 So.2d 419 (Fla. 2d DCA 1990). Accordingly, we vacate the sentence imposed and remand to the trial court for resentencing. On remand, the trial court may impose an habitual offender sentence, if appropriate under section 775.084(4)(a), Florida Statutes (1987), if the proper findings are made. Smith v. State, 561 So.2d 1281 (Fla. 2d DCA 1990). Additionally, we find that the appellant waived any objection to the court-assessed lien for attorney’s fees, however, we strike the imposed court costs without prejudice to the state to seek reimposition after proper notice and opportunity to be heard. Reversed and remanded for resentenc-ing. SCHOONOVER, C.J., and RYDER and CAMPBELL, JJ., concur."
]
| https://www.courtlistener.com/api/rest/v3/opinions/7590046/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
DETAILED ACTION This Office Action is in response to Application No. 16/169,184 filed on October 24th, 2018. Claims 1-18 are presented for examination and are currently pending. Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Priority Acknowledgment is made of applicant’s claim for priority. The priority date from the provisional application is: October 30th, 2017. The provisional application number is: 62/578,565 Information Disclosure Statement The information disclosure statement (IDS) submitted on October 24th, 2018 was filed. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Claim Objections Claims 8 and 17 objected to because of the following informalities: 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. Appropriate correction is requested. Claim Interpretation The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked. As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) 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.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not 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 function without reciting sufficient structure, material or acts to entirely perform the recited function. Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) 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.
Claims 10-18 of 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 limitation(s) uses 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. Within claim 10, “auto-encoder”, “generator”, and “discriminator” all fall into the above category. The specification switches between the above and their respective As above, claim 10 also refers to software models that are created and trained by the above structures (generator model, discriminator model, and auto-encoder model) that represent software to be run on generic computer components. Examiner notes that Fig. 2 of the specification denotes pseudocode that explain how the above software models would be carried out.
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, 4-6, 10, and 13-15 is/are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Kaufhold (US 20190080205 A1).
In regards to claim 1, Kaufhold teaches the following: A method for embedding a network in a latent space, comprising: generating a representation of an input network graph in the latent space using an autoencoder model; [ (Fig. 17) and (¶0034) “Formally, within an autoencoder, a function maps input data to a hidden representation using a non-linear activation function. This is known as the encoding”
generating a representation of a set of noise samples in the latent space using a generator model; [ (¶0041) “One of the networks is typically called the discriminative network and the other is typically called the generative network. The discriminative network has knowledge of the training examples. The generative network does not, and tries to ‘generate new samples,’ typically beginning from noise.” This citation teaches the generator model creating data based off of noise with the set of noise samples being equivalent to the generated new samples beginning from noise. ] [ (¶0094) “FIG. 25 depicts a data set with a sparsely defined class 2503 and examples of ‘generated’ images (2509, 2511, 2513, 2515, 2517, 2519). This embodiment takes advantage of the theory of image manifolds [see endnote 5] and generates images that are similar to a given image with slight variations. “ This citation along with the referenced figure teach the newly generated images being put onto the linear space (equivalent to latent space) alongside the non-generated data. ] discriminating between the representation of the input network graph and the representation of the set of noise samples using a discriminator model; [ (¶0041) “The generated samples are fed to the discriminative network for evaluation. The discriminative network provides an error measure to the generative network to convey how ‘good’ or ‘bad’ the generated samples are, as they relate to the data distribution generated from the training set.”
jointly training the autoencoder model, the generator model, and the discriminator model, using a processor device, [ (¶0143) “The memory device can be coupled to a processor and/or can store instructions adapted to be executed by processor, such as according to an embodiment disclosed herein.” ] [ (¶0130) and (Fig. 24) This citation in general goes over the feedback mechanism that is shared between the deep model image generation (which includes the generative network and the adversarial network) and the translation processes (which includes the auto-encoder {reference number 2419} ). The citation goes over how feedback from the end of the process will be fed back to all the cited pieces. ] by minimizing a joint loss function that includes parameters for each model; [ (¶0102) “The output from the discriminator 813, may be used directly in the loss function for the generator 815. The loss function changes how the generator 815 will generate the next set of images. Once trained, DMTG 807 can be called upon to produce generated images. The output is a comparatively dense set of generated images” This citation shows a loss function that starts with updating the parameters for the discriminator and generators and follows through to the DMTG which includes the autoencoder. Examiner notes that the following paragraph (¶0103) has an embodiment where the generator, the discriminator and the autoencoder are all within the DMTG and can also be considered a joint training loss function. ] and generating a final representation of the input network graph using the trained autoencoder model.
This citation, and the paragraph overall, reiterate the process of the autoencoder being trained on data and then outputting a final representation of the data. ]
In regards to claim 4, The method of claim 1, is taught by Kaufhold as in the rejection for claim 1 seen above. Kaufhold continues by teaching the rest of the claim: further comprising generating a reconstructed network graph using the autoencoder model and the representation of the input network graph. [ (¶0036) “A second function may be used to map the hidden representation to a reconstruction of the expected output. This is known as the decoding” This citation teaches the reconstructed graph from the decoder. ] [ (¶0098) “DMTG 401 includes a translator 403 comprising an autoencoder 405, which includes an encoder 407 and decoder 409.” This citation is just to show that the decoder is indeed a part of the autoencoder and therefore it is the autoencoder that reconstructs the graph. ]
In regards to claim 5, The method of claim 4, is taught by Kaufhold as in the rejection for claim 4 seen above. Kaufhold continues by teaching the rest of the claim: further comprising computing an autoencoder loss and a locality-preserving loss based on the input network graph and the reconstruction of the input network graph.
y=g(z)=s g(W′ z +b y), where g maps hidden representation z to a reconstruction of y, sg is a non-linear activation function, and W and b represent the weights and bias” This citation teaches the reconstruction being used in a formula for decoding and explicitly being a variable in said function. The model plugging in the values for the variables in this equation would be equivalent to computing. ] [ (¶0104) “As the object recognizer 1017 trains its own deep network, activations 1021 (the internal representation of the input) from the object recognizer 1017 are fed back into the autoencoder 1011 and used to further optimize the autoencoder.” ] [ (¶0130) and (¶0131) “This method tends to preserve spatial relationships between the other data points in the data set, which often has benefits in training” The paragraphs (¶0104), (¶0130), and (¶0131) cited above go over how the autoencoder is fed previous operation/iteration data to optimize its algorithm. In particular, it would be feeding in its updated formulas like the second function which represents the reconstruction data. Further, it also feeds in its internal representation of the input (which is the input network graph) and explicitly states that the training method would preserve spatial relationships between data points in the data set (which is equivalent to the locality-preserving loss function). ] In regards to claim 6, The method of claim 5, is taught by Kaufhold as in the rejection for claim 5 seen above. Kaufhold continues by teaching the rest of the claim: further comprising training the autoencoder model using the autoencoder loss and the locality-preserving loss.
y=g(z)=s g(W′ z +b y), where g maps hidden representation z to a reconstruction of y, sg is a non-linear activation function, and W and b represent the weights and bias” This citation teaches the reconstruction being used in a formula for decoding and explicitly being a variable in said function. ] [ (¶0104) “As the object recognizer 1017 trains its own deep network, activations 1021 (the internal representation of the input) from the object recognizer 1017 are fed back into the autoencoder 1011 and used to further optimize the autoencoder.” ] [ (¶0130) and (¶0131) “This method tends to preserve spatial relationships between the other data points in the data set, which often has benefits in training” The paragraphs (¶0104), (¶0130), and (¶0131) cited above go over how the autoencoder is fed previous operation/iteration data to optimize its algorithm. In particular, it would be feeding in its updated formulas like the second function which represents the reconstruction data. Further, it also feeds in its internal representation of the input (which is the input network graph) and explicitly states that the training method would preserve spatial relationships between data points in the data set (which is equivalent to the locality-preserving loss function). This would be equivalent to training (feeding back into the autoencoder) with the autoencoder loss (activations from the internal representation of the input) and the locality-preserving loss (data points preserving their spatial relationships in the data set during the training). ]
In regards to claim 10, Kaufhold teaches the following: A system for embedding a network in a latent space, comprising: an auto-encoder configured to generate a representation of an input network graph in the latent space using an autoencoder model [ (Fig. 17) and (¶0034) “Formally, within an autoencoder, a function maps input data to a hidden representation using a non-linear activation function. This is known as the encoding” This citation from Kaufhold teaches the autoencoder mapping the input data into a representation. Figure 17, shows a linear classification system which is equivalent to a latent space as it shows the same representation as a latent space, where data objects are being grouped spatially based on similarity of characteristics. Examiner notes that the claim has elements/limitations that fall under 112(f) (such as autoencoder, discriminator and generator). Examiner is interpreting these elements to be software modules that are running on computer components. The references cited herein will reflect the same embodiments unless stated otherwise. ] and to generate a final representation of the input network graph after the autoencoder model has been trained; [ (¶0097) “For example, as shown in FIG. 15 an autoencoder might be trained to encode poor quality images of cats (e.g., 1501) into photo realistic images of cats” This citation, and the paragraph overall, reiterate the process of the autoencoder being trained on data and then outputting a final representation of the data. ] a generator configured to generate a representation of a set of noise samples in the latent space using a generator model; [ (¶0041) “One of the networks is typically called the discriminative network and the other is typically called the generative network. The discriminative network has knowledge of the training examples. The generative network does not, and tries to ‘generate new samples,’ typically beginning from noise.”
[ (¶0094) “FIG. 25 depicts a data set with a sparsely defined class 2503 and examples of ‘generated’ images (2509, 2511, 2513, 2515, 2517, 2519). This embodiment takes advantage of the theory of image manifolds [see endnote 5] and generates images that are similar to a given image with slight variations. “ This citation along with the referenced figure teach the newly generated images being put onto the linear space (equivalent to latent space) alongside the non-generated data. ] a discriminator configured to discriminate between the representation of the input network graph and the representation of the set of noise samples using a discriminator model; [ (¶0041) “The generated samples are fed to the discriminative network for evaluation. The discriminative network provides an error measure to the generative network to convey how ‘good’ or ‘bad’ the generated samples are, as they relate to the data distribution generated from the training set.” This citation teaches the discriminator going through and discriminating against the generated data points (which are equivalent to the noise samples) and the training set (equivalent to the input network graph). ] and a training module comprising a processor configured to jointly train the autoencoder model, the generator model, and the discriminator model [ (¶0143) “The memory device can be coupled to a processor and/or can store instructions adapted to be executed by processor, such as according to an embodiment disclosed herein.” This citation teaches the memory and processor that make up a standard computer that the software models (generator, discriminator and autoencoder) would run on. ] [ (¶0130) and (Fig. 24)
by minimizing a joint loss function that includes parameters for each model. [ (¶0102) “The output from the discriminator 813, may be used directly in the loss function for the generator 815. The loss function changes how the generator 815 will generate the next set of images. Once trained, DMTG 807 can be called upon to produce generated images. The output is a comparatively dense set of generated images” This citation shows a loss function that starts with updating the parameters for the discriminator and generators and follows through to the DMTG which includes the autoencoder. Examiner notes that the following paragraph (¶0103) has an embodiment where the generator, the discriminator and the autoencoder are all within the DMTG and can also be considered a joint training loss function. ]
In regards to claim 13, The system of claim 10, is taught by Kaufhold as in the rejection for claim 10 seen above. Kaufhold continues by teaching the rest of the claim: wherein the autoencoder is further configured to generate a reconstructed network graph using the autoencoder model and the representation of the input network graph. [ (¶0036) “A second function may be used to map the hidden representation to a reconstruction of the expected output. This is known as the decoding”
[ (¶0098) “DMTG 401 includes a translator 403 comprising an autoencoder 405, which includes an encoder 407 and decoder 409.” This citation is just to show that the decoder is indeed a part of the autoencoder and therefore it is the autoencoder that reconstructs the graph. ]
In regards to claim 14, The system of claim 13, is taught by Kaufhold as in the rejection for claim 13 seen above. Kaufhold continues by teaching the rest of the claim: wherein the training module is further configured to compute an autoencoder loss and a locality-preserving loss based on the input network graph and the reconstruction of the input network graph. [ (¶0036) and (¶0037) “A second function may be used to map the hidden representation to a reconstruction of the expected output. This is known as the decoding: y=g(z)=s g(W′ z +b y), where g maps hidden representation z to a reconstruction of y, sg is a non-linear activation function, and W and b represent the weights and bias” This citation teaches the reconstruction being used in a formula for decoding and explicitly being a variable in said function. The model plugging in the values for the variables in this equation would be equivalent to computing. ] [ (¶0104) “As the object recognizer 1017 trains its own deep network, activations 1021 (the internal representation of the input) from the object recognizer 1017 are fed back into the autoencoder 1011 and used to further optimize the autoencoder.” ] [ (¶0130) and (¶0131) “This method tends to preserve spatial relationships between the other data points in the data set, which often has benefits in training” The paragraphs (¶0104), (¶0130), and (¶0131) cited above go over how the autoencoder is fed previous operation/iteration data to optimize its algorithm. In particular, it
In regards to claim 15, The system of claim 14, is taught by Kaufhold as in the rejection for claim 14 seen above. Kaufhold continues by teaching the rest of the claim: wherein the training module is further configured to train the autoencoder model using the autoencoder loss and the locality-preserving loss. [ (¶0036) and (¶0037) “A second function may be used to map the hidden representation to a reconstruction of the expected output. This is known as the decoding: y=g(z)=s g(W′ z +b y), where g maps hidden representation z to a reconstruction of y, sg is a non-linear activation function, and W and b represent the weights and bias” This citation teaches the reconstruction being used in a formula for decoding and explicitly being a variable in said function. ] [ (¶0104) “As the object recognizer 1017 trains its own deep network, activations 1021 (the internal representation of the input) from the object recognizer 1017 are fed back into the autoencoder 1011 and used to further optimize the autoencoder.” ] [ (¶0130) and (¶0131) “This method tends to preserve spatial relationships between the other data points in the data set, which often has benefits in training” The paragraphs (¶0104), (¶0130), and (¶0131) cited above go over how the autoencoder is fed previous operation/iteration data to optimize its algorithm. In particular, it would be feeding in its updated formulas like the second function which represents the
Claim Rejections - 35 USC § 103 The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows: 1. Determining the scope and contents of the prior art. 2. Ascertaining the differences between the prior art and the claims at issue. 3. Resolving the level of ordinary skill in the pertinent art.
Claims 2, 3, 11, and 12 are rejected under 35 U.S.C. 103 as being unpatentable over Kaufhold (US 20190080205 A1) as above, and further in view of Merler (US 9928448 B1).
In regards to claim 2, The method of claim 1, is taught by Kaufhold as in the rejection for claim 1 seen above. Merler continues by teaching the rest of the claim: further comprising sampling random walks of the network graph. [ (Col. 3, Lines 30-32) “The semantic-aware classifier 102 refines the CNN predictions using a random walk based smoothing procedure that further exploits the rich semantic information.” This citation from Merler teaches the use of a random walk on a semantic space graph. ] Therefore, it would be obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to combine a system for deep model translation utilizing autoencoders and GANNs as taught by Kaufhold with the random walk algorithms of Merler. The reason it would be obvious is one of ordinary skill in the art would recognize, prior to the effective filing date, that combining the two would provide more accurate results for the process of classifying objects in the semantic space and also provide more meaningful classification results [ Merler (Col. 3, Lines 30-36) ]. This would facilitate the recognized benefit of more accurate classification results which would improve the overall accuracy of the model as a whole.
In regards to claim 3, The method of claim 2, is taught by Kaufhold/Merler as in the rejection for claim 2 seen above. Merler continues by teaching the rest of the claim: wherein generating the representation of the input network graph uses the sampled random walks as input to the autoencoder model. [ (Col. 5, Lines 20-32) “the semantic-aware classifier 102 provides a flexible multi-task loss function that jointly learns features across different semantic levels and may be easily integrated with different CNN or other machine learning or neural network designs. The semantic-aware classifier 102 also utilizes a random walk based label refinement strategy that takes advantage of the semantic structure in a classification hierarchy to improve consistent predictions at each semantic level.” This citation teaches the random walk algorithm being incorporated back into whatever neural network or machine learning structure is being used to help refine the results. Examiner notes that although the citation does not explicitly mention an autoencoder, the autoencoder is taught by Kaufhold. Merler is relied upon to teach the act of the random walk algorithm being reincorporated as input for a machine learning or neural network structure. ] Please refer to the motivation to combine from claim 2.
In regards to claim 11, The system of claim 10, is taught by Kaufhold as in the rejection for claim 10 seen above. Merler continues by teaching the rest of the claim: further comprising a random walk module configured to sample random walks of the network graph. [ (Col. 3, Lines 30-32) “The semantic-aware classifier 102 refines the CNN predictions using a random walk based smoothing procedure that further exploits the rich semantic information.”
Therefore, it would be obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to combine a system for deep model translation utilizing autoencoders and GANNs as taught by Kaufhold with the random walk algorithms of Merler. The reason it would be obvious is one of ordinary skill in the art would recognize, prior to the effective filing date, that combining the two would provide more accurate results for the process of classifying objects in the semantic space and also provide more meaningful classification results [ Merler (Col. 3, Lines 30-36) ]. This would facilitate the recognized benefit of more accurate classification results which would improve the overall accuracy of the model as a whole.
In regards to claim 12, The system of claim 11, is taught by Kaufhold/Merler as in the rejection for claim 11 seen above. Merler continues by teaching the rest of the claim: wherein the autoencoder uses the sampled random walks as input to the autoencoder model. [ (Col. 5, Lines 20-32) “the semantic-aware classifier 102 provides a flexible multi-task loss function that jointly learns features across different semantic levels and may be easily integrated with different CNN or other machine learning or neural network designs. The semantic-aware classifier 102 also utilizes a random walk based label refinement strategy that takes advantage This citation teaches the random walk algorithm being incorporated back into whatever neural network or machine learning structure is being used to help refine the results. Examiner notes that although the citation does not explicitly mention an autoencoder, the autoencoder is taught by Kaufhold. Merler is relied upon to teach the act of the random walk algorithm being reincorporated as input for a machine learning or neural network structure. ] Please refer to the motivation to combine from claim 11.
Claims 7 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Kaufhold (US 20190080205 A1) as applied above, and further in view of Nagabushan ("A Wizard's Guide to Adversarial Autoencoders Part 2", 2017).
In regards to claim 7, The method of claim 1, is taught by Kaufhold as in the rejection for claim 1 seen above. Nagabushan continues by teaching the rest of the claim: wherein a parameter for the discriminator model is clipped to a maximum and minimum value. [ (Pg. 10, Lines 4-5) “We’ll fix the discriminator weights to whatever they are currently (make them untrainable) and fix the target to 1 at the discriminator output.” This citation from Nagabushan teaches the discriminator model in a GANN with the parameter (the weights) being clipped to a maximum and minimum value (fixed at current value). The max and min value would be the current values that the weights are set to. ]
In regards to claim 16, The system of claim 10, is taught by Kaufhold as in the rejection for claim 10 seen above. Nagabushan continues by teaching the rest of the claim: wherein a parameter for the discriminator model is clipped to a maximum and minimum value. [ (Pg. 10, Lines 4-5) “We’ll fix the discriminator weights to whatever they are currently (make them untrainable) and fix the target to 1 at the discriminator output.” This citation from Nagabushan teaches the discriminator model in a GANN with the parameter (the weights) being clipped to a maximum and minimum value (fixed at current value). The max and min value would be the current values that the weights are set to. ] Please refer to the motivation to combine from claim 7.
Claims 9 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Kaufhold (US 20190080205 A1) as applied above, and further in view of Berg ("Graph Convolutional Matrix Completion", 2017).
In regards to claim 9, The method of claim 1, is taught by Kaufhold as in the rejection for claim 1 seen above. Berg continues by teaching the rest of the claim: further comprising inferring missing edges from the final representation of the input graph to provide a connection suggestion in a social network. [ (Pg. 2, Column 1, Section 2.1) This section in general describes the use of auto-encoders for the experiment that the authors run to do link prediction on the encoded graph. ] [ (Pg. 7, Table 1) This table shows that the experiments run were performed on social media sites like Flixster, YahooMusic and MovieLens where users were making public ratings and the data would be categorized with the users being nodes and the edges being the ratings that they created. ] [ (Pg. 8, Column 2, Section 5) “The encoder contains a graph convolution layer that constructs user and item embeddings through message passing on the bipartite user-item interaction graph. Combined with a bilinear decoder, new ratings are predicted in the form of labeled edges” This section labeled “Conclusion” discusses the results and showcases how the autoencoder was able to generate new edges as predictions. Examiner notes that inferring and predicting are equivalent terms. ]
In regards to claim 18, The system of claim 10, is taught by Kaufhold as in the rejection for claim 10 seen above. Berg continues by teaching the rest of the claim: further comprising a link inference module configured to infer missing edges from the final representation of the input graph to provide a connection suggestion in a social network. [ (Pg. 2, Column 1, Section 2.1) This section in general describes the use of auto-encoders for the experiment that the authors run to do link prediction on the encoded graph. ] [ (Pg. 7, Table 1) This table shows that the experiments run were performed on social media sites like Flixster, YahooMusic and MovieLens where users were making public ratings and the data would be categorized with the users being nodes and the edges being the ratings that they created. ]
This section labeled “Conclusion” discusses the results and showcases how the autoencoder was able to generate new edges as predictions. Examiner notes that inferring and predicting are equivalent terms. ] Therefore, it would be obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to combine a system for deep model translation utilizing autoencoders and GANNs as taught by Kaufhold with the edge prediction from Berg. The reason it would be obvious is one of ordinary skill in the art would recognize, prior to the effective filing date, that combining the two would outperform the other methods of link prediction in terms of relative accuracy and computational processing [ Berg (Pg. 8, Col. 1-2, Sections “Discussion” and “Conclusions”) ]. This would facilitate the recognized benefit of a more robust system overall with more functionality and better performance.
Conclusion The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. US 11080587 B2 – Recurrent neural networks for data item generation which teaches latent variables, loss functions, generating data items for the neural networks US 10373055 B1 – Method for training variational auto-encoder to generate disentangled latent factors which teaches loss functions, generating data to train the neural network, training the neural network based on both sets of data and latent variables. US 20170293836 A1 – Customer profile learning based on semi-supervised recurrent neural network which teaches autoencoder neural networks, generated models, latent representations of data, and a graph Laplacian regularizer. US 10984315 B2 – Learning based noise reduction in data produced by a network of sensors which teaches autoencoders, generated data to train the neural network, latent space representations for data, data noise, loss functions and reconstruction of the neural network. US 10652565 B1 – Image compression and decompression using embeddings which teaches an autoencoder, discrimination model, generated data to train the neural network, a latent space representation for the data and a reconstruction phase. US 20190012581 A1 – Method and apparatus for evaluating generative machine learning model which teaches an autoencoder, generator model, discriminator model, data generated from noise, training against the separate versions of data, reconstruction after the training, distance functions and a semantic space.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHAEL MERABI whose telephone number is (571)272-9685. The examiner can normally be reached Mon-Fri 7:30am-5pm. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Alexey Shmatov can be reached on (571) 270-3428. 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.
/M.A.M./Examiner, Art Unit 2123 /ALEXEY SHMATOV/Supervisory Patent Examiner, Art Unit 2123 | 2022-03-06T15:29:42 | [
"DETAILED ACTION This Office Action is in response to Application No. 16/169,184 filed on October 24th, 2018. Claims 1-18 are presented for examination and are currently pending. Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . Priority Acknowledgment is made of applicant’s claim for priority. The priority date from the provisional application is: October 30th, 2017. The provisional application number is: 62/578,565 Information Disclosure Statement The information disclosure statement (IDS) submitted on October 24th, 2018 was filed. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner. Claim Objections Claims 8 and 17 objected to because of the following informalities: 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. Appropriate correction is requested. Claim Interpretation The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art.",
"The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked. As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) 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.",
"Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not 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 function without reciting sufficient structure, material or acts to entirely perform the recited function. Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) 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. Claims 10-18 of 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 limitation(s) uses 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. Within claim 10, “auto-encoder”, “generator”, and “discriminator” all fall into the above category. The specification switches between the above and their respective As above, claim 10 also refers to software models that are created and trained by the above structures (generator model, discriminator model, and auto-encoder model) that represent software to be run on generic computer components. Examiner notes that Fig. 2 of the specification denotes pseudocode that explain how the above software models would be carried out.",
"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, 4-6, 10, and 13-15 is/are rejected under 35 U.S.C.",
"102(a)(2) as being anticipated by Kaufhold (US 20190080205 A1). In regards to claim 1, Kaufhold teaches the following: A method for embedding a network in a latent space, comprising: generating a representation of an input network graph in the latent space using an autoencoder model; [ (Fig. 17) and (¶0034) “Formally, within an autoencoder, a function maps input data to a hidden representation using a non-linear activation function. This is known as the encoding” generating a representation of a set of noise samples in the latent space using a generator model; [ (¶0041) “One of the networks is typically called the discriminative network and the other is typically called the generative network.",
"The discriminative network has knowledge of the training examples. The generative network does not, and tries to ‘generate new samples,’ typically beginning from noise.” This citation teaches the generator model creating data based off of noise with the set of noise samples being equivalent to the generated new samples beginning from noise. ] [ (¶0094) “FIG. 25 depicts a data set with a sparsely defined class 2503 and examples of ‘generated’ images (2509, 2511, 2513, 2515, 2517, 2519). This embodiment takes advantage of the theory of image manifolds [see endnote 5] and generates images that are similar to a given image with slight variations.",
"“ This citation along with the referenced figure teach the newly generated images being put onto the linear space (equivalent to latent space) alongside the non-generated data. ] discriminating between the representation of the input network graph and the representation of the set of noise samples using a discriminator model; [ (¶0041) “The generated samples are fed to the discriminative network for evaluation. The discriminative network provides an error measure to the generative network to convey how ‘good’ or ‘bad’ the generated samples are, as they relate to the data distribution generated from the training set.” jointly training the autoencoder model, the generator model, and the discriminator model, using a processor device, [ (¶0143) “The memory device can be coupled to a processor and/or can store instructions adapted to be executed by processor, such as according to an embodiment disclosed herein.” ] [ (¶0130) and (Fig. 24) This citation in general goes over the feedback mechanism that is shared between the deep model image generation (which includes the generative network and the adversarial network) and the translation processes (which includes the auto-encoder {reference number 2419} ).",
"The citation goes over how feedback from the end of the process will be fed back to all the cited pieces. ] by minimizing a joint loss function that includes parameters for each model; [ (¶0102) “The output from the discriminator 813, may be used directly in the loss function for the generator 815. The loss function changes how the generator 815 will generate the next set of images. Once trained, DMTG 807 can be called upon to produce generated images. The output is a comparatively dense set of generated images” This citation shows a loss function that starts with updating the parameters for the discriminator and generators and follows through to the DMTG which includes the autoencoder.",
"Examiner notes that the following paragraph (¶0103) has an embodiment where the generator, the discriminator and the autoencoder are all within the DMTG and can also be considered a joint training loss function. ] and generating a final representation of the input network graph using the trained autoencoder model. This citation, and the paragraph overall, reiterate the process of the autoencoder being trained on data and then outputting a final representation of the data. ] In regards to claim 4, The method of claim 1, is taught by Kaufhold as in the rejection for claim 1 seen above.",
"Kaufhold continues by teaching the rest of the claim: further comprising generating a reconstructed network graph using the autoencoder model and the representation of the input network graph. [ (¶0036) “A second function may be used to map the hidden representation to a reconstruction of the expected output. This is known as the decoding” This citation teaches the reconstructed graph from the decoder. ] [ (¶0098) “DMTG 401 includes a translator 403 comprising an autoencoder 405, which includes an encoder 407 and decoder 409.” This citation is just to show that the decoder is indeed a part of the autoencoder and therefore it is the autoencoder that reconstructs the graph. ]",
"In regards to claim 5, The method of claim 4, is taught by Kaufhold as in the rejection for claim 4 seen above. Kaufhold continues by teaching the rest of the claim: further comprising computing an autoencoder loss and a locality-preserving loss based on the input network graph and the reconstruction of the input network graph. y=g(z)=s g(W′ z +b y), where g maps hidden representation z to a reconstruction of y, sg is a non-linear activation function, and W and b represent the weights and bias” This citation teaches the reconstruction being used in a formula for decoding and explicitly being a variable in said function. The model plugging in the values for the variables in this equation would be equivalent to computing. ] [ (¶0104) “As the object recognizer 1017 trains its own deep network, activations 1021 (the internal representation of the input) from the object recognizer 1017 are fed back into the autoencoder 1011 and used to further optimize the autoencoder.” ] [ (¶0130) and (¶0131) “This method tends to preserve spatial relationships between the other data points in the data set, which often has benefits in training” The paragraphs (¶0104), (¶0130), and (¶0131) cited above go over how the autoencoder is fed previous operation/iteration data to optimize its algorithm.",
"In particular, it would be feeding in its updated formulas like the second function which represents the reconstruction data. Further, it also feeds in its internal representation of the input (which is the input network graph) and explicitly states that the training method would preserve spatial relationships between data points in the data set (which is equivalent to the locality-preserving loss function). ] In regards to claim 6, The method of claim 5, is taught by Kaufhold as in the rejection for claim 5 seen above. Kaufhold continues by teaching the rest of the claim: further comprising training the autoencoder model using the autoencoder loss and the locality-preserving loss.",
"y=g(z)=s g(W′ z +b y), where g maps hidden representation z to a reconstruction of y, sg is a non-linear activation function, and W and b represent the weights and bias” This citation teaches the reconstruction being used in a formula for decoding and explicitly being a variable in said function. ] [ (¶0104) “As the object recognizer 1017 trains its own deep network, activations 1021 (the internal representation of the input) from the object recognizer 1017 are fed back into the autoencoder 1011 and used to further optimize the autoencoder.” ] [ (¶0130) and (¶0131) “This method tends to preserve spatial relationships between the other data points in the data set, which often has benefits in training” The paragraphs (¶0104), (¶0130), and (¶0131) cited above go over how the autoencoder is fed previous operation/iteration data to optimize its algorithm. In particular, it would be feeding in its updated formulas like the second function which represents the reconstruction data. Further, it also feeds in its internal representation of the input (which is the input network graph) and explicitly states that the training method would preserve spatial relationships between data points in the data set (which is equivalent to the locality-preserving loss function).",
"This would be equivalent to training (feeding back into the autoencoder) with the autoencoder loss (activations from the internal representation of the input) and the locality-preserving loss (data points preserving their spatial relationships in the data set during the training). ] In regards to claim 10, Kaufhold teaches the following: A system for embedding a network in a latent space, comprising: an auto-encoder configured to generate a representation of an input network graph in the latent space using an autoencoder model [ (Fig. 17) and (¶0034) “Formally, within an autoencoder, a function maps input data to a hidden representation using a non-linear activation function. This is known as the encoding” This citation from Kaufhold teaches the autoencoder mapping the input data into a representation. Figure 17, shows a linear classification system which is equivalent to a latent space as it shows the same representation as a latent space, where data objects are being grouped spatially based on similarity of characteristics. Examiner notes that the claim has elements/limitations that fall under 112(f) (such as autoencoder, discriminator and generator). Examiner is interpreting these elements to be software modules that are running on computer components. The references cited herein will reflect the same embodiments unless stated otherwise. ] and to generate a final representation of the input network graph after the autoencoder model has been trained; [ (¶0097) “For example, as shown in FIG.",
"15 an autoencoder might be trained to encode poor quality images of cats (e.g., 1501) into photo realistic images of cats” This citation, and the paragraph overall, reiterate the process of the autoencoder being trained on data and then outputting a final representation of the data. ] a generator configured to generate a representation of a set of noise samples in the latent space using a generator model; [ (¶0041) “One of the networks is typically called the discriminative network and the other is typically called the generative network. The discriminative network has knowledge of the training examples. The generative network does not, and tries to ‘generate new samples,’ typically beginning from noise.” [ (¶0094) “FIG. 25 depicts a data set with a sparsely defined class 2503 and examples of ‘generated’ images (2509, 2511, 2513, 2515, 2517, 2519).",
"This embodiment takes advantage of the theory of image manifolds [see endnote 5] and generates images that are similar to a given image with slight variations. “ This citation along with the referenced figure teach the newly generated images being put onto the linear space (equivalent to latent space) alongside the non-generated data. ] a discriminator configured to discriminate between the representation of the input network graph and the representation of the set of noise samples using a discriminator model; [ (¶0041) “The generated samples are fed to the discriminative network for evaluation. The discriminative network provides an error measure to the generative network to convey how ‘good’ or ‘bad’ the generated samples are, as they relate to the data distribution generated from the training set.” This citation teaches the discriminator going through and discriminating against the generated data points (which are equivalent to the noise samples) and the training set (equivalent to the input network graph). ] and a training module comprising a processor configured to jointly train the autoencoder model, the generator model, and the discriminator model [ (¶0143) “The memory device can be coupled to a processor and/or can store instructions adapted to be executed by processor, such as according to an embodiment disclosed herein.” This citation teaches the memory and processor that make up a standard computer that the software models (generator, discriminator and autoencoder) would run on. ]",
"[ (¶0130) and (Fig. 24) by minimizing a joint loss function that includes parameters for each model. [ (¶0102) “The output from the discriminator 813, may be used directly in the loss function for the generator 815. The loss function changes how the generator 815 will generate the next set of images. Once trained, DMTG 807 can be called upon to produce generated images. The output is a comparatively dense set of generated images” This citation shows a loss function that starts with updating the parameters for the discriminator and generators and follows through to the DMTG which includes the autoencoder.",
"Examiner notes that the following paragraph (¶0103) has an embodiment where the generator, the discriminator and the autoencoder are all within the DMTG and can also be considered a joint training loss function. ] In regards to claim 13, The system of claim 10, is taught by Kaufhold as in the rejection for claim 10 seen above. Kaufhold continues by teaching the rest of the claim: wherein the autoencoder is further configured to generate a reconstructed network graph using the autoencoder model and the representation of the input network graph. [ (¶0036) “A second function may be used to map the hidden representation to a reconstruction of the expected output. This is known as the decoding” [ (¶0098) “DMTG 401 includes a translator 403 comprising an autoencoder 405, which includes an encoder 407 and decoder 409.” This citation is just to show that the decoder is indeed a part of the autoencoder and therefore it is the autoencoder that reconstructs the graph. ]",
"In regards to claim 14, The system of claim 13, is taught by Kaufhold as in the rejection for claim 13 seen above. Kaufhold continues by teaching the rest of the claim: wherein the training module is further configured to compute an autoencoder loss and a locality-preserving loss based on the input network graph and the reconstruction of the input network graph. [ (¶0036) and (¶0037) “A second function may be used to map the hidden representation to a reconstruction of the expected output. This is known as the decoding: y=g(z)=s g(W′ z +b y), where g maps hidden representation z to a reconstruction of y, sg is a non-linear activation function, and W and b represent the weights and bias” This citation teaches the reconstruction being used in a formula for decoding and explicitly being a variable in said function.",
"The model plugging in the values for the variables in this equation would be equivalent to computing. ] [ (¶0104) “As the object recognizer 1017 trains its own deep network, activations 1021 (the internal representation of the input) from the object recognizer 1017 are fed back into the autoencoder 1011 and used to further optimize the autoencoder.” ] [ (¶0130) and (¶0131) “This method tends to preserve spatial relationships between the other data points in the data set, which often has benefits in training” The paragraphs (¶0104), (¶0130), and (¶0131) cited above go over how the autoencoder is fed previous operation/iteration data to optimize its algorithm. In particular, it In regards to claim 15, The system of claim 14, is taught by Kaufhold as in the rejection for claim 14 seen above.",
"Kaufhold continues by teaching the rest of the claim: wherein the training module is further configured to train the autoencoder model using the autoencoder loss and the locality-preserving loss. [ (¶0036) and (¶0037) “A second function may be used to map the hidden representation to a reconstruction of the expected output. This is known as the decoding: y=g(z)=s g(W′ z +b y), where g maps hidden representation z to a reconstruction of y, sg is a non-linear activation function, and W and b represent the weights and bias” This citation teaches the reconstruction being used in a formula for decoding and explicitly being a variable in said function. ] [ (¶0104) “As the object recognizer 1017 trains its own deep network, activations 1021 (the internal representation of the input) from the object recognizer 1017 are fed back into the autoencoder 1011 and used to further optimize the autoencoder.” ] [ (¶0130) and (¶0131) “This method tends to preserve spatial relationships between the other data points in the data set, which often has benefits in training” The paragraphs (¶0104), (¶0130), and (¶0131) cited above go over how the autoencoder is fed previous operation/iteration data to optimize its algorithm. In particular, it would be feeding in its updated formulas like the second function which represents the Claim Rejections - 35 USC § 103 The following is a quotation of 35 U.S.C.",
"103 which forms the basis for all obviousness rejections set forth in this Office action: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made. The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows: 1. Determining the scope and contents of the prior art. 2. Ascertaining the differences between the prior art and the claims at issue. 3.",
"Resolving the level of ordinary skill in the pertinent art. Claims 2, 3, 11, and 12 are rejected under 35 U.S.C. 103 as being unpatentable over Kaufhold (US 20190080205 A1) as above, and further in view of Merler (US 9928448 B1). In regards to claim 2, The method of claim 1, is taught by Kaufhold as in the rejection for claim 1 seen above. Merler continues by teaching the rest of the claim: further comprising sampling random walks of the network graph. [ (Col. 3, Lines 30-32) “The semantic-aware classifier 102 refines the CNN predictions using a random walk based smoothing procedure that further exploits the rich semantic information.” This citation from Merler teaches the use of a random walk on a semantic space graph. ]",
"Therefore, it would be obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to combine a system for deep model translation utilizing autoencoders and GANNs as taught by Kaufhold with the random walk algorithms of Merler. The reason it would be obvious is one of ordinary skill in the art would recognize, prior to the effective filing date, that combining the two would provide more accurate results for the process of classifying objects in the semantic space and also provide more meaningful classification results [ Merler (Col. 3, Lines 30-36) ]. This would facilitate the recognized benefit of more accurate classification results which would improve the overall accuracy of the model as a whole. In regards to claim 3, The method of claim 2, is taught by Kaufhold/Merler as in the rejection for claim 2 seen above. Merler continues by teaching the rest of the claim: wherein generating the representation of the input network graph uses the sampled random walks as input to the autoencoder model.",
"[ (Col. 5, Lines 20-32) “the semantic-aware classifier 102 provides a flexible multi-task loss function that jointly learns features across different semantic levels and may be easily integrated with different CNN or other machine learning or neural network designs. The semantic-aware classifier 102 also utilizes a random walk based label refinement strategy that takes advantage of the semantic structure in a classification hierarchy to improve consistent predictions at each semantic level.” This citation teaches the random walk algorithm being incorporated back into whatever neural network or machine learning structure is being used to help refine the results. Examiner notes that although the citation does not explicitly mention an autoencoder, the autoencoder is taught by Kaufhold. Merler is relied upon to teach the act of the random walk algorithm being reincorporated as input for a machine learning or neural network structure. ] Please refer to the motivation to combine from claim 2.",
"In regards to claim 11, The system of claim 10, is taught by Kaufhold as in the rejection for claim 10 seen above. Merler continues by teaching the rest of the claim: further comprising a random walk module configured to sample random walks of the network graph. [ (Col. 3, Lines 30-32) “The semantic-aware classifier 102 refines the CNN predictions using a random walk based smoothing procedure that further exploits the rich semantic information.” Therefore, it would be obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to combine a system for deep model translation utilizing autoencoders and GANNs as taught by Kaufhold with the random walk algorithms of Merler. The reason it would be obvious is one of ordinary skill in the art would recognize, prior to the effective filing date, that combining the two would provide more accurate results for the process of classifying objects in the semantic space and also provide more meaningful classification results [ Merler (Col. 3, Lines 30-36) ]. This would facilitate the recognized benefit of more accurate classification results which would improve the overall accuracy of the model as a whole.",
"In regards to claim 12, The system of claim 11, is taught by Kaufhold/Merler as in the rejection for claim 11 seen above. Merler continues by teaching the rest of the claim: wherein the autoencoder uses the sampled random walks as input to the autoencoder model. [ (Col. 5, Lines 20-32) “the semantic-aware classifier 102 provides a flexible multi-task loss function that jointly learns features across different semantic levels and may be easily integrated with different CNN or other machine learning or neural network designs. The semantic-aware classifier 102 also utilizes a random walk based label refinement strategy that takes advantage This citation teaches the random walk algorithm being incorporated back into whatever neural network or machine learning structure is being used to help refine the results. Examiner notes that although the citation does not explicitly mention an autoencoder, the autoencoder is taught by Kaufhold. Merler is relied upon to teach the act of the random walk algorithm being reincorporated as input for a machine learning or neural network structure. ]",
"Please refer to the motivation to combine from claim 11. Claims 7 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Kaufhold (US 20190080205 A1) as applied above, and further in view of Nagabushan (\"A Wizard's Guide to Adversarial Autoencoders Part 2\", 2017). In regards to claim 7, The method of claim 1, is taught by Kaufhold as in the rejection for claim 1 seen above.",
"Nagabushan continues by teaching the rest of the claim: wherein a parameter for the discriminator model is clipped to a maximum and minimum value. [ (Pg. 10, Lines 4-5) “We’ll fix the discriminator weights to whatever they are currently (make them untrainable) and fix the target to 1 at the discriminator output.” This citation from Nagabushan teaches the discriminator model in a GANN with the parameter (the weights) being clipped to a maximum and minimum value (fixed at current value). The max and min value would be the current values that the weights are set to. ] In regards to claim 16, The system of claim 10, is taught by Kaufhold as in the rejection for claim 10 seen above. Nagabushan continues by teaching the rest of the claim: wherein a parameter for the discriminator model is clipped to a maximum and minimum value. [ (Pg. 10, Lines 4-5) “We’ll fix the discriminator weights to whatever they are currently (make them untrainable) and fix the target to 1 at the discriminator output.” This citation from Nagabushan teaches the discriminator model in a GANN with the parameter (the weights) being clipped to a maximum and minimum value (fixed at current value).",
"The max and min value would be the current values that the weights are set to. ] Please refer to the motivation to combine from claim 7. Claims 9 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Kaufhold (US 20190080205 A1) as applied above, and further in view of Berg (\"Graph Convolutional Matrix Completion\", 2017). In regards to claim 9, The method of claim 1, is taught by Kaufhold as in the rejection for claim 1 seen above. Berg continues by teaching the rest of the claim: further comprising inferring missing edges from the final representation of the input graph to provide a connection suggestion in a social network.",
"[ (Pg. 2, Column 1, Section 2.1) This section in general describes the use of auto-encoders for the experiment that the authors run to do link prediction on the encoded graph. ] [ (Pg. 7, Table 1) This table shows that the experiments run were performed on social media sites like Flixster, YahooMusic and MovieLens where users were making public ratings and the data would be categorized with the users being nodes and the edges being the ratings that they created. ] [ (Pg. 8, Column 2, Section 5) “The encoder contains a graph convolution layer that constructs user and item embeddings through message passing on the bipartite user-item interaction graph. Combined with a bilinear decoder, new ratings are predicted in the form of labeled edges” This section labeled “Conclusion” discusses the results and showcases how the autoencoder was able to generate new edges as predictions. Examiner notes that inferring and predicting are equivalent terms. ]",
"In regards to claim 18, The system of claim 10, is taught by Kaufhold as in the rejection for claim 10 seen above. Berg continues by teaching the rest of the claim: further comprising a link inference module configured to infer missing edges from the final representation of the input graph to provide a connection suggestion in a social network. [ (Pg. 2, Column 1, Section 2.1) This section in general describes the use of auto-encoders for the experiment that the authors run to do link prediction on the encoded graph. ] [ (Pg. 7, Table 1) This table shows that the experiments run were performed on social media sites like Flixster, YahooMusic and MovieLens where users were making public ratings and the data would be categorized with the users being nodes and the edges being the ratings that they created. ]",
"This section labeled “Conclusion” discusses the results and showcases how the autoencoder was able to generate new edges as predictions. Examiner notes that inferring and predicting are equivalent terms. ] Therefore, it would be obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to combine a system for deep model translation utilizing autoencoders and GANNs as taught by Kaufhold with the edge prediction from Berg. The reason it would be obvious is one of ordinary skill in the art would recognize, prior to the effective filing date, that combining the two would outperform the other methods of link prediction in terms of relative accuracy and computational processing [ Berg (Pg. 8, Col. 1-2, Sections “Discussion” and “Conclusions”) ]. This would facilitate the recognized benefit of a more robust system overall with more functionality and better performance.",
"Conclusion The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. US 11080587 B2 – Recurrent neural networks for data item generation which teaches latent variables, loss functions, generating data items for the neural networks US 10373055 B1 – Method for training variational auto-encoder to generate disentangled latent factors which teaches loss functions, generating data to train the neural network, training the neural network based on both sets of data and latent variables. US 20170293836 A1 – Customer profile learning based on semi-supervised recurrent neural network which teaches autoencoder neural networks, generated models, latent representations of data, and a graph Laplacian regularizer. US 10984315 B2 – Learning based noise reduction in data produced by a network of sensors which teaches autoencoders, generated data to train the neural network, latent space representations for data, data noise, loss functions and reconstruction of the neural network. US 10652565 B1 – Image compression and decompression using embeddings which teaches an autoencoder, discrimination model, generated data to train the neural network, a latent space representation for the data and a reconstruction phase. US 20190012581 A1 – Method and apparatus for evaluating generative machine learning model which teaches an autoencoder, generator model, discriminator model, data generated from noise, training against the separate versions of data, reconstruction after the training, distance functions and a semantic space.",
"Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHAEL MERABI whose telephone number is (571)272-9685. The examiner can normally be reached Mon-Fri 7:30am-5pm. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Alexey Shmatov can be reached on (571) 270-3428. 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. /M.A.M./Examiner, Art Unit 2123 /ALEXEY SHMATOV/Supervisory Patent Examiner, Art Unit 2123"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-03-06.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Ray, Judge. BDO USA, LLP, f/k/a BDO Seidman, LLP, and Michael Whitacre (collectively, “BDO”) filed a petition in the Superior Court of Fulton County to compel arbitration of their disputes with Douglas Coe, Jacqueline Coe, GFLIRB, LLC, DBICHA, LLC, and ALAKE, LLC (collectively, “Coe”). Following a hearing on Coe’s motion to dismiss, the trial court found that the issues that BDO claimed to be arbitrable were then pending before an Illinois court which had jurisdiction to hear a motion to compel arbitration and, therefore, in light of OCGA § 9-9-6 (a), it lacked subject matter jurisdiction to consider the merits of BDO’s petition. Accordingly, the trial court dismissed BDO’s petition without prejudice. On appeal, BDO contends that the trial court had jurisdiction to consider BDO’s petition to compel arbitration under the Federal Arbitration Act, 9 USC § 1 et seq. (“FAA”), which it claims preempted OCGA § 9-9-6 (a). For the reasons that follow, we affirm. BDO’s petition, in pertinent part, alleges that BDO provided tax consulting services to Douglas Coe pursuant to (at least) four written consulting agreements. In 2001 and 2002, Coe entered into a “distressed debt” tax shelter and then claimed deductions on 2001-2007 tax returns for artificial losses generated by the tax shelter. The Internal Revenue Service disallowed the deductions and imposed back taxes, interest, and penalties against Coe. In the consulting agreements, Coe and BDO agreed to arbitrate any dispute, controversy, or claim arising in connection with the performance or breach of the respective agreements in the city “in which the BDO office providing the relevant Services exists, unless the parties agree to a different locale.” BDO alleged that the office providing those relevant services is located in Atlanta, Georgia, but that in contravention of their agreements to arbitrate, Coe sued BDO in the Circuit Court of Cook County, Illinois, asserting various claims *80arising in connection with the services provided by BDO to Coe under their written agreements. In its petition, BDO asked the trial court to order Coe to arbitrate each of the claims asserted against BDO in the Illinois complaint before an arbitration panel venued in Atlanta and, further, to enjoin Coe from prosecuting the Illinois complaint against BDO and from initiating judicial proceedings against BDO in any other forum. BDO alleged that venue for its action was proper in the Superior Court of Fulton County under both OCGA § 9-9-4 and § 4 of the FAA, 9 USC § 4. Coe moved to dismiss BDO’s petition, contending that under Georgia law the court presiding over the Illinois action, not the Georgia superior court, was the only court that could decide BDO’s arbitrability defense to Coe’s Illinois claims. Relying on OCGA § 9-9-6 (a), the trial court determined that it lacked jurisdiction over BDO’s petition because the issues which BDO claimed to be arbitrable were before the Illinois court, which had had jurisdiction to consider a motion to compel arbitration. The trial court granted Coe’s motion and dismissed BDO’s petition without prejudice. “The dismissal of an action for lack of subject matter jurisdiction is a question of law that we review de novo.” Babb v. Babb, 293 Ga. App. 140, 140 (1) (666 SE2d 396) (2008). See Goddard v. City of Albany, 285 Ga. 882, 883 (1) (684 SE2d 635) (2009). 1. At issue is whether the trial court erred in dismissing BDO’s petition to compel arbitration under authority of OCGA § 9-9-6 (a). BDO contends that the trial court erred in relying on OCGA § 9-9-6 (a) because Georgia courts have jurisdiction to consider a claim filed under § 4 of the FAA, 9 USC § 4 and that, in any event, OCGA § 9-9-6 (a) is preempted by the federal law. Section 2 of the FAA provides that arbitration agreements “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 USC § 2. Further, “[t]he FAA applies in state and federal courts to all contracts containing an arbitration clause that involves or affects interstate commerce.” American Gen. Financial Svcs. v. Jape, 291 Ga. 637, 638 (1) (732 SE2d 746) (2012) (“Jape”). Coe does not dispute that the consulting contracts containing the arbitration clauses at issue involve or affect interstate commerce. It follows that the FAA applies to the parties’ agreements to arbitrate. See GF/Legacy Dallas v. Juneau Constr. Co., 282 Ga. App. 14, 15-16 (637 SE2d 511) (2006) (as the contract, which included an arbitration clause, undisputably involved interstate commerce, it was governed by the FAA). OCGA § 9-9-6 (a), which forms part of the Georgia Arbitration Code, OCGA § 9-9-1 et seq. (the “GAC”), provides that “[a] party aggrieved by the failure of another to arbitrate may apply for an order *81compelling arbitration,” and sets forth the procedures therefor. Similarly, § 4 of the FAA provides in pertinent part: A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court which, save for such agreement, would have jurisdiction ... for an order directing that such arbitration proceed in the manner provided for in such agreement. Unlike § 4 of the FAA, however, OCGA § 9-9-6 (a) requires that “[i]f an issue claimed to be arbitrable is involved in an action pending in a court having jurisdiction to hear a motion to compel arbitration, the application shall be made by motion in that action.” Id. Generally, “state courts are presumed to have concurrent jurisdiction with federal courts to hear federal causes of action unless Congress places exclusive jurisdiction in the federal courts by affirmatively divesting state courts of concurrent jurisdiction.” Nissan Motor Acceptance Corp. v. Stovall Nissan, 224 Ga. App. 295, 296, n. 2 (480 SE2d 322) (1997). The FAA has “substantive supremacy,” but requires an independent jurisdictional basis for access to a federal forum, such that “state courts have a prominent role to play as enforcers of agreements to arbitrate.” (Punctuation omitted.) Vaden v. Discover Bank, 556 U. S. 49, 59 (II) (129 SCt 1262, 173 LE2d 206) (2009). BDO argues that notwithstanding that § 4 of the FAA refers to a petition to compel arbitration in “any United States district court,” the trial court, through the exercise of its concurrent jurisdiction over federal causes of action, should have considered BDO’s petition under authority of § 4 of the FAA and not dismissed the petition by applying OCGA § 9-9-6 (a).1 It is not clear, however, if a state court has jurisdiction over a motion to compel arbitration under § 4 of the FAA. See Hilton Constr. Co. v. Martin Mechanical Contractors, 251 Ga. 701, 703 (308 SE2d 830) (1983) (finding “the question of the state court jurisdiction of § 4 ... is unsettled”). As our Supreme Court recently noted in Jape, while the United States Supreme Court has recognized “that the FAA creates a body of federal substantive law of arbitrability applicable in both federal and state courts, the Supreme Court has not had the *82occasion to determine whether the FAA’s procedural provisions are applicable in state courts.” Jape, supra at 640 (2). See Southland Corp. v. Keating, 465 U. S. 1, 16 (III), n. 10 (104 SCt 852, 79 LE2d 1) (1984) (“In holding that the [FAA] preempts a state law that withdraws the power to enforce arbitration agreements, we do not hold that §§ 3 and 4 of the [FAA] apply to proceedings in state courts”). In particular, our Supreme Court pointed out that the United States Supreme Court “has acknowledged... that the procedural provisions found in §§ 3 and 4 of the [FAA] appear to apply by their terms only in federal court.” Jape, supra at 641 (2). See Volt Information Sciences v. Bd. of Trustees of Leland Stanford Junior Univ., 489 U. S. 468, 477, n. 6 (109 SCt 1248, 103 LE2d 488) (1989) (noting that § 4 of the FAA refers to “any United States district court”). In view of the foregoing, our Supreme Court in Jape suggests that the procedural provisions found in §§ 3 and 4 of the FAA do not apply to state court proceedings.2 Further, the GAC “is a body of procedural law setting forth the public policy of this State with respect to the enforcement of agreements to arbitrate.” Continental Ins. Co. v. Equity Residential Properties Trust, 255 Ga. App. 445, 445 (565 SE2d 603) (2002). Georgia courts generally apply Georgia law to procedural matters. See, e.g., id. (noting that “[t]he rule of lex fori dictates that Georgia courts will apply Georgia law governing procedural or remedial matters”).3 Jape also determined that OCGA § 5-6-34 (b), a Georgia procedural law pertaining to interlocutory appeals, governed appellate jurisdiction of the underlying appeal, notwithstanding that OCGA § 5-6-34 (b) was inconsistent with 9 USC § 16 (a) (1) (B) of the FAA, which also addressed the availability of appeal, and notwithstanding that the parties had agreed that the FAA governed their agreement.4 *83Our Supreme Court did so, however, only upon concluding that OCGA § 5-6-34 (b) was not preempted by the FAA. Jape, supra at 639-644 (2). Accordingly, we conclude that the pertinent state-law procedural provision, in this case OCGA § 9-9-6 (a), applies to BDO’s petition unless the Georgia law is otherwise preempted by the FAA. See American Gen. Financial Svcs. v. Vereen, 282 Ga. App. 663, 666 (639 SE2d 598) (2006) (holding that “procedural rules established by a state for the arbitration process that do not undermine the purposes and objectives of the FAA are not preempted”) (citation and punctuation omitted); St. Fleur v. WPI Cable Systems/Mutron, 879 NE2d 27, 33 (Mass. 2008) (finding that the “Massachusetts counterpart [to 9 USC § 4] ... applies unless that statute undermines the purposes of the Federal Act”). The FAA, which lacks an express preemptive provision, “does not reflect a congressional intent to occupy the entire field of arbitration,” and “its provisions will preempt state law only to the extent it stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” (Citation and punctuation omitted.) Jape, supra at 639 (2). The FAA “simply requires courts to enforce privately negotiated agreements to arbitrate, like other contracts, in accordance with their terms.” Volt, supra at 478. Thus, the FAA will preempt “state laws which require a judicial forum for the resolution of claims which the contracting parties agreed to resolve by arbitration.” (Citation and punctuation omitted.) Id. Here, OCGA § 9-9-6 (a) contemplates that if a party claims that an issue is arbitrable and the issue is otherwise pending in a court having jurisdiction to hear a motion to compel arbitration, the party must pursue its arbitration rights in the pending action, and not a separately filed action. See Odion v. Avesis, Inc., 327 Ga. App. 443, 448 (3) (c) (759 SE2d 538) (2014) (noting that “the plain language of [OCGA § 9-9-6 (a)] makes a motion to compel arbitration optional, but directs that a party opting to file such a motion do so in a pending action, if such an action exists”). As such, OCGA § 9-9-6 (a) is a state procedural rule that “determine[s] only the efficient order of proceedings; it [does] not affect the enforceability of the arbitration agreement itself.” Doctor’s Assocs., Inc. v. Casarotto, 517 U. S. 681, 688 (II) (116 SCt 1652, 134 LE2d 902) (1996). Unlike the Georgia statute at issue in Jape, OCGA § 9-9-6 (a) cannot be said to be “arbitration neutral” inasmuch as it expressly concerns agreements to arbitrate. The United States Supreme Court *84has found, however, that the FAA does not “prevent [ ] the enforcement of agreements to arbitrate under different rules than those set forth in the Act itself.” Volt, 489 U. S. at 478. Further, the Georgia law may affect where the parties litigate the merits of BDO’s arbitration defense, but it does not undermine the substantive directive of the FAA that arbitration agreements be enforced. Accordingly, we conclude that OCGA § 9-9-6 (a), to the extent it controls whether a Georgia court is the appropriate forum for pursuing a motion to compel arbitration, is not preempted by the FAA. See Jape, supra at 645 (“It is one thing to find that Congress intended to impose federal substantive or procedural rules on a type of case that a State has opened its courts to hear. It would be quite another thing to find that Congress intended to require a State to open its courts to hear such a case.”) (Nahmias, J., concurring). It follows that the trial court did not err in considering whether under the standards of OCGA § 9-9-6 (a) it could reach the merits of BDO’s petition. 2. BDO argues that if OCGA § 9-9-6 (a) is not preempted by the FAA, it nevertheless does not apply to BDO’s petition. BDO maintains that OCGA § 9-9-6 (a) does not apply to proceedings beyond the territorial limits of the State of Georgia. However, OCGA § 9-9-6 (a) refers to issues which are claimed to be arbitrable that are pending in a “court,” not pending in a “Georgia court.” As the trial court noted, “[w]here the language of a statute is plain and unambiguous, judicial construction is not only unnecessary but forbidden. In the absence of words of limitation, words in a statute should be given their ordinary and everyday meaning.” (Citation and punctuation omitted.) Six Flags Over Ga. II, L.P. v. Kull, 276 Ga. 210, 211 (576 SE2d 880) (2003). BDO further argues that the Illinois court is not a court having jurisdiction to hear a motion to compel arbitration for purposes of OCGA § 9-9-6 (a). The record shows that the Illinois trial court found that “it has the power to determine whether this should go to arbitration.”5 Under Illinois law, “[t]he question whether the parties have submitted a particular dispute to arbitration, i.e., the ‘question of arbitrability,’ is ‘an issue for judicial determination unless the parties clearly and unmistakably provide otherwise.’ ” (Citation and punctuation omitted; emphasis in original.) Hollingshead v. A.G. Edwards & Sons, Inc., 920 NE2d 1254, 1258 (Ill. App. 2009). See also Phoenix Ins. Co. v. Rosen, 949 NE2d 639, 647 (Ill. 2011) (“[P]ublic policy in Illinois favors arbitration”). And “[w]here there is a valid arbitration agreement and the parties’ dispute falls within the scope *85of that agreement, arbitration is mandatory and the trial court must compel it.” Hollingshead, supra at 1260. BDO argues that it was required by Illinois authority to bring the petition to compel in the jurisdiction where the arbitration is to take place, which location BDO contends will ultimately be Fulton County, Georgia. But, BDO only establishes that an Illinois court could not order arbitration to take place in Illinois where that location was inconsistent with the parties’ agreement to arbitrate, see Peregrine Financials and Securities v. Hakakha, 788 NE2d 263, 268 (Ill. App. 2003), not that the Illinois court would not have jurisdiction to consider a motion to compel when the merits of issues claimed to be arbitrable were before that court. Compare 710 ILCS 5/2 (governing proceedings to compel or stay arbitration). Decided September 16, 2014. DLA Piper, Paul N. Monnin, James M. Rusert, for appellants. Caldwell & Watson, Harmon W. Caldwell, Jr., Harry W. MacDougald, Loewinsohn Flegle Deary, Jeven R. Sloan, for appellees. Lastly, BDO contends that compliance with OCGA § 9-9-6 (a) is not a jurisdictional defect under the express terms of the statute and the trial court was therefore not required to dismiss its petition. However, in light of the pending Illinois action, the trial court could not reach the merits of BDO’s petition to compel arbitration, and so the trial court’s dismissal of the petition without prejudice was appropriate. See Odion, supra at 448-449 (3) (d) (as the trial court did not, and could not, reach the merits of the claims, dismissal without prejudice was the appropriate remedy); Yates v. CACV of Colorado, 303 Ga. App. 425, 433 (3) (693 SE2d 629) (2010) (as the counterclaim was not permitted, the trial court should have dismissed it without prejudice).
Judgment affirmed.
Andrews, P. J., and McFadden, J., concur.
BDO asserts that it was unable to bring this action in federal court in Atlanta because there was no diversity jurisdiction under 28 USC § 1332 and that a federal court in Illinois could not order arbitration to take place outside its own district. See 9 USC § 4 (“The hearing and proceedings, under such agreement, shall be within the district in which the petition for an order directing such arbitration is filed”).
However, we do not think that our Supreme Court made a definitive or complete ruling on the issue. For instance, at least with respect to § 3 of the FAA, our Supreme Court has also found, citing Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U. S. 1, 26 (103 SCt 927, 74 LE2d 765) (1983), that “state courts as well as federal courts are obliged to grant stays of arbitration pursuant to § 3 ... .” Hilton Constr. Co., supra at 703.
In this case, the consulting agreements contemplated that any arbitration would be in accordance with the laws of the State of New York, but neither BDO nor Coe suggests that the law of New York governed whether the trial court had subject matter jurisdiction over the petition. See, e.g., Continental Ins. Co., supra at 445-446 (applying GAC, the procedural law of Georgia, notwithstanding that the contract was governed by Illinois law). We note, however, that as in Georgia, New York law provides: “If an issue claimed to be arbitrable is involved in an action pending in a court having jurisdiction to hear a motion to compel arbitration, the application shall be made by motion in that action.” Section 7503 (a) of the New York Civil Practice Law and Rules.
BDO points out that the underlying motion to compel arbitration in Jape was asserted under § 4 of the FAA, see Jape, supra at 638, but we do not think it follows from the Court’s *83analysis, which pertained to appellate jurisdiction, that Jape necessarily approved of the superior court’s jurisdiction to apply § 4 of the FAA.
Coe also asserts, and BDO acknowledges, that BDO moved to stay the Illinois action in favor of arbitration after filing this appeal. | 09-08-2022 | [
"Ray, Judge. BDO USA, LLP, f/k/a BDO Seidman, LLP, and Michael Whitacre (collectively, “BDO”) filed a petition in the Superior Court of Fulton County to compel arbitration of their disputes with Douglas Coe, Jacqueline Coe, GFLIRB, LLC, DBICHA, LLC, and ALAKE, LLC (collectively, “Coe”). Following a hearing on Coe’s motion to dismiss, the trial court found that the issues that BDO claimed to be arbitrable were then pending before an Illinois court which had jurisdiction to hear a motion to compel arbitration and, therefore, in light of OCGA § 9-9-6 (a), it lacked subject matter jurisdiction to consider the merits of BDO’s petition. Accordingly, the trial court dismissed BDO’s petition without prejudice. On appeal, BDO contends that the trial court had jurisdiction to consider BDO’s petition to compel arbitration under the Federal Arbitration Act, 9 USC § 1 et seq. (“FAA”), which it claims preempted OCGA § 9-9-6 (a). For the reasons that follow, we affirm. BDO’s petition, in pertinent part, alleges that BDO provided tax consulting services to Douglas Coe pursuant to (at least) four written consulting agreements.",
"In 2001 and 2002, Coe entered into a “distressed debt” tax shelter and then claimed deductions on 2001-2007 tax returns for artificial losses generated by the tax shelter. The Internal Revenue Service disallowed the deductions and imposed back taxes, interest, and penalties against Coe. In the consulting agreements, Coe and BDO agreed to arbitrate any dispute, controversy, or claim arising in connection with the performance or breach of the respective agreements in the city “in which the BDO office providing the relevant Services exists, unless the parties agree to a different locale.” BDO alleged that the office providing those relevant services is located in Atlanta, Georgia, but that in contravention of their agreements to arbitrate, Coe sued BDO in the Circuit Court of Cook County, Illinois, asserting various claims *80arising in connection with the services provided by BDO to Coe under their written agreements.",
"In its petition, BDO asked the trial court to order Coe to arbitrate each of the claims asserted against BDO in the Illinois complaint before an arbitration panel venued in Atlanta and, further, to enjoin Coe from prosecuting the Illinois complaint against BDO and from initiating judicial proceedings against BDO in any other forum. BDO alleged that venue for its action was proper in the Superior Court of Fulton County under both OCGA § 9-9-4 and § 4 of the FAA, 9 USC § 4. Coe moved to dismiss BDO’s petition, contending that under Georgia law the court presiding over the Illinois action, not the Georgia superior court, was the only court that could decide BDO’s arbitrability defense to Coe’s Illinois claims. Relying on OCGA § 9-9-6 (a), the trial court determined that it lacked jurisdiction over BDO’s petition because the issues which BDO claimed to be arbitrable were before the Illinois court, which had had jurisdiction to consider a motion to compel arbitration. The trial court granted Coe’s motion and dismissed BDO’s petition without prejudice.",
"“The dismissal of an action for lack of subject matter jurisdiction is a question of law that we review de novo.” Babb v. Babb, 293 Ga. App. 140, 140 (1) (666 SE2d 396) (2008). See Goddard v. City of Albany, 285 Ga. 882, 883 (1) (684 SE2d 635) (2009). 1. At issue is whether the trial court erred in dismissing BDO’s petition to compel arbitration under authority of OCGA § 9-9-6 (a). BDO contends that the trial court erred in relying on OCGA § 9-9-6 (a) because Georgia courts have jurisdiction to consider a claim filed under § 4 of the FAA, 9 USC § 4 and that, in any event, OCGA § 9-9-6 (a) is preempted by the federal law.",
"Section 2 of the FAA provides that arbitration agreements “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 USC § 2. Further, “[t]he FAA applies in state and federal courts to all contracts containing an arbitration clause that involves or affects interstate commerce.” American Gen. Financial Svcs. v. Jape, 291 Ga. 637, 638 (1) (732 SE2d 746) (2012) (“Jape”). Coe does not dispute that the consulting contracts containing the arbitration clauses at issue involve or affect interstate commerce. It follows that the FAA applies to the parties’ agreements to arbitrate. See GF/Legacy Dallas v. Juneau Constr. Co., 282 Ga. App. 14, 15-16 (637 SE2d 511) (2006) (as the contract, which included an arbitration clause, undisputably involved interstate commerce, it was governed by the FAA). OCGA § 9-9-6 (a), which forms part of the Georgia Arbitration Code, OCGA § 9-9-1 et seq.",
"(the “GAC”), provides that “[a] party aggrieved by the failure of another to arbitrate may apply for an order *81compelling arbitration,” and sets forth the procedures therefor. Similarly, § 4 of the FAA provides in pertinent part: A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court which, save for such agreement, would have jurisdiction ... for an order directing that such arbitration proceed in the manner provided for in such agreement. Unlike § 4 of the FAA, however, OCGA § 9-9-6 (a) requires that “[i]f an issue claimed to be arbitrable is involved in an action pending in a court having jurisdiction to hear a motion to compel arbitration, the application shall be made by motion in that action.” Id. Generally, “state courts are presumed to have concurrent jurisdiction with federal courts to hear federal causes of action unless Congress places exclusive jurisdiction in the federal courts by affirmatively divesting state courts of concurrent jurisdiction.” Nissan Motor Acceptance Corp. v. Stovall Nissan, 224 Ga. App. 295, 296, n. 2 (480 SE2d 322) (1997). The FAA has “substantive supremacy,” but requires an independent jurisdictional basis for access to a federal forum, such that “state courts have a prominent role to play as enforcers of agreements to arbitrate.” (Punctuation omitted.)",
"Vaden v. Discover Bank, 556 U. S. 49, 59 (II) (129 SCt 1262, 173 LE2d 206) (2009). BDO argues that notwithstanding that § 4 of the FAA refers to a petition to compel arbitration in “any United States district court,” the trial court, through the exercise of its concurrent jurisdiction over federal causes of action, should have considered BDO’s petition under authority of § 4 of the FAA and not dismissed the petition by applying OCGA § 9-9-6 (a).1 It is not clear, however, if a state court has jurisdiction over a motion to compel arbitration under § 4 of the FAA. See Hilton Constr. Co. v. Martin Mechanical Contractors, 251 Ga. 701, 703 (308 SE2d 830) (1983) (finding “the question of the state court jurisdiction of § 4 ... is unsettled”).",
"As our Supreme Court recently noted in Jape, while the United States Supreme Court has recognized “that the FAA creates a body of federal substantive law of arbitrability applicable in both federal and state courts, the Supreme Court has not had the *82occasion to determine whether the FAA’s procedural provisions are applicable in state courts.” Jape, supra at 640 (2). See Southland Corp. v. Keating, 465 U. S. 1, 16 (III), n. 10 (104 SCt 852, 79 LE2d 1) (1984) (“In holding that the [FAA] preempts a state law that withdraws the power to enforce arbitration agreements, we do not hold that §§ 3 and 4 of the [FAA] apply to proceedings in state courts”). In particular, our Supreme Court pointed out that the United States Supreme Court “has acknowledged... that the procedural provisions found in §§ 3 and 4 of the [FAA] appear to apply by their terms only in federal court.” Jape, supra at 641 (2). See Volt Information Sciences v. Bd.",
"of Trustees of Leland Stanford Junior Univ., 489 U. S. 468, 477, n. 6 (109 SCt 1248, 103 LE2d 488) (1989) (noting that § 4 of the FAA refers to “any United States district court”). In view of the foregoing, our Supreme Court in Jape suggests that the procedural provisions found in §§ 3 and 4 of the FAA do not apply to state court proceedings.2 Further, the GAC “is a body of procedural law setting forth the public policy of this State with respect to the enforcement of agreements to arbitrate.” Continental Ins. Co. v. Equity Residential Properties Trust, 255 Ga. App. 445, 445 (565 SE2d 603) (2002).",
"Georgia courts generally apply Georgia law to procedural matters. See, e.g., id. (noting that “[t]he rule of lex fori dictates that Georgia courts will apply Georgia law governing procedural or remedial matters”).3 Jape also determined that OCGA § 5-6-34 (b), a Georgia procedural law pertaining to interlocutory appeals, governed appellate jurisdiction of the underlying appeal, notwithstanding that OCGA § 5-6-34 (b) was inconsistent with 9 USC § 16 (a) (1) (B) of the FAA, which also addressed the availability of appeal, and notwithstanding that the parties had agreed that the FAA governed their agreement.4 *83Our Supreme Court did so, however, only upon concluding that OCGA § 5-6-34 (b) was not preempted by the FAA. Jape, supra at 639-644 (2). Accordingly, we conclude that the pertinent state-law procedural provision, in this case OCGA § 9-9-6 (a), applies to BDO’s petition unless the Georgia law is otherwise preempted by the FAA. See American Gen. Financial Svcs.",
"v. Vereen, 282 Ga. App. 663, 666 (639 SE2d 598) (2006) (holding that “procedural rules established by a state for the arbitration process that do not undermine the purposes and objectives of the FAA are not preempted”) (citation and punctuation omitted); St. Fleur v. WPI Cable Systems/Mutron, 879 NE2d 27, 33 (Mass. 2008) (finding that the “Massachusetts counterpart [to 9 USC § 4] ... applies unless that statute undermines the purposes of the Federal Act”). The FAA, which lacks an express preemptive provision, “does not reflect a congressional intent to occupy the entire field of arbitration,” and “its provisions will preempt state law only to the extent it stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” (Citation and punctuation omitted.) Jape, supra at 639 (2). The FAA “simply requires courts to enforce privately negotiated agreements to arbitrate, like other contracts, in accordance with their terms.” Volt, supra at 478. Thus, the FAA will preempt “state laws which require a judicial forum for the resolution of claims which the contracting parties agreed to resolve by arbitration.” (Citation and punctuation omitted.)",
"Id. Here, OCGA § 9-9-6 (a) contemplates that if a party claims that an issue is arbitrable and the issue is otherwise pending in a court having jurisdiction to hear a motion to compel arbitration, the party must pursue its arbitration rights in the pending action, and not a separately filed action. See Odion v. Avesis, Inc., 327 Ga. App. 443, 448 (3) (c) (759 SE2d 538) (2014) (noting that “the plain language of [OCGA § 9-9-6 (a)] makes a motion to compel arbitration optional, but directs that a party opting to file such a motion do so in a pending action, if such an action exists”). As such, OCGA § 9-9-6 (a) is a state procedural rule that “determine[s] only the efficient order of proceedings; it [does] not affect the enforceability of the arbitration agreement itself.” Doctor’s Assocs., Inc. v. Casarotto, 517 U. S. 681, 688 (II) (116 SCt 1652, 134 LE2d 902) (1996).",
"Unlike the Georgia statute at issue in Jape, OCGA § 9-9-6 (a) cannot be said to be “arbitration neutral” inasmuch as it expressly concerns agreements to arbitrate. The United States Supreme Court *84has found, however, that the FAA does not “prevent [ ] the enforcement of agreements to arbitrate under different rules than those set forth in the Act itself.” Volt, 489 U. S. at 478. Further, the Georgia law may affect where the parties litigate the merits of BDO’s arbitration defense, but it does not undermine the substantive directive of the FAA that arbitration agreements be enforced. Accordingly, we conclude that OCGA § 9-9-6 (a), to the extent it controls whether a Georgia court is the appropriate forum for pursuing a motion to compel arbitration, is not preempted by the FAA.",
"See Jape, supra at 645 (“It is one thing to find that Congress intended to impose federal substantive or procedural rules on a type of case that a State has opened its courts to hear. It would be quite another thing to find that Congress intended to require a State to open its courts to hear such a case.”) (Nahmias, J., concurring). It follows that the trial court did not err in considering whether under the standards of OCGA § 9-9-6 (a) it could reach the merits of BDO’s petition. 2. BDO argues that if OCGA § 9-9-6 (a) is not preempted by the FAA, it nevertheless does not apply to BDO’s petition.",
"BDO maintains that OCGA § 9-9-6 (a) does not apply to proceedings beyond the territorial limits of the State of Georgia. However, OCGA § 9-9-6 (a) refers to issues which are claimed to be arbitrable that are pending in a “court,” not pending in a “Georgia court.” As the trial court noted, “[w]here the language of a statute is plain and unambiguous, judicial construction is not only unnecessary but forbidden. In the absence of words of limitation, words in a statute should be given their ordinary and everyday meaning.” (Citation and punctuation omitted.) Six Flags Over Ga. II, L.P. v. Kull, 276 Ga. 210, 211 (576 SE2d 880) (2003). BDO further argues that the Illinois court is not a court having jurisdiction to hear a motion to compel arbitration for purposes of OCGA § 9-9-6 (a).",
"The record shows that the Illinois trial court found that “it has the power to determine whether this should go to arbitration.”5 Under Illinois law, “[t]he question whether the parties have submitted a particular dispute to arbitration, i.e., the ‘question of arbitrability,’ is ‘an issue for judicial determination unless the parties clearly and unmistakably provide otherwise.’ ” (Citation and punctuation omitted; emphasis in original.) Hollingshead v. A.G. Edwards & Sons, Inc., 920 NE2d 1254, 1258 (Ill. App. 2009). See also Phoenix Ins. Co. v. Rosen, 949 NE2d 639, 647 (Ill. 2011) (“[P]ublic policy in Illinois favors arbitration”). And “[w]here there is a valid arbitration agreement and the parties’ dispute falls within the scope *85of that agreement, arbitration is mandatory and the trial court must compel it.” Hollingshead, supra at 1260. BDO argues that it was required by Illinois authority to bring the petition to compel in the jurisdiction where the arbitration is to take place, which location BDO contends will ultimately be Fulton County, Georgia.",
"But, BDO only establishes that an Illinois court could not order arbitration to take place in Illinois where that location was inconsistent with the parties’ agreement to arbitrate, see Peregrine Financials and Securities v. Hakakha, 788 NE2d 263, 268 (Ill. App. 2003), not that the Illinois court would not have jurisdiction to consider a motion to compel when the merits of issues claimed to be arbitrable were before that court. Compare 710 ILCS 5/2 (governing proceedings to compel or stay arbitration). Decided September 16, 2014.",
"DLA Piper, Paul N. Monnin, James M. Rusert, for appellants. Caldwell & Watson, Harmon W. Caldwell, Jr., Harry W. MacDougald, Loewinsohn Flegle Deary, Jeven R. Sloan, for appellees. Lastly, BDO contends that compliance with OCGA § 9-9-6 (a) is not a jurisdictional defect under the express terms of the statute and the trial court was therefore not required to dismiss its petition. However, in light of the pending Illinois action, the trial court could not reach the merits of BDO’s petition to compel arbitration, and so the trial court’s dismissal of the petition without prejudice was appropriate. See Odion, supra at 448-449 (3) (d) (as the trial court did not, and could not, reach the merits of the claims, dismissal without prejudice was the appropriate remedy); Yates v. CACV of Colorado, 303 Ga. App. 425, 433 (3) (693 SE2d 629) (2010) (as the counterclaim was not permitted, the trial court should have dismissed it without prejudice). Judgment affirmed. Andrews, P. J., and McFadden, J., concur. BDO asserts that it was unable to bring this action in federal court in Atlanta because there was no diversity jurisdiction under 28 USC § 1332 and that a federal court in Illinois could not order arbitration to take place outside its own district. See 9 USC § 4 (“The hearing and proceedings, under such agreement, shall be within the district in which the petition for an order directing such arbitration is filed”).",
"However, we do not think that our Supreme Court made a definitive or complete ruling on the issue. For instance, at least with respect to § 3 of the FAA, our Supreme Court has also found, citing Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U. S. 1, 26 (103 SCt 927, 74 LE2d 765) (1983), that “state courts as well as federal courts are obliged to grant stays of arbitration pursuant to § 3 ... .” Hilton Constr. Co., supra at 703. In this case, the consulting agreements contemplated that any arbitration would be in accordance with the laws of the State of New York, but neither BDO nor Coe suggests that the law of New York governed whether the trial court had subject matter jurisdiction over the petition. See, e.g., Continental Ins. Co., supra at 445-446 (applying GAC, the procedural law of Georgia, notwithstanding that the contract was governed by Illinois law). We note, however, that as in Georgia, New York law provides: “If an issue claimed to be arbitrable is involved in an action pending in a court having jurisdiction to hear a motion to compel arbitration, the application shall be made by motion in that action.” Section 7503 (a) of the New York Civil Practice Law and Rules.",
"BDO points out that the underlying motion to compel arbitration in Jape was asserted under § 4 of the FAA, see Jape, supra at 638, but we do not think it follows from the Court’s *83analysis, which pertained to appellate jurisdiction, that Jape necessarily approved of the superior court’s jurisdiction to apply § 4 of the FAA. Coe also asserts, and BDO acknowledges, that BDO moved to stay the Illinois action in favor of arbitration after filing this appeal."
]
| https://www.courtlistener.com/api/rest/v3/opinions/7880363/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
886 So.2d 87 (2004) MASTEC NORTH AMERICA, INC. v. Curtis Dale HOLTON. 2010103. Court of Civil Appeals of Alabama. February 13, 2004. William A. Austill and Shelley D. Howton of Austill, Lewis & Simms, P.C., Birmingham, for appellant. *88 Ross Diamond III of Diamond, Hasser & Frost, Mobile, for appellee.
After Remand from the Alabama Supreme Court PITTMAN, Judge. The prior judgment of this court entered on June 7, 2002, has been reversed, and the cause remanded, by the Supreme Court of Alabama. Ex parte Holton, 886 So.2d 83 (Ala.2003). On remand to this court, and in compliance with the Supreme Court's opinion, the judgment of the Baldwin Circuit Court is affirmed. AFFIRMED. YATES, P.J., and CRAWLEY and THOMPSON, JJ., concur. | 10-30-2013 | [
"886 So.2d 87 (2004) MASTEC NORTH AMERICA, INC. v. Curtis Dale HOLTON. 2010103. Court of Civil Appeals of Alabama. February 13, 2004. William A. Austill and Shelley D. Howton of Austill, Lewis & Simms, P.C., Birmingham, for appellant. *88 Ross Diamond III of Diamond, Hasser & Frost, Mobile, for appellee. After Remand from the Alabama Supreme Court PITTMAN, Judge. The prior judgment of this court entered on June 7, 2002, has been reversed, and the cause remanded, by the Supreme Court of Alabama. Ex parte Holton, 886 So.2d 83 (Ala.2003). On remand to this court, and in compliance with the Supreme Court's opinion, the judgment of the Baldwin Circuit Court is affirmed. AFFIRMED.",
"YATES, P.J., and CRAWLEY and THOMPSON, JJ., concur."
]
| https://www.courtlistener.com/api/rest/v3/opinions/1805023/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
MoCLELLAN, J. Prior to March 18, 1912, Misses Dickert and Landt (appellees) owned and operated the Anniston Hospital, and Drs. E. M. and W. D. Sellers (appellants) owned and operated the Sellers Hospital. With the purpose of establishing out of these two prop*211erties, and equipments, and institutions a public hospital in Anniston, Misses Dickert and Landt constituted Drs. Winn and Moore their agents to negotiate with the Drs. Sellers, and also bind them in the premises. On March 18, 1912, the Drs. Sellers and Misses Dickert and Landt (through the hand of one of their agents) signed the instrument of which the following is the substance: “Know all men by these presents that this contract is hereby made by and between M. O. Dickert and O. Y. Landt, doing business as the Anniston Hospital Company, party of the first part, and E. M. Sellers and W. D. Sellers, party of the second part, and it is mutually agreed and understood as follows: That, in consideration of the mutual agreement of the parties hereto, the parties of the first part contract and agree to sell and convey to the said parties of the second part the equipment, and outfit, and all property connected therewith, not including the real estate in which the same is located, of the said Anniston Hospital Company in consideration of the sum of one ($1.00) dollar to be paid by the said parties of the second part to- the parties of the-first part; and the parties of the second part contract and agree, upon receipt of the said conveyance of the-equipment of the Anniston Hospital Company; to sell and convey by good and sufficient deeds, with covenants-of warranty, the property known as the Sellers Hospital, and all equipment connected therewith,' and also-the property which shall have been conveyed to the parties of the second part by said Dickert and Lándt, and which is above referred to, to certain named trustees to be agreed upon for the benefit of the public, at and for-the consideration to be paid to- the parties of the second part of the sum of twenty-five thousand ($25,000.00) dollars, said payment to be made as follows: The sum of five thousand ($5,000.00) dollars in sixty days, and *212the balance of said purchase money in five annual installments of four thousand ($4,000.00) dollars each, with interest on each note payable annually at eight per cent, per annum.” On March 30, 1912, the Drs. Sellers executed the instrument, called a duebill in the record, in words and figures as follows: “Due Drs. Moore and L. M. Winn $1,000 in 60 days, provided by the terms of the original contract.” This is the foundation of the present suit; common counts and counts in special assumpsit being employed in the statement of the cause of action. While mere mention is made in brief for appellant that the court erred, as assigned, in overruling the demurrer to count 2 as amended, no insistence upon this assignment appears in the brief for appellant. There is no assignment of error insisted upon that is predicated of rulings on the pleadings. The major question presented for review is the propriety of the trial court’s action in allowing the plaintiff to adduce evidence of obligations assumed or promises made outside of the instrument of March 18, 1912, quoted above. The real issue between parties may be made to more clearly appear by stating, summarily, the respective concrete contentions: For the plaintiffs, that defendants engaged to pay plaintiffs, in any event, $2,-000 for their-unqualified contribution, in property, to the unit made by the aggregation of both the hospital properties, which, it was the expectation and purpose, would, in effect, be sold to the public, represented by trustees, and paid for, to the defendants as the temporary repositories of the title, by popular subscription, and the other $1,000 was represented by the duebill, made payable to the mentioned agents of the plaintiffs, who were without pecuniary interest therein; and, for the defendants, that there was no assumption by them *213of an absolute obligation to pay plaintiffs $2,000, but only to pay them that sum if the sum to be raised in a definite time by popular subscription was paid to the defendants — a condition that was not met— the scheme being to sell the combined property to trustees for the public for $25,000, $2,000 of which should go to- the plaintiffs for their property contribution, and the rest to defendants, and that the duebill was but a token of the balance ($1,000 having already been paid by defendants), to pay which the assurance was wholly contingent upon the event stated. It is thus seen that the paramount substantial issue was whether the defendants engaged unqualifiedly to pay $2,000 to plaintiffs for their hospital property. If the defendants’ theory of the matter was sustained, of course the plaintiffs could not recover; but, if that of the plaintiffs prevailed, the liability of defendants was established. In the process of supporting their theory the court allow the plaintiffs, over the defendants’ objections, to introduce parol evidence dehors the writing of March 18, 1912. This testimony was to the effect that a contract consistent with the plaintiffs’ theory, stated before, was made, and that the duebill was an accordant element thereof —a contract not fully set forth in the writing of March 18, 1912. The basis of the objections made 'for defendants was the familiar doctrine which forbids the adduction of parol evidence to vary, alter, or contradict a written contract; and it is earnestly insisted for appellants that the matters of evidence admitted for plaintiffs do not fall within any of the recognized “exceptions” to the general doctrine mentioned. Counsel say, in substance in this connection, that the application of the law, and not the law, is the real subject of their controversy. The general doctrine invoked for appellants necessarily rests upon the existence of a valid written in*214strument expressing the obligations assumed by or imposed upon the parties. The implication, at least, is that the executed writing contains all stipulations, engagements, and promises the parties intend to make or to assume, and that all previous negotiations,, conversations, and parol agreements are merged in the terms of the instrument. The basis for this action — the bill of sale quoted before — was executed 12 days after March 18, 1912, and at least that number of days after the parol agreements to which the witnesses were allowed to testify. In effect the first clause of the duebill said: “I owe Doctors Moore and Winn one thousand dollars, to be paid in sixty days from March 30, 1912.” To this there is added, “provided by the terms of the original contract.” Manifestly, the express reference there made to an “original contract” required parol evidence to identify the subject of the reference. The duebill did not describe the “original contract,” either by date or other expressly identifying method. If it had definitely referred to the instrument of March 18, 1912, then there would be presented the unalloyed question to which counsel have devoted an able and elaborate discussion. The paper not having done so, it is clear that parol evidence was properly receivable to identify the “original contract.” But evidence to identify a contract referred to in another paper and evidence to alter, vary, or contradict, if so, a written contract referred to in another paper, which has been identified, are, of course, very different matters — matters not to be confounded when due regard for established rules of evidence is required. Under this duebill, a vitally important inquiry of fact was, What were the “terms of the original contract”? There was no possible way in which to estab*215lish the fact other than by evidence aliunde the due-bill. The instrument of March 18, 1912, itself did not establish the fact, though it was undoubtedly evidence tending so to do when parol evidence was presented to evidentially refer the terms of the duebill to that instrument. The defendants, in effect, affirm that the reference in the duebill was to the instrument of March 18, 1912, and to nothing else; but the plaintiffs contested that affirmation, and asserted through their testimony that that instrument was not alone the “original contract” — that the “original contract” had another feature which supported the liability the duebill evidenced. Hence, before the doctrine appellants would invoice could have operation and effect, it would be necessary to affirm, as a matter of law, that the written instrument toas the “original contract” referred to in the duebill. Obviously, this could not be done by the trial court without deciding an issue which was necessarily a question for the jury. In determining what was the “original contract,” those advantaged to know the facts were the sources of information in the premises, and it was competent to ask them in the words of the duebill, or in other equivalent phrases, what were “the terms of the original contract,” and thereby offend no rule forbidding the interpretation or construction of written instruments by other than the court itself. Such questions evoke knowledge of a fact or a combination of facts comprehended in the term “contract.” The several assignments of error grouped as A under subdivision 3 of appellants’ brief are without merit. There was manifest error in allowing, over defendants’ apt objection, the question, copied in assignment 23, propounded to the witness Dr. Moore whereby the witness was asked to interpret the reference in the due-*216bill. It is ever the function of the court, and never the privilege of a witness, to construe or interpret a writing in evidence. The motion to exclude the answer to this- question was also erroneously overruled. The question set out in assignment 26 was subject to- like fault, and it was error to allow it over defendants’ objection. There was error, also, in permitting the witness Winn to testify that the duebill was given for the balance of the purchase money. Whether it was given therefor or not depended upon what “the terms of the original contract” were. It was competent for the witness to testify what those terms were — what the original contract was — but for the jury to determine the issue what the “original contract” was. To allow the witness to testify to the effect indicated was to permit him to affirm that which, under the evidence, only the jury could decide. For the errors indicated, the judgment is reversed, and the cause is remanded. Reversed and remanded. Mayfield, Sayre, and Somerville, JJ., concur. | 07-27-2022 | [
"MoCLELLAN, J. Prior to March 18, 1912, Misses Dickert and Landt (appellees) owned and operated the Anniston Hospital, and Drs. E. M. and W. D. Sellers (appellants) owned and operated the Sellers Hospital. With the purpose of establishing out of these two prop*211erties, and equipments, and institutions a public hospital in Anniston, Misses Dickert and Landt constituted Drs. Winn and Moore their agents to negotiate with the Drs. Sellers, and also bind them in the premises. On March 18, 1912, the Drs.",
"Sellers and Misses Dickert and Landt (through the hand of one of their agents) signed the instrument of which the following is the substance: “Know all men by these presents that this contract is hereby made by and between M. O. Dickert and O. Y. Landt, doing business as the Anniston Hospital Company, party of the first part, and E. M. Sellers and W. D. Sellers, party of the second part, and it is mutually agreed and understood as follows: That, in consideration of the mutual agreement of the parties hereto, the parties of the first part contract and agree to sell and convey to the said parties of the second part the equipment, and outfit, and all property connected therewith, not including the real estate in which the same is located, of the said Anniston Hospital Company in consideration of the sum of one ($1.00) dollar to be paid by the said parties of the second part to- the parties of the-first part; and the parties of the second part contract and agree, upon receipt of the said conveyance of the-equipment of the Anniston Hospital Company; to sell and convey by good and sufficient deeds, with covenants-of warranty, the property known as the Sellers Hospital, and all equipment connected therewith,' and also-the property which shall have been conveyed to the parties of the second part by said Dickert and Lándt, and which is above referred to, to certain named trustees to be agreed upon for the benefit of the public, at and for-the consideration to be paid to- the parties of the second part of the sum of twenty-five thousand ($25,000.00) dollars, said payment to be made as follows: The sum of five thousand ($5,000.00) dollars in sixty days, and *212the balance of said purchase money in five annual installments of four thousand ($4,000.00) dollars each, with interest on each note payable annually at eight per cent, per annum.” On March 30, 1912, the Drs. Sellers executed the instrument, called a duebill in the record, in words and figures as follows: “Due Drs.",
"Moore and L. M. Winn $1,000 in 60 days, provided by the terms of the original contract.” This is the foundation of the present suit; common counts and counts in special assumpsit being employed in the statement of the cause of action. While mere mention is made in brief for appellant that the court erred, as assigned, in overruling the demurrer to count 2 as amended, no insistence upon this assignment appears in the brief for appellant. There is no assignment of error insisted upon that is predicated of rulings on the pleadings. The major question presented for review is the propriety of the trial court’s action in allowing the plaintiff to adduce evidence of obligations assumed or promises made outside of the instrument of March 18, 1912, quoted above.",
"The real issue between parties may be made to more clearly appear by stating, summarily, the respective concrete contentions: For the plaintiffs, that defendants engaged to pay plaintiffs, in any event, $2,-000 for their-unqualified contribution, in property, to the unit made by the aggregation of both the hospital properties, which, it was the expectation and purpose, would, in effect, be sold to the public, represented by trustees, and paid for, to the defendants as the temporary repositories of the title, by popular subscription, and the other $1,000 was represented by the duebill, made payable to the mentioned agents of the plaintiffs, who were without pecuniary interest therein; and, for the defendants, that there was no assumption by them *213of an absolute obligation to pay plaintiffs $2,000, but only to pay them that sum if the sum to be raised in a definite time by popular subscription was paid to the defendants — a condition that was not met— the scheme being to sell the combined property to trustees for the public for $25,000, $2,000 of which should go to- the plaintiffs for their property contribution, and the rest to defendants, and that the duebill was but a token of the balance ($1,000 having already been paid by defendants), to pay which the assurance was wholly contingent upon the event stated.",
"It is thus seen that the paramount substantial issue was whether the defendants engaged unqualifiedly to pay $2,000 to plaintiffs for their hospital property. If the defendants’ theory of the matter was sustained, of course the plaintiffs could not recover; but, if that of the plaintiffs prevailed, the liability of defendants was established. In the process of supporting their theory the court allow the plaintiffs, over the defendants’ objections, to introduce parol evidence dehors the writing of March 18, 1912. This testimony was to the effect that a contract consistent with the plaintiffs’ theory, stated before, was made, and that the duebill was an accordant element thereof —a contract not fully set forth in the writing of March 18, 1912. The basis of the objections made 'for defendants was the familiar doctrine which forbids the adduction of parol evidence to vary, alter, or contradict a written contract; and it is earnestly insisted for appellants that the matters of evidence admitted for plaintiffs do not fall within any of the recognized “exceptions” to the general doctrine mentioned. Counsel say, in substance in this connection, that the application of the law, and not the law, is the real subject of their controversy.",
"The general doctrine invoked for appellants necessarily rests upon the existence of a valid written in*214strument expressing the obligations assumed by or imposed upon the parties. The implication, at least, is that the executed writing contains all stipulations, engagements, and promises the parties intend to make or to assume, and that all previous negotiations,, conversations, and parol agreements are merged in the terms of the instrument. The basis for this action — the bill of sale quoted before — was executed 12 days after March 18, 1912, and at least that number of days after the parol agreements to which the witnesses were allowed to testify. In effect the first clause of the duebill said: “I owe Doctors Moore and Winn one thousand dollars, to be paid in sixty days from March 30, 1912.” To this there is added, “provided by the terms of the original contract.” Manifestly, the express reference there made to an “original contract” required parol evidence to identify the subject of the reference.",
"The duebill did not describe the “original contract,” either by date or other expressly identifying method. If it had definitely referred to the instrument of March 18, 1912, then there would be presented the unalloyed question to which counsel have devoted an able and elaborate discussion. The paper not having done so, it is clear that parol evidence was properly receivable to identify the “original contract.” But evidence to identify a contract referred to in another paper and evidence to alter, vary, or contradict, if so, a written contract referred to in another paper, which has been identified, are, of course, very different matters — matters not to be confounded when due regard for established rules of evidence is required. Under this duebill, a vitally important inquiry of fact was, What were the “terms of the original contract”? There was no possible way in which to estab*215lish the fact other than by evidence aliunde the due-bill. The instrument of March 18, 1912, itself did not establish the fact, though it was undoubtedly evidence tending so to do when parol evidence was presented to evidentially refer the terms of the duebill to that instrument.",
"The defendants, in effect, affirm that the reference in the duebill was to the instrument of March 18, 1912, and to nothing else; but the plaintiffs contested that affirmation, and asserted through their testimony that that instrument was not alone the “original contract” — that the “original contract” had another feature which supported the liability the duebill evidenced. Hence, before the doctrine appellants would invoice could have operation and effect, it would be necessary to affirm, as a matter of law, that the written instrument toas the “original contract” referred to in the duebill. Obviously, this could not be done by the trial court without deciding an issue which was necessarily a question for the jury. In determining what was the “original contract,” those advantaged to know the facts were the sources of information in the premises, and it was competent to ask them in the words of the duebill, or in other equivalent phrases, what were “the terms of the original contract,” and thereby offend no rule forbidding the interpretation or construction of written instruments by other than the court itself.",
"Such questions evoke knowledge of a fact or a combination of facts comprehended in the term “contract.” The several assignments of error grouped as A under subdivision 3 of appellants’ brief are without merit. There was manifest error in allowing, over defendants’ apt objection, the question, copied in assignment 23, propounded to the witness Dr. Moore whereby the witness was asked to interpret the reference in the due-*216bill. It is ever the function of the court, and never the privilege of a witness, to construe or interpret a writing in evidence. The motion to exclude the answer to this- question was also erroneously overruled. The question set out in assignment 26 was subject to- like fault, and it was error to allow it over defendants’ objection. There was error, also, in permitting the witness Winn to testify that the duebill was given for the balance of the purchase money. Whether it was given therefor or not depended upon what “the terms of the original contract” were. It was competent for the witness to testify what those terms were — what the original contract was — but for the jury to determine the issue what the “original contract” was.",
"To allow the witness to testify to the effect indicated was to permit him to affirm that which, under the evidence, only the jury could decide. For the errors indicated, the judgment is reversed, and the cause is remanded. Reversed and remanded. Mayfield, Sayre, and Somerville, JJ., concur."
]
| https://www.courtlistener.com/api/rest/v3/opinions/7367034/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs October 14, 2015
STATE OF TENNESSEE v. RONALD BENNETT
Appeal from the Criminal Court for Hamilton County Nos. 182619, 182621, 182672, 182674, 182676, 182678, 182680, 182682, 182683, 182684, 182685, 182686 Rebecca J. Stern, Judge
No. E2015-00510-CCA-R3-CD – Filed December 14, 2015 _____________________________
Defendant, Ronald Bennett, appeals the summary dismissal of his motion to correct an illegal sentence filed pursuant to Tennessee Rule of Criminal Procedure 36.1. Because Defendant‟s sentences have long since expired, he has not asserted a colorable claim for relief. Therefore, we affirm the trial court‟s decision to summarily dismiss the motion. However, we remand the matter to the trial court for the entry of corrected judgments pursuant to Tennessee Rule of Criminal Procedure 36.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed and Remanded
TIMOTHY L. EASTER, J., delivered the opinion of the Court, in which ROBERT H. MONTGOMERY, JR., J., joined. JAMES CURWOOD WITT, JR., J., filed a separate concurring opinion.
Ronald Paul Bennett, Memphis, Tennessee, pro se.
Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; and Neal Pinkston, District Attorney General, for the appellee, State of Tennessee.
OPINION
Factual and Procedural Background
Twenty-five years ago, Defendant was indicted on at least twelve different theft- related offenses. The indictments alleged that he committed an aggravated burglary and a theft over $1000 on January 31, 1990; an aggravated burglary and a theft over $1000 on March 13, 1990; an aggravated burglary and a theft over $1000 on March 29, 19901; and a theft over $1000 and five counts of fraudulent use of a credit card on April 5, 1990.2 Defendant pled guilty to all charges on January 17, 1991. On April 26, 1991, the trial court sentenced Defendant to six years for each aggravated burglary conviction, four years for each theft conviction, and eleven months and twenty-nine days for each fraudulent use of a credit card conviction. The judgment forms specify that all sentences were to run concurrently, for a total effective sentence of six years.
On February 2, 2015, Defendant—now an inmate at the Federal Correctional Institution in Memphis—filed a pro se motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. Defendant alleged that his concurrent sentences were illegal because he was on bond for the offenses committed on January 31, 1990, when he committed the subsequent offenses. See T.C.A. § 40-20-111; Tenn. R. Crim. P. 32(c)(3)(C). Defendant also asserted that the judgment forms fail to reflect the trial court‟s finding of guilt, thereby further rendering his sentences illegal. See Tenn. R. Crim. P. 32(e). On February 12, 2015, the trial court summarily denied the motion, finding that the record indicated that Defendant was not arrested until after the commission of the April 5, 1990 offenses and that the record properly reflected the trial court‟s finding of guilt despite the omission of a corresponding mark on the judgment forms. Defendant filed a timely notice of appeal.
Analysis
On appeal, Defendant argues that the trial court erred in summarily dismissing his motion to correct an illegal sentence pursuant to Rule 36.1. He asserts that he made a colorable claim that his sentences were illegal and that this case should be remanded to the trial court for the appointment of counsel and a hearing to determine whether the illegality was a material component of his guilty plea. While the State concedes that the appellant stated a colorable claim and is therefore entitled to counsel and to a hearing, we are not bound by such a concession. See State v. Mitchell, 137 S.W.3d 630, 639 (Tenn. Crim. App. 2003).
Rule 36.1 of the Tennessee Rules of Criminal Procedure became effective on July 1, 2013, providing a procedural mechanism to seek correction of an illegal sentence. In pertinent part, it provides:
1 The judgment forms for these two convictions reflect an offense date of February 26, 1990. 2 The plea petition, appointment of counsel form, and order of conviction indicate that Defendant was charged with a fourth count of aggravated burglary in case number 182670. However, that indictment and judgment form do not appear in the record. -2- Either the defendant or the state may, at any time, seek the correction of an illegal sentence by filing a motion to correct an illegal sentence in the trial court in which the judgment of conviction was entered. For purposes of this rule, an illegal sentence is one that is not authorized by the applicable statutes or that directly contravenes an applicable statute. . . .
Tenn. R. Crim. P. 36.1(a). The trial court may summarily dismiss the motion if the defendant does not “state[] a colorable claim that the sentence is illegal.” Tenn. R. Crim. P. 36.1(b). “[F]or purposes of Rule 36.1, . . . „colorable claim‟ means a claim that, if taken as true and viewed in a light most favorable to the moving party, would entitle the moving party to relief under Rule 36.1.” State v. James D. Wooden, __ S.W.3d __, No. E2014-01069-SC-R11-CD, 2015 WL 7748034, at *6 (Tenn. Dec. 2, 2015). Although the movant is not required to support a Rule 36.1 claim by providing documentation from the record, see id. (citing George William Brady v. State, No. E2013-00792-CCA-R3-PC, 2013 WL 6729908, at *6 (Tenn. Crim. App. Dec. 19, 2013), perm. app. denied (Tenn. May 28, 2014)), the trial court, “when determining whether a Rule 36.1 motion sufficiently states a colorable claim, . . . may consult the record of the proceeding from which the allegedly illegal sentence emanated.” Id.
The Tennessee Supreme Court recently held that “Rule 36.1 does not expand the scope of relief available for illegal sentence claims and therefore does not authorize the correction of expired illegal sentences.” State v. Adrian R. Brown, __ S.W.3d __, No. E2014-00673-SC-R11-CD, 2015 WL 7748275, at *9 (Tenn. Dec. 2, 2015). The supreme court expressly rejected the interpretation of the phrase “at any time” advanced by Defendant and accepted by the State in this case, holding that such an “interpretation is not reasonable in light of the expressed purpose of Rule 36.1, its language, and the jurisprudential background from which it developed.” Id. at *7. Therefore, “a Rule 36.1 motion may be summarily dismissed for failure to state a colorable claim if the alleged illegal sentence has expired.” Id. at *8.
In this case, Defendant‟s total effective sentence of six years would have expired in 1997. However, he did not file his motion to correct an illegal sentence until 2015, eighteen years later.3 Because Defendant‟s sentences have long since expired, relief is not available under Rule 36.1. See id. Due to the expiration of his sentences, Defendant has not asserted a colorable claim for relief. Therefore, we affirm the decision of the trial court to dismiss his motion.
3 We note that while Rule 36.1 did not exist at the time Defendant was serving his sentences, motions to correct illegal sentences were often filed in trial courts and then subsequently appealed through the discretionary common law writ of certiorari. See Moody v. State, 160 S.W.3d 512, 515 (Tenn. 2005) (citing Cox v. State, 53 S.W.3d 287, 291 (Tenn. Crim. App. 2001)). Additionally, Defendant could have filed a petition for a writ of habeas corpus as long as he was “imprisoned or restrained of liberty.” T.C.A. § 29-21-101(a). -3- As to Defendant‟s contention that his sentences are illegal because the judgment forms do not reflect the trial court‟s finding of guilt as required by Tennessee Rule of Criminal Procedure 32(e), we hold that such an omission is a clerical error. “Clerical errors „arise simply from a clerical mistake in filling out the uniform judgment document‟ and may be corrected at any time under Tennessee Rule of Criminal Procedure 36.” James D. Wooden, 2015 WL 7748034, at *7 (quoting Cantrell v. Easterling, 346 S.W.3d 445, 452 (Tenn. 2011)). In reviewing this claim, the trial court found that the Order of Conviction, filed at the time Defendant entered his guilty pleas and setting the matter for a sentencing hearing, reflects the findings of the original trial court. The record clearly reflects the original trial court‟s finding of guilt; therefore, the omission of a corresponding mark on the judgment forms constitutes a clerical error rather than an illegal sentence. Correction of a clerical error under Rule 36 “so that the record accurately reflects the sentence imposed does not amount to granting relief from expired illegal sentences.” Adrian R. Brown, 2015 WL 7748275, at *9. Therefore, we remand the matter to the trial court for the correction of the clerical error.
Conclusion
Based on the foregoing and the record as a whole, we affirm the judgments of the trial court. However, we remand this matter to the trial court for correction of the clerical errors in accordance with Rule 36.
_________________________________ TIMOTHY L. EASTER, JUDGE
-4- | 12-14-2015 | [
"IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs October 14, 2015 STATE OF TENNESSEE v. RONALD BENNETT Appeal from the Criminal Court for Hamilton County Nos. 182619, 182621, 182672, 182674, 182676, 182678, 182680, 182682, 182683, 182684, 182685, 182686 Rebecca J. Stern, Judge No. E2015-00510-CCA-R3-CD – Filed December 14, 2015 _____________________________ Defendant, Ronald Bennett, appeals the summary dismissal of his motion to correct an illegal sentence filed pursuant to Tennessee Rule of Criminal Procedure 36.1. Because Defendant‟s sentences have long since expired, he has not asserted a colorable claim for relief. Therefore, we affirm the trial court‟s decision to summarily dismiss the motion.",
"However, we remand the matter to the trial court for the entry of corrected judgments pursuant to Tennessee Rule of Criminal Procedure 36. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed and Remanded TIMOTHY L. EASTER, J., delivered the opinion of the Court, in which ROBERT H. MONTGOMERY, JR., J., joined. JAMES CURWOOD WITT, JR., J., filed a separate concurring opinion. Ronald Paul Bennett, Memphis, Tennessee, pro se. Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; and Neal Pinkston, District Attorney General, for the appellee, State of Tennessee. OPINION Factual and Procedural Background Twenty-five years ago, Defendant was indicted on at least twelve different theft- related offenses. The indictments alleged that he committed an aggravated burglary and a theft over $1000 on January 31, 1990; an aggravated burglary and a theft over $1000 on March 13, 1990; an aggravated burglary and a theft over $1000 on March 29, 19901; and a theft over $1000 and five counts of fraudulent use of a credit card on April 5, 1990.2 Defendant pled guilty to all charges on January 17, 1991.",
"On April 26, 1991, the trial court sentenced Defendant to six years for each aggravated burglary conviction, four years for each theft conviction, and eleven months and twenty-nine days for each fraudulent use of a credit card conviction. The judgment forms specify that all sentences were to run concurrently, for a total effective sentence of six years. On February 2, 2015, Defendant—now an inmate at the Federal Correctional Institution in Memphis—filed a pro se motion to correct an illegal sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. Defendant alleged that his concurrent sentences were illegal because he was on bond for the offenses committed on January 31, 1990, when he committed the subsequent offenses. See T.C.A. § 40-20-111; Tenn. R. Crim. P. 32(c)(3)(C).",
"Defendant also asserted that the judgment forms fail to reflect the trial court‟s finding of guilt, thereby further rendering his sentences illegal. See Tenn. R. Crim. P. 32(e). On February 12, 2015, the trial court summarily denied the motion, finding that the record indicated that Defendant was not arrested until after the commission of the April 5, 1990 offenses and that the record properly reflected the trial court‟s finding of guilt despite the omission of a corresponding mark on the judgment forms. Defendant filed a timely notice of appeal. Analysis On appeal, Defendant argues that the trial court erred in summarily dismissing his motion to correct an illegal sentence pursuant to Rule 36.1. He asserts that he made a colorable claim that his sentences were illegal and that this case should be remanded to the trial court for the appointment of counsel and a hearing to determine whether the illegality was a material component of his guilty plea. While the State concedes that the appellant stated a colorable claim and is therefore entitled to counsel and to a hearing, we are not bound by such a concession. See State v. Mitchell, 137 S.W.3d 630, 639 (Tenn. Crim.",
"App. 2003). Rule 36.1 of the Tennessee Rules of Criminal Procedure became effective on July 1, 2013, providing a procedural mechanism to seek correction of an illegal sentence. In pertinent part, it provides: 1 The judgment forms for these two convictions reflect an offense date of February 26, 1990. 2 The plea petition, appointment of counsel form, and order of conviction indicate that Defendant was charged with a fourth count of aggravated burglary in case number 182670. However, that indictment and judgment form do not appear in the record.",
"-2- Either the defendant or the state may, at any time, seek the correction of an illegal sentence by filing a motion to correct an illegal sentence in the trial court in which the judgment of conviction was entered. For purposes of this rule, an illegal sentence is one that is not authorized by the applicable statutes or that directly contravenes an applicable statute. . . . Tenn. R. Crim. P. 36.1(a). The trial court may summarily dismiss the motion if the defendant does not “state[] a colorable claim that the sentence is illegal.” Tenn. R. Crim.",
"P. 36.1(b). “[F]or purposes of Rule 36.1, . . . „colorable claim‟ means a claim that, if taken as true and viewed in a light most favorable to the moving party, would entitle the moving party to relief under Rule 36.1.” State v. James D. Wooden, __ S.W.3d __, No. E2014-01069-SC-R11-CD, 2015 WL 7748034, at *6 (Tenn. Dec. 2, 2015). Although the movant is not required to support a Rule 36.1 claim by providing documentation from the record, see id. (citing George William Brady v. State, No. E2013-00792-CCA-R3-PC, 2013 WL 6729908, at *6 (Tenn. Crim. App. Dec. 19, 2013), perm. app.",
"denied (Tenn. May 28, 2014)), the trial court, “when determining whether a Rule 36.1 motion sufficiently states a colorable claim, . . . may consult the record of the proceeding from which the allegedly illegal sentence emanated.” Id. The Tennessee Supreme Court recently held that “Rule 36.1 does not expand the scope of relief available for illegal sentence claims and therefore does not authorize the correction of expired illegal sentences.” State v. Adrian R. Brown, __ S.W.3d __, No. E2014-00673-SC-R11-CD, 2015 WL 7748275, at *9 (Tenn. Dec. 2, 2015). The supreme court expressly rejected the interpretation of the phrase “at any time” advanced by Defendant and accepted by the State in this case, holding that such an “interpretation is not reasonable in light of the expressed purpose of Rule 36.1, its language, and the jurisprudential background from which it developed.” Id. at *7.",
"Therefore, “a Rule 36.1 motion may be summarily dismissed for failure to state a colorable claim if the alleged illegal sentence has expired.” Id. at *8. In this case, Defendant‟s total effective sentence of six years would have expired in 1997. However, he did not file his motion to correct an illegal sentence until 2015, eighteen years later.3 Because Defendant‟s sentences have long since expired, relief is not available under Rule 36.1. See id. Due to the expiration of his sentences, Defendant has not asserted a colorable claim for relief. Therefore, we affirm the decision of the trial court to dismiss his motion. 3 We note that while Rule 36.1 did not exist at the time Defendant was serving his sentences, motions to correct illegal sentences were often filed in trial courts and then subsequently appealed through the discretionary common law writ of certiorari. See Moody v. State, 160 S.W.3d 512, 515 (Tenn. 2005) (citing Cox v. State, 53 S.W.3d 287, 291 (Tenn. Crim.",
"App. 2001)). Additionally, Defendant could have filed a petition for a writ of habeas corpus as long as he was “imprisoned or restrained of liberty.” T.C.A. § 29-21-101(a). -3- As to Defendant‟s contention that his sentences are illegal because the judgment forms do not reflect the trial court‟s finding of guilt as required by Tennessee Rule of Criminal Procedure 32(e), we hold that such an omission is a clerical error. “Clerical errors „arise simply from a clerical mistake in filling out the uniform judgment document‟ and may be corrected at any time under Tennessee Rule of Criminal Procedure 36.” James D. Wooden, 2015 WL 7748034, at *7 (quoting Cantrell v. Easterling, 346 S.W.3d 445, 452 (Tenn. 2011)). In reviewing this claim, the trial court found that the Order of Conviction, filed at the time Defendant entered his guilty pleas and setting the matter for a sentencing hearing, reflects the findings of the original trial court.",
"The record clearly reflects the original trial court‟s finding of guilt; therefore, the omission of a corresponding mark on the judgment forms constitutes a clerical error rather than an illegal sentence. Correction of a clerical error under Rule 36 “so that the record accurately reflects the sentence imposed does not amount to granting relief from expired illegal sentences.” Adrian R. Brown, 2015 WL 7748275, at *9. Therefore, we remand the matter to the trial court for the correction of the clerical error. Conclusion Based on the foregoing and the record as a whole, we affirm the judgments of the trial court. However, we remand this matter to the trial court for correction of the clerical errors in accordance with Rule 36. _________________________________ TIMOTHY L. EASTER, JUDGE -4-"
]
| https://www.courtlistener.com/api/rest/v3/opinions/3162384/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Mr. Richard Weiss, Director Department of Finance and Administration 1509 West Seventh Street, Suite 401 Little Rock, Arkansas 72203-3278 Dear Mr. Weiss: I am writing in response to your request, made pursuant to A.C.A. § 25-19-105(c)(3)(B) (Supp 2005), for an opinion on whether your decision to release certain information from the Arkansas Administration Statewide Information System or "AASIS" in response to a request made under the Arkansas Freedom of Information Act ("FOIA") is consistent with that law. See A.C.A. §§ 25-19-101 to-109 (Supp. 2005, as amended by Acts 268, 7261 and 998 of 2007). Specifically, you note that the Office of Personnel Management received an FOIA request from a citizen seeking an "electronic copy of the [AASIS] database to include Employee name, gender, job title, date of hire/start date, current salary (base, extra, and total salary) pay basis (hourly, annual etc.), agency name, agency code, agency address/city and work address." You state that the requester did not request the birth date, social security number, email or home addresses of employees on the AASIS system. You state that "in accordance with [Attorney General] Opinion No. 2007-070, the Office of Personnel Management plans on providing the requested information. . . ." You note that the "only information requested in addition to what was requested resulting in Opinion No. 20007-070 is the gender of each person." You ask for my "advice as to whether the release of this information is in conformance with the Arkansas Freedom of Information Act." RESPONSE In my opinion your decision is consistent with the FOIA. As you note, I addressed the great bulk of the information now requested in a previous opinion, Opinion No. 2007-070. In that Opinion, I concluded, among other things, that information contained in the AASIS database detailing state employees' names, job titles, dates of hire or start dates, current salaries (base, extra, and total salaries), pay basis (hourly, annual, etc.), agency name, agency codes, and work addresses was open to inspection and copying under the FOIA. I will not restate the analysis of that opinion herein. It is sufficient to note that my opinion has not changed since the issuance of Op. Att'y Gen.2007-070, and in my opinion, therefore, your decision to release the information just listed is consistent with the provisions of the FOIA. As you note, I did not have occasion in Op. Att'y Gen. 2007-070 to discuss release of the "gender" of state employees as listed in the AASIS database. In my opinion, however, your decision to release this information is consistent with the FOIA. As my predecessor stated in Op. Att'y Gen. 2005-100, "This office has previously opined that an employee's race, gender, date of hire and job title are disclosable under the FOIA [citing Op. Att'y Gen. Nos. 1999-305 and 91-351]. Records containing this information generally constitute `personnel records' that are open to public inspection and copying." Id. at 2 (emphasis added). Your decision is therefore consistent with the FOIA. Deputy Attorney General Elana C. Wills prepared the foregoing opinion, which I hereby approve. Sincerely, DUSTIN McDANIEL Attorney General 1 Act 726 is not yet effective. See Op. Att'y Gen. 2007-164. *Page 1 | 07-05-2016 | [
"Mr. Richard Weiss, Director Department of Finance and Administration 1509 West Seventh Street, Suite 401 Little Rock, Arkansas 72203-3278 Dear Mr. Weiss: I am writing in response to your request, made pursuant to A.C.A. § 25-19-105(c)(3)(B) (Supp 2005), for an opinion on whether your decision to release certain information from the Arkansas Administration Statewide Information System or \"AASIS\" in response to a request made under the Arkansas Freedom of Information Act (\"FOIA\") is consistent with that law. See A.C.A. §§ 25-19-101 to-109 (Supp. 2005, as amended by Acts 268, 7261 and 998 of 2007).",
"Specifically, you note that the Office of Personnel Management received an FOIA request from a citizen seeking an \"electronic copy of the [AASIS] database to include Employee name, gender, job title, date of hire/start date, current salary (base, extra, and total salary) pay basis (hourly, annual etc. ), agency name, agency code, agency address/city and work address.\" You state that the requester did not request the birth date, social security number, email or home addresses of employees on the AASIS system. You state that \"in accordance with [Attorney General] Opinion No. 2007-070, the Office of Personnel Management plans on providing the requested information. . . .\"",
"You note that the \"only information requested in addition to what was requested resulting in Opinion No. 20007-070 is the gender of each person.\" You ask for my \"advice as to whether the release of this information is in conformance with the Arkansas Freedom of Information Act.\" RESPONSE In my opinion your decision is consistent with the FOIA. As you note, I addressed the great bulk of the information now requested in a previous opinion, Opinion No. 2007-070. In that Opinion, I concluded, among other things, that information contained in the AASIS database detailing state employees' names, job titles, dates of hire or start dates, current salaries (base, extra, and total salaries), pay basis (hourly, annual, etc. ), agency name, agency codes, and work addresses was open to inspection and copying under the FOIA. I will not restate the analysis of that opinion herein.",
"It is sufficient to note that my opinion has not changed since the issuance of Op. Att'y Gen.2007-070, and in my opinion, therefore, your decision to release the information just listed is consistent with the provisions of the FOIA. As you note, I did not have occasion in Op. Att'y Gen. 2007-070 to discuss release of the \"gender\" of state employees as listed in the AASIS database. In my opinion, however, your decision to release this information is consistent with the FOIA. As my predecessor stated in Op. Att'y Gen. 2005-100, \"This office has previously opined that an employee's race, gender, date of hire and job title are disclosable under the FOIA [citing Op.",
"Att'y Gen. Nos. 1999-305 and 91-351]. Records containing this information generally constitute `personnel records' that are open to public inspection and copying.\" Id. at 2 (emphasis added). Your decision is therefore consistent with the FOIA. Deputy Attorney General Elana C. Wills prepared the foregoing opinion, which I hereby approve. Sincerely, DUSTIN McDANIEL Attorney General 1 Act 726 is not yet effective. See Op. Att'y Gen. 2007-164. *Page 1"
]
| https://www.courtlistener.com/api/rest/v3/opinions/3265323/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
245 Wis.2d 163 (2001) 2001 WI 89 629 N.W.2d 140 Scott BRUNSON, Plaintiff-Appellant, v. Robert L. WARD, Debra Czaplewski, State Farm Mutual and Continental Casualty Company, Defendants, PROGRESSIVE NORTHERN INSURANCE COMPANY, Defendant-Respondent. Nos. 98-3002, 98-3300. Supreme Court of Wisconsin. Oral argument January 4, 2001. Decided July 6, 2001. *167 For the plaintiff-appellant there were briefs (in the court of appeals) by Lynne A. Layber, Milwaukee, and oral argument by Lynn A. Layber. For the defendant-respondent there was a brief by Rick E. Hills, Michelle M. Stoeck and Hills & Hicks, S.C., Brookfield, and oral argument by Rick E. Hills. ¶ 1. DIANE S. SYKES, J. In Wisconsin, underinsured motorist policies written in the amount of $25,000 have been held to be illusory contracts, and case law has required insurers to pay damages, up to the $25,000 limit of any such policy, as a remedy for the issuance of an illusory contract. Meyer v. Classified Ins. Co., 192 Wis. 2d 463, 468, 531 N.W.2d 416 (Ct. App. 1995); see also Kaun v. Indust. Fire & Cas. Ins. Co., 148 Wis. 2d 662, 670, 436 N.W.2d 321 (1989); Hoglund v. Secura Ins., 176 Wis. 2d 265, 270-71, 500 N.W.2d 354 (Ct. App. 1993). The question in this case is the continued viability of this judicially-created remedy in light of a subsequent legislative one a statute requiring underinsured motorist (UIM) policies to provide at least $50,000 in coverage where the policy in question contains a clause conforming the policy to the requirements of state statute. ¶ 2. More specifically, the court of appeals in this case certified the following question to this court: "Does *168 the remedy in Meyer v. Classified Insurance Co., 192 Wis. 2d 463, 531 N.W.2d 416 (Ct. App. 1995), prohibiting illusory insurance coverage, still hold where an insurer fails to update its underinsured motorist (UIM) insurance coverage pursuant to Wis. Stat. § 632.32(4m) (1995-96),[1] but has included a provision stating that the policy shall conform to the Wisconsin Statutes?" We answer the certified question no, and therefore affirm the circuit court's dismissal of the UIM insurer from this case. However, we reverse the circuit court's award of costs and attorney's fees against the plaintiff on his motion for reconsideration, which the circuit court considered to be frivolous.
I ¶ 3. Plaintiff Scott Brunson was seriously injured in an automobile accident in January 1996. The other driver, defendant Robert Ward, had $100,000 in automobile liability coverage, and his insurer offered full policy limits to Brunson. ¶ 4. Brunson had UIM insurance through his automobile liability insurer, Progressive Northern Insurance Company (Progressive), which he purchased on November 19, 1995, for a premium of $23. The declarations page of the policy stated that it provided UIM coverage in the amount of $25,000 per person and $50,000 per accident. The policy provided that Progressive would pay "damages...which an insured person is legally entitled to recover from the owner or operator of an underinsured motor vehicle up to the limit of liability as defined in this Endorsement ..." and defined an "underinsured motor vehicle" as
*169 a motor vehicle that is an insured motor vehicle but for which the sum of the limits under all liability bonds, insurance, policies and cash deposits applicable at the time of the accident is less than the applicable limits of liability for underinsured motorists coverage under this endorsement. ¶ 5. Prior to Brunson's purchase of UIM coverage from Progressive, several appellate decisions had concluded that $25,000 UIM policies were illusory because of their interaction with Wis. Stat. § 344.33(2), which requires all Wisconsin drivers to carry at least $25,000 of liability coverage. See Kaun, 148 Wis. 2d at 670; Meyer, 192 Wis. 2d at 468; Hoglund, 176 Wis. 2d at 270-71. Because UIM coverage is payable only when the tortfeasor's liability limits are less than the insured's UIM limits, the statute requiring Wisconsin drivers to carry a minimum of $25,000 of liability coverage operated to render a $25,000 UIM policy illusory, since under these circumstances the insurer would never have to pay UIM benefits. ¶ 6. In Meyer, the court of appeals established a remedy for an insurer's issuance of this type of illusory UIM policy, requiring the insurer to compensate the insured for damages not covered by the third-party liability policy up to the $25,000 limit of the UIM policy. Meyer, 192 Wis. 2d at 468. Subsequent to Meyer, but before Brunson purchased his UIM coverage from Progressive, the Wisconsin legislature enacted 1995 Wis. Act 21. The act eliminated the illusory contract problem identified in Kaun and Hoglund, and remedied in Meyer, by creating Wis. Stat. § 632.32(4m)(d), requiring all UIM policies to provide a minimum of $50,000 coverage per person and $100,000 per accident.[2] The statute provides:
*170 If an insured [on a policy that goes into effect after October 1, 1995] accepts underinsured motorist coverage, the insurer shall include the coverage under the policy just delivered to the insured in limits of at least $50,000 per person and $100,000 per accident. For any insured who accepts the coverage after notification [on a policy in effect on October 1, 1995], the insurer shall include the coverage under the renewed policy in limits of at least $50,000 per person and $100,000 per accident.
Wis. Stat. § 632.32(4m)(d) (emphasis added). ¶ 7. Because it was issued after the effective date of this change in the law, Brunson's policy was required to provide at least $50,000 of UIM coverage. On June 25, 1996, Progressive notified Brunson by letter that although the declarations page of the policy specified $25,000 of UIM coverage, the policy actually provided $50,000 of UIM coverage because it was required to do so by state law. The letter also explained that Ward was not "underinsured" as defined in the policy, because his $100,000 liability limits exceeded Brunson's $50,000 UIM limits. Accordingly, Progressive declined to pay UIM benefits. ¶ 8. On June 6, 1997, Brunson filed a negligence action against Ward. Brunson amended his complaint three times, eventually adding a UIM claim against Progressive. Progressive sought a declaratory judgment, asking the circuit court to: (1) reform the policy to comply with the requirement in Wis. Stat. § 632.32(4m)(d) of $50,000 in UIM coverage, and (2) dismiss it from the suit because Ward was not "underinsured" according to the policy definition. Brunson opposed the motion, arguing that the policy was illusory pursuant to Hoglund, and therefore he was entitled to the Meyer remedy of $25,000. *171 ¶ 9. The Waukesha County Circuit Court, the Honorable James R. Kieffer, rejected Brunson's arguments and granted Progressive's motion. The circuit court reformed the UIM policy to provide the statutory minimum of $50,000 of UIM coverage, and concluded that it was not illusory at this level of coverage. The circuit court also held that Ward was not an underinsured motorist as defined by the policy and dismissed Progressive from the suit. ¶ 10. Subsequently, Progressive notified the Office of the Commissioner of Insurance (OCI) by letter that the declarations page issued to Brunson mistakenly stated that he had $25,000 of UIM coverage instead of the statutorily required $50,000. Based upon this letter, Brunson moved the court pursuant to Wis. Stat. § 806.07(1)(h)[3] to reconsider its reformation of the policy, arguing that the policy could not be reformed on the basis of Progressive's unilateral mistake and that this issue had not been briefed before the circuit court's ruling. Progressive opposed the motion, contending it was frivolous and requesting costs and reasonable attorney's fees. See Wis. Stat. § 814.025(1). The circuit court denied Brunson's motion for reconsideration, agreed with Progressive that it was frivolous, and awarded Progressive $1,395.75 in costs and attorney's fees. ¶ 11. Brunson appealed from both the declaratory judgment and the denial of his motion for reconsideration and the award of costs and attorney's fees against him. The appeals were consolidated. The court of appeals certified the case to this court to consider *172 the status of Meyer in light of the enactment of Wis. Stat. § 632.32(4m)(d).
II [1-3] ¶ 12. This case involves the interpretation of an insurance contract, which is a question of law that the court reviews de novo. Katze v. Randolph & Scott Mut. Fire Ins. Co., 116 Wis. 2d 206, 212, 341 N.W.2d 689 (1984). We construe an insurance policy to give effect to the intent of the parties, as expressed in the language of the policy. Stanhope v. Brown County, 90 Wis. 2d 823, 848, 280 N.W.2d 711 (1979); Garriguenc v. Love, 67 Wis. 2d 130, 134, 226 N.W.2d 414 (1975). If the policy language is unambiguous, we apply it as written. However, if the words of the policy are reasonably or fairly susceptible to more than one construction, it is ambiguous and we construe such ambiguities against the insurer. Id. at 135.
III ¶ 13. To resolve the certified question of the applicability of the Meyer remedy, we must first decide whether Progressive's policy should have been reformed to reflect the statutorily required $50,000 of UIM coverage instead of $25,000. If reformation was proper, the policy is not illusory and the Meyer remedy does not come into play. ¶ 14. Progressive's policy provides that any of its terms that conflict with state statute are conformed to the requirements of state statute. The insurance code itself also requires that any policy that violates state statute or rule be conformed to the requirements of the statutes and rules. See Wis. Stat. § 631.15(3m). *173 ¶ 15. Progressive's policy accounts for the possibility that certain of its provisions might conflict with state statute, and the insurer agrees in any such instance to be bound by the requirements of statute (it could hardly do otherwise), even though it has not charged or received a premium for the statutorily required benefits. Specifically, the policy provides that "[t]erms of this policy which are in conflict with the statutes of the state in which this policy is issued are hereby amended to conform to the statutes." This language is clear and unambiguous. By operation of this "conformance to law" clause, the endorsement specifying $25,000 of UIM coverage was automatically amended to provide the higher level of UIM coverage $50,000 required by Wis. Stat. § 632.32(4m)(d). ¶ 16. Upgrading the policy to the higher level of coverage was appropriate for reasons separate and apart from the "conformance to law" clause in the policy. The insurance code provides that insurance policy provisions inconsistent with insurance statutes or rules are enforceable to the extent of the requirements contained in the statutes and rules. Specifically, Wis. Stat. § 631.15(3m) provides that "[a] policy that violates a statute or rule is enforceable against the insurer as if it conformed to the statute or rule." Here, the policy violated the minimum UIM coverage requirements contained in Wis. Stat. § 632.32(4m)(d), and, by virtue of Wis. Stat. § 631.15(3m), is enforceable against Progressive as if it conformed to the statutorily required $50,000 in UIM coverage. [4] ¶ 17. The circuit court's "reformation" of the policy, therefore, was not so much a reformation at common law as a recognition that, pursuant to Wis. Stat. §§ 631.15(3m) and 632.32(4m)(d), as well as the *174 agreement of the parties embodied in the "conformance to law" provision, the terms of the policy were automatically amended to provide the $50,000 in UIM coverage required by statute, even though the insurer had not received a premium for that amount of coverage. Thus, in light of the legislature's enactment of the $50,000 UIM minimum, apparently as a response to the $25,000 UIM illusory contract problem, the judicially created remedy in Meyer is obviated and has no application here. ¶ 18. Wisconsin Statute § 631.15(3m) has been applied in two appellate cases, with divergent results. See Appleton Papers, Inc. v. Home Indem. Co., 2000 WI App 104, 235 Wis. 2d 39, 612 N.W.2d 760; Wis. Patients Comp. Fund v. St. Mary's Hosp. of Milwaukee, 209 Wis. 2d 17, 561 N.W.2d 797 (Ct. App. 1997). Appleton Papers involved liability policies that contained mandatory arbitration clauses that had not been approved by the insurance commissioner, despite a requirement in Wis. Stat. § 631.85 that any such clauses must receive insurance commissioner approval. 2000 WI App 104, ¶¶ 6-8, 40-41. The court of appeals concluded that Wis. Stat. § 631.15(3m) required it to strike the nonconforming arbitration provisions and enforce the policies as though the arbitration provisions did not exist. Id. at ¶ 42. ¶ 19. St. Mary's concerned a hospital's failure to comply with the requirements necessary to become a self-insurer under Wis. Stat. § 655.23 (1983-84), a prerequisite to obtaining reimbursement for excess payments from the Wisconsin Patients Compensation Fund. St. Mary's, 209 Wis. 2d at 30. The hospital argued that it should be entitled to payment because Wis. Stat. § 631.15(2) (1983-84), the predecessor to Wis. Stat. § 631.15(3m), automatically brought its *175 improper self-insurance scheme into conformance with Wis. Stat. § 655.23 and qualified it for secondary coverage from the fund. The court of appeals refused to apply the statute in this way, concluding that "[r]ather obviously...[Wis. Stat. § 631.15(2)] is part of the statutory structure in place to protect insureds in their contractual relationships with providers and insurers, not to excuse a provider's or insurer's noncompliance." Id. at 35. ¶ 20. Because of their conflicting results, these cases do not provide much guidance here. In one, the court of appeals invoked Wis. Stat. § 631.15(3m) to reform nonconforming policies, and in the other, the court declined to do so. In this case, Brunson would like us to use St. Mary's as authority for disregarding Wis. Stat. § 631.15(3m), Wis. Stat. § 632.32(4m)(d), and the "conformance to law" provision in Progressive's policy, in order to take advantage of a judicially created remedy that has been replaced by a legislative one. This we cannot do. ¶ 21. The most that can be said about the applicability of St. Mary's here is that it is distinguishable and therefore limited to its own facts insofar as its interpretation of Wis. Stat. § 631.15(3m) is concerned. The case did not involve a policy term that conflicted with statute (as in this case), but, rather, the wholesale failure of a self-insuring hospital to take the steps necessary to qualify as a self-insurer. That the court of appeals would not allow the hospital to use the statute to excuse its misconduct to its own benefit was not unusual under the circumstances. Here, by contrast, the application of the statute operates to the insurance company's detriment in that the policy is read to supply the higher level of coverage although no premium was paid for it. True, Brunson does not recover the Meyer *176 remedy, but this occurs not because of any conduct on the part of Progressive, but because the legislature effectively supplanted it with Wis. Stat. § 632.32(4m)(d). ¶ 22. Appleton Papers is closer to this case, at least to the extent that the case applied Wis. Stat. § 631.15(3m) to reconcile a conflicting policy term to the requirements of statute. In any event, the statute, by its plain and unambiguous language, requires that Progressive's policy be enforced against the insurer "as if it conformed" to the new statute, that is to say, as if it supplied the higher level of UIM coverage. ¶ 23. This case is analogous, although not perfectly so, to Smith v. National Indemnity Co., 57 Wis. 2d 706, 710, 205 N.W.2d 365 (1973). In Smith, an insurer issued a policy providing $100,000 per person and $300,000 per accident to the named insured and $10,000 per person and $20,000 per accident to renters of the insured's vehicles. However, the omnibus coverage statute, Wis. Stat. § 204.30(3) (1969), required that automobile liability policies include a provision that the insured's coverage would apply to any other drivers. Id. Thus, although the policy provided only $10,000 coverage to renters, state statute required it to provide $100,000, the same level of coverage provided to the named insured. The court concluded: Contrary to its written terms, the policy by operation of law must be deemed to afford the renters protection to the extent of the higher limits. This view is not remaking the policy. We are aware the parties were not mistaken when they wrote the policy and it was written as they intended, but [the insurer] should know or be chargeable with knowledge of the effect of the omnibus coverage statute and that it cannot issue a policy in conflict therewith. *177 The terms required by the statute and which were left out of the policy must be read in although the increased liability is not reflected in the premium. Id. at 714 (citations omitted). ¶ 24. We reach a similar conclusion here. Brunson and Progressive contracted for $25,000 of UIM insurance, and Brunson paid a premium for that amount of coverage. However, Wis. Stat. § 632.32(4m)(d), in effect at the time Brunson purchased his policy, required UIM coverage of at least $50,000. By operation of law, the higher level of coverage is "read in," even though it was not reflected in the premium paid. At this level of coverage, the policy is not illusory, and the remedy in Meyer is not applicable. ¶ 25. At either $25,000 or $50,000, Brunson's UIM coverage limits were less than Ward's $100,000 liability policy limits. Progressive's policy defined an underinsured motor vehicle as a vehicle insured for less than the UIM coverage limits in Progressive's policy. Since Ward's liability limits exceeded Brunson's UIM coverage limits, Ward was not an underinsured motorist under the policy. Therefore, UIM benefits were not recoverable, and Progressive was properly dismissed from this action.
IV [5] ¶ 26. Although we agree with that portion of the circuit court's order which dismissed Progressive from this case, we do not agree with the award of costs and attorney's fees for the filing of a frivolous motion for *178 reconsideration under Wis. Stat. § 814.025(3)(b).[4] A finding of frivolousness is based upon an objective standard: whether the attorney knew or should have known that the position taken was frivolous, as determined by what a reasonable attorney would have or should have known under the same or similar circumstances. Sommer v. Carr, 99 Wis. 2d 789, 799, 299 N.W.2d 856 (1981). [6-8] ¶ 27. The inquiry into whether a claim is frivolous involves a mixed question of fact and law. Stern v. Thompson & Coates, Ltd., 185 Wis. 2d 220, 241, 517 N.W.2d 658 (1994). The determination of "what was known or should have been known" is a question of fact that is not disturbed "unless [it is] against the great weight and clear preponderance of the evidence," in other words, clearly erroneous. Id. However, "the ultimate conclusion about whether what was known or should have been known supports a finding of frivolousness" is a question of law, which we review independently of the circuit court. Id. [9] ¶ 28. From the outset we note that frivolous claims are an especially delicate area of the law. Radlein v. Indus. Fire & Cas. Ins. Co., 117 Wis. 2d 605, 613, 345 N.W.2d 874 (1984). A claim, action, or defense is frivolous if it was brought without any reasonable *179 basis in law or equity. Stern, 185 Wis. 2d at 235. We resolve any doubts against a finding of frivolousness. Id. [10] ¶ 29. Here, the circuit court found Brunson's motion for reconsideration to be frivolous. The motion centered on the issue of the reformation of the insurance policy. Yet, the issues of the applicability of the Meyer remedy after the enactment of Wis. Stat. § 632.32(4m)(d), and whether reformation of the policy to reflect the statutorily required level of UIM coverage would avoid the illusory contract problem, were sufficiently in doubt for this court to accept the court of appeals' certification in this case. Although in the end Brunson's arguments do not carry the day, they were not wholly lacking in reasonable basis. Accordingly, we conclude that the motion for reconsideration was not frivolous, and therefore reverse the circuit court's award of costs and attorney's fees against Brunson.
V ¶ 30. In sum, we conclude that the circuit court's reformation of the UIM policy to provide $50,000 in UIM coverage was proper pursuant to the "conformance to law" clause in the policy and Wis. Stat. §§ 632.32(4m)(d) and 631.15(3m). Accordingly, the policy is not illusory, and Brunson is not entitled to the Meyer remedy. Furthermore, because Ward's $100,000 liability limits exceeded Brunson's UIM coverage limits, Ward was not an underinsured motorist as defined in the policy, and Brunson is not entitled to UIM benefits. Therefore, we affirm the circuit court's dismissal of Progressive from this action. However, because we conclude that Brunson's motion for reconsideration was *180 not frivolous, we reverse the circuit court's award of costs and attorney's fees against Brunson. By the Court. The order of the Waukesha County Circuit Court is affirmed in part and reversed in part. ¶ 31. ANN WALSH BRADLEY, J. (dissenting).
"against the insurer" What happened to those words? The majority opinion in essence rewrites Wis. Stat. § 631.15(3m) and deletes those words. The end result: the insurance company wins and the policyholder, who was sold illegal illusory coverage, inevitably loses. ¶ 32. How can this happen? Not easily. To reach this conclusion the majority must ignore the plain meaning of the statute, delete the problematic phrase "against the insurer," discard the stated clear and specific legislative intent, and misconstrue case law interpreting the statute. Because I disagree with this approach and believe that the majority's conclusion effectively transforms the insurance code into a safety net for those insurers who issue illegal policies, I respectfully dissent. ¶ 33. The majority opinion rests to a large degree on its misreading and misapplication of Wis. Stat. § 631.15. It apparently reads that statute to require a policy to conform to the insurance code in any case where the policy violates a state statute or rule. However, the statute does not command conformance to the statute in every case where there is a conflict between an insurance policy and a statute. Section 631.15(3m), by its plain language, requires conformance of the policy and enforcement of the statute only "against the insurer":
*181 (3m) Enforcement of statute and rule requirements. A policy that violates a statute or rule is enforceable against the insurer as if it conformed to the statute or rule. Wis. Stat. § 631.15(3m) (emphasis added). ¶ 34. The statutory language signifies that conformance of policies to the statutes under § 631.15(3m) is not a two-way street. The benefits of § 631.15(3m) are to flow in one direction only in the direction of the insured. If an insurer issues a policy inconsistent with the Wisconsin Statutes, it cannot seek enforcement of the statute of which it was in violation for its own benefit. However, an insured may seek enforcement of a statute where the policy has been issued in violation of the statute to the insured's detriment. ¶ 35. While this is made clear from the express language of the statute, legislative statements of intent remove all doubt as to the intended effects of § 631.15. The legislature explained the effects of the statute as follows: First, insured persons should always be able to enforce rights given them under the contract as issued.... Second, contracts issued with terms deviating in favor of the insurer from those prescribed by a specific statute should be, in effect, reformed to accord with the statute and then be enforced against the insurer. This is standard common law doctrine. Comment to § 41, ch. 375, Laws of 1975, Wis. Stat. Ann. § 631.15 (West 1995). ¶ 36. Today's majority contravenes not only the language of the statute, but also the express intent of the legislature. The majority does not enforce the statute *182 "against the insurer" in this case, but against the insured. If the statutory language were followed and the intent of the legislature effectuated, Progressive would be obligated to satisfy Brunson's reasonable expectations and would be liable for the $25,000 of illusory coverage it issued under Meyer v. Classified Insurance Co., 192 Wis. 2d 463, 531 N.W.2d 416 (Ct. App. 1995). ¶ 37. There is no question that unless the policy is reformed to comply with § 632.32(4m)(d) the UIM endorsement issued by Progressive is entirely worthless. It has been established that it is impossible to recover in any circumstance under a UIM endorsement providing $25,000 of coverage in Wisconsin. Hoglund v. Secura Ins., 176 Wis. 2d 265, 270-71, 500 N.W.2d 354 (Ct. App. 1993). As the court of appeals correctly explained in Meyer and Hoglund such an endorsement is wholly illusory and contrary to public policy. ¶ 38. To rectify the wrong committed upon Wisconsin insureds by the issuance of such policies, the court of appeals crafted the remedy that is at the center of this case. In Meyer, the court explained that an insurer issuing such an illusory policy was required to compensate the insured for damages exceeding the at-fault driver's liability limits up to the $25,000 limit of UIM coverage purchased by the insured. Meyer, 192 Wis. 2d at 469. Thus, Brunson would be entitled to have his reasonable expectations fulfilled. Progressive would be liable for the full amount of the $25,000 of worthless UIM coverage it issued. Today's majority lets Progressive off this hook. ¶ 39. The majority curiously asserts that the application of the statute actually operates to the insurer's detriment in this case because operation of § 631.15(3m) results in higher coverage limits. In *183 another case, higher coverage limits might operate against the interest of insurer. However, this is not such a case. ¶ 40. In this case, higher coverage limits operate to the benefit of the insurer by relieving the insurer of its liability and allowing the insurer to hide behind the very statute which it violated. By conveniently ignoring that the benefits of statutory conformance are always to inure to the benefit of the insured, the majority has effectively read the words "against the insurer" out of § 631.15(3m) and has flouted the legislative intent. ¶ 41. Its misreading of § 631.15(3m) has also caused the majority to misconstrue the case law interpreting the provision. The majority opinion discusses court of appeals decisions in Appleton Papers, Inc. v. Home Indemnity Co., 2000 WI App 104, 235 Wis. 2d 39, 612 N.W.2d 760, and Wisconsin Patients Compensation Fund v. St. Mary's Hospital of Milwaukee, 209 Wis. 2d 17, 561 N.W.2d 797 (Ct. App. 1997), and concludes that they reach "conflicting results," because one conforms an errant policy to the statutes while the other does not. Because the majority fails to acknowledge that Wis. Stat. § 631.15(3m) requires enforcement only "against the insurer," it fails to see that the results of the two decisions, unlike the result of its own decision, are entirely consistent with the language of the statute and the legislative purpose. ¶ 42. In Appleton Papers the court of appeals required statutory conformance over the insurer's objections, where the insured sought enforcement of the statutory provisions to avoid an arbitration clause included in the policy by the insurer in contravention of the statutes. 2000 WI App 104, ¶ 42. In doing so, the court of appeals simply followed the legislative mandate *184 reforming terms of a policy deviating in favor of the insurer to comply with the statute and then enforcing it "against the insurer." In St. Mary's the court of appeals read § 631.15(3m) to prevent an insurer from invoking that provision to bring a policy into conformance with the statutes for its own benefit. 209 Wis. 2d at 35. In reaching its conclusion, the court of appeals correctly concluded that § 631.15 is intended to operate for the benefit of the insured and not to the benefit of the insurer. Id. ¶ 43. Finally, I note that the majority also rests its decision on the "conformance to law" clause contained in the policy. While we have enforced such provisions in the past, I have yet to find a case where we have enforced such a provision in a manner that allows an insurer to avoid the consequences of issuing an illusory and illegal policy. The facts before us do not suggest that we should begin to do so with this case. ¶ 44. Wisconsin courts had established that UIM coverage of $25,000 was illusory as far back as 1989.[5] On July 15, 1995, the legislature amended the statutes to require an insurer to issue minimum UIM coverage of $50,000. Yet, in November 1995, six years after the courts identified UIM coverage of $25,000 as illusory, and well after the statutory change was effective, Progressive sold Brunson an illegal six-month $25,000 UIM policy. ¶ 45. Brunson was severely and permanently injured in January 1996. It was not until June of 1996, after the accident and even after the policy had already expired, that Progressive eventually notified Brunson that it was of the opinion that his former policy actually *185 provided him with $50,000 in coverage. At no time while the policy was in effect did Progressive ever attempt to advise Brunson of a change in his $25,000 policy limits. Finally, two years later, in July 1998, while acknowledging that it had erroneously sold a $25,000 UIM policy to Brunson, Progressive requested that the trial court reform the policy to provide for $50,000 in coverage. ¶ 46. Public policy requires that we not allow insurers to accept the premium for a policy that is illusory as written and then fall back on the "conformance to law" clause of their policy when the deceptive nature of the policy they have drafted comes to light. Doing so transforms the insurance code into a safety net for insurers who issue illegal policies. The majority's decision provides no consequences for insurers that draft policies in advantageous contravention of the statutes. ¶ 47. Insurers now know that the conformance to law clause will remedy their statutory violation and save them from a judicially created penalty, such as the Meyer remedy, crafted to prevent such illegal policies. Thus, today's majority opinion not only fails to provide consequences for issuing a policy that violates the law, but instead confers a benefit for doing so. In arriving at this anomalous conclusion, the majority ignores the mandate of § 631.15(3m): it is only to be enforced "against the insurer." ¶ 48. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON joins this dissent. NOTES [1] All subsequent references to the Wisconsin Statutes are to the 1995-96 version unless otherwise noted. [2] UIM insurance coverage remains optional, however. [3] Wisconsin Statute § 806.07(1)(h) permits a motion for reconsideration upon a showing of "any other reason justifying relief from the operation of the judgment." [4] Wisconsin Statute § 814.025(3)(b) states that in order to find an action, special proceeding, counterclaim, defense or cross complaint to be frivolous, the court must find that "[t]he party or the party's attorney knew, or should have known, that the action, special proceeding, counterclaim, defense or cross complaint was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law." [5] See Wood v. American Family Mut. Ins. Co., 148 Wis. 2d 639, 653, 436 N.W.2d 594 (1989); Kaun v. Industrial Fire & Cas. Ins. Co., 148 Wis. 2d 662, 670, 436 N.W.2d 321 (1989). | 10-30-2013 | [
"245 Wis.2d 163 (2001) 2001 WI 89 629 N.W.2d 140 Scott BRUNSON, Plaintiff-Appellant, v. Robert L. WARD, Debra Czaplewski, State Farm Mutual and Continental Casualty Company, Defendants, PROGRESSIVE NORTHERN INSURANCE COMPANY, Defendant-Respondent. Nos. 98-3002, 98-3300. Supreme Court of Wisconsin. Oral argument January 4, 2001. Decided July 6, 2001. *167 For the plaintiff-appellant there were briefs (in the court of appeals) by Lynne A. Layber, Milwaukee, and oral argument by Lynn A. Layber. For the defendant-respondent there was a brief by Rick E. Hills, Michelle M. Stoeck and Hills & Hicks, S.C., Brookfield, and oral argument by Rick E. Hills. ¶ 1. DIANE S. SYKES, J. In Wisconsin, underinsured motorist policies written in the amount of $25,000 have been held to be illusory contracts, and case law has required insurers to pay damages, up to the $25,000 limit of any such policy, as a remedy for the issuance of an illusory contract.",
"Meyer v. Classified Ins. Co., 192 Wis. 2d 463, 468, 531 N.W.2d 416 (Ct. App. 1995); see also Kaun v. Indust. Fire & Cas. Ins. Co., 148 Wis. 2d 662, 670, 436 N.W.2d 321 (1989); Hoglund v. Secura Ins., 176 Wis. 2d 265, 270-71, 500 N.W.2d 354 (Ct. App. 1993). The question in this case is the continued viability of this judicially-created remedy in light of a subsequent legislative one a statute requiring underinsured motorist (UIM) policies to provide at least $50,000 in coverage where the policy in question contains a clause conforming the policy to the requirements of state statute. ¶ 2. More specifically, the court of appeals in this case certified the following question to this court: \"Does *168 the remedy in Meyer v. Classified Insurance Co., 192 Wis. 2d 463, 531 N.W.2d 416 (Ct. App. 1995), prohibiting illusory insurance coverage, still hold where an insurer fails to update its underinsured motorist (UIM) insurance coverage pursuant to Wis. Stat. § 632.32(4m) (1995-96),[1] but has included a provision stating that the policy shall conform to the Wisconsin Statutes?\" We answer the certified question no, and therefore affirm the circuit court's dismissal of the UIM insurer from this case.",
"However, we reverse the circuit court's award of costs and attorney's fees against the plaintiff on his motion for reconsideration, which the circuit court considered to be frivolous. I ¶ 3. Plaintiff Scott Brunson was seriously injured in an automobile accident in January 1996. The other driver, defendant Robert Ward, had $100,000 in automobile liability coverage, and his insurer offered full policy limits to Brunson. ¶ 4. Brunson had UIM insurance through his automobile liability insurer, Progressive Northern Insurance Company (Progressive), which he purchased on November 19, 1995, for a premium of $23. The declarations page of the policy stated that it provided UIM coverage in the amount of $25,000 per person and $50,000 per accident. The policy provided that Progressive would pay \"damages...which an insured person is legally entitled to recover from the owner or operator of an underinsured motor vehicle up to the limit of liability as defined in this Endorsement ...\" and defined an \"underinsured motor vehicle\" as *169 a motor vehicle that is an insured motor vehicle but for which the sum of the limits under all liability bonds, insurance, policies and cash deposits applicable at the time of the accident is less than the applicable limits of liability for underinsured motorists coverage under this endorsement.",
"¶ 5. Prior to Brunson's purchase of UIM coverage from Progressive, several appellate decisions had concluded that $25,000 UIM policies were illusory because of their interaction with Wis. Stat. § 344.33(2), which requires all Wisconsin drivers to carry at least $25,000 of liability coverage. See Kaun, 148 Wis. 2d at 670; Meyer, 192 Wis. 2d at 468; Hoglund, 176 Wis. 2d at 270-71. Because UIM coverage is payable only when the tortfeasor's liability limits are less than the insured's UIM limits, the statute requiring Wisconsin drivers to carry a minimum of $25,000 of liability coverage operated to render a $25,000 UIM policy illusory, since under these circumstances the insurer would never have to pay UIM benefits.",
"¶ 6. In Meyer, the court of appeals established a remedy for an insurer's issuance of this type of illusory UIM policy, requiring the insurer to compensate the insured for damages not covered by the third-party liability policy up to the $25,000 limit of the UIM policy. Meyer, 192 Wis. 2d at 468. Subsequent to Meyer, but before Brunson purchased his UIM coverage from Progressive, the Wisconsin legislature enacted 1995 Wis. Act 21.",
"The act eliminated the illusory contract problem identified in Kaun and Hoglund, and remedied in Meyer, by creating Wis. Stat. § 632.32(4m)(d), requiring all UIM policies to provide a minimum of $50,000 coverage per person and $100,000 per accident. [2] The statute provides: *170 If an insured [on a policy that goes into effect after October 1, 1995] accepts underinsured motorist coverage, the insurer shall include the coverage under the policy just delivered to the insured in limits of at least $50,000 per person and $100,000 per accident. For any insured who accepts the coverage after notification [on a policy in effect on October 1, 1995], the insurer shall include the coverage under the renewed policy in limits of at least $50,000 per person and $100,000 per accident. Wis. Stat.",
"§ 632.32(4m)(d) (emphasis added). ¶ 7. Because it was issued after the effective date of this change in the law, Brunson's policy was required to provide at least $50,000 of UIM coverage. On June 25, 1996, Progressive notified Brunson by letter that although the declarations page of the policy specified $25,000 of UIM coverage, the policy actually provided $50,000 of UIM coverage because it was required to do so by state law. The letter also explained that Ward was not \"underinsured\" as defined in the policy, because his $100,000 liability limits exceeded Brunson's $50,000 UIM limits.",
"Accordingly, Progressive declined to pay UIM benefits. ¶ 8. On June 6, 1997, Brunson filed a negligence action against Ward. Brunson amended his complaint three times, eventually adding a UIM claim against Progressive. Progressive sought a declaratory judgment, asking the circuit court to: (1) reform the policy to comply with the requirement in Wis. Stat. § 632.32(4m)(d) of $50,000 in UIM coverage, and (2) dismiss it from the suit because Ward was not \"underinsured\" according to the policy definition. Brunson opposed the motion, arguing that the policy was illusory pursuant to Hoglund, and therefore he was entitled to the Meyer remedy of $25,000. *171 ¶ 9. The Waukesha County Circuit Court, the Honorable James R. Kieffer, rejected Brunson's arguments and granted Progressive's motion. The circuit court reformed the UIM policy to provide the statutory minimum of $50,000 of UIM coverage, and concluded that it was not illusory at this level of coverage.",
"The circuit court also held that Ward was not an underinsured motorist as defined by the policy and dismissed Progressive from the suit. ¶ 10. Subsequently, Progressive notified the Office of the Commissioner of Insurance (OCI) by letter that the declarations page issued to Brunson mistakenly stated that he had $25,000 of UIM coverage instead of the statutorily required $50,000. Based upon this letter, Brunson moved the court pursuant to Wis. Stat. § 806.07(1)(h)[3] to reconsider its reformation of the policy, arguing that the policy could not be reformed on the basis of Progressive's unilateral mistake and that this issue had not been briefed before the circuit court's ruling.",
"Progressive opposed the motion, contending it was frivolous and requesting costs and reasonable attorney's fees. See Wis. Stat. § 814.025(1). The circuit court denied Brunson's motion for reconsideration, agreed with Progressive that it was frivolous, and awarded Progressive $1,395.75 in costs and attorney's fees. ¶ 11. Brunson appealed from both the declaratory judgment and the denial of his motion for reconsideration and the award of costs and attorney's fees against him. The appeals were consolidated. The court of appeals certified the case to this court to consider *172 the status of Meyer in light of the enactment of Wis. Stat. § 632.32(4m)(d).",
"II [1-3] ¶ 12. This case involves the interpretation of an insurance contract, which is a question of law that the court reviews de novo. Katze v. Randolph & Scott Mut. Fire Ins. Co., 116 Wis. 2d 206, 212, 341 N.W.2d 689 (1984). We construe an insurance policy to give effect to the intent of the parties, as expressed in the language of the policy. Stanhope v. Brown County, 90 Wis. 2d 823, 848, 280 N.W.2d 711 (1979); Garriguenc v. Love, 67 Wis. 2d 130, 134, 226 N.W.2d 414 (1975). If the policy language is unambiguous, we apply it as written. However, if the words of the policy are reasonably or fairly susceptible to more than one construction, it is ambiguous and we construe such ambiguities against the insurer. Id. at 135.",
"III ¶ 13. To resolve the certified question of the applicability of the Meyer remedy, we must first decide whether Progressive's policy should have been reformed to reflect the statutorily required $50,000 of UIM coverage instead of $25,000. If reformation was proper, the policy is not illusory and the Meyer remedy does not come into play. ¶ 14. Progressive's policy provides that any of its terms that conflict with state statute are conformed to the requirements of state statute.",
"The insurance code itself also requires that any policy that violates state statute or rule be conformed to the requirements of the statutes and rules. See Wis. Stat. § 631.15(3m). *173 ¶ 15. Progressive's policy accounts for the possibility that certain of its provisions might conflict with state statute, and the insurer agrees in any such instance to be bound by the requirements of statute (it could hardly do otherwise), even though it has not charged or received a premium for the statutorily required benefits. Specifically, the policy provides that \"[t]erms of this policy which are in conflict with the statutes of the state in which this policy is issued are hereby amended to conform to the statutes.\" This language is clear and unambiguous. By operation of this \"conformance to law\" clause, the endorsement specifying $25,000 of UIM coverage was automatically amended to provide the higher level of UIM coverage $50,000 required by Wis. Stat. § 632.32(4m)(d). ¶ 16. Upgrading the policy to the higher level of coverage was appropriate for reasons separate and apart from the \"conformance to law\" clause in the policy. The insurance code provides that insurance policy provisions inconsistent with insurance statutes or rules are enforceable to the extent of the requirements contained in the statutes and rules.",
"Specifically, Wis. Stat. § 631.15(3m) provides that \"[a] policy that violates a statute or rule is enforceable against the insurer as if it conformed to the statute or rule.\" Here, the policy violated the minimum UIM coverage requirements contained in Wis. Stat. § 632.32(4m)(d), and, by virtue of Wis. Stat. § 631.15(3m), is enforceable against Progressive as if it conformed to the statutorily required $50,000 in UIM coverage. [4] ¶ 17. The circuit court's \"reformation\" of the policy, therefore, was not so much a reformation at common law as a recognition that, pursuant to Wis. Stat. §§ 631.15(3m) and 632.32(4m)(d), as well as the *174 agreement of the parties embodied in the \"conformance to law\" provision, the terms of the policy were automatically amended to provide the $50,000 in UIM coverage required by statute, even though the insurer had not received a premium for that amount of coverage.",
"Thus, in light of the legislature's enactment of the $50,000 UIM minimum, apparently as a response to the $25,000 UIM illusory contract problem, the judicially created remedy in Meyer is obviated and has no application here. ¶ 18. Wisconsin Statute § 631.15(3m) has been applied in two appellate cases, with divergent results. See Appleton Papers, Inc. v. Home Indem. Co., 2000 WI App 104, 235 Wis. 2d 39, 612 N.W.2d 760; Wis. Patients Comp. Fund v. St. Mary's Hosp. of Milwaukee, 209 Wis. 2d 17, 561 N.W.2d 797 (Ct. App. 1997). Appleton Papers involved liability policies that contained mandatory arbitration clauses that had not been approved by the insurance commissioner, despite a requirement in Wis. Stat. § 631.85 that any such clauses must receive insurance commissioner approval. 2000 WI App 104, ¶¶ 6-8, 40-41. The court of appeals concluded that Wis. Stat.",
"§ 631.15(3m) required it to strike the nonconforming arbitration provisions and enforce the policies as though the arbitration provisions did not exist. Id. at ¶ 42. ¶ 19. St. Mary's concerned a hospital's failure to comply with the requirements necessary to become a self-insurer under Wis. Stat. § 655.23 (1983-84), a prerequisite to obtaining reimbursement for excess payments from the Wisconsin Patients Compensation Fund. St. Mary's, 209 Wis. 2d at 30. The hospital argued that it should be entitled to payment because Wis. Stat. § 631.15(2) (1983-84), the predecessor to Wis. Stat. § 631.15(3m), automatically brought its *175 improper self-insurance scheme into conformance with Wis. Stat. § 655.23 and qualified it for secondary coverage from the fund.",
"The court of appeals refused to apply the statute in this way, concluding that \"[r]ather obviously...[Wis. Stat. § 631.15(2)] is part of the statutory structure in place to protect insureds in their contractual relationships with providers and insurers, not to excuse a provider's or insurer's noncompliance.\" Id. at 35. ¶ 20. Because of their conflicting results, these cases do not provide much guidance here. In one, the court of appeals invoked Wis. Stat. § 631.15(3m) to reform nonconforming policies, and in the other, the court declined to do so. In this case, Brunson would like us to use St. Mary's as authority for disregarding Wis. Stat.",
"§ 631.15(3m), Wis. Stat. § 632.32(4m)(d), and the \"conformance to law\" provision in Progressive's policy, in order to take advantage of a judicially created remedy that has been replaced by a legislative one. This we cannot do. ¶ 21. The most that can be said about the applicability of St. Mary's here is that it is distinguishable and therefore limited to its own facts insofar as its interpretation of Wis. Stat. § 631.15(3m) is concerned. The case did not involve a policy term that conflicted with statute (as in this case), but, rather, the wholesale failure of a self-insuring hospital to take the steps necessary to qualify as a self-insurer. That the court of appeals would not allow the hospital to use the statute to excuse its misconduct to its own benefit was not unusual under the circumstances. Here, by contrast, the application of the statute operates to the insurance company's detriment in that the policy is read to supply the higher level of coverage although no premium was paid for it.",
"True, Brunson does not recover the Meyer *176 remedy, but this occurs not because of any conduct on the part of Progressive, but because the legislature effectively supplanted it with Wis. Stat. § 632.32(4m)(d). ¶ 22. Appleton Papers is closer to this case, at least to the extent that the case applied Wis. Stat. § 631.15(3m) to reconcile a conflicting policy term to the requirements of statute. In any event, the statute, by its plain and unambiguous language, requires that Progressive's policy be enforced against the insurer \"as if it conformed\" to the new statute, that is to say, as if it supplied the higher level of UIM coverage. ¶ 23. This case is analogous, although not perfectly so, to Smith v. National Indemnity Co., 57 Wis. 2d 706, 710, 205 N.W.2d 365 (1973). In Smith, an insurer issued a policy providing $100,000 per person and $300,000 per accident to the named insured and $10,000 per person and $20,000 per accident to renters of the insured's vehicles.",
"However, the omnibus coverage statute, Wis. Stat. § 204.30(3) (1969), required that automobile liability policies include a provision that the insured's coverage would apply to any other drivers. Id. Thus, although the policy provided only $10,000 coverage to renters, state statute required it to provide $100,000, the same level of coverage provided to the named insured. The court concluded: Contrary to its written terms, the policy by operation of law must be deemed to afford the renters protection to the extent of the higher limits. This view is not remaking the policy. We are aware the parties were not mistaken when they wrote the policy and it was written as they intended, but [the insurer] should know or be chargeable with knowledge of the effect of the omnibus coverage statute and that it cannot issue a policy in conflict therewith. *177 The terms required by the statute and which were left out of the policy must be read in although the increased liability is not reflected in the premium. Id. at 714 (citations omitted). ¶ 24. We reach a similar conclusion here. Brunson and Progressive contracted for $25,000 of UIM insurance, and Brunson paid a premium for that amount of coverage.",
"However, Wis. Stat. § 632.32(4m)(d), in effect at the time Brunson purchased his policy, required UIM coverage of at least $50,000. By operation of law, the higher level of coverage is \"read in,\" even though it was not reflected in the premium paid. At this level of coverage, the policy is not illusory, and the remedy in Meyer is not applicable. ¶ 25. At either $25,000 or $50,000, Brunson's UIM coverage limits were less than Ward's $100,000 liability policy limits. Progressive's policy defined an underinsured motor vehicle as a vehicle insured for less than the UIM coverage limits in Progressive's policy. Since Ward's liability limits exceeded Brunson's UIM coverage limits, Ward was not an underinsured motorist under the policy. Therefore, UIM benefits were not recoverable, and Progressive was properly dismissed from this action.",
"IV [5] ¶ 26. Although we agree with that portion of the circuit court's order which dismissed Progressive from this case, we do not agree with the award of costs and attorney's fees for the filing of a frivolous motion for *178 reconsideration under Wis. Stat. § 814.025(3)(b). [4] A finding of frivolousness is based upon an objective standard: whether the attorney knew or should have known that the position taken was frivolous, as determined by what a reasonable attorney would have or should have known under the same or similar circumstances. Sommer v. Carr, 99 Wis. 2d 789, 799, 299 N.W.2d 856 (1981). [6-8] ¶ 27. The inquiry into whether a claim is frivolous involves a mixed question of fact and law. Stern v. Thompson & Coates, Ltd., 185 Wis. 2d 220, 241, 517 N.W.2d 658 (1994). The determination of \"what was known or should have been known\" is a question of fact that is not disturbed \"unless [it is] against the great weight and clear preponderance of the evidence,\" in other words, clearly erroneous.",
"Id. However, \"the ultimate conclusion about whether what was known or should have been known supports a finding of frivolousness\" is a question of law, which we review independently of the circuit court. Id. [9] ¶ 28. From the outset we note that frivolous claims are an especially delicate area of the law. Radlein v. Indus. Fire & Cas. Ins. Co., 117 Wis. 2d 605, 613, 345 N.W.2d 874 (1984). A claim, action, or defense is frivolous if it was brought without any reasonable *179 basis in law or equity. Stern, 185 Wis. 2d at 235. We resolve any doubts against a finding of frivolousness.",
"Id. [10] ¶ 29. Here, the circuit court found Brunson's motion for reconsideration to be frivolous. The motion centered on the issue of the reformation of the insurance policy. Yet, the issues of the applicability of the Meyer remedy after the enactment of Wis. Stat. § 632.32(4m)(d), and whether reformation of the policy to reflect the statutorily required level of UIM coverage would avoid the illusory contract problem, were sufficiently in doubt for this court to accept the court of appeals' certification in this case. Although in the end Brunson's arguments do not carry the day, they were not wholly lacking in reasonable basis.",
"Accordingly, we conclude that the motion for reconsideration was not frivolous, and therefore reverse the circuit court's award of costs and attorney's fees against Brunson. V ¶ 30. In sum, we conclude that the circuit court's reformation of the UIM policy to provide $50,000 in UIM coverage was proper pursuant to the \"conformance to law\" clause in the policy and Wis. Stat. §§ 632.32(4m)(d) and 631.15(3m). Accordingly, the policy is not illusory, and Brunson is not entitled to the Meyer remedy. Furthermore, because Ward's $100,000 liability limits exceeded Brunson's UIM coverage limits, Ward was not an underinsured motorist as defined in the policy, and Brunson is not entitled to UIM benefits. Therefore, we affirm the circuit court's dismissal of Progressive from this action.",
"However, because we conclude that Brunson's motion for reconsideration was *180 not frivolous, we reverse the circuit court's award of costs and attorney's fees against Brunson. By the Court. The order of the Waukesha County Circuit Court is affirmed in part and reversed in part. ¶ 31. ANN WALSH BRADLEY, J. (dissenting). \"against the insurer\" What happened to those words? The majority opinion in essence rewrites Wis. Stat. § 631.15(3m) and deletes those words. The end result: the insurance company wins and the policyholder, who was sold illegal illusory coverage, inevitably loses. ¶ 32. How can this happen? Not easily. To reach this conclusion the majority must ignore the plain meaning of the statute, delete the problematic phrase \"against the insurer,\" discard the stated clear and specific legislative intent, and misconstrue case law interpreting the statute.",
"Because I disagree with this approach and believe that the majority's conclusion effectively transforms the insurance code into a safety net for those insurers who issue illegal policies, I respectfully dissent. ¶ 33. The majority opinion rests to a large degree on its misreading and misapplication of Wis. Stat. § 631.15. It apparently reads that statute to require a policy to conform to the insurance code in any case where the policy violates a state statute or rule. However, the statute does not command conformance to the statute in every case where there is a conflict between an insurance policy and a statute. Section 631.15(3m), by its plain language, requires conformance of the policy and enforcement of the statute only \"against the insurer\": *181 (3m) Enforcement of statute and rule requirements. A policy that violates a statute or rule is enforceable against the insurer as if it conformed to the statute or rule. Wis. Stat. § 631.15(3m) (emphasis added).",
"¶ 34. The statutory language signifies that conformance of policies to the statutes under § 631.15(3m) is not a two-way street. The benefits of § 631.15(3m) are to flow in one direction only in the direction of the insured. If an insurer issues a policy inconsistent with the Wisconsin Statutes, it cannot seek enforcement of the statute of which it was in violation for its own benefit. However, an insured may seek enforcement of a statute where the policy has been issued in violation of the statute to the insured's detriment. ¶ 35.",
"While this is made clear from the express language of the statute, legislative statements of intent remove all doubt as to the intended effects of § 631.15. The legislature explained the effects of the statute as follows: First, insured persons should always be able to enforce rights given them under the contract as issued.... Second, contracts issued with terms deviating in favor of the insurer from those prescribed by a specific statute should be, in effect, reformed to accord with the statute and then be enforced against the insurer. This is standard common law doctrine.",
"Comment to § 41, ch. 375, Laws of 1975, Wis. Stat. Ann. § 631.15 (West 1995). ¶ 36. Today's majority contravenes not only the language of the statute, but also the express intent of the legislature. The majority does not enforce the statute *182 \"against the insurer\" in this case, but against the insured. If the statutory language were followed and the intent of the legislature effectuated, Progressive would be obligated to satisfy Brunson's reasonable expectations and would be liable for the $25,000 of illusory coverage it issued under Meyer v. Classified Insurance Co., 192 Wis. 2d 463, 531 N.W.2d 416 (Ct. App. 1995). ¶ 37. There is no question that unless the policy is reformed to comply with § 632.32(4m)(d) the UIM endorsement issued by Progressive is entirely worthless. It has been established that it is impossible to recover in any circumstance under a UIM endorsement providing $25,000 of coverage in Wisconsin.",
"Hoglund v. Secura Ins., 176 Wis. 2d 265, 270-71, 500 N.W.2d 354 (Ct. App. 1993). As the court of appeals correctly explained in Meyer and Hoglund such an endorsement is wholly illusory and contrary to public policy. ¶ 38. To rectify the wrong committed upon Wisconsin insureds by the issuance of such policies, the court of appeals crafted the remedy that is at the center of this case. In Meyer, the court explained that an insurer issuing such an illusory policy was required to compensate the insured for damages exceeding the at-fault driver's liability limits up to the $25,000 limit of UIM coverage purchased by the insured. Meyer, 192 Wis. 2d at 469. Thus, Brunson would be entitled to have his reasonable expectations fulfilled. Progressive would be liable for the full amount of the $25,000 of worthless UIM coverage it issued. Today's majority lets Progressive off this hook.",
"¶ 39. The majority curiously asserts that the application of the statute actually operates to the insurer's detriment in this case because operation of § 631.15(3m) results in higher coverage limits. In *183 another case, higher coverage limits might operate against the interest of insurer. However, this is not such a case. ¶ 40. In this case, higher coverage limits operate to the benefit of the insurer by relieving the insurer of its liability and allowing the insurer to hide behind the very statute which it violated. By conveniently ignoring that the benefits of statutory conformance are always to inure to the benefit of the insured, the majority has effectively read the words \"against the insurer\" out of § 631.15(3m) and has flouted the legislative intent.",
"¶ 41. Its misreading of § 631.15(3m) has also caused the majority to misconstrue the case law interpreting the provision. The majority opinion discusses court of appeals decisions in Appleton Papers, Inc. v. Home Indemnity Co., 2000 WI App 104, 235 Wis. 2d 39, 612 N.W.2d 760, and Wisconsin Patients Compensation Fund v. St. Mary's Hospital of Milwaukee, 209 Wis. 2d 17, 561 N.W.2d 797 (Ct. App. 1997), and concludes that they reach \"conflicting results,\" because one conforms an errant policy to the statutes while the other does not. Because the majority fails to acknowledge that Wis. Stat.",
"§ 631.15(3m) requires enforcement only \"against the insurer,\" it fails to see that the results of the two decisions, unlike the result of its own decision, are entirely consistent with the language of the statute and the legislative purpose. ¶ 42. In Appleton Papers the court of appeals required statutory conformance over the insurer's objections, where the insured sought enforcement of the statutory provisions to avoid an arbitration clause included in the policy by the insurer in contravention of the statutes. 2000 WI App 104, ¶ 42.",
"In doing so, the court of appeals simply followed the legislative mandate *184 reforming terms of a policy deviating in favor of the insurer to comply with the statute and then enforcing it \"against the insurer.\" In St. Mary's the court of appeals read § 631.15(3m) to prevent an insurer from invoking that provision to bring a policy into conformance with the statutes for its own benefit. 209 Wis. 2d at 35. In reaching its conclusion, the court of appeals correctly concluded that § 631.15 is intended to operate for the benefit of the insured and not to the benefit of the insurer. Id. ¶ 43. Finally, I note that the majority also rests its decision on the \"conformance to law\" clause contained in the policy. While we have enforced such provisions in the past, I have yet to find a case where we have enforced such a provision in a manner that allows an insurer to avoid the consequences of issuing an illusory and illegal policy.",
"The facts before us do not suggest that we should begin to do so with this case. ¶ 44. Wisconsin courts had established that UIM coverage of $25,000 was illusory as far back as 1989. [5] On July 15, 1995, the legislature amended the statutes to require an insurer to issue minimum UIM coverage of $50,000. Yet, in November 1995, six years after the courts identified UIM coverage of $25,000 as illusory, and well after the statutory change was effective, Progressive sold Brunson an illegal six-month $25,000 UIM policy.",
"¶ 45. Brunson was severely and permanently injured in January 1996. It was not until June of 1996, after the accident and even after the policy had already expired, that Progressive eventually notified Brunson that it was of the opinion that his former policy actually *185 provided him with $50,000 in coverage. At no time while the policy was in effect did Progressive ever attempt to advise Brunson of a change in his $25,000 policy limits. Finally, two years later, in July 1998, while acknowledging that it had erroneously sold a $25,000 UIM policy to Brunson, Progressive requested that the trial court reform the policy to provide for $50,000 in coverage.",
"¶ 46. Public policy requires that we not allow insurers to accept the premium for a policy that is illusory as written and then fall back on the \"conformance to law\" clause of their policy when the deceptive nature of the policy they have drafted comes to light. Doing so transforms the insurance code into a safety net for insurers who issue illegal policies. The majority's decision provides no consequences for insurers that draft policies in advantageous contravention of the statutes. ¶ 47. Insurers now know that the conformance to law clause will remedy their statutory violation and save them from a judicially created penalty, such as the Meyer remedy, crafted to prevent such illegal policies. Thus, today's majority opinion not only fails to provide consequences for issuing a policy that violates the law, but instead confers a benefit for doing so.",
"In arriving at this anomalous conclusion, the majority ignores the mandate of § 631.15(3m): it is only to be enforced \"against the insurer.\" ¶ 48. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON joins this dissent. NOTES [1] All subsequent references to the Wisconsin Statutes are to the 1995-96 version unless otherwise noted. [2] UIM insurance coverage remains optional, however. [3] Wisconsin Statute § 806.07(1)(h) permits a motion for reconsideration upon a showing of \"any other reason justifying relief from the operation of the judgment.\" [4] Wisconsin Statute § 814.025(3)(b) states that in order to find an action, special proceeding, counterclaim, defense or cross complaint to be frivolous, the court must find that \"[t]he party or the party's attorney knew, or should have known, that the action, special proceeding, counterclaim, defense or cross complaint was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law.\"",
"[5] See Wood v. American Family Mut. Ins. Co., 148 Wis. 2d 639, 653, 436 N.W.2d 594 (1989); Kaun v. Industrial Fire & Cas. Ins. Co., 148 Wis. 2d 662, 670, 436 N.W.2d 321 (1989)."
]
| https://www.courtlistener.com/api/rest/v3/opinions/1863829/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 23 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
JOSE ISABEL CASTILLO-RODAS, No. 14-73072
Petitioner, Agency No. A098-762-773
v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted March 13, 2018**
Before: LEAVY, M. SMITH, and CHRISTEN, Circuit Judges.
Jose Isabel Castillo-Rodas, a native and citizen of El Salvador, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s decision denying his application for withholding of
removal and protection under the Convention Against Torture (“CAT”). We have
* 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). jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the
agency’s factual findings. Fakhry v. Mukasey, 524 F.3d 1057, 1062 (9th Cir.
2008). We deny the petition for review.
Substantial evidence supports the agency’s conclusion that Castillo-Rodas
failed to establish it is more likely than not he will be persecuted if returned to El
Salvador. See Nagoulko v. INS, 333 F.3d 1012, 1018 (9th Cir. 2003) (possibility of
future persecution in Ukraine too speculative). Contrary to Castillo-Rodas’s
contentions, the BIA did not err in declining to reach his arguments as to nexus or
relocation. See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004). Thus,
Castillo-Rodas’s withholding of removal claim fails.
Substantial evidence also supports the agency’s denial of CAT relief because
Castillo-Rodas failed to establish it is more likely than not he will be tortured with
the consent or acquiescence of the government of El Salvador. See Aden v.
Holder, 589 F.3d 1040, 1047 (9th Cir. 2009); Garcia-Milian v. Holder, 755 F.3d 1026, 1034-35 (9th Cir. 2014) (evidence did not compel conclusion that petitioner
established the state action necessary for CAT relief).
PETITION FOR REVIEW DENIED.
2 14-73072 | 03-23-2018 | [
"NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 23 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JOSE ISABEL CASTILLO-RODAS, No. 14-73072 Petitioner, Agency No. A098-762-773 v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted March 13, 2018** Before: LEAVY, M. SMITH, and CHRISTEN, Circuit Judges. Jose Isabel Castillo-Rodas, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his application for withholding of removal and protection under the Convention Against Torture (“CAT”). We have * 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). jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the agency’s factual findings. Fakhry v. Mukasey, 524 F.3d 1057, 1062 (9th Cir. 2008). We deny the petition for review. Substantial evidence supports the agency’s conclusion that Castillo-Rodas failed to establish it is more likely than not he will be persecuted if returned to El Salvador. See Nagoulko v. INS, 333 F.3d 1012, 1018 (9th Cir. 2003) (possibility of future persecution in Ukraine too speculative). Contrary to Castillo-Rodas’s contentions, the BIA did not err in declining to reach his arguments as to nexus or relocation. See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004). Thus, Castillo-Rodas’s withholding of removal claim fails. Substantial evidence also supports the agency’s denial of CAT relief because Castillo-Rodas failed to establish it is more likely than not he will be tortured with the consent or acquiescence of the government of El Salvador. See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir.",
"2009); Garcia-Milian v. Holder, 755 F.3d 1026, 1034-35 (9th Cir. 2014) (evidence did not compel conclusion that petitioner established the state action necessary for CAT relief). PETITION FOR REVIEW DENIED. 2 14-73072"
]
| https://www.courtlistener.com/api/rest/v3/opinions/4257936/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
In re Palmer, Jeanette, et al; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Bernard, 34th Judicial District Court Div. D, Nos. 63-145, 65-773; to the Court of Appeal, Fourth Circuit, No(s). 2005-CM-1171, 2005-CA-1284. Denied. | 07-30-2022 | [
"In re Palmer, Jeanette, et al; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Bernard, 34th Judicial District Court Div. D, Nos. 63-145, 65-773; to the Court of Appeal, Fourth Circuit, No(s). 2005-CM-1171, 2005-CA-1284. Denied."
]
| https://www.courtlistener.com/api/rest/v3/opinions/7782485/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
546 F.2d 1264 UNITED STATES of America, Plaintiff-Appellee,v.David Terance TULEY and Frank Christian Oller, Defendants-Appellants. No. 75-3693. United States Court of Appeals,Fifth Circuit. Feb. 14, 1977.Rehearing and Rehearing En Banc Denied April 25, 1977.
Ferriel C. Hamby, Jr. (Court-appointed) Harlingen, Tex., for Tuley. Roland E. Dahlin, II, Federal Public Defender, Mike DeGeurin, Juan E. Gavito, Asst. Fed. Public Defenders, William W. Burge, First Federal Public Defender, Houston, Tex., for Oller. Edward B. McDonough, Jr., U. S. Atty., James R. Gough, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee. Appeals from the United States District Court for the Southern District of Texas. Before GEWIN, GODBOLD and SIMPSON, Circuit Judges. SIMPSON, Circuit Judge:
1 David Terance Tuley and Frank Christian Oller appeal from convictions for violations of the federal laws relating to marijuana.1 The basis of their appeal is that the district judge improperly denied their motions to suppress evidence.
2 On January 13, 1975, Special Agents Gabriel Bustamante and Carlos Torres of the Cameron County Organized Crime Task Force, Texas, received information from an unnamed, but "previously reliable", confidential informant that two men from Oklahoma, staying in rooms 113 and 133 of the Ramada Inn Motel, Brownsville, Texas, were planning to transport a large quantity of marijuana from the Rio Grande Valley area to the state of Oklahoma. The informant also disclosed that the suspects would be using two vehicles, a pickup truck with a camper, and a motor home, to transport the contraband. Upon receipt of this information, the Texas officers began a surveillance of the suspects. Observation quickly corroborated the informant's tip as to the description of the vehicles and the presence of the two suspects in the indicated rooms. The vehicles bore Oklahoma license plates, which verified the information that the men were from Oklahoma and supported to some extent the statement that they would transport marijuana to that state.
3 On January 15, 1975, Gary Morrison, an agent of the federal Drug Enforcement Administration (DEA), joined the surveillance.2 At the suppression hearing, Morrison testified to the following:
4 The surveillance had been started, initiated, upon information received by Cameron County Task Force Agent Carlos Torres . . .
5 Agent Torres advised the other agents involved in the case that he had received information from a credible source that two men were in Brownsville, Texas, staying at the Ramada Inn in Rooms 113 and 133. These men were driving a pickup truck with a camper, and a motor home, and that they were here in the Valley to transport a quantity of marijuana north out of the Valley.
6 Agent Lofstrom (another D.E.A. agent) advised me that they had located two vehicles meeting the description, both with Oklahoma plates, at the Ramada Inn, and that these vehicles had also driven to South Padre Island to the Queen Isabella Inn where the drivers of the vehicles had been observed entering Apartment 1 and 2 of the Queen Isabella Inn.
7 Agent Lofstrom advised me that he had received information from another D.E.A. office that the renter of Apartment 1 and 2 of the Queen Isabella Inn, Robert Muller,3 was involved in transporting large quantities of marijuana from the border area to the Oklahoma City Area.
8 Morrison and the other agents on January 15 followed a Chevrolet pickup truck with a camper, and a Champion motor home from the Queen Isabella Inn area, Port Isabel, Texas, to the Ramada Inn in Brownsville, Texas. At the motel, four people left the vehicles, went into room 133, and took articles from that room and placed them in the rear of the pickup truck. The two vehicles shortly returned to Port Isabel, and the surveillance was discontinued for that day.
9 About noon the next day, January 16, Morrison and other agents resumed the surveillance of the pickup truck as it moved west, away from the Port Isabel area and in the direction of McAllen, Texas. As the vehicle proceeded along Highway 83, near Mercedes, Texas, Morrison and two other agents stopped the pickup truck, which was occupied by appellant Tuley and his Doberman Pinscher. A search of the vehicle produced a .38 caliber pistol under the front seat and some marijuana debris in the camper area. At that point, Tuley was placed under arrest and advised of his constitutional rights. Tuley was then taken to the Brownsville district office for processing.
10 At the Brownsville office, Tuley told Agents Morrison and Lofstrom that he was hired by unknown persons in Oklahoma City to come to Brownsville and Port Isabel, Texas, to assist in transporting a large quantity of marijuana to the Oklahoma City area. Later he told the agents that the marijuana was in a motor home situated on South Padre Island Beach. A search warrant was issued for the motor home,4 and 546 pounds of marijuana were found therein. Oller's arrest followed, on the basis of marijuana found in the motor home.5
11 A warrantless search is "per se unreasonable, unless the police can show that it falls within one of a carefully defined set of exceptions based on the presence of 'exigent' circumstances." Coolidge v. New Hampshire, 1971,403 U.S. 443, 474-475, 91 S. Ct. 2022, 2042, 29 L. Ed. 2d 564. An exception exists as to the search of a moving vehicle, when probable cause exists for such a search. The seminal case as to warrantless searches of vehicles is Carroll v. United States, 1925, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 453, where the Court held:
12 " . . . that the guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of the government, as recognizing a necessary difference between a search of a store, dwelling house, or other structure in respect of which a proper official warrant readily may be obtained and a search of a ship, motor boat, wagon, or automobile for contraband goods, where it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.
13 "Having thus established that contraband goods concealed and illegally transported in an automobile or other vehicle may be searched for without a warrant, we come now to consider under what circumstances such search may be made.
14 The measure of legality of such a seizure is . . . that the seizing officer shall have reasonable or probable cause for believing that the automobile which he stops and seizes had contraband liquor therein which is being illegally transported."
15 267 U.S. at 153, 155-156, 45 S. Ct. at 285-286. See Almeida-Sanchez v. United States, 1973, 413 U.S. 266, 269, 93 S. Ct. 2535, 2537, 37 L. Ed. 2d 596; Chambers v. Maroney, 1970, 399 U.S. 42, 49, 90 S. Ct. 1975, 1980, 26 L. Ed. 2d 419; Potter v. United States, 5 Cir. 1966, 362 F.2d 493, 497.
16 Thus, to justify the stop and search without a warrant of the vehicle driven by Tuley in the present case, we must find that the officers had probable cause to believe that it contained contraband. Probable cause exists if "the facts and circumstances before the officer are such as to warrant a man of prudence and caution in believing that the offence has been (or is being) committed . . ." Stacey v. Emery, 1878, 97 U.S. 642, 645, 24 L. Ed. 1035. See Spinelli v. United States, 1969, 393 U.S. 410, 419, 89 S. Ct. 584, 590, 21 L. Ed. 2d 637; Beck v. Ohio, 1964, 379 U.S. 89, 91, 85 S. Ct. 223, 226, 13 L. Ed. 2d 142; Henry v. United States, 1959, 361 U.S. 98, 80 S. Ct. 168, 171, 4 L. Ed. 2d 134; Brinegar v. United States, 1948, 338 U.S. 160, 175-176, 69 S. Ct. 1302, 1310-1311, 93 L. Ed. 1879.
17 In United States v. Squella-Avendano, 5 Cir. 1971, 447 F.2d 575, 580, this Court commented on the composite test of Aguilar v. United States, 1964, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723, and Spinelli, supra:
18 "First, if the information provided is in such 'detail' and 'minute particularity' that 'a magistrate, when confronted with such detail, could reasonably infer that the informant had gained his information in a reliable way,' then the report, if sufficiently incriminating, may, without more, be grounds for finding probable cause. Secondly, less detailed information from a reliable source may be used as grounds for a finding of probable cause if independent investigation by law enforcement agencies yields sufficient verification or corroboration of the informant's report to make it 'apparent that the informant had not been fabricating his report out of whole cloth.' Corroboration must render the report 'of the sort which in common experience may be recognized as having been obtained in a reliable way.' Thirdly, even a report that is not under the above two standards sufficient of itself to establish probable cause may count in the magistrate's determination of probable cause, but only as one of a number of other factors of 'further support' tending to show probable cause. Examples of satisfactory 'further support' given in Spinelli involved law enforcement agencies' knowledge of independent facts which suggest criminal conduct or of facts which take on an aura of suspicion in light of the informant's tip."
19 While here the source of the informer's information was not revealed, nor how the information was gathered, the detailed facts relayed to the agents and corroborated by them were of such a nature, in light of all the surrounding circumstances, that the district court could reasonably have inferred that the informer obtained his information "in a reliable manner and had substantial evidence on which to base his conclusion that the Defendants were probably engaged in criminal activity". Memorandum and Order of the District Court, p. 9.
20 In United States v. Brennan, 5 Cir. 1976, 538 F.2d 711, 720, this Court noted that "an accumulation of innocent detail conforming to the original tip" may have significant corroborative value. The agents in the present case had been informed, by an informer said to be credible, as to a number of particulars regarding the appellants Tuley and Oller, including where they were staying (motel and room numbers), that they were from Oklahoma, a physical description of the vehicles they would be using (which vehicles were found to have Oklahoma license plates), and further that the men in question (Tuley and Oller) were about to transport large quantities of marijuana out of the Rio Grande Valley to Oklahoma. The agents, through surveillance and investigation, were able to corroborate the essentials of this information. In addition and of significance, the agents had received information from another DEA agent that the apartments which appellants had been observed visiting at Queen Isabella Inn were rented by one Robert Muller reported by that agent to be "involved in transporting large quantities of marijuana from the border area to the Oklahoma City area."
21 Thus, it seems reasonable to conclude that while these matters considered separately might not be a sufficient basis for probable cause, when the agents considered their combined cumulative effect, sufficient probable cause was present. It was coupled with the necessary exigent circumstances, a moving vehicle, Carroll v. United States, supra, headed on its way out of the Rio Grande Valley. A warrantless search of the camper Tuley was operating was constitutionally permissible. See Whiteley v. Warden, 1971, 401 U.S. 560, 567, 91 S. Ct. 1031, 1036, 28 L. Ed. 2d 306; Draper v. United States, 1959,358 U.S. 307, 79 S. Ct. 329, 3 L. Ed. 2d 327; Potter v. United States, 5 Cir. 1966, 362 F.2d 493, 497-498.
22 The following search of Oller's motor home was likewise permissible. The results of the search of the camper added to the prior knowledge provided a sufficient basis for issuance of a search warrant. This is so whether or not the statements made by Tuley when he was arrested were or were not related to the magistrate who issued the search warrant.6
The convictions of appellants7 are
23 AFFIRMED.
GODBOLD, Circuit Judge, dissenting:
24 I believe that the warrantless search of the pickup camper driven by Tuley did not meet the standards of the Fourth Amendment. Since the search, with a warrant, of the mobile home was the fruit of the earlier search of the pickup, it too must fall.
I. The Content of the Tip
25 At the threshold, there are significant errors relating to the content of the tip received by Officer Torres from the unidentified informant. They arose in the district court and have been carried forward into the majority opinion. Neither court can correctly determine whether a corroborated tip is sufficient probable cause until it correctly determines what the tip was.
26 District Judge Garza conducted a motion to suppress hearing June 10, 1975, on separate motions filed by Tuley, Oller and a third defendant, Robert Muller, whose case is not before us. Each defendant was represented by a different attorney.
27 The search of the pickup was conducted without a warrant and was first in time, and if invalid would affect the search (with warrant) of the mobile home driven by Oller, which, in turn, would affect the third search (with warrant) of Muller's apartment. Thus, the court took up the Tuley motion first. The burden was on the government. The only evidence it presented was testimony of DEA Officer Gary Morrison. The majority opinion quotes four paragraphs from his testimony. Only the first two relate to the content of the tip given to Officer Torres:
28 The surveillance had been started, initiated, upon information received by Cameron County Task Force Agent Carlos Torres . . .
29 Agent Torres advised the other agents involved in the case that he had received information from a credible source that two men were in Brownsville, Texas, staying at the Ramada Inn in Rooms 113 and 133. These men were driving a pickup truck with a camper, and a motor home, and that they were here in the Valley to transport a quantity of marijuana north out of the Valley.
30 The last two paragraphs, not here repeated, relate to corroborating information received from DEA Agent Lofstrom.
31 When one examines the first two paragraphs, the extent of the information conveyed by Torres to DEA agents was this: (a) two men were driving a pickup truck with a camper on it and a mobile home; (b) they were occupying Rooms 113 and 133 at the Ramada Inn, and (c) they were in the Rio Grande Valley to transport "a quantity of marijuana north out of the valley."
32 Morrison then testified concerning the details of surveillance and other events that the majority consider sufficiently corroborative. Also he stated that he typed the affidavit on the basis of which a warrant was issued for search of the mobile home. The affidavit was not introduced. The government rested, counsel for Tuley argued, and the court announced that Tuley's motion to suppress was overruled.
33 The court then took up Muller's motion. At this point the character of the proceedings changed. Up to then the inquiry had been to the contents of what the informer had told Torres, and Morrison had orally described this. Once Tuley's motion was overruled the inquiry changed to the sufficiency of affidavits supporting the warrants attacked by Oller and Muller. There was no reason for Tuley's counsel to even interest himself in what the affidavits said. His motion already had been denied, without "the affidavit" in evidence. With the burden on the defendant (since the search was with a warrant), Muller's counsel called Agent Lofstrom. He testified that he executed the affidavit for the Muller (apartment) warrant. The affidavit was not introduced.1 Counsel for Muller argued, the court asked for comment from counsel for Oller, and he argued. Officer Torres, the recipient of the informer's tip, was present, the court suggested that he be called as a witness, and the government expressed willingness to call him. But it never did so. The court announced that the two warrants were valid and overruled the Muller and Oller motions.
34 Almost a month later, July 3, 1975, Judge Garza issued a written opinion and order denying the motions. With respect to Tuley, presumably he recognized that the content of the information which Morrison had described as coming from the informer, the two paragraphs quoted above, was not sufficient to constitute probable cause even if corroborated. He therefore ruled that he could consider the contents of "the affidavit" (presumably the one Morrison said that he typed). He then quoted from "the affidavit" the following as the content of information received by state officers from the informer:
35 The informant advised that the male (sic) staying in rooms 113 and 133 of the Ramada Inn Motel, Brownsville, Texas, were soon to transport a large quantity of marijuana from the Rio Grande Valley area to the State of Oklahoma. The informant also stated the suspects would utilize a pickup truck with shell type camper and a motor home, both bearing Oklahoma license, to transport the marijuana.
36 It is quickly seen that this adds additional information to the calculus that the marijuana was to be transported to the State of Oklahoma (rather than north out of the valley) and that the two vehicles had Oklahoma license plates.
37 In his opinion Judge Garza outlines the "precise details given by the informant" that were corroborated. He includes the Oklahoma license plates (which came from "the affidavit"). But that is not all. He also includes "the residences of the parties." This was not stated in Morrison's testimony or in the data quoted from "the affidavit." The majority adopts as the content of the tip the information quoted by Judge Garza from "the affidavit" with Judge Garza's (erroneous) addition of the information that the two men were "from Oklahoma."
38 It seems to me that an issue of constitutional dimension cannot be dealt with in this cavalier fashion. Possibly "the affidavit" was in the court's files and records, and, if so, possibly the court could take judicial notice of it before it entered a formal written order. But the difficulty is that the court bolstered the evidence after all the hearings were over and after its decision had been announced. Had Tuley's counsel known that the affidavit, though not in evidence, was to be considered he could have examined Morrison on why the statement in the affidavit was broader than his oral testimony, and which of the two was correct, and why he prepared an affidavit to be sworn to by Lofstrom. Nor is that all. Judge Garza's opinion erroneously states that both sides rested after Morrison and Lofstrom testified. We do not know whether his written order would have been the same if he had realized that on Tuley's motion the parties had rested and the motion had been denied before the hearing changed character and affidavits became significant, and if he had realized that no description of the tip contained any reference to the residence of the two men.
II. Probable Cause
39 The tip to state Officer Torres from an unidentified informant, said by Torres to be a "credible source," even if we consider its contents to be as incorrectly described, fails both prongs of the test established in Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964).2 Aguilar requires that the tipster's report inform the agents of (1) some of the underlying circumstances which justify concluding that he is credible or that his information is reliable, and (2) some of the underlying circumstances tending to demonstrate that, in the specific instance in question, he has drawn his conclusion of criminality in a reliable manner. Standing alone, this tip discloses no circumstances justifying a conclusion either that the informer is credible or that his information is reliable. There is no evidence that the informer was previously reliable except for the terse conclusory statement of Officer Torres that his information came from a "credible source." A generalized conclusory statement of this nature is insufficient, Aguilar, 378 U.S. at 114-15, 84 S.Ct. at 1513-1514, 12 L. Ed. 2d at 729; Davis v. Smith, 430 F.2d 1256 (CA5, 1970), at least when standing alone, United States v. Harris, 403 U.S. 573, 579-80, 91 S. Ct. 2075, 2079-2080, 29 L. Ed. 2d 723, 731 (1971). See United States v. Love, 472 F.2d 490, 495 (CA5, 1973). Second, nothing within the four corners of the tip tends to show reliability in the gathering of the information leading to the conclusion that illegal activity was afoot.
40 The majority, recognizing that the tip was insufficient to generate probable cause in support of the warrantless search, turn to corroboration, through surveillance, of "an accumulation of innocent detail conforming to the original tip," citing United States v. Brennan, 538 F.2d 711, 720 (CA5), cert. denied, --- U.S. ----, 97 S. Ct. 1104, 50 L.Ed.2d ---- (1977) (No. 76-701). I read Brennan's illumination of the kind of corroboration required by Draper v. United States, 358 U.S. 307, 79 S. Ct. 329, 3 L. Ed. 2d 327 (1959), and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969), to require a finding of insufficiency here.3
41 I set forth the facts of the tip and subsequent corroboration in Brennan in order to demonstrate which facts the court subsequently relied on in according weight to the information contained in the tip. The informant had notified the DEA that Brennan was about to smuggle something into a certain airport. He described the plane by model, color, and tail number, and said it was hangared at this airport. He forecast that Brennan would install a 55-gallon auxiliary fuel tank in order to fly nonstop to Colombia and back. Later, he alerted authorities to the imminence of the smuggling operation, telling them that he inferred this conclusion from the details of the plane purchase. Finally, he said, Brennan had asked him to locate an overwater navigational device. The authorities discovered through independent investigation that this particular plane was indeed hangared at the airport. About three weeks later, they received word that the plane had taken off in a southwesterly direction. At 1:30 a. m. on the following day, customs agents sighted the same plane taxiing to its hangar, proceeding with its lights off.
42 The analysis in Brennan makes clear that probable cause was not founded on the amassing of innocent detail permitted after Draper. Judge Clark noted that mere corroboration of the suspect's ownership of the plane, even with the identification of the tail number, was "patently insufficient . . . ; this is precisely the type of innocent detail held to be of insufficient corroborative value in Spinelli itself." 538 F.2d at 720. Similarly, we have no Draper-type detail here. Indeed, we have even less of it than in Brennan. These are the external events and observations described by Judge Simpson as corroborative: (1) The described vehicles were indeed at the Ramada Inn; (2) they had plates from Oklahoma;4 (3) the two occupants were in the named rooms at the motel. Regardless of how revealing one thinks these sorts of public or innocuous facts may be, they simply do not provide the "minute particularity" such that "a (court), when confronted with such detail, could reasonably infer that the informant had gained his information in a reliable way." United States v. Squella-Avendano, 447 F.2d 575, 580 (CA5), cert. denied, 404 U.S. 985, 92 S. Ct. 450, 30 L. Ed. 2d 369 (1971), quoting Spinelli, 393 U.S. at 417, 89 S.Ct. at 589, 21 L. Ed. 2d at 644. My reading of the cases persuades me that the facts, either corroborative or as given in the original tip, have been more extensive than those provided here. See, e. g., United States v. Waddy, 536 F.2d 632 (CA5, 1976) (the tipster described, in addition to details provided here, the identity of the persons and the fact that the marijuana would be transported in suitcases); United States v. Nieto, 510 F.2d 1118 (CA5), cert. denied, 423 U.S. 854, 96 S. Ct. 101, 46 L. Ed. 2d 78 (1975) (corroboration of general description of two men, nicknames, departure and arrival points, and license plate of car, held sufficient); United States v. Anderson, 500 F.2d 1311, 1316 (CA5, 1974) (tipster's corroborated description of mode of operation to include rental of two cars, one for local and one for interstate use, "evinced a knowledge of the inner workings of the appellants' system"); United States v. Horton, 488 F.2d 374, 379 (CA5, 1973), cert. denied, 416 U.S. 993, 94 S. Ct. 2405, 40 L. Ed. 2d 772 (1974) (tipster gave physical descriptions of suspects, sites of origin and arrival, model and license of car; police corroborated these details and also through extensive surveillance discovered a driving pattern not "in the manner of typical tourists or businessmen"); United States v. Sellers, 483 F.2d 37, 41 (CA5, 1973), cert. denied, 417 U.S. 908, 94 S. Ct. 2604, 41 L. Ed. 2d 212 (1974) (tipster gave "detailed (though apparently uncorroborated) statements relating to the organizational procedures" of the gambling operation, i. e., who gave the line and who handled layoffs); United States v. Spaulding, 462 F.2d 1346 (CA5), cert. denied, 409 U.S. 884, 93 S. Ct. 173, 34 L. Ed. 2d 139 (1972) (tipster related information similar to that provided here, plus points of origin and arrival, name of person to whom suspects would deliver heroin, and license number of car; police corroborated these facts and observed suspect carrying black box); United States v. Drew, 436 F.2d 529 (CA5, 1970), cert. denied, 402 U.S. 977, 91 S. Ct. 1682, 29 L. Ed. 2d 143 (1971) (informant gave point of origin, location of past delivery, amounts and types of controlled substances, rough time of departure; surveillance corroborated these details and revealed that suspects were headed toward location of a prior delivery).
43 It is difficult to trace a consistent pattern in our probable cause decisions, since the cases must turn on their facts. My belief that the corroboration was insufficient in this case is drawn in large part from the Court's purpose in Aguilar and Spinelli. We allow the police to rely on unidentified informers to establish probable cause that a crime is being committed. Whiteley v. Warden, 401 U.S. 560, 567, 91 S. Ct. 1031, 1036, 28 L. Ed. 2d 306, 312-13 (1971). The fact that the informer (even assuming that he is truthful)5 accurately observes factual occurrences, or receives facts from an accurate source and relays them on, is only of significance to the extent that it tends to prove the reliability of his conclusion on the critical score, i. e., that the suspect is committing a crime. The corroboration is circumstantial evidence of his reliability as a describer of the particular criminal offense(s) of concern. His reliability as a describer in the abstract, or as a reporter that the sky is blue or that today is Tuesday, is really not what Spinelli and Aguilar are concerned with.
44 I am uneasy with the notion that an accumulation of "innocent"6 details can be employed as an intellectual bridge to an inference of probable cause of criminal conduct. In his Spinelli concurrence, Justice White voiced a similar uneasiness about placing credence in a tip embracing a substantial number of facts that are readily available to the public at large.7 In fact, Judge Clark noted in Brennan that the best type of corroboration is corroboration of "incriminating" details.
45 Although there is no consensus on the type of information required to corroborate an informant's tip, it is generally agreed that the better practice is to obtain corroboration of incriminating details. See Spinelli v. United States, supra, 393 U.S. at 414, 89 S. Ct. at 588, 21 L.Ed.2d at 642; Moylan, Hearsay and Probable Cause: An Aguilar and Spinelli Primer, 25 Mercer.L.Rev. 741 (1974).
46 538 F.2d at 720 (footnote omitted).
47 The problem of inferring probable cause of criminality from details that do not tend to show criminality is perhaps lurking behind several opinions which suggest that although Draper's "minute particularity" need not be "criminal" detail, it should be at least comprised of private facts tending to show that the informant has some personal pipeline to the suspect's scheme, rather than "public" information available to the world at large. See United States v. Spach, 518 F.2d 866, 871 (CA7, 1975) ("It is less relevant that (Draper-type) information is wholly innocent in itself than with corroboration of an informer's conclusions so long as the information is not common public knowledge"); United States v. Larkin, 510 F.2d 13, 15 (CA9, 1974) (information "could be readily obtained by any bystander observing the vehicle on the road from El Centro to Los Angeles"); United States v. Hamilton, 490 F.2d 598, 601 (CA9), cert. denied, 419 U.S. 880, 95 S. Ct. 145, 42 L. Ed. 2d 120 (1974) (tip held not probative, given a "statement supported by nothing that was not open and obvious to anyone"). Other cases have used Draper without commenting on the quality needed in the detail amassed by the tipster, but the facts themselves have indicated, for example, "a knowledge of the inner workings of the (suspects') system." United States v. Anderson, 500 F.2d 1311, 1316 (CA5, 1974). Cf. Spinelli, supra, 393 U.S. at 427, 89 S. Ct. at 594, 21 L.Ed.2d at 650 (White, J., concurring). See also Comment, The Informer's Tip as Probable Cause for Search or Arrest, 54 Cornell L.Rev. 958, 965-66 (1969). We do not need to settle on this appeal whether the aggregation of detailed "non-incriminating" facts, or the quality of "non-incriminating" facts as suggestive that the informer is privy to private "inside" information, are legitimate legal standards. The facts and corroboration about the motel rooms, vehicles, license plates and home state of the suspects in this case are neither detailed nor private.
48 What ultimately convinced the Brennan court that it could credit the informer's tip there was not an amassing of "innocent," or even private, detail (either by tip or by corroboration) but the fact, disclosed by subsequent surveillance, that the suspect taxied his plane back to the hangar at 1:30 a. m. without turning on his lights:
49 We conclude that, through a combination of hearsay information from the tip, preflight corroboration of some of the details, and the on-the-scene corroboration of Brennan's surreptitious landing at the predicted time and place, such probable cause in fact did exist.
50 . . . At the point at which the law enforcement officials detected the Beagle aircraft proceeding down the taxiway in the dark with its lights off, at a time almost exactly that predicted by Dufresne in his estimate for the time required for a smuggling flight, the quantum-of-knowledge ring closed around Brennan in the manner approved by the Supreme Court in (Draper ). Through self-corroboration, equivocal information ripened into probable cause on the scene.
51 538 F.2d at 719-20, 721. See also Fixel v. Wainwright, 492 F.2d 480, 482 n. 1 (CA5, 1974) ("But most importantly, the officers observed the extremely suspicious actions of petitioner making trips to the backyard of his home and concealing the shaving kit there on the day of the arrest"); United States v. Lopez-Ortiz, 492 F.2d 109, 114 (CA5, 1974) (observation that suspects were unloading gunny sacks into their garage at 1:15 a. m. "reasonably arouses suspicion" and corroborates reliability of tip); United States v. Solis, 469 F.2d 1113 (CA5, 1972), cert. denied, 410 U.S. 932, 93 S. Ct. 1375, 35 L. Ed. 2d 594 (1973) (one of the several important factors contributing to probable cause was "the suspicious behavior of Alainis and Solis when they arrived at the Rodeway Inn, where they drove slowly around the motel").
52 In sum, in this case there is no corroboration by facts that tend to show criminality or by conduct so abnormal that it is "suspicious" in the Brennan sense. Even after corroboration, the informer in this case could as well be a bellboy, a prankster, or a maker of malicious mischief as a reliable reporter of criminal activity by the defendants. The corroborating acts could be those of any two men two clergymen or two members of this court traveling to Padre Island for a fishing trip or to Mexico for a vacation.
53 The only other information that tends to impart reliability to the informer's conclusion of criminal activity is the last element tossed into the calculus at the end of Judge Simpson's discussion. This is the report, testified to by Morrison at the Tuley motion hearing, that the driver of the pickup had entered an apartment at the Queen Isabella that was rented by Robert Muller, who was, the report said, involved in transporting large quantities of marijuana from the valley area to the Oklahoma City area. This would tip the scale if it bore indicia of reliability. It would corroborate criminality. The suspect's entry into the Queen Isabella apartment was known because it was physically observed. But the critical nexus the connection of Muller with that apartment and his status as a marijuana transporter bears no stamp of reliability. The report is said to have come from the DEA office in Oklahoma City. We do not know whether this information was founded upon prior convictions, another informant's tip, or some other basis. We have no way of determining that the agents' assertion of probable cause is not based upon "a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation." Spinelli, 393 U.S. at 416, 89 S.Ct. at 589, 21 L. Ed. 2d at 644. The information does not even rise to the level of a law enforcement officer's knowledge of Muller's reputation, as referred to in Part II of the opinion in United States v. Harris, 403 U.S. 573, 91 S. Ct. 2075, 29 L. Ed. 2d 723 (1971).8 If there was indeed such a basis for the report from the Oklahoma City office, it was unrevealed. Standing alone, the mere fact that law enforcement officials transmit the information cannot corroborate its reliability. Officer Morrison, for example, could have relayed to a third DEA office Phoenix, Arizona, let us say the tip that his office had received through Officer Torres, discussed above. Passing the report through the office, and vocal chords, of Officer Morrison to Phoenix could add nothing to its unknown reliability, any more than passing the original tip through Torres gave it authenticity. In the same manner, passing the "information" about Muller through the Oklahoma City office gave it no reliability as evidence corroborative of the original tip. See Whiteley v. Warden, 401 U.S. 560, 568, 91 S. Ct. 1031, 1037, 28 L. Ed. 2d 306, 313 (1971). Significantly, Judge Garza did not rely upon this report as corroboration.
54 In this case we see surveillance which corroborates neither sufficient detail nor sufficient suggestion of criminal (or even suspicious) behavior so as to make the informant's tip (even as incorrectly described) a probative one. The mere observation of two men in the same motel rooms and same cars with Oklahoma plates as predicted by an unknown informant cannot support that informant's conclusion that these same men were transporting marijuana to Oklahoma. Since there was no other probative evidence suggesting possession or distribution of marijuana by these two defendants, I cannot agree with the majority that the agents' search of the pickup was predicated upon probable cause.
1 Both appellants were charged and convicted under one count for conspiring to possess marijuana, with intent to distribute, in violation of Title 21, U.S.Code, Sections 841(a)(1) and 846, and one count for possessing 546 pounds of marijuana, with intent to distribute, in violation of Title 21, U.S.Code, Section 841(a)(1). Tuley was also charged and convicted under one count for possessing 326 grams of marijuana, in violation of Title 21, U.S.Code, Section 844(a)
2 Morrison testified that he had participated briefly in the surveillance on January 14
3 Muller was also charged in the same indictment with violations of the federal laws relating to marijuana and additional offenses. His motion for severance was granted, and he was tried separately, and convicted. An appeal from his conviction is docketed here as No. 75-4045
4 The testimony of Morrison indicates uncertainty as to whether the information received from Tuley was part of the basis for the search warrant of the motor home: Q. (by Government counsel): Then what happened after you were told about the marijuana being in the motor home out on South Padre Island? A. (Morrison): I assisted Agent Lofstrom in preparing a search warrant for this motor home. Q. Was a warrant issued? A. Yes, it was. The Court: That was based mainly on what Tuley had told you when he was arrested? A. Yes Sir. The warrant was based on that and the information that Agent Torres had received earlier. The Court: Had received earlier. But Tuley himself had told you that marijuana is in a motor home on South Padre Island. Was it the same motor home that was seen at the Ramada Inn? A. Yes Sir, it was the same motor home. However, the information that Tuley told us concerning the marijuana being in the motor home was not included in the warrant as he advised us of that portion of the information after preparation of the warrant. Record on Appeal (R.App.), Vol. IV, pp. 8-9. Q. (defense): . . . The search of the Champion motor home then did not take place as a result of anything Mr. Tuley told the officers? A. (Morrison): The search of the motor home took place as a result of a warrant . . . I'm not sure if any information that Mr. Tuley relayed is contained in the warrant or not. I don't remember. R.App., Vol. IV, p. 18.
5 A search warrant for Muller's quarters at the Queen Isabella Inn was then procured and executed, resulting in the discovery of a small amount of marijuana, 185 amphetamine tablets and numerous weapons, and Muller's arrest. As indicated, N. 3, supra, the counts of the indictment involving the charges against Muller were severed and tried separately. We are concerned on this appeal only with the legality of the first two searches, not the search of Muller's quarters
6 See footnote 4, supra. Assuming the legality of the initial search of the camper, the fruits of that search were properly used to establish probable cause in a subsequent search. See Wong Sun v. United States, 1963, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441. The government brief refers to the successive searches (a) of the camper, (b) of the motor home and (c) of Muller's premises as "piggy-backed" upon the preceding searches
7 Appellant Tuley also urges that the trial court erred by refusing to allow Tuley to call his co-defendant, Oller, to the stand to question him in the presence of the jury to permit the jury to hear Oller's responses, including his refusal to testify on the grounds that his testimony would incriminate him and him alone. The point is without merit. Since Oller made it clear out of the jury's presence that he would refuse to answer any questions concerning the case, (conceded by Tuley's brief, p. 20) the trial court did not err in refusing to allow Tuley to call Oller to testify for the primary purpose of that refusal being made before the jury. Cf. San Fratello v. United States, 5 Cir. 1965, 340 F.2d 560, pet. for reh. den. 1965, 343 F.2d 711
1 No one testified concerning the affidavit (for the mobile home search) which Morrison had said he typed. It was not introduced
2 Aguilar's standards governed the sufficiency of an affidavit in support of a search warrant. The requirements of probable cause in searches without a warrant, involving an initial decision by the officer rather than by a neutral and detached magistrate, are at least as stringent as Aguilar's, and may be more stringent. United States v. Anderson, 500 F.2d 1311, 1315 n. 8 (CA5, 1974)
3 At least one commentator, parsing the language of Aguilar and Spinelli, has argued that police corroboration of an informant's tip is only a way of satisfying Aguilar's informant-credibility prong. Only self-verifying detail (a la Draper) in the tip itself can boost the tip over the hurdle of the basis-of-knowledge prong. Comment, The Informer's Tip as Probable Cause for Search or Arrest, 54 Cornell L.Rev. 958, 960, 962, 963 & n. 30 (1969). Subsequent cases from this Circuit have, however, used corroboration as a means of satisfying both Aguilar prongs. Brennan, for example, speaks of the kind of information necessary "to corroborate an informant's tip." United States v. Brennan, 538 F.2d 711, 720 (CA5, 1976)
4 Judge Simpson finds that the plates corroborate the residence of the occupants. As I have pointed out, no version of the tip contained that information
5 My concern about the paucity of corroborative facts in this case is even greater because the government has fared no better in satisfying the other Aguilar prong, truthfulness. If, for example, the anonymous informant had proven himself right on prior occasions I would perhaps be more willing to accept such minimal corroboration of the informant's conclusions. Such an informant is not only presumptively truthful but also historically accurate, an information-gatherer not easily duped by mere barroom rumors. Cf. United States v. Sellers, 483 F.2d 37, 41 (CA5, 1973), cert. denied, 417 U.S. 908, 94 S. Ct. 2604, 41 L. Ed. 2d 212 (1974) (suggesting that a very reliable informant such as an FBI agent allows for less evidence on the source-of-knowledge prong) Of course, a prior record of 50 out of 100, while perhaps a good batting average, would be evidence of only questionable investigatory skill. The point here is that we have no description of this informant that can reassure us about his belief that criminality was afoot. He is a paradigm of anonymity.
6 I treat this word somewhat delicately due to problems of characterization. See Rebell, The Undisclosed Informant and the Fourth Amendment: A Search for Meaningful Standards, 81 Yale L.J. 703, 719 & n. 82 (1972)
7 "Unquestionably, verification of arrival time, dress, and gait reinforced the honesty of the informant he had not reported a made-up story. But if what Draper stands for is that the existence of the tenth and critical fact is made sufficiently probable to justify the issuance of a warrant by verifying nine other facts coming from the same source, I have my doubts about that case "In the first place, the proposition is not that the tenth fact may be logically inferred from the other nine or that the tenth fact is usually found in conjunction with the other nine. No one would suggest that just anyone getting off the 10:30 train dressed as Draper was, with a brisk walk and carrying a zipper bag, should be arrested for carrying narcotics. The thrust of Draper is not that the verified facts have independent significance with respect to proof of the tenth. The argument instead relates to the reliability of the source: because an informant is right about some things, he is more probably right about other facts, usually the critical, unverified facts." 393 U.S. at 426-27, 89 S.Ct. at 594, 21 L. Ed. 2d at 650 (White, J., concurring).
8 Harris dealt only with the informant-credibility prong of Aguilar ; it never considered what factors might satisfy the information-reliability prong since the tipster had personally observed and indeed purchased illicit whiskey. The portion of the Chief Justice's opinion asserting that the affiant officer's personal knowledge of a suspect is adequate to satisfy this former prong represented solely his views and those of Justices Black and Blackmun | 08-23-2011 | [
"546 F.2d 1264 UNITED STATES of America, Plaintiff-Appellee,v.David Terance TULEY and Frank Christian Oller, Defendants-Appellants. No. 75-3693. United States Court of Appeals,Fifth Circuit. Feb. 14, 1977.Rehearing and Rehearing En Banc Denied April 25, 1977. Ferriel C. Hamby, Jr. (Court-appointed) Harlingen, Tex., for Tuley. Roland E. Dahlin, II, Federal Public Defender, Mike DeGeurin, Juan E. Gavito, Asst. Fed. Public Defenders, William W. Burge, First Federal Public Defender, Houston, Tex., for Oller. Edward B. McDonough, Jr., U. S. Atty., James R. Gough, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee. Appeals from the United States District Court for the Southern District of Texas. Before GEWIN, GODBOLD and SIMPSON, Circuit Judges. SIMPSON, Circuit Judge: 1 David Terance Tuley and Frank Christian Oller appeal from convictions for violations of the federal laws relating to marijuana.1 The basis of their appeal is that the district judge improperly denied their motions to suppress evidence. 2 On January 13, 1975, Special Agents Gabriel Bustamante and Carlos Torres of the Cameron County Organized Crime Task Force, Texas, received information from an unnamed, but \"previously reliable\", confidential informant that two men from Oklahoma, staying in rooms 113 and 133 of the Ramada Inn Motel, Brownsville, Texas, were planning to transport a large quantity of marijuana from the Rio Grande Valley area to the state of Oklahoma.",
"The informant also disclosed that the suspects would be using two vehicles, a pickup truck with a camper, and a motor home, to transport the contraband. Upon receipt of this information, the Texas officers began a surveillance of the suspects. Observation quickly corroborated the informant's tip as to the description of the vehicles and the presence of the two suspects in the indicated rooms. The vehicles bore Oklahoma license plates, which verified the information that the men were from Oklahoma and supported to some extent the statement that they would transport marijuana to that state.",
"3 On January 15, 1975, Gary Morrison, an agent of the federal Drug Enforcement Administration (DEA), joined the surveillance.2 At the suppression hearing, Morrison testified to the following: 4 The surveillance had been started, initiated, upon information received by Cameron County Task Force Agent Carlos Torres . . . 5 Agent Torres advised the other agents involved in the case that he had received information from a credible source that two men were in Brownsville, Texas, staying at the Ramada Inn in Rooms 113 and 133. These men were driving a pickup truck with a camper, and a motor home, and that they were here in the Valley to transport a quantity of marijuana north out of the Valley. 6 Agent Lofstrom (another D.E.A.",
"agent) advised me that they had located two vehicles meeting the description, both with Oklahoma plates, at the Ramada Inn, and that these vehicles had also driven to South Padre Island to the Queen Isabella Inn where the drivers of the vehicles had been observed entering Apartment 1 and 2 of the Queen Isabella Inn. 7 Agent Lofstrom advised me that he had received information from another D.E.A. office that the renter of Apartment 1 and 2 of the Queen Isabella Inn, Robert Muller,3 was involved in transporting large quantities of marijuana from the border area to the Oklahoma City Area. 8 Morrison and the other agents on January 15 followed a Chevrolet pickup truck with a camper, and a Champion motor home from the Queen Isabella Inn area, Port Isabel, Texas, to the Ramada Inn in Brownsville, Texas. At the motel, four people left the vehicles, went into room 133, and took articles from that room and placed them in the rear of the pickup truck.",
"The two vehicles shortly returned to Port Isabel, and the surveillance was discontinued for that day. 9 About noon the next day, January 16, Morrison and other agents resumed the surveillance of the pickup truck as it moved west, away from the Port Isabel area and in the direction of McAllen, Texas. As the vehicle proceeded along Highway 83, near Mercedes, Texas, Morrison and two other agents stopped the pickup truck, which was occupied by appellant Tuley and his Doberman Pinscher. A search of the vehicle produced a .38 caliber pistol under the front seat and some marijuana debris in the camper area. At that point, Tuley was placed under arrest and advised of his constitutional rights.",
"Tuley was then taken to the Brownsville district office for processing. 10 At the Brownsville office, Tuley told Agents Morrison and Lofstrom that he was hired by unknown persons in Oklahoma City to come to Brownsville and Port Isabel, Texas, to assist in transporting a large quantity of marijuana to the Oklahoma City area. Later he told the agents that the marijuana was in a motor home situated on South Padre Island Beach. A search warrant was issued for the motor home,4 and 546 pounds of marijuana were found therein. Oller's arrest followed, on the basis of marijuana found in the motor home.5 11 A warrantless search is \"per se unreasonable, unless the police can show that it falls within one of a carefully defined set of exceptions based on the presence of 'exigent' circumstances.\"",
"Coolidge v. New Hampshire, 1971,403 U.S. 443, 474-475, 91 S. Ct. 2022, 2042, 29 L. Ed. 2d 564. An exception exists as to the search of a moving vehicle, when probable cause exists for such a search. The seminal case as to warrantless searches of vehicles is Carroll v. United States, 1925, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 453, where the Court held: 12 \" . . . that the guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of the government, as recognizing a necessary difference between a search of a store, dwelling house, or other structure in respect of which a proper official warrant readily may be obtained and a search of a ship, motor boat, wagon, or automobile for contraband goods, where it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought. 13 \"Having thus established that contraband goods concealed and illegally transported in an automobile or other vehicle may be searched for without a warrant, we come now to consider under what circumstances such search may be made.",
"14 The measure of legality of such a seizure is . . . that the seizing officer shall have reasonable or probable cause for believing that the automobile which he stops and seizes had contraband liquor therein which is being illegally transported.\" 15 267 U.S. at 153, 155-156, 45 S. Ct. at 285-286. See Almeida-Sanchez v. United States, 1973, 413 U.S. 266, 269, 93 S. Ct. 2535, 2537, 37 L. Ed. 2d 596; Chambers v. Maroney, 1970, 399 U.S. 42, 49, 90 S. Ct. 1975, 1980, 26 L. Ed. 2d 419; Potter v. United States, 5 Cir. 1966, 362 F.2d 493, 497. 16 Thus, to justify the stop and search without a warrant of the vehicle driven by Tuley in the present case, we must find that the officers had probable cause to believe that it contained contraband.",
"Probable cause exists if \"the facts and circumstances before the officer are such as to warrant a man of prudence and caution in believing that the offence has been (or is being) committed . . .\" Stacey v. Emery, 1878, 97 U.S. 642, 645, 24 L. Ed. 1035. See Spinelli v. United States, 1969, 393 U.S. 410, 419, 89 S. Ct. 584, 590, 21 L. Ed. 2d 637; Beck v. Ohio, 1964, 379 U.S. 89, 91, 85 S. Ct. 223, 226, 13 L. Ed.",
"2d 142; Henry v. United States, 1959, 361 U.S. 98, 80 S. Ct. 168, 171, 4 L. Ed. 2d 134; Brinegar v. United States, 1948, 338 U.S. 160, 175-176, 69 S. Ct. 1302, 1310-1311, 93 L. Ed. 1879. 17 In United States v. Squella-Avendano, 5 Cir. 1971, 447 F.2d 575, 580, this Court commented on the composite test of Aguilar v. United States, 1964, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723, and Spinelli, supra: 18 \"First, if the information provided is in such 'detail' and 'minute particularity' that 'a magistrate, when confronted with such detail, could reasonably infer that the informant had gained his information in a reliable way,' then the report, if sufficiently incriminating, may, without more, be grounds for finding probable cause. Secondly, less detailed information from a reliable source may be used as grounds for a finding of probable cause if independent investigation by law enforcement agencies yields sufficient verification or corroboration of the informant's report to make it 'apparent that the informant had not been fabricating his report out of whole cloth.' Corroboration must render the report 'of the sort which in common experience may be recognized as having been obtained in a reliable way.'",
"Thirdly, even a report that is not under the above two standards sufficient of itself to establish probable cause may count in the magistrate's determination of probable cause, but only as one of a number of other factors of 'further support' tending to show probable cause. Examples of satisfactory 'further support' given in Spinelli involved law enforcement agencies' knowledge of independent facts which suggest criminal conduct or of facts which take on an aura of suspicion in light of the informant's tip.\"",
"19 While here the source of the informer's information was not revealed, nor how the information was gathered, the detailed facts relayed to the agents and corroborated by them were of such a nature, in light of all the surrounding circumstances, that the district court could reasonably have inferred that the informer obtained his information \"in a reliable manner and had substantial evidence on which to base his conclusion that the Defendants were probably engaged in criminal activity\". Memorandum and Order of the District Court, p. 9. 20 In United States v. Brennan, 5 Cir.",
"1976, 538 F.2d 711, 720, this Court noted that \"an accumulation of innocent detail conforming to the original tip\" may have significant corroborative value. The agents in the present case had been informed, by an informer said to be credible, as to a number of particulars regarding the appellants Tuley and Oller, including where they were staying (motel and room numbers), that they were from Oklahoma, a physical description of the vehicles they would be using (which vehicles were found to have Oklahoma license plates), and further that the men in question (Tuley and Oller) were about to transport large quantities of marijuana out of the Rio Grande Valley to Oklahoma. The agents, through surveillance and investigation, were able to corroborate the essentials of this information. In addition and of significance, the agents had received information from another DEA agent that the apartments which appellants had been observed visiting at Queen Isabella Inn were rented by one Robert Muller reported by that agent to be \"involved in transporting large quantities of marijuana from the border area to the Oklahoma City area.\"",
"21 Thus, it seems reasonable to conclude that while these matters considered separately might not be a sufficient basis for probable cause, when the agents considered their combined cumulative effect, sufficient probable cause was present. It was coupled with the necessary exigent circumstances, a moving vehicle, Carroll v. United States, supra, headed on its way out of the Rio Grande Valley. A warrantless search of the camper Tuley was operating was constitutionally permissible. See Whiteley v. Warden, 1971, 401 U.S. 560, 567, 91 S. Ct. 1031, 1036, 28 L. Ed. 2d 306; Draper v. United States, 1959,358 U.S. 307, 79 S. Ct. 329, 3 L. Ed. 2d 327; Potter v. United States, 5 Cir. 1966, 362 F.2d 493, 497-498.",
"22 The following search of Oller's motor home was likewise permissible. The results of the search of the camper added to the prior knowledge provided a sufficient basis for issuance of a search warrant. This is so whether or not the statements made by Tuley when he was arrested were or were not related to the magistrate who issued the search warrant.6 The convictions of appellants7 are 23 AFFIRMED. GODBOLD, Circuit Judge, dissenting: 24 I believe that the warrantless search of the pickup camper driven by Tuley did not meet the standards of the Fourth Amendment. Since the search, with a warrant, of the mobile home was the fruit of the earlier search of the pickup, it too must fall.",
"I. The Content of the Tip 25 At the threshold, there are significant errors relating to the content of the tip received by Officer Torres from the unidentified informant. They arose in the district court and have been carried forward into the majority opinion. Neither court can correctly determine whether a corroborated tip is sufficient probable cause until it correctly determines what the tip was. 26 District Judge Garza conducted a motion to suppress hearing June 10, 1975, on separate motions filed by Tuley, Oller and a third defendant, Robert Muller, whose case is not before us. Each defendant was represented by a different attorney. 27 The search of the pickup was conducted without a warrant and was first in time, and if invalid would affect the search (with warrant) of the mobile home driven by Oller, which, in turn, would affect the third search (with warrant) of Muller's apartment.",
"Thus, the court took up the Tuley motion first. The burden was on the government. The only evidence it presented was testimony of DEA Officer Gary Morrison. The majority opinion quotes four paragraphs from his testimony. Only the first two relate to the content of the tip given to Officer Torres: 28 The surveillance had been started, initiated, upon information received by Cameron County Task Force Agent Carlos Torres . . . 29 Agent Torres advised the other agents involved in the case that he had received information from a credible source that two men were in Brownsville, Texas, staying at the Ramada Inn in Rooms 113 and 133. These men were driving a pickup truck with a camper, and a motor home, and that they were here in the Valley to transport a quantity of marijuana north out of the Valley. 30 The last two paragraphs, not here repeated, relate to corroborating information received from DEA Agent Lofstrom.",
"31 When one examines the first two paragraphs, the extent of the information conveyed by Torres to DEA agents was this: (a) two men were driving a pickup truck with a camper on it and a mobile home; (b) they were occupying Rooms 113 and 133 at the Ramada Inn, and (c) they were in the Rio Grande Valley to transport \"a quantity of marijuana north out of the valley.\" 32 Morrison then testified concerning the details of surveillance and other events that the majority consider sufficiently corroborative. Also he stated that he typed the affidavit on the basis of which a warrant was issued for search of the mobile home. The affidavit was not introduced. The government rested, counsel for Tuley argued, and the court announced that Tuley's motion to suppress was overruled. 33 The court then took up Muller's motion. At this point the character of the proceedings changed. Up to then the inquiry had been to the contents of what the informer had told Torres, and Morrison had orally described this.",
"Once Tuley's motion was overruled the inquiry changed to the sufficiency of affidavits supporting the warrants attacked by Oller and Muller. There was no reason for Tuley's counsel to even interest himself in what the affidavits said. His motion already had been denied, without \"the affidavit\" in evidence. With the burden on the defendant (since the search was with a warrant), Muller's counsel called Agent Lofstrom. He testified that he executed the affidavit for the Muller (apartment) warrant. The affidavit was not introduced.1 Counsel for Muller argued, the court asked for comment from counsel for Oller, and he argued. Officer Torres, the recipient of the informer's tip, was present, the court suggested that he be called as a witness, and the government expressed willingness to call him. But it never did so. The court announced that the two warrants were valid and overruled the Muller and Oller motions. 34 Almost a month later, July 3, 1975, Judge Garza issued a written opinion and order denying the motions.",
"With respect to Tuley, presumably he recognized that the content of the information which Morrison had described as coming from the informer, the two paragraphs quoted above, was not sufficient to constitute probable cause even if corroborated. He therefore ruled that he could consider the contents of \"the affidavit\" (presumably the one Morrison said that he typed). He then quoted from \"the affidavit\" the following as the content of information received by state officers from the informer: 35 The informant advised that the male (sic) staying in rooms 113 and 133 of the Ramada Inn Motel, Brownsville, Texas, were soon to transport a large quantity of marijuana from the Rio Grande Valley area to the State of Oklahoma.",
"The informant also stated the suspects would utilize a pickup truck with shell type camper and a motor home, both bearing Oklahoma license, to transport the marijuana. 36 It is quickly seen that this adds additional information to the calculus that the marijuana was to be transported to the State of Oklahoma (rather than north out of the valley) and that the two vehicles had Oklahoma license plates. 37 In his opinion Judge Garza outlines the \"precise details given by the informant\" that were corroborated. He includes the Oklahoma license plates (which came from \"the affidavit\"). But that is not all. He also includes \"the residences of the parties.\"",
"This was not stated in Morrison's testimony or in the data quoted from \"the affidavit.\" The majority adopts as the content of the tip the information quoted by Judge Garza from \"the affidavit\" with Judge Garza's (erroneous) addition of the information that the two men were \"from Oklahoma.\" 38 It seems to me that an issue of constitutional dimension cannot be dealt with in this cavalier fashion. Possibly \"the affidavit\" was in the court's files and records, and, if so, possibly the court could take judicial notice of it before it entered a formal written order. But the difficulty is that the court bolstered the evidence after all the hearings were over and after its decision had been announced. Had Tuley's counsel known that the affidavit, though not in evidence, was to be considered he could have examined Morrison on why the statement in the affidavit was broader than his oral testimony, and which of the two was correct, and why he prepared an affidavit to be sworn to by Lofstrom.",
"Nor is that all. Judge Garza's opinion erroneously states that both sides rested after Morrison and Lofstrom testified. We do not know whether his written order would have been the same if he had realized that on Tuley's motion the parties had rested and the motion had been denied before the hearing changed character and affidavits became significant, and if he had realized that no description of the tip contained any reference to the residence of the two men.",
"II. Probable Cause 39 The tip to state Officer Torres from an unidentified informant, said by Torres to be a \"credible source,\" even if we consider its contents to be as incorrectly described, fails both prongs of the test established in Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964).2 Aguilar requires that the tipster's report inform the agents of (1) some of the underlying circumstances which justify concluding that he is credible or that his information is reliable, and (2) some of the underlying circumstances tending to demonstrate that, in the specific instance in question, he has drawn his conclusion of criminality in a reliable manner. Standing alone, this tip discloses no circumstances justifying a conclusion either that the informer is credible or that his information is reliable. There is no evidence that the informer was previously reliable except for the terse conclusory statement of Officer Torres that his information came from a \"credible source.\" A generalized conclusory statement of this nature is insufficient, Aguilar, 378 U.S. at 114-15, 84 S.Ct. at 1513-1514, 12 L. Ed.",
"2d at 729; Davis v. Smith, 430 F.2d 1256 (CA5, 1970), at least when standing alone, United States v. Harris, 403 U.S. 573, 579-80, 91 S. Ct. 2075, 2079-2080, 29 L. Ed. 2d 723, 731 (1971). See United States v. Love, 472 F.2d 490, 495 (CA5, 1973). Second, nothing within the four corners of the tip tends to show reliability in the gathering of the information leading to the conclusion that illegal activity was afoot. 40 The majority, recognizing that the tip was insufficient to generate probable cause in support of the warrantless search, turn to corroboration, through surveillance, of \"an accumulation of innocent detail conforming to the original tip,\" citing United States v. Brennan, 538 F.2d 711, 720 (CA5), cert. denied, --- U.S. ----, 97 S. Ct. 1104, 50 L.Ed.2d ---- (1977) (No. 76-701).",
"I read Brennan's illumination of the kind of corroboration required by Draper v. United States, 358 U.S. 307, 79 S. Ct. 329, 3 L. Ed. 2d 327 (1959), and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969), to require a finding of insufficiency here.3 41 I set forth the facts of the tip and subsequent corroboration in Brennan in order to demonstrate which facts the court subsequently relied on in according weight to the information contained in the tip. The informant had notified the DEA that Brennan was about to smuggle something into a certain airport. He described the plane by model, color, and tail number, and said it was hangared at this airport. He forecast that Brennan would install a 55-gallon auxiliary fuel tank in order to fly nonstop to Colombia and back.",
"Later, he alerted authorities to the imminence of the smuggling operation, telling them that he inferred this conclusion from the details of the plane purchase. Finally, he said, Brennan had asked him to locate an overwater navigational device. The authorities discovered through independent investigation that this particular plane was indeed hangared at the airport. About three weeks later, they received word that the plane had taken off in a southwesterly direction. At 1:30 a. m. on the following day, customs agents sighted the same plane taxiing to its hangar, proceeding with its lights off. 42 The analysis in Brennan makes clear that probable cause was not founded on the amassing of innocent detail permitted after Draper. Judge Clark noted that mere corroboration of the suspect's ownership of the plane, even with the identification of the tail number, was \"patently insufficient . .",
". ; this is precisely the type of innocent detail held to be of insufficient corroborative value in Spinelli itself.\" 538 F.2d at 720. Similarly, we have no Draper-type detail here. Indeed, we have even less of it than in Brennan. These are the external events and observations described by Judge Simpson as corroborative: (1) The described vehicles were indeed at the Ramada Inn; (2) they had plates from Oklahoma;4 (3) the two occupants were in the named rooms at the motel. Regardless of how revealing one thinks these sorts of public or innocuous facts may be, they simply do not provide the \"minute particularity\" such that \"a (court), when confronted with such detail, could reasonably infer that the informant had gained his information in a reliable way.\" United States v. Squella-Avendano, 447 F.2d 575, 580 (CA5), cert. denied, 404 U.S. 985, 92 S. Ct. 450, 30 L. Ed.",
"2d 369 (1971), quoting Spinelli, 393 U.S. at 417, 89 S.Ct. at 589, 21 L. Ed. 2d at 644. My reading of the cases persuades me that the facts, either corroborative or as given in the original tip, have been more extensive than those provided here. See, e. g., United States v. Waddy, 536 F.2d 632 (CA5, 1976) (the tipster described, in addition to details provided here, the identity of the persons and the fact that the marijuana would be transported in suitcases); United States v. Nieto, 510 F.2d 1118 (CA5), cert. denied, 423 U.S. 854, 96 S. Ct. 101, 46 L. Ed. 2d 78 (1975) (corroboration of general description of two men, nicknames, departure and arrival points, and license plate of car, held sufficient); United States v. Anderson, 500 F.2d 1311, 1316 (CA5, 1974) (tipster's corroborated description of mode of operation to include rental of two cars, one for local and one for interstate use, \"evinced a knowledge of the inner workings of the appellants' system\"); United States v. Horton, 488 F.2d 374, 379 (CA5, 1973), cert.",
"denied, 416 U.S. 993, 94 S. Ct. 2405, 40 L. Ed. 2d 772 (1974) (tipster gave physical descriptions of suspects, sites of origin and arrival, model and license of car; police corroborated these details and also through extensive surveillance discovered a driving pattern not \"in the manner of typical tourists or businessmen\"); United States v. Sellers, 483 F.2d 37, 41 (CA5, 1973), cert. denied, 417 U.S. 908, 94 S. Ct. 2604, 41 L. Ed. 2d 212 (1974) (tipster gave \"detailed (though apparently uncorroborated) statements relating to the organizational procedures\" of the gambling operation, i. e., who gave the line and who handled layoffs); United States v. Spaulding, 462 F.2d 1346 (CA5), cert. denied, 409 U.S. 884, 93 S. Ct. 173, 34 L. Ed. 2d 139 (1972) (tipster related information similar to that provided here, plus points of origin and arrival, name of person to whom suspects would deliver heroin, and license number of car; police corroborated these facts and observed suspect carrying black box); United States v. Drew, 436 F.2d 529 (CA5, 1970), cert.",
"denied, 402 U.S. 977, 91 S. Ct. 1682, 29 L. Ed. 2d 143 (1971) (informant gave point of origin, location of past delivery, amounts and types of controlled substances, rough time of departure; surveillance corroborated these details and revealed that suspects were headed toward location of a prior delivery). 43 It is difficult to trace a consistent pattern in our probable cause decisions, since the cases must turn on their facts. My belief that the corroboration was insufficient in this case is drawn in large part from the Court's purpose in Aguilar and Spinelli. We allow the police to rely on unidentified informers to establish probable cause that a crime is being committed. Whiteley v. Warden, 401 U.S. 560, 567, 91 S. Ct. 1031, 1036, 28 L. Ed. 2d 306, 312-13 (1971).",
"The fact that the informer (even assuming that he is truthful)5 accurately observes factual occurrences, or receives facts from an accurate source and relays them on, is only of significance to the extent that it tends to prove the reliability of his conclusion on the critical score, i. e., that the suspect is committing a crime. The corroboration is circumstantial evidence of his reliability as a describer of the particular criminal offense(s) of concern. His reliability as a describer in the abstract, or as a reporter that the sky is blue or that today is Tuesday, is really not what Spinelli and Aguilar are concerned with. 44 I am uneasy with the notion that an accumulation of \"innocent\"6 details can be employed as an intellectual bridge to an inference of probable cause of criminal conduct. In his Spinelli concurrence, Justice White voiced a similar uneasiness about placing credence in a tip embracing a substantial number of facts that are readily available to the public at large.7 In fact, Judge Clark noted in Brennan that the best type of corroboration is corroboration of \"incriminating\" details. 45 Although there is no consensus on the type of information required to corroborate an informant's tip, it is generally agreed that the better practice is to obtain corroboration of incriminating details.",
"See Spinelli v. United States, supra, 393 U.S. at 414, 89 S. Ct. at 588, 21 L.Ed.2d at 642; Moylan, Hearsay and Probable Cause: An Aguilar and Spinelli Primer, 25 Mercer.L.Rev. 741 (1974). 46 538 F.2d at 720 (footnote omitted). 47 The problem of inferring probable cause of criminality from details that do not tend to show criminality is perhaps lurking behind several opinions which suggest that although Draper's \"minute particularity\" need not be \"criminal\" detail, it should be at least comprised of private facts tending to show that the informant has some personal pipeline to the suspect's scheme, rather than \"public\" information available to the world at large.",
"See United States v. Spach, 518 F.2d 866, 871 (CA7, 1975) (\"It is less relevant that (Draper-type) information is wholly innocent in itself than with corroboration of an informer's conclusions so long as the information is not common public knowledge\"); United States v. Larkin, 510 F.2d 13, 15 (CA9, 1974) (information \"could be readily obtained by any bystander observing the vehicle on the road from El Centro to Los Angeles\"); United States v. Hamilton, 490 F.2d 598, 601 (CA9), cert. denied, 419 U.S. 880, 95 S. Ct. 145, 42 L. Ed. 2d 120 (1974) (tip held not probative, given a \"statement supported by nothing that was not open and obvious to anyone\"). Other cases have used Draper without commenting on the quality needed in the detail amassed by the tipster, but the facts themselves have indicated, for example, \"a knowledge of the inner workings of the (suspects') system.\"",
"United States v. Anderson, 500 F.2d 1311, 1316 (CA5, 1974). Cf. Spinelli, supra, 393 U.S. at 427, 89 S. Ct. at 594, 21 L.Ed.2d at 650 (White, J., concurring). See also Comment, The Informer's Tip as Probable Cause for Search or Arrest, 54 Cornell L.Rev. 958, 965-66 (1969). We do not need to settle on this appeal whether the aggregation of detailed \"non-incriminating\" facts, or the quality of \"non-incriminating\" facts as suggestive that the informer is privy to private \"inside\" information, are legitimate legal standards. The facts and corroboration about the motel rooms, vehicles, license plates and home state of the suspects in this case are neither detailed nor private. 48 What ultimately convinced the Brennan court that it could credit the informer's tip there was not an amassing of \"innocent,\" or even private, detail (either by tip or by corroboration) but the fact, disclosed by subsequent surveillance, that the suspect taxied his plane back to the hangar at 1:30 a. m. without turning on his lights: 49 We conclude that, through a combination of hearsay information from the tip, preflight corroboration of some of the details, and the on-the-scene corroboration of Brennan's surreptitious landing at the predicted time and place, such probable cause in fact did exist. 50 . . . At the point at which the law enforcement officials detected the Beagle aircraft proceeding down the taxiway in the dark with its lights off, at a time almost exactly that predicted by Dufresne in his estimate for the time required for a smuggling flight, the quantum-of-knowledge ring closed around Brennan in the manner approved by the Supreme Court in (Draper ).",
"Through self-corroboration, equivocal information ripened into probable cause on the scene. 51 538 F.2d at 719-20, 721. See also Fixel v. Wainwright, 492 F.2d 480, 482 n. 1 (CA5, 1974) (\"But most importantly, the officers observed the extremely suspicious actions of petitioner making trips to the backyard of his home and concealing the shaving kit there on the day of the arrest\"); United States v. Lopez-Ortiz, 492 F.2d 109, 114 (CA5, 1974) (observation that suspects were unloading gunny sacks into their garage at 1:15 a. m. \"reasonably arouses suspicion\" and corroborates reliability of tip); United States v. Solis, 469 F.2d 1113 (CA5, 1972), cert. denied, 410 U.S. 932, 93 S. Ct. 1375, 35 L. Ed. 2d 594 (1973) (one of the several important factors contributing to probable cause was \"the suspicious behavior of Alainis and Solis when they arrived at the Rodeway Inn, where they drove slowly around the motel\").",
"52 In sum, in this case there is no corroboration by facts that tend to show criminality or by conduct so abnormal that it is \"suspicious\" in the Brennan sense. Even after corroboration, the informer in this case could as well be a bellboy, a prankster, or a maker of malicious mischief as a reliable reporter of criminal activity by the defendants. The corroborating acts could be those of any two men two clergymen or two members of this court traveling to Padre Island for a fishing trip or to Mexico for a vacation. 53 The only other information that tends to impart reliability to the informer's conclusion of criminal activity is the last element tossed into the calculus at the end of Judge Simpson's discussion. This is the report, testified to by Morrison at the Tuley motion hearing, that the driver of the pickup had entered an apartment at the Queen Isabella that was rented by Robert Muller, who was, the report said, involved in transporting large quantities of marijuana from the valley area to the Oklahoma City area.",
"This would tip the scale if it bore indicia of reliability. It would corroborate criminality. The suspect's entry into the Queen Isabella apartment was known because it was physically observed. But the critical nexus the connection of Muller with that apartment and his status as a marijuana transporter bears no stamp of reliability. The report is said to have come from the DEA office in Oklahoma City. We do not know whether this information was founded upon prior convictions, another informant's tip, or some other basis.",
"We have no way of determining that the agents' assertion of probable cause is not based upon \"a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation.\" Spinelli, 393 U.S. at 416, 89 S.Ct. at 589, 21 L. Ed. 2d at 644. The information does not even rise to the level of a law enforcement officer's knowledge of Muller's reputation, as referred to in Part II of the opinion in United States v. Harris, 403 U.S. 573, 91 S. Ct. 2075, 29 L. Ed. 2d 723 (1971).8 If there was indeed such a basis for the report from the Oklahoma City office, it was unrevealed. Standing alone, the mere fact that law enforcement officials transmit the information cannot corroborate its reliability. Officer Morrison, for example, could have relayed to a third DEA office Phoenix, Arizona, let us say the tip that his office had received through Officer Torres, discussed above. Passing the report through the office, and vocal chords, of Officer Morrison to Phoenix could add nothing to its unknown reliability, any more than passing the original tip through Torres gave it authenticity.",
"In the same manner, passing the \"information\" about Muller through the Oklahoma City office gave it no reliability as evidence corroborative of the original tip. See Whiteley v. Warden, 401 U.S. 560, 568, 91 S. Ct. 1031, 1037, 28 L. Ed. 2d 306, 313 (1971). Significantly, Judge Garza did not rely upon this report as corroboration. 54 In this case we see surveillance which corroborates neither sufficient detail nor sufficient suggestion of criminal (or even suspicious) behavior so as to make the informant's tip (even as incorrectly described) a probative one. The mere observation of two men in the same motel rooms and same cars with Oklahoma plates as predicted by an unknown informant cannot support that informant's conclusion that these same men were transporting marijuana to Oklahoma. Since there was no other probative evidence suggesting possession or distribution of marijuana by these two defendants, I cannot agree with the majority that the agents' search of the pickup was predicated upon probable cause. 1 Both appellants were charged and convicted under one count for conspiring to possess marijuana, with intent to distribute, in violation of Title 21, U.S.Code, Sections 841(a)(1) and 846, and one count for possessing 546 pounds of marijuana, with intent to distribute, in violation of Title 21, U.S.Code, Section 841(a)(1).",
"Tuley was also charged and convicted under one count for possessing 326 grams of marijuana, in violation of Title 21, U.S.Code, Section 844(a) 2 Morrison testified that he had participated briefly in the surveillance on January 14 3 Muller was also charged in the same indictment with violations of the federal laws relating to marijuana and additional offenses. His motion for severance was granted, and he was tried separately, and convicted. An appeal from his conviction is docketed here as No. 75-4045 4 The testimony of Morrison indicates uncertainty as to whether the information received from Tuley was part of the basis for the search warrant of the motor home: Q. (by Government counsel): Then what happened after you were told about the marijuana being in the motor home out on South Padre Island? A. (Morrison): I assisted Agent Lofstrom in preparing a search warrant for this motor home. Q. Was a warrant issued? A. Yes, it was. The Court: That was based mainly on what Tuley had told you when he was arrested?",
"A. Yes Sir. The warrant was based on that and the information that Agent Torres had received earlier. The Court: Had received earlier. But Tuley himself had told you that marijuana is in a motor home on South Padre Island. Was it the same motor home that was seen at the Ramada Inn? A. Yes Sir, it was the same motor home. However, the information that Tuley told us concerning the marijuana being in the motor home was not included in the warrant as he advised us of that portion of the information after preparation of the warrant. Record on Appeal (R.App. ), Vol. IV, pp.",
"8-9. Q. (defense): . . . The search of the Champion motor home then did not take place as a result of anything Mr. Tuley told the officers? A. (Morrison): The search of the motor home took place as a result of a warrant . . . I'm not sure if any information that Mr. Tuley relayed is contained in the warrant or not. I don't remember. R.App., Vol. IV, p. 18. 5 A search warrant for Muller's quarters at the Queen Isabella Inn was then procured and executed, resulting in the discovery of a small amount of marijuana, 185 amphetamine tablets and numerous weapons, and Muller's arrest. As indicated, N. 3, supra, the counts of the indictment involving the charges against Muller were severed and tried separately.",
"We are concerned on this appeal only with the legality of the first two searches, not the search of Muller's quarters 6 See footnote 4, supra. Assuming the legality of the initial search of the camper, the fruits of that search were properly used to establish probable cause in a subsequent search. See Wong Sun v. United States, 1963, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441. The government brief refers to the successive searches (a) of the camper, (b) of the motor home and (c) of Muller's premises as \"piggy-backed\" upon the preceding searches 7 Appellant Tuley also urges that the trial court erred by refusing to allow Tuley to call his co-defendant, Oller, to the stand to question him in the presence of the jury to permit the jury to hear Oller's responses, including his refusal to testify on the grounds that his testimony would incriminate him and him alone.",
"The point is without merit. Since Oller made it clear out of the jury's presence that he would refuse to answer any questions concerning the case, (conceded by Tuley's brief, p. 20) the trial court did not err in refusing to allow Tuley to call Oller to testify for the primary purpose of that refusal being made before the jury. Cf. San Fratello v. United States, 5 Cir. 1965, 340 F.2d 560, pet. for reh.",
"den. 1965, 343 F.2d 711 1 No one testified concerning the affidavit (for the mobile home search) which Morrison had said he typed. It was not introduced 2 Aguilar's standards governed the sufficiency of an affidavit in support of a search warrant. The requirements of probable cause in searches without a warrant, involving an initial decision by the officer rather than by a neutral and detached magistrate, are at least as stringent as Aguilar's, and may be more stringent. United States v. Anderson, 500 F.2d 1311, 1315 n. 8 (CA5, 1974) 3 At least one commentator, parsing the language of Aguilar and Spinelli, has argued that police corroboration of an informant's tip is only a way of satisfying Aguilar's informant-credibility prong.",
"Only self-verifying detail (a la Draper) in the tip itself can boost the tip over the hurdle of the basis-of-knowledge prong. Comment, The Informer's Tip as Probable Cause for Search or Arrest, 54 Cornell L.Rev. 958, 960, 962, 963 & n. 30 (1969). Subsequent cases from this Circuit have, however, used corroboration as a means of satisfying both Aguilar prongs. Brennan, for example, speaks of the kind of information necessary \"to corroborate an informant's tip.\" United States v. Brennan, 538 F.2d 711, 720 (CA5, 1976) 4 Judge Simpson finds that the plates corroborate the residence of the occupants. As I have pointed out, no version of the tip contained that information 5 My concern about the paucity of corroborative facts in this case is even greater because the government has fared no better in satisfying the other Aguilar prong, truthfulness. If, for example, the anonymous informant had proven himself right on prior occasions I would perhaps be more willing to accept such minimal corroboration of the informant's conclusions.",
"Such an informant is not only presumptively truthful but also historically accurate, an information-gatherer not easily duped by mere barroom rumors. Cf. United States v. Sellers, 483 F.2d 37, 41 (CA5, 1973), cert. denied, 417 U.S. 908, 94 S. Ct. 2604, 41 L. Ed. 2d 212 (1974) (suggesting that a very reliable informant such as an FBI agent allows for less evidence on the source-of-knowledge prong) Of course, a prior record of 50 out of 100, while perhaps a good batting average, would be evidence of only questionable investigatory skill. The point here is that we have no description of this informant that can reassure us about his belief that criminality was afoot.",
"He is a paradigm of anonymity. 6 I treat this word somewhat delicately due to problems of characterization. See Rebell, The Undisclosed Informant and the Fourth Amendment: A Search for Meaningful Standards, 81 Yale L.J. 703, 719 & n. 82 (1972) 7 \"Unquestionably, verification of arrival time, dress, and gait reinforced the honesty of the informant he had not reported a made-up story. But if what Draper stands for is that the existence of the tenth and critical fact is made sufficiently probable to justify the issuance of a warrant by verifying nine other facts coming from the same source, I have my doubts about that case \"In the first place, the proposition is not that the tenth fact may be logically inferred from the other nine or that the tenth fact is usually found in conjunction with the other nine. No one would suggest that just anyone getting off the 10:30 train dressed as Draper was, with a brisk walk and carrying a zipper bag, should be arrested for carrying narcotics.",
"The thrust of Draper is not that the verified facts have independent significance with respect to proof of the tenth. The argument instead relates to the reliability of the source: because an informant is right about some things, he is more probably right about other facts, usually the critical, unverified facts.\" 393 U.S. at 426-27, 89 S.Ct. at 594, 21 L. Ed. 2d at 650 (White, J., concurring). 8 Harris dealt only with the informant-credibility prong of Aguilar ; it never considered what factors might satisfy the information-reliability prong since the tipster had personally observed and indeed purchased illicit whiskey. The portion of the Chief Justice's opinion asserting that the affiant officer's personal knowledge of a suspect is adequate to satisfy this former prong represented solely his views and those of Justices Black and Blackmun"
]
| https://www.courtlistener.com/api/rest/v3/opinions/341553/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Case 1:17-cr-00283-LAP Document 395 Filed 10/06/20 Page 1 of 1
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA
-against- No. 17-CR-283 (LAP) RICHARD DRAYTON, ORDER Defendant.
LORETTA A. PRESKA, UNITED STATES DISTRICT JUDGE:
In light of counsel’s letter (filed under seal to avoid
disclosing attorney-client information) responding to Mr.
Drayton’s letter filed on September 16, new counsel will be
appointed to represent Mr. Drayton. The Clerk of the Court
shall mail a copy of this order to Mr. Drayton.
SO ORDERED.
Dated: October 6, 2020 New York, New York
___________________________ LORETTA A. PRESKA, U.S.D.J. | 2020-10-06 | [
"Case 1:17-cr-00283-LAP Document 395 Filed 10/06/20 Page 1 of 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK UNITED STATES OF AMERICA -against- No. 17-CR-283 (LAP) RICHARD DRAYTON, ORDER Defendant. LORETTA A. PRESKA, UNITED STATES DISTRICT JUDGE: In light of counsel’s letter (filed under seal to avoid disclosing attorney-client information) responding to Mr. Drayton’s letter filed on September 16, new counsel will be appointed to represent Mr. Drayton. The Clerk of the Court shall mail a copy of this order to Mr. Drayton. SO ORDERED. Dated: October 6, 2020 New York, New York ___________________________ LORETTA A. PRESKA, U.S.D.J."
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/147906711/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Case 3:21-cv-01293-BGS Document 7 Filed 08/20/21 PageID.28 Page 1 of 3
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Raymundo Jude COLON, Case No.: 21-cv-01293-BGS 12 Plaintiff, ORDER GRANTING MOTION FOR 13 v. LEAVE TO PROCEED IN FORMA PAUPERIS 14 COMMISSIONER OF SOCIAL SECURITY, 15 [ECF No. 6] Defendant. 16 17 18 On July 19, 2021, Plaintiff Raymundo Jude Colon filed a complaint against the 19 Commissioner of Social Security, seeking judicial review of the Commissioner’s final 20 decision denying Plaintiff’s application for Social Security Disability Insurance and/or 21 Supplemental Security Income. (ECF No. 1.) Plaintiff consented to the disposition of the 22 case by Magistrate Judge Bernard G. Skomal pursuant to 28 U.S.C. § 636(c). (ECF No. 23 5.) Presently before the Court is Plaintiff’s Motion for Leave to Proceed In Forma 24 Pauperis (“IFP Motion”). (ECF No. 6.) 25 All parties instituting any civil action, suit, or proceeding in a district court of the 26 United States, except an application for a writ of habeas corpus, must pay a filing fee. 28 27 U.S.C. § 1915(a); see 28 U.S.C. § 1914(a) (requiring a party instituting a civil action to 28
1 21-cv-01293-BGS Case 3:21-cv-01293-BGS Document 7 Filed 08/20/21 PageID.29 Page 2 of 3
1 pay a filing fee of $350 as well as a $50 administrative fee). An action may proceed despite 2 a plaintiff’s failure to prepay the entire fee only if plaintiff is granted leave to proceed IFP 3 pursuant to 28 U.S.C. § 1915(a), which states: 4 [A]ny court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding . . . without 5 prepayment of fees or security therefor, by a person who submits an affidavit 6 that includes a statement of all assets such [person] possesses that the person is unable to pay such fees or give security therefor. 7 28 U.S.C. § 1915(a)(1). The determination of indigency falls within the district 8 court’s discretion. California Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), 9 reversed on other grounds by, 506 U.S. 194 (1993) (“Section 1915 typically requires the 10 reviewing court to exercise its sound discretion in determining whether the affiant has 11 satisfied the statute’s requirement of indigency.”). 12 A party need not “be absolutely destitute” to proceed IFP. Adkins v. E.I. DuPont de 13 Nemours & Co., 335 U.S. 331, 339 (1948). “Nonetheless, a plaintiff seeking IFP status 14 must allege poverty ‘with some particularity, definiteness, and certainty.’” Escobedo v. 15 Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (citing United States v. McQuade, 647 16 f.3D 938, 940 (9th Cir. 1981). “An affidavit in support of an IFP application is sufficient 17 where it alleges that the affiant cannot pay the court costs and still afford the necessitates 18 of life.” Id. “But, the same even-handed care must be employed to assure that federal 19 funds are not squandered to underwrite, at public expense, either frivolous claims or the 20 remonstrances of a suitor who is financially able, in whole or in part, to pull his own oar.” 21 Temple v. Ellerthorp, 586 F. Supp. 848, 850 (D. R.I.) 22 Based on the information provided in the application (ECF No. 6), the Court finds 23 that Plaintiff is unable to pay the required filing fee. See, e.g., Jefferson, 277 F.2d at 725 24 (“One need not be absolutely destitute to obtain [the] benefits of the in forma pauperis 25 statute.”); Escobedo v. Applebees, 787 F.3d 1226, 1235 (9th Cir. 2015) (noting “there is no 26 formula set forth by statute, regulation, or case law to determine when someone is poor 27 enough to earn IFP status,” but, “[w]hatever the standard, $350 is a lot of money to many 28
2 21-cv-01293-BGS Case 3:21-cv-01293-BGS Document 7 Filed 08/20/21 PageID.30 Page 3 of 3
1 millions of Americans”). Accordingly, the Court GRANTS Plaintiff’s Motion to Proceed 2 IFP (ECF No. 6) and ORDERS as follows: 3 1. The United States Marshal shall serve a copy of the Complaint filed on July 4 19, 2021 and an accompanying summons upon Defendant as directed by Plaintiff on U.S. 5 Marshal Form 285. All costs of service shall be advanced by the United States. 6 2. Plaintiff shall serve upon Defendant, or, if appearance has been entered by 7 counsel, upon Defendant’s counsel, a copy of every further pleading or document 8 submitted for consideration of the Court. Plaintiff shall include with the original paper to 9 be filed with the Clerk of Court a certificate stating the manner in which a true and correct 10 copy of any document was served on Defendant or Defendant’s counsel and the date of 11 service. 12 IT IS SO ORDERED. 13 Dated: August 20, 2021 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
3 21-cv-01293-BGS | 2021-08-20 | [
"Case 3:21-cv-01293-BGS Document 7 Filed 08/20/21 PageID.28 Page 1 of 3 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Raymundo Jude COLON, Case No. : 21-cv-01293-BGS 12 Plaintiff, ORDER GRANTING MOTION FOR 13 v. LEAVE TO PROCEED IN FORMA PAUPERIS 14 COMMISSIONER OF SOCIAL SECURITY, 15 [ECF No. 6] Defendant. 16 17 18 On July 19, 2021, Plaintiff Raymundo Jude Colon filed a complaint against the 19 Commissioner of Social Security, seeking judicial review of the Commissioner’s final 20 decision denying Plaintiff’s application for Social Security Disability Insurance and/or 21 Supplemental Security Income. (ECF No. 1.) Plaintiff consented to the disposition of the 22 case by Magistrate Judge Bernard G. Skomal pursuant to 28 U.S.C. § 636(c). (ECF No. 23 5.) Presently before the Court is Plaintiff’s Motion for Leave to Proceed In Forma 24 Pauperis (“IFP Motion”). (ECF No.",
"6.) 25 All parties instituting any civil action, suit, or proceeding in a district court of the 26 United States, except an application for a writ of habeas corpus, must pay a filing fee. 28 27 U.S.C. § 1915(a); see 28 U.S.C. § 1914(a) (requiring a party instituting a civil action to 28 1 21-cv-01293-BGS Case 3:21-cv-01293-BGS Document 7 Filed 08/20/21 PageID.29 Page 2 of 3 1 pay a filing fee of $350 as well as a $50 administrative fee). An action may proceed despite 2 a plaintiff’s failure to prepay the entire fee only if plaintiff is granted leave to proceed IFP 3 pursuant to 28 U.S.C. § 1915(a), which states: 4 [A]ny court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding . . .",
"without 5 prepayment of fees or security therefor, by a person who submits an affidavit 6 that includes a statement of all assets such [person] possesses that the person is unable to pay such fees or give security therefor. 7 28 U.S.C. § 1915(a)(1). The determination of indigency falls within the district 8 court’s discretion. California Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), 9 reversed on other grounds by, 506 U.S. 194 (1993) (“Section 1915 typically requires the 10 reviewing court to exercise its sound discretion in determining whether the affiant has 11 satisfied the statute’s requirement of indigency.”). 12 A party need not “be absolutely destitute” to proceed IFP. Adkins v. E.I. DuPont de 13 Nemours & Co., 335 U.S. 331, 339 (1948). “Nonetheless, a plaintiff seeking IFP status 14 must allege poverty ‘with some particularity, definiteness, and certainty.’” Escobedo v. 15 Applebees, 787 F.3d 1226, 1234 (9th Cir.",
"2015) (citing United States v. McQuade, 647 16 f.3D 938, 940 (9th Cir. 1981). “An affidavit in support of an IFP application is sufficient 17 where it alleges that the affiant cannot pay the court costs and still afford the necessitates 18 of life.” Id. “But, the same even-handed care must be employed to assure that federal 19 funds are not squandered to underwrite, at public expense, either frivolous claims or the 20 remonstrances of a suitor who is financially able, in whole or in part, to pull his own oar.” 21 Temple v. Ellerthorp, 586 F. Supp. 848, 850 (D. R.I.) 22 Based on the information provided in the application (ECF No. 6), the Court finds 23 that Plaintiff is unable to pay the required filing fee. See, e.g., Jefferson, 277 F.2d at 725 24 (“One need not be absolutely destitute to obtain [the] benefits of the in forma pauperis 25 statute.”); Escobedo v. Applebees, 787 F.3d 1226, 1235 (9th Cir. 2015) (noting “there is no 26 formula set forth by statute, regulation, or case law to determine when someone is poor 27 enough to earn IFP status,” but, “[w]hatever the standard, $350 is a lot of money to many 28 2 21-cv-01293-BGS Case 3:21-cv-01293-BGS Document 7 Filed 08/20/21 PageID.30 Page 3 of 3 1 millions of Americans”). Accordingly, the Court GRANTS Plaintiff’s Motion to Proceed 2 IFP (ECF No.",
"6) and ORDERS as follows: 3 1. The United States Marshal shall serve a copy of the Complaint filed on July 4 19, 2021 and an accompanying summons upon Defendant as directed by Plaintiff on U.S. 5 Marshal Form 285. All costs of service shall be advanced by the United States. 6 2. Plaintiff shall serve upon Defendant, or, if appearance has been entered by 7 counsel, upon Defendant’s counsel, a copy of every further pleading or document 8 submitted for consideration of the Court. Plaintiff shall include with the original paper to 9 be filed with the Clerk of Court a certificate stating the manner in which a true and correct 10 copy of any document was served on Defendant or Defendant’s counsel and the date of 11 service. 12 IT IS SO ORDERED. 13 Dated: August 20, 2021 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 21-cv-01293-BGS"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/178328417/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
EXHIBIT 31.2 SECTION , INC. I, Jonathan Hopp, certify that: 1. I have reviewed this quarterly report on Form 10-Q of JH Designs, Inc.; 2. Based on my knowledge, this quarterly report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this quarterly report; 3. Based on my knowledge, the financial statements, and other financial information included in this quarterly report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this quarterly report; 4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a–15(e) and 15d–15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a–15(f) and 15d–15(f)) for the registrant and have: (a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; (b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; (c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and (d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and 5. The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions): (a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and (b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting. Date: November 19, 2013 By: /s/ Jonathan Hopp Jonathan Hopp President and Chief Executive Officer (principal executive officer, principal accounting officer and principal financial officer) | [
"EXHIBIT 31.2 SECTION , INC. I, Jonathan Hopp, certify that: 1. I have reviewed this quarterly report on Form 10-Q of JH Designs, Inc.; 2. Based on my knowledge, this quarterly report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this quarterly report; 3.",
"Based on my knowledge, the financial statements, and other financial information included in this quarterly report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this quarterly report; 4. The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a–15(e) and 15d–15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a–15(f) and 15d–15(f)) for the registrant and have: (a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; (b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; (c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and (d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and 5.",
"The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions): (a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and (b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting. Date: November 19, 2013 By: /s/ Jonathan Hopp Jonathan Hopp President and Chief Executive Officer (principal executive officer, principal accounting officer and principal financial officer)"
]
| https://applica-public.s3-eu-west-1.amazonaws.com/contract-discovery/edgar.txt.xz | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
|
576 A.2d 118 (1990) STATE of Vermont v. Leon G. BERARD. No. 87-564. Supreme Court of Vermont. January 19, 1990. Motion for Reargument Denied May 8, 1990. *119 Jeffrey L. Amestoy, Atty. Gen., Montpelier, and Thomas J. Rushford, Asst. Atty. Gen., Waterbury, for plaintiff-appellee. Walter M. Morris, Jr., Defender Gen., William A. Nelson, Appellate Defender, and Jeffrey Dworkin, Prisoners Rights Office, Montpelier, for defendant-appellant. Before ALLEN, C.J., PECK and DOOLEY, JJ., and BARNEY, C.J. (Ret.) and SPRINGER, District Judge (Ret.), Specially Assigned. ALLEN, Chief Justice. Pursuant to V.R.A.P. 5(b), defendant brings this interlocutory appeal from the denial of his motion to suppress evidence seized during the random search of his prison cell. The certified question for review is whether the routine and random warrantless search of the defendant's cell, conducted without probable cause or any quantum of particularized suspicion, violates the defendant's rights under Chapter I, Article Eleven of the Vermont Constitution. We answer the certified question in the negative. Defendant, an inmate at the Chittenden County Correctional Center (Center), is presently serving a sentence for assault and robbery. At the time of the search, he was sharing a room in a less restrictive wing of the Center with three other inmates. The Department of Corrections requires the development of procedures for daily unannounced and irregularly timed searches. Accordingly, the Center has established procedures that require correctional officers to conduct two random and unannounced "shakedown" searches[1] of inmates' cells during each of the three daily shifts. Corrections officers conduct these searches routinely and randomly at somewhat less frequency than the mandated six searches per day. The searches do not require probable cause or any degree of particularized suspicion. In June of 1987, correctional officials at the Center noted the smell of marijuana smoke in the hallway of the unit where defendant's cell was located. In response, they stepped up the frequency of the routine, random searches. As part of this increased effort, defendant's room was searched. The trial court found that "[o]fficials had neither probable cause nor reasonable suspicion to believe that he or his roommates possessed contraband." Four officers conducted the search and found the marijuana under the radiator. Defendant was charged with possession of a regulated drug in violation of 18 V.S.A. § 4224(a). In a motion to suppress the marijuana seized, defendant argued that corrections officials conducted the search without probable cause and thereby violated Chapter I, Article Eleven of the Vermont Constitution. After a suppression hearing, the trial court denied defendant's motion, concluding that the search was reasonable in light of the legitimate and overwhelming governmental interests in maintaining security and promoting program goals. On appeal, defendant renews his argument that the search of his cell violated Chapter I, Article Eleven of the Vermont Constitution. In Hudson v. Palmer, 468 U.S. 517, 530, 104 S. Ct. 3194, 3202, 82 L. Ed. 2d 393 (1984), the United States Supreme Court held that a person incarcerated after conviction for a crime retains no privacy or possessory rights and that the constitutional prohibition against unreasonable searches simply does not apply in a prison cell. Defendant asks that the Court not follow the Hudson holding in its interpretation of Article Eleven. In order to accommodate the State's law enforcement needs and Article Eleven's privacy values, defendant urges the Court to adopt a warrant requirement with a relaxed probable cause standard, akin to that required of administrative warrants under the Fourth Amendment of the United States Constitution as established by the Supreme Court in *120 Camara v. Municipal Court, 387 U.S. 523, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967).
I. Chapter I, Article Eleven of the Vermont Constitution provides: That the people have a right to hold themselves, their houses, papers, and possessions, free from search or seizure; and therefore warrants, without oath or affirmation first made, affording sufficient foundation for them, and whereby by any officer or messenger may be commanded or required to search suspected places, or to seize any person or persons, his, her or their property, not particularly described, are contrary to that right, and ought not to be granted. The language of Article Eleven does not expressly limit its protection to "unreasonable" searches and seizures as does the Fourth Amendment to the United States Constitution. This Court, however, has consistently interpreted Article Eleven as importing the "reasonableness" criterion of the Fourth Amendment. State v. Jewett, 148 Vt. 324, 328, 532 A.2d 958, 960 (1986); State v. Badger, 141 Vt. 430, 454, 450 A.2d 336, 350 (1982). The parallels between Article Eleven and the Fourth Amendment have raised the question of when and how the state provision differs from the federal. Both the self-incrimination and search and seizure provisions of the Vermont Constitution contain wording substantially different from the parallel clauses in the Federal Charter. Thus, it is possible that these clauses could be construed differently from somewhat similar provisions in the Federal Constitution or they may be given the same interpretation even though the language differs. State v. Jewett, 146 Vt. 221, 226-27, 500 A.2d 233, 237 (1985); see State v. Wood, 148 Vt. 479, 481-82, 536 A.2d 902, 903-04 (1987). In Hudson v. Palmer, the prisoner contended that the State violated his Fourth Amendment rights by intentionally destroying his noncontraband personal property during a random cell search. Concerned that random, warrantless cell searches could be used to harass inmates, the Court of Appeals held that the shakedown of a single prisoner's property is permissible only if "done pursuant to an established program of conducting random searches of single cells or groups of cells reasonably designed to deter or discover the possession of contraband" or upon reasonable belief that the particular prisoner possessed contraband. 697 F.2d 1220, 1224 (4th Cir.1983). The United States Supreme Court rejected that solution and concluded that "prisoners have no legitimate expectation of privacy and that the Fourth Amendment's prohibition on unreasonable searches does not apply in prison cells." 468 U.S. at 530, 104 S.Ct. at 3202. Therefore, no prisoner could challenge the reasonableness of a particular search, even if personal, noncontraband property were involved. The Supreme Court based this "bright line" rule upon implicit, fixed assumptions about the nature of prison life and prison administration that override the facts of particular cases and remove from the courts the critical job of reviewing the facts. Hudson v. Palmer conclusively presumes that prisoners have no legitimate expectation of privacy in their individual cells that would entitle them to Fourth Amendment protection, and thereby necessarily sanctions any official conduct whatsoever in the name of "legitimate institutional interests." 468 U.S. at 549, 104 S.Ct. at 3212 (Stevens, J., dissenting). This Court has stated that "[i]n drafting Article Eleven, the framers of the Declaration of Rights vested responsibility and authority in the judiciary to review and restrain overreaching searches and seizures by the government." Wood, 148 Vt. at 487, 536 A.2d at 907. Thus, we seek to give effect to the design of Article Eleven and decline to follow parallel federal law, such as Hudson v. Palmer, which tends to derogate the central role of the judiciary in Article Eleven jurisprudence. Id. at 489, 536 A.2d at 908. Whatever the evolving federal standard, when interpreting Article Eleven, this Court will "abandon the warrant and probable-cause requirements, which constitute the standard of reason-ableness *121 for a government search that the Framers established, `[o]nly in those exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable. . . .'" O'Connor v. Ortega, 480 U.S. 709, 741, 107 S. Ct. 1492, 1511, 94 L. Ed. 2d 714 (1987) (Blackmun, J., dissenting and quoting New Jersey v. T.L.O., 469 U.S. 325, 351, 105 S. Ct. 733, 748, 83 L. Ed. 2d 720 (1985) (opinion concurring in judgment)); see State v. Record, 150 Vt. 84, 97, 548 A.2d 422, 430 (1988) (Hill, J., dissenting). In O'Connor, Justice Blackmun suggested a court should invoke a balancing test as the measure of Fourth Amendment values only when the warrant and probable cause requirements do not present a practical alternative and explained: Through the balancing test, [courts] then try to identify a standard of reasonableness, other than the traditional one, suitable for the circumstances. The warrant and probable-cause requirements, however, continue to serve as a model in the formulation of the new standard. 480 U.S. at 744 n. 8, 107 S. Ct. at 1512 n. 8. We conclude that the same rule should govern our interpretation of Article Eleven. While this Court has not explicitly announced a "special needs" standard in previous cases, we have noted the extraordinary factors underlying the relaxation of the traditional Fourth Amendment and Article Eleven tests. State v. Record, 150 Vt. at 89, 548 A.2d at 425-26 (relating to DUI roadblock stops under Article Eleven); State v. Martin, 145 Vt. 562, 568-69, 496 A.2d 442, 447 (1985) (relating to DUI roadblock stops under the Fourth Amendment). The interest of the state in the safe and orderly operation of Vermont's prisons is great and the expectation of privacy considerably diminished at best. Still, the maintenance of a "special needs" standard focuses attention on the nature and extent of those needs and allows the courts, as the traditional protectors of Fourth Amendment rights, to pursue the necessary balancing test in a manner calculated to interfere least with preservation of those rights. In this manner we uphold application of Article Eleven to the rights of a prison inmate, as many federal courts so concluded under analogous federal constitutional principles prior to Hudson v. Palmer. See, e.g., 468 U.S. at 549 n. 19, 104 S. Ct. at 3212 n. 19 (Stevens, J., concurring in part and dissenting in part); Lyon v. Farrier, 727 F.2d 766, 769 (8th Cir.), cert. denied, 469 U.S. 839, 105 S. Ct. 140, 83 L. Ed. 2d 79 (1984); ABA Standards for Criminal Justice 23-6.10 Commentary (2d ed. 1986); Giannelli and Gilligan, Prison Searches and Seizures: "Locking" the Fourth Amendment Out of Correctional Facilities, 62 Va.L.Rev. 1045 (1976).
II. Turning to the present case, we first conclude that the State has carried its burden of demonstrating as a prerequisite to a random search of an inmate's cell[2] that the prison environment presents special needs which "make the warrant and probable-cause requirement impracticable." New Jersey v. T. L. O., 469 U.S. at 351, 105 S. Ct. at 748 (Blackmun, J., concurring in judgment). Our conclusion is based in part on the inexorable nature of prison governance in general and in part on the particular circumstances of the facts found by the trial court. See Bell v. Wolfish, 441 U.S. 520, 555-57, 99 S. Ct. 1861, 1882-83, 60 L. Ed. 2d 447 (1979); Olson v. Klecker, 642 F.2d 1115 (8th Cir.1981). Though we do not adopt its rationale, we share the conclusions of the majority in Hudson that if the prisoners' right to privacy prevented random prison cell *122 searches, it would be impossible to accomplish the objectives of guarding against drugs and other contraband, like illicit weapons, thwarting escape, and maintaining a sanitary and healthful environment. See Hudson v. Palmer, 468 U.S. at 527, 104 S. Ct. at 3200. Defendant concedes the need for random cell searches and limits his argument on appeal to the necessity of an administrative search warrant, even if issued on terms less stringent than those for obtaining a traditional warrant. The trial court also made findings specific to the Center that buttress the general factors upon which we base our conclusion that prison authorities have "special needs" for a random search procedure without the showing of probable cause and a warrant. The trial court found: 3. Possession of contraband by inmates is an ongoing concern among correctional officials. Illegal drugs occasionally make their way into the Center; in fact, from time to time, the distinctive odor of marijuana smoke can be detected in the hallways. The trial court also properly noted that 28 V.S.A. § 102(c)(6) obligates the commissioner of corrections "[t]o maintain security, safety and order at the correctional facilities." It added that "[i]t is difficult to see how the department could fulfill its primary objective of the `disciplined preparation of offenders for their responsible roles in the open community,' 28 V.S.A. § 1(b), if it did not have an effective procedure for detecting contraband."
III.
A. Having determined that a balancing test could properly be substituted for the probable cause and search warrant requirement under Article Eleven, we must consider the criteria that should be applied in balancing the State's "paramount interest in institutional security" against the inmates' residuum of privacy rights. As the United States Supreme Court noted in Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974): [T]hough his rights may be diminished by the needs and exigencies of the institutional environment, a prisoner is not wholly stripped of constitutional protections when he is imprisoned for crime. There is no iron curtain drawn between the Constitution and the prisons of this country. Id. at 555-56, 94 S. Ct. at 2974. The following factors are central to the analysis of the random search of a prison cell: (1) the establishment of clear, objective guidelines by a high-level administrative official; (2) the requirement that those guidelines be followed by implementing officials; and (3) no systematic singling out of inmates in the absence of probable cause or articulable suspicion.[3] In adopting the requirement of clear, objective guidelines for random warrantless cell searches, we share the concern of the Court of Appeals in Palmer v. Hudson, that "individual searches may provide an increased opportunity for prison officials to abuse [their] power and utilize searches as a means of harassment," but see the requirement that searches be conducted pursuant to an established program as according "some protection from abusive searches." 697 F.2d at 1224. We do not agree with the majority in Hudson that "[a] requirement that even random searches be conducted pursuant to an established plan would seriously undermine the effectiveness of this weapon." 468 U.S. at 529, 104 S.Ct. at 3201. A plan need not provide the sort of schedule that would allow inmates to anticipate and thereby thwart a search for contraband. If a plan is established and followed, both inmates and the state will benefit from an *123 articulated standard requiring the limitation of random searches to the purposes for which they are conducted and not for the purpose of harassment or interference with the residuum of privacy retained by prison inmates.[4] Defendant warns that the existence of established guidelines will invite over-reliance by state personnel and that the courts will be lulled into considering the guidelines as the functional equivalent of a warrant. We have no such illusions. Guidelines, properly implemented and consistently followed, serve a worthy instructional purpose and may constrain prison officials from unduly intrusive conduct. However, this Court has never measured Article Eleven rights by the intensity of government's self-proclaimed resolve.[5] In a judicial context, the existence of guidelines will serve as a basis to determine if prison policy in practice generally matches its theory, or whether corrections officials consistently and purposefully exercise prison cell searches for purposes beyond "institutional security and internal order." Hudson, 468 U.S. at 528, 104 S. Ct. at 3201. Far from objecting to the imposition of a plan requirement, the State argues on appeal that the cell search was conducted pursuant to guidelines consistent with Martin. While defendant urges that we impose a warrant requirement under a relaxed standard of probable cause, he did not at trial specifically argue the inadequacy of the guidelines in place during the search presently in issue. Those guidelines are not ideal. However, the present record does not indicate that defendant was targeted for harassment or that his noncontraband property was seized or destroyed. The guidelines, therefore, formed an adequate basis to conduct the search. Nor does defendant contend that the search was arbitrarily aimed at him, in violation of the third criterion announced today.[6] The trial court findings clearly indicate that defendant's cell was searched as a result of the application of broad policy directives: 5. Procedures for shakedown searches of inmates' rooms are in effect at the Chittenden County Correctional Center pursuant to a procedural directive dated March 3, 1987. Also, correctional officers have been instructed to conduct two random, unannounced searches of inmates' rooms during each of the three daily shifts. In actuality, however, the number of searches is less; during the third shift, for example, only about five rooms per week are searched. . . . . 7. In early June, 1987, correctional officials in the House Unit noticed the smell of marijuana smoke in the hallway. As a result, they increased the frequency of the routine, random room searches. For example, during the third shift, four such searches were conducted one day and three on another.
*124 8. On June 5, the defendant's room was searched as part of this increased effort during third shift. Officials had neither probable cause nor reasonable suspicion to believe that he or his roommates possessed contraband. Defendant does not suggest that he was a particular target or that the findings supporting the conclusion that the search was truly random were erroneous.
B. Defendant's main contention is that this Court should retain the requirement of a warrant "while redefining, and substantially easing, the standard upon which such a warrant may issue." Defendant cites Camara v. Municipal Court, 387 U.S. 523, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967), in which the United States Supreme Court established the requirement of a warrant based on generalized probable cause for administrative inspections for housing code violations, and cases applying a similar rationale to fire inspections (See v. City of Seattle, 387 U.S. 541, 87 S. Ct. 1737, 18 L. Ed. 2d 943 (1967)) and OSHA inspections (Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S. Ct. 1816, 56 L. Ed. 2d 305 (1978)). Though defendant's brief stresses the practicality and fairness of the Camara-style warrant requirement for random cell searches, his main point on appeal is simply that a random cell search must be preceded by probable cause and a search warrant that Article Eleven does not allow less. We conclude today that the State does not have an unfettered right to invade the privacy of prison inmates and, in conducting random searches, must adhere to the basic safeguards we have announced. Defendant has not demonstrated that showing probable cause and obtaining a warrant, even under a reduced standard of probable cause, is prudent or necessary. Random searches, because of the uncertainty they involve, are one of the most effective weapons against the increasing presence of drugs, weapons and other contraband in our prisons. Were the Court to require a warrant founded upon generalized probable cause, the benefits of uncertainty would decrease, and the effectiveness of the prison cell search would be seriously undermined. See Hudson, 468 U.S. at 529, 104 S. Ct. at 3201.
C. As the State has demonstrated the special need for random searches of prison cells, we must proceed to balance the State's interest in effective searches against that of an inmate in avoiding unreasonably invasive or arbitrary treatment. The reasonableness of a warrantless and random search of a prisoner's cell hinges on a balancing of the governmental interest in the security of its prisons against the privacy and possessory interests of the prisoner. The State has established that the Center conducted the search pursuant to a written plan, that the plan was not unreasonable, and that it was adhered to during the search. Defendant has not demonstrated any particular pattern of arbitrary conduct or any particularized unfairness in the conduct of the search in question. Like the Supreme Court in Hudson v. Palmer, 468 U.S. at 527, 104 S. Ct. at 3201, though on independent and different grounds under our Constitution, "[w]e strike the balance in favor of institutional security" and hold that the routine, random and warrantless search of a prisoner's cell in the case before us was reasonable and not in violation of Article Eleven. The certified question is answered in the negative. NOTES [1] A witness for the State testified at the suppression hearing that the routine, random searches consisted of a strip search of the resident inmates, followed by a search of the cell with the resident inmates present. [2] The trial court did not consider the issue of "special needs" as a threshold question, but directly considered the reasonableness of the search under a "balancing" analysis. We reiterate that under Article Eleven, until a determination of special needs is made, or some other recognized exception applies, we will presume the necessity of probable cause and a search warrant. Though we differ with the trial court's analysis, and thus decide this case on different grounds, the trial judge's findings are adequate to support our conclusion that the "special needs" test has been met. [3] In Record, 150 Vt. at 87, 548 A.2d at 424, this Court identified the six so-called Martin factors, 145 Vt. at 571, 496 A.2d at 448, as essential to enable a warrantless stop at a DUI roadblock to pass muster. The special needs of the state in a DUI roadblock differ significantly from those needs in conducting a random search of a prison cell, and a driver is inherently entitled to a higher expectation of privacy than a prison inmate. Therefore, the six Martin factors cannot be applied en mass to a random prison cell search. [4] We share the concerns expressed by Justice Stevens in his dissent to Hudson v. Palmer that "[d]epriving inmates of any residuum of privacy or possessory rights is in fact plainly contrary to institutional goals." 468 U.S. at 552, 104 S.Ct. at 3214 (emphasis in original). [5] With a caveat, we agree with the observation that "[w]ritten regulations, specifying the frequency and intensity of the search, would limit the discretion of the authorizing individual." Giannelli and Gilligan, 62 Va.L.Rev. at 1084. It is clear, however, that not all agencies follow their own regulations. Making the adoption of regulations mandatory, with no opportunity for independent review of their due observance, is an empty exercise. The views we express today emphasize the instructional and hortatory value of regulations, but do not rely on their adoption as a safeguard against their being violated or ignored. [6] There is an apparent contradiction in the relationship of the element of randomness to the protection against arbitrariness that is central both to Martin and to the three guidelines we announce today in connection with prison cell searches. In the context of a roadside DUI search, arbitrary selection must be ruled out by the regularity of the selection procedure, which must be guided by a preestablished protocol (e.g., to stop every car, every second car, tenth car, or the like). There can be no selection left to the arbitrary discretion of the police. In the context of a prison cell search, however, randomness is the keynote to an effective procedure, and since the prison population is a relatively fixed universe (in contrast to the vehicles stopped at a roadblock), random selection for searching on any particular date does not amount to arbitrary selection. | 10-30-2013 | [
"576 A.2d 118 (1990) STATE of Vermont v. Leon G. BERARD. No. 87-564. Supreme Court of Vermont. January 19, 1990. Motion for Reargument Denied May 8, 1990. *119 Jeffrey L. Amestoy, Atty. Gen., Montpelier, and Thomas J. Rushford, Asst. Atty. Gen., Waterbury, for plaintiff-appellee. Walter M. Morris, Jr., Defender Gen., William A. Nelson, Appellate Defender, and Jeffrey Dworkin, Prisoners Rights Office, Montpelier, for defendant-appellant. Before ALLEN, C.J., PECK and DOOLEY, JJ., and BARNEY, C.J. (Ret.) and SPRINGER, District Judge (Ret. ), Specially Assigned. ALLEN, Chief Justice. Pursuant to V.R.A.P. 5(b), defendant brings this interlocutory appeal from the denial of his motion to suppress evidence seized during the random search of his prison cell. The certified question for review is whether the routine and random warrantless search of the defendant's cell, conducted without probable cause or any quantum of particularized suspicion, violates the defendant's rights under Chapter I, Article Eleven of the Vermont Constitution. We answer the certified question in the negative. Defendant, an inmate at the Chittenden County Correctional Center (Center), is presently serving a sentence for assault and robbery.",
"At the time of the search, he was sharing a room in a less restrictive wing of the Center with three other inmates. The Department of Corrections requires the development of procedures for daily unannounced and irregularly timed searches. Accordingly, the Center has established procedures that require correctional officers to conduct two random and unannounced \"shakedown\" searches[1] of inmates' cells during each of the three daily shifts. Corrections officers conduct these searches routinely and randomly at somewhat less frequency than the mandated six searches per day. The searches do not require probable cause or any degree of particularized suspicion. In June of 1987, correctional officials at the Center noted the smell of marijuana smoke in the hallway of the unit where defendant's cell was located.",
"In response, they stepped up the frequency of the routine, random searches. As part of this increased effort, defendant's room was searched. The trial court found that \"[o]fficials had neither probable cause nor reasonable suspicion to believe that he or his roommates possessed contraband.\" Four officers conducted the search and found the marijuana under the radiator. Defendant was charged with possession of a regulated drug in violation of 18 V.S.A. § 4224(a). In a motion to suppress the marijuana seized, defendant argued that corrections officials conducted the search without probable cause and thereby violated Chapter I, Article Eleven of the Vermont Constitution. After a suppression hearing, the trial court denied defendant's motion, concluding that the search was reasonable in light of the legitimate and overwhelming governmental interests in maintaining security and promoting program goals.",
"On appeal, defendant renews his argument that the search of his cell violated Chapter I, Article Eleven of the Vermont Constitution. In Hudson v. Palmer, 468 U.S. 517, 530, 104 S. Ct. 3194, 3202, 82 L. Ed. 2d 393 (1984), the United States Supreme Court held that a person incarcerated after conviction for a crime retains no privacy or possessory rights and that the constitutional prohibition against unreasonable searches simply does not apply in a prison cell. Defendant asks that the Court not follow the Hudson holding in its interpretation of Article Eleven. In order to accommodate the State's law enforcement needs and Article Eleven's privacy values, defendant urges the Court to adopt a warrant requirement with a relaxed probable cause standard, akin to that required of administrative warrants under the Fourth Amendment of the United States Constitution as established by the Supreme Court in *120 Camara v. Municipal Court, 387 U.S. 523, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967). I.",
"Chapter I, Article Eleven of the Vermont Constitution provides: That the people have a right to hold themselves, their houses, papers, and possessions, free from search or seizure; and therefore warrants, without oath or affirmation first made, affording sufficient foundation for them, and whereby by any officer or messenger may be commanded or required to search suspected places, or to seize any person or persons, his, her or their property, not particularly described, are contrary to that right, and ought not to be granted. The language of Article Eleven does not expressly limit its protection to \"unreasonable\" searches and seizures as does the Fourth Amendment to the United States Constitution. This Court, however, has consistently interpreted Article Eleven as importing the \"reasonableness\" criterion of the Fourth Amendment. State v. Jewett, 148 Vt. 324, 328, 532 A.2d 958, 960 (1986); State v. Badger, 141 Vt. 430, 454, 450 A.2d 336, 350 (1982).",
"The parallels between Article Eleven and the Fourth Amendment have raised the question of when and how the state provision differs from the federal. Both the self-incrimination and search and seizure provisions of the Vermont Constitution contain wording substantially different from the parallel clauses in the Federal Charter. Thus, it is possible that these clauses could be construed differently from somewhat similar provisions in the Federal Constitution or they may be given the same interpretation even though the language differs. State v. Jewett, 146 Vt. 221, 226-27, 500 A.2d 233, 237 (1985); see State v. Wood, 148 Vt. 479, 481-82, 536 A.2d 902, 903-04 (1987). In Hudson v. Palmer, the prisoner contended that the State violated his Fourth Amendment rights by intentionally destroying his noncontraband personal property during a random cell search. Concerned that random, warrantless cell searches could be used to harass inmates, the Court of Appeals held that the shakedown of a single prisoner's property is permissible only if \"done pursuant to an established program of conducting random searches of single cells or groups of cells reasonably designed to deter or discover the possession of contraband\" or upon reasonable belief that the particular prisoner possessed contraband. 697 F.2d 1220, 1224 (4th Cir.1983).",
"The United States Supreme Court rejected that solution and concluded that \"prisoners have no legitimate expectation of privacy and that the Fourth Amendment's prohibition on unreasonable searches does not apply in prison cells.\" 468 U.S. at 530, 104 S.Ct. at 3202. Therefore, no prisoner could challenge the reasonableness of a particular search, even if personal, noncontraband property were involved. The Supreme Court based this \"bright line\" rule upon implicit, fixed assumptions about the nature of prison life and prison administration that override the facts of particular cases and remove from the courts the critical job of reviewing the facts. Hudson v. Palmer conclusively presumes that prisoners have no legitimate expectation of privacy in their individual cells that would entitle them to Fourth Amendment protection, and thereby necessarily sanctions any official conduct whatsoever in the name of \"legitimate institutional interests.\" 468 U.S. at 549, 104 S.Ct. at 3212 (Stevens, J., dissenting).",
"This Court has stated that \"[i]n drafting Article Eleven, the framers of the Declaration of Rights vested responsibility and authority in the judiciary to review and restrain overreaching searches and seizures by the government.\" Wood, 148 Vt. at 487, 536 A.2d at 907. Thus, we seek to give effect to the design of Article Eleven and decline to follow parallel federal law, such as Hudson v. Palmer, which tends to derogate the central role of the judiciary in Article Eleven jurisprudence. Id. at 489, 536 A.2d at 908. Whatever the evolving federal standard, when interpreting Article Eleven, this Court will \"abandon the warrant and probable-cause requirements, which constitute the standard of reason-ableness *121 for a government search that the Framers established, `[o]nly in those exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable. . . .'\"",
"O'Connor v. Ortega, 480 U.S. 709, 741, 107 S. Ct. 1492, 1511, 94 L. Ed. 2d 714 (1987) (Blackmun, J., dissenting and quoting New Jersey v. T.L.O., 469 U.S. 325, 351, 105 S. Ct. 733, 748, 83 L. Ed. 2d 720 (1985) (opinion concurring in judgment)); see State v. Record, 150 Vt. 84, 97, 548 A.2d 422, 430 (1988) (Hill, J., dissenting). In O'Connor, Justice Blackmun suggested a court should invoke a balancing test as the measure of Fourth Amendment values only when the warrant and probable cause requirements do not present a practical alternative and explained: Through the balancing test, [courts] then try to identify a standard of reasonableness, other than the traditional one, suitable for the circumstances. The warrant and probable-cause requirements, however, continue to serve as a model in the formulation of the new standard. 480 U.S. at 744 n. 8, 107 S. Ct. at 1512 n. 8.",
"We conclude that the same rule should govern our interpretation of Article Eleven. While this Court has not explicitly announced a \"special needs\" standard in previous cases, we have noted the extraordinary factors underlying the relaxation of the traditional Fourth Amendment and Article Eleven tests. State v. Record, 150 Vt. at 89, 548 A.2d at 425-26 (relating to DUI roadblock stops under Article Eleven); State v. Martin, 145 Vt. 562, 568-69, 496 A.2d 442, 447 (1985) (relating to DUI roadblock stops under the Fourth Amendment).",
"The interest of the state in the safe and orderly operation of Vermont's prisons is great and the expectation of privacy considerably diminished at best. Still, the maintenance of a \"special needs\" standard focuses attention on the nature and extent of those needs and allows the courts, as the traditional protectors of Fourth Amendment rights, to pursue the necessary balancing test in a manner calculated to interfere least with preservation of those rights. In this manner we uphold application of Article Eleven to the rights of a prison inmate, as many federal courts so concluded under analogous federal constitutional principles prior to Hudson v. Palmer. See, e.g., 468 U.S. at 549 n. 19, 104 S. Ct. at 3212 n. 19 (Stevens, J., concurring in part and dissenting in part); Lyon v. Farrier, 727 F.2d 766, 769 (8th Cir. ), cert. denied, 469 U.S. 839, 105 S. Ct. 140, 83 L. Ed.",
"2d 79 (1984); ABA Standards for Criminal Justice 23-6.10 Commentary (2d ed. 1986); Giannelli and Gilligan, Prison Searches and Seizures: \"Locking\" the Fourth Amendment Out of Correctional Facilities, 62 Va.L.Rev. 1045 (1976). II. Turning to the present case, we first conclude that the State has carried its burden of demonstrating as a prerequisite to a random search of an inmate's cell[2] that the prison environment presents special needs which \"make the warrant and probable-cause requirement impracticable.\" New Jersey v. T. L. O., 469 U.S. at 351, 105 S. Ct. at 748 (Blackmun, J., concurring in judgment). Our conclusion is based in part on the inexorable nature of prison governance in general and in part on the particular circumstances of the facts found by the trial court.",
"See Bell v. Wolfish, 441 U.S. 520, 555-57, 99 S. Ct. 1861, 1882-83, 60 L. Ed. 2d 447 (1979); Olson v. Klecker, 642 F.2d 1115 (8th Cir.1981). Though we do not adopt its rationale, we share the conclusions of the majority in Hudson that if the prisoners' right to privacy prevented random prison cell *122 searches, it would be impossible to accomplish the objectives of guarding against drugs and other contraband, like illicit weapons, thwarting escape, and maintaining a sanitary and healthful environment.",
"See Hudson v. Palmer, 468 U.S. at 527, 104 S. Ct. at 3200. Defendant concedes the need for random cell searches and limits his argument on appeal to the necessity of an administrative search warrant, even if issued on terms less stringent than those for obtaining a traditional warrant. The trial court also made findings specific to the Center that buttress the general factors upon which we base our conclusion that prison authorities have \"special needs\" for a random search procedure without the showing of probable cause and a warrant. The trial court found: 3. Possession of contraband by inmates is an ongoing concern among correctional officials. Illegal drugs occasionally make their way into the Center; in fact, from time to time, the distinctive odor of marijuana smoke can be detected in the hallways. The trial court also properly noted that 28 V.S.A. § 102(c)(6) obligates the commissioner of corrections \"[t]o maintain security, safety and order at the correctional facilities.\" It added that \"[i]t is difficult to see how the department could fulfill its primary objective of the `disciplined preparation of offenders for their responsible roles in the open community,' 28 V.S.A.",
"§ 1(b), if it did not have an effective procedure for detecting contraband.\" III. A. Having determined that a balancing test could properly be substituted for the probable cause and search warrant requirement under Article Eleven, we must consider the criteria that should be applied in balancing the State's \"paramount interest in institutional security\" against the inmates' residuum of privacy rights. As the United States Supreme Court noted in Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974): [T]hough his rights may be diminished by the needs and exigencies of the institutional environment, a prisoner is not wholly stripped of constitutional protections when he is imprisoned for crime. There is no iron curtain drawn between the Constitution and the prisons of this country.",
"Id. at 555-56, 94 S. Ct. at 2974. The following factors are central to the analysis of the random search of a prison cell: (1) the establishment of clear, objective guidelines by a high-level administrative official; (2) the requirement that those guidelines be followed by implementing officials; and (3) no systematic singling out of inmates in the absence of probable cause or articulable suspicion. [3] In adopting the requirement of clear, objective guidelines for random warrantless cell searches, we share the concern of the Court of Appeals in Palmer v. Hudson, that \"individual searches may provide an increased opportunity for prison officials to abuse [their] power and utilize searches as a means of harassment,\" but see the requirement that searches be conducted pursuant to an established program as according \"some protection from abusive searches.\" 697 F.2d at 1224. We do not agree with the majority in Hudson that \"[a] requirement that even random searches be conducted pursuant to an established plan would seriously undermine the effectiveness of this weapon.\"",
"468 U.S. at 529, 104 S.Ct. at 3201. A plan need not provide the sort of schedule that would allow inmates to anticipate and thereby thwart a search for contraband. If a plan is established and followed, both inmates and the state will benefit from an *123 articulated standard requiring the limitation of random searches to the purposes for which they are conducted and not for the purpose of harassment or interference with the residuum of privacy retained by prison inmates.",
"[4] Defendant warns that the existence of established guidelines will invite over-reliance by state personnel and that the courts will be lulled into considering the guidelines as the functional equivalent of a warrant. We have no such illusions. Guidelines, properly implemented and consistently followed, serve a worthy instructional purpose and may constrain prison officials from unduly intrusive conduct. However, this Court has never measured Article Eleven rights by the intensity of government's self-proclaimed resolve. [5] In a judicial context, the existence of guidelines will serve as a basis to determine if prison policy in practice generally matches its theory, or whether corrections officials consistently and purposefully exercise prison cell searches for purposes beyond \"institutional security and internal order.\" Hudson, 468 U.S. at 528, 104 S. Ct. at 3201. Far from objecting to the imposition of a plan requirement, the State argues on appeal that the cell search was conducted pursuant to guidelines consistent with Martin.",
"While defendant urges that we impose a warrant requirement under a relaxed standard of probable cause, he did not at trial specifically argue the inadequacy of the guidelines in place during the search presently in issue. Those guidelines are not ideal. However, the present record does not indicate that defendant was targeted for harassment or that his noncontraband property was seized or destroyed. The guidelines, therefore, formed an adequate basis to conduct the search. Nor does defendant contend that the search was arbitrarily aimed at him, in violation of the third criterion announced today. [6] The trial court findings clearly indicate that defendant's cell was searched as a result of the application of broad policy directives: 5. Procedures for shakedown searches of inmates' rooms are in effect at the Chittenden County Correctional Center pursuant to a procedural directive dated March 3, 1987. Also, correctional officers have been instructed to conduct two random, unannounced searches of inmates' rooms during each of the three daily shifts. In actuality, however, the number of searches is less; during the third shift, for example, only about five rooms per week are searched. .",
". . . 7. In early June, 1987, correctional officials in the House Unit noticed the smell of marijuana smoke in the hallway. As a result, they increased the frequency of the routine, random room searches. For example, during the third shift, four such searches were conducted one day and three on another. *124 8. On June 5, the defendant's room was searched as part of this increased effort during third shift. Officials had neither probable cause nor reasonable suspicion to believe that he or his roommates possessed contraband. Defendant does not suggest that he was a particular target or that the findings supporting the conclusion that the search was truly random were erroneous. B. Defendant's main contention is that this Court should retain the requirement of a warrant \"while redefining, and substantially easing, the standard upon which such a warrant may issue.\" Defendant cites Camara v. Municipal Court, 387 U.S. 523, 87 S. Ct. 1727, 18 L. Ed.",
"2d 930 (1967), in which the United States Supreme Court established the requirement of a warrant based on generalized probable cause for administrative inspections for housing code violations, and cases applying a similar rationale to fire inspections (See v. City of Seattle, 387 U.S. 541, 87 S. Ct. 1737, 18 L. Ed. 2d 943 (1967)) and OSHA inspections (Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S. Ct. 1816, 56 L. Ed. 2d 305 (1978)).",
"Though defendant's brief stresses the practicality and fairness of the Camara-style warrant requirement for random cell searches, his main point on appeal is simply that a random cell search must be preceded by probable cause and a search warrant that Article Eleven does not allow less. We conclude today that the State does not have an unfettered right to invade the privacy of prison inmates and, in conducting random searches, must adhere to the basic safeguards we have announced. Defendant has not demonstrated that showing probable cause and obtaining a warrant, even under a reduced standard of probable cause, is prudent or necessary. Random searches, because of the uncertainty they involve, are one of the most effective weapons against the increasing presence of drugs, weapons and other contraband in our prisons.",
"Were the Court to require a warrant founded upon generalized probable cause, the benefits of uncertainty would decrease, and the effectiveness of the prison cell search would be seriously undermined. See Hudson, 468 U.S. at 529, 104 S. Ct. at 3201. C. As the State has demonstrated the special need for random searches of prison cells, we must proceed to balance the State's interest in effective searches against that of an inmate in avoiding unreasonably invasive or arbitrary treatment. The reasonableness of a warrantless and random search of a prisoner's cell hinges on a balancing of the governmental interest in the security of its prisons against the privacy and possessory interests of the prisoner. The State has established that the Center conducted the search pursuant to a written plan, that the plan was not unreasonable, and that it was adhered to during the search. Defendant has not demonstrated any particular pattern of arbitrary conduct or any particularized unfairness in the conduct of the search in question. Like the Supreme Court in Hudson v. Palmer, 468 U.S. at 527, 104 S. Ct. at 3201, though on independent and different grounds under our Constitution, \"[w]e strike the balance in favor of institutional security\" and hold that the routine, random and warrantless search of a prisoner's cell in the case before us was reasonable and not in violation of Article Eleven.",
"The certified question is answered in the negative. NOTES [1] A witness for the State testified at the suppression hearing that the routine, random searches consisted of a strip search of the resident inmates, followed by a search of the cell with the resident inmates present. [2] The trial court did not consider the issue of \"special needs\" as a threshold question, but directly considered the reasonableness of the search under a \"balancing\" analysis. We reiterate that under Article Eleven, until a determination of special needs is made, or some other recognized exception applies, we will presume the necessity of probable cause and a search warrant.",
"Though we differ with the trial court's analysis, and thus decide this case on different grounds, the trial judge's findings are adequate to support our conclusion that the \"special needs\" test has been met. [3] In Record, 150 Vt. at 87, 548 A.2d at 424, this Court identified the six so-called Martin factors, 145 Vt. at 571, 496 A.2d at 448, as essential to enable a warrantless stop at a DUI roadblock to pass muster. The special needs of the state in a DUI roadblock differ significantly from those needs in conducting a random search of a prison cell, and a driver is inherently entitled to a higher expectation of privacy than a prison inmate. Therefore, the six Martin factors cannot be applied en mass to a random prison cell search.",
"[4] We share the concerns expressed by Justice Stevens in his dissent to Hudson v. Palmer that \"[d]epriving inmates of any residuum of privacy or possessory rights is in fact plainly contrary to institutional goals.\" 468 U.S. at 552, 104 S.Ct. at 3214 (emphasis in original). [5] With a caveat, we agree with the observation that \"[w]ritten regulations, specifying the frequency and intensity of the search, would limit the discretion of the authorizing individual.\" Giannelli and Gilligan, 62 Va.L.Rev. at 1084. It is clear, however, that not all agencies follow their own regulations. Making the adoption of regulations mandatory, with no opportunity for independent review of their due observance, is an empty exercise. The views we express today emphasize the instructional and hortatory value of regulations, but do not rely on their adoption as a safeguard against their being violated or ignored.",
"[6] There is an apparent contradiction in the relationship of the element of randomness to the protection against arbitrariness that is central both to Martin and to the three guidelines we announce today in connection with prison cell searches. In the context of a roadside DUI search, arbitrary selection must be ruled out by the regularity of the selection procedure, which must be guided by a preestablished protocol (e.g., to stop every car, every second car, tenth car, or the like). There can be no selection left to the arbitrary discretion of the police. In the context of a prison cell search, however, randomness is the keynote to an effective procedure, and since the prison population is a relatively fixed universe (in contrast to the vehicles stopped at a roadblock), random selection for searching on any particular date does not amount to arbitrary selection."
]
| https://www.courtlistener.com/api/rest/v3/opinions/1435610/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Case 1:20-cv-00246-RJJ-SJB ECF No. 1 filed 03/19/20 PageID.1 Page 1 of 7
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ____________________
BELL’S BREWERY, INC., Case No. 1:20-cv-246 Petitioner, v. Honorable ___________________
BLUE RIDGE BEVERAGE COMPANY, INC.,
Respondent.
G. Will Furtado (P77848) RHOADES McKEE PC Attorneys for Petitioner 55 Campau Avenue NW, Suite 300 Grand Rapids, MI 49503 (616) 235-3500
Chad E. Kurtz COZEN O’CONNOR, P.C. Attorneys for Petitioner 1200 19th Street NW, Suite 300 Washington, DC 20036 (202) 463-2521
PETITION TO COMPEL ARBITRATION AND STAY ADMINISTRATIVE PROCEEDINGS
Pursuant to § 4 of the Federal Arbitration Act (9 U.S.C. § 1, et seq) and 28 U.S.C. § 2283,
petitioner Bell’s Brewery, Inc. (“Bell’s”), through undersigned counsel, petitions this Court to:
(i) compel arbitration of the claims of respondent Blue Ridge Beverage Company, Inc. (“Blue
Ridge”) in accordance with the arbitration clause in the parties’ Distributor Agreement
(“Agreement”); and, (ii) stay the related administrative proceeding pending before the Virginia
1 2382640_3 Case 1:20-cv-00246-RJJ-SJB ECF No. 1 filed 03/19/20 PageID.2 Page 2 of 7
Alcoholic Beverage Control Authority (“ABC Authority”). In support of this Petition, Bell’s states
as follows and relies on the accompanying Brief in Support:
SUMMARY AND OVERVIEW OF THE ACTION
1. Petitioner Bell’s is a brewery located in Kalamazoo, Michigan. Respondent Blue
Ridge is a beer distributor. In June 2015, the parties entered into the Agreement. On February 1,
2019, Bell’s notified the ABC Authority that it was immediately withdrawing all its products from
all designated sales territories in the Commonwealth of Virginia, including those served by Blue
Ridge. As a result, and although the Agreement contains an arbitration clause, Blue Ridge
commenced an administrative proceeding with the ABC Authority. Bell’s now petitions this Court
to compel arbitration and stay the ABC Authority proceeding in accordance with the Agreement.
PARTIES, JURISDICTION AND VENUE
2. Bell’s is a Michigan corporation with a principal place of business located at 355
East Kalamazoo Avenue, Kalamazoo, MI 49007.
3. Blue Ridge is a Virginia corporation with a principal place of business located at
4446 Barley Drive, Salem, VA 24153.
4. This Court has subject matter jurisdiction over this Petition pursuant to Section 4
of the Federal Arbitration Act (9 U.S.C. § 4), and pursuant to 28 U.S.C. § 1332(a)(1) because
complete diversity of citizenship exists between the parties and the amount in controversy exceeds
$75,000, exclusive of interest and costs.
5. This Court has jurisdiction over Blue Ridge under MCL 600.745(2) because Blue
Ridge agreed to a forum selection clause enabling Bell’s to require arbitration to occur in, among
other places, Michigan.
2 2382640_3 Case 1:20-cv-00246-RJJ-SJB ECF No. 1 filed 03/19/20 PageID.3 Page 3 of 7
6. Venue is proper in this Court because, pursuant to Section 4 of the Federal
Arbitration Act, 9 U.S.C. § 4, a party should bring a petition to compel arbitration in the District
where the parties agreed an arbitration must or could take place. The arbitration clause permits
Bell’s to select the place of arbitration, and Bell’s wishes to have the arbitration take place within
25 miles of its principal place of business located at 355 East Kalamazoo Avenue, Kalamazoo, MI
49007, any which location would be within the judicial district encompassed by this Court.
FACTUAL ALLEGATIONS 7. Bell’s is a brewery located in Kalamazoo, Michigan, and Blue Ridge is a wholesale
beer distributor.
8. On June 11, 2015, Bell’s and Blue Ridge executed the Agreement, through which
Bell’s agreed to sell, and Blue Ridge agreed to buy and market in Virginia, certain of Bell’s
products. (Exhibit A).
9. Paragraph 11 of the Agreement contains an arbitration clause:
11. DISPUTE RESOLUTION
(a) All claims disputes and other matters arising out of or relating to this Agreement, including the validity, legality, breach, or termination thereof, shall be decided by binding arbitration in accordance with the rules of the American Arbitration Association (“AAA”). Arbitration shall be conducted before a single arbitrator selected by the parties or, if they cannot agree to an acceptable arbitrator within 30 days, by the AAA. Notwithstanding any provisions of law or this Agreement, this agreement to arbitrate shall be enforceable under the Federal Arbitration Act, and any award shall be final and binding.
(b) The place of arbitration shall be selected by non-initiating party. The initiating party shall be the party that is the first to either: (a) initiate through the filing of a complaint, petition or similar paper a court or administrative proceeding (a “legal proceeding”) arising out of or relating to this Agreement or the breach or termination thereof; or (b) request arbitration before either party has initiated a legal proceeding.
3 2382640_3 Case 1:20-cv-00246-RJJ-SJB ECF No. 1 filed 03/19/20 PageID.4 Page 4 of 7
(c) Notwithstanding any contrary provision of law, the arbitrator shall have no power to award punitive or exemplary damages or award any sum beyond compensation for actual damages suffered. (Id.).
10. On February 1, 2019, Bell’s counsel sent a letter to the ABC Authority stating that
Bell’s was “immediately withdrawing all [its] products from all designated sales territories in the
Commonwealth of Virginia, including specifically, the designated sales territories currently served
by the following wholesale distributors: [listing seven distributors, including Blue Ridge].”
(Exhibit B, at 1).
11. Bell’s counsel explained Bell’s reasoning as follows:
… Unfortunately, due to the legitimate business concerns associated with the continuing franchise litigation before the [ABC Authority], Bell’s reluctantly has concluded that it must completely withdraw from conducting all business in the Commonwealth of Virginia. Bell’s is a small brewery with modest financial resources that limit its ability to accept the degree of financial and other business risks associated with continuing to sell its products through Virginia wholesale distributors. Bell’s is compelled to mitigate these business and financial risks and, as a consequence, has made this business decision to ensure its survival as a small independent business. (Id.).
12. Bell’s counsel also sent a copy of the letter to Blue Ridge. (Id. at 2).
13. Over ten months later, on December 6, 2019, Blue Ridge’s counsel sent a letter to
the ABC Authority stating that, since April 1, 2019, Bell’s has refused to ship products to, or
otherwise do business with, Blue Ridge. (Exhibit C, at 2). Blue Ridge argued Bell’s actions
violated the Virginia Beer Franchise Act, Va. Code Ann. § 4.1-500 et seq., and Blue Ridge
requested a hearing before the ABC Authority to address Bell’s alleged statutory violations.
14. On December 17, 2019, the ABC Authority sent a letter to Bell’s counsel and Blue
Ridge’s counsel, stating in part, “Pursuant to … the Beer Franchise Act, the Board has the
responsibility to determine if violations of the Act have occurred upon petition to any interested
party. Therefore, I have forwarded this matter to the Hearings, Appeals, & Judicial Services
4 2382640_3 Case 1:20-cv-00246-RJJ-SJB ECF No. 1 filed 03/19/20 PageID.5 Page 5 of 7
Division, to determine if violations of the Beer Franchise Act occurred, and if so, appropriate
remedies.” (Exhibit D).
15. Because Blue Ridge refuses to submit to arbitration in accordance with the
arbitration clause, Bell’s now petitions this Court to compel arbitration pursuant to Section 4 of
the Federal Arbitration Act (9 U.S.C. § 4), and to stay the proceedings of the ABC Authority
pursuant to 28 U.S.C. § 2283.
COUNT I – ORDER COMPELLING ARBITRATION PURSUANT TO 9 U.S.C. § 4
16. Petitioner incorporates by reference all preceding allegations as though fully
restated herein.
17. The Federal Arbitration Act (“FAA”) applies to an arbitration clause in a “contract
evidencing a transaction involving commerce,” with “commerce” defined as “commerce among
the several States,” i.e., interstate commerce. 9 U.S.C. §§ 1, 2.
18. The Agreement is a contract involving interstate commerce because it requires
Bell’s to ship beer from Michigan to Virginia.
19. The arbitration clause is a valid agreement to arbitrate because it is not against
public policy or unconscionable.
20. The arbitration clause encompasses Blue Ridge’s claim that Bell’s allegedly
breached the Agreement: “All claims disputes and other matters arising out of or relating to … the
… breach … [of the Agreement] shall be decided by binding arbitration.” (Ex. A, ¶ 11(a)).
21. Blue Ridge commenced an administrative proceeding before the ABC Authority in
contravention of the arbitration clause of the Agreement.
22. Blue Ridge refuses to arbitrate the parties’ dispute.
5 2382640_3 Case 1:20-cv-00246-RJJ-SJB ECF No. 1 filed 03/19/20 PageID.6 Page 6 of 7
23. In accordance with Paragraph 11(b) of the Agreement, Blue Ridge is the “initiating
party” because it commenced an “administrative proceeding” by filing a “paper” with the ABC
Authority.
24. Paragraph 11(b) permits Bell’s, as the “non-initiating party,” to select the place of
arbitration.
25. Bell’s wishes the arbitration to occur at a location within 25 miles of its principal
place of business located at 355 East Kalamazoo Avenue, Kalamazoo, MI 49007.
WHEREFORE, Bell’s respectfully requests that this Court grant its Petition and compel
the arbitration of Blue Ridge’s claim that Bell’s allegedly improperly breached the Agreement,
and any other claims by Blue Ridge against Bell’s “arising out of or relating to [the] Agreement,
including the validity, legality, breach, or termination thereof,” with the arbitration to be held in
accordance with the rules of the American Arbitration Association and at a location within 25
miles of 355 East Kalamazoo Avenue, Kalamazoo, MI 49007, as well as any other relief in favor
of Bell’s that this Court deems just and proper.
COUNT II – STAY OF PROCEEDINGS OF VIRGINIA ABC AUTHORITY PURSUANT TO 28 U.S.C. § 2283
26. Petitioner incorporates by reference all preceding allegations as though fully
restated herein.
27. On December 6, 2019, Blue Ridge commenced an administrative proceeding before
the ABC Authority regarding claims arising from the Agreement and covered by the Agreement’s
arbitration clause.
28. Pursuant to 28 U.S.C. § 2283, a federal court may enjoin state-court proceedings
“where necessary … to protect or effectuate its judgments.”
6 2382640_3 Case 1:20-cv-00246-RJJ-SJB ECF No. 1 filed 03/19/20 PageID.7 Page 7 of 7
29. An Order by a federal district court compelling arbitration in an independent
proceeding is a final judgment. See, e.g., Great Earth Cos., Inc. v. Simons, 288 F.3d 878, 894 (6th
Cir. 2002).
30. If this Court enters an Order compelling arbitration, as requested by the Petition in
Count I, this Court also should exercise its discretion under 28 U.S.C. § 2283 to stay the ABC
Authority proceeding pending resolution of the arbitration.
WHEREFORE, Bell’s respectfully requests that this Court stay the proceeding before the
ABC Authority pending resolution of the arbitration.
Dated: March 19, 2020 RHOADES McKEE PC Attorneys for Bell's Brewery, Inc.
By:/s/ G. Will Furtado G. Will Furtado (P77848) Business Address: 55 Campau Avenue, N.W., Suite 300 Grand Rapids, MI 49503 Telephone: (616) 235-3500
7 2382640_3 | 2020-03-19 | [
"Case 1:20-cv-00246-RJJ-SJB ECF No. 1 filed 03/19/20 PageID.1 Page 1 of 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ____________________ BELL’S BREWERY, INC., Case No. 1:20-cv-246 Petitioner, v. Honorable ___________________ BLUE RIDGE BEVERAGE COMPANY, INC., Respondent. G. Will Furtado (P77848) RHOADES McKEE PC Attorneys for Petitioner 55 Campau Avenue NW, Suite 300 Grand Rapids, MI 49503 (616) 235-3500 Chad E. Kurtz COZEN O’CONNOR, P.C. Attorneys for Petitioner 1200 19th Street NW, Suite 300 Washington, DC 20036 (202) 463-2521 PETITION TO COMPEL ARBITRATION AND STAY ADMINISTRATIVE PROCEEDINGS Pursuant to § 4 of the Federal Arbitration Act (9 U.S.C. § 1, et seq) and 28 U.S.C.",
"§ 2283, petitioner Bell’s Brewery, Inc. (“Bell’s”), through undersigned counsel, petitions this Court to: (i) compel arbitration of the claims of respondent Blue Ridge Beverage Company, Inc. (“Blue Ridge”) in accordance with the arbitration clause in the parties’ Distributor Agreement (“Agreement”); and, (ii) stay the related administrative proceeding pending before the Virginia 1 2382640_3 Case 1:20-cv-00246-RJJ-SJB ECF No. 1 filed 03/19/20 PageID.2 Page 2 of 7 Alcoholic Beverage Control Authority (“ABC Authority”). In support of this Petition, Bell’s states as follows and relies on the accompanying Brief in Support: SUMMARY AND OVERVIEW OF THE ACTION 1. Petitioner Bell’s is a brewery located in Kalamazoo, Michigan.",
"Respondent Blue Ridge is a beer distributor. In June 2015, the parties entered into the Agreement. On February 1, 2019, Bell’s notified the ABC Authority that it was immediately withdrawing all its products from all designated sales territories in the Commonwealth of Virginia, including those served by Blue Ridge. As a result, and although the Agreement contains an arbitration clause, Blue Ridge commenced an administrative proceeding with the ABC Authority. Bell’s now petitions this Court to compel arbitration and stay the ABC Authority proceeding in accordance with the Agreement. PARTIES, JURISDICTION AND VENUE 2. Bell’s is a Michigan corporation with a principal place of business located at 355 East Kalamazoo Avenue, Kalamazoo, MI 49007.",
"3. Blue Ridge is a Virginia corporation with a principal place of business located at 4446 Barley Drive, Salem, VA 24153. 4. This Court has subject matter jurisdiction over this Petition pursuant to Section 4 of the Federal Arbitration Act (9 U.S.C. § 4), and pursuant to 28 U.S.C. § 1332(a)(1) because complete diversity of citizenship exists between the parties and the amount in controversy exceeds $75,000, exclusive of interest and costs. 5.",
"This Court has jurisdiction over Blue Ridge under MCL 600.745(2) because Blue Ridge agreed to a forum selection clause enabling Bell’s to require arbitration to occur in, among other places, Michigan. 2 2382640_3 Case 1:20-cv-00246-RJJ-SJB ECF No. 1 filed 03/19/20 PageID.3 Page 3 of 7 6. Venue is proper in this Court because, pursuant to Section 4 of the Federal Arbitration Act, 9 U.S.C. § 4, a party should bring a petition to compel arbitration in the District where the parties agreed an arbitration must or could take place. The arbitration clause permits Bell’s to select the place of arbitration, and Bell’s wishes to have the arbitration take place within 25 miles of its principal place of business located at 355 East Kalamazoo Avenue, Kalamazoo, MI 49007, any which location would be within the judicial district encompassed by this Court. FACTUAL ALLEGATIONS 7. Bell’s is a brewery located in Kalamazoo, Michigan, and Blue Ridge is a wholesale beer distributor.",
"8. On June 11, 2015, Bell’s and Blue Ridge executed the Agreement, through which Bell’s agreed to sell, and Blue Ridge agreed to buy and market in Virginia, certain of Bell’s products. (Exhibit A). 9. Paragraph 11 of the Agreement contains an arbitration clause: 11. DISPUTE RESOLUTION (a) All claims disputes and other matters arising out of or relating to this Agreement, including the validity, legality, breach, or termination thereof, shall be decided by binding arbitration in accordance with the rules of the American Arbitration Association (“AAA”). Arbitration shall be conducted before a single arbitrator selected by the parties or, if they cannot agree to an acceptable arbitrator within 30 days, by the AAA. Notwithstanding any provisions of law or this Agreement, this agreement to arbitrate shall be enforceable under the Federal Arbitration Act, and any award shall be final and binding. (b) The place of arbitration shall be selected by non-initiating party.",
"The initiating party shall be the party that is the first to either: (a) initiate through the filing of a complaint, petition or similar paper a court or administrative proceeding (a “legal proceeding”) arising out of or relating to this Agreement or the breach or termination thereof; or (b) request arbitration before either party has initiated a legal proceeding. 3 2382640_3 Case 1:20-cv-00246-RJJ-SJB ECF No. 1 filed 03/19/20 PageID.4 Page 4 of 7 (c) Notwithstanding any contrary provision of law, the arbitrator shall have no power to award punitive or exemplary damages or award any sum beyond compensation for actual damages suffered. (Id.). 10.",
"On February 1, 2019, Bell’s counsel sent a letter to the ABC Authority stating that Bell’s was “immediately withdrawing all [its] products from all designated sales territories in the Commonwealth of Virginia, including specifically, the designated sales territories currently served by the following wholesale distributors: [listing seven distributors, including Blue Ridge].” (Exhibit B, at 1). 11. Bell’s counsel explained Bell’s reasoning as follows: … Unfortunately, due to the legitimate business concerns associated with the continuing franchise litigation before the [ABC Authority], Bell’s reluctantly has concluded that it must completely withdraw from conducting all business in the Commonwealth of Virginia. Bell’s is a small brewery with modest financial resources that limit its ability to accept the degree of financial and other business risks associated with continuing to sell its products through Virginia wholesale distributors.",
"Bell’s is compelled to mitigate these business and financial risks and, as a consequence, has made this business decision to ensure its survival as a small independent business. (Id.). 12. Bell’s counsel also sent a copy of the letter to Blue Ridge. (Id. at 2). 13. Over ten months later, on December 6, 2019, Blue Ridge’s counsel sent a letter to the ABC Authority stating that, since April 1, 2019, Bell’s has refused to ship products to, or otherwise do business with, Blue Ridge. (Exhibit C, at 2). Blue Ridge argued Bell’s actions violated the Virginia Beer Franchise Act, Va. Code Ann. § 4.1-500 et seq., and Blue Ridge requested a hearing before the ABC Authority to address Bell’s alleged statutory violations. 14. On December 17, 2019, the ABC Authority sent a letter to Bell’s counsel and Blue Ridge’s counsel, stating in part, “Pursuant to … the Beer Franchise Act, the Board has the responsibility to determine if violations of the Act have occurred upon petition to any interested party. Therefore, I have forwarded this matter to the Hearings, Appeals, & Judicial Services 4 2382640_3 Case 1:20-cv-00246-RJJ-SJB ECF No. 1 filed 03/19/20 PageID.5 Page 5 of 7 Division, to determine if violations of the Beer Franchise Act occurred, and if so, appropriate remedies.” (Exhibit D). 15. Because Blue Ridge refuses to submit to arbitration in accordance with the arbitration clause, Bell’s now petitions this Court to compel arbitration pursuant to Section 4 of the Federal Arbitration Act (9 U.S.C.",
"§ 4), and to stay the proceedings of the ABC Authority pursuant to 28 U.S.C. § 2283. COUNT I – ORDER COMPELLING ARBITRATION PURSUANT TO 9 U.S.C. § 4 16. Petitioner incorporates by reference all preceding allegations as though fully restated herein. 17. The Federal Arbitration Act (“FAA”) applies to an arbitration clause in a “contract evidencing a transaction involving commerce,” with “commerce” defined as “commerce among the several States,” i.e., interstate commerce. 9 U.S.C. §§ 1, 2. 18. The Agreement is a contract involving interstate commerce because it requires Bell’s to ship beer from Michigan to Virginia. 19. The arbitration clause is a valid agreement to arbitrate because it is not against public policy or unconscionable. 20. The arbitration clause encompasses Blue Ridge’s claim that Bell’s allegedly breached the Agreement: “All claims disputes and other matters arising out of or relating to … the … breach … [of the Agreement] shall be decided by binding arbitration.” (Ex.",
"A, ¶ 11(a)). 21. Blue Ridge commenced an administrative proceeding before the ABC Authority in contravention of the arbitration clause of the Agreement. 22. Blue Ridge refuses to arbitrate the parties’ dispute. 5 2382640_3 Case 1:20-cv-00246-RJJ-SJB ECF No. 1 filed 03/19/20 PageID.6 Page 6 of 7 23. In accordance with Paragraph 11(b) of the Agreement, Blue Ridge is the “initiating party” because it commenced an “administrative proceeding” by filing a “paper” with the ABC Authority. 24. Paragraph 11(b) permits Bell’s, as the “non-initiating party,” to select the place of arbitration. 25.",
"Bell’s wishes the arbitration to occur at a location within 25 miles of its principal place of business located at 355 East Kalamazoo Avenue, Kalamazoo, MI 49007. WHEREFORE, Bell’s respectfully requests that this Court grant its Petition and compel the arbitration of Blue Ridge’s claim that Bell’s allegedly improperly breached the Agreement, and any other claims by Blue Ridge against Bell’s “arising out of or relating to [the] Agreement, including the validity, legality, breach, or termination thereof,” with the arbitration to be held in accordance with the rules of the American Arbitration Association and at a location within 25 miles of 355 East Kalamazoo Avenue, Kalamazoo, MI 49007, as well as any other relief in favor of Bell’s that this Court deems just and proper. COUNT II – STAY OF PROCEEDINGS OF VIRGINIA ABC AUTHORITY PURSUANT TO 28 U.S.C. § 2283 26. Petitioner incorporates by reference all preceding allegations as though fully restated herein.",
"27. On December 6, 2019, Blue Ridge commenced an administrative proceeding before the ABC Authority regarding claims arising from the Agreement and covered by the Agreement’s arbitration clause. 28. Pursuant to 28 U.S.C. § 2283, a federal court may enjoin state-court proceedings “where necessary … to protect or effectuate its judgments.” 6 2382640_3 Case 1:20-cv-00246-RJJ-SJB ECF No. 1 filed 03/19/20 PageID.7 Page 7 of 7 29. An Order by a federal district court compelling arbitration in an independent proceeding is a final judgment. See, e.g., Great Earth Cos., Inc. v. Simons, 288 F.3d 878, 894 (6th Cir. 2002). 30. If this Court enters an Order compelling arbitration, as requested by the Petition in Count I, this Court also should exercise its discretion under 28 U.S.C.",
"§ 2283 to stay the ABC Authority proceeding pending resolution of the arbitration. WHEREFORE, Bell’s respectfully requests that this Court stay the proceeding before the ABC Authority pending resolution of the arbitration. Dated: March 19, 2020 RHOADES McKEE PC Attorneys for Bell's Brewery, Inc. By:/s/ G. Will Furtado G. Will Furtado (P77848) Business Address: 55 Campau Avenue, N.W., Suite 300 Grand Rapids, MI 49503 Telephone: (616) 235-3500 7 2382640_3"
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/128157419/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Title: Why can't they make it illegal for children to be in school not vaccinated? Question:I'm a 34yo f from pa and when I was a child I believe it was mandatory from a schools to be vaccinated or you weren't allowed to come to school. I remember my mother getting the documents from the doctor to get to the school from k-12. I don't understand why it can't be made illegal to make sure nobody starts passing around something children die from. It's even a big deal when children pass around head lice. Maybe I'm missing something. I would love to hear both sides of this agreement and to be come educated on this matter. Thanks. Answer #1: Moat (all?) states require children in public school to provide a vaccination record. All states allow parents to opt-out for medical reasons (like immune deficiency). Some states allow parents to opt out for non-medical reasons (religious, quackery, etc). It's the non-medical exemptions that should be eliminated. Answer #2: For a long time, it wasn't _necessary_ to make such a law. Public understanding was that vaccination was necessary, and parents regularly vaccinated their kids. That understanding was driven, in part, by people who either personally grew up with vaccine-preventable diseases, or whose close family grew up with those diseases, and who understood the tradeoffs very viscerally.
Unfortunately, the severity of those diseases is passing from popular memory as the generations most affected by them die of old age. Very few people today know anyone who died in grade school, or who has lifelong disabilities due to polio. For most people today, that's how it's always been, at least in their memory, making it very hard for people to evaluate the relative risk of diseases vs vaccines at a gut level and making them far more likely to decide that vaccines are an unacceptable risk. (Everyone knows that needles hurt, after all.)Answer #3: More and more schools are instituting policies that require kids to be vaccinated. California even passed a law saying that kids who attend public schools must be vaccinated. | 11-13-2018 | [
"Title: Why can't they make it illegal for children to be in school not vaccinated? Question:I'm a 34yo f from pa and when I was a child I believe it was mandatory from a schools to be vaccinated or you weren't allowed to come to school. I remember my mother getting the documents from the doctor to get to the school from k-12. I don't understand why it can't be made illegal to make sure nobody starts passing around something children die from. It's even a big deal when children pass around head lice.",
"Maybe I'm missing something. I would love to hear both sides of this agreement and to be come educated on this matter. Thanks. Answer #1: Moat (all?) states require children in public school to provide a vaccination record. All states allow parents to opt-out for medical reasons (like immune deficiency). Some states allow parents to opt out for non-medical reasons (religious, quackery, etc). It's the non-medical exemptions that should be eliminated. Answer #2: For a long time, it wasn't _necessary_ to make such a law. Public understanding was that vaccination was necessary, and parents regularly vaccinated their kids. That understanding was driven, in part, by people who either personally grew up with vaccine-preventable diseases, or whose close family grew up with those diseases, and who understood the tradeoffs very viscerally. Unfortunately, the severity of those diseases is passing from popular memory as the generations most affected by them die of old age. Very few people today know anyone who died in grade school, or who has lifelong disabilities due to polio.",
"For most people today, that's how it's always been, at least in their memory, making it very hard for people to evaluate the relative risk of diseases vs vaccines at a gut level and making them far more likely to decide that vaccines are an unacceptable risk. (Everyone knows that needles hurt, after all. )Answer #3: More and more schools are instituting policies that require kids to be vaccinated. California even passed a law saying that kids who attend public schools must be vaccinated."
]
| https://www.reddit.com/r/legaladviceofftopic/comments/9ws2d1/why_cant_they_make_it_illegal_for_children_to_be/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
I. Prior to the 24th day of June, 1921, F.S. Lohr and E.V. Cutler constituted a partnership engaged in conducting a furniture and undertaking business in the town of Osage, Iowa, in a building owned by Lohr. On the date above named, Lohr sold and transferred his undivided one-half interest in the business to P.M. Horgen, for the sum of $9,500, on which purchase price Horgen paid $5,000 cash, and executed to Lohr a note and chattel mortgage covering the property for the balance of $4,500. The same was duly filed with the county recorder of Mitchell County on that date. This chattel mortgage covered "an undivided one-half interest in the undertaking stock and equipment, and the furniture stock, belonging to the firm of Cutler Horgen in Osage, Iowa, also an undivided one half of any and all additions made thereto from time to time," and set out a proper description of the location of said stock of goods. Accompanying this mortgage were nine promissory notes, of $500 each, due every six months, only the first of which has been paid. Cutler Horgen continued to carry on this business until the 29th day of April, 1924, when they joined in a deed of assignment for the benefit of creditors. In the progress of the settlement of this suit, F.S. Lohr filed claim based on a chattel mortgage, also a claim for landlord's lien for rent, and another claim for $50. Objections were made to these claims originally by the firm of Cutler Horgen, but later their objections were withdrawn. Other creditors also made objections to these claims, and it was on the objections made by the creditors that the matter was tried in the lower court. Some question is raised as to the timeliness of the filing of these objections, but in the conclusion we reach, this objection becomes immaterial. The first question urged is that the district court erred in holding that the chattel mortgage was junior and 1. PARTNERSHIP: inferior to the rights of the creditors of the mortgages: firm of Cutler Horgen. As stated above, the mortgage on transfer of Lohr's interest in the stock to partner's Horgen and the taking back of the chattel interest: mortgage for part of the purchase price thereof priority. constituted one transaction. At the *Page 741 time this sale occurred, the original firm of Lohr Cutler had no outstanding indebtedness. In one of the filings in the case, signed "Cutler Horgen, by E.V. Cutler," is the following: "E.V. Cutler further states that such chattel mortgage [referring to the F.S. Lohr chattel mortgage] was made and executed by said P.M. Horgen with notice to said E.V. Cutler and with his knowledge and consent thereto." The question, therefore, is whether or not a chattel mortgage given under the circumstances related in this case is inferior or superior to the rights of parties who became creditors of the new firm after the chattel mortgage was given. The rule as generally stated is that a mortgage given by one partner on his interest in the partnership property to secure his individual indebtedness is subject to all partnership debts and liens. Fargo Co. v. Ames, 45 Iowa 491; Mayer Loewenstein v.Garber, 53 Iowa 689; Hubenthal v. Kennedy, 76 Iowa 707; Johnston Son v. Robuck, 104 Iowa 523; Hirsch, Wickwire Co. v. DenisonCloth. Co., 158 Iowa 117; Clapp v. Adams, 143 Iowa 697. A reading of each and all of these cases, together with all of the other cases cited in the brief of appellee, shows that in each instance the chattel mortgage was made after the partnership was a going concern, and the complaint in each instance came from a creditor of the partnership who was such at or before the time the chattel mortgage was given. No case is cited to us, nor have we, on careful search, been able to find a precedent, where the objector to the chattel mortgage became such after the chattel mortgage was given. Appellee relies largely on the case of Clapp v. Adams, supra. A reading of that case, however, shows that the partnership had about reached an end when the chattel mortgage in question was given to one Hemingway. The prior creditors of the partnership of Clapp Adams were objecting to allowing this chattel mortgage precedence over other claimants as creditors of the partnership. All of the claims objected to, however, were claims that antedated the chattel mortgage; hence the Clapp case does not solve the question before us. Just what was the status of these parties at the time of the making of this chattel mortgage? The original firm of Lohr Cutler was, by operation of law, dissolved by the sale by Lohr of his interest therein. The *Page 742 new firm of Cutler Horgen was about to take over and continue the business conducted by the former firm. At the time of the making of this chattel mortgage, there were no creditors of the new firm, and no creditors of the old firm; hence no one could complain of the making of this chattel mortgage unless it be Cutler, who says, in his declaration above referred to, that he knew of the making of the chattel mortgage and consented thereto. This chattel mortgage was duly recorded, and it not only covered Horgen's interest in the property then in existence, but it provided for a mortgage on the undivided half of any additional property that was put into the stock. Having been duly recorded, it was constructive notice to all the world of its contents, and any person who dealt with the new firm constructively had notice of the existence of this chattel mortgage and its contents. These various creditors, now having claims against this new firm of Cutler Horgen, therefore, are held to have known, at the time they dealt with the firm, that, if their goods went into the same, they would be covered by this chattel mortgage properly recorded. This being true, it follows that they cannot, under such circumstances, assert that the chattel mortgage is inferior to their rights as creditors. The district court erroneously held otherwise. But it is urged that, because the mortgagee permitted the new firm to continue the business in the ordinary course of retail trade, without any provision in the mortgage that the proceeds of the sale should be applied upon the mortgage indebtedness, the mortgage was void as to these creditors of the firm, and we are cited to several decisions from sister states on this proposition, among which are: Black Hills Merc. Co. v. Gardiner,5 S.D. 246 (58 N.W. 557); Paxton Gallagher v. Smith Co.,41 Neb. 56 (59 N.W. 690); Durr v. Wildish, 108 Wis. 401 (84 N.W. 437). There is no provision in this chattel mortgage authorizing the new firm to continue the business in the ordinary course of retail trade, and if the mortgage did contain that provision, it would not invalidate the mortgage. In Meyer v. Evans, 66 Iowa 179, at 185, this court said: "It has often been held by this court that the fact that the mortgagor retains possession of the mortgaged property, and reserves the right to sell the same in the ordinary course of *Page 743 trade, and apply the proceeds to his own use, does not render the mortgage fraudulent in law" (citing Iowa cases). II. F.S. Lohr was the owner of the building in which this business was conducted both by the old and by the new firm. The new firm of Cutler Horgen entered into a lease with F.S. Lohr for the occupation of the same building, which 2. LANDLORD lease was to run from the 1st of July, 1921, to AND TENANT: the 1st of July, 1926, at a monthly rental of lien: sale $125. The assignment in this case was made on under the 25th day of April, 1924. The assignee took judicial possession of the stock, and continued to use process: the building until she sold the stock, on the refusal of 8th day of January, 1925. At the time assignee future rent. took possession, there was one year's rent unpaid. The assignee paid seven months' rent from the time she occupied the building as such assignee, and the court allowed the landlord for his one year of unpaid rent, and also for two months' rent while the building was occupied by assignee, on which the rent was unpaid. Complaint is made of this order of the court's because he says that, under the law, he was entitled to six months' rent after the sale of the property by the assignee. Regardless of what the general rule may be in such matters, the evidence shows that the landlord bought this stock of goods from the assignee, immediately moved in, and took possession of the same, and continued to conduct a retail business in the building for which he was claiming rent. Under these circumstances, we feel that the order of court was right. That the attorney filing this mortgage and having proven up, is entitled, after having filed the proper affidavit, to have attorney's fees taxed, as provided in the notes, see Davidson v.Vorse, 52 Iowa 384. 3. COSTS: It is further urged that there should be an attorney equitable apportionment made of the costs in the fees: assignment, and that certain costs therein allowance in should not be considered in determining the insolvency dividend that F.S. Lohr should receive on his proceedings. chattel mortgage. With this we do not agree. The statute marks out the method by which distribution is to be made in insolvent estates, and we have no disposition to disturb the ruling of the district court thereon. F.W. Lohr also appeals in this matter, claiming that he performed certain services for the assignee, who was a sister of *Page 744 his, and that the reasonable value thereof was something over $200. The evidence, however, shows that the 4. ASSIGNMENTS contemplated insolvency proceedings of this firm FOR BENEFIT were pending for some time before the deed of OF assignment, and that F.W. Lohr was attorney for CREDITORS: his brother, F.S. Lohr, in looking after the settlement: matter. Some tax matters also arose in the refusal of proceedings, resulting in a compromise with the attorney county as to the taxes. The district court held fees. that "it was not understood or intended by either him [F.W. Lohr] or the assignee that he was to make any charge for his services as attorney, but was rendering his services to her only because she was his sister, and for her benefit;" that, if he were subsequently employed by her, it was unnecessary to employ other attorneys. The firm of Kugler Bartlett seems to have been the principal attorneys in looking after the assignee's business. We have read the record, and it is sufficient to support the finding of the district court in disallowing attorney's fees to F.W. Lohr for services claimed. This question of attorney's fees here, of course, has no reference whatever to the attorney's fees provided for with reference to the notes and chattel mortgage. In accordance with this, the ruling of the district court will be modified by giving the chattel mortgage priority, as above indicated. Otherwise, the ruling of the district court is concurred in. If desired, the case may be remanded for judgment in the same court in accordance herewith. — Modified andaffirmed. EVANS, C.J., and De GRAFF and MORLING, JJ., concur. SUPPLEMENTAL OPINION ON PETITION FOR REHEARING. | 07-05-2016 | [
"I. Prior to the 24th day of June, 1921, F.S. Lohr and E.V. Cutler constituted a partnership engaged in conducting a furniture and undertaking business in the town of Osage, Iowa, in a building owned by Lohr. On the date above named, Lohr sold and transferred his undivided one-half interest in the business to P.M. Horgen, for the sum of $9,500, on which purchase price Horgen paid $5,000 cash, and executed to Lohr a note and chattel mortgage covering the property for the balance of $4,500. The same was duly filed with the county recorder of Mitchell County on that date. This chattel mortgage covered \"an undivided one-half interest in the undertaking stock and equipment, and the furniture stock, belonging to the firm of Cutler Horgen in Osage, Iowa, also an undivided one half of any and all additions made thereto from time to time,\" and set out a proper description of the location of said stock of goods. Accompanying this mortgage were nine promissory notes, of $500 each, due every six months, only the first of which has been paid.",
"Cutler Horgen continued to carry on this business until the 29th day of April, 1924, when they joined in a deed of assignment for the benefit of creditors. In the progress of the settlement of this suit, F.S. Lohr filed claim based on a chattel mortgage, also a claim for landlord's lien for rent, and another claim for $50. Objections were made to these claims originally by the firm of Cutler Horgen, but later their objections were withdrawn. Other creditors also made objections to these claims, and it was on the objections made by the creditors that the matter was tried in the lower court. Some question is raised as to the timeliness of the filing of these objections, but in the conclusion we reach, this objection becomes immaterial. The first question urged is that the district court erred in holding that the chattel mortgage was junior and 1.",
"PARTNERSHIP: inferior to the rights of the creditors of the mortgages: firm of Cutler Horgen. As stated above, the mortgage on transfer of Lohr's interest in the stock to partner's Horgen and the taking back of the chattel interest: mortgage for part of the purchase price thereof priority. constituted one transaction. At the *Page 741 time this sale occurred, the original firm of Lohr Cutler had no outstanding indebtedness. In one of the filings in the case, signed \"Cutler Horgen, by E.V. Cutler,\" is the following: \"E.V. Cutler further states that such chattel mortgage [referring to the F.S. Lohr chattel mortgage] was made and executed by said P.M. Horgen with notice to said E.V. Cutler and with his knowledge and consent thereto.\" The question, therefore, is whether or not a chattel mortgage given under the circumstances related in this case is inferior or superior to the rights of parties who became creditors of the new firm after the chattel mortgage was given. The rule as generally stated is that a mortgage given by one partner on his interest in the partnership property to secure his individual indebtedness is subject to all partnership debts and liens. Fargo Co. v. Ames, 45 Iowa 491; Mayer Loewenstein v.Garber, 53 Iowa 689; Hubenthal v. Kennedy, 76 Iowa 707; Johnston Son v. Robuck, 104 Iowa 523; Hirsch, Wickwire Co. v. DenisonCloth. Co., 158 Iowa 117; Clapp v. Adams, 143 Iowa 697.",
"A reading of each and all of these cases, together with all of the other cases cited in the brief of appellee, shows that in each instance the chattel mortgage was made after the partnership was a going concern, and the complaint in each instance came from a creditor of the partnership who was such at or before the time the chattel mortgage was given. No case is cited to us, nor have we, on careful search, been able to find a precedent, where the objector to the chattel mortgage became such after the chattel mortgage was given. Appellee relies largely on the case of Clapp v. Adams, supra.",
"A reading of that case, however, shows that the partnership had about reached an end when the chattel mortgage in question was given to one Hemingway. The prior creditors of the partnership of Clapp Adams were objecting to allowing this chattel mortgage precedence over other claimants as creditors of the partnership. All of the claims objected to, however, were claims that antedated the chattel mortgage; hence the Clapp case does not solve the question before us. Just what was the status of these parties at the time of the making of this chattel mortgage?",
"The original firm of Lohr Cutler was, by operation of law, dissolved by the sale by Lohr of his interest therein. The *Page 742 new firm of Cutler Horgen was about to take over and continue the business conducted by the former firm. At the time of the making of this chattel mortgage, there were no creditors of the new firm, and no creditors of the old firm; hence no one could complain of the making of this chattel mortgage unless it be Cutler, who says, in his declaration above referred to, that he knew of the making of the chattel mortgage and consented thereto. This chattel mortgage was duly recorded, and it not only covered Horgen's interest in the property then in existence, but it provided for a mortgage on the undivided half of any additional property that was put into the stock. Having been duly recorded, it was constructive notice to all the world of its contents, and any person who dealt with the new firm constructively had notice of the existence of this chattel mortgage and its contents. These various creditors, now having claims against this new firm of Cutler Horgen, therefore, are held to have known, at the time they dealt with the firm, that, if their goods went into the same, they would be covered by this chattel mortgage properly recorded.",
"This being true, it follows that they cannot, under such circumstances, assert that the chattel mortgage is inferior to their rights as creditors. The district court erroneously held otherwise. But it is urged that, because the mortgagee permitted the new firm to continue the business in the ordinary course of retail trade, without any provision in the mortgage that the proceeds of the sale should be applied upon the mortgage indebtedness, the mortgage was void as to these creditors of the firm, and we are cited to several decisions from sister states on this proposition, among which are: Black Hills Merc. Co. v. Gardiner,5 S.D. 246 (58 N.W. 557); Paxton Gallagher v. Smith Co.,41 Neb. 56 (59 N.W. 690); Durr v. Wildish, 108 Wis. 401 (84 N.W. 437). There is no provision in this chattel mortgage authorizing the new firm to continue the business in the ordinary course of retail trade, and if the mortgage did contain that provision, it would not invalidate the mortgage.",
"In Meyer v. Evans, 66 Iowa 179, at 185, this court said: \"It has often been held by this court that the fact that the mortgagor retains possession of the mortgaged property, and reserves the right to sell the same in the ordinary course of *Page 743 trade, and apply the proceeds to his own use, does not render the mortgage fraudulent in law\" (citing Iowa cases). II. F.S. Lohr was the owner of the building in which this business was conducted both by the old and by the new firm. The new firm of Cutler Horgen entered into a lease with F.S. Lohr for the occupation of the same building, which 2. LANDLORD lease was to run from the 1st of July, 1921, to AND TENANT: the 1st of July, 1926, at a monthly rental of lien: sale $125. The assignment in this case was made on under the 25th day of April, 1924.",
"The assignee took judicial possession of the stock, and continued to use process: the building until she sold the stock, on the refusal of 8th day of January, 1925. At the time assignee future rent. took possession, there was one year's rent unpaid. The assignee paid seven months' rent from the time she occupied the building as such assignee, and the court allowed the landlord for his one year of unpaid rent, and also for two months' rent while the building was occupied by assignee, on which the rent was unpaid. Complaint is made of this order of the court's because he says that, under the law, he was entitled to six months' rent after the sale of the property by the assignee. Regardless of what the general rule may be in such matters, the evidence shows that the landlord bought this stock of goods from the assignee, immediately moved in, and took possession of the same, and continued to conduct a retail business in the building for which he was claiming rent. Under these circumstances, we feel that the order of court was right.",
"That the attorney filing this mortgage and having proven up, is entitled, after having filed the proper affidavit, to have attorney's fees taxed, as provided in the notes, see Davidson v.Vorse, 52 Iowa 384. 3. COSTS: It is further urged that there should be an attorney equitable apportionment made of the costs in the fees: assignment, and that certain costs therein allowance in should not be considered in determining the insolvency dividend that F.S. Lohr should receive on his proceedings. chattel mortgage. With this we do not agree.",
"The statute marks out the method by which distribution is to be made in insolvent estates, and we have no disposition to disturb the ruling of the district court thereon. F.W. Lohr also appeals in this matter, claiming that he performed certain services for the assignee, who was a sister of *Page 744 his, and that the reasonable value thereof was something over $200. The evidence, however, shows that the 4. ASSIGNMENTS contemplated insolvency proceedings of this firm FOR BENEFIT were pending for some time before the deed of OF assignment, and that F.W. Lohr was attorney for CREDITORS: his brother, F.S. Lohr, in looking after the settlement: matter. Some tax matters also arose in the refusal of proceedings, resulting in a compromise with the attorney county as to the taxes.",
"The district court held fees. that \"it was not understood or intended by either him [F.W. Lohr] or the assignee that he was to make any charge for his services as attorney, but was rendering his services to her only because she was his sister, and for her benefit;\" that, if he were subsequently employed by her, it was unnecessary to employ other attorneys. The firm of Kugler Bartlett seems to have been the principal attorneys in looking after the assignee's business. We have read the record, and it is sufficient to support the finding of the district court in disallowing attorney's fees to F.W. Lohr for services claimed. This question of attorney's fees here, of course, has no reference whatever to the attorney's fees provided for with reference to the notes and chattel mortgage. In accordance with this, the ruling of the district court will be modified by giving the chattel mortgage priority, as above indicated. Otherwise, the ruling of the district court is concurred in.",
"If desired, the case may be remanded for judgment in the same court in accordance herewith. — Modified andaffirmed. EVANS, C.J., and De GRAFF and MORLING, JJ., concur. SUPPLEMENTAL OPINION ON PETITION FOR REHEARING."
]
| https://www.courtlistener.com/api/rest/v3/opinions/3430247/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
White, J., delivered the opinion reversing the judgment. | 09-08-2022 | [
"White, J., delivered the opinion reversing the judgment."
]
| https://www.courtlistener.com/api/rest/v3/opinions/7867129/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
195 P.3d 1286 (2008) 2008 OK CIV APP 89 STATE of Oklahoma, Plaintiff/Appellee, v. Francisco SALCEDO-RUBIO, Defendant, and Affordable Bail Bonds, Inc. and Roberta Dampf-Aguilar, Appellants. No. 104,796. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 3. Court of Civil Appeals of Oklahoma, Division No. 3. September 25, 2008. *1287 Fred J. Morgan, Assistant District Attorney, Tulsa, OK, for Plaintiff/Appellee. Bruce A. McKenna, Brandon J. Burris, Glendening, McKenna & Prescott, Tulsa, OK, for Appellants. ROBERT DICK BELL, Judge. ¶ 1 Appellants, Affordable Bail Bonds, Inc. and Roberta Dampf-Aguilar, sureties on appearance bonds posted for Defendant, Francisco *1288 Salcedo-Rubio, (hereinafter "Surety"), appeal from the trial court's denial of Surety's motion to vacate the bond forfeiture order entered when Salcedo-Rubio failed to appear for a scheduled hearing. For the reasons set forth below, we affirm the trial court's judgment. ¶ 2 On April 17, 2006, Salcedo-Rubio, a legal resident of the United States but a Mexican citizen, was charged in Tulsa County District Court with four felony counts, including two counts of trafficking in illegal drugs. Surety posted bail of over $50,000.00 and Salcedo-Rubio was released from custody. When Salcedo-Rubio failed to appear at his May 4, 2006, initial arraignment, bench warrants were issued for his arrest and the trial court ordered his bonds forfeited. The instant appeal arises from the trial court's denial of Surety's motion to vacate the trial court's bond forfeiture order. ¶ 3 Surety's efforts to locate and retrieve Salcedo-Rubio began within a week of the bond forfeitures. On May 9, 2006, Surety filed a "Guarantee to Pay Reasonable Transportation Costs" in connection with apprehending the defendant and returning him to the custody of law enforcement officials. The execution of such guarantee results in the registration of a criminal defendant as a fugitive from justice in the National Crime Information Center Database. Agents for Surety then conducted interviews and/or surveillance of the bond co-signer and of Salcedo-Rubio's girlfriend. In July 2006, after confirming that Salcedo-Rubio had returned to his native country, Surety dispatched an agent to Mexico to attempt to retrieve him, advancing the agent $4,000.00 for his efforts. The agent was ultimately unsuccessful in securing Salcedo-Rubio's voluntary return to the United States. Both Mexican law enforcement officials and officials with the Mexican Embassy in El Paso, Texas, indicated to Surety's agent they could not cooperate in any efforts to apprehend Salcedo-Rubio in the absence of extradition papers. A Deputy United States Marshal advised Surety's agent that he should contact the Tulsa County District Attorney's Office to coordinate extradition efforts. ¶ 4 In early August 2006, Surety's agent contacted Tulsa County Assistant District Attorney Fred Morgan and inquired about extradition of Salcedo-Rubio. The agent claimed Morgan refused to seek Salcedo-Rubio's extradition because the district attorney's office had neither the time nor the staff to complete the paperwork prior to August 9, 2006, the deadline for returning Salcedo-Rubio to custody within the 90-day period set forth in 59 O.S.Supp.2002 § 1332. The agent testified Morgan even rejected his offer to help complete the extradition paperwork. Morgan maintains he simply informed the agent that, in his experience, extraditing someone from Mexico requires voluminous amounts of paperwork and takes from several months to over a year to obtain a provisional arrest warrant. Although no extradition request was ever filed, the trial court found no intentional wrongdoing on the part of the district attorney's office. ¶ 5 Surety makes essentially two arguments on appeal. First, Surety contends the trial court abused its discretion in declining to vacate the bond forfeiture order. Second, Surety asserts the district attorney's failure to institute extradition proceedings materially increased the Surety's risk exposure, warranting exoneration of the bonds. We reject both contentions. ¶ 6 This Court reviews a trial court's decision to vacate a bond forfeiture using an abuse of discretion standard. State v. Torres, 2004 OK 12, ¶ 10, 87 P.3d 572, 579. The Supreme Court has held: [D]iscretion is abused when a trial court makes a clearly erroneous conclusion and judgment contrary to reason and evidence, when it exercises its discretion to an end or purpose not justified by, and clearly contrary to, reason and evidence, and when discretion is employed on untenable grounds or for untenable reasons, or where its exercise is manifestly unreasonable. Id. Appellate courts are "obligat[ed] to accord substantial deference to the exercise of discretion by the trial court, ..." State v. Vaughn, 2000 OK 63, ¶ 25, 11 P.3d 211, 217. Finally, this Court may not disturb the trial court's conclusion "merely because we might have reached a different decision." Id. *1289 ¶ 7 Title 59 O.S. Supp.2002 § 1332(A) states that a trial court "shall" order a bond forfeited when a defendant breaches a bond obligation.[1] Subsection 1332(C)(2) provides the court "shall" vacate any forfeiture and exonerate a bond where the defendant is returned to custody in the jurisdiction where the forfeiture occurred within the ninety day period set forth in subsection (C)(1).[2] At issue in this case is subsection 1332(C)(5), which states in relevant part: The court may, in its discretion, vacate the order of forfeiture and exonerate the bond where good cause has been shown for: * * * b. the bondsman's failure to return the defendant to custody within ninety (90) days. ¶ 8 Factors to be considered by the trial court in determining whether "good cause" has been shown within the meaning of § 1332(C)(5) include: (a) whether the defendant has been returned to custody and, if so, whether the bondsman's efforts assisted in the defendant's return; (b) the nature and extent of the bondsman's efforts to locate and return the defendant to custody; (c) the length of the delay caused by the defendant's non-appearance; (d) the cost and inconvenience to the government in regaining control of the defendant; (e) the stage of the proceedings at the time of defendant's non-appearance; and (f) the public interest and necessity of effectuating defendant's appearance. Vaughn, 2000 OK 63 at ¶ 22, 11 P.3d at 216. The above list of factors is illustrative and not exhaustive. Id. "No one factor in and of itself is determinative and we do not prescribe the weight to be given any factor." Id. "The burden of showing facts warranting relief from forfeiture is on the party seeking such relief." Id. at ¶ 23, 11 P.3d at 216. ¶ 9 Surety's initial argument mirrors that made by the bondsman in Vaughn. There, the bondsman essentially argued that a mere showing of due diligence on his part in attempting to secure the fugitive defendant was sufficient to warrant exoneration of the bonds under § 1332(C)(5)(b). The evidence in Vaughn showed the bondsman expended significant efforts to locate the defendant (including spending $50,000.00), the proceedings were at an early stage when the defendant fled, the defendant had been returned to custody when the vacation motion was heard, the defendant's return to custody was not the result of the bondsman's efforts, the delay caused by the defendant's nonappearance (more than two years) was substantial, and the charges against the defendant were serious. Id. at ¶ 24, 11 P.3d at 216-7. The trial court determined the bondsman failed to establish good cause to vacate the bond forfeiture and the Supreme Court affirmed. Id. at ¶ 25, 11 P.3d at 217. ¶ 10 Considering the Vaughn factors set forth above, the present record reveals Salcedo-Rubio has never been returned to custody, Surety expended significant efforts to locate the defendant, the length of the delay caused by the defendant's non-appearance (more than one year at the time of the hearing) was substantial, the proceedings were at an early stage at the time of the defendant's non-appearance, and the charges against Salcedo-Rubio were serious. There is no evidence in the present record regarding any government efforts to regain custody of the defendant. ¶ 11 An initial comparison of the instant facts with those discussed in Vaughn lead us to conclude the trial court did not abuse its discretion in refusing to set aside the bond forfeitures. However, Surety argues this Court should also consider two other factors before making our decision: (1) *1290 the economic consequences of forfeiture and (2) the nature and extent of the district attorney's duties in connection with extradition. We dismiss Surety's first proposed additional factor out of hand. "When a bondsman enters into a contract of surety, he or she undertakes a bargained-for, calculated risk that the defendant will fail to appear at the time and place designated in the bond." Vaughn, 2000 OK 63 at ¶ 11, 11 P.3d at 214. Surety here undertook a calculated, bargained-for risk that Salcedo-Rubio would flee after being released from custody. The risk appears to be particularly increased in this case because Salcedo-Rubio is a Mexican citizen facing serious drug trafficking charges and Surety's power to recapture the defendant in Mexico is very limited. See State v. Coronel, 145 N.C.App. 237, 550 S.E.2d 561, 569 (2001) (sureties "aware that their power to capture defendants in Mexico was very limited, compared to their authority to do so in the United States"); In re Paul's Bonding Co., Inc., 62 S.W.3d 187, 195 (Tenn. Crim.App.2001) ("If the [bondsman] did not know the difficulties inherent in recapturing fugitives who have fled to Mexico, it was the [bondsman's] business to obtain the relevant information prior to entering into bail bond agreements with Mexican citizens"). If Surety believed the economic consequences of forfeiture were too severe, it should not have posted Salcedo-Rubio's bonds in the first place. ¶ 12 Surety's second proposed additional factor rests entirely upon its assertion that the government caused the bond forfeitures because it did not seek to extradite Salcedo-Rubio. As previously set forth, Surety did not initiate extradition discussions with the district attorney's office until early August 2006, just days before the 90-day deadline of § 1332 was set to expire. Under subsection 1332(C)(5)(b), Surety was obligated to show good cause for her "failure to return the defendant to custody within ninety (90) days." (Emphasis added). The undisputed evidence reveals it would have taken the government from several months to more than a year just to obtain a provisional warrant for Salcedo-Rubio's arrest under the extradition procedures. It would therefore have been impossible to complete the extradition process and return the defendant to custody in less than a week. Thus, the district attorney's failure/refusal to initiate extradition proceedings had no bearing whatsoever on Surety's failure to return Salcedo-Rubio to custody within 90 days of receiving notice of the bond forfeitures. We find no abuse of discretion. ¶ 13 With respect to Surety's second proposition of error, we reiterate that a bail bond agreement is a contract where the bondsman is the surety, the defendant is the principal and the State is the creditor. Vaughn, 2000 OK 63 at ¶ 10, 11 P.3d at 214. If the State, without notice to or without the consent of the bondsman, alters the terms of the bond agreement in a manner that materially increases the bondsman's risk, the alteration operates as a discharge of the bondsman's obligation. This is because a bondsman's agreement to assume one risk does not create a duty on the bondsman to assume a materially different risk. Id. at ¶ 11, 11 P.3d at 214-5 (emphasis in original, footnote omitted). "An alteration is material when it changes the nature of the contract by placing the bondsman in a substantially different position than he or she occupied before the change was made." Id. at ¶ 12, 11 P.3d at 215. Where the relevant facts are undisputed, "the question of whether an alteration is material becomes one of law." Id. This Court reviews questions of law de novo. Id. ¶ 14 Surety claims the district attorney's failure to institute extradition proceedings materially increased Surety's risk because such inaction made it impossible for Surety to return Salcedo-Rubio to custody. Similar arguments were made and rejected by bondsmen in U.S. v. Escamilla, 244 F.Supp.2d 760 (S.D.Tex.2003), and People v. Bustamante-Payan, 856 P.2d 42 (Colo.App. 1993). In both cases, the courts held that, because of the impossibility of recovering a Mexican national via international extradition, the government's failure or refusal to seek such extradition did not, in itself, constitute adequate grounds for exonerating the surety. Escamilla, 244 F.Supp.2d at 766 *1291 (evidence showed extradition of Mexican citizen to U.S. "practically impossible"); Bustamante-Payan, 856 P.2d at 45 (record established Mexico does not extradite its own nationals). A number of other courts, including Division 4 of this Court, have noted the difficulty, if not impossibility, of extraditing a Mexican citizen to the United States to face criminal charges. See State v. Ramos, 2001 OK CIV APP 1, ¶¶ 8-9, 43 P.3d 414, 416-7 (Mexico has national policy against extraditing its citizens to the United States to face pending charges); In re Paul's Bonding Co., Inc., 62 S.W.3d 187, 195 (Tenn.Crim.App.2001) (noted unenforceability of extradition treaty between U.S. and Mexico); People v. Ranger Ins. Co., 81 Cal.App.4th 676, 96 Cal.Rptr.2d 892, 896 n. 6 (2000) (noted "difficulty of extraditing Mexican citizens to the United States on anything but the most heinous of crimes"). ¶ 15 In light of the above, we conclude the district attorney's failure to seek the extradition of Salcedo-Rubio, in itself, did not materially increase Surety's risk on the bail bonds. Given the extreme difficultyif not impossibilityof extraditing a Mexican citizen from Mexico to face criminal charges in the United States, the fact the district attorney failed to initiate extradition proceedings did not place Surety in a substantially different position than it occupied before such failure occurred. Stated otherwise, any risk that Salcedo-Rubio would flee to Mexico and be difficult to recapture was not materially altered by the district attorney's inaction. The judgment of the trial court is affirmed. ¶ 16 AFFIRMED. MITCHELL, V.C.J., and BUETTNER, P.J., concur. NOTES [1] Section 1332 has since been amended in respects not relevant here. See 2007 Okla. Sess. Laws Ch. 97, § 1, eff. Nov. 1, 2007. [2] Subsection (C)(1) states, "The bail bondsman shall have ninety (90) days from receipt of the order and judgment from the court clerk or mailing of the notice if no receipt is made, to return the defendant to custody." In this case, Surety received official notice of the bond forfeitures on May 10, 2006. | 11-01-2013 | [
"195 P.3d 1286 (2008) 2008 OK CIV APP 89 STATE of Oklahoma, Plaintiff/Appellee, v. Francisco SALCEDO-RUBIO, Defendant, and Affordable Bail Bonds, Inc. and Roberta Dampf-Aguilar, Appellants. No. 104,796. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 3. Court of Civil Appeals of Oklahoma, Division No. 3. September 25, 2008. *1287 Fred J. Morgan, Assistant District Attorney, Tulsa, OK, for Plaintiff/Appellee. Bruce A. McKenna, Brandon J. Burris, Glendening, McKenna & Prescott, Tulsa, OK, for Appellants. ROBERT DICK BELL, Judge. ¶ 1 Appellants, Affordable Bail Bonds, Inc. and Roberta Dampf-Aguilar, sureties on appearance bonds posted for Defendant, Francisco *1288 Salcedo-Rubio, (hereinafter \"Surety\"), appeal from the trial court's denial of Surety's motion to vacate the bond forfeiture order entered when Salcedo-Rubio failed to appear for a scheduled hearing.",
"For the reasons set forth below, we affirm the trial court's judgment. ¶ 2 On April 17, 2006, Salcedo-Rubio, a legal resident of the United States but a Mexican citizen, was charged in Tulsa County District Court with four felony counts, including two counts of trafficking in illegal drugs. Surety posted bail of over $50,000.00 and Salcedo-Rubio was released from custody. When Salcedo-Rubio failed to appear at his May 4, 2006, initial arraignment, bench warrants were issued for his arrest and the trial court ordered his bonds forfeited. The instant appeal arises from the trial court's denial of Surety's motion to vacate the trial court's bond forfeiture order. ¶ 3 Surety's efforts to locate and retrieve Salcedo-Rubio began within a week of the bond forfeitures.",
"On May 9, 2006, Surety filed a \"Guarantee to Pay Reasonable Transportation Costs\" in connection with apprehending the defendant and returning him to the custody of law enforcement officials. The execution of such guarantee results in the registration of a criminal defendant as a fugitive from justice in the National Crime Information Center Database. Agents for Surety then conducted interviews and/or surveillance of the bond co-signer and of Salcedo-Rubio's girlfriend. In July 2006, after confirming that Salcedo-Rubio had returned to his native country, Surety dispatched an agent to Mexico to attempt to retrieve him, advancing the agent $4,000.00 for his efforts. The agent was ultimately unsuccessful in securing Salcedo-Rubio's voluntary return to the United States.",
"Both Mexican law enforcement officials and officials with the Mexican Embassy in El Paso, Texas, indicated to Surety's agent they could not cooperate in any efforts to apprehend Salcedo-Rubio in the absence of extradition papers. A Deputy United States Marshal advised Surety's agent that he should contact the Tulsa County District Attorney's Office to coordinate extradition efforts. ¶ 4 In early August 2006, Surety's agent contacted Tulsa County Assistant District Attorney Fred Morgan and inquired about extradition of Salcedo-Rubio. The agent claimed Morgan refused to seek Salcedo-Rubio's extradition because the district attorney's office had neither the time nor the staff to complete the paperwork prior to August 9, 2006, the deadline for returning Salcedo-Rubio to custody within the 90-day period set forth in 59 O.S.Supp.2002 § 1332.",
"The agent testified Morgan even rejected his offer to help complete the extradition paperwork. Morgan maintains he simply informed the agent that, in his experience, extraditing someone from Mexico requires voluminous amounts of paperwork and takes from several months to over a year to obtain a provisional arrest warrant. Although no extradition request was ever filed, the trial court found no intentional wrongdoing on the part of the district attorney's office. ¶ 5 Surety makes essentially two arguments on appeal. First, Surety contends the trial court abused its discretion in declining to vacate the bond forfeiture order.",
"Second, Surety asserts the district attorney's failure to institute extradition proceedings materially increased the Surety's risk exposure, warranting exoneration of the bonds. We reject both contentions. ¶ 6 This Court reviews a trial court's decision to vacate a bond forfeiture using an abuse of discretion standard. State v. Torres, 2004 OK 12, ¶ 10, 87 P.3d 572, 579. The Supreme Court has held: [D]iscretion is abused when a trial court makes a clearly erroneous conclusion and judgment contrary to reason and evidence, when it exercises its discretion to an end or purpose not justified by, and clearly contrary to, reason and evidence, and when discretion is employed on untenable grounds or for untenable reasons, or where its exercise is manifestly unreasonable. Id.",
"Appellate courts are \"obligat[ed] to accord substantial deference to the exercise of discretion by the trial court, ...\" State v. Vaughn, 2000 OK 63, ¶ 25, 11 P.3d 211, 217. Finally, this Court may not disturb the trial court's conclusion \"merely because we might have reached a different decision.\" Id. *1289 ¶ 7 Title 59 O.S. Supp.2002 § 1332(A) states that a trial court \"shall\" order a bond forfeited when a defendant breaches a bond obligation. [1] Subsection 1332(C)(2) provides the court \"shall\" vacate any forfeiture and exonerate a bond where the defendant is returned to custody in the jurisdiction where the forfeiture occurred within the ninety day period set forth in subsection (C)(1). [2] At issue in this case is subsection 1332(C)(5), which states in relevant part: The court may, in its discretion, vacate the order of forfeiture and exonerate the bond where good cause has been shown for: * * * b. the bondsman's failure to return the defendant to custody within ninety (90) days. ¶ 8 Factors to be considered by the trial court in determining whether \"good cause\" has been shown within the meaning of § 1332(C)(5) include: (a) whether the defendant has been returned to custody and, if so, whether the bondsman's efforts assisted in the defendant's return; (b) the nature and extent of the bondsman's efforts to locate and return the defendant to custody; (c) the length of the delay caused by the defendant's non-appearance; (d) the cost and inconvenience to the government in regaining control of the defendant; (e) the stage of the proceedings at the time of defendant's non-appearance; and (f) the public interest and necessity of effectuating defendant's appearance.",
"Vaughn, 2000 OK 63 at ¶ 22, 11 P.3d at 216. The above list of factors is illustrative and not exhaustive. Id. \"No one factor in and of itself is determinative and we do not prescribe the weight to be given any factor.\" Id. \"The burden of showing facts warranting relief from forfeiture is on the party seeking such relief.\" Id. at ¶ 23, 11 P.3d at 216. ¶ 9 Surety's initial argument mirrors that made by the bondsman in Vaughn. There, the bondsman essentially argued that a mere showing of due diligence on his part in attempting to secure the fugitive defendant was sufficient to warrant exoneration of the bonds under § 1332(C)(5)(b). The evidence in Vaughn showed the bondsman expended significant efforts to locate the defendant (including spending $50,000.00), the proceedings were at an early stage when the defendant fled, the defendant had been returned to custody when the vacation motion was heard, the defendant's return to custody was not the result of the bondsman's efforts, the delay caused by the defendant's nonappearance (more than two years) was substantial, and the charges against the defendant were serious.",
"Id. at ¶ 24, 11 P.3d at 216-7. The trial court determined the bondsman failed to establish good cause to vacate the bond forfeiture and the Supreme Court affirmed. Id. at ¶ 25, 11 P.3d at 217. ¶ 10 Considering the Vaughn factors set forth above, the present record reveals Salcedo-Rubio has never been returned to custody, Surety expended significant efforts to locate the defendant, the length of the delay caused by the defendant's non-appearance (more than one year at the time of the hearing) was substantial, the proceedings were at an early stage at the time of the defendant's non-appearance, and the charges against Salcedo-Rubio were serious. There is no evidence in the present record regarding any government efforts to regain custody of the defendant. ¶ 11 An initial comparison of the instant facts with those discussed in Vaughn lead us to conclude the trial court did not abuse its discretion in refusing to set aside the bond forfeitures.",
"However, Surety argues this Court should also consider two other factors before making our decision: (1) *1290 the economic consequences of forfeiture and (2) the nature and extent of the district attorney's duties in connection with extradition. We dismiss Surety's first proposed additional factor out of hand. \"When a bondsman enters into a contract of surety, he or she undertakes a bargained-for, calculated risk that the defendant will fail to appear at the time and place designated in the bond.\" Vaughn, 2000 OK 63 at ¶ 11, 11 P.3d at 214. Surety here undertook a calculated, bargained-for risk that Salcedo-Rubio would flee after being released from custody. The risk appears to be particularly increased in this case because Salcedo-Rubio is a Mexican citizen facing serious drug trafficking charges and Surety's power to recapture the defendant in Mexico is very limited.",
"See State v. Coronel, 145 N.C.App. 237, 550 S.E.2d 561, 569 (2001) (sureties \"aware that their power to capture defendants in Mexico was very limited, compared to their authority to do so in the United States\"); In re Paul's Bonding Co., Inc., 62 S.W.3d 187, 195 (Tenn. Crim.App.2001) (\"If the [bondsman] did not know the difficulties inherent in recapturing fugitives who have fled to Mexico, it was the [bondsman's] business to obtain the relevant information prior to entering into bail bond agreements with Mexican citizens\").",
"If Surety believed the economic consequences of forfeiture were too severe, it should not have posted Salcedo-Rubio's bonds in the first place. ¶ 12 Surety's second proposed additional factor rests entirely upon its assertion that the government caused the bond forfeitures because it did not seek to extradite Salcedo-Rubio. As previously set forth, Surety did not initiate extradition discussions with the district attorney's office until early August 2006, just days before the 90-day deadline of § 1332 was set to expire. Under subsection 1332(C)(5)(b), Surety was obligated to show good cause for her \"failure to return the defendant to custody within ninety (90) days.\" (Emphasis added). The undisputed evidence reveals it would have taken the government from several months to more than a year just to obtain a provisional warrant for Salcedo-Rubio's arrest under the extradition procedures. It would therefore have been impossible to complete the extradition process and return the defendant to custody in less than a week.",
"Thus, the district attorney's failure/refusal to initiate extradition proceedings had no bearing whatsoever on Surety's failure to return Salcedo-Rubio to custody within 90 days of receiving notice of the bond forfeitures. We find no abuse of discretion. ¶ 13 With respect to Surety's second proposition of error, we reiterate that a bail bond agreement is a contract where the bondsman is the surety, the defendant is the principal and the State is the creditor. Vaughn, 2000 OK 63 at ¶ 10, 11 P.3d at 214. If the State, without notice to or without the consent of the bondsman, alters the terms of the bond agreement in a manner that materially increases the bondsman's risk, the alteration operates as a discharge of the bondsman's obligation. This is because a bondsman's agreement to assume one risk does not create a duty on the bondsman to assume a materially different risk. Id. at ¶ 11, 11 P.3d at 214-5 (emphasis in original, footnote omitted).",
"\"An alteration is material when it changes the nature of the contract by placing the bondsman in a substantially different position than he or she occupied before the change was made.\" Id. at ¶ 12, 11 P.3d at 215. Where the relevant facts are undisputed, \"the question of whether an alteration is material becomes one of law.\" Id. This Court reviews questions of law de novo. Id. ¶ 14 Surety claims the district attorney's failure to institute extradition proceedings materially increased Surety's risk because such inaction made it impossible for Surety to return Salcedo-Rubio to custody. Similar arguments were made and rejected by bondsmen in U.S. v. Escamilla, 244 F.Supp.2d 760 (S.D.Tex.2003), and People v. Bustamante-Payan, 856 P.2d 42 (Colo.App. 1993). In both cases, the courts held that, because of the impossibility of recovering a Mexican national via international extradition, the government's failure or refusal to seek such extradition did not, in itself, constitute adequate grounds for exonerating the surety. Escamilla, 244 F.Supp.2d at 766 *1291 (evidence showed extradition of Mexican citizen to U.S. \"practically impossible\"); Bustamante-Payan, 856 P.2d at 45 (record established Mexico does not extradite its own nationals).",
"A number of other courts, including Division 4 of this Court, have noted the difficulty, if not impossibility, of extraditing a Mexican citizen to the United States to face criminal charges. See State v. Ramos, 2001 OK CIV APP 1, ¶¶ 8-9, 43 P.3d 414, 416-7 (Mexico has national policy against extraditing its citizens to the United States to face pending charges); In re Paul's Bonding Co., Inc., 62 S.W.3d 187, 195 (Tenn.Crim.App.2001) (noted unenforceability of extradition treaty between U.S. and Mexico); People v. Ranger Ins. Co., 81 Cal.App.4th 676, 96 Cal.Rptr.2d 892, 896 n. 6 (2000) (noted \"difficulty of extraditing Mexican citizens to the United States on anything but the most heinous of crimes\"). ¶ 15 In light of the above, we conclude the district attorney's failure to seek the extradition of Salcedo-Rubio, in itself, did not materially increase Surety's risk on the bail bonds.",
"Given the extreme difficultyif not impossibilityof extraditing a Mexican citizen from Mexico to face criminal charges in the United States, the fact the district attorney failed to initiate extradition proceedings did not place Surety in a substantially different position than it occupied before such failure occurred. Stated otherwise, any risk that Salcedo-Rubio would flee to Mexico and be difficult to recapture was not materially altered by the district attorney's inaction. The judgment of the trial court is affirmed. ¶ 16 AFFIRMED. MITCHELL, V.C.J., and BUETTNER, P.J., concur. NOTES [1] Section 1332 has since been amended in respects not relevant here. See 2007 Okla. Sess. Laws Ch.",
"97, § 1, eff. Nov. 1, 2007. [2] Subsection (C)(1) states, \"The bail bondsman shall have ninety (90) days from receipt of the order and judgment from the court clerk or mailing of the notice if no receipt is made, to return the defendant to custody.\" In this case, Surety received official notice of the bond forfeitures on May 10, 2006."
]
| https://www.courtlistener.com/api/rest/v3/opinions/2636430/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
434 P.2d 877 (1967) J.E. EPPERSON, formerly d/b/a Epperson Tank Trucks, Plaintiff in Error, v. HALLIBURTON COMPANY, a corporation, Defendant in Error. No. 41371. Supreme Court of Oklahoma. October 10, 1967. Rehearing Denied December 12, 1967. Shultz & Ivy, by Red Ivy, Chickasha, for plaintiff in error. Robert B. Park, Chickasha, for defendant in error. *878 PER CURIAM: The essential factual background which resulted in this appeal is uninvolved. Between January 1-February 23, 1960, the defendant in error, referred to as Halliburton, or plaintiff, furnished services and materials to J.E. Epperson, d/b/a Epperson Tank Trucks, hereafter the defendant, then engaged in drilling an oil and gas well in Caddo County, Oklahoma. The well failed as a producer and was abandoned. On July 16, 1960, the drilling company (Signet Drilling Company) sued defendant and numerous other creditors in Caddo County for money judgment and foreclosure of lien upon the leasehold. Halliburton, as well as other creditors, inter-pleaded in this action asserting its claim as a lien in the amount of $2,510.85, but was unable to secure personal service upon defendant. Publication service was made but defendant did not appear and default judgment was entered foreclosing the liens and directing sheriff's sale of the property. The judgment rendered was in rem against defendant's interest in the property. The lien foreclosure sale as confirmed by the court failed to return an amount sufficient to pay Halliburton. On December 13, 1963, Halliburton brought this action against defendant in Grady County, to recover the principal amount due ($2,362.70), and interest. The petition, after requisite jurisdictional matters, alleged furnishing of materials and services as itemized, nonpayment, demand and defendant's refusal to pay. Defendant answered by pleading that the Caddo County judgment was res judicata of the cause of action and asked that the case be dismissed. Following plaintiff's *879 reply defendant filed an amended answer alleging the cause of action was barred by the applicable statute of limitations. Plaintiff filed reply and the court ordered the case set for hearing. Subsequent to hearing plaintiff filed amended petition adopting the former allegations, but further alleging the indebtedness was incurred upon the basis of written instruments amounting to contracts; that all credits and offsets had been allowed under these contracts, and the amount claimed was due and owing. Plaintiff alleged payment of intangible taxes, but further plead that, although performed under written contract the amount due was an open account. Defendant answered by realleging the defenses asserted in the amended answer. At the trial plaintiff presented evidence showing the services and materials were furnished defendant in the drilling operations under written authorization: (1) Work Order Contract; (2) written invoice; (3) written invoice showing sales of materials as retail dealer, subject to limitations covered by printed portion denoted as the contract. The evidence showed that credit was customarily extended to any acceptable purchaser with a line of credit under the work order contract required to be signed before work was begun. All tickets or invoices showing material or services furnished were considered part of one transaction as a custom of the industry. The indebtedness created was considered an open account in that credit was extended only so long as the debtor kept the account in good standing, although based upon written agreements to pay which had to be executed before services were rendered or materials furnished. The defendant knew and understood that a work order contract was required before work commenced; such custom is understood because at the time the original work order is signed it is impossible to ascertain the exact amount of services and materials which will be required to complete a well. Defendant's demurrer to plaintiff's evidence upon the ground that the evidence showed existence of an open account and barred by the statute of limitations [12 O.S. 1961, § 95(2)] was overruled. Defendant elected to stand upon the demurrer. The trial court entered judgment for plaintiff in the principal amount, interest and costs, for the reason the action was based upon a written contract. This appeal involves the correctness of the trial court's finding and judgment. The identical issues presented in the trial court are urged as grounds for reversal. The first contention asserts that the district court judgment in the lien foreclosure action was res judicata of the present action for money judgment. The argument is based upon the law expressed in decisions such as Marcus v. Price, 202 Okl. 600, 216 P.2d 963, in which syllabus 1 states the rule: "In order to make a matter res judicata, there must be a concurrence of the four conditions following: (a) identity in the things sued for or subject matter of the suit; (b) identity of the cause of action; (c) identity of persons or parties in the action; and (d) identity of the capacity in the person for or against whom the claim is made." This contention lacks substantial merit. Cursory reference to the elements enumerated, as required to support the plea of res judicata, reflects a positive requirement that there be identity of the thing sued for, or the subject matter of the cause of action. The Caddo County action was instituted seeking money judgment and foreclosure of liens. Failure of personal service upon defendant necessitated reliance upon substituted process. The judgment approved the publication service, established the liens against the leasehold estate as valid and subsisting, and ordered same foreclosed and sold in satisfaction *880 of the lien claims. There was no effort by the lien claimants, or by the trial court in rendering judgment, to assess any deficiency against defendant. However, the property upon which the liens attached was within the court's jurisdiction. Such actions fall within the class designated as quasi in rem. In such cases the court may proceed if jurisdiction is acquired over the property belonging to the named defendant by substituted service sufficient to notify the defendant of the right to appear and defend the action, and the property involved may be taken and applied to satisfaction of the plaintiff's claim. This has been settled law since Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565. In 50 C.J.S. Judgments § 910c(2), the rule is stated: "A final judgment in rem may be pleaded in bar of another action on the same subject matter if its effect is to merge a distinct cause of action; but it has been held not to operate as a bar to a subsequent action for a judgment in personam." Judgments for foreclosure of mortgages, or mechanics or other liens are among the types of proceedings held to be quasi in rem. Ibid. § 911b. Also see Riverview State Bank v. Dreyer, 188 Kan. 270, 362 P.2d 55; Strand v. Halverson, 220 Iowa 1276, 264 N.W. 266, 103 A.L.R. 835; State ex rel. Truitt v. Dist. Ct., 44 N.M. 16, 96 P.2d 710, 126 A.L.R. 651. A judgment in a prior action between the same parties or their privies is res judicata in a second action only as to questions which properly were determinable in the prior action. The rule is so firmly settled that supporting authority is not required. No question involving defendant's in personam liability properly was determinable in the former action. The judgment granting the lien foreclosure was not res judicata of the present action. Concerning a judgment creditor's right to deficiency judgment against a debtor after a lien foreclosure see Price v. Shell Oil Co., Inc., 199 Okl. 193, 185 P.2d 211. Defendant's second contention is that the action sought to recover upon an open account, and therefore was barred under 12 O.S. 1961, § 95(2), the statute applicable to open accounts. It is argued that the written exhibits supporting plaintiff's claim amounted to nothing more than sales tickets evidencing an open account. As supporting authority defendant relies upon the text statement in 3 A.L.R.2d 839. Although the issue is not determined upon this basis, the annotation mentioned deals only with limitations in respect to accounts based solely upon sales slips or memoranda of sale and delivery. In Globe & Republic Ins. Co. v. Ind. Trucking Co., Okl., 387 P.2d 644, in determining that the action was based upon a written contract, we quoted from Connor Live Stock Co. v. Fisher, 32 Ariz. 80, 255 P. 996, 57 A.L.R. 196: "`Generally speaking, an open account is one where there are running or concurrent dealings between the parties, which are kept unclosed with the expectation of further transactions. * * An express contract, which defines the duties and liabilities of the parties, whether it be oral or written, is not, as a rule, an open account.'" We consider this conclusive of defendant's argument herein. Also see Sanditen, etc. v. Brooks Flame-Spray, Inc., Okl., 403 P.2d 471. The evidence concerning the nature and form of the written instruments was mentioned earlier. One type of instrument was an invoice which set forth details of the work to be performed and also contained an "invoice section" showing charges for the specified services. The two remaining types of written instruments were executed by defendant or his agents, upon delivery of materials and performance of services required in defendant's operations. Both types were styled "Contract" upon *881 the printed form. The "Cementing Work Order Contract" which specified the defendant was to pay for use of the cementing equipment and the service men, was partially printed and part in writing. The evidence showed this contract was signed by defendant although details as to type and amount of materials to be used would not be determined until work commenced, and the amount due was ascertainable only upon completion. According to custom, these items were inserted when ascertained and with the apparent understanding and agreement of defendant. There was no issue that plaintiff had failed to comply with the terms of the contract. Neither was there evidence the contract was other than it appeared to be, other than testimony elicited on cross-examination that, the matter was treated as an open account although based upon the contractual arrangement. Defendant demurred to the evidence and after being overruled elected to stand thereon and offered no evidence to controvert plaintiff's position that this mode of operation was contrary to custom in the industry, or that the contract related to other matters or was other than what it appeared. It is axiomatic that in an action of legal cognizance tried without a jury this Court will examine the evidence only to determine whether there is evidence reasonably supporting the trial court's findings and judgment. In Defenbaugh v. Purcell, 191 Okl. 192, 127 P.2d 207, the rule is stated in the syllabus: "When in a case where a jury has been waived and trial had to the court a defendant, after demurrer to the evidence of the plaintiff has been overruled, offers no evidence but stands upon the demurrer, judgment for the plaintiff is proper if there is any competent evidence to support it." Judgment affirmed. The Court acknowledges the services of DUDLEY H. CULP, who with the aid and counsel of CHARLES SIMS and WILLIAM BISHOP, as Special Masters, prepared a preliminary advisory opinion. These attorneys had been recommended by the Oklahoma Bar Association and appointed by the Court. The Chief Justice then assigned the case to BERRY, J., for review and study, after which and upon consideration by the Court, the foregoing opinion was adopted. All Justices concur. | 10-30-2013 | [
"434 P.2d 877 (1967) J.E. EPPERSON, formerly d/b/a Epperson Tank Trucks, Plaintiff in Error, v. HALLIBURTON COMPANY, a corporation, Defendant in Error. No. 41371. Supreme Court of Oklahoma. October 10, 1967. Rehearing Denied December 12, 1967. Shultz & Ivy, by Red Ivy, Chickasha, for plaintiff in error. Robert B. Park, Chickasha, for defendant in error. *878 PER CURIAM: The essential factual background which resulted in this appeal is uninvolved. Between January 1-February 23, 1960, the defendant in error, referred to as Halliburton, or plaintiff, furnished services and materials to J.E. Epperson, d/b/a Epperson Tank Trucks, hereafter the defendant, then engaged in drilling an oil and gas well in Caddo County, Oklahoma.",
"The well failed as a producer and was abandoned. On July 16, 1960, the drilling company (Signet Drilling Company) sued defendant and numerous other creditors in Caddo County for money judgment and foreclosure of lien upon the leasehold. Halliburton, as well as other creditors, inter-pleaded in this action asserting its claim as a lien in the amount of $2,510.85, but was unable to secure personal service upon defendant. Publication service was made but defendant did not appear and default judgment was entered foreclosing the liens and directing sheriff's sale of the property. The judgment rendered was in rem against defendant's interest in the property.",
"The lien foreclosure sale as confirmed by the court failed to return an amount sufficient to pay Halliburton. On December 13, 1963, Halliburton brought this action against defendant in Grady County, to recover the principal amount due ($2,362.70), and interest. The petition, after requisite jurisdictional matters, alleged furnishing of materials and services as itemized, nonpayment, demand and defendant's refusal to pay. Defendant answered by pleading that the Caddo County judgment was res judicata of the cause of action and asked that the case be dismissed. Following plaintiff's *879 reply defendant filed an amended answer alleging the cause of action was barred by the applicable statute of limitations.",
"Plaintiff filed reply and the court ordered the case set for hearing. Subsequent to hearing plaintiff filed amended petition adopting the former allegations, but further alleging the indebtedness was incurred upon the basis of written instruments amounting to contracts; that all credits and offsets had been allowed under these contracts, and the amount claimed was due and owing. Plaintiff alleged payment of intangible taxes, but further plead that, although performed under written contract the amount due was an open account. Defendant answered by realleging the defenses asserted in the amended answer. At the trial plaintiff presented evidence showing the services and materials were furnished defendant in the drilling operations under written authorization: (1) Work Order Contract; (2) written invoice; (3) written invoice showing sales of materials as retail dealer, subject to limitations covered by printed portion denoted as the contract. The evidence showed that credit was customarily extended to any acceptable purchaser with a line of credit under the work order contract required to be signed before work was begun.",
"All tickets or invoices showing material or services furnished were considered part of one transaction as a custom of the industry. The indebtedness created was considered an open account in that credit was extended only so long as the debtor kept the account in good standing, although based upon written agreements to pay which had to be executed before services were rendered or materials furnished. The defendant knew and understood that a work order contract was required before work commenced; such custom is understood because at the time the original work order is signed it is impossible to ascertain the exact amount of services and materials which will be required to complete a well. Defendant's demurrer to plaintiff's evidence upon the ground that the evidence showed existence of an open account and barred by the statute of limitations [12 O.S. 1961, § 95(2)] was overruled.",
"Defendant elected to stand upon the demurrer. The trial court entered judgment for plaintiff in the principal amount, interest and costs, for the reason the action was based upon a written contract. This appeal involves the correctness of the trial court's finding and judgment. The identical issues presented in the trial court are urged as grounds for reversal. The first contention asserts that the district court judgment in the lien foreclosure action was res judicata of the present action for money judgment. The argument is based upon the law expressed in decisions such as Marcus v. Price, 202 Okl. 600, 216 P.2d 963, in which syllabus 1 states the rule: \"In order to make a matter res judicata, there must be a concurrence of the four conditions following: (a) identity in the things sued for or subject matter of the suit; (b) identity of the cause of action; (c) identity of persons or parties in the action; and (d) identity of the capacity in the person for or against whom the claim is made.\"",
"This contention lacks substantial merit. Cursory reference to the elements enumerated, as required to support the plea of res judicata, reflects a positive requirement that there be identity of the thing sued for, or the subject matter of the cause of action. The Caddo County action was instituted seeking money judgment and foreclosure of liens. Failure of personal service upon defendant necessitated reliance upon substituted process. The judgment approved the publication service, established the liens against the leasehold estate as valid and subsisting, and ordered same foreclosed and sold in satisfaction *880 of the lien claims. There was no effort by the lien claimants, or by the trial court in rendering judgment, to assess any deficiency against defendant. However, the property upon which the liens attached was within the court's jurisdiction. Such actions fall within the class designated as quasi in rem. In such cases the court may proceed if jurisdiction is acquired over the property belonging to the named defendant by substituted service sufficient to notify the defendant of the right to appear and defend the action, and the property involved may be taken and applied to satisfaction of the plaintiff's claim.",
"This has been settled law since Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565. In 50 C.J.S. Judgments § 910c(2), the rule is stated: \"A final judgment in rem may be pleaded in bar of another action on the same subject matter if its effect is to merge a distinct cause of action; but it has been held not to operate as a bar to a subsequent action for a judgment in personam.\" Judgments for foreclosure of mortgages, or mechanics or other liens are among the types of proceedings held to be quasi in rem.",
"Ibid. § 911b. Also see Riverview State Bank v. Dreyer, 188 Kan. 270, 362 P.2d 55; Strand v. Halverson, 220 Iowa 1276, 264 N.W. 266, 103 A.L.R. 835; State ex rel. Truitt v. Dist. Ct., 44 N.M. 16, 96 P.2d 710, 126 A.L.R. 651. A judgment in a prior action between the same parties or their privies is res judicata in a second action only as to questions which properly were determinable in the prior action. The rule is so firmly settled that supporting authority is not required. No question involving defendant's in personam liability properly was determinable in the former action. The judgment granting the lien foreclosure was not res judicata of the present action. Concerning a judgment creditor's right to deficiency judgment against a debtor after a lien foreclosure see Price v. Shell Oil Co., Inc., 199 Okl. 193, 185 P.2d 211.",
"Defendant's second contention is that the action sought to recover upon an open account, and therefore was barred under 12 O.S. 1961, § 95(2), the statute applicable to open accounts. It is argued that the written exhibits supporting plaintiff's claim amounted to nothing more than sales tickets evidencing an open account. As supporting authority defendant relies upon the text statement in 3 A.L.R.2d 839. Although the issue is not determined upon this basis, the annotation mentioned deals only with limitations in respect to accounts based solely upon sales slips or memoranda of sale and delivery. In Globe & Republic Ins. Co. v. Ind. Trucking Co., Okl., 387 P.2d 644, in determining that the action was based upon a written contract, we quoted from Connor Live Stock Co. v. Fisher, 32 Ariz. 80, 255 P. 996, 57 A.L.R. 196: \"`Generally speaking, an open account is one where there are running or concurrent dealings between the parties, which are kept unclosed with the expectation of further transactions. * * An express contract, which defines the duties and liabilities of the parties, whether it be oral or written, is not, as a rule, an open account.'\" We consider this conclusive of defendant's argument herein. Also see Sanditen, etc.",
"v. Brooks Flame-Spray, Inc., Okl., 403 P.2d 471. The evidence concerning the nature and form of the written instruments was mentioned earlier. One type of instrument was an invoice which set forth details of the work to be performed and also contained an \"invoice section\" showing charges for the specified services. The two remaining types of written instruments were executed by defendant or his agents, upon delivery of materials and performance of services required in defendant's operations. Both types were styled \"Contract\" upon *881 the printed form. The \"Cementing Work Order Contract\" which specified the defendant was to pay for use of the cementing equipment and the service men, was partially printed and part in writing. The evidence showed this contract was signed by defendant although details as to type and amount of materials to be used would not be determined until work commenced, and the amount due was ascertainable only upon completion.",
"According to custom, these items were inserted when ascertained and with the apparent understanding and agreement of defendant. There was no issue that plaintiff had failed to comply with the terms of the contract. Neither was there evidence the contract was other than it appeared to be, other than testimony elicited on cross-examination that, the matter was treated as an open account although based upon the contractual arrangement. Defendant demurred to the evidence and after being overruled elected to stand thereon and offered no evidence to controvert plaintiff's position that this mode of operation was contrary to custom in the industry, or that the contract related to other matters or was other than what it appeared. It is axiomatic that in an action of legal cognizance tried without a jury this Court will examine the evidence only to determine whether there is evidence reasonably supporting the trial court's findings and judgment. In Defenbaugh v. Purcell, 191 Okl.",
"192, 127 P.2d 207, the rule is stated in the syllabus: \"When in a case where a jury has been waived and trial had to the court a defendant, after demurrer to the evidence of the plaintiff has been overruled, offers no evidence but stands upon the demurrer, judgment for the plaintiff is proper if there is any competent evidence to support it.\" Judgment affirmed. The Court acknowledges the services of DUDLEY H. CULP, who with the aid and counsel of CHARLES SIMS and WILLIAM BISHOP, as Special Masters, prepared a preliminary advisory opinion. These attorneys had been recommended by the Oklahoma Bar Association and appointed by the Court. The Chief Justice then assigned the case to BERRY, J., for review and study, after which and upon consideration by the Court, the foregoing opinion was adopted. All Justices concur."
]
| https://www.courtlistener.com/api/rest/v3/opinions/2619940/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
425 F. Supp. 734 (1977) INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS, INC., and Govinda Das, on behalf of themselves and all International Society for Krishna Consciousness members, Plaintiffs, v. James R. ROCHFORD, Superintendent of Chicago Police Department, et al., Defendants. No. 76 C 1615. United States District Court, N. D. Illinois, E. D. January 21, 1977. *735 *736 Barry A. Fisher, Fleishman, Brown, Weston & Rohde, Beverly Hills, Cal., Edwards, Haney, Singer & Stein, Chicago, Ill., for plaintiffs. William R. Quinlan, Corporation Counsel, Chicago, Ill., for defendants.
MEMORANDUM
I LEIGHTON, District Judge. This suit seeks a declaratory judgment and injunctive relief against enforcement of regulations adopted by the airport commissioner of the city of Chicago. The complaint alleges that because the regulations lack procedures guaranteeing due process, and give airport officials unbridled power to grant or deny permits, they are unconstitutional and abridge rights secured by the First Amendment to the federal constitution. For jurisdiction in this court the suit relies on 28 U.S.C. §§ 1331, 1343(3)(4) and prays for relief pursuant to 28 U.S.C. §§ 2201, 2202. It is alleged that the amount in controversy exceeds $10,000, exclusive of interest and costs. And contending that there is no material issue of fact in the case, plaintiffs, with supporting affidavit, have moved for summary judgment, incorporating by reference a brief filed in support of a motion for preliminary injunction. Defendants have answered the complaint, and supported by an affidavit, oppose the motion. In a memorandum, they contend that plaintiffs attack the regulations facially and as they are applied in the daily administration of O'Hare Airport. Therefore, defendants insist that there are factual issues to be resolved before the case can be decided. These contentions require this court to determine whether the pleadings, affidavits, and memoranda show that there is no genuine issue concerning any material fact; and whether plaintiffs are entitled to judgment as a matter of law. The facts are as follows.
II Plaintiff International Society of Krishna Consciousness is a non-profit religious corporation which espouses the views of Krishna Consciousness and maintains temples and schools throughout the world. It requires its devotees to perform a religious ritual called Sankirtan, one consisting, in part, of activities that spread the religion's truths through solicitation of contributions, dissemination of religious tracts, and sale of religious materials. For some time, members of Krishna have performed this ritual in the public areas of O'Hare Airport, an international air transportation complex in Chicago. Govinda Das, whose legal name is Robert H. Lindberg, is an ordained priest of the religion, a vice-president of its Chicago Temple, and performs Sankirtan at O'Hare, a course of conduct he desires to continue in the future. James Rochford is the superintendent of police of the city of Chicago and enforces the regulations in question. William R. Quinlan is the city's corporation counsel and prosecutes those who violate the regulations. The city of Chicago adopted the regulations which plaintiffs allege violate their First Amendment rights. O'Hare Airport is owned by the city of Chicago, subject to its ordinances, and operated by the department of aviation, an executive arm of the city government established in 1958 by section 8.2-1, chapter 8.2 of its municipal code. The department is headed by a commissioner of aviation who is responsible for the management, control of design, operation and maintenance of all Chicago airports. O'Hare has 72 departure gates that handle, more or less, 1800 flights daily. It employs 33,000 persons; and some 100,000,000 passengers, visitors and employees use its facilities yearly. Over 18,000,000 transit passengers change planes at O'Hare each year. Portions of the airport are leased to airlines and concessionaires. These include lobbies and areas open to the general public without restriction. Effective March 29, 1976, acting under the authority given him by the city's municipal code, and in consultation with airport officials, the commissioner of aviation *737 adopted regulations for all airports under his jurisdiction. Notices were posted in airport administrative offices and at O'Hare telling all persons desiring to solicit funds or distribute literature at airports to comply with the following rules, a true and correct copy of which was attached by plaintiffs to their complaint and is referred to by defendants in their affidavit opposing summary judgment.
AIRPORT REGULATIONS
DEPARTMENT OF AVIATION Pursuant to the authority vested in the Commissioner of the Department of Aviation of the City of Chicago by Chapter 8.2 of the Municipal Code of the City of Chicago, and in order to balance the rights of the traveling public and those who have a right to be in public places to publicize their views, the following regulations are adopted, to be effective immediately. These regulations are intended to accomplish goals of: -assuring fair use of facilities in Chicago's airports by passengers and persons accompanying them, employees, lessees, and persons and groups wishing to publicize their views; -preventing interference with the right of passengers to free access to the airport travel facilities and the free passage among those facilities; -discouraging interference with persons who are required to wait in lines; -preventing interference with hijack and other security measures; -permitting equitable access among persons and groups desiring to publicize their views.
1 Persons authorized by law to distribute literature, or solicit contributions may do so only in public areas of Chicago airports, provided that they may not do so in the following areas: A. All aircraft departure lounges and concourses leading to them including concourses A through K; B. All concourses leading to the terminal buildings including the rotunda; C. At, in, at the entrance to, or exit from: (1) hijack, search, and security areas; (2) ticket counters; (3) baggage pickup or collection areas; (4) washroom areas; (5) areas leased to concessionaires and other lessees except by permission of such lessee; (6) elevators, escalators, moving walkways; and (7) main terminal doors and vestibules. D. At locations where persons are in line at or before areas described in subparagraph C. 2 A. No person shall distribute literature or solicit contributions unless he shall have registered beforehand with the airport manager or his authorized representative for each day such activities are engaged in. B. Between 9 a.m. to 9:30 a.m. each day each person who desires to distribute literature or solicit contributions shall register in person with the airport manager or his authorized representative, who shall allot reservations for each day in the sequence each person registers. Each person shall give his name and address as well as the organization or purpose he represents and the terminal in which he will be on that day. C. Each person registered shall receive from the airport manager or his authorized representative a badge or insignia in a form prescribed by the airport manager. Such badge or insignia shall be valid only for the day issued. It shall be worn at all times by the bearer while at the airport, and in a manner visible to the public. It shall not be transferred to another person, and shall be destroyed by the bearer when he leaves the airport at the end of the day.
*738 3 A. No person except concessionaires and other lessees as permitted by contract with the City of Chicago shall sell anything for commercial purposes. B. No person shall make a noise or create other disturbances which interferes with the ability of others to hear public announcements or interferes with the transaction of business with airlines, concessionaires, or lessees. C. No person shall interfere with the free passage to, or access of, other persons to corridors, entrances, doorways, or offices or airport facilities. D. No individual shall be solicited by more than one person at a time. E. No person shall erect a table, chair, or other structure other than in the leased space.
4 The airport manager of his authorized representative may declare an emergency on account of unusually congested conditions in the airport terminals caused by weather, schedule interruptions, extremely heavy traffic movements or other causes, or on account of emergency security measures. In such case an announcement shall be made. All persons distributing literature or soliciting contributions as permitted under paragraph I and II shall immediately cease such activities for the duration of such emergency.
III These, then, are the regulations in question. The parties agree to this fact. They also agree that at O'Hare Airport plaintiffs engage only in the ritual they call Sankirtan: the solicitation of contributions, distribution of religious tracts, and the sale of religious materials. But they disagree on the construction of the regulations. Plaintiffs contend they are unconstitutional, facially and as applied because they lack procedures guaranteeing due process and give airport officials unbridled power to deny permits and thus prevent plaintiffs' enjoyment of their First Amendment rights at O'Hare by the practice of their religious ritual. It should be observed that the contention asserting the regulations are "* * unconstitutional facially * * *" means that a mere reading of them will disclose the claimed defect; while the contention asserting the regulations "* * * are unconstitutional * * * as applied * * *" can mean only their application to the activities in which plaintiffs engage at O'Hare. Bearing directly on this latter meaning, defendants contend that there are material issues of fact to be resolved in this case. But the thrust of their argument is to support the contention that the regulations are constitutional; that they were adopted to protect the public in the use of Chicago airports; and that they do not abridge any of the freedoms plaintiffs enjoy under the First Amendment. Therefore, a dispute exists between the parties concerning construction of the regulations; but it is not a dispute as to a material fact; it is one that presents only a question of law. Atchison, Topeka & Santa Fe Ry. Co. v. City of Chicago, 136 F. Supp. 476, 480 (N.D.Ill.1955) reversed on other grounds 7 Cir., 240 F.2d 930; compare Bricklayers, Etc., U. 15, Fla. v. Stuart Plaster Co., Inc., 512 F.2d 1017 (5th Cir. 1975). Where a decision turns on the meaning of words in a statute or regulation, a legal question is presented for the court to decide. Bingham's Trust v. Commissioner of Internal Revenue, 325 U.S. 365, 65 S. Ct. 1232, 89 L. Ed. 1670 (1945); Northern Natural Gas Company v. O'Malley, 277 F.2d 128 (8th Cir. 1960); see 82 C.J.S. Statutes § 312 (1953). Therefore, when the question presented is only a legal one requiring examination of municipal regulations to determine their constitutionality, the issue is appropriate for summary judgment proceedings. See Gray Line, Inc. v. Gray Line Sightseeing Companies Associated, Inc., 246 F. Supp. 495 (N.D.Cal.1965). Of course, there are well-established principles of constitutional law that serve as predicates in determining whether municipal regulations are unconstitutional.
*739 IV Our federal constitution, through the 1st and 14th Amendments, establishes that neither Congress nor the legislature of a state, can make any "* * * law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press * * *." U.S.Const. Amends. I, XIV; see Jones v. City of Opelika, 316 U.S. 584, 62 S. Ct. 1231, 86 L. Ed. 1691 (1942). Implementing this rule of the constitution, it has been recognized that hand distribution of religious tracts is an age-old form of missionary evangelism; it is more than preaching; it is more than distribution of religious literature. Its purpose is as evangelical as the revival meeting; and as a form of religious activity, it occupies the same estate under the First Amendment as do worship in churches and preaching from pulpits. And the mere fact that religious literature is sold, or contributions solicited, does not put this form of evangelism outside the pale of constitutional protection. Murdock v. Pennsylvania, 319 U.S. 105, 63 S. Ct. 870, 87 L. Ed. 1292 (1943); International Soc. for Krishna Con. v. City of New Orleans, 347 F. Supp. 945 (E.D.La.1972). This is not to intimate nor suggest that any conduct can be made a religious ritual and by the zeal of practitioners be swept into the protection of the First Amendment. Reynolds v. United States, 98 U.S. 145, 25 L. Ed. 244 (1878); Davis v. Beason, 133 U.S. 333, 10 S. Ct. 299, 33 L. Ed. 637 (1890). In fact, it is settled in our constitutional law that a municipality has the power to protect its citizens from undue annoyance by regulating the solicitation of contributions and canvassing for converts. See Schneider v. New Jersey, 308 U.S. 147, 60 S. Ct. 146, 84 L. Ed. 155 (1939). Only recently, Mr. Chief Justice Burger, speaking for the court in a context slightly different from the one at bar, had occasion to say that "[a] narrowly drawn ordinance, that does not vest in municipal officials the undefined power to determine what messages residents will hear may serve these important interests without running afoul of the First Amendment." Hynes v. Mayor and Council of Borough of Oradell, 425 U.S. 610, 96 S. Ct. 1755, 48 L. Ed. 2d 243 (1976). For First Amendment requirements, there is no difference between an ordinance and a set of regulations adopted pursuant to municipal authority. Consequently, the question to be decided is whether the regulations adopted by the airport commissioner of the city of Chicago meet the test of these constitutional principles.
V In proceeding to the decision, this court observes that the regulations in question consist of five parts: the first, an introductory paragraph with five subdivisions; the next four, a series of paragraphs with Roman numeral designations.[1] It is said in the introductory paragraph that the regulations are for Chicago airports. And, as is common knowledge, Chicago has three airports: Meigs, near the Loop, a small one with one airstrip; Midway, in the southwest side of the city, an airport with several concourses and more than one airstrip but which cannot accommodate large jets; and O'Hare, in the far northwest side, with many concourses and a number of airstrips capable of accommodating transcontinental jets. The first part begins with the declaration that the regulations are intended to assure fair use of airport facilities by "* * * passengers, and persons accompanying them, employees, lessees, and persons and groups wishing to publicize their views * * *." The remaining subparagraphs of this part state that the regulations are intended to foster the goals of "preventing interference with the right of passengers to free access to the airport *740 travel facilities, and the free passage among those facilities; discouraging interference with persons who are required to wait in line; preventing interference with hijack and other security measures; permitting equitable access among persons and groups desiring to publicize their views." The regulations do not define nor make clear what is meant by these expressions. Whose "employees" and what "lessees" are not defined nor specified. Without question, the First and Fourteenth Amendments apply to government-owned airports like Meigs, Midway and O'Hare. Chicago Area Military Project v. City of Chicago, 508 F.2d 921 (7th Cir. 1975); cert. denied, 421 U.S. 992, 95 S. Ct. 1999, 44 L. Ed. 2d 483; cf. International Soc. Krishna v. Dallas-Ft. W. Reg. Air. B., 391 F. Supp. 606 (N.D.Tex.1975). Apparently, the draftsman of these provisions recognized this principle when it was stated, laudably, that "* * * in order to balance the rights of the traveling public and those who have a right to be in public places to publicize their views, the following regulations are adopted * * *." However, in Interstate Circuit v. City of Dallas, 390 U.S. 676, 88 S. Ct. 1298, 20 L. Ed. 2d 225 (1968), Mr. Justice Marshall, speaking for the court, pointed out that "[v]agueness and the attendant evils we have earlier described * * * are not rendered less objectionable because the regulation of expression is one of classification rather than direct suppression. * * * Nor is it an answer to an argument that a particular regulation of expression is vague to say that it was adopted for [a] salutary purpose * * *." 390 U.S. at 688-89, 88 S.Ct. at 1306. Therefore, stating the purpose of these regulations, even the declaration of a salutary one, will not cure the evils of vagueness if they are present in an attempt to restrict the enjoyment of First Amendment freedoms. See Wolin v. Port of New York Authority, 392 F.2d 83 (2d Cir. 1968), cert. denied, 393 U.S. 940, 89 S. Ct. 290, 21 L. Ed. 2d 275. The second part begins with a paragraph which states that "[p]ersons authorized by law to distribute literature, or solicit contributions may do so only in public areas of Chicago airports, provided that they may not do so in the following areas * * *." Then, in a series of subparagraphs, the prohibited areas are said to be "[a]ll aircraft departure lounges and con-courses leading to them including concourses A through K [and] [a]ll concourses leading to the terminal buildings including the rotunda." Included in the prohibited areas are those "[a]t, in, at the entrance to, or exit from" places where contributions can be solicited or literature distributed, such as "* * * hijack, search, and security areas; ticket counters; baggage pickup or collection areas; washroom areas; areas leased to concessionaires and other lessees except by permission of such lessee; elevators, escalators, moving walkways; and main terminal doors and vestibules." The list of proscribed areas ends with "[l]ocations where persons are in line at or before areas described in [the previous subparagraph]." Again, it is not stated whether the areas referred to are at Meigs, Midway or O'Hare; whether, for example, there are "concourses A through K" at all Chicago airports is not made clear. Whether all Chicago airports have "concourses leading to the terminal buildings including the rotunda" is similarly unclear. Nor is it clear where are the locations of the "public areas of Chicago airports" after the prohibited areas are taken into account. It is not explained what the regulations mean by "[p]ersons authorized by law to distribute literature, or solicit contributions * *." These words suggest there are persons authorized by law to distribute literature and solicit contributions and some who are not. Therefore, the regulations are at least ambiguous "because in certain respects `men of common intelligence must necessarily guess at [their] meaning'." Hynes v. Mayor and Council of Borough of Oradell, 425 U.S. 610, 96 S. Ct. 1755, 1760 (1976). It is well established that vague words in a statute, ordinance, or regulation proscribing enjoyment of First Amendment rights are the equivalent of outright prohibition of free speech. See National Association of Letter Carriers v. Blount, 305 F. Supp. 546 (D.D.C.1969); cf. *741 Stacy v. Williams, 306 F. Supp. 963 (N.D. Miss.1969). And in cases like the one before the court, vagueness in municipal regulations whose purpose is control of speech is fatal. Kunz v. People of the State of New York, 340 U.S. 290, 71 S. Ct. 312, 95 L. Ed. 280 (1951); see also, Niemotko v. Maryland, 340 U.S. 268, 71 S. Ct. 328, 95 L. Ed. 267 (1951) (Frankfurter, J., concurring). Although it is said in the second part that, with the stated exceptions, persons authorized by law to distribute literature or solicit contributions may do so in public areas of Chicago airports, the third part provides that no person shall distribute literature or solicit contributions unless between 9 and 9:30 a. m. each morning he or she registers with the airport manager or his authorized representative for the day of such activities. Upon registering, the airport manager or his authorized representative "shall allot reservations for each day in the sequence each person registers." That person is to give his or her name, the purpose of the activity, the organization represented, and the terminal in which he or she will be that day. A badge or insignia in a form prescribed by the airport manager is to be given the person; and it shall be worn by the bearer at the airport, in a manner visible to the public and be destroyed when the bearer leaves at the end of the day. These provisions do not define the qualifications for registration; they do not contain standards to guide the airport manager or his authorized representative in determining whether to allow the person to be registered; nor is there any provision by which the actions of the airport manager or his authorized representative can be reviewed either administratively or judicially. A reading of this and the previous part makes it obvious that the regulations create a mode of controlling the exercise of First Amendment rights in Chicago airports. For without the registration, a form of permit, solicitation of contributions, distribution of religious tracts, and sale of religious materials are unlawful conduct. And it appears that the registration requirements vest in the airport manager or his authorized representative discretionary power either to allow or to deny a person the opportunity to distribute literature or solicit contributions at a Chicago airport. A statute, ordinance, or regulation that makes it unlawful for a person to exercise First Amendment rights without obtaining, in advance, a permit from a municipal official who has unbridled discretionary power to prevent the exercise of First Amendment freedoms is invalid as prior restraint on rights guaranteed by the federal constitution. Kunz v. People of the State of New York, 340 U.S. 290, 71 S. Ct. 312, 95 L. Ed. 280 (1951); Lovell v. City of Griffin, Ga., 303 U.S. 444, 58 S. Ct. 666, 82 L. Ed. 949 (1938). And it is a requirement of our constitutional law that the decisions of a municipal officer restricting First Amendment freedoms be the subject of prompt notice and a mode of review by which it can be determined whether the ruling is valid. See Slate v. McFetridge, 484 F.2d 1169 (7th Cir. 1973); Collin v. Chicago Park District, 460 F.2d 746 (7th Cir. 1972). The fourth part, in five alphabetically designated paragraphs, prohibits anyone, except a concessionaire and lessee as permitted by contract with the city of Chicago, from selling "* * * anything for commercial purposes." No one is to make any noise or create any disturbance which will interfere "* * * with the ability of others to hear public announcements or [interfere] with the transaction of business with airlines, concessionaires or lessees." No one is to interfere "* * * with the free passage to, or access of, other persons to corridors, entrances, doorways, or offices or airport facilities." An individual is not to be solicited by more than one person at a time. Finally, "[n]o person shall erect a table, chair, or other structure other than in the leased space." These words leave unclear whether the prohibition against sale of "anything for commercial purposes" includes religious tracts and religious materials or whether the sale of religious tracts and religious materials is exempt from the prohibition of sales of "anything for commercial purposes." Whether the prohibition against any "noise * * * [or] other *742 disturbance * * *" includes speech is left open to question. Also unclear is the prohibition against solicitation of any individual "by more than one person at a time." Whether this means the time the individual is within an airport or the time at which he is solicited is uncertain. Whether the prohibition against erection of a table, chair or other structure applies to lessees only is unclear. Why these prohibitions are necessary is not explained. This fact assumes importance in view of the principle that statutes, ordinances or regulations restricting exercise of First Amendment freedoms are inherently suspect and, when brought before court, bear a heavy presumption against their validity. Finally, the fifth part gives the airport manager or his authorized representative the authority to declare "* * * an emergency on account of unusually congested conditions in the airport terminals caused by weather, schedule interruptions, extremely heavy traffic movements or other causes, or on account of emergency security measures. In such case an announcement shall be made." Upon such announcement, all persons distributing literature or soliciting contributions as permitted by the regulations through registration shall cease such activity. What is it that would make weather, or extremely heavy traffic, "or other causes" a factor for suppressing all First Amendment rights at a Chicago airport is not stated. What is meant by "other causes" is also left unclear. What is meant by "emergency security measures" is unsaid. These words, uncertain in meaning, and devoid of guiding standards, are capable of being construed as authority for prior restraint of First Amendment freedoms. For this reason, their application in express terms must be limited to the regulation of time, place and manner in which rights under the First Amendment are exercised. There must be narrow, objective and definite standards to guide those who exercise the authority to restrict protected constitutional rights. Shuttlesworth v. Birmingham, 394 U.S. 147, 89 S. Ct. 935, 22 L. Ed. 2d 162 (1969). The standards must be susceptible to objective measurements; and there must be precision in the terms of the regulations. See Keyishian v. Board of Regents, 385 U.S. 589, 87 S. Ct. 675, 17 L. Ed. 2d 629 (1967); NAACP v. Button, 371 U.S. 415, 83 S. Ct. 328, 9 L. Ed. 2d 405 (1963). As a rule, a statute or ordinance that vests unbridled discretionary power in a municipal officer to deny enjoyment of First Amendment freedoms is an extreme form of regulation and abridges the freedom of religion, of the press and of speech guaranteed by the First Amendment, a constitutional provision that is made applicable to the states by the Fourteenth Amendment. Largent v. State of Texas, 318 U.S. 418, 63 S. Ct. 667, 87 L. Ed. 873 (1943).
IV From all of the foregoing, the court concludes that the pleadings, affidavits, and memoranda show there is no genuine issue as to any material fact in this case; that the controversy between the parties can be resolved by a mere reading of the regulations adopted by the airport commissioner of the city of Chicago; therefore, this case is a proper one for summary judgment. The regulations in question disclose that although they purport to balance the rights of the public at Chicago airports with those of persons who desire to enjoy First Amendment freedoms in the public areas of those facilities, they are in fact a municipal mode of regulating and controlling speech, one capable of administration that will suppress First Amendment rights. The words of the regulations are vague and uncertain; they give unbridled power to airport officials; their provisions are susceptible to a number of meanings. They are utterly lacking in standards that can guide airport officials in making decisions which may manifest the censor's heavy hand on the freedom of religion, of thought, speech and the press. They lack a procedure, or some means, administrative or judicial, by which these decisions can be reviewed to determine their validity. In sum, these regulations are facially unconstitutional. For these reasons, plaintiffs, as a matter of law, *743 are entitled to judgment granting them the declaratory and injunctive relief they pray for in their complaint. Kuszynski v. City of Oakland, 479 F.2d 1130 (9th Cir. 1973); Gall v. Lawler, 322 F. Supp. 1223 (E.D.Wis.1971); Freedman v. Maryland, 380 U.S. 51, 85 S. Ct. 734, 13 L. Ed. 2d 649 (1965). Accordingly, an appropriate judgment order, consistent with this memorandum, may be tendered to the court for approval and entry. So ordered. NOTES [1] As published by the commissioner, the regulation, after the introductory paragraph, has four parts designated by Roman numerals, I to IV. Each contains alphabetically designated subparagraphs; and in one instance there are Arabic subdivisions in parentheses. In this memorandum, in order not to confuse the Roman numeral subdivisions of the regulations with the text, the four parts have been redesignated in Arabic, 1 to 4. | 10-30-2013 | [
"425 F. Supp. 734 (1977) INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS, INC., and Govinda Das, on behalf of themselves and all International Society for Krishna Consciousness members, Plaintiffs, v. James R. ROCHFORD, Superintendent of Chicago Police Department, et al., Defendants. No. 76 C 1615. United States District Court, N. D. Illinois, E. D. January 21, 1977. *735 *736 Barry A. Fisher, Fleishman, Brown, Weston & Rohde, Beverly Hills, Cal., Edwards, Haney, Singer & Stein, Chicago, Ill., for plaintiffs. William R. Quinlan, Corporation Counsel, Chicago, Ill., for defendants. MEMORANDUM I LEIGHTON, District Judge. This suit seeks a declaratory judgment and injunctive relief against enforcement of regulations adopted by the airport commissioner of the city of Chicago. The complaint alleges that because the regulations lack procedures guaranteeing due process, and give airport officials unbridled power to grant or deny permits, they are unconstitutional and abridge rights secured by the First Amendment to the federal constitution. For jurisdiction in this court the suit relies on 28 U.S.C.",
"§§ 1331, 1343(3)(4) and prays for relief pursuant to 28 U.S.C. §§ 2201, 2202. It is alleged that the amount in controversy exceeds $10,000, exclusive of interest and costs. And contending that there is no material issue of fact in the case, plaintiffs, with supporting affidavit, have moved for summary judgment, incorporating by reference a brief filed in support of a motion for preliminary injunction. Defendants have answered the complaint, and supported by an affidavit, oppose the motion. In a memorandum, they contend that plaintiffs attack the regulations facially and as they are applied in the daily administration of O'Hare Airport. Therefore, defendants insist that there are factual issues to be resolved before the case can be decided. These contentions require this court to determine whether the pleadings, affidavits, and memoranda show that there is no genuine issue concerning any material fact; and whether plaintiffs are entitled to judgment as a matter of law. The facts are as follows.",
"II Plaintiff International Society of Krishna Consciousness is a non-profit religious corporation which espouses the views of Krishna Consciousness and maintains temples and schools throughout the world. It requires its devotees to perform a religious ritual called Sankirtan, one consisting, in part, of activities that spread the religion's truths through solicitation of contributions, dissemination of religious tracts, and sale of religious materials. For some time, members of Krishna have performed this ritual in the public areas of O'Hare Airport, an international air transportation complex in Chicago. Govinda Das, whose legal name is Robert H. Lindberg, is an ordained priest of the religion, a vice-president of its Chicago Temple, and performs Sankirtan at O'Hare, a course of conduct he desires to continue in the future. James Rochford is the superintendent of police of the city of Chicago and enforces the regulations in question. William R. Quinlan is the city's corporation counsel and prosecutes those who violate the regulations. The city of Chicago adopted the regulations which plaintiffs allege violate their First Amendment rights. O'Hare Airport is owned by the city of Chicago, subject to its ordinances, and operated by the department of aviation, an executive arm of the city government established in 1958 by section 8.2-1, chapter 8.2 of its municipal code. The department is headed by a commissioner of aviation who is responsible for the management, control of design, operation and maintenance of all Chicago airports. O'Hare has 72 departure gates that handle, more or less, 1800 flights daily.",
"It employs 33,000 persons; and some 100,000,000 passengers, visitors and employees use its facilities yearly. Over 18,000,000 transit passengers change planes at O'Hare each year. Portions of the airport are leased to airlines and concessionaires. These include lobbies and areas open to the general public without restriction. Effective March 29, 1976, acting under the authority given him by the city's municipal code, and in consultation with airport officials, the commissioner of aviation *737 adopted regulations for all airports under his jurisdiction. Notices were posted in airport administrative offices and at O'Hare telling all persons desiring to solicit funds or distribute literature at airports to comply with the following rules, a true and correct copy of which was attached by plaintiffs to their complaint and is referred to by defendants in their affidavit opposing summary judgment.",
"AIRPORT REGULATIONS DEPARTMENT OF AVIATION Pursuant to the authority vested in the Commissioner of the Department of Aviation of the City of Chicago by Chapter 8.2 of the Municipal Code of the City of Chicago, and in order to balance the rights of the traveling public and those who have a right to be in public places to publicize their views, the following regulations are adopted, to be effective immediately. These regulations are intended to accomplish goals of: -assuring fair use of facilities in Chicago's airports by passengers and persons accompanying them, employees, lessees, and persons and groups wishing to publicize their views; -preventing interference with the right of passengers to free access to the airport travel facilities and the free passage among those facilities; -discouraging interference with persons who are required to wait in lines; -preventing interference with hijack and other security measures; -permitting equitable access among persons and groups desiring to publicize their views. 1 Persons authorized by law to distribute literature, or solicit contributions may do so only in public areas of Chicago airports, provided that they may not do so in the following areas: A.",
"All aircraft departure lounges and concourses leading to them including concourses A through K; B. All concourses leading to the terminal buildings including the rotunda; C. At, in, at the entrance to, or exit from: (1) hijack, search, and security areas; (2) ticket counters; (3) baggage pickup or collection areas; (4) washroom areas; (5) areas leased to concessionaires and other lessees except by permission of such lessee; (6) elevators, escalators, moving walkways; and (7) main terminal doors and vestibules. D. At locations where persons are in line at or before areas described in subparagraph C. 2 A. No person shall distribute literature or solicit contributions unless he shall have registered beforehand with the airport manager or his authorized representative for each day such activities are engaged in. B. Between 9 a.m. to 9:30 a.m. each day each person who desires to distribute literature or solicit contributions shall register in person with the airport manager or his authorized representative, who shall allot reservations for each day in the sequence each person registers. Each person shall give his name and address as well as the organization or purpose he represents and the terminal in which he will be on that day.",
"C. Each person registered shall receive from the airport manager or his authorized representative a badge or insignia in a form prescribed by the airport manager. Such badge or insignia shall be valid only for the day issued. It shall be worn at all times by the bearer while at the airport, and in a manner visible to the public. It shall not be transferred to another person, and shall be destroyed by the bearer when he leaves the airport at the end of the day.",
"*738 3 A. No person except concessionaires and other lessees as permitted by contract with the City of Chicago shall sell anything for commercial purposes. B. No person shall make a noise or create other disturbances which interferes with the ability of others to hear public announcements or interferes with the transaction of business with airlines, concessionaires, or lessees. C. No person shall interfere with the free passage to, or access of, other persons to corridors, entrances, doorways, or offices or airport facilities. D. No individual shall be solicited by more than one person at a time. E. No person shall erect a table, chair, or other structure other than in the leased space. 4 The airport manager of his authorized representative may declare an emergency on account of unusually congested conditions in the airport terminals caused by weather, schedule interruptions, extremely heavy traffic movements or other causes, or on account of emergency security measures.",
"In such case an announcement shall be made. All persons distributing literature or soliciting contributions as permitted under paragraph I and II shall immediately cease such activities for the duration of such emergency. III These, then, are the regulations in question. The parties agree to this fact. They also agree that at O'Hare Airport plaintiffs engage only in the ritual they call Sankirtan: the solicitation of contributions, distribution of religious tracts, and the sale of religious materials.",
"But they disagree on the construction of the regulations. Plaintiffs contend they are unconstitutional, facially and as applied because they lack procedures guaranteeing due process and give airport officials unbridled power to deny permits and thus prevent plaintiffs' enjoyment of their First Amendment rights at O'Hare by the practice of their religious ritual. It should be observed that the contention asserting the regulations are \"* * unconstitutional facially * * *\" means that a mere reading of them will disclose the claimed defect; while the contention asserting the regulations \"* * * are unconstitutional * * * as applied * * *\" can mean only their application to the activities in which plaintiffs engage at O'Hare. Bearing directly on this latter meaning, defendants contend that there are material issues of fact to be resolved in this case.",
"But the thrust of their argument is to support the contention that the regulations are constitutional; that they were adopted to protect the public in the use of Chicago airports; and that they do not abridge any of the freedoms plaintiffs enjoy under the First Amendment. Therefore, a dispute exists between the parties concerning construction of the regulations; but it is not a dispute as to a material fact; it is one that presents only a question of law. Atchison, Topeka & Santa Fe Ry. Co. v. City of Chicago, 136 F. Supp. 476, 480 (N.D.Ill.1955) reversed on other grounds 7 Cir., 240 F.2d 930; compare Bricklayers, Etc., U. 15, Fla. v. Stuart Plaster Co., Inc., 512 F.2d 1017 (5th Cir.",
"1975). Where a decision turns on the meaning of words in a statute or regulation, a legal question is presented for the court to decide. Bingham's Trust v. Commissioner of Internal Revenue, 325 U.S. 365, 65 S. Ct. 1232, 89 L. Ed. 1670 (1945); Northern Natural Gas Company v. O'Malley, 277 F.2d 128 (8th Cir. 1960); see 82 C.J.S. Statutes § 312 (1953). Therefore, when the question presented is only a legal one requiring examination of municipal regulations to determine their constitutionality, the issue is appropriate for summary judgment proceedings.",
"See Gray Line, Inc. v. Gray Line Sightseeing Companies Associated, Inc., 246 F. Supp. 495 (N.D.Cal.1965). Of course, there are well-established principles of constitutional law that serve as predicates in determining whether municipal regulations are unconstitutional. *739 IV Our federal constitution, through the 1st and 14th Amendments, establishes that neither Congress nor the legislature of a state, can make any \"* * * law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press * * *.\" U.S.Const.",
"Amends. I, XIV; see Jones v. City of Opelika, 316 U.S. 584, 62 S. Ct. 1231, 86 L. Ed. 1691 (1942). Implementing this rule of the constitution, it has been recognized that hand distribution of religious tracts is an age-old form of missionary evangelism; it is more than preaching; it is more than distribution of religious literature. Its purpose is as evangelical as the revival meeting; and as a form of religious activity, it occupies the same estate under the First Amendment as do worship in churches and preaching from pulpits. And the mere fact that religious literature is sold, or contributions solicited, does not put this form of evangelism outside the pale of constitutional protection. Murdock v. Pennsylvania, 319 U.S. 105, 63 S. Ct. 870, 87 L. Ed. 1292 (1943); International Soc.",
"for Krishna Con. v. City of New Orleans, 347 F. Supp. 945 (E.D.La.1972). This is not to intimate nor suggest that any conduct can be made a religious ritual and by the zeal of practitioners be swept into the protection of the First Amendment. Reynolds v. United States, 98 U.S. 145, 25 L. Ed. 244 (1878); Davis v. Beason, 133 U.S. 333, 10 S. Ct. 299, 33 L. Ed. 637 (1890). In fact, it is settled in our constitutional law that a municipality has the power to protect its citizens from undue annoyance by regulating the solicitation of contributions and canvassing for converts. See Schneider v. New Jersey, 308 U.S. 147, 60 S. Ct. 146, 84 L. Ed. 155 (1939).",
"Only recently, Mr. Chief Justice Burger, speaking for the court in a context slightly different from the one at bar, had occasion to say that \"[a] narrowly drawn ordinance, that does not vest in municipal officials the undefined power to determine what messages residents will hear may serve these important interests without running afoul of the First Amendment.\" Hynes v. Mayor and Council of Borough of Oradell, 425 U.S. 610, 96 S. Ct. 1755, 48 L. Ed. 2d 243 (1976).",
"For First Amendment requirements, there is no difference between an ordinance and a set of regulations adopted pursuant to municipal authority. Consequently, the question to be decided is whether the regulations adopted by the airport commissioner of the city of Chicago meet the test of these constitutional principles. V In proceeding to the decision, this court observes that the regulations in question consist of five parts: the first, an introductory paragraph with five subdivisions; the next four, a series of paragraphs with Roman numeral designations. [1] It is said in the introductory paragraph that the regulations are for Chicago airports.",
"And, as is common knowledge, Chicago has three airports: Meigs, near the Loop, a small one with one airstrip; Midway, in the southwest side of the city, an airport with several concourses and more than one airstrip but which cannot accommodate large jets; and O'Hare, in the far northwest side, with many concourses and a number of airstrips capable of accommodating transcontinental jets. The first part begins with the declaration that the regulations are intended to assure fair use of airport facilities by \"* * * passengers, and persons accompanying them, employees, lessees, and persons and groups wishing to publicize their views * * *.\" The remaining subparagraphs of this part state that the regulations are intended to foster the goals of \"preventing interference with the right of passengers to free access to the airport *740 travel facilities, and the free passage among those facilities; discouraging interference with persons who are required to wait in line; preventing interference with hijack and other security measures; permitting equitable access among persons and groups desiring to publicize their views.\"",
"The regulations do not define nor make clear what is meant by these expressions. Whose \"employees\" and what \"lessees\" are not defined nor specified. Without question, the First and Fourteenth Amendments apply to government-owned airports like Meigs, Midway and O'Hare. Chicago Area Military Project v. City of Chicago, 508 F.2d 921 (7th Cir. 1975); cert. denied, 421 U.S. 992, 95 S. Ct. 1999, 44 L. Ed. 2d 483; cf. International Soc. Krishna v. Dallas-Ft. W. Reg. Air. B., 391 F. Supp.",
"606 (N.D.Tex.1975). Apparently, the draftsman of these provisions recognized this principle when it was stated, laudably, that \"* * * in order to balance the rights of the traveling public and those who have a right to be in public places to publicize their views, the following regulations are adopted * * *.\" However, in Interstate Circuit v. City of Dallas, 390 U.S. 676, 88 S. Ct. 1298, 20 L. Ed. 2d 225 (1968), Mr. Justice Marshall, speaking for the court, pointed out that \"[v]agueness and the attendant evils we have earlier described * * * are not rendered less objectionable because the regulation of expression is one of classification rather than direct suppression. * * * Nor is it an answer to an argument that a particular regulation of expression is vague to say that it was adopted for [a] salutary purpose * * *.\" 390 U.S. at 688-89, 88 S.Ct.",
"at 1306. Therefore, stating the purpose of these regulations, even the declaration of a salutary one, will not cure the evils of vagueness if they are present in an attempt to restrict the enjoyment of First Amendment freedoms. See Wolin v. Port of New York Authority, 392 F.2d 83 (2d Cir. 1968), cert. denied, 393 U.S. 940, 89 S. Ct. 290, 21 L. Ed. 2d 275. The second part begins with a paragraph which states that \"[p]ersons authorized by law to distribute literature, or solicit contributions may do so only in public areas of Chicago airports, provided that they may not do so in the following areas * * *.\" Then, in a series of subparagraphs, the prohibited areas are said to be \"[a]ll aircraft departure lounges and con-courses leading to them including concourses A through K [and] [a]ll concourses leading to the terminal buildings including the rotunda.\"",
"Included in the prohibited areas are those \"[a]t, in, at the entrance to, or exit from\" places where contributions can be solicited or literature distributed, such as \"* * * hijack, search, and security areas; ticket counters; baggage pickup or collection areas; washroom areas; areas leased to concessionaires and other lessees except by permission of such lessee; elevators, escalators, moving walkways; and main terminal doors and vestibules.\" The list of proscribed areas ends with \"[l]ocations where persons are in line at or before areas described in [the previous subparagraph].\" Again, it is not stated whether the areas referred to are at Meigs, Midway or O'Hare; whether, for example, there are \"concourses A through K\" at all Chicago airports is not made clear. Whether all Chicago airports have \"concourses leading to the terminal buildings including the rotunda\" is similarly unclear. Nor is it clear where are the locations of the \"public areas of Chicago airports\" after the prohibited areas are taken into account.",
"It is not explained what the regulations mean by \"[p]ersons authorized by law to distribute literature, or solicit contributions * *.\" These words suggest there are persons authorized by law to distribute literature and solicit contributions and some who are not. Therefore, the regulations are at least ambiguous \"because in certain respects `men of common intelligence must necessarily guess at [their] meaning'.\" Hynes v. Mayor and Council of Borough of Oradell, 425 U.S. 610, 96 S. Ct. 1755, 1760 (1976). It is well established that vague words in a statute, ordinance, or regulation proscribing enjoyment of First Amendment rights are the equivalent of outright prohibition of free speech. See National Association of Letter Carriers v. Blount, 305 F. Supp. 546 (D.D.C.1969); cf. *741 Stacy v. Williams, 306 F. Supp. 963 (N.D. Miss.1969). And in cases like the one before the court, vagueness in municipal regulations whose purpose is control of speech is fatal. Kunz v. People of the State of New York, 340 U.S. 290, 71 S. Ct. 312, 95 L. Ed. 280 (1951); see also, Niemotko v. Maryland, 340 U.S. 268, 71 S. Ct. 328, 95 L. Ed. 267 (1951) (Frankfurter, J., concurring). Although it is said in the second part that, with the stated exceptions, persons authorized by law to distribute literature or solicit contributions may do so in public areas of Chicago airports, the third part provides that no person shall distribute literature or solicit contributions unless between 9 and 9:30 a. m. each morning he or she registers with the airport manager or his authorized representative for the day of such activities. Upon registering, the airport manager or his authorized representative \"shall allot reservations for each day in the sequence each person registers.\"",
"That person is to give his or her name, the purpose of the activity, the organization represented, and the terminal in which he or she will be that day. A badge or insignia in a form prescribed by the airport manager is to be given the person; and it shall be worn by the bearer at the airport, in a manner visible to the public and be destroyed when the bearer leaves at the end of the day. These provisions do not define the qualifications for registration; they do not contain standards to guide the airport manager or his authorized representative in determining whether to allow the person to be registered; nor is there any provision by which the actions of the airport manager or his authorized representative can be reviewed either administratively or judicially. A reading of this and the previous part makes it obvious that the regulations create a mode of controlling the exercise of First Amendment rights in Chicago airports. For without the registration, a form of permit, solicitation of contributions, distribution of religious tracts, and sale of religious materials are unlawful conduct. And it appears that the registration requirements vest in the airport manager or his authorized representative discretionary power either to allow or to deny a person the opportunity to distribute literature or solicit contributions at a Chicago airport.",
"A statute, ordinance, or regulation that makes it unlawful for a person to exercise First Amendment rights without obtaining, in advance, a permit from a municipal official who has unbridled discretionary power to prevent the exercise of First Amendment freedoms is invalid as prior restraint on rights guaranteed by the federal constitution. Kunz v. People of the State of New York, 340 U.S. 290, 71 S. Ct. 312, 95 L. Ed. 280 (1951); Lovell v. City of Griffin, Ga., 303 U.S. 444, 58 S. Ct. 666, 82 L. Ed. 949 (1938). And it is a requirement of our constitutional law that the decisions of a municipal officer restricting First Amendment freedoms be the subject of prompt notice and a mode of review by which it can be determined whether the ruling is valid.",
"See Slate v. McFetridge, 484 F.2d 1169 (7th Cir. 1973); Collin v. Chicago Park District, 460 F.2d 746 (7th Cir. 1972). The fourth part, in five alphabetically designated paragraphs, prohibits anyone, except a concessionaire and lessee as permitted by contract with the city of Chicago, from selling \"* * * anything for commercial purposes.\" No one is to make any noise or create any disturbance which will interfere \"* * * with the ability of others to hear public announcements or [interfere] with the transaction of business with airlines, concessionaires or lessees.\" No one is to interfere \"* * * with the free passage to, or access of, other persons to corridors, entrances, doorways, or offices or airport facilities.\"",
"An individual is not to be solicited by more than one person at a time. Finally, \"[n]o person shall erect a table, chair, or other structure other than in the leased space.\" These words leave unclear whether the prohibition against sale of \"anything for commercial purposes\" includes religious tracts and religious materials or whether the sale of religious tracts and religious materials is exempt from the prohibition of sales of \"anything for commercial purposes.\" Whether the prohibition against any \"noise * * * [or] other *742 disturbance * * *\" includes speech is left open to question. Also unclear is the prohibition against solicitation of any individual \"by more than one person at a time.\" Whether this means the time the individual is within an airport or the time at which he is solicited is uncertain. Whether the prohibition against erection of a table, chair or other structure applies to lessees only is unclear. Why these prohibitions are necessary is not explained. This fact assumes importance in view of the principle that statutes, ordinances or regulations restricting exercise of First Amendment freedoms are inherently suspect and, when brought before court, bear a heavy presumption against their validity.",
"Finally, the fifth part gives the airport manager or his authorized representative the authority to declare \"* * * an emergency on account of unusually congested conditions in the airport terminals caused by weather, schedule interruptions, extremely heavy traffic movements or other causes, or on account of emergency security measures. In such case an announcement shall be made.\" Upon such announcement, all persons distributing literature or soliciting contributions as permitted by the regulations through registration shall cease such activity. What is it that would make weather, or extremely heavy traffic, \"or other causes\" a factor for suppressing all First Amendment rights at a Chicago airport is not stated. What is meant by \"other causes\" is also left unclear.",
"What is meant by \"emergency security measures\" is unsaid. These words, uncertain in meaning, and devoid of guiding standards, are capable of being construed as authority for prior restraint of First Amendment freedoms. For this reason, their application in express terms must be limited to the regulation of time, place and manner in which rights under the First Amendment are exercised. There must be narrow, objective and definite standards to guide those who exercise the authority to restrict protected constitutional rights. Shuttlesworth v. Birmingham, 394 U.S. 147, 89 S. Ct. 935, 22 L. Ed.",
"2d 162 (1969). The standards must be susceptible to objective measurements; and there must be precision in the terms of the regulations. See Keyishian v. Board of Regents, 385 U.S. 589, 87 S. Ct. 675, 17 L. Ed. 2d 629 (1967); NAACP v. Button, 371 U.S. 415, 83 S. Ct. 328, 9 L. Ed. 2d 405 (1963). As a rule, a statute or ordinance that vests unbridled discretionary power in a municipal officer to deny enjoyment of First Amendment freedoms is an extreme form of regulation and abridges the freedom of religion, of the press and of speech guaranteed by the First Amendment, a constitutional provision that is made applicable to the states by the Fourteenth Amendment. Largent v. State of Texas, 318 U.S. 418, 63 S. Ct. 667, 87 L. Ed. 873 (1943). IV From all of the foregoing, the court concludes that the pleadings, affidavits, and memoranda show there is no genuine issue as to any material fact in this case; that the controversy between the parties can be resolved by a mere reading of the regulations adopted by the airport commissioner of the city of Chicago; therefore, this case is a proper one for summary judgment.",
"The regulations in question disclose that although they purport to balance the rights of the public at Chicago airports with those of persons who desire to enjoy First Amendment freedoms in the public areas of those facilities, they are in fact a municipal mode of regulating and controlling speech, one capable of administration that will suppress First Amendment rights. The words of the regulations are vague and uncertain; they give unbridled power to airport officials; their provisions are susceptible to a number of meanings. They are utterly lacking in standards that can guide airport officials in making decisions which may manifest the censor's heavy hand on the freedom of religion, of thought, speech and the press. They lack a procedure, or some means, administrative or judicial, by which these decisions can be reviewed to determine their validity. In sum, these regulations are facially unconstitutional. For these reasons, plaintiffs, as a matter of law, *743 are entitled to judgment granting them the declaratory and injunctive relief they pray for in their complaint.",
"Kuszynski v. City of Oakland, 479 F.2d 1130 (9th Cir. 1973); Gall v. Lawler, 322 F. Supp. 1223 (E.D.Wis.1971); Freedman v. Maryland, 380 U.S. 51, 85 S. Ct. 734, 13 L. Ed. 2d 649 (1965). Accordingly, an appropriate judgment order, consistent with this memorandum, may be tendered to the court for approval and entry. So ordered. NOTES [1] As published by the commissioner, the regulation, after the introductory paragraph, has four parts designated by Roman numerals, I to IV. Each contains alphabetically designated subparagraphs; and in one instance there are Arabic subdivisions in parentheses. In this memorandum, in order not to confuse the Roman numeral subdivisions of the regulations with the text, the four parts have been redesignated in Arabic, 1 to 4."
]
| https://www.courtlistener.com/api/rest/v3/opinions/1513036/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
FORM 6-K SECURITIES AND EXCHANGE COMMISSION Washington, D.C. Report of Foreign Private Issuer Pursuant to Rule 13a-16 or 15d-16 of the Securities Exchange Act of For the month ofJune 2009 Commission File Number 000-31102 LPBP INC. (Translation of registrant's name into English) 2810 Matheson Blvd. E. Suite 500 Mississauga, Ontario Canada L4W 4X7 (Address of principal executive offices) Indicate by check mark whether the registrant files or will file annual reports under cover Form 20-F or Form 40-F. Form 20-F X Form 40-F Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1): Note: Regulation S-T Rule 101(b)(1) only permits the submission in paper of a Form 6-K if submitted solely to provide an attached annual report to security holders. Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7): Note: Regulation S-T Rule 101(b)(7) only permits the submission in paper of a Form 6-K if submitted to furnish a report or other document that the registrant foreign private issuer must furnish and make public under the laws of the jurisdiction in which the registrant is incorporated, domiciled or legally organized (the registrant's "home country"), or under the rules of the home country exchange on which the registrant's securities are traded, as long as the report or other document is not a press release, is not required to be and has not been distributed to the registrant's security holders, and, if discussing a material event, has already been the subject of a Form 6-K submission or other Commission filing on EDGAR. Indicate by check mark whether by furnishing the information contained in this Form, the registrant is also thereby furnishing the information to the Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of 1934. Yes No X If "Yes" is marked, indicate below the file number assigned to the registrant in connection with Rule 12g3-2(b): 82- Signatures Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. LPBP INC. Date:June 19, 2009 By: /s/ Peter E. Brent Peter E. Brent Secretary Documents included as part of this report: No. Document 1. Q2 Financial Statements 2. Q2 Management's Discussion and Analysis 3. Form 52-109FV2 - Certification of Interim Filings by CEO 4. Form 52-109FV2 - Certification of Interim Filings by CFO | [
"FORM 6-K SECURITIES AND EXCHANGE COMMISSION Washington, D.C. Report of Foreign Private Issuer Pursuant to Rule 13a-16 or 15d-16 of the Securities Exchange Act of For the month ofJune 2009 Commission File Number 000-31102 LPBP INC. (Translation of registrant's name into English) 2810 Matheson Blvd. E. Suite 500 Mississauga, Ontario Canada L4W 4X7 (Address of principal executive offices) Indicate by check mark whether the registrant files or will file annual reports under cover Form 20-F or Form 40-F. Form 20-F X Form 40-F Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1): Note: Regulation S-T Rule 101(b)(1) only permits the submission in paper of a Form 6-K if submitted solely to provide an attached annual report to security holders.",
"Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7): Note: Regulation S-T Rule 101(b)(7) only permits the submission in paper of a Form 6-K if submitted to furnish a report or other document that the registrant foreign private issuer must furnish and make public under the laws of the jurisdiction in which the registrant is incorporated, domiciled or legally organized (the registrant's \"home country\"), or under the rules of the home country exchange on which the registrant's securities are traded, as long as the report or other document is not a press release, is not required to be and has not been distributed to the registrant's security holders, and, if discussing a material event, has already been the subject of a Form 6-K submission or other Commission filing on EDGAR. Indicate by check mark whether by furnishing the information contained in this Form, the registrant is also thereby furnishing the information to the Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of 1934. Yes No X If \"Yes\" is marked, indicate below the file number assigned to the registrant in connection with Rule 12g3-2(b): 82- Signatures Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. LPBP INC.",
"Date:June 19, 2009 By: /s/ Peter E. Brent Peter E. Brent Secretary Documents included as part of this report: No. Document 1. Q2 Financial Statements 2. Q2 Management's Discussion and Analysis 3. Form 52-109FV2 - Certification of Interim Filings by CEO 4. Form 52-109FV2 - Certification of Interim Filings by CFO"
]
| 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 |
|
*517The opinion of the court was delivered by Collins, J. This writ removes an assessment on land of •the prosecutrix, made by commissioners and confirmed by the •Circuit Court of the county of Burlington, for the improvement of a publie road in said county, running from Columtbus to Chambers’ Corner. The only authority asserted for improvement or assessment is the act entitled “An act to provide for the permanent improvement of public roads of this -state,” approved March 22d, 1895. Pamph. L., p. 424. Section 13 of that act declares that on confirmation of the Circuit Court the report of the commissioners shall be final and conclusive. The defendants therefore challenge our right of review. It is sufficient to sustain such right in this case that the defect alleged is fundamental, avoiding jurisdiction to make .any assessment upon the land assessed. Benedictine Sisters v. Elizabeth, 21 Vroom 347. The act itself recognizes review by -certiorari and limits the time within which after confirmation -a writ may be allowed. The prosecutrix purchased her writ ■within that time. Thé defect alleged is that the land on which the challenged ■assessment has been -imposed is outside the territorial range of assessment permitted by the act, namely, “ lands and real ■estate'fronting or bordering on the road or section thereof improved.” The land of the prosecutrix that has been assessed •is a farm'of one hundred and ninety-six acres, bordering upon the public road leading from Columbus to Jobstown. A lane .or private road, obstructed by gates, runs through this farm .and tire adjoining one of a Mr. Harvey to the public road that has been improved. The two public- roads are more -than a mile apart, and the land of the prosecutrix comes at .no point nearer to the one improved than half a mile. Her farm buildings are three-quarters of a mile away and face towards the lane and not towards the improved road. The defendants argue that the words “fronting” and •“ bordering on ” in the statute are not synonymous in meaning, and that their disjunctive use makes assessable any land that fronts a road improved, although it may not border on it, *518and they claim that the farm of the prosecutrix fronts the road in question, because it can be reached by means of the lane-running through Mr. Harvey’s farm. This claim .of frontage-is scarcely plausible and the argument derived therefrom is eutirely unsound. If the phraseology quoted is not merely redundant the difference intended is not that suggested. It seems to me that in the legislative mind it was assumed that some land might border on a given road or section, although its frontage, in a narrow sense, was elsewhere—perhaps upon across road-—and to make sure that such land should be assessable for benefits arising from the improvement, phraseology apt to include it was adopted. Be that as it may, it is quileplain that the interpretation contended for by the defendants-is inadmissible. By section 8 of the act the jurisdictional petition required must be signed “by the owners of at least-two-thirds either in lineal feet or in area of the lands and ■real estate fronting or bordering on” the road or section of road to be improved, and it is declared that in the estimate-of area there shall be taken “ all the lands of every owner which are assessed for taxes in said county and which lie-together in any farm, tract or lot of which a part has a frontage on said road or section of road.” The inherent ambiguity of the word “front’’and its derivatives is resolved by this self-interpreting statute. To come' within its provisions land must adjoin at- some point of the-road or section of road involved. The assessment against the prosecutrix is set aside, with-costs. | 09-09-2022 | [
"*517The opinion of the court was delivered by Collins, J. This writ removes an assessment on land of •the prosecutrix, made by commissioners and confirmed by the •Circuit Court of the county of Burlington, for the improvement of a publie road in said county, running from Columtbus to Chambers’ Corner. The only authority asserted for improvement or assessment is the act entitled “An act to provide for the permanent improvement of public roads of this -state,” approved March 22d, 1895. Pamph.",
"L., p. 424. Section 13 of that act declares that on confirmation of the Circuit Court the report of the commissioners shall be final and conclusive. The defendants therefore challenge our right of review. It is sufficient to sustain such right in this case that the defect alleged is fundamental, avoiding jurisdiction to make .any assessment upon the land assessed. Benedictine Sisters v. Elizabeth, 21 Vroom 347. The act itself recognizes review by -certiorari and limits the time within which after confirmation -a writ may be allowed. The prosecutrix purchased her writ ■within that time. Thé defect alleged is that the land on which the challenged ■assessment has been -imposed is outside the territorial range of assessment permitted by the act, namely, “ lands and real ■estate'fronting or bordering on the road or section thereof improved.” The land of the prosecutrix that has been assessed •is a farm'of one hundred and ninety-six acres, bordering upon the public road leading from Columbus to Jobstown. A lane .or private road, obstructed by gates, runs through this farm .and tire adjoining one of a Mr. Harvey to the public road that has been improved.",
"The two public- roads are more -than a mile apart, and the land of the prosecutrix comes at .no point nearer to the one improved than half a mile. Her farm buildings are three-quarters of a mile away and face towards the lane and not towards the improved road. The defendants argue that the words “fronting” and •“ bordering on ” in the statute are not synonymous in meaning, and that their disjunctive use makes assessable any land that fronts a road improved, although it may not border on it, *518and they claim that the farm of the prosecutrix fronts the road in question, because it can be reached by means of the lane-running through Mr. Harvey’s farm. This claim .of frontage-is scarcely plausible and the argument derived therefrom is eutirely unsound.",
"If the phraseology quoted is not merely redundant the difference intended is not that suggested. It seems to me that in the legislative mind it was assumed that some land might border on a given road or section, although its frontage, in a narrow sense, was elsewhere—perhaps upon across road-—and to make sure that such land should be assessable for benefits arising from the improvement, phraseology apt to include it was adopted. Be that as it may, it is quileplain that the interpretation contended for by the defendants-is inadmissible. By section 8 of the act the jurisdictional petition required must be signed “by the owners of at least-two-thirds either in lineal feet or in area of the lands and ■real estate fronting or bordering on” the road or section of road to be improved, and it is declared that in the estimate-of area there shall be taken “ all the lands of every owner which are assessed for taxes in said county and which lie-together in any farm, tract or lot of which a part has a frontage on said road or section of road.” The inherent ambiguity of the word “front’’and its derivatives is resolved by this self-interpreting statute.",
"To come' within its provisions land must adjoin at- some point of the-road or section of road involved. The assessment against the prosecutrix is set aside, with-costs."
]
| https://www.courtlistener.com/api/rest/v3/opinions/8061612/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 96-1132
UNITED STATES OF AMERICA,
Appellee,
v.
RICHARD GOLDBERG,
Defendant, Appellant.
____________________
ERRATA SHEET
At page 16, line 15, delete ", Michael Kendall," and at page 17,
line 2, substitute "the prosecutor in question" for "Kendall".
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 96-1132
UNITED STATES OF AMERICA,
Appellee,
v.
RICHARD GOLDBERG,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
___________________
____________________
Before
Boudin, Circuit Judge,
_____________
Bownes, Senior Circuit Judge,
____________________
and Lynch, Circuit Judge.
_____________
____________________
Morris M. Goldings with whom David R. Kerrigan and Mahoney,
___________________ __________________ ________
Hawkes & Goldings were on brief for appellant.
_________________
Michael Kendall, Assistant United States Attorney, with whom
________________
Donald K. Stern, United States Attorney, and Kevin J. Cloherty,
________________ ___________________
Assistant United States Attorney, was on brief for the United States.
____________________
February 3, 1997
____________________
BOUDIN, Circuit Judge. Richard Goldberg was convicted
_____________
of two counts of conspiracy to defraud the Internal Revenue
Service, 18 U.S.C. 371, and eight counts of aiding and
assisting the filing of false income tax returns, 26 U.S.C.
7206(2). Goldberg's appeal is now before us. We begin by
describing the factual background and proceedings in the
district court.
In the years prior to his indictment in 1995, Goldberg
was involved in several businesses in and around Boston. His
ventures included a billboard company, Logan Communications,
and a partial interest in a "Park 'N Fly" lot located in East
Boston near Logan Airport. Goldberg also owned and operated
Liverpool Lumber, Inc., which Goldberg used as a management
company for various of his other enterprises.
In or around 1988, Goldberg became aware that the
Commonwealth of Massachusetts planned to take all or part of
the East Boston Park 'N Fly lot by eminent domain as part of
its Third Harbor Tunnel project. The planned taking not only
threatened Goldberg's profitable parking business, but also
his billboard company, since many of its signs were located
on the parking lot's land. Goldberg began an intense
lobbying effort against the proposal in 1988, eventually
spending over $1 million of his and his partners' money to
oppose the tunnel plans.
-2-
-2-
Two of those hired to oppose the project--community
activist Robert A. Scopa and consultant Vernon Clark--were
named as co-conspirators in the two separate conspiracies for
which Goldberg was ultimately convicted. Taking the evidence
most favorable to the verdict, the facts pertaining to the
two different conspiracies were as follows.
Scopa Conspiracy. From 1990 to 1995, Goldberg employed
________________
Scopa to help organize the East Boston community against the
tunnel project and to perform other services. But Goldberg
never paid Scopa in Scopa's own name. Instead, Goldberg had
his Liverpool Lumber company issue paychecks to three
successive "straw" employees, none of whom worked for
Goldberg and all of whom agreed to hand the money over to
Scopa.
To reflect the "wages" of the straw employees, Goldberg
directed his bookkeeper at Liverpool Lumber to prepare
various W-2, W-3, and W-4 reporting statements, which were
then filed with the IRS. These documents falsely described
wage payments to straws who had performed no work for
Liverpool Lumber. The straws, in turn, falsely included the
phantom wages from Liverpool on their own individual returns.
Reporting the money on the straws' returns instead of Scopa's
resulted in a loss of about $150 to the Internal Revenue
Service.
-3-
-3-
The government claimed at trial that the scheme was
devised so that Scopa would seem to be unemployed and thus
could continue to collect monthly benefits under a disability
insurance policy. Evidence also indicated that Scopa sought
to hide the payments in order to preserve his status as an
"independent" activist in the East Boston community and to
prevent an extramarital affair from being discovered by his
wife. The district court later found that Scopa, but not
Goldberg, was motivated by all of these objectives.
Clark Conspiracy. In the course of opposing the Third
________________
Harbor Tunnel project, Goldberg also retained Vernon Clark, a
lobbyist in Washington, D.C., who performed various services
to this end. Goldberg's companies owed Clark a substantial
sum of money in 1991 for work performed in opposition to the
tunnel project. Rather than pay the bill directly, the two
men agreed with others to a more complicated method for
Goldberg to discharge his debt to Clark.
At the time, Clark was having a secret affair with a
woman named Patricia McNally. The pair occasionally spent
time in a Maine beach house of which McNally was part owner.
Clark sought to fund an expansion of the beach house without
his wife's knowledge. Goldberg agreed to pay the money he
owed to Clark to a landscaping company owned by John Lango,
McNally's brother-in-law, who would in turn construct the
beach house expansion.
-4-
-4-
Goldberg arranged for the preparation of two separate
$10,000 invoices to Park 'N Fly from Lango, dated October 15,
1991 and January 1, 1992, respectively. The invoices were
ostensibly for landscaping services, although Lango performed
no work for any of Goldberg's companies. The invoices were
paid by Park 'N Fly. Lango testified at trial that the
payments were structured in two installments so as to reduce
his taxes on the transaction.
The triangular flow of money and services involved the
preparation and filing of several false tax documents. At
Goldberg's direction, Park 'N Fly sent forms 1099-MISC, one
for each $10,000 payment, to the IRS and to Lango. The forms
falsely listed the payments as non-employee compensation to
Lango. Lango in turn reported the payments as income on his
own income tax returns in 1991 and 1992. Clark did not
report the money. The foreseeable tax loss to the IRS based
on this scheme was about $3,000.
A federal grand jury indicted Goldberg on April 6, 1995
for offenses relating to the above activities. The
indictment charged Goldberg with two counts of conspiring to
defraud the United States government, 18 U.S.C. 371,
several counts of aiding and assisting the filing of false
income tax returns, 26 U.S.C. 7206(2), and several counts
of mail fraud based on his alleged efforts to conceal his
-5-
-5-
employment of Scopa from the latter's disability insurer. 18
U.S.C. 1341.
After moving unsuccessfully to dismiss the indictment,
Goldberg waived his right to a trial by jury. Goldberg's
trial before the district judge took eight days, and on
September 6, 1995, the court announced its findings. The
court found Goldberg guilty of conspiring to defraud the
government and of aiding and assisting in the preparation of
false tax returns, but acquitted him on the mail fraud
charges on the ground that his motive to help defraud the
insurer had not been proved beyond a reasonable doubt.
At Goldberg's sentencing in December 1995, the district
court made guideline calculations (described below) but then
departed downward two levels and sentenced Goldberg at the
bottom of the range. The result was a ten-month sentence--
five months to be served in prison and five in community
confinement--as well as three years of supervised release and
a $20,000 fine. Goldberg now appeals, challenging his
convictions and sentence.
The most important and difficult issues on appeal relate
to Goldberg's conviction for conspiracy under 18 U.S.C. 371
to defraud the IRS. This type of conspiracy is known as a
Klein conspiracy, taking its name from an earlier case
_____
involving a complex scheme designed to escape taxes. United
______
States v. Klein, 247 F.2d 908 (2d Cir. 1957). Goldberg
______ _____
-6-
-6-
argues that the district court misunderstood the crime's
"purpose" element and that the evidence did not support a
conviction.
The defraud clause of Section 371 criminalizes any
conspiracy "to defraud the United States, or any agency
thereof in any manner or for any purpose." 18 U.S.C. 371.
Such conspiracies to defraud are not limited to those aiming
to deprive the government of money or property, but include
conspiracy to interfere with government functions. See,
____
e.g., United States v. Tarvers, 833 F.2d 1068, 1075 (1st Cir.
____ _____________ _______
1987). The crime with which Goldberg was charged, therefore,
was that he conspired to interfere with the proper
functioning of the IRS, through the filing of false tax
documents.
It is commonly said that in such a conspiracy the fraud
has to be a purpose or object of the conspiracy, and not
_______ ______
merely a foreseeable consequence of the conspiratorial
scheme. Dennis v. United States, 384 U.S. 855, 861 (1966); 1
______ _____________
Sand et al., Modern Federal Jury Instructions 19.02 (1990).
______ ________________________________
Consider, for example, the case of a band of bank robbers.
All know that the agreed-upon robbery will generate "income"
that none of the robbers will report. Yet it would be
straining to describe interference with the IRS as a purpose
or object of the conspiracy. E.g., United States v. Vogt,
____ ______________ ____
910 F.2d 1184, 1202 (4th Cir. 1990).
-7-
-7-
This requirement of purpose accords generally with
conspiracy doctrine, United States v. Alvarez, 610 F.2d 1250,
_____________ _______
1256 (5th Cir. 1980), but it is especially important under
the defraud clause of section 371. There are not many
financial crimes without some implications for false
reporting in someone's tax filings, if not for tax liability
itself. If section 371 embraced every foreseeable
consequence of a conspiracy, many joint financial crimes
having no other federal nexus--and perhaps many non-criminal
acts as well--would automatically become federal conspiracies
to defraud the IRS.
The "purpose" requirement, however, is easier to state
than to apply. The laundering of drug money, for example,
normally involves the deliberate concealment of the money's
origin. The primary purpose is almost always to avoid
detection of the underlying crime; but can a jury also find
an implied secondary objective to conceal income from the
IRS? We have held, on specific facts, that a jury could draw
such an inference and also find a violation of section 371.
E.g., United States v. Cambara, 902 F.2d 144, 147 (1st Cir.
____ _____________ _______
1990); Tarvers, 833 F.2d at 1075-76.
_______
Such cases are the source of Goldberg's first argument
on this issue. He argues, inventively, that the conspirators
either must have as their primary purpose the aim of
frustrating the IRS or must be agreeing to undertake the
-8-
-8-
conduct in question to conceal some other crime. An example
of the first alternative (primary purpose) is Klein itself
_____
where a web of shell companies and deceptive arrangements was
devised to evade taxes; the second alternative (concealment
of crime) captures the money laundering precedents.
This view of section 371 might explain a number of cases
and create a barrier against overreaching by prosecutors.
But it makes no doctrinal sense. A conspiracy can have
multiple objects, Ingram v. United States, 360 U.S. 672, 679-
______ _____________
80 (1959), and any agreed-upon object can be a purpose of the
conspiracy and used to define its character. The central
problem, which ought not be shirked, is to distinguish
rationally between cases where interfering with government
functions is a purpose and those where it is merely a
__
foreseeable effect of joint action taken for other reasons.
This effort poses subtle problems in discriminating
"purpose" from "knowledge" and in separating the objects of a
conspiracy from its more remote consequences. Volumes could
be written on these subjects but--for cases like ours--a more
compact solution is at hand: where the conspirators have
effectively agreed to falsify IRS documents to misstate or
misattribute income, we think that (depending upon the
circumstances) the factfinder may infer a purpose to defraud
the government by interfering with IRS functions in the sense
endorsed by the Supreme Court in Dennis.
______
-9-
-9-
It may well be that the conspirators in this case had no
subjective desire--primary or secondary--to throw sand in the
__
wheels of the IRS, let alone a subjective aim to reduce tax
liability. Goldberg's argument on this point, with one
qualification as to the Clark conspiracy, may be plausible.
But filing a number of false tax documents misattributing
income can interfere so clearly and proximately with IRS
functions--or at least a factfinder could (but need not) so
find--that we see no sharp distinction under section 371
between a purpose to file such documents and a purpose to
interfere.
In permitting a factfinder to equate the two purposes,
we leave untouched the general precept, namely, that mere
collateral effects of jointly agreed-to activity, even if
generally foreseeable, are not mechanically to be treated as
an object of the conspiracy. This would be a different case
if, without filing false tax documents, Goldberg had agreed
with his partners to pay Jones under the table, knowing that
Jones had no intention of reporting the money to the IRS. If
the difference is in degree, then here the degree matters.
This brings us to the evidentiary question raised by
Goldberg which we rephrase to accord with our just-stated
view of the law: does the evidence in this case show that
Goldberg and at least one other conspirator shared a purpose
to interfere with IRS functions by the filing of false income
-10-
-10-
reports with the IRS? This question must be asked and
answered separately as to each conspiracy, as Goldberg was
convicted of two separate conspiracies under section 371 and
each conviction involves a separate assessment.
In each conspiracy, the illicit purpose that gives rise
to section 371 violation must be shared by two or more
conspirators. Although the government's brief stresses the
evidence pertaining to Goldberg's own role and knowledge, a
conspiracy to defraud requires at least two who share that
aim. Innocent third parties may be the unwitting instruments
of a conspiracy. But when it comes to characterizing the
purposes or objects of the conspiracy, it is those that are
shared by at least two co-conspirators that make up the
illegal agreement between them. United States v. Krasovich,
_____________ _________
819 F.2d 253, 255 (9th Cir. 1987).
Here, the district court found that a purpose of the
conspirators, in each conspiracy, was to interfere with the
IRS. As we have said, such a purpose can be inferred,
depending upon the facts, where the very acts agreed to by
the conspirators included the filing of false income-related
tax documents. This purpose can fairly be imputed to
Goldberg who arranged for the creation of several or more
false tax documents in each scheme. The duration and
complexity of the schemes, and Goldberg's own sophistication,
add to the inference.
-11-
-11-
There is no evidence that Goldberg discussed the filing
of false tax documents with other conspirators. Yet we think
that such conduct was an integral and self-evident part of
each conspiracy, permitting the inference that other co-
conspirators shared in that purpose. In the case of the
Scopa conspiracy, false W-2s were given to the straws, who
were participants in the scheme, over an extended period.
Scopa himself signed a tax return with his wife, who was one
of the straws, that incorporated a false W-2.
As to the Clark conspiracy, Lango received the false
form 1099s, and he in turn reported the false figures to the
IRS. Indeed, Lango asked that the amount be divided so that
it could be reported in two different years, testifying later
that Clark had made the suggestion. This indicates a tax
motive but, in addition, shows that both men knew that the
filing of false tax documents was an integral part of the
scheme, and both shared in this purpose with Goldberg. In
sum, the evidence supports the trial court's findings of a
common purpose to interfere with IRS functions.
In addition to "the danger [of injustice] inherent in a
criminal conspiracy charge," Dennis, 384 U.S. at 860, the
______
defraud clause of section 371 has a special capacity for
abuse because of the vagueness of the concept of interfering
with a proper government function. For that reason, we have
examined with special care both the concept and the evidence
-12-
-12-
in this case. But having done so, we conclude that the
conduct and purpose of the defendants, although markedly less
sinister than in Klein, could properly be found to fall
_____
within the outer bounds of section 371.
Goldberg next challenges the admission at trial of two
out-of-court conversations between Lango and Clark, in which
they discussed the false landscaping invoices and the
solicitation of Goldberg's participation in the scheme.
These statements were admitted, over Goldberg's objection at
trial, pursuant to Fed. R. Evid. 801(d)(2)(E), which provides
that "a statement by a co-conspirator of a party during the
course and in furtherance of the conspiracy" is not
considered hearsay.
Goldberg does not dispute that Lango and Clark made the
challenged statements during and in furtherance of the
conspiracy, but he argues that the statements were not
admissible against him because they were made before he
joined. He relies heavily on our opinion in United States v.
_____________
Petrozziello, 548 F.2d 20 (1st Cir. 1977), where we said that
____________
"if it is more likely than not that the declarant and the
defendant were members of a conspiracy when the hearsay
statement was made, and that the statement was in furtherance
of the conspiracy, the hearsay is admissible." Id. at 23.
__
Although this language has been cited with approval in a
few later cases, e.g., United States v. McCarthy, 961 F.2d
____ _____________ ________
-13-
-13-
972, 976-77 (1st Cir. 1992), it conflicts with United States
_____________
v. Baines, 812 F.2d 41 (1st Cir. 1987). Baines expressed the
______ ______
traditional notion that--insofar as hearsay is concerned--a
late-joining conspirator takes the conspiracy as he finds it:
"a conspiracy is like a train," and "when a party steps
aboard, he is part of the crew, and assumes conspirator's
responsibility for the existing freight . . . ." Id. at 42;
___
accord United States v. Saccoccia, 58 F.3d 754, 778 (1st Cir.
______ _____________ _________
1995).
Frankly, the underlying co-conspirator exception to the
hearsay rule makes little sense as a matter of evidence
policy. No special guarantee of reliability attends such
statements, save to the extent that they resemble
declarations against interest. The exception derives from
agency law, an analogy that is useful in some contexts but
(as the Advisory Committee noted) is "at best a fiction"
here. The most that can be said is that the co-conspirator
exception to hearsay is of long standing and makes a
difficult-to-detect crime easier to prove. United States v.
_____________
Gil, 604 F.2d 546, 549 (7th Cir. 1979).
___
If starting afresh, one might argue that the narrow
Petrozziello version of the exception should be preferred, if
____________
only because it accords better with the companion rule
imposing substantive liability for other crimes committed
during the conspiracy; a co-conspirator is held liable for
-14-
-14-
foreseeable acts of others done in furtherance of the
conspiracy but only if committed during the defendant's
period of membership. United States v. O'Campo, 973 F.2d
_____________ _______
1015, 1021 (1st Cir. 1992). Symmetry is at least convenient.
But we are not starting afresh. The broader Baines test
______
describes the traditional approach, United States v. United
_____________ ______
States Gypsum Co., 333 U.S. 364, 393 (1948), presumptively
__________________
adopted by the Federal Rules of Evidence. It is followed in
most circuits. See 2 Saltzburg, et al., Federal Rules of
___ ______ _________________
Evidence Manual 219-22 (5th ed. 1990) (collecting cases).
________________
Most important, it is the test in most of our own recent
cases, including Saccoccia, decided only 19 months ago.1
_________
This panel is arguably not free, but is in any event not
inclined, to depart from Saccoccia.
_________
Goldberg's next claim on appeal is based on his motion
filed prior to trial asking the district court to dismiss the
indictment on the ground of selective prosecution. The
district court denied the motion without holding a full
evidentiary hearing. Goldberg claims that he alleged facts
sufficient to require a hearing on his complaint, and he now
____________________
1See Saccoccia, 58 F.3d at 778; O'Campo, 973 F.2d at
___ _________ _______
1023 n.5; United States v. Fields, 871 F.2d 188, 194 (1st
______________ ______
Cir. 1989); United States v. Murphy, 852 F.2d 1, 8 (1st Cir.
_____________ ______
1988); United States v. Anguilo, 847 F.2d 956, 969 (1st Cir.
_____________ _______
1988); United States v. Reynolds, 828 F.2d 46, 47-48 (1st
______________ ________
Cir. 1987); United States v. Cintolo, 818 F.2d 980, 997 (1st
_____________ _______
Cir. 1987).
-15-
-15-
asks this court to remand the case so that he may have such a
hearing.
The government is allowed "broad discretion" in deciding
whom to prosecute, Wayte v. United States, 470 U.S. 598, 607
_____ _____________
(1985), but there are some limitations. It is said that the
government may not base its decision to prosecute on an
"unjustifiable standard," including the defendant's exercise
of protected statutory and constitutional rights. Wayte, 470
_____
U.S. at 608. Goldberg bases his selective prosecution claim
on the theory that he was targeted by the government in
response to his vigorous--and constitutionally protected--
lobbying activities in opposition to the Third Harbor Tunnel
project.
In seeking an evidentiary hearing, a defendant need only
allege "some facts (a) tending to show that he has been
selectively prosecuted and (b) raising a reasonable doubt
about the propriety of the prosecution's purpose." United
______
States v. Saade, 652 F.2d 1126, 1135 (1st Cir. 1981). But
______ _____
the court may refuse to grant a hearing if the government
puts forward adequate "countervailing reasons" to refute the
charge, id., and if the court is persuaded that the hearing
___
will not be fruitful. Review on appeal is for abuse of
discretion. United States v. Gary, 74 F.3d 304, 313 (1st
______________ ____
Cir. 1996).
-16-
-16-
Here, Goldberg alleged that one of the prosecutors on
the case made a comment to Goldberg's counsel during a
preindictment meeting to the effect that Goldberg "should not
have won" his fight with Frederick Salvucci, Massachusetts'
secretary of transportation during the tunnel planning stage.
Goldberg also claimed that the initials "D.D." on a
prosecution file reflect the complicity in the investigation
of David Davis, executive director of MassPort. Finally, he
pointed to the fact that several of his co-conspirators in
the two schemes, including Clark and Lango, were never
indicted.
The government filed several affidavits to rebut the
claim. It denied that the prosecutor in question made the
alleged statement to Goldberg's attorney. It explained that
the initials "D.D." on the file that raised Goldberg's
suspicion in fact referred not to David Davis but to Denise
Doherty, an FBI agent assigned to the case. In another
district court paper, the government described the origins of
its investigation into Goldberg's activities and gave
examples of other recent prosecutions for mail fraud and
Klein conspiracies.
_____
The district court ultimately denied a hearing, saying
that Goldberg's claims were "close to conclusory." We have
reviewed the complete filings of both sides and the district
court's explanation. What is involved is a judgment call--
-17-
-17-
tempered on appeal by the deferential standard of review--as
to the force and specificity of the allegations, the strength
of the response, and the likelihood that a hearing would be
helpful. United States v. Lopez, 71 F.3d 954, 963-64 (1st
_____________ _____
Cir. 1995). Here, the district court did not abuse its
discretion.
The claim of selectivity was quite weak; the government
largely explained its choice mainly to pursue Goldberg and
Scopa. And the rather modest evidence of wrongful motive
also melted away, leaving only a single dispute. As to this,
four prosecutors denied under oath that the alleged remark
had been made. But it is in any event too thin a reed to
require an evidentiary hearing, given the lack of surrounding
evidence to support a selective prosecution claim.
Even less need be said about Goldberg's later new trial
motion, whose summary denial is also cited as error. In
substance Goldberg complained that the government did not
follow its own internal rules for tax prosecutions or reveal
to him information about this decision. The government's
procedures do not create substantive rights, United States v.
_____________
Michaud, 860 F.2d 495, 499 (1st Cir. 1988), and there is no
_______
substantial basis for believing that the government withheld
Brady material, Brady v. Maryland, 373 U.S. 83 (1963), let
_____ _____ ________
alone that its actions were prejudicial.
-18-
-18-
Goldberg's last claim of error concerns his sentencing.
In fixing the sentence, the district court enhanced
Goldberg's base offense level of 10, by four levels--two
levels for his role in the offense, U.S.S.G. 3B1.1(c), and
two more levels for obstruction of justice, id. 3C1.1--to
___
arrive at an adjusted offense level of 14. (All citations
are to the November 1995 edition of the guidelines).
However, the court departed downward two levels to 12 because
it thought Goldberg's conduct was outside the "heartland"
contemplated by the Klein conspiracy sentencing guideline.
_____
Id. 2T1.9.
___
The district judge stated that although Goldberg's
conduct "as a matter of law constitutes a Klein conspiracy,
_____
as a matter of sentencing law, it seems to me inappropriate
to apply the Klein conspiracy guidelines." He chose to
_____
depart downward two levels because he thought the guideline
section for aiding and assisting tax fraud, 2T1.4, with a
base offense level of 8 (when the tax loss is $3,001 to
$5,000), was more reflective of Goldberg's conduct than the
Klein conspiracy guideline, 2T1.9, which has a base offense
_____
level of 10.2
____________________
2The ten-month sentence--five months to be served in
prison and five in community confinement--was the minimum end
of the resulting guideline range of 12. U.S.S.G. ch. 5, pt.
A (10-16 months at offense level 12).
-19-
-19-
The government, sensibly in our view, has chosen not to
pursue an appeal from the downward departure. But Goldberg,
as is his right, challenges the district court's decision to
impose a two-level enhancement for his managerial or
supervisory role in the Scopa and Clark conspiracies. The
applicable guideline calls for an increase if "the defendant
was an organizer, leader, manager, or supervisor in any
criminal activity." U.S.S.G. 3B1.1(c). In such a case, a
two-level increase applies to joint criminal activity that
involved fewer than five participants and was not otherwise
extensive. Id.
___
Goldberg says that the only person he managed or
supervised was his bookkeeper, Arlene Meucci. Meucci, he
argues, does not count under the guideline because she was
not a culpable participant. See United States v. Morillo, 8
___ _____________ _______
F.3d 864, 872 & n.13 (1st Cir. 1993); U.S.S.G. 3B1.1,
comment n.1. However, at the sentencing hearing, the
district court found that Goldberg "had a management role" in
connection with false payroll and tax documentation directed
to the straw employees in the Scopa conspiracy.
We review a district court's factfinding at sentencing
under a clearly erroneous standard. United States v.
______________
Thompson, 32 F.3d 1, 4 (1st Cir. 1994). On the record before
________
us, ample evidence shows that Goldberg superintended the
straws' receipt of false tax documents. Goldberg says that
-20-
-20-
Scopa and Clark were the true leaders of the two
conspiracies. But a defendant need not be at the top of a
criminal scheme to be a manager or supervisor. United States
_____________
v. Savoie, 985 F.2d 612, 616 (1st Cir. 1993). Here,
______
Goldberg's role was sufficient for the enhancement even if we
assume that Scopa conceived of the payroll scheme and may
have exercised primary supervision over the straws.
Affirmed.
________
-21-
-21- | 09-21-2015 | [
"USCA1 Opinion UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ No. 96-1132 UNITED STATES OF AMERICA, Appellee, v. RICHARD GOLDBERG, Defendant, Appellant. ____________________ ERRATA SHEET At page 16, line 15, delete \", Michael Kendall,\" and at page 17, line 2, substitute \"the prosecutor in question\" for \"Kendall\". UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ No. 96-1132 UNITED STATES OF AMERICA, Appellee, v. RICHARD GOLDBERG, Defendant, Appellant. ____________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon.",
"Douglas P. Woodlock, U.S. District Judge] ___________________ ____________________ Before Boudin, Circuit Judge, _____________ Bownes, Senior Circuit Judge, ____________________ and Lynch, Circuit Judge. _____________ ____________________ Morris M. Goldings with whom David R. Kerrigan and Mahoney, ___________________ __________________ ________ Hawkes & Goldings were on brief for appellant. _________________ Michael Kendall, Assistant United States Attorney, with whom ________________ Donald K. Stern, United States Attorney, and Kevin J. Cloherty, ________________ ___________________ Assistant United States Attorney, was on brief for the United States. ____________________ February 3, 1997 ____________________ BOUDIN, Circuit Judge. Richard Goldberg was convicted _____________ of two counts of conspiracy to defraud the Internal Revenue Service, 18 U.S.C. 371, and eight counts of aiding and assisting the filing of false income tax returns, 26 U.S.C.",
"7206(2). Goldberg's appeal is now before us. We begin by describing the factual background and proceedings in the district court. In the years prior to his indictment in 1995, Goldberg was involved in several businesses in and around Boston. His ventures included a billboard company, Logan Communications, and a partial interest in a \"Park 'N Fly\" lot located in East Boston near Logan Airport. Goldberg also owned and operated Liverpool Lumber, Inc., which Goldberg used as a management company for various of his other enterprises. In or around 1988, Goldberg became aware that the Commonwealth of Massachusetts planned to take all or part of the East Boston Park 'N Fly lot by eminent domain as part of its Third Harbor Tunnel project.",
"The planned taking not only threatened Goldberg's profitable parking business, but also his billboard company, since many of its signs were located on the parking lot's land. Goldberg began an intense lobbying effort against the proposal in 1988, eventually spending over $1 million of his and his partners' money to oppose the tunnel plans. -2- -2- Two of those hired to oppose the project--community activist Robert A. Scopa and consultant Vernon Clark--were named as co-conspirators in the two separate conspiracies for which Goldberg was ultimately convicted. Taking the evidence most favorable to the verdict, the facts pertaining to the two different conspiracies were as follows. Scopa Conspiracy. From 1990 to 1995, Goldberg employed ________________ Scopa to help organize the East Boston community against the tunnel project and to perform other services. But Goldberg never paid Scopa in Scopa's own name.",
"Instead, Goldberg had his Liverpool Lumber company issue paychecks to three successive \"straw\" employees, none of whom worked for Goldberg and all of whom agreed to hand the money over to Scopa. To reflect the \"wages\" of the straw employees, Goldberg directed his bookkeeper at Liverpool Lumber to prepare various W-2, W-3, and W-4 reporting statements, which were then filed with the IRS. These documents falsely described wage payments to straws who had performed no work for Liverpool Lumber. The straws, in turn, falsely included the phantom wages from Liverpool on their own individual returns. Reporting the money on the straws' returns instead of Scopa's resulted in a loss of about $150 to the Internal Revenue Service. -3- -3- The government claimed at trial that the scheme was devised so that Scopa would seem to be unemployed and thus could continue to collect monthly benefits under a disability insurance policy. Evidence also indicated that Scopa sought to hide the payments in order to preserve his status as an \"independent\" activist in the East Boston community and to prevent an extramarital affair from being discovered by his wife.",
"The district court later found that Scopa, but not Goldberg, was motivated by all of these objectives. Clark Conspiracy. In the course of opposing the Third ________________ Harbor Tunnel project, Goldberg also retained Vernon Clark, a lobbyist in Washington, D.C., who performed various services to this end. Goldberg's companies owed Clark a substantial sum of money in 1991 for work performed in opposition to the tunnel project. Rather than pay the bill directly, the two men agreed with others to a more complicated method for Goldberg to discharge his debt to Clark. At the time, Clark was having a secret affair with a woman named Patricia McNally. The pair occasionally spent time in a Maine beach house of which McNally was part owner. Clark sought to fund an expansion of the beach house without his wife's knowledge. Goldberg agreed to pay the money he owed to Clark to a landscaping company owned by John Lango, McNally's brother-in-law, who would in turn construct the beach house expansion. -4- -4- Goldberg arranged for the preparation of two separate $10,000 invoices to Park 'N Fly from Lango, dated October 15, 1991 and January 1, 1992, respectively.",
"The invoices were ostensibly for landscaping services, although Lango performed no work for any of Goldberg's companies. The invoices were paid by Park 'N Fly. Lango testified at trial that the payments were structured in two installments so as to reduce his taxes on the transaction. The triangular flow of money and services involved the preparation and filing of several false tax documents. At Goldberg's direction, Park 'N Fly sent forms 1099-MISC, one for each $10,000 payment, to the IRS and to Lango. The forms falsely listed the payments as non-employee compensation to Lango. Lango in turn reported the payments as income on his own income tax returns in 1991 and 1992. Clark did not report the money. The foreseeable tax loss to the IRS based on this scheme was about $3,000.",
"A federal grand jury indicted Goldberg on April 6, 1995 for offenses relating to the above activities. The indictment charged Goldberg with two counts of conspiring to defraud the United States government, 18 U.S.C. 371, several counts of aiding and assisting the filing of false income tax returns, 26 U.S.C. 7206(2), and several counts of mail fraud based on his alleged efforts to conceal his -5- -5- employment of Scopa from the latter's disability insurer. 18 U.S.C. 1341. After moving unsuccessfully to dismiss the indictment, Goldberg waived his right to a trial by jury. Goldberg's trial before the district judge took eight days, and on September 6, 1995, the court announced its findings. The court found Goldberg guilty of conspiring to defraud the government and of aiding and assisting in the preparation of false tax returns, but acquitted him on the mail fraud charges on the ground that his motive to help defraud the insurer had not been proved beyond a reasonable doubt. At Goldberg's sentencing in December 1995, the district court made guideline calculations (described below) but then departed downward two levels and sentenced Goldberg at the bottom of the range. The result was a ten-month sentence-- five months to be served in prison and five in community confinement--as well as three years of supervised release and a $20,000 fine.",
"Goldberg now appeals, challenging his convictions and sentence. The most important and difficult issues on appeal relate to Goldberg's conviction for conspiracy under 18 U.S.C. 371 to defraud the IRS. This type of conspiracy is known as a Klein conspiracy, taking its name from an earlier case _____ involving a complex scheme designed to escape taxes. United ______ States v. Klein, 247 F.2d 908 (2d Cir. 1957). Goldberg ______ _____ -6- -6- argues that the district court misunderstood the crime's \"purpose\" element and that the evidence did not support a conviction. The defraud clause of Section 371 criminalizes any conspiracy \"to defraud the United States, or any agency thereof in any manner or for any purpose.\"",
"18 U.S.C. 371. Such conspiracies to defraud are not limited to those aiming to deprive the government of money or property, but include conspiracy to interfere with government functions. See, ____ e.g., United States v. Tarvers, 833 F.2d 1068, 1075 (1st Cir. ____ _____________ _______ 1987). The crime with which Goldberg was charged, therefore, was that he conspired to interfere with the proper functioning of the IRS, through the filing of false tax documents. It is commonly said that in such a conspiracy the fraud has to be a purpose or object of the conspiracy, and not _______ ______ merely a foreseeable consequence of the conspiratorial scheme. Dennis v. United States, 384 U.S. 855, 861 (1966); 1 ______ _____________ Sand et al., Modern Federal Jury Instructions 19.02 (1990).",
"______ ________________________________ Consider, for example, the case of a band of bank robbers. All know that the agreed-upon robbery will generate \"income\" that none of the robbers will report. Yet it would be straining to describe interference with the IRS as a purpose or object of the conspiracy. E.g., United States v. Vogt, ____ ______________ ____ 910 F.2d 1184, 1202 (4th Cir. 1990). -7- -7- This requirement of purpose accords generally with conspiracy doctrine, United States v. Alvarez, 610 F.2d 1250, _____________ _______ 1256 (5th Cir. 1980), but it is especially important under the defraud clause of section 371. There are not many financial crimes without some implications for false reporting in someone's tax filings, if not for tax liability itself. If section 371 embraced every foreseeable consequence of a conspiracy, many joint financial crimes having no other federal nexus--and perhaps many non-criminal acts as well--would automatically become federal conspiracies to defraud the IRS.",
"The \"purpose\" requirement, however, is easier to state than to apply. The laundering of drug money, for example, normally involves the deliberate concealment of the money's origin. The primary purpose is almost always to avoid detection of the underlying crime; but can a jury also find an implied secondary objective to conceal income from the IRS? We have held, on specific facts, that a jury could draw such an inference and also find a violation of section 371. E.g., United States v. Cambara, 902 F.2d 144, 147 (1st Cir. ____ _____________ _______ 1990); Tarvers, 833 F.2d at 1075-76. _______ Such cases are the source of Goldberg's first argument on this issue. He argues, inventively, that the conspirators either must have as their primary purpose the aim of frustrating the IRS or must be agreeing to undertake the -8- -8- conduct in question to conceal some other crime. An example of the first alternative (primary purpose) is Klein itself _____ where a web of shell companies and deceptive arrangements was devised to evade taxes; the second alternative (concealment of crime) captures the money laundering precedents. This view of section 371 might explain a number of cases and create a barrier against overreaching by prosecutors. But it makes no doctrinal sense.",
"A conspiracy can have multiple objects, Ingram v. United States, 360 U.S. 672, 679- ______ _____________ 80 (1959), and any agreed-upon object can be a purpose of the conspiracy and used to define its character. The central problem, which ought not be shirked, is to distinguish rationally between cases where interfering with government functions is a purpose and those where it is merely a __ foreseeable effect of joint action taken for other reasons. This effort poses subtle problems in discriminating \"purpose\" from \"knowledge\" and in separating the objects of a conspiracy from its more remote consequences. Volumes could be written on these subjects but--for cases like ours--a more compact solution is at hand: where the conspirators have effectively agreed to falsify IRS documents to misstate or misattribute income, we think that (depending upon the circumstances) the factfinder may infer a purpose to defraud the government by interfering with IRS functions in the sense endorsed by the Supreme Court in Dennis. ______ -9- -9- It may well be that the conspirators in this case had no subjective desire--primary or secondary--to throw sand in the __ wheels of the IRS, let alone a subjective aim to reduce tax liability. Goldberg's argument on this point, with one qualification as to the Clark conspiracy, may be plausible.",
"But filing a number of false tax documents misattributing income can interfere so clearly and proximately with IRS functions--or at least a factfinder could (but need not) so find--that we see no sharp distinction under section 371 between a purpose to file such documents and a purpose to interfere. In permitting a factfinder to equate the two purposes, we leave untouched the general precept, namely, that mere collateral effects of jointly agreed-to activity, even if generally foreseeable, are not mechanically to be treated as an object of the conspiracy. This would be a different case if, without filing false tax documents, Goldberg had agreed with his partners to pay Jones under the table, knowing that Jones had no intention of reporting the money to the IRS. If the difference is in degree, then here the degree matters. This brings us to the evidentiary question raised by Goldberg which we rephrase to accord with our just-stated view of the law: does the evidence in this case show that Goldberg and at least one other conspirator shared a purpose to interfere with IRS functions by the filing of false income -10- -10- reports with the IRS?",
"This question must be asked and answered separately as to each conspiracy, as Goldberg was convicted of two separate conspiracies under section 371 and each conviction involves a separate assessment. In each conspiracy, the illicit purpose that gives rise to section 371 violation must be shared by two or more conspirators. Although the government's brief stresses the evidence pertaining to Goldberg's own role and knowledge, a conspiracy to defraud requires at least two who share that aim. Innocent third parties may be the unwitting instruments of a conspiracy. But when it comes to characterizing the purposes or objects of the conspiracy, it is those that are shared by at least two co-conspirators that make up the illegal agreement between them. United States v. Krasovich, _____________ _________ 819 F.2d 253, 255 (9th Cir. 1987). Here, the district court found that a purpose of the conspirators, in each conspiracy, was to interfere with the IRS. As we have said, such a purpose can be inferred, depending upon the facts, where the very acts agreed to by the conspirators included the filing of false income-related tax documents. This purpose can fairly be imputed to Goldberg who arranged for the creation of several or more false tax documents in each scheme.",
"The duration and complexity of the schemes, and Goldberg's own sophistication, add to the inference. -11- -11- There is no evidence that Goldberg discussed the filing of false tax documents with other conspirators. Yet we think that such conduct was an integral and self-evident part of each conspiracy, permitting the inference that other co- conspirators shared in that purpose. In the case of the Scopa conspiracy, false W-2s were given to the straws, who were participants in the scheme, over an extended period. Scopa himself signed a tax return with his wife, who was one of the straws, that incorporated a false W-2. As to the Clark conspiracy, Lango received the false form 1099s, and he in turn reported the false figures to the IRS. Indeed, Lango asked that the amount be divided so that it could be reported in two different years, testifying later that Clark had made the suggestion.",
"This indicates a tax motive but, in addition, shows that both men knew that the filing of false tax documents was an integral part of the scheme, and both shared in this purpose with Goldberg. In sum, the evidence supports the trial court's findings of a common purpose to interfere with IRS functions. In addition to \"the danger [of injustice] inherent in a criminal conspiracy charge,\" Dennis, 384 U.S. at 860, the ______ defraud clause of section 371 has a special capacity for abuse because of the vagueness of the concept of interfering with a proper government function. For that reason, we have examined with special care both the concept and the evidence -12- -12- in this case.",
"But having done so, we conclude that the conduct and purpose of the defendants, although markedly less sinister than in Klein, could properly be found to fall _____ within the outer bounds of section 371. Goldberg next challenges the admission at trial of two out-of-court conversations between Lango and Clark, in which they discussed the false landscaping invoices and the solicitation of Goldberg's participation in the scheme. These statements were admitted, over Goldberg's objection at trial, pursuant to Fed. R. Evid. 801(d)(2)(E), which provides that \"a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy\" is not considered hearsay.",
"Goldberg does not dispute that Lango and Clark made the challenged statements during and in furtherance of the conspiracy, but he argues that the statements were not admissible against him because they were made before he joined. He relies heavily on our opinion in United States v. _____________ Petrozziello, 548 F.2d 20 (1st Cir. 1977), where we said that ____________ \"if it is more likely than not that the declarant and the defendant were members of a conspiracy when the hearsay statement was made, and that the statement was in furtherance of the conspiracy, the hearsay is admissible.\" Id.",
"at 23. __ Although this language has been cited with approval in a few later cases, e.g., United States v. McCarthy, 961 F.2d ____ _____________ ________ -13- -13- 972, 976-77 (1st Cir. 1992), it conflicts with United States _____________ v. Baines, 812 F.2d 41 (1st Cir. 1987). Baines expressed the ______ ______ traditional notion that--insofar as hearsay is concerned--a late-joining conspirator takes the conspiracy as he finds it: \"a conspiracy is like a train,\" and \"when a party steps aboard, he is part of the crew, and assumes conspirator's responsibility for the existing freight . . .",
".\" Id. at 42; ___ accord United States v. Saccoccia, 58 F.3d 754, 778 (1st Cir. ______ _____________ _________ 1995). Frankly, the underlying co-conspirator exception to the hearsay rule makes little sense as a matter of evidence policy. No special guarantee of reliability attends such statements, save to the extent that they resemble declarations against interest. The exception derives from agency law, an analogy that is useful in some contexts but (as the Advisory Committee noted) is \"at best a fiction\" here. The most that can be said is that the co-conspirator exception to hearsay is of long standing and makes a difficult-to-detect crime easier to prove. United States v. _____________ Gil, 604 F.2d 546, 549 (7th Cir. 1979).",
"___ If starting afresh, one might argue that the narrow Petrozziello version of the exception should be preferred, if ____________ only because it accords better with the companion rule imposing substantive liability for other crimes committed during the conspiracy; a co-conspirator is held liable for -14- -14- foreseeable acts of others done in furtherance of the conspiracy but only if committed during the defendant's period of membership. United States v. O'Campo, 973 F.2d _____________ _______ 1015, 1021 (1st Cir. 1992). Symmetry is at least convenient. But we are not starting afresh. The broader Baines test ______ describes the traditional approach, United States v. United _____________ ______ States Gypsum Co., 333 U.S. 364, 393 (1948), presumptively __________________ adopted by the Federal Rules of Evidence.",
"It is followed in most circuits. See 2 Saltzburg, et al., Federal Rules of ___ ______ _________________ Evidence Manual 219-22 (5th ed. 1990) (collecting cases). ________________ Most important, it is the test in most of our own recent cases, including Saccoccia, decided only 19 months ago.1 _________ This panel is arguably not free, but is in any event not inclined, to depart from Saccoccia. _________ Goldberg's next claim on appeal is based on his motion filed prior to trial asking the district court to dismiss the indictment on the ground of selective prosecution. The district court denied the motion without holding a full evidentiary hearing. Goldberg claims that he alleged facts sufficient to require a hearing on his complaint, and he now ____________________ 1See Saccoccia, 58 F.3d at 778; O'Campo, 973 F.2d at ___ _________ _______ 1023 n.5; United States v. Fields, 871 F.2d 188, 194 (1st ______________ ______ Cir.",
"1989); United States v. Murphy, 852 F.2d 1, 8 (1st Cir. _____________ ______ 1988); United States v. Anguilo, 847 F.2d 956, 969 (1st Cir. _____________ _______ 1988); United States v. Reynolds, 828 F.2d 46, 47-48 (1st ______________ ________ Cir. 1987); United States v. Cintolo, 818 F.2d 980, 997 (1st _____________ _______ Cir. 1987). -15- -15- asks this court to remand the case so that he may have such a hearing. The government is allowed \"broad discretion\" in deciding whom to prosecute, Wayte v. United States, 470 U.S. 598, 607 _____ _____________ (1985), but there are some limitations. It is said that the government may not base its decision to prosecute on an \"unjustifiable standard,\" including the defendant's exercise of protected statutory and constitutional rights.",
"Wayte, 470 _____ U.S. at 608. Goldberg bases his selective prosecution claim on the theory that he was targeted by the government in response to his vigorous--and constitutionally protected-- lobbying activities in opposition to the Third Harbor Tunnel project. In seeking an evidentiary hearing, a defendant need only allege \"some facts (a) tending to show that he has been selectively prosecuted and (b) raising a reasonable doubt about the propriety of the prosecution's purpose.\" United ______ States v. Saade, 652 F.2d 1126, 1135 (1st Cir. 1981). But ______ _____ the court may refuse to grant a hearing if the government puts forward adequate \"countervailing reasons\" to refute the charge, id., and if the court is persuaded that the hearing ___ will not be fruitful. Review on appeal is for abuse of discretion. United States v. Gary, 74 F.3d 304, 313 (1st ______________ ____ Cir.",
"1996). -16- -16- Here, Goldberg alleged that one of the prosecutors on the case made a comment to Goldberg's counsel during a preindictment meeting to the effect that Goldberg \"should not have won\" his fight with Frederick Salvucci, Massachusetts' secretary of transportation during the tunnel planning stage. Goldberg also claimed that the initials \"D.D.\" on a prosecution file reflect the complicity in the investigation of David Davis, executive director of MassPort. Finally, he pointed to the fact that several of his co-conspirators in the two schemes, including Clark and Lango, were never indicted. The government filed several affidavits to rebut the claim. It denied that the prosecutor in question made the alleged statement to Goldberg's attorney. It explained that the initials \"D.D.\"",
"on the file that raised Goldberg's suspicion in fact referred not to David Davis but to Denise Doherty, an FBI agent assigned to the case. In another district court paper, the government described the origins of its investigation into Goldberg's activities and gave examples of other recent prosecutions for mail fraud and Klein conspiracies. _____ The district court ultimately denied a hearing, saying that Goldberg's claims were \"close to conclusory.\" We have reviewed the complete filings of both sides and the district court's explanation. What is involved is a judgment call-- -17- -17- tempered on appeal by the deferential standard of review--as to the force and specificity of the allegations, the strength of the response, and the likelihood that a hearing would be helpful.",
"United States v. Lopez, 71 F.3d 954, 963-64 (1st _____________ _____ Cir. 1995). Here, the district court did not abuse its discretion. The claim of selectivity was quite weak; the government largely explained its choice mainly to pursue Goldberg and Scopa. And the rather modest evidence of wrongful motive also melted away, leaving only a single dispute. As to this, four prosecutors denied under oath that the alleged remark had been made. But it is in any event too thin a reed to require an evidentiary hearing, given the lack of surrounding evidence to support a selective prosecution claim. Even less need be said about Goldberg's later new trial motion, whose summary denial is also cited as error. In substance Goldberg complained that the government did not follow its own internal rules for tax prosecutions or reveal to him information about this decision. The government's procedures do not create substantive rights, United States v. _____________ Michaud, 860 F.2d 495, 499 (1st Cir.",
"1988), and there is no _______ substantial basis for believing that the government withheld Brady material, Brady v. Maryland, 373 U.S. 83 (1963), let _____ _____ ________ alone that its actions were prejudicial. -18- -18- Goldberg's last claim of error concerns his sentencing. In fixing the sentence, the district court enhanced Goldberg's base offense level of 10, by four levels--two levels for his role in the offense, U.S.S.G. 3B1.1(c), and two more levels for obstruction of justice, id. 3C1.1--to ___ arrive at an adjusted offense level of 14. (All citations are to the November 1995 edition of the guidelines). However, the court departed downward two levels to 12 because it thought Goldberg's conduct was outside the \"heartland\" contemplated by the Klein conspiracy sentencing guideline. _____ Id. 2T1.9. ___ The district judge stated that although Goldberg's conduct \"as a matter of law constitutes a Klein conspiracy, _____ as a matter of sentencing law, it seems to me inappropriate to apply the Klein conspiracy guidelines.\" He chose to _____ depart downward two levels because he thought the guideline section for aiding and assisting tax fraud, 2T1.4, with a base offense level of 8 (when the tax loss is $3,001 to $5,000), was more reflective of Goldberg's conduct than the Klein conspiracy guideline, 2T1.9, which has a base offense _____ level of 10.2 ____________________ 2The ten-month sentence--five months to be served in prison and five in community confinement--was the minimum end of the resulting guideline range of 12.",
"U.S.S.G. ch. 5, pt. A (10-16 months at offense level 12). -19- -19- The government, sensibly in our view, has chosen not to pursue an appeal from the downward departure. But Goldberg, as is his right, challenges the district court's decision to impose a two-level enhancement for his managerial or supervisory role in the Scopa and Clark conspiracies. The applicable guideline calls for an increase if \"the defendant was an organizer, leader, manager, or supervisor in any criminal activity.\" U.S.S.G.",
"3B1.1(c). In such a case, a two-level increase applies to joint criminal activity that involved fewer than five participants and was not otherwise extensive. Id. ___ Goldberg says that the only person he managed or supervised was his bookkeeper, Arlene Meucci. Meucci, he argues, does not count under the guideline because she was not a culpable participant. See United States v. Morillo, 8 ___ _____________ _______ F.3d 864, 872 & n.13 (1st Cir. 1993); U.S.S.G. 3B1.1, comment n.1. However, at the sentencing hearing, the district court found that Goldberg \"had a management role\" in connection with false payroll and tax documentation directed to the straw employees in the Scopa conspiracy. We review a district court's factfinding at sentencing under a clearly erroneous standard. United States v. ______________ Thompson, 32 F.3d 1, 4 (1st Cir.",
"1994). On the record before ________ us, ample evidence shows that Goldberg superintended the straws' receipt of false tax documents. Goldberg says that -20- -20- Scopa and Clark were the true leaders of the two conspiracies. But a defendant need not be at the top of a criminal scheme to be a manager or supervisor. United States _____________ v. Savoie, 985 F.2d 612, 616 (1st Cir. 1993). Here, ______ Goldberg's role was sufficient for the enhancement even if we assume that Scopa conceived of the payroll scheme and may have exercised primary supervision over the straws. Affirmed. ________ -21- -21-"
]
| https://www.courtlistener.com/api/rest/v3/opinions/2964554/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
EXHIBIT 32.2 CERTIFICATION Pursuant to the requirement set forth in Rule 13a-14(b) of the Securities Exchange Act of 1934, or the Exchange Act, and Section 1350 of Chapter 63 of Title 18 of the United States Code (18 U.S.C. §1350), Marvin D. Burkett, the Chief Financial Officer of NVIDIA Corporation (the “Company”), hereby certifies that, to the best of his knowledge: 1. The Company’s Quarterly Report on Form 10-Q for the period ended April 27, 2008, to which this Certification is attached as Exhibit 32.2 (the “Periodic Report”), fully complies with the requirements of Section 13(a) of the Exchange Act; and 2. The information contained in the Periodic Report fairly presents, in all material respects, the financial condition of the Company at the end of the period covered by the Periodic Report and results of operations of the Company for the period covered by the Periodic Report. Date:May 22, 2008 /s/ MARVIN D. | [
"EXHIBIT 32.2 CERTIFICATION Pursuant to the requirement set forth in Rule 13a-14(b) of the Securities Exchange Act of 1934, or the Exchange Act, and Section 1350 of Chapter 63 of Title 18 of the United States Code (18 U.S.C. §1350), Marvin D. Burkett, the Chief Financial Officer of NVIDIA Corporation (the “Company”), hereby certifies that, to the best of his knowledge: 1. The Company’s Quarterly Report on Form 10-Q for the period ended April 27, 2008, to which this Certification is attached as Exhibit 32.2 (the “Periodic Report”), fully complies with the requirements of Section 13(a) of the Exchange Act; and 2.",
"The information contained in the Periodic Report fairly presents, in all material respects, the financial condition of the Company at the end of the period covered by the Periodic Report and results of operations of the Company for the period covered by the Periodic Report. Date:May 22, 2008 /s/ MARVIN D."
]
| 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 |
|
ORDER
PER CURIAM: AND NOW, this 31st day of July, 2006, upon consideration of the Recommendation of the Three-Member Panel of the Disciplinary Board dated May 25, 2006, the Joint Petition in Support of Discipline on Consent is hereby granted pursuant to Rule 215(g), Pa.R.D.E., and it is ORDERED that Richard Kanoy Doty is suspended on consent from the Bar of this Commonwealth for a period of five years retroactive to April 27, 2006, and he shall comply with all the provisions of Rule 217, Pa.R.D.E. | 06-22-2022 | [
"ORDER PER CURIAM: AND NOW, this 31st day of July, 2006, upon consideration of the Recommendation of the Three-Member Panel of the Disciplinary Board dated May 25, 2006, the Joint Petition in Support of Discipline on Consent is hereby granted pursuant to Rule 215(g), Pa.R.D.E., and it is ORDERED that Richard Kanoy Doty is suspended on consent from the Bar of this Commonwealth for a period of five years retroactive to April 27, 2006, and he shall comply with all the provisions of Rule 217, Pa.R.D.E."
]
| https://www.courtlistener.com/api/rest/v3/opinions/6352443/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Title: From Alexander Hamilton to George Washington, [4 November 1796] From: Hamilton, Alexander To: Washington, George
[New York, November 4, 1796] Sir
I have lately been honored with two letters from you, one from Mount Vernon the other from Philadelphia, which came to hand yesterday. I immediately sent the last to Mr. Jay & conferred with him last night. We settled our opinion on one point—(viz) That whether Mr Adet acted with or without instruction from his Government in publishing his communication, he committed a disrespect towards our government which ought not to pass unnoticed, and would most properly be noticed to him as the Representative or Agent. That the manner of noticing it, in the first instance at least, ought to be negative, that is, by the personal conduct of the President towards the Minister. That the true rule on this point would be to receive the Minister at your levies with a dignified reserve, holding an exact medium between an offensive coldness and cordiality. The point is a nice one to be hit, but no one will know better how do it than the President.
Self respect, & the necessity of discouraging further insult, requires that sensibility should be manifested; on the other hand, the importance of not widening a breach, which may end in rupture, demands great measure and caution in the mode. Mr. Jay & myself are both agreed also, that no immediate publication of the reply which may be given ought to be made—for this would be like joining in an appeal to the Public—would countenance & imitate the irregularity & would not be dignified—nor is it necessary for any present purpose of the Government. Mr. Jay inclined to think that the reply ought to go through Mr. Pinckney to the Directory with only a short note to Adet acknowleging the reception of his paper & informing him that this mode will be taken. I am not yet satisfied that this course will be the best. We are both to consider further and confer. You will shortly be informed of the result. But whatever be the mode adopted it is certain that the reply will be one of the most delicate papers that has proceeded from our Government—in which it will require much care and nicety to steer between sufficient and too much justification, between self respect & the provocation of further insult or injury—and that will at the same time save a great political interest which this step of the French Government opens to us. Did I not know how guarded you will yourself be, I should be afraid of Mr. Pickerings warmth. We must if possible avoid rupture with France—who if not effectually checked will in the insolence of power become no less troublesome to us than to the rest of the world. I dedicate Sunday to the execution of your commands in preparing certain heads. You will speedily hear again from me Most Affecty & respectly I have the honor to be Sir Yr. very Obed serv
A HamiltonNovember 4. 1796 The President | 11-04-1796 | [
"Title: From Alexander Hamilton to George Washington, [4 November 1796] From: Hamilton, Alexander To: Washington, George [New York, November 4, 1796] Sir I have lately been honored with two letters from you, one from Mount Vernon the other from Philadelphia, which came to hand yesterday. I immediately sent the last to Mr. Jay & conferred with him last night. We settled our opinion on one point—(viz) That whether Mr Adet acted with or without instruction from his Government in publishing his communication, he committed a disrespect towards our government which ought not to pass unnoticed, and would most properly be noticed to him as the Representative or Agent. That the manner of noticing it, in the first instance at least, ought to be negative, that is, by the personal conduct of the President towards the Minister. That the true rule on this point would be to receive the Minister at your levies with a dignified reserve, holding an exact medium between an offensive coldness and cordiality. The point is a nice one to be hit, but no one will know better how do it than the President. Self respect, & the necessity of discouraging further insult, requires that sensibility should be manifested; on the other hand, the importance of not widening a breach, which may end in rupture, demands great measure and caution in the mode.",
"Mr. Jay & myself are both agreed also, that no immediate publication of the reply which may be given ought to be made—for this would be like joining in an appeal to the Public—would countenance & imitate the irregularity & would not be dignified—nor is it necessary for any present purpose of the Government. Mr. Jay inclined to think that the reply ought to go through Mr. Pinckney to the Directory with only a short note to Adet acknowleging the reception of his paper & informing him that this mode will be taken. I am not yet satisfied that this course will be the best. We are both to consider further and confer. You will shortly be informed of the result. But whatever be the mode adopted it is certain that the reply will be one of the most delicate papers that has proceeded from our Government—in which it will require much care and nicety to steer between sufficient and too much justification, between self respect & the provocation of further insult or injury—and that will at the same time save a great political interest which this step of the French Government opens to us. Did I not know how guarded you will yourself be, I should be afraid of Mr. Pickerings warmth.",
"We must if possible avoid rupture with France—who if not effectually checked will in the insolence of power become no less troublesome to us than to the rest of the world. I dedicate Sunday to the execution of your commands in preparing certain heads. You will speedily hear again from me Most Affecty & respectly I have the honor to be Sir Yr. very Obed serv A HamiltonNovember 4. 1796 The President"
]
| https://founders.archives.gov/API/docdata/Hamilton/01-20-02-0246 | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
¶35 (dissenting) — Because the State Board of Accountancy (Board) lacks jurisdiction to discipline Greenen for activities totally unrelated to her Certified Public Accountant (CPA) status or work, I dissent. Armstrong, J. ¶36 Under former RCW 18.04.295(2) (1992), the Board has jurisdiction to discipline a CPA for “dishonesty, fraud, or negligence while representing oneself as a CPA” (Emphasis added.) While the legislature may well have intended this language to broaden the Board’s authority and jurisdiction when it amended the statute in 1992, the statute still requires some connection between the dishonesty or fraud and Greenen’s CPA work or status. Specifically, the Board has jurisdiction only if the dishonesty or fraud occurs while Greenen is representing herself as a CPA. The Board heard no evidence that connected Greenen’s CPA work or status to the health insurance form listing her former husband as a beneficiary. She did not use her accounting position or skills *839to either fill out or process the form. In short, the Board heard no evidence that Greenen was representing herself as a CPA in processing the form. ¶37 The majority goes too far, writing out the words “representing oneself” from the statute, and concluding that the Act gives the Board authority to discipline Greenen for misrepresenting her husband’s eligibility while she was a licensed CPA and working as an account manager. And it justifies this end by a full examination of the legislative history, circumventing our basic rule of statutory construction that we start with a statute’s plain meaning, giving effect to that meaning as an expression of legislative intent. See Dep’t of Ecology v. Campbell & Gwinn, L.L.C., 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002) (citing State v. J.M., 144 Wn.2d 472, 480, 28 P.3d 720 (2001)). ¶38 Indeed the plain meaning rule requires courts to consider legislative purposes or policies “ ‘appearing on the face of the statute as part of the statute’s context.’ ” Campbell & Gwinn, 146 Wn.2d at 11 (emphasis added) (quoting 2A Norman J. Singer, Statutes and Statutory Construction § 48A:16, at 809-10 (6th ed. 2000)). Also, judicial notice of background facts may be proper. Campbell & Gwinn, 146 Wn.2d at 11. But the majority fails to recognize that, in general, a court must construe and apply words according to their ordinary meanings. Campbell & Gwinn, 146 Wn.2d at 11 (citing same). It is not appropriate to resort to aids of construction, such as legislative history, until we have examined the plain meaning and found the statute ambiguous or susceptible to more than one reasonable meaning. See Campbell & Gwinn, 146 Wn.2d at 12 (citing Cockle v. Dep’t of Labor & Indus., 142 Wn.2d 801, 808, 16 P.3d 583 (2001)); Timberline Air Serv., Inc. v. Bell Helicopter-Textron, Inc., 125 Wn.2d 305, 312, 884 P.2d 920 (1994). When a statute is unambiguous, we assume the legislature means exactly what it says and that it intends no superfluous words. See State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003); Campbell & Gwinn, 146 Wn.2d at 11; see also In re Recall of Pearsall-*840Stipek, 141 Wn.2d 756, 767, 10 P.3d 1034 (2000) (quoting Greenwood v. Dep’t of Motor Vehicles, 13 Wn. App. 624, 628, 536 P.2d 644 (1975)). ¶39 Here, the meaning of “represent” is not ambiguous. While there are several “ordinary” meanings of “represent,” here, only one fits. As a licensed professional, a CPA has certain duties, rights, and benefits; thus, the most appropriate definition of “represent” is “to . . . perform the duties, exercise the rights, or receive the share of.” Webster’s Third New International Dictionary, at 1926 (1969). The rule makers could have easily written “while a licensed CPA” or “while one is a CPA.” Instead, they chose to limit application of the rule to instances in which a person “represents” herself as a CPA. To read the statute as the majority does renders the word “representing” superfluous. In my view, the more logical reading of the rule describes a person’s conduct while she performs the duties or exercises the rights of a CPA. ¶40 The majority’s view extends the Board’s authority to any on-the-job misconduct by Greenen. If Greenen had exceeded the speed limit while driving a Port vehicle, the Board would have jurisdiction because she sped “while she was employed as an account manager and while holding a CPA license.” The legislature did not grant the Board such broad authority. I would reverse and dismiss. Reconsideration denied June 2, 2005. | 08-12-2021 | [
"¶35 (dissenting) — Because the State Board of Accountancy (Board) lacks jurisdiction to discipline Greenen for activities totally unrelated to her Certified Public Accountant (CPA) status or work, I dissent. Armstrong, J. ¶36 Under former RCW 18.04.295(2) (1992), the Board has jurisdiction to discipline a CPA for “dishonesty, fraud, or negligence while representing oneself as a CPA” (Emphasis added.) While the legislature may well have intended this language to broaden the Board’s authority and jurisdiction when it amended the statute in 1992, the statute still requires some connection between the dishonesty or fraud and Greenen’s CPA work or status.",
"Specifically, the Board has jurisdiction only if the dishonesty or fraud occurs while Greenen is representing herself as a CPA. The Board heard no evidence that connected Greenen’s CPA work or status to the health insurance form listing her former husband as a beneficiary. She did not use her accounting position or skills *839to either fill out or process the form. In short, the Board heard no evidence that Greenen was representing herself as a CPA in processing the form. ¶37 The majority goes too far, writing out the words “representing oneself” from the statute, and concluding that the Act gives the Board authority to discipline Greenen for misrepresenting her husband’s eligibility while she was a licensed CPA and working as an account manager.",
"And it justifies this end by a full examination of the legislative history, circumventing our basic rule of statutory construction that we start with a statute’s plain meaning, giving effect to that meaning as an expression of legislative intent. See Dep’t of Ecology v. Campbell & Gwinn, L.L.C., 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002) (citing State v. J.M., 144 Wn.2d 472, 480, 28 P.3d 720 (2001)). ¶38 Indeed the plain meaning rule requires courts to consider legislative purposes or policies “ ‘appearing on the face of the statute as part of the statute’s context.’ ” Campbell & Gwinn, 146 Wn.2d at 11 (emphasis added) (quoting 2A Norman J.",
"Singer, Statutes and Statutory Construction § 48A:16, at 809-10 (6th ed. 2000)). Also, judicial notice of background facts may be proper. Campbell & Gwinn, 146 Wn.2d at 11. But the majority fails to recognize that, in general, a court must construe and apply words according to their ordinary meanings. Campbell & Gwinn, 146 Wn.2d at 11 (citing same). It is not appropriate to resort to aids of construction, such as legislative history, until we have examined the plain meaning and found the statute ambiguous or susceptible to more than one reasonable meaning. See Campbell & Gwinn, 146 Wn.2d at 12 (citing Cockle v. Dep’t of Labor & Indus., 142 Wn.2d 801, 808, 16 P.3d 583 (2001)); Timberline Air Serv., Inc. v. Bell Helicopter-Textron, Inc., 125 Wn.2d 305, 312, 884 P.2d 920 (1994). When a statute is unambiguous, we assume the legislature means exactly what it says and that it intends no superfluous words. See State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003); Campbell & Gwinn, 146 Wn.2d at 11; see also In re Recall of Pearsall-*840Stipek, 141 Wn.2d 756, 767, 10 P.3d 1034 (2000) (quoting Greenwood v. Dep’t of Motor Vehicles, 13 Wn.",
"App. 624, 628, 536 P.2d 644 (1975)). ¶39 Here, the meaning of “represent” is not ambiguous. While there are several “ordinary” meanings of “represent,” here, only one fits. As a licensed professional, a CPA has certain duties, rights, and benefits; thus, the most appropriate definition of “represent” is “to . . . perform the duties, exercise the rights, or receive the share of.” Webster’s Third New International Dictionary, at 1926 (1969). The rule makers could have easily written “while a licensed CPA” or “while one is a CPA.” Instead, they chose to limit application of the rule to instances in which a person “represents” herself as a CPA. To read the statute as the majority does renders the word “representing” superfluous. In my view, the more logical reading of the rule describes a person’s conduct while she performs the duties or exercises the rights of a CPA.",
"¶40 The majority’s view extends the Board’s authority to any on-the-job misconduct by Greenen. If Greenen had exceeded the speed limit while driving a Port vehicle, the Board would have jurisdiction because she sped “while she was employed as an account manager and while holding a CPA license.” The legislature did not grant the Board such broad authority. I would reverse and dismiss. Reconsideration denied June 2, 2005."
]
| https://www.courtlistener.com/api/rest/v3/opinions/4746670/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Citation Nr: 1512304
Decision Date: 03/23/15 Archive Date: 04/01/15
DOCKET NO. 15-03 257 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois
THE ISSUE
Entitlement to waiver of recovery of an overpayment of VA compensation benefits in the amount of $13,304.00.
(The issues of whether new and material evidence has been received to reopen a claim of service connection for an ankle disability; service connection for sleep disturbance and restless leg syndrome; and increased disability ratings for left hip disability, left sacroiliac sprain, and erectile dysfunction are the subject of a separate Board decision.)
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the United States
ATTORNEY FOR THE BOARD
D. Orfanoudis, Counsel
REMAND
The Veteran had active service from March 1978 to August 1998.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 decision by the Department of Veterans Affairs (VA), Regional Office (RO), in Chicago, Illinois, that denied a request for a waiver of recovery of an overpayment of VA compensation benefits in the amount of $13,304.00. (The Veteran's claims file has been converted into a paperless claims file via the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems.)
In his April 2014 Appeal To Board Of Veterans' Appeals (VA Form 9), the Veteran indicated that he wished to be scheduled for a Board hearing at a local VA office. Pursuant to 38 C.F.R. § 20.700(a) (2014), a hearing on appeal will be granted to an appellant who requests a hearing and is willing to appear in person. A Veteran is entitled to a hearing before a Veterans Law Judge, either in person, or via video conference in lieu of an in-person hearing, if he so chooses. 38 U.S.C.A. § 7107(b) (West 2014); 38 C.F.R. § 20.700 (2014). The Veteran has not yet been scheduled for the requested hearing. Thus, this claim is remanded in order to afford the Veteran a hearing before a Veterans Law Judge at the local RO.
Accordingly, the case is REMANDED for the following action:
The agency of original jurisdiction should schedule the Veteran for a hearing before a Veterans Law Judge sitting at the RO.
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 case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board 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) (2014). | 03-23-2015 | [
"Citation Nr: 1512304 Decision Date: 03/23/15 Archive Date: 04/01/15 DOCKET NO. 15-03 257 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to waiver of recovery of an overpayment of VA compensation benefits in the amount of $13,304.00. (The issues of whether new and material evidence has been received to reopen a claim of service connection for an ankle disability; service connection for sleep disturbance and restless leg syndrome; and increased disability ratings for left hip disability, left sacroiliac sprain, and erectile dysfunction are the subject of a separate Board decision.) REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel REMAND The Veteran had active service from March 1978 to August 1998.",
"This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 decision by the Department of Veterans Affairs (VA), Regional Office (RO), in Chicago, Illinois, that denied a request for a waiver of recovery of an overpayment of VA compensation benefits in the amount of $13,304.00. (The Veteran's claims file has been converted into a paperless claims file via the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems.) In his April 2014 Appeal To Board Of Veterans' Appeals (VA Form 9), the Veteran indicated that he wished to be scheduled for a Board hearing at a local VA office.",
"Pursuant to 38 C.F.R. § 20.700(a) (2014), a hearing on appeal will be granted to an appellant who requests a hearing and is willing to appear in person. A Veteran is entitled to a hearing before a Veterans Law Judge, either in person, or via video conference in lieu of an in-person hearing, if he so chooses. 38 U.S.C.A. § 7107(b) (West 2014); 38 C.F.R. § 20.700 (2014). The Veteran has not yet been scheduled for the requested hearing. Thus, this claim is remanded in order to afford the Veteran a hearing before a Veterans Law Judge at the local RO. Accordingly, the case is REMANDED for the following action: The agency of original jurisdiction should schedule the Veteran for a hearing before a Veterans Law Judge sitting at the RO.",
"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 case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board 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) (2014)."
]
| https://drive.google.com/drive/folders/12lAd8Os7VFeqbTKi4wcqJqODjHIn0-yQ?usp=sharing | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
STATE OF MARYLAND 7 IN THE ) CIRCUIT COURT Vv. * FOR * BALTIMORE CITY GARY CLAYTON * Case No. 115124016 HR Rte MOTION FOR FRANKS HEARING
Now comes the Defendant, Gary Clayton, by and through Staci L. Pipkin, his atlorney, and hereby respectfully requests, pursuant to Franks v. Delaware, 438 U.S. 154 (1978), an evidentiary hearing to determine whether the search warrant executed in the above-captioned matter is supported by probable cause, once the false statements in said affidavit are set io one side. The specific grounds in support of this motion are set forth below.
FACTUAL BACKGROUND
On April 8, 2015, Detective Jemell Rayam of the Baltimore Police Department (Sequence # H740), applied for and was granted a search warrant for the Defendant’s home at 663 Gutman Avenue, Apt. 2. As the basis for this search warrant, Detective Rayam provided several facts in support of his application which are summarized as follows: 1) that a confidential informant (CI-1), advised him that Mr. Clayton was a narcotics distributor who was in possession of a gun: 2) that during the second week of April he observed Mr. Clayion hand an unknown item to an unknowa person in the 1000 block of I Loffman Strcet; 3) that on Apnil 8, 2015, CJ-1 told the detectives that Mr. Clayton would be carrying a
1
EXHIBIT
Z
weapon while he was driving around; 4) that based on that information, Detectives stopped Mr. Clayton for a traffic offense and observed “numerous green tops that go to vials that illegal narcotics are packed into;” and finally that 5) based on this information, Det. Rayam then went to the Defendant’s home and knocked on the door to “further investigate and speak with [Mr.} Kimberly Demory.” He alleges in his search warrant that after Ms. Demory answered the door, “Mr. Gary Clayton then started screaming to don’t let the police in and shut the door and became irrational. Ms. Demory then stated that she was going to call 911 at which time Det. Rayam was able to observe white powdery substance suspected cocaine along with green top vials on the living room table from outside the apartment door. Ms. Demory attempted to close the door and Det. Rayam then observed Ms. Demory take the glass with the suspected cocaine and green top vials and shove it under the couch. Det. Rayam and Det. Clewell then entered 663 Gutman Ave, Apt.2, Baltimore, MD 21218 and detained Ms.
Demory.” (Defendant’s Exhibit 1, Page 8).
Following a search of the apartment, the Defendant was arrested and charged with possession with intent to distribute heroin and cocaine, possession of a firearm by a prohibited person, and other related offenses. Specifically alleged to have been recovered in the living room was “one black plastic bag containing (1) plastic bag containing (25) green top vials containing white substance suspected cocaine (1) plastic bag containing (25) green top vials containing while
substance suspected cocaine.” (Defendant’s Lixhibit 2).
During her investigation of the charges against the Defendant, undersigned counsel had an opportunity to interview Ms. Kimberly Demory. In the course of said interview, Ms. Demory advised that the events surrounding the entry to her home unfolded in a very different manner than the officers alleged in the Warrant. At no time did 1 show the warrant to Ms. Demory nor tell her what the officers alleged. She indicated that she opened the door believing that it was the Defendant, Mr, Gary Clayton, and that when she did, she was met by an officer who seems to fit the description of Detective Rayam. She indicated that she heard Mr. Clayton yelling that the police did not have a search warrant and not to let them in. She indicated that because they were in plain clothes, she picked up the phone to call 911 (in order to confirm their identity as police officers), and that at that time, Detective Rayam produced a handgun and placed it to her head, told her to stop calling 911, and then forced his way into the apartment, Ms. Demory suffers from severe asthma. She indicated to counsel that these actions caused her to begin having an asthma attack, and that at some point, the officers called for a medic to respond to her home. While this was happening, one officer began searching her home while she and Mr. Clayton were handcuffed and detained and
made to sit on the couch in the living room,
When asked about the allegation of controlled dangerous substances being in plain view on the living room table, she denied that there was anything in plain view, Interestingly, there is no mention of glass, loose white powdery substances, Or green top vials mentioned in the statement of probable cause, the offense
Teports, or the evidence contro! submission sheets. The only reference to 3
controlled dangerous substances recovered in the living room indicates that any narcotics in the living roam were conccaled within a black plastic bag. (See attached Defendant’s Exhibit 2, the Statement of Probable Cause}. Furthermore. according to the Evidence Control Submission teporis. there is no reference to the supposed green tops which were observed during the initial traffic stop. FRANKS V. DELAWARE
Generally, “[i]n assessing probable cause for the issuance of a warrant, a
reviewing court is ordinarily confined to the averments contained in the four
corners of an affidavit.” Holland v. State, 154 Md.App. 351, 386 (2003).
However, in Franks v. Delaware, 438 U.S. 154 (1978), the Supreme Court carved out an exception to the “four comers” review of a warrant. Specifically, in
Franks. the Court wrate:
Where the defendant makes a substantial preliminary showing that a false staternent knowingly and intentionally, or with reckless disregard for the mith, was included by the affiant in the warrant affidavit,
and if the allegedly false statement is necessary to
the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request. In the event that at that hearing the
allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the fact of the affidavit.
Id. at 155-56. i
Subsequently, in
McDonald v. State, 347 Md. 452, 471-72 n. 11 (1997),
our Court of Appeals mapped out the process attendant to a Franks hearing,
explaining: Franks v. Delaware set out a procedure, requiring a detailed proffer from the defense before the defendant is even entitled to a hearing to go behind the four comer of the warrant. Under Franks, when a defendant makes a substantial preliminary showing that the affiant intentionally or recklessly included false statements in the supporting affidavit for a search warrant, and that the affidavit without the false statement is insufficient to support a finding of probable cause, the defendant is then entitled to a hearing on the matter. The burden is on the defendant to establish knowing or reckless falsity by a preponderance of the evidence before the evidence will be suppressed.
If the threshold burden of a substantial preliminary showing of an intentional or recklessly included false statement in the warrant affidavit is established by a preponderance of the evidence, the court then conducts “an evidentiary taint hearing.” Holland, 154 Md. App. at 389. At this stage, the court “must determine whether probable cause would exist based on the affidavit if the information improperly included were excised or, converse! y, whether probable cause remains if the omitted information were deemed included. Jf probable cause would no longer exist, then the search warrant will be invalidated and the evidence obtained pursuant to the warrant will be suppressed.” Id. at 389.
As applied in this case, the testimony of Ms. Demary, which she is prepared to give under oath, to the effect that the detectives were never at her apartment door in order to see anything in plain view, that there was in fact no
contraband in plain view, coupled with the fact that the State’s own disclosure
regarding Detective Rayam’s veracity, certainly establishes by a preponderance of 5
the evidence the requisite substantial preliminary showing that the affidavit here intentionally or recklessly included false statements, and therefore permits the court, in its review of the warrant here at issue, to go outside the four comers of the search warrant affidavit. Upon doing so, the only conclusion to arrive at is the remainder of the affidavit contents, i.e., the information supplied by “C]-1” and observations of one possible transaction with an unknown person of an unknown item, would not, standing alone, suffice to establish probable cause, thus requiring that the warrant be invalidated and the evidence obtained pursuant to the warrant
be suppressed.
aci'L. Ripkin, Esq.
JACK B. RUBIN, P.A. 1300 Court Square Building 200 E. Lexington Street Baltimore, Maryland 21202 (410) 727-8710
Attomey for Defendant
CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that on this 12 day of November 201 5, a copy of
the foregoing Motion for Franks Hearing was delivered via e-mail to Kent Grasso,
Esquire, Assistant State’s Attomey for Baltimore City. | 2020-07-29 | [
"STATE OF MARYLAND 7 IN THE ) CIRCUIT COURT Vv. * FOR * BALTIMORE CITY GARY CLAYTON * Case No. 115124016 HR Rte MOTION FOR FRANKS HEARING Now comes the Defendant, Gary Clayton, by and through Staci L. Pipkin, his atlorney, and hereby respectfully requests, pursuant to Franks v. Delaware, 438 U.S. 154 (1978), an evidentiary hearing to determine whether the search warrant executed in the above-captioned matter is supported by probable cause, once the false statements in said affidavit are set io one side. The specific grounds in support of this motion are set forth below. FACTUAL BACKGROUND On April 8, 2015, Detective Jemell Rayam of the Baltimore Police Department (Sequence # H740), applied for and was granted a search warrant for the Defendant’s home at 663 Gutman Avenue, Apt.",
"2. As the basis for this search warrant, Detective Rayam provided several facts in support of his application which are summarized as follows: 1) that a confidential informant (CI-1), advised him that Mr. Clayton was a narcotics distributor who was in possession of a gun: 2) that during the second week of April he observed Mr. Clayion hand an unknown item to an unknowa person in the 1000 block of I Loffman Strcet; 3) that on Apnil 8, 2015, CJ-1 told the detectives that Mr. Clayton would be carrying a 1 EXHIBIT Z weapon while he was driving around; 4) that based on that information, Detectives stopped Mr. Clayton for a traffic offense and observed “numerous green tops that go to vials that illegal narcotics are packed into;” and finally that 5) based on this information, Det. Rayam then went to the Defendant’s home and knocked on the door to “further investigate and speak with [Mr.} Kimberly Demory.” He alleges in his search warrant that after Ms. Demory answered the door, “Mr. Gary Clayton then started screaming to don’t let the police in and shut the door and became irrational.",
"Ms. Demory then stated that she was going to call 911 at which time Det. Rayam was able to observe white powdery substance suspected cocaine along with green top vials on the living room table from outside the apartment door. Ms. Demory attempted to close the door and Det. Rayam then observed Ms. Demory take the glass with the suspected cocaine and green top vials and shove it under the couch.",
"Det. Rayam and Det. Clewell then entered 663 Gutman Ave, Apt.2, Baltimore, MD 21218 and detained Ms. Demory.” (Defendant’s Exhibit 1, Page 8). Following a search of the apartment, the Defendant was arrested and charged with possession with intent to distribute heroin and cocaine, possession of a firearm by a prohibited person, and other related offenses. Specifically alleged to have been recovered in the living room was “one black plastic bag containing (1) plastic bag containing (25) green top vials containing white substance suspected cocaine (1) plastic bag containing (25) green top vials containing while substance suspected cocaine.” (Defendant’s Lixhibit 2). During her investigation of the charges against the Defendant, undersigned counsel had an opportunity to interview Ms. Kimberly Demory. In the course of said interview, Ms. Demory advised that the events surrounding the entry to her home unfolded in a very different manner than the officers alleged in the Warrant.",
"At no time did 1 show the warrant to Ms. Demory nor tell her what the officers alleged. She indicated that she opened the door believing that it was the Defendant, Mr, Gary Clayton, and that when she did, she was met by an officer who seems to fit the description of Detective Rayam. She indicated that she heard Mr. Clayton yelling that the police did not have a search warrant and not to let them in. She indicated that because they were in plain clothes, she picked up the phone to call 911 (in order to confirm their identity as police officers), and that at that time, Detective Rayam produced a handgun and placed it to her head, told her to stop calling 911, and then forced his way into the apartment, Ms. Demory suffers from severe asthma. She indicated to counsel that these actions caused her to begin having an asthma attack, and that at some point, the officers called for a medic to respond to her home.",
"While this was happening, one officer began searching her home while she and Mr. Clayton were handcuffed and detained and made to sit on the couch in the living room, When asked about the allegation of controlled dangerous substances being in plain view on the living room table, she denied that there was anything in plain view, Interestingly, there is no mention of glass, loose white powdery substances, Or green top vials mentioned in the statement of probable cause, the offense Teports, or the evidence contro!",
"submission sheets. The only reference to 3 controlled dangerous substances recovered in the living room indicates that any narcotics in the living roam were conccaled within a black plastic bag. (See attached Defendant’s Exhibit 2, the Statement of Probable Cause}. Furthermore. according to the Evidence Control Submission teporis. there is no reference to the supposed green tops which were observed during the initial traffic stop. FRANKS V. DELAWARE Generally, “[i]n assessing probable cause for the issuance of a warrant, a reviewing court is ordinarily confined to the averments contained in the four corners of an affidavit.” Holland v. State, 154 Md.App. 351, 386 (2003). However, in Franks v. Delaware, 438 U.S. 154 (1978), the Supreme Court carved out an exception to the “four comers” review of a warrant. Specifically, in Franks. the Court wrate: Where the defendant makes a substantial preliminary showing that a false staternent knowingly and intentionally, or with reckless disregard for the mith, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the fact of the affidavit.",
"Id. at 155-56. i Subsequently, in McDonald v. State, 347 Md. 452, 471-72 n. 11 (1997), our Court of Appeals mapped out the process attendant to a Franks hearing, explaining: Franks v. Delaware set out a procedure, requiring a detailed proffer from the defense before the defendant is even entitled to a hearing to go behind the four comer of the warrant. Under Franks, when a defendant makes a substantial preliminary showing that the affiant intentionally or recklessly included false statements in the supporting affidavit for a search warrant, and that the affidavit without the false statement is insufficient to support a finding of probable cause, the defendant is then entitled to a hearing on the matter. The burden is on the defendant to establish knowing or reckless falsity by a preponderance of the evidence before the evidence will be suppressed.",
"If the threshold burden of a substantial preliminary showing of an intentional or recklessly included false statement in the warrant affidavit is established by a preponderance of the evidence, the court then conducts “an evidentiary taint hearing.” Holland, 154 Md. App. at 389. At this stage, the court “must determine whether probable cause would exist based on the affidavit if the information improperly included were excised or, converse! y, whether probable cause remains if the omitted information were deemed included. Jf probable cause would no longer exist, then the search warrant will be invalidated and the evidence obtained pursuant to the warrant will be suppressed.” Id. at 389. As applied in this case, the testimony of Ms. Demary, which she is prepared to give under oath, to the effect that the detectives were never at her apartment door in order to see anything in plain view, that there was in fact no contraband in plain view, coupled with the fact that the State’s own disclosure regarding Detective Rayam’s veracity, certainly establishes by a preponderance of 5 the evidence the requisite substantial preliminary showing that the affidavit here intentionally or recklessly included false statements, and therefore permits the court, in its review of the warrant here at issue, to go outside the four comers of the search warrant affidavit. Upon doing so, the only conclusion to arrive at is the remainder of the affidavit contents, i.e., the information supplied by “C]-1” and observations of one possible transaction with an unknown person of an unknown item, would not, standing alone, suffice to establish probable cause, thus requiring that the warrant be invalidated and the evidence obtained pursuant to the warrant be suppressed.",
"aci'L. Ripkin, Esq. JACK B. RUBIN, P.A. 1300 Court Square Building 200 E. Lexington Street Baltimore, Maryland 21202 (410) 727-8710 Attomey for Defendant CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that on this 12 day of November 201 5, a copy of the foregoing Motion for Franks Hearing was delivered via e-mail to Kent Grasso, Esquire, Assistant State’s Attomey for Baltimore City."
]
| https://www.courtlistener.com/api/rest/v3/recap-documents/140805028/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . DETAILED ACTION Response to Amendment The examiner acknowledges amendments dated 12/20/2021. With the amendments, claims 1-12 remain pending. Claims 1, 5 and 9 are amended. The amendments have been accepted as proper in that no new material has been added. Response to Arguments Applicant’s arguments, see Remarks, filed 12/20/2021, with respect to claims, as amended, have been fully considered and are persuasive. The rejections presented to the previous version of the claims are overcome and the case in now in condition for allowance. Allowable Subject Matter Claims 1-12 are allowed. The following is an examiner’s statement of reasons for allowance: Claim 1 is allowable for a motor comprising: a stator; a rotor disposed in the stator; a shaft coupled to the rotor; and a bus bar disposed on the stator, wherein the bus bar includes terminals connected to a coil of the stator, and a body configured to insulate the terminals, wherein the terminals include a first terminal and a second terminal whose circuits are separated, wherein the body includes a first body, a second body separate from the first body, and bridge portions configured to connect the first body and the second body,
wherein the second terminal is disposed on the second body, wherein the first terminal includes a first phase terminal and a first neutral terminal, and wherein the second terminal includes a second phase terminal and a second neutral terminal. Claim 1 now incorporates some of the limitations of claim 5 which was found to be allowable but objected. The key limitations are those added by amendment. The closest related prior art is to Neet (U. S. Patent 9768,655). The busbar by Neet incorporates a first terminal and a second terminal each which connect two sets of respective phase terminals. However, the bus bar by Neet does not have neutral terminals. Neet shows in figure 3 that there are two sets of phase connections to the windings and two neutrals. However, Neet does not provide for the neutrals to be connected on terminals of the bus bar. As such claim 1 now patentably distinguishes over Neet. Claims 2-4 and 8 are allowable for dependence on the allowable independent claim 1 and for the citation of further distinguishing subject matter. Claim 5 is allowable for a motor comprising: a stator; a rotor disposed in the stator; a shaft coupled to the rotor; and a bus bar disposed on the stator, wherein the bus bar includes terminals connected to a coil of the stator, and a body configured to insulate the terminals, wherein the terminals include a first terminal and a second terminal whose circuits are separated, wherein the body includes a first body, a second body separate from the first body, and bridge portions configured to connect the first body and the second body,
wherein the second terminal is disposed on the second body, wherein the first terminal includes a first phase terminal and a first neutral terminal; and, and wherein between a connection end of the first neutral terminal between and a connection end of the first phase terminal and, the connection end of the first neutral terminal, with respect to a circumferential direction of the bus bar, is disposed most adjacent to the bridge portion. The original version of claim 5 was considered allowable, but objected, now incorporates the subject matter of original claim 1. Claim 5 is closely related to claim 1 by has a further distinguishing limitation. The reasons for allowability of the original claim 1, now apply as the reasons for allowance. Claim 6-8 are allowable for dependence on the allowable independent claim and for the citation of further distinguishing subject matter. Claim 9 is allowable for a motor comprising: a stator; a rotor disposed in the stator; a shaft coupled to the rotor; and a bus bar disposed on the stator, wherein the bus bar includes terminals connected to a coil of the stator, and a body configured to insulate the terminals, wherein the terminals include a first terminal and a second terminal whose circuits are separated, wherein the body includes a first body, a second body separate from the first body, and bridge portions configured to connect one end portion of the first body and one end portion of the second body that are separated, wherein the first terminal is disposed on the first body, wherein the second terminal is disposed on the second body, and wherein an other end portion of the first body and an other end portion of the second body are disposed to be spaced apart from each other wherein the first terminal includes a first phase terminal and a first neutral terminal, and wherein the second terminal includes a second phase terminal and a second neutral terminal. Claim 9 incorporates the same allowable subject matter as incorporated into claim 1. Claim 9 is now allowable for the reasons applied to claim 1 above and for the further distinguishing subject matter found in claim 9 and not found in claim 9. Claim 9 is considered non obvious with respect to the closest related prior art. Claim 10-12 are allowable for dependence on the allowable independent claim and for the citation of further distinguishing subject matter. 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 ROBERT W HORN whose telephone number is (571)272-8591. The examiner can normally be reached on 7:30-3:30. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Elvin Enad can be reached on 571-272-1990. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of 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.
/ROBERT W HORN/Primary Examiner, Art Unit 2837 January 26, 2022 | 2022-02-17T15:30:58 | [
"Notice of Pre-AIA or AIA Status The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . DETAILED ACTION Response to Amendment The examiner acknowledges amendments dated 12/20/2021. With the amendments, claims 1-12 remain pending. Claims 1, 5 and 9 are amended. The amendments have been accepted as proper in that no new material has been added. Response to Arguments Applicant’s arguments, see Remarks, filed 12/20/2021, with respect to claims, as amended, have been fully considered and are persuasive. The rejections presented to the previous version of the claims are overcome and the case in now in condition for allowance.",
"Allowable Subject Matter Claims 1-12 are allowed. The following is an examiner’s statement of reasons for allowance: Claim 1 is allowable for a motor comprising: a stator; a rotor disposed in the stator; a shaft coupled to the rotor; and a bus bar disposed on the stator, wherein the bus bar includes terminals connected to a coil of the stator, and a body configured to insulate the terminals, wherein the terminals include a first terminal and a second terminal whose circuits are separated, wherein the body includes a first body, a second body separate from the first body, and bridge portions configured to connect the first body and the second body, wherein the second terminal is disposed on the second body, wherein the first terminal includes a first phase terminal and a first neutral terminal, and wherein the second terminal includes a second phase terminal and a second neutral terminal. Claim 1 now incorporates some of the limitations of claim 5 which was found to be allowable but objected.",
"The key limitations are those added by amendment. The closest related prior art is to Neet (U. S. Patent 9768,655). The busbar by Neet incorporates a first terminal and a second terminal each which connect two sets of respective phase terminals. However, the bus bar by Neet does not have neutral terminals. Neet shows in figure 3 that there are two sets of phase connections to the windings and two neutrals. However, Neet does not provide for the neutrals to be connected on terminals of the bus bar. As such claim 1 now patentably distinguishes over Neet.",
"Claims 2-4 and 8 are allowable for dependence on the allowable independent claim 1 and for the citation of further distinguishing subject matter. Claim 5 is allowable for a motor comprising: a stator; a rotor disposed in the stator; a shaft coupled to the rotor; and a bus bar disposed on the stator, wherein the bus bar includes terminals connected to a coil of the stator, and a body configured to insulate the terminals, wherein the terminals include a first terminal and a second terminal whose circuits are separated, wherein the body includes a first body, a second body separate from the first body, and bridge portions configured to connect the first body and the second body, wherein the second terminal is disposed on the second body, wherein the first terminal includes a first phase terminal and a first neutral terminal; and, and wherein between a connection end of the first neutral terminal between and a connection end of the first phase terminal and, the connection end of the first neutral terminal, with respect to a circumferential direction of the bus bar, is disposed most adjacent to the bridge portion.",
"The original version of claim 5 was considered allowable, but objected, now incorporates the subject matter of original claim 1. Claim 5 is closely related to claim 1 by has a further distinguishing limitation. The reasons for allowability of the original claim 1, now apply as the reasons for allowance. Claim 6-8 are allowable for dependence on the allowable independent claim and for the citation of further distinguishing subject matter. Claim 9 is allowable for a motor comprising: a stator; a rotor disposed in the stator; a shaft coupled to the rotor; and a bus bar disposed on the stator, wherein the bus bar includes terminals connected to a coil of the stator, and a body configured to insulate the terminals, wherein the terminals include a first terminal and a second terminal whose circuits are separated, wherein the body includes a first body, a second body separate from the first body, and bridge portions configured to connect one end portion of the first body and one end portion of the second body that are separated, wherein the first terminal is disposed on the first body, wherein the second terminal is disposed on the second body, and wherein an other end portion of the first body and an other end portion of the second body are disposed to be spaced apart from each other wherein the first terminal includes a first phase terminal and a first neutral terminal, and wherein the second terminal includes a second phase terminal and a second neutral terminal. Claim 9 incorporates the same allowable subject matter as incorporated into claim 1. Claim 9 is now allowable for the reasons applied to claim 1 above and for the further distinguishing subject matter found in claim 9 and not found in claim 9.",
"Claim 9 is considered non obvious with respect to the closest related prior art. Claim 10-12 are allowable for dependence on the allowable independent claim and for the citation of further distinguishing subject matter. 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 ROBERT W HORN whose telephone number is (571)272-8591.",
"The examiner can normally be reached on 7:30-3:30. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Elvin Enad can be reached on 571-272-1990. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of 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. /ROBERT W HORN/Primary Examiner, Art Unit 2837 January 26, 2022"
]
| https://dh-opendata.s3.amazonaws.com/bdr-oa-bulkdata/weekly/bdr_oa_bulkdata_weekly_2022-02-13.zip | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
705 So.2d 1381 (1998) J.A.S., a child, and J.L.R., a child, Petitioners, v. STATE of Florida, Respondent. No. 89768. Supreme Court of Florida. February 5, 1998. *1382 James B. Gibson, Public Defender and Kenneth Witts, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, for Petitioner. Robert A. Butterworth, Attorney General and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent. ANSTEAD, Justice. We have for review the decision in State v. J.A.S., 686 So.2d 1366 (Fla. 5th DCA 1997). We accepted jurisdiction to answer the following question certified to be of great public importance: WHETHER THE POTENTIAL PENALTY FOR VIOLATION OF SECTION 800.04, FLORIDA STATUTES, BY A MINOR UNDER THE AGE OF SIXTEEN FURTHERS A COMPELLING STATE INTEREST THROUGH THE LEAST INTRUSIVE MEANS? Id. at 1370. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. For the reasons expressed below, we answer the certified question in the affirmative, approve the decision under review, and hold that under the factual circumstances presented herein section 800.04, Florida Statutes (1993), furthers the State's compelling interest in protecting minors from harmful sexual conduct through the least intrusive means.
MATERIAL FACTS AND PROCEDURE BELOW[1] The trial court dismissed statutory rape charges against two fifteen-year-old boys, J.A.S. and J.L.R., who engaged in "consensual" sex with two twelve-year-old girls. One of the boys had sixty-five prior referrals to HRS with thirty-five adjudications. He was on community control when charged and had previously engaged in sex with the victim's thirteen-year-old sister. The other boy had eight prior juvenile referrals and four adjudications. Id. at 1368. The trial judge found section 800.04, Florida Statutes (1993),[2] unconstitutional as applied to the boys because it violated their rights to privacy and equal protection, and the harsh adult sanctions would constitute cruel and unusual punishments if the boys were charged as adults in a felony criminal prosecution.[3] The district court vacated the dismissal. First, the court found that the trial judge inappropriately relied on his own personal experience as a juvenile judge to conclude that "the boys are always charged by the state" whenever sexual misconduct is alleged between juveniles. The court stated that this was an inadequate evidentiary basis to support such a claim of discrimination and that a prosecutor's absolute discretion to charge only some offenders "is not a ground for a claim of denial of equal protection." Second, the district court found that the potential penalties for juveniles if sentenced as adults was not the proper test in determining whether cruel and unusual punishment was imposed.[4] *1383 Finally, the district court considered whether application of the statute invaded the boys' privacy rights. After analyzing the legislative intent behind the statute and our opinion in B.B. v. State, 659 So.2d 256 (Fla. 1995), the district court concluded that "[w]hatever rights of privacy a minor under sixteen may have, surely it does not extend to an absolute and unregulated right to engage in recreational sex with a minor also under that age." 686 So.2d at 1369. Accordingly, the court refused to "eliminate by judicial fiat whatever restraint section 800.04 provides in prohibiting sexual activity by minors in furtherance of the State's compelling interest in preventing such conduct and its consequences." Id.
LAW AND ANALYSIS This case presents policy questions similar to the ones we addressed in B.B. v. State, 659 So.2d 256 (Fla.1995), and Jones v. State, 640 So.2d 1084 (Fla.1994). In Jones, we upheld the constitutionality of the specific statute at issue in this case, section 800.04.[5] There, the issue was whether Florida's statutory rape law as defined in section 800.04 was constitutional in criminalizing consensual sexual intercourse by an adult with a person under the age of sixteen. Id. at 1086. Jones involved separate cases, wherein three adult males, ages eighteen, nineteen, and twenty, were charged with violating the statute's prohibition against sexual intercourse with "any child under the age of 16 years." In each case the female victim consented to sexual intercourse with the defendant. Jones, the eighteen-year-old, was convicted and sentenced to four and one-half years' imprisonment. However, in separate cases involving the other defendants, a different trial judge dismissed the charges, declared section 800.04 unconstitutional as applied and held that the statute constituted an unreasonable restriction on the consenting victims' right of privacy. The Fifth District reversed on the constitutional issue, and certified the constitutional privacy issue to this Court as one of great public importance. On review in Jones we approved the district court's decision, noting that the legislature had enacted numerous statutes to protect minors from harmful sexual conduct, and that those laws clearly invoke a policy that "any type of sexual conduct involving a child constitutes an intrusion upon the rights of that child, whether or not the child consents... [therefore] society has a compelling interest in intervening to stop such misconduct." Id. at 1086 (quoting Schmitt v. State, 590 So.2d 404, 410-11 (Fla.1991)). Emphasizing the primacy of the child protection policies implicit in the laws, we determined that "neither the level of intimacy nor the degree of harm are relevant when an adult and a child under the age of sixteen engage in sexual intercourse." Id. We noted that neither the child's maturity or lack of chastity could override these concerns because "sexual activity with a child opens the door to sexual exploitation, physical harm, and sometimes psychological damage." Jones, 640 So.2d at 1086. We also refused to extend a minor's privacy rights involving abortion as confirmed in In re T.W., 551 So.2d 1186 (Fla.1989), to include a right to initiate consensual sexual relationships with adults. We noted that "T.W. did not transform a minor into an adult for all purposes." Finally, we concluded that whatever the extent of a minor's privacy rights, those rights "do not vitiate the legislature's efforts and authority to protect [minors] from conduct of others." Jones, 640 So.2d at 1087. Justice Kogan wrote separately in Jones, noting that our decision on minors' abortion rights in In re T.W., 551 So.2d 1186 (Fla. 1989), "did not directly or indirectly address the propriety of teens engaging in sexual activities." Id. at 1087 n. 5. He opined that "sex in early adolescence is a dangerous folly *1384 that the state clearly does not condone; but once a girl is pregnant, very different issues and dangers of a completely different magnitude arise. T.W., in sum, does not create a right for young adolescents to `consent' to sex." Id. Justice Kogan also feared that "an uncritical acceptance of the notion of youths `consenting' to sexual activity will merely create a convenient smoke screen for a predatory exploitation of children and young adolescents." Id. at 1088. As evidence of the genuineness of these concerns, Justice Kogan cited copious social science research detailing the resulting psychological costs to the exploited individual, and the increase in criminal activity connected to the childhood sexual abuse of the perpetrators, thereby affecting society as a whole. Id. at 1088-89.
B.B. V. STATE Subsequently, in B.B. v. State, 659 So.2d 256 (Fla.1995), upon review of a certified question,[6] we found section 794.05, Florida Statutes (1991),[7] unconstitutional as applied to the unique facts of that case, including the fact that both the charged defendant and the alleged consenting victim were aged sixteen. We cast the issue in B.B. as "whether a minor who engages in `unlawful' carnal intercourse with an unmarried minor of previous chaste character can be adjudicated delinquent of a felony of the second degree in light of the minor's right to privacy guaranteed by the Florida Constitution." 659 So.2d at 258. After noting that other intimate acts fall within the zone of privacy recognized by the United States Constitution, and in light of our decision in T.W. finding abortion rights to be within a minor's privacy interest, we concluded that "Florida's clear constitutional mandate in favor of privacy is implicated in B.B., a sixteen-year-old, engaging in carnal intercourse." Id. at 259. Thereafter, we applied the "stringent test"[8] to the statute, the standard whereby the State "must prove that the statute furthers a compelling state interest through the least intrusive means." Id. at 259 (quoting T.W., 551 So.2d at 1193), and found that the State's interest fell short of that measure in its attempt to punish one sixteen-year-old for consenting to having sex with another sixteen-year-old. We distinguished B.B. from Jones by pointing out material distinctions between both the statutes, the issues under review, and especially the specific factual circumstances involved of two consenting sixteen-year-olds. We specifically distinguished the State's interest that we found compelling in Jones. We noted that Jones implicated an adult-minor situation where "the crux of the State's interest ... [was] the prevention of exploitation of the minor by the adult." Id. In contrast, "in this minor-minor situation, the crux of the State's interest is in protecting the minor from the sexual activity itself for reasons of health and quality of life." Id. We also explored the ancient roots of the statute in an attempt to determine "why the statute protected only unmarried minors who were chaste." Id. Finally, after agreeing with a Fourth District opinion[9] that the statute's apparent purpose was "to protect minors from sex acts imposed by adults," we held that section 794.05 was unconstitutional as applied to sixteen-year-old B.B., since in *1385 his case it was "being used as a weapon to adjudicate a minor delinquent," rather than "being utilized as a shield to protect a minor." Id. at 260.[10] Hence, we held, in essence, that the State could not single out, solely on the basis of chastity, one of two consenting sixteen-year-old minors for criminal prosecution.[11]
POLICY CHOICES In the present case, in considering an "as applied" constitutional challenge, we are again faced with difficult, competing policy choices, in a situation involving minors as defendants and victims. In B.B., we concluded that the purpose of section 794.05(1) was "to protect minors from sex acts imposed by adults." 659 So.2d at 260 (quoting Victor v. State, 566 So.2d 354, 356 (Fla. 4th DCA 1990)), and, accordingly, we found the statute unconstitutional as applied in singling out one of two consenting sixteen-year-olds because it was "not being utilized as a shield to protect a minor." Id. We find B.B. clearly distinguishable because while both "defendant" and "victim" were sixteen in that case, here we have two fifteen year-old boys engaging in sexual activity with two twelve-year-old girls.[12] As J.A.S.'s counsel acknowledged at oral argument, and we reaffirm here, twelve-year-old children are entitled to considerable protection by the State, even when some of them resist its extension to them. Fundamentally, our inquiry here involves weighing the State's legitimate interest in either regulating or forbidding the challenged conduct of the minors involved herein against the minors' privacy rights under article I, section 23 of the Florida Constitution.[13] Consistent with that approach, and with our prior analysis in Jones upholding the same statute, we find that as to the "as applied" challenge here, the scales clearly tip in favor of the State's compelling interest in protecting children from harmful sexual conduct. See Jones, 640 So.2d at 1086 ("The State has the prerogative to safeguard its citizens, particularly children, from potential harm when such harm outweighs the interests of the individual.") (citing Griffin v. State, 396 So.2d 152 (Fla.1981)). Our conclusion is consistent with our particularized approach to similar privacy issues in B.B. and in Jones. We recognized in Jones that the Florida Legislature, "[a]s evidenced by the number and breadth of the statutes concerning minors and sexual exploitation... has established an unquestionably strong policy interest in protecting minors from harmful sexual conduct." 640 So.2d at 1085. Moreover, "[the] rights of privacy that *1386 have been granted to minors do not vitiate the legislature's efforts and authority to protect [them] from conduct of others." Id. at 1087. Although applied in the adult-minor context, our reasoning in Jones is equally applicable here in recognizing the State's compelling interest in protecting twelve-year-olds from older teenagers and from their own immaturity in choosing to participate in harmful activity. 640 So.2d at 1087 (finding that the State "has an obligation and a compelling interest in protecting children from `sexual activity and exploitation before their minds and bodies have sufficiently matured to make it appropriate, safe, and healthy for them'") (quoting Jones v. State, 619 So.2d 418, 424 (Fla. 5th DCA 1993) (Sharp, J., concurring specially)). On the other hand, we reasoned in B.B. that the statute was "not being utilized as a shield to protect a minor, but rather, it [was] being used as a weapon to adjudicate a minor delinquent." B.B., 659 So.2d at 260. In contrast, under the circumstances presented here, we conclude that section 800.04 is being primarily utilized as a shield to protect the twelve-year-old girls, rather than a weapon to arbitrarily adjudicate the fifteen-year-old boys as delinquents. While we agree that the trial court, based upon its actual experience, has identified a potential legitimate concern in the observation that "the boys are always charged by the state" when sexual misconduct is alleged involving minors, we do not find that concern implicated or determinative here. As already repeatedly noted, the facts here are clearly distinguishable from those in B.B. where such a concern may have merited further exploration. Further, in accord with our reasoning in T.W., 551 So.2d at 1193, that "a minor's rights are not absolute," we again decline to find that a minor has an open-ended privacy right in carnal intercourse with another minor, of any age, that shields the minor from adjudication as a delinquent. Counterposed against respect for the privacy rights of "[e]very natural person," including minors, is the legislature's legitimate concern with the social problems engendered by minors' sexual activity. On that subject, we agree, for example, that the statute evinces a policy that "sex in early adolescence is a dangerous folly that the state clearly does not condone." Jones, 640 So.2d at 1087 n. 5 (Kogan, J., concurring).[14] We conclude that whatever privacy interest a fifteen-year-old minor has in carnal intercourse is clearly outweighed by the State's interest in protecting twelve-year-old children from harmful sexual conduct, irrespective of whether the twelve-year-old "consented" to the sexual activity. We simply cannot ignore the State's weighty interest in protecting the twelve-year-old girls from harmful sexual conduct "for reasons of health and quality of life," B.B., 659 So.2d at 259, and from possible sexual exploitation by the older minors. See J.A.S., 686 So.2d at 1369 (reasoning that minors under sixteen have no unfettered right to engage in recreational sex with others under sixteen because the "costs and risks to society and the children involved are far too great"). Therefore, we conclude that section 800.04, as applied herein, furthers the compelling interest of the State in the health and welfare of its children, through the least intrusive means, by prohibiting such conduct and attaching reasonable sanctions through the rehabilitative juvenile justice system.[15]See *1387 P.W.G. v. State, 702 So.2d 488, 491 (Fla.1997) ("Given the different goals of the juvenile delinquency and the adult criminal systems, and the former's emphasis on rehabilitation as the principal means by which to achieve the goal of preventing delinquent children from becoming adult offenders, we believe that it is constitutionally permissible for the trial court to impose whatever treatment plan it concludes is most likely to be effective for a particular child, as long as that plan does not pose a significant threat to the health or well-being of the child."). While education and counseling are obvious means of addressing the State's concerns, we do not find it unreasonable for the State to include the invocation of juvenile sanctions in particular instances such as the ones presented here as an additional means of protecting children. Stated another way, the more compelling the interest under the particular circumstances, the more leeway the State will be afforded. We recognize that it would simplify privacy analysis if we could fashion a precise equation by which all could easily determine which interest should prevail in whatever context a privacy right is asserted. In cases like this, all interested parties legitimately seek bright-line rules in determining whether the disputed conduct is sanctionable in the juvenile or criminal justice systems, or whether the activity falls within the constitutionally-protected zone of privacy established for certain forms of intimate human conduct. However, the human experience is not so easily categorized or quantified and no single formula can be crafted for deciding issues which implicate the most personal and intimate forms of conduct and privacy, especially where children are involved. If we blinded ourselves to the unique facts of each case, we would render decisions in a vacuum with no thought to the serious consequences of our decisions for the affected parties and society in general.
CONCLUSION In summary, we hold that section 800.04, Florida Statutes (1993), as applied in the circumstances presented here, furthers the State's compelling interest in protecting minors from harmful sexual conduct through the least intrusive means. Accordingly, we answer the certified question in the affirmative and, in accord with the reasoning set out above, approve the Fifth District's decision. It is so ordered. KOGAN, C.J., OVERTON, SHAW, HARDING and WELLS, JJ., and GRIMES, Senior Justice, concur. NOTES [1] The following facts are taken from the district court's opinion. J.A.S., 686 So.2d at 1367-70. [2] The trial court specifically found subsection (4) unconstitutional as applied. The first three subsections of section 800.04 deal with sexual assault or sexual battery. Subsection (4) provides:
A person who: .... (4) Knowingly commits any lewd or lascivious act in the presence of any child under the age of 16 years, without committing the crime of sexual battery, commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Neither the victim's lack of chastity nor the victim's consent is a defense to the crime proscribed by this section. [3] The trial court then certified a question of great public importance to that effect to the Fifth District. The district court declined to answer the question, finding no provision for a certified question from a trial court and determining that the equal protection and cruel and unusual punishment issues were premature. [4] As to the severity of the sanction attached, the court also noted that the "legislature seemed to be content with the potential punishment involved, as reflected by its unwillingness to change the statutory prohibitions and penalties... during their 1996 session, although fully acknowledging that it was aware of the problem." 686 So.2d at 1369. [5] Although both cases construe section 800.04, Jones addressed the 1991 statute, while J.A.S. interpreted the 1993 statute. There are slight differences between the statutes, although none are material. Specifically, "Any person" is now "A person"; "makes an assault upon any child" is now "assaults any child"; and a final sentence was added in 1993: "A mother's breastfeeding of her baby does not under any circumstance violate this section." Ch. 93-4, § 5 Laws of Fla. (1993). [6] "Whether Florida's privacy amendment, Article I, section 23 of the Florida Constitution, renders section 794.05, Florida Statutes (1991), unconstitutional as it pertains to a minor's consensual sexual activity?" Id. at 257. The trial court granted B.B.'s motion to declare the statute unconstitutional, relying on T.W. for the proposition that B.B.'s privacy rights under the Florida Constitution outweighed the State's interest in protecting the other consenting sixteen-year-old from her own consensual sexual conduct. Id. at 258. [7] Section 794.05 provided that:
(1) Any person who has unlawful sexual intercourse with any unmarried person, of previous chaste character, who at the time of such intercourse is under the age of 18 years, shall be guilty of a felony of the second degree.... (2) It shall not be a defense to a prosecution under this section that the prosecuting witness was not of previous chaste character at the time of the act when the lack of previous chaste character in the prosecuting witness was caused solely by previous intercourse between the defendant and the prosecuting witness. [8] This test was first established in Winfield v. Division of Pari-Mutuel Wagering, 477 So.2d 544 (Fla.1985). [9] Victor v. State, 566 So.2d 354, 356 (Fla. 4th DCA 1990). [10] As in Jones, Justice Kogan filed a separate concurrence and decried the selectivity of section 794.05, writing that this "singularly odd state of affairs indicates that the real objective of this statute is not to protect children as a class, but to prevent the loss of chastity of those not already `despoiled.'" Id. Justice Kogan found section 794.05 "inherently questionable" since it "purports to grant special status to a favored group of children over all others," thus violating the fundamental legal principle that "[l]aws should protect everyone, not merely a favored subgroup." Id. at 261. Justice Kogan also urged the legislature to either modernize section 794.05 or at least "decide if it is genuinely necessary in light of the variety of other statutes more than adequately protecting children from sexual predation." Id. [11] We note that in apparent response to our decision in B.B., the legislature completely revised section 794.05 in 1996. Ch. 96-409, § 1, Laws of Fla. The most significant change is reflected in subsection (1), which provides that:
A person 24 years of age or older who engages in sexual activity with a person 16 or 17 years of age commits a felony of the second degree..... As used in this section, "sexual activity" means oral, anal, or vaginal penetration by, or union with, the sexual organ of another; however, sexual activity does not include an act done for a bona fide medical purpose. § 794.05, Fla. Stat. (1997). Hence, section 794.05 no longer exists in the same form we considered in B.B. [12] Neither are we faced here with a statute that selectively protects only a favored sub-group of minors such as was decried by Justice Kogan in B.B. 659 So.2d at 260-61 (finding inexplicable a statute "that seems to regard unchaste minors as being somehow less deserving of the state's protection than those who are otherwise"). [13] "Every natural person has the right to be let alone and free from governmental intrusion into his private life except as otherwise provided herein. This section shall not be construed to limit the public's right of access to public records and meetings as provided by law." Art. I, § 23, Fla. Const. [14] This Court has consistently acknowledged the legitimacy of such a policy. "We do say that if our decision was what should be taught and reasoned to minors, the unequivocal text of our message would be abstinence." B.B., 659 So.2d at 260 (majority opinion). "Persons under the age of eighteen are still considered minors, and as this Court held in Jones, the legislature has a strong policy interest in protecting minors from harmful sexual conduct." Id. at 261-62 (Grimes, C.J., dissenting with Shaw, J., concurring). "The facts of this case make its resolution troublesome... [where] [t]wo persons, both minors, agreed to engage in sexual intercourse." Id. at 262 (Harding, J., dissenting). [15] In P.W.G. v. State, 702 So.2d 488 (Fla.1997), we adopted the opinion of the First District which in turn relied extensively upon our previous decision in In re C.J.W., 377 So.2d 22, 24 (Fla.1979), wherein we declared:
A child offender, even after being adjudged delinquent, is never held to be a criminal, even if the act would be considered a crime if committed by an adult. The key to this difference in approach lies in the juvenile justice system's ultimate aims. Juveniles are considered to be rehabilitatable. They do not need punishment. Their need lies in the area of treatment. As J.A.S. notes in his brief, a minor convicted of a second-degree felony (if charged as an adult), potentially faces a maximum fifteen-year prison sentence. However, as counsel conceded at oral argument, such a severe sanction is an impossibility in this case since both minors remain within the juvenile justice system and have not been charged as adults. | 10-30-2013 | [
"705 So.2d 1381 (1998) J.A.S., a child, and J.L.R., a child, Petitioners, v. STATE of Florida, Respondent. No. 89768. Supreme Court of Florida. February 5, 1998. *1382 James B. Gibson, Public Defender and Kenneth Witts, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, for Petitioner. Robert A. Butterworth, Attorney General and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent. ANSTEAD, Justice. We have for review the decision in State v. J.A.S., 686 So.2d 1366 (Fla. 5th DCA 1997). We accepted jurisdiction to answer the following question certified to be of great public importance: WHETHER THE POTENTIAL PENALTY FOR VIOLATION OF SECTION 800.04, FLORIDA STATUTES, BY A MINOR UNDER THE AGE OF SIXTEEN FURTHERS A COMPELLING STATE INTEREST THROUGH THE LEAST INTRUSIVE MEANS? Id. at 1370.",
"We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. For the reasons expressed below, we answer the certified question in the affirmative, approve the decision under review, and hold that under the factual circumstances presented herein section 800.04, Florida Statutes (1993), furthers the State's compelling interest in protecting minors from harmful sexual conduct through the least intrusive means. MATERIAL FACTS AND PROCEDURE BELOW[1] The trial court dismissed statutory rape charges against two fifteen-year-old boys, J.A.S. and J.L.R., who engaged in \"consensual\" sex with two twelve-year-old girls. One of the boys had sixty-five prior referrals to HRS with thirty-five adjudications.",
"He was on community control when charged and had previously engaged in sex with the victim's thirteen-year-old sister. The other boy had eight prior juvenile referrals and four adjudications. Id. at 1368. The trial judge found section 800.04, Florida Statutes (1993),[2] unconstitutional as applied to the boys because it violated their rights to privacy and equal protection, and the harsh adult sanctions would constitute cruel and unusual punishments if the boys were charged as adults in a felony criminal prosecution. [3] The district court vacated the dismissal. First, the court found that the trial judge inappropriately relied on his own personal experience as a juvenile judge to conclude that \"the boys are always charged by the state\" whenever sexual misconduct is alleged between juveniles. The court stated that this was an inadequate evidentiary basis to support such a claim of discrimination and that a prosecutor's absolute discretion to charge only some offenders \"is not a ground for a claim of denial of equal protection.\" Second, the district court found that the potential penalties for juveniles if sentenced as adults was not the proper test in determining whether cruel and unusual punishment was imposed. [4] *1383 Finally, the district court considered whether application of the statute invaded the boys' privacy rights.",
"After analyzing the legislative intent behind the statute and our opinion in B.B. v. State, 659 So.2d 256 (Fla. 1995), the district court concluded that \"[w]hatever rights of privacy a minor under sixteen may have, surely it does not extend to an absolute and unregulated right to engage in recreational sex with a minor also under that age.\" 686 So.2d at 1369. Accordingly, the court refused to \"eliminate by judicial fiat whatever restraint section 800.04 provides in prohibiting sexual activity by minors in furtherance of the State's compelling interest in preventing such conduct and its consequences.\" Id. LAW AND ANALYSIS This case presents policy questions similar to the ones we addressed in B.B.",
"v. State, 659 So.2d 256 (Fla.1995), and Jones v. State, 640 So.2d 1084 (Fla.1994). In Jones, we upheld the constitutionality of the specific statute at issue in this case, section 800.04. [5] There, the issue was whether Florida's statutory rape law as defined in section 800.04 was constitutional in criminalizing consensual sexual intercourse by an adult with a person under the age of sixteen. Id. at 1086. Jones involved separate cases, wherein three adult males, ages eighteen, nineteen, and twenty, were charged with violating the statute's prohibition against sexual intercourse with \"any child under the age of 16 years.\" In each case the female victim consented to sexual intercourse with the defendant. Jones, the eighteen-year-old, was convicted and sentenced to four and one-half years' imprisonment. However, in separate cases involving the other defendants, a different trial judge dismissed the charges, declared section 800.04 unconstitutional as applied and held that the statute constituted an unreasonable restriction on the consenting victims' right of privacy. The Fifth District reversed on the constitutional issue, and certified the constitutional privacy issue to this Court as one of great public importance. On review in Jones we approved the district court's decision, noting that the legislature had enacted numerous statutes to protect minors from harmful sexual conduct, and that those laws clearly invoke a policy that \"any type of sexual conduct involving a child constitutes an intrusion upon the rights of that child, whether or not the child consents... [therefore] society has a compelling interest in intervening to stop such misconduct.\"",
"Id. at 1086 (quoting Schmitt v. State, 590 So.2d 404, 410-11 (Fla.1991)). Emphasizing the primacy of the child protection policies implicit in the laws, we determined that \"neither the level of intimacy nor the degree of harm are relevant when an adult and a child under the age of sixteen engage in sexual intercourse.\" Id. We noted that neither the child's maturity or lack of chastity could override these concerns because \"sexual activity with a child opens the door to sexual exploitation, physical harm, and sometimes psychological damage.\"",
"Jones, 640 So.2d at 1086. We also refused to extend a minor's privacy rights involving abortion as confirmed in In re T.W., 551 So.2d 1186 (Fla.1989), to include a right to initiate consensual sexual relationships with adults. We noted that \"T.W. did not transform a minor into an adult for all purposes.\" Finally, we concluded that whatever the extent of a minor's privacy rights, those rights \"do not vitiate the legislature's efforts and authority to protect [minors] from conduct of others.\" Jones, 640 So.2d at 1087. Justice Kogan wrote separately in Jones, noting that our decision on minors' abortion rights in In re T.W., 551 So.2d 1186 (Fla. 1989), \"did not directly or indirectly address the propriety of teens engaging in sexual activities.\" Id. at 1087 n. 5.",
"He opined that \"sex in early adolescence is a dangerous folly *1384 that the state clearly does not condone; but once a girl is pregnant, very different issues and dangers of a completely different magnitude arise. T.W., in sum, does not create a right for young adolescents to `consent' to sex.\" Id. Justice Kogan also feared that \"an uncritical acceptance of the notion of youths `consenting' to sexual activity will merely create a convenient smoke screen for a predatory exploitation of children and young adolescents.\" Id. at 1088. As evidence of the genuineness of these concerns, Justice Kogan cited copious social science research detailing the resulting psychological costs to the exploited individual, and the increase in criminal activity connected to the childhood sexual abuse of the perpetrators, thereby affecting society as a whole.",
"Id. at 1088-89. B.B. V. STATE Subsequently, in B.B. v. State, 659 So.2d 256 (Fla.1995), upon review of a certified question,[6] we found section 794.05, Florida Statutes (1991),[7] unconstitutional as applied to the unique facts of that case, including the fact that both the charged defendant and the alleged consenting victim were aged sixteen. We cast the issue in B.B. as \"whether a minor who engages in `unlawful' carnal intercourse with an unmarried minor of previous chaste character can be adjudicated delinquent of a felony of the second degree in light of the minor's right to privacy guaranteed by the Florida Constitution.\" 659 So.2d at 258. After noting that other intimate acts fall within the zone of privacy recognized by the United States Constitution, and in light of our decision in T.W. finding abortion rights to be within a minor's privacy interest, we concluded that \"Florida's clear constitutional mandate in favor of privacy is implicated in B.B., a sixteen-year-old, engaging in carnal intercourse.\"",
"Id. at 259. Thereafter, we applied the \"stringent test\"[8] to the statute, the standard whereby the State \"must prove that the statute furthers a compelling state interest through the least intrusive means.\" Id. at 259 (quoting T.W., 551 So.2d at 1193), and found that the State's interest fell short of that measure in its attempt to punish one sixteen-year-old for consenting to having sex with another sixteen-year-old. We distinguished B.B. from Jones by pointing out material distinctions between both the statutes, the issues under review, and especially the specific factual circumstances involved of two consenting sixteen-year-olds. We specifically distinguished the State's interest that we found compelling in Jones. We noted that Jones implicated an adult-minor situation where \"the crux of the State's interest ... [was] the prevention of exploitation of the minor by the adult.\"",
"Id. In contrast, \"in this minor-minor situation, the crux of the State's interest is in protecting the minor from the sexual activity itself for reasons of health and quality of life.\" Id. We also explored the ancient roots of the statute in an attempt to determine \"why the statute protected only unmarried minors who were chaste.\" Id. Finally, after agreeing with a Fourth District opinion[9] that the statute's apparent purpose was \"to protect minors from sex acts imposed by adults,\" we held that section 794.05 was unconstitutional as applied to sixteen-year-old B.B., since in *1385 his case it was \"being used as a weapon to adjudicate a minor delinquent,\" rather than \"being utilized as a shield to protect a minor.\" Id. at 260.",
"[10] Hence, we held, in essence, that the State could not single out, solely on the basis of chastity, one of two consenting sixteen-year-old minors for criminal prosecution. [11] POLICY CHOICES In the present case, in considering an \"as applied\" constitutional challenge, we are again faced with difficult, competing policy choices, in a situation involving minors as defendants and victims. In B.B., we concluded that the purpose of section 794.05(1) was \"to protect minors from sex acts imposed by adults.\" 659 So.2d at 260 (quoting Victor v. State, 566 So.2d 354, 356 (Fla. 4th DCA 1990)), and, accordingly, we found the statute unconstitutional as applied in singling out one of two consenting sixteen-year-olds because it was \"not being utilized as a shield to protect a minor.\" Id. We find B.B. clearly distinguishable because while both \"defendant\" and \"victim\" were sixteen in that case, here we have two fifteen year-old boys engaging in sexual activity with two twelve-year-old girls. [12] As J.A.S. 's counsel acknowledged at oral argument, and we reaffirm here, twelve-year-old children are entitled to considerable protection by the State, even when some of them resist its extension to them. Fundamentally, our inquiry here involves weighing the State's legitimate interest in either regulating or forbidding the challenged conduct of the minors involved herein against the minors' privacy rights under article I, section 23 of the Florida Constitution.",
"[13] Consistent with that approach, and with our prior analysis in Jones upholding the same statute, we find that as to the \"as applied\" challenge here, the scales clearly tip in favor of the State's compelling interest in protecting children from harmful sexual conduct. See Jones, 640 So.2d at 1086 (\"The State has the prerogative to safeguard its citizens, particularly children, from potential harm when such harm outweighs the interests of the individual.\") (citing Griffin v. State, 396 So.2d 152 (Fla.1981)). Our conclusion is consistent with our particularized approach to similar privacy issues in B.B.",
"and in Jones. We recognized in Jones that the Florida Legislature, \"[a]s evidenced by the number and breadth of the statutes concerning minors and sexual exploitation... has established an unquestionably strong policy interest in protecting minors from harmful sexual conduct.\" 640 So.2d at 1085. Moreover, \"[the] rights of privacy that *1386 have been granted to minors do not vitiate the legislature's efforts and authority to protect [them] from conduct of others.\" Id. at 1087. Although applied in the adult-minor context, our reasoning in Jones is equally applicable here in recognizing the State's compelling interest in protecting twelve-year-olds from older teenagers and from their own immaturity in choosing to participate in harmful activity. 640 So.2d at 1087 (finding that the State \"has an obligation and a compelling interest in protecting children from `sexual activity and exploitation before their minds and bodies have sufficiently matured to make it appropriate, safe, and healthy for them'\") (quoting Jones v. State, 619 So.2d 418, 424 (Fla. 5th DCA 1993) (Sharp, J., concurring specially)). On the other hand, we reasoned in B.B. that the statute was \"not being utilized as a shield to protect a minor, but rather, it [was] being used as a weapon to adjudicate a minor delinquent.\"",
"B.B., 659 So.2d at 260. In contrast, under the circumstances presented here, we conclude that section 800.04 is being primarily utilized as a shield to protect the twelve-year-old girls, rather than a weapon to arbitrarily adjudicate the fifteen-year-old boys as delinquents. While we agree that the trial court, based upon its actual experience, has identified a potential legitimate concern in the observation that \"the boys are always charged by the state\" when sexual misconduct is alleged involving minors, we do not find that concern implicated or determinative here. As already repeatedly noted, the facts here are clearly distinguishable from those in B.B.",
"where such a concern may have merited further exploration. Further, in accord with our reasoning in T.W., 551 So.2d at 1193, that \"a minor's rights are not absolute,\" we again decline to find that a minor has an open-ended privacy right in carnal intercourse with another minor, of any age, that shields the minor from adjudication as a delinquent. Counterposed against respect for the privacy rights of \"[e]very natural person,\" including minors, is the legislature's legitimate concern with the social problems engendered by minors' sexual activity. On that subject, we agree, for example, that the statute evinces a policy that \"sex in early adolescence is a dangerous folly that the state clearly does not condone.\"",
"Jones, 640 So.2d at 1087 n. 5 (Kogan, J., concurring). [14] We conclude that whatever privacy interest a fifteen-year-old minor has in carnal intercourse is clearly outweighed by the State's interest in protecting twelve-year-old children from harmful sexual conduct, irrespective of whether the twelve-year-old \"consented\" to the sexual activity. We simply cannot ignore the State's weighty interest in protecting the twelve-year-old girls from harmful sexual conduct \"for reasons of health and quality of life,\" B.B., 659 So.2d at 259, and from possible sexual exploitation by the older minors. See J.A.S., 686 So.2d at 1369 (reasoning that minors under sixteen have no unfettered right to engage in recreational sex with others under sixteen because the \"costs and risks to society and the children involved are far too great\").",
"Therefore, we conclude that section 800.04, as applied herein, furthers the compelling interest of the State in the health and welfare of its children, through the least intrusive means, by prohibiting such conduct and attaching reasonable sanctions through the rehabilitative juvenile justice system. [15]See *1387 P.W.G. v. State, 702 So.2d 488, 491 (Fla.1997) (\"Given the different goals of the juvenile delinquency and the adult criminal systems, and the former's emphasis on rehabilitation as the principal means by which to achieve the goal of preventing delinquent children from becoming adult offenders, we believe that it is constitutionally permissible for the trial court to impose whatever treatment plan it concludes is most likely to be effective for a particular child, as long as that plan does not pose a significant threat to the health or well-being of the child.\"). While education and counseling are obvious means of addressing the State's concerns, we do not find it unreasonable for the State to include the invocation of juvenile sanctions in particular instances such as the ones presented here as an additional means of protecting children. Stated another way, the more compelling the interest under the particular circumstances, the more leeway the State will be afforded.",
"We recognize that it would simplify privacy analysis if we could fashion a precise equation by which all could easily determine which interest should prevail in whatever context a privacy right is asserted. In cases like this, all interested parties legitimately seek bright-line rules in determining whether the disputed conduct is sanctionable in the juvenile or criminal justice systems, or whether the activity falls within the constitutionally-protected zone of privacy established for certain forms of intimate human conduct. However, the human experience is not so easily categorized or quantified and no single formula can be crafted for deciding issues which implicate the most personal and intimate forms of conduct and privacy, especially where children are involved. If we blinded ourselves to the unique facts of each case, we would render decisions in a vacuum with no thought to the serious consequences of our decisions for the affected parties and society in general. CONCLUSION In summary, we hold that section 800.04, Florida Statutes (1993), as applied in the circumstances presented here, furthers the State's compelling interest in protecting minors from harmful sexual conduct through the least intrusive means.",
"Accordingly, we answer the certified question in the affirmative and, in accord with the reasoning set out above, approve the Fifth District's decision. It is so ordered. KOGAN, C.J., OVERTON, SHAW, HARDING and WELLS, JJ., and GRIMES, Senior Justice, concur. NOTES [1] The following facts are taken from the district court's opinion. J.A.S., 686 So.2d at 1367-70. [2] The trial court specifically found subsection (4) unconstitutional as applied. The first three subsections of section 800.04 deal with sexual assault or sexual battery. Subsection (4) provides: A person who: .... (4) Knowingly commits any lewd or lascivious act in the presence of any child under the age of 16 years, without committing the crime of sexual battery, commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.",
"Neither the victim's lack of chastity nor the victim's consent is a defense to the crime proscribed by this section. [3] The trial court then certified a question of great public importance to that effect to the Fifth District. The district court declined to answer the question, finding no provision for a certified question from a trial court and determining that the equal protection and cruel and unusual punishment issues were premature. [4] As to the severity of the sanction attached, the court also noted that the \"legislature seemed to be content with the potential punishment involved, as reflected by its unwillingness to change the statutory prohibitions and penalties... during their 1996 session, although fully acknowledging that it was aware of the problem.\" 686 So.2d at 1369. [5] Although both cases construe section 800.04, Jones addressed the 1991 statute, while J.A.S.",
"interpreted the 1993 statute. There are slight differences between the statutes, although none are material. Specifically, \"Any person\" is now \"A person\"; \"makes an assault upon any child\" is now \"assaults any child\"; and a final sentence was added in 1993: \"A mother's breastfeeding of her baby does not under any circumstance violate this section.\" Ch. 93-4, § 5 Laws of Fla. (1993). [6] \"Whether Florida's privacy amendment, Article I, section 23 of the Florida Constitution, renders section 794.05, Florida Statutes (1991), unconstitutional as it pertains to a minor's consensual sexual activity?\" Id. at 257. The trial court granted B.B. 's motion to declare the statute unconstitutional, relying on T.W. for the proposition that B.B. 's privacy rights under the Florida Constitution outweighed the State's interest in protecting the other consenting sixteen-year-old from her own consensual sexual conduct.",
"Id. at 258. [7] Section 794.05 provided that: (1) Any person who has unlawful sexual intercourse with any unmarried person, of previous chaste character, who at the time of such intercourse is under the age of 18 years, shall be guilty of a felony of the second degree.... (2) It shall not be a defense to a prosecution under this section that the prosecuting witness was not of previous chaste character at the time of the act when the lack of previous chaste character in the prosecuting witness was caused solely by previous intercourse between the defendant and the prosecuting witness. [8] This test was first established in Winfield v. Division of Pari-Mutuel Wagering, 477 So.2d 544 (Fla.1985). [9] Victor v. State, 566 So.2d 354, 356 (Fla. 4th DCA 1990). [10] As in Jones, Justice Kogan filed a separate concurrence and decried the selectivity of section 794.05, writing that this \"singularly odd state of affairs indicates that the real objective of this statute is not to protect children as a class, but to prevent the loss of chastity of those not already `despoiled.'\"",
"Id. Justice Kogan found section 794.05 \"inherently questionable\" since it \"purports to grant special status to a favored group of children over all others,\" thus violating the fundamental legal principle that \"[l]aws should protect everyone, not merely a favored subgroup.\" Id. at 261. Justice Kogan also urged the legislature to either modernize section 794.05 or at least \"decide if it is genuinely necessary in light of the variety of other statutes more than adequately protecting children from sexual predation.\" Id. [11] We note that in apparent response to our decision in B.B., the legislature completely revised section 794.05 in 1996. Ch. 96-409, § 1, Laws of Fla. The most significant change is reflected in subsection (1), which provides that: A person 24 years of age or older who engages in sexual activity with a person 16 or 17 years of age commits a felony of the second degree..... As used in this section, \"sexual activity\" means oral, anal, or vaginal penetration by, or union with, the sexual organ of another; however, sexual activity does not include an act done for a bona fide medical purpose. § 794.05, Fla. Stat. (1997).",
"Hence, section 794.05 no longer exists in the same form we considered in B.B. [12] Neither are we faced here with a statute that selectively protects only a favored sub-group of minors such as was decried by Justice Kogan in B.B. 659 So.2d at 260-61 (finding inexplicable a statute \"that seems to regard unchaste minors as being somehow less deserving of the state's protection than those who are otherwise\"). [13] \"Every natural person has the right to be let alone and free from governmental intrusion into his private life except as otherwise provided herein. This section shall not be construed to limit the public's right of access to public records and meetings as provided by law.\" Art. I, § 23, Fla. Const. [14] This Court has consistently acknowledged the legitimacy of such a policy. \"We do say that if our decision was what should be taught and reasoned to minors, the unequivocal text of our message would be abstinence.\"",
"B.B., 659 So.2d at 260 (majority opinion). \"Persons under the age of eighteen are still considered minors, and as this Court held in Jones, the legislature has a strong policy interest in protecting minors from harmful sexual conduct.\" Id. at 261-62 (Grimes, C.J., dissenting with Shaw, J., concurring). \"The facts of this case make its resolution troublesome... [where] [t]wo persons, both minors, agreed to engage in sexual intercourse.\" Id. at 262 (Harding, J., dissenting). [15] In P.W.G. v. State, 702 So.2d 488 (Fla.1997), we adopted the opinion of the First District which in turn relied extensively upon our previous decision in In re C.J.W., 377 So.2d 22, 24 (Fla.1979), wherein we declared: A child offender, even after being adjudged delinquent, is never held to be a criminal, even if the act would be considered a crime if committed by an adult.",
"The key to this difference in approach lies in the juvenile justice system's ultimate aims. Juveniles are considered to be rehabilitatable. They do not need punishment. Their need lies in the area of treatment. As J.A.S. notes in his brief, a minor convicted of a second-degree felony (if charged as an adult), potentially faces a maximum fifteen-year prison sentence. However, as counsel conceded at oral argument, such a severe sanction is an impossibility in this case since both minors remain within the juvenile justice system and have not been charged as adults."
]
| https://www.courtlistener.com/api/rest/v3/opinions/1913722/ | Legal & Government | https://huggingface.co/datasets/pile-of-law/pile-of-law |
830 F.2d 114 60 A.F.T.R.2d (RIA) 87-5710, 87-2 USTC P 9536 F.P.P. ENTERPRISES and D & S Trust, Appellants,v.UNITED STATES of America, Appellee. No. 86-2309. United States Court of Appeals,Eighth Circuit. Submitted June 11, 1987.Decided Sept. 29, 1987.
Arthur P. Tranakos, Atlanta, Ga., for appellants. Laura Conley of the Dept. of Justice, Washington, D.C., for appellee. Before McMILLIAN, Circuit Judge, FAIRCHILD,* Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge. JOHN R. GIBSON, Circuit Judge.
1 F.P.P. Enterprises and the D & S Trust appeal from a judgment of the district court1 denying their request that the United States be enjoined from levying on certain property conveyed by Donald O. and Sally A. Beason to F.P.P. and D & S Trust to satisfy the Beason's tax liability. The district court concluded that the trusts failed as both family and business trusts; that the transfers by Donald Beason to the trusts were fraudulent conveyances; and that the trusts were shams and alter egos for the Beasons and accordingly had no standing to sue under 26 U.S.C. Sec. 7426(a)2 (1954), 646 F. Supp. 713. On appeal F.P.P. and D & S argue that the trusts were valid and the court erred in holding that the transfers to the trust were fraudulent. We have no difficulty in affirming the judgment of the district court.
2 FPP Enterprises and D & S Trust, allegedly organized as trusts under the laws of the State of Wyoming, were created by instruments executed on December 21, 1978. According to the instruments, the trusts were formed by the exchange of ten dollars and trust certificates for real and/or personal property to be held in the trust organization's name. The trust instruments state that "[t]he true trust organization shall be operated for distribution purposes only, and not for profit * * *." The instruments further provide that "[f]or convenience the trust certificates used for distribution shall be divided into One Hundred Units. They shall be non-assessable, non-taxable, non-negotiable and shall not constitute a security of any kind, and the lawful possessor thereof shall be construed as the lawful owner thereof." Minutes attached to both trust instruments identified the creator as Ron Soester and the exchangers and trustees as Lowell G. and Carolyn Anderson. The documents were not signed by the Beasons.
3 Donald O. and Sally A. Beason acquired the four pieces of property at issue in this case, all of which are located in Grand Island, Nebraska. The properties basically make up the Beasons' entire estate, including their residence, rental property, and an office building out of which Mr. Beason operates his insurance and financial planning business. These properties were conveyed by quit-claim deeds to the purported trusts on April 9 and 23, 1979. The only consideration for each transfer was "$10 and other good and valuable consideration." Certificates representing shares in each of the trusts, dated January 5, 1979, were issued to Donald O. and Sally Beason. The original certificate was marked void for reissuance. Another certificate representing 100 units in F.P.P. was issued September 11, 1979 in the name of the Beasons' children.
4 Neither trust has ever been registered or recorded either in the State of Nebraska or in the State of Wyoming. The Beasons paid no real estate transfer taxes as required by law in the State of Nebraska. When registering the quit-claim deeds, they identified the transfers as exempt "family business reorganizations." It is undisputed that there is no familial relationship between the Beasons and either the Andersons or Ron Soester.
5 Mr. Beason testified that the transfers were made at a time when he anticipated either a divorce or extensive medical bills for an illness of his wife. His express intent in effecting the tranfers was to shelter his assets from potential creditors and from his wife in the event of a divorce settlement.
6 The Beasons have treated the properties in exactly the same manner after the dates of the alleged transfers as they did before that time. They have continued to live in the residence, receive income from the rental property, and pay the insurance, taxes and mortgage payments due on the properties.
7 Taxes and interest paid on the various properties have been deducted on the Beasons' personal tax returns for the years 1979 through 1982 and up to the present time.3 Schedules attached to each of the returns reflect that the rent from rental property is considered income to the Beasons. They took a depreciation deduction each year and in some years, took a deduction for taxes and interest.
8 Mr. Beason also testified that the properties were transferred subject to the mortgages. He testified that he made an arrangement with the trustees, the Andersons, to lease these properties back. The lease payments would be the mortgage payments, taxes and insurance on the properties, and he would keep the rental income. However, it is undisputed that the trusts never filed any federal or state tax returns reflecting realization of income in the form of mortgage and tax payments as rent from the Beasons. Schedule C of the personal tax returns of Mr. and Mrs. Beason show no deductions for rent paid by the business.
9 The district court concluded the trusts had no standing to sue under 26 U.S.C. Sec. 7426. The court determined: (1) that the trusts were invalid, lacking essential elements of a trust; (2) that however characterized the trusts were shells acting as alter egos for the Beasons; and (3) that the transfers to the trust were made with the expressed intent to shelter assets and were therefore fraudulent conveyances and shams. These findings are factual determinations subject to the clearly erroneous standard of review. See Anderson v. Bessemer City, 470 U.S. 564, 105 S. Ct. 1504, 84 L. Ed. 2d 518 (1985) (defining clearly erroneous standard as set forth in Fed.R.Civ.P. 52(a)).
10 On appeal F.P.P. and D & S argue that they are actually business trusts. They argue that a business trust is distinct from other trusts in that it is created by the voluntary act of the parties. They contend that the intent to create a trust permeates the documents executed by Soester as creator, the Andersons as trustees, and the Beasons and Andersons as exchangers. They point to the conveyances in April, 1979 of the properties to the trusts.
11 As the district court correctly determined, F.P.P. and D & S exhibit none of the usual characteristics of a trust. They fail as business trusts because they do not authorize the carrying on of a business for profit, the beneficial interests are not freely transferable, and the trustees do not exercise control over the property. See Carey v. U.S. Industries, Inc., 414 F. Supp. 794, 795 (N.D.Ill.1976). The trusts also lack the essential elements necessary to create any other type of trust. See Jaiser v. Milligan, 120 F. Supp. 599, 612 (D.Neb.1954). They fail to identify beneficiaries or provide a method for determining who the beneficiaries were intended to be. The trust instruments were not signed by the Beasons, and the Andersons as trustees did not exercise the ultimate power of control over the trust property. Id.
12 The government argues that even if F.P.P. and D & S are characterized as trusts, they may not maintain this action under 26 U.S.C. Sec. 7426 for wrongful levy because they are not a third person separate from the actual taxpayer. Loving Saviour Church v. United States, 728 F.2d 1085 (8th Cir.1984). We agree the district court correctly determined that the trusts lacked standing to bring this action for two reasons.
13 First, the district court concluded that the trusts were shams and fraudulent conveyances. A transaction will not be given effect according to its form if that form does not coincide with the economic reality and is, in effect, a sham. Gregory v. Helvering 293 U.S. 465, 55 S. Ct. 266, 79 L. Ed. 596 (1935); Knetsch v. United States, 364 U.S. 361, 81 S. Ct. 132, 5 L. Ed. 2d 128 (1960); Thompson v. Commissioner, 631 F.2d 642 (9th Cir.1980), cert. denied, 452 U.S. 961, 101 S. Ct. 3110, 69 L. Ed. 2d 972 (1981). The trusts here are without economic substance. Soester as "creator" and the Andersons as "trustees" established "paper trust" entities on December 21, 1978. Soester never held or contributed any of the real property placed in the trusts. Instead, the property was conveyed by the Beasons to the trusts approximately four months later. The Beasons continued to treat the property in exactly the same manner after the transfers as they did before that time, quite simply, as their own. The trust property may therefore be levied on to satisfy the Beason's tax liability. These facts also indicate the transfers to the trusts were fraudulent under Nebraska Revised Statutes Secs. 36-606 and 607.4 Indeed, Mr. Beason testified that the transfer was made with the expressed intent to shelter assets from liability for potential hospital bills and from Mrs. Beason in the event of a divorce. Moreover, the conveyances exhibit the generally recognized "badges of fraud." See Gifford-Hill Co. v. Stoller, 221 Neb. 757, 380 N.W.2d 625 (1986). We are satisfied that the district court did not err in concluding the trusts were shams and fraudulent conveyances. F.P.P. and D & S are not separate persons apart from the Beasons and therefore lack standing to sue under 26 U.S.C. Sec. 7426(a).
14 Second, the district court held that the trusts were the alter egos of the Beasons, and therefore not separate persons apart from the Beasons. Property held in the name of an entity which is the alter ego of a taxpayer may be levied on to satisfy the tax liabilities of the taxpayer. See Loving Saviour Church v. United States, 728 F.2d 1085 (8th Cir.1984).
15 As the district court aptly determined, the situation in Loving Saviour Church, supra, is similar to the instant case. In Loving Saviour Church, the taxpayers, to avoid tax liability, transferred property to family trusts and then to a church the taxpayers had set up. The taxpayers transferred the property to the church for no consideration. They continued to treat the church property as their own and carry insurance on the church assets in their name. This court affirmed the district court's finding that the church was the alter ego of the taxpayers and held that the property in the name of the church could be levied on to satisfy the taxpayers' tax liability. The Beasons likewise treated the trust assets as their own. They continued to live in the residence and use the office space; they paid no rent for such use. They made mortgage and insurance payments and collected income from rental property. On this record, the district court's finding that the trusts are shells acting as alter egos for the Beasons and therefore not separate persons from the taxpayers will not be disturbed.
16 As a final issue, F.P.P. and D & S attack the award of attorney's fees and costs assessed against their attorney. After argument of this case and interrogation by the court, Tranakos filed an application to file an amended notice of appeal naming him personally as an additional party plaintiff. The judgment assessing attorney fees was entered October 2, 1986. The notice of appeal naming Tranakos as appellant was filed June 10, 1987. We are satisfied there is no timely notice of appeal giving this court jurisdiction to consider the argument concerning the attorney's fee assessed against Tranakos. Culinary and Service Employees Union v. Hawaii Employee Benefit Admin., Inc., 688 F.2d 1228, 1232 (9th Cir.1982); see also McGoldrick Oil Co. v. Campbell, Athey & Zukowski, 793 F.2d 649, 652 (5th Cir.1986). We are also satisfied that if we possess jurisdiction, there has been no showing of abuse of discretion and that the award entered by the district court was proper in every way. See Westmoreland v. CBS, Inc., 770 F.2d 1168, 1174-80 (D.C.Cir.1985). The judgment is affirmed.
* The HONORABLE THOMAS E. FAIRCHILD, Senior Circuit Judge for the United States Court of Appeals for the Seventh Circuit, sitting by designation
1 The Honorable Lyle E. Strom, United States District Judge for the District of Nebraska
2 Section 7426(a) provides in part that if a levy has been made on property or property has been sold pursuant to a levy, any person (other than the person against whom is assessed the tax out of which such levy arose) who claims an interest in or lien on such property and that such property was wrongfully levied upon may bring a civil action against the United States in a district court of the United States
3 Because of marital difficulties, Sally had refused to sign the joint income tax returns commencing in the late 1970's
4 Neb.Rev.Stat. Secs. 36-606 and 607 provide: 36-606. Conveyances by a person about to incur debts; fraudulent, when. Every conveyance made and every obligation incurred without fair consideration when the person making the conveyance or entering the obligation intends or believes that he will incur debts beyond his or her ability to pay as they mature, is fraudulent as to both present and future creditors. 36-607. Conveyances made with intent to defraud. Every conveyance made and every obligation incurred with actual intent, as distinguished from intent presumed in law, to hinder, delay, or defraud either present or future creditors, is fraudulent as to both present and future creditors. | 08-23-2011 | [
"830 F.2d 114 60 A.F.T.R.2d (RIA) 87-5710, 87-2 USTC P 9536 F.P.P. ENTERPRISES and D & S Trust, Appellants,v.UNITED STATES of America, Appellee. No. 86-2309. United States Court of Appeals,Eighth Circuit. Submitted June 11, 1987.Decided Sept. 29, 1987. Arthur P. Tranakos, Atlanta, Ga., for appellants. Laura Conley of the Dept. of Justice, Washington, D.C., for appellee. Before McMILLIAN, Circuit Judge, FAIRCHILD,* Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge. JOHN R. GIBSON, Circuit Judge. 1 F.P.P. Enterprises and the D & S Trust appeal from a judgment of the district court1 denying their request that the United States be enjoined from levying on certain property conveyed by Donald O. and Sally A. Beason to F.P.P.",
"and D & S Trust to satisfy the Beason's tax liability. The district court concluded that the trusts failed as both family and business trusts; that the transfers by Donald Beason to the trusts were fraudulent conveyances; and that the trusts were shams and alter egos for the Beasons and accordingly had no standing to sue under 26 U.S.C. Sec. 7426(a)2 (1954), 646 F. Supp. 713. On appeal F.P.P. and D & S argue that the trusts were valid and the court erred in holding that the transfers to the trust were fraudulent. We have no difficulty in affirming the judgment of the district court. 2 FPP Enterprises and D & S Trust, allegedly organized as trusts under the laws of the State of Wyoming, were created by instruments executed on December 21, 1978. According to the instruments, the trusts were formed by the exchange of ten dollars and trust certificates for real and/or personal property to be held in the trust organization's name. The trust instruments state that \"[t]he true trust organization shall be operated for distribution purposes only, and not for profit * * *.\"",
"The instruments further provide that \"[f]or convenience the trust certificates used for distribution shall be divided into One Hundred Units. They shall be non-assessable, non-taxable, non-negotiable and shall not constitute a security of any kind, and the lawful possessor thereof shall be construed as the lawful owner thereof.\" Minutes attached to both trust instruments identified the creator as Ron Soester and the exchangers and trustees as Lowell G. and Carolyn Anderson. The documents were not signed by the Beasons. 3 Donald O. and Sally A. Beason acquired the four pieces of property at issue in this case, all of which are located in Grand Island, Nebraska. The properties basically make up the Beasons' entire estate, including their residence, rental property, and an office building out of which Mr. Beason operates his insurance and financial planning business.",
"These properties were conveyed by quit-claim deeds to the purported trusts on April 9 and 23, 1979. The only consideration for each transfer was \"$10 and other good and valuable consideration.\" Certificates representing shares in each of the trusts, dated January 5, 1979, were issued to Donald O. and Sally Beason. The original certificate was marked void for reissuance. Another certificate representing 100 units in F.P.P. was issued September 11, 1979 in the name of the Beasons' children. 4 Neither trust has ever been registered or recorded either in the State of Nebraska or in the State of Wyoming. The Beasons paid no real estate transfer taxes as required by law in the State of Nebraska.",
"When registering the quit-claim deeds, they identified the transfers as exempt \"family business reorganizations.\" It is undisputed that there is no familial relationship between the Beasons and either the Andersons or Ron Soester. 5 Mr. Beason testified that the transfers were made at a time when he anticipated either a divorce or extensive medical bills for an illness of his wife. His express intent in effecting the tranfers was to shelter his assets from potential creditors and from his wife in the event of a divorce settlement.",
"6 The Beasons have treated the properties in exactly the same manner after the dates of the alleged transfers as they did before that time. They have continued to live in the residence, receive income from the rental property, and pay the insurance, taxes and mortgage payments due on the properties. 7 Taxes and interest paid on the various properties have been deducted on the Beasons' personal tax returns for the years 1979 through 1982 and up to the present time.3 Schedules attached to each of the returns reflect that the rent from rental property is considered income to the Beasons. They took a depreciation deduction each year and in some years, took a deduction for taxes and interest. 8 Mr. Beason also testified that the properties were transferred subject to the mortgages. He testified that he made an arrangement with the trustees, the Andersons, to lease these properties back. The lease payments would be the mortgage payments, taxes and insurance on the properties, and he would keep the rental income.",
"However, it is undisputed that the trusts never filed any federal or state tax returns reflecting realization of income in the form of mortgage and tax payments as rent from the Beasons. Schedule C of the personal tax returns of Mr. and Mrs. Beason show no deductions for rent paid by the business. 9 The district court concluded the trusts had no standing to sue under 26 U.S.C. Sec. 7426. The court determined: (1) that the trusts were invalid, lacking essential elements of a trust; (2) that however characterized the trusts were shells acting as alter egos for the Beasons; and (3) that the transfers to the trust were made with the expressed intent to shelter assets and were therefore fraudulent conveyances and shams. These findings are factual determinations subject to the clearly erroneous standard of review. See Anderson v. Bessemer City, 470 U.S. 564, 105 S. Ct. 1504, 84 L. Ed.",
"2d 518 (1985) (defining clearly erroneous standard as set forth in Fed.R.Civ.P. 52(a)). 10 On appeal F.P.P. and D & S argue that they are actually business trusts. They argue that a business trust is distinct from other trusts in that it is created by the voluntary act of the parties. They contend that the intent to create a trust permeates the documents executed by Soester as creator, the Andersons as trustees, and the Beasons and Andersons as exchangers. They point to the conveyances in April, 1979 of the properties to the trusts.",
"11 As the district court correctly determined, F.P.P. and D & S exhibit none of the usual characteristics of a trust. They fail as business trusts because they do not authorize the carrying on of a business for profit, the beneficial interests are not freely transferable, and the trustees do not exercise control over the property. See Carey v. U.S. Industries, Inc., 414 F. Supp. 794, 795 (N.D.Ill.1976). The trusts also lack the essential elements necessary to create any other type of trust. See Jaiser v. Milligan, 120 F. Supp. 599, 612 (D.Neb.1954). They fail to identify beneficiaries or provide a method for determining who the beneficiaries were intended to be.",
"The trust instruments were not signed by the Beasons, and the Andersons as trustees did not exercise the ultimate power of control over the trust property. Id. 12 The government argues that even if F.P.P. and D & S are characterized as trusts, they may not maintain this action under 26 U.S.C. Sec. 7426 for wrongful levy because they are not a third person separate from the actual taxpayer. Loving Saviour Church v. United States, 728 F.2d 1085 (8th Cir.1984). We agree the district court correctly determined that the trusts lacked standing to bring this action for two reasons. 13 First, the district court concluded that the trusts were shams and fraudulent conveyances. A transaction will not be given effect according to its form if that form does not coincide with the economic reality and is, in effect, a sham.",
"Gregory v. Helvering 293 U.S. 465, 55 S. Ct. 266, 79 L. Ed. 596 (1935); Knetsch v. United States, 364 U.S. 361, 81 S. Ct. 132, 5 L. Ed. 2d 128 (1960); Thompson v. Commissioner, 631 F.2d 642 (9th Cir.1980), cert. denied, 452 U.S. 961, 101 S. Ct. 3110, 69 L. Ed. 2d 972 (1981). The trusts here are without economic substance. Soester as \"creator\" and the Andersons as \"trustees\" established \"paper trust\" entities on December 21, 1978. Soester never held or contributed any of the real property placed in the trusts. Instead, the property was conveyed by the Beasons to the trusts approximately four months later. The Beasons continued to treat the property in exactly the same manner after the transfers as they did before that time, quite simply, as their own.",
"The trust property may therefore be levied on to satisfy the Beason's tax liability. These facts also indicate the transfers to the trusts were fraudulent under Nebraska Revised Statutes Secs. 36-606 and 607.4 Indeed, Mr. Beason testified that the transfer was made with the expressed intent to shelter assets from liability for potential hospital bills and from Mrs. Beason in the event of a divorce. Moreover, the conveyances exhibit the generally recognized \"badges of fraud.\" See Gifford-Hill Co. v. Stoller, 221 Neb. 757, 380 N.W.2d 625 (1986). We are satisfied that the district court did not err in concluding the trusts were shams and fraudulent conveyances. F.P.P. and D & S are not separate persons apart from the Beasons and therefore lack standing to sue under 26 U.S.C.",
"Sec. 7426(a). 14 Second, the district court held that the trusts were the alter egos of the Beasons, and therefore not separate persons apart from the Beasons. Property held in the name of an entity which is the alter ego of a taxpayer may be levied on to satisfy the tax liabilities of the taxpayer. See Loving Saviour Church v. United States, 728 F.2d 1085 (8th Cir.1984). 15 As the district court aptly determined, the situation in Loving Saviour Church, supra, is similar to the instant case. In Loving Saviour Church, the taxpayers, to avoid tax liability, transferred property to family trusts and then to a church the taxpayers had set up. The taxpayers transferred the property to the church for no consideration. They continued to treat the church property as their own and carry insurance on the church assets in their name. This court affirmed the district court's finding that the church was the alter ego of the taxpayers and held that the property in the name of the church could be levied on to satisfy the taxpayers' tax liability. The Beasons likewise treated the trust assets as their own. They continued to live in the residence and use the office space; they paid no rent for such use. They made mortgage and insurance payments and collected income from rental property. On this record, the district court's finding that the trusts are shells acting as alter egos for the Beasons and therefore not separate persons from the taxpayers will not be disturbed.",
"16 As a final issue, F.P.P. and D & S attack the award of attorney's fees and costs assessed against their attorney. After argument of this case and interrogation by the court, Tranakos filed an application to file an amended notice of appeal naming him personally as an additional party plaintiff. The judgment assessing attorney fees was entered October 2, 1986. The notice of appeal naming Tranakos as appellant was filed June 10, 1987. We are satisfied there is no timely notice of appeal giving this court jurisdiction to consider the argument concerning the attorney's fee assessed against Tranakos. Culinary and Service Employees Union v. Hawaii Employee Benefit Admin., Inc., 688 F.2d 1228, 1232 (9th Cir.1982); see also McGoldrick Oil Co. v. Campbell, Athey & Zukowski, 793 F.2d 649, 652 (5th Cir.1986). We are also satisfied that if we possess jurisdiction, there has been no showing of abuse of discretion and that the award entered by the district court was proper in every way.",
"See Westmoreland v. CBS, Inc., 770 F.2d 1168, 1174-80 (D.C.Cir.1985). The judgment is affirmed. * The HONORABLE THOMAS E. FAIRCHILD, Senior Circuit Judge for the United States Court of Appeals for the Seventh Circuit, sitting by designation 1 The Honorable Lyle E. Strom, United States District Judge for the District of Nebraska 2 Section 7426(a) provides in part that if a levy has been made on property or property has been sold pursuant to a levy, any person (other than the person against whom is assessed the tax out of which such levy arose) who claims an interest in or lien on such property and that such property was wrongfully levied upon may bring a civil action against the United States in a district court of the United States 3 Because of marital difficulties, Sally had refused to sign the joint income tax returns commencing in the late 1970's 4 Neb.Rev.Stat. Secs. 36-606 and 607 provide: 36-606. Conveyances by a person about to incur debts; fraudulent, when. Every conveyance made and every obligation incurred without fair consideration when the person making the conveyance or entering the obligation intends or believes that he will incur debts beyond his or her ability to pay as they mature, is fraudulent as to both present and future creditors.",
"36-607. Conveyances made with intent to defraud. Every conveyance made and every obligation incurred with actual intent, as distinguished from intent presumed in law, to hinder, delay, or defraud either present or future creditors, is fraudulent as to both present and future creditors."
]
| https://www.courtlistener.com/api/rest/v3/opinions/495085/ | 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.